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.

 

 

 

 

 

 

Blast From the Past: Heritage Forest Campaign Yesterday, Climate Forest Campaign Today

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One of the points I like to make about our forest policy world is that it is a great space for folks raising families and with other commitments. You can take a few years off (or possibly decades) and come back and not really miss much.  Thanks to the TSW reader who found this hearing from the year 2000.  If you swapped out “Climate Forest Campaign” for “Heritage Forest Campaign” and OG for Roadless, and  Biden for Clinton-Gore, and probably increased the budget figures, it sounds like the same thing, and I think the questions asked are still worth pursuing.  Sorry about the formatting.  This is just Chenoweth-Hage’s introductory statement, I didn’t read the rest, there are 128 pages. Might be other interesting stuff there.

Recently , one of the lead stories in Philanthropy magazine was about foundation funding of environmental organizations . Now , the article said that today foundations have much of the public agenda , and nowhere more so than in the area of environmentalism , where foundations collectively spend upwards of $ 500 million per year that we know of . 

Today we are here to analyze the relationship among large foundations , environmental groups , and the Federal Government in Federal public land management policy , in regards to recreation , timber harvests , mining , and other public lands issues . We will also explore the impacts of these policies on local communities . Environmental groups are relying more and more on a core of wealthy , nonprofit foundations to fund their operations . 

The largest environmental grantmaker – the $ 4.9 billion Pew Charitable Trusts – gives more than $ 35 million annually to environmental groups . Other large wealthy foundations such as the Turner Foundation , W. Alton Jones , and Lucile and David Packard Foundations , are not far behind Pew in their grantmaking to environmental groups . 

Foundations have funded environmental advocacy campaigns for more wilderness , curtailing timber harvests , and mining , breaching dams , and Federal control of ecosystem planning . An example of this type of activity is the Heritage Forest Campaign , the subject of an oversight hearing on February 15 , 2000 , by the Subcommittee on Forests and Forest Health .

The Heritage Forest Campaign , a coalition whose sole purpose appears to be lobbying the Clinton- Gore administration to implement the Roadless Initiative , which would withdraw up to 60 million acres of national forest lands from multiple use . This campaign is largely organized and funded by tax – free grants from charitable foundations such as the Philadelphia based Pew Charitable Trusts , with $ 4.9 billion in assets – the fifth largest U.S. charitable foundation . 

Now , since September 1998 , Pew has given the National Audubon Society more than $ 3.5 million in tax – free grants to organize the Heritage Forest Campaign , a coalition of about a dozen  environmental groups . The sole objective of the campaign appears to be the creation of widespread public support for the Clinton –  Gore administration’s initiative to restrict access on 60 million acres of national forest lands . 

The Heritage Forest Campaign illustrates several potential problems with foundation – financed environmental political advocacy , namely the lack of fair , broad – based representation , and the absence of accountability . Particularly disturbing is this administration’s acquiescence to the campaign in the setting of policy . 

At a recent hearing on the Roadless Initiative , I asked George Frampton , Director of the Council on Environmental Quality , for the names of all those attending any meetings he had held regardinging the development of the Roadless Initiative . The list he sent in response is a who is who in the environmental community . Even more telling is that not one individual representing recreation , industry , academia , county commissioners , or local schools were in attendance . Only representatives of the national environmental groups participated . 

Not only was the public excluded during these meetings , but so was Congress . The administration’s Roadless Initiative appears to be an attempt to bypass the role of Congress . Under Article IV , Section 3 , of the United States Constitution , Congress possesses the ultimate power over management and use of lands belonging to the United States . 

If the Roadless Initiative is universally popular , why can’t the Heritage Forest Campaign get it enacted by Congress through the normal legislative process ? Administrative directives , such as the Roadless Initiative , bypass Congress and centralize policymaking authority within the hands of unelected bureaucrats in the execu- tive branch . 

Foundation-funded advocacy groups make backroom deals , thus denying the average citizen a voice and input into the policy through their elected representatives in Congress . As a result , our Government becomes more remote and unresponsive to the needs of the average citizen . 

To whom is the Heritage Forest Campaign accountable? This campaign is put together by foundations, not the participants . The grantees are accountable to the foundations that fund them , not their own members . Foundations have no voters , no customers , and no investors . The people who run big foundations are part of an elite and insulated group . They are typically located hundreds or even thousands of miles from the communities affected by policies they advocate .

They receive little or no feedback from those affected by their decisions , nor are they accountable to anyone for promoting policies which adversely affect the well – being of rural people and local economies . Today’s witnesses will tell us how their communities are being crushed by an inaccessible and faceless movement , wielding great power and influence . 

The role of large foundations in funding environmental advocacy raises some fundamental questions . Foundation wealth shapes public policy at the expense of all counter views . Even worse , those skeptical of foundation – supported policies are often smeared by foundation –funded media campaigns in an attempt to marginalize them in the debate . Even alternative environmental solutions are rejected out of hand as environmental groups mold their programs and their agenda to please the large grantmakers . 

Does foundation – financed advocacy prevent full and fair public debate on public lands issues ? Is the average citizen’s voice and input in the government decisionmaking process drowned out by foundation – funded advocacy groups ? 

The most fundamental question of all is , what happens to the towns and communities affected by policies resulting from foundation – funded advocacy ? The people living in these communities are left with a ruined local economy . Their towns lack the income to provide even basic services . Their schools have no revenue to teach their children. 

The important issue here is whether the foundation strategies used to fund the environmental movement are buying undue influence for those groups on public lands policy . I believe it will become very clear during this hearing that this isn’t an issue concerning the environment , but rather one concerning power and its use for political ends , with rural communities being trampled in the process.

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Now, Rep. Chenoweth-Hage was appropriately concerned for rural communities as she represented Idaho.  At the same time, today, these policies influence all kinds of communities near Federal lands.  Another difference between then and now is our interest in the voices of Tribes, ethnic minorities and the poor and working class- marginalized communities.  How are these folks (say folks from poor rural communities)  represented on Boards and decision-making in these foundations?

“The important issue here is whether the foundation strategies used to fund the environmental movement are buying undue influence for those groups on public lands policy.” IMHO this question is still valid.

Finally, what is the endgame of these foundations, if they have one? Is it the same old “no oil and gas drilling, no mining, no grazing, no commercial logging, no OHV’s”?  I don’t know that we know, nor can I imagine who would have the political power to have that conversation.

Lawsuit Over 15 Acres on the Pisgah-Nantahala: New Forest Plans and Previously Approved Projects?

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Mature trees on Brushy Mountain in Nantahala National Forest in August. Photo: Jack Igelman / Carolina Public Press

I’d like to point out to any FS leadership who read TSW that folks on the Forest wouldn’t talk to me to tell their side of the story.  So they are being good employees.  Problem is, if it weren’t for retirees who happen to keep up with the details (retirees like this being rare and threatened by loss of interest), we would never hear the FS side- unless there is an objection response on the same points. Maybe this would be a good application for AI.. “find the FS statements about … in the EA, response to comments and objections.” Still, I don’t think the Cone of Litigation Silence is good for public understanding, trust and support.

Anyway, here’s a link to Jack Igelman’s recent article on the issue. You can follow him on TwitX @ashevillejack.  I’m not a legal person, as everyone knows, so there are some quotes from me that are off the top of my head about why these 15 acres are of concern.  Conceivably with the same funding invested, the plaintiffs could buy their own 15 acres and manage it however they wanted.  Maybe our friends at SELC will weigh in.  Kudos to Jack for reading the EA!

The agency is obligated to manage the forest along the Whitewater River as a wild and scenic river corridor, which limits management options. However, timber harvesting is allowed to occur as long as it does not harm the river’s outstandingly remarkable values or degrade its water quality. The wild and scenic corridor extends about one quarter-mile on each side of the river.

“This timber prescription takes it backwards,” said Nicole Hayler, executive director of the Chattooga Conservancy. “The Forest Service has a track record of management activities in eligible areas to basically whittle away at the eligibility.”

Will harvesting “harm the values” or “whittle away at eligibility”?  I don’t think we can judge without the prescription. (NHP is the natural heritage program.)

In the Southside Project’s final Environmental Analysis released in 2019, the Forest Service included a response to objections that the project analysis failed to analyze impacts to state natural areas.

The NHP determined that portions of the stand are dominated by white pine, an artifact of previous land use that is not naturally occurring.

According to the NHP, “It would be beneficial to remove the white pines from this stand, and then manage the area after harvest in such a way to restore the natural community” while acknowledging that some areas along the Whitewater River are in excellent condition.

The NHP did not respond to CPP’s interview request.

But if it’s good to remove the white pines, then maybe taking some more trees and getting openings for the “natural community” is a good idea.  Again, it would be nice to see the prescription.

The timber harvest prescriptions for the tract “require harvesting much more than white pine,” SELC attorney Patrick Hunter said. “We can say with certainty that the NHP’s request to limit logging to white pine is not reflected in the Forest Service’s final decision.”

But did the NHP say to limit the logging to WP? What other species are there? Is taking out the WP and other species an opportunity to increase tree species diversity or wildlife habitat?

Although the lawsuit includes a relatively small parcel of land, Friedman said that the court’s ruling could establish legal precedent around the influence of new forest plans on projects initiated and authorized under prior plans.

“The same groups who didn’t want certain projects before will still not want them” after a forest plan is finalized, she said. “If they feel strongly enough about them and have the financial wherewithal, they will litigate those projects. That’s just the way it works for most of the country; it’s business as usual. “

Litigating forest restoration projects in the Forest Service’s Southern region, however, are less frequent compared to other parts of the country, such as the Northern or Pacific Southwest region. There has been just one forest restoration project litigated in the Southern region which stretches from Texas to Virginia since 2003.

Hunter told CPP this is the first time SELC has initiated litigation against the Nantahala or Pisgah National Forest.

Whether the case is settled inside or outside of court, Friedman said changing an existing agency decision may set a precedent for other projects and other national forests.

According to Hunter of the SELC, the lawsuit seeks to validate the understanding that activities occurring within the national forest must be consistent with the current forest plan.

He noted that the complaint could reinforce existing precedent citing a 2006 decision against the Cherokee National Forest in Tennessee in which the court ruled that a timber harvesting and road building project must be made consistent with a revised forest management plan that went into effect after the projects’ authorization.

The legal action reflects broader concerns about balancing the need for timber harvesting to restore the ecology of the forest while preserving ecologically significant areas and underscores the complexities of managing public lands.

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Of course, the Cherokee NF is indeed in Region 8, so I guess the difference is whether the project is a “restoration” project or a “logging” project.  I would only offer that what the FS sees as a restoration project (with tree removal), other entities often see as a “logging” project.  This is a real side trip-  but I ran across a paper by Miner et al. from 10 years ago (no paywall) that had this graph. The authors characterized these as “land management” cases, not necessarily vegetation management cases.

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David Whitmire, of the Fish and Wildlife Conservation Council, which represents the interests of fishers and hunters in Western North Carolina, said the lawsuit could, however, slow down forest-restoration work.

“I would rather see money spent on projects rather than lawyers,” Whitmire said. “The Forest Service is having to back up and deal with the lawsuit. It takes away a lot of resources that would otherwise benefit the forest.”

I’d only add that if this case sets precedent for forest plans being retroactive for ongoing previously approved projects, I think it might have two effects: first that Forests will not want to do plan revisions. When I worked in Region 2, many forests were not enthused about plan revisions anyway (reopening large numbers of disagreements to what end?).   Second is that if they are in revision, they would seemingly be less inclined to give areas with ongoing projects more restrictive designations.  It seems that both of these co-evolutionary responses by the FS would be against what plaintiffs would ultimately prefer.

But perhaps the plaintiffs will weigh in.

Sierra Club Agrees with “Right Wing Groups and R Politicians” on NACs: NY Times Article

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I always like it when seemingly unusual combinations of people agree.  Here’s an NY Times story. Their headline is a little different from mine (it’s an economic reporter in the economy section).

Nature Has Value. Could We Literally Invest in It?

“Natural asset companies” would put a market price on improving ecosystems, rather than on destroying them.

We’ve discussed this before.. what could go wrong with the financial industry getting involved in land management? They’ve done so well with the mortgage industry. And at that time, their regulators were either in bed with the regulated, and/or asleep at the wheel.  But since they apologized and paid everyone back, we should give them a second chance.  They didn’t?

If there are willing buyers and sellers, conceivably the buyers could get more from selling ecosystem services without folks at financial markets taking their cut. It’s interesting that in the first few paragraphs, it’s characterized as “right-wing groups and R politicians are against it and “even” conservationists wary of Wall Street. Note also that Mr. Eger has the chance to respond to concerns in the article; it’s interesting to see who has a chance to respond and how far the back and forth goes.   Also the public lands question isn’t mentioned, which I think caused the concern of western R’s.

Picture this: You own a few hundred acres near a growing town that your family has been farming for generations. Turning a profit has gotten harder, and none of your children want to take it over. You don’t want to sell the land; you love the open space, the flora and fauna it hosts. But offers from developers who would turn it into subdivisions or strip malls seem increasingly tempting.

One day, a land broker mentions an idea. How about granting a long-term lease to a company that values your property for the same reasons you do: long walks through tall grass, the calls of migrating birds, the way it keeps the air and water clean.

It sounds like a scam. Or charity. In fact, it’s an approach backed by hardheaded investors who think nature has an intrinsic value that can provide them with a return down the road — and in the meantime, they would be happy to hold shares of the new company on their balance sheets.

Such a company doesn’t yet exist. But the idea has gained traction among environmentalists, money managers and philanthropists who believe that nature won’t be adequately protected unless it is assigned a value in the market — whether or not that asset generates dividends through a monetizable use.

The concept almost hit the big time when the Securities and Exchange Commission was considering a proposal from the New York Stock Exchange to list these “natural asset companies” for public trading. But after a wave of fierce opposition from right-wing groups and Republican politicians, and even conservationists wary of Wall Street, in mid-January the exchange pulled the plug.

That doesn’t mean natural asset companies are going away; their proponents are working on prototypes in the private markets to build out the model. And even if this concept doesn’t take off, it’s part of a larger movement motivated by the belief that if natural riches are to be preserved, they must have a price.

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A scam with the best of intentions for using the money is still.. a scam.  Was the SBF trial so long ago?

So in 2017, Mr. Eger founded the Intrinsic Exchange Group with the goal of incubating natural asset companies, NACs for short. Here’s how it works: A landowner, whether a farmer or a government entity, works with investors to create a NAC that licenses the rights to the ecosystem services the land produces. If the company is listed on an exchange, the proceeds from the public offering of shares would provide the landowner with a revenue stream and pay for enhancing natural benefits, like havens for threatened species or a revitalized farming operation that heals the land rather than leaching it dry.

If all goes according to plan, investments in the company would appreciate as environmental quality improves or demand for natural assets increases, yielding a return years down the road — not unlike art, or gold or even cryptocurrency.

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Unexpected Headwinds

Mr. Eger was dismayed. The most powerful forces arrayed against natural asset companies were people who wanted land to remain available for uses like coal mining and oil drilling, a fundamental disagreement about what’s good for the world.

OK, well for sure I’m not a powerful force.  But are we willing to take Mr. Eger’s word for the “forces arrayed against” the idea? Might they have interviewed one of the R politicians for example?

But opponents also made spurious arguments about the risks of his plan, Mr. Eger said. Landowners would decide whether and how to set up a NAC, and existing laws still applied. What’s more, foreign governments can and do buy up large tracts of land directly; a license to the land’s ecological performance rights would create no new dangers.

There is also pushback, however, from people who strongly believe in protecting natural resources, and worry that monetizing the benefits would further enrich the wealthy without reliably delivering the promised environmental upside.

“If investors want to pay a landowner to improve their soil or protect a wetland, that’s great,” said Ben Cushing, the director of the Sierra Club’s Fossil-Free Finance campaign. “I think we’ve seen that when that is turned into a financial asset that has a whole secondary market attached to it, it creates a lot of distortions.” Another environmental group, Save the World’s Rivers, filed a comment opposing the plan partly because it said the valuation framework centered on nature’s use to humans, rather than other living things.

To Debbie Dekleva, who lives in Ogallala, Neb., the prospect that a natural asset company could enroll large tracts of land seems like a very real threat. For 36 years, her family has worked to commercialize milkweed, a wild plant that produces a strong fiber and is the only thing that the caterpillars of imperiled monarch butterflies will eat. Ms. Dekleva pays local residents to collect the pods from milkweed stands with permission from friendly landowners, and then processes them into insulation, cloth and other products.

That sounds like a type of business that might contribute to a NAC’s value. But Ms. Dekleva suspects that she wouldn’t be part of it — faraway investors and big companies might lock up the rights to milkweed on surrounding land, making it harder for her to operate.

“I think that whoever writes the rules wins,” Ms. Dekleva said. “So let’s say Bayer is doing regenerative agriculture, and they’re going to say, ‘And now we get these biodiversity credits, and we get this, and we get this, and we get this.’ How does someone like me compete with something like that?”

Such opposition — the kind that stems from deep skepticism about financial products that are marketed as solving problems through capitalism, and questions about who is entitled to nature’s gifts — may be hard to dislodge.

Maybe, just maybe, this isn’t really an R/D breakdown.. remember Occupy Wall Street? Also I think PERC is fairly pro.

Mr. Eger said he built safeguards into the proposed rule to guard against concerns like Ms. Dekleva’s. For example, each company’s charter is supposed to include an “equitable benefit sharing policy” that provides for the well-being of local residents and businesses.

It sounds like “trust us, things will be swell.”  Trust is a function of transparency and accountability for Wall Street, just as much as for wildfire practitioners.

For now, Intrinsic will seek to prove the concept in the private markets. The company declined to disclose the parties involved before the deals are closed, but identified a few projects that are close. One is attached to 1.6 million acres owned by a North American tribal entity. Another plans to enroll soybean farms and shift them to more sustainable practices, with investment from a consumer packaged goods company that will buy the crop. (The pilot project in Costa Rica, which Intrinsic envisioned as covering a national park in need of funding to prevent incursions from arsonists and poachers, stalled when a new political party came to power.)

And the concept remains attractive to some landowners who’ve managed to wrap their heads around it. Take Keith Nantz, a cattle rancher who has been trying to build a vertically integrated, sustainable beef operation across the Pacific Northwest. He and a few partners would like to move to less chemically intensive grazing practices, but banks are hesitant to lend on a project that could reduce yields or jeopardize crop insurance coverage.

A natural asset company could be a piece of his financing puzzle. And to Mr. Nantz, the opposition comes mostly from a place of fear.

“There’s nothing being forced by a government or state or organization to be a part of this or not,” he said. “We can choose to be a part of this, and hopefully it’s a great opportunity to bring some capital.”

Again, the public land part is not mentioned. This seems like an unusual oversight for the reporting.

(The pilot project in Costa Rica, which Intrinsic envisioned as covering a national park in need of funding to prevent incursions from arsonists and poachers, stalled when a new political party came to power.)

Why don’t people just give the park money to prevent incursions (hire people to do a potentially dangerous job)?  Why does it need to go through a complex financial instrument with intermediaries getting their cut?  It seems to me that, generally, the history of complex financial instruments has not been good.

Pumped Hydro, FERC and Policy that Tribes Approve Projects on Tribal Lands

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In this story,

Federal officials Thursday denied preliminary permits for multiple pumped storage hydroelectric projects proposed on the Navajo Nation that would have required vast sums of water from limited groundwater aquifers and the declining Colorado River, citing a lack of support from tribal communities.

In the order, the Federal Energy Regulatory Commission announced it was implementing a new policy requiring that any project proposed on all tribal land must gain the respective tribe’s consent to be approved, a move that local tribes, opposed to the proposed hydroelectric projects, had been calling for. The decisions pave the way for increased tribal sovereignty in energy-related projects seeking federal approval across the country.

“This is a federal commission acknowledging tribal sovereignty,” George Hardeen, a spokesman for the Navajo Nation president’s office, said. “If a company wants to do business on the Navajo Nation, it, of course, needs to talk to and get the approval of the Navajo Nation. And in the eyes of FERC, that has not yet happened.”

I notice the caveats “all Tribal land” so maybe not where projects are partially on Tribal land?  It seems to me like Tribes should be able to approve any projects on Tribal land.  Maybe some readers in the legal space can help clarify.   And what energy projects does FERC regulate exactly? Transmission?

If  energy policy were only linear and rational.. first we’d ask Tribes and locals and environmental organizations what kind of build out they want, and the impacts on critters, plants and water supplies, and then assess what energy sources and transmission would best avoid those areas and impacts.  Seems like proposing a seemingly endless series random projects (some pumped hydro storage here, some geothermal there) and getting shut down project by project is not going to resolve the climate emergency anytime soon.

Anyway, the story is interesting and not paywalled so I recommend reading the whole ting.  No paywalls seems to be the case for news funded by foundations because they want their version of the news to get out there.  I’m just noticing a pattern here, as my media bills go up and my access to media goes down.

 

Horses, Mules Still Vital to Forest Service Meeting its Mission and the Rocky Mountain Region Horse Whisperer

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crosby davidson
Elaine Collins/Special to The Daily Sentine lCrosby Davidson with the Shoshone Specialty Pack String is shown on a pack trip into the Eagles Nest Wilderness in Colorado in 2022 with materials for a bridge.
Interesting article from the Grand Junction Sentinel

U.S. Forest Service employees who gathered for a training in Rifle earlier this month weren’t there to learn about how to make use of newfangled things such as drones or artificial intelligence to do their jobs.

Rather, they were learning more about a resource that was vital to the Forest Service getting work done even in its early days and remains important today. And there to lead the lesson was Crosby Davidson, appropriately attired in chaps, boots and a cowboy hat.

“We affectionately call Crosby the horse whisperer for the Rocky Mountain Region” of the Forest Service, said Scott Woodall, lead rangeland ecologist for the White River National Forest.

Davidson is the lead packer for what’s called the Shoshone Specialty Pack String, a team of horses, mules and packers based out of the Shoshone National Forest in Wyoming. By virtue of its high level of experience and expertise, the team serves as a regional resource for the Forest Service when it comes to both higher-demand forest packing projects and training in the skills of horsemanship and packing.

In Rifle, Davidson was leading horsemanship instruction for employees from various parts of the White River National Forest with a range of experience, or lack thereof, in the subject.

He said that traveling around the Forest Service’s Rocky Mountain region, he occasionally runs into people who are surprised and interested to learn that the Forest Service has always had a pretty robust horse program, especially in areas with large areas of wilderness or roadless areas where vehicle access can’t be used to get materials and people into them.

“People seem pretty excited sometimes when we pull into the trail head and explain it to them,” Davidson said.

Woodall, whose job includes managing what the White River National Forest calls its livestock program, said 55% of the forest’s 2.3 million is wilderness or roadless acreage.

“Our livestock is the main means of transportation into our high country,” he said.

He said the program currently consists of 15 horses and mules, with animals based out of Rifle, Meeker and Eagle County. The animals can be used for carrying in materials for things such as trail, bridge and fencing projects, and for ferrying out old materials, as well as other things such as trash left behind by forest visitors.

Woodall said the animals are valuable in helping agency ecologists, biologists, foresters and other scientists and specialists access the high country more easily than on foot, while also bringing along all the tools, equipment, food and other supplies they might need for perhaps a week-long trip.

“The first thing in land resource management is getting to where you need to go to see the land,” he said.

He said scientists need to do things such as dig into soils, examine plants and insects up close, and sometimes even employ senses of touch, smell and taste to do their jobs, and using something like a drone can’t replace being there in person.

“I don’t think anything will ever take the place of actually being on the ground,” he said.

But it’s also important to get there and back safely, which is a major reason for providing horsemanship training and certification for employees. During the three-day class at the Garfield County Fairgrounds, Davidson and a second instructor led students through fundamentals of saddling and bridling horses, and the basics of riding them, steering them, getting them to speed up and slow down, and so on.

“It’s a lifetime of learning,” Davidson said. “You can’t get it done in three days, but you can get the building blocks started.”

Davidson has spent a lifetime himself being around horses and learning from them. As a youth he packed with his parents into the Wind River Range in Wyoming for their outfitting business. He started packing as a seasonal employee for the Forest Service right after high school and got his first permanent job on the Shoshone forest as a trail crew foreman, doing a lot of packing to get materials on-site. He has had his current job for several years.

“I can’t get enough of horses and mules, so I’ll tolerate the trail work in order to be able to be around horses and mules. I don’t like swinging a pick quite as much as I like riding a horse but they’re both really good jobs and just being in the woods is really nice,” he said.

As he spoke, he occasionally stroked the head of one of his team’s horses named Slim, while Slim occasionally champed at a bit the horse was still getting used to.

“I really like Slim. Slim’s very curious. He’s very willing. He’s always willing to try to get the job done,” Davidson said. “He’s always searching for the right answer. He’s the kind you want; he’s one of the good ones for sure.”

He said other horses can be harder to communicate with, but all horses have their strengths and weaknesses.

“That’s the fun part, is when you get to something that’s challenging you, you’re really having a hard time communicating with your horse and getting your point across to them, it’s usually the horse that teaches you how to get through that,” Davidson said.

He said he loves participating in trainings because no matter how long he’s been doing them, there’s always something to learn from other people and the horses.

“My hope is that some folks will take stuff away from this but I know for a fact that I will,” he said. “I always do. I always learn something.”

He said that while he spends the winter and spring teaching, when the snow is melted the Shoshone Specialty Pack String keeps busy traveling around the Forest Service Rocky Mountain Region doing projects. It fills in in areas where the Forest Service doesn’t have a local stock program, or for larger projects, which can involve things such as blasting or bringing in larger materials for things such as bridge construction.

As one example, the Shoshone outfits’ mules are more used to safely packing long timbers than often is the case for other animals.

“We can pack 8- to 10-foot timbers, which is kind of a scary thing for a horse or mule to do for the first time,” he said.

Woodall said the Shoshone pack string is scheduled to carry a big load out of the Flat Tops this summer; he said he thinks the load will involve old fencing. He said some local forest employees also will be there to learn from the experience.

Leeann Veldhuis, district ranger for the Eagle-Holy Cross Ranger District, participated in the recent training and said her previous experience riding horses was limited to a couple of tourist-type rides while on family trips as she was growing up. She appreciated the fundamentals she learned in Rifle.

“I’ve learned a ton. A lot of it is understanding the horse and the horse’s mentality and how I as the person have to approach the horse and interact with the horse to get him or her to do what I’m looking for them to do,” she said. “They’re another living creature and it requires a communication style that we’re not used to because they’re an animal.”

Veldhuis views the ability to ride a horse as helpful in being able to get out with her range permit administrator to meet grazing permit holders in range allotments that just in her district cover about 450,000 acres, some of it in wilderness.

“That’s obviously a lot of ground to cover and learn about, and understand what’s happening out there on the ground,” she said.

She appreciated the opportunity to learn from experts from the Shoshone pack string.

“It’s been a really unique and I think meaningful experience for all the staff here who got to participate in one of the oldest Forest Service activities that there is,” Veldhuis said.

“Horsemanship, horse riding — it’s been here since the beginning.”

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Please feel free to add your own FS horse or mule stories below, or email them and I will post on Story Saturdays.

Firefighter Pay: Something We All Agree on? Op-ed by Steve Ellis

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Mad River Hotshots set out in the morning to work on the Smith River Complex in Oregon in September.
Inciweb

Many of our public policy issues are too important to fall prey to “death by partisan tomfoolery.”  Firefighter pay is one of them.  Probably too “small” in the eyes of some to be anything more than a political football; maybe, just maybe, it’s the right size to be influenced by folks like us reaching our to our Congressional folks, Tweet Xing, or however people think they might influence the process.  Here’s an op-ed by Steve Ellis of the National Association of Forest Service Retirees in the Bend Bulletin. If you can’t access the link, try different devices/browsers, I’ve had success with some but not others.

Wildland firefighter pay is not a partisan game

Our federal wildland firefighters need our help, and time is of the essence. The Infrastructure Investments and Jobs Act of 2021 provided funding to increase base salaries for federal wildland firefighters up to $20,000 or 50% of their current wages in an effort to address historically and comparatively low pay and widespread staffing shortages. However, without action, that funding expired in September 2023. Although Congress extended the current funding levels through the three separate stopgap measures, they have yet to pass a permanent solution, and the next congressional deadline for a solution is March 1. The National Federation of Federal Employees estimates up to half of wildland firefighters might possibly leave the federal service if Congress does not permanently secure their pay and benefits.

The National Association of Forest Service Retirees is dedicated to sustaining the Forest Service mission by adapting to the challenges of today and tomorrow. We believe Congress and our country should work to ensure that these brave men and women who put their lives on the fireline to protect human life, our communities, watersheds, wildlife and fisheries habitat, and other forest and rangeland values, should not have their employment fraught with financial insecurity and instability. Their commitment and sacrifice should allow them to provide a living wage for themselves and their families.

Forest Service Chief Randy Moore recently met with our organization’s board of directors and told us that many federal firefighters cannot afford housing, and some are even living out of their cars. We understand that such a pay reduction could amount to up to $20,000 for some of these firefighters, forcing them to leave personal and family decisions in the hands of Congress. Alternatively, many might leave the service for more assured compensation and stability. Solidifying these benefits would help to successfully implement the National Cohesive Wildland Fire Strategy and the recommendations from the Congressional Wildland Fire Commission. At the most basic human level, it’s simply the right thing to do.

This is one of the factors that can contribute to a shortage of federal wildland firefighters, and the timing couldn’t be more important. While we may not yet be in the thick of wildfire season, agencies are actively finishing the recruiting for the upcoming season. Timeliness is important for meeting the hiring demands for the needs for this summer. This is not a United States issue alone. Last year the federal wildland fire community responded across Canada to support our northern neighbors and personnel have been assisting in Chile. Our international agreement with Australia and New Zealand is ready for implementation.

It could be argued that the longer Congress waits, the more our elected officials are putting our communities at risk. This shouldn’t be another “partisan game” over which party will get their way. We are talking about real communities that could be left without adequate services due to insufficient staffing, or firefighters leaving the service. We are talking about real men and women with a duty to provide for their families. We are also talking about putting our firefighters in harm’s way by stretching them too thin. We are conceivably talking about life-and-death consequences for firefighters and anyone who lives within the possible reach of wildfires as a result of Congress’ inaction. For Oregonians, that’s most of us.

It’s time for Congress to fix this issue, permanently.

Steve Ellis is chair of the National Association of Forest Service Retirees and lives in Beavercreek, Oregon.

Wrestling with the Moose Fire Story Map: Window into Suppression Strategies and Tactics

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If you read various news outlets, they are always saying (as are our insurance companies) that wildfires will get worse due to climate change.  Meanwhile the USG is spending beaucoup bucks on new technologies (e.g early detection, drones, etc.), prescribed fire, fuel treatment, PODs and so on.  The technologies are likely to trickle down to those of us away from federal lands. I think it would be more honest to say “the climate is changing, and we’re working hard on managing fire better, so we don’t know if the end result will ultimately be more, less or the same.

What I’ve noticed, though, from these kinds of stories and academic studies, is that the role of fire suppression folks is generally not considered.  It’s not like hurricanes or floods.. there are not hurricane stoppers or flood stoppers, yes there are various long-term strategies to reduce damage, but not people who know a lot about how it works in the thick of things (oh, and with questionable pay).

Thanks to a colleague who shared this excellent story map on the Moose Fire!  Especially for you TSW readers who aren’t familiar with suppression efforts, or those for whom it’s been awhile, I point you to the videos of the Fire Management Officer, the Fire Behavior Analyst, the Incident Commander and their roles and how they went about dealing with the fire; and the concerns and roles of those in the community .

 

 

 

Forest Service warns of budget cuts ahead of a risky wildfire season

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From The Conversation: “Forest Service warns of budget cuts ahead of a risky wildfire season – what that means for safety.” By a pair of professors from Colorado State University. Excerpt:

Staffing is still a concern

Doing this work requires staff, and the Forest Service’s challenges in recruiting and retaining qualified firefighters may hinder its ability to accomplish all of its objectives.

In 2023, over 18,000 people were employed as federal wildland firefighters. While the Forest Service and Department of the Interior have not specified precise staffing targets, Moore has mentioned that “some crews have roughly half the staff they need.”

A recent Government Accountability Office report found that low wages and poor work-life balance, among other challenges, were barriers commonly cited by federal firefighting employees. The government boosted firefighters’ pay in 2021, but that increase is set to expire unless Congress votes to make it permanent. So far, firefighters have kept the same level of pay each time Congress pushed back acting on the 2024 budget, but it’s a precarious position.

The agency has started many initiatives to recruit and retain permanent employees, but it is too early to assess the results. A recent study involving one of us, Jude Bayham, found that highly qualified firefighters were more likely to remain with the agency after active seasons, during which they earn more money.

Sara C.’s Answers on PM 2.5, and Happy Valentine’s Day!

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It’s Valentine’s Day, and I would like to give a special Smokey Wire Valentine to Sara C., who answered my questions on the PM 2.5 Rule in a very clear and concise way.  In case you didn’t read it in the comments, here are her answers.  As hard as our regular contributors work, we can’t keep up with everything of interest, and so that’s why we all appreciate folks who step up with their knowledge.  Here’s what Sara had to say in this comment link.

Hi all – I’m an environmental attorney and work with a number of prescribed fire and cultural burning advocates on these issues. Here are the brief answers to Sharon’s questions:

(1) What new things do wildfire folks have to do (if anything)? The Clean Air Act puts the onus on state air pollution control agencies, not wildfire folks. With a stricter standard, more air basin will fall into “nonattainment” for PM2.5 (from both wildfire and other pollution) – these new designations will be made by February 2026. For those areas in nonattainment, the air agencies/states will have to come up with “state implementation plans” to demonstrate to EPA how they’ll come back into compliance. Those “SIPs” will be due in August 2027.

The wrinkle is that wildfire smoke can also be “excluded” from consideration using a process called the Exceptional Events Rule. It’s still the air agencies that are responsible for preparing Exceptional Events “demonstrations”, but they may look to wildfire folks for help with data, etc. Once “excluded,” then the wildfire smoke doesn’t count for regulatory purposes.

(2) What new things do prescribed fire folks have to do (if anything)? It depends whether your state falls out of attainment, and if so, how your state chooses to come back into attainment through the SIP. Some states may choose to make permitting for prescribed fire more difficult in response, or may require prescribed fire practitioners help with exceptional events demonstrations if they get permits. For now, prescribed fire practitioners should be paying attention to how their states are going to respond, and work to make sure that smoke from prescribed fire isn’t the source that’s targeted for curtailment.

(3) Does EPA think “hey since we have wildfires (this year? over time? future using computer models?) and prescribed fire, and then we have to ratchet all other activities further down (e.g. industry, cars, etc.)? Under the Clean Air Act, EPA leaves the targeting of specific sources to the states. Some states may want to use it as a reason to ratchet down other activities, some states may chose to ratchet down prescribed fire instead. There are some unique incentives though, given that wildland fire and prescribed fire can be excluded via an exceptional events demonstration, and traditional sources of pollution cannot.

(4) What does it mean in practice to deal with Exceptional Events? What is a demonstration? The Exceptional Events Rule is the part of the clean air act that allows states to exclude certain emissions. Generally speaking, the CAA regulates the “ambient” air quality — no matter the source, states can be on the hook exceedances of the standards. But the CAA recognizes that states sometimes have no control over a particular source, and therefore shouldn’t be penalized for it – the prototypical examples are dust storms and wildfire. In 2016, the EPA revised the regulations for exceptional events to make clear that prescribed fires might also qualify, but until the demonstration above, this path had never been used. The main reason is that exceptional events demonstrations — i.e., the name for the pathway to get EPA to agree to exclude the data — are technically complicated and resource intensive. The one referenced above took experienced EPA staffers 3 months. So instead of agreeing to let a prescribed fire happen and then preparing to file a difficult and uncertain exceptional events demonstration, air regulators may simply deny or condition prescribed fire permits so no exceedance is likely.

(Note, I edited the last sentence a bit, I’m hoping that’s what she meant and that she will comment if it’s not.)

Anyone else who would like to add information or links, please add below.

Commenter Shaun recently pointed out that many of the policy changes he’s seen, for the last little while (he mentioned 38 years), have tended to centralize decisions.  Of course, there has always been a partnership between the Feds and States with regard to the Clean Air Act.  What is also  interesting to me to watch is Agency Encroachment in the form of EPA seeming to get regulatory tentacles further into everything else (energy production, WOTUS, plant genetics, fire retardant) while at the same time saying they don’t have enough budget or employees.   It would indeed be a paradox if EPA is very worried about climate change, but also makes more difficult our efforts to protect ourselves from those same negative impacts. Anyway, I think watching new policies as to what more work is involved, and who makes the decisions, will be a worthwhile exercise.