NFS Litigation Weekly October 19, 2018

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Forest Service summaries:  Litigation Weekly Oct 19

The court refused to dissolve the current injunction against the Fleecer Mountains Project on the Beaverhead-Deerlodge National Forest because the Forest did not comply with the court’s instructions to consult with the Fish and Wildlife Service on the effects of the forest plan on Canada lynx based on new information that lynx “may be present” forest-wide (not just in the project area).  (D. Mont.)

(Notice of intent to sue under ESA.)  The exploration project on the Caribou-Targhee National Forest was approved before the grizzly bear was relisted under ESA by a recent court decision, and compliance with ESA should therefore be required.

The Case for Intellectual Hospitality- Dr. Roger Pielke, Jr.

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In this piece, Roger Pielke, Jr. argues for the importance of “facilitating democratic discourse” and suggests that there is room for improvement in academia. My own experiences have been that we had more open discussions within the Forest Service (due to having different experts needing to agree on documents) than my recent experiences with academia, both as a student and as an alumna. As Roger says, it’s not for everyone, but I think it should be encouraged, especially in institutions whose mission involves education of young people who need to enter a diverse work world. Of course, it’s also one of the main missions of this blog.

More than a century ago, American pragmatist John Dewey emphasized the importance of “intellectual hospitality.” By this he meant “An attitude of mind which actively welcomes suggestions and relevant information from all sides.” Today academics and other experts face a crisis of intellectual hospitality, with implications not just for the art of science communication but also for the broader roles of experts in democracy.

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A counter argument is that in an era where politics might matter more than ever, why should experts engage with their opponents? Maybe the stakes nowadays are just too high for the high-minded luxury of intellectual hospitality. In fact, perhaps we should actively be opposing delegitimized academics, the GMO industry, climate skeptics and even Republicans, lest we help their causes. I hear this argument a lot, as do others who seek to cross political lines in scientific engagement and communication.

Despite my experiences, I persist in believing that not just science but also democracy is well served by intellectual hospitality.

Experts reinforce democracy and work against authoritarianism when we adopt a stance of intellectual hospitality. A half century ago, American political scientist E. E. Schattschneider made a powerful case for the importance to democracy of a willingness to engage different points of view: “Democracy is based on a profound insight into human nature, the realization that all men are sinful, all are imperfect, all are prejudiced, and no one knows the whole truth.”

To paraphrase Walter Lippmann, democracy is not about getting everyone to think alike, but about getting people who think differently to act alike. Intellectual hospitality will not lead to uniform thinking, but it may facilitate collective action.

As experts we face important choices in how we deploy the authority that we have gained in society. We can use that power to delegitimize those we disagree with, to seek to dominate the intellectual arena. Alternatively, we can allow some in our ranks to try to serve as a corrective to the hyper-partisan politics of our era, to seek to facilitate democratic discourse. The choice is profound, not just for the politics of specific issues like climate change and GMOs, but for the practice of democracy itself.

Is Science on a Path to Irrelevance in Policy and Management? Keynote by Dr. Bob Lackey

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Dr. Bob Lackey
This paper from Lackey’s plenary session at the recent SAF 2018 Convention in Portland is well worth reading in its entirety. Lackey has a variety of real world experience in environmental science and policy, forests and fish in Oregon, for those who are not familiar with his work.

Lackey raises many points worth examining. Many people don’t trust scientists generally as voices of authority. Based on the ideological proclivities of university folks (seen in studies), could we expect them to design and carry out unbiased studies? Can choices of research priorities be carried out in an unbiased way by biased people? What about ways to mediate these impacts like co-production, co-design and extended peer review (as noted by Sir Peter Gluckman here).

Do these biases lead to an imbedded assumption in research studies that “natural is better”? If it is, shouldn’t we be discussing that openly in a forum of all disciplines and people that may be involved or impacted? If we really believe that, what does it say about human beings.. we are pretty much cockroaches in the kitchen of the planet? Ultimately those are not scientific beliefs, those are about what humankind is about- philosophical or metaphysical, depending on your worldview.

I’m not saying “natural” isn’t better, but there are different reasons that it might be better or not and those reasons could be important to policy. Further, with the climate changing, if we impute greater than 50% of the reason for climate change to human forces (at the risk of not, and seeming to be Zinkean or Pruittesque), then nothing will really be “natural” in the original sense. Where does that leave us policy-wise (we can already see this playing out in some ESA discussions)?

Here’s a quote related to that point:
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Is Our Science Biased Toward Natural?”
A simple question, but I’m working in academia these days, so a straightforward yes or no will not suffice.
To start, put on your science hat, and be honest here, imagine that the public owns a 5,000 acre stand of old growth fir. Is preserving this stand of old growth preferable to removing the trees and building a destination resort and golf course on the same 5,000 acres?
It is not! At least not without assuming, perhaps unwittingly, a policy preference, a value choice. The result? A classic example of normative science.
It may look like a scientific statement. It may sound like a scientific statement. It is often presented by people who we assume to be operating as scientists. But such statements in science are nothing more than policy advocacy masquerading as science.

Anyway, there’s plenty of discussion fodder in this paper, so have at it!

Greater sage-grouse amendment amendment

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Three years ago the Forest Service had this to say about the greater sage-grouse:

Two US Forest Service Records of Decision and associated land management plan amendments are the culmination of an unprecedented planning effort in cooperation with the Bureau of Land Management to conserve greater sage-grouse and its habitat on National Forest System lands and Bureau of Land Management-administered lands.

Last week it was this (and they initiated a public comment period):

Since approving the plan amendments in 2015, the Forest Service has gathered information and determined that the conservation benefits of Forest Service plans in Nevada and other states can be improved. That is, through repeated scoping, close collaboration with state and other federal agencies, and internal review, the Forest Service has identified proposed changes in the text of the greater sage-grouse plan amendments which would improve their clarity and efficiency and better align them with the Bureau of Land Management and state plans.

Specifically, the Preferred Alternative makes modifications to land management plans within the issue areas of: Habitat management area designation, including designating sagebrush focal areas as Priority Habitat Management Areas compensatory mitigation and net conservation gain; minerals plan components and waivers; exceptions and modifications; desired conditions; livestock grazing guidelines; adaptive management; treatment of invasive species; and changes to clarify text and eliminate errors and redundancies.

Oddly, it sounds like all of the new information must say that sage-grouse are doing better than we thought three years ago and/or they are less vulnerable to oil and gas drilling than we thought three years ago. The most important change in forest plans is probably this one (from an AP article):

The Obama administration created three protection levels for sage grouse. Most protective were Sagebrush Focal Areas, followed by Primary Habitat Management Areas and then General Habitat Management Areas. The Forest Service plan reclassifies the 1,400 square miles (3,600 kilometers) of Sagebrush Focal Areas as primary habitat.

The focal areas allowed no exceptions for surface development, while primary habitat allowed for limited exceptions with the agreed consent of various federal and state agencies. Under the new plan, the cooperation of states and some federal agencies to exceptions in primary habitat will no longer be needed for some activities but can be made unilaterally by an “authorized officer,” likely an Interior Department worker. That appears to be an avenue for opening focal areas to natural gas and oil drilling.

This amendment decision will be subject to the 2012 Planning Rule requirements for species viability and species of conservation concern (SCC) (from the DEIS):

… the FS is considering the effect on the greater sage-grouse as a potential SCC for each LMP that would be amended by this decision. The analysis in this DEIS shows that the amendments maintain ecological conditions necessary for a viable population of greater sage-grouse in the plan area for each LMP to which the amendments would apply.

Recall that the current conservation strategy was “generally viewed as keeping the bird from being listed for federal protections under the Endangered Species Act.”  What will the Zinke that is charge of the Fish and Wildlife Service have to say to the Zinke that is in charge of the BLM (and apparently the Forest Service)? Why does this remind me of political appointee Julie McDonald’s interference with decisions about lynx? Is it more about a new boss than about new science?  “A federal lawsuit is likely.”

Some more background is provided here.

NFS Litigation Weekly October 12, 2018

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Forest Service summary:  Litigation Weekly Oct 12

The court upheld the North Fork Mill Creek A to Z Project on the Colville National Forest (E. D. Wa.)

 

Blogger’s note:

The 9th Circuit had previously refused to enjoin the project and that decision was explained here.  This is important because the district court held that most of the issues involving fisher and pine marten had been finally determined by the 9th Circuit.  Even though preliminary injunctions don’t normally do that, on this issue the facts had not changed and the arguments were the same.

On the other hand, whereas the 9th Circuit did not get much into the question of contracting out the NEPA process (apparently subcontracted as part of a stewardship contract), this district court did.  The issue was treated as a challenge to the bidding process, which non-bidders have a hard time doing.  I thought there would be a NEPA issue about awarding a timber sale contract before the NEPA process was completed (there can no commitment to actions that would have environmental impacts prior to completion of NEPA requirements).  Maybe someone could enlighten me about what “stewardship contracts” actually commit the parties to do.

Here is an article also summarizing the court decision.

Sue and … keep suing

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Search this site for previous lively discussions of “sue and settle.”  Here is the latest attempt to stop it.  In September, the Interior Department extended EPA’s recent restrictions on litigation settlement agreements to the rest of the Department.

Here’s someone’s perception of the problem. Basically, there is rampant secret collusion between environmental groups and the government, which leads to substantive regulatory changes that “cost the economy billions of dollars and thousands of jobs, without Congressional approval.” Actually it is the laws passed by Congress that say the regulations must be produced that would have any impact, not the lawsuit forcing compliance with the law.

And here is another fact:

A legal analysis published by lawyer Ben Tyson in the Virginia Law Review, for example, looked at 79 settlements brokered between environmental groups and the Obama administration, and found that all but four of the agreements involved setting deadlines for compliance.

According to this article (which also provides an example of how this policy has worked in one case):

The Trump administration says the new rules are necessary to prevent government agencies from colluding with environmental groups to reach settlements that favor their interests. But critics say these rules only delay the implementation of federal laws designed to protect the environment, leaving ecosystems and wildlife vulnerable while agencies drag their feet.”

Though regulated industries and administration officials denounce lawsuit-happy environmental groups, the rhetoric surrounding sue and settle typically disregards the fact that agencies choose to settle because, as Bernhardt puts it in his order, “the Department is likely to lose.” According to a letter from 60 former federal attorneys criticizing the new EPA policy, “It is EPA’s failure to comply with legal requirements that is the problem, not the people who sue EPA.”

I’ve not seen evidence of “colluding with environmental groups.” Unless that includes DOJ evaluating the case and admitting it’s a loser. (Focusing on environmental groups also ignores the fact that settlements also benefit the Pacific Legal Foundation when it sues over ESA DE-listing requirements, and then there’s those regulations that a new administration would rather settle out of than defend.)

I’m a big fan of transparency, and I’m not sure what would justify not disclosing the terms of a settlement. As for public comments, I doubt if there would be a lot of interest in whether a legal deadline was missed or not.

However, the actual intent may be for this to “prolong the settlement process,” and thereby reduce the number of lawsuits that budget-limited plaintiffs can afford to bring.  But it could just as likely mean that plaintiffs would rather avoid the new process and spend their time in court, and a judge will have to decide more cases, which will almost always be against the government, and the government will have to pay even more money in legal fees (there are also new incentives to litigate the legal fees, which could lead to even more of them).

Coastal pine marten proposed for listing as a threatened species

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The U. S. Fish and Wildlife Service has proposed listing the coastal (Humboldt) marten, found in older forests in California and Oregon, as a threatened species.

“Martens are vulnerable to predation and increased competition in habitats that have been subject to either high–moderate severity fires or intensive logging in the last 40 years because both of these events remove the structural characteristics of the landscape that provide escape cover and are important to marten viability (canopy cover, shrub cover, etc.). These older forests have declined substantially from historical amounts…”

As a threatened species, the prohibitions in ESA against incidental take (§9) would not apply, but the FWS usually applies them using a special §4(d) regulation, which it is doing here. As is also common, they carve out exceptions to the prohibitions where take of the marten would be allowed; two of which would be relevant to national forest management:

(1) Forestry management activities for the purposes of reducing the risk or severity of wildfire, such as fuels reduction projects, fire breaks, and wildfire firefighting activities.

(3) Forestry management activities consistent with the conservation needs of the coastal marten. These include activities consistent with formal approved conservation plans or strategies, such as Federal or State plans and documents that include coastal marten conservation prescriptions or compliance, and for which the Service has determined that meeting such plans or strategies, or portions thereof, would be consistent with this proposed rule.

Here is the rationale:

“Although these management activities may result in some minimal level of harm or temporary disturbance to the coastal marten, overall, these activities benefit the subspecies by contributing to conservation and recovery. With adherence to the limitations described in the preceding paragraphs, these activities will have a net beneficial effect on the species by encouraging active forest management that creates and maintains the complex tree and shrub conditions needed to support the persistence of marten populations, which is essential to the species’ long-term viability and conservation.”

What this means is that forestry management activities that are not for the purpose of limiting fire or not consistent with the species’ needs would violate ESA if they harm any martens (unless they obtain an incidental take permit).

Regarding (1), I would ask whether all it takes to comply is for a project to say that it is for this purpose, or considering some of the discussions on this blog, does there have to be scientific support for the idea that a particular practice would actually have the intended effect.

Regarding (3), there is obviously a role for forest plans to include coastal marten conservation prescriptions. Presumably, plan components to create and maintain complex tree and shrub conditions for martens would be consistent with the NFMA requirement to provide ecological integrity and conditions needed for viability of at-risk species. What I haven’t seen before is a process by which the FWS reviews a forest plan for consistency with §4(d) criteria for a threatened species.

There could be future challenges to projects for violation of §9 because they do not meet these criteria.  The Center for Biological Diversity believes that “industrial logging” could meet these criteria and continue to occur in marten habitat.  At least (1) seems like it could be an exception that swallows the rule.  If it were dropped for fuel reduction projects, they could still occur if consistent with marten conservation under (3).

Chief Swearing- In Ceremony Tomorrow

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All, I just got back from vacation and haven’t had time yet to catch up with the blog. This was news to me, but then probably everything new is news to me..

Good Day Everyone:

USDA Secretary Sonny Perdue will administer the Oath of Office to Victoria (Vicki) Christiansen, to become our Chief at 9:45 a.m. Eastern Thursday, October 11 at USDA Forest Service Headquarters in the Yates Federal Building, Washington D.C.

Victoria (Vicki) Christiansen has served as our Interim Chief since March 8, 2018. Prior to that she was Deputy Chief for State and Private Forestry where she had oversight of Fire and Aviation Management, Tribal Relations, Forest Health Protection, Cooperative Forestry, Grey Towers and Conservation Education.

We invite you to join in this historic moment and view the swearing-in ceremony via USDA Forest Service Facebook Live. Here is the link: Forest Service Facebook Page and watch the top post. It will automatically be recorded after the event and will be stored on the page in the videos section.

Coverage begins at 9:45 a.m. Eastern.

We hope you will take time to watch this historic event.

NFS Litigation Weekly September 28, 2018

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Forest Service summaries:  Litigation Weekly sept 28

The Santa Fe National Forest must reinitiate ESA consultation on the effects of its 2012 travel management decision on the subsequently listed Jemez Mountain salamander.  (D. N.M.)

The Olympic National Forest did not explain why it was not feasible for the Navy to use private land for electronic warfare training, as required for issuance of a special use permit by its forest plan (but further briefing will be allowed).  (W.D. Wa.)

A magistrate judge agreed that the Santa Fe National Forest could deny a request to put a new telecommunications facility on Tesuque Peak.  (D. N.M.)

(New case.)  Off-road vehicle plaintiffs challenge the West Delores Roads and Trails Travel Management Project on the San Juan National Forest.  (D. Colo.)

The U. S. Fish and Wildlife Service improperly delisted the threatened Greater Yellowstone Ecosystem population of grizzly bears.  (D. Mont.)

The Lewis and Clark National Forest took too long to cancel oil and gas leases in the Badger-Two Medicine “traditional cultural district” due to NEPA deficiencies.  (D. D.C.)

 

Blogger’s note on the FSEEE case:  One of the other issues was whether another forest plan requirement was met that “interests and needs of the general public shall be given priority over those of the applicant.”  The Forest Service was upheld on this point because the Navy’s operating procedures require that they relocate if a camper is occupying the mobile emitter truck site, and the public user wishes.  I’m imagining myself telling the Navy to get lost.

Blogger’s bonus:

The BLM appears to have violated FLPMA and when it issued new procedures for public participation in oil and gas leasing in areas identified as greater sage-grouse special management areas in land management plans (as amended by the Greater Sage-Grouse Plan Amendments), and a preliminary injunction against their use for future leases was granted.  (D. Idaho)

The U. S. Fish and Wildlife Service must reconsider its decision to not list the species, found in California and Oregon forests, under ESA.  (N.D. Cal.)

 

“A Colorado resort area comes to the aid of a cash-strapped national forest”

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The Washington Post recently ran this story:

“A Colorado resort area comes to the aid of a cash-strapped national forest”

Excerpt:

“The visitor boom — while great for the local economy — is putting a strain on the public lands that are the reason people vacation, day-trip and retire to the Vail Valley. The cash-strapped U.S. Forest Service isn’t equipped to handle the more than 12 million people who come to the 2.3-million-acre White River National Forest each year.

“So Vail and other Eagle County governments are planning to set aside as much as $120,000 to pay for Forest Service employees to monitor trails and campgrounds and to enforce backcountry rules next summer.”

FWIW, the book I edited, 193 Million Acres: Toward a Healthier and More Resilient US Forest Service (recently published by the Society of American Foresters) includes two essays that address the problem, including one by our own Sharon Friedman:

“Wild and Free: Diverse Dispersed Recreation as the Forest Service’s Main Mission,” by Sharon Friedman

“Implementing Sustainable Recreation on the National Forest System: Aligning the Reality and Promise,” by Steven Selin

In addition, I suggest a potential solution in my introduction — excerpt below….

The book is on sale on the SAF web site, www.eforester.org/store (although it isn’t yet listed in SAF’s online store, you can find it by searching for “193 Million Acres”). Proceeds (if there are any after paying production costs), go to support SAF, a non-profit organization.

Steve

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Excerpt from the introduction to 193 Million Acres:

Selin calls on Congress and the Forest Service to “provide a strategic, focused, financial investment” in the agency’s recreation program. The Forest Service’s Framework for Sustainable Recreation (FSR), released in 2010, did not include such an investment. “It is high time the agency did so now,” wrote Selin. It seems unlikely that Congress will provide sufficient funding for this kind of investment in recreation or for addressing other elements of the backlog Thompson mentions. Perhaps an increase in the agency’s ability to be creative and flexible is in order.

For example, a national forest with a large backlog of deferred recreation facility maintenance, given the freedom to develop a solution on its own, might use stewardship contracting of the sort Tholen and others write about. In forest-health projects, a stewardship contractor typically thins an overcrowded stand and uses some of the proceeds from selling the merchantable timber to pay for the removal of small trees and brush that have little or no value, or for other ecological restoration services. The emphasis is on ecological: projects that are not primarily intended to restore or improve ecological conditions or functions aren’t allowed. According to the Forest Service handbook, “construction of developed campgrounds” and “maintenance of non-haul roads not causing water quality degradation”—roads not primarily intended for transporting harvested timber—are not appropriate stewardship contracting activities.

What if every national forest had the freedom to develop a long-term stewardship or service contract under which an amount of timber is harvested each year to pay for some or all of the recreation and/or other infrastructure construction and maintenance planned for the following year, even if such work has no significant environmental benefit? Revenues might be deposited in a recreation or infrastructure maintenance fund; any surplus funds would be carried over to the following year, saved for a rainy day (including the effects of a flood after a particularly rainy day), or spent on other recreation- or transportation-related projects, such building a new campground or fixing potholes. Advice on such expenditures could be sought from the forest’s resource advisory committee (RAC), and RAC recommendations would carry a great deal of weight. Donations to such funds might come from corporations, nonprofit groups, and individuals; in her essay, Friedman suggests something similar in a discussion the importance of “friends of the forest” groups.