Community Sourced, Shared and Supported
Join The Biomass Monitor on Wednesday, August 16 at 8 PM Eastern (5 PM Pacific) as they host a debate between Dr. Chad Hanson, Director and Principal Ecologist for the John Muir Project and Marcus Kauffman, Biomass Resource Specialist for the Oregon Department of Forestry, over the effectiveness of cutting trees in backcountry forests to limit the spread and intensity of wildfire.
RSVP and email [email protected] for the call-in number and code to listen in and participate in Q&A.
This case about wild horses on national forests shows how courts tend to look at agencies changing their minds (for whatever reason). “The judges said decades of history and practice by the Forest Service can’t be swept away by calling the original decision a mistake.” There is a process for remaking decisions – even “mistakes.” (I think I don’t agree with the author’s summary at the end – a mistake IS the same thing as a decision.)
Before we move on to “how have SPLATS worked in practice?,” we probably need to go back to the fundamental beliefs underlying our policy preferences. In political science or policy studies, this is known as the way the problem is “framed.” See this description, if you’re not familiar with the term. I think it’s important in dealing with wildfire controversies as it’s easy to see that different folks in the media, politics and research frame the issues differently. It’s also important to realize that these framings are often imbedded in what and how people write about issues, and so you have to go looking for them (which we can do with stories that crop up). But I believe it’s most important to understand that we each get to choose our own framing. Once we have identified the framing within, say a news story or scientific paper, we are free to say “all that information is well and good, but if I frame the problem this way, it’s really not relevant.” From the above link:
HOW DO YOU BEST FRAME AN ISSUE?
To frame an issue, you should begin by asking these questions:What is the issue?
Who is involved?
What contributes to the problem?
What contributes to the solution?
Once you’ve asked these questions, you can begin to answer them. For some guidelines on how to do this, see the sections below.
So let’s start.
My framing of the issue is “in the dry western US, how are people and communities best able to live with fire as a part of the landscape?”
Who is involved: Western communities, landowners (including the feds), all levels of government in those areas, insurance companies, scientific disciplines.
Who contributes to the problem: I don’t think it’s really a problem- it’s more of an acknowledgement of the way things are, and a question of the best way to live, given that situation.
What contributes to the solution: Culture, government, finding some kinds of agreement. People are, in fact, living with fires on the landscape. Communities have developed CWPP’s and have done other amounts of work. Suppression forces are very active and successful.
The question seems to be, though, different actors think that the current status quo is suboptimal. Probably the most important thing to do is ask that question.. what exactly is suboptimal about it, and what is your solution?
The southern US has some of the same landowners, including the FS, and the same environmental laws. They seem to have figured this out (how to live with fire on the landscape) due to differences in cultural, physical and biological parameters. Given that, what would our vision of “living with fire on the land” look like for us westerners?
I looked back in the posts, and it looks like we haven’t had a civility post/reminder for a while. It’s something that there are plenty of gray areas and,I have to admit, it’s easy to get used to, and simply not see anymore or relax about – “hey we do pretty well on the whole, so..” As I said in the post from 2012 below, there are reasons for the unevenness in approving posts. So I want to both say “thanks to everyone who polices themselves!” and “let’s be careful”. We have lost folks due to their not appreciating that kind of environment. These people may have interesting and helpful things to contribute and be gentle souls we would like to spend time with. Anyway, here are some links to previous discussions on the topic…
Cross-laminated timber (CLT) technology makes large construction panels from low-value lumber. The panels can be used to build floors, walls and roofs for buildings up to about 16 stories, which is substantially taller than possible using ordinary lumber and plywood. The Forest Service has been shoveling money to study CLT properties and uses, hoping to create a market for national forest small-diameter wood, of which the Forest Service has a lot.
A recent Forest Service-funded study throws some cold water on the agency’s CLT bullishness. The “CLT Demand Study for the Pacific Northwest” authors are experts in econometric modeling, building codes, and wood products technology.
Two take-aways from the study. First, CLT, at best, will take a couple of decades to penetrate its narrow market niche. Second, even at full build-out, its use won’t make a dent in the available timber supply: “The predicted demand for softwood lumber to manufacture CLT panels represents less than 1% in the annual Pacific Northwest timber harvest.”
I think it might be interesting to examine and discuss some of the specific ideas in the Westerman bill. The text of the arbitration section of the Westerman Bill is Title III subtitle B here. I like the idea of pilots- perhaps have two or three approaches and at the end of two years have a bipartisan commission or advisory committee (folks appointed from both parties and all sides of the issue) review how things worked. It seems to be different from the Barrasso bill that we discussed here in 2014, although the legal discussion about arbitration may still be valid.
I like how this process includes both Agriculture and Interior in the pilot, and how the arbitrator has to be approved by each party involved. I particularly like that each intervenor has to put its cards on the table in terms of going with the proposal, or submitting a modified proposal.
Another pilot might be a period of open, transparent public mediation perhaps done through the US Institute for Environmental Conflict Resolution (established by Congress for just these sorts of things). Not only would people have to put their cards on the table (put the public back in public policy) but it would be a great opportunity for science education (e.g., how do you know that this or that will or will not happen)?
Here’s a description of arbitration compared to mediation:
Arbitration and mediation are similar in that they are alternatives to traditional litigation, and sometimes they are used in conjunction with litigation (opposing parties may first try to negotiate, and if that fails, move forward to trial). Both arbitration and mediation employ a neutral third party to oversee the process, and they both can be binding. However, it is common to employ mediation as a non-binding process and arbitration as a binding process. In simpler terms, binding arbitration replaces the trial process with the arbitration process.
Arbitration is generally conducted with a panel of multiple arbitrators who take on a role like that of a judge, make decisions about evidence and give written opinions (which can be binding or non-binding). Although arbitration is sometimes conducted with one arbitrator, the most common procedure is for each side to select an arbitrator. Then, those two arbitrators select a third arbitrator, at which point the dispute is presented to the three chosen arbitrators. Decisions are made by majority vote.
Mediation, on the other hand, is generally conducted with a single mediator who does not judge the case but simply helps to facilitate discussion and eventual resolution of the dispute.
Somehow I like the idea of a panel of three arbitrators better than the one in the Westerman bill. Maybe that could be another idea tested in the pilots. Maybe Congress could pick two regions, one in the 9th Circuit and one in the 10th Circuit, and test these approaches on a sample of projects. Maybe a joint advisory group could be developed with folks from differing perspectives to select 20 projects to try each way and report back. Forty projects would not cause ecosystems to collapse nor species to go extinct (the group could even agree on a maximum number of acres treated in the pilot) and we might all learn something.
I bet there are other interesting approaches floating around. There is a group in Australia called PCERA who does this:
Second, PCERA provides a new model for expert determination called Collaborative Expert Resolution. This process involves an independent expert being appointed for each party to undertake an independent informal assessment of the merits of the case. The experts then meet and reach consensus, through a collaborative process, as to the resolution of the dispute on the merits. The assessment may be undertaken on a binding or non-binding basis. The outcome is a form of expert determination process in which the parties can work closely with the assessor appointed to consider their case, ensuring the merits of the case are addressed.
I like the idea of experts being involved in this approach.
This case is from the July 28, 2017 Litigation Weekly but maybe deserves separate discussion. Previously folks have said you shouldn’t do EA’s but should do EIS’s, seemingly based on case law more than the NEPA regulations themselves (or as it has been characterized “DOJ won’t defend EA’s”). So we had been watching to see what EAs made it through litigation. This one has 13,580 treated acres and an endangered species (Canada lynx). I wonder if there’s something these folks did that others don’t do, or whether it’s just a “crapshoot” to go to court as my former colleague once said… It can’t be a lack of litigants, as these are folks who litigate frequently and are presumably good at it.
Here’s a list of hypotheses:
1. High quality NEPA work and consultation from the Leadville Ranger District (always one of my favorite hypotheses :))
2. Something about lynx is easier to accomplish than other ESA requirements..
3. Judges have different points of view
4. Judges in different circuits tend to have different points of view.
5. DOJ defense was above average.
6. Plaintiffs work was below average.
Other hypotheses?
Here’s a link to the project documents, the final EA (and draft) are under the “analysis” tab. It’s in the neighborhood of 150 pages, and it’s very readable. There is a draft and final EA, and the project went through the objection process.
Here’s what FS Litigation Weekly said about the case:
3. Wildlife I Region 2
The District of Colorado ruled favorable for the Forest Service on a National Environmental Policy Act (NEPA) suit challenging the Tennessee Creek Project on the San Isabel National Forest in WildEarth Guardians v. Conner. Plaintiffs challenges to the project focused namely on the Forest Service’s Canada lynx analysis under the Southern Rockies Lynx Amendment (SRLA) and to the use of an Environmental Assessment (EA) rather than an Environmental Impact Statement (EIS).
Plaintiffs claimed the EA failed “to disclose, analyze, and otherwise take a hard look at the environmental effects on lynx and specific types of lynx habitat.” They argue the EA: 1) should have included site-specific analysis and details as to treatment locations; 2) should have taken a harder look at lynx denning habitat; and 3) should have disclosed the location of existing lynx winter habitat within the project area. The court rejected these assertions.
Site-specific analysis is only required, as per the court, if environmental impacts are reasonably foreseeable. As the plaintiffs did not claim any such foreseeable impacts, the court concluded site specific analysis and treatment location details were unnecessary.
For denning habitat, the court found “the SRLA sets forth the appropriate framework for evaluating the effects of a project on lynx.” As the Forest Service complied with the SRLA through mapping lynx habitat, generally excluding spruce-fir habitat and habitat with dense horizontal cover, and attempting to promote foraging habitat, the court found the Forest Service’s analysis of lynx habitat in compliance with NEPA.
For lynx winter habitat the court found the Forest Service “focused on maintaining high-quality winter snowshoe hare habitat, per the SRLA guidance… The Service thus designed the project to exclude high-quality snowshoe hare habitat from treatment based on the best available science.” Accordingly, the court concluded the Forest Service satisfied its duty to take a hard look at the project’s impact on lynx winter habitat.
Plaintiffs next contended that the Forest Service was required to prepare an EIS due to the unique characteristics of the project area and the project’s impacts on it. The court, however, found the project activities insignificant when compared to the area in which they will be undertaken and that the agency did consider the characteristics of the project area, demonstrated by the constraints imposed on the project to protect high quality lynx habitat.
Here’s what the project does:
• Regenerate lodgepole pine through clear cutting on 2,370 acres.
• Thin 6,765 acres of mature lodgepole pine stands. Pre-commercial thin 345 acres of advanced regeneration of lodgepole pine.
• Improve aspen stands through prescribed fire and/or harvesting on 115 acres.
• Utilize prescribed fire on 6,040 acres with an average of 150 -300 acres of prescribed fire treatment per year.
• Remove encroaching conifers in meadows and sagebrush (1,345 acres) and use prescribed fire treatments in meadows throughout the project area (1,330 acres).
• Create small openings (less than 5 acres) in mixed conifer stands adjacent to spruce-fir by harvesting lodgepole pine to promote regeneration (375 acres).
• Remove spruce infested with or killed by insects (up to 1,395 acres).
• Maintain vegetation cover and increase age class and structure diversity over the long-term within the Ski Cooper Ski Area permit boundary (1,052 acres) utilizing mechanical and prescribed fire treatments in lodgepole and spruce-fir.
• Treatments adjacent to the Continental Divide National Scenic Trail (CONST) will be modified in accordance with Design Criteria #45 -47 (see the appendix to this decision).
• In order to conserve Canada lynx, the proposed action is specifically designed to comply with all objectives, standards, and guidelines in the Southern Rockies Lynx Amendment. To further protect quality lynx habitat, all areas in mapped lynx habitat with greater than 35 percent dense horizontal cover will not be treated.
• Mechanical treatments (thinning / clearcuts) will average 300 – 500 acres per year.
• Improve aquatic organism passage through the removal or replacement of 5 – 7 non-functioning culverts on National Forest System roads.
• Construct 2 – 4 nesting platforms at Turquoise Lake.
• Improve erosion and compaction issues by ripping, contouring, mulching, seeding, and/or installing erosion control netting in four developed sites (campgrounds and picnic areas).
• Improve aquatic habitat, reconstruct channel geometry, reduce erosion, and normalize sediment transport in 2.3 miles of Halfmoon Creek.
• Improve and maintain approximately 14 miles of Forest System roads including widening a portion of Forest System Road 109.
• Create approximately 20 miles of temporary roads and open approximately 1.5 miles of closed roads over the life of the project; roads will be closed and rehabilitated after treatments are complete.
The following piece was written by Andy Kerr and is available on his blog here. Kerr describes himself as a “Conservationist, Writer, Analyst, Operative, Agitator, Strategist, Tactitian, Schmoozer, Raconteur.” -mk
The Westerman Bill: The Timber Industry’s Wet Dream
By Andy Kerr
Who wouldn’t want “resilient” (“able to withstand or recover quickly from difficult conditions”) forests? With the name Resilient Federal Forests Act of 2017 (H.R.2936, 115th Congress), what could possibly be wrong with this bill?
Everything. Judge neither a book by its cover nor a bill by its name.
Introduced by Representative Bruce Westerman (R-4th-AR), the bill is the timber industry’s wet dream legislation. In only his second term in Congress, Westerman has received more campaign contributions from Big Timber than any other industry.
The Westerman bill would legislate horrifically harmful public forest policy into law. Among its many sins, the Westerman bill would
· gut the National Environmental Policy Act by giving the Forest Service and the Bureau of Land Management (BLM) essentially a blank check to just start logging in many places for no reason other than getting out the cut;
· gut the Endangered Species Act by letting the Forest Service and the BLM—not the Fish and Wildlife Service or the National Marine Fisheries Service—judge whether federal logging will harm threatened and endangered species;
· gut the Equal Access to Justice Act so citizens and conservation organizations won’t get their costs reimbursed by the federal government for holding the federal government accountable in federal court to follow its own laws (the timber industry could generally still recover fees and costs);
· gut the Roadless Area Conservation Rule to allow wholesale logging in national forest roadless areas;
· gut the Administrative Procedure Act by allowing the federal forest agencies to avoid judicial review for up to 230 lawsuits each year;
· gut judicial review by making Lady Justice put not just her thumb but her butt on the side of the scale favoring Big Timber;
· make it nearly impossible for federal forest agencies to decommission environmentally harmful and fiscally challenging roads;
· gut the National Historic Preservation Act by short-circuiting procedures designed to protect historical resources;
· gut the Secure Rural Schools and Community Self-Determination Act by converting it to a Secure Timber Industry and Community Oppression Act;
· gut the Fair Labor Standards Act to allow children to work in the logging industry;
· gut the National Forest Management Act and the Federal Land Policy and Management Act by allowing national forest and public lands to be transferred to tribal control; and
· essentially require salvage logging after any disturbance regardless of any ecosystem benefits.
I could go on. And I will.
Most particular to the Pacific Northwest, the bill would abolish the survey-and-manage requirement of the Northwest Forest Plan and repeal the “eastside screens” that have protected large trees on eastside (non-spotted owl) Oregon and Washington national forests.
The Westerman bill would effectively transfer all road rights-of-way on BLM lands in western Oregon to private timber interests.
The Westerman bill would statutorily require that 500 million board feet of logs be sold each year off of the O&C lands. (The 2016 BLM resource management plan says a maximum of 278 million board feet annually could be logged and that’s only if you don’t mind older forest being clear-cut, scenic views being marred, watersheds being fouled, and wildlife being displaced).
Let’s focus in, in particular, on the part of Sec. 913 that says
All of the public land managed by the Bureau of Land Management in the Northwest District, Roseburg District, Coos Bay District, Medford District, and the Klamath Resource Area of the Lakeview District in the State of Oregon shall hereafter be managed pursuant to title I of the Act of August 28, 1937 (43 U.S.C. 1181a through 1181e). [emphasis added]
These fifty-seven words would
· exalt the Oregon and California (O&C) Lands Act of 1937 above any and all statutes that came before 1937 (for example, the Antiquities Act of 1906) or after 1937 (such as the Clean Water Act and the Endangered Species Act);
· convert 400,000 acres of BLM public domain lands in western Oregon—federal public lands that were never granted away or taken back for noncompliance with the terms of the grant—to be O&C lands and managed exclusively for timber production;
· effectively override the two presidential proclamations—issued under authority granted by Congress to the president in the Antiquities Act—that established (2000) and expanded (2017) the Cascade-Siskiyou National Monument;
· effectively disestablish the portion of the Wild Rogue Wilderness on BLM land, the Table Rock Wilderness, and the Soda Mountain Wilderness; and
· effectively disestablish the portions of the Sandy, Rogue, Salmon, North Umpqua and Elkhorn Creek wild and scenic rivers on BLM lands, and the Quartzville Creek Wild and Scenic River.
Will the Westerman bill pass the U.S. House of Representatives? Probably, as the Republicans control that body. Representative Greg Walden (R-2nd-OR) is a cosponsor of the Westerman bill, and the bill is expected to easily pass through the House Agriculture Committee. It has already been approved by the House Natural Resources Committee.
A big question is how the four members of Congress from Oregon who are Democrats will vote on the bill. Representatives Peter DeFazio (D-4th-OR), Earl Blumenauer (D-3rd-OR), Kurt Schrader (D-5th-OR), and Susan Bonamici (D-1st-OR) all need to hear from their constituents now. E-mails, phone calls, personal visits to their offices, attending their town hall meetings, and speaking to them while they are out and about in their home district are all appropriate and necessary.
In stark contrast, last Wednesday the Senate Energy and Natural Resources Committee held a hearing on Senators Ron Wyden’s and Jeff Merkley’s Oregon Wildlands Act of 2017 (S.1548, 115th Congress). The bill would, among other good things, establish the Rogue Canyon and Molalla national recreation areas, expand the Wild Rogue Wilderness, establish the Devils Staircase Wilderness, expand the lower Rogue Wild and Scenic River, establish the Franklin Creek, Wasson Creek, Molalla, Nestucca, Walker Creek, North Fork Silver Creek, Jenny Creek, Spring Creek, Lobster Creek, and Elk Creek wild and scenic rivers—all entirely or mostly on BLM lands in western Oregon and mostly O&C BLM lands at that.
Big Timber has long had the goal of exalting the O&C Lands Act of 1937 to override any and all other federal law—making it a combination the 11th Commandment and the 28th Amendment, if you will.
The battle for the heart and soul of low-elevation older (mature and old-growth) forest in western Oregon is joined. The timber industry has not been successful in court; will it be successful in Congress?
I am reminded of the words of that great environmentalist Thomas Paine, who said (now I’m recalling this from memory so it may not be exactly how Tom said it):
These are the times that try people’s souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their planet; but s/he that stands by it now, deserves the love and thanks of man, woman, descendant, forest, watershed, viewshed, and wildlife.
Big Timber, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.
This is from a June 18 press release from the WWF (World Wildlife Fund):
“The focus of efforts should shift from combating forest fires as they arise to preventing them from existing, through responsible long-term forest management. Responsible forest management is more effective and financially more efficient than financing the giant firefighting mechanisms that are employed every year.”
The press release was about recent fires in Portugal.
Aside from The Nature Conservancy, what environmental groups have called for “responsible long-term forest management”?
The CERCLA case was mentioned on the blog before, plus I think this Ochoco travel management is interesting in terms wolves in the project area (I worked on the Ochoco way pre-current-wolves).
Court Decisions
1. CERCLA I Region 3
The 10th Circuit ruled on a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) case involving a molybdenum mine owned by Chevron Mining Inc. near Questa, New Mexico in Chevron Mining Inc., v United States et al. The mine was partially located on national forest land.
“Under [CERCLA] the owner of property contaminated with hazardous substances or a person who arranges for the disposal of hazardous substances may be strictly liable for subsequent clean-up costs.” Anticipating cleanup costs exceeding $1 billion and seeking financial contributions for the clean-up, Chevron Mining filed suit against the United States asking for a declaration that the government is strictly liable for a portion of the clean-up costs as a potentially responsible party (PRP) as both an owner of portions of the site and as an arranger of hazardous substance disposal. The court concluded the United States is an owner, and therefore, a PRP, but the court also concluded the United States cannot be held liable as an arranger. (more in Lit Weekly)
New Cases
1. Recreation & Wildlife I Region 6
Plaintiffs, Central Oregon Landwatch, filed a complaint in the District of Oregon stating that the Ochoco Summit Trail System Project on the Ochoco National Forest violates both the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA) in Central Oregon
Land Watch v. Forson et al. The project would authorize 137 miles of off-road vehicle (ORV) routs, including 53 miles of new construction. Specific allegations include:
NFMA:
1. The Forest Service violated the Ochoco Forest Plan standards and guidelines protecting Rocky Mountain Elk by failing to provide adequate road density calculations and analysis, failing to address ORV impacts on elk calving and wallows habitats through the use of stale data, and failing to place any restrictions on ORV use during either the elk calving or rutting seasons.
2. The Forest Service violated the Inland Native Fish Strategy (INFISH) standards protecting riparian areas by failing to demonstrate compliance, failing to prioritize riparian objectives over dispersed recreational needs, failing to explain why some standards did not apply to the project, failing to gather site-specific data to support the modification of standards, and the reliance on arbitrary statements.
NEPA:
1. The Forest Service failed to properly present an accurate and complete picture of the environmental baseline and the No Action Alternative by relying on stale data and failing to show the location of routes currently receiving unauthorized use.
2. The Forest Service failed to adequately disclose and consider direct/indirect impacts the project will have on the environment and failed to adequately address mitigation measures of those impacts.
3. The forest service failed to disclose and consider the cumulative impacts of reasonably foreseeable projects, grazing, and continued unauthorized ORV use in the project area.
4. The Forest Service failed to provide the public with critical data and key documents like specialist reports in a timely manner.
(17-01091, D. Or.)
Notices of Intent
1. Ochoco Summit Trail System Project I Region 6
Central Oregon Land Watch submitted a Notice of Intent to Sue on July 12, 2017 claiming a violation of the Endangered Species Act’s (ESA’s) consultation requirements for the Ochoco Summit Trail Project on the Ochoco National Forest. According to the NOl, monitoring data shows gray wolves are present in the project area and the impacts from the project’s implementation will impact the denning, foraging, and dispersing of the wolves as well as the presence of prey species. The NOI claims the Forest Service must initiate consultation with the Fish and Wildlife Service to ensure the project does not jeopardize gray wolves.
NOI from Central Oregon LandWatch