Forest Service Litigation-Behind the Scenes II: Should Secretary of Agriculture Adopt EPA Transparency Guidelines?

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It turns out that other folks have noticed the problem of lack of transparency in government settlements, and also the idea that other people should have time to weigh in to these settlements. These include more powerful entities (compared to FS employees and retirees) like States, specifically in dealing with EPA settlements and the problem of “Sue and Settle”. I definitely think that the transparency approach would be worth considering for Forest Service cases. It would help take care of the previously identified problems of “who is in the room”, “good solutions may not have been on the table” and “understanding broader impacts of a settlement.” Here’s the link to the directive:

To promote transparency and public participation in the consent decree and settlement agreement process involving lawsuits against EPA, the Agency shall follow the procedures set forth below:

(there are more but the below are the key ones for the FS)

8. EPA shall post online for review and comment by the public any proposed consent decree lodged in federal court or draft settlement agreement to resolve claims against the Agency. EPA shall also publish a notice of the lodging of the proposed consent decree or draft settlement agreement in the Federal Register.

a. When posting the proposed consent decree or draft settlement agreement on EPA’s website, the Agency shall explain: (1) the statutory basis for the proposed consent decree or draft settlement agreement; (2) the terms of the proposed consent decree or draft settlement agreement, including any award of attorney’s fees or costs and the basis for such an award; and (3) where applicable, the Agency’s plans to meet deadlines in the proposed consent decree or draft settlement agreement, including the identification of necessary milestones and a demonstration that the Agency has afforded sufficient time to modify its proposed rule if necessary, provide notice and comment on the modified proposal, and conduct meaningful Agency consideration of the comments received on the modified proposal.

b. EPA shall provide a public comment period of at least thirty days, unless a different period of time is required by law.

c. EPA may hold a public hearing on whether to enter into the proposed consent decree or draft settlement agreement.

d. Based on the timely public comments received, EPA may seek to withdraw, modify, or proceed with the proposed consent decree or draft settlement agreement. If the terms of a consent decree or draft settlement agreement are modified, EPA shall follow the process set forth above.

9. Where appropriate, I reserve the right to exercise my discretion and permit EPA to deviate from the procedures set forth in this directive. In no circumstance, however, will I permit the agency to violate its statutory authority or to upset the constitutional separation of powers.

10. This directive is intended to improve the internal management of EPA and does not create a right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, EPA, its officers or employees, or any other person.

What do you think? Would you sign this or tweak it if you were the Secretary? I haven’t seen too much in the press that is against this idea substantively.

Forest Service Litigation-Behind the Scenes: I. Settlements, Policy and Public Comment

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In this series of posts, I’m going to talk about what it was like for me to be a Forest Service employee involved in litigation, and how that experience leads me to this claim: that for many, if not most, projects and land management decisions, making decisions via the court system is suboptimal.

I’m not saying litigation of federal decisions is a bad thing. Separation of powers is something I think is a good idea. I don’t think people who do it to affect policies are bad people. People all have policy goals and use different tools to achieve them. If you’re a politician you use legislation, if a lawyer you use law, if a scientist you use science. I just don’t think the system works as well as it could for land management decisions.

A few weeks ago, I was in Montana giving a talk to a group of folks interested in collaborating with the Forest Service and veered onto the topic of “how FS litigation works.” Some were surprised and a bit horrified/depressed when I said “during settlement, often no one is in the room (or on the phone) who has read the public comment.” They didn’t realize that after the Forest Service goes through one or more public comment processes, using citizens’ time and money as well as taxpayers’, when the deal is being done, no one in the room or on the phone may have actually seen it. I think that this is important because I think that knowing what people think (even if they disagree, and of course they do) is key to making good federal decisions. At least in a “response to comments,” people get a chance to understand the agency’s rationale for not picking their approach. Not that “it wasn’t considered because no one making the decision was aware of it.”

Sometimes these settlements set precedents that are bad policy (in mine and others’ view). They settled the particular case, for example, but the next time a similar project came through, our attorneys said “you have to do this, or can’t do that, because the case law says so.” Not because a statute (voted on by elected representatives) or regulations (agreed to by the executive branch, selected by the voted for President, and including required public comment), said so. Of course, DOJ is also part of the executive branch, but their role in establishing policy, instead of the involved agencies, is contested.

But don’t believe me, I was just a humble Planning Director, with litigation being one of our staff’s multiple and variegated responsibilities. Here is what Chief Jack Ward Thomas had to say:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

Again, I am not ascribing bad motives to anyone. The system is probably such that DOJ needs to close cases to meet their performance metrics. Whoever designed the performance elements didn’t make them apparently a joint maximization function among the affected agencies. Also, in my experience, settlements can develop a head of steam and it’s hard for someone to say “wait, let’s think about the potential impacts of this on (related projects)”.
Here’s a more gentle (I was still working then) post on the same subject from 2011.

“Public lands advocates push collaborative approach “

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A Nov. 7 article in The Missoulian by Rob Chaney.

Public lands advocates push collaborative approach

Collaboration brings people together. Lawsuits divide them. Reaching the first without triggering the second remains the challenge for those interested in the future of forests.

Montana public lands currently have between 30,000 and 40,000 acres left in legal limbo because of litigation, participants at Montana Forest Collaboration Network conference heard Tuesday. Getting beyond that might take congressional legislation or simply better local relationships, according to panel moderator Brian Kahn.

“Blaming environmentalists for litigation is politically inflammatory,” Kahn said. “It’s said by people who don’t know that eight out of 10 environmentalists are participants in collaborative efforts. That kind of polarization is fertile ground for demagoguery.”

Collaborative forest projects occupy a special slice of work in the woods. They depend on a group of local residents, county and state officials, clubs and organizations and businesses to semi-formally advise the U.S. Forest Service on how to manage a particular part of a national forest.

Projects developed through the collaborative process should have more value than traditional agency-industry deals because they reflect local knowledge about jobs, habitat, wildlife, recreation and other on-the-ground knowledge.

That hasn’t protected them from scrutiny by critics of the Forest Service, who sue the agency over alleged violations of the National Environmental Policy Act (NEPA), Endangered Species Act, and other federal requirements. In 2013, the last year with complete data available, national forests in Montana had 13 of 29 forestry project decisions challenged in court.

“If you can’t find a NEPA violation in a document, you’re not trying hard enough,” American Forest Resource Council attorney Lawson Fite said. “These are policy matters. It’s not: Are you following the law? It’s: We want you to do different things.”

The Wilderness Society forest campaign manager Megan Birzell said making an environmental assessment “legally bombproof” was virtually impossible. She said her organization worked more to show where broad arrays of support existed for a project, in order to convince a judge that lots of different perspectives had been fairly considered.

“Collaboration is making a lot of progress in Washington, Oregon and California,” Birzell said. “That’s true across the west, except in Montana where it’s bogged down.”

Who gets to be “in the room”

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Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  “We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.

E&E News: Bipartisan bill would help feds, states exchange tracts

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“Some environmental groups agree” — including the Wilderness Society — but the article doesn’t mention opposition from anyone….

The bill applies to state trust lands, but it would be very helpful if other state and private land exchanges were easier. In my neck of the woods, some county-owned parcels surrounded by USFS and BLM lands could be exchanged in the same way.

Bipartisan bill would help feds, states exchange tracts

Scott Streater, E&E News reporter

A bipartisan group of lawmakers yesterday introduced legislation aiming to make it easier for Western states to exchange state trust lands for federal tracts that could be developed.

The dual goals of the identical 27-page bills — S. 2078, sponsored by Sens. Martin Heinrich (D-N.M.) and Jeff Flake (R-Ariz.), and H.R. 4257, sponsored by Reps. Chris Stewart (R-Utah) and Jared Polis (D-Colo.) — are to protect sensitive landscapes while helping states generate more revenue from trust lands.

The “Advancing Conservation and Education Act,” or “ACE Act,” calls for establishing a system allowing Western states to apply to the Interior secretary to exchange state trust lands that cannot be developed because they are surrounded by national parks, wilderness areas, wildlife refuges and other landscapes for federal tracts with “multiple use” designations within their boundaries.

State trust lands are tracts that were given by Congress at statehood to be developed to help generate revenue to fund public schools and hospitals, as well as infrastructure projects.

The legislation would apply to 12 Western states — Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming — and Alaska.

The inability to develop state trust lands near sensitive federal parcels has been a source of frustration for lawmakers in states like Utah, where two-thirds of the Beehive State is federally owned land.

“This legislation is a win for Utah, a win for school kids, and a win for conservation,” Stewart said in a statement.

Some environmental groups agree and have signed on in support.

“This legislation will better secure America’s parks and wilderness while supporting rural economies and providing revenue for schools. Through this bill, our public lands will be better protected and school kids will come out ahead,” Paul Spitler, director of wilderness policy at the Wilderness Society, said in a statement.

Also supporting the bill is Harry Birdwell, president of the Western States Land Commissioners Association.

“The ability of our state land commissioners to utilize state trust lands to raise revenue for education is made more difficult when these trust lands are surrounded by federal conservation areas,” he said in a statement.

“The ACE Act is a win-win solution that will help our land commissioners better generate badly needed funds for schoolchildren while completing federal conservation areas so that they can be properly protected.”

The text of the bill states that “statehood land grant land owned by the western States are typically scattered across the public land.”

As a result, national parks, wilderness areas and other federal conservation areas “often include State land grant parcels with substantially different management mandates, making land and resource management more difficult, expensive, and controversial for both Federal land managers and the western States.”

But by “allowing the western States” to exchange state trust land “within Federal conservation areas and to select replacement land from the public land within the respective” state boundaries, sensitive landscapes are protected, and state revenues “for the support of public schools and other worthy public purposes” increase, the text says.

In addition to national parks, wilderness areas and wildlife refuges, eligible federal lands would include national monuments and other parcels within the National Landscape Conservation System managed by the Bureau of Land Management.

They would also include Forest Service lands within designated national monuments, national recreation areas, wilderness study areas and inventoried roadless areas, among others, the text says.

State trust lands cannot be exchanged for federal lands within an area of critical environmental concern, or a different federal tract with a conservation designation, the bill text says. State lands also cannot be exchanged for parcels acquired under the Land and Water Conservation Fund, it adds.

The legislation would require the Interior Department to conduct an environmental assessment or an environmental impact statement before finalizing any land exchange.

The Interior secretary would have to issue a final determination on any proposed exchange no later than three years after a state submits an application, the bill says.

The secretary could reject any application if, among other things, it is determined that the exchange would “create significant management conflicts” or is deemed “not in the public interest.”

The costs for all land appraisals, surveys and other expenses would be split evenly between the Interior Department and the state, the bill says.

Heinrich said in a statement that he’s “proud” to co-sponsor a bill “that will increase revenues for our public schools and improve access to the outdoor places Westerners hold dear.”

Flake added, “These are two worthwhile goals that when combined represent a genuine opportunity for those in the West.”

Study: Spotted owls compatible with managing forests for fire, drought

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Just came across this item from the PSW Research Station…. Key point: Owls look for tall trees, not dense canopies.

Study: Supporting owls compatible with managing forests for fire, drought

For Immediate Release: October 5, 2017

ALBANY, Calif. — In what is believed to be the largest spotted owl study in terms of area analyzed, remote sensing technology is providing a more precise look at habitat preferences for the sensitive species with implications for greater flexibility in forest management.

“For the last 25 years, forests in the western United States have been managed to protect habitat for spotted owls based on ground surveys that were limited by plots with a small sample area and what could be seen from the forest floor,” said Malcolm North, a research ecologist with the U.S. Forest Service’s Pacific Southwest Research Station and lead author of the study. “We’re employing relatively new technology to get a new vantage point into the forest canopy – across an unprecedented amount of terrain – to better understand what that means for spotted owls.”

Using Light Detection and Ranging imaging, or LiDAR, North and colleagues from partnering organizations studied forest attributes across 1.2 million acres, encompassing 316 documented owl territories, along California’s Sierra Nevada. LiDAR uses laser pulses shot from an instrument mounted in an airplane that can measure a forest’s canopy, including tree height, distribution of tree foliage and any forest gaps.

Whereas previous research led to the assumption that spotted owls needed dense canopy cover (generally estimated at 70 percent or greater) across a broad landscape, LiDAR data revealed it’s more the height of the canopy, as opposed to the expanse of it, that matters most to owls.

“Cover of tall trees best predicts California spotted owl habitat,” recently published online by the journal of “Forest Ecology and Management,” reports spotted owls typically were found in forests with high concentrations of tall trees measuring at least 105 feet in height, but preferably taller than 157 feet. Meanwhile, dense stands of trees measuring 52 feet or shorter were generally avoided by the owls.

“We rarely found owls in high canopy cover without tall trees. We also found owls in areas with tall trees but low surrounding density,” North said. “It’s really the big trees that the owls are selecting for.”

The study’s findings could have implications for land management strategies to improve forest resilience to wildfires, drought, insects and diseases. Forests with tree densities greater than historical ranges – especially with high densities of smaller trees – are more susceptible to extreme wildfire behavior or vulnerable to the effects of drought, insect infestations and disease.

“While land managers may have felt compelled to maintain these abnormally high densities to adhere to the 70 percent canopy cover threshold, it might also have placed forests and owls at risk,” North said. “The large trees favored by spotted owls can typically withstand low to moderate wildfires and other disturbances. But when exposed to extreme wildfires from high fuel loads or when their vigor is compromised by too many trees competing on the landscape, these tall trees can become vulnerable.”

Researchers also studied how large openings in the canopy or gaps in the forested landscape, ranging from 0.03 to greater than 2.5 acres, impacted owl use or nest site selection.

“Land managers may have been leery of creating gaps in the landscape because of the reduction in canopy over,” North said. “But other than avoiding placing their nests directly adjacent to a gap, owls showed no difference in the areas they used compared to the surrounding landscape with regard to gaps.”

North and his colleagues’ study comes on the heels of a newly available report synthesizing the last two decades of research pertaining to spotted owls. “The California Spotted Owl: Current State of Knowledge” was made available online by the Forest Service’s Pacific Southwest Research Station. The report represents a comprehensive review by scientists of the ecology, habitat use, population dynamics and current threats to the viability of the California spotted owl.

 

WA murrelet strategy should “meet only minimum federal standards for protections”

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At least that’s what the Washington state politicians are urging their Department of Natural Resources to adopt for its lands.

The DNR is currently considering five different proposals to protect the bird species. A final decision is expected within the next few weeks. Walsh has come out in favor of “alternative B” which he says would meet minimum federal standards for species preservation while ensuring the least amount of negative impact on local economies.

A press release noted that Walsh, and his peers who signed off on the letter to the DNR, believe that reduced timber sales in coastal communities would “create significant economic hardship on counties and communities that can least afford it.”

In other words, let’s manage this species so it stays on the edge of extinction.  This is why we have endangered species (and a federal Endangered Species Act).

Litigation Weekly Nov. 3

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Litigation Weekly Nov 3

Annual operating instructions for four grazing allotments on the Salmon-Challis NF complied with the INFISH aquatic strategy in the forest plan.  (D. Idaho)

New case

The NOI questions compliance by the Sawtooth NF with conditions from previous ESA consultation on livestock grazing in the Williams Creek allotment regarding effects on listed fish species.

Undersecretary Watch- Remembering What They Said About Harris Sherman

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Portrait

I had heard some rumors about the Undersecretary position which intrigued me, so when I heard that there were confirmations last week, I checked to see if “our gal/guy” had been on the list, but she or he was not. Now this is not necessarily a bad thing, because it shows that the wheels of the executive branch can run smoothly (like appointing a Chief who doesn’t seem very controversial) with vacancies unfilled.

Anyway, I thought we could take a trip back in time to the last “new administration first Undersecretary” to see what people said about him. You may remember it was a fellow named Harris Sherman, who had experience as the Department of Natural Resources Director in Colorado (and was amazingly qualified for the job, IMHO). When I first met Harris, he was a lawyer for some ski areas. Were people concerned about his background as an attorney for evil corporations? Or even that he perhaps did not do enough as DNR director with oil and gas regulation? As it turns out.. not so much. If we look at national media and the people they interviewed..they were concerned about his involvement with.. the Colorado Roadless Rule (!).

The New York Times here reposted a piece from Greenwire.. first let’s look at who got quoted in what order..

TRCP- why them? What is it about this group that would make them go-to people about the new undersecretary? Whatever they have/had going on, it would be nice to know how to get that kind of position on someone’s contact list.

Yesterday, the Theodore Roosevelt Conservation Partnership responded to Sherman’s nomination by stressing the need for safeguarding roadless areas.
“We would like to congratulate Mr. Sherman and ask that he promote the long-term conservation of our backcountry hunting and fishing traditions, including upholding and defending the Roadless Area Conservation Rule, which safeguards our nation’s roadless areas, should he be confirmed as undersecretary,” Joel Webster, associate director of campaigns for the TRCP Center for Western Lands, said in a statement.

TWS- makes more sense.

In June, Michael Francis, director of the Wilderness Society’s national forest program, said Sherman’s work on the Colorado rule makes him a poor choice for Agriculture undersecretary. “The process that Mr. Sherman has been leading in Colorado would essentially eviscerate the protections of the 2001 rule,” Francis said. “I question whether he could do what the president would want him to do” (Greenwire, June 11).

Earthjustice Vice President Marty Hayden said that while Sherman’s biggest challenge will be the roadless rule debate,

And then, and only then, do the reporters quote Coloradans. What I think is interesting to reflect on now is that Idaho and Colorado Roadless are pretty much history (ho-hum, what State Roadless Rules?), and as far as I know, nothing worth the rhetoric has happened. In fact, when part of the compromise finally made it through (8 years later) our friends at the Sierra Club issued a release here saying it was Trump’s doing and related it to the Paris Climate Talks. No, I’m not making this up. Anyway, the Durango Herald had a more nuanced view of Harris and his history and qualifications, including important work he did with oil and gas here.

When the new undersecretary is nominated, we can look at national coverage and see what the national “issue of the day” is. Or maybe a Republican nominee will get a rating better than Harris’s “poor” from TWS?