TGIF TSW News Round-up: More FOIA Frolics, Seed Orchards Return, as do Wolverines (maybe); and Pack Mules Never Left

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Fire Retardant FOIA Frolics Update:
FOIA Review at White House White House

Remember that I was curious about how the decision was made for the USG to not support a fire retardant bill that aimed to exempt fire retardant from CWA permitting. I had heard through a few grapevines that this was not the USDA position and they had been overruled.   I was wondering how these disagreements are hashed out in the Biden Admin, and so I FOIAd CEQ and USDA Office of the Secretary.

I’m still waiting on a part of the FOIA from CEQ; their FOIA folks are incredibly helpful, so a big shout-out to them, as well as USDA FOIA folks! Unfortunately, there’s apparently a relatively new White House review process that requires all FOIAs with messages with emails “who.eop.gov”  to be reviewed by the White House.. I guess this is the White House White House, not just CEQ,  OSTP, USTR ,NSC, OMB nor any of those other White House “Executive Office of the President” agencies. You can find all the EOP agencies  listed  here. From now on, I’ll just call the White House White House as in “who.eop.gov”  WH2.

It’s probably easier than calling them “Who”; could be confusing. As in “who’s on first” and so on. The good news is that one of our forest issues attracted the attention of someone in the WH2. Who? Why? What did they have to say? Time will tell, hopefully, when the review gets finished. Stay tuned. This review process seems to hold up transparency, which I think is a value of the Admin, so there’s that, or at least it was.

Biden plans to “bring transparency and truth back to the government to share the truth, even when it’s hard to hear,” she said.

I’m sympathetic, as saying you’re going to do things is easier than actually doing them.  I have the same problem.

Why NSC Was on Email Chain
According to sources, NSC is usually involved in Wildland Fire issues. According to these sources, USDA tried to involve NSC to get the debate at the CEQ.EOP vs. NSC.EOP level (more level footing), as opposed to CEQ.EOP vs. Department level. Seems like a good strategy for USDA, even if it didn’t work this time.  Perhaps the question was resolved at WH2. Thanks to FOIA, we should find out. And we should all thank TSW Contributor Andy Stahl for this opportunity to gain insight into the Department and EOP conflict resolution processes and the role of WH2.

Who Knew? Seed Orchards are Cool Again…

 

Just when you think everyone who knew about something is retired.. it becomes cool again.. reforestation, nurseries, and now at least one seed orchard! Since we are using them for good purposes now -as in climate adapation and carbon sequestration- reforestation is back to being white hat-ish at least.

Check out this video with Jad Daley of American Forests on a refurbished Gifford Pinchot NF seed orchard! As Jad says “let’s get to work on reforestation.” We finally have the bucks.

“Hey #Forests4Climate, coming live from this rehabilitated seed orchard on the Gifford Pinchot National Forest. Give a listen to hear the story, and how we can use REPLANT & other BIL/IRA funds to rebuild the #reforestation supply chain. ⁦”
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But…Pack Mules Never Go Out of Style
Thanks to the Hotshot Wakeup for this one.
The Deep Fire in the Shasta-Trinity National Forest has been using pack mules to shuttle supplies to firefighters punching in handline “deep” in the forest. Crews have made tremendous progress. Other incidents in California in remote areas are still chunking away. The Smith River Complex in the Six Rivers National Forest is now 57,200+ acres and the Happy Camp Complex is pushing 16,000 acres on the Klamath National Forest.
The mules seem surprising unconcerned about the fire; but then I’m more familiar with horses.  Let’s lift our Friday beverage glasses to the brave and helpful pack mule!
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Reintroducing Wolverines to Colorado
This Denver Post article is interesting on the “letting them come back on their own” vs. “reintroducing them” debate..

Natural wanderers

Colorado’s last wolverine lived here between 2009 and 2012 after traveling 585 miles over a few months from the northwest corner of Wyoming to the mountains west of Breckenridge, crossing two interstates, several mountains ranges and Wyoming’s vast and arid Red Desert.

M56 was the first wolverine seen in the state since 1919, but it didn’t stay put. It eventually wandered out of the state and was shot and killed on a ranch in North Dakota.

Data collected by the U.S. Fish and Wildlife Service shows that wolverines are moving back into some of their previous territories all on their own.

That’s why Colorado officials should wait for wolverines to reintroduce themselves instead of forcibly moving wolverines into the state, said Jeff Copeland, executive director of the Wolverine Foundation and a wildlife biologist who studied the species for more than 30 years.

Wolverines have moved back into all of the lower 48 states they previously occupied except Nevada, California and Colorado, Copeland said.

“Reintroduction is kind of happening on its own,” Copeland said. “The fact that we can see that and watch it is very exciting to me.”

Wolverines have been spotted recently in places where they hadn’t been for a century. In June, a young male was spotted three times in and near Yosemite National Park in California. Utah wildlife officials have confirmed several sightings.

The species’ rambling nature is what gives Copeland hope that a human-initiated reintroduction won’t be necessary in Colorado.

“It’s a very messy process,” he said. “It’s a last resort. It’s not the first choice because you’re going through a capture process, trying to capture these animals, transport them thousands of miles and then drop them off in completely new habitats and expecting them to live.”

Because wolverines do not live near each other, taking one or two will impact the ecosystem of that area, Copeland said.

But other advocates for the species said there is risk in waiting and hoping that wolverines reestablish themselves here. Even if a breeding pair make its way down south, more will have to follow to make sure there is enough genetic diversity, said Michael Robinson, senior conservation advocate at the Center for Biological Diversity.

“Colorado should do it on the principle that wolverines belong in Colorado,” Robinson said. “They’re part of the natural ecosystem and Colorado’s ecosystem can make a big difference.”

I also think it’s interesting how ideas about ecosystems and climate change are blended in this article.

“The governor continues to join so many Coloradans who share his enthusiasm for reintroducing the native wolverine, last spotted in 2009 in our state, to better restore ecological balance in wild Colorado areas,” Gov. Jared Polis’ spokesman, Conor Cahill,

So we need them to “restore ecological balance.”

Colorado’s high snowy mountains are the species’ largest unoccupied territory and will only become more important as a warming climate shrink the snowpack the wolverines need for dens.

“There is a real role for Colorado to play in conservation here,” Odell said. “Wolverines really need Colorado.”

So Colorado will be balanced (unless climate change gets worse) with wolverines, but Montana will be unbalanced if the wolverine habitat declines or goes away.  Does that mean once Montana enters the state of unbalance, it can or can’t get more unbalanced if other species exit or enter? Maybe balance is not a useful or meaningful concept in this context.

The most significant stressor on wolverines in the coming years will be climate change, according to an analysis by the Fish and Wildlife Service.

Wolverines create high-altitude dens in the snowy mountains in the winter and raise their kits there to keep them warm and protect them from predators. Wolverine mothers need deep snow that lasts long into the spring months.

That type of snow will become rare in the American West as the climate warms. Wolverines will lose an estimated 30% of their habitat in the lower 48 states in the next 30 years and 60% of their habitat here in the next 70, according to the National Wildlife Federation.

But will Colorado really be “balanced” just by getting wolverines back? Because that’s also said about wolves.. and grizzlies.  I think “wanting all species back everywhere they used to be” is a human idea but unlikely to happen due to climate change and a variety of other factors.  But ecosystems are not somehow “unbalanced” without them.. they are just.. different. 

 

 

 

 

 

House of Representatives v. BLM – monuments and the public lands rule

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Grand Staircase – “visitutah.com” (Larry C. Price)

Dismissal of a lawsuit against President Biden’s proclamation restoring the boundaries of the Grand Staircase and Bears Ears national monuments allows the NEPA process to develop a management plan for these areas to proceed unhindered.  Biden ordered the BLM to work on replacing the Trump Administration’s resource management plan, and the BLM published its draft RMP on August 11 for public comment.

BLM may proceed unhindered, that is unless Congress decides to hinder them.  The FY2024 Interior, Environment, and Related Agencies Bill the House Appropriations Committee passed in July, which the full House of Representatives is expected to vote on in September, includes a rider that would require the BLM to manage the Grand Staircase NM in accordance with the plan finalized after Trump reduced the monument.

Which is the better planning process – RMPs based on public involvement through NEPA or RMPs based on appropriations riders?

The bill would also deny funding to implement the BLM’s public lands rule (a popular topic with many posts here from Sharon).  Another bill would force BLM to withdraw the rule (without considering all those public comments).

Kya Marienfeld, wild lands attorney for SUWA, called the Utah congressional delegation’s lack of support for the state’s public lands disappointing but adds that opposition is offset by more enlightened members of Congress who actively support the Grand Staircase and other public lands.

Appropriation riders seem to be kind of crap-shoot in the turmoil of budget negotiations, so I have no idea what the betting line would be on President Biden signing off on this one.  The “more enlightened members of Congress” may have more of an influence on defeating the withdrawal proposal.  Is that a bad thing?

 

 

CEQ NEPA World and Your Alternative Framings of Improving NEPA Processes

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I’m going to share my story of how I came into the NEPA business, because I think it’s relevant to why I look at it differently than many. It also tells the story of how much difference small interactions can make in the lives of individuals. When I worked in the WO (Washington Office) R&D (the Vegetation Management and Protection Research staff, known colloquially as “Vampire”), we were tasked with writing an answer to a journal article.. (perhaps the Beschta report?) that silviculture folks could use when writing NEPA documents. I remember Chief Gail stopping by our staff area and thanking us for being helpful. This made a big impression on me, as some research administration jobs involve laboring in obscurity and not being appreciated. But just the Chief making a point of thanking us planted a seed in my brain that there were jobs with higher degrees of practical outcomes and appreciation.

I had worked with an individual (I will call her JR) who encouraged me to apply for a job on the NEPA staff there in DC. She likely had the greatest impact of anyone in this whole story. I had probably the worst background of anyone, but the EMC Director at the time, Fred Norbury selected me. He said it was because he wanted a fresh set of eyes and that he thought my science background would be helpful. This was right around the time of Process Predicament- an effort to streamline decision-making and NEPA. I ended up being involved with many interesting things- CE development, the NEPA side of the 2005 Rule, the initiation of PALs, and the staff folks were terrific. So there are two points to this story, first that Chief Gail and JR made a great difference in my career just by encouragement at the right time and place. And second, Fred had to roll the dice with someone inexperienced. And of course, Fred and the Deputy, Pam, and the NEPA staff welcomed me with a generous spirit despite my background.

So if I see things differently than many, my background may be a reason.


CEQ NEPA World

One part of my job in NEPA was to attend inter-agency meetings with the NEPA reps from the agencies. There were certain themes I heard from CEQ. They basically were of the genre, “if you would just do things correctly, there wouldn’t be a problem.”

There were several elements to this.

1. Why do you write so much? We have guidance.
2. Why don’t you use more programmatics?
3. If you engaged with people more and did it correctly, then they wouldn’t litigate.

But that wasn’t what I saw or heard in the field. I saw a complex ecosystem of ID teams, NEPA practitioners, contractors, scientists writing a variety of papers, lawyers, case law and judges. It’s known that bullet-proofing documents (or at least attempting to do so) is a thing. OGC was always interested in being able to defend our decisions, and so that placed them at odds, to some extent, with CEQ’s views. And practitioners in the middle. In my previous work experience, I would have thought the CEQ question would be “how can we work with you agencies to make NEPA work better? let’s talk in depth” But the feeling seemed to be “things would be fine if you do what we say.”

When I worked in R2 in planning later, I attended a multi-agency NEPA meeting on analyzing climate in NEPA documents. Most of us said that the place to analyze carbon emissions from fossil fuels was at the power plant permitting level, not for each project. But again, the over-riding value seemed to be “more analysis is always better, unless you write too much and not in plain English.” For me coming from a rational kind of science background, I just didn’t get it, and still don’t. Writing complex documents with analyses that will stand up in court is really hard work. Or at lest that’s my observation.

Then there’s almost a religious belief in the value of programmatics, which again goes against the lived experience of many folks in agencies. The problem is that if it takes you two years to do a programmatic, then by the time you do an actual project the information can be outdated (or claimed to be by plaintiffs) and you end up redoing it anyway.

My World

In my world, on the other hand, people don’t want certain kinds of projects. We don’t know why really.. you can call them NIMBYs, say for renewable projects, but they might really care about the environment. Who knows? What we do know is that if they hire attorneys, then each process step that agencies engage in, and all the documents and emails and texts, will be scrutinized in great detail to find potential flaws.

I agree that the best public engagement should be a goal. Writing concise documents should be a goal. But at the end of the day, at least in the FS, people may still disagree because, say, they didn’t get everything they wanted (think NFMA planning) and have enough interest and resources to litigate. Judges decide that, for example, the Black Ram project analysts did not do enough climate analysis, or the poor folks at the BLM (home of many unpopular projects) did not analyze something “correctly”. All of this, to my mind, has a “both things are true” element.

1. There are poorer jobs and better jobs of analysis and documentation in terms of litigation-proofing
2. The judge (and DOJ representation) can ultimately be a crapshoot in terms of wins or losses

Does this remind you of the psychological experiment where sometimes the rat pressed the lever and got a treat and sometimes got a shock? You can do a really great job and have it thrown out for a redo based on random stuff. As OGC folks once told me.. “yes the Judge is wrong, but he is young, and if we point it out, he will have a bad taste in his mouth for the FS and he has a long career ahead of him.”

There is a trade-off between litigation-proofing, obviously, and having concise documents. There is a trade-off between full public engagement and Tribal consultation. and time limits for EIS’s. There is a kind of a no-frills strategy that might work. For example, I worked on one project that (some) readers of TSW and their allies really didn’t like. The FS tried not to go overboard on the analysis, and the judge said do more alternatives, then the alternatives weren’t fleshed out adequately and so on. I don’t remember how many times it went back and forth. I kind of like this strategy, but it does lengthen the time, and may actually tick off the judge after a while if it goes to the same judge. Plus it would tie up the courts, who might have better things to do than read about the climate analysis of a thinning project, or having a roomful of lawyers and the judge discuss whose air quality model is better.

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Permitting at least for renewables and transmission, is now a big thing. But I think we need to talk about framing the issue before we talk about solutions.

I’d like to hear how you all see your own NEPA World, and next post about the CEQ Proposed Regulations and elements therein that suggest CEQ World hasn’t changed much in the last 10-15 years or so. If you want to write a post instead of a comment, please send to me at the email in the donate widget on the right.

BLM Range Whistleblower and Potential Risks of Bundy-Phobia

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he Rio Grand River flows on Feb. 16, 2022, near Monte Vista. RJ Sangosti, The Denver Post

The Denver Post had an intriguing story  about a BLM whistleblower:

Melissa Shawcroft, who has been a BLM rangeland management specialist since 1992, is facing a two-week unpaid suspension after her supervisor disciplined her over discourteous emails and a failure to follow rules. Shawcroft is arguing that the discipline is retaliation for her insistence that the Bureau take action to stop area ranchers from trespassing by allowing their livestock to graze on BLM property without permits.

The illegal grazing has gone unchecked for years on the nearly 250,000 acres she manages and her pleas for enforcement, which must be authorized by her supervisors, have gone unheeded, she said. Shawcroft has documented damage to the land and riverbanks and has heard repeated complaints from ranchers who pay to use BLM land.

The way the above sentence is written it sounds as if illegal grazing has gone on on all 250K acres. This seems unlikely.

“I’m sick and tired of them telling me it’s my job to solve the problem when I don’t have the authority to do it,” Shawcroft told The Denver Post. “I jabbed at them and they fired back.”

The Bureau has the power to impound livestock or levy fines, but managers are timid because they fear another armed standoff similar to the ones led by the Bundy family in Oregon and Nevada, Shawcroft said. In 2014 in Nevada, Cliven Bundy, his family and an armed militia organized a standoff with federal agents who had come to round up the rancher’s cows that were illegally grazing on federal land.

“They come right out and tell me we don’t want another Bundy situation,” Shawcroft said.

Steven Hall, the BLM’s Rocky Mountain communications director, said the agency does not comment on personnel issues, but the agency takes unauthorized grazing seriously and is adopting measures to better enforce the rules, he said.

Under federal law, livestock may graze on Bureau of Land Management property when a rancher holds a permit authorizing the land use. Permits are passed down through families and rarely become available for purchase.

The permits determine how many cattle, sheep or horses a rancher can place on federal land and which months the animals are allowed to feed on it. Those rules protect the land from overgrazing and give grass, brush and water time to recover throughout the year.

Shawcroft manages rangeland along the Rio Grande River where property on the east side is private and cows and horses are crossing the river to the federally-owned Rio Grande Natural Area on the west side, she said.

If it’s true that BLM managers said that.. is Bundyism (fear of armed conflict) a real thing, or an excuse?  Reminds me a bit of the FS claiming escaped prescribed burns were due to climate change.  Bundys are a thing. Climate change is a thing.  But both things can also be used as excuses for not doing better.  When we read these things, we need to think about which is which.

Interestingly, the ones who are most irritated are .. other ranchers.. who apparently are not going All Bundy on the law-breakers.

Area ranchers who pay for the permits are complaining that law-breakers are ruining the land for their livestock. It’s such a problem that “chronic livestock trespass” was on the June agenda for the BLM’s Rocky Mountain Resource Advisory Council meeting.

At that meeting, Dario Archuleta, the acting field manager for the BLM’s San Luis Valley field office, said there is a “fine-tuned administrative process they believe will be vastly more effective than the criminal approach,” according to minutes from the meeting.

Archuleta told the meeting’s attendees that the process for impounding livestock is lengthy and complicated and that courts have been lenient on violators.

The BLM has assigned up to 14 employees to address unauthorized grazing through site visits that require a minimum five-hour time commitment, including travel, Hall told The Denver Post.

The agency also has implemented a new GIS tracking tool to collect data such as identifying livestock and the improved documentation has resulted this year in trespass notices being issued, Hall said.

Shawcroft is represented in her complaint by Public Employees for Environmental Responsibility, a non-profit that works with public employees who want to point out government wrongdoing.

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The Bureau of Land Management named Shawcroft its range management specialist of the year in 2012 and she’s only had one other disciplinary action taken in her 31-year career, Jeff Ruch, PEER’s Pacific director said.

“She doesn’t mince words and apparently some of her male supervisors took offense,” Ruch said. “The idea that you’re being hit with a heavy sanction when you use words like ‘gumption’ in an email strikes me as an overreaction.”

Now, having been involved in a variety of different personnel difficulties, I am sympathetic to everyone involved, and especially the HR and Labor Relations who I’m sure are trying to sort things out. I wonder what the maleness of (some) supervisors has to do with it. Perhaps this is intended to imply that male employees can get away with more acerbic statements? Curious.

Here’s what PEER says:

On July 28, 2023, Melissa was served with a proposed 14-day suspension without pay for a series of four emails dating back to December 2022 in which she expressed consternation at BLM’s hands-off posture on grazing trespass. In one email, she questioned the agency’s lack of “gumption” and in another whether the agency would “live up to the task of taking care of our resources.” For those emails, she is charged with “discourteous” behavior.

IF this is all it is.. I would say I have read many snarkier emails in the FS about FS activities. On the other hand, when it comes to personnel issues, there are at least two sides to every story.

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Recent Endangered Species Act Litigation – August 2023

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The York fire burns Joshua trees in the Mojave National Preserve in California on Sunday, July 30.                                                                                                 Ty O’Neil/AP

Court decision in Wilderness Watch v. U. S. Fish and Wildlife Service (D. Mont.)

On August 2, the district court granted a preliminary injunction against the construction of a pipeline (including heavy machinery, temporary roads and disturbance of the land) to benefit Arctic grayling in the Red Rock Lakes Wilderness of in a national wildlife refuge in southwestern Montana.  The court held, “Ultimately, in light of the Wilderness Act’s strict requirements, the mere possibility that the proposed action may aid in Arctic grayling conservation is not enough to create necessity.”  The possible availability of alternatives that would not affect the wilderness character was also a factor working against a finding of necessity.  (The article has a link to the opinion.)  A lawsuit against the FWS decision to not list the grayling as threatened or endangered is pending (described here).

Notice of Intent to Sue

On August 3, WildEarth Guardians notified the U. S. Fish and Wildlife Service of its intent to sue the agency for denying its petition to list the Joshua tree under the Endangered Species Act.  The FWS decision followed a previous lawsuit where their previous denial was reversed due to inadequate consideration of the effects of climate change.  This notice cites climate-related wildfires and lack of regeneration.  (The press release includes a link to the Notice.)

Settlement of Red Wolf Coalition v. U. S. Fish and Wildlife Service (E.D. N.C.)

On August 9, the FWS, Red Wolf Coalition, Defenders of Wildlife and Animal Welfare Institute signed a stipulated settlement agreement to resolve this case filed in 2020.  This followed a preliminary injunction against a 2015 agency policy prohibiting the release of captive red wolves into the Red Wolf Recovery Area (focusing on the Alligator River National Wildlife Refuge) where the court held, “reversal of the prior policy to release captive red wolves into the wild population and engage in proactive and regular adaptive management to address coyote hybridization have had significant adverse impacts and will hasten the extinction of red wolves in the wild.”  The FWS agreed to cooperatively develop and publicize red wolf release plans for the next eight years.  (This article includes a link to a press release that links to the settlement agreement.)

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (M.D. Fla.)

On August 9, CBD and Nokuse Education, Inc. sued the FWS for denying protection to the gopher tortoise under the Endangered Species Act, stating, “Unfortunately, a mere three percent of the gopher tortoise’s historical longleaf pine ecosystems currently remain, and all upland habitats frequented by the tortoise are steadily being degraded and destroyed by encroaching development, poor habitat management, and climate change.”  Gopher tortoises in parts of Louisiana, Mississippi and western Alabama are currently protected, but those in in Florida, Georgia, South Carolina and most of Alabama are not.

Court decision in Center for Biological Diversity v. Haaland (D. D.C.)

On August 11, the district court agreed with plaintiffs that, while the Fish and Wildlife Service had created plans for three wolf subspecies, those plans are in three distinct regions of the United States (northern Rocky Mountains, Mexican wolf and eastern timber wolf) and left 44 states where the gray wolf is listed as endangered without a wolf recovery plan.  The judge refused to dismiss the case against the FWS, but the ultimate relief has not been determined.  The ruling would not directly impact wolves in Alaska, or the northern Rocky Mountain states of Idaho, Montana and Wyoming, as well as wolves in certain portions of Oregon, Washington and Utah.

Court decision in Natural Resources Defense Council v. U. S. Fish and Wildlife Service (D. D.C.)

On August 11, NRDC prevailed for a fourth time in its pursuit of protection for the rusty patched bumblebee.  This time a court invalidated the determination by the FWS that designation of critical habitat would not be “prudent,” an exception sometimes allowed by ESA.  The bee is native to the upper midwest, and has been found on the Chippewa National Forest.

 

A success story or a future lawsuit?

The U.S. Fish and Wildlife Service has proposed to remove the Apache trout from the list of threatened species.  It is found in the White Mountains on the Apache-Sitgreaves National Forest, and the Forest Service is credited with assisting the White Mountains Apache Tribe and others with habitat restoration and non-native fish removal to support recovery of the species.

“There’s been good progress toward bringing Apache trout back from the brink of extinction, but it’s way too soon to strip protections for these remarkable fish,” said Robin Silver, of the Center for Biological Diversity. “Their habitat has been hammered by grazing and fires, and they won’t survive without the Endangered Species Act’s safeguards. Non-native trout and growing dangers from climate change also jeopardize the trout’s survival.”

 

More on the North Big Bear Landscape Restoration Project and Hanson’s Views

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Thanks to Jon for another excellent litigation round-up on Friday!

Both Larry and I are familiar with the San Bernardino National Forest. Both of us were dubious as to Hanson’s claim this project involves fuel treatment “in the remote wildlands” . So I looked up a map for the project.

From

From this map, you can see the miles from the project to WUI areas. But if you aren’t aware of the built environment around Big Bear Lake, here is a Google map

The Decision Notice had some nice descriptive photos, so here they are:

 

 

When I’m working on MOG and hear “leaving things alone is best for carbon” I think of places near my house that look something like the next two photos.

Personally, I’d like Mr/Ms Old Growth Jeffrey to survive a fire.

The project’s around 12K acres of treatment and has a 49 page EA.  The separate response to comments is 21 pages; it has many specific answers to various scientific studies submitted in the comments. This project also has its own fairly extensive monitoring plan.

Here’s what Hanson says in an LA TV news story.

According to the lawsuit, the last time the San Bernardino National Forest conducted a similar restoration project was in the early 2000s, prior to the devastating Grass Valley Fire of 2007 that burned 199 homes.

Hanson said such an approach makes homeowners in the wildlands subject to even greater fire risk. He said the Forest Service should instead focus on making 100-foot perimeters of defensible space around homes in the forest.

“When they remove a lot of trees it actually makes the fire burn faster through those areas, and that often times is toward towns,” Hanson said.

I think this is something different from usual, a bit of an escalation,  from “fuel treatments don’t work” to “sure less fuels mean big trees don’t die, but the fire itself can move along the ground faster and go toward towns.”  That’s not fire suppression folks’ experience but…the FS couldn’t speak to reporters due to litigation.   So the reporter had to poke through the documents. Which is kind of a painful way to get info for someone on the clock.

Seems like we as a community (at least those of us who support fuel treatments) should be able to do better in terms of being able to talk to reporters.  In the old timber wars days, reporters could always call AFRC- but when there’s no timber, now there’s no one for reporters to call.   Perhaps something to work on.  People Living With Wildfire? Wildfire Adaptation Network?.. Conservationists for Wildfire Adaptation? No, it needs a good acronym.

 

Public Lands Litigation – update through August 17, 2023

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FOREST SERVICE CASES

Court decision in Alliance for the Wild Rockies v. Marten (D. Mont.)

On August 3, the district court found that consultation with the Fish and Wildlife Service on the recently revised Helena-Lewis & Clark forest plan did not properly account for the “amount and effects on grizzly bears of unauthorized motor vehicle access, failures of road closures, and roads that were supposed to be closed according to travel plans on the Forest that are still physically open.”  The analysis ignored substantial available evidence of motorized use of roads that were considered closed in the analysis, and it significantly underestimated both the amount of actual road use and the impacts on grizzlies.  The court required reinitiation of consultation on the forest plan, as well as for four travel management plans for road-related effects.  For two of the travel plans, this was required to address new information about unauthorized motorized use, and the other two violated incidental take requirements by counting physically open roads as closed.  (The article includes a link to the opinion.)

Court decision in Idaho Conservation League v. U. S. Forest Service (D. Idaho)

On August 4, the district court upheld the Caribou-Targhee National Forest’s second try at authorizing Excellon Idaho Gold’s Plan of Operations for the Kilgore Gold Project.  The court found that an EIS was not necessary and that the EA adequately addressed impacts, primarily related to water.  It also found no substantive violation of the Forest Service’s Organic Act.  (The article links to the proponent’s website for a link to the opinion.)

Court decision in Oregon Wild v. U. S. Forest Service (D. Or.)

On August 4, the district court allowed the Fremont-Winema National Forest to proceed with nearly 30,000 acres of logging under the categorical exclusion from an EIS for “timber stand and wildlife habitat improvement.”  We discussed that here.

Court decision in Appalachian Voices v. U. S. Department of the Interior, The Wilderness Society v. U. S. Forest Service, Wilderness Society v. Bureau of Land Management (4th Cir.)

On August 11, the circuit court dismissed this long-running case in response to Congressional intervention, but not without two concurring opinions criticizing the process.  (The article has a link to the opinion.)  “I think this is the end of the potential legal challenges, really, when it comes down to it,” said attorney Jared Margolis of the Center for Biological Diversity, one of several groups challenging the project in court.

But wait!  Private owners of land the pipeline would cross continue to contest the use of eminent domain on their properties.  They now argue that Congress cannot deprive them a constitutional right of judicial review of FERC allowing private companies to condemn their private property for the pipeline.

New lawsuit:  Friends of the Big Bear Valley v. U. S. Forest Service (C.D. Cal.)

On August 15, three environmental groups, also including The John Muir Project and the San Bernardino Valley Audubon Society, filed a lawsuit against the North Big Bear Landscape Restoration Project on the San Bernardino National Forest.  They allege violations of NEPA, NFMA and administrative objection regulations. Chad Hanson characterizes the disagreement as about whether fuel reduction should occur “in the remote wildlands” or immediately around homes.  (The article includes a link to the complaint.)

Notice of intent to sue

On August 17, the Center for Biological Diversity filed a notice of intent to sue the Forest Service and Fish and Wildlife Service over the Mud Creek Project on the Bitterroot National Forest.  The project would arguably affect listed bull trout and pioneering grizzly bears, recently reappearing in the Selway-Bitterroot recovery zone.  The news release describes a condition-based environmental analysis: “The Forest Service approved the timber sale without identifying the locations, timing or scope of the logging units or roads. Instead, the agency said it will make those decisions when crews are on the ground, which inhibits analysis of potential harm to protected species and prevents public involvement.”  (The news release includes a link to the NOI.)

Court decision in Center for Biological Diversity v. U. S. Forest Service (and a consolidated case) (D. Mont.)

On August 17, the district court vacated the Kootenai National Forest’s decision on the Black Ram vegetation management project because it violated NEPA, ESA and NFMA.  The issues primarily involve grizzly bears in the Cabinet-Yaak recovery zone, their declining population and the effects of unauthorized motorized use.  (The article includes a link to the opinion.)

While the Payette National Forest considers a proposal to reopen and expand operations of the Stibnite mine (gold, silver, antimony), the new operator has settled a Clean Water Act lawsuit by the Nez Perce Tribe related to ongoing pollution from the existing mine on patented private land.  Perpetua Resources will pay $5 million to the Tribe to fund water quality improvement projects on the South Fork of the Salmon River and cover litigation costs.  The settlement leaves unanswered the degree to which the company is or is not responsible for legacy pollution at the site.  (The Forest Service was not a party to this case.)

Criminal conviction under the Archaeological Resources Protection Act of 1979

ARPA is a federal law that governs the excavation of archaeological sites on federal and Indian lands in the United States, and the removal and disposition of archaeological collections from those sites.  The defendant in this case was convicted of using a tractor to illegally excavate an archeological site within the Desoto National Forest that had been designated as a protected site because it contained material remains of past human activities that are of archeological interest.  (Sentencing has not yet occurred, but the indictment sought forfeiture of his Massey Ferguson tractor.)

BLM CASES

New lawsuit:  Southern Utah Wilderness Alliance v. United States Department of the Interior (D. Utah)

On July 31, SUWA challenged the BLM’s authorization of the Sevier Playa Potash Project, near Sevier Lake (south of, and similar to, Great Salt Lake), alleging NEPA violations.  Potash is used in fertilizer, and world supply has been disrupted by the war in Ukraine.  Plaintiffs would have supported development of the southern portion of the project, which would avoid impacting wetlands.

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (10th Cir.)

On August 7, the circuit court affirmed the lower court’s approval of the BLM’s decision to allow Jonah Energy to drill 3500 natural gas test wells over 10 years in the “Path of the Pronghorn” (discussed here) and sage-grouse habitat, and its compliance with the “National Environmental Protection Act.”  Applications for permits to drill will still need to address site-specific effects.  (The article has a link to the opinion.  This article discusses the claims in more detail.)

Court decision in Western Watersheds Project v. U. S. Bureau of Land Management (D. Ariz.)

On August 9, plaintiffs were given partial relief in response to their lawsuit over BLM’s management of livestock grazing in the Sonoran Desert National Monument.  This is the second time a court has remanded the 2012 resource management plan due to flawed assumptions in the analysis of the effects of grazing (pursuant to NEPA).  The court upheld compliance with the National Historic Preservation Act and the Federal Land Management Policy Act.  (The article contains a link to the court’s order.)

The FLPMA claim included various substantive allegations that the RMP “failed at the programmatic level to protect Monument objects.”  The court concluded that grazing decisions were similar to the logging decisions addressed by the Supreme Court in the Forest Service Ohio Forestry case, and since site-specific protection could still occur, the question of adequate protection would not be ripe until a specific grazing project is proposed.  Here is the court’s understanding:

“Plaintiffs argue that BLM’s decision to “punt grazing management to future allotment-level decisions” will obscure larger-scale impacts of grazing across allotments, but the record does not reflect that BLM would make implementation-level decisions without considering each decision’s impact on the Monument as a whole.”

  • Wild horses

A federal judge in a Nevada case has allowed a wild horse gather to continue despite the deaths of 31 horses among 2500 gathered.  He could not find “there are inhumane treatments with these incidents.”  A representative of the plaintiff Wild Horse Foundation gives their perspective here.  Among other things, they’d like to see more management planning for habitat preservation.

A new lawsuit has been filed in Oregon by The Cloud Foundation seeking more transparency in wild horse roundup activities.  The plaintiff is pushing for the use of non-obtrusive cameras at all aspects of the roundup including on helicopters, at trap sites, and temporary holding pens.

OTHER CASES

Court decision in Garfield County v. Biden (and a consolidated case) (D. Utah)

On August 11, the district court dismissed two cases from Utah state and local government entities and other parties challenging President Biden’s restoration of the Grand Staircase–Escalante and Bears Ears National Monument boundaries in Utah:  “President Biden’s judgment in drafting and issuing the proclamations as he sees fit is not an action reviewable by a district court.”  Plaintiffs could not point to anything that waived the president’s sovereign immunity from litigation.  They are appealing this decision.  (The article includes a link to the opinion.)

Court decision in State of Wyoming v. U. S. Environmental Protection Agency (10th Cir.)

On August 15, the circuit court affirmed EPA’s approval of plans to reduce air pollution at two Wyoming coal plants affecting national parks and wilderness areas designated as Class 1 under the Clean Air Act.  It remanded a third that it found to be overly restrictive based on an error in EPA’s evaluation.  Environmental intervenors had argued that the plans were not restrictive enough, as explained in this article (which includes a link to the opinion.)

FISH AND WILDLIFE SERVICE – update next week

 

 

 

 

Friday Roundup: Renewable Resistance, European Wolf History and King Cove Update

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Lava Ridge Wind Project Extended Post- DEIS and Comment Period into Next Administration

It seems like the Biden Admin is doubling down on efforts by their conservation friends (e-bikes, Monumentizing, conservation leasing), and possibly throwing their renewable friends under the bus.
People didn’t want Lava Ridge, but then local people seldom want big wind projects. So I wonder what the political calculus was about this one? If someone knows the inside scoop, please share at my email on the donate widget to the right. Privacy provided.

Still No Wolves For You, And Some Wolf History

Colorado Sun article. There was an initiative put on the state ballot to reintroduce wolves, even though they were moving down on their own from Wyoming.  Colorado Parks and Wildlife seems to have done an excellent job of listening to people about this and coming up with a plan.

Well worth a read.

One thing that caught my eye was this:

Lambert credits the negative perception of wolves to a much older source: the colonization of North America.

“When white, colonizing Europeans hit North America, they were kind of shocked to encounter animals that they had completely extirpated in Western Europe,” she said.

One thing I have found is that not many people are familiar with European history at the points when people left for what is now the US. If we took the timing of Spanish colonists in Santa Fe (since the British weren’t here in the west at that time) as 1610, well.. here’s what Wikipedia has to say about wolves in Western Europe (check out the decline).

If we take Spain specifically, here is a journal article that says:

Wolf records were widely distributed in mid-19th century Spain, being present in all its mainland provinces. The probability of occurrence was positively associated with landscape roughness and negatively with human population density and the landscape suitability for agriculture.

Perhaps the story is simpler. Wolves ate livestock there and were killed.  People moved to North America, where wolves ate livestock and people killed them. Also there’s the issue of wolves killing people, which Wikipedia also has an entry on.  My point is not that wolves are currently killing people here in the US; my point is that it was not unreasonable for people from countries where wolves-killing-people happened at times that wolves-killing-people was going on, to be afraid of wolves-killing-people.  For example, if you migrated to the US from India in the 1800’s, at least from the provinces mentioned below, it would seem fairly reasonable.

Records of wolf attacks in India began to be kept during the British colonial administration in the 19th century.[33] In 1875, more people were killed by wolves than tigers, with the worst affected areas being the North West Provinces and Bihar. In the former area, 721 people were killed by wolves in 1876, while in Bihar, the majority of the 185 recorded deaths at the time occurred mostly in the Patna and Bghalpur Divisions.[34

There’s a Denver Post story with more interesting details about the other States’ willingness or not to give up their wolves. For example,

Montana officials, too, are still considering Colorado’s request, said Brian Wakeling, game management bureau chief at Montana Department of Fish, Wildlife and Parks. The state’s Fish and Wildlife Commission would make the final decision on whether to send wolves to Colorado.

Under state law, Montana wildlife officials would have to complete an environmental assessment before the commission could make a decision, he said. They may also want to complete a more rigorous environmental impact statement because of the controversy surrounding wolves, which could slow down decision-making, Wakeling said.

“It’s hard to sit here today and tell you whether that would take six months or a year,” Wakeling said.

Then there’s getting a 10j rule from the feds. The deadline, based on the initiative is Dec. 31.

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Wind and Solar Resistance: Not Just Here

Robert Bryce wrote a lengthy piece on his Substack, summarizing local resistance around the world as well as links to his Renewable Rejection Database. Here’s one example from Israel. I wonder how many other rural people feel “an almost sacred bond” for land “passed down by generation.” The concept of “you need to lose so that other people can win” is an uphill push politically. Much depends on “what are the alternatives?” and our sympathies for the people feeling the pain.

On June 24, The Times of Israel reported that “The head of the Druze community in Israel, Sheikh Muafak Tarif, has warned the government to stop the work to construct wind turbines in the Golan Heights, or face ‘a reaction the country has hitherto not seen.’” The article continued, saying the wind project has:

Angered Druze villagers who see the project as a threat to their agrarian way of life, an encroachment on ancestral lands and a solidification of what they view as Israel’s occupation of the territory. They contend that the giant, soaring poles and the infrastructure needed to construct them will impede their ability to work their plots. They also say the turbines will disturb the almost sacred bond they feel to their land, which is passed down by generation and where families go for fresh air and green space.

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Native Alaskans Flout or Flaunt: King Cove Version

I’ve been trying to reverse engineer who really has the ear of the Biden Admin by noting when they flout the wishes of Indigenous people and when they flaunt them. Certainly the recent Monumentizing in Arizona was a flaunt. King Cove, however, remains a flout. From June of this year, on Alaska Public Media.

The Trump administration agreed to a land swap in 2019 that would allow construction of the road. But President Biden’s Interior secretary, Deb Haaland, said the department wouldn’t go through with it and moved to pull out of the agreement this March.

On June 15, the court of appeals sided with the Department of the Interior, and granted Interior’s motion to dismiss the case.

“We’re glad to see the Izembek court case wrap up after the Interior Department’s withdrawal of the challenged land exchange,” said Bridget Psarianos, an attorney with Trustees for Alaska, a non-profit environmental law firm.

But lawyers for King Cove argue that the land exchange is still valid. They say the land exchange agreement can only change if a future court rules favorably on the decision to withdraw, and that they couldn’t just dismiss the motion in court.

“We believe the land exchange is still legal and valid,” said Della Trumble, the chief executive of King Cove Corp. in a statement. “As Native people, we will continue to fight for our rights and demand tribal consultation, which the Department of Interior failed to honor before executing its March 14, 2023 decision to terminate the land exchange.”

Although the Department of the Interior pulled out of this particular land swap, it said it’s looking into alternatives.

Who were the plaintiffs?
National Audubon, The Wilderness Society, Defenders of Wildlife, National Wildlife Refuge Association, Friends of Alaska National Wildlife Refuges, Wilderness Watch, Alaska Wilderness League, Center for Biological Diversity, and Sierra Club.

Little E-Bike Drama on the Front Range: Perhaps BLM HQ Should Take Note?

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If you’ve been around long enough, you’ve seen everything, sometimes more than once.  Nature Deficit Disorder continues to be called out as a problem.  And after Covid, too many people are outside recreating..  which goes back to the argument of SUWA in the previous post on BLM’s E-bike “Instruction Memorandum.”

Brawer said that adding motorized mountain bikes “to already crowded trails necessitates the caution and further study provided for in this new guidance.”

This Denver Post article tells a more hopeful story about e-bikes.. on the Front Range, it’s turned out to be no big deal.

Just suppose, as I’ve observed (don’t know if there’s a study) that more old people use e-bikes.  Would this be age discrimination in access, then?  Many old people have disabilities.. would that be discrimination against the disabled?

I’m not saying this as an argument for bikes in Wilderness, just for e-bikes as a variety of mountain bikes on mountain bike approved trails.   Then there are at least two enforcement problems- you would have to see that that they are electric, and the confusion of adjacent jurisdictions with different rules makes it easy for people to claim ignorance or really not know. Finally, what would people in DC know about adjacent lands’ rules, or problems specific to an area? The whole “we know more research” rationale sounds to me like bunkum.

I bolded the relevant bits.

“There was no tolerance in our visitors for something with a throttle on a natural-surface trail,” said Mary Ann Bonnell, Jeffco Open Space visitor services and natural resources director.

“We heard that loud and clear,” she added. “We do not allow the Class 2, where you can have the power without pedaling. People said, ‘Nope, don’t want to see it. Don’t want to see someone flying up a hill and not pedaling.’”

But after five years, the county hasn’t found that e-bikes increased conflicts or created safety concerns, Bonnell said. “People continue to fall and have crashes on their mountain bikes, we continue to field complaints about conflicts, but they are not tied specifically to e-bikes.”

A mountain biker rides the singletrack trail on national forest land in Placitas, N.M., on July 8, 2019. Electric mountain bikes are prohibited on national forest land. (Photo by Susan Montoya Bryan/Associated Press)

In national forests, e-bikes are considered motor vehicles, so they are allowed only on roads and trails designated for motorized use. In Rocky Mountain National Park, e-mountain bikes can only go on roads where motor vehicles are allowed, paved or dirt. (It should be noted that human-powered mountain bikes are not allowed on the park’s hiking trails, either, with one small exception on the west side of the park.) In Colorado state parks, Class 1 and 2 e-bikes are allowed on roadways, designated bike lanes, and multi-use trails open to non-motorized cycling.

Boulder County Open Space allows Class 1 and Class 2 e-bikes on its flatland trails, and has since 2019, but neither are allowed on its mountain trails. But the city only started allowing Class 1 and Class 2 e-bikes on 39 miles of its 155-mile open-space trail system this month.

“As e-bikes were not allowed on city open space trails before July 1, we do not have statistically valid data for e-bike use on open space trails,” said Phillip Yates, a spokesman for Boulder Open Space and Mountain Parks, via email. “E-biking will be added as a new category in future visitor surveys, alongside all other allowed activities, to track change over time as part of system monitoring. That will allow staff to report out changes, if any, that may be attributed to e-biking activity on the open space visitor experience.”

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The difference in how park and open space managers regulate e-mountain bikes reflects what is happening in Front Range municipalities. Denver allows all three types of e-bikes on bike paths, but with speed limits of 15 mph. Arvada passed an ordinance in January of 2021, allowing Class 1 and Class 2 e-bikes on its bike paths. Lakewood allows Class 1 and Class 2 bikes on bike paths. Class 1 e-bikes are allowed on Lakewood’s soft surface trails, including at Bear Creek Lake Park and at William Fredrick Hayden Park on Green Mountain.

Before making its decision, Jeffco Open Space interviewed more than 400 visitors in five parks in 2017 to glean their thoughts about the issue. The agency also sent out volunteers on e-mountain bikes, then asked visitors if they had noticed any e-bikes on the trail, and many said no. Satisfied that the presence of e-mountain bikes would have minimal impact on other users, Jeffco moved forward with e-bikes as a pilot program in 2018 and updated its park regulations the following year to make it permanent.

A cyclist rides his bike along Shadow Pine Loop, an area where fire mitigation projects have taken place, at Flying J Ranch Park in Conifer on Sept. 20, 2022. Jeffco Open Space allows electric mountain bikes. (Photo by Helen H. Richardson/The Denver Post)
A cyclist rides his bike along Shadow Pine Loop, an area where fire mitigation projects have taken place, at Flying J Ranch Park in Conifer on Sept. 20, 2022. Jeffco Open Space allows electric mountain bikes. (Photo by Helen H. Richardson/The Denver Post)

“Every time it comes up, I have this sigh of relief that we took care of this in 2017, because I feel really good about how we made the decision,” Bonnell said. “We did a ton of data collection, getting in people’s heads, public meetings, meeting with stakeholders. I really feel like we did a thorough job. I feel good about the decision, and I also feel like it has played out well.”

Some visitors raised concerns that people on e-mountain bikes would get lost, or injured, or would call rangers for assistance with dead batteries miles from the trailhead. “That hasn’t happened,” Bonnell said. “Conflict continues between riders and runners and hikers, but it’s not e-bike-related conflict.”

Gary Moore, executive director of the Colorado Mountain Bike Association, said while some mountain bikers have expressed displeasure on social media statewide, the impact of e-mountain bikers on trails has been negligible.

“Any conflicts between trail visitors continue to be more of a matter of the people themselves,” he said, “rather than their preferred mode of travel. You see them pretty much anytime you go out now.”

Meanwhile, Jay Bollinger loves having his wife with him and their boys, who are 10 and 15, on the trails.

“It’s been really good,” he said. “She’s still regaining her skills, but it allows her to keep up, rather than being the one who’s slowing everybody down.”

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Rather than sending requests to DC, another option would be to work with stakeholders directly involved like Jefferson County did. After all, that’s what we expect from local managers on pretty much every other land management issue…

I’m also reviewing the new CEQ NEPA regs, and in the press release the Biden Admin says decisions should be
“effective, efficient, and transparent, guided by the best available science to promote positive environmental and community outcomes, and shaped by early and meaningful public engagement and input.”

Those are great ideas, IMHO, but we tend to what what people and organizations do, not what they say.

The “new” Clean Water Act and federal land management

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Source:  EPA

The Supreme Court recently decided to (re)redefine the scope of the Clean Water Act (CWA) as it pertains to wetlands, which is likely to affect federal land management, as mentioned here.  Here is a recent analysis of that specific question.

Some attorneys feel that “By establishing a jurisdictional test that focuses entirely on surface waters, while ignoring the dynamic interaction of streams with shallow groundwater, a significant number of headwaters streams located on public lands will become non-jurisdictional,” and lose some protections, depending on what state they’re in (state Clean Water Act administration applies to federal land management).  Other attorneys (including one we know) said, “Laws like the National Forest Management Act, Federal Land Policy and Management Act, etc. extend protection to aquatic features too, making CWA application duplicative.”  The article mentions NEPA, but its procedural requirements can’t be considered substitutes for CWA’s substantive limits.  (“The Interior Department and the US Forest Service declined to comment.”)

Though federal public land laws and policies do include some requirements for federal agencies to protect water, agencies would have to choose to fill any gap between that level of protection and what the CWA requires.  My 2¢ – removing statutory protection will lead to erosion of other federal and state-imposed measures that may have been seen as supportive of the Clean Water Act, but will now become seen as more discretionary.  And land managers always seem to prefer “flexibility,” which often seems to mean flexibility to provide less protection.