Wyoming To Enter Fray

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Interesting item involving feedlots for elk on the Bridger-Teton N.F. Valid arguments of both sides, seems to me. The “feedlots are needed, proponents say, because human activities have reduced the elk’s winter range.” An overpopulation of elk at Mt. St. Helens National Monument also are being fed. There isn’t enough forage to sustain the herd, which has dramatically increased since the 1980 eruption created new habitat for them, but photos of starving elk caused a public outcry. So, the elk get food deliveries in the winter months.

Similar argument can be made for active forest management: Humans have disrupted fire cycles, developed forests, etc., so management is needed to maintain forest health. As opposed to letting nature take its course.

Steve

 

Wyo. governor wants to help Forest Service fight enviro group’s ‘extreme’ agenda

Scott Streater, E&E reporter

The state of Wyoming is entering a contentious legal battle between the Forest Service and an environmental group that has challenged the continued use of elk feeding grounds on Bridger-Teton National Forest that it says have the potential to cause great harm to elk.

Wyoming Gov. Matt Mead (R) said the state will attempt to intervene in the federal lawsuit filed last month in the U.S. District Court for the District of Wyoming by the Western Watersheds Project. The group challenged a Forest Service special-use permit to allow the Wyoming Game and Fish Department to operate five winter feedlots on Bridger-Teton.

The feedlots have been operated in some form for decades. But the group says the Forest Service has never conducted any environmental analysis until recently into the impacts of the feedlots and their contributions to spreading diseases. The main concern is chronic wasting disease, which is related to mad cow disease and is easily spread among elk and deer populations through animal-to-animal contact and exposure to contaminated feed and water.

Bridger-Teton has granted Wyoming Game and Fish a 20-year special-use permit to continue operating the feedlots.

“We’re trying to get the feedlots closed before chronic wasting disease gets in them. After it gets in them, it’s basically too late,” said Jonathan Ratner, director of the Western Watersheds Project’s Wyoming office.

But Mead said in a statement that the feedlots help wildlife officials to screen elk for various diseases, including brucellosis, and to be able to vaccinate the elk if problems are discovered.

What’s more, he said, the “feedgrounds prevent large numbers of elk from dying during the winter” by providing a steady source of food. They also help landowners keep the elk from foraging on private agriculture and ranchlands.

“Western Watersheds promotes policies that are extreme,” Mead said in a statement. “We reject the notion that you cannot balance the environment with industries, especially agriculture. In Wyoming, we continue to set an example for the nation.”

In addition, the feedlots are needed, proponents say, because human activities have reduced the elk’s winter range.

Elk are a popular big-game target of hunters, with some paying thousands of dollars to kill mature bulls.

But locating the feedlots “on public land also leads to serious ecological impacts, including reduced stream bank stability and impacts to water quality, as well as heavy use of vegetation in the area. Additionally, concentrating prey species can skew predator distribution as grizzlies, wolves and scavengers may be drawn to feedlot areas,” according to a statement from Western Watersheds Project.

The group has asked the court to determine that the feedlots on national forestland violate the National Environmental Policy Act and the National Forest Management Act, as well as the Wyoming Wilderness Act. And it wants the court to throw out the Forest Service’s approval of the permit and to “[e]njoin the Forest Service from permitting winter elk feeding on lands in the Bridger-Teton National Forest.”

Ratner said the governor’s statement that the feedlots help prevent large numbers of elk from dying each winter “is completely untrue” and that the feedlots are not necessary.

“There are studies that show more elk winter in winter ranges, not feedlots, and there is more than enough forage for them not to be treated like livestock,” he said.

NFS Litigation Weekly–August 11, 2014

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Court Decisions

1. Phase II Amendment ǀ Region 2
Circuit Court Finds in Favor of Forest Service on All Claims in Challenge of the Phase II Amendment and Related Projects on the Black Hills National Forest in Biodiversity Conservation Alliance v. Jiron. On August 5, 2014, the United States Court of Appeals for the Tenth Circuit ruled in favor for the Forest Service on all claims raised by Appellants, Biodiversity Conservation Alliance and Brian Brademeyer, in their consolidated appeal of unfavorable decisions from the United States District Courts for the Districts of Wyoming and Colorado regarding challenges of the Phase II Amendment and nine specific projects on the Black Hills National Forest. In its 103-page opinion, the Tenth Circuit repeatedly deferred to Forest Service interpretation of rules/regulations (namely the viability mandate of the 1982 Planning Rule and modifications to the 1982 Rule by the 2005 Planning Rule) and to the Agency’s technical and scientific expertise. On Appellant’s NFMA claims (stemming from the District of Wyoming case) the Court found that the Forest Service’s interpretation of the species viability mandate in §219.19 of the 1982 Rule and §219.14(f) of the 2005 Rule was entitled to deference and that the Forest Service complied with its interpretation of the viability mandate in regards to specific claims made by Plaintiffs regarding northern goshawk, snag-dependent species, and sensitive plants. On NEPA claims (stemming from the District of Wyoming Case) the Court found that the Forest Service had considered a reasonable range of alternatives (i.e. that consideration of a no-grazing alternative was not required as it would not meet the purpose and need for the Phase II Amendment) and that the Forest Service took the requisite hard look at both sedimentation in waterways’ effects on sensitive plants/aquatic fauna and at historical grazing practices before re-authorizing use on four specific projects (further, the Court found that even though the record indicates that the Forest Service did consider historical grazing practices, it was not required to do so under NEPA’s hard look requirement). Finally, the Court found that the District of Colorado did not abuse its discretion in denying Appellant’s motion claiming a breach of the 2000 settlement agreement (requiring the Forest Service to remedy deficiencies in the 1997 Black Hills Forest Plan) based on laches. (13-1352, 10th Cir.)

2. Wildlife ǀ Region 1
District Court Denies Plaintiffs’ Motion for Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest in Alliance for the Wild Rockies v. Kruger. On August 6, 2014, the United States District Court for the District of Montana denied Plaintiffs, Alliance for the Wild Rockies and Native Ecosystems Council’s motion for a Preliminary Injunction Pending Appeal of the Cabin Gulch Project on the Helena National Forest. Plaintiffs’ motion focused on their ESA claims regarding elk and grizzly bear while making no mention of NEPA or NFMA claims initially raised in the case. The Court, in denying Plaintiffs’ motion, expounded on the standard of review for injunctions based on ESA claims and determined that, under this standard: (1) Plaintiffs fail to demonstrate likelihood of irreparable harm to grizzly bears by failing to contend that the Project will irreparably harm any endangered or threatened species (only that their own interests in observing grizzly bears will be harmed); (2) Plaintiffs argument that they have presented a serious question as to whether grizzly bears may be resent in the project area fails to articulate serious questions on the merits; and (3)Plaintiffs conflate their interests with that of the species (i.e. that an injunction is not in grizzly bears’, and therefore the public’s, best interest because an injunction would delay various Project components designed to enhance the environment for grizzly bears). Additionally, the Court found that all Plaintiffs’ claims related to elk fail. (12-00150, D. Mont.)

Litigation Update

1. Recreation ǀ Notice of Appeal ǀ Region 5
Plaintiffs Appeal District Court Decision in Wiechers v. Moore. On August 1, 2014, Plaintiffs filed a Notice of Appeal to the United States Court of Appeals for the Ninth Circuit concerning an Eastern District of California decision that the Forest Service is not required under the Recreation Enhancement Act to provide free parking for visitors who do not intend to use recreation site amenities. (13-223, E.D. Cal.)

Sharon’s note: Before I retired, I was involved with early phases of the Black Hills litigation. Notice that the plaintiffs are still dealing with the 1997 plan..17 glorious years of litigation, on what was supposed to be a 20 year plan. It seems to me that the original plan got caught up in political issues. And I personally don’t see that converting political issues to “legal issues” is very helpful to anyone. I guess this is evidence that the FS can spend a lot of time dealing with this even when they are “following the law” ;). And I am hopeful that with the new planning rule this (17 years of litigation on a 20 year plan won’t happen 🙂

20140805CircuitOrderBiodiversityConservationAlliance_v_Jiron_BlackHillsPhaseIIPlanAmendment

20140806OrderPI_AllianceForTheWildRockies_v_Krueger_CabinGulch

The Cone of Silence Redux

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Cone of Silence

First, a couple of caveats. I am not picking on Guy here.. he deserves a lot of credit for putting up with us on this blog (!!!). Second, this idea is not original to me, as I have heard it from many folks about many different projects

The simple question was “if one of the points of the complaint was that the “public was excluded” from decision making, then why is it OK for the same group who makes the complaint to participate in closed-door settlement discussions? Does some combo of DOJ lawyers and NGO lawyers somehow de facto represent the public? But how could that be since the people who actually read the “real” public comments are not in the room? Yes, everyone knows that is how the “system works.”

Anyway, again, not to pick on Guy, this last couple of days just illustrates my point.

Guy said “I don’t think it is either hype or hyperbole to say that it has been exempted from public analysis and environmental review (realizing that full and adequate “environmental review” includes public disclosure, oversight, commentary, and interaction)” here.

I ask about his views on amicus brief.
He can’t talk to us (the public?) about these issues.

The idea is that 1) it’s really really important to have public dialogue and interaction (which I agree with, and apparently the people on the two salvage projects did too)
But 2) if it’s so important why is it that the people who actually read the public comments are often (or always) left out of the room when the settlement is reached (the decision is actually being made?)

Maybe I’m too simple of a person, but the idea of public involvement, and how it ends up being implemented, seem to be in conflict to me. And to some others working on the FS side, as well as people working with the FS (cooperators or collaborators), with whom I have spoken. Now I know that people will never agree at the end of the day, but it seems to me, that there is something valuable about a person who has been at the public meetings and read the comments(or has read the summaries of staff) and who writes a ROD with a rationale, seems like it’s easier for the public to understand than folks in a closed room settling and writing up terms.

In 2011, if you were on this blog then, you may recall a similar dialogue I posted with Mr. Garrity. Here’s the link.

Montana (The State) Weighs In on Tenmile Project

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I could not find a photo of the project but it's in the same watershed and I think it has a flume...if someone sends me a real photo of the project I will substitute.
I could not find a photo of the project but it’s in the same watershed and I think it has a flume…if someone sends me a real photo of the project I will substitute.
Yesterday I noted that elected officials and governments might, and in some cases, have, questioned the judgments of NGOs on local projects and attempt to influence these decisions in various ways. Here is the State of Montana attempting to file an amicus brief with the court about a project.

Here is the news story…
THANK YOU for linking to the legal documents, Helena Independent Record!!!

Now if you read the brief, there is this section.. hopefully Guy can explain if this is true and his rationale.(I certainly don’t believe everything I read in legal briefs, in my experience they can be full of hot air, so let’s find out directly from Guy).

Pages from Motion-Brief-8-6-14

Thinning Contract is Monumental Task (4FRI!)

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Forest Service photo of 4FRI
Forest Service photo of 4FRI

Thanks to Craig Rawlings and Forest Business Network for this one..Also thanks to Apache Sitgreaves for easy access to photos on Flickr.
Check out their site here .. the albums are interestin, including a couple on fires and post-fire flooding.

Here’s the link and below are some quotes.

However, Horner said, “It’s a really monumental task to build an infrastructure to cover the acres we need to do. Rather than saying, ‘Let’s get out there and start moving a few acres,’ we’re trying to build the infrastructure so we can do 40,000 acres a year in the next two or three years. We’ll need 300 trucks a day. You don’t snap your fingers and have trucks show up. It’s the chicken and the egg thing. What we’re striving for is to build that infrastructure for us to leap off and hit those acres at a level that if we achieve it, is going to snap a lot of people’s necks.”

But that means not only marshaling 80,000 truck-trips annually on forest roads, but financing a network of mills and biofuel operations to handle the huge quantities of wood from small trees growing in thickets four to 20 times the natural densities.

In the short term, Good Earth will rely heavily on selling saw timber, processed through existing mills. That means selling the wood from trees 14 to 18 inches in diameter will generate the profits needed to remove the massive amount of even smaller trees and brush.

“Ultimately, there needs to be a big processing facility to deal with a low value product. A lot of the basic elements are in place — there are some existing logging companies and a lot of trucking resources, also markets that do exist.”

….

The revelation that most of the initial contracts will depend on finding existing mills and the profits from the larger trees touches on one of the most controversial elements of the Forest Service’s effort to implement the 4FRI approach, originally developed by a coalition of loggers, environmentalists, forest researchers and local officials. That stakeholder group broke decades of deadlock and finger-pointing by agreeing to focus on trees smaller than 16 inches in diameter. The group wanted the Forest Service to accept a flat diameter cap, but the Forest Service decided it needed more flexibility — including an ability to take larger trees. While agreeing the 4FRI approach should leave as many large trees as possible, the environmental assessment will consider the impact of taking larger trees both to achieve certain goals like creating more meadows and to help the contractor turn a profit on the contract.

“There hasn’t been any analysis that says were going to cut any old trees,” said Fleishman, having earlier suggested 18 inches would represent the upper size limit of trees cut under the contract. “This is the largest environmental impact statement in the history of the Forest Service, and we should have it out in September” which is nearly a year behind earlier schedules. “The focus is going to be in the middle size tree — and the 15-18 inch diameters are the bulk of that. If we start cutting large, old trees — we’ll be in court so fast” as a result of legal challenges by environmental groups that supported the original concept with a 16-inch diameter cap. “This is a social issue,” he concluded.

Horner said Good Earth ultimately wants to use the millions of tons of biomass from the forest to produce energy — including jet fuel. But it won’t have the technology of the plants to do that for some years. “Their core business is creating energy from waste. But this will take years. The technology is not yet perfected for commercial production levels. So it comes back in the short term to saw lumber — solid wood products like poles and posts, really common things that have established markets. On the biomass side, it means grinding up trees and brush to create products that are really common — mulch, compost” and things like decorative bark for landscaping.

Arizona remains well positioned to feed such wood materials into many regional markets. “We’re optimistic we’re going to break the code. One of the most important things is to add as much value (to the wood products) as close to home as possible. Pine lumber continues to be a very valuable resource, so we’re looking at that as well. How do we make good quality wood out of what would otherwise be low quality.”

Time for a Change: Firefighter Fairness

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Here is the letter sent to all FS employees:

Subject: Time for a Change

Hello my forest service coworkers. Please give me five minutes of your day. I know that this email is going to make me an unpopular employee by speaking out. My apologies to my forest supervisor for the phone calls you will most assuredly receive. My intent is not to embarrass you or infuriate you.

My name is Scott Mayner. I have been an employee of the USFS for 20 years. I have been a forestry technician my entire career and I have been heavily involved in timber and fire for two decades.

Recently I applied for a job as a supervisory fire engine operator. It was advertised as a primary fire position. That designation comes with an age restriction requiring the applicant to be no more than 36 years old unless sufficient time has been served in a primary or secondary fire position which can be subtracted from your current age to qualify you as less than 37.

This clause apparently has no provision for time dedicated to fire training, fire details, or prescribed fire or wildfire suppression work on your own unit/forest.

Despite the fact that I have served for many cumulative years in fire related duties and am highly qualified for many positions in our ICS system, I was deemed too old to qualify. I am 38 years old and only a short 14 months ago, I would have been considered for this position. My time working in fire related duties isn’t being considered at all. My years of training, years of service, and level of qualifications mean nothing.

It actually has little to do with a person’s age however. If I was 45 and had been a fire tech for 10 years, I could qualify. It is all because of the firefighter retirement system.

This system is completely screwed up however. A forestry technician who is arduous fire fighter qualified, assists with every prescribed burn, every wildfire, attends numerous trainings, attains numerous qualifications, and travels on details will never be considered for fire fighter retirement benefits. The fire tech from the same district who does no more fire related work than the forestry tech gets a 20 year retirement with additional financial benefits!

I feel this is wrong. Any employee who dedicates 20 years assisting this nation with fire suppression should be given consideration for fire fighter retirement, regardless of whether they are a forestry tech, recreation tech, wildlife tech, or professional series.

Some of you are reading this and saying, oh this is just “sour grapes” and that is fine if you believe that. But any system we have that discounts experience and discriminates based on age, regardless of the reason, is a system that has no place in our agency.

I may not be the most qualified person for the job, and if I am not then so be it, I can accept being beaten by a higher qualified person, that is the nature of competitive placement and the nature of life. What I cannot accept is not being considered because our agency will not allow anyone over 36 to apply for a job who isn’t already in a fire position. Regardless of the reasoning, it is wrong.

I know you fire fighter retirement designers and personnel managers will be saying that I don’t understand the intent of the 20 year retirement, mandatory retirement age, etc. Well I do, and I believe it to be a system that is heavily flawed. It favors younger, less experienced employees over those who have dedicated many more years and have much more experience. We are doing away with experience on the fireline and discriminating against the older employees with such requirements. The Forest Service should be ashamed of themselves.

I understand the taboo of sending a message All FS. Yet I have hit block after block by people above me who don’t care, aren’t interested, or have a fear of breaking a rule. I have said nothing in this message that is offensive, rude, or out of line. I am merely speaking about part of our agency that I feel is wrong. I expect that I am not the only victim of this discriminatory practice and I feel that this agency needs to change the rules regarding fire fighter positions and fire fighter retirement. I have heard the lousy excuse “rules are rules” way more than I can stand. The rules are stupid, discriminatory, disregard experience, and need to be immediately changed. Rangers, Forest Supervisors, Regional Foresters, Chief….this is wrong, let’s fix it.

Thank you,

Scott Mayner
USDA Forest Service

My take:This would be a good example of somethings that either 1) has good reasons for existing, not yet explained clearly or 2) no one feels that they can change it (do not know how fixing it could be done) Just a clear explanation of why this is the way it is would be helpful. With any decision, especially personnel, some win and some lose.

Here is my take on the way this works:

I think being clear about what you are doing and why makes some people unhappy with the choice. These are real people who can and do fight back in various direct and indirect ways.

Being unclear makes everyone unhappy and powerless because it looks bad and there is no apparent reason and no perceived way to fix- plus no one cares enough to give you a reason. Yet, no one decision maker can be accountable.. it happens in the HR ether somewhere.

And from the ether, sometimes you get a pellet and sometimes you get a shock.

FS Litigation Weekly August 4 2014

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Court Decisions

1. Travel Management ǀ Region 3

District Court Finds Forest Service Did Not Violate NEPA in Approving the Santa Fe National Forest Travel Management Plan in New Mexico Off-Highway Alliance v. United States Forest Service. On July 25, 2014, the United States Court for the District of New Mexico found that, contrary to Plaintiff, New Mexico Off-Highway Alliance’s claims, the Forest Service was not in violation of NEPA for approving the Santa Fe National Forest Travel Management Plan. Specifically, the Court found that the Forest Service: (1) reasonably used the estimated amount of trails actually being utilized by the public as the baseline for the no-action alternative, (2) sufficiently analyzed a reasonable range of alternatives, and (3) provided scientifically-sound reasoning for the decision. On Plaintiff’s claim related to the no-action alternative the Court expressed some concern finding that the correct measure of a no-action alternative would have been to consider the effect of leaving all the routes that were currently open under the Santa Fe plan as opposed to the Agency’s estimated use definition of the no-action alternative. However, the Court determined that the estimated use definition of the no-action alternative was not arbitrary and capricious because it was based on a thorough examination of which roads were currently being used, supported by CEQ guidance, and that the Forest Service actually analyzed the status quo (reasoning that unused roads would not have a significant impact on the environment and thus, would not have been part of the impact of the status quo). On this claim, the Court concluded Plaintiff’s argument was one of semantics which did not warrant reversal. (12-01272, D. N.M.)

Litigation Update

1. Salvage ǀ Forest Management ǀ Region 5

Plaintiffs File Amended Complaint and Motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest in Earth Island Institute v. Gould. On July 29, 2014, Plaintiffs, Earth Island Institute and Center for Biological Diversity, filed an amended complaint and motion for a Temporary Restraining Order of the Aspen Project on the Sierra National Forest (work is scheduled to begin on August 1, 2014). (14-1140, E.D. Cal.)

2. Salvage ǀ Forest Management ǀ Region 5

District Court Denies Plaintiffs’ Motion for Preliminary Injunction of the Big Hope Project on the Tahoe National Forest in Earth Island Institute v. Quinn. On July 31, 2014, the United States District Court for the Eastern District of California denied Plaintiffs, Earth Island Institute and Center for Biological Diversity’s motion for a Preliminary Injunction of the Big Hope Project on the Tahoe National Forest finding that Plaintiffs failed to show that the balance of equities tips in their favor or that Preliminary Injunction of the Project is in the public interest. (14-1723, E.D. Cal.)

Note: Originally, Plaintiffs, Earth Island Institute and Center for Biological Diversity had challenged the Aspen and Big Hope Projects in a single complaint which was subsequently split into two separate cases.

New Cases

1. Range ǀ Region 4

Plaintiff Challenges Issuance of a Special Use Permit for Winter Elk Feeding Operations on the Bridger-Teton National Forest in Western Watersheds Project v. USFS. On July 14, 2014, Plaintiff, Western Watersheds Project, filed suit in the United States District Court for the District of Wyoming alleging that the Forest Service’s decision to grant a twenty-year Special Use Permit to the Wyoming Game and Fish Department to use National Forest System lands for winter elk feeding operations is in violation of the Wyoming Wilderness Act of 1984, NFMA, NEPA, and the APA. (14-00140, D. Wyo.)

Here is the 20140729AmendedComplaintEarthIslandInstitute_v_Gould_AspenSalvage

Here is 20140725OpinionNewMexicoOHVAlliance_v_USFS_SantaFeTrvlMgmt

Here is 20140714ComplaintWesternWatershedsProject_USFS_GrazingPermitElkFeeding

Here is 20140731OpinionPI_EarthIslandInstitute_v_Quinn_BigHopeSalvage

Note from Sharon: We’ve had discussions about the Center for Biological Diversity before but I had not heard much about Earth Island Institute. When I read their story about innovative work they had done on climate change, marine mammals, etc. here it seemed to me like a couple of Region 5 salvage sales are relatively small potatoes in terms of impact. I wonder what it is about these two salvage projects that drew their attention?

Yosemite’s Re-re-Burn

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The El Portal Fire, burning in Yosemite National Park and the Stanislaus National Forest, has taken a familiar path. Starting very close to where the 1989 A-Rock Fire began, it easily burned up the steep canyon slopes, out of reach of firefighters. Not too many people are making the connection between this set of fires, the A-Rock, the Big Meadow and now the El Portal Fire, and the Rim Fire re-burn (and its prior fires).

Below is what the Foresta area looked like in November. Did those green trees survive this fire? We can’t be sure until the bark beetles have decided their fate, over the next few years. The forested slopes in the background were salvaged under the original A-Rock salvage project, and you can see that it looks about as good as a burned and salvaged landscape can be. Parts of that ridge top have had 13 fires in the last 100 years. The northern third of the fire burned into areas partially burned in the Big Meadow Fire. Up there, fuels are much heavier, and some of it had made it to the ground.

Edit: The fire’s boundary has slopped over that far ridge top but, there is less fuel on that dry west-facing slope, and the fire is just smoldering at the north end. Now, with more re-burn! It will be interesting to see how intense it was, burning through the salvaged part of the A-Rock Fire.


P9132004-web

So, how long do you think it will take to turn this former pristine old growth stand back into a viable forest? Remember, this was a prime summer site for Indians, who expended a lot of time and energy to manage the ladder fuels. You can also go see the bigger picture here, at https://www.google.com/maps/@37.7045826,-119.7624808,7211m/data=!3m1!1e3?hl=en The northern end is very close to Crane Flat. Suppression costs have topped 8 million dollars. Also, how long will it take before blackbacked woodpeckers are on THIS piece of land? We need to learn from this example, or be doomed to repeat this moonscape.

P9132021-web