Even the 9th Circuit piles onto plaintiffs

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On May 6, the Ninth Circuit Court of Appeals upheld the Montana district court’s opinion in Alliance for the Wild Rockies v. Weber.  The Flathead National Forest Precommercial Thinning Project would thin about 500 acres a year in bull trout grizzly bear and arguably lynx habitat, and the decision was based on a categorical exclusion.  This looks like one of those cases where the judges tried to make the law match what they saw as the facts – The Ninth Circuit took three days to decide and quoted the district judge: “[t]his Project is the most innocuous logging project to be challenged in this court to date.”  The district judge also said, “Plaintiffs’ complaints are solely based on relatively insignificant alleged procedural missteps by the Forest Service, and they point to no actual or even reasonably potential harm the Project will cause to any of the relevant species.”

I think the judge played a little loose with the law (NFMA and NEPA) failed to appreciate the importance of one “procedural misstep.”  Specific locations of the thinning activities were not identified.  With regard to treatments in riparian areas (and bull trout habitat), decisions are said to be left to the future judgment of a “fisheries biologist.” With regard to meeting a forest plan requirement for maximum distance to cover, the decision document is apparently silent, but the court accepts an ambiguous statement in the biological assessment as assuring compliance with the forest plan. Where environmental effects or compliance with plan direction may be different depending upon project layout, then that layout should be part of the decision reviewed by the public and signed by the decision maker.

The judge also incorrectly stated that the forest plan’s 300-foot riparian buffer standard did not apply.  He should have said that it did, but that the requirements applicable to it were met.

Project complies with spotted owl recovery plan requirement in Shasta-Trinity forest plan

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The Eastern California district court upheld the Harris Project on the Shasta-Trinity National Forest on Feb. 26. The project would treat about 2800 acres in northern spotted owl habitat. The Forest Service determined that the project would be “not likely to adversely affect” spotted owls, and the Fish and Wildlife Service concurred. The court found that spotted owls would be able to continue to feed, shelter, or disperse within the 17 acres of treated area in foraging habitat, and therefore the determination and concurrence complied with ESA. It also found that incomplete surveys were the best available science for determining owl presence.

 

The court also found that the agencies followed the recommendations in the spotted owl recovery plan. The recovery plan encouraged long-term improvements in habitat even if there were some short-term adverse effects, and, “Defendants weighed the short-term impacts against the long-term benefits and concluded that the Harris Project would ultimately help protect and increase northern spotted owl habitat. The court deferred to the agencies’ judgments that this project complied with this strategy. (The highlighted terms suggest that there would in fact be adverse effects that should have required a finding of adverse effects and triggered formal consultation to comply with ESA. Offsetting beneficial effects do not negate this ESA consultation requirement.)

 

As result the court also held that the project complied with NFMA because it was consistent with the Shasta-Trinity forest plan that required the Forest to, “maintain and/or enhance habitat for” threatened, endangered, and sensitive “species consistent with individual species recovery plans.”

 

The court also upheld the Forest Service NEPA process. It adequately addressed the effects on spotted owls of promoting ponderosa pine, and properly concluded that other treatments would lead to overall effects that would be beneficial. The court also found that a new report on reducing fire risk (Lydersen) did not contradict information used by the Forest Service, and therefore an SEIS was not needed to address it.

Wish you were on the Dixie?

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The Utah federal district court upheld the Dixie National Forest decision on the Iron Springs Project (argued at a hearing in July 2014) in Alliance for the Wild Rockies v. Bulletts. The Project involves a range of vegetation management activities including intermediate harvest treatments, salvage of timber killed by or dying as a result of beetle infestation, regeneration of aspen, and reforestation of previously harvested areas. Commercial logging would occur on 3,603 acres of spruce/fir.

 

Most of the plaintiff’s claims were based on NEPA. The court found that an EIS was not necessary, focusing on the fact that the project affected only 0.5% of the national forest. It found the analysis of effects on old growth species and other at-risk species (including threatened Utah prairie dogs) to be adequate. There were also no unique characteristics of the area, and no controversy about the effects of the project on several wildlife species.

 

The court was a little creative (or inexperienced) in brushing off potential controversy about using timber harvest to address beetle kill. It concluded that, “Even if the efficacy of timber harvest for the purpose of addressing beetle kill is highly controversial, addressing beetle kill is only one of six stated reasons for the Project.”   This suggests that adding non-controversial purposes to a project can somehow offset any other controversy that exists – a dubious NEPA proposition.

 

Plaintiffs also pointed out that a goshawk amendment to the forest plan had been in place for a decade longer than intended, based only on an EA. However, they did not challenge the forest plan, and the court found that the project was consistent with the forest plan, and that a 2012 scientific review of the amendment validated the best available science for goshawks. The court also upheld viability analysis of management indicator species, which showed that the project area would continue to support sufficient numbers of flickers and three-toed woodpeckers.

Washington Post: Federal Hiring System Broken

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Here’s an interesting article on federal hiring processes. This sounds familiar:

“Federal government job seekers feel like their resumes go into a black hole. Hiring can take months. The most talented people don’t make the cut.”

Why is it so hard to get a federal job? Here’s one reason.

I applied for a federal job a few years ago, for which I think I was highly qualified, but I never got a call or any indication that I was being considered.

I’ve taught several “career skills” classes for forestry and wildlife-management students. One of the most important bits of advice is to seek out and speak with the people (at the USFS, BLM, or any other federal, state, or private employer) doing the hiring, which takes time and effort, but can help a great deal.

OSU study finds old-growth forests provide temperature refuges in face of climate change

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BBush Old Growth
Wow! Imagine that. Oregon Public Broadcasting has the story.

Old-growth forests in the Northwest have the potential to make the extremes of climate change less damaging for wildlife. New research out of Oregon State University shows complex forests do a surprisingly good job of regulating temperature on the ground – even compared to fully mature tree plantations.

“On a sunny day, if you were sitting underneath them, you’d get a similar amount of shade,” says study co-author Matt Betts, an Ecologist at OSU.

But the kind of forest makes a big difference on temperature.

“The more structurally complex the forest, the more big trees, the more vertical layers – the cooler it was,” he says.

The research showed differences as much as 4.5 degrees on warm days. Old growth forests also held in heat during cold weather. Overall, these forests have a moderating effect on temperature extremes.

One reason, researchers suspect, is that tree plantations, even mature ones, don’t have nearly the understory material – small trees, shrubs, ground cover – as more complex stands. Nor do these single-age plantations have a lot of big trees – unlike old growth stands.

“We think one of the mechanisms causing this is thermal inertia,” Betts says. “That takes these trees longer to warm up and longer to cool down. And that could be providing some of the buffering capacity of these older forests.”

Betts says these stands of old growth could provide refuges for temperature-sensitive wildlife in the face of climate change.

“It gives us some hope that how we actually manage our forest, can influence positively those species that are declining,” he says.

The study was published Friday in Science Advances.

Conservation Groups Challenge Inadequate Bull Trout Recovery Plan

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[The following is a press release from Friends of the Wild Swan and Alliance for the Wild Rockies. -mk]

Conservation groups Friends of the Wild Swan and Alliance for the Wild Rockies filed a lawsuit in the Portland federal district court challenging the U.S. Fish and Wildlife Service’s bull trout recovery plan.

The Plan fails to ensure the long-term survival and recovery of the species, ignores the best available science, ignores its own previous findings about the status of bull trout and what they need for recovery and instead relies on novel and inadequate criteria for recovery devoid of any objective population criteria.

For example, the plan allows an arbitrary 25% of bull trout local populations in the Coastal, Mid-Columbia, Upper Snake and Columbia Headwaters Units to be extirpated without consideration of whether those populations are significant genetically or essential to achieve recovery. This is a total reversal of the Service’s 2010 designation of bull trout critical habitat that identified unoccupied habitat that is essential for expanding, not contracting the range of bull trout.

At the time of listing (1998-1999) bull trout numbers had already been reduced by 60%; under this plan bull trout local populations can be lost yet bull trout will be “recovered”.

“This plan allows bull trout populations to decline even further and doesn’t address the looming threat of climate change,” said Arlene Montgomery, Program Director for Friends of the Wild Swan. “Our detailed comments that included relevant science and threats facing bull trout were ignored and the Service is continuing on a path that will lead to less fish than when they were listed. That’s not recovery.”

The focus of the recovery plan is to “effectively manage and ameliorate the primary threats in each of the six recovery units at the core area scale such that bull trout will persist in the foreseeable future.” However the plan does not contain habitat standards or population criteria so it is not possible to gauge whether threats are being “managed” and bull trout numbers are increasing.

Mike Garrity, Executive Director of the Alliance for the Wild Rockies said, “The Obama administration’s Fish and Wildlife Service needs to come up with a real recovery plan that addresses global warming instead of just saying climate change is going to cause a lot of bull trout to die and there is nothing we can do about it. Their plan is an extinction plan, not a recovery plan. The Fish and Wildlife Service also needs to address the other main threats to bull trout, habitat degradation caused by logging, mining and grazing.”

This case marks the 7th time in 20 years that these groups have sued the Fish and Wildlife Service to require them to comply with their obligations under the ESA to list bull trout, designate its critical habitat, and now establish a recovery plan for the species that will lead to their conservation, recovery and eventual de-listing.

Why Bull Trout are Important

Bull trout need the coldest, cleanest water of all salmonids. Their stringent habitat requirements make them an excellent indicator of water quality.

The Five C’s characterize good bull trout habitat:

• Clean water with very little fine sediment in the stream bottom.  Fine sediment fills up the spaces in the spawning gravel, restricts oxygen flow and smothers bull trout eggs.

• Cold water temperatures are very important for bull trout.  If water temperatures rise above 59 degrees F then it creates a thermal barrier that restricts migration and use of available habitats.

• Complex streams with intact riparian vegetation to provide shade, woody debris, bank stability and deep pools.

• Connected watersheds allow the fish to migrate.  Bull trout spawn and rear in stream habitats.  At about two years of age they migrate from their spawning stream and mature in lakes or rivers, traveling up to 150 miles.  They return to their natal stream to spawn but unlike salmon make the journey between stream and lake many times in their life.

• Comprehensive protection and restoration of bull trout habitat must done be throughout the range of this native fish.

The decline of bull trout is primarily due to habitat degradation and fragmentation; blockage of migratory corridors by roads, culverts or dams; poor water quality from warm temperature, sediment or pollutants; past fisheries management practices such as introductions and management of non-native fish; impoundments, dams, or water diversions; and non-native fish species competition and predation. Climate change is an additional threat to the cold water that bull trout need to survive.

National Forest Management Summary Chart

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This is the national version from Mac McConnell of one previously published here for Utah. From Mac:

Once again Congress is debating how to manage our national forests, hopefully it will accomplish more than in the past. The chart that shows the problem that they are being asked to solve.

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“I’ll huff, and I’ll puff, and I’ll blow your old-growth down!”

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I just saw these new photographs of the Jim’s Creek logging project on the Willamette National Forest posted on Facebook by Doug Heiken, who has sometimes commented on this blog.

Today, on Facebook, Doug wrote:

“The Forest Service logged the crap out of this old forest in 2008 in order to ‘save’ the old pines which are uncommon on the west side of the Cascades, but the thinned stands became vulnerable to winter winds that wiped out the very pines they hoped to protect. Now they want to log it again to “salvage” the down wood. Thankfully, some of the down trees will be used for stream restoration. Unfortunately, the FS wants to do more projects like this, only bigger. We would rather they focus on thinning young plantations instead of taking big risks by logging old forests.”

In the past, some of us have expressed concerns that ‘thinning’ forests makes them hotter, drier and windier…which aren’t exactly three positive outcomes, especially in an era of global climate change.

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