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.

The Importance of Open Disagreement to Science, and Why Mean Tweeters Like Mann are Missing in Forest Science

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The Mann trial was supposed to be  part of Roundup #2, but as you can see below, I got a bit carried away.

I read an op-ed this week by Loolwa Khazzoom, who said:

We are all pieces of a highly complex puzzle. When we listen instead of project, discuss instead of argue, and have a goal of learning instead of winning – approaching dialogue with an attitude of curiosity and discovery – we can benefit from the unique life experience and thought process that we each bring to the table.

Which is my belief as well. Otherwise I wouldn’t spend so much time on The Smokey Wire and similar efforts. Also this week, I followed along on the highly entertaining podcast Climate Change on Trial presented by the Unreported Story Society. I think it’s safe to say that Michael Mann, the climate scientist and plaintiff in the defamation lawsuit against two bloggers, Mark Steyn and Rand Simberg, would not agree with that statement on the utility of listening and “approaching dialogue with an attitude of curiosity and discovery.”

At first, I thought the trial was a bit ridiculous. As if what two random bloggers wrote could actually defame Mann any more than a cursory examination of his Twitter feed, and that that would effect his financial remuneration in terms of research grants. Were they kidding? Then it turned out that this defamation biz had been going on for 12 years (!), and no one knows who is paying Mann’s court fees. My view is that in a just world, the jury would have awarded the past 12 years of legal fees to Steyn and Simberg. Of course, as a random blogger myself, maybe I’m being too sensitive. But it was OK, I guess, because according to the Hill, these guys are “right-wing” bloggers and I’m not.

So, at first, I was glad that scientists in our forest fields generally don’t behave that way. And I wondered if a podcast on some of our fuels treatment court cases with key parts being reenacted would be as entertaining. But as we delved into the Mann Tweets and emails, I wondered “how could that level of meanness be tolerated?” and “why was it OK for him to do what most of us would never consider doing?,” and “whose job is it to keep our convos civil, if anyone?”

The story of how all this developed was fascinating, at least to me. For those of you who don’t know, Mann was famous for the hockey stick graph, splicing together various measures of past temperatures including our very own tree rings. When someone asked for the data, he was unwilling to part with it, at least at the beginning. He clearly wasn’t a fan of FOIA either, forwarding a message to others to delete emails. The release of the Climategate emails was not a good moment for him.  If you were to ask him, I’m sure that he saw these as efforts to impugn climate science, and (thus, naturally, to him) he became combative in its (his own) defense.  It became a “good guys vs. bad guys” thing, with him, naturally, on the self-defined “good guys” side.

At the same time, you or I could also say that science should stand up to independent scrutiny, and that if someone wants the original data, they should be able to access it. I don’t think that that would be a big problem in forest science world. So what happened here? Perhaps Mann felt that the stakes were so high, it makes usual scientific practices and conduct obsolete. Some of us might say that that correlates at .99 with his self-interest, so.. But on the other hand, billions of dollar have been spent on climate science and Mann is just one of millions of climate scientists around the world, so the hockey stick is not all that important at the end of the day. But that’s today, and perhaps not when the posts were posted.

I started to think “what went wrong here?” and “are there lessons for us in less-favored and financed disciplines to learn?” Many of us belong to scientific and professional societies, universities and agencies, with codes of conduct that incorporate ideas like collegiality and respectful communications.

Dr. Curry (she of Mann’s so-called “slept her way to the top” email to Gavin Schmidt at NASA) drafted a complaint which she never sent:

“This defamation is affecting my academic reputation and my ability to conduct business. I note that I am far from the only person being attacked and libeled by Dr. Mann.
Penn State Policy AD47 (General Standards of Professional Ethics) states that professors have obligations as members of the “community of scholars” and are required to “respect and defend” free inquiry by other members of the community and to show “due respect” for the opinions of others:

IV.As colleagues, professors have obligations that derive from common membership in the community of scholars. They respect and defend the free inquiry of their associates. In the exchange of criticism and ideas they show due respect for the opinions of others.

“The policy also states that researchers are required to be “open-minded when evaluating the work of others” even if that may “contradict their own findings”:

III…. As open-minded researchers, when evaluating the work of others, they must recognize the responsibility to allow publication of theories or experiments that may contradict their own findings, as only by free inquiry and dissemination of all facts will the fruits of the labor of the whole community be allowed to mature.

Policy HR64 says (my bold) that faculty members have “special obligations” as persons of learning and as educators and are obliged to “exercise appropriate restraint” and “to show
respect for the opinions of others” Faculty members are citizens, members of learned professions, and representatives of this University. When the faculty member speaks or writes as a citizen, the faculty member shall be free from institutional censorship or discipline, but the special position in the community held by the faculty member imposes special obligations. As a person of learning and an educator, the faculty member is expected to remember that the public may judge the profession and institution by his/her utterances. Hence, the faculty member agrees at all times to be accurate, to exercise appropriate restraint, to show respect for the opinions of others, and to make every effort to indicate that he/she is not an institutional spokesperson.”

Curry didn’t send it to Penn State because, as she says in her post .

“after all, the damage to my career was already done and I wasn’t clear where this would lead or whether it would have any effect.”

I wonder how Mann could have acted against these rules for so long with no one calling him on it.  I wonder if the folks he emailed (work emails) ever said, “hey, I’m not interested in gossip about our colleagues’ sex lives”,” or “maybe you should tone it down on  Twitter” or “I’m not sure we should try to evade FOIAs and delete emails.” From the court records, it sounded like a few people did.  If more had done so, could this all have turned out differently?

And how did he get awards from prestigious organizations for “science communication?” Was anyone reading his Tweets?

“I am truly humbled to receive the Stephen Schneider Award for Outstanding Climate Science Communications,” said Mann. “While none of us can fill the very large shoes Steve left behind, we can honor his legacy by doing our best to inform the public discourse over human-caused climate change in an objective, clear and effective manner.”

I don’t blame Mann for all of this.   People don’t always behave well when left to their own devices. This is a fact of human nature. That is why we have laws, law enforcement, codes of conduct and enforcement protocols.  It is the role of institutions to enforce their own rules.  And yet they apparently are not, at least in certain cases.

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Having listened to the podcast of the case, I was amused by this NPR story:

In a D.C. courtroom, a trial is wrapping up this week with big stakes for climate science. One of the world’s most prominent climate scientists is suing a right-wing author and a policy analyst for defamation.

The case comes at a time when attacks on scientists are proliferating, says Peter Hotez, professor of Pediatrics and Molecular Virology at Baylor College of Medicine. Even as misinformation about scientists and their work keeps growing, Hotez says scientists haven’t yet found a good way to respond.

“The reason we’re sort of fumbling at this is it’s unprecedented. And there is no roadmap,” he says.

**********

Imran Ahmed, chief executive at the Center for Countering Digital Hate, says any response has to include social media companies, as that’s where attacks on scientists happen every day. Research finds that social media platforms can encourage the spread of scientific and medical misinformation.

Hotez says he and Mann are working on an upcoming project, collaborating on what they see as overlap in attacks on climate science and biomedicine and how to counter it.

Was NPR even in the room? I guess you don’t have to actually observe things when you can just ask your friends what they think.

With all due respect to Hotez and Mann, having discussions and disagreeing is what science is about in the pursuit of truth; actually even outside of “science,” as in Khazzoom’s quote at the top of this post.  Characterizing people who disagree as “attackers” with “disinformation” who need to be throttled down is bad for discourse, bad for the public trust (yes, that public, the ones who vote for research budgets) and bad for science.  I’m curious as to why, of all the disciplines and subdisciplines in science and engineering, only these two fields (climate and Covid) seem to have this problem highlighted? Perhaps they have bought into a form of politics-science mutualism.  In the same way that a phone call changed the views of the virologists and led to the Proximal Origins paper on Covid origins, in the Mann case a discussion with the President of Penn State led the inquiry team to change its findings on censuring Mann.  Where disciplinary self-interest, institutional self-protection and larger world politics meet.. is probably not a good place for the rest of us, nor for any truth to come out.  And it’s definitely not “science.”

Aren’t we fortunate that we don’t have these issues in forest science? Do we manage it better, are the stakes so low no one cares for high quasi-political drama, or are we just lucky as to the character of our scientists? What do you think?

Where Will We Put All the Powerline Corridors?

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This article may be of interest from Smokey Wire folks….

Explore this gift article from The New York Times. You can read it for free without a subscription.

The Planet Needs Solar Power. Can We Build It Without Harming Nature?

Today’s decisions about how and where to set up new energy projects will reverberate for generations.

https://www.nytimes.com/interactive/2024/02/11/climate/climate-change-wildlife-solar.html?unlocked_article_code=1.U00.n-mx.vSGlqqnyJPuL&smid=em-share

Some perspective: I live about 250 yards from a Bonneville Power Administration power line corridor that runs from The Dalles, Oregon, to Troutdale, known as Big Eddy–Troutdale No. 1. The corridor cuts across the Mt. Hood National Forest and a bit of private land for about 43 miles (measured via Google Earth Pro). Most of corridor was cleared of timber when it was built in the 1950s; these days, BPA crews regularly cut seedlings and shrubs and/or use herbicides on the brush before it grows tall enough to interfere with the lines. At roughly 375 feet wide, this section of the corridor is essentially a clearcut that covers about three square miles.

This article reports that, according to a National Renewable Energy Laboratory 100% clean electricity study, 91,000 miles of new high voltage interregional transmission lines are needed by 2035 to carry “affordable, reliable clean energy.”

A Three Sisters Wilderness Trailhead Presence: A Distinguished Volunteer

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By Les Joslin

On July 30, 1997, I was orienting new volunteer James W. “Jim” Plummer to his Green Lakes Trailhead Information Station duties. “I understand you were in the Navy,” he said, and informed me he had been a World War II naval aviator. “I bet I know someone you know,” this tall, slim, patrician gentleman grinned when I mentioned what I did in the Navy.

“Who might that be?” I asked.

“Bobby Inman,” he replied. “He and I met frequently when I was director.”

“Well, yes, I knew the admiral….” Admiral Bobby Ray Inman was the first naval intelligence officer to earn four stars. I met him and briefed him on a few occasions when he was Director of Naval Intelligence and Deputy Director of the Defense Intelligence Agency and I was a lieutenant commander serving as an analyst in Washington, D.C. I was never a member of his inner circle that continued to run Naval Intelligence after he went on to be Director of the National Security Agency and Deputy Director of Central Intelligence. President Bill Clinton in December 1993 asked Admiral Inman to be Secretary of Defense, but his January 1994 public comment about reaching a “comfort level” with Clinton as commander-in-chief led to his withdrawal.

“Wait! You’re that James W. Plummer?”

He smiled and nodded. I was taken aback. My new volunteer was the distinguished Lockheed Corporation engineer who had led its reconnaissance satellite program, then served as Undersecretary of the Air Force and Director of the then super-secret National Reconnaissance Office from 1973 to 1976. His accomplishments were commended and his contributions were honored by the nation’s intelligence community and its engineering societies. Only then did I recall having met with him briefly in his Pentagon office on some long forgotten item of business. He, of course, wouldn’t recall me.

He had retired in Bend. And here he was, serving as a volunteer wilderness information specialist and—at his insistence—cleaning trailhead restrooms. He certainly is the most distinguished person I have known, and who, as far as I know, ever served as a Forest Service volunteer. Jim, as he insisted I call him, volunteered at the Green Lakes Trailhead Information Station in 1997 and 1998 because he wanted to, and did an outstanding job.

“Les, thanks for giving Dad this chance,” his son once said to me. “All the time he was in engineering and space, he really wanted to be a ranger.”

Jim Plummer died in Medford, Oregon, on January 16, 2013, at age ninety-two.

Friday News Roundup I. Forest Service Funding and Belt-Tightening

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Rumors of OIG Report on FS Spending on the Infrastructure Act

There are rumors of an OIG report that talks partially about the Keystone Agreements that the FS uses to help with BIL and IRA efforts.

I am finding out more about these agreements to report on here.

My current understanding is that large sums of money could go through these agreements, but actually don’t until a specific project is funded.  So the FS doesn’t have to “claw back” money because most was never sent out. Which goes to..

FS Funding Shortfall Possibilities and Plans

The Hotshot Wakeup has a story on the FS not having enough money, or tightening their belts due to lower appropriated funds in 2024, 5.2% cost of living adjustment and inflation.

Here’s the Chief’s letter.

I also heard that there are 33K permanents now, at least in part, due to fire positions going from temporary to permanent seasonals 13/13 or 18/8, which costs more due to benefits.  The idea, of course, is that life for these folks will be better under better employment conditions and more people will want to work, and fewer people leave.  My understanding is that that (33K) is more than the FS has had in previous years, but I can’t recall the exact figures by year.

I’m hoping commenters can add more context and background.

 

Can Someone Explain? What the EPA PM 2.5 (Soot) Rule Means for Wildfire and Prescribed Fire

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Here’s a link to their Fact Sheet. There are many words in it about wildfire and prescribed fire.

Here are my questions for someone who is involved in this:

(1) What new things do wildfire folks have to do (if anything)?

(2) What new things do prescribed fire folks have to do (if anything)?

(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.)?

Perhaps if we can find an expert, they can also answer your questions.

What does it mean in practice to deal with Exceptional Events? What is a demonstration?

Prescribed Fire Demonstration Example. EPA is committed to ensuring that air agencies have a clear pathway for needed exceptional events demonstrations for prescribed fires ignited to mitigate the effects of high-severity wildfires. EPA recognizes the importance of significantly increasing the application of prescribed fires to wildlands. To that end, EPA is working closely with the State of California, the United States Forest Service, and other collaborators to develop an exceptional events demonstration for a prescribed fire in Northern California. A public review opportunity on this document was offered in December 2023. This actual prescribed fire demonstration will go through the entire exceptional events process as an example of a successfully developed demonstration and will identify opportunities for land management and air agencies to efficiently collaborate on prescribed fire exceptional events demonstrations.

Donate Now: National Museum of Forest Service History Has Opportunity for Up to $500K Match

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I don’t usually make donation requests for anything besides TSW, but this is an amazing opportunity for the Museum.  A group of  dedicated folks, current employees, retirees and a wide array of partners, have been working on the Museum since at least the 90’s and groundbreaking in Missoula is THIS spring (!).

The National Museum of Forest Service History is close to finalizing our Capital Campaign to build the National Conservation Legacy Center in Missoula, Montana. Once it is built, the Center will be a one-of-a-kind, world class destination. It will showcase America’s conservation history – the U.S. Forest Service, its people, partners, and legacy.

If you’ve ever thought about donating, now would be the time, because donations will be matched (individual or corporate!).  Please forward this post to anyone who might be interested..

BIG NEWS! Donor has offered us up to $500,000. IF WE CAN MATCH IT!

Our highest priority continues to be completing the Capital Campaign for the National Conservation Legacy Center (CLC), the flagship building on our Missoula campus. We will break ground this spring but still need to raise funds to ensure all costs are covered for both the building and exhibition.  Here’s the website.. the video of the Museum is above.


MORE ON THE BIG NEWS: At the end of December, one of our long-time donors, offered to help us finish the capital campaign. He and his wife will donate up to $500,000 by matching every new cash donation (both individual and corporate) we can raise by June 30,2024. In essence, any new capital campaign cash donation we receive by June 30,2024 will be doubled! Our very generous donor has provided us a tremendous opportunity to complete the capital campaign!

 

Reimagine Recreation Workshop Summary

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Here’s a link to the planning effort.

Here’s a link to the report.

We had an offer from the FS to answer questions about the effort, so if you have questions please put them in the comments. It’s at a pretty strategic level. It would be interesting to compare this with the BLM Blueprint for 21st Century Outdoor Recreation. Apparently BLMers participated in the FS effort and vice versa.

I took some bullets out of the report. I don’t think there are many surprises, and many similarities to other FS programs.

The purpose of the workshop was to:
• Share knowledge and learn from one another’s experiences working on complex recreation challenges and opportunities on lands the Forest Service manages.
• Inspire solution-focused brainstorming on recreation issues ripe for national-level action by both partners and the Forest Service.
• Create a space for partners and staff to dissolve barriers to collaboration, illuminate shared interests, and improve communication

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Different styles of communication are needed to reach different generations and backgrounds.
• Working with partners to communicate data or other information can be beneficial because partners can typically share information faster than agencies due to the specific focuses of each organization.
• In addition to quantitative data, qualitative or story-telling data is important to gather, understand, and share.
• Consolidate and streamline public communication to create a “one-stop shop” for trip-planning information and data.
• Identify communication strategies and tools that have worked well for the Forest Service and partner organizations to serve as a model for recreation programs moving forward.
• Create a web-based communication platform for partners to share information.

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• Representation plays an important role in increasing the diversity of the collective recreation workforce.
• Pursue creative recruiting methods and tools in collaboration with partners and local organizations instead of relying only on traditional approaches.
• Remote work options for recreation positions have increased access to recreation careers.
• Limited housing and high cost of living in areas with high recreation demands has caused ongoing workforce and capacity challenges.
• Recreational employment is increasingly seen as a solid career path rather than a temporary job.

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• The stories that are told on public lands should be inclusive to all, well-informed, and developed, with input from the people who the stories are about.
• Clear and consistent communication between partner organizations and the Forest Service is vital to successful, long-term partnerships.
• Equity-centered work is not going to be comfortable.
• Telling diverse stories is not the role of the Forest Service alone and should be done in partnership with other stakeholders, organizations, communities, and individuals.

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Making connections between recreation, the economy, resource protection, and long-term vision spur momentum when working with partners and organizations.
• New projects can generate interest among industries and create reciprocal relationships between different entities.
• Focusing on long-term, tangible culture changes rather than short-term successes in an industry or agency can create sustainable change.
• Acknowledging the importance of and building transparent communication builds trust, furthers relationships, and leads to successful projects and endeavors.

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Sharing small successes on the way to achieving a broader vision can help maintain momentum to complete long-term projects.
• Cross-boundary collaboration can occur across roles, skill sets, and entities.
• Using a more strategic approach would be beneficial around (1) the types of resources that are being dispersed and (2) where resources are shared to decrease competition between agencies.

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• Visitor use management data can be leveraged to make informed decisions about improving recreation and other infrastructure. This type of data should be part of infrastructure investment conversations.
• Informing and educating visitors before they arrive at recreation sites is crucial. Conservation messaging can be woven into visitor communications before visitors arrive.
• Recreation and conservation organizations need to consider the perspectives and voices of Native American Tribes and respect Tribal wishes on how to use and manage public lands.

Recreation is part of a larger ecosystem and should be woven together with other issues and interests, from wildland fire and fire management to economic development.
• “Everyone who steps into the natural world has the tool to develop an environmental ethic.”
• Agency and organizational culture matters! Forest Service staff need to be consistently supported to show up as a great partner. This includes fostering a culture of transparency and willingness to share responsibility from the highest levels of the agency.
• Cross-boundary collaboration requires that we depend on one another’s strengths and engage partners and organizations to fill the gaps.
• Agency staffing levels and turnover negatively impact relationships. The Forest Service should invest in “professionalizing” the recreation workforce, streamline hiring processes using private partners, engage in transition planning, and coordinate with local governments on shared issues such as limited housing.
• Recreation funding is challenging and requires stability, flexibility, and streamlining.
• Data can convey great meaning, especially when framed as part of achieving
collective goals.
• Equity-centered work is not easy work. We must commit to take up this challenge
together, embrace tough conversations, and deepen our relationship with the
history of the land.
• The Forest Service should base recreation planning and stewardship work in
community, place, and relationships.
• “Recreation management is an all-hands-on-deck situation.”

 

New available science for wildlife connectivity

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National Parks Conservation Association

Federal lands are separated by highways all over the west.  Those highways are a barrier to many species of wildlife, including species listed under the Endangered Species Act and those identified as Species of Conservation Concern (SCC) in national forest planning. Climate change is recognized as increasing the importance of wildlife movements.

Forest Service planning regulations pertaining to designation of SCC require consideration of all threats to the species’ persistence in the plan area, whether or not the threats occur within the plan area or are the result of national forest management.  Often, significant threats to these at-risk species come from outside of the federal lands; one of these is the effect of highways on connectivity.   The Forest Service could improve prospects for some species to persist in the plan area by making it easier for them to get to and from it.  They can do two things to promote that.  They can 1) collaborate with other agencies managing land, wildlife and transportation to identify the most important areas to jointly manage for connectivity, and 2) manage their lands in or near these areas to minimize barriers to wildlife movement, first by recognizing them as such in forest plans.

There’s a new tool from the Center for Landscape Conservation that could help with identifying the important areas consistently across the west.  As with any newly available science, the agencies involved should be looking at this mapping tool and determining whether and how they will use it, and ideally documenting the rationale, especially for disregarding this new information.  National forests should be checking their forest plans to see whether their assigned management areas would make these connectivity areas less attractive to wildlife movement, and amending plans as needed.

The study that produced these maps also found that “1,523 of the CC (“collision and connectivity”) segments (338 mi) have enough collisions to make it more cost-effective to build a wildlife crossing than to do nothing,” and land management agencies should support such efforts and manage their lands to facilitate their use by wildlife.

Public Lands Litigation – update through February 2, 2024

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FEATURED CASE

Court decision in North Cascades Conservation Council v. U. S. Forest Service (E.D. Washington)

On January 17, the district court granted summary judgment to the Forest Service with regard to the Twisp Restoration Project on the Okanogan-Wenatchee National Forest.  The proposed project stated that most of the thinning and prescribed fire treatments would use a “condition-based management strategy.”  The court held that the project complied with NEPA requirements related to the proposed action, alternatives, cumulative impacts, public participation and the significance of effects.  The latter two issues implicated the issue of condition-based management, where the court held:

“At the heart of Plaintiff’s challenge is the Forest Service’s use of condition-based management. Plaintiff has not shown that this approach violates NEPA as a matter of law. Here, the Final EA disclosed detailed decision criteria that will be applied during the TRP implementation to ensure the actual conditions on the ground meet the expected conditions disclosed in the Final EA. If they do, the approved treatment will be applied. If they do not, the treatment will not be applied.

 In this case, the Final EA’s description of condition-based management details the decision criteria for each approved activity, specific prescriptions that will be applied if those decision criteria are met, maps identifying where those prescriptions would be applied, and estimates of the timing of implementation.

The Court finds that the use of condition-based management is not arbitrary or capricious as a matter of law and as applied in this case.”

The highlighted language is why I think “this case” may represent a different kind of “condition-based” management than other project we have seen, some of which have lost in court.  This statement means the action will not be changed from how it has been described (other than possibly reducing the scope of the action and its effects), and it limits the likelihood that unanticipated environmental effects may occur (if they do become evident later, the project would still be subject to NEPA’s new information requirements).  Overall, the specificity of the decision seems to be in greater detail than other projects labeled “condition-based,” and in this regard is more similar to the Ashland Municipal Watershed case upheld by a court and discussed in my comments here (though the project area of 24,000 acres is larger). While the Twisp Project court carefully recognizes that such management is legal “as applied in this case,” this implicitly recognizes that it might not be if done with less specificity or without the limit that was imposed.

OTHER FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Higgins (D. Idaho)

On January 10, the district court held that plaintiffs had waived their right to sue for a violation of the Healthy Forests Restoration Act by failing to object to the intended use of a categorical exclusion for WUI projects during their participation in administrative proceedings.  Qualifying projects are exempt from formal objections; however, there was an opportunity for plaintiffs to notify the agency during scoping of its disagreement about HFRA compliance, which they did not do in their “more than 100 pages” of scoping comments.

New lawsuit:  Chattooga Conservancy v. U. S. Forest Service (W.D. North Carolina)

On January 31, five conservation groups sued the Nantahala-Pisgah National Forest over its Southside logging project.  The project was developed under a forest plan that has been recently revised, and the complaint alleges that the project is not consistent with the revised plan.  The revised plan places the 15-acre timber stand at issue in a Special Interest Management Area based on its high ecological values, and also protects the scenic integrity of lands adjacent to the Whitewater Scenic River where the stand is located.  The complaint alleges that the logging contested in the lawsuit, that intends to create “early successional habitat,” does not meet the specific criteria established in the forest plan.  (The article includes a link to the complaint.)

BLM CASE

Withdrawal of the subject of Willamette Riverkeeper v. Teitzel (D. Oregon)

On December 14, the BLM announced the withdrawal of this project following litigation commenced in November “in order to incorporate additional aquatics data and analysis,” likely including the effects on the chinook salmon of concern to plaintiffs.  Plaintiffs then dismissed the lawsuit.

FIRE FALLOUT

Freres Lumber Co. has sued the Forest Service for $33 million for not trying hard enough to put out the 2020 Beachie Creek Fire.  The plaintiff alleges that this case clears the high bar for liability under the Federal Tort Claims Act because of the Willamette National Forest’s “negligent failure to follow its own mandated fire attack plan.”  It burned over 5000 acres of the company’s timberlands.

On January 21, “yet another utility lawsuit” was filed over the 2020 fires in Oregon.  Law firms representing 238 victims who lost homes and property in the Holiday Farm fire sued the Eugene Water and Electric Board, Lane Electric, and Bonneville Power Administration in federal court for their roles in the  fire, which burned both national forest and BLM lands east of Eugene.

A California man has pleaded guilty to setting several fires on the Shasta-Trinity National Forest in 2021, including some behind firefighters who were actively fighting the Dixie Fire.  (The article includes a link to the plea agreement.)

An Alaska charter fishing company has paid $900,000 to settle a lawsuit brought by the U.S. government alleging one of its guides started a wildfire in 2019 by failing to properly extinguish a campfire at a campground on the Klutina River. The funds will help cover the costs incurred by state and federal firefighters to extinguish the fire, which burned about 0.28 square miles.

FISH AND WILDLIFE SERVICE

  • Wolverine listing

Notice of Intent to Sue

On January 26, Montana Fish, Wildlife and Parks filed a notice of intent to sue the U.S. Fish and Wildlife Service within 60 days if it does not overturn its November decision to list wolverines as a threatened species under the Endangered Species Act.  The complaint alleges the agency did not use the best available science.  This listing decision followed previous litigation for not listing the species (last discussed here).  Idaho’s Office of Species Conservation filed a similar notice on the same day.  (The articles have links to the notices.)

On February 2, the U. S. Fish and Wildlife Service announced that it would reiterate the decision by Congress to delist the gray wolf in the northern Rocky Mountains.  The FWS rejected arguments that hunting initiated by the states where it had been delisted constituted a threat that warranted relisting the species.  At the same time, the FWS announced that it will undertake a process to develop a first-ever nationwide gray wolf recovery plan by December 12, 2025.  A FWS appeal of a district court decision that relisted wolves outside of the Northern Rockies is pending.  The article includes a link to the press release covering these actions.

OTHER CASES OF INTEREST

  • Chevron deference and the 1872 Mining Law

On January 17, the Supreme Court heard two cases against the National Marine Fisheries Service rules pertaining to monitoring on fishing boats, but which could make it harder for all federal agencies to regulate.  The “Chevron Doctrine” is the result of a 1984 case supported by conservatives at that time as a curb on “unelected liberal judges” overruling federal agencies.  It required courts to defer to interpretations of statutes by federal agencies if the statute is ambiguous and the agency interpretation is reasonable.  Now it appears this conservative court would rather make the interpretations itself instead of “unelected federal bureaucrats” who are more responsive to a liberal administration (which was elected).  Here is a short overview of the statements made by the Supreme Court at the hearing.

How might that affect federal land management?  As an initial point, an agency’s interpretation of its own regulations is governed by another court case (Auer) that would not necessarily be affected.  A forest plan’s compliance with the 2012 Planning Rule should be governed by that.  On the other hand, the Planning Rule itself could be reviewed under whatever standard the Supreme Court comes up with to modify or replace Chevron.  There is a question in my mind of whether regulations like this that govern agency actions like planning, rather than directly affecting the public, would be viewed the same way.

As a real example, on January 16, the D. C. Circuit Court of Appeals conducted a hearing in Earthworks v. U. S. D. I., a case filed in 2009.  It concerns a 2003 regulation implementing the 1872 Mining Law that allows mining companies to claim an unlimited amount of federal land around a mining site for mining-related activities like chemical processing and waste dumping.  If there is any ambiguity in the statute, the court would have to defer to the Interior Department’s decision, as per the Chevron doctrine.  The issue then becomes whether the statute is ambiguous, and the courts get to decide that (even though the judges know less about the subject matter than the agency expert).  Here’s what the law says:

“Where nonmineral land is needed by the proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, and is used or occupied by the proprietor for such purposes, such land may be included in an application for a patent for such claim, and may be patented therewith subject to the same requirements as to survey and notice as are applicable to placers. No location made of such nonmineral land shall exceed five acres and payment for the same shall be made at the rate applicable to placer claims which do not include a vein or lode.”  (30 U.S.C. 42(b))

At the hearing, the parties offered their interpretations of whether this language is ambiguous, and whether it limits nonmineral land inclusion in a claim to five acres, and therefore whether or not BLM’s current regulation imposing no limits is valid.

On January 26, Puckett Land Co. filed a motion to dismiss (and the court granted it) its diligence application for conditional water rights to avoid abandoning water rights that date to 1966.  The conditional rights were associated with the planned construction of a 23,983-acre-foot reservoir on BLM land within the boundaries of an area (Thompson Divide) that the Forest Service and BLM are proposing to withdraw from eligibility for new oil and gas leases.  The reservoir would have been used for shale-oil production in that area.  (The federal agencies had not filed a statement of opposition to the water right.)

POST-LITIGATION FOLLOW-UPS

Two national forest travel management plans were recently completed that respond to prior litigation.

In 2007, a lawsuit resulted in a court order that barred motorized over-snow vehicles from the entirety of the caribou’s recovery zone on the Idaho Panhandle National Forest, cutting off access to about 250,000 acres (most recently addressed here).  The Kaniksu Over-Snow Vehicle Use Designation Project won’t go into effect until the Forest Service publishes a final map, which is expected before next winter.  It reopens some areas to snowmobile use, and closes areas earlier in the spring to protect grizzly bears.  On the horizon?  A spokesman for WildEarth Guardians said, “We’re still evaluating the decision and considering our options while trying to balance out a lot of litigation priorities.  Sadly, there are a lot of bad decisions out there. This is one of them, and we’re taking a close look.”

The Nez Perce-Clearwater National Forest has prepared a Draft Record of Decision and Final Supplemental Environmental Impact Statement for the Clearwater National Forest Travel Planning Project to comply with the District of Idaho’s December 2022 remand order and prohibition of motorized use of the Fish Lake Trail (most recently discussed here).  It would again amend the forest plan and reinstate summer motorized use on the Fish Lake Trail.

A proposed resource management plan from the BLM in Arizona would limit recreational shooting to 5,295 acres of the 486,400-acre Sonoran Desert National Monument. Currently, target shooting is permitted on 435,700 acres.  The plan is the result of a series of lawsuits and an April 2022 court settlement that required the BLM to reassess how it handled recreational target shooting on the monument (most recently discussed here).