Learning From the Past?: Getting Visitors to Do the Right Things

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Les Joslin as a fire guard in the 1960’s.

If only…as much research went into “changing public behavior with different education/enforcement strategies on federal lands” as went into modeling the impacts of future climate change on random plants and animals; or projections to 2200 of burned acres and severity. Oh well… This also reminds me of our discussion of historic conditions and how they should inform future management. In this case, “it worked then, will it work today and tomorrow, or will something work better?

The topic came up as part of an Rural Voices for Conservation Coalition 2020 Recreation Season After Action Review .

The Forest Service should invest in increased staff or volunteer capacity at recreation sites. Having dedicated hosts at recreational sites, whether through agency staffing or partnerships with local NGOs (e.g Wallowa Resources’ Community Solutions, Inc. manages USFS campgrounds in Eastern Oregon) has been critical to ensuring that visitors are educated on responsible recreation practices and that COVID-19 protocols and policies are enforced.

It came up in the Flathead Forest Plan litigation discussion due to  the impacts on grizzly bears of illegal entry on roads. It comes up in Bears Ears discussions, as if Monument designation would stop people from pot-hunting, defacing pictographs and other bad things. It’s a common problem across the Forest Service and BLM, where acres are large and numbers of employees are small.

Les Joslin wrote a piece about the value of what “fire prevention guards” used to do:

Climate change has increased wildfire hazard by making fuels dryer for longer periods of time. The key to effective wildfire prevention is reaching the primary risk factor—visitors to and other users of the national forest and adjacent wildland-urban interface lands—with an effective fire prevention message. This is best done through person-to-person communication of a wildfire prevention message by a friendly fire prevention officer. Bend and other Central Oregon fire departments and districts should team up with the Deschutes National Forest to field and fund such fire prevention messengers—modern descendants of the fire prevention guard I once was.

“I don’t know that any fire prevention guard ever prevented a fire just by riding around in his truck,” I wrote in that memoir. “I know I didn’t, because I didn’t. The key to these fire prevention patrols was public contact, and the key to public contact was to get out of the patrol truck and talk with people. So, instead of just driving through campgrounds and raising dust, I routinely parked and walked the campgrounds. That made me available to visitors, either to initiate conversations or to respond to their questions. Outside developed campgrounds, I parked a respectful distance from and walked into camps to greet the campers, answer whatever questions they had, and work my fire prevention message…into the conversation. I did the same along heavily-fished streams.”

“Availability’s partner…is visibility, and I made it a point to look the part, to be easily recognized as a Forest Service representative. A good haircut and a clean shave, a freshly pressed uniform shirt with badge in place, clean green jeans and solid work boots, coupled with a pleasant disposition, projected a positive image. There is no place in public service, I agreed with the district ranger and the fire control officer, for slovenly appearance and bad manners. … I’m convinced this friendly, helpful, face-to-face approach contributed to my success on the job” and to prevention of destructive wildfires. Central Oregon fire prevention officers—on the ground in Forest Service green or fire department or district blue—could replicate such success.

“Fire prevention is a funny business,” I wrote. “You never really know how good you are at it because you never really know if you’ve actually prevented a wildfire. There’s no objective measure of success. Failure is much easier to prove.” But, as the old saying goes, “an ounce of prevention is worth a pound of cure.” Strengthening the region’s Project Wildfire efforts toward wildfire preparedness and mitigation measures that address the hazards by beefing up the wildfire prevention effort that addresses the risks—vastly increased with explosive population and visitation growth—would be well worth the minimal additional cost.

At the time, it was considered worth the money to have “boots on the ground”; even though federal employees are expensive, and yet, as Les points out, just the fire prevention aspect could have economic benefits. But presence in those days was different; today we have all kinds of virtual presence. Are human beings a necessity or a luxury (in terms of being out there)? Partners can certainly help get the message out, but how does that work exactly when volunteers faced with a grumpy and potentially volatile rule-breaker? In what ways can some combination of law enforcement folks, volunteers and technology help educate and enforce rules?

I think “having rules that mean something” and “preventing human ignitions” are both Things We Can Agree On.

What Do You Think About?: This Forest Supervisor’s Wildfire Comments

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This article in High Country News seemed to fit with Sharon’s post yesterday, but also seemed worth a separate post.

In the view of this forest supervisor, the solution is more landscape-scale decisions (which we have discussed a few times, like here), and more categorical exclusions (which we have discussed a few times, like here.)  But his deliberate effort to cut corners with the public is getting pushback from all sides.

All sides agreed that more details were needed to assess the impacts and justifications for the proposals. They wanted to know where projects would occur, and how and when they would be carried out. In short, they felt like Mark was going about this the wrong way.

After receiving that community feedback — and seeing other national forests get sued for similar landscape-level categorical exclusions — Mark put a pause on the proposals. “Some people are uncomfortable, and I knew that coming in,” he said. “But I guarantee you get another (fire) that’s threatening this ridge with a smoke cloud that’s 30,000 feet in the air, I know you’re going to be uncomfortable.”

(To me, that feels a little bit like extortion.)

And then there is this – what I think of as the “bake sale” approach to forest management:

As part of the process, the Forest Service often offers large, fire-resistant trees — which are more valuable because of their size and tight grain — as an incentive for companies to bid on the thinning that, in many cases, is a sale’s true objective. “Something’s got to carry the load,” Mark said. “Otherwise, you’re not going to be able to sell the sale and you won’t get anything done.”

I suppose there is authority somewhere for the Forest Service to cut down trees because they are the most valuable, but I don’t think I’ve ever seen a forest plan say this (and it’s sure contrary to pursuing ecological integrity).

Some interesting commentary on competing collaboration efforts in the article, too.

 

 

NFS Litigation Weekly June 11, 2021

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It seems like this is becoming more of a “litigation monthly” (maybe because the litigation business is slow?), but here’s what they’ve got:  Litigation Weekly June 11 2021_Email

COURT DECISIONS

Conservation Congress v. U.S. Forest Service (E.D. Cal.).   On May 17, the district court upheld the Pettijohn Project on the Shasta-Trinity National Forest concerning alleged impacts on the northern spotted owl under ESA, NEPA, HFRA and NFMA.  A local story is here.

Gallatin Wildlife Association v. U.S. Forest Service (9th Cir.).  On May 18, in a 4-page opinion, the 9th Circuit affirmed the District Court of Montana’s decision, which upheld the allotment management plans on 7 domestic sheep allotments, on the Beaverhead-Deerlodge National Forest, and the Forest Service’s use of a coarse filter methodology in assessing the risk of domestic sheep grazing to bighorn sheep.

BAR K Ranch v. United States (D. Mont.).  On May 10, in a quiet title action brought against the Forest Service and BLM, the district court granted the Forest Service’s motion that the several public and private rights-of-way over roads on the Beaverhead-Deerlodge National Forest constitute Forest Service roads.

NEW CASES

Kettle Range Conservation Group v. U.S. Forest Service (E.D. Wash.) On May 12, the plaintiff filed a complaint concerning the Sanpoil Project on the Colville National Forest. The complaint alleges failure of the EA to include a meaningful (including site-specific) analysis of the impacts of timber harvests, controlled burns and road work within 47,956 acres of the Colville National Forest. Due to the proximity to tribal trust lands of the Colville Tribe, the project was proposed under the Tribal Forest Protection Act.  Plaintiffs further challenge the Forest Service’s final decision approving the 2019 Colville Forest Plan, because it fails to protect old-growth trees from logging through projects such as the Sanpoil Project.

Klamath Forest Alliance v Blower (D. Or.).   On May 21, the plaintiffs filed a complaint against the Slater Fire Safe Re-entry Project, after fires in 2020 on the Rogue River-Siskiyou National Forest, challenging the use of the road repair and maintenance CE for a project of this scope (along 85 miles of roadway).  Additional claims under ESA may be added pending response to a 60-day Notice of Intent to Sue.

 

BLOGGER’S BONUS

On May 17, 2021, the United States Court of Appeals for the Ninth Circuit held that a new Trump administration U.S. Fish and Wildlife Service rule requiring that affected states receive a 30-day notice of an intent to file a petition to list a species as endangered or threatened is inconsistent with the Endangered Species Act.  The specifics of this case involve the Pryor Mountains on the Custer-Gallatin National Forest.  They also involve a petition to list a particular “Old-World Spanish genetic lineage” of wild horse, which the Fish and Wildlife Service rejected for failure to comply with this new requirement.

  • Sage grouse

In February, the district court of Idaho overturned a Trump administration action to cancel a prior effort to ban mining and allow mining and other development on 10 million acres that are considered important for the survival of sage-grouse.  In May the Biden administration announced it would consider a new ban.

  • Flathead forest plan revision

On May 27, a hearing was held in the district court of Montana in the lawsuit against the revised Flathead National Forest Plan involving grizzly bears and bull trout.  Local articles summarizing the hearing discussions are here, here, and here.

What Do You Think About?: Environmental Defense Fund’s Wildfire Comments

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As I’ve mentioned, I’ve been reviewing what different environmental groups wrote in their USDA Climate Smart Forestry and Agriculture comments.  One I found particularly worth discussing is from the Environmental Defense Fund.

Our national wildfire strategy should have two priorities: 1) Protect communities in the line of fire; and 2) Reestablish natural fire patterns to protect ecosystem values and sustainably manage fuel loads. Reestablishing natural fire regimes can only be realized when fuel loads, particularly in the West, are greatly reduced using both mechanical treatments and prescribed and managed fire. Implementation will require an updated wildfire triage approach to ensure that we address the most pressing threats to communities and human lives, first. Using fire as a management tool requires as a precondition that communities feel that their lives and property are safe and secure. Where and when this condition is met, managers will have greater flexibility to manage vegetation in wildlands.
A special burden falls on USDA Forest Service due to its management responsibility for National Forests and Grasslands. USDA can act now to revitalize and reorganize the Forest Service in support of a new national fire strategy, an effort that will require an all-hands-on-deck commitment from staff scientists, fire practitioners, land managers and community outreach specialists.

I like their priorities 1 and 2, and their mention of fire practitioners. Many groups did not mention fire suppression or fuels practitioners at all. I’d think they’d be key to developing strategies to deal with wildfires.

Specific recommendations include:

· Establish a Wildfire Commission, co-chaired by the Secretaries of Agriculture and Interior and bipartisan western governors to develop a new western fire strategy that will increase the pace and scale of ecologically-sound fuel reduction treatments on all lands (federal, state, private and tribal), modernize firefighting response and increase the use of prescribed fire.
· Address significant gaps in our national approach to forest pest and disease — both native and non-native invasive pests and disease — including increasing funding for research, monitoring, detection and treatment on both federal and non-federal lands. USDA should work also with other federal and state agencies to address the significant risk to native vegetation arising from the wide import of products in wood packaging.
· Rebuild and restore staff capacity and morale within the USDA Forest Service by investing in science capacity within the research units, creating more sustainable career paths for staff, and creating a path to leadership positions for a diversity of critical job categories (e.g., not just timber and fire). Development of communication, community engagement, negotiation and partnership-building skills should be prioritized in recruitment and advancement.
· Expand year-round, career-track jobs for a new category of forest restoration practitioners that combine seasonal firefighting and forest restoration work.
· Create training opportunities for youth and members of disadvantaged

I don’t know that we need a new strategy, but I’m wondering what others think. And I do think involving the western governors would decrease the partisan fussing around the topic. I also like that they mention insects and diseases and even wood packaging! It seems like many environmental groups may not be concerned about the impacts of introduced forest insects and diseases, at least based on the letters I’ve read. I do think there is a path to leadership outside of timber and fire- I’ve seen a broad variety of folks. How about your experiences? I like the year-round career-track jobs for forest restoration practitioners, but perhaps that runs counter to other efforts to equalize the pay of wildland firefighters with other entities (as discussed here at Wildfire Today and many other places)?

I was also intrigued by this suggestion:

Build consensus within the science, forest industry and NGO communities to ensure that climate-smart forestry practices are recognized, valued and non-controversial.

and wondered what mechanisms the author might propose to accomplish this. I’m trying to contact the authors, but meanwhile you all may have ideas on whether this is a good idea, and if so, how to do it.

Scientists Are Trying to Make California Forests More Fire Resilient

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Bloomberg News has a pretty good article today:

Scientists Are Trying to Make California Forests More Fire Resilient

As the threat of wildfire looms, a debate has emerged in the state about the best way to plant trees.

Some interesting photos, too.

As someone who helped with numerous timber sales on the El Dorado NF in the 1980s, and helped suppress a few wildfires there, I agree that broad landscapes of plantations of evenly spaced trees are far from natural, and in a changing climate, perhaps are a liability — unless they are managed to be more like natural stands, with groups of trees and spaces in between. That can be done with “industrial” plantations, if thinning aims to leave groups/skips/gaps rather than maintaining relatively uniform stem density. Of course, this is site-specific. In some areas, even-aged, production-oriented silviculture is appropriate, and in other areas, nature has created dense, even-aged stands on its own. In between, group planting may help guard against the incineration of entire watersheds. Here is where desired future conditions, with due recognition of likely future climate conditions, might best guide management.

 

 

 

 

Exploring Environmental NGO’s Views of Renewable Energy Projects

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Map by TSW of approved projects on federal lands. Note that they are permitted not operational. The link is below.

One of our many Anonymous friends asked the “how are environmental NGO’s dealing with solar and wind for federal lands?” Do they all agree?”

I’ve been collecting stories on this topic. I’m suspecting that the devil, as always lies in the details.. whether they agree with an individual project or not, not the general concept. Because in this case, at least to some groups, corporations will industrialize the landscape doing good things (providing low carbon energy) instead of bad things (providing higher carbon energy), so that’s conceptually good.  Many groups use legal means to slow down or stop projects as a policy tool. It will be interesting to see if they can or do retool their policy levers to speed up favored projects.

Here’s  some ideas that don’t seem particularly speedy  from TWS with a cool map of existing infrastructure (see above):

Large renewable energy projects can disrupt wildlife habitat and harm wildlands if they’re not built in the right places. Since the early stages of renewable energy planning, we have learned important lessons about energy development that occurs at a large scale.

It’s encouraging to see an increase in renewable energy. The BLM has made great strides in building a responsible renewables program from scratch. Unfortunately, not all of the projects on this map are examples of this ‘smart from the start’ approach to developing energy on public lands. Mapping the BLM-approved projects does not mean that The Wilderness Society supports all of them. We simply hope to give readers a look at how much renewable energy has grown on public lands.

And here is how TWS wants BLM to do it:

SMART FROM THE START PLANNING

  1. Find appropriate locations and ensure public input

    Identify pre-screened, lower-impact zones for development and incentivize projects within them—using a process that prioritizes comprehensive tribal consultation and input from all stakeholders, especially local and traditionally underrepresented communities and Black, Indigenous and People of Color.

  2. Protect irreplaceable wildlands

    Avoid development in areas with important wildlife habitat, wildlands and cultural resources, and protect those areas.

  3. Offset impacts

    Offset impacts that can’t be avoided with investments in habitat restoration and protection.

 

We might ask “but how will BLM know what’s an “important” wildland versus a “run of the mill” wildland?  What if it’s important to Juan, Bill and Letitia, but not to Shaundra, Eben and Porfirio?  Will neighbors’ concerns matter more than those of others, or those of local elected officials? Is this another case where “the land is owned by everyone in the country so each person’s view should count equally?”

Here’s a Bobby McGill piece on ESA and the lesser prairie chicken (this is a private land issue but there is still some tension between environmental concerns and development; and the ESA provides a legal nexus for the feds to regulate private land).

A Biden administration proposal to list the lesser prairie-chicken as endangered in the Permian Basin of Texas and New Mexico could stymie oil and gas development in the largest U.S. petroleum basin, environmental attorneys say.

And one warns it could devastate another energy source—wind power.

The U.S. Fish and Wildlife Service announced the proposal to grant Endangered Species Act protection for the imperiled lesser prairie-chicken by listing it as endangered in the Permian Basin and threatened in a region centered on southwestern Kansas.

The May proposal is “at cross purposes with the Biden administration’s climate goals” to develop more renewable sources, said Brooke Marcus Wahlberg, a partner at Nossaman LLP in Austin.

An ESA listing for the lesser prairie-chicken could be devastating for the wind industry because the Fish and Wildlife Service is considering a possible mile-wide zone around each wind turbine within which the agency would assume the bird could no longer live, Wahlberg said.

Within that zone, wind developers would be held liable for “take,” a legal term for killing or harassing an imperiled species, Wahlberg said.

Escalating Costs

Developers can take steps to avoid take, or obtain a Fish and Wildlife Service permit to take an endangered species, as long as they employ mitigation measures that protect the animals.

If the service finds that wind developers are eroding the prairie-chicken’s habitat, they could participate in “existing conservation programs,” or meet with agency officials to discuss other options, Fish and Wildlife Service biologist Clay Nichols said, speaking through an agency spokesperson.

The Texas Panhandle on the edge of the Permian Basin is one of the country’s most productive regions for wind energy. Though the basin itself isn’t a hub for wind development, wind development is occurring close to the New Mexico-Texas border.

But avoiding or mitigating take comes at a high cost for developers.

“You end up having significant acreage that is now unusable,” Wahlberg said. “You’re in this place where the service is saying your take is reaching out to these lengths, or you’re getting a permit where your impacts estimates are so high your mitigation costs are just outrageous.”

….

But private conservation efforts have done little to halt the prairie-chicken’s decline, and ESA protections will help to save it while allowing oil drilling to continue, said Jason Rylander, senor ESA counsel for Defenders of Wildlife, an environmental group.

“There is no question in my mind it needs full protection of the Endangered Species Act,” Rylander said. “I think the important thing to remember is the ESA is a flexible tool that protects species and habitat but rarely stops development.”

For an example of authorized take (in this case of golden eagles) for wind turbines check out this USFWS site:

New Tongass Roadless Replacement: Rulemaking Questions

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As I predicted (it doesn’t take psychic powers, just experience) , the Trump Alaska Roadless Rule is going away, as this WaPo story says, “replaced or repealed.” The headline says “reinstate” but I’m not sure that’s accurate. The WaPo map shows something of what will be proposed in the new proposed Rule?  Or?

The Biden administration said Friday that it would “repeal or replace” a rule allowing roads and other types of development in more than half of Alaska’s Tongass National Forest, reviving 20-year-old protections President Donald Trump had stripped three months before leaving office.

The move was outlined in the administration’s new regulatory agenda. The notice from the White House said the change was consistent with President Biden’s Jan. 27 executive order “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.” The Agriculture Department expects to publish the proposed rule in August, the notice said.

Does the new proposed rule need a new EIS, I wonder, or can it just adopt the old one (Trump-era one). Seems like they should be able to pick any alternative they want from it. Or are there FS workers even now working to produce a new DEIS to support the Rule? Wouldn’t it need an ANPR? Or did I miss it?

I don’t know about “repealing” regulations.. if it were that easy, wouldn’t all regulations that a new administration doesn’t like be repealed and replaced with ones from the prior administration of the same color?

I’m hoping the Biden Administration uses the work of the FS and other folks who worked in good faith with the feds in the last few years to update the Rule where it needs updating, and not just reinstate the 2001.  As Chris Wood himself famously said “the 2001 Rule was not written on stone tablets.”

 

Science Friday: The Problem of Reference Conditions, and Alternative Management Approaches

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American Chestnut planting in Vermont

For many years, scientists and others have been talking about the problems of using HRV and reference conditions as management targets.  Jon and I have had many mind-numbing discussions about it (as placed in the 2012 Planning Rule)  on this very blog. So I thought on Science Friday, I’d start exploring the work of other scientists who have expressed concerns about this. Sadly for me the 2012 Rule is water under the bridge, but the Feinstein bill is not. Let’s see how that bill talks about using reference conditions in the large landscape projects:

“2) evaluates ecological integrity and reference conditions for the landscape;
3) identifies areas that have departed from reference conditions;
4) identifies criteria for determining appropriate restoration treatments;
5) are based on the best available scientific information, including, where applicable, high-resolution imagery and LiDAR; and
6) identifies priority restoration strategies.
o Restoration actions shall 1) emphasize the reintroduction of characteristic fire; 2) for any proposed mechanical treatments, seek to restore reference conditions and the establishment..

Now, you don’t need a Ph.D. in vegetation ecology (or plant evolution, or wildlife biology) to suggest that restoring (say, American Chestnut) may be difficult or impossible to achieve due to a) other changes that have happened since, like other species having taken over  b) climate change, c) invasive species, d) human population impacts (pollution, domestic animals and pets and so on)  e) lack of Native American practices and so on. So why does this idea have such a hold on the imagination? Why has it been argued that this is a more “scientific” approach, when many scientists disagree? And while we can discuss that reference conditions aren’t HRV, well, then aren’t they just conditions that some group finds desirable, and not any more “scientific” than any other conditions?

This article is by Dr. Connie Millar of the Pacific Southwest Research Station, and she uses her climate studies to come up with a different conclusion about what to do- not exactly what many mean by “restoration” but helping systems/organisms be resilient and adapt to future change. It seems like a very different, and possibly more realistic and less expensive, paradigm (to me). The paper also includes a history of the concept as used in forest management on page s30. Here are a few quotes:

From the standpoint of this review, I focus on an underlying assumption of stationarity that continues to emerge in the HRV literature even where discussions address historic variability. Further, two elements in the discussion of HRV remain unconfronted and problematic: First, what historic time period is most relevant to current and future conditions (and, in contrast, what periods are inappropriate); and second, whether “approximating historic conditions” of any historic time period is a wise approach to managing for functional ecosystems of the future

I agree that the latter deserves much more discussion. Especially since it could be argued that generalized “restoration to reference conditions” is a “nice to have” and strategic fuel treatments are a “need to have”; I’d put my tax dollars on the latter rather than the former.

For the many ecosystems not severely degraded, historically informed strategies focus on (a) removing barriers that impede inherent ecological capacities to respond to change, and (b) assisting species and communities to transform in ways most compatible with their inherent capacities and with social goals. In regard to the first, we learn from historic retrospect that the truly novel conditions at present and increasing in the future are not so much about the magnitude or even pace of climate change, rather the overwhelming transformation modern humans have imposed on Earth. The Anthropocene era (Ruddiman, 2003) is characterized by nonanalog conditions for species survival, and the accelerated pace of extinction shows that many species have not been able to use their inherent capacities to respond to change in the face of such barriers. Functional restoration thus can emphasize, to the extent possible, removal or mitigation of impacting barriers derived from land development; fragmentation; air, land, and water pollution and contamination—carbon dioxide being among the worst offenders; land-use changes, invasive species, and many others (Millar, Stephenson, & Stephens, 2007).

Assisting ecosystems to transform in ways most compatible with their inherent capacities involves exploiting species tendencies to move geographically and to adapt genetically in the face of change. In regard to the former, if barriers to dispersal cannot effectively be removed, assisted translocation, either of species beyond their current range limits or of genotypes beyond their current provenances, might be effective. Understanding changes that are already underway will enable restorationists to ease transitions to future states, often with less extreme variability or outcomes than socially tolerable. Assisting genetic adaptation can occur in many ways informed by natural selection—such as experimenting with seed diversity in restoration mixes, taking advantage of the significant opportunities that insect-mediated mortality events can have to ratchet population adaptedness forward, and setting goals at bioregional not local scales.

Goal Setting
While much can be learned from reconstructions of historic responses to climate change, and especially from historic periods similar to what might be expected in the future (e.g., the Medieval interval or the middle Holocene), historic conditions generally, and especially those from nonanalogous historic periods (such as the Little Ice Age) make inappropriate reference conditions for the future. In such a case, target and goal setting for functional restoration must pioneer additional approaches. The return to more utilitarian goals and targets recognizes both the reality of the Anthropocene and that resource-management has, in fact, always been a human-directed and conceived endeavor. Emphasis on ecosystem services—including essential utilitarian functions such as clean air and water, landscapes for recreation, production of fiber and meat, and sustenance of biodiversity desired by humans and provided by healthy ecosystems—will guide the next generation of management strategies. Achieving these goals will be greatly benefited by historically, as well as ecologically informed management.

WildEarth Webinar: Fire and Forest Ecology in the American West

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During this WildEarth Webinar, which was recorded on June 9, 2021, our guests Dr. Chad Hanson and Dr. Monica Bond cut through years of misinformation and misdirection to make an impassioned, evidence-based argument for a new paradigm of fire and forest management.

Chad Hanson is a research ecologist and director of the John Muir Project of Earth Island Institute, located in Big Bear City, California. Dr. Hanson has a Ph.D. in ecology with a research focus on fire ecology in conifer forest ecosystems. He is the author of the 2021 book, Smokescreen: Debunking Wildfire Myths to Save Our Forests and Our Climate, and co-editor and co-author of the 2015 book, The Ecological Importance of Mixed-Severity Fires: Nature’s Phoenix.

Monica Bond, Ph.D., is a wildlife biologist and biodiversity advocate with the Wild Nature Institute and a research associate with the University of Zurich. She has published more than 45 peer-reviewed scientific journal articles and book chapters. Dr. Bond spent the past two decades studying spotted owls and served on the Dry Forest Landscapes Working Group for the Northern Spotted Owl Recovery Plan. She travels around the world researching and advocating for the conservation of imperiled wildlife and habitats.

PERC’s “Fix America’s Forests” Litigation Ideas: What Do You Think?

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We’ve been having an interesting discussion about a specific organization, PERC, with my contention being that one should examine ideas on their own merits regardless of source, and Anonymous arguing something different, as usual, quite articulately, in their own words (I don’t know how Anonymous identifies gender-wise) here . As usual, I thought that diving down to specifics might help clarify our points of view. So I turned to a specific instance in which I think PERC’s ideas are worth examining. In this case, it’s about the challenge of maintaining the rights of organizations to litigate, while also tightening up processes so that lawsuits move forward more expeditiously (I think 15 years was mentioned).

So here’s a link to PERC’s Fix America’s Forests report. We can certainly discuss any other parts of the report as well. But litigation is well-trod territory on TSW and I hadn’t heard these ideas before, so let’s start there.

3. Make litigation less disruptive by requiring lawsuits to be filed quickly and clarifying how fire risks and forest health should affect injunction decisions.

While litigation can be a source of frustration for Forest Service personnel, the added expenses, delays, and uncertainty may be even more disruptive for private partners putting their own time and money on the line for forest restoration. To an investor in a Forest Resilience Bond, for instance, the possibility that a project could get bogged down like the Bozeman Municipal Watershed Project risks stranding funds for a project that may never go forward or, even if it does, would have an unpredictable timeline for generating a return. Congress could help the Forest Service and partners avoid these downsides, without sacrificing the benefits of environmental litigation, through reforms that provide greater transparency and predictability to those participating in forest restoration.

First, Congress can require lawsuits challenging forest restoration projects to be filed soon after a project is approved. Currently, lawsuits can be filed up to six years after project approval. A shorter deadline would let the Forest Service, private partners, and investors know early on whether a project will likely be tied up in litigation, enabling them to better allocate their resources and, perhaps, walk away from the project. While this could provide early confidence to those funding or performing forest restoration, it would not significantly frustrate the ability to bring worthy cases. Many challenges are already filed soon after a project’s approval. And some state analogs to NEPA require lawsuits to be filed quickly, without unduly restricting litigation. California’s Environmental Quality Act, for instance, requires many challenges to be filed within 30 days.

A shorter statute of limitations could have the added benefit of spurring greater collaboration by encouraging a project’s critics to develop detailed objections early rather than flyspecking an agency decision after the fact. During the 4FRI NEPA analysis, for instance, the Forest Service was able to avoid substantial litigation by requiring objectors to articulate their concerns in advance and meet with the agency to discuss them. This allowed the agency to modify the project to address those concerns or prepare a sufficiently detailed explanation of why it declined to do so, increasing the likelihood that the decision would be upheld by courts and reducing the incentive to litigate.

Congress could also make litigation less disruptive by reforming injunctions. Currently, courts can enjoin projects pending the outcome of litigation and, if the challenge is successful, permanently enjoin them until the agency cures the error. This can give litigants a substantial amount of leverage while a lawsuit is going forward, even if the lawsuit is ultimately unsuccessful, because people may be wary of investing in a project when they cannot be certain how long a case will take or what the outcome will be. To provide greater predictability, Congress could expedite cases concerning forest restoration projects by limiting how long preliminary injunctions can remain in place before a court ultimately decides a case.

Ordinarily, when a court determines that an agency has improperly approved some action the proper course is to “vacate” that approval until the agency cures the error. However, Congress can override this rule. Given the substantial risks of doing nothing in areas that are already at high or very high risk of fire and that border populated areas, Congress could impose a heavier burden to justify blocking a forest restoration project in these areas, such as limiting injunctions to cases where moving forward would be objectively unreasonable.

To my mind, these might not work, but couldn’t hurt much either, and might be worth trying. I’m not sure exactly how a shorter statute of limitations would help with flyspecking, though, it seems like the process would be done and flyspecking would just be quicker. What do you think? Are these bad ideas? Are they far-right ideas? Are the ideas contaminated by their association with PERC?