Forest Service “takes” ranchers’ water rights

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The Court of Federal Claims (which reviews monetary claims against the U. S. government) decided a case in November that got a lot of attention in legal circles, but apparently not from the Forest Service.  It held, in Sacramento Grazing Association v. U.S., that the Forest Service violated the Fifth Amendment to the U. S. Constitution by “taking” (without compensation) water rights owned by ranchers using the Sacramento Allotment on the Lincoln National Forest in New Mexico. They did this by constructing exclosures to keep cattle from trampling two federally listed plant species in wet areas, and amending the allotment management plan to prohibit cattle from entering the exclosures.

After determining that historic grazing had established water rights for the ranchers under state law, the court held that the Forest Service physically took the water rights because it denied the ranchers all access to their property interest. The court seemed to base its decision on prior cases that involved entirely fencing off a lake or totally denying access to minerals. The court did not directly address arguments raised by the Forest Service that water rights do not entitle a user to a particular source of the water, and that the permitted number of cows had been able to find sufficient water without using the sources having exclosures.

The court ordered further discussion between the parties of locating alternative water sources, which had been unsuccessfully attempted earlier. If that is not possible, the Forest Service would be faced with continuing to pay the ranchers, or removing the exclosures, potentially leading to violations of the ESA. Or maybe they could not renew the permit or terminate the allotment. In earlier stages of the case, the court had held that the grazing permits are not a property right, and in this case, the number of cattle permitted to be grazed had also been reduced. However, the court’s reasoning in this recent decision would appear to also produce a “taking” if the historic number of cows were not allowed to graze the allotment because fewer cows could not use the historic volume of water ranchers are entitled to.

The case seems to be viewed as an aberration among “takings” scholars, this blog post noting that this outcome should be barred by a precedent set by the Federal Circuit in another recent case.  It is therefore a good candidate for appeal, but who knows what the current Administration might think about that, and it should have happened by now.  Here is a take from the ranchers’ perspective (which takes off from the court’s invoking of the Malheur National Wildlife Refuge occupation as a similar situation with different results).

NFS Litigation Weekly – March 9, 2018

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Litigation Weekly March 9

After a remand to correct NEPA deficiencies, the court upheld the Smokey Project on the Mendocino National Forest and dissolved the prior injunction against removing trees 2o” in diameter or greater.  (E.D. Cal.)  The prior decision in this case was addressed here.  (See below for more details.)

After two remands to address lynx and grizzly bear issues with biological opinions, the Ninth Circuit upheld the Gallatin National Forest decision on the Lonesome Wood 2 project to reduce the threat of wildfire, and dissolved the prior injunction.  (D. Mont.)  (See below for more details.)

(Update.)  The Ninth Circuit denied the government’s request to dismiss a case filed by twenty-one young plaintiffs against the United States, the President, and various Executive Branch officials and agencies, alleging that the defendants have contributed to climate change in violation of the plaintiffs’ constitutional rights.  (9th Cir.)

(New case.)  Plaintiffs challenge the use of a categorical exclusion for the Spear Creek Roadside Hazard Tree Mitigation Project along 23 miles of road in the Giant Sequoia National Monument.  (E.D. Cal.)  A related case involving the same issues on the same fire was discussed here.

Blogger’s comments on Conservation Congress v. USFS

This case addresses some of the scientific questions about northern spotted owls and fire that have been debated on this blog. There were two desired outcomes for the project area. One was to retain NSO foraging habitat, defined as at least 40% canopy cover. The other was to reduce the mortality from future fires under 97th percentile weather conditions to 25% (using the Forest Vegetation Simulator model). The proposed action, without diameter caps, was the only alternative where trees can be thinned evenly across all size class clumps: “the ability to remove some larger trees allows the Proposed Action to achieve reduction of canopy fuel hazard in the hard-to-replace larger size class clumps, and to retain canopy cover in the smaller size class clumps, both of which comprise the foraging habitat within the commercial thin units.”

Plaintiffs questioned the use of the 97th percentile because it differed from the 90th percentile used in the Forest’s “Late Successional Reserve Assessment.” The court found that the Forest had adequately explained its rationale: “the higher percentile accounts for climate change and the 97th percentile conditions were judged to approximate 90th percentile conditions over the life of the Project (20 years).”

The court also examined the basis for the requirement imposed by the Forest on the project that after treatment the potential mortality from future wildfire not exceed 25%. The “Late Successional Reserve Assessment” had stated that this limit on future mortality was necessary to “maintain late successional habitat.” The court agreed with the Forest Service interpretation that this did not need to include the effects of thinning, so the combined effect of thinning and future fires could therefore exceed 25%. The Assessment did not consider additional effects of thinning, so I think this is a case where the court gave the agency too much deference, and the Forest Service interpretation was arbitrary and capricious.

The court also identified a problem I have seen a few times – there are conflicting factual statements in the NEPA document and biological assessment and/or biological opinion. This required the Forest to retract and clarify statements as part of this remand.

Blogger’s comments on NEC v. Krueger

The court rejected the Forest Service position it characterized as “Forest Plan ‘goals’ are merely aspirational and thus impose no obligations on USFS,” citing other language in the plan that indicates the intent was more than “ a mere preference.”  This should have implications for the application of the 2012 Planning Rule, in which desired conditions are similarly “aspirational,” but also given significant weight through the Rule’s consistency requirement and elsewhere.   Nevertheless, the court held that, although it could imagine projects that would be incompatible with the goal, “the Council does not allege, and has offered no evidence to suggest, that Lonesome Wood 2 is such a project.”

The court examined a master’s thesis about lynx habitat requirements that had been produced after the lynx conservation strategy was amended into the forest plan, and which plaintiffs argued invalidated reliance on the provisions of the lynx amendment.  Regarding this new scientific information the court, held:

“In light of the deference that we owe to the agency’s expertise, and in light of FWS’s site-specific BiOp analyzing the effect of Lonesome Wood 2 on the Canada lynx, we disagree. We decline to overrule the Forest Service’s determination that Ms. Kosterman’s thesis does not require it to reevaluate its approval of the project.”

“Ms. Kosterman’s thesis will undoubtedly prove significant in the consultation process concerning the Lynx Amendments, including the WUI exemption, that has been reinitiated and is now underway pursuant to our decision in Cottonwood. Indeed, Regional Forester Marten acknowledged this in her letter when she wrote, “[W]e fully recognize the importance of [Ms. Kosterman’s] study and its implication for improved management direction.” If the Forest Service fails to give Ms. Kosterman’s thesis its due in the reinitiated consultation process, the Council will have an opportunity, in appropriate proceedings, to challenge that process and its result.”

Stay tuned.

Ethics of Endangered Species Protection: I. Some Considerations

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This is a Wild Earth Guardians lynx map from 199-2007

Starting with the discussion of Extinction on National Forests here, John Persell and I have been discussing the ethics and morality of protecting endangered species. John gets many points with me for seeking common ground through dialogue and is a good model for respectful discourse.

Here’s his original question https://forestpolicypub.com/2018/03/01/extinction-on-the-national-forests/comment-page-1/#comment-434462

“Is it never morally or ethically wrong to let species go extinct in any circumstances, in your personal opinion? Even purposeful eradication? I’m trying to get a sense of where the common ground is if the only barrier to extirpation or extinction is legal. If those wishing to protect the diversity of species that exists or formerly existed across an area cannot appeal to shared values because those values are not in fact shared, legal action (litigation) may be the only tool available, a tool that you generally deem inappropriate for public lands disputes. So where might the common ground be found?”

Here’s my answer and here’s his response. The great thing about a discussion like this is that we can enter deeper into it and go in different directions and there is always time.

As I read his question again, I think it might be morally or ethically wrong in some circumstances and not in others. Here are some things I’d consider and weigh in making any judgment calls.

1) Reality of Differentness: “how distinct are these really?”. Is it generally agreed it is a subspecies or species? Do different measurements lead to different conclusions (say different physical and genetic measures?)

2) Total Number of Critters Black Footed Ferret (once 18?) is a different order of magnitude than, say, Sage Grouse or sugar pine. There is also the related question of “does Canada count?”. If the climate warms and creatures move to Canada, they’re not really extinct are they? Or is extinct relative, like extinct in San Juan County, extinct in Colorado, extinct in the US, and so on…

2) Likelihood of Intervention Efficacyy.How sure are we that our interventions will help? Say, stopping hunting fishers is very likely to boost their populations. But different vegetation interventions with or without fire scenarios? Harder to say. Do we get evidence from different kinds of scientific studies and models? Do they agree? If not, how can we trust which ones? If, say a species is the victim of an infectious disease, should we stop all changes to habitat to make things better for the species when they could potentially all die from the disease anyway? Similarly, if they are sensitive to climate change, we could stop all vegetation manipulation and it might not help.

3) Impacts on People. What are the impacts of the interventions on people? Which people? Will they lose jobs, or will their energy bills go up? Will the jobs/product production be transferred to our northern neighbor or some other country? Will that impact the ecosystem or species there? How? Are their security issues related to our country’s need for certain products (say, energy?).

4) Biological factors. Is this species the end of a rare lineage? (gene conservation) Is this species some kind of “keystone”, e.g. forms burrows that others use? (may take a while for another species to fill the niche and meanwhile other species may also suffer).

What do you all think of these? Do others have other criteria to apply?

BLM O&C plan changes may lead to ESA listing

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One of the factors considered in listing a species under ESA is the adequacy of exiting regulatory mechanisms.  One of the biggest payoffs from national forest and BLM planning may be the adoption of such mandatory mechanisms that would protect a species and reduce or eliminate the need to list it under ESA.

The Northwest Forest Plan included a requirement to survey for rare species prior to logging projects – “Survey and Manage.” BLM amended its Northwestern and Coastal Oregon Resource Management Plan in August 2016 (see prior discussion on this blog here).  One significant change in the approach to managing at-risk species was eliminating the Survey and Manage requirement.  Here is the statement regarding this change from the BLM:

“The Proposed RMP, like the action alternatives, does not include the Survey and Manage measures of the No Action alternative. The Survey and Manage measures were included in the Northwest Forest Plan to respond to a goal of ensuring viable, well-distributed populations of all species associated with late-successional and old-growth forests. This goal of the Northwest Forest Plan was founded on a U.S. Forest Service organic statute and planning regulation, which did not and do not apply to the BLM, and is not a part of the purpose for this RMP revision. As detailed in the analysis in the Proposed RMP/Final EIS, the Proposed RMP will allocate a larger Late-Successional Reserve network than the No Action alternative, will protect older and more structurally-complex forests, and will continue to provide management for many of the formerly Survey and Manage species as Bureau Sensitive species. The Proposed RMP can achieve the purpose of this RMP revision and respond the BLM’s statutory authorities and mandates without the Survey and Manage measures.”

Here is a response:

Conservation groups Monday petitioned the government to list the rare Siskiyou Mountains salamander under the federal Endangered Species Act, claiming federal land managers’ apparent reneging on old “look before you log” provisions in potential future logging sales imperil the rare forest amphibian.

Since 2007, the BLM has been required to survey for rare species like the Siskiyou Mountains salamander and manage 110 high-priority sites for the benefits of salamanders and their habitats. This survey-and-management plan, was also known as the “look before you log” approach, generally includes logging buffers should sales move forward.

Conservation groups originally filed for Endangered Species Act protection for the salamander in 2004. The 2007 conservation agreement, as well as old-growth forest protections under the Northwest Forest Plan, were cited by the Fish and Wildlife Service when it denied Endangered Species Act protection for the salamander.

The Fish and Wildlife Service will now have to consider the effect of the changes in the BLM plan, and may decide that listing this species is warranted.  That could lead to further restrictions on logging.  Of course BLM could then blame someone else – for forcing it to recognize that protecting species and ecosystems is part of its mission.

 

Zinke wants a new national monument (in his home state)

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In our recent discussions of downsizing national monuments, I don’t think this little sideshow has been mentioned.

As part of his review of national monuments across the United States, the Interior secretary did not recommend a reduction in the size of any in his home state of Montana. In fact, Zinke, who represented Montana in Congress prior to taking over as Interior secretary earlier this year, recommended that Trump create a new 130,000-acre national monument in the Badger-Two Medicine area of northwestern Montana.

Both Bears Ears and Badger-Two Medicine are of cultural significance to Native American tribes. But only one is in Zinke’s home state.

“Everything that Secretary Zinke does in Montana is 180 degrees from what he does to the rest of the country,” Center for Western Priorities spokesperson Aaron Weiss told ThinkProgress. “Montana gets special treatment because he would like to be governor there some day.”

Land Tawney, executive director of the Backcountry Hunters and Anglers, told the Missoulian newspaper. “As you’re attacking the seminal accomplishments of [President Theodore] Roosevelt and at same time talking about adding a monument, it didn’t make much sense,”

Another take from the National Parks Conservation Association (in the Missoulian article):  “If monuments aren’t permanent, we don’t want monument status.  If it’s so transitory and impermanent it can be undone by the stroke of a pen in some future administration, it’s not permanent protection.”

It’s not obvious that the resource development opportunities foregone are that different from Utah either.  (I was reminded of this situation because a lawsuit is pending regarding a disputed oil lease in the Badger-Two Medicine.)

Wildfire Resilient Communities: Public- Private Partnerships?

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From NASA EArth Observatory

I thought this guest column in the Colorado Springs Gazette was interesting because it addresses the problem of developing wildfire resilient communities in its pure form (without the environmentalist/timber industry battles nor their “scientific” proxies). It requires more working together, different policy options (say, for more prescribed burning) and of course, funding. As the authors state, “Forest Service budgets cannot tackle such scale of management.” The authors represent a grant-making not for profit called the El Pomar Foundation.

The term “tragedy of the commons” might apply to Pikes Peak forest health: many benefit from a forested, serene Colorado Springs backdrop, yet none hold exclusive responsibility for its health and management. We lack the capacity needed to tackle broad regional public-private forest restoration due to two factors: the centurylong expectation that the U.S. Forest Service holds sole responsibility for forests, and the lack of responsible management across private forest landholders. We can no longer ignore the need our community has for conversation and action on this issue.

Imagine that massive fire revisits our region as a catastrophic fire on Cheyenne Mountain and the east slopes of Pikes Peak similar to the 1950 event. We know conditions could be ripe for near hurricane-force winds to push fire through our watersheds and down slopes into the wildland urban interface. If we look only at a strip of damage about 1 mile wide along the Wildland Urban Interface with Colorado Springs and Manitou Springs, potential lost property values could be $1.67 billion from NORAD Road north to Lake Avenue. If a strip northwest from Lake Avenue to U.S. 24 were to burn, $1.24 billion could go up in smoke. And these values exclude loss of use, property contents, and regional loss of recreation and tourism visitation. A a recent Pikes Peak Forest Health Symposium organized by El Pomar Foundation’s Pikes Peak Heritage Series was a first step in bringing together experts and interested regional residents to take stock of the threat. Symposium participants absorbed the grim messages of prior mega fires as well as dangerous conditions existing on a massive scale across the American West and right behind Colorado Springs in the Pike National Forest. They also heard about some promising public-private partnerships that, on a small to medium scale, are tackling forest restoration.

Across the nation and especially in forested regions, there are new programs, partners and fast evolving funding sources that could serve as examples in an effort to protect the flanks of Pikes Peak now and for future generations. Forest Service budgets cannot tackle such scale of management, but new approaches are enticing private capital and partnerships to share costs and benefits.

Colorado Springs’ mountain backdrop could be a model for a well-managed forest, with the Pike Ranger District the focus of an innovative public-private partnership that would selectively thin and manage for restoration to historic conditions. The results would allow, indeed encourage, low-intensity fires (natural and human induced) to clear out understory without the danger of fire reaching the crowns of trees that kill large swatches and scorch the soil.

What if proactive public-private partnerships and access to private capital were brought to bear on our Pikes Peak backdrop? And what if a small percentage of potential damages from catastrophic fire were combined from stakeholders benefiting and transferred to current vulnerable forests and watersheds to initiate such an effort? Given just the property values in the El Paso County Assessor’s records, losses of several billion dollars from a huge fire are possible; some $20 million at the front end could attract innovative tools, organizations, and public-private partnerships. Whether/who/how leadership will step forward is a gigantic question and challenge.

The Pikes Peak region has confronted and solved complex issues and can do so yet again if forest health is converted from being viewed as a static natural amenity to a dynamic, vital and scarce form of natural capital underpinning our mountain backdrop, economy and quality of life.

Rural New Mexico for wilderness?

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Grant County New Mexico ranchers have sued the Forest Service over grazing rights and the county commissioners are considering suing over a travel plan.  However, they have recently aimed their fire in another direction, at the Air Force, apparently to protect the Gila National Forest from planned overflights.

The Air Force is in the early stages — what lead airspace analyst Alan Shafer called “the end of the beginning” — of developing an environmental impact statement, as required by the National Environmental Policy Act, for three alternative areas in which to fly the F-16s. One of those alternatives is located over a vaguely defined swath of airspace over the Gila National Forest, near Grant County communities as well as over sections of the Gila and Aldo Wilderness areas.

When area residents discovered this alternative was being considered, hundreds quickly took up a call against the possibility. Shafer said so many Grant County residents commented, in fact, that their numbers overshadow those from anywhere else in the state — whether those commenters live near identified alternatives or not.

“We have, probably by a factor of ten, more comments from this area than any other,” Shafer told the large crowd on Thursday, which filled one of the ballrooms at the Grant County Veterans Memorial Business and Conference Center. “I understand what you’re saying and how important the Gila National Forest and wilderness area are to you.

It sounds like the Air Force was successful at getting a wide range of national forest interests to come together and fight a common enemy.  (Or maybe the “airspace analyst” just wasn’t very good at reading the crowd’s interests.)  Interestingly, there was nothing on the Gila National Forest website about it, including any indication of their role or whether they would take a position.

Bears lose to cows

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Here is George Wuerthner’s take on livestock allotment planning on the Bridger-Teton National Forest.

The Upper Green Allotment is the largest Forest Service grazing allotment in the West. It is a mixture of aspen, rolling sagebrush/grassland, willow-lined creeks, intermixed with ponds, and springs.

It contains the best wildlife habitat outside of a national park. Home to grizzlies and wolves, endangered Colorado cutthroat trout, sage grouse, elk, moose, pronghorn, and various rare amphibians, among other outstanding wildlife values.

That is one reason why the BTNF Forest Plan has categorized 93% of the area as DFC 10 and 12 status where protecting wildlife values is the primary goal. Yet the FS manages it as more or less a feedlot for a few local ranchers.

Since 1995, 34 grizzly bears have been “removed” from the Upper Green River allotment. When I questioned why the public’s wildlife was being removed instead of private livestock using our public lands, I was shut down and told I wasn’t allowed to debate these issues.

According to the Forest Service,

The purpose of the project is to continue to authorize livestock grazing in a manner that will maintain
or improve resource conditions. The Bridger-Teton Land and Resource Management Plan … provides direction to support community prosperity in part through livestock grazing (Goal 1.1 and Objective 1.1(h),… in a manner that avoids unacceptable effects from livestock use on range, soils, water, wildlife, and recreation values or experiences …

The majority of the project area is in DFC 10 (approximately 66 percent). The area theme is an area managed “to allow for some resource development and roads while having no adverse, and some beneficial effects on wildlife.”  The management emphasis is to “[p]rovide long-term and short-term habitat to meet the needs of wildlife managed in balance with timber harvest, grazing, and minerals development.”

Grizzly bear management objective is to minimize the livestock related grizzly bear mortality.

All of the alternatives would permit more cattle to graze than has historically occurred (Table ES-2).  All of the alternatives would be likely to adversely affect grizzly bears, which also sounds like a conflict with the forest plan requiring management for no adverse effects.  Arguably, a “no grazing” alternative would not meet the purpose and need, but it looks to me like they haven’t considered a reasonable range of alternatives to reduce impacts on grizzly bears.

He’s got some interesting comments about the bias of range “cons” who “deferred to the ranchers:”  “I can also assure you that most range cons are “want to be” ranchers…”  My experience was that they were more likely to be “want to be” wildlife biologists.  In contrast my experience with foresters (other than myself) is that they like to manage forests, and “no-action” has never appealed to them much, maybe because “it would result in no reason for your position.”

Western Governors’ Western Working Lands Forum on March 15-16 Live Feed

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Here’s a link to the agenda. Anyone who wants to give their impressions, please send a post to my email. It sounds interesting and right up our alley.

The Western Governors’ Association will host and livestream the inaugural Western Working Lands Forum on March 15-16. The forum will examine challenges of cross-boundary planning among state and federal agencies and tactics that span state, federal and private working lands.

Experts will discuss the definition and application of strategies as they relate to public policy-making for the management of landscape-scale invasive species, wildlife, and forest and rangeland.

Also at the forum: WGA will unveil a list of the Top 50 Invasive Species in the West. This first-of-its-kind regional assessment is designed to help land managers prioritize invasive species management actions and coordinate cross-boundary efforts.

WGA will be livestreaming the two-day workshop in Denver on YouTube and Facebook to enable the widest possible audience for this discussion. Please note that the following sessions are Mountain Time:

Thursday, March 15

Welcome and Introductory Remarks (1 p.m.): WGA Executive Director James D. Ogsbury and Andrus Center for Public Policy Executive Director John Freemuth will frame forum objectives and goals.

Cross-Boundary Conservation and the Endangered Species Act (1:45 p.m.): Regional experts will discuss strategies to expand species conservation efforts that cut across federal, state, and private lands.

Cross-Boundary Forest and Rangeland Management (2:30 p.m.): Panelists will discuss coordinated actions to support healthy forests and rangelands across ownership boundaries.

Cross-Boundary Invasive Species Management (3:30 p.m.): Scientists and land managers will examine techniques to prevent the migration of invasive species and how to coordinate mitigation efforts across management boundaries.

Implementing Cross-Boundary Planning: Practitioner Perspectives (4:15 p.m.): Panelists will discuss on-the-ground strategies they have employed to create effective cross-boundary strategies for land management challenges.

Friday, March 16

Balancing Multiple Policy Objectives with Cross-Boundary Management (8 a.m.): WGA Executive Director James D. Ogsbury will deliver opening remarks, followed by a panel that will examine the policy opportunities and challenges when planning cross-boundary projects.

Applications for Technology in Cross-Boundary Planning (9:15 a.m.): Panelists will discuss modern technologies that make it possible to plan and monitor land management actions at a landscape scale.

Progress and Considerations (10:30 a.m.): Panelists will reflect on lessons learned during the forum and discuss promising strategies for implementing effective cross-boundary projects.

Case Study – Cross-Boundary Cooperation: Successes and Challenges (11:30 a.m.): Representatives from the Greater Flagstaff Forest Partnership and the Upper South Platte Partnership will discuss how they created effective programs that address resource challenges across ownership boundaries.

Utah Representative Mike Noel’s Motives Under Scrutiny Regarding Relentless Crusade Against Alleged Federal Lands Overreach

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Cedar Mesa Grand Gulch

We have spent a bit of time on this blog hashing out the goods and bads of Presidential national monuments establishment under the Antiquities Act, and particularly subsequent reductions enacted by a subsequent Administration. In the latest reduction-saga President Donald J. Trump substantially reduced Bears Ears and Grand Staircase Escalante National Monuments in a Utah.

Some of us, particularly environmentalists and Democrats, thought the recent reduction to be a gleeful move to “stick it to the out-group” by a President hell-bent on undoing anything and everything done by the previous Obama Administration. In this case three added benefits would accrue to the reduction move: sticking it to the Clinton Administration, supporting “the base” by claiming benefits to energy-related resource extractive industries, and showing solidarity with the bright Red (Republican) Utah Delegation. It was no secret that the Utah Delegation had been courting the Trump Administration to reduce or eliminate at least these two National Monuments—stressing that the Monuments were established by midnight political attacks, or stunts, by outgoing Democratic Presidents only to score points with their base.

Recently, another shoe just dropped in the ongoing debacle over Bears Ears and Grand Staircase Escalante National Monuments. The Salt Lake Tribune notes, 3/9/2018:

…As one of the harshest critics of Bears Ears and Grand Staircase, [Utah State Rep. Mike Noel, R] faced a backlash after a Montana-based conservation group published documents last month showing that Noel’s company owned land inside the original boundaries of Grand Staircase that was cut out by Trump’s proclamation.

He had not disclosed the land-owning company on his legislative conflict-of-interest form, at least not by the name registered with the state.

Western Values Project responded Friday to Noel’s reported retirement by asserting that there are “ongoing investigations” of him. “He must still be held accountable for his actions,” the group said, “even if he is no longer willing to face the public as a legislator.” …

Surprised?