Friday Round-up and Important Correction

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From NY Times virtual fencing story

Important Error Correction. I was gently reminded by a retiree that I was wrong about who made the appeals decisions, it was the DRF.  Also I didn’t mention that OGC was at the table.  I don’t know that every RO has an OGC office in the same building, but it was very important for our work to have them close at hand.  We had several acting RF’s through time, and they had different levels of interest/experience in the kinds of projects, legal requirements and potential pitfalls.  Again, also substantial variation in personalities. My memory is that if the Forest Supe (Appeal Reviewing Officer) and the RART Team came up with something and OGC raised concerns, the DRF would tend to go with what OGC said, because, after all Appeals were basically pre-litigation checks, in a sense.  I also didn’t point out that objections are different from appeals (or at least were intended to be) so I’m not sure how they are currently handled and whether that varies by Region.

A variety of interesting things..

1. F&AM Director to Stay On. The Hotshot Wakeup reported that the F&AM Director for the Forest Service, Sarah Fisher has agreed to stay on for the FY26 Fire Season to help with transition. According to THW, she is widely respected in the wildfire community.

2. Story in NY Times About PERC’s Virtual Fencing
Via PERC you can get the story for free. Great videos.

Virtual fencing is infinitely adjustable. Ranchers can set precise limits on pastures to keep cows away from sensitive areas like streams or sagebrush. They can move cows around more often to prevent overgrazing, which stresses ecosystems. It can also make cows eat less-palatable invasive species such as cheatgrass and medusahead.

The collars also let ranchers monitor where their cows are, which has many benefits. A big one is reducing conflict with predators. If a rancher sees on their phone that cows are bunched up, it could be a sign that a wolf or grizzly is lurking. Tracking also makes it easier to help a cow or calf that is injured. If ranch hands notice that an animal has died, they can remove the carcass before it attracts predators.

Wild animals can get stuck in wire fences and die, or they can just plow through. One season, Mr. Taylor replaced the same section of fence three times. Now, with virtual fences, he can simply leave gates open.

Mr. Graves is leveraging another perk of virtual fences: They can’t burn down. Last September, wildfire burned nearly 100,000 acres of the Bighorn Mountains, destroying thousands of miles of fence. He’s encouraging private landowners and the United States Forest Service to replace burned fences with virtual fences, and to use virtual fences to keep cattle off the burned landscape while it recovers.

3. Permitting Reform Current Drama
I thought Shawn Regan’s piece in City Journal on the current permitting reform efforts was well done. One of the current disagreements is over permit certainty..

To address those concerns, Westerman recently added an amendment addressing permit certainty. The provision would prohibit federal agencies from revoking, suspending, or otherwise interfering with already-approved permits. The amendment was a direct response to the Trump administration’s efforts to cancel previously permitted wind and solar projects, a campaign that has alarmed clean energy developers and their Democratic allies.

But permit certainty ought to appeal to Republicans too. Republicans have their own scars from the Obama and Biden years, when projects like the Keystone XL pipeline were approved, canceled, revived, and re-canceled again depending on who occupied the White House. A durable permitting regime that protects approved projects from the whims of future administrations should, in theory, attract bipartisan support. Yet some Republicans now worry that the provision too significantly hamstrings Trump’s ability to target disfavored renewable projects—illustrating just how difficult it is to build a coalition around neutral rules.

4. Podcast: Sara Ghafouri and the Legal Frontlines of Forestry
i always like Nick Smith’s interviews as he tends to ask the same questions I would ask, plus others that I would never think of, but have interesting answers.

AFRC General Counsel Sara Ghafouri provides an in depth look at the legal landscape shaping active forest management in the West. Sara shares what is new in AFRC’s Legal Program, recent legal wins, and the biggest challenges and opportunities facing forest management over the next year. She also breaks down how AFRC decides when to engage in litigation, how changes in the courts are influencing outcomes, and why it is essential to bring workers, local governments and community voices into the courtroom.

5. ABA podcasts on forest law.
Here’s a link, it sounds like it is going to be a series. I think their idea is that there are more laws for public forests than private ones, so started there.

We are pleased to be joined by Professor John Leshy, author of Our Common Ground and the preeminent scholar on the history of America’s public lands. Public land management is the cornerstone of forest law in the United States, and Professor Leshy’s insights into its scope and evolution are invaluable in helping to piece together the fundamentals of forest law.

Forest law presents a daunting barrier of entry to the uninitiated. Forest law is composed of and delimited by a broad swath of statutes, regulations, and norms, all shaped by a diverse array of stakeholders. The implications of forest management decisions are vast and varied, ranging from the hyperlocal—with decisions concerning timber harvest and wildfire mitigation bearing directly on the continued prosperity and existence of some rural communities—to the planetary, as climate change intensifies and the health of the world’s forests grows ever further imperative to slow its most devastating effects. Complicating things further, today, forest law in the United States is undergoing rapid changes at the federal level.

6. Salvage Speed Record in Idaho

“This was a collective effort,” said Kyle Laven, Supervisory Forester and GNA Program Manager for the USFS, Boise National Forest. “From start to finish, this sale was prepared and awarded in six weeks; immediately after the categorical exclusion was signed, which was an immense turnaround in itself.”

On Oct. 22, just 22 days after the fire was contained, the GNA Rock Fire Salvage sale on the Boise National Forest sold 224,000 board feet to Tamarack Resort. Harvest work on both the IDL sale and the complementary GNA sale is wrapping up this week and will resume in the spring.

The Role of Regional Offices in Oversight: What Do They Do and How Are They Different?

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We’ve been having an interesting discussion related to the role of the Regional Offices.

As we dove in during the 2007 Transformation effort,  we looked at what RO’s did. Regional Offices apportion budgets (and targets), provide technical support to the Forests and exercise some kind of oversight of forest decisions.  When I said in the post:

As a former RO employee in “environmental planning”.. I don’t actually remember the RO doing much decision-making. The RF signed off on Forest plans (at the time).. we did a Regional lynx amendment (not sure who signed it). It’s not that I disagree with the idea, it’s just one of those content analysis things where you don’t really know if the commenters were responding to something specific, or they had a different idea of how decisions are currently made.

I was talking about technically signing decision documents.  In our Region, the appeals process was run by Regional Review teams from forests, and a Forest Supe worked on them as Deciding Official.  They all took this work very seriously and put an incredible amount of effort into it.

When I was in NEPA in DC, we ran into one forest who seemed to want to do what we thought of as CE abuse in a certain (not 2) Region.  The RO staff called it out, but the RF did not tell the Forest Supe to stand down.  I wonder whether RFs have to ration their interference with Forest decisions, based on culture or personality or number of other conflicting objectives.

But as I think back on it, I suspect that different Regions have different cultures. In fact, probably different staffs within different Regions have different cultures about the advice to oversight continuum.  Indeed, for different time periods and different Forest Supe -DRF -RF-Director personalities might have an impact as well.  So I am hoping commenters with different Regions, staffs and time periods experiences will weigh in.

I’ll highlight a few comments here that make me think there is that kind of diversity.

Okey Dokey Smokey said in this comment:

I think this is driven by non profit environmental groups who for years had been given a cozy reception at Regional Offices any time they did not like decisions made at forest level, or wanted to force Forest Sups to make the similar decisions on zone or regional issues… I believe many Forest level employees saw Regional Offices as bloated high graded inefficient controlling and strongly biased toward protection and against multiple use. I say good riddance to that system.

If you think of the different staffs in an RO,  in our case we had Veg Management, Recreation, something like Lands and Minerals, Planning, Engineering, Fire, Coop Forestry, Tribal Relations, as well as more administrative functions.  My own experience was that specialists like hydrologists, botanists, wildlife, silviculture, timber and so on basically had to work it out within their staff (whew for the rest of us).  During one Colorado Roadless EIS, I had to ask the hydrologist and the fish bio to coordinate because they wrote different things about the same impacts. We had our own technical specialists in planning, economists and social scientists, but for some reason there didn’t seem to be as much internal staff or external conflict with them. Perhaps because forests didn’t have their own, they seemed happy to get the work done.  Folks in minerals seemed like they didn’t have ideological problems with minerals, nor did recreation folks with recreation (mostly), nor engineers with roads or bridges, nor wildfire folks with prescribed fire or fires suppression.

Suelo said:

“As a former RO employee in “environmental planning”.. I don’t actually remember the RO doing much decision-making.”

The implied innocence of RO leaves me dumbfounded. When it comes to resource protections – which is the source of NEPA dilation in management actions – RO culpability is a given. Generally, you want to rely on the RO but disconnectedness keeps you from making that call for ‘support’

I’m not sure Suelo meant “dilation,” and I thought NEPA was a procedural statute (I think the Supreme Court agrees, FWIW).  We hired the best people we could find to be experts and they were called by forests plenty   In some cases, I don’t think it was because the Forest folks didn’t have a very good idea of what they were doing, but various aspects could be questioned and so it was thought to be good to have the RO “blessing” just in case something went awry later.

I also think asking, at least in NEPA,  is partially personality dependent, forest expertise dependent, and sometimes people are hired for say dual career or other reasons and the forests know they don’t have the NEPA chops and don’t call them.  Word gets around.

Finally, in terms of oversight, we did whole-Forest reviews (including separate employee and public input) and some forest program reviews.  Do RO’s still do those? What has been your experience, as reviewer or reviewee?

So my question to all folks out there with experience on Forests and in RO’s…  what kind of important oversight did they do? And especially for those with experience in several Regions- are the cultures very different?

 

 

Feds- Watch What You Say: Someone May Be Recording Your Conference Calls And Sharing Them

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I don’t know much about BLM folks so I wouldn’t have thought that this E&E News story would be of interest, except for one thing.

Reviving the liaison role is part of a senior staff reshuffling that BLM staff began learning about on Monday and also involves several other senior program directors
and state office directors. BLM and the Interior Department declined to comment. But details about many of the reassignments were outlined to the bureau’s resources and planning staff during a conference call Tuesday, a recording of which was obtained by POLITICO’s E&E News. The senior staff reshuffling involves temporarily reassigning nine officials to new positions for at least 120 days, starting Jan. 12. The reassignments can be extended another 120 days or eventually made permanent.

This seems like a new thing to me, but perhaps not.  Someone in a conference call recorded it, and shared it with Politico. Politico is generally thought (although, sigh, the bias reporting folks also have biases, so there’s that) to be a left of center publication. At the beginning of this Admin, purchasing E&E News subscriptions was cut off for some federal entities.  I don’t know if those subscriptions were started again, but it’s reasonable to assume some potential bad blood between Politico and this Admin.

It seems to me that this raises all kinds of issues.

  1. Is this a step further than just leaking draft documents to interested parties? Does it matter whether the leak is to an ENGO or to the press?
  2. Personally, I would consider it a bit of a stab in the back if a co-worker recorded a conference call I was in without telling me.  Mistrust among co-workers is not a good thing, is it?
  3. It’s legal to record with only one party consenting in DC apparently.. but do state laws apply when parties to the call are in different states?
  4.  Would it be OK for someone to record a conference call in some future D Admin and leak it to some R -leaning outlet?
  5. I noticed that Senator Wyden has a banner across the top of his webpage “submit a whistleblower complaint“.. I didn’t notice that during the last Admin. I also didn’t notice it on Senator Padilla’s, Hickenlooper’s, Bennet’s, or Merkley’s webpages.  I like his definitions “if you wish to report waste, fraud, abuse, or retaliation, potential violations of law or threats to public safety.”  I can see whistleblowing, and running through the internal review processes first, but this was just a … conference call.

I recall very few of these kinds of stories during the Biden Admin, and yet I’m sure that BLM politicals were having conference calls about positions.  Were people not leaking (if not, why not?) or were sources like Politico not as interested (if not, why not?).  It seems to me that if federal employees want people to believe that they are not partisan, they should behave similarly for each color of Admin.

What do you all think about .. is there a line for leaking? How does it relate to whistleblowing? Of course, maybe the recording wasn’t leaked.. the story is careful to say it was “obtained”, so perhaps Politico is bugging Interior offices?

Domestic sheep grazing and Wilderness are always at odds

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Sheep in the High Uintas Wilderness by Ken Lund.

[The following essay was written by Wilderness Watch’s Mason Parker. The piece details Wilderness Watch’s objection to a U.S. Forest Service decision to allow more than 10,000 domestic sheep and their lambs to graze on 10 allotments—including one which has not been grazed in more than 40 years—totaling about 144,000 acres in the High Uintas Wilderness, which is on the Uinta-Wasatch-Cache National Forest in Utah. This decision puts countless native bighorn sheep at risk of sickness and death, due to fatal diseases they contract from domestic sheep. – mk]

Domestic sheep grazing and Wilderness are always at odds
By Mason Parker, Wilderness Watch

Stumbling over the rugged alpine landscape of the High Uintas Wilderness, a bighorn lamb is coughing and struggling, afflicted with pneumonia as the cold skies of winter set in. Here in northeastern Utah, a battle between domestication and wildness has been raging for three decades, while the West’s wild bighorns have fought for survival for over two centuries.

In September, Wilderness Watch filed an objection to a decision signed by the Uinta-Wasatch-Cache National Forest to continue domestic sheep grazing on 144,000 acres, nearly one third of the High Uintas Wilderness. Releasing another 10,000 domestic sheep into the wild would put countless bighorn sheep at risk of sickness and death, leaving them vulnerable to the harsh conditions of the High Uintas in winter. Sick lambs don’t live long out there.

Brought to America from the old country, the pathogen Mycoplasma ovipneumoniae, or Movi, causes the runaway spread of pneumonia after being introduced to bighorns through domestic sheep. The pneumonia, which is undetectable in domestic sheep, is spread through nose-to-nose contact, a friendly greeting between two long-separated descendants of a common ancestor. For these bighorn herds, the result is nothing short of catastrophic. First the disease annihilates the herd, then it becomes endemic. Ewes become chronic carriers, infecting their lambs for decades after the initial outbreak. Any bighorn lamb that becomes infected has likely been issued a death sentence. If the infection doesn’t take their life, the sickness leaves them vulnerable to predation and the elements. In North America, the bighorn population has plummeted by an estimated 96 percent since Euro-American colonization. There are many reasons for this, but the primary cause of untimely mortality among wild sheep is pneumonia. Tragically, the agencies managing these areas refuse to implement simple solutions, even as they witness the wildlife they’re responsible for dying excruciating deaths year after year.

The impact of domestic sheep grazing on Wilderness doesn’t end with dying lambs—endless ecological problems arise when you turn a Wilderness into a feedlot. Unsupervised sheep defecate wherever they like, which has led to filthy conditions in areas of the High Uintas like Bald Mountain, where domestic sheep run roughshod. Backpackers have reported so much feces covering the ground they couldn’t even find a place to set their packs.

Domestic sheep grazing leads to the depletion of vegetation that would otherwise feed native wildlife, like elk, mule deer, and, of course, bighorn sheep. This leads to accelerated soil erosion and sedimentation that flows downstream and gets dumped into vulnerable ecosystems, impacting aquatic life as well. Excessive sedimentation clogs fish gills, reduces oxygen levels, disrupts the food chain, and leads to the loss of sensitive species such as cutthroat trout.

And yet, having access to these Wilderness lands, overgrazing and trampling them to mud and dust still isn’t enough. Permittees demand the trapping and killing of native wildlife like black bears, mountain lions, and coyotes. This, of course, is after the ranchers and government worked together to trap, hunt, and poison gray wolves in a coordinated campaign of extermination in the Uintas that ended when the last wolf was killed in 1929. Utah’s Bighorn Plan, which is supported by the Forest Service, calls for the killing of cougars and the helicopter gunning of potentially infected bighorn sheep, rather than the more logical and humane closing of livestock grazing allotments. You and I pay for this! Taxpayers foot the bill to prop up the failing business model of public lands ranchers across the West, including 13 million acres of Wilderness. In fact, the ranching corporation grazing their domestic sheep in the High Uintas Wilderness pays less than one cent a day per sheep for the privilege. Where’s DOGE when you need them?

If wild animals are not safe in Wilderness, then there is nowhere safe for them left in the world.

Domestication is sweeping the planet at an unprecedented rate—wild animals make up only four percent of the mammals on earth. The other 96 percent is nothing but humans, our pets, and our livestock. Chickens and poultry make up 70 percent of the avian life left, more than double the population of remaining wild birds. If we haven’t drawn a line already, when will we? The ecological turmoil resulting from modern agricultural practices should be enough, but what about the misery and loneliness at the end of the extinction crisis? E.O. Wilson called this era of mass extinction and biological catastrophe the Eremozoic period, or the Age of Loneliness, when we have given up all the world’s wildlife and biodiversity for a cheeseburger and another pair of socks.

While the thought of dying bighorn lambs and mass extinction is unbearably depressing, some of our ecological problems have straight-forward solutions. Protecting the bighorn sheep of the High Uintas is one such problem, and the solution is clear: end domestic sheep grazing in this alpine Wilderness. Yet land managers seem fanatical in their desire to appease those who exploit the Wilderness to line their pockets.

Wildernesses like the High Uintas are the last remaining sanctuaries for wildlife, as the planet succumbs to the sprawl of civilization. It is vital that these lands remain safe for wild bighorns, because they have nowhere left to go. If we allow ranchers to feed from the public trough, it should come with an understanding that it is done with respect for the land and its wild inhabitants, not at the cost of ecosystem collapse and mass extinction. If this means we must end the practice altogether, especially in Wilderness, so be it. The agencies that approve plans leading to the death of bighorns and the destruction of ecosystems are not just complacent in the ranchers’ conquest, they are equally responsible.

The reality is that domestication and wildness are at odds with one another. They cannot coexist in any sustainable way, because the primary goal of domestication is the taming of wildness. While wildness now only exists in small pockets around America, there are some who wish to see it eradicated entirely. Nearly everything is not enough. A world of domestication is defined by barrenness, sickness, and boredom, but a world of wildness is fertile and vigorous and intense. We must do everything we can to protect what’s wild and prevent the transformation of Wilderness into feedlots. For the bighorns of the High Uintas, there is no more room for compromise.

Mason Parker is Wilderness Watch’s Wilderness Defense Director.

Content Analysis for USDA Reorganization: AI Run Amok?

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This document has come to my attention, which I believe to be the content analysis of the public comment on USDA Reorganization. It’s separated out by the source of comment, employees, retirees, form letter campaigns, and a variety of others. It’s quite long and does talk about other parts of USDA than the Forest Service. If I were the FS or the USDA, I would go back and have human beings with experience writing and editing the English language do the analysis, or at least make this one comprehensible. I can’t make heads or tails of some of it, and I my guess is that it was done by AI. There is much of interest, so feel free to comment on other sections

Category: United States Forest Service (USFS)
This section synthesizes insights from 6,292 comments. While 60% of comments express concern, they also provide constructive feedback, with 17% offering positive sentiments and 7% neutral.
Key Themes USFS
Regional Offices and Local Expertise: Stakeholders widely view regional offices as essential for effective, localized decision-making. 34% of comments referred to the elimination of regional offices or loss of regional leadership, with 25% citing specific impacts on environmental planning. Concerns that “The proposal’s elimination of the nine regional Forest Service offices, six in the western U.S., where a majority of the national forests are, would concentrate decision-making far away from landscapes that are diverse and face region-specific pressures (e.g. fire risk, invasive species, drought).” This perspective underscores the risk of detaching decision-making from the unique environmental and social complexities of each region.

As a former RO employee in “environmental planning”.. I don’t actually remember the RO doing much decision-making. The RF signed off on Forest plans (at the time).. we did a Regional lynx amendment (not sure who signed it). It’s not that I disagree with the idea, it’s just one of those content analysis things where you don’t really know if the commenters were responding to something specific, or they had a different idea of how decisions are currently made.

Ecological and Species Integrity: A significant theme is the imperative to safeguard migratory species and their habitats. 28% of comments referenced ecological impacts, with 15% specifically citing the 2012 planning rule. The reminder that “Over 60% of migratory species across the United States depend on Forest Service lands” underscores the critical role of the USFS in biodiversity conservation. Stakeholders express concerns that the loss of regional oversight could create gaps in protecting these vital resources, particularly in ecologically rich areas like the Pacific Northwest, preserving our natural heritage.

What is this new “migratory species” thing (we saw that about prescribed fire)? What does reorg have to do with the Planning Rule? Where does the “over 60%” number come from? Maybe in this concern somewhere is the idea that forest plans need to be harmonized so that species that cross boundaries are adequately provided for. But so far just having an RO doesn’t necessarily do this. Then conceivably you would want to harmonize with RMPs as well..

Sustained Funding and Resource Allocation: Consistent advocacy for “robust and sustained funding for this vital agency to maintain its ecological and social missions” reflects a strong understanding that financial stability is foundational to the USFS’s capacity to deliver on its mandates, both environmental and community-focused, securing our long-term success. 22% of comments directly addressed funding concerns, with 18% tied to the International Program (IPT) of the Forest Service.

So USDA should ask Congress for more bucks. OK then. I think the reorg folks would say they want more money to get to the field, given what Congress appropriates. IP folks must have made an impression.

Mineral and Mining Personnel Efficiency: Comments, particularly from Oregon and the Pacific Northwest, point to a desire for improved efficiency in mineral management staff. 8% of comments criticized the inefficiency of current minerals personnel in managing mineral resources.

There must be folks out there with a ready keyboard and an axe to grind.. or whatever the mining equivalent is.

Public Trust and Transparency: Perhaps the most emotionally charged feedback relates to the perceived lack of public consultation and transparency throughout the reorganization process.

This is one of those situations that reminds me of the questions for the Old Growth.. maybe more specific questions would have helped, like “what kind of outreach would you like to see?”

Preserving Regional Trails and Public Access: Among the most frequently voiced concerns is the potential reduction of Regional Trails Programs. Stakeholders fear that the proposed reorganization could inadvertently erode vital recreational access and diminish significant economic benefits derived from these extensive trail networks.

I don’t know what this is..???

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Empower Regional Hubs for Dispersing Authority: Leverage regional hubs or offices to effectively distribute decision-making authorities.

What does this even mean? I envision an authority dispenser similar to a paper towel dispenser.

Preserve Local Offices: Prioritize the preservation and strategic enhancement of local USFS offices and programs. Maintaining and strategically investing in these local structures and programs, coupled with transparent governance, is essential for sustaining localized expertise, fostering landscape resilience, bolstering operational efficiency, and ultimately strengthening public confidence and the USFS’s vital local impact.

I think this is what was intended, but it never hurts to hear it from public comment.

Ensure Sustained Funding for Conservation and Operations: Ensure that the reorganization will not result in additional layoffs or loss of field positions critical to land management and recreation. Conduct and share a clear staffing impact analysis for any office relocation or closure.

“Don’t lose field people” makes sense but again, that’s not necessarily “sustained funding.”

Improve Communication and Transparency: Engaging stakeholders throughout the reorganization process. Incorporate robust public input from gateway communities, recreation users, and conservation partners before finalizing changes.”

So I worked in the RPA Program, and I know laundry lists.. this privileges some above others. Didn’t need to specify those.

Align Headquarters Staff to Regional Hubs: Assign Washington, D.C.-based staff to regional hubs aims to maintain operational efficiency and strengthen regional expertise.

As stated, this isn’t good English. Assign.. aims. This is really odd. Assigning is not aligning. Does it mean “assign WO staff to Regions?” That’s a “top recommendation”?

Optimize Mineral Personnel Efficiency: Conduct a comprehensive review of minerals management staff and associated responsibilities to enhance efficiency and effectiveness.

I’d say call up the commenters and see what their specific issue is.. I would bet the Minerals folks already know.

Stop the 2012 Planning Rule: Clarifying the 2012 Planning Rule is widely perceived as crucial for ensuring consistent and effective forest management standards across the USFS.

What needs to be clarified? Stopping and clarifying are not the same thing.

Guess the Year: Senator Wyden Critiques Admin Fuels Accomplishments

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What year do you guess?

 

Wyden Says Pacific Northwest Forests in Trouble, Thinning Will Help Increase Forest Health, Reduce Fires, Increase Jobs

Medford, Or — Thinning the Pacific Northwest’s troubled federal forests will increase forest health, decrease the chances of catastrophic forest fires and create more timber industry jobs for Oregonians, Senator Ron Wyden said today.

“Thinning creates a healthier forest, a healthier economy and a healthier environment,” Wyden said during opening remarks at a roundtable discussion on how to improve federal forests in the Pacific Northwest. “Trees going up in smoke do nothing for the quality of our communities, our air or our families. As chair of the Public Lands and Forest Subcommittee, I am committed to finding a solution that protects our treasures while meeting our needs for healthy forests and providing timber for our mills.”

The roundtable discussion included representatives of federal forestry agencies, timber, recreation organizations, conservation groups and others. The roundtable in Medford and another earlier this week in Bend were are a follow up to a XXXXXX hearing in Washington, D.C. last month.

“It’s outrageous, even by federal government standards, that over half of the Forest Service budget is spent on fighting fires while tens of millions of acres of choked, second growth forests go un-managed, waiting to burn,” said Wyden. “Government inaction, endless appeals, and poorly allocated resources have put communities, jobs and forests at risk like never before. If we are willing to work together toward bipartisan, sensible solutions, we can restore our forests, reduce the risk of catastrophic fire, protect old growth and ensure good, family-wage jobs for decades to come.”

Wyden noted that XXXXXX authorized up to $760 million in new money to complete hazardous fuel reduction work on 20 million acres of federal forest land, but that only 77,000 acres had been treated.

“At that rate, it would take the XXXXX Administration more than 250 years to complete the Act’s mandate,” Wyden said. “I, for one, am not willing to wait that long.

 

Alternative Arrangements: Another Tool in the NEPA Toolbox

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It’s confusing, for sure, as to what changes in the NEPA process are due to the new USDA NEPA regs, ESD determinations, alternative arrangements, and possibly others. We’ll try to keep track of them here so folks can understand.

Shout-out to Nick Smith for forwarding, the Stanislaus Forest, the Forest Supervisor and public affairs folks, and reporter Tracey Petersen of local newspaper The Mother Lode, for this story.

This not about ESD, it’s about asking CEQ for what is known as “alternative arrangements”

The Stanislaus National Forest (STF) has continued the push to fast-track Rim Fire recovery timber efforts. Forest officials asked for special authority from the President’s Council on Environmental Quality (CEQ) to streamline National Environmental Policy Act procedures. The council gave its approval on Friday.

“It is unusual for the Forest Service to seek this expedited process,” says STF Forest Supervisor Susan Skalski. “Our work is urgent because the burned timber will rapidly deteriorate and lose its commercial value. The authority to move more quickly will allow us to take advantage of the fall 2014 harvest season so that we can get on with the rest of the recovery process on the Stanislaus National Forest.”

Due to the scope of the Rim Fire, an Environmental Impact Statement (EIS) which requires a period for public comment must be done, but this exemption shortens that time frame.

Forest Spokesperson Maria Benech explains, “When we release the draft EIS sometime this spring, it will cut the comment period from 45 days down to 30 days, so there’s a 15 day savings there. Also, what it allows us to do is release the Record of Decision at the same time as the final EIS. Normally, there would be a 45 day waiting period between those two as well.”

Benech says this is the first exemption of its kind in the past five years.

I looked for the CEQ letter online and found one from 2013, saying basically the same thing and includes all the letters back and forth between CEQ and the FS.

So, no, it isn’t a Trump- Admin- specific thing.

Definition of Emergency in IIJA; Who Voted For It, and Legal Requirements

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Recently there’s been some discussion about the use of ESD and whether it is really an emergency, and whether interpretations are due to the Trump Admin.  Now I recall Chris French at some hearing or other telling Congress that they were using that authority during the Biden Admin in the Sierra (that is the mountain range, not the Forest although the Forest is included). I also posted about it last spring when the Sec expanded the area, here and here. In the latter, we even had a great discussion (thanks to legal friends) about injunctive relief standards (!).

Our more partisan friends are asking us to believe that it was good and appropriate for the FS under Sec. Vilsack to use this authority; it was wrong for the current Sec to expand those acres.  It seems to me that there are two legal issues then..

Did the Sec inappropriately expand?

Is the FS following the law?

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But maybe not.. I’m not the lawyer here. Fortunately, the lawyers among us can weigh in.

So let’s go back to the statute that gave ESDs as we understand them, the IIJA.

As folks know, I am not the greatest at Congressional workings, so please correct me if I got this wrong. Here is the Senate vote on IIJA. Note that the nays were all R’s.

The sponsor in the House appeared to be Pete DeFazio (D OR). I’m not too sure about their last votes on the Senate bill and what they mean, but when it left the House it was a very one-sided vote by Ds. Now it’s possible that the ESD language was an amendment required to get some R votes in the Senate and maybe someone out there knows whether that’s the case.  But that goes back to “if you are on record as voting for something, does that count as support in any way?”

Often here at TSW we can fall into holes unnecessarily by mixing up plain English, technical terms of various sciences and practitioners, and what statutes, regs, and case law say something means. Think of the many definitions of species, for example. In this case, “emergency” is defined in the statute.

Here’s my summary.

Sec of Ag gets to make determination (both recent Secs have).

If a project is covered, there only needs to be two alternatives (action and no action)

EA or EIS is done, following rules. Public comment specifically required.

No objection period.

Helpful suggestion to judges about PIs (in my experience, judges resist suggestions from Congress, but we’ll see).

Here is the text of the relevant section, sorry about any formatting issues.  It’s short and relatively easy to understand.

SEC. 40807. EMERGENCY ACTIONS.
(a) DEFINITIONS.—In this section:
(1) AUTHORIZED EMERGENCY ACTION.—The term ‘‘authorized emergency action’’ means an action carried out pursuant to an emergency situation determination issued under this section to mitigate the harm to life, property, or important natural or cultural resources on National Forest System land
or adjacent land.
(2) EMERGENCY SITUATION.—The term ‘‘emergency situation’’ means a situation on National Forest System land for which immediate implementation of 1 or more authorized emergency actions is necessary to achieve 1 or more of the following results:
(A) Relief from hazards threatening human health and safety.
(B) Mitigation of threats to natural resources on National Forest System land or adjacent land.

Note that “mitigation of threats” not the same as the “immanent threat” language in the 2001 Roadless Rule.

(3) EMERGENCY SITUATION DETERMINATION.—The term ‘‘emergency situation determination’’ means a determination made by the Secretary under subsection (b)(1)(A).
(4) LAND AND RESOURCE MANAGEMENT PLAN.—The term ‘‘land and resource management plan’’ means a plan developed under section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1604).
(5) NATIONAL FOREST SYSTEM LAND.—The term ‘‘National Forest System land’’ means land of the National Forest System (as defined in section 11(a) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (16 U.S.C. 1609(a))).
(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Agriculture.
(b) AUTHORIZED EMERGENCY ACTIONS TO RESPOND TO EMERGENCY SITUATIONS.—
(1) DETERMINATION.—
(A) IN GENERAL.—The Secretary may make a determination that an emergency situation exists with respect to National Forest System land.

(B) REVIEW.—An emergency situation determination shall not be subject to objection under the predecisional administrative review processes under part 218 of title 36, Code of Federal Regulations (or successor regulations).
(C) BASIS OF DETERMINATION.—An emergency situation determination shall be based on an examination of the relevant information.

That seems fairly vague.  Conceivably any forest on which wildfire could be a threat to human health and safety or natural resources.

(2) AUTHORIZED EMERGENCY ACTIONS.—After making an emergency situation determination with respect to National Forest System land, the Secretary may carry out authorized emergency actions on that National Forest System land in order to achieve reliefs from hazards threatening human health and safety or mitigation of threats to natural resources on National Forest System land or adjacent land, including through—
(A) the salvage of dead or dying trees;
(B) the harvest of trees damaged by wind or ice;
(C) the commercial and noncommercial sanitation harvest of trees to control insects or disease, including trees already infested with insects or disease;
(D) the reforestation or replanting of fire-impacted areas through planting, control of competing vegetation, or other activities that enhance natural regeneration and restore forest species;
(E) the removal of hazardous trees in close proximity to roads and trails;
(F) the removal of hazardous fuels;
(G) the restoration of water sources or infrastructure;
(H) the reconstruction of existing utility lines; and
(I) the replacement of underground cables.
(3) RELATION TO LAND AND RESOURCE MANAGEMENT PLANS.—Any authorized emergency action carried out under paragraph (2) on National Forest System land shall be conducted consistent with the applicable land and resource management plan.
(c) ENVIRONMENTAL ANALYSIS.—
(1) ENVIRONMENTAL ASSESSMENT OR ENVIRONMENTAL IMPACT STATEMENT.—If the Secretary determines that an authorized emergency action requires an environmental assessment or an environmental impact statement pursuant to section 102(2) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)), the Secretary shall study, develop, and describe—
(A) the proposed agency action, taking into account the probable environmental consequences of the authorized emergency action and mitigating foreseeable adverse environmental effects, to the extent practicable; and
(B) the alternative of no action.
(2) PUBLIC NOTICE.—The Secretary shall provide notice of each authorized emergency action that the Secretary determines requires an environmental assessment or environmental impact statement under paragraph (1), in accordance with applicable regulations and administrative guidelines.
(3) PUBLIC COMMENT.—The Secretary shall provide an opportunity for public comment during the preparation of any environmental assessment or environmental impact statement under paragraph (1).
(4) SAVINGS CLAUSE.—Nothing in this subsection prohibits the Secretary from—
(A) making an emergency situation determination, including a determination that an emergency exists pursuant to section 218.21(a) of title 36, Code of Federal Regulations (or successor regulations); or
(B) taking an emergency action under section 220.4(b) of title 36, Code of Federal Regulations (or successor regulations).
(d) ADMINISTRATIVE REVIEW OF AUTHORIZED EMERGENCY ACTIONS.—An authorized emergency action carried out under this section shall not be subject to objection under the predecisional administrative review processes established under section 105 of Determination. Study.the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6515) and section 428 of the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2012 (16 U.S.C. 6515 note;
Public Law 112–74).
(e) JUDICIAL REVIEW OF EMERGENCY ACTIONS.—A court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.
(f) NOTIFICATION AND GUIDANCE.—The Secretary shall provide notification and guidance to each local field office of the Forest Service to ensure awareness of, compliance with, and appropriate use of the authorized emergency action authority under this section.

Two Wildfire Leadership Announcements, at FS and USWFS

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Also last week, Forest Service appointed David Lytle as Acting Deputy Chief of Fires and Aviation Management.  He was the Deputy Chief for R&D, and has had a career mostly in science and research administration (also was State Forester in Ohio, traditionally thought not to be a big fire state). From the Hotshot Wakeup’s coverage:

Lytle has been in federal service for over 15 years, starting as a post-doctoral research ecologist with the North Central Research Station, and spent a decade as a science center director for the US Geological Survey, in the US Department of the Interior. David also served as state forester and chief of the Division of Forestry with the Ohio Department of Natural Resources. He also worked as a conservation scientist with The Nature Conservancy.

Now, wildfire people don’t necessarily think that this is a good move, because they would prefer someone with knowledge of wildfire operations.  And no doubt key characters at the Department and the FS knew what the optics would be.

Let’s go back to what the FS has been saying.  They don’t have enough bench strength, and can’t hire more SES folks (although they will be doing lower-level fire hiring?) and non-SES people can’t be acting for more than 180 days.  So Lytle was available and had the SES quals, and is a placeholder until they get someone else.  I know others may say “will this person be able to defend the FS from Interior encroachment?” After all, he has Interior in his background.

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Also last week, Interior hired Brian Fennessey of the Orange County Fire Authority,

Fennessy tentatively accepted the USWFS director role, pending the completion of a federal onboarding process, according to NBC Los Angeles.

It appears that this position was advertised nationally and open to non-federal applicants. Here’s the job advertisement. It appears to be an SES position.

Here’s what the job announcement said:

We are seeking an individual with extensive leadership and technical experience in wildland fire management, interagency coordination and strategic policy development, along with a proven ability to lead large, complex programs across federal, state, tribal and local stakeholders.

He’s super-experienced in the wildfire world.

Anyway, with the coordination efforts between USDA and the newly formed USWFS, it seems like this would be an important time to have an experienced person at the FS helm. I’m sure that there is a story as to “why this doesn’t appear to be happening” but I’d think that it would be important to the success of the USWFS effort to have yoked together two oxen of the same relative strength.  There is always a reason, though, and I’m interested what people have heard.