“Public interest groups filed a lawsuit Thursday, Sept. 15, challenging the city of Highland’s approval of the high-density Harmony development. The development sits at the confluence of Mill Creek and the Santa Ana River and is directly adjacent to San Bernardino National Forest lands and will bring more than 3,600 houses to 1,657 acres of land acquired by Orange County Flood Control in the Seven Oaks Dam project that are currently home to numerous endangered species, rare habitats, wetlands and crucial wildlife connectivity corridors, according to the suit.”
“The lawsuit was brought by the Center for Biological Diversity, San Bernardino Valley Audubon Society and the Greenspot Residents Association, who are represented by the law firm Shute, Mihaly and Weinberger. It argues the city of Highland’s City Council’s August approval of the project violates the California Environmental Quality Act.”
It sounds like potentially illegal local government actions could adversely affect national forest resources. Shouldn’t the Forest Service be trying to protect those resources? (Not to mention what this would add to fire management costs.)
At left is the project map from the Forest Service for the East Reservoir timber sale on the Kootenai National Forest. At right is a satellite image of the project area, showing the extent of past clearcuts and logging. The Forest Service is proposing to log 8,845 acres with this project, including 3,458 acres of clearcuts. Nearly 8,000 logging trucks would be required to haul out the trees. The project area is home to bull trout, Canada lynx and grizzly bears, among other fish and wildlife species.
Regular readers of this blog will recall the numerous posts, comments and discussions concerning the East Reservoir timber sale on the Kootenai National Forest in Montana. Here’s a sampling of some those previous debates.
Well, earlier today, two federal judges at the 9th Circuit Court of Appeals (including one judge who was appointed by George W. Bush in 2003 and confirmed 99-0 by the GOP-controlled U.S. Senate in 2003) granted the Alliance for the Wild Rockies (AWR) an injunction pending appeal, which I’m told by lawyers-in-the-know, really just doesn’t happen anymore. Here’s a copy of the injunction.
It’s also worth pointing out that back in January, a coalition of 16 environmental groups from around the country – as well as 12 citizens – filed an amici brief in support of the AWR’s lawsuit. You can read that here.
There was also an amici brief filed in support of the U.S. Forest Service and the timber sale by the Montana Wilderness Association and some other collaborators. Incredibly, to me anyway, is the fact that the Montana Wilderness Association was represented in court by the timber industry’s American Forest Resource Council, an outfit that went to great lengths to sue (and sue some more) to try and prevent implementation of the Roadless Area Conservation Rule.
What follows is today’s press release from AWR.
The Alliance for the Wild Rockies announced today that the Ninth Circuit Court of Appeals has granted its request for an injunction halting a massive clearcut and logging project affecting tens of thousands of acres of national forest and five major tributaries to the Kootenai River and Lake Koocanusa.
A lawsuit was filed by the Alliance for the Wild Rockies in federal court in May 2015 challenging the U.S. Forest Service’s decision to authorize a large logging, burning, and road-building project in habitat for threatened lynx, bull trout, and grizzly bears in the Kootenai National Forest in northwest Montana. Federal District Court Judge Christensen ruled the logging could go forward in July and the Alliance immediately appealed resulting in the injunction today to halt the project based on the Court’s finding that the Alliance is likely to succeed on the merits of its appeal.
“The Forest Service’s plans to clearcut lynx critical habitat were in direct violation of a binding Ninth Circuit precedent on this issue, so we are pleased but not surprised that the appellate court stopped this massive timber sale,” said Garrity.
“The East Reservoir Project area is huge,” Garrity continued. “But there are already over 22,000 acres of clearcuts within its boundaries. Add to that the 8,845 acres of proposed commercial logging, of which 3,458 acres will be new clearcuts, and the additional impacts to this already heavily-logged area are simply unacceptable.
“Additionally, the timber sale is a huge money-loser which, by the Forest Service’s own estimate, will cost taxpayers $2,589,535 to subsidize further degradation of an already-degraded landscape,” Garrity explained. “Much of that cost will be to rebuild and maintain an astounding 175 miles of logging roads, construct nine miles of new permanent logging roads, allow an additional 13 miles of illegal, user-created roads to be added to the legal road system, and open nine miles of previously closed motorized trails. When all the existing science shows more roads directly lead to more grizzly bear deaths and more sedimentation of bull trout spawning streams this project simply ignored the legal mandate for the Forest Service to maintain existing species of fish and wildlife when conducting timber sales.”
“That the Forest Service could possibly even consider such a massive logging project in an area in which only one percent of the remaining old growth exists in small, isolated stands defies law and logic,” Garrity continued. “For old-growth dependent wildlife such as lynx, this project is basically a death sentence to a species that is already in severe decline due to road-building and logging. That the Forest Service allows this timber sale to log federally-designated lynx critical habitat isn’t just sloppy work, it’s inexcusable and illegal.”
Garrity said his group has been involved with the project since it was first proposed and throughout the planning and Environmental Impact Statement processes. “The Alliance raised all the objections long before notifying the Forest Service and U.S. Fish and Wildlife Service that it planned to take the agencies to court to halt the project,” Garrity continued. “Our point was simple: The agencies had to change the project to comply with federal laws including the National Environmental Policy Act, the Endangered Species Act, the National Forest Management Act, and the Administrative Policy Act.”
“As most Montanans know, there is incredible political pressure to ‘get out the cut’ on National Forests,” Garrity explained. “But the bottom line is that federal laws require retention of functioning ecosystems and maintaining the diverse wildlife and fisheries that rely on healthy forests – not just treating our publicly-owned forests as commercial logging lots to benefit a single industry’s profit margin. In this instance, the agencies have simply side-stepped those requirements, as well as the Endangered Species Act, by judging their own actions to have ‘no adverse impacts’ despite the massive scale of this project in bull trout, grizzly bear, and lynx habitat, all of which are threatened species.”
“What’s astounding is that so-called conservation groups are among those who intervened in the lawsuit to support these massive new clearcuts and were represented by none other than the industry’s American Forest Resource Council” Garrity said. “Montanans should know that the Montana Wilderness Association, the Yaak Valley Forest Council, Lincoln County, The Lands Council, Troy Snowmobile Club, Cabinet Resource Group, F.H. Stoltze Land and Lumber Company, Idaho Forest Group, and the Troy School District all think logging is more important than restoring this already over-logged area and recovering the lynx, grizzly bears, and bull trout as required by the Endangered Species Act.”
“The Alliance for the Wild Rockies exists as a watchdog organization that concentrates on activities occurring on our National Forests, which are owned by all Americans and exist not simply to supply local timber mills, Garrity concluded. “When faced with federal agencies literally exempting themselves from the law with the blessing of collaborator groups, we have no recourse but to challenge those decisions in federal court. That is exactly what we did on the East Reservoir Project to protect our irreplaceable forests and wildlife resources for present and future generations.”
For many years, it has been pretty much common knowledge, supported by science, that as the amount of hunting season open roads increases, there is more need for cover for elk to hide. The Helena National forest plan (and others) have incorporated this relationship into standards for elk security. (Full disclosure – I had something to do with this on the Helena 30 years ago.) When the Helena National Forest developed its Divide travel plan, it found that it couldn’t meet its requirements for elk habitat because there were too many roads and not enough trees to provide security (trees in the area have been killed in large numbers by mountain pine beetles in recent years). So it amended its forest plan elk standard to eliminate the role of tree cover in determining elk security (distance from roads replaces road density as a factor).
The rationale provided in the Record of Decision emphasizes the fact that elk have been doing well despite the fact that the existing forest plan standards have not been met in many places.
I have taken into account the fact that Montana Fish,Wildlife and Parks data indicate that elk populations in the Divide landscape are either at or near population objectives of the 2005 Montana Elk Plan and that elk management challenges are only partially related to access management according to that Plan. I have also taken into account the fact that, despite several miles of road closures, only one herd unit comes into compliance with standard 4a in the Travel Plan Decision. Given this, I have concluded that the existing standard 4a is not an accurate indicator of elk security and is insensitive to changing road densities. The methodology utilized for the new standard (based on the percentage of an elk herd unit occupied by elk security areas and/or intermittent refuge areas) indicates that overall elk security in the Divide landscape is adequate. This measure of security is sensitive to changes in open road configuration and will provide a way to determine where proposed management actions are effective or where management needs to improve to ensure adequate big game security. I believe the new standard will provide a more realistic means of guiding travel management and other future management activities in the Divide Travel Planning Area.
In essence, the Forest is using anecdotal evidence in place of long-established science (which the Forest now asserts is not relevant to this kind of forest). Has the science just not caught up with reality, or is it possible that the high elk numbers are a result of unknown factors that, when they change, will render excessive road densities fatal to meeting elk harvest goals? When the plan is revised under the 2012 planning rule (revision is ongoing), it will have to meet the requirement for using best available scientific information for its elk habitat management decisions. (The amendment is using the 1982 planning process, but scientific integrity is still required.)
In Bath County, the Forest Service said an access road that impacts a wild brook trout stream, Laurel Run, “is unacceptable because it parallels the stream channel with the riparian corridor for much of its length and has numerous stream crossings.”
The letter says the access road is inconsistent with forest plan standards and best management practices concerning soil and water.
Why does the Forest Service want to get rid of standards when they revise their plans? Do they think that some mealy-mouthed desired condition of “high quality water” in a forest plan would have the same effect? That it would be legally sufficient to claim such vague, aspirational statements meet requirements to protect at-risk species?
According to Reuters, Chief U.S. District Judge Dana Christensen in Missoula, Montana “ordered U.S. wildlife managers on Wednesday to enlarge habitat protections in Idaho, Montana and Colorado for the Canada lynx, a rare wild cat that roams the Rockies and mountain forests of several other states.” Below is yesterday’s press release from the Alliance for the Wild Rockies. Click here for a press release from the Western Environmental Law Center, which has more information specifically about Colorado. – mk
MISSOULA, MONTANA – A federal court in Montana ruled today in favor of Alliance for the Wild Rockies and allies in their challenge to the federal government’s lack of protection in failing to designate critical habitat necessary for the survival and recovery of the rare and imperiled Canada lynx, a species listed under the Endangered Species Act in 2000.
The Court held that the government had unlawfully ignored a prior Court Order to analyze whether areas in several National Forests in Montana and Idaho qualify as lynx “critical habitat” and therefore merit additional federal protection from habitat destruction under the Endangered Species Act.
“Although the U.S. Fish and Wildlife Service designated the Canada lynx as ‘threatened’ under the Endangered Species Act 16 years ago, the agency has consistently failed to protect the full range of habitat needed for lynx recovery,” said Mike Garrity, Executive Director of the Alliance for the Wild Rockies. “Instead of acting to protect and recover lynx, the Fish and Wildlife Service designated critical habitat areas based on pre-determined outcomes, which ignored habitat studies and current lynx populations and habits.”
“This ruling represents the second time the Alliance for the Wild Rockies has prevailed in its ongoing struggle to protect critical habitat for imperiled Canada lynx,” Garrity explained. “Although there is little available data on how many lynx remain in the Northern Rockies, government researchers have documented that populations are likely declining in the areas that they have studied in Montana, namely the Seeley-Swan and Garnets. In light of the declining or unknown population status of this imperiled species, the Alliance’s win today is one necessary step forward in ensuring this species receives the protections it needs to survive and recover.”
A coalition of conservation groups filed suit in federal court in November 2014 challenging the U.S. Fish and Wildlife Service for its failure to designate adequate critical habitat for recovery of the Canada Lynx. This action, brought by the Alliance for the Wild Rockies, the Sierra Club, and Rocky Mountain Wild, noted numerous large areas of prime lynx habitat, corridors and occupied areas throughout five national forests in Montana and Idaho, as well as millions of acres in the Southern Rockies that deserve to be included in the critical habitat designation, but which the U.S. Fish and Wildlife Service left out of these protections.
“This lawsuit follows up one from 2010 when the federal court ruled the U.S. Fish and Wildlife Service had unlawfully omitted these areas from the designation,” Garrity continued. “The Court ordered the agency to reconsider its findings, only to have the Service come back with new rationales for excluding these areas once again. Instead of analyzing the habitat as required, the agency unlawfully decided that because it did not have verified reports of lynx in those particular National Forests, it would not designate the areas as critical habitat regardless of the quality of the habitat.”
“Lynx need secure habitat before the population can be recovered and the current critical habitat designation fell far short,” Garrity concluded. “Important lynx habitat in Montana and Idaho helps connect the Glacier and Yellowstone National Park lynx populations. By failing to protect these areas and refusing to designate any critical habitat in the Southern Rockies, the very agency charged with recovery of threatened and endangered species is leaving lynx populations isolated, essentially issuing their death sentence since isolated populations inevitably lead to inbreeding and then extinction.”
“The Forest Service also seemed to be guilty of double and sometimes triple-counting the amount of land it treated without making that clear in reports to Congress.”
According to the Aug. 16 report, the inspector general said the Forest Service has no consistent process for identifying where wildfire fuel should be removed, doesn’t use science-based risk assessment to pick projects and doesn’t accurately report data on the work it does.
As forest fires burn in western states, it’s clear that the Forest Service isn’t making the most of its limited budget to protect against wildfires, the report states. Just five of the 154 national forests had risk-assessment processes being developed or in place to figure out how to prioritize projects.
I’ve often suspected that this was done! In some areas, the USFS appears to be a “rogue” Agency, hiding the bad stuff that they do. No wonder the eco-groups don’t trust the Forest Service, eh?
So what did the Sierra, Sequoia and Inyo do to apply this planning rule requirement to terrestrial ecosystems? I’ve just reviewed the draft plan and DEIS, and I don’t think I’ve got a good answer. They don’t directly say what NRV is or how they determined it (at least in the places I’ve looked).
The Bio-Regional Assessment says this (p. 39): “NRV only was not used because at this time conditions are far removed from them in terms of fire regime, and even a modest shift toward that level of resiliency would benefit ecological integrity and is more feasible in a short period of time. The planning rule specifically provides for using ecological integrity based on measures other than NRV where this is the case.”
This view is supported by the Planning Handbook (1909.12 FSH 12.14b) (but again, the Handbook does not appear to be supported by the Planning Rule): “In some situations, there is not enough information to understand the natural range of variation under past disturbance regimes for selected key ecosystem characteristics or the system is no longer capable of sustaining key ecosystem characteristics identified as common in the past based upon likely future environmental conditions. In these cases, the Interdisciplinary Team should establish an alternative ecological reference model for context for assessing for integrity by identifying the conditions that would sustain these key ecosystem characteristics.” However no “alternative ecological reference model” was documented.
For terrestrial vegetation the Bio-Regional Assessment then apparently ignores itself (p. 98): “Under the 2012 Planning Rule, “natural range of variability” is a key means for gauging ecological integrity. Ecosystem sustainability is more likely if ecosystems are within the bounds of natural variation, rather than targeting fixed conditions from some point in the past (Wiens et al. 2012, Safford et al. 2012). Safford et al. (2013a) compiled comprehensive, scientific literature reviews on natural range of variability, and these are the primary basis for the summary below.” The summaries conclude whether ecosystems are within or outside of NRV, but they don’t say what NRV is.
The Sierra Assessment says this (p. 17): “Comprehensive, scientific literature reviews on natural range of variability were compiled. The following is an overview. Consistent with trends across the entire assessment area, terrestrial ecosystems in the Sierra NF are predominantly outside the natural range of variability (NRV) for key indicators of ecological function, structure, and composition. First, nearly half (44 percent) of the area of the Sierra NF dominated by woody vegetation (or 76 percent of montane coniferous forests) is in a highly departed condition with respect to the historic fire return interval, burning at frequencies that are significantly longer than pre-settlement fire regimes (Safford and van de Water 2013). The Sierra NF has missed an average of three to four fire return intervals across all vegetation types dominated by trees or shrubs (Safford and van de Water 2013). Subalpine forests are the exception, burning at intervals that within one or two fire return intervals.”
The Bio-Regional Assessment describes fire history on p. 33, and the Sierra Assessment appears to use historic fire intervals as a reference, but what are the vegetation conditions that would produce the desired fire intervals (which would be the NRV for vegetation)? I didn’t find a document that says what what vegetation NRV is or how it was determined, or even what the “key indicators” are. The draft plan does have desired conditions for vegetation, and the DEIS says those are or are based on NRV. The quickest way to get a feel for these DC=NRV is Tables 1-7 in the draft revised forest plan.
What is NRV for vegetation characteristics? Are they based on the best available science? Did they properly use historic reference conditions? What was the reference period? Did they consider climate change? Are these sustainable desired conditions? Do they comply with the requirement for ecological integrity? Do they provide conditions needed for at-risk species? You’d think the answers to these important questions would be easier to find, but I’m out of time. Maybe someone else can find some answers on the revision website somewhere.
Added to all the other ones! Here is the whole shameful story!
Amidst active contract negotiations, and after months of urging the U.S. Forest Service to end flawed hiring practices that limit who can apply for jobs in the Agency, NFFE Exposes Shameful Hiring Practice by the U.S. Forest Service Amidst active contract negotiations, and after months of urging the U.S. Forest Service to end flawed hiring practices that limit who can apply for jobs in the Agency, NFFE’s Forest Service Council (FSC) decided they needed to take a new approach with negotiations. On June 7, 2016, the FSC took their fight to the streets of Olympia, Wash. to conduct an informational handbilling outside of a Forest Service hiring event—one that required applicants to be physically present to apply.
At the June hiring event, the Forest Service was hiring for jobs across the country— as far away as South Dakota and Kentucky. However, to be considered for the vacant positions, applicants were required to appear and submit their applications in person in Olympia, Wash. Applicants unable to attend in person were automatically not considered for these jobs, regardless of their experience. This requirement effectively eliminated interested current Forest Service employees—many of whom have a great deal of experience and are the most qualified to fill these vacancies—that simply did not have the means or were unable to get away from their current obligations to apply for these jobs in person.
“By requiring interested applicants to appear in person, the Forest Service has effectively eliminated applicants from the rest of the country,” said Lisa Wolfe, NFFE Forest Service Council Vice President. “That is not fair to current employees or other applicants living in those areas. It also makes it impossible for the Forest Service to field the best pool of applicants. Anyone who cares about healthy forests or having an effective government workforce should want to see this hiring practice stopped immediately.”
To make matters worse, in April, Forest Service Chief Tom Tidwell was asked about their practice of hiring events requiring applicants to appear in person in order to be considered for jobs in different states. Chief Tidwell assured Congress that applicants should be able to send in applications to be considered during job fairs. However, at the June hiring event, that simply was not the case. The Forest Service continued to use a closed process that eliminated from consideration some of the most qualified candidates.
“We cannot stand idly by as the Forest Service continues a hiring practice that is unfair to potential applicants, is bad for the agency, and ultimately short-changes American taxpayers,” said Wolfe. “People should not be expected to travel halfway across the country to compete for a job that pays less than 14 dollars an hour. This hiring practice is ridiculous, and it needs to stop.”
This was the Bundy gang of the 90s. The Forest Service decided that it would not rebuild a washed out road along the Jarbridge River in Nevada to avoid impacting the now federally threatened bull trout. The locals threatened to rebuild it themselves. The issue in court became “who owns the road.”
Under the Bush Administration, the Forest Service agreed to not challenge the county’s ownership – a substantive concession that a federal district court has just reversed. The judge said, “Without evidence that Elko County owns the right-of-way, the consent decree gives land of the United States to Elko County without following proper procedural requirements.”
This is how the discretion of federal agencies to settle lawsuits may be limited.
On the question of whether a “road” existed prior to establishment of a national forest, the court required “a demonstration of more than random or merely occasional use.”
