Reflections on Bill Cronon’s “The Trouble with Wilderness; or, Getting Back to the Wrong Nature” After 28 Years

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Synchronistically, given yesterday’s Wilderness discussion, I happened to be with some younger people (this covers a lot of age terrain, at my age) who decided to discuss William Cronon’s 1995 essay “The Trouble With Wilderness or Getting Back to the Wrong Nature.  They had actually read this essay during college (!).  Perhaps many of us older folks are unfamiliar with this essay; sometimes books like Uncommon Ground are a big slog for those of us less philosophically inclined, if we are not assigned them. We could wait until the essay is 30 years old, but some of us might not be readily accessible for commenting by then.

Anyway, the topic of the discussion yesterday was “what strikes us about this essay, now almost 30 years old?”  Which I think is also a good question for TSW readers. Here’s a link to the essay.

Here are a few of my excerpts and thoughts, please add your own.

Thus the decades following the Civil War saw more and more of the nation’s wealthiest citizens seeking out wilderness for themselves. The elite passion for wild land took many forms: enormous estates in the Adirondacks and elsewhere (disingenuously called “camps” despite their many servants and amenities), cattle ranches for would-be rough riders on the Great Plains, guided big-game hunting trips in the Rockies, and luxurious resort hotels wherever railroads pushed their way into sublime landscapes. Wildernes suddenly emerged as the landscape of choice for elite tourists, who brought with them strikingly urban ideas of the countryside through which they traveled. For them, wild land was not a site for productive labor and not a permanent home; rather, it was a place of recreation. One went to the wilderness not as a producer but as a consumer, hiring guides and other backcountry residents who could serve as romantic surrogates for the rough riders and hunters of the frontier if one was willing to overlook their new status as employees and servants of the rich.

A few years ago I went to Alaska and noticed that many of my fellow travelers (spending more money to go deeper into the wilderness) were financially favored folks- almost like a curated Wilderness Experience.  I’m not criticizing them nor the guides that support them. Just pointing out it’s not like someone from Bend hiking into Sisters Wilderness for the day.  There are all kinds of wilderness experiences.

There were other ironies as well. The movement to set aside national parks and wilderness areas followed hard on the heels of the final Indian wars, in which the prior human inhabitants of these areas were rounded up and moved onto reservations. The myth of the wilderness as “virgin,” uninhabited land had always been especially cruel when seen from the perspective of the Indians who had once called that land home. Now they were forced to move elsewhere, with the result that tourists could safely enjoy the illusion that they were seeing their nation in its pristine, original state, in the new morning of God’s own creation.  Among the things that most marked the new national parks as reflecting a post-frontier consciousness was the relative absence of human violence within their boundaries. The actual frontier had often been a place of conflict, in which invaders and invaded fought for control of land and resources. Once set aside within the fixed and carefully policed boundaries of the modern bureaucratic state, the wilderness lost its savage image and became safe: a place more of reverie than of revulsion or fear. Meanwhile, its original inhabitants were kept out by dint of force, their earlier uses of the land redefined as inappropriate or even illegal. To this day, for instance, the Blackfeet continue to be accused of “poaching” on the lands of Glacier National Park that originally belonged to them and that were ceded by treaty only with the proviso that they be permitted to hunt there.

I was hoping that this had changed; Montanans know more about this than I do..but I did find this fairly recent article from the Columbia Climate School.  In those day, climate had yet to become everything-ized, so that’s a definite change.

Facing starvation in 1895, the Blackfeet were essentially coerced into selling part of their land, which they call the “backbone of the world,” to the United States government for $1.5 million. This 1895 agreement was supposed to secure the region as federal forest land, and the United States government had agreed that the Blackfeet would always have access to it for hunting, fishing, gathering, and other uses. But in 1910, the northern half of the territory was turned into Glacier National Park — which had not been written into the original 1895 agreement. Once this happened, the Blackfeet no longer had access to hunting or gathering there.

So this was actually a “Parkifying” issue and not a Wildernessing issue, sounds like.

“But, having said that,” LaPier added, “we still cannot hunt. We still cannot gather [legally] on Glacier Park land.” Hunting is hard to hide from park rangers, but some Blackfeet can get away with hunting in Glacier during the winter. Gathering, on the other hand, can be done alone and quietly. “Tribal members believe it’s their right to gather on that land, and so they do,” she said.

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Back to Cronon:

The removal of Indians to create an “uninhabited wilderness”-uninhabited as never before in the human history of the place-reminds us just how invented, just how constructed, the American wilderness really is. To return to my opening argument: there is nothing natural about the concept of wilderness. It is entirely a creation of the culture that holds it dear, a product of the very history it seeks to deny.

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To do so is merely to take to a logical extreme the paradox that was built into wilderness from the beginning: if nature dies because we enter it, then the only way to save nature is to kill ourselves. The absurdity of this proposition flows from the underlying dualism it expresses. Not only does it ascribe greater power to humanity that we in fact possess-physical and biological nature will surely survive in some form or another long after we ourselves have gone the way of all flesh -but in the end it offers us little more than a self-defeating counsel of despair. The tautology gives us no way out: if wild nature is the only thing worth saving, and if our mere presence destroys it, then the sole solution to our own unnaturalness, the only way to protect sacred wilderness from profane humanity, would seem to be suicide. It is not a proposition that seems likely to produce very positive or practical results.

Why, for instance, is the “wilderness experience” so often conceived as a form of recreation best enjoyed by those whose class privileges give them the time and resources to leave their jobs behind and “get away from it all”? Why does the protection of wilderness often seem to pit urban recreationists against rural people who actually earn their living from the land (excepting those who sell goods and services to-the tourists themselves)? Why in the debates about pristine natural areas are “primitive” peoples idealized, even sentimentalized, until the moment they do something unprimitive, modern, and unnatural, and thereby fall from environmental grace?

This reminds me of the Native Americans who want a pipeline, or have supported the Willow Project, or the people of King Cove who want a road (I’m not sure either that the Izembeck Refuge is Wilderness).   I’m a general fan of Jimmy Carter but as he weighed into the latter controversy in the May of 2022 (granted that he was 97),

In response to questions from The New York Times, Mr. Carter wrote that the law “may be the most significant domestic achievement of my political life.”

“Our great nation has never before or since preserved so much of America’s natural and cultural heritage on such a remarkable scale,” he added.

In his brief, Mr. Carter wrote that he, like many Americans, had experienced Alaska’s public lands many times. In his response to The Times’s questions, he described one visit, to the Arctic National Wildlife Refuge, one of the largest expanses of wilderness in the United States, as “one of the most unforgettable and humbling experiences” of his life.

“We had hoped to see a few caribou during our trip, but to our amazement, we witnessed the migration of tens of thousands of caribou with their newborn calves,” he wrote.

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My guess is that in the last 30 or so years, we have become less consciously attached to the Eden and wasteland ideas of the Hebrew Bible and the New Testament. We have become more aware of Indigenous people, although perhaps our efforts to re-empower them have run into various roadblocks (lack of interest perhaps, on the R side, and difficulties with ENGO calling the shots on the D side). There remains a certain macho-hood of some Wilderness ideas, including the necessity of large dangerous carnivores for the best experience. And the size and influence of the anthropogenic global warming/climate change bandwagon means that ideas of static Nature best left alone are more difficult to support. That’s my take.. read the essay and see what you think!

Udall: We Need to Keep Climbers in Wilderness So They Can Advocate for Wilderness

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Image from https://www.boulderclimbers.org/news/fixedanchorsinwilderness-bolts

 

Op-ed linked here.

Here are some excerpts:

As a United States senator, I sponsored and helped to pass new Wilderness protections for Colorado’s James Peak Wilderness, Indian Peaks Wilderness, and Rocky Mountain National Park. These bills became law thanks to a united coalition of advocates for conservation and recreation. In my experience, the two cannot be separated. The time we spend outside is what defines every conservationist I know.

Protecting Wilderness requires careful management that allows primitive recreation activities that are compatible with preserving Wilderness characteristics. Over the last decades, the management of fixed anchors in Wilderness areas has been ad hoc. It’s varied from area to area, often causing confusion and conflict. The Protecting America’s Rock Climbing Act (PARC Act) would clarify for the land agencies, the public, and climbers where fixed anchors are appropriate, when they can be replaced, and where they are banned.

By resolving the ongoing debate over fixed anchors, our public land managers can devote their priceless time to the serious, existential, and quickly progressing impacts to America’s Wilderness Preservation System. For example, air pollution and climate change don’t respect boundaries on a map. In fact, 96 percent of national parks “are plagued with significant air pollution problems.”

If we’re going to take a proactive approach to protecting America’s last pockets of Wilderness, we need a new generation of advocates to lead the way. Supporting sustainable climbing access to America’s Wilderness areas will help ensure that climbers—long-standing wilderness champions—are part of that coalition.

Here’s what I think: saying advocates for conservation and recreation “cannot be separated” is one of those generalized expressions that glosses over the fact that certain forms of recreation on the Pyramid of Pristinity are often kicked out or never allowed in Wilderness.  Also, that even those activities allowed can have serious environmental impacts. But maybe that’s still conservation? By definition?

The fact is that our “public land managers” “priceless time” will probably not be spent on cleaning up air pollution nor reducing “climate change.”  I heard one of my colleagues say “perhaps the best things federal lands could do for climate change is to not allow recreation of any kind because of the transportation and fuel impacts” and I’m not sure it was tongue-in-cheek.

His last argument is fairly pragmatic.. although I’m not sure what a “proactive approach to protecting” means… more Wilderness, or fewer things allowed, or protecting via reducing pollution and decarbonizing? What do they need climbers for, and why stop with them?

The Smokey Wire Request Line: Best Community Planning for Wildfires

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I don’t know if this one is particularly good but I needed a photo.

A friend has asked for examples of communities that have done exceptional work in becoming wildfire adapted and resilient.  This would include all aspects of resilience, ignition reduction, structure and infrastructures design and hardening, fuel treatments/ mitigation, evacuation, and probably many things not on this list.  Please comment below and provide links if possible.

ANPR Climate Resilient Forests and Grasslands- Update Webinar Link

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I know, I know. A person could get confused because “climate resilience” sounds like its about adaptation, and the MOG discussion seems to be mostly about carbon, or at least the arguments for not cutting trees.. which we have been listening to for 40 years or thereabouts.. are now centered about carbon.  And of course, every little thing the FS does on the landscape needs to have some kind of climate considerations, and has for at least 15 years or so. So the ANPR seems to be asking for “suggestions about anything that the FS does.” I wonder how many other agencies have had a rule making that opens up “everything it does.”

In fact, the FS has what I consider to be an excellent document about climate adaptation.   And many of the people on these calls talk about MOG.  But I’ve been told by internal and external People Who Should Know that it’s really about resilience and not about MOG. Meanwhile ENGOs are working on a MOG policy solution with CEQ, the FS and others.

I’m a general fan of the FS, as you all know, but I would point out a couple of my concerns.   They used an abstraction in the webinar-  “active management” -regularly without defining it.  Fire suppression is active management, prescribed fire, planting trees, timber harvest and so on are all active.  Based on the views of the form letters I read in response to the ANPR and the views of people on our webinars, I’d say that most people with concerns did not want commercial timber harvest, although they said “logging”, which is not exactly well defined at the project level.  Tree cutting, or tree cutting and removal using heavy equipment, or tree cutting and pile burning, or  just commercial timber harvest but maybe not commercial firewood.. So that’s one thing.

My other quibble was with analyzing comments using AI (in this case, natural language processing).  I recently had a bad experience with AI so perhaps am a bit grumpy about it.  You’ll remember I FOIAd both CEQ and USDA for documents with “fire retardant” in them.  USDA gave me the documents they had, as far as I know,  including messages from key people at CEQ.  CEQ did not give me those messages, but did give me a DOE annual report and a mass of unrelated material.  Apparently, that was due to their AI, or perhaps someone did not type in exactly the right search term. It seems to me that using AI is not necessarily increasing transparency nor trust.  I’d argue that to build citizen confidence, each AI application during a test period should have the standard human approach run concurrently and both sets of results published and open for comment (aka Lessons Learned).  I have noticed that contractors and I didn’t always pick the same way of analyzing comments either, so perhaps there’s not one “human” way.  But the results would then be compared in one document that the public could view.   I would see this as needed only for rule making; in my experience, projects are not as complex for content analysis. Also the decision makers for projects and even plans tend to be close enough to the disagreements that they have a base understanding of them.  I am not so sure that’s true of the politicals involved in rule-making.. if they only listen to their friends, then the public comment summaries are key element of their understanding of opposing views.

I’d bet that “double coverage” would be expected and required, say, in fire suppression applications. To increase trust, accountability is also important.  AI, without careful management, could also be an escape valve for accountability, as in “Sorry, folks, the AI did it.” Similar to “it’s not our fault, it’s climate change.”

Anyway,  here’s a link to the presentation. I’m curious what strikes you about it.

Secretary Vilsack Has New Idea for Permitting Reform: Create Specialized Court System for Project Reviews

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Shout out to E&E news reporter Yachnin  for attending and finding interesting stuff at the WGA Meeting! Governors of different parties agreeing on stuff and trying to solve problems together is well worth some reporting IMHO.

I like the Vilsack idea because it’s not just about NEPA, but would seemingly help make consistent case law around ESA, climate analysis, scientific controversies and so on that seem to be decided more or less randomly by different courts in different cases. And we don’t know if it was Vilsack’s idea or one of his staff, or someone at OGC or at the FS, but still how often do we hear new outside-the-box ideas in this space? Also if the issue is litigation, the tweaks in the so-called Fiscal Responsibility Act and the proposed CEQ NEPA Regs are either not helpful, or in the wrong direction.  I’ll post a few more posts on various efforts and studies in the next few weeks, but props to Vilsack for saying the “L” word out loud.

From this E&E News story:

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When it comes to speeding up often lethargic legal challenges to environmental reviews, Agricultural Secretary Tom Vilsack is floating a novel idea: Create a specialized court system.

Vilsack raised the concept Tuesday in remarks to the Western Governors’ Association at its annual meeting in Jackson Hole, Wyo., where conversations among state officials often turned to possible reforms of the National Environmental Policy Act.
The Biden administration is weighing how to reshape the nation’s bedrock environmental law to streamline environmental permitting and speed the process of reviews.
“The challenge is no matter what you do, somebody always disagrees with it and you have litigation,” Vilsack said.

“Sometimes it’s litigation because people think you should be doing more, and sometimes people think you should be doing a heck of a lot less.”
Preempting his own idea by asserting it is “probably not feasible,” Vilsack then went on to propose a NEPA court system — akin to admiralty courts, which apply maritime laws — that “would essentially be responsible for adjudicating those decisions.”
“I think you’d get greater consistency with people who do this every day,” Vilsack said “You’d have precedent, people would understand what the rules are. You wouldn’t have the forum shopping that takes place in this circumstance.”

Plus you might have some kind of consistent case law for NEPA practitioners to aim for..

Such a court system could potentially serve to balance environmental protections with a need to speed up the often lethargic process, Vilsack said.
“It seems to me that until you deal with the issue of litigation and trying to figure out ways to streamline it in a way that doesn’t interfere with the quality of the analysis and assessment, you’re going to continue to be stuck with taking forever for things to get done,” he said.
The idea appeared to spark the interest of several officials at the meeting, including Utah Gov. Spencer Cox (R), whose response to Vilsack prompted audience laughter. “That makes far too much sense, and there’s no way it could ever happen,” Cox said.
Wyoming Gov. Mark Gordon (R) revisited the idea during a Wednesday panel on infrastructure permitting, describing a separate legal system as “provocative.”
“There is a tendency to try to find the best court to bring a particular action in NEPA,” Gordon said.
New Mexico Gov. Michelle Lujan Grisham (D) responded to Gordon, noting that the idea would require both dedicated funding and training, and pointing to failures in the immigration court system.
“If we’re not willing to take on controversial ideas that are provocative, then we aren’t going to solve problems,” Lujan Grisham said. “I think there’s a there, there. I don’t know exactly what it is.”
She later added, “If we have a stalling aspect, we should figure out a way so that it is a fair objective review, so that we get guidance about where to go and not a situation that continues to stall us out all across the country.”

I’m not sure that it would take any more funding or training, we’re already doing all the work but in a less coherent fashion.

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I did get a chuckle out of the link in the above article to another E&E news article about the proposed CEQ NEPA regs that I wrote about earlier this week.

NEPA experts are still poring over the 236-page draft document. But several said the changes are an encouraging step toward broader permitting reform, balancing efficiency and environmental risk — while staying consistent with the underlying law and court precedent.

“I don’t see a lot of legal risk” to CEQ, said Max Sarinsky, a senior attorney at New York University’s Institute for Policy Integrity.

He described the draft as “meaningful” but “also fairly modest and incremental.”

Well, I’m glad NYU has an Institute for Policy Integrity as opposed to .. I don’t know.. whatever the opposite of integrity is? But it’s OK because foundations are funding them, many of the usual suspects..and even our own tax dollars via EPA.  Now everyone knows I like lawyers and economists (especially forest economists and lawyers), but if we want to provide things like energy to people who need them, I think we’ll need more expertise at the table, or in the university, or at the think tank, or in the White House than those who generate analyses and lawsuits.   Because generally lawsuits are good at slowing down things that are bad (to some). I’m not sure that they’ve ever speeded up things that are good (to some).

18 Bill Bucks Back to States, Tribes and Individual Indian Mineral Owners in 2023 from Interior Energy Revenues

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New Mexico is one of our poorer states, so this is good news from a social justice perspective. But if fees from renewables decline by 50% based on the new reg, assuming similar years, it would be $300 mill less? And that difference would grow as new renewables come on line.  I wonder where exactly the future missing $300 mill or more would have gone?

Interior Department Announces $18.24 Billion in Fiscal Year 2023 Energy Revenue

WASHINGTON — Today, the Department of the Interior’s Office of Natural Resources Revenue (ONRR) announced the disbursement of $18.24 billion in revenues generated in fiscal year 2023 from energy production on federal and Tribal lands and federal offshore areas. U.S. energy production under President Biden’s leadership has reached an all-time high on both public and private lands throughout the nation.

The disbursements provide funds for states and Tribes to pursue a variety of conservation and natural resource goals, including irrigation and hydropower projects, historic preservation initiatives, conservation of public lands and waters, and investments in maintenance for critical facilities and infrastructure on our public lands.

The Department’s renewable energy programs yielded nearly $600 million in revenue and is making significant progress toward the President’s ambitious clean energy goals. President Biden’s Investing in America agenda is growing the American economy from the middle out and bottom up – from rebuilding our nation’s infrastructure, to driving over $600 billion in private sector manufacturing and clean energy investments in the United States, to creating good paying jobs and building a clean energy economy that will combat the climate crisis and make our communities more resilient.

This year, $1.43 billion was distributed to Tribes and individual Indian mineral owners; $3.46 billion to the Reclamation Fund; $1 billion to the Land and Water Conservation Fund; $150 million to the Historic Preservation Fund; $379 million to federal agencies; and $7.09 billion to the U.S. Treasury.

ONRR disbursed $4.72 billion in fiscal year 2023 funds to 33 states. This revenue was collected from oil, gas, renewable energy, and mineral production on federal lands within the states’ borders and offshore oil and gas tracts in federal waters adjacent to four Gulf of Mexico states’ shores.

The states receiving the highest disbursements based on those activities are:

 New Mexico

 $2.93 billion

 Wyoming

 $832.86 million

  Louisiana

 $177.25 million

 Colorado

 $153.24 million

 North Dakota

 $132.66 million

 Utah

 $123.91 million

 Texas

 $108.27 million

 Mississippi

 $52.58 million

 Alabama

 $52.49 million

 California

 $49.12 million

 Alaska

 $44.81 million

 Montana

 $36.18 million

The revenues disbursed to 33 federally recognized Tribes and approximately 31,000 individual Indian mineral owners represent 100 percent of the revenues received for energy and mineral production activities on Indian lands. Tribes use these revenues to develop infrastructure, provide health care and education, and support other critical community development programs, such as senior centers, public safety projects, and youth initiatives.

Since 1982, the Department has disbursed more than $371.3 billion in mineral leasing revenues. ONRR makes most of these disbursements monthly from the royalties, rents, and bonuses it collects from energy and mineral companies operating on federal lands and waters.

A complete list of states receiving revenues and FY 2023 disbursement data is available on the Natural Resources Revenue Data portal.

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I was playing around with the database trying to separate wind and solar but couldn’t.. maybe someone with an Interior background could help?

I did find the below chart.. maybe someone knows what negative revenues are in this case.

Northwest Forest Plan Federal Advisory Committee to Meet November 14-16

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The Northwest Forest Plan Area Federal Advisory Committee (FAC) will meet on Nov. 14 – 16, 2023, at the Edgewater Hotel, 2411 Alaskan Way in Seattle, Washington.

For those who wish to attend the meeting virtually, please click the link below to join the live stream: https://encoreglobal.zoom.us/j/95745343302?pwd=OVAyWTlUUlpZeEZEWkp3UW1kcXJKUT09

​Along with presentations from forest managers, the FAC will discuss how experience with forest management can inform the agency in considering updates to the Northwest Forest Plan. The NWFP FAC Agenda details can be found on the NWFP FAC website at: https://www.fs.usda.gov/goto/r6/nwfpfac

All FAC meetings are open to the public and include opportunity for public comments. Note that registrations for in-person oral comments or written public comments for this meeting has closed. Comments received after the deadline will be provided to the Forest Service.  The Committee will not have adequate time to consider them prior to the November meeting, however, they will be considered for the January 30-February 1, 2024, meeting.

Details about future Committee meetings and opportunities to provide comments for them will be posted on the Forest Service’s regional website at: https://www.fs.usda.gov/goto/r6/nwfpfac.

The FAC was established by the Secretary of Agriculture as part of ongoing efforts to amend the Northwest Forest Plan. The purpose of the FAC is to bring together diverse perspectives representing the experiences of communities, experts, Tribes, and other interested parties across the Northwest Forest Plan landscape to inform ways that forest management can effectively conserve key resources while considering social, ecological, and economic conditions and needs.

The Federal Advisory Committee does not replace the public involvement process or the public’s opportunity to engage directly with the Forest Service regarding Northwest Forest Plan amendment efforts during the planning process and future engagement and comment opportunities will be provided.

The Northwest Forest Plan covers 24.5 million acres of federally managed lands in northwestern California, western Oregon, and Washington. It was established in 1994 to address threats to threatened and endangered species while also contributing to social and economic sustainability in the region. After nearly 30 years, the Northwest Forest Plan needs to be updated to accommodate changed ecological and social conditions.

Additional information about the Northwest Forest Plan is available at https://www.fs.usda.gov/detail/r6/landmanagement/planning/?cid=fsbdev2_026990 .

For future Northwest Forest Plan Amendment updates please sign up using USDA Forest Service (govdelivery.com)

Public Lands Litigation – update through November 3, 2023

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FOREST SERVICE

Conviction overturned

The 4th U.S. Circuit Court of Appeals has overturned the conviction of a man who burned 70 acres of the Nantahala National Forest in 2020.  The circuit court stated that testimony regarding his knowledge of where he was should not have been excluded by the trial court:

“We conclude that specific knowledge of federal ownership is not required for conviction … Therefore, the Government did not have to prove that Evans knew he was on federal land or intended to burn federal land. But the Government did have to prove that Evans acted willfully, and an honest mistake of fact about whether he was burning brush on his own property would be a viable defense… Evans explained his family’s long ownership of property abutting the Nantahala National Forest and his understanding of the boundary lines based on certain markers on the property.”

New lawsuit

A wrongful death lawsuit filed by relatives of three people killed by flash flooding after the Hermit’s Peak/Calf Canyon fire on the Santa Fe National Forest in 2022 alleges that the Forest Service was negligent in failing to close roads or properly warn people of the risks of flash flooding.  The fire began as a planned burn. The Forest Service found in a report released later in 2022 that it underestimated the amount of fuel available to the fire and did not adequately account for dry conditions or the risk to nearby communities.

Court decision in Western Watersheds Project v. McKay (9th Cir.)

On October 26, the court of appeals reversed a lower court ruling, and vacated the Fish and Wildlife Service’s biological opinion supporting the Fremont-Winema National Forest’s approval of expanded cattle grazing.  It found the BiOp deficient because it did not account for climate change as a baseline condition or a cumulative effect or take it into account in developing mitigation strategies (which were not certain to occur).  The BiOp “altogether failed to engage with information in the record suggesting that climate change would affect water levels and streamflow.”  The court upheld the grazing decision’s compliance with NEPA and the forest plan.  (The article includes a link to the opinion.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. Ariz.)

On Halloween, the district court dismissed NEPA claims against the 2023 Salt River Horse Management Plan on the Tonto National Forest and a 2017 Intergovernmental Agreement with the State of Arizona.  The claim against the IGA was moot because the Agreement had expired.  The claim against the 2023 Plan was not subject to NEPA because it involved no federal action since the forest supervisor had not approved the Plan.  Plaintiffs had asserted that ongoing harm to wildlife is occurring in the affected area because of delay in reducing the horse herd to numbers recommended by a collaborative associated with the IGA.

Maybe some of you, like me, are not very familiar with the wild horse issues on federal lands or the unique federal laws applicable to wild horse management.  I found this article in the Sierra Club’s magazine to be helpful.  Here’s their summary of those laws; while the article is about the BLM, the Forest Service is subject to the same requirements:

In 1959, Congress passed the Wild Horse Protection Act, which banned the hunting of feral horses from aircraft and motorized vehicles on federal land. More expansive protections followed. Wild horses became federally protected under the Wild Free-Roaming Horses and Burros Act of 1971, which gave the BLM power to manage horses in specific herd-management areas, enmeshing the animal in the BLM’s maxim of multiple use. With the new regulations in place, wild-horse numbers quickly increased, so Congress passed the Federal Land Policy and Management Act of 1976, allowing helicopter roundups. Two years later, the Public Rangelands Improvement Act created the adopt-a-horse auctions and required the BLM to set specific population levels for each herd-management area, which led to additional roundups and long-term holding on private ranches as the approved way we get horses off the range.

 

BLM

Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)

On October 18, the district court denied motions for a temporary restraining order and a preliminary injunction against the South Spring Valley and Hamlin Valley Watersheds Restoration Project, which would include removal of pinyon and juniper trees, direct sagebrush treatment, and prescribed fire to restore the landscape to reference conditions and benefit sage-grouse.  The decision for the 384,414-acre area was based on an EA.

The court found plaintiffs did not demonstrate a likelihood of success on their NEPA claims. The complaint argued that the Project is “deferring critical decisions about siting and treatment methods to the future with no additional NEPA review.”  The court held that the record “describes the maximum number of acres to be treated; percentage of vegetation to be treated; and divides the watersheds into thirteen treatment units, categorizing each unit into one of four treatment categories based on the vegetative conditions and treatment objectives” (comparing it favorably to the EIS in the 8000-acre Navickas/Ashland case we discussed before here).  It considered this approach to be “adaptive management,” which is “permitted by NEPA.”  (Notably, the court approved of BLM’s statement that it, “determined that treatment within sagebrush habitats needed to be tailored depending on the potential environmental effect.”  That seems to suggest that BLM would not be done with NEPA until it has determined the actual effect.)  The court upheld the analysis of effects on wildlife and the cumulative effects of grazing in accordance with NEPA (and noted that plaintiffs, “curiously failed to challenge the failure to prepare an EIS”).

The court did find the likelihood of a legal flaw in determining compliance with the RMP’s requirement to replace lost habitats of special status species at a 2-to-1 ratio, which the BLM conceded it did not do, but upheld compliance with specific RMP requirements related to bat species and sage-grouse.   Despite plaintiff’s high likelihood of success on the one claim, the court found limited evidence of “irreparable harm” from allowing chaining to proceed, and refused to stay the Project pending a final decision in the lawsuit.  Additional discussion can be found here.

  • Alaska BLM ANWR oil and gas lease cancellation

New lawsuits

The Alaska Industrial Development and Export Authority has sued USDI over the September cancellation of seven oil and gas leases in the Arctic National Wildlife Refuge.  AIDEA claims the termination violated a statute that directs the Interior Department to award leases covering at least 400,000 acres for exploration. In canceling the leases, Interior Department Sec. Deb Haaland cited “multiple legal deficiencies in the underlying record supporting the leases.” On October 31, Americans for Prosperity filed a lawsuit regarding its FOIA request related to the same decision.

Settlement of Albany County Conservancy v. Novotny (D. Wyo.)

Three months after the BLM was sued by a local environmental group and retired Fish and Wildlife Service biologist for violating NEPA and its public participation requirements when it approved a transmission line for wind energy, the agency has decided to revisit the decision.  Plaintiffs are particularly interested in the cumulative effects of commercial windfarms of golden eagles, including 17 windfarms in Albany County.

Court decision in Center for Biological Diversity v. U. S. Dept. of the Interior (D. D.C.)

On November 1, the district court held that plaintiffs lacked standing to sue over more than 4000 applications for permit to drill (“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin.  The court required plaintiffs to prove standing with regard to each agency action rather than “”draw a line around them,” and allege that they have individual members who have a geographic nexus with “the resulting ‘APD Area.’””  They failed to, “identify individual members who use the areas affected by the challenged individual APDs.”  This article includes more background.

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Ariz.)

On November 2, the CBD along with the Maricopa Audubon Society sued the BLM and Fish and Wildlife Service for violating the Endangered Species Act by failing to protect habitat for the endangered southwestern willow flycatcher and western yellow-billed cuckoo from cattle grazing damage when it authorized seven grazing allotments along Arizona’s Gila River.  The claims are based on field surveys identifying continuing damage, apparently related to unauthorized grazing, despite previous agreements to remedy the problem.  (The press release has a link to the complaint.)

New lawsuit:  Southern Utah Wilderness Alliance v. U. S. Dept. of the Interior (D. Utah)

On November 3, plaintiffs challenged four separate decisions made in 2018-2019 by the Bureau of Land Management to offer, sell and issue for development 145 oil and gas leases covering approximately 215,325 acres of public lands in Utah’s Uinta Basin without fully and adequately analyzing the environmental and public health impacts of those decisions.  (The news release has a link to the complaint.)

 

OTHER

New lawsuit

BlueTriton Brands filed the lawsuit in October in Fresno County Superior Court, arguing in its complaint that the California State Water Resources Control Board overstepped its authority when it ordered the company to halt its “unauthorized diversions” of water from springs in the San Bernardino National Forest.  BlueTriton and prior owners of the business have for years had a special-use permit allowing them to use the pipeline and other water infrastructure; however, the Forest Service recently told the company that reissuing the permit would require proof of water rights.  The company’s argument centers on the different legal treatment of groundwater and surface water under California law.

The Proposed CEQ NEPA Regs Phase 2: Making Renewable Build-out More Difficult

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In yesterday’s post, I suggested that climate and energy policy could use Agreement, Alignment, and Accountability.

In the absence of some kind of  USG agreement, we might hope that at least the Biden Administration would have some degree of alignment.  My observation is that different agencies seem to be influenced by different interest groups, with different views which leads to massive non-alignment.

Sometimes the Admin says that they are big fans of a massive renewable buildout across federal lands.  According to this press release:

The Biden-Harris administration is committed to expanding clean energy development to address climate change, enhance America’s energy security and create good-paying union jobs. The projects we are advancing today will add enough clean energy to the grid to power millions of homes,” said Secretary Deb Haaland. “Through historic investments from President Biden’s Investing in America agenda, the Interior Department is helping build modern, resilient climate infrastructure that protects our communities from the worsening impacts of climate change.”

“The BLM’s work to responsibly and quickly develop renewable energy projects is crucial to achieving the Biden-Harris administration’s goal of a carbon pollution-free power sector by 2035,” said BLM Director Tracy Stone-Manning. “Investing in clean and reliable renewable energy represents the BLM’s commitment to addressing climate change and supports direction from the President and Congress to permit 25 gigawatts of solar, wind and geothermal production on public lands no later than 2025.”

As we’ve discussed before, the solar industry had concerns about the BLM proposed conservation rule.. but on the other hand BLM reduced the fees by 50% on federal land, so that solar and wind would generate more profit (or cost less to attract investors).  So that’s not as clear an alignment as might be possible, but even less aligned appears to be the recent Proposed CEQ NEPA regulations.

Ted Boling, formerly of CEQ, called the NEPA changes in the Fiscal Responsibility Act “a full employment program for environmental litigators.”  Since based on Ted’s observation,  they have already reached full employment via the changes in the Fiscal Responsibility Act, it’s hard to imagine what would happen if all the changes in the Proposed NEPA regs make it into the final rule.   Perhaps law schools could get funding from the Feds to expand their programs..

Now to be fair, perhaps at least the Congressfolks intended to streamline processes.  It does seem to me, though, that there is a gap between Congressional staffers and environmental lawyers on the one hand, and NEPA practitioners in agencies, on the other hand, about what are useful interventions that might help make NEPA procedures better.  It seems like some of the ideas may sound great to the people writing them, but they have no idea about how things work in the real world of agency NEPA.   My impression of these proposed regs was that of CEQ tying knots around agency efforts of all kinds, and making sure that the regs bristle with new legal hooks. Yes, it’s a climate emergency and we need  to build things  (by 2030).. but maybe not at the risk of reducing the decision-making power of those who currently have their feet on the brakes.   So we have lots of funding via new bills, but no one has taken their feet off the brake, in fact they are expanding the braking power.  I don’t know what the auto analogy is at this point, but we could waste a great deal of  (borrowed) money and get nowhere.

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From the NAFSR comments (National Association of Forest Service Retirees):

The CEQ regulations need to provide consistency, reliability, and simplicity so the Federal agencies, public, and courts understand requirements related to the statute, as well as the flexibility allowed for a wide variety of applications and efficiencies today and into the future. There were some unnecessary NEPA burdens imposed by the previous administration and also by Congress in the Fiscal Responsibility Act.  Including the changes in this proposed regulation, the cumulative impacts of all these new requirements may make it impossible for agencies to efficiently and effectively meet requirements to integrate environmental considerations in their planning and decision making. Additionally, political whip-saw changes to the CEQ regulations upset an orderly process for agencies to plan, decide on, and implement programs. The instability of the law and CEQ regulations means agency NEPA procedures, guidance, and training are constantly out of date.

In our view, CEQ should avoid requiring agencies, NEPA contractors, and legal professionals working for project proponents and opponents, as well as judges in the federal courts, to strike out into unexplored legal territory.  This is unlikely to either help agencies increase the efficiency of project planning and implementation, or respond quickly and flexibly to climate emergencies as they arise.

The stability of the pre-2023 statute and the pre-2020 CEQ regulations provided a reliable and steady baseline for agencies to operate within.  While case law and agency practices raised questions, burdens, and remedies, CEQ guidance and agency innovation have helped agencies navigate these challenges in the past.

(my bold)

And

Stability also involves not making changes that are likely to be litigated. Litigation extends the time until agencies understand and can act on requirements.  Two potential outliers compared to what we might call “Classic NEPA based on the 1978 Regulations” are both related to the idea of NEPA as an action-forcing statute, and are likely to be litigated.  The first is an effort to walk away from acknowledging NEPA’s history as a procedural statute; the second is requiring mitigation.  It’s not clear what problems these changes would be responding to; they are likely to be litigated or clarified by Congress; and they do not add modernization or efficiency.   If there are not enough substantive environmental statutes on the books, we think the answer is to encourage Congress to pass more, not to add more requirements to the NEPA process.

One of the least helpful additions is not from CEQ, at all but a new Congressional requirement to review programmatics every five years (for us, think RMPs and forest plan EISs).  This seems puzzlingly unnecessary. I’ve never heard anyone complain that agencies don’t review programmatics enough; I’ve only heard from previous CEQ folks that agencies should use them more.

I know many of you have written very thoughtful comment letters on the CEQ Proposed NEPA Regs.  Please put your thoughts and links to your comments below.

Honeybees on public lands?

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Western bumblebee (Xerces Society / Rich Hatfield)

The rusty-patched bumblebee and Franklin’s bumblebee have been listed under ESA and other species are being considered.  The Xerces Society considers 11 species of bumblebee to be at-risk.  The Forest Service and BLM allow special use permits for non-native honeybee apiaries on their lands based on categorical exclusions.  Here is the one applicable to the Forest Service (36 CFR 220.6(d)(8)):

(8) Approval, modification, or continuation of minor, short-term (1 year or less) special uses of National Forest System lands. Examples include but are not limited to: (i) Approving, on an annual basis, the intermittent use and occupancy by a State licensed outfitter or guide; (ii) Approving the use of National Forest System land for apiaries; and (iii) Approving the gathering of forest products for personal use.

The science?  According to this article:

Most scientists agree that honeybees are not native to the Americas. They were imported to the continent in the 1600s on cargo ships from Europe and arrived in Utah in the mid-1800s.

Honeybees tend to outcompete native bees for pollen. Tepedino said, “if you put enormous numbers of honeybees on public lands … the native bee population must, by necessity, be deprived.”

A study by Tepedino concludes that the honeybees in a single apiary can, in just four months, remove enough pollen to raise five to 13 million native bees.

O’Brien said that competition is also worsened by climate change. Because climate change leads to more drought and as a result fewer flowers, it is becoming more difficult for native bees to compete with honeybees, she said.

Mary O’Brien (a botanist) also said the CE was instituted in the 1980s, before scientists knew very much about native bees. She points to the western bumblebee, a species she said is “critically imperiled” in Utah. It is particularly threatened by diseases, including ones that are transmitted by honeybees.

Project Eleven Hundred was born about five years ago in response to a request for a permit to place 100 hives each at 49 sites in the Manti-La Sal National Forest.  That permit was denied, but there is currently a permit on the Uinta-Wasatch-Cache National Forest that is up for renewal at the end of this year, which is being contested and may be litigated.  Project 1100 has also petitioned to remove the CE.

In forest planning under the 2012 Planning Rule, species of conservation concern are to be designated SCC if there is a risk to their persistence in the plan area.  Both listed species and SCC must be addressed in forest planning to ensure that the plan decisions (components) adequately protect these species from threats.  Since commercial non-native apiaries are a threat to these species, a forest plan should consider, and probably adopt standards that regulate or prohibit issuance of permits for honeybees.  (I’m guessing wild honeybees are found on most national forests.)

The proposed revision of the Manti-La Sal National Forest Management Plan  allows apiaries, subject to a standard stating that permits “shall not be issued for placement of hives within 5 miles of known insect-pollinated, at-risk plant species locations or at-risk insect populations.” It also states that a maximum of 20 hives can be issued for each apiary special use permit (which is arguably “not commercially viable”).  O’Brien said this is an impossible precaution to enforce. “As if they know where [native bees] are,” she said. “…The western bumblebee would be considered at risk, and they don’t know where it flies.”

The western bumblebee was NOT designated as an SCC in the Manti-La Sal’s draft of its revised forest plan.