Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Bipartisan Solutions for Wildfire Funding and Comprehensive Reporting

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I’m always interested in how stories about “things we know about” are covered in the press- especially what we might call the “coastal press”.

I noticed in our Saturday Colorado Springs Gazette that there was an article “How Congress’formula for wildfires makes them worse” here
attributed to Evan Halper of “the Tribune Washington Bureau” but I think he works for the LA Times from DC. I was particularly interested because he said:

“Partisan feuds over climate change, clear-cutting and bedrock federal environmental policies are undermining efforts to confront the rapidly swelling fire money dilemma.” As we shall see below, this may be only half the real story.

But Congress can’t seem to figure out how, amid feuding about the science and economics of wildfires. Many Republicans are demanding that any solution involve intensifying the amount of logging on public land, allowing clear-cuts as large as 10- or 15-square miles in federal forests, and weakening the National Environmental Protection Act, the 1969 landmark law that drives much of federal conservation policy.

The rollbacks are nonstarters for Democrats, who brandish research findings that climate change is a major driver of the intensifying fires, not too little commercial logging. California Sens. Dianne Feinstein and Kamala Harris last week sent Trump a letter as fires raged in Northern California imploring him to support fixing the Forest Service money problem in a stand-alone measure, and then deal with the broader disputes over forestry management separately.

Does anyone know where the “10-15 square mile clearcut” came from? It seems kind of silly as the efforts we have been talking about are more along the lines of thinning and shaded fuel breaks. But I’m sure legislation that I think of as silly is possible. Is anyone familiar enough with the legislation to weigh in on this?

Democrats and environmentalists say the House measure that McClintock and other Republicans favor to fix the Forest Service funding problem is less about fighting fires than creating a big giveaway for logging interests. “We don’t think completely eliminating environmental safeguards will solve the problem or make us safer,” said Megan Birzell, national forests campaign manager at the Wilderness Society. “We don’t need 10,000-acre clear cuts in the back country to solve this.”

So a person writing for the LA Times from DC has framed this as about “logging” versus suppression. As we have seen over the summer, it’s much more complicated than that especially since national policies affect areas that want fuel treatments but don’t have active forest product (“logging”) industries. Apparently (at least some) folks in the Senate agree with me.

The Halper piece was published in the Gazette here on October 21. While I was catching up, I saw Steve’s link in a comment here to an E&E News on Cantwell et al.’s Senate bill. Halper’s LA Times article was dated October 18. Can we infer that there are two efforts.. one in the House that has gotten bogged down in partisanship and one in the Senate that (apparently) hasn’t and has people working across the aisle? The real news is the bill that has a chance of going somewhere. IMHO. Kudos to E&E News for telling us that story.

“Cutting for Health is a Scam for Wealth”

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The era of tree-sitting isn’t over yet. This article explains the latest protest:

Environmental group blocks path to timber sale
Cascadia Forest Defenders’ protest halts access near McKenzie Bridge

“Environmental activists ratcheted up their logging protest Monday about 50 miles east of Eugene, suspending a platform 80 feet in the air on a tree and tethering it by a cable to a roadblock that includes two old vehicles.”

A photo shows the group’s roadblock, which includes a pile of small logs and branches, with a large banner strung overhead that reads, “Cutting for Health is a Scam for Wealth.”

The protest is of the Goose Project, on the Willamette National Forest near the community of McKenzie Bridge, Oregon, which has been the subject of appeals and a lawsuit since 2010. It is worth noting that the Goose Project would treat about 2,400 acres (more info below), while there are currently 9 active fires burning on the Willamette totaling 85,400 acres. Some of the fires in the Horse Creek Complex are within a few miles of the community of McKenzie Bridge.

For what it’s worth, the USFS says:

1. What is the Goose Project?
The Goose Project proposes to commercially harvest and reduce fuels on approximately 2,452 acres on the Willamette National Forest near the community of McKenzie Bridge, Oregon. Harvest treatments proposed include thinning, dominant tree release, gap creation, regeneration harvest and skips. Fuels treatments include mechanical treatments, post-harvest underburn, natural fuels underburn, and hazardous fuels treatments.

2. Why is the Goose Project needed?
The Goose Project is needed to provide a sustainable supply of timber products, reduce hazardous fuels in the McKenzie Bridge Wildland Urban Interface (WUI), and actively managed stands to improve stand conditions, diversity, density and structure.

And Cascadia Forest Defenders’s view: “Since 2010, the Goose timber sale proposal has been portrayed to the public at large as a “fire fuels reduction” and “restoration” project. In reality this logging of native forest will only encourage the growth of understory vegetation thus increasing fire fuel loads in the long term. To add insult to injury, the U.S. Fish and Wildlife has given approval to “incidentally take” the lives of 5 listed “Threatened” northern spotted owls.”

 

Colloquium on national monuments

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To Shrink or Not to Shrink?
Presidential Authority Over National Monuments
Monday, November 20, 2017
University of Denver Sturm College of Law, Room 165
6:30pm – 8:30pm

This year’s Carver Colloquium will debate the ability of standing presidents to diminish or abolish national monuments created by past presidents. The authority to expand national monuments has always been included in the Antiquities Act, but recent controversy has questioned the legal authority for presidents to shrink the size of some monuments.

(Free!)

http://www.law.du.edu/index.php/rmlui/rmlui-academic/carver-colloquium

 

Another September case

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Wild Wilderness v. Allen seems to have not shown up on the Forest Service litigation reports, but here is a newspaper version.  On Sept. 8, the Ninth Circuit found that the decision to build the Kapka Sno-Park, a parking lot for snowmobile users on the Deschutes National Forest, was consistent with the forest plan and did not require an EIS.  I found a couple of points interesting.

One was the court’s treatment of forest plan “standards and guidelines” that were prefaced with language indicating discretion.  The court said, “But nothing in this provision mandates closure of any area to motorized use. It merely outlines steps that “will generally be taken” in the event of user conflicts. The Forest Plan outlines “an aspiration, not an obligation” and therefore “there is no law for us to apply in second-guessing the agency.””  It similarly dismissed language from the Recreation Opportunity Spectrum as “nonbinding guidance.” Note to the public participating in forest planning – if the plan doesn’t say “must” or “shall” the Forest Service won’t have to.  (Recreation, unlike wildlife, doesn’t have any substantive requirements that a plan must meet using mandatory language.)

On the NEPA side, the court held that the forest didn’t have to explain why it changed from an EIS to an EA, as long as it justified the EA.  It rejected the comparison “to cases in which agencies failed to provide reasoned explanations for changes in their position on matters of policy or factual findings.”  The court stated, “The Forest Service here, however, never changed its mind on any factual or policy matter but only on how it planned to comply with its own procedural requirements. There was no agency decision to reverse, as a draft EIS is not an agency decision at all.”  An EIS is not a decision, but this holding only makes sense to me if an EIS also does not represent a finding that there are significant impacts, which is would be a “factual finding.”  In fact, an EIS may be prepared by an agency even if effects are not significant, so changing from an EIS to an EA doesn’t necessarily trigger an additional burden of explanation for the agency.

Sage grouse planning do-over

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This article discusses the last Trump/Zinke twist in the effort to prevent sage listing of the greater sage grouse under ESA.  While sage grouse habitat on federal lands is mostly under BLM jurisdiction, the Forest Service is also a big player, and 20 forest plans were amended in 2015 to include conservation measures that were relied on by the Fish and Wildlife Service in its decision to not list the sage grouse.  Many of the laws and principles in play here also apply to other at-risk species on national forests.  Here are is one principle from Republican Wyoming Governor Matt Mead that I think is especially relevant right now:

“We can’t have wholesale changes in wildlife management every four or eight years. I don’t think that is the best way to sustain populations or provide the necessary predictability to industry and business in our states.”

And then there’s this:

The oil and gas industry group Western Energy Alliance has called for action following the federal review of the sage grouse plans. The group was not one of the key players in developing the plan in Wyoming, but has been vocal on the need for changes that support energy development.

(Where have we heard complaints about something like this before?)

Litigation bi-weekly October 6 & 13

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Litigation Weekly Oct 6

New cases

  • WildlandsDefense_v_Seesholtz  –  Challenge to the North and South Pioneer Salvage and Reforestation Projects on the Boise NF for its analysis of bull trout, including ESA consultation, and for compliance with forest plan standards for soils and salvage harvesting.  (D. Idaho)
  • EarthIslandInstitute_v_Elliott  –  Challenge to the Bull Run Roadside Hazard Tree Mitigation Project for the Cedar Fire area on the Sequoia NF for failing to prepare an EA or EIS while exceeding the acreage in the timber salvage categorical exclusion and adversely affecting species listed under ESA.  The adjacent Spear Creek Roadside Hazard Tree Mitigation Project is also an issue.  (E.D. Cal.)

Other agencies

  • Cal_v_BLM  –  BLM was not allowed to postpone compliance dates for its new natural gas venting regulations.  (N.D. Cal.)

Litigation Weekly Oct 13

Court decisions

  • Or Nat Desert Assn v USFS  –  Grazing authorizations on the Malheur NF had little or no harmful effect on bull trout and did not violate the forest plan or the Wild and Scenic Rivers Act.  (D. Or.)

New Case

  • FDE v USFS  –  Plaintiffs assert that the State of Florida is occupying land on the Ocala NF with the Kirkpatrick Dam/Eureka Lock in violation of a permit that expired in 2002.  (M.D. Fla.)

 

Blogger’s opinion on Oregon Natural Desert Association v. USFS

The Forest Service summary of this case includes the following bullet:  “Forest Plan standards were narrative and qualitative and essentially aspirations and not judicially enforceable.”

This might lead some in the agency to think that writing standards like this is a good idea.  Bad idea.  Under the 2012 Planning Rule, such a qualitative “standard” would not meet the definition of “standard,” which is a “mandatory constraint,” not something that is “aspirational” (the latter term was actually used here by the Forest Service; however, the agency has rejected purely “aspirational” forest plans as they were defined by the 2005 and 2008 planning regulations).  Without such mandatory standards, a forest plan would be unlikely to meet plan-level requirements to protect at-risk species.  Among the qualitative “standards” dismissed by this court were ones that used the words “necessary habitat” and “sufficient streamside vegetation,” which unfortunately resemble many being that are being proposed in ongoing revisions of forest plans.  In this case, the forest plan was not an issue because it had been amended with INFISH, which does include standards with mandatory language to protect at-risk fish.

Without language that contains ‘a clear indication of binding commitment’ (language from another cited case), a forest plan would also not be viewed as a regulatory mechanism that could support delisting a species.  Here the Forest Service and the court relied heavily on the view of the Fish and Wildlife Service. In particular, “For each allotment, the Bi-Op, based on the Forest Service’s 2012 BAs, prescribed conditions for grazing.”  The Forest Service is letting the FWS manage the national forest, which makes it hard for them to make a case for delisting.  A better forest plan (which shored up the known weaknesses of INFISH) could help them do that.

 

More Research: Prioritizing forest fuels treatments

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More research that shows the value of fuels treatments, and especially treatments that are strategically placed. Text of press release is below. The paper cited is here ($).

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Fighting fires before they spark

UNM research could impact forest management around the world

By Aaron Hilf October 17, 2017

With warm, dry summers comes a deadly caveat for the western United States: wildfires. Scientists say the hot, dry climates found west of the Mississippi, along with decades of fire suppression efforts, are creating a devastating and destructive combination – leading to fires like the ones currently burning in California.

It’s a problem biologists at The University of New Mexico are looking to put a damper on. Now, new research from UNM is giving forest and fire management teams across the country the upper hand in reducing the severity of these events.

“These big fires will always happen,” said Dan Krofcheck, a post-doctoral fellow in UNM’s Department of Biology. “We’re looking at what forest managers can do to minimize the impact these wildfires have on the system.”

The issue has two main components, according to Krofcheck, both stemming from human impact to the environment. Global warming, due to human-caused carbon emissions, has worsened the already hot and dry climate in the most at-risk areas, like California. In addition, aggressive firefighting and fire suppression efforts have left a large amount of fuel, in the form of underbrush, throughout the forests. Together, these two factors lead to massive blazes with the capacity to destroy land, homes and lives.

“For a long time, there’s been this stigma that fire in the landscape is a bad thing. It makes sense, because fire is a destructive process,” says Krofcheck. “But, it’s also an integral part of how these ecosystems evolved and we kind of shut that down through heavy fire suppression activity. The result is that fuel that would have been consumed by frequent fire, builds up and accumulates. Subsequently, when you finally have fire move through an area, after it’s been suppressed for 30, 50, 100 years, you have these massive fires that no longer just consume the understory but they’re actually torching crowns and moving through the tree canopy.”

To combat this, forest managers employ two primary treatment practices. Mechanical thinning is the process of physically removing the thick underbrush with machinery or by hand – a method that is effective but also very expensive. Managers also use prescribed burns to clear areas – using fire, under very strict environmental conditions, to consume excess brush.

The UNM research, ‘Prioritizing forest fuels treatments based on the probability of high-severity fire restores adaptive capacity in Sierran forests,’ recently published in Global Change Biology, examines how to most efficiently use these two methods.

Krofcheck, along with his advisor, UNM Associate Professor Matthew Hurteau, and colleagues from North Carolina State University and the USDA Forest Service, ran forecast simulations using projected climate data in the Dinkey Creek Collaborative Landscape Forest Restoration Project area in California’s Sierra Nevada Mountain Range. In Scenario A, researchers mechanically thinned the entire area that is operationally and legally available – an unrealistically expensive endeavor in practice. Scenario B employed an optimized approach, thinning only the most at-risk portions of land, about two-thirds less than in Scenario A.

“We wanted to find a way to apply these expensive thinning treatments in such a way that we could put as few on the landscape as possible and achieve some comparable outcome, relative to a case where we thinned everything,” said Krofcheck.

After nearly a thousand simulations, the results show that both scenarios reduced the mean fire-severity by as much as 60 percent.

“Even though we thinned about two-thirds less of the forest, we saw the exact same treatment outcomes,” said Krofcheck.

“This research and way of thinking about optimally using your resources, in terms of where you thin, could go a long way in helping these organizations use their dollars most efficiently to achieve their desired outcomes, which is less severe fires,” Hurteau said.

Along with mechanical thinning, both scenarios also heavily depended on fire, either naturally occurring or through prescribed burning, being present in the ecosystem. Researchers say it’s another big takeaway: without fire, no amount of treatment will successfully do the job. It’s something they hope those who live in forested areas will begin to appreciate as a mechanism for stopping devastating wildfire before it breaks out.

A couple more fire articles – costs and solutions

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One is an Associated Press overview of the firefighting cost issue.  It’s not research, but it is the way the problem is viewed by many people.  Here is why they say costs are going up:

The U.S. is seeing more and bigger wildfires, and the wildfire season is getting longer. The reasons are hotter, drier weather and a buildup of dead and dying trees because of past fire-suppression practices, said Jennifer Jones, a spokeswoman for the National Interagency Fire Center, which coordinates firefighting nationwide.

The old practice of putting out all fires led to overgrown forests, some with huge tracts of trees that died at about the same time, leaving them prone to large, hot, fast-moving blazes, researchers say.

Some climate and forestry experts say global warming is a factor in the increasing number of fires because it’s contributing to the hot, dry weather.

Jones said another development driving up costs is the increasing number of homes being built in or near forests, a number that the Forest Service estimates is about 43 million homes. Keeping fires away from people, houses, power lines and other infrastructure is more complicated and costly than firefighting in the wilds.

I noticed the absence of “not enough thinning” or “serial litigants.”  Although there’s allusions to both in the last paragraph on legislative solutions (even though they’re not described as a cause):

But one also calls on the Forest Service to manage its woodlands more actively, including thinning dense stands of trees and removing dead trees in an effort to reduce fires. Some argue that pushing management practices is unnecessary and ineffective.

The other features Stephen Pyne discussing what “let it burn” means today in Arizona.  The title:  “Nature is clearing more forest than people can. That may be a good thing.”

It’s complicated, but the gist is this: When lightning-caused fires do not threaten homes, let them burn. That’s an overgeneralization for an approach that takes many factors into consideration such as burn scares from previous fires, weather, drought, fuel, resources, firefighter safety and nearby communities.

Firefighters are frequently “going to managed wildfire, or a box and burn strategy,” Pyne said. Roads, trails and other barriers serve as fire lines. Those lines are the box. The burn clears brush within them. Each box cleared is less likely to be part of a giant fire in the future.

“You’re not just walking away and letting it go,” Pyne said.  The strategy is not new — it has quietly been going on for years, said Zabinski.  “It’s happening quietly all around, but more so the last few years,” she said, because the recent years have brought some drought relief.

The strategy is not without risks because “nature’s complicated. People make mistakes. Things happen,” Pyne said. But without it, “we’ll be playing Whac-A-Mole into the indefinite future. And we’re not going to win.”