Budd Falen: Standing Up for Rural Constituents

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Salon

Karen Budd Falen was the Deputy Solicitor for Parks and Wildlife in the Department of Interior for three years, and she left with the rest of the Trump administration, capping off a notable career in opposing public lands.  She appears to come by that view honestly, being raised on a Wyoming ranch and representing ranchers as an attorney (including the Bundys).  She reflects in this short piece on her legacy of changing the Endangered Species Act regulations and National Environmental a Policy Act regulations to promote more “local control” (as well as with the Land and Water Conservation Fund).

I take issue with her arguments in both cases that the laws the regulations implement (ESA and NEPA) were intended to allow social and economic considerations to play the role she has provided for them.  These statutes are both clearly aimed at the “natural environment,” and not local “custom and culture.”  Remarkably, she appears to admit that, “the listing of a species should be based only on science,” but then she has made it harder to do that with various changes in the ESA implementing regulations (which go beyond those she describes here in relation to critical habitat).

My fundamental disagreement with her and those she represents concerns this statement (and I suspect it may be a reason for differing opinions on this blog):

In my view, local elected officials should have more sway on issues directly affecting them than someone from midtown New York who has never faced the realities of making a living from the land.

The major gloss-over here is that endangered wildlife and federal lands don’t belong more to local people and their elected officials.  Her view that local interests should have more influence is not supported by either of these laws, and it is not the view held by most of the people that these resources do belong to.  Should the Biden administration not reverse these regulations, courts will have another opportunity to slap down the misinformation from her, and organizations she has worked for like the Mountain States Legal Foundation, that has led to ideas like “county supremacy” limiting how national forests are managed.

(Here is a little background from just before Trump decided she could not get confirmed as BLM Director.)

FOIA in the Supreme Court

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The U. S. Supreme Court has issued its decision in United States Fish and Wildlife Service. v. Sierra Club (March 4, 2021), the Freedom of Information Act case we have discussed previously.  The EPA changed its proposal for cooling water intake structures at power plants after receiving a draft biological opinion from the consulting agencies that found the proposal would jeopardize listed species.  In a 7-2 decision, the Court reversed the lower court decisions and held that a draft biological opinion on the effects of the original proposal, which was shared informally between the EPA and the consulting agencies, was exempt from disclosure under FOIA as a predecisional and deliberative document.  Specifically, “the determinative fact is not their level of polish—it is that the decisionmakers at the Services neither approved the drafts nor sent them to the EPA.”  This shows that the consulting agencies did not “treat them as final,” which is consistent with the context of the consultation regulations.

The ESA consultation process makes this case more confusing than it needs to be.  Normally, drafts circulated among members of a government team would qualify as deliberative, but here the team is comprised of multiple agencies following prescribed interagency consultation procedures.  A “draft” biological opinion is specifically identified by consultation regulations, and it must be provided by the consulting agencies if requested by the action agency.  In this case, the draft was provided by consulting agency staff without official signatures.  Without those signatures, it was not the final position of the consulting agencies, even though it had the effect of EPA changing its proposal.  With those signatures, apparently a draft biological opinion would have been “final” for the purpose of FOIA, and should have been disclosed.  (This may or may not have been the result of good lawyering, but it would be good lawyering to so advise in the future.)

The Court doesn’t dig into the other aspects of this FOIA exemption, one of which is that factual material is not deliberative and must be released, or therefore the question I raised about the need to disclose the science on which the deliberations were based. Apparently, that would happen here on a remand to determine what is “segregable” non-exempt material.  I wonder whether the scientific conclusions about the effects of the original EPA proposal are also considered deliberative because they were not yet “officially approved.”

A more typical case, which does address this question, is this new one from the D. C. District Court involving Florida Key deer and its Species Status Assessment (Sierra Club v. United States Fish and Wildlife Service, Feb. 26. 2021).

On its face, a factual scientific report, produced “independently from any” regulatory or policy decisions, see FWS Letter Describing SSA, does not qualify as deliberative…  Nothing in this description indicates that the report contains “advisory opinions, recommendations[, or] deliberations” regarding the agency process at issue.

Yet, while the privilege does not generally extend to mere factual recitations, (citation omitted) “the D.C. Circuit has cautioned against overuse of the factual/deliberative distinction.”  Such hesitation stems from the recognition that the drafter’s selection of facts can itself reveal the decisionmaking process.

This case also addresses the need for agencies to demonstrate harm to their deliberative process that would result from disclosing these records, which the Supreme Court does not address in the EPA case.  Public response to the case, including suggestions for congressional action, is discussed here.  (This article includes a picture of the the power plant at issue.)

Triple Bottom Line Analysis Of Fuel Treatments

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A look at fuels treatments in the Greater Santa Fe Fireshed, by Earth Economics.

This conservative analysis found that the proposed fuel treatments are estimated to generate between $1.44–$1.67 in benefits for every dollar invested in treatment. The majority of these benefits directly accrue to the Santa Fe community, through avoided air quality impacts, recreational losses, damages to structures, and source water impacts. The remaining benefits accrue to public agencies at the state and national level or to the global community (in the case of avoided carbon emissions).

The authors examination of avoided costs is interesting. For example:

$5 million – $14 million in avoided fire suppression costs
$2 million – $4 million in avoided fire restoration costs
$5.1 million – $11.4 million in voided economic losses of recreation

Also:

Carbon stocks are reduced through treatment, however a reduction in carbon losses due to wildfire is projected to generate a net reduction in carbon losses over the long term. For this analysis, we used the carbon model developed by Krofcheck, et al. This carbon model used a 50-year analysis period, rather than the 10-year study period used in this study. This decision was intentional, because using a 10-year study period would likely produce a negative value owing to the near term biomass reductions through thinning and prescribed burning. A 50-year time period is more appropriate for analysis, because it demonstrates the long-term goal of carbon storage. Krofcheck, et al. found that treatments would result in a net carbon emissions reduction of 150,000–330,000 metric tons of carbon. This reduction is valued using EPA’s social cost of carbon ($42 per ton).

A Round-up of Interesting Things- And Spring Break

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One of the graphs in the

I’m heading out for Spring Break tomorrow for a week. I’ll be checking email if something comes up.

I thought I’d share a sample of interesting stories that I’ve come across that don’t lend themselves necessarily to discussion, but seem interesting.

Fifty Years of Wildland Fire Science in Canada.

Fifty Years of Fire Science in Canada. Shout out to Bill Gabbert of Wildland Fire Today fpr this link and highlighting some of the findings.

A group of nine land managers and researchers in Canada have put together a compendium highlighting the country’s accomplishments in wildland fire science over the last 50 years. Information in the 296 pages plus more than 300 references covers five key developments and contributions:

The creation of the Canadian Forest Fire Danger Rating System;
The relationships between wildland fire and weather, climate, and climate change;
Fire ecology;
Operational decision support; and,
Wildland fire management.
There is also a case study about the evolution of wildland fire management in Banff National Park.

Wildife

Ferrets Cloned

Interesting things about BFF’s.. population was down to less than 18 apparently. Remember when folks thought less than 30 would cause extinction? Apparently (some) mammals do OK with surprisingly little genetic diversity, which is good news for those who work with endangered mammal species.
Pronghorns, deer and fences
https://www.wyofile.com/new-study-reframes-fence-impacts-on-deer-pronghorn/

Social Science Around Prescribed Fire

Katie McGrath Novak’s work is here. She may do a Smoke Wire post on her thesis which looked at what happens to attitudes after a prescribed fire escapes.

What Can 501c3’s Do?

The Nature Conservancy sent me an email that sounded like asking folks to lobby Congress. I wondered where the line was in terms of tax-exempt status for 501c3’s. Colleagues at TNC (thank you!) sent me the link to this document which shows what they can and can’t do. Holy Smoke! It only took me a couple of pages to learn that I wasn’t as curious as I had thought. Maybe others would like to know about this. I’m assuming staff of 501c3’s already know this.

That’s it for now! See you all in a week.

NFS Litigation Weekly March 5, 2021

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The Forest Service summaries are here:  Litigation Weekly March 5, 2021_email

Links are provided for each case below.  (There are some signs of a new administration.)

COURT DECISIONS

Apache Stronghold v. United States (D. Arizona.) – On February 12, 2021, the district court denied the Plaintiff’s motion for temporary restraining order and preliminary injunction regarding the conveyance of Oak Flat Parcel on the Tonto National Forest to developers of the Resolution Copper Mine because plaintiffs could not show immediate and irreparable injury based on their claims based on violations of the First Amendment Right to Free Exercise of Religion, Right to Petition and Remedy, Fifth Amendment Right to Due Process, and statutory rights guaranteed by the Religious Freedom Restoration Act.

Blogger’s update:  On March 1, 2021, USDA directed the Forest Service to withdraw the Notice of Availability and rescind the FEIS and draft ROD.

Western Watersheds Project v. Bernhardt (D. Idaho) – On February 11, 2021, the district court vacated the BLM’s decision to cancel its previously proposed mineral withdrawal of 10 million acres of federal lands located in Idaho, Montana, Nevada, Oregon, Utah, and Wyoming, which had previously been identified as Sagebrush Focal Area essential for the long-term health of sage-grouse.  The court found that the BLM failed to provide a reasoned explanation for reversing its prior position that the mineral withdrawal was needed, including failing to address the fact that the U. S. Fish and Wildlife Service had relied on that designation in its decision to not list the species under the Endangered Species Act.  The court also held that the decision to cancel the withdrawal did not trigger NEPA requirements.

Cascade Forest Conservancy v. Hepler ((D. Or.) – On February 15, 2021, the district court issued a preliminary injunction against the Goat Mountain Hardrock Mineral Prospecting Permits on the Gifford Pinchot National Forest based on two NEPA claims, while upholding three other claims and ordering further briefing on whether an EIS is required instead of an EA.  It also found no violations of the Land and Water Conservation Fund Act (which was the source of funding used to purchase the parcels at issue).

Friends of the Clearwater v. Higgins (9th Cir.) – On February 23, 2021, the circuit court affirmed the District Court of Idaho’s decision denying plaintiffs’ motion for a preliminary injunction in their challenge to the Brebner Flats timber harvest and road construction project on the Idaho Panhandle National Forest regarding its effects on grizzly bears and elk.

Organized Village of Kake v. Shea (D. Alaska) – On February 25, 2021, the district court granted the government’s motion to stay the case for 120 days or until the Department of Agriculture takes action regarding the Alaska Roadless Rule, whichever occurs first.  This involves the 2020 Exception that exempts the Tongass National Forest from the Roadless Area Conservation Rule, discussed previously here.

NEW CASE

Friends of the Columbia Gorge, Inc. v. USFS (D. Oregon) – On February 12, 2021, the plaintiff filed a complaint alleging that a 65-acre logging project on private forestland violates federal protections for the Columbia River Gorge National Scenic Area.

NOTICE OF INTENT

On February 22, 2021, Friends of the Clearwater sent a 60 day Notice of Intent to sue regarding the approval of the “End of the World” Project on the Nez Perce National Forest, alleging that the Forest Service violated ESA by failing to consult on the effects of the logging and road-building project on grizzly bears.

 

BLOGGER’S BONUS

Here’s a few other court-related activities that were going on around the same time.

  • Science

Environmental Defense Fund v. EPA (D. Montana.) – On January 27, 2021, the federal district court for Montana held that the Environmental Protection Agency failed to justify its decision to make the Strengthening Transparency in Science Rule (sometimes called the “secret science rule”) take effect right after its publication in the Federal Register, instead of after 30 days, as is typical.  The regulation would limit the EPA’s ability to write regulations that are unpinned by scientific research that can’t be reproduced or is based on underlying data that isn’t public.  As suggested in this article, the Biden Administration has decided to reconsider the regulation.

While that regulation pertains to medical data, in a coincidence (but not an unrelated story), on the same day, the Biden Administration issued a memorandum to all federal agencies, the “Memorandum on Restoring Trust in Government Through Scientific Integrity and Evidence-Based Policymaking.”  It requires federal agencies to, “conduct a thorough review of the effectiveness of agency scientific-integrity policies,” seeking to eliminate, “(i)mproper political interference in the work of Federal scientists or other scientists who support the work of the Federal Government and in the communication of scientific facts …”

(New case.)  A Nevada rancher and a coalition of conservation groups have filed separate lawsuits against the BLM’s January 15th decision to allow the Thacker Pass lithium mine in northern Nevada.  It could affect groundwater, sage-grouse and the federally listed Lahontan cutthroat trout, and Notices of Intent to Sue under ESA have also been filed.  (The article contains links to both complaints.)

(New case.)  A decision by the Ochoco National Forest to conduct a sanitation harvest of grand fir and Douglas-fir trees on 35 acres and tree thinning on 143 acres to manage root rot around Walton Lake, a popular recreation site, is being challenged again in federal district court.

Take Cover: Even a post-fire specialist needs a break from the burn for part of its life cycle: from BirdPop!

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A mix of low-severity and high-severity burn provides covered places for fledglings while adults forage for grubs in dead trees. Photo by Jean Hall.

Scientific information is conditional on the approach to the study (framing), discipline(s)involved, methodology used, and the specifics of time and place. The more information expands, the more we know, even though it might feel like we are the blind person dealing with the elephant. Yet there is a balance between accepting the conclusions and understanding that for most topics, what you know is a a function of the step you’re on and not the final story. And as the climate (and people and whatever) changes, there may never be a “final story.” Just note the ubiquity of the expression in scientific papers “previous studies concluded x, but we have found y.”

Here’s one example of Stillman et al.’s work from Bird Pop!. There a link to the paper on the blog site.

But the simple assumption that more fire always equals good news for a post-fire specialist wasn’t holding up. Stillman’s earlier work, in collaboration with IBP, his PhD advisor UCLA Professor Morgan Tingley, and the US Forest Service, showed that Black-backed Woodpeckers prefer to nest near the edge of severely burned patches. Now fledgling woodpeckers, hatched in nests within burned forests, were moving out of the burn and into adjacent forest that burned at low severity or sometimes hadn’t burned at all.

A new story began to emerge. Perhaps Black-backed Woodpeckers nest close to the edges of burned patches so that, upon fledging, their young can take cover in unburned or less severely burned patches nearby — presumably to take advantage of greater vegetation cover and avoid predation. “We started thinking of the food-rich high severity burn as a grocery store and the high-cover low severity burn as a nursery,” says Stillman. “If you’re going to build a home, you want to place it close to both the food source and the nursery!” But if this was indeed what was going on, you’d expect survival of juvenile woodpeckers to be higher in the less severely burned areas with more live vegetation.

To test this prediction, Stillman and collaborators tracked the habitat use and survival of 84 fledgling Black-backed Woodpeckers from 39 nests in seven different recently burned areas in the Sierra Nevada and Cascade Mountains of Washington and California. Tracking during the first 35 days was done the hard way — hiking many rugged miles with handheld receivers. As the juveniles got older and dispersed, tracking was done by driving and with the generous help of the skilled volunteer pilots of LightHawk Conservation Flying. “We expected survival to be lower in the high-severity patches compared to low-severity patches — and that’s what we show in this paper. However, it was surprising to us just how much of a difference it made,” says Stillman. “If you’re a fledgling Black-backed Woodpecker, you have a 53% chance of surviving 35 days if you spend your time in low-severity burned patches — about average for a baby bird. But if you instead choose to spend all your time in the high-severity burn (which is good habitat for adults), your chance of surviving 35 days plummets to just 13%.” Most fledgling deaths were due to predation.

Another surprise: the identity of the predators. Most juvenile Black-backed Woodpecker deaths could be attributed to birds of prey including Cooper’s Hawks, Northern Goshawks, Red-tailed Hawks, and even a Western Screech-owl. Apparently if you are a bird of prey, fledgling woodpeckers in open stands of burned snags are the easy-to-grab, juicy hamburgers.

Previous research has shown that increased pyrodiversity yields more diverse habitat types across the landscape, which in turn increases diversity in the bird community. But this study and Stillman’s other dissertation research shows that pyrodiversity can be a good thing even for a single species. This is an example of habitat complementation: when a species has different habitat requirements for different parts of its life history. Forest managers can support and enhance pyrodiversity through management practices before fire, and by protecting pyrodiverse areas after fire.

“Coastalism” in Oregon and the 21-inch Rule

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Map of the study area and photograph of a representative mixed‐conifer forest within one of the stands where simulated thinning occurred (the Elk 16 planning area on the Malheur National Forest). Fig. 1 in Johnston, et al. 2021
I’m not a fan of abstractions in general, so I hesitate to introduce a new one into the lexicon. But if folks are going to use them, then I guess each person should be able to select and define our own. I will define “coastalism” as the tendency (conscious or unconscious) to see problems and solutions through the eye of a person living in a coastal environment. In the case of the US, that would be the East and West coasts. This is often coupled with a tendency to focus on scientific findings from coastal universities; policy recommendations of NGO’s with coastal boards and coastal headquarters, media from… coasts.. and so on. And often the people and organizations have not visited nor lived among non-Coastal peoples, except as tourists.

Coasts tend to have wetter forests and ideas like “leaving forests alone is the best thing for them” tend to have more of a grip there, because naturally (generally) they would just go on and on until some non-fire disturbance happens.

The history and funding of forest science has had a coastal bias in itself. For example, at Pringle Falls Experimental Forests in the early 80’s, we (the Area 4 Central Oregon silviculture folks) had a class taught by (terrific professors!) Bruce Larsen and Chad Oliver. We studied many models of species that were light limited; there were no models of trees that were water-limited. In our area, also, we hired a full-time reforestation specialist to experiment with planting, as the information we received from Doug-fir country didn’t work for drier areas.

It made some sense at the time to have that focus, as folks on the West side did more intensive management, and there was money related to that. However, we might ask if that coastalism still fits the needs of Oregon, given the overwhelming need to deal with fuels and living with fire in the fire-prone parts of Oregon. Which actually may compose more acres in the State.

Now, I don’t intend to give folks at OSU a hard time. My own Ph.D. professor, Tom Adams, was an OSU prof. They do terrific work. But it’s legitimate to wonder if OSU were located in Baker, or John Day, or even Bend, would the science produced be different? And of course, funding sources like NSF may also have a coastal bias. Since we don’t tend to look at things with that abstraction in mind, we might not observe it.

I wonder if the East Side 21-inch rule might never have been put in place were it not for West Side ideas about old growth colonizing (the idea, that is, not the old growth trees) the East Side? It took almost 30 years for folks on the East side to do their own research and find out…er… it doesn’t work? (We have applauded this co-designed and co-produced research on TSW before). I never thought of it as an antidote to Coastalism in science before.

Anyway, here is a news story (thank you NAFSR!) on the findings of the study.

“Historical conditions were much better suited for old growth trees,” said Johnston. “Since we began to suppress fires that maintained open stands of widely spaced old trees, competition from young trees, including fairly large fir that established in the absence of fire, is killing old growth trees faster than they can be replaced.”

Diameter limits were widely adopted by Forest Service managers throughout the 1990s, Johnston said, in the face of social and legal pressure to conserve old growth habitat. Eastern Oregon’s diameter rule was supposed to be temporary as the Forest Service put together a comprehensive ecosystem management plan, but that process stalled, meaning the 21-inch rule is now 25 years past its original sunset date.

“With the Forest Service’s 21-inch rule for eastern Oregon, even stands that could be restored to their historical basal areas still had a lot more shade-tolerant trees than they did historically,” Greenler said. “But allowing the larger shade-tolerant trees to be removed helps reduce competition around old growth trees and improves their chances in the face of future stress.”

Here’s a link to the Ecosphere paper which is open-source. Thank you, Johnston et al.! And all the partners!

Impacts of Wilderness Designation on Fire Suppression? Request for Information

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Freelance photographer Joe Randall and his wife have captured some amazing photos of the Decker fire near Salida. The fire burned more than 5,000 acres as of early Friday, Oct. 4, 2019. Visit his Digital Art Co. Facebook page here. This fire was a Fire Use fire that began in Wilderness.

I’ve never seen this written about much before, but I could have missed it. A person on Wildfire Today mentioned that an area being in a Wilderness Study Area made suppression more complex. So I became curious about Wilderness designations and their potential impacts on fire suppression, especially since we have many acres proposed for Wilderness in a bill here in Colorado. I don’t know if Recommended Wilderness in Forest Plans have to follow the same rules.

So I googled and due to their always-mysterious search algorithms ended up with this specific write-up from the Pike and San Isabel National Forest (and Cimarron and Comanche National Grasslands, but I don’t think they have any Wilderness).

It seems like you can do many of the same suppression activities, but you have to weigh the need against Wilderness values, and get approvals. I’m interested in whether other Forests have similar sets of guidance, and how these operate in practice.

At one time it seemed that letting fires burn was important for “naturalness”, but if climate is making fires “unnatural” then it’s not as simple.

As this wilderness.net pieces says..

Other reasons besides public sentiment may also perpetuate fire suppression. The small size of many wilderness areas results in natural ignitions outside of wilderness being suppressed before they can burn into wilderness, for example. With increases in settlement within the wildland urban interface, the risks of fire escaping onto adjacent lands, unnaturally intense fires burning as a result of unnatural fuel loads, and unacceptable smoke impacts to surrounding areas are also very real.

A person could say “natural” is a function of a)ignition source, b) weather/climate and c) naturalness of fuel loads. If we argue that both b and c are commonly unnatural, then it’s hard to argue that a makes much of a difference.

So here are my questions..
1. People who have been managing fires, have you seen instances in which managing for Wilderness fires worked or didn’t work? Did the Wilderness rules themselves or something about their implementation make it more difficult to suppress the fire out of Wilderness?
2. Does each Forest have a different policy, or it is pretty common across all Wildernesses?
3. When an area becomes RW, does the fire suppression policy move to Wilderness rules?

Thanks, everyone!

A timber lobbyist called OPB’s investigation ‘completely bogus.’ OPB has the receipts to show it’s not

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Last August we discussed and debated this piece of investigative journalism from Oregon Public Broadcasting titled “What Happened When a Public Institute Became a De Facto Lobbying Arm of the Timber Industry.”

Today, Oregon Public Broadcasting published another piece of investigative journalism titled “A timber lobbyist called our investigation ‘completely bogus.’ We have the receipts to show it’s not.”