Is this “thinning?”

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These photographs accompany a Missoulian article on a vegetation management project on the Lolo National Forest in Missoula’s WUI, showing trees (ponderosa pines?) marked for removal.  Most of the purpose and need is related to reducing fire risk, but there is also an assertion that these marked trees are ecologically inappropriate.  Here is what the decision notice says:

While ecological restoration and resiliency are embedded in WAM, the MCCWPP, Forest Service policy, and the National Cohesive Strategy, there is less agreement from the Missoula community about restoration as the sole basis for wildfire risk reduction fuel treatments. This debate about restoration has been ongoing for many years, as the wildfire hazard and risk to our community continues to increase. As the District Ranger, I considered this challenge and while the purpose and need focuses on fuel treatments to reduce hazard and risk, the project also meets ecological objectives to create resilient ecosystems. Both objectives are met through the actions included in the Selected Action and this decision and are designed to achieve the following restoration and resilience strategies:

  • Reduce surface and ladder fuels; increase crown base heights

  • Reduce and maintain lower tree densities; decrease crown bulk density

  • Increase composition of fire and drought-tolerant species (ponderosa pine and western larch

  • Increase mean diameter and individual tree vigor by retaining large trees with healthy crowns

  • Conserve existing species and genetic diversity

  • Restore horizontal spatial heterogeneity of forest structure, including openings where early-seral species can establish

  • Reintroduce fire to reduce fuel loads, stimulate understory species, and maintain desired fuel beds

  • Reduce/maintain appropriate levels of pathogens, insects, and other disturbances in order to create decadence, mortality, and interactions with fire that lead to regeneration of new tree cohorts and diverse understories

  • Monitor key processes including mortality, regeneration, growth, fuel accumulation and new species colonization to inform management if the project is meeting objectives to reduce hazard and risk and create resilient ecosystems.

Make sense?  Both objectives met?  (Note that board feet is not mentioned here.)  To me this kind of captures the debate about when is it necessary to remove the overstory to provide fuel reduction, which is going to be the “mature” trees that many would like to save.  Should we be striving for historical conditions, or less density than that because there are houses nearby, in which case I would say the ecological goal is not being met?   Keeping in mind that the “natural range of variation” is a requirement for ecosystems, not projects, I hope the forest plan identifies areas where risk reduction outweighs restoration as a desired outcome (purpose and need) of projects.  And that the NRV for ecosystems takes into consideration the areas that won’t have that desired condition.

Wildfire on the Landscape- Accepting the Fire Paradox : Guest Post by Jane Darnell

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Knowing that Jane had been thinking deeply and working on this topic for some time, I asked her to give her views on the landscape of wildfire and decision-making, and the roles of managed fire and precribed fire.

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Lots of interesting discussion. I wonder if we can talk about MF or OTFS without talking about the larger land management system? I’ve given a fair amount of thought to the wildland fire response structure and what the future might look like. The 2022 Schultz paper the first post referenced, has important ideas — check out the tables that summarize the recommendations on pages 12-13.

Here are some elements I think deserve consideration – curious what other folks think.
1. Accept the fire paradox – excluding fire from wildlands creates higher risk of negative fire consequences
2. Integrate wildland fire management with land management and research to effectively implement active land management strategies.
3. De-couple roles of wildland fire and land management from built environment fire management.
4. Disincentivize “emergency response” economic and media model
5. Invest in strategic decision making and elevate the level and use of analytical expertise for designing, planning active and integrated management.

(1) Accept the fire paradox –
The current wildfire response structure is built around the idea of fire response in homes and communities should be the same on wildlands. Wildfires should be put out as soon as possible and kept small to reduce risk to life and property values. In fact, this approach leads to increased fuel loading and exposure of people (public and responders) and property values to negative fire consequences. This is the most expensive and ineffective structure to maintain.

Accepting this paradox creates the opportunity to build a wildland response structure built around the idea that fire in wildlands is inevitable and plays an important role in land management. Attempting to mimic fire soley through mechanical treatments, including timber harvest to achieve the same results at the scale needed is not practical from a financial or workforce perspective.

(2) Integrate wildland fire management with land management and research–
Active land management goals, such as increased timber harvest can only be achieved and sustained if they are integrated with fire management goals AND fire management goals should be integrated into timber harvest/ fuel treatment NEPA decisions. Much of the operational wildland fire management knowledge is based on personal experience in fire response, anchored in the built environment fire suppression model. This experiential knowledge is valuable but is often valued over scientific research into processes that can build better understanding of the physical processes of fire itself and lead to better informed decision making for both forest products management and fire management. Utilize existing strategic fire planning tools, such as ISAP and PODs, to inform land management opportunities, like prescribed fire and other fuel treatments. Expand research into more understanding of physical fire processes within PODs to inform future decision strategies.

When the “fire department” is called every time fire occurs on the landscape, decision space is constrained and opportunities for managing risk are lost. When fire is anticipated and better understood as a component of land management, decision space expands and a more reasonable range of opportunities for strategically planned for results to be obtained. “Use fire when you can, suppress it when you must” is a more cost effective and better risk reduction model than “suppress at all costs”.

(3) De-couple roles of wildland fire and land management from built environment fire management —
Land and landscape fire managers should coordinate and collaborate land management with the communities connected to the landscapes surrounding them. However, fire management on those landscapes should not be driven by the concept that the landscape managers are responsible for protecting communities from fire. Communities are responsible for their land uses and hazard mitigation and should not be expected to relinquish that role to the neighboring land managers.

(4) Disincentivize “emergency response” economic and media model —
The emergency response model has sustained a fire industrial complex for decades. (Thompson et al 2013*) The drama of fire has maintained a firm hold on the media’s coverage of wildland fire. The incentives around emergency response are deeply entrenched in society. Yet, wildland fire is inevitable, it happens every year. There is uncertainty as to where and exactly when, but much of wildland fire behavior under certain conditions can be anticipated if not predicted.

A stable workforce of professional fire managers and fire “engineers” (Finney 2021**) could be developed and paid a yearlong salary, not dependent on overtime or hazard pay to make a living. Land managers should be skilled and knowledgeable in fire management. Specific line officer roles should have dedicated fire management responsibilities, such as deputy forest supervisors required to maintain Incident Management qualifications.

(5) Invest in strategic decision making and elevate the level and use of analytical expertise for designing, planning active and integrated management —
Land and fire managers have few opportunities to learn how to develop strategic decision-making skills and implement them in real time. Much of the training available through wildland fire is rigorous but heavily based in experiential sharing. This is valuable and should not be lost but expanded to include more objective study of decision making, risk, fire, ecological and social systems. Research should be included in this expanded study to inform new frontiers of study that yield results that useful to decision makers.

*A Risk-Based Approach to Wildland Fire Budgetary Planning
Published Forest Science Journal 2013
Matthew P. Thompson, David E. Calkin, Mark A. Finney, Krista M. Gebert, and
Michael S. Hand

**The wildland fire system and challenges for engineering
Published in Fire Safety Journal 2021
Mark A. Finney USDA Forest Service, Missoula Fire Sciences Laboratory, 5775, Highway 10 West, Missoula, MT, USA

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Jane retired from the Forest Service as Northern Region Deputy Regional Forester (DRF) in July 2020. Her career began in the late 1980’s in Douglas, Wyoming and included work in rangeland management, lands and minerals, and service as a line officer for more than 20 years. While serving as DRF, she spent extensive time as an acting Associate Deputy Chief for State and Private, supporting the National Cohesive Strategy and innovations in strategic fire planning, decision making and risk. Since retiring, she’s continued working on projects related to strategic fire planning; leadership development/decision making; risk and communication.

A Rock and A Hard Place: On Mining Law Reform by Eric Biber

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I thought this piece by Eric Biber of Berkeley Law School was interesting on permitting reform and mining law. It seems like the idea of producing minerals and energy domestically is catching on, perhaps recent threats by China is moving this pragmatic point of view forward.  In a sense, the permitting reform movement is the expression that “no” is ultimately not a complete answer for various forms of development, and it’s not a “good guys vs. bad guys” issue.

The whole piece with background on the clash between the 1872 Mining Act and more recent laws, but I felt bad about just copying the whole thing (and it’s open source), so below are the latter paragraphs:

There are good arguments, even environmental ones, for some level of federal support for mining activities on federal lands.  Decarbonization requires development and large-scale deployment of a range of clean energy technologies that depend on a range of minerals, including rare earths.  Reliance on imports from other countries – especially China – for those minerals leaves the US vulnerable to external political pressure (as China has done multiple times in constraining rare earth exports).

But it is also true that the mining industry in the United States has a history of significant environmental damage.  And while it may well be the case that modern mining in the US will be less environmentally damaging than mining in other parts of the world, we still may wish to ensure that mining here achieves high environmental standards.

There’s a deal to be done here.  Modern mining cannot be performed without large areas for disposal of waste rock.  Creating a legally secure pathway for allowing for that disposal is an important step to helping advance domestic minerals production.  But the public – the owners of these lands – should get both guarantees that the overall mining production that is the basis of that waste is meeting high environmental standards, and that the public is getting some of the value of the mineral production activity that is based on the public lands.  (Right now, mining operations pay minimal amounts for their use of the public lands.)  Any fix to the Rosemont case should thus include (a) providing land management agencies with the clear power to reject individual mine proposals, and setting lands aside from mining production where other resource values from those lands are high; (b) establishing appropriate fees paid for by mining operations to ensure that clean-up from mining operations meets high environmental standards; (c) a fee for use of the lands for waste disposal that reflects a reasonable share of the value of the overall mining operation (taking into account the necessary risks and uncertainties of mining).  (The second component is also in the Problem Solvers Caucus proposal.)

The goal here – as should be the case in any discussion of permitting reform – is, as far is possible, to set rigorous standards, but provide clarity and certainty about those standards and their applications.  The former helps us achieve environmental goals; the latter will make it easier for regulated parties to meet those standards, and in many cases advance activities that are essential to achieving important environmental objectives

Should Managed Fire Get its Day in Court? Pros and Cons

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This NPS “explanation” cracks me up. It sounds like “if you have questions about something, we’ll just call it something else, or better yet move on to another topic and hope you don’t notice we didn’t answer your question.”

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We have been discussing the rather murky relationship between fire use and FS enabling legislation, plus where in the decision tree NEPA should reside.  Certainly, as Joe Reddan pointed out, someone could litigate in the hopes of either clearing it up, or showing gaps that Congress could clear up (if they ever get past partisan grandstanding).  Anyone could conceivably bring a case, and the topic has attracted the attention of a group of unlikely bedfellows from a variety of FS retirees to Sarah Hyden.  Jon and I don’t usually agree on anything NFMA plan-related, but we do agree about fire use amendments to follow NEPA.  For me,  a broad set of unusual allies like this is a policy Situation That Shouts Watch Out.

I wonder why our ENGO friends have not taken this topic up.  In a series on the Fix our Forests Act, Eric Bieber, a law prof at Berkeley and former Earthjustice attorney wrote:

My takeaway on the litigation changes is that their impacts are uncertain but on the whole likely marginal.  Again, I understand the motivations.  There are plaintiffs who are serial litigators against the Forest Service, challenging any kind of forest management project on ideological grounds.  But those groups are well-resourced and sophisticated.  They will seek to find favorable judges, and will probably be prepared to meet exhaustion requirements and short statutes of limitations.

My bold.  Perhaps MF is unchallengeable because by the time people become concerned, it’s too late.  But maybe folks’ ideologies are for MF ,but against other ways of managing fuels. Still, if Andy’s group can challenge the use of fire retardant generally, could some NGO challenge the use of MF? I don’t know the answer, but some legal minds out there might know.

Some critics might see the current situation as a fuel reduction maximization, litigation minimization, fuels bucks preservation strategy.   At first I thought that a trip through the court system could clear things up, but as JR (retired planning director) used to say “going to court is a crapshoot” so the risk of bizarre decisions probably doesn’t outweigh the possible reward. Maybe no one wants to roll those dice.

On my way back from the Retirees’ Reunion in Missoula, I listened to an audio of Amy Coney Barrett’s book “Listening to the Law.” It had been a very long time since I had thought about the Constitution and how it was developed (50 years or so, in high school). She was a law professor at Notre Dame before becoming a federal judge, so the book does have professorly leanings.  Note that she is the only Supreme Court Justice who attended a law school other than Harvard or Yale.

Somewhere in Wyoming I thought “I’m sure glad I never went to law school”.  Nevertheless, I think it’s good context for many of our current discussions, especially federalism.  She talks about the nuts and bolts of how the Supreme Court works, which certainly filled in many gaps in my own knowledge.

How this relates to the MF discussion.  Coney Barrett was a federal judge on the 7th Circuit before becoming a Supreme Court Justice, and she talks about all the kind of cases she had to deal with.. it was quite the laundry list (I don’t have a hard copy of the book or would list them here).  Point being, we have enough trouble understanding the complexities of our own tiny subfield of environmental law, and yet cases will be decided by judges who can’t possibly be experts in everything. I’m not arguing for a different system, I’m sure they do good work.  My point is simply that if we want a better system, we will probably have more luck developing draft statutes or regulatory schemes on our own.

An additional difficulty to all this as of now is the new Fire Service at Interior. Conceivably, whatever someone came up with for “how do we define MF- when does the decision take place and how do we count those acres?” “what kind of incentives should we have for MF” and “where does NEPA go?””what accountability mechanisms exist for decisions?” and “how is this reported to the public and to Congress?””what kind of situations make sense to use MF and which PF or mechanical treatment?” “how should NEPA folks and fire managers use which models in determining when and how to use MF?” – the answers to those questions should apply across all fire agencies that conduct MF.  I hope, when agencies are funded again,  folks will take advantage of this opportunity to develop a framework for all this.. before it gets thrown into the maw of the federal courts and is excreted in who knows what form. Of course, step 1 would be giving MF a name we can all use and being transparent about its use.

Finally, I ran across a court case (thanks to Nick Smith’s daily news round-up) in which a court looked at intentional firing operations that had been litigated, story by McGuireWoods.

The Court’s Reaffirmance and Clarification of the Legal Standard

The court reaffirmed that, under the Fifth Amendment, a plaintiff bears the burden of proving causation in a takings claim. Specifically, the plaintiff must demonstrate that, in the ordinary course of events and absent government action, the injury to their property would not have occurred. The court emphasized that this analysis requires consideration of the entirety of the government’s actions in response to the relevant risk and a comparison of the actual damage to what would have occurred had the government not intervened at all.

Importantly, the court clarified that the takings clause does not employ a “substantial factor” standard of causation; rather, the inquiry is whether the government’s actions were the cause-in-fact of the alleged injury.

Based on a four-day bench trial in December 2024, the court found that the plaintiffs failed to meet their burden of proof on causation. The evidence established that the Alice Creek Fire was ignited by lightning and fueled by severe drought, dry conditions and abundant dead timber. The fire’s progression was driven by extreme weather, including high winds and low humidity, which created red flag conditions and led to rapid, unpredictable fire spread and spotting prior to the government’s intentional burn operations.

The court found that, absent any government intervention — including not only the intentional burns, but also the construction of fire control lines and helicopter water drops — the fire would have continued to spread naturally, likely resulting in equal or greater damage to the plaintiffs’ property.

Testimony from the government’s fire behavior experts and incident commanders supported the conclusion that the government’s suppression efforts, including the intentional burn firing operations, were largely successful in protecting certain structures owned by the plaintiffs and did not cause the plaintiffs’ losses. In comparison, the court gave little weight to the plaintiffs’ reliance on fire spread probability models and infrared mapping, finding these tools insufficient to account for the actual weather and fire behavior that occurred during the relevant period. The court also noted that no expert testimony was offered to support the proposition that the plaintiffs’ property would have fared better had the government taken no action. Rather, the plaintiffs’ expert was only asked to provide an opinion concerning whether the firing operations were a “substantial factor” in causing damage to their property.

Implications for Other Wildfire Events

The McDonough decision underscores the high burden plaintiffs face in takings claims arising from federal wildfire suppression efforts. A potential implication of this decision could be when a private entity is alleged to have ignited the wildfire, but the government decides to use that fire as a controlled burn. For example, earlier this year, the Dragon Bravo Fire was ignited due to lighting, but the National Park Service decided to manage the fire as a controlled burn. Ultimately, the Dragon Bravo Fire burned over 140,000 acres and destroyed 113 structures, including the historic Grand Canyon Lodge, and one person reportedly died. After McDonough, the question remains whether the takings clause would provide any avenue of recovery for private property owners whose property is destroyed in a similar situation, when a private entity ignites the fire, and a government entity decides to let it proceed as a controlled burn to suppress its spread.

It seems like plaintiffs would always have difficulties finding someone expert enough to weigh in on  suppression tactics.  As the use of managed fire grows (it seems to, regardless of Admin), perhaps this area of law will become more developed.

Federal Lands Litigation – update through September 30, 2025

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Still running a little behind …

FOREST SERVICE

Preliminary injunction denied in Friends of Bell Smith Springs v. U. S. Forest Service (S.D. Illinois)

On September 11, the district court denied plaintiffs’ motion to enjoin the McCormick Oak-Hickory Restoration Project on the Shawnee National Forest and dissolved the temporary restraining order it had previously issued.  The court held that plaintiffs “failed to demonstrate a sufficient likelihood of success on the merits of their claim that the Forest Service violated NEPA” using a categorical exclusion.  The project would commercially log to reduce “overstocking” of hardwood trees in a section of forest covering roughly one-tenth of a square mile.  The CE could be used for harvest of trees on less than 70 acres and requiring less than one-half mile of temporary road construction.  The court determined that the record supported the Forest Service conclusions that there were no extraordinary circumstances related to listed bat species, steep slopes, or soil erosion into Bell Smith Springs National Natural Landmark.  The court also found that “the Decision Memo satisfies the disclosure requirements that were imposed at the time by the statutory and regulatory text” (which were limited).

Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (E.D. Washington)

On September 17, the district court vacated and remanded the decision to proceed with a timber project known as the Sxwuytn-Kanisku Connections Trail Project on the Colville National Forest.  The Project area consists of approximately 91,400 acres (of which 44% is national forest) and authorizes approximately 24,400 acres of commercial timber harvest.  There were three categories of commercial timber harvest:  commercial thinning, shelterwood with reserves, and commercial thinning with group selection, with differences in residual canopy cover. The map used in the effects analysis did not distinguish among the three types of commercial timber harvest.

The court disallowed the “condition-based” management approach that would defer treatment selection until subsequent field review and application of project “decision point” criteria.  It cited Ninth Circuit precedent (North Cascades Conservation Council) for approving condition-based management when the area involved is “fairly small” and the Service provided “extensive mapping” which consisted of “unit-by-unit maps of the maximum effects of each treatment.”  While this Project was somewhat comparable in size, the failure to identify the areas of the different types of timber harvest was “too vague to satisfy the requirements of NEPA” for determining and disclosing effects.

The court upheld other claims of noncompliance with NEPA and NFMA.  It found that changes in lynx habitat maps to eliminate lynx analysis units did not have effects implicating NEPA because the Project area is non-core habitat, and there are no forest plan restrictions related to such habitat that would be affected by changing maps.  It also found no effects of the mapping related to a forest plan guideline and two desired conditions for wildlife.

The court found that the road density in “focused recreation areas” was consistent with a desired condition, and that the record “does not ignore” the impact of temporary roads.  The court considered this to involve the “level of detail” of the effects analysis, which requires deference, citing the recent Seven County Supreme Court case.  It also cited that case to agree that it was ok to not look at the need for future road access because that would be about “projects separate in time or place.”  It upheld the analysis of impacts to lynx, grizzly bears, goshawks, and wildlife diversity because “(T)his is not a case where the Service failed to engage in any inquiry at all,” again citing Seven County as requiring deference to the agency. It cited that case once more to defer to the agency’s treatment of cumulative impacts of foreseeable future projects “separate in time or place,” where in this case, “it is apparent that the Service at least considered other projects.”

Finally, the court found that a supplemental information report, prepared to address a court order to reinstate the Eastside Screens forest plan 21-inch diameter limit, properly concluded that the Project was not affected by this change.  The court deferred to the methodology used by the Forest Service to make this interpretation of its own forest plan.

Plaintiff”s response to the outcome is expressed here.

Court decision in Western Watersheds Project v. Schultz (D. Montana)

On September 17, the district court adopted a magistrate’s recommendations and rejected a Custer Gallatin National Forest environmental assessment for the East Paradise Range Allotment Management Plan, which expanded cattle grazing in six allotments north of Yellowstone National Park.  The proposed changes expanded some of the grazing areas by around 1,000 acres to allow for easier movement between pastures, and moved up the seasonal opening time from July to June in an area identified as a potential important connectivity link between Yellowstone bears and other populations.  The court determined that the EA did not adequately address the effects on grizzly bears of increased conflicts with livestock, stating, “Defendants once again conflate a reasoned explanation for omitting potentially relevant information (permissible under NEPA) with a complete absence of such information (impermissible under NEPA).”  While such information was found in specialist reports incorporated by reference, the EA said nothing about how that information relates to negative impacts on grizzly bears of this decision.  There were “substantial questions” about whether effects may be significant, and thus would require an EIS, and the decision was therefore vacated.  The article includes links to both the magistrate’s recommendation and the district court opinion adopting it.

Decision withdrawn in Center for Biological Diversity v. U. S. Forest Service (S.D. West Virginia)

On September 17, the Forest Service terminated South Fork Coal Company’s Road use permit based on “South Fork’s noncompliance with the [permit’s] terms and conditions.” Plaintiffs then dropped their lawsuit on September 30.  This case was described here.

Court decision in Monroe County Board of Commissioners v. U. S. Forest Service (S.D. Indiana)

On September 18, the district court enjoined (pending a hearing on the remedy) the Houston South Project on the Hoosier National Forest for failure to comply with NEPA in evaluating its use of best management practices to protect the water quality of a reservoir used as a municipal water source. The project involves clearcutting 401 acres, logging on about 4,000 acres, use of herbicide on 2,000 acres, prescribed burning on 13,500 acres, and several miles of road construction.  According to the court, “The Forest Service’s selective and incomplete citations to [best management practice] literature show that the Forest Service took more of a cursory glance at the effectiveness of its [best management practices] rather than a hard look.”  The court said the studies used by the Forest Service were outdated or not relevant to this location.  The court had previously upheld the Forest Service on other issues.  The article includes a link to the opinion.

Preliminary injunction granted in Klamath Forest Alliance v. U. S. Fish and Wildlife Service (E.D. California)

On September 26, the district court stopped implementation of the South Fork Sacramento Public Safety and Forest Restoration Project on the Shasta-Trinity National Forest for failure by the Fish and Wildlife Service to comply with the Endangered Species Act’s requirements for northern spotted owls.  The Project area consists of 16,285 acres of land intended for “vegetation and fuel management treatment” activities, including 8,022 acres of mechanical thinning, and includes “two of the longest occupied NSO territories in the California Cascades recovery unit.”  Contracts have been awarded for two timber sales.  (The Forest Service was not named as a defendant.)

The court held that, “Plaintiffs have raised a serious question on the merits of their claim that Defendant FWS acted arbitrarily and capriciously in determining that the SFS Project is “not likely to jeopardize the continued existence of the [NSO]” based on its analysis of effects at the recovery unit scale.”  It found, “FWS’s deduction that the “Scott and Soapstone NSO territories do not represent the sole source population to either recovery unit” is not supported by evidence in the record.”  The court enjoined any commercial logging operations authorized under the two contracts until a decision on the merits.

Court decision in Wilderness Watch v. Halter (D. Minnesota)

On September 30, the district court denied a request to stop, reduce, or further restrict motorized towboat usage in the Boundary Waters Canoe Area Wilderness.  “The Court concludes that the Forest Service has articulated a reasonable methodology for measuring motorboat use under the BWCAW Act.  Using that methodology, the court concludes that motorboat use has not exceeded the base period use.”  (I haven’t seen this opinion, but there was an earlier spirited discussion here.)

New lawsuit:  Heartwood v. Cano (S.D. Illinois)

On September 30, Heartwood and Wilderness Watch sued the Forest Service to stop construction of a 2.5-mile road through the Lusk Creek Wilderness in the Shawnee National Forest.  At the request of private landowners, the Forest Service approved construction of a major road that would not only reach a private inholding located a half-mile from the wilderness boundary but continue through the Wilderness to serve 87 acres of private land outside the eastern boundary.  The plan would transform the existing primitive route into an all-season road capable of accommodating full-size vehicles hauling trailers, and it authorized the use of motorized equipment.  The article includes a (defective?) link to the complaint.

BLM

New lawsuit from Idaho Conservation Alliance

In September, a group of individuals sued the BLM over its proposed trail system in the Wood River Valley.  Most of the new trail system would be open to e-bikes, while about 20 miles of the project would be single track trails open to motorcycles. It would also build 21 new campsites, which could accommodate trailers and vehicles.  Plaintiffs say they are concerned about big game migration corridors and other wildlife use areas that would be affected.

New lawsuit:  EWU Media, LLC v. Pershing County (D. Nevada)

On September 9, a YouTube channel and its managers sued the BLM, two counties, Burning Man Project and others associated with the cleanup effort after the 2024 Burning Man Festival in Nevada’s Black Rock Desert, which was conducted under a BLM permit.  The Festival has a reputation as the world’s largest “leave no trace” gathering. Plaintiffs say they were blocked by local deputies and BLM officers from filming the clean-up.

Court decision in State of Alaska v. U. S. Department of the Interior (D. Alaska)

On September 23, the district court ruled against the State of Alaska on its attempt to claim ownership of part of the Arctic National Wildlife Refuge.  The case turned on which river channel was the boundary of ANWR, and the court found that it was not arbitrary or capricious for the BLM to find, “that the northwest boundary of the refuge follows the Staines River, a distributary of the Canning River.”

Withdrawal of mining plan in Hualapai Indian Tribe v. Haaland (D. Arizona)

On September 29, the tribe withdrew its legal challenge to Arizona Lithium’s mine proposal after the court granted preliminary injunctive relief to the tribe, and the mine’s owner withdrew its plan.  This case was discussed here.

ENDANGERED SPECIES

Litigation resuming in Oregon Federal District Court

On September 11, Oregon, Washington, and four Lower Columbia River tribes announced they would resume litigation against the federal government over its hydroelectric dam operations that have harmed salmon runs in the region.  This follows the Trump Administration’s executive order withdrawing from a prior agreement where the federal government had committed to short-term protections for salmon in exchange for a pause in the litigation (the Columbia Basin Restoration Initiative).

TRO granted

On September 17, the district court issued a temporary restraining order stopping the National Park Service from diverting water used by the Grant-Kohrs Ranch National Historic Site.  The case is based on the Trump Administration’s alleged failure to fulfill a prior settlement agreement to modify the ditch operations to protect critical habitat for bull trout, and the court halted diversions because the flow level was below a minimum level agreed to by the Fish and Wildlife Service.  This case was discussed here.

New lawsuit:  Ormat Nevada Inc. v. Burgum (D. Nevada)

On September 30, a geothermal power plant developer sued the Fish and Wildlife Service over its 2022 emergency listing of the Dixie Valley toad in the face of a proposed geothermal development, previously discussed here.  Ormat, the developer, says the agency violated the Endangered Species Act by relying on unsupported assumptions about the toad’s risk of extinction and failing to consider the best scientific and commercial data available.  The complaint is here.

OTHER

New lawsuit

On September 19, Rigoberto Hernandez sued the federal government in Seattle over his arrest on August 27 by ICE agents while he was fighting the Bear Gulch Fire in Olympic National Park for a private firefighting crew.  The case comes after what his attorneys say was the first time immigration officials have taken enforcement action on the lines of an active wildfire.  The complaint contends federal agents illegally arrested Hernandez, failed to properly charge him, and are keeping him in custody despite his long-standing application for a visa.  It alleges that federal agents violated Hernandez’s Constitutional rights against unreasonable seizure and because they had no warrant or probable cause justifying his arrest. It also said the government officials violated federal law for arresting him without a warrant and failing to justify his continued detention.  He was released from custody September 23rd.  This article provides the details of his story.

Ongoing lawsuit

Nonprofit BASE Access has sued the National Park Service over its 1983 version of a regulation known as the aerial delivery rule that prohibits using a parachute to land on national park property, Yosemite National Park in particular.  (It is legal on BLM land, and presumably national forests.)  Following many arrests and some criminal prosecutions of BASE jumpers, BASE Access decided to sue based on the recent Supreme Court decision in Loper Bright, seeking less deference to the Park Service’s interpretation of its Organic Act authority to criminalize this use.  A court hearing is expected this month.

Is Recusal Out-Dated? And a Deeper Dive into the Miles City No-Coal RMP Amendment (and CRA)

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Now, you might wonder what TWS’s position is on coal, given that the Miles City Amendment (approved by Director on the 20th) closed off coal leasing.  TWS is pretty open about it, and it’s not very positive.

You might also wonder whether it takes more than three business days to negotiate a high-level job offer.  Further you might wonder why TSM couldn’t have recused herself from this one and let Nada Culver sign it, as she did the Rock Springs RMP.  Perhaps BLM-knowledgeable folks could explain.

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The Center for Western Priorities reported that the Senate voted to pass Congressional Review Act resolutions for the Miles City and North Dakota RMP’s.  We’ve discussed using the Congressional Review Act before here.  The CWP talking point is that it “invites chaos” for Congress to use the CRA.. I’m not so sure about that, and I don’t know why some post-election decisions are being redone administratively and some by the CRA.  If we look at the talking points on Rock Springs, we find “overturns years of public involvement”- a shading of the truth, and the CRA plans “every management plant will be overturned:”

If the Senate votes to rescind these RMPs, the immediate effect will be to void the current management plans for millions of acres of public land. But the consequences don’t stop there.

First, the “substantially similar” clause would bar the BLM from issuing replacement plans that resemble those Congress just overturned, leaving vast landscapes without a modern management framework. The agency might have to revert to decades-old plans — some dating back to the 1980s — written before the rise of GPS, modern wildlife science, or modern mining and drilling technology. These plans are often out of step with today’s realities, creating confusion for ranchers, energy developers, and conservationists alike.

Yet the post-election BLM decision (approved by BLM Director Nov. 20, 2024) in the bill was actually a plan amendment. According to the bill,

This Miles City Field Office RMP Amendment made no acres available for coal leasing and 1,745,040 acres unavailable for further consideration for coal leasing.

The decision was in response to a court order, and required BLM employees to analyze some of the most-bogus numbers I’ve ever been involved in generating… projections of damages from climate change from the output of specific coal mines.  Coal analysis was always very difficult for me as in “we know they’re bogus, the plaintiffs know they’re bogus, the judge probably knows they’re bogus but we have to generate them anyway.”  So this Amendment was only about stopping coal leasing and removing it…keeps the RMP as it was, not creating confusion for anyone.

Here’s the response to the Governor’s Consistency Review from the ROD.

On May 17, 2024, the BLM initiated a 60-day Governor’s consistency review on the publication of the Final SEIS/Proposed RMP Amendment in accordance with 43 CFR 1610.3-2(e). The BLM received a response letter, dated July 16, 2024, from the Governor’s office. The letter identified a recommendation to withdraw the Proposed RMPA/Final SEIS and develop alternatives to consider additional plans, policies, and programs. The letter also identified inconsistencies with State laws, policies, programs and Plans. On August 12, 2024, the BLM Montana/Dakotas State Director responded to the Governor’s letter clarifying how the Final SEIS is consistent, to the extent practical, with state laws, policies, and/or plans. It also addressed the Final SEIS as being responsive to the court order which directed BLM to consider limited leasing and no leasing alternatives and to complete a record of decision by December 3, 2024, and therefore, BLM cannot withdraw the Final SEIS. No changes were made to the Proposed RMPA/Final SEIS.

On the face of it, the court directed the BLM to analyze it, not for the BLM to select the no leasing alternative.

The Governor submitted an appeal to the BLM Director on September 18, 2024, appealing the State Director consistency response. In accordance with 43 CFR 1610.3-2, the Director notified the Governor the reasons for the determination to reject the Governor’s recommendations. A Notice of Availability of the Director response is available in the federal register.

We see a pattern here.. election happens, once and future ENGO leaders make decisions and blow off Governors, and we’re told by some groups that Govs trying to remove the sharp stick in their eyes is a bad thing, either it goes against “decades of public involvement” or it “invites chaos.”  I just hope media folks look into this themselves and don’t simply regurgitate talking points.

Are There Appropriate Incentives for the Use of “Managed Fire”?

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I ran across an interesting story from earlier this month on Boise State Radio about managed fire.

“Easily the most tightly grouped consensus was around getting the explicit support from leadership,” he said, adding: “Washington-level leadership that comes out and says, ‘we expect you to take necessary risks, done so intelligently, and we’ve got your back if you do so.’”

Franz said it would also be helpful to make it easier for managers to get credit from their agencies toward their land management goals and objectives when they allow wildfires to burn at low- and medium-intensities.

“But at the moment, there is no explicit incentive that focuses on the use of fire to accomplish land management objectives,” he said.

My understanding is that the FS claims those acres under “acres treated” as part of the whole, as I discussed in this piece in 2023.

Also, it seems like if you look at the Coconino, for example, they are doing plenty of wfu.  Are they doing it without incentives? Or are incentives and culture (and successful history) more localized?

And doesn’t that part of performance (those actions formerly known as WFU)  trickle down to the local land manager? Or is the success split between the incident management team and the local official?  Or does accomplishment at the national level not trickle back to local incentives?

Fostering Reporting Improvement: A New Media Age is Dawning

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A recent article on Roadless (“99% of comments”) reminded me of one of the reasons I started NCFP (the predecessor of The Smokey Wire) was due to what I saw as reporting that was inaccurate.  You can check out this piece where I discuss a New York Times article (in 2012).  Whoops, I was still employed by the FS in a D Admin and questioning folks like the New York Times and Pew.. maybe not the brightest idea in terms of long-term employment. 

My explanation for this (being a charitable soul) was that our issues were too complicated to make it into a newspaper-sized story.  In reality, though, as time has gone on, it appears that many media outlets’ reporting was, in fact, biased.  Various individuals I know were interviewed and then the interviews not used if they didn’t fit the pre-existing narrative.  As we’ve seen recently, complex arrays of positions on different land management issues  have been reduced to “environmentalists vs. the timber industry” for the Forest Service and “environmentalists vs. oil and gas” for BLM.  

Sometimes “fits the narrative” and “sounds vaguely plausible” seem to be all that a story requires. But as more and more of those stories have been published on more and more topics, and those run against peoples’ knowledge and lived experience, much of the media has lost trust with the public.  This is nothing new since the days of Aesop and the story of “the boy who cried wolf.”

For those of you who don’t follow this, there are two stories that show the larger perspective. First, the results of a recent Gallup poll.

Americans’ confidence in the mass media has edged down to a new low, with just 28% expressing a “great deal” or “fair amount” of trust in newspapers, television and radio to report the news fully, accurately and fairly. This is down from 31% last year and 40% five years ago.

Meanwhile, seven in 10 U.S. adults now say they have “not very much” confidence (36%) or “none at all” (34%).

Second is the news of Bari Weiss’s deal with Paramount and CBS News. I am a long-term subscriber to the Free Press and appreciate greatly the effort and vision, if not always the execution. Here’s Bari’s take on what the media universe:

The Free Press uncovered an America hiding in plain sight. People who want to be surprised. People who want to learn. People who are open to changing their minds in the face of new facts. People who believe that curiosity is a virtue and who crave common sense in a world that feels upside down. People who resist the warmth of political tribalism even as they seek community with one another. People who want logic and wit, not conspiracy theories and demoralization.

Most of all, Free Pressers are people who want to face the truth. Because we understand that knowing it is the only way to improve lives—our own and those of our fellow citizens.

If I could write better, it would be equally true of TSW.

If you want to look at some analysis of what went wrong, you could read Mir’s book on “post-journalism” or this piece by Martin Gurri. Or Uri Berliner’s (formerly of NPR) piece in The Free Press.

But those of us on the ground, as it were, don’t need talking or writing heads to tell us what we have observed.

But what to do about this opening towards a media focused on fair reporting? It seems to me that there are two things we can do (1) provide helpful suggestions to reporters and editors, by examining what is covered, what is not covered, how the story is told, who is interviewed and who is not interviewed, places where skepticism or questioning would be useful, and so on.  I used to do that more during Colorado Roadless.  Equally important is (2) finding and identifying stories that are fair enough to reflect and facts and attempt to understand the different points of view.

Because, after all, if we see our own countryfolk as “the enemy” and don’t try to understand them, it’s not a good path to be on, even if it makes more money for some media outlets and advertisers.  Truth, compassion, listening to others.. we can and do try for all these things right here.

 

Two Stories on the Rock Springs RMP Redo: Wyofile and Cowboy State Daily

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The Bureau of Land Management’s controversial plan for managing millions of acres in southwest Wyoming is again open for public comment. A Wyoming legislator said he’s confident that federal officials will get it right this time. (Tom Till via Alamy)

 

I’ve gotten interested in the Rock Springs RMP -mostly from news stories like this..from Wyofile which seem to accept a framing of  a) concerns about the RMP were those of ‘conservatives” and b) by redoing it, they are overruling local people.  While all the facts are true (no doubt the Sierra Club and The Wilderness Society folks said those things) if you just read the Wyofile story,  you would get a different impression from the Cowboy State Daily story I’ll reference later.

The highly anticipated and unusual redo comes just nine months after the Rock Springs resource management plan was completed in December. That plan set off a firestorm of criticism from conservative critics for being overly restrictive. Now, conservation groups lament that what they considered a widely supported compromise cemented under the Biden administration is at risk of a massive overhaul by the Trump administration.

There was a “widely supported compromise”.. no, there were phone calls from folks in DC.. please! And blowing off the Governor’s concerns (which makes me wonder a bit why is there a consistency review at all?) And not just conservatives were critics.

The BLM’s actions signal a disregard for conservation measures supported by 92% of public comments submitted during the planning process, as well as a majority of a local stakeholders group convened by Gov. Mark Gordon, the Sierra Club noted.

A curious person might wonder how many of those public comments were form letters, and how many of them were clicks on something like “if you don’t want people to destroy federal land…”.  And shouldn’t we be a bit skeptical of what the Sierra Club says about the stakeholders group?  We could look at another story in Western Ag Network and find what the Gov said:

Gordon said stakeholder comments and recommendations helped claw this document away from the BLM’s preferred, absolutely unworkable, Alternative B, which favored conservation over all other uses. Gordon said there is evidence that BLM considered local and cooperative input in places, but chose to force through national agendas in others.

Further,  they seem to be reopening the decision, which I would think means that they haven’t disregarded any “conservation measures” yet.  Like any RMP, it’s a hodgepodge of different decisions at different levels, mostly impenetrable to someone who doesn’t know the area, the process and decisions made in plans, nor the history. Interestingly in the Cowbory State Daily story, Stuble’s statement was specifically:

“The plan incorporates conservation measures supported by 92% of the public comments submitted on the draft plan, plus 85% of the recommendations made by a group of local community members that Governor Mark Gordon assembled to suggest improvements,” according to the statement.

While it’s portrayed as oil and gas folks vs conservationists (e.g. the bad guys vs. good guys), I checked out a letter (note that all the below are comments on the draft, which was changed before the final)  from the renewable industry written by attorneys at . And this one by motorized folks.

This even though nobody knows what the designation of over 1.5 million acres of FO lands as ACEC will mean in practice. Consider a common complaint about ACEC as described by Senator Barasso and his colleagues in a letter to Director Stone-Manning:
… this designation creates more ambiguity around the BLM’s use of ACECs. The BLM national office has no accurate database of ACECs. There is no standard format for reporting information about ACECs within the agency or to the public. The BLM in recent years has used ACECs to restrict recreational demands, obliterate grazing rights, and hinder economic development in lower-income communities. The absence of a standardized format of ACEC data, while the BLM pushes for more land to be designated as ACECs, is already leading to a growing delta of distrust of what this draft RMP could mean for future BLM land decisions.

Further concerns are raised when it is understood that BLM is in the process of implementing a rule that may dramatically redefine what an ACEC is and does. From the Conservation Health Rule (emphasis added):
As part of this rulemaking, the BLM proposes establishing procedures that require consideration of ecosystem resilience, landscape-level needs, and rapidly changing landscape conditions in designating and managing ACECs. The BLM may also revise the ACEC manual and develop an ACEC handbook to integrate the existing rule as well as the changes proposed in this rulemaking, if finalized, into policy. The BLM would thus provide additional guidance for how to incorporate ACECs into resource management decisions in a way that considers trade-offs among environmental, social, and economic values during land use planning.

Since the release of the Draft EIS BLM officials have maintained that the designation of 1.5 million acres as ACEC would not impact any existing recreational opportunities. A September 9, 2023, article in the Cowboy State Daily includes a quote from Kimberlee Foster, field manager for the BLM’s Rock Springs office that captures this sentiment, “The most frustrating thing for us is all of the misinformation out there. We’re not closing any areas to all hunters or people walking their dogs or some of the other nonsense that has been out there.”

I think the motorized folks laid out their concerns very clearly.  They don’t trust the Biden Admin.  And why would they? The political appointees are from, and going back to, organizations that don’t support their uses (except to some extent, renewables, but then why was the draft of concern to renewable folks?). No, this decision doesn’t restrict you, but we’re asking you to buy a land designation pig in a poke from political appointees that are on record as not supporting your uses.

Then I ran across this letter from the Petroleum Association of Wyoming and the Western Energy Alliance:

The reaction to the release of the Bureau of Land Management’s (BLM) Rock Springs Field Office (RSFO) draft Resource Management Plan revision (DRMP) and Environmental Impact Statement (DEIS) was one of shock that rippled through the state of Wyoming. Stakeholders’ input that had been collaboratively provided for 12 years was discarded. Never before had the BLM selected an extreme conservation alternative as the preferred alternative, one hastily developed in a single week and contrary to the balanced objectives envisioned by those involved in the multi-year stakeholder and cooperating agency process. The public’s reaction to the BLM’s decision was proportional and necessary.

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Sorry to say, when asked to “listen to the science” about a contentious land use issue I always know someone is trying to bamboozle.  We know exactly who made the calls on this one and how much those folks “listened to the people who know the lands best.”

“The plan was a compromise between many different Wyoming communities who have weighed in over the years,” Sierra Club Wyoming Chapter Director Rob Joyce said in a prepared statement. “Now, before the agency even has time to implement [the 2024 plan], we’re being asked to weigh in again. It’s time to listen to the science and to the public and let the plan live.”

Conservation groups also worry about the Trump administration’s promises to expedite actions on federal lands.

“The work behind [the 2024 plan] demonstrated what’s possible when the government listens to the people who know these lands best and operates in a balanced and transparent way,” The Wilderness Society’s Wyoming State Director Julia Stuble said. “There is no reason to redo a plan finalized less than a year ago, after decades of local input,” Stuble said. “Rewriting the plan now, especially through this fast-tracked amendment process, will undercut years of community work and end up excluding the voices of those who live, work and recreate in southwest Wyoming.”

The Cowboy State Daily article quotes State Senator Hicks:

The Biden-era Alternative B blindsided many “cooperators” who had put years of work into an RMP that matched Wyoming’s values, he said.

The cooperators included local and state officials and various stakeholders who worked with the BLM Rock Springs office to draw up a plan that “tried to strike a balance between conservation and multiple use,” he said.

Alternative B came down from the BLM’s top brass, pushing the plan in a direction that many felt was skewed toward “preservation,” rather than multiple use and prudent conservation, he said.

Same information, same state, two different views you’d get from reading the articles.   But the weird thing about this one for me is that we all know the decision came from DC politicals, so I wonder why Sierra Club and The Wilderness Society folks are going out on that particular limb?  They know, we know, they know we know, we know they know we know, and so on.