Community Sourced, Shared and Supported
An article from E&E News today, added to the NCFP library as a PDF….
Tucked deep in Congress’ bill to fund the government in 2015 was a request to the Forest Service: Get moving on a long-stalled rule that could aid the survival of America’s small timber mills.
The report language “strongly encouraged” the agency to write a directive that could ensure small mills are not bullied out of federal timber contracts by larger, better-capitalized corporations.
….
As Larry mentioned a month ago, the U. S. Fish and Wildlife Service has made a positive 90-day finding on a petition to list the California spotted owl under ESA. This means that listing may be warranted, and the agency is soliciting additional comments by November 17.
The action was taken in response to a petition last December by the Wild Nature Institute and the John Muir Project of Earth Island Institute. A second petition was submitted by Sierra Forest Legacy and Defenders of Wildlife in August. The SFL website lists the new scientific information that supports listing, which among other things downplays the idea that fires are bad for owls. The FWS response to the earlier petition states: “Recent research has focused on use of burned forests by CSO and has concluded that unlogged burned areas may be important to reproductive success and continued occupancy.”
The petition response also implicates national forest plans as another detrimental change that has occurred that must be considered in determining the adequacy of existing regulatory mechanisms for protecting the species:
- 2004a USDA. This amendment to the 2001 US Forest Service Forest Plans
(USDA 2001) allowed increased or new timber harvest, thinning. fuels
reduction. post fire logging. etc. in areas previously managed for CSO.- USDA 2013b. Management in the Lake Tahoe Basin Management Unit
allows clear cut timber harvest and removal of larger diameter trees (>30″
dbh) in CSO habitat and previously occupied nest areas.
It is currently Forest Service policy to not contribute to listing under ESA.
Over the past few years this blog has covered a few articles related to the Gypsum biomass plant in Colorado.
In fact, back in August 2013 this blog shared an article in which “U.S. Sen. Mark Udall said the Gypsum biomass power plant is a “win-win-win” project when he and state Sen. Gail Schwartz toured the plant’s construction site on Friday afternoon.”
So what’s happened since that August 2013 proclamation of a “win-win-win?”
Well, according to an article written by Josh Schlossberg with the Biomass Monitor:
Eagle Valley Clean Energy, an 11.5-megawatt biomass power facility in Gypsum, Colorado started operating in December 2013, only to have its conveyor belt catch fire in December 2014. Spokespersons said the facility would be back online shortly, yet as of October, it’s still offline. There have been no further media reports investigating why the facility still isn’t operating, and multiple calls and emails to the facility from The Biomass Monitor were not returned.
Another thorn in Eagle Valley’s claw is a lawsuit filed against the company in U.S. District Court in June 2015 by Wellons, Inc., an Oregon-based corporation that designed and built the biomass facility.
Wellons is suing Eagle Valley Clean Energy for $11,799,864 for breach of contract, accusing the company of “fraudulent transfers” and “civil conspiracy,” involving the transferring of $18.5 million of federal subsidies to “insider” parties in an alleged effort to hide the money. The money was issued to the facility from the federal government under Section of 1603 of the American Recovery and Reinvestment Act (ARRA), also known as the Stimulus, involving payments to reimburse companies building renewable energy facilities.
Wellons claims that, on top of the nearly twelve million dollars Eagle Valley must pay them, they are owed past due interest of $1,185,433.56, with debt accruing at $3254.90 per day.
Another bump in the road for Eagle Valley involves the Chapter 11 bankcruptcy of the logging contractor that provides them the trees to fuel the facility, West Range Reclamation. West Range has provided nearly all of the wood to the facility since it opened, mostly from beetle-killed lodgepole pine from the White River National Forest.
Ouch, eh? So essentially every single thing celebrated before the Gypsum Biomass Plant was built turned out – in reality (and in only a short 2 year timeframe) – to be a tremendous disaster. Hopefully the media in Colorado will do a follow up investigation, because as Schlossberg pointed out above, “There have been no further media reports investigating why the facility still isn’t operating, and multiple calls and emails to the facility from The Biomass Monitor were not returned.”
Make sure to check out the rest of Schlossberg’s article to read about more recent growing pains with other wood-burning biomass plants in Florida, Wisconsin, Texas and Hawaii.
[Below is a press release from the Greater Southeast Alaska Conservation Community, Cascadia Wildlands, Center for Biological Diversity, Greenpeace, the Alaska Wildlife Alliance and Crag Law Center dated October 12, 2015. – mk]
PETERSBURG, Alaska – In a federal court filing last Friday the U.S. Forest Service announced it will withdraw its decision on the Mitkof Island Project, a large 35 million board foot timber sale. The project is in the center of the Tongass National Forest, near the communities of Petersburg and Kupreanof.
Petersburg District Ranger Jason Anderson signed the Forest Service’s decision in March. In May five environmental organizations filed the lawsuit, GSACC v. Anderson. They are the Greater Southeast Alaska Conservation Community, Cascadia Wildlands, Center for Biological Diversity, Greenpeace, and the Alaska Wildlife Alliance. The organizations are represented by Chris Winter and Oliver Stiefel of Crag Law Center (Portland) and Gabriel Scott.
“Faced with the realities brought forth in our lawsuit, the Forest Service is withdrawing its authorization of the Mitkof project rather than defend it in court. This is a victory for old growth, wildlife, and subsistence hunters, although we don’t yet know whether the agency will attempt resurrecting the project with future planning,” said Cordova-based Gabriel Scott of Cascadia Wildlands.
At issue in the lawsuit is the harm caused by logging old-growth and to the species dependent on old growth forests including Sitka black-tailed deer-an essential resource for subsistence hunters-the Alexander Archipelago wolf, and the Queen Charlotte goshawk. Petersburg resident Becky Knight of GSACC said: “Mitkof Island has been hard hit by 60 years of industrial logging. Subsistence hunters from the community rely on deer as a primary source of protein, but for years have been faced with critically low deer populations and severe harvest restrictions. This area of the Tongass needs a long period of recovery, but this sale targeted some of the few remaining stands of important winter deer habitat.”
Randi Spivak with the Center for Biological Diversity said, “During the planning process for this sale, the Forest Service tried to downplay and hide from the public the full scope of the damage this logging would cause.” Spivak added: “The agency initially told the public this was a ‘small sale’ involving only a local logging opportunities, but the project ballooned to a major timber sale designed for a large regional or out-of-state timber operator.”
“The Forest Service must take a hard look at the environmental consequences of its actions, especially with respect to species like the deer and the goshawk that depend on old-growth forests,” said Oliver Stiefel of Crag Law Center. “In a rush to approve yet another major old-growth timber sale, the Tongass National Forest brushed aside these environmental concerns and fast-tracked the project.”
In the court filing, the Forest Service asked for an extension of the briefing schedule in the case to give the agency time to formalize its withdrawal notice. The extension request is for 60 days.
Just returned from my blogging break, extended due to unforeseen circumstances. I learned many things from my experience in religious media,and discovered that people are not appreciably nicer in their online communications when they are involved in religious kinds of discussions (so I’m an optimist!). Anyway, we haven’t seen a litigation report in a while, so here goes…check out the R-5 salvage/hazard tree ruling.
1. Affirmative Litigation│ Region 3
District Court Finds in Favor of Forest Service in Affirmative Challenge to a 2001 Statute Enacted by the State of New Mexico and a 2011 Resolution enacted by the Otero County Board of County Commissioners in USA v. Board of County Commissioners of the County of Otero and the State of New Mexico. On September 30, 2015, the United States District Court for the District of New Mexico found in favor of the United States of America in a challenge to a 2001 statute enacted by the State of New Mexico and a 2011 resolution enacted pursuant to the statute by the Otero County Board of County Commissioners. The statute in question, Section 4-36-11, authorizes counties in New Mexico to “take such actions as are necessary to clear and thin undergrowth and to remove or log fire-damaged trees
within the area of the disaster.” The United States government alleged that Statute 4-36-11 is in conflict with and interferes with federal law, that Section 4-36-11 violates the Supremacy Clause of the United States Constitution, that Section 4-36-11 is therefore preempted by federal law and is unconstitutional, and that the Otero County Resolution violates the Supremacy Clause and is, therefore, preempted by federal law and is unconstitutional. The court found that the Property Clause of the United States Constitution grants Congress plenary power (and the Tenth Amendment therefore does not reserve for New Mexico any sovereign police power) over federal lands, that the New Mexico statute and Otero County Resolution Conflict with federal law, that the statutory language of the New Mexico statute and its intent prevent the court from interpreting the statute in a manner consistent with federal law, and that the statute and resolution therefore violate the Supremacy Clause of the United States Constitution, are preempted by federal law, and are invalid. (12-00120, D. N.M.)
2. Salvage│ Region 5
District Court Finds in Favor of Forest Service on Plaintiffs’ Motion for Preliminary Injunction in
Challenge to the Bald Fire Salvage Restoration Project on the Lassen National Forest in Center for
Biological Diversity et al. v. Hays. On October 8, 2015, the United States District Court for the Eastern
District of California denied plaintiffs, Center for Biological Diversity et al.’s motion for preliminary
injunction of the Bald Fire Salvage Restoration Project on the Lassen National Forest. The court found that plaintiffs were not likely to succeed on the merits (cumulative effects analysis is adequate, an EIS is not required, effects of the project are not highly uncertain or unique, and both beneficial and adverse impacts of the Project are considered), that the Project would not cause irreparable harm, that the balance of equities does not weigh in favor of granting injunctive relief due to the safety risk posed by hazard trees, and that a preliminary injunction is not in the public interest (salvage of timber will provide jobs in the community, increase safety for employees and the recreating public, and serve management goals as directed by Congress). (15-1627, E.D. Cal.)
Litigation Update
1. None to Report.
New Cases
1. Minerals │ Region 2
Plaintiff Challenges Operation of Keystone Mine Water Treatment Plant in High Country Conservation Advocates v. U.S. Forest Service. On October 5, 2015, plaintiff, High Country Conservation Advocates, filed suit in the United States District Court for the District of Colorado alleging that the actions/inactions of the Forest Service in allowing the continued operation of an active mine water treatment plant, water management facilities, and mine waste dumps associated with the Keystone Mine on U.S. Forest Service lands without an approved Plan of Operation, the required financial assurance or bond, and without any review of the environmental impacts associated with these operations constitute violations of the Forest Service Organic Act of 1897, NEPA, the 1970 Mineral Policy Act, the APA, and implementing regulations (36 CFR 228).
In October of 2012, following a protracted dispute between the Forest Service and Keystone Mine Owner, U.S. Energy regarding whether U.S. Energy was required to submit a Plan of Operation for occupancy of Forest Service lands associated with operation of the water treatment plant, the Forest Service issued an Administrative Appeal Decision rejecting U.S. Energy’s contention that the 1979 Plan of Operation for construction of the plant was sufficient, but that ultimately found that the appeal was moot and that no approved Plan of Operation authorizing operation of the plant or requirement for a bond or financial warranty was necessary because U.S. Energy had, two weeks earlier, submitted a proposed “preliminary Plan of Operation” for mining-related activities that would rely on the water treatment plant. Plaintiff alleges that the proposed Plan of Operations does not contain the information required by 36 CFR 228 to adequately cover the operation of the treatment plant and the surface water management facilities associated with the plant, including the required bond amount (D. Colo.)
20151005ComplaintHighCountryConservationAdvocates_v_USFS_KeystoneMineWaterTreatment
20150930OrderUSA_v_OteroCounty_Statute4-36-11
20151008OrderPI_CBD_v_Hays_BaldFireSalvage
The Missoulian reported today on the effects of the expiration of the Canadian trade agreement, which will make Canadian timber relatively cheaper than that from the U. S. because the industry is subsidized by the Canadian government. The Montana Wood Products Association proposes, that until a new international trade agreement could be negotiated (whenever that may be):
“We need to ask what the Forest Service can do to bring down the cost of raw fiber.”
How would this be done? (Voiding environmental laws anyone?)
Greenwire article from last week….
Of the roughly 315 timber sales and stewardship contracts offered, 16 were challenged in court and delayed, Tidwell told the House Agriculture Subcommittee on Conservation and Forestry.
The hearing was to discuss the 2015 wildfire season, in which more than 9 million acres have burned, costing the Forest Service $1.7 billion in suppression.
Panel Chairman Glenn Thompson (R-Pa.) said the Forest Service needs to more aggressively thin overstocked forests using logging and prescribed burns.
Tidwell said the Forest Service expects to achieve 97 percent of its timber sale target this year.
Collaborative forestry projects have enlisted support from conservation groups that have been willing to defend the agency when it is challenged in court, he said.
The House recently passed legislation, H.R. 2647 by Rep. Bruce Westerman (R-Ark.), that seeks to reduce the amount of litigation hindering forestry work. It would require litigants to post a bond to cover the government’s anticipated legal costs, which would not be reimbursed unless the litigant succeeded on all the claims in the case.
Litigation has been a significant impediment in the agency’s Northern Region, which includes parts of Washington, Idaho, Montana and the Dakotas. A report released in spring by researchers at the University of Montana found that in recent years, “litigation has encumbered 40 [percent] to 50 percent of [the region’s] planned timber harvest volume and treatment acres.”
“Appeals, lawsuits and especially the threat of lawsuits has paralyzed and demoralized the Forest Service and created perverse incentives to ‘do nothing,'” Rep. Tom McClintock (R-Calif.) said at a June hearing before the House Natural Resources Committee.
But a bigger impediment to selling timber this year was lack of bidding, Tidwell said. More than 50 timber sales this year drew no bids, a consequence of “very difficult markets,” he said. Some timber sales were too large to draw bids and had to be reconfigured to garner industry interest, he said.
“We have to do a better job to make sure we’re in sync with not only the market but what the purchasers need,” Tidwell said.
Rep. Dan Benishek (R-Mich.) said the issue has less to do with markets than it does with the difficulty of purchasing federal timber.
“We’ve got a lot of mills in my district that need fiber, but they’ve kind of given up on going to the Forest Service to get wood because it’s too onerous,” Benishek said.
Tidwell this morning also praised Congress for giving the agency new categorical exclusion authority in the 2014 farm bill for timber projects up to 3,000 acres in size to respond to and prevent attacks from insects and disease. He said the agency is currently pursuing 20 projects using that authority.
The Westerman bill would allow categorical exclusions on projects up to 15,000 acres under certain conditions. It would also set deadlines for the completion of National Environmental Policy Act reviews for post-fire salvage projects.
The Obama administration said it strongly opposes the measure.
Tidwell said he supports categorical exclusions to the extent that they allow the Forest Service to maintain the trust of the public.
“When we’re talking about using categorical exclusions, it’s a good tool for small projects,” Tidwell said. “But we have to be thinking much larger.”
He emphasized the need for evaluating treatments on hundreds of thousands of acres at a time to achieve greater administrative efficiencies and restore forests at a landscape scale
A survey from the Union of Concerned Scientists included employees of CDC, FDA, FWS and NOAA.
A significant number of scientists (46 to 73 percent of respondents across agencies) reported that political interests at their agencies were given too much weight in their agencies. Many scientists told us that scientific decisions were being swayed by politics or that political influence inhibited their ability to carry out agency missions.
The Fish and Wildlife Service was at the 73% end of the scale where one employee said,
“It is my perception that upper-level managers are influenced by fear of Congress dismantling the Endangered Species Act and/or otherwise interfering with the mission of the Service.”
One would expect that this would eventually lead to litigation about not following the law (followed by Congress complaining about the plaintiffs and the courts).
Interesting that another question in the survey indicates that Congress is as guilty as advocacy groups are for slowing the ESA process down. While the Department of the Interior is credited with investing in scientific integrity, the Agriculture Department is singled out for not doing so.
It seems like this should be obvious, but it apparently took a lawsuit to get the Okanogan-Wenatchee National Forest to agree.
Thursday’s reversal by the Okanogan-Wenatchee National Forest of its June decision to allow wheeled all-terrain vehicles (WATVs) on six Forest Service routes was met with mixed reviews by people on both sides of the motorized trail-use issue.
(The lawsuit) charged that opening the roads to WATVs not only violated the National Environmental Policy Act (NEPA) but was also premature, since the Okanogan-Wenatchee has yet to complete its long-overdue Travel Management Plan. The federally mandated plan is supposed to guide the use of off-road recreational vehicles on public lands.
Thursday’s Forest Service announcement said any decision to reopen those six roads to WATVs would be based on additional NEPA analysis, but didn’t reference the Travel Management process.
While the plaintiff’s primary concern may be the sequencing of travel planning and road management decisions, the NEPA concession could be at least as important. The Forest Service has generally tried to limit its analysis of road use effects to the travel planning process. The conclusion reached here could also be applied to roads and trails currently open to motorized vehicles that have never been through a NEPA process to consider their effects, or that have never been reviewed for effects on listed species under the Endangered Species Act.
The U.S. District Court for the District of New Mexico has ruled that an Otero County resolution permitting the removal of trees from the Lincoln National Forest is unconstitutional because it violates the Supremacy Clause of the U.S. Constitution. The court’s order also invalidated the New Mexico state statute upon which the Otero County resolution relied because it too violated the Supremacy Clause.
We’ll hope the Forest Service helps spread the word to the rest of the states and counties that believe otherwise.