PEER: Nobody Home at National Park Headquarters

What IF this was by design and part of the Trump administration’s plans from the beginning? I mean, what IF?

For Immediate Release: Tuesday, February 18, 2020
Contact: Peter Jenkins (202) 265-4189

Special Assistant a No-Show; Two-Thirds of Top Slots Vacant or Acting

Washington, DC — The hallways of the National Park Service Headquarters now open onto empty offices or those filled on a temporary basis. At the same time, a senior official has gone AWOL according to a new complaint filed with the Department of the Interior’s Inspector General (IG) by Public Employees for Environmental Responsibility (PEER).

Two-thirds of the top NPS slots lack a permanent official — an unprecedented leadership vacuum. While the Trump White House is notably reluctant to submit nominations for Senate confirmation across the Executive agencies, many senior NPS vacancies are for positions that do not require Senate confirmation. Besides having neither a confirmed Park Service Director nor a nominee for that key job, currently –

• Ten of 15 Deputy, Assistant, and Associate NPS Director slots are entirely vacant or temporarily filled by an “acting” appointee;

• Several Superintendent positions at major parks, such as Grand Canyon, Yosemite, and Grand Teton, also are filled by “actings” on an interim basis; and

• P. Daniel Smith, who was brought out of retirement in 2018 and given an NPS Deputy slot in which he “exercised the authority of the Director,” then was moved out of that slot last summer to serve as a teleworking special assistant, but he apparently has not been seen at NPS Headquarters since.

“The Park Service is suffering from a multi-billion-dollar maintenance deficit and it can ill afford high-salary ghost employees,” stated PEER Executive Director Tim Whitehouse. “Keeping so many leadership slots unfilled by permanent jobholders hobbles management and means that major decisions affecting our national parks are increasingly made by political appointees in the Interior Secretary’s office.”

The PEER complaint asks the IG to determine the whereabouts of Smith. He draws a top salary as a Special Assistant to the Director, but there is no confirmed or acting Director. One of the ironies involving P. Daniel Smith is that he appears to be in violation of a restrictive telework policy that was adopted under his aegis when he was still in NPS Headquarters.

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See NPS’s 2/3rds leadership vacancies

Vacant, Director
David Vela, Deputy Director, exercising the authority of the Director
Lena McDowall, Deputy Director, Management and Administration
Shawn Benge, Acting Deputy Director, Operations
Vacant, Deputy Director, Congressional and External Relations
Chris Powell, Chief of Staff
Shane Compton, Associate Director, Chief Information Office
Vacant, Assistant Director, Communications
Joy Beasley, Acting Associate Director, Cultural Resources, Partnerships and Science
Tom Medema, Acting Associate Director, Interpretation, Education, and Volunteers
Charles Laudner, Assistant Director, Legislative and Congressional Affairs
Ray Sauvajot, Associate Director, Natural Resource Stewardship and Science
Mike Caldwell, Acting Associate Director, Park Planning, Facilities, and Lands
Reggie Chapple, Acting Assistant Director, Partnerships and Civic Engagement
Marlon Taubenheim, Acting Associate Director, Workforce and Inclusion
Vacant, Associate Director, Business Services
Louis Rowe, Acting Associate Director, Visitor and Resource Protection

Read PEER’s complaint on Smith filed with Interior IG

Look at checkered history of Danny Smith

Defining Recreation and Tourism Impacts on Federal Lands. I. The Outdoor Recreation Economy and Wilderness


Categories included in OIA 2017 Study

This is the beginning of a series in which we will explore current trends in recreation and tourism and their impacts on federal lands.

I’ve noticed that when people write op-eds about Wilderness, they tend to talk about the value of the “recreation industry.” But are those figures really relevant to their argument?

In this recent op-ed in the Colorado Springs Gazette, for example, John Stansfield, of Wild Connections, wrote
“Colorado’s public lands are a major economic driver for the state’s economy with our outdoor recreation industry generating $28 billion annually, supporting 229,000 jobs.”

I tried to find where this figure came from and found this Denver Post article.

The value of Colorado’s outdoor recreation economy has grown to $62.5 billion, almost double what it was just five years ago, and now supports about 511,000 jobs across the state, says a state report released Friday.

Gov. John Hickenlooper joined staffers from several different state and federal agencies, outdoor businesses and conservation groups along the South Platte River in Lower Downtown to unveil the latest survey of the state’s outdoor recreation economy. Hickenlooper noted the big increase in the overall economic contribution — to $62.5 billion from $34 billion in 2013.

“This puts it as one of the top economic drivers of our economy,” Hickenlooper said. “That’s a $35 billion contribution to our GDP (Gross Domestic Product). That’s more than 10 percent.

So I looked into the Colorado Parks and Wildlife report which was based on information from the Outdoor Recreation industry (I’m not criticizing this approach, just pointing out that getting information from industries should not be a “bad” thing or a “good” thing depending on our views about that industry). Also, it’s probably true that CPW is not unbiased either, but that’s OK, because we can read the report.

The DPW study used a broader definition than the OIA study, so that’s why their figures are higher. Here’s a link to the OIA study.

But is it really fair to argue for Wilderness based on recreation figures from skateboarding, to RVing to snowmobiling, most of which don’t take place in Wilderness? If you were designing an economic study to argue for Wilderness, wouldn’t you want to include ($ paid by people who would only visit if this area were Wilderness) – ($lost by people who could no longer recreate in this Wilderness)? How would you design an accurate estimate? I’d start with a survey that asks “in these specific areas (in the Wilderness Bill under consideration) are you more or less likely to recreate there if it were Wilderness? Then there’s the related impact question of “how much more impact would these recreationists have, both in terms of the land and wildlife, and in the travel to get there?”

These are all the questions that might be asked and answered in an EIS, but Congressional designation is political (in this particular case it appears to be a symbolic political act).

Here’s another quote:
“Frequent surveys show a majority of Coloradans prefer to permanently protect our public lands for present and future generations to enjoy.”
This leaves out “exactly what are we protecting them from? from other members of the public enjoying them?” and “by designating Wilderness, are they adequately protected from recreation impacts?”. What are the mechanics of that? If it is narrowing down the user pool (to only hikers and equestrians) permanently, I guess that makes sense, but of course they have their own impacts, sometimes fairly significant. It’s just confusing to me that there is the “protection from people” language in the same argument as “the outdoor industry makes lots of money.”

Public land developers getting financial pushback

An interesting observation from the Washington Post.  As investors become more enlightened about the financial risks caused by climate change they are starting to hold corporations accountable.  That includes their operations on public lands – and litigation is part of the risk.

A dozen-and-a-half senators wrote letters to 11 of the largest U.S. banks asking them to back down from financing any oil and gas activity in an unspoiled expanse of Arctic wilderness.

“The scale of your banks’ assets individually, let alone together, give you the ability to drive change in protecting the Arctic National Wildlife Refuge and in shifting towards a U.S. financial sector that effectively analyzes and plans for climate risks,” the group of a senators, led by Sen. Martin Heinrich (D-N.M.), told Wells Fargo, Bank of America, Citigroup, Morgan Stanley, JPMorgan Chase and six other banks in a letter sent last Thursday.

Democrats hope these banks follow the lead of one key peer: In December, Goldman Sachs said it is ruling out financing new drilling or oil exploration in the entire Arctic.

The world’s largest asset management firm, BlackRock, said last month it would divest from coal burned in power plants and make climate change a “defining factor” of its investing strategy.

And just last week, a group of investors representing nearly $113 billion in assets under management issued a similar letter to energy, mining and timber companies. Their warning: Don’t invest in certain federally controlled areas once protected but now open to development by the Trump administration.

These areas include not only the oil-rich Arctic refuge but also Alaska’s Tongass National Forest, the largest intact temperate rainforest where the U.S. Forest Service wants to allow new logging, (discussed here) and Minnesota’s Boundary Waters Canoe Area Wilderness (the Twin Metals mine litigation is discussed here), a popular lake-pocked forest near where the administration wants to allow a copper and nickel mining operation.

The institutional investors, which include several religious funds as well as a fund established by the late oil heir David Rockefeller, warned companies that many of the administration’s rollbacks of public land protections are legally precarious, and may be struck down by the courts or the next presidential administration. The letter went out to ExxonMobil, the timber company Weyerhaeuser and 56 other firms, according to Reuters.

“Many of these projects are mired in litigation,” the letter stated, “challenging the legality of any current or future industrial activity initiated in these regions and providing evidence of the risks associated with conducting commercial development on lands that the American public has deemed valuable for protection.”

The institutional investor letter also mentioned other areas, including protected sage grouse habitat (litigation discussed here) and the national monuments that have been reduced in size by the Trump Administration that are also under litigation (discussed here).  Here’s the latest on that.

Rural vs. Urban Voters on Environmental Issues

The “urban-rural divide” has been discussed for years, especially in the western US. Duke University’s Nicholas Institute for Environmental Policy Solutions has a new report on the issue. Here’s a press release….

Dividing Lines — and Common Ground — Between Rural and Urban Voters on Environmental Policy

DURHAM, N.C. — Rural and urban Americans are divided in their views on the environment, but common ground does exist, says a new report led by Duke University’s Nicholas Institute for Environmental Policy Solutions.

“The urban/rural divide on the environment is real, but it centers not on differences in how much people value environmental protection but on divergent views toward government regulation,” said lead author Robert Bonnie, executive in residence at the Nicholas Institute and a former undersecretary for natural resources and environment at the U.S. Department of Agriculture. “Rural Americans, across party lines, are less supportive of governmental oversight on the environment than their urban/suburban counterparts.”

The study was conducted over two years by the Nicholas Institute with assistance from the University of Rhode Island, the University of Wyoming, Hart Research Associates and New Bridge Strategy. It involved extensive outreach to rural constituencies, including a national survey of more than 2,000 registered voters, focus groups with more than 125 rural voters and in-depth interviews with 36 rural leaders.

Rural Americans have an outsized impact on national environmental policy, from strong representation in the halls of Congress to management of vast swaths of lands and watersheds, the authors note.

Polling results indicated broad support for conservation and environmental protection among both rural and urban/suburban voters. The study also found rural voters to be relatively knowledgeable about environmental policies and the potential economic trade-offs that come with them.

“Americans living in rural communities showed a powerful commitment to protecting the environment, motivated in large part by a strong place identity and desire to maintain local environmental resources for future generations,” said study co-author Emily Diamond, assistant professor at the University of Rhode Island.

Rural voters significantly diverged from urban and suburban voters over attitudes toward federal regulation, the study found. In the polling, rural voters across political parties expressed more skepticism for government policies. Participants in focus group conversations often voiced strong support for conservation and environmental protection in the abstract but raised concerns about the impacts and effectiveness of specific policies.

Climate change proved to be another dividing line between rural and urban/suburban voters.

“Our focus groups and interviews echoed this sense that rural opposition to climate change policies may be tied to negative experiences they have had with other federal environmental regulations,” Diamond said.

“Climate change is a polarizing issue in rural America, but there is a path forward that can win rural support,” Bonnie added. “Our study shows that engagement and collaboration with rural stakeholders will be important to winning over rural support.”

There is no quick fix to bridging the urban/rural divide on environmental policies, the authors said. They recommend that policymakers, environmentalists and conservation groups engage more with rural communities when developing policies that could affect them. The authors also suggest federal policies — especially for addressing climate change — are more likely to gain rural voters’ support if they allow for state and local partnerships and collaboration with rural stakeholders.

Other key recommendations include:

* Working with trusted messengers, such as farmers, ranchers, and cooperative extension services, to convey information about environmental policies to local stakeholders
* Improving scientific outreach to rural communities
* Offering opportunities to address environmental policy priorities in a way that is compatible with rural economies

Support for the study was provided by the William and Flora Hewlett Foundation, the Wilburforce Foundation and the Rubenstein Fellows Academy at Duke University. The Nicholas Institute for Environmental Policy Solutions contributed seed funding through its Catalyst Program to get the project started. The full report, “Understanding Rural Attitudes Toward the Environment and Conservation in America,” is available at nicholasinstitute.duke.edu/publications/understanding-rural-attitudes-toward-environment-and-conservation-america.

The study was led by Bonnie with co-authors Diamond and Elizabeth Rowe, a master of environmental management student at Duke’s Nicholas School of the Environment. Jay Campbell at Hart Research Associates and Lori Weigel at New Bridge Strategy conducted focus groups and polling for the study.

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January 2020 Litigation, Part 2

(Court decision/update)  The Northern District of California District Court has denied plaintiff’s request for a preliminary injunction (and removed a temporary restraining order) for Ranch Fire salvage projects on the Mendocino National Forest using the road maintenance categorical exclusion addressed previously here.  An appeal has been filed with the 9th Circuit.

  • Atlantic Coast Pipeline

(Update)  The hearing in the Supreme Court is scheduled for February 24. At issue is the green light that the U.S. Forest Service gave the Atlantic Coast Pipeline to cross the Appalachian Trail within the George Washington National Forest.  The key question is whether the Appalachian Trail comprises “lands in the National Park System,” which would preclude the Forest Service from making this decision because of language in the Mineral Leasing Act.  The pipeline is also being blocked by failure to comply with ESA for the rusty patched bumblebee, and a draft recovery plan has just been released.

(Update) This case involving the Caribou-Targhee National Forest was filed last summer, and briefing in the District Court of Idaho is scheduled this spring. The plaintiffs believe the vegetation treatments scheduled for this summer to improve forage would come at the expense of wildlife, especially sharp-tailed grouse, and that a categorical exclusion is improper due to the area’s “wilderness value and roadless value.”  Plaintiffs say this is one of the first cases where the Forest Service is trying to test the Idaho Roadless Rule.

(Update)  The BLM in Colorado has dropped some of the parcels from its planned leases because they are not available under the 2015 sage grouse amendments to its land use plan.  They were made available by the 2019 changes to the amendments, but those were enjoined in October in Western Watersheds v. Schneider.  They have also deferred other parcels as a result of an October lawsuit against the BLM Grand Junction Field Office’s new resources management plan.  (There’s a picture of the new BLM Headquarters.)

(Settlement)  Plaintiffs have settled a lawsuit filed in a California state court against Placer County’s approval of a gondola connecting two ski resorts on the Tahoe National Forest.   The agreement was finalized as part of the Forest Service’s final approval of the gondola that will skirt the Granite Chief Wilderness Area, which is home to the endangered Sierra Nevada yellow-legged frog.  The proponents agreed to permanently protect 27 acres of frog habitat and contribute about $500,000 over the next decade toward land purchases and other protection efforts.

High-elevation forests in the southern Rocky Mountains bouncing back from beetles, but elk and deer slowing recovery

From Science Daily.

Summary: New research reveals that even simultaneous bark beetle outbreaks are not a death sentence to the state’s beloved forests. The study found that high-elevation forests in the southern Rocky Mountains actually have a good chance of recovery, even after overlapping outbreaks with different kinds of beetles. One thing that is slowing their recovery down: Foraging elk and deer.

Two words, and a tiny little creature, strike fear in the hearts of many Colorado outdoor enthusiasts: bark beetle. But new research from University of Colorado Boulder reveals that even simultaneous bark beetle outbreaks are not a death sentence to the state’s beloved forests.

The study, published this month in the journal Ecology, found that high-elevation forests in the southern Rocky Mountains actually have a good chance of recovery, even after overlapping outbreaks with different kinds of beetles. One thing that is slowing their recovery down: Foraging elk and deer.

“This is actually a bright point, at least for the next several decades,” said Robert Andrus, lead author of the study and recent PhD graduate in physical geography. “Even though we had multiple bark beetle outbreaks, we found that 86 percent of the stands of trees that we surveyed are currently on a trajectory for recovery.”

Between 2005 and 2017, a severe outbreak of spruce bark beetles swept through more than 741,000 acres of high-elevation forest in the southern Rocky Mountains near Wolf Creek Pass — killing more than 90 percent of Engelmann spruce trees in many stands. At the same time, the western balsam bark beetle infested subalpine fir trees across almost 124,000 acres within the same area.

If you go skiing in Colorado, you’re usually in a high-elevation, Engelmann spruce and subalpine fir forest, said Andrus.

The researchers wanted to know if these overlapping events, caused by two different types of bark beetles, would limit the ability of the forest to recover. So they measured more than 14,000 trees in 105 stands in the eastern San Juan Mountains, tallying the surviving species and the number of deaths. They had expected that the combined effects of two bark beetle outbreaks would prevent forest recovery, but they found that the forests were quite resilient.

That’s an important contrast from what happens following a severe fire, which can cause forests to convert to grasslands, according to previous research by Thomas Veblen, coauthor of the study and Distinguished Professor of Geography.

“It’s important that we perform these sorts of studies, because we need different management responses depending on the forest type and the kind of disturbance,” said Veblen.

They also found that greater tree species diversity prior to the bark beetle outbreaks was a key component of resilient forests.

Tens of millions of acres across the Western United States and North America have been affected in the past two decades, and Colorado has not been spared. A severe mountain pine beetle outbreak began in 1996, easily visible along I-70 and in Rocky Mountain National Park. Since 2000, more than 1.8 million acres of Engelmann spruce statewide have been affected by spruce beetles in high-elevation forests.

With continued warming there will come a time where conditions caused by climate change exceed the forests’ ability to recover, said Veblen.

Impacts of Ungulates

The study is the first to consider the effects of two different types of beetles that affect two different dominant tree species, as well as the effects of browsing elk and deer in the same area.

Bark beetles prefer bigger, mature trees with thicker bark, which offer more nutrients and better protection in the wintertime. They typically leave the younger, juvenile trees alone — allowing the next generation to recover and repopulate the forest.

But while in the field, researchers noticed many smaller trees were being munched on by elk and deer. Known as “ungulates,” these animals like to nibble the top of young trees, which can stunt the trees’ vertical growth. They found more than half of the tops of all smaller trees had been browsed.

That doesn’t mean that those trees are going to die — ungulates are just more likely to slow the rate of forest recovery.

Avid Colorado skiers and mountaineers looking forward to typical, green forests, however, will have to be patient.

“We don’t expect full forest recovery for decades,” said Andrus.

Story Source: Materials provided by University of Colorado at Boulder. Original written by Kelsey Simpkins. Note: Content may be edited for style and length.

Journal Reference: Robert A. Andrus, Sarah J. Hart, Thomas T. Veblen. Forest recovery following synchronous outbreaks of spruce and western balsam bark beetle is slowed by ungulate browsing. Ecology, 2020; DOI: 10.1002/ecy.2998

A Trillion Trees and CO2

You may recall a paper last year that called for large-scale tree planting as “our most effective climate change solution to date.” And President Trump’s call for planting a trillion trees. An op-ed in today’s NY Times debunks this notion, writing that:

There is no way that planting trees, even across a global area the size of the United States, can absorb the enormous amounts of fossil carbon emitted from industrial societies. Trees do take up carbon from the atmosphere as they grow. But this uptake merely replaces carbon lost when forests were cleared in the first place, usually long ago. Regrowing forests where they once flourished can undo some damage done in the past, but even a trillion trees can’t store enough carbon to head off dramatic climate changes this century.

The op-ed mentions a rebuttal to the first paper in Science (open access), in which the authors state that”

“…regardless of the exact amount of carbon that could be stored via forest restoration, this solution can only temporarily delay future warming. The 205 GtC proposed by the authors is equal to about 20 years of global anthropo-genic CO2 emissions at the current emission rate of about 10 GtC/year (2). Without radical reductions in fossil carbon emissions, forest restoration can only offset a share of future emissions and has limited potential. The only long-term and sustainable way to stabilize the climate at any temperature target is to reduce anthropogenic CO2 emissions to zero (over the coming 30 to 50 years to meet the temperature targets of the Paris Climate Agreement).”

In any case, maintaining forest health and resilience, and reducing the chances of large, intense wildfires, is still important.

Tahoe plan amendment for use of wildfires

 

(Not in the American Planning Association context of this publication, but in the NFMA context of national forests.)

I was alerted to the Tahoe situation by this supportive opinion piece in a local paper, which includes a link to the project record for the proposed plan amendment.  It provides an opportunity for a look at how fire management, and in particular wildfire management for resource benefits, should be addressed in national forest planning.  Fire and planning have had a rocky relationship in the Forest Service over the years, but here’s some current guidance.

Guidance for Implementation of Federal Wildland Fire Management Policy (February 2009) includes this:

Management response to a wildland fire on federal land is based on objectives established in the applicable Land/ Resource Management Plan and/or the Fire Management Plan.

Fire Management Plans, programs, and activities support land and resource management plans and their implementation.

The L/RMP will define and identify fire’s role in the ecosystem. The response to an ignition is guided by the strategies and objectives outlined in the L/RMP and/or the Fire Management Plan.

Values to be protected from and/or enhanced by wildland fire are defined in the L/RMP and/or the Fire Management Plan.

Wildland fire will be used to protect, maintain, and enhance resources and, as nearly as possible, be allowed to function in its natural ecological role. Use of fire will be based on L/RMP and associated Fire Management Plans and will follow specific prescriptions contained in operational plans.

Fire Management Plans are strategic plans that define a program to manage wildland fires based on the area’s approved land management plan.

The 2014 National Cohesive Wildland Fire Management Strategy required by the Federal Land Assistance, Management, and Enhancement Act of 2009 (FLAME Act), includes as a priority, “increasing use of wildland fire.”  Figure 3.4 shows a national map: “Spatial pattern of counties where options for managing wildfires
for resource objectives and ecological purposes might prove useful.”

The Forest Service Planning Handbook advises (among other things, §23.11c):

Standards or guidelines.  The plan may include standards or guidelines related to basic smoke management practices, non-fire fuels treatments, post-fire rehabilitation, prescribed fire treatments, and wildland fire responses.  A guideline or standard may provide guidance on when or how a specific tool is appropriate.

Here is the language from the current Tahoe forest plan (a standard):

Fire suppression strategy is control (with fast, aggressive initial attack) except where the contain strategy is authorized for specific management areas at fire intensity levels described under the practice description. Strength of attack will be based on hazard rating, fire weather, and values at risk.

The exceptions:

The Forest Plan allows Fire Managers to utilize fire for resource benefits in only a few limited areas of the Forest and only if the fire can be contained within an isolated fuelbed of 5 acres or less, a situation rarely encountered and at a scale too small to achieve meaningful ecological restoration or other resource benefits.

Here is the comparable language proposed for the amendment (a guideline):

Use naturally- (lightning-) caused wildfire ignitions to meet multiple resource objectives when and where conditions permit and risk is within acceptable limits. Multiple resource objectives include: re-introducing fire as a necessary ecological process; enhancing plant and wildlife habitat, including critical habitat for threatened and endangered species; improving forest health, conserving ecosystem services; managing smoke emissions; reducing fuel loading; and/or protecting communities and infrastructure.

So this all sounds like an improvement, but nowhere in the proposal or the discussion of the proposal does the Forest mention the role of the forest plan.  The “multiple resource objectives” should come from there.  They list 14 factors, and the only one that indirectly implicates the forest plan is “cultural and natural values at risk.”  A simple fix to the proposed guideline would be to use such ignitions to “achieve the desired conditions and objectives of the forest plan,” and add to the factor “… values at risk based on the forest plan.”  That should go without saying, but by failing to mention the plan, it suggests that decisions about prescribed wildfires could be made without reference to that document.  The forest plan may not be the first thing that comes to mind when a fire starts, but management of a fire, like everything else a national forest does, must be consistent with the applicable forest plan.

I do like the direct approach the Tahoe is taking with the smoke issue.

While the amendment could have short-term adverse effects on certain resources, for example, air quality, its effects would be largely beneficial by restoring the ecological role of fire and protecting forests and communities from the significant adverse effects of large-scale, uncharacteristic wildfire.

The proposed amendment is aimed at restoring air quality (36 CFR 219.8(a)(2)(i) by serving to offset smoke emissions from large, uncharacteristic wildfires

 

When forest plans are revised, a more comprehensive approach should be taken.  This will give you an idea what the Inyo has done.

 

Court Upholds Access Fees at Maroon Bells (White River National Forest)

This article in Colorado Politics covers a case that seems to have gotten little other media coverage. What I like is that writer Michael Karlick picked out some key quotes from the decision, and gives us a flavor of it, without our having to read the whole decision. And while Jon Haber does an excellent job summarizing cases, not everyone interested in public lands issues (perhaps sadly) reads The Smokey Wire.

Thomas Alpern claimed that the Federal Lands Recreation Enhancement Act prohibits the government from charging a fee solely for parking at Forest Service sites. Congress allowed the agency to collect fees to reinvest in amenities for its parks. When amenities are present, like picnic tables, security, toilets and signage, the law allows for a fee. Parking at Maroon Bells is only free for the first 30 minutes, then ranges between $10 and $25.

Judge Gregory A. Phillips, wrote for the three-judge panel that the law “prohibits charging fees ‘[s]olely for parking . . . along roads or trailsides[,]’ something Alpern does not do. He parks in a developed parking lot featuring all the amenities listed”.

Alpern said that he goes on multi-day backpacking trips and only uses the parking lot. Therefore, he should not have to pay a fee for the other, non-used amenities. A district court ruled against Alpern and the circuit court affirmed, saying the exemptions to the fee were reserved for people who drive through the site without parking, who walk in, or who take boats or horses.

I appreciate Judge Phillips’ pragmatic bent:

“Conspicuously unlisted are visitors who park at a fee area and claim not to use any amenities,” wrote Phillips, skeptical of Alpern’s representation of his situation. “Though Alpern does not admit using the security services, he does so every time he parks in one of the three Maroon Valley lots….We see no realistic scenario in which he does not use the security services. What if a security officer notices a would-be thief breaking into Alpern’s car? Should the officer ignore the break-in, somehow divining that Alpern has silently disavowed the use of security?”

The case is Thomas Alpern v. Brian Ferebee and United States Forest Service.

Poster Child for Proposed NEPA Regs? The White River’s Berlaimont Estates Road Access Project

We’ve discussed the proposed NEPA regulations already here. They’re having two hearings on them, one in Denver today, and one in DC. Here is a basic story about what’s going on.

If you read the Presidential candidates’ list of things to do, it includes building massive green infrastructure (including on federal land) as quickly as possible. After all, it’s a crisis. Now many NEPA folks have never thought “emergency” and “EIS’s” go together very well. So you think that updating the regulations might receive broader support, as pointed out by Hudson Miller in this op-ed.

It should not require 13 years and the 16,000 pages that assessed the expansion of I-70 within its current alignment in central Denver.

Bruce Finley, of the Denver Post, selected an inholding road project on the White River (11 years? so maybe 13 is not so bad for the I70 expansion?) to illustrate his story on the proposed rule.

The showdown over President Donald Trump’s proposed trimming of environmental reviews for roads, bridges and pipelines under the nation’s foundational look-before-you-leap law hits Denver this week — just as that law guides a precedent-setting decision in western Colorado’s booming Vail Valley.

A Czech entrepreneur has requested a paved road through the White River National Forest, on protected habitat for rapidly declining elk, to allow the development of gated luxury estates on his 680-acre “inholding” of pristine high-country aspen meadows.

His push for a road to enable development on this inholding — private land surrounded by public forest — became so controversial that the U.S. Forest Service launched a years-long review under the National Environmental Policy Act, or NEPA, to consider possible harm.

For 50 years, the NEPA law has served as an environmental Magna Carta, obligating Americans to anticipate impacts before embarking on any major development projects involving the federal government, whether through funding, permitting or the work itself. It forces about 170 detailed environmental impact studies across the nation each year, and 10,000 lesser assessments, federal records show.

But White House officials, with support from the fossil-fuel industry and the U.S. Chamber of Commerce, are moving ahead with a revamp of how NEPA reviews are done and, on Tuesday, they’re holding a hearing at the Environmental Protection Agency’s regional headquarters in Denver. This overhaul stands out as the most ambitious step in Trump’s deregulatory agenda to help speed up development and infrastructure work by rolling back clean air and water protections.

The environmental review in western Colorado that has encompassed nearly a decade has led to careful vetting of the effort by Florida-based Czech entrepreneur Petr Lukes and co-owner Jana Sobotova to construct Berlaimont Estates, featuring 19 homes each built on a parcel of land 35 acres or larger. The project hinges on building a 26-foot-wide access road that rises 2,000 feet through forest.

Lukes declined an interview request from The Denver Post.

For the landowners, the fact-gathering, investigation and analysis of likely environmental impacts began with a process called scoping in 2009. The initial proposal was put on hold to work with Eagle County officials before intensifying NEPA reviews began in 2016.

“I don’t think we would have wanted any less thorough of an environmental review,” said Andy Hensler, a Colorado-based consultant that the property owners hired to navigate the process. “The review is important. And we have learned a lot through the process. We are looking at modifications, things we could do to lessen our impact.”

U.S. Forest Service supervisor Scott Fitzwilliams hasn’t revealed a decision yet, but emphasized in an interview that he’s bound by federal case law saying his agency must provide adequate access for owners of inholdings. An environmental impact statement, 400 pages long, is nearly done along with a draft final decision.

Strong opposition

Colorado opposition has been fierce, with thousands of residents petitioning the Forest Service to reject the road, pointing to the plummeting elk, the potential for recreational overload in a forest that is already the most visited in the nation, and a potentially costly precedent for catering to inholdings owners.

Elk herds across a broad area around the Vail Valley have decreased by 40% over 20 years and suburban-style development now covers much of the valley bottom.

State wildlife officials warned of problems as the review began in 2016. Gov. Jared Polis, U.S. Sen. Michael Bennet and Rep. Joe Neguse, all Democrats, last summer weighed in, urging close attention in a letter to Fitzwilliams, noting the road would mean changing a forest management plan to open up an area that’s been closed from November through May to help elk survive.

The year-round road and development also could threaten sensitive species, the leaders said, including lynx, cutthroat trout, sage grouse, brewer’s sparrows and delicate rare plants.

As an observer of many years of the Village at Wolf Creek, which I used to call the “Reasonable Access for Unreasonable People” project, it doesn’t seem precedent-setting at all if Supervisor Fitzwilliams decides to approve access.