Wildlife

Disagreement About Fuel Treatment: Exhibit A?

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Still More Agreement About Fuel Treatment: Conservation Colorado and former Secretary Zinke

Sharon said:

That’s why I’m thinking that finding some projects that entail:
1. FS clearcutting in California
2. Fuel treatments in backcountry
3. Fuel treatments taking out big fire-resilient (living?) trees

Would help us understand exactly what the issues are.

I think this project might be a good place to start:

Destructive wildfires along the California-Oregon border in recent years has the U.S. Forest Service pursuing projects to clear forests of burnt debris and trees that could feed future fires. One of those projects included selling the rights to log old-growth trees in Northern California, until a federal judge halted the timber sale on Friday.

Environmental groups asked a federal court to halt the Seaid-Horse timber sale in the Klamath National Forest. They say it would violate the Northwest Forest Plan by clear-cutting protected old-growth trees and harming Coho salmon.

Its purpose is: “Reduce safety hazards along roads & in concentrated stands, reduce fuels adjacent to private property, & to reduce the risk of future large-scale high severity fire losses of late successional habitat.”

So it’s got California, clearcutting, fuel treatment and big trees.  It’s also got wildlife issues, which is the other point of disagreement I suggested.  Maybe not back-country, but certainly not front-country – mid-country? 

It even comes with a spokesperson who is probably familiar with our questions:

Western Environmental Law Group attorney Susan Jane Brown says old-growth trees in Northern California provide a habitat for threatened species such as the northern spotted owl. They’re also the most resilient in enduring wildfires.

“We could agree that cutting small trees is a good thing to reduce fire risk, but when it comes to cutting very large, very old trees, that’s an entirely different matter,” Brown said.

 

 

Supreme Court may reinterpret tribal treaty rights on national forests

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Here’s a pending Supreme Court case, Herrera v. Wyoming, that hasn’t shown up in the Forest Service litigation summaries.  The federal government is defending the right of a Native American to hunt on the Bighorn National Forest without complying with state hunting laws.  If they lose, tribal treaty rights, as currently understood, could be severely diminished.  The hearing is scheduled for January 8.

When the native tribes ceded their lands to the federal government, the language in the treaties typically preserved their rights to various uses and activities on indigenous lands that were not included within the new reservation, for which the treaties used the terms “open and unclaimed” or “unoccupied” lands.  Much of that land is now part of national forests.  Here is how the Forest Service interprets the language referring to those lands:

The term applied to public domain lands held by the United States that had not been fenced or claimed through a land settlement act. Today, “open and unclaimed lands” applies to lands remaining in the public domain (for the purposes of hunting, gathering foods, and grazing livestock or trapping). The courts have ruled that National Forest System lands reserved from the public domain are open, unclaimed, or unoccupied land, and as such the term applies to
reserved treaty rights on National Forest System land.

In the case currently pending before the Supreme Court the State of Wyoming has argued that this is not true (they also argue that the lands became “occupied” when Wyoming became a state):

The parties further dispute whether the Bighorn National Forest should be considered “unoccupied lands” for treaty purposes. Herrera and the federal government emphasize that the proclamation of a national forest meant the land could no longer be settled, which they argue was the historical standard for occupation. Yet Wyoming argues that physical presence should not be the test, especially given the West’s expansiveness. According to Wyoming, the federal government’s proprietary power over its own lands, including its decisions to exclude hunters, demonstrates that the land was effectively occupied when it became a national forest.

Courts have held that the federal government has a substantive duty to protect ‘to the fullest extent possible’ the tribal treaty rights, and the resources on which those rights depend.   If Wyoming were to win their argument, treaty rights to accustomed tribal uses of national forests would no longer exist.  Because the federal government is defending the tribal interests in this case, one might think that the Forest Service would continue to protect these rights even without the treaty obligation.  However, in the past they have disagreed with tribes on issues such as campground fees and desired salmon populations.

BLM land management plans maybe prevent species listing

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At least that is what I think happened, but because of the government shutdown, I can’t confirm the details.

The Trump Administration has declined to extend federal protections for two plants native to the Mountain West.

Julie Reeves, plant and wildlife biologist with the service, said the plants didn’t make the cut because another federal agency, the Bureau of Land Management, prohibits energy development and other potentially damaging activities near their habitats.

“Those (threats) are not going to rise to the level of high magnitude that could affect the species because of protections put in place by the BLM,” she said.

A good idea for Forest Service plans regardless.

Sierra Nevada Logging Examples

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Back in 2012, I worked my last season with the Forest Service, on the Amador Ranger District of the Eldorado National Forest. In particular, I led the crew in marking the cut trees in this overcrowded unit.

The above picture shows the partially logged unit, as well as the sizes of logs thinned.

This part of the same unit shows a finished portion, and two other log landings.

Here is a link to the larger view.

https://www.google.com/maps/@38.6022239,-120.3284245,1019a,35y,90h/data=!3m1!1e3?hl=en

There are also other completed cutting units in the area, which I worked in. Most of those were also cut in 2018, six years after they were marked. The existing plantations were cut back in the 80’s. At least one new goshawk nest was found, and the cutting unit was dropped.

Montana County rains on land deal

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It is a time-tested and popular model.  A private landowner is willing to sell land or conservation easements to the government.  A third party conservation group steps in to provide bridge funding and/or ownership until the government can fund the purchase.  In this case, involving the Rocky Mountain Elk Foundation as the intermediary:

“The project, which was in its very early stages, would provide some valuable new access points in the area as well as protection from development along a stretch of Sheep Creek, a tributary of the Smith River, he said. In addition to the 4,000 acres purchased and then resold to the Forest Service, the checkerboard pattern of land ownership would mean access to an additional 7,000 acres of public land.”

While Meagher County (pronounced “mar”) doesn’t have any authority to influence the deal, it is attempting to do so by issuing a resolution opposing it, citing “potential loss of tax revenue, issues with federal land ownership and management, and the question of whether a land swap could open access without expanding federal land ownership.”  The resolution says, “that the commission respects private property rights and supports tourism but continues to oppose expanded federal ownership.”  (Funny that they don’t mention elk hunting/hunters, which has to be a key benefit.)  Their opposition may affect how the project competes for funding, and whether RMEF wants to stay involved.

The Forest Service, to its credit, is looking out for the “greatest good” and not bowing to nimbyism or political ideology.

“We acknowledge Meagher County’s resolution and recognize their position regarding the Holmstrom Sheep Creek proposal,” said Lisa Stoeffler, acting forest supervisor. “We appreciate that our working relationship with the commission allows for open discussions, especially related to increased recreational public lands access and the improvement of crucial fish and wildlife habitat conservation areas within the county. The Forest plans to submit two project requests for LWCF funding, one of which will include Holmstrom Sheep Creek. In our request packet, we will fully disclose the Commission’s resolution regarding the project.”

These have normally been seen as “white hat” projects in the past, but under this Administration, the Forest Service may find out that white is the new black.

Trapping lawsuits

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Neither of these is going to show up in the NFS litigation summaries because the Forest Service is not a party to the litigation (yet), but the trapping at issue occurs on national forest lands, and the Forest Service does have the authority to regulate trapping that occurs on national forest lands.

Two environmental groups have sued the Oregon Department of Fish and Wildlife for failing to ban the trapping of Humboldt martens in Oregon’s coastal forests.  Humboldt martens were proposed for listing as a threatened species in October.  Threats include “loss of habitat, wildfire, changing climate, trapping, vehicle mortality, vegetation management, exposure to toxicants, threats from predators and effects associated with small and isolated populations.”  According to the Center for Biological Diversity news release, “Following the largest mammal survey ever conducted in the state, researchers from Oregon State University and the U.S. Forest Service recommended eliminating trapping of coastal martens as a first step in rebuilding the state’s imperiled populations.”  Good for the Forest Service.  Their involvement may have something to do with the fact that their “vegetation management” could be curtailed if the species is listed.  Perhaps they will intervene in the lawsuit on the side of CBD et al?  Probably as likely as them invoking their own authority to regulate trapping as a use of national forest lands.  But that may be better than being added as a defendant.

The Environmental Protection Information Center has filed a notice of intent to sue the federal USDA Wildlife Services.  According to this article, they allege that the agency’s program for killing beavers harms endangered fish because beavers “benefit salmon and steelhead by building better habitat conditions, including creation of ponds used by salmon and increasing stream flow in summer months.”  They are asserting that the Wildlife Services must consult on the effects of this program with the National Marine Fisheries Service.  While the Forest Service is not mentioned, nor is the geographic scope, this certainly includes practices on national forest lands.  The Forest Service has a Memorandum of Understanding with Wildlife Services, addressing among other things “managing damage caused by indigenous, non-native and feral vertebrates on NFS lands,” in which the Forest Service is designated as the lead agency for NEPA compliance.  While the MOU acknowledges the need to comply with the Endangered Species Act, this responsibility is not designated.  It appears that the Forest Service at least shares any obligation to consult with Wildlife Services and could be named as a party.

 

A Picture is Worth at Least 1000 Words

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“Natural Forest Regeneration”? (in the Eldorado National Forest.)

Greater sage-grouse amendment amendment

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Three years ago the Forest Service had this to say about the greater sage-grouse:

Two US Forest Service Records of Decision and associated land management plan amendments are the culmination of an unprecedented planning effort in cooperation with the Bureau of Land Management to conserve greater sage-grouse and its habitat on National Forest System lands and Bureau of Land Management-administered lands.

Last week it was this (and they initiated a public comment period):

Since approving the plan amendments in 2015, the Forest Service has gathered information and determined that the conservation benefits of Forest Service plans in Nevada and other states can be improved. That is, through repeated scoping, close collaboration with state and other federal agencies, and internal review, the Forest Service has identified proposed changes in the text of the greater sage-grouse plan amendments which would improve their clarity and efficiency and better align them with the Bureau of Land Management and state plans.

Specifically, the Preferred Alternative makes modifications to land management plans within the issue areas of: Habitat management area designation, including designating sagebrush focal areas as Priority Habitat Management Areas compensatory mitigation and net conservation gain; minerals plan components and waivers; exceptions and modifications; desired conditions; livestock grazing guidelines; adaptive management; treatment of invasive species; and changes to clarify text and eliminate errors and redundancies.

Oddly, it sounds like all of the new information must say that sage-grouse are doing better than we thought three years ago and/or they are less vulnerable to oil and gas drilling than we thought three years ago. The most important change in forest plans is probably this one (from an AP article):

The Obama administration created three protection levels for sage grouse. Most protective were Sagebrush Focal Areas, followed by Primary Habitat Management Areas and then General Habitat Management Areas. The Forest Service plan reclassifies the 1,400 square miles (3,600 kilometers) of Sagebrush Focal Areas as primary habitat.

The focal areas allowed no exceptions for surface development, while primary habitat allowed for limited exceptions with the agreed consent of various federal and state agencies. Under the new plan, the cooperation of states and some federal agencies to exceptions in primary habitat will no longer be needed for some activities but can be made unilaterally by an “authorized officer,” likely an Interior Department worker. That appears to be an avenue for opening focal areas to natural gas and oil drilling.

This amendment decision will be subject to the 2012 Planning Rule requirements for species viability and species of conservation concern (SCC) (from the DEIS):

… the FS is considering the effect on the greater sage-grouse as a potential SCC for each LMP that would be amended by this decision. The analysis in this DEIS shows that the amendments maintain ecological conditions necessary for a viable population of greater sage-grouse in the plan area for each LMP to which the amendments would apply.

Recall that the current conservation strategy was “generally viewed as keeping the bird from being listed for federal protections under the Endangered Species Act.”  What will the Zinke that is charge of the Fish and Wildlife Service have to say to the Zinke that is in charge of the BLM (and apparently the Forest Service)? Why does this remind me of political appointee Julie McDonald’s interference with decisions about lynx? Is it more about a new boss than about new science?  “A federal lawsuit is likely.”

Some more background is provided here.

Coastal pine marten proposed for listing as a threatened species

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The U. S. Fish and Wildlife Service has proposed listing the coastal (Humboldt) marten, found in older forests in California and Oregon, as a threatened species.

“Martens are vulnerable to predation and increased competition in habitats that have been subject to either high–moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts…”

As a threatened species, the prohibitions in ESA against incidental take (§9) would not apply, but the FWS usually applies them using a special §4(d) regulation, which it is doing here. As is also common, they carve out exceptions to the prohibitions where take of the marten would be allowed; two of which would be relevant to national forest management:

(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

Here is the rationale:

“Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species’ long-term viability and conservation.”

What this means is that forestry management activities that are not for the purpose of limiting fire or not consistent with the species’ needs would violate ESA if they harm any martens (unless they obtain an incidental take permit).

Regarding (1), I would ask whether all it takes to comply is for a project to say that it is for this purpose, or considering some of the discussions on this blog, does there have to be scientific support for the idea that a particular practice would actually have the intended effect.

Regarding (3), there is obviously a role for forest plans to include coastal marten conservation prescriptions. Presumably, plan components to create and maintain complex tree and shrub conditions for martens would be consistent with the NFMA requirement to provide ecological integrity and conditions needed for viability of at-risk species. What I haven’t seen before is a process by which the FWS reviews a forest plan for consistency with §4(d) criteria for a threatened species.

There could be future challenges to projects for violation of §9 because they do not meet these criteria.  The Center for Biological Diversity believes that “industrial logging” could meet these criteria and continue to occur in marten habitat.  At least (1) seems like it could be an exception that swallows the rule.  If it were dropped for fuel reduction projects, they could still occur if consistent with marten conservation under (3).

Forest Service promotes wildlife overpass

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Despite a national effort (see pp. 29-30) to encourage it, and requirements in the 2012 Planning Rule to provide wildlife habitat connectivity, the Forest Service doesn’t seem to like to assert itself much in cross-boundary planning for such connectivity.  Here is a big exception, which should be an example of what can be done – and what should be done where the Forest Service is responsible for improving conditions for at-risk species.

By revamping the highway with wildlife’s needs in mind, officials were able to broker an easement with the U.S. Forest Service to add the additional lanes.

“It’s a win-win. We could improve transportation. We did lose some national forest,” said Garvey-Darda referring to construction of additional highway lanes. “But we can connect the North Cascades and the South Cascades.”

More importantly, I was told that the forest plan provided the basis for the Forest Service position in the negotiations that the North Cascades and South Cascades should be connected.  I can’t find language in the current plan that would clearly address this, but I know the plan revision process was moving towards useful language for connectivity.  Other revised plans are including language that at least provides some intent to participate in highway planning.  This is from the recently revised Kootenai National Forest Plan:

FW-DC-WL-17. Forest management contributes to wildlife movement within and between national
forest parcels. Movement between those parcels separated by other ownerships is facilitated by
management of the NFS portions of linkage areas identified through interagency coordination.
Federal ownership is consolidated at these approach areas to highway and road crossings to facilitate wildlife movement.

This would at least tell a Forest it needs to be a player and give them some leverage.  However, for at-risk species its role is to be a leader, and with nothing more than a desired condition and without identifying any linkage areas in the plan this would not meet any substantive requirements of ESA or NFMA (recovery or viability).  (Similar language in the uniform plan amendment for lynx does apply to mapped linkage areas.)