Analysis of Angora Project 9th Circuit Appeal Decision

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Below is an analysis of the Angora Opinion, and here is a link to the opinion. For those of you who think that litigation is about making the FS follow the law when it egregiously oversteps, check out what the judges had to say about the plaintiff’s points.. it’s not a long read but does show you the complexity of the legal framework (check out the discussion of MIS monitoring) and the nature of the plaintiffs’ arguments in general.

This is from the AFRC newsletter by Scott Horngren.

In a significant opinion issued on September 20, the Ninth Circuit emphasized that an environmental assessment (EA) is not subject to the same requirements as an environmental impact statement (EIS). The case, Earth Island Institute v. Forest Service, involved a challenge to the EA prepared to salvage and rehabilitate the area damaged by the Angora Fire near Lake Tahoe.

Previous Ninth Circuit opinions have indicated that the requirements for an EA are not similar to the requirements for an EIS. The Angora opinion builds on those cases and makes a definitive statement that where the Council on Environmental Quality (CEQ) regulations impose an analytical requirement for an EIS, that requirement does not apply by implication to an EA. The Ninth Circuit explained that “a court should not impose upon the agency its own notion of which procedures are ‘best’ or most likely to further some vague, undefined public good.” Plaintiffs complained that the Forest Service had not responded to comments discussing black-backed woodpecker studies submitted by Dr. Chad Hansen. But the court held that “the duty to disclose and respond to responsible opposing viewpoints imposed by [the CEQ regulations] applies only to [EISs], not [EAs].”

The court also held that “an agency’s obligation to consider alternatives under an EA is a lesser one than under an EIS” and that an EA need only consider a no action alternative and a preferred alternative. The court rejected the plaintiffs’ claim that the Forest Service violated the National Environmental Policy (NEPA) by not considering an alternative that would limit removal of all snags greater than 16 inches in diameter. The court held that leaving these snags “weighing more than 1 ton per tree, would not achieve the Project objective of reducing the risk of severe wildfire.” When the purpose of the project is to reduce fire risk, “the Forest Service need not consider alternatives that would increase fire risk.”

Finally, the court explained that, under the 1982 viability planning rule as amended by the 2000 interpretative rule, the species viability requirements apply only to the extent that they are incorporated into the relevant forest plan. The court found that the Lake Tahoe Basin Management Unit (LTBMU) Forest Plan did not incorporate any species monitoring requirements for viability at the project level. Therefore, population monitoring was only required at the forest level under the LTBMU plan. Significantly, the court also held that, at the project level, the Forest Service need not assess the habitat quality and quantity for species if there is no population monitoring requirement at the project level. Additionally, the court held that since the Forest Service was not required to monitor populations at the project level, it also did not have to determine the quantity and quality of habitat needed for viability at the project level, given that the analysis of habitat quality and quantity for a species is in effect a proxy for population monitoring. Therefore, an absence of detailed information about the habitat quality and quantity to “maintain viability” of the blacked-backed woodpecker at the project level did not violate the National Forest Management Act (NFMA).

This case is a significant victory for common sense in NEPA and NFMA compliance by the Forest Service in the Ninth Circuit. Its implementation by the agency should free up resources that can be better used to improve the health of our federal forests and the infrastructure that depends upon them.

Salamanders under fire: Burning forests among threats as feds contemplate endangered status

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Jemez mountains salamander
Thanks to Terry Seyden for this link.

Well, we’ve been discussing a woodpecker who likes fires and specifically post-fire habitat.

In this story we find an animal that apparently doesn’t like them so much and appears to be also rare. I wonder how a pattern of burning for woodpecker habitat in the Sierra would affect their local salamanders?

Here’s the link, and below is an excerpt.

One of the chief threats facing the lung-less amphibian is the combination of an overgrown forest and the likelihood of severe wildfire, according to the U.S. Fish and Wildlife Service.
While the salamander has evolved over centuries with low-intensity fire, the waves of fast-moving, intense fires that have charred tens of millions of acres in the West over the last decade is a problem.
Biologists say that between 1995 and 2010, severe fires have burned more than one-third of known salamander habitat on national forest lands.

In 2011, the Las Conchas Fire burned nearly 18,000 acres of salamander habitat.
The U.S. Fish and Wildlife Service points to fire restoration, logging, grazing, roads, trails and recreation as other threats to the salamander.

Aside from the proposed listing, the agency is suggesting setting aside more than 140 square miles in three New Mexico counties as critical habitat for the salamander.
The agency will make a final decision on the salamander after a 60-day comment period.
Environmentalists have been pushing for salamander protections for more than two decades.

Hmm. I hope if they figure it’s hard to stop fires, they won’t shut instead stop “fire restoration,” logging, grazing, roads, trails and recreation instead…

Angora Project Appeal Denied

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Here’s a photo of a tour from 2008 of the area.

We have discussed the Angora project before on this blog.

Here’s the link to a Sacramento Bee article.

Here’s an excerpt:

In a published opinion issued Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate that the Angora project would maintain viable population levels of certain species, including the black-backed woodpecker.
The panel concluded that the Forest Service ensured the scientific integrity of the final environmental assessment, properly responded to dissenting scientific opinion, properly considered proposed alternatives to the environmental assessment, and took the requisite “hard look” at the impacts of the project.
Thus, the panel found, the Forest Service’s analysis of the environmental effects “was not arbitrary and capricious,” as that phrase is defined in federal law.
The opinion was authored by Circuit Judge N. Randy Smith, with the concurrences of Circuit Judges Stephen Reinhardt and Richard R. Clifton.
The Angora fire, determined to be human-caused, destroyed 254 homes and scorched more than 3,100 acres, including approximately 2,700 acres of national forest land.
In 2010, the Forest Service approved the restoration project to “reduce the amount of dead and downed trees” in order “to reduce long-term fuel (accumulation) to reduce future fire severity.”
The thinning project called for the removal of both live and dead trees. Twelve zones were “retained as habitat for a diverse set of species,” including the black-backed woodpecker. Most of the trees “will be hauled … for disposal at … biomass energy facilities.”
The Forest Service was free to proceed with the project once Burrell ruled. Both he and the circuit panel denied the environmentalists’ requests for an injunction halting implementation of the project pending appeal.

We have had numerous posts on this appeal and litigation. You can search on “Angora” in the search box to review the history.

We started with this post which I called “Much Ado about relatively little”. Check the comments out for a conversation between Dave Iverson and me on different aspects of the project and the assertions made.

So here we are, years and hundreds of thousands of dollars later. I wonder about the quantity of taxpayer funds have been spent on the original litigation and the appeal of the original decision, by the unit, the regional office, the OGC and by DOJ? It might be interesting to take a few cases at the beginning of litigation and just keep track of the tasks involved and who gets paid what, just so the public has a better idea of the investments they are making. Hopefully this is the end of the story for this 1411 acre project..

Here are the details as I found several documents ago.. those knowledgeable please let me know if this has changed.

Alternative 2, as modified, includes the following activities:
Fuel removal of standing dead and downed wood and thinning of live trees on
approximately 1,411 acres.
Within the 1,411 acres:
o 6 acres of conifer removal for aspen stand enhancement;
o approximately 77 acres of treatment proposed in wildlife snag zones (39 acres in
SEZ; 38 ac Subdivision);
o 13 acres of conifer removal for meadow restoration/aspen enhancement in the
Gardner Mountain meadow.

A ground-based logging system on up to 964 acres (including 13 acres of Cut-to-Length
mechanical thinning in Gardner Mountain Meadow) located in areas with slopes under
30%.
New construction of new roads (up to 7.7 miles) and landings to facilitate fuel removal.
Reconstruction or opening of existing roads, trails, and landings to facilitate fuel removal.
Decommissioning/restoring 1.9 miles of road and 16.7 miles of trail.
Existing and new landings and staging areas would be utilized to facilitate removal of
fuels for ground-based operations.
Reconstruction of 1,200 feet of Angora Creek.
Treatment of the following noxious weeds: bull thistle, field bindweed, St. John‘s wort,
tall whitetop, and oxeye daisy.

Introducing “Catching People Doing Something Right”

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Lena, the mule, of the Region 2 Packstring at the Retiree Rendezvous

Listening to folks at the Retiree Rendezvous in Vail last week, and having spent the last three years or so on this blog, I noticed some similarities between their concerns and the public’s concerns. Because they were retirees, and we had all been to the same management training, some of the discussion was couched in management talk we had learned.

It’s all about how you treat others (current FS employees) when you deal with them.

The first concept we talked about was “affirm in public, counsel in private”. Retirees have gone on record as being against something in the press, apparently without talking to the current FS folks and getting their side of the story (sound familiar?). People need a chance to hear each others’ side of the story. If you still disagree so be it. But it’s more likely that you will think of the person you spoke with as a human being, and not a faceless member of some stereotyped group (those clueless young whippersnappers, or evil minions of the timber industry, or rabid environmentalists).

The second concept was the well-known “catch people doing something right.” To that end, I’m going to establish a sidebar on this blog where folks can post where they caught the FS (or others) doing “something right.” A problem with this might be that people disagree on what “something right” is…but we’ll see how this develops. It can be as mundane as “clean bathrooms at x site” or “district employees unlocked the gate to the campground so that we could get in late at night.” It could also be “person y, of x environmental group was great to work with on the z project because…”.

I would hope that thinking about things this way will help us open a window on the future that is more positive than many of the debates we have. I know our debates are illuminating, but I’d also like to try various approaches to building trust, and imagining and possibly building towards a mutual future that is less polarized.

We older and hopefully wiser folks, I think, have a call to do that so the many vibrant young people who are working today will have a more positive environment to work in. To that end, and also because I’m retired, you will also see more posts about internal FS issues. I think it will help the people not currently in the organization understand better some of the dynamics that they observe from the outside.

More on futuring and internal issues in future posts- I am trying to locate videos of discussions at the Public Lands Symposium and the Retiree Rendezvous that we could use as a springboard for that discussion.

Anyway, when you catch someone doing something right (local or state or federal agencies, groups, elected officials, environmentalists) please send to me at [email protected] and tell us:
who you are talking about, your story of what happened and why you think it is “something right” and a photo if you have one. Finally, if something good happened with the FS and you don’t know actually who is responsible, that’s OK, tell me anyway and I can do some detective work and find out.

I’m hoping this will be more about human to human interactions and less about our usual policy issues. but like this blog, it’s a grand experiment.

Indian Valley Meadow Restoration

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Indian Valley, part of the Amador Ranger District, Eldorado National Forest, is being restored as a high elevation meadow, after decades of misuse. Grazing has ceased but, its impacts still linger. In the past, willows were removed and water was channeled away, causing increased erosion of these shallow and fragile soils. The water table has been lowered and the meadow hasn’t been able to support the vegetation that it used to.

Concentrating runoff by channeling the water causes increased erosion, especially when we have rain on snow events. There were significant impacts from the winter of 1996. This project aims to get the water to spread out, linger, and re-charge the water-holding capacity of up to 500 acres.

A system of catchment ponds, compacted soil plugs, and native plant re-vegetation will cause snowmelt runoff to spread out and slow the erosive power of concentrated water. This project has a history of being de-funded and handed off but, all things came together when Coca Cola offered up some cash, which led to some additional matching funds and collaboration. The Ranger District had to jump through all the NEPA hoops, as surveys had to be completed for endangered willow flycatchers, frogs and toads. The one impact they could not remedy is a historic road, which travels across the meadow. Relocation was made impossible, due to archaeological sites. Removal or closure would be politically impossible.

The willows have made a great comeback, since grazing ended. However, you can clearly see that the foreground vegetation is quite sparse. Raising the water table a few feet will lead to meadow restoration. The numerous braided side channels would re-charge the water table. There appears to be one of the historic man-made channels in this picture.

Here is what appears to be one of the natural side channels, which no longer is supplied with water, due to lowered water table, erosion, and channeling of the water. This restoration project appears to be a win-win situation for everyone.

Here is a non-Forest Service link to the project:

http://www.americanrivers.org/newsroom/blog/lhunt-20120920-indian-valley-meadow-restoration.html

Denver Post on Making Land Management Decisions in the Courtroom : Rocky Mountain Park Elk

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National Park Service photo

Various folks, from former Chief of the Forest Service and elk biologist Jack Ward Thomas, have questioned the idea of making land management decisions in the courtroom. This is apparently also apparent to members of the Denver Post editorial board. In Colorado, we have commissions, task forces and a variety of other mechanisms of interested and knowledgeable parties getting together to solve tough issues (e.g. oil and gas regulation). So perhaps it seems more obvious here that an appeals court is suboptimal. Given our discussion of “nit-picking” this week, I also italicized a relevant sentence. Another note: it’s obviously not just the Forest Service who deals with this.

Here’s the link, and below is an excerpt.

Yet not everyone is happy. Some environmentalists objected to the plan from the outset because it rejected the option of introducing wolves to reduce the number of elk. And just this week, the 10th U.S. Circuit Court of Appeals heard an appeal from WildEarth Guardians of a lower-court decision that upheld the Park Service’s plan.

We hope the appeals court supports the lower-court decision. It would be a shame — indeed a travesty — if the professional judgment of the Park Service on behalf of the health of the park was second-guessed in this fashion.

It’s not that we have anything against wolves. The reintroduction of gray wolves in the mid-1990s from Canada to Montana, Idaho and Wyoming must be judged a conservation triumph. They reproduced and thrived — so much so that the Fish and Wildlife Service concluded they could even be removed from the endangered species list.

Moreover, in Yellowstone the wolves scattered elk herds just as predicted, thereby allowing the recovery of willow and other battered species.

But reintroducing wolves is not something to be undertaken lightly or in haste. While Rocky Mountain National Park, at 415 square miles, is huge, wolf packs can range even farther. Wolves would inevitably encroach onto private property and even into lightly populated areas.

As we noted back in 2006, any plan to import wolves into the park would therefore provoke a lengthy political and legal battle — even if wolves might turn out to be part of the long-term solution for elk control.

The Park Service didn’t have the luxury of years to wait for a solution to its elk problem — not if it wanted to be a responsible steward of Rocky Mountain park.

Like so many environmental court cases, this one is based upon claims that federal officials failed to dot every “i” and cross every “t” of the law in reaching their decision.

For example, WildEarth Guardians maintains that culling the herd with trained volunteers is tantamount to hunting, which is banned in the park. But this is legal word play. No one considers killing elk for ecological reasons to be a form of sport — and hunters do not benefit from it.

The future of the wolf in Colorado is a fascinating topic worthy of serious debate. But it shouldn’t be decided by an appeals court.

Danger: “Scientification” of Local Decisions

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So here I am at Vail, on the White River National Forest and what do I see in the media?

In the Aspen Daily News here:

When science is confronted by emotional reaction to a decision that is not popular, science often takes a back seat. Take the Forest Service’s decision to not allow camping on top of Independence Pass to prevent damage to the fragile tundra ecosystem during the USA

Eric Grindstaff, from Columbus, Ohio, cheers on a cyclist prior to the summit of Independence Pass near Aspen, Colo., during the fourth stage of the USA Pro Cycling Challenge, Thursday, Aug. 23, 2012. (AP Photo/The Aspen Daily News, Chris Council)
Pro Cycling Challenge race.

Were alternative camping sites available? Yes, but they were too inconvenient for some. As a matter of fact, space was available at developed campsites along the route Wednesday night.

Those of us involved in resource management decisions love our jobs and take them seriou

Eric Grindstaff, from Columbus, Ohio, cheers on a cyclist prior to the summit of Independence Pass near Aspen, Colo., during the fourth stage of the USA Pro Cycling Challenge, Thursday, Aug. 23, 2012. (AP Photo/The Aspen Daily News, Chris Council)
sly but we also have a sense of humor. That’s why we got a good laugh at the T-shirts that poked fun with “trt” (for tundra response team) and a little tundra figure’s hands in the air.

Sometimes baseless accusations are hurtled at the agency and a cub reporter may find it easy to interview a few disgruntled spectators. Our desire is to get as much information as possible to the public through the media in a transparent manner so people understand why and how we arrive at decisions.

The United States Forest Service mission is to sustain the health, diversity, and productivity of the nation’s forest and grasslands to meet the needs of present and future generations.

“Caring for the land and serving people,” best captures that mission.

Those words fit well with the choice I made, along with many of my generation, to pursue a career in the management of America’s public lands. My decision was influenced by reading Wallace Stegner’s “Beyond the Hundredth Meridian.” At that time, if a word had to be picked to describe what I would become by pursuing such a dream it would be “conservationist.”

Conservation laws were passed mandating how to best care for the land and serve people. In the Forest Service we also have regulations, executive direction and congressional intent to guide our decisions.

Decisions are made taking into account 13 guiding principles that help realize our mission. One of those principles state that, “We recognize and accept that some conflict is natural and we strive to deal with it professionally.”

Many of the complex problems faced by the White River National Forest decision makers involve multiple conflicting objectives. Conflict handled professionally often leads to better collaborative decisions.

If decisions are made by caring for the land and serving people then they are appropriate. However, balancing both these priorities is not easy. Popularity is not part of the equation.

Conflict in today’s land management arena centers primarily on recreational use of public land. The focus is often narrowly reduced to “my use, my way.” Instead of “re-creating” their outdoor experience by renewing their spirit, many people become vehemently entrenched into what becomes a siege mentality that leaves no way for reason.

It becomes “my right to do as I please wherever I want to whenever I can” with no regard for any long-term caring for the land. What is missing is a willingness to modify behavior for what is appropriate to consider in making good land management decisions. Being inconvenienced trumps conserving resources.

Two of the other guiding principles that the Forest Service uses are: we use an ecological approach to the multiple-use management of the National Forests and grasslands, and we use the best scientific knowledge in making decisions and select the most appropriate technologies in the management of resources.

The Pro Cycling Challenge wasn’t our first rodeo. When we get thrown off the bronco, or in this case thrown under the bus, we smile, get up and dust ourselves off, ready to meet the challenges facing present and future generations.

Bill Kight is the public affairs officer of the White River National Forest.

Sharon’s take:
Guess what, Bill, whether we allow or do not allow camping, it is a “values” decisions- it is not a “scientific” decision. I happen to agree with this decision, but I don’t know how you can call it “scientific.” Please leave science, and scientists out of the rationalization for whomever’s appropriately value-based decision.

Never aired Edward Abbey Film Essay: “I loved it…I loved it all”

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I just came across a post made a few days ago by a gentleman named Ned Judge, a producer, director and writer based out of New Mexico.  Apparently, back in 1985 Judge was working for a network TV show and worked with Edward Abbey on a short film essay, which it turns out the network never aired.  Do yourself a favor and watch the short film here, as Abbey’s narration, commentary and even acting are highly entertaining!   Below is some more information provided by Ned Judge:
An eight minute film essay that I co-produced and directed with Ed Abbey in 1985. At the time I was working for a network magazine show. The executive producer took me to lunch one day. He told me that he was having trouble with his son who was 18. The son thought his dad was a corporate whore. He had told his father if he had any balls at all he’d put Ed Abbey on his show. That’s why the EP was talking to me. Would I see if it was possible? I had an acquaintance who knew Ed and he passed the request along. Ed responded that he’d give it a try. He signed the contract and wrote a script. We met in Moab and went out to Arches National Park to shoot some practice sessions with a home video camera. We would review them at the motel in the evening. After a day or two, Ed was feeling pretty comfortable on camera so we scheduled the shoot. We were all happy with the way it went. But then we ran head-on into network reality. Roger Mudd, the show’s host, was extremely negative about putting an “eco-terrorist” on the show. The executive producer caved (his son was right about him apparently). So this Abbey essay was put on the shelf and never aired. Abbey died 3 years later in March 1989.

Thank You, Aspen Times! More on Burnt Mountain

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A while back on this blog here, I wondered about Ark Initiative’s ongoing interest in Burnt Mountain (800 trees 6.5 acres, and mass extinctions).

Fortunately, a reporter for the Aspen Times had the time and the skills to investigate more.
Here’s a link and below is an excerpt.

“What exactly is the Ark Initiative, and why is it interested in Burnt Mountain? It’s largely a one-person operation run by environmental consultant Donald “D.J.” Duerr, who helped found the organization and serves as its president and director. Duerr is a veteran of the conservation movement who has a reputation of being very capable but also very difficult to work with. One source, who asked not to be quoted by name, said Duerr isn’t a team player and often thinks his approach is the only approach to an issue.

Duerr created the Ark Initiative in the late 1990s. The organization’s website, http://ark.savelifenow.org, says it is “dedicated to protecting life, including human life. Our highest priority is halting the global mass extinction.”

The website says the Ark Initiative works on a “wide variety of life preservation issues,” but none are cited. The organization’s finances are also closely guarded — more so than many other environmental nonprofits. Nonprofits are required by the Internal Revenue Service to fill out a Form 990 on their finances. The website Guide Star posts the forms, with the cooperation of the nonprofits, so it provides reporters, prospective donors and interested members of the public with a glimpse at an organization’s operations. The Ark Initiative’s financial forms aren’t available through Guide Star. Duerr didn’t respond to a request by The Aspen Times on Monday to provide Ark Initiative’s latest annual report, nor did he respond to repeated requests for an interview.

So far, it’s been impossible to tell from public records where the Ark Initiative’s money is coming from for the Burnt Mountain fight.

A limited amount of information is available about Ark Initiative at the Wyoming secretary of state’s website. In addition to listing Duerr as president and director, Leila Bruno, of Laramie, Wyo., is the treasurer and director. Sylvia Callaway, whose mailing address is in care of an Austin, Texas, residence, is listed as vice president and director.

The extent of the Ark Initiative’s environmental activism is difficult to gauge. Public records indicate Duerr submitted comments to the Forest Service to oppose two timber sales: one in Wyoming in 2009 and the other in South Dakota in 2010.”

Interesting. I had heard through the rumor mill that it was a neighbor who didn’t want more people skiing around.. it’s possible that “keeping out the riff-raff” will be hard to distinguish from legitimate environmental concerns. Again, thanks to the Aspen Times for investigating.

FS Retirees’ Rendezvous

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This week I’m at the Forest Service Retiree Rendezvous in Vail. While I am meeting some folks who read the blog, asking others to write pieces, and reflecting myself, I will not be posting and sometimes not able to approve posts (no cell signal in various places). So this might be a good time to post something you had been thinking about…