Another gas pipeline down the tubes?

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Since the NFS litigation reporter is apparently furloughed, here is something you might not want to miss …

In July the 4th Circuit Court of Appeals ruled against the Jefferson National Forest for improperly amending its forest plan to create an exception to forest plan standards to allow the construction of the Mountain Valley Pipeline (reported here and discussed here).   On December 13, the same court ruled against the George Washington and Monongahela National Forests for improperly amending their plans to create exceptions to 13 forest plan standards to allow the construction of the Atlantic Coast Pipeline.  Cowpasture River Preservation Association v. Forest Service again involved interpreting a 2016 amendment to the Planning Rule that governs the application of the 2012 Rule to forest plan amendments. It also again involved circumstances where the Forest Service reversed itself regarding its concerns about the effects of a pipeline without justification.

Forest plan amendments to existing plans (that were not prepared pursuant to the 2012 Planning Rule) are subject to the substantive requirements of the 2012 Planning Rule when those requirements are directly related to the amendment. This may occur when the requirements are related to either the purpose or effects of the amendment(in a “substantial” way). The Forest Service found that relevant effects on soil, water, riparian, threatened and endangered species, and recreational and visual resources were mitigated, but ignored the purpose of the amendment, which was (as stated in the NEPA documents) to reduce the protection of those resources so the Pipeline could proceed. As stated by the court, “To say that a 2012 Planning Rule requirement protecting water resources (as one example) is not “directly related” to a Forest Plan amendment specifically relaxing protection for water resources is nonsense.”

The court rejected the argument that it is the purpose of the project that should be considered rather than the purpose of the amendment, and rejected the idea that these requirements do not apply to amendments limited to an individual project. It found, “If the Forest Service could circumvent the requirements of the 2012 Planning Rule simply by passing project-specific amendments on an ad hoc basis, both the substantive requirements in the 2012 Planning Rule and the NFMA’s Forest Plan consistency requirement would be meaningless.” The court also suggested that there would be “substantial” adverse effects of this project that should lead to a conclusion that the amendments are “directly related,” and the 2012 Planning Rule requirements would apply. The court held: “The lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule — its own regulation intended to protect national forests — in order to accommodate the ACP project through national forest land on Atlantic’s timeline are striking, and inexplicable.”

The court also found a violation of forest plan goals, “because it failed to demonstrate that the ACP project’s needs could not be reasonably met on non-national forest lands.”   The FEIS did not address this question, but instead found that no national forest avoidance alternative “confers a significant environmental advantage over the proposed route.”   The court held that consistency with plan goals is required by the 2012 Planning Rule (even though the goals were not written when that Rule was in effect). The Forest had included the goals (which are also found in the Forest Service Manual) in its scoping material for the Pipeline project. The court held that the Forest Service “is not free to disregard the goal entirely — as the Forest Service apparently wishes to do here.”

The court also found violations of NEPA. The EIS was prepared by the Federal Energy Regulatory Commission (FERC), but the Forest Service had duty to independently review it. The Forest Service never explained why it was satisfied with the lack of off-forest alternative routes after it had said they were required. The Forest Service also failed to explain why it lost interest in landslide risks, erosion control and aquatic species that it had previously expressed concerns about. The court found, “the record before us readily leads to the conclusion that the Forest Service’s approval of the project “was a preordained decision” and the Forest Service “‘reverse engineered’ the [ROD] to justify this outcome.”

The court remanded the Forest Service decisions to grant the right of way to address these legal shortcomings. However, the court also found a potentially bigger problem: the Forest Service does not have the authority to grant a right of way across the Appalachian National Scenic Trail (necessary for the routes considered) because it is administered by the National Park Service, and the Park Service does not have authority to grant such a right of way at all. Thus this part of the Trump Administration’s “energy dominance” program could now be in the hands of a divided Congress.

Here is the line from the court that got the most media attention (includes a link to the opinion):

“We trust the United States Forest Service to “speak for the trees, for the trees have no tongues.” Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources.”

Smokey’s Shutdown Survival Guide

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Smokey’s Shutdown Survival Guide from Brian McFadden, who wrote:

Two Three weeks into a shutdown, and our national parks are getting the Bundy Family treatment. Dig a proper latrine and make sure it’s deep enough to hold all the sh*t coming out of Mitch McConnell and the White House.

Despite being Interior Secretary for nearly two years, this is my first time drawing Ryan Zinke. I missed a lot of opportunities to draw his fivehead, which has more of a Frankenstein/John Cornyn vibe than Stephen Miller’s Twilight Zone “To Serve Man” alien.

The Smokey Wire Went Down.. Post New Problems Here

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This site went down unexpectedly last night.  It turns out that Bluehost, our hosting service, found malware on our site and it needed to be cleaned up.  So I had to pay a service to clean it up and provide protection into the future. It is now cleaned up but there has been a glitch or two (like I had to add back the ability to comment). No mysteries here, but if you run into a problem it may be that some settings were changed.  Please post any problems in comments below.

We have been really fortunate, by the grace of Gaia, that this has not happened before in the last nine years, and fortunate that this happened while we have an expert on call!

 

 

Letter to President Trump from Govs. Newsom, Brown, and Inslee

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Letter to President Trump from Govs. Newsom, Brown, and Inslee regarding forest management:

 

January 8, 2019

President Donald J. Trump

The White House

1600 Pennsylvania Avenue, NW

Washington, DC 20500

Dear Mr. President,

We are writing to request increased cooperation as our respective states endure more frequent and devastating wildfires with every passing year. The federal government is a major landowner and a critical partner in preventing, fighting, and recovering from wildfires. As we look ahead to the beginning of another fire season in just a few months, we respectfully request immediate attention and increased efforts to responsibly manage the lands owned by federal agencies in our states.

Specifically, we request that you direct the Department of Interior, the Department of Agriculture, and the U.S. Forest Service to double the investment made in managing federal forestlands in California, Washington, and Oregon. In recent years, federal forest management budgets have remained flat, creating a significant gap between funding and need.

Immediate progress can be made by prioritizing funding for projects that have already received environmental review and ensuring that progress is made before summer begins and fire danger increases significantly. Additionally, we request that you prioritize projects adjacent to each of our states’ priority areas so we can create synergy between state and federal wildland management efforts.

We are encouraged by Executive Order 13855, which you signed on December 21, 2018, promoting active management of America’s forest, rangelands and other federal lands to improve conditions and reduce wildfire risk. However, it is constrained by current appropriations. We all must acknowledge that without significant additional federal investment, these partnerships have too little impact on changing the catastrophic reality of wildfire season on the West Coast.

We stand ready for partnership. Over the past decade our states have partnered with federal agencies to prioritize resilience to wildfire through the Memorandum of Understanding between the Western Governors’ Association and the U.S. Department of Agriculture, National Cohesive Wildland Fire Management Strategy, and Good Neighbor Authority. We also look forward to working together on the Secretary of Agriculture’s new initiative, Shared Stewardship.

Our states have invested heavily in managing our own wildlands, working with private landowners to fire-harden communities, and enhancing our response capabilities. California has committed to a five-year, $1 billion forest management plan, and has already invested $111.3

million on forest health since 2017, of which 49 percent was spent on managing federally owned land, while the state doubled the size of its actively managed lands to half a million acres. For this coming biennium, Washington’s budget will exceed $85 million to address forest health, wildland fire projects and suppression, and we expect this number will continue to grow in future biennia. And in Oregon, annual fire-fighting costs have skyrocketed. Since the signing of the state’s Good Neighbor Authority Master Agreement in 2016, roughly $4 million is invested each biennium in accelerating the pace and scale of restoration on federal forest lands.

We are doing what is needed to mitigate fire danger within our own borders. In each of our states, we are adding more and year-round fire crews to acknowledge the reality that fire season no longer lasts just six months. We are investing in cutting-edge technology to detect and fight fires, and we are pioneering new strategies for large-scale forest management projects.

In contrast to all of our state efforts, the U.S. Forest Service has seen its budget cut by more than $2 billion since 2016.

Our significant state-level efforts will not be as effective without a similar commitment to increased wildland management by you, our federal partners. Since 2017, fires on federally owned lands burned a significantly larger footprint than fires on state-owned lands in California and Oregon. The same is true in Washington, where over 500 fires on federal lands burned more than 150,000 acres during the 2018 fire season.

The stark reality we now face is a longer fire season, driven by multi-year droughts and higher than average temperatures, creating extreme tinderbox conditions across the West Coast. While the up-front costs of responsible lands management create budget pressures, they pale in comparison to the longer-term human and financial costs of doing too little.

Mr. President, public safety is our most important shared responsibility. We hope that the next several months will demonstrate that our governments, in cooperation with federal agencies, can ma rially improve safety conditions for our residents as the threat of wildfire continues to increase.

<< END >>

Trump to California: No FEMA Funding For You!

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Kick ’em when they’re up
Kick ’em when they’re down
Kick ’em when they’re up
Kick ’em when they’re down
Kick ’em when they’re up
Kick ’em when they’re down
Kick ’em when they’re up
Kick ’em all around

Here’s some interesting California wildfire FEMA-related tweets from Kirk Siegler, an NPR national desk correspondent covering the urban and rural divide in America, Los Angeles-based and a University of Colorado alum. Siegler grew up in Montana and worked for public radio in Montana and has covered wildfires and public lands issues in Montana, Colorado, California and the west for a long time.

Trump issues orders to the Forest Service

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In case you missed it, on December 21, President Trump issued an executive order: “EO on Promoting Active Management of America’s Forests, Rangelands, and other Federal Lands to Improve Conditions and Reduce Wildfire Risk.”  This should answer all of our questions about what the agency’s priorities are for the duration of his administration.  It’s a short read, but here’s my take.

The problem: ” For decades, dense trees and undergrowth have amassed in these lands, fueling catastrophic wildfires.”   (No mention of climate change of course.)

The cause:  “Active management of vegetation is needed to treat these dangerous conditions on Federal lands but is often delayed due to challenges associated with regulatory analysis and current consultation requirements. In addition, land designations and policies can reduce emergency responder access to Federal land and restrict management practices that can promote wildfire-resistant landscapes.”  (In other words, the laws and the public.)

The solution:  “Post-fire assessments show that reducing vegetation through hazardous fuel management and strategic forest health treatments is effective in reducing wildfire severity and loss.” “To protect communities and watersheds, to better prevent catastrophic wildfires, and to improve the health of America’s forests, rangelands, and other Federal lands, the Secretaries shall each develop goals and implementation plans for wildfire prevention activities and programs in their respective departments.”  This includes, “Reducing vegetation giving rise to wildfire conditions through forest health treatments by increasing health treatments as part of USDA’s offering for sale at least 3.8 billion board feet of timber from USDA FS lands…,” and, “the Secretaries shall identify salvage and log recovery options from lands damaged by fire during the 2017 and 2018 fire seasons, insects, or disease.”  (I’m looking forward to a definition of “health treatments” so that we can tell if they are increasing that share of the volume targets.)

The EO “promotes” this solution by calling for the kind of coordination, streamlining and speeding up the legally required processes that has been ongoing in the agency, and for a new “wildfire strategy” by the end of the Trump Administration.  For the most part it sounds to me like the traditional charge of “cut corners to get the cut out” “consistent with applicable law and subject to the availability of appropriations.” That last part usually doesn’t seem to get the same priority, which typically leads to more litigation.  Interesting that there is no mention of the wildland urban interface (which is where pretty much everyone agrees should be the priority).

Producing the wildfire strategy does include a requirement to “Review land designations and policies that may limit active forest management and increase the risk of catastrophic wildfires…”  That seems to implicate forest plans, but it doesn’t suggest changing them, and if there are such limits they are probably there for a good, publicly supported reason.

Oh, and no mention of science.

The federal government is (still) shutdown. Does that mean public lands logging is shut down?

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I just called the supervisor’s office of the Lolo National Forest: The pre-recorded message said they were closed because of the government shutdown.

I called the Flathead National Forest: Same Story.

Ditto for the Bitterroot National Forest, and the Flathead National Forest, and the Beaverhead-Deerlodge National Forest and the….Well, you get the picture.

Does anyone know if logging on U.S. Forest Service lands has also been stopped during the on-going government shutdown? What about mining, and oil and gas development and commercial grazing on U.S. Forest Service lands?

Are all these resource extraction activities on America’s National Forest stopped during President Trump’s shutdown of the federal government? Or are all these resource extraction activities on America’s National Forest still actively taking place on America’s National Forests, but with zero to minimal oversight by the U.S. Forest Service?

“Interest group emails compete to influence NC national forests’ future”

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An article from Carolina Public Press looks at how “Interest group emails compete to influence NC national forests’ future.”

“Thanks to a federal Freedom of Information Act request, Carolina Public Press has studied thousands of emails and other comments delivered to the Forest Service. This, the second of three articles, examines the comments from individuals representing the views of advocacy organizations that have campaigned to influence the Forest Service’s management strategies.”

Doesn’t mention form letters.

Anyone know of other analyses of letters on other USFS projects?

Zinke.. Why Such a Lightning Rod?: Or, Sometimes He’s Not Quite Wrong I.

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Former Interior Secretary Zinke

I think former Interior Secretary Zinke was definitely a lightning rod for many folks. We don’t know why, nor if the new Secretary be equally controversial. Looking back, we can ask questions like “why him? and why not Secretary Perdue?”. Part of it may well be his personality (which I don’t actually know), but plenty of politicians can be irritating.  My biases and personal experience would tend to be along the lines of “Congressfolk aren’t necessarily good at governing, more at playing partisan football.”

So let’s talk about four things he’s said that people disagree with (two in this post):

  1. Fires and Climate

From a story in The Hill here: “It doesn’t matter whether you believe or don’t believe in climate change. What is important is we manage our forests,” Zinke told reporters while visiting the Whisteytown National Recreation Area on Sunday. “This is not a debate about climate change. There’s no doubt the [fire] season is getting longer, the temperatures are getting hotter.” (I think it’s Whiskeytown, but the Hill spelled it that way).

I was mildly surprised when I read this article because the top quote was “I’ve heard the climate change argument back and forth. This has nothing to do with climate change. This has to do with active forest management,” Zinke told Sacramento station KCRA.

(my italics). So in two sentences he said 1) fire season is getting longer and temps hotter so yes to climate change but 2)  framing this debate as being about climate change does not help people managing fires deal with them.

I agree with 2) . We can’t throw up our hands and say “let’s not do fuel treatments, we just need to stop putting carbon in the atmosphere”. Because we had fires before climate change, and we’ll have fires after climate change. Not only that, but as the IPCC says, it’s unlikely that we will be as successful as we would like in the short run. So we’re stuck with this problem either way. No matter how complicated pundits or academics try to make this, the records show that this is, was, and will be fire country.

So I would say, climate is part of the problem, but only part, and we honestly can’t say how big a part. What we do know is what we can do to help the wildfire problem (many things).

2. Role of Litigation

This is probably the least popular in many circles:

From CNN Politics here “lawsuit after lawsuit by, yes, the radical environmental groups that would rather burn down the entire forest than cut a single tree or thin the forest.” Remember, Zinke is from Montana, where in fact a high proportion of appeals and litigation occur. So I certainly can understand how he would get that impression (for some reason, it seems like passions run higher in Montana about the same issues that other western states deal with). According to some folks in California, not only litigation, appeals and objections, but also fear of litigation, appeals and objections have made some  FS folks less enthusiastic about doing fuel treatments or other vegetation management.  Litigation is indeed one element of not being able to do fuel treatments (in addition to lack of money and lack of trained people).

Here are more quotes from the same article,

“This is where America stands. It’s not time for finger-pointing. We know the problem: it’s been years of neglect, and in many cases, it’s been these radical environmentalists that want nature to take its course,” Zinke said in the Sunday interview. “We have dead and dying timber. We can manage it using best science, best practices. But to let this devastation go on year after year after year is unacceptable.”

Interestingly, Perdue is also quoted:

His colleague in federal land management, Agriculture Secretary Sonny Perdue, spoke instead of misguided efforts of “well-meaning environmentalists.” “If not doing anything to the forests kept them pristine, I’d be all for that. That’s the problem,” Perdue said on the call with reporters. “That’s been the theory from well-meaning environmentalists over the years, is that a forest that you did nothing to was pristine. We know that’s not to be the case.”
Zinke went on Breitbart, which conceivably he didn’t have to, and has more colorful/inflammatory language. Personality or history as Congressperson?  And perhaps oddly, the CNN story ended with a quote from Chad Hanson saying that the “science shows” that fuel treatments that involve logging don’t work. As we’ve seen, the contrary scientific evidence is vast (not to speak of practitioner evidence). The CNN article also notes that Hanson is also a Director of the Sierra Club, but it looks like this is outdated information (see here).

Supreme Court may reinterpret tribal treaty rights on national forests

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Here’s a pending Supreme Court case, Herrera v. Wyoming, that hasn’t shown up in the Forest Service litigation summaries.  The federal government is defending the right of a Native American to hunt on the Bighorn National Forest without complying with state hunting laws.  If they lose, tribal treaty rights, as currently understood, could be severely diminished.  The hearing is scheduled for January 8.

When the native tribes ceded their lands to the federal government, the language in the treaties typically preserved their rights to various uses and activities on indigenous lands that were not included within the new reservation, for which the treaties used the terms “open and unclaimed” or “unoccupied” lands.  Much of that land is now part of national forests.  Here is how the Forest Service interprets the language referring to those lands:

The term applied to public domain lands held by the United States that had not been fenced or claimed through a land settlement act. Today, “open and unclaimed lands” applies to lands remaining in the public domain (for the purposes of hunting, gathering foods, and grazing livestock or trapping). The courts have ruled that National Forest System lands reserved from the public domain are open, unclaimed, or unoccupied land, and as such the term applies to
reserved treaty rights on National Forest System land.

In the case currently pending before the Supreme Court the State of Wyoming has argued that this is not true (they also argue that the lands became “occupied” when Wyoming became a state):

The parties further dispute whether the Bighorn National Forest should be considered “unoccupied lands” for treaty purposes. Herrera and the federal government emphasize that the proclamation of a national forest meant the land could no longer be settled, which they argue was the historical standard for occupation. Yet Wyoming argues that physical presence should not be the test, especially given the West’s expansiveness. According to Wyoming, the federal government’s proprietary power over its own lands, including its decisions to exclude hunters, demonstrates that the land was effectively occupied when it became a national forest.

Courts have held that the federal government has a substantive duty to protect ‘to the fullest extent possible’ the tribal treaty rights, and the resources on which those rights depend.   If Wyoming were to win their argument, treaty rights to accustomed tribal uses of national forests would no longer exist.  Because the federal government is defending the tribal interests in this case, one might think that the Forest Service would continue to protect these rights even without the treaty obligation.  However, in the past they have disagreed with tribes on issues such as campground fees and desired salmon populations.