Outcome-Based Performance Measures Report 2020

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A few weeks ago,  I heard Chief Moore say something like “the Forest Service is considering alternative measures for fuel reduction/wildfire resilience based on outcome not outputs.” This is somewhat related to our earlier discussion about timber targets.

I remembered that RVCC (Rural Voices for Conservation Coalition) had done some work on this, and the RVCC folks were kind enough to dig two reports up for me.  So it’s worth discussing and feel free to share any other reports or thoughts in the comments.   Discussions of performance measures do not normally get the blood flowing in many people I know.  Retirees may just roll their eyes and say “Thank Gaia I don’t have to think about this anymore or sit in meetings or read stuff about it…”  Nevertheless, here goes

It looks like there were two different thoughtful efforts.  One (2020) was called “Implementing Outcome-based Performance Measures Aligned with the  Forest Service’s Shared Stewardship Strategy.”

We’ll cover the other one (2022 with many of the same notable players) in the next post. This was a joint project of U of Oregon’s Ecosystem Workforce Program and RVCC with support from the Forest Service. The below is an excerpt of part of the paper.   The whole report is worth reading, and has many other points worthy of discussion.

5. Guiding principles and recommended next steps

In this section our goal is to provide guidance to the agency for moving forward with revising performance measurements in accordance with the Shared Stewardship Strategy. Our suggestions are derived from recommendations from the literature, stakeholder feedback, and our own experiences working with the agency

5.1 Internal agency considerations to prepare for performance measure redesign
The agency must define and communicate a clear purpose and audience for new performance measures prior to moving forward. We suggest that the agency consider the following questions and recommendations before requesting input from stakeholder partners.

It would be nice if all efforts required “communicating a clear purpose and audience prior to moving forward.”

Implementing Outcome-Based Performance Measures Aligned with the Forest Service’s Shared Stewardship Strategy 13
• What decisions and changes are new performance measures intended to inform? Whose behavior will change, and at what levels of the agency, as a result of the new performance measures? Be cautious of defining too many goals for performance measures. Composite priorities, such as those that are often referenced together in Shared Stewardship (e.g., cross-boundary, geographic prioritization, partnership), may require distinctly different performance measures.

• Will new performance measures replace or complement existing measures? New performance measures will not exist in a vacuum independent of existing measures, particularly timber volume and fuels reduction acre targets. As noted in the literature review, easily measured and defined goals and associated performance measures are likely to crowd out those with more complexity.  Furthermore, if new performance measures have no connection to budgets or staff performance reviews, they are unlikely to motivate or institutionalize new bureaucratic behavior. The distinction between performance measures should be clarified internally within the agency and externally for partners prior to moving forward.

• Who are the intended audiences (e.g., WO,Congress, OMB, states, community partners) and what would be meaningful to them? A single performance measure is unlikely to meet
the needs of all possible audiences. Counts of partnership agreements, for instance, may help signal progress to Congressional audiences, but are unlikely to be particularly meaningful to local stakeholders or state implementation partners. We encourage dialogue with intended audience(s) to ensure performance measures are meaningful to those parties.

• What investments will the agency be able to make in data collection and management? Utilizing existing data may be necessary and preferable in the short term; however, new performance measures will likely require some level of new data collection. We encourage the agency to recognize that updating existing databases and creating new fields, if not whole new data systems, is likely needed to meaningfully report on partnership outcomes.

• At what scale does the agency want to implement new performance measures? The recommendations and considerations offered below apply broadly across most or all scales, but
performance measure design and implementation will look different at varying scales. For instance, the principle of inclusivity may look different if a performance measure is intended to evaluate a District or District Ranger compared to a Region or Regional Forester.

We also recommend that the agency make revised performance measures one part of a broader strategy to ensure that incentives and policies within the agency align with the intent of the Shared Stewardship Strategy. In particular, we suggest the agency convene a series of workshops for academic partners and practitioners who specialize in United States public lands forest governance and policy to consider options for broader reform efforts within the agency (e.g., reforming the National Forest Management Act, incentive structures within the agency, long-term visioning). We further recommend that the agency convene a structured meeting of national partners to further develop recommendations for implementing revised performance measures.

I’d only add that partnership-ish measures at the landscape scale should perhaps be coordinated in such a way that landscapes with intermix of BLM and FS should consider collecting the same kind of information and consider developing similar performance measures in those areas, if performance measures occur at the landscape scale. I think partners, neighbors and taxpayers would thank you.

 

TSW Exclusive: A Tale of Two SERALs- Making Landscape Scale Resilience Happen With the Stanislaus Forest and YSS

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I am reposting this because I think it’s important and perhaps people missed it because Steve also posted yesterday. The question for readers who are currently working or involved in collaborative groups is “do you think some of these ideas are worth considering in your part of the country?”

 

There are many news stories about projects in litigation, or where there are controversies.   Forest Service folks may remember the management training of “catching people doing something right.”  The SERAL (Social and Ecological Resilience Across the Landscape) efforts are successful at getting large-landscape treatments done. Are there ways that other Forests and communities can learn from these efforts?

This story deserves much greater play in larger media IMHO. I’m thinking a NY Times, WaPo, or NPR-style set of emotion-inducing interviews, drone overflights, and all that.  I’ll be sending this to journalists with that wish.   It would also be an interesting case study for social scientists interested in trust building and collaboration.

From this January

“SONORA, Calif. (January 11, 2024) – In an incredible show of faith and recognition for work already accomplished, the Stanislaus National Forest recently received its annual budget for work on the Stanislaus Wildfire Crisis Strategy Landscape of $57.6 million.

“This funding level is a clear indicator that we are on the right path with our work and should continue at full speed,” said Stanislaus National Forest Supervisor, Jason Kuiken. “Not only is that apparent as people drive up Highway 108 and see with their own eyes the work, but it’s an acknowledgement all the way from Washington, D.C. that this work should continue.”

Part of the Forest Services’ Wildfire Crisis Strategy, the Stanislaus National Forest is currently into year three of a ten-year, 305,000 acres project to reduce fuel loads on the forest through a variety of methods to include mechanical thinning and the application of prescribed fire.”

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First of all, the Forest has an very helpful website on this project,  well worth checking out. It includes a story map that tells the story with photos and videos.

Background:  The first decision is Seral 1.0, which called for work on 55,000 acres; currently the Forest is taking public comment on Seral 2.0, which covers another 100,000 acres. The area is part of the one of the priority landscapes for the Wildfire Crisis Strategy (think $).  The priority landscape itself encompasses more than 300K acres and the non-SERAL parts include Wilderness and other decisions and collaboratives (see map above).

So let’s look at some of the ways that this success became possible.

1. Yosemite Stanislaus Solutions Collaborative Group

In an interview, the first thing that Supervisor Kuiken pointed to was the efforts of a collaborative group called Yosemite Stanislaus Solutions.  You can learn about them here on their website.  It includes everyone from Audubon and the Sierra Club (local chapters) to Sierra Pacific, Dirt Riders, Tribal folks and so on.  You can check the partners out here.

From the YSS webpage:

“After decades of adversarial “wrangling” over forest management policy, 25 local industry, environmental, and recreational groups decided it was time to focus on what we could agree on,” said Mike Albrecht, president, Associated California Loggers.

“When we sat down together, we found out we agreed on a lot, and so Yosemite Stanislaus Solutions (YSS) was born. YSS agreed to salvage logs the Rim Fire, get it reforested, develop a fuel break network to protect our local communities, and restore meadows, streams, and wetlands to better health,” Albrecht said. “This agreement has gotten us national attention and subsequent funding to undertake large “landscape level” forest management projects. This would not have been accomplished without the close 3-way partnership between Tuolumne County, YSS, and the U.S. Forest Service. Kudos to everyone that has worked so hard to make this happen!”

2. The Rim Fire Galvanized the Community

The Rim Fire burned 402 square miles (260K-ish acres) with a “wide range of intensity and impacts.” These photos show that, at least in some areas, much restoration work for watershed, and to restore tree cover will be needed.  The experience of this fire showed the need for work at the landscape scale. It was the third largest wildfire in the State at the time.

“John Buckley, executive director of the Central Sierra Environmental Resource Center in Twain Harte, is also active with Yosemite Stanislaus Solutions. An immediate lesson learned was that doing scattered piecemeal fuel reduction projects, timber sales, mastication of brush, and isolated prescribed burns simply wasn’t going to be enough to prevent more Rim Fire type catastrophes. “That led the YSS forest stakeholder group to come together stronger than ever before to work to get tens of millions of dollars in grants to supplement the work that the Forest Service was already planning to accomplish,” Buckley said.”

3. At First Collaborators Worked Together on Reforestation

Perhaps getting to the “topics with more disagreement” was helped by relationships forged during the work on “topics with agreement.” Also, jointly doing work instead of just talking about how the FS should do it, perhaps caused a greater sympathy for difficulties and trust in Forest Service actions.

4. Getting Work Done Through Partners

Various master agreements, including with the County, enabled finances to be transferred and work to be done without federal hiring or FARs difficulties.  Counties and others can hire locally, so that issues like housing affordability may be less pressing.

5. Consistency of Forest Service Personnel and Alignment

Partners are always asking for this.  While personnel have indeed changed, the commitment to the process has not.  There have been three Forest Supervisors involved during and since the Rim Fire. How did the Forest Service pull this off? Personalities, policy or processes or all of the above?

6. They Were Able to Work Together on Traditionally Tougher Issues.

Example: fire salvage. As TSW readers know, salvage can be controversial, even in the Sierra Nevada.

“Because all the YSS stakeholder interests supported the compromise salvage logging plan, it managed to gain Forest Service approval and got implemented without any legal delays that would have meant a lot of the wood could have rotted,” Buckley said. “By working for consensus middle ground on the issue of salvage logging and then the following debate over how to do national forest reforestation, YSS set a national example — showing the benefits of diverse stakeholders working together in a spirit of compromise and cooperation.”

7. Role of Models and Scientists

Because this work was at the landscape scale, it required thinking beyond the stand level, including the development of PODs. This includes practitioner knowledge, and newer technologies (e.g., Lidar) and models were used; including workshops for the collaborative group with scientists.   Supervisor Kuiken would advise anyone “these new technologies and models can be very helpful and save a great deal of time.”

Probably a heavy direct involvement by scientists also helps collaborators learn together and operate from the same knowledge base.

8. NEPA Opportunities and Choices.

They did an EIS for Seral 1 and will do one for Seral 2. You can read the notice of intent on the Federal Register here.  I get the feeling that the way that the decisions are structured such that analyzed activities may occur over time with no new decisions required.  So big EIS, but considers many kinds of treatments over a large area over a long time period. For example, ongoing maintenance of fuelbreaks is included in the decision. If stands die due to bark beetle, that is also incorporated.

They are using some emergency authorities, specifically “only the proposed action and a no-action alternative” and “no pre-decisional administrative review process.” In the case of Seral 2.0, potentially more controversial decisions will be covered in separate RODs based off the EIS.

They have used new technologies, like Lidar, to help with the analysis.

Inquiring NEPA minds might want to know  “does this decision incorporate “condition-based management””?

Katie Wilkinson, the Forest Environmental Coordinator, addressed this in an email.

“The SERAL projects only have aspects of condition-based management – salvage, rapid response to newly discovered non-native weed infestations, hazard tree mitigation (only in SERAL 1.0).

The large majority of the SERAL projects proposed or authorized actions however, would not be considered condition-based management.  The SERAL decisions authorized site-specific vegetation management actions (other than those listed above) and the SERAL 2.0 decision will do the same. Modifications do occur from planned units to implementation units, regularly, based on a variety of factors or updated survey information considered and obtained internally.

None of the SERAL implementation will go through additional public review or comment periods.  The SERAL analysis document includes the site-specificity necessary to provide meaningful feedback and public comments and for the decision maker to make an informed decision.  That doesn’t diminish the amount of work left for the implementation team to complete after the decision and prior to implementation. “

9. Lack of Litigation. We’ve all seen collaborative groups work together well, with the decision then followed by litigation. This was not the case for Seral 1.0. We can’t FOIA internal documents of potential litigants to understand why they did not file.  Certainly litigation does occur with similar kinds of projects in the Sierra Nevada.   When asked why  Supervisor Kuiken replied in an email: collaboration on developing the proposed action (and associated response to the public concerns) and second that the IDT made a DEIS/FEIS that was both thorough and readable/understandable.

I’m thinking that it may also have something to do with the choices made by potential litigators, and the political horsepower behind the project.  Certainly a previous effort (salvage) was litigated, as we covered earlier on TSW.  I’ll try to find out more about this.

Summary

The SERAL efforts have been successful.Let’s look more deeply and share this information.

TSW readers: what aspects of this effort do you think are replicable where you work? Why or why not? Ideas for reporters to send this to.. either in comments or contact me directly.

Reporters: What might be interesting angles..

*What makes people who usually disagree come together? Interview various members of YSS.  Link to election year and reducing polarization? Something like this NY Times story about Blue Mountain Forest Partners.

*When Litigants Stay Home and Why: Interview folks who litigated on the Rim Fire and not on SERAL 1.0, and ask them about their rationale.

*Climate change and carbon:given the many op-eds that simply claim “leaving mature and old growth trees alone is best for carbon” how does the Forest and YSS think about carbon. Interview some scientists involved (and those who disagree).

*Old -growth.. how will old growth be delineated and protected in Seral 2.0?

*Digging into how they used new technologies in their work, and new ideas like PODs.

 

PNW Forest Plan Revision Update and LSR Trends

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The USFS press release today: “The initial comment period for the USDA Forest Service’s Northwest Forest Plan concluded Feb. 2. The Forest Service had been accepting comments on a Notice of Intent that the Agency will prepare an Environmental Impact Statement to evaluate the effects of proposed amendments to the Northwest Forest Plan.” Info here.

There’s an interesting Powerpoint presentation here, “Information Winter Webinar, January 2024.” Lots of stats and trends. This slide, for example, on LSR trends. Steady until recent wildfires.

This is compelling evidence that simply setting aside older forests with little or no active management is a losing proposition.

 

New Lawsuit on Timber Targets by SELC: Is More NEPA the Answer?

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In this post, I’ll focus on the lawsuit itself. In the next post, we can talk about the more generic question of “are timber targets of utility, should they be replaced, and if so, by what?” The press release by SELC raised many questions, and hopefully others will know the answers.

A new lawsuit alleges the U.S. Forest Service’s practice of setting ‘timber targets’ puts the climate at risk, undermines the Biden administration’s important climate goals, and violates federal law.

Back in 2018, we had a post on TSW about timber targets and how they’re set. Mac McConnell described the process in this comment. Maybe someone else could flesh Mac’s comment out more, or write a post on it?

The case centers around the Forest Service’s failure to properly study the massive environmental and climate impacts of its timber targets and the logging projects it designs to fulfill them. Each year, the Forest Service and Department of Agriculture set timber targets, which the Forest Service is required to meet through logging on public lands. In recent years, the national target has been set as high as 4 billion board feet – or enough lumber to circle the globe more than 30 times. The already high target is expected to increase in the coming years.

I’m not sure why that would be. Perhaps more fuel treatments projected due to the 10-year action plan? But those are not really “about” timber.

Forests on public lands provide a key climate solution by capturing and storing billions of tons of carbon. But rising timber targets push the agency to clearcut forests and log carbon-dense mature and old-growth forests. Logging these forests releases most of their carbon back to the atmosphere, worsening the climate crisis and undermining the Biden administration’s important efforts to protect old growth and fight climate change.

I’ve got two problems with this.. first, the targets don’t seem to be rising,  and second, the only clearcuts I’ve seen recently have been in MPB-susceptible old lodgepole.  And I guess the carbon question there is… the trees are gonna die, is it better to turn them into longer-lived wood products, or what.. burn them? Leave them to decay slowly until burned?  This is one of those cases in which specifics, and specific alternatives to the maligned practice, would be helpful. It’s almost as if these  MOG-ish carbon assumptions assume.. wildfire is not a thing.  At the same time, we are told that wildfires are getting worse due to climate change (Sierra Club- catastrophic), and our insurance premiums need to be adjusted to reflect that. Also the puzzling idea that carbon offsets are bad because trees will die; leaving them alone for carbon is good because… trees won’t die? To be fair, these are not SELC positions as far as I know.  At the same time, the idea that trees will not die or get burned up does seem to be part of this press release.

Internal Forest Service documents show that achieving timber targets is the agency’s “#1 priority.” According to agency staff, the need to meet timber targets impacts the Forest Service’s ability to provide “basic customer service for health and safety,” “keep trails opened and maintained,” and “respond to needs resulting from catastrophic events…in a timely manner.” In some instances, agency staff have used money meant for wildlife habitat improvement to fund projects designed to achieve timber targets, even if those projects had “no benefit to wildlife.”

“The requirement to meet timber targets results in adverse impacts on water quality, recreation, and imperiled wildlife, while distracting the Forest Service from more pressing tasks that don’t produce high timber volumes like preventing wildfires, saving trees from invasive pests, and controlling invasive plant species. If the agency is going to prioritize timber targets above the other benefits of National Forests, it needs to forthrightly disclose the consequences of that decision, particularly on our climate,” said Josh Kelly, Public Lands Biologist at MountainTrue.

Perhaps Sam Evans can help here, but when I signed on to the link, there were many files, so I couldn’t find the one that said that meeting timber targets was the agency’s #1 priority.  And I’m fairly dubious about that claim, since fire suppression and the 10-year wildfire action plan, and remember this about Fire consuming the FS budget..  Also, if we take Chief Moore’s word for it last year, he said:

The FY24 budget request focuses on three primary areas that impact the Forest Service: modernizing the wildland fire management system, combating climate change and confronting the wildfire crisis, and ensuring equitable access to the benefits of the National Forest System.

I remember a quote along the lines of  “to find the real policy, don’t listen to what they say, look at the budget.” Maybe someone remembers the real quote on that, and who said it originally? But back to SELC:

The Forest Service’s refusal to take a hard look at the direct, indirect, and cumulative effects of its timber target decisions is a violation of the National Environmental Policy Act, our nation’s bedrock environmental law.

It almost sounds to me like a request for a national programmatic on the timber program as a whole.  Which is interesting, but could be asked of any program (recreation impacts on climate from people driving to national forests?); or how about a national programmatic on fire suppression or prescribed fire?  Then we could have litigation on (1) the programmatic, (2) the forest plan and (3) any timber project – all at the same time. I’m not sure who this benefits. I don’t think it’s taxpayers.

Also, I’m not sure that courts are the right places to have these discussions.  For example, we could FOIA discussions of the timber program at the Forest Service or USDA, but not settlement agreements, nor the discussions that arrived at them. I’m interested in transparency and accountability; and the need to build trust in our government institutions.  As a result, I consider  non-transparency to the public as suboptimal.  Also, I would say to SELC, we could ask questions of them equivalent to their points about the Forest Service “have you considered that lawsuits like this and the 15-acre one might equally distract your organization from more pressing tasks and environmental concerns, especially with regard to climate?

The Next Big Grift?: Doomberg on NACs

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I asked the folks on Doomberg to take a look at NACs from a financial perspective. As a non-financial person, I’ve written about them here, here, and here.

Doomberg’s piece on Substack is called “Measurement Army: Natural Asset Companies (NACs): the next big grift?

We begin with some important definitions culled from a 56-page exhibit filed with the SEC as part of the petitioning process, and from the United Nations System of Environmental Accounting (SEEA):

A “Natural Asset” is “[a] statistical representation of ecosystems for accounting purposes that defines them as productive units of ecosystem services” that can be “monetized directly or indirectly.”

“Ecosystem Services” refer to the benefits that people obtain from ecosystems and are categorized broadly into provisioning, regulating, cultural, and supporting services.

“Ecological Performance Rights” are “[t]he rights to the value of natural assets and the production of ecosystem services in a designated area, including the authority to manage the area. These rights are granted to a NAC, from a natural asset owner, as provided through a license or other legal instrument.”

Finally, an “Ecological Performance Report” is “[a] report with statistical information on the ecological performance of a NAC, including sections with data on (i) Natural Production, (ii) Natural Assets, and (iii) Underlying Asset Condition. This Report is unique to NACs and will be provided in addition to traditional financial statements.”

Let’s see if we get this right: NACs hold claim to the Ecological Performance Rights over the Ecosystem Services delivered by the NAC’s licensed Natural Assets. Think of all the measuring needed to make that construct work.

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I guess this could be more abstract, but it’s already beyond my imagination.   A thing is not a thing, but a “statistical representation” of a thing.  I didn’t even know that there was a United Nations System of Environmental Accounting.

The authors of the SEC filing go on to claim an astonishing measurement of their own: natural assets are valued at approximately $5 quadrillion. Listing NACs on public stock exchanges “can convert the long-understood – but to-date unpriced – value of nature into equity capital which can generate the financial capital needed to manage, protect, and restore healthy ecosystems over the long term.”

Doomberg, like me, takes a dim view of the many potential transactional hogs at the trough..

Imagine the wealth creation opportunities for the cadre of sponsors, advisors, brokers, and attorneys when passive fund managers are mandated to allocate to NACs, options markets are developed for them, and retail traders give them the Nvidia treatment.

I don’t know what the Nvidia treatment is..

And then there are the measurers! All players involved in the new world of NACs – including governments, banks, law firms, and the NACs themselves – will need an army of them. Given the bulging numbers of the administrative class, this is one modern army sure to exceed its recruitment needs.

If you’re not familiar with ideas about the administrative class, you might take a look at this piece by N.S. Lyons, in which he describes what N.S. describes as the “managerial ideology.”

7. Abstraction and Dematerialization: The belief, or more often the instinct, that abstract and virtual things are better than physical things, because the less tied to the messy physical world humans and their activities are, the more liberated and capable of pure intellectual rationality and uninhibited morality they will become. Practically, dematerialization, such as through digitalization or financialization, is a potent solvent that can help burn away the repressive barriers created by attachments to the particularities of place and people, replacing them with the fluidity and universality of the cosmopolitan. Dematerialization makes property more easily tradable, and can more effectively produce homogenization and fulfill desires at scale. Indeed in theory dematerialization could allow almost everything to take on and be managed at vastly greater, even infinite, mass and scale, holding out the hope of total efficiency: a state of pure frictionlessness, in which change (progress) will be effortless and limitless. Finally, dematerialization also most broadly represents an ideological belief that it is the world that should conform to abstract theory, not theory that must conform to the world.

Burn Boss Arrest: Editorial Board of Eastern Oregon News Outlets Steps Up to Reduce the Heat

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Right after I posted Steve’s op-ed, I was sent a piece by the editorial board of the East Oregonian media group along the same lines.  That’s what peacekeeping leadership looks like.  Local journalism is more than just coverage of local issues; it’s the people involved.   They can be voices in the community who are interested in its well-being, not stoking resentments, or finding the shortest distance between the facts and a narrative such as “incipient Bundys.” People in communities need to get along over time; people in our country do, too, but, sadly, some national media seems to see their role as furthering divisions and encouraging outrage.  It’s not their fault in a way, it’s a business model that works, but we can support local journalism and journalists to the best of our ability.  Here’s a link.

 

There comes a time during a controversial situation where public officials need to step back, take a deep breath and start acting like adults.

A good case in point is the current hullabaloo around the U.S. Forest Service and Grant County regarding a 2022 prescribed fire that spread beyond its start on the Malheur National Forest onto private land owned by the Holliday family.

On Oct. 19, 2022, Grant County Sheriff Todd McKinley arrested Rick Snodgrass, a Forest Service employee, while the prescribed fire that Snodgrass was in charge of was still burning south of John Day.

On Feb. 2, 2024, a grand jury indicted Snodgrass on one count of reckless burning, a Class A misdemeanor.

The entire case should leave most readers with a slight distaste on the palate.

On the big picture level, the case is in some ways a classic local versus federal dispute, but why this incident has been drawn out for this long is a mystery.

Snodgrass was doing his job, a job delegated to him by his superiors. The arrest is believed to be the first case of a Forest Service firefighter being arrested in the course of his normal duties.

Anti-government sentiment is nothing new to Eastern Oregon. As a culture, we tend to be suspicious of the federal government and hold dear the concepts of personal land ownership and dislike interference from federal and state governments. Those sentiments are ingrained into our culture as Americans.

Yet this case in Grant County remains baffling on many levels. Local and federal officials are at loggerheads while an individual who was following orders and adhering to established protocols for prescribed fires is left holding the bag.

This incident should have been handled in a totally different way and through appropriate channels.

The prosecution of this case only serves to exacerbate already existing tensions about federal land management in Grant County and Eastern Oregon. Feeding and stoking anti-government feelings may be convenient for some but hardly qualifies as problem-solving.

Instead it looks absurd. Worse, the prosecution could impede efforts to find common ground and solutions to the growing danger that wildfire poses.

Prescribed fire is a vital tool, but not always a perfectly precise one.

Legitimate concerns or disagreements regarding prescribed burns or other land-use issues should be addressed through proper legal channels and in a manner that is in line with our system of laws.

The fire ignited by Snodgrass and his crew torched some trees during the afternoon, when the wind picked up, and embers spread onto land owned by the Hollidays.

The ember started a fire that burned an estimated 20 to 40 acres of the Hollidays’ land.

If the Hollidays can show that the fire damaged their property, or reduced its value, then they have legitimate grounds for a civil suit against the federal government.

That, rather than a criminal case, is the appropriate legal venue for trying to punish the Forest Service.

What this matter needs is some adult leadership to bring everyone to the table to find a viable solution. Indicting people isn’t the answer. Compromise is.

Steve Ellis Op-ed on “Arresting Burn Boss” Episode

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I’ve been noticing a tendency for federal agencies to become more vague and abstract about what exactly they’re doing, with many agencies seemingly having identical programs, or overlap (or run against each other). At the other end of the spectrum, we need to ask “what is the work that needs to be done that doesn’t have anyone stepping up to do it?”  When I read Steve Ellis’s  op-ed about the Arrested Burn Boss case, I wonder how many Forest Service folks are assigned the role of peacemakers.  And if the Forest Service doesn’t have that role because they are involved in a dispute, what is the role of local institutions in peacemaking? I’m thinking here of Steve’s previous piece in which members of a religious group did the work of protecting a community from flooding.  I would bet that many folks in religious institutions have excellent dispute resolution skills, and are acknowledged community leaders, but there are plenty of others who are community leaders of various kinds.  Perhaps this is an opportunity for them to exercise their skills for the well-being of all.

Here’s Steve’s op-ed. It ran in newspapers in Pendleton, Baker City and LaGrande this AM:

 

Destructive wildfires have resulted in the devastating loss of communities, loss of life, impacts on human health, untold damage to our watersheds, and the pumping of massive amounts of climate-changing carbon dioxide into our atmosphere. Conditions are such that large fires are becoming difficult, if not impossible to suppress.

People who live in rural parts of Oregon are especially aware of this and the pressing need for effective landscape fuel treatments that include thinning, fuels reduction and prescribed fire. Practitioners, the research community, and most members of Congress have recognized the need for management activities.

We are the National Association of Forest Service Retirees, and our experience has been that this is best achieved by the agency, communities, landowners, Tribes, state forestry organizations, and various partners working cooperatively together. The good news is trust has been on the upswing and more of these partnerships are having success around the country.

Building the trust that enables prescribed and managed fire where there is not already a strong foundation of trust will be a challenge for the U.S. Forest Service. However, even with the best intentions, damage may sometimes occur to neighboring properties that was clearly not part of the plan.

Using fire to help forests become healthier and more resilient is a delicate balancing act. The intent is to work collaboratively in increasing “good” or beneficial fire and decreasing “bad” fire. Prescribed burning on National Forest System lands is designed to also protect neighbors’ homes, property and livestock from intense and destructive wildfires.

Regrettably, putting fire on the landscape, no matter how well meaning, does have its risks. Several of us had experiences during our careers where a well-intended prescribed fire went beyond the planned burn area.

I recall one instance in Idaho where the fire progressed onto some private land and burned approximately 10 acres of a rural mix of forest and rangeland property. We worked with the landowner, paid for replacing the fence and some other costs, and ended up with a very good working partnership. The landowner did not call the sheriff and ask that federal fire personnel be arrested.

Beneficial fire has been missing from many western landscapes for decades with profound impacts on forest health and resilience. Restoring fire’s role in the forest is critical. We all jointly need to properly use fire on the landscape. Along the way, unplanned events will no doubt occur, even with the best of plans and safety measures in place.

When accidents do happen, impacted landowners should be appropriately compensated. At the end of the day, if ultimately fire is to be managed well, cooler heads must prevail. Arresting an agency employee while he is performing his duties for the agency is not a productive path to building partnerships, and only exacerbates bad feelings and mistrust.

We look forward to Grant County and the Forest Service working to build cooperative relationships and stakeholder success to proactively manage forests and rangeland landscapes at risk of large destructive wildfires, regardless of ownership. Success makes for better media headlines.

Steve Ellis, former supervisor of the Wallowa-Whitman National Forest, is chairman of the National Association of Forest Service Retirees.

Update, A Few TSW Notes, A PSA and a Volunteer Opportunity

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FS Program Community Navigators- More Info Coming

One of our Anonymous folks asked about a program called “Community Navigators” that showed up on the FS LinkedIn site. I asked the WO Media Office and they said the announcement is coming out soon with more information. Hopefully someone will let me know and I can post about it, as I don’t read the FS LinkedIn feed.

Management Note:  What I think are AI Comments Thwarted; if They’re Yours, Let Me Know

We have had some comments from various entities which strike me as possible AI comments, to what end I have no idea.  They seem impersonal,  add no particular value and have an air of knowing about things that are, in reality, contested.   So,  I make a judgment call and delete them.  If I am mistaken about your comment, please contact me directly via email (see donate widget).  Then I will use Real Human Intelligence to change my personal algorithm.

TSW (at least this contributor) Has Lost Access to E&E News for Now

Sadly, we’ve had a breakdown on E&E News, my favorite outlet.  The generous ENGO who was forwarding stuff had their subscription raised to $1700 a year, which they can’t afford.  I am exploring alternative means of access (volunteering with the FS or other entities who have subscriptions?).  Meanwhile if you do get it and see something  interesting, please forward the link, so at least we know that there is an interesting story out there even if we can’t access it.

Public Service Announcement on Accessing Paywalled News

Since that happened, I’ve learned some things about accessing paywalled news that you might find helpful

    1. Local libraries often have digital access to newspapers.  Some including the NY Times.  Worth a check if you run into a paywall.  I now have cards at three county library systems, all of which have different ways of accessing different news outlets digitally.  And the most recent was just by walking in to a library (in a county I don’t live) and asking for a card.
    2. You can use archive.is where many news stories that are paywalled are saved.

Volunteer Wanted to Dig Into Project on Chequamegon-Nicolet

I received an email (as a media person) from the Environmental Law and Policy Center about violations of the timber sale contract on the Sunfish Timber Sale in the Fourmile Project Area on the Chequamegon-Nicolet National Forest in Wisconsin. It’s a Good Neighbor Authority (misspelled God Neighbor Sales  in the powerpoint) sale and it looks like thinning from the powerpoint. They are concerned about contractors working over-snow as in the contract, and claim that some cut trees violate the “proposed” old growth definition by diameter, and maybe the intent of the MOG executive order?

Here’s a link to the powerpoint. Anyone who lives in the area and wants to investigate further, please let me know.

Rio Grande National Forest Plan Revision Litigation

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I believe the Rio Grande revision is one of only two developed under the 2012 Planning Rule that have been litigated (the Flathead being the other).  Two lawsuits were filed against the Rio Grande in November 2021.  One of them (Defenders of Wildlife v. U. S. Forest Service) was decided a year ago by the district court and is on appeal to the 10th Circuit.  That case is worth some discussion, so here it is.  There has not yet been a district court hearing for the other case (San Luis Valley Ecosystem Council v. Dallas).  (The Colville revised plan litigation involved the previous 1982 planning regulations.)

On January 27, 2023, the district court upheld the Rio Grande revised forest plan’s compliance with the Endangered Species Act and NEPA for Canada lynx.  The judge framed the issue in this case as whether the Forest failed to “protect the lynx by inadequately limiting logging in the Forest under a revised forest plan in violation of the ESA, the National Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”).”  The court found no violation of ESA in the Biological Opinion by the Fish and Wildlife Service, and it summarily dispensed with the NEPA and ESA claims against the Forest Service as being based on “substantially the same arguments.”

The case involves changing forest plan management direction for Canada lynx from that included in the Southern Rockies Lynx Amendment in response to insect-killed trees and blowdown over a large portion of the Forest.  The opinion asserts at the outset that, “Petitioner’s position is fundamentally flawed for at least three reasons.”  Two of these are troubling.

The court minimizes (or perhaps rejects) the need for ESA consultation on national forest plans because they are “programmatic,” and (citing the BiOp), “no immediate consequences occur directly to Canada lynx caused by the proposed action,” and therefore “implementation cannot be said to jeopardize the lynx directly.”  If plan cannot jeopardize a species, then there should be no need to consult.

These statements and this conclusion would be contrary to national Fish and Wildlife Service policy on consultation on “programmatic” or “tiered” decisions.  Forest plans are decisions that both promote activities that could adversely affect species through desired conditions and objectives, and limit those activities through standards and guidelines.  Consultation on such decisions is based on the effects that would be allowed to occur using the “design standards” in the decision.  There is no requirement that consequences potentially leading to jeopardy be “immediate.”

The court’s conclusion is also at odds with other cases, which emphasized the broad scope of agency “actions” subject to ESA.  The 10th Circuit has determined that, “Much like the promulgation of a regulation, we have little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes “action” under § 7(a)(2) of the ESA.”  Forest Guardians v. Forsgren, 478 F.3d 1149, 1154 (2007).  The 9th Circuit held, “RMPs are actions that “may affect” the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.”  Pacific Rivers Council v. Thomas, 30 F.3d 1050, 1055 (1994).  A requirement to consult on forest plans must presume that there could be some basis for finding substantive violations of ESA, so this court’s finding of a fundamental flaw here seems fundamentally flawed.

A second “fundamental flaw” results from the fact that, “lynx habitat in the Forest amounts to just over 2 percent of the lynx habitat in the contiguous United States,” and “none of that habitat was designated as critical.”  Therefore, “even if the lynx were extirpated in the Forest, that would not significantly affect the status of the lynx across the contiguous United States.”  This raises questions about the effectiveness of applying ESA’s requirements to wide-ranging species if no individual project or even a forest-wide plan could be viewed as capable of causing jeopardy.  This is a reason why the western lynx amendments were applied across ranges of the lynx, and consultation occurred on multiple national forests simultaneously.  The reasoning the court applied here highlights the risk of now disassembling a regional strategy on a forest-by-forest basis.  Doing so on one forest should arguably trigger the need to reinitiate consultation across the range of lynx (in this case the southern Rockies national forests).

This court’s view of ESA highlights the need to challenge species conservation provisions of forest plans under the viability requirement of the 2012 Planning Rule, even for listed species.  The requirements pertaining to species viability must be met based on their probability of persistence in the “plan area.”  Various statements cited by the court would support a conclusion that lynx are not likely to persist on the Rio Grande National Forest plan area over time.  This argues for strict scrutiny of forest plan components that would allow any adverse effects to occur from management activities.  Similar to ESA, the viability requirement contemplates long-term consequences of multiple activities over time, and effects need not be direct or immediate.  (In another context, the court points out that, “the revised forest plan is intended to remain in effect only until about 2036,” but it may be that management actions during the life of this plan would contribute to the “long-term” decline, which is the test applied by the 2012 Planning Rule).

There is a counter-argument that the 2012 Planning Rule applied the viability requirement explicitly only to “species of conservation concern,” which are defined to not include listed species, for which the requirement is to “contribute to recovery.”  However, at the point at which the species recovers, it should immediately become an SCC (see Planning Handbook §12.52d.2.b) and would need to meet the viability requirement.  Regardless, logic requires that what is needed to “contribute to recovery” should be something beyond what is needed to maintain viability after recovery, and that plan components for listed species must at least provide habitat for viable populations.

This outcome would be consistent with court interpretations of the NFMA diversity requirement under the 1982 planning regulations.  When the Forest Service argued that it did not have to meet the viability requirement for listed species, the 9th Circuit found, “The effect of the Forest Service’s position in this litigation, were it to be adopted, would be to reward the Forest Service for its own failures; the net result would be that the less successful the Forest Service is in maintaining viable populations of species as required under its regulations, the less planning it must do for the diversity of wildlife sought by the statute. This is directly contrary to the legislative purpose of the National Forest Management Act.”  Seattle Audubon Society v. Evans, 952 F.2d 297, 301 (1991).  (The San Luis Valley Ecosystem Counsel claims against the Rio Grande plan include NFMA violations for lynx and the Uncompahgre fritillary butterfly, but relative to the “contribute to recovery” requirement for listed species, and not the viability requirement.)

The third “overarching flaw” appears to derive from judicial deference principles.  The court specifically notes that, “the Court does not find that the presumption of validity that attaches to agency action is overcome merely because the revised forest plan changes the way the SRLA was previously applied in the Forest.”

The remainder of the opinion discusses the scientific rationale provided by the agencies for their effects analysis and decisions, and finds that they properly address questions raised by plaintiffs, and the court was “not persuaded that implementation of the revised forest plan is likely to make conditions worse for the lynx.”  (Perhaps under stricter scrutiny called for by the NFMA plan area viability requirement the court might have been persuaded.)  So maybe the court’s findings of “fundamental flaws” were just window dressing?

On January 17, 2024 the 10th Circuit held a hearing (listen here) in this case.  I have not read the briefs, but the hearing did not discuss the overarching issues reviewed above, so it appears that they are assuming (and apparently the government did not object) that the Rio Grande revised plan could theoretically cause jeopardy to lynx.

The hearing was narrowly focused on two issues, and particularly on the question of whether the northern portion of the Rio Grande should be managed as an area of low lynx use with less protection, as it is in the revised forest plan.  That turned on the question of best available science.  The only research on lynx that included the northern portion (Ivans) concluded that there could be high lynx use.  The Fish and Wildlife Service concluded otherwise based on discussions with unnamed biologists that were not specifically documented.  Importantly, there is no record of the reasons why the Ivans study was not accepted by the FWS (or the Forest Service).  If there were no conflicting information in the record, the unattributed sources might be sufficient, but that is not the case here.  The FWS conclusions could be considered arbitrary.

The second issue was about the importance of the lynx population on the Rio Grande, and/or the importance of the Colorado lynx population to the listed species.  The record indicated that the Rio Grande lynx are important to the Colorado population.  The FWS had also said elsewhere that all six populations in the lower 48 (the listed entity) are important, but then discounted the current importance of the Colorado lynx population because it was not historically important.  Ultimately the question appeared to be whether the FWS properly considered the importance of these lynx in its jeopardy determination for the species.

We await a decision.

 

 

 

Federal Lands Litigation – update through February 21, 2024

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National Monument creation

On February 12, leaders of both houses of the Arizona legislature, the State Treasurer, Mohave County and two towns sued President Biden and the Department of the Interior over designation of Baaj Nwaavjo I’tah Kukveni – Ancestral Footprints of the Grand Canyon National Monument.  The complaint alleges the designation exceeds the authority of the Antiquities Act, the Arizona-New Mexico Enabling Act reserved state authority to manage State Trust Land encompassed by the Monument, and Defendants lack the power to change the designated use for former wilderness study areas governed by the Arizona Wilderness Act of 1984.  Plaintiffs are particularly interested in regaining the opportunity for uranium mining within the Monument boundaries.  (The article has a link to the complaint.)

On February 12, a second lawsuit was filed by a rancher whose private land is partly included within the Monument boundaries.  He alleges “severe regulatory burdens and the threat of criminal penalties for engaging in everyday conduct on his ranch.”  (The article has a link to the complaint.)

If the conduct is “on his ranch,” I’m not sure of how Monument designation could criminalize actions on private property.  Along the same lines, the state claims in its lawsuit, “The Ancestral Footprints Monument will restrict and prohibit uses on State Trust Land by making State Trust Land inaccessible, impacting water rights, prohibiting new mining claims, prohibiting new grazing leases, limiting new construction of infrastructure and other property improvements, and affecting other uses of State Trust Land that had previously been allowed.”  I’m not sure how Monument designation could “disallow” these uses of State land.

FOREST SERVICE

On Nov. 28, 2023 wildlife conservation groups submitted a petition asking the Forest Service to immediately ban the aerial killing of wildlife in Idaho national forests.  This was in response to the Idaho Wolf Control Board approving funding for this purpose.  On February 15, 30 organizations sent a follow-up letter to five national forests, the Intermountain Region and the national office.  They allege violations of the Federal Airborne Hunting Act, the Endangered Species Act (grizzly bears, lynx and wolverine), the Wilderness Act and NFMA and Forest Service regulations.  (Maybe this should be viewed as a notice of intent to sue.)

New lawsuit

On February 16, Yellowstone to Uintas Connection, Native Ecosystems Council and Alliance for the Wild Rockies filed a complaint in the Montana federal district court against the U.S. Forest Service and asked for an injunction to stop the Pintler Face Project on the Beaverhead-Deerlodge National Forest.  The project would log or burn more than 11,000 acres, including large clearcuts, along the southeastern edge of the Anaconda Pintler Wilderness over the course of five to 10 years.   Issues involve effects on lynx and grizzly bears.  (The article refers to a recent court precedent involving remapping of lynx habitat on the Custer-Gallatin National Forest, which is referring to the Greater Red Lodge Area project discussed here.)

BLM

Court decision in True Oil LLC v. BLM (D. Wyoming)

In this case, the district court determined that, where the federal government owns subsurface mineral rights, it can require a permit for an easement to drill through that property, even though no minerals would be removed, and even where they do not own the surface estate.  A permit requirement would allow the government to protect its mineral interests.

New lawsuit:  Glenwood Springs Citizens Alliance v. U. S. Department of the Interior (D. Colorado)

On February 15, plaintiffs filed a Freedom of Information Act lawsuit against the BLM.  They are seeking documents related to ongoing mining operations, and proposed major expansion of, a large limestone mine directly above Glenwood Springs, CO, known as the Mid-Continent Mine.  Many documents had been withheld or redacted, and appeals of these had not been resolved.  Plaintiffs contend that the end use for that limestone does not comply with the federal permit under which that mine is operating.  (The article includes a link to the complaint.)

Court decision in Citizens for Clean Energy v. U. S. Department of the Interior (9th Circuit)

On February 21, the appellate court reversed a district court decision that had rejected the Trump Administration’s restarting of coal leasing on federal lands after the Obama Administration had imposed a moratorium.  It found that since the Biden Administration had revoked the order to restart leasing, the case was moot.  That leaves no moratorium in place, but also nothing compelling leasing to resume, and plaintiffs are still hoping for “a long overdue review of the federal coal leasing program,” including NEPA compliance.   (The article includes a link to the opinion.)

FISH AND WILDLIFE SERVICE

Court decision in Atchafalaya Basinkeeper v. Bernhardt (M.D. Louisiana)

On January 29, the district court approved the 2016 decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the list of threatened species.  National forest lands are considered suitable but unoccupied.  The court found that the FWS had properly considered the five listing/delisting factors using the best available science.  It added this closing comment: “The Court commends Plaintiffs’ extraordinary efforts in defense of this remarkable mammal. Would that every species received the same indefatigable support as the Louisiana black bear.”

In January, the U. S. Fish and Wildlife Service denied a 2022 petition by the Center for Biological Diversity (link provided) seeking to reintroduce endangered jaguars on the Gila National Forest.  There are presently only two known jaguars north of the Mexican border.  The FWS determined that reintroduction in New Mexico “would not further the conservation of the species.”  (Does the Center ever sue?)

Notice of Intent to Sue

On February 7, within a week after the U. S. Fish and Wildlife Service decided not to relist gray wolves in the northern Rockies under the Endangered Species Act, fourteen organizations gave their notice of intent to sue in two letters to the FWS.  (Links to both are included in this article.)

On February 15, the U. S. Fish and Wildlife Service published a notice that it would list a southwestern subspecies of silverspot butterfly as a threatened species.  No populations are known to occur on national forest lands, but the elevational range of the subspecies includes some lower elevation USFS land, and they are a sensitive species in regions 2 and 4.  Two known colonies occur on BLM lands, one of which is managed for this species in the land management plan.  (The press release has a link to the Federal Register notice.)

INCIDENTAL TAKE

These cases don’t directly relate to federal lands, but federal land management activities require a comparable investigation of incidental take and approval in an incidental take statement.  (I’ve wondered why federal land managers shouldn’t have to also refer to a habitat conservation plan, which might be a land management plan, for these take statements.)

Court decision in Allegheny Wood Products v. U. S. Fish and Wildlife Service (N. D. W. Virginia)

On February 12, the district court found that the administrative record supported a decision by the FWS to not provide an incidental take permit necessary to avoid liability for possible harm to seven listed species that might be affected by the plaintiff’s forest management activities.  Following a back-and-forth process that began in 2006, the court agreed with the FWS that the 2021 draft habitat conservation plan did not provide information necessary to determine the extent of take and develop mitigating measures.  This included not providing “sufficient project details at scales relevant to the impacted species” to constitute a “complete description of the activity sought to be authorized.”

Court decision in Center for Biological Diversity v. Regan (D. D.C.)

On February 15, the district court issued an order vacating the U.S. Environmental Protection Agency’s approval at the end of the Trump Administration of the state of Florida’s application to assume permitting authority from the U.S. Army Corps of Engineers under Section 404 of the Clean Water Act within the state.  This would have allowed future permits to avoid review under the Endangered Species Act.  The court found flaws in the biological opinion and incidental take statement prepared by the Fish and Wildlife Service for the transfer of authority.  Of particular concern are Florida panthers near the Florida Panther National Wildlife Refuge in the western Everglades. (The article includes a link to the opinion.)

Court decision in Puyallup Tribe of Indians v. Electron Hydro, LLC (W.D. Washington)

On February 16, the district court found that a “temporary” rock structure (which had been there for several years) in the Puyallup River was interfering with migration of listed fish species and causing incidental take of these species (and orcas) without an incidental take permit, in violation of ESA.  The court ordered removal of part of the structure.  In this case, the National Marine Fisheries Service had indicated that harm would occur, but they were not a party to the lawsuit.  (This press release includes a link to the opinion.)

OTHER CASES OF INTEREST

Criminal plea deal

A man whose family’s gender reveal photo shoot sparked the El Dorado Fire that killed a firefighter in 2020 has pleaded guilty to involuntary manslaughter.  His sentence includes one year in jail, two years of felony probation and 200 hours of community service.  His wife was sentenced to a year of probation and 400 hours of community service. The couple was also ordered to pay $1,789,972 in restitution.

On February 2, the Forest Service burn boss arrested in Oregon in conjunction with an escaped fire was indicted by a grand jury on a misdemeanor count of reckless burning, and arraignment in the county court was February 16.  A plea haring is set for April 1. He is being represented by private attorneys paid by the U.S. Department of Justice.  The Forest Service and the National Federation of Federal Employees have expressed their support for the accused.