NFS Litigation Weekly May 18, 2018

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Litigation Weekly May 18

(Update.)  Plaintiffs asked for an injunction pending an appeal to the Ninth Circuit of the district court’s denial of a preliminary injunction against the North and South Pioneer Project on the Boise National Forest.  (D. Or.)

(New case.)  Environmental plaintiffs challenge the North Hebgen Project, up to 5,670 acres of commercial and non-commercial logging, on the Custer-Gallatin National Forest.   They also challenge a 2015 amendment to the forest plan, Amendment 51, which they say removed or modified 56 goals and standards in the Gallatin Forest Plan.  (D. Mont.)

(New case.) A doctor seeking to treat a tree-sitter protesting the Mountain Valley Pipeline Project has sued the George Washington and Jefferson National Forest for a closure order that allegedly violates his Constitutional rights to provide medical treatment (freedom of speech, freedom to exercise religion and due process). (W.D. Va.)

(New case.) Plaintiff environmental groups seek a supplemental EIS for the Kulu Timber Sale on the Tongass National Forest.  (D. Alaska)

(New case.)  Environmental groups and landowners challenge 287 oil and gas leases of close to 150,000 acres in previously undeveloped parts of Montana that were based on four EAs.  (D. Mont.)

Liability for damages from wildfires

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Liability for damages from wildfires is a big issue in California, where utilities PG&E Corp. and Edison International face lawsuits related to fires that were started by powerlines

https://www.bloomberg.com/news/articles/2018-04-24/pg-e-edison-surge-as-california-amends-a-bill-on-wildfires

Could the Forest Service or BLM be held liable for fires that start on federal land and spread to private property?

Oregon law states that:

2017 ORS 477.092
Liability for destruction of property by wildfire

(2) A person is not liable in a civil action for injury to or destruction of property arising out of a wildfire, except to the extent evidence demonstrates that:

(a) An action or inaction of the person constituted negligence or a higher degree of fault; and

(b) The action or inaction caused or contributed to the cause of the wildfire or caused or contributed to the spreading of the wildfire. [emphasis added]

According to the state, “Oregon’s Defensible Space Law enlists the aid of property owners to better protect their homes and firefighters during encroaching wildfires. The law requires property owners to reduce excess vegetation, which may fuel a fire, around homes and other structures. In some cases, it is also necessary to create fuel breaks along property lines and roadsides.” [emphasis added]

I don’t know that this would apply to the Chetco Bar Fire in southwest Oregon, but in some cases, one might make the case that a failure to take action to reduce the chances of wildfire spreading across property lines (fuels reduction, etc.) might have “contributed to the spreading of the wildfire.”

Sierra Club: “Cutting Trees to Save the Birds”

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I was surprised to see this in Sierra, the magazine of the Sierra Club:

Cutting Trees to Save the Birds: How managing Maine’s “baby bird factory” can save eastern songbirds

“Gallo [a wildlife biologist] explains that healthy forests include a variety of vegetation. A dense understory allows birds to hide from predators, while open-and-closed canopies fit the different needs of many bird species. Standing dead wood provides cavities for nesting and attracts insects that birds feed on, while gaps in the trees mimic natural disturbances, allowing seedlings to sprout. “

This isn’t directly related to federal forest management, but if the Sierra Club is touting active forest management on private lands, maybe they’ll come around to accepting work on federal lands.

“The Forest Stewards Guild is now working to adapt and bring bird-centered forest programs to Rhode Island and North Carolina, said Amanda Mahaffey, the Northeast region director. They’re also looking to the Great Lakes states and Oregon. “

Ugly Americans get involved in travel planning

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“The debate over snowmobile access in the Tahoe National Forest has taken an ugly turn with a spate of emails, social media posts and online comments filled with foul and abusive language.

Several people pushing for more restrictions on snowmobiles in the 800,000-acre forest that straddles the Sierra Crest have been the targets of online abuse.

The problem has gotten bad enough that Forest Service officials disabled a portion of the online comment system when they suspected people used it to target other commenters with nasty emails.”

This is a symptom of a much bigger problem in this country right now, but the problem it causes federal agencies is that they will have to start questioning the results of the public comment process where there is any indication that people have been intimidated from participating.

Public radio asks,”How Much Of The Chetco Bar Burn Should Be Salvage Logged?”

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The Forest Service says it will salvage log 4,000 out of the 170,000 acres burned.

Smith heads Health Forests Healthy Communities, a timber industry-affiliated non-profit that advocates for active forest management. He says the relatively small post-fire logging project the Forest Service is planning is not only economically inadequate …

“ … but also a missed opportunity to reforest more of the landscape for the future.”

Smith says that salvage logging — followed by replanting — helps restore forest health. He says it’s important for fire safety, too.

“Less salvage means more dead and dying trees and snags that not only fuel the next big fire but also put firefighters in danger the next time they need to go in there and put out a fire,” he says.

The Oregon Society of American Foresters says post-fire logging can foster “timely development of desirable forest conditions.”

Still, in the Environmental Assessment for the Chetco Bar salvage project, Forest Service officials don’t claim any forest health or fire safety benefits. According to project coordinator Jessie Berner

“… We are trying to capture the value of those trees to try to recoup some of the economic value of that timber in support of our local communities.”

Salvage logging can definitely have economic benefit. But the scientific evidence that it leads to healthier forests is thin … Jerry Franklin is professor emeritus of ecosystem analysis at the University of Washington.

“I’m not aware of any science that supports the notion that salvage logging contributes significantly to ecological values, ecological recovery,” he says

“The best thing to do generally is to allow it to develop following the kind of natural processes that have been going on for thousands of years,” he says.

One point of disagreement might be whether that desired “landscape of the future” or “desirable forest conditions” constitutes “ecological recovery.”  Ecological sustainability and integrity are required for national forest lands.

BLM’s Recent Efforts to Diversify Wildland Firefighting

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Thanks to Emily Wolfe of the Mountain Outlaw Magazine, for sending her story on BLM efforts to increase women’s participation in wildland firefighting and ultimately to hire “a workforce with ethnic, racial and educational backgrounds representative of the communities they serve—and treating them well enough that they stay.”

Here are a couple of excerpts:

BLM manages a 10th of the country’s landmass, or 247.3 million acres, more than any other government agency. Housed under the Department of the Interior, the agency oversees grazing, oil and gas leases, recreation, conservation and other uses. As of July 2017, it had more than 10,400 employees, and nearly 3,000 in its fire program. Of those in fire, 18 percent were women. Among firefighters, particularly the high-level hotshot and smokejumping teams, the ratio is much lower.

The agency’s 11 hotshot crews employ one to three women on a typical 20-person team, and this year there are three female smokejumpers of 140 nationwide. The six- person engine crews that comprise most fire line employees usually have one or two women, or none. Between all federal firefighting entities—the BLM, the Forest Service, the National Park Service, the Bureau of Indian Affairs, and the U.S. Fish and Wildlife Service—the number of women in permanent fire operations positions hovers around 12 percent.

Few women and minorities apply to work on the fire line in the first place, and retention is difficult for all employees. The job’s physical nature is self-selecting, plus most positions are seasonal, based in remote locations, and require long stints away and out of cell reception—all of which double as risk factors for harassment and assault.

Simply injecting women into the workforce isn’t effective. Armed forces in Canada, Norway and Australia have used the critical mass approach to gender integration, a social theory suggesting that 15 to 30 percent of a minority is necessary for that group to succeed. But fire leaders still remember the 1981 settlement to a class action lawsuit that forced the Forest Service in California to match the civilian workforce’s gender ratio, at 43 percent women. To fulfill the consent decree, as it’s still known, women were sometimes promoted over more qualified men, leading to resentment, attrition and degradation of institutional knowledge.

That resentment still lingers. “I was told three years ago during a friendly conversation with a male coworker that I was only hired because I was female,” wrote Lorena Williams in a High Country News opinion piece published in March. “Women are often seen as intruders, as tokens who were only hired to meet some kind of quota. We are treated as pariahs in our professional fields, regarded as little more than sexual-harassment cases waiting to happen.”

…

In February, Strelnik went public about the repeated sexual harassment and retaliation she experienced over her 17-year Forest Service firefighting career, a #MeToo moment she says was made possible by the catharsis of working on the initiative. Amos Lee, a supervisory engine module leader at BLM’s Boise District, isn’t ashamed to say he wants to spend time with his family instead of being gone for six to nine months each year. Many firefighters do, he says.

This time the assignment is focused on implementation. The project list includes providing family housing and childcare facilities for employees in rural areas; re-evaluating physical testing requirements; and supporting independent, state-level education and mentorship programs. One of their top recommendations is hiring a permanent diversity and inclusion employee, a position BLM fire leadership is now in the process of creating.

Sierra Club’s Take on ESA Legislation

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From the Sierra Club…. It’s take on several bills that would modify the ESA.

Whittled Down, Endangered Species Act Continues to Be Chipped Away

A raft of new proposals seek to weaken the ESA
“The Endangered Species Act is under attack. A number of Congress members have introduced legislation designed to chip away at the law, which is the bedrock of wildlife protections in the United States. While it’s unlikely that any of this legislation will become law—thanks to the “green line” that still exists in the Senate—the proposals are nevertheless alarming, as they illustrate some representatives’ eagerness to promote human interests over the needs of other species, even if that means extinction”

Rocky Mountain Elk Foundation Cheers Court Decision

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A press release from the RMEF. I haven’t found the 9th’s decison yet….

Note that “RMEF maintains litigation reform is necessary….”

 

May 30, 2018

Court Rules in Favor of Active Forest Management

MISSOULA, Mont.—The U.S. Ninth Circuit Court of Appeals denied claims by several environmental groups and ruled in favor of a habitat management project in southwestern Montana.

The Rocky Mountain Elk Foundation and several other partners filed an amicus brief in support of the U.S. Forest Service and several other federal agencies.

“We have seen environmental groups file frivolous litigation time and time again seeking to thwart efforts designed at improving wildlife habitat and overall forest health. That is the case here,” said Blake Henning, RMEF chief conservation officer. “We appreciate the court’s ruling and look forward to the implementation of this needed habitat stewardship work.”

The East Deer Lodge Valley Landscape Restoration Management project is a landscape project in the Pintler Ranger District on the Beaverhead-Deerlodge National Forest designed to improve forest health and reduce sedimentation in the headwaters of the Clark Fork River.

The vast majority of lodgepole pine trees in this immediate area are dead. Many of them are already on the ground. Without forest management treatment in the near future, the forest floor will be covered with combustible material that will also impede the growth of shrubs and grasses needed by elk, deer and other wildlife.

The project calls for the removal of pine beetle-killed timber, forest thinning to reduce conifer encroachment and other treatments on riparian areas to protect and improve watersheds that will enhance both fish and wildlife habitat.

“RMEF maintains litigation reform is necessary in order to allow agencies tasked with managing our forests the ability to implement active forest management that is so badly needed all across elk country,” added Henning.

Paths Out of the Recreation Crisis- Summary by Rebecca Watson

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Thanks to Rebecca Watson for sharing her powerpoint in the comments here. Travis and I started a discussion there, but feel free to comment here as well. As usual, I’m curious about whether folks in other states have other takes and other ideas that have worked.

It is definitely worth reading in its entirety, but I extracted  a few of the ideas for this post. Walt Hecox, from Colorado College, had these supply and demand ideas,

Colorado College Economics Professor, Walt Hecox, who has led the Colorado College’s Annual Conservation Poll, got us started with some tough choices. He challenged us by saying you can:
• Grow the supply of recreational resources – for example, corporate adopt-a-trail/
road or greater roles for concessionaires
• Slow/limit the demand for those resources – limit visitors, auction access, charge for use.

Susan Daggett and Peter Metcalf argued that we should steer recreational users to places that have the hardened infrastructure to take the abuse of increased numbers.
• Focus some recreational use in urban areas. (Susan Daggett)
• Consider the 14’ers in Colorado as “urban interface” and build the infrastructure—a parking lots, permanent toilets, hardened trails—to handle the crowds. (Peter
Metcalf)

But where can the money come from?
1) Pay to Play
• California’s “green tag” OHV fee program is one successful model to raise funds from users.
• USFS/NPS charge parking fees and entrance fees at certain popular places.
• The Federal Lands Recreation Enhancement Act of 2004 (FLREA) fee program was started in the Bush Administration and Lynn Scarlett and I both advocated to Congress to
let FS/Interior agencies collect fees at developed locations and plow the $$ back into those areas, but…
• Some object and have sued (“I already pay taxes” or “that place is an exception to FLREA”).
• Although NPS collects the most $$, in 2015 OIG faulted NPS for not using the authority as much as it could.
• This year Interior Secretary Zinke was blasted for seeking big fee increases at 17 popular parks under this authority.
• FLREA authority was set to expire in 2016, but it was extended into FY 2017 and this year the Forest Service budget asked for permanent reauthorization.

(2) Excise Taxes

The Hook & Bullet component of outdoor recreation has been taxing the equipment they use in their recreation for many decades. In 1930 Pittman Robinson was enacted to tax hunting equipment and in 1952 Dingell Johnson to tax fishing equipment. This money goes back to the State Game & Fish agencies for habitat acquisition and management for game species. Over the years – billions of $$. This year, Secretary Zinke highlighted $1 billion from this tax for state wildlife programs.

• Some argue that other members of the Outdoor Industry Association (OIA) should do likewise – tax those $10,000 mountain bikes, $50 backpacks, tents and skis.
• Since 1999, OIA has opposed this arguing that since much of their product is imported they already pay excise taxes into the General Treasury and shouldn’t be asked to pay more. This position may change as the industry plays a larger role in GDP.

(3) Federal Legislation

Federal Legislation can bring focus and funding to outdoor recreation management.
• 2018 “National Trails Stewardship Act” directs USFS to publish a national strategy to strengthen role of volunteers to “augment and support capabilities of federal
employees.”
• Recently Secretary Zinke and Senator Alexander introduced a “National Park Restoration Act” – “all energy” additional revenue towards NPS infrastructure needs.
• “State Wildlife Action Plans” to conserve nongame habitat – OIA/AWFA say use energy royalties to fund this need.
• Fully appropriate Land & Water Conservation Fund (LWCF) ($900 million per year)
• Enacted in 1964; uses offshore O&G royalties to meet the annual appropriated amount.
• 2 components:
• State grants to acquire/develop recreational lands
• Fed side – acquire lands and waters
• Note neither is focused on maintenance/stewardship of the lands
• Full appropriation only happened twice in 49 years – most $$ flows into General Treasury and the annual appropriation is well below $900 million. Up for
reauthorization in 2018. FY 2018 Appropriation Bill funds LWCF at $425.
• “Recreation Not Red Tape” – help outfitters and promote private section volunteers
• “Outdoor Economy Act” – Interior Recreation FACA; FS already has a recreation FACA

Volunteer Stewardship:

Through our dialog in Colorado and our conversations in DC, VOC (Volunteers for Outdoor Colorado)  has identified some concrete steps that could enhance the role of volunteer stewardship:
• Nationwide stewardship network similar to the youth-focused Corps Network
• Volunteer offices in FS/BLM field offices – volunteers helping to coordinate stewards for the work inside the agencies
• VOC/USFS share the cost of the volunteer coordinator
• Work standards/training for trail work, water restoration
• Outdoor Stewardship Institute (OSI) training certificate – quality assurance for the land manager – volunteers trained in the work and safety protocols
• New funding model for stewardship work – across a landscape and multiple years of funding (with metrics) directed to make a meaningful impact rather than year-by year piecemeal work that may not be adequate to the need.

Latest on Potential BLM Move to Grand Junction

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Senator Bennet at Colorado National Monument last year
This is an interesting and detailed piece by Joey Bunch of the Colorado Politics on the potential BLM move to Grand Junction.

A couple of thoughts.. note that this isn’t a partisan effort in Colorado:

Sen. Michael Bennet, a Democrat from Denver, has been pushing the BLM deal with Gardner for almost a year. He, too, is convinced there’s nowhere better than Grand Junction.

“The values of Coloradans on the Western Slope align with the core mission of the BLM,” Bennet told Colorado Politics. “We must ensure this move is more than symbolic and provides the resources necessary to manage our public lands and improve agency decision-making.”

Also, I am thinking we might actually get better public servants in Grand Junction. I tried to hire people, both when I worked in Research and Development, and when I worked in NEPA, in the Washington Office, and many of the folks I considered to be the best wouldn’t move. If you are seeking diverse people, who are often at a low percentage of the total pool to start with, it can make hiring someone in DC almost impossible. For the Forest Service, and possibly the BLM, cities where regional offices are located, and D.C. are the most unattractive of possible locations. This was even true when I worked for USDA CSREES now NIFA, it was just too expensive for most folks to uproot their families and move.

On the other hand, perhaps in this day and age a “headquarters” is an outmoded concept and everyone should be working at home to save government $ and carbon. It’s tough to be in administration in this day and age, and I don’t envy folks who have to figure these things out. I do like the ideas below.

Swift said that while the agency hasn’t started naming specific cities, they have set some criteria for new homes for BLM: A reasonable cost of living, proximity to public lands, good quality of life and good schools and no more than two flights away from D.C. — say, like, Grand Junction Regional Airport to Denver International Airport and east to Washington.

In March, Tipton had Zinke sitting before him in a House Natural Resources Committee hearing. He used the opportunity to try to get the Interior boss on the record about the issue.

Zinke obliged.

“My concern is making sure we’re going to a community that has a high quality of life, that’s affordable to the GS-5 to GS-7 (employees), great communities where we can attract millennials who will want to live there,” he told Tipton.

A GS-5 federal employee earns up to about $38,000 a year. A GS-7 tops out at about $46,000 annually.

“Colorado certainly fits that description,” Zinke said.