NFS Litigation Weekly July 13, 2018

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Litigation Weekly July 13

The court upheld the Sequoia National Forest’s use of a road maintenance categorical exclusion for a commercial timber sale to remove hazard trees in the Cedar Fire burn area.  (This decision followed an earlier denial of a preliminary injunction, discussed here).  (E.D. Cal.)

(New case.)  Public Employees for Environmental Responsibility challenges the decision by the U. S. Fish and Wildlife Service to remove the Louisiana black bear from the ESA list of threatened species.  (D. D.C.)

In a 2-1 decision, the Fifth Circuit Court of Appeals upheld compliance with NEPA and the Clean Water Act by the U. S. Army Corps of Engineers when it granted a permit to construct the Bayou Bridge Pipeline in Louisiana.  (5th Cir.)

Exploring the Climate Science/Policy Jungle. II. What To Do About Air Travel/Tourism?

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Fig. 2 | Top bilateral embodied carbon movements. In 2013, international travel caused a carbon footprint of about 1 GtCO2e, or 23% of the global carbon
footprint of tourism. Arrows point in the direction of embodied carbon flow, which—in accordance with the literature—is the direction of commodity trade,
and is opposite to the movement of people. Red arrows: bilateral international movements belonging to the top 10% of the total 1 GtCO2e. Yellow arrows:
top 10–30%. Orange arrows: 30–50%. Blue arrows: the remainder
Given that carbon is one of the major sources of climate change (landscape change and other greenhouse gases are also involved), a policy question, both nationally and internationally is “what industries get to emit CO2?” and what industries are asked via policy to reduce emissions by changing their practices and/or reducing their activity, and which are asked to stop completely (coal is an example of this).

For Each Industry
Is it an Energy Producer or User?
Via Policies, Are we asking them to: Reduce Impacts of Doing the Same Amount?
And/or Do Less?
or Stop Entirely?

In this post, we’ll take a look at international tourism, and discuss it as it relates to places and impacts in the western US. Let’s take a look at this2018 paper by Lenzen et al.(and the correction here). My point is to simply ask the question, for what industries and when, are carbon footprints a reason to change local/state/federal policies? For example, should Boulder, Colorado stop having international conferences to reduce its carbon footprint? Should Utah stop encouraging international travel to visit ski areas and National Parks?

At around 1 kgCO2e per dollar of final demand (Supplementary Table 6c), the carbon multiplier (Section ‘Input-output analysis’) of global tourism is higher than those of global manufacturing (0.8 kgCO2e per US$) and construction (0.7 kgCO2e per US$), and higher than the global average (0.75 kgCO2e per US$). Growth in tourism-related expenditure is therefore a stronger accelerator of emissions than growth in manufacturing, construction or services provision.

…

Conclusions
Travel is highly income-elastic and carbon-intensive. As global economic development progresses, especially among high-income countries and regions experiencing rapid economic growth, consumers’ demand for travel has grown much faster than their consumption of other products and services. Driven by the desire for exotic travel experiences and an increasing reliance on aviation and luxury amenities, affluence has turned tourism into a carbon-intensive consumption category. Global demand for tourism is outstripping the decarbonization of tourism operations, and, as a result, is accelerating global carbon emissions. At the same time, at least 15%
of global tourism-related emissions are currently under no binding reduction target as emissions of international aviation and bunker shipping are excluded from the Paris Agreement. In addition, the United States, the most significant source of tourism emissions, does not support the Agreement.

..

Recognizing the global significance of tourism-related emissions, the UNWTO proposed two mitigation strategies: (1) to encourage travellers to choose short-haul destinations with an increased use of public transportation and less aviation; and (2) to provide marketbased incentives for tourism operators to improve their energy and carbon efficiency16. Our findings provide proof that so far these mitigation strategies have yielded limited success. Neither responsible travel behaviour nor technological improvements have been able to rein in the increase of tourism’s carbon footprint. Carbon taxes or carbon trading schemes (especially for aviation services) may be required to curtail unchecked future growth in tourism-related emissions.

So, international tourism is a user of CO2 emitting energy. Emissions of international aviation are not under a binding agreement (the US is not party to the Paris Agreement, but that doesn’t matter with regard to airline emissions).

Do US/state/local policies ask the tourism industry to reduce its footprint (reduce impacts)?
Do US/state/local policies discourage international/(or long-distance air national, which may be m/l the same) tourism? In fact, current policies may well promote more tourism.

Let’s imagine some policy options. Someone at PERC, can’t remember who, suggested that National Parks charge non-citizens more for entry fees to help address maintenance backlogs. Since people are generally fairly well-off who do international travel, would this be a good policy choice? Or perhaps the extra funds could go into efforts to reduce the carbon footprint of tourism in the Parks? Or go to a research fund toward low carbon fuel for jets? Should states encourage international tourism (or from tourists who come via plane), when the results lead to greater carbon use (plus water use and potentially other more local environmental impacts)? What are the economic/environmental trade-offs and who decides? And are these impacts on anyone’s radar screen? Why or why not?

Oregon State University Forestry Dean Dies Following Illness

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Thomas Maness, who served as dean of the College of Forestry at Oregon State University since 2012, died Thursday in Corvallis.

Our hearts and prayers go out to colleagues, students, friends and family of Dr. Maness.

It is with great sadness that we share the news that Thomas Maness, dean of the College of Forestry, passed away peacefully at home yesterday after battling an illness for the last two and a half years.

Thomas was a true visionary. One only needs to look at the Institute for Working Forest Landscapes and the TallWood Design Institute to understand Thomas’s dedication to improving the health of our lands, people, businesses, and ecosystems, and to do so through collaborative work. Through his vision, he helped propel our College into a globally recognized leader in forestry.

He was our friend, colleague, leader, and mentor.

Thomas’s inspiring words were always backed by meaningful action and high expectations. He recognized that for the College to prosper, we had to make hard decisions to achieve the excellence he confidently knew we were capable of – in our teaching, research and outreach. Thomas taught us we should not shy away from tough issues because that is where we are needed the most. (http://blogs.oregonstate.edu/issuesinforestry/)

If excellence is the goal of our College, our careers and our own lives, then complacency is the nemesis. Thomas drove us all to seek and achieve excellence and he provided the tools for us to do so. Since joining the College as Department Head of FERM in 2009, Thomas viewed our students as the best opportunity we have to make the world a better place. His commitment to diversity, equity, and inclusion, recognition that we are housed on the traditional territory of the Calapooia people, and assertion that the College must be a driver for positive change in our professions and society is a baseline for our future as a community. Thomas also believed that with the best support and inspiring faculty mentors, anything was possible for our students upon leaving the College and OSU. https://www.youtube.com/watch?v=qNQTM6CsVDg

Thomas committed to provide an inclusive, productive and engaging workplace. Many came to OSU because of his vision and specifically to work with Thomas. We learned more from him than we could ever ask of a mentor. Thomas was a once-in-a-generation personality.

Here’s a link to the note from OSU.
Here’s a post from the Capital Press that talks about his history pre-OSU.

Public meetings to draft a stewardship project proposal

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I probably should pay more attention to how Forest Service projects are developed, and I had to do a double-take on this:

The U.S. Forest Service has announced it will host local public meetings to identify project restoration activities that improve water quality, soil productivity, watershed health and wildlife and fish habitat and meet local and rural community needs.

The Clinch Ranger District is developing a “stewardship project” proposal, according to a press release. Stewardship projects allow the forest service “to work with a partner or contractor to remove timber and use the proceeds from the timber sale to fund restoration projects,” it states. “Stewardship projects can provide local jobs and economic benefits from the timber sale and from implementing restoration projects.”

“I am excited to hear ideas from local community members that could be included in future projects,” stated District Ranger Michelle Davalos. “By starting with a clear understanding of community interests, we can focus future projects on activities that will meet both the goals laid out in the Jefferson National Forest Plan and the needs of local communities.”

I like the sound of this; is this how stewardship projects usually work?  I assume this includes asking where to log.  Do/could they do the same thing on projects that aren’t “logging funded?”  This is the kind of early involvement that would go a long ways towards avoiding disputes down the road.

Travel planning vs RS-2477

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In 1866, the Mining Act included this provision (now known as RS-2477):  “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.”  What this means and how it is applied has become an issue with local governments in recent years where federal land managers have wanted to reduce roads or limit access.  It generally means that if a road predates the establishment of a National Forest, the Forest Service can not interfere with valid uses.  The process requires a quiet title action in federal claims court.

Here is a recent battle brewing in Colorado, where one county is actively seeking jurisdiction over 17 roads and trails in three counties, one of the trails being targeted for closure to motorized uses through the San Juan National Forest Travel Plan.  Another county wants nothing to do with it.  Montezuma County believes it has maps that prove its case, but the Forest Service disagrees. Here is their response:

If the information relying on maps is the only county proof that the roads and trails qualify for RS2477 status, then “the basis for the resolution is insufficient,” Padilla wrote.

He said the Forest Service is not against evaluating RS2477 assertions, but that the county bears the burden of proof.

“I know the county believes the converse is true, but that is not supported by current law, policy or regulation,” Padilla stated.

The national forest sees the county’s RS2477 resolution as nonbinding.

Routes currently designated as nonmotorized or are closed for public use will continue to be managed that way until the county validates their assertions through a legally recognized process, Padilla said.

“This means that violators would continue to receive citations,” he said.

Padilla added that there are current cases to support this position, including one in San Juan County, Utah, that involved county commissioner Phil Lyman, who received a ticket for driving an ATV on a nonmotorized route during a protest ride.

Where Dolores County disagrees is whether the Forest Service will “fight it,” which affects the cost side of the ledger for the counties.  I’m not aware that DOJ has ever conceded a RS-2477 case where the land management agency disputed the existence of the right-of-way.  But under this Administration, maybe Dolores County is wrong in thinking they should not “deceive ourselves that routes will just be given to us.”

What Should a Forest Plan Do and Not Do?

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By Rex Norman, retired public affairs officer on the Lake Tahoe Basin Management Unit
Josh Milligan asks:

I’d be interested to hear thoughts on what specifically makes a good forest plan. It seems like they’re overly complicated and some of the direction is marginally relevant. Conversely, I’d be interested to hear what people think forest plans should avoid doing.

Any thoughts on whether there’s a mental filter to sift through the universe of topics a plan could address to those that are meaningful?

We used to have a great many discussions on planning back when we were bright-eyed and bushy-tailed. In fact, talking about our different views about forest planning was one of the reasons Martin Nie and I started this blog, almost 10 years ago. I’ll also admit I may be biased..I live near a forest that seems to be doing excellent and innovative work without having revised its 1984 plan.

Here’s what I said in 2011 in response to Dave Iverson’s piece on the three levels of planning..in which he quoted the Committee of Scientists on forest plans as a “loose-leaf notebook”:

At the risk of sounding like Andy (he of the KISS Rule, see tab above), those three levels are pretty much a myth. We can talk about oil and gas leasing decisions, which are neither plan nor project. Or travel management (not a “project” in the same way a fuels treatment project is). Not to speak of the comprehensive master development plans for ski areas (their desired conditions). There are forest-wide invasive species treatment decisions and fire use decisions. There are multi-forest “species” decisions like the grizzly bear and lynx. There are even projects that are multi-forest. like power line clearing. Or Idaho roadless, which was state-wide, even across FS regions.

I think the COS idea reflected reality; that there are overlapping layers of decisions that are constantly shifting – faster than NFMA 15 year plans can possible keep up with. The loose-leaf notebook is a great image. But the fundamental problem with their perceived NFMA tab in the looseleaf notebook:

“It can include regional guidance for conservation strategies relevant to the area; the strategic vision, policies, and multiple-use goals developed through large landscape planning, including the description of the desired future conditions ” are those darned DFCs. If they are too general (“happy healthy ecosystems”) no one knows what they mean; if they are too specific (30 percent ponderosa pine in the 20-40 year age class), in an age of climate, or other kinds of change (including insect outbreaks) they can easily become out of date before 15 years or 30 in the case of some forests..)

I often ask folks what bothers them about having an out-of-date forest plan; it is usually litigation because something in the plan has become difficult to achieve due to changing conditions.

As I’ve said before, if I had given the most recent COS group a charge, it would have been to figure out “What, if anything, is useful about NFMA planning? To whom is it useful? How could we continue doing the useful pieces, but more effectively and efficiently?

The most important things that I think plans do is “put lines on the ground” and decide what happens where in a way that travel management and oil and gas leasing decisions can follow. But lately it seems like folks do that through Wilderness or Roadless or Special Management Areas or Proposed Wilderness or … and not having a Plan Revision process is not a barrier to these. I do like the idea of “people sitting around talking and then monitoring results together” as described here in an effort to synthesize previous discussions.

And I agree with Dave Iverson here.
“You can only hope to accomplish anything when you are able to define the scope the problem (time, space, issues, etc.) into “decision containers” that people (stakeholders, administrators, etc) can get their minds around. It seems that traditional “forest plan” containers are hopelessly over-filled when land management zoning, land management goals and objectives, program goals and objectives, and related “standards and guidelines” are all in play — and “in play” in a spatial container that isn’t really relevant to many of the objectives at hand.”

So here we are eight years after these discussions with a new NFMA Rule and new plans.. what are people currently thinking in answer to Josh’s question? I’d particularly like to hear from commenters from outside the FS who have participated in plan revisions.

NFS Litigation Weeklies June 29, July 6, 2018

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Litigation Weekly June 29

New case – involving a decision by the BLM, based on an EA, to eliminate wild horses from eight of nine horse management areas on public lands in the vicinity of Caliente, Nevada. (D. D.C.)

New case – involving a determination by the BLM that it was obligated to renew or reinstate two leases for a copper-nickel sulfide ore mine in the Boundary Waters Canoe Area Wilderness on the Superior National Forest.  (D. D.C.)  (Additional information was provided here.)

 

Litigation Weekly July 6

The court of appeals determined that the Forest Service had established a prescriptive easement over an adjacent ranch for the Indian Creek Trail, which provides public access to the Lee Metcalf Wilderness on the Beaverhead-Deerlodge National Forest.  (9th Cir.)

The court upheld restrictions on motorized use in Wilderness Study Areas in the Bitterroot National Forest Travel Plan, but remanded the bicycle portion of the plan for the Forest Service to provide an opportunity for administrative objections to closures of trails to bicycle use.  (D. Mont.)  (Also see this article.)

(Update.)  The appellate court remanded a case involving Federal Lands Recreation and Enhancement Act fees to the district court to determine what type of fee the plaintiff (a recreational boat user) paid, in order to determine the Forest Service obligations for the site on the Daniel Boone National Forest.  (6th Cir.)

 

 

 

Tribal forest decoupled from federal management practices

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This article from the Coos Bay World explains that the 5,400-acre Coquille Tribal Forest in Oregon is no longer “coupled” to BLM management practices — including Northwest Forest Plan restrictions on harvesting. Maybe the agencies ought to consult with the tribe as it considers revising the Northwest Forest Plan.

For the first time in a century and a half, the Coquille Indian Tribe is preparing to manage its forest land by its own rules. Under federal legislation signed in January, the tribe no longer must follow the “standards and guidelines” of federal agencies.

“Now the tribe can begin to lay the foundation for forest management for generations to come,” said Darin Jarnaghan, the tribe’s natural resources director.

The likely result? Increased timber production. A more flexible, sensible approach to environmental protection. Attention to a wide range of species instead of just a few.

“Our focus is on a holistic, balanced approach to forest management,” said Colin Beck, the tribe’s forest manager. “We don’t want to provide for timber harvest while ignoring the needs of the ecosystem, or manage for one or two species while ignoring other management goals. Our goal is to provide a sustained level of timber harvest while still meeting the needs of all of the species that call the forest home.”

According to the article, some changes may include:

• Stream buffers will become more sensible. Instead of arbitrarily banning harvest within 220 feet of a stream, the tribe will capitalize on scientific studies showing responsible ways to use varying buffers.

• The harvest system likewise will be more flexible. Instead of designating broad no-cut zones, the tribe may cut individual trees, or select clumps of trees to be left as wildlife habitat.

• In keeping with ancestral practices, some areas will be managed for multiple resources. Instead of focusing solely on marketable timber, the tribe values plant species such as bear grass, hazel and camas, all used for food or basketry material.

 

Norbeck Society: “Alarming New Report Indicates Unsustainable Logging on Black Hills”

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Interesting press release….

 

Norbeck Society
P.O. Box 9730

Rapid City, SD 57709

For Immediate Release

Alarming New Report Indicates Unsustainable Logging on Black Hills
National Forest

RAPID CITY (July 10, 2018) – A just-issued United States Department of
Agriculture report, Forests of South Dakota 2017, shows a trend of
depletion of standing merchantable timber on the Black Hills National
Forest.

The 2017 report reveals that for the study period ending in 2017, there
was 10 times the volume of timber harvested compared to net timber
growth on all forest land within South Dakota.  Further, the report
shows that for ponderosa pine (the primary commercial species in the
Black Hills), there was more volume lost to mortality or damage, rot,
etc. than there was volume gained in growth.  The ponderosa pine forest
was dying faster than it was growing primarily due to the mountain pine
beetle infestation.  This trend will diminish as the mountain pine
beetle activity decreases, but it still indicates that there have been
significant impacts to the standing inventory on the forest.  The Black
Hills National Forest needs a chance to recover, and this report shows
that there are serious issues with the sustainability of timber
management on the Forest at the current timber harvest levels.

The Forest Service is required by law to manage the National Forests for
multiple uses and sustained yields of timber. This simply means that
they cannot cut more wood on an annual basis than what grows. This basic
forestry tenet is taught at every Forestry school in the country. The
tool that ensures these sustained yields is known as an Allowable Sale
Quantity (ASQ), and it is used as a ceiling, not a target.  For the
Black Hills, the ASQ was set in the 1997 Forest Plan and was based on a
forest with almost double the current standing inventory.

Since 1997, about one third of the Forest has experienced mortality due
to wildfire and insect infestation.  These impacts alone should amply
indicate that the ASQ from 1997 is no longer valid. In response to a
mountain pine beetle epidemic, logging operations were increased and for
much of the past decade, harvests have been above the ASQ.  Harvests
have not been lowered since that time even though the mountain pine
beetle epidemic was declared over in 2016.
Awkwardly, the Black Hills National Forest is in the process of
approving the Black Hills Resilient Landscapes Project, which calls for
185,000 acres of logging and clears the way for high harvest volumes to
continue. Concerns are growing over the long-term sustainability of the
forest ecosystem and the timber industry it supports.  Further concerns
are for the associated regional tourism industry and the high quality of
life enjoyed by area residents.

During a recent Black Hills Resilient Landscapes Project Objection
Resolution Meeting with the Rocky Mountain Region Deputy Regional
Forester, Jacqueline Buchanan, the Norbeck Society used part of the
allotted time to discuss the depletion trend of the standing inventory
of timber.  Norbeck Society asked that language be added to the final
Record of Decision that would put limits on the amount of acres that
could be released out of the BHRL project each year, so that annual
sales of timber could be tapered down until an ASQ commensurate with
current standing volumes could be determined.

The Objection Response by the Forest Service is an assertion that the
ASQ set in the Forest Plan of 1997 is valid and that they plan to
continue with the high harvest volumes until the Forest Plan is revised,
which could take as long as eight more years.  Despite losing a
significant portion of the forest to several large wildfires and
mountain pine beetle infestations since 1997 the Forest Service
maintains that the ASQ from the 1997 Forest Plan is still valid, and
shows no inclination to make adjustments to annual timber sales.  This
is a cavalier response that ignores the reality of the current
situation.

The Norbeck Society views it as unfortunate that what was supposed to be
a project to promote resilience on the Forest will actually result in
unnecessary and even harmful harvesting of big trees from areas that
essentially pose no threat of insect infestation or catastrophic
wildfire.  In addition to the worry over the viability of the timber
industry in the future, being unwilling to manage for sustained yields
also has serious implications for the balance of uses on the forest and
for the livelihoods and quality of life for people in all walks of life
who depend on the health of the Forest.  A concerned public cannot
accept this.  The Black Hills National Forest is part of a portfolio of
assets owned by every American and it is important that it is managed
for sustainability.

Members of the press or public may wish to see Annual Reports of Forests
of South Dakota from previous years:
https://www.nrs.fs.fed.us/fia/data-tools/state-reports/SD/default.asp

Forests of South Dakota 2017 report:
https://www.fs.fed.us/nrs/pubs/ru/ru_fs158.pdf

Black Hills Resilient Landscapes Objection Response:
https://data.ecosystem-management.org/objections/displayDoc.php?doc=V1dwS1MyTldjRmhVYWtKb1ZucHNNVmt6Y0hwTlZUVnhWVlJDVDFwNk1Eaz0=

Black Hills Resilient Landscapes Project page:
https://www.fs.usda.gov/project/?project=49052

Media Contact:
David Miller, Norbeck Society Steering Committee
605-484-0055
[email protected]

Exploring the Climate Science/Policy Jungle: I. Negative Emissions and Forests

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Check out info here http://www.rffi.org/Biochar.html

I’m calling this “exploring the jungle” because I feel like I’m doing that, with a few shreds of maps that may or may not be connected.

Negative Emissions Used in Current IPCC Scenarios
Roger Pielke, Jr. does a nice job of laying out the fact that the IPCC has been using BECCS in its scenarios, the history and the policy implications in his recent paper in Issues in Science and Technology IST_33-39 Pielke.

In general, further research is necessary to characterize biomass’ long-term mitigation potential.” Yet by 2013, such caution had been left far behind, and negative emissions were central to nearly all scenarios of the IPCC Fifth Assessment Report that are compatible with a 2°C target. In less than a decade negative emissions went from an afterthought to being absolutely essential to international climate policy. No government had actually debated the merits of BECCS, there were no citizen consultations, and very little money was being devoted to research, development, or deployment of negative emissions technologies. Yet there it was at the center of international climate policy.

..

Because the proposed technologies were speculative and at best well off into the future, estimates of the costs and feasibility of their implementation could be tailored to the needs of sustaining the policy regime. Peter A. Turner and colleagues have observed that whereas “BECCS appears to be cost-effective in stylized models, its feasibility and cost at scale are not well known.” Of course not. If nothing else, full implementation of BECCS “at scale” would require the use of a global land area one and a half times the size of India (land that will therefore not be available for agriculture or other uses). In the absence of any justifiable method for predicting actual costs, why not just assume that BECCS will be affordable?

When I read this, I thought “uh-oh were we (forest people) supposed to be doing something to make this happen? Like using wood for biomass? Or planning great afforestation projects? No one told us, did they?” But I thought there had been/ is a big discussion about whether biomass was even carbon-neutral with the EPA Science Advisory Committee? Leaving that aside for now, I decided to find a list of what counted as negative emissions.

What Are Negative Emissions Technologies?

Activities commonly considered to create negative emissions include large-scale afforestation, bioenergy combined with carbon capture and storage (BECCS), direct removal of CO2 from the ambient air by means of chemical reaction, enhanced weathering, biochar formation, and soil carbon sequestration. It seems like we don’t talk much about afforestation, disagree about BECCS (with woody and non-woody plants, but either way don’t know how to scale up), with some work in biochar and soil carbon sequestration. If you’ve been watching research outputs as I have, you’ll find lots projecting what might happen under various climate change scenarios, and hardly anything about developing workable on-the-ground cost-efficient, economically viable and environmentally sensitive negative emissions technologies. But apparently others are noticing this. Fuss_2016_Research priorities for negative emissions.ERL is a paper by Fuss et al. that describes the current research gaps, and some ideas for filling them in. It even has a few paragraphs specific to forests.

How Do Negative Emissions Technologies Get Developed and Implemented?
When I asked about “how do these targets for negative emissions get implemented in the real world?” I was referred to Peters_2017_Catalysing a political shift from low to negative carbon.NCC commentary by Peters and Geden.

I’d like to thank the scientists who were kind enough to provide reprints of their papers and answer my questions. I’d like to close with three observations.
1. You don’t need to be an expert in climate to read and understand these papers and what they are saying.
2. There seems to be a disconnect between IPPC scenarios and the real world in terms of negative emissions technologies.
3. Maybe we should spend more research $ on trying to find and scale up negative emissions technologies in the real world, instead of modelling the details of unknown future events, even if some disciplines would be winners and others losers. If we looked across the broad range of government research funding, is there an optimal ratio of “trying to solve problems” versus “describing possible future problems to the fifth decimal place?” Does anyone even think about this?