Federal Lands Litigation – addendum, May 2025

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A couple of things came up right after I posted the May 20 update that probably should have been included.

FOREST SERVICE

Preliminary injunction denied in Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Montana)

On May 19, in this 2023 case involving Clean Water Act requirements for aerial fire retardant use, the district court denied plaintiff’s request for a preliminary injunction.  On May 26, 2023, the court had found that Forest Service was in violation of the Clean Water Act for unpermitted discharges of aerial fire retardant into navigable waters of the United States, but the court did not enjoin retardant use while the Forest Service sought a permit.  After a February 2025 status conference, FSEEE asserted that an injunction was required.  The district court held, “And though FSEEE is correct—the EPA indeed withdrew the draft NPDES permit after the recent change in Presidential administration—that fact does not warrant the issuance of an injunction” because the permitting process was not abandoned and has restarted.  (This case should not be confused with a new lawsuit claiming violations of the Endangered Species Act regarding the effects of retardant, which I did with my initial post on that case on May 21.)

ENDANGERED SPECIES

New lawsuit:  American Forest Resource Council v. U. S. Fish and Wildlife Service (D. D.C.)

On April 7, timber industry organizations and several counties brought a lawsuit against the Fish and Wildlife Service over their November 2021 (Biden Administration) withdrawal of a January 2021 (Trump Administration) designation of critical habitat for northern spotted owls, and reinstatement of a 2012 designation which resulted in over three million additional acres designated.  This complaint follows prior litigation and a settlement agreement regarding previous rules, and alleges the November 2021 Rule violated a number of requirements of ESA, including:

  • The process for withdrawing the January 2021 Rule that had reduced critical habitat
  • Failure to consider best available scientific and commercial data
  • Designating non-habitat and failing to justify designation of areas that were not occupied
  • Failing to consider economic and social impacts of designation

The “non-habitat” question involves whether areas with young forests would qualify for critical habitat because they “periodically” provide owl habitat, and also how barred owl presence should be considered.  The economic analysis considered only the incremental consultation costs incurred with critical habitat designation on federal lands, and not the costs derived from the prior listing decision (economic analysis is not part of the listing process).  Here’s views from plaintiffs and from intervenors (with a link to the complaint),  (The neutral press coverage seems almost nonexistent.)

 

Exploring Views on Managed Fire or Fire With Benefits or Whatever. I. How Much “Treatment” Is “Needed”? To What End?

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I think this is the Buffalo Creek Fire from about 30 years ago. Historic? Perhaps. Good for tree cover? Not so much. Not a Fire Managed for Resource Benefits. My photo.

Let’s talk about MF separately.

For now, I am going to call wildfire managed for resource benefits “managed fire” or MF.  I can’t keep track of what it’s supposed to be called.  I think it was the Wildfire Commission who thought that prescribed fire (PF) and MF should be combined into BF or beneficial fire.   I think that’s not a good idea because they are different in many ways.

If, in fact,  MF is of concern to diverse kinds of people from Sarah Hyden to Frank Carroll, and even Jon and I agree about the need for some kind of environmental analysis (which some forests have) and even plan amendments (!), then I think we need to single out MF for discussion.   As far as I can tell, there are three main camps on MF.

1. Everything is fine.

2. Folks should be able to use it, but we need some kind of pre-planning with analysis and public involvement. We’re not there yet. Let’s talk.

3. Never use MF

Many folks I talk to are in 2 somewhere, and yet somehow there is much discussion between 1 and 3.  So this week, at least until bigger news appears, I thought we might dive deeper into some of the arguments and further see where we agree and disagree.

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 1. How Much Treatment Do “We Need”? Restoration and Changing Fire Behavior Are Not Always the Same Thing

Here’s how one argument seems to go… “we’ll never achieve what “we need to do” with only PF (prescribed fire) and MT (mechanical treatment).”  To me, that first raises questions of  “what is it we really need to do and why?”  There are at least two schools of thought.  One is where fuels practitioners and suppression folks are describing what conditions need to exist where, so that suppression folks can protect key communities and wildlife and watershed values, what we might call “PODs’n’more.”  The other is a more historic ecological view of returning fire to some conditions of sometime in the past, more or less everywhere.  You can see that the latter would cover many more acres than the former. So perhaps, before we decide if PF and MT can fill the bill, we should agree on what “we need.”

Back in 2021, I wrote about these two approaches. The below is from the Defenders of Wildlife letter on Climate Smart Forestry (remember USDA asked for comments).  I call this one “departure first.”

Defenders of Wildlife (Defenders) state in their letter[2] “Rather than characterizing wildfire management as a matter solely of risk reduction, we recommend that a USDA climate-smart policy be based upon the bedrock principles of the Cohesive Strategy and seek to maintain and restore the ecological integrity of fire adapted landscapes; develop fire adapted human communities; and improve effective wildfire response.”

The Cohesive Strategy (2014)[3] never uses those words; the actual wording is: “Landscapes across all jurisdictions are resilient to fire-related disturbances in accordance with management objectives.” (p.3.) A search of the document did not yield the term “integrity.”

Now as you all know, I am a fan of using the term “resilience,” and not so much “integrity”, so I won’t further belabor the point.

Defenders later recommend (p. 17): “Develop planning and decision-making structures and processes that ensure that the highest priority areas within mixed ownership landscapes are addressed first; this would include areas around communities as well as areas that are most degraded and departed from desired reference conditions. “

Meanwhile EDF  what I call the “safety first” approach.

“Our national wildfire strategy should have two priorities: 1) Protect communities in the line of fire; and 2) Reestablish natural fire patterns to protect ecosystem values and sustainably manage fuel loads. Reestablishing natural fire regimes can only be realized when fuel loads, particularly in the West, are greatly reduced using both mechanical treatments and prescribed and managed fire. Implementation will require an updated wildfire triage approach to ensure that we address the most pressing threats to communities and human lives, first.”

My suspicion is that the difference in prioritization never became an issue because priorities in a limited-budget world will always be driven by the need for PODs and community protection.

In her comment here, Susan Jane linked to some scientific papers on the “fire deficit.” At the risk of being even more heretical than usual, I would argue that there is no such thing as a fire-dependent ecosystem.  There are certainly fire-adapted species.. and maybe even fire-dependent species.  I just spent last week reviewing the reestablishment of tree species after glaciation, and it’s easy to think that there is no “ecologically appropriate” vegetation mix other than what happens to survive at any particular space and time (that is the difference between thinking of “ecosystems” versus “current species assemblages”).  Yes, for example, on some soil types true firs or Douglas-fir will grow in and compete with ponderosas that are more fire-resistant, and provide ladder fuels, and later die from budworm or root disease and all those things.  And PF could take care of that, at least after initial MT.  But MF could also kill the pines. From the first paper she cites:

There has been long-standing interest in the scientific community if, and to what degree, contemporary fire regimes are departed from historical reference conditions in terms of fire frequency or annual area burned.

From the abstract of this paper:

We then quantified the degree of fire deficit or surplus for all areas of the western US as the difference between expected (as predicted with the model) and observed area burned from 1984 to 2012. Results indicate that many forested areas in the western US experienced a fire deficit from 1984 to 2012, likely due to fire exclusion by human activities. We also found that large expanses of non-forested regions experienced a fire surplus, presumably due to introduced annual grasses and the prevalence of anthropogenic ignitions. The heterogeneity in patterns of fire deficit and surplus among ecoregions emphasizes fundamentally different ecosystem sensitivities to human influences and suggests that large-scale adaptation and mitigation strategies will be necessary in order to restore and maintain resilient, healthy, and naturally functioning ecosystems.

And finally from a 2018 paper,

Although disturbance legacies contribute to local-scale intensity of drought stress, fire deficits have reduced drought resistance of mixed-conifer forests and made them more susceptible to challenges by pests and pathogens and other disturbances.

Although we used different terminology (true firs came in, and without fire, compete with ponderosas) we actually knew that back in the day (80’s).

It’s kind of a strange way to think about wildfire.. that we want to reestablish “historical reference conditions”.. again, it’s unclear as to whether those conditions are useful information, or have become a target (much like HRV).  I can imagine another study that looks at historic conditions and finds that we also have a bison deficit, or a housing surplus,  or a soybean surplus, or even a Euroamerican surplus and a Native American deficit compared to historic conditions.  And we would say “that’s obvious, so what?”  What if we gave up the idea of historic conditions, and substituted “getting rid of undesirable conditions.” We’d have to articulate why it was undesirable, how much it costs to fix, if it is even possible to fix,  and maybe have a public discussion about different possible goals and values and the likelihood of achieving them.

And studies like this suggest that even if we set HRV as a target, replicating the past would be difficult  or impossible to achieve, and it kind of elides “what was” with “what should be” if we’re not very careful.  Which leaves out the role of climate change as well as other obvious changes since whatever time period is chosen..

historical fire return intervals were longer (20–50+ years) and more heterogeneous with patches (10–100 ha) of stand-replacing and moderate-severity fire (where fire reduces the basal area or canopy cover 20–70%) (Brown et al., 1999, Schoennagel et al., 2011, Sherriff et al., 2014).

If our goal is keeping living trees on the landscape (with some openings and regeneration), we might be careful with stands and use PF (with or without MT as needed) according to prescription.  MF seems like it could be a bit of a bludgeon comparatively,  without some kind of analysis or prescription.  And maybe that happens during the fire- that certain areas have been targeted through some process for certain intensities of fires and the MFs are managed that way-  but needs to be made more transparent.

I remember my old boss, Fred Norbury, then EMC Director, on a field trip on the PSICC somewhere along the Platte River, probably 20 years ago.  Looking at a prescribed fire project (standard MT followed by PF underburning), we were told that PF would need to be redone every 20 years.  You could see the dollar signs in Fred’s eyes.. “you think we can afford to do that on all these acres?” And perhaps the “target” and the “priority” questions are still open.

 

Text of Memorial Day Email From (Acting) Associate Chief French

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Thanks to Bob Z.! Any formatting issues are mine.
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Good Afternoon,

I hear a lot from Forest Service friends and colleagues that there needs to be more communication from agency leadership, especially right now. Frankly, I have always done better communicating through one-on-one or group conversations than through posts or all employee emails. Through this and future emails, I am hoping to give you some insight into what we are hearing, doing, and thinking. My intent is to keep these focused and to the point. I have learned that my words can mean different things to different folks and sometimes we try so hard to get it right – what we write just misses the mark. So I ask for some grace (especially my writing style, grammar etc) and my hope is this is helpful even if it doesn’t meet everyone’s needs.

  1.  Future Organization and staff losses – it’s on everyone’s mind. We have said goodbye to a lot of our Forest Service family and many folks are worried for their future work and jobs. We are expecting an announcement from USDA in the next weeks but those dates may change given ongoing legal challenges. I hear from many of you – just tell us what to expect so we can make choices. We will when we can. I also realize that with the current DRP losses that we need to adapt the agency either way. To that end as we await the Secretary’s direction-

    a. We have been asked for input and, working with folks at all levels of the agency, we have provided insight to the department to inform that decision.

b. We are meeting the first week of June with the NLC, Regional Foresters, Station Directors, forest sup and research station representatives to help us navigate this. With our current staffing, I know our work must align with the agency we currently are and for the organization we will shift to. We must also solve fundamental systems, communication, policies, and decision making so that our agency works better.

c. We have committed to regularly meet with District Rangers, Forest Sups, Station Leaders, and Bus Ops leaders so that information is flowing up and down more directly. The Chief will continue to travel throughout the agency so you can get to know him and he you. The trips thus far have been critical for him to see the depth of what this agency is and how we serve.
d. I want to honor all of those that have left the agency for what they leave behind – decades of professional dedication and commitment to the agency and forests. We are better from their work, their friendships, and their legacy.
e. We are doing our best, within the current hiring rules, to fill gaps and capacity in our field based staff. We have had multiple outreaches and have been making voluntary lateral re-assignments primarily in forest and district based positions.

2.Fire season and preparedness. It’s our highest priority. We have been working to fix stuff – like having adequate purchase cards for our response needs. We also know that we have many red carded employees who have taken DRP and are on admin leave but want to help and take fire assignments. To that end, we are developing a process to support these employees. It will include a timekeeping process, a centralized method for travel reimbursement and a process transitioning to and from administrative leave. We just had a good briefing with Sect.’s Rollins and Burgum and we shared the outlook for the current season, which as you know, is higher than normal in many parts of the west. Our team knocked it out of the park. You will hear this a lot this year – but for all of our employees – supporting a safe and responsive wildfire response – is the highest priority for every employee and supervisor. All other work, unless it involves critical safety, will come second.

3. Budgets, Contracts, Agreements, Grants, Travel, Purchases, New obligations – its all slowed down right now and there is tons of confusion in the system. We are working on this and I know how frustrating it is. There is extensive guidance coming from Bus Ops, but in short –
a.All payments on existing contracts, grants and agreement invoices can be made regardless of funding source unless the funding instrument has been terminated. There are no Stop Work Orders in effect. Vendors, grantees, and cooperators can submit invoices accordingly. No further approvals are needed. No obligated grants, agreements or contracts are paused.

b.New obligations go through a department review except for excepted actions for wildland and emergency responses, disaster response, and law enforcement. We have been getting approvals to open critical new contracts that you are needing – this has included things such as toilet pumping and forest seedling transportation – but we know that it is impacting our field and research operations.

c.With the added reviews and fewer people to process your asks – please prioritize what is most important. Also recognize, things seem to change daily, and folks between you and WO often are unsure of what they can or cannot do. We are establishing strike teams to accelerate priorities and different ways to share info to help with this. More than anything – remember the person you are working with is doing their best to work in this rapidly changing situation and – like you, they have less people.

Finally, I know many of you ask – is leadership listening? and where is our focus on all the other areas of our work that is part of our agency/mission? Yes we are listening. And I don’t have all the answers – but know we are trying and our central focus is honoring the people and the work of this agency. And yes – we are prioritizing our work based on the administrations direction, as we always do and we recognize the full suite of work we do – our partnerships, our help for private landowners, our recreation service delivery, our natural and cultural resource work, our tribal relationships, our research, and our 1000+ other important programs/things we do to conserve forests and grasslands. It’s all incredibly important and I thank you.

Enjoy the holiday.

Chris

French Memorial Day Email to All Employees

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I didn’t receive a copy of the email from Chris French, but The Hotshot Wakeup did and covered it in a podcast today.
The podcast may be paywalled.. if it is, and you are curious enough, you could subscribe for a month. I’m a paid subscriber and I find it well worth it.

If someone sends a copy of the letter to me, I’ll post and we can discuss it here.

2025 Chief’s Wildfire Letter of Intent

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Here’s the link. I didn’t find anything surprising. others?

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Our dedication to service, along with our connection to the land and local communities, is what makes our agency strong. This is exemplified by our employees who work tirelessly to reduce wildfire risk and respond to wildfires and disasters. As we continue this critical agency work this year, and in light of the many hazards we face, I expect each of you to prioritize safety as you perform your jobs.

Reducing the risk of wildfire is a key component of our wildfire strategies. I will continue to support your collaborative work with local governments, states, tribes, landowners, industry and conservation partners to develop strategies that reflect local needs and priorities in our fire risk reduction work. Continuing science-based strategies, including the potential operational delineations, is critical to ensure we do the right work in the right places. We will also continue to work with our partners who hold critical agreements for risk mitigation, including shared stewardship agreements with states and the National Alliance of Forest Owners Fuel Break Memorandum of Understanding. Active forest management, coupled with our continued focus on prevention, and continuing our crucial hazardous fuels reduction efforts, will make the difference needed to restore resilient landscapes, especially in high-risk areas.

There are inherent risks in suppressing wildfires. I expect utilization of all available tools, technology and experience to ensure a risk-informed response. However, this will never mitigate all the risks associated with the work that you do. I want each and every unit to take a tactical pause during your pre-season training, cooperator meetings, and throughout the season as needed, to acknowledge the challenges you face in focusing on the job at hand, rather than the greater uncertainty around us. While I recognize there are many changes taking place in our agency, I want your mind to be as focused as possible while in the midst of fire season.

Fire seasons have been trending longer with more extreme fire behavior, coupled with unprecedented demand for personnel and resources, which has required us to adapt over the past several years. With that in mind, we will continue to focus on safe, aggressive initial attack. We will make appropriate risk informed efforts to fully suppress small fires before they become large, complex incidents to ensure we can protect lives, property, valuable timber and natural resources. It is critical that we suppress fires as swiftly as possible to minimize the amount of fireline exposure and be ready for the next ignition. This means employing direct attack tactics when and where feasible to minimize fire size and time to containment when safe and practicable to do so. As always, we will use all available risk-management tools and deploy resources appropriately depending on resource availability, time of year, communities, infrastructure, natural resources, weather, drought and wildfire activity.

With our current fire conditions, we need to use our firefighting capacity as efficiently as possible. There may be very limited opportunities for in-season prescribed fire or the use of natural ignitions to safely reduce future wildfires outlined in the Interagency Standards for Fire and Fire Aviation Operations (Red Book). We will also use those procedures in Preparedness Level 3. If those opportunities exist, they should be well understood by partners and key stakeholders through open, collaborative preseason and ongoing dialogue, as well as risk shared with both regional foresters and the national headquarters. We will continue to innovate, using technology for fire detection and suppression such as uncrewed aerial systems, satellite surveillance, cameras, tracking and remote sensing, to increase efficiency and accuracy while reducing exposure to firefighters.

To bring added focus and reduce unnecessary distraction during the period when we need to prioritize wildfire response, I expect leaders from our national headquarters to the districts to:

  • Eliminate barriers and unnecessary procedures that impede resource capability or mobilization.
  • Prioritize employees’ ability to maintain or update their fireline qualifications (red cards) and make red-carded personnel available for fire assignments.
  • Roster agency administrators to be available to fill critical needs on fires, as well as to mentor, support and fill in where new line officers have limited fire qualifications.
  • Ensure adequate, timely contracting and agreement support, and provide clear direction that fire response is the priority.
  • Actively manage the stress and fatigue of all employees engaged in fire response.
  • Adjust program output and service expectations as wildfire and all-hazard response grows.
  • Continue to prioritize wildfire risk reduction for the communities we serve by conducting vegetation management projects where capacity remains to do so.

I am sincerely proud of the men and women that make up our wildfire program, from firefighters, fire management leaders and agency administrators to dispatchers, support staff and all that participate on incident management teams, including those additional staff that step in to cover other duties as needed. I appreciate your passion, dedication and desire to serve. Your safety, the safety of all fire personnel, and the safety of the public is my highest priority.

Your role in ensuring another successful fire year is crucial. Thank you for your service and commitment. I am honored to serve as your Chief and look forward to meeting many of you in the field soon.

Guest Post on Wildfire Agency from Dan Reese

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This was a comment but I thought it deserved its own post.

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Where to start? I’m not a noted person in the wildfire industry, but I have spent my entire adult life in it at various levels. Having worked a career in government service and the last 10 years in the private sector, I have a unique perspective regarding the challenges. I’ve worked for great mentors, sought to hear both sides of the story, been fortunate to advocate for the industry, write articles, present and moderate panels at state and international conferences, and am active on LinkedIn, all in the name of wildfire. There is much to unpack regarding the executive order and the excellent engagement from so many knowledgeable and experienced people on this forum. Regardless of our experiences, I do think we need a deep overhaul. Pendulums swing, policies are made, and our environment changes. We have all witnessed the unintended consequences of something we thought was a good idea at the time. Although I have concerns and questions about some of what is being proposed, I remain hopeful that engaged organizations and experienced people will prevail in molding the outcome of the Federal Fire Service should it materialize. I’d be lying if I told you I wouldn’t want to be a part of it.

Will it be perfect? I fear not. Will it be better than what we have now? I know so. Will the pendulum swing too far? Probably. Will we get it back to center? I believe in balance and am confident it will.

The comments here remind me why the United Aerial Firefighters Association was established. It wasn’t due to the industry’s differences but to each company’s shared interests. No one on this platform wants to lose resources we don’t need to lose, and none of us knows what we don’t know. Fires will burn regardless of our efforts. The questions and comments people discuss here are simple. When do we extinguish, and when do we burn? Many have it right, that some fires will burn with such intensity and in such conditions that we will not succeed until Mother Nature dictates. Sometimes we can dictate; however, we and the public need to be better prepared. We will never outsmart the weather and need more standardized data to make better informed decisions. I don’t think we align on data collection or its use. Small, prescribed fires on the shoulders of peak burning periods are not enough to accomplish what needs to be done. We cannot dictate these burns on a calendar, and more funding and resources must be assigned to these types of burns on many levels if we are to make an appreciable difference.

Much of what agencies do now works, but can it work better, more efficiently, and effectively? The answer is yes. Do we know what works and what doesn’t? I’d say to a significant extent, but we still have much to learn. The preservation of what we have now is what’s at stake. Does that mean doing nothing? Absolutely not, we have caused a lot of what’s transpired, and it will take a lot of time and expense to dig us out. I do feel it’s a fantasy to think we will save money in this venture. I already know from the data available that we need to do more on the front end than we currently do, but the savings on the back end will be exponential. Contrary to popular belief, the feds pay for a large percentage of many State and Local fires through the FMAG process. The question needing answered is, if there were more of a partnership between these agencies, could we alleviate overall costs? The analogy for spending in this industry is this. By day, we shovel a little money out of the front door of the Capitol for preparedness and suppression, but by night, when no one is looking, we truck cash out the back door. We need a change that will work best for our common interests.

Federal Lands Litigation – update through May 20, 2025

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FOREST SERVICE

New lawsuit:  Alliance for the Wild Rockies v. U. S. Forest Service (D. Utah)

On February 18, the Alliance, Native Ecosystems Council, Council on Wildlands and Fish, and Wildlands Defense sought judicial review of the Manti-La Sal Restoration and Fuels Reduction Project.  According to a plaintiff, “the project calls for logging, mastication (grinding trees with huge machines), and burning across 952,115 acres (1,487 square miles) including 454,452 acres (710 square miles) of roadless areas in habitat for bighorn sheep, mule deer, elk, bears, raptors, and birds, including the imperiled pinion jay.”  They allege violations of NEPA with regard to effects on the pinion jay, effects on big game winter range, and cumulative effects.  The also claim violations of the Roadless Rule and NFMA’s requirement for consistency with the forest plan’s standards for winter range.  The article includes a link to the complaint.

Court decision in North Cascades Conservation Council v. U. S. Forest Service (9th Circuit)

On May 2, the 9th Circuit affirmed in part and reversed in part the district court’s summary judgment in favor of the Forest Service’s approval of the Twisp Restoration Project, a forest thinning project on the Okanogan-Wenatchee National Forest.  According to the court (quoting the Forest Service Landscape Evaluation), “The evaluation determined that previous management in the Twisp Restoration Project area ‘has caused widespread degradation of forest, rangeland, watershed condition and stream habitat, and has increased the risks of uncharacteristically severe wildfire …’”  Then there was a fire.

The court ruled against the Forest Service’s evaluation of cumulative effects.  The original project had been split into two projects after the draft EA because the Cedar Creek Fire affected portions of it, but the final Twisp EA did not address the information that was available about the other project.

The court agreed that the Forest Service did not need to reopen the public comment process because the modified Twisp Project simply eliminated treatment areas (including those affected by the fire), reducing the size of the Twisp Project by 69%.  This meant that there were unlikely to be environmental effects of the Project that had not already been addressed.  As the court said, “Where a change to a proposed action only lessens the environmental impact, we are less likely to consider it a substantial change.”  The court also found that the purpose and need was not too restrictive and that one action alternative was sufficient. Plaintiffs also criticized the discussion of desired conditions and how those would be achieved by the project, but the appeals court did not review this issue because it had not been raised in the district court.

The court also addressed “condition-based management” and found that the environmental analysis for this project complied with NEPA.  The final project included non-commercial understory vegetation thinning on up to 13,812 acres and commercial overstory vegetation treatments on up to 8,151 acres during a twenty-year timeframe.  The Forest Service considered the maximum potential effects of the Project, assuming all possible treatments are implemented.  This was sufficient because the question with an EA is whether effects may be significant, the affected area was “fairly small,” and “the Forest Service identified specific methods of understory thinning, overstory treatments, and fuels reduction and provided unit-by-unit maps of the maximum effects of each treatment.”  The court expressed concern, however, calling it a “close case.”  The court also agreed with the Forest Service that an alternative that instead used a “phased” approach over time would not be effective because it would delay implementing treatments.

This case seems to align with our prior discussion of  of the Ashland Watershed/Navickas case regarding the size of the area and specific criteria for treatments, and the EA/EIS distinction made in the Tongass case.  And we also discussed condition-based management thoroughly here.

New lawsuit:  Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Montana)

On May 7, AFSEE sued the Forest Service and the two Endangered Species Act regulatory agencies over use of aerial fire retardants laced with toxic heavy metals, including cadmium, selenium, and chromium.  Plaintiffs allege violations of ESA consultation requirements because the Forest Service failed to inform the regulatory agencies of the content of fire retardant, and the biological opinions from the regulatory agencies failed to consider the effects of heavy metals on listed species and their critical habitat.  This case was introduced here, with a link to the complaint.  It’s also linked to this article, which quotes plaintiffs:

“We do it because it looks good on CNN. It’s the cowboy coming over the ridge,” Stahl said. “Everybody’s real excited. And they see the retardant bomber arrive and the red stuff come out of the plane. They think, ‘Oh, my God, we’re saved.’ Yeah, not so much.”

Court decision in WildEarth Guardians v. U. S. Forest Service (10th Cir.)

On May 9, the 10th Circuit ruled in favor of WildEarth Guardians and Western Watersheds Project on their NEPA “hard look” claim against the Forest Service regarding the creation of the Wishbone Allotment for domestic sheep grazing on the Rio Grande National Forest. The 10th Circuit agreed with the conservation groups that the Forest Service arbitrarily adjusted the risk of contact between domestic sheep and wild bighorn sheep from “high” to “moderate” based on “local factors” such as geographic features and temporal separation without scientific or factual support (modeling showed a “high” risk of contact). The court held, “In the absence of any science or data suggesting that project design criteria could become effective in combination with other features such as spatial or temporal separation, the USFS’s reliance on untethered ‘logic’ alone is insufficient to satisfy NEPA’s ‘hard look’ requirement.”  Additional background may be found here.

  • Tonto NF mining land exchange

Preliminary injunction granted in Apache Stronghold v. U. S. A. (D. Arizona)

On May 9, the district court enjoined the transfer of lands from the Tonto National Forest known as Oak Flat to Resolution Copper for a copper mining project.  The injunction will be in place until the U.S. Supreme Court determines whether to hear an appeal by plaintiffs from an adverse circuit court decision. The Ninth Circuit’s opinion was discussed here.  The article includes a link to the order.

Motion for preliminary injunction in San Carlos Apache Tribe v. U. S. Forest Service (D. Arizona)

On May 14, plaintiffs in another lawsuit against the same land exchange asked the district court for a broader injunction, until final resolution of the Tribe’s claims.  They state that the Forest Service is attempting to renege on a prior stipulation, saying that they will execute the land transfer immediately after publishing the FEIS, instead of providing an opportunity for meaningful review. They ask the court to enjoin the Forest Service from publishing the FEIS and from executing the land transfer until the Tribe’s claims are fully resolved on the merits.  The article includes a link to the filing.

New lawsuit:  Center for Biological Diversity v. Department of Commerce (D. D.C.)

On May 16, the Center sued the Departments of Agriculture, Interior and Commerce, and the Forest Service to obtain records relating to Section 3 of Executive Order 14225, “Immediate Expansion of American Timber Production,” issued in March.  The complaint states, “The Center and the public are unaware of the Federal Agencies’ responses to this EO. Specifically, the Center and the public are unaware of the new or updated guidance documents the Federal Agencies will issue regarding tools to facilitate increased timber production. The Center and the public are also unaware of the regulations, orders, guidance documents, policies, settlements, consent orders, and other agency actions that DOC, USDA, and DOI have determined “impose an undue burden on timber production.”  The request was submitted on April 3, and the departments had 20 working days to respond.  The article includes a link to the complaint.

In late April, lawyers representing 20 plaintiffs, including individual property owners and the Jemez Pueblo and Jemez Mountains Electric Cooperative, filed a lawsuit against the Forest Service over the 46,000-acre Cerro Pelado Fire in the Jemez Mountains, alleging that the agency was negligent in failing to monitor the area for still-burning embers in the pile of thinned trees and brush it ignited after the snowpack had melted.  “The [Forest Service’s] cover-up of the actual cause and origin of the wildfire resulted in the victims of the fire being left out of the Hermit’s Peak Calf Canyon Fire Assistance Act,” the lawsuit alleges.  The article includes extensive discussion of the legislative and legal actions related to these fires.

BLM

Court decision in Western Watersheds Project v. U. S. Department of the Interior (D. Nevada)

On March 31, the district court upheld the BLM’s decision to treat more than 380,000 acres of pinion juniper forest near Great Basin National Park.  On May 5, Western Watersheds Project and the Center for Biological Diversity filed an appeal with the 9th Circuit.  The news release provides a link to the notice of appeal (but not a copy of the district court opinion).

Preliminary injunction granted in Oregon Natural Desert Association v. Raby (D. Oregon)

On April 30, the district court preliminarily enjoined livestock grazing on 22,000 acres of sage-grouse research areas in Oregon.  The court found likely violations of NEPA and FLPMA when the BLM reduced the number of areas that would exclude livestock grazing for sage-grouse research purposes.  The court stated, “In the absence of a preliminary injunction, any research that scientists could conduct using ungrazed land would be statistically insignificant and therefore of little to no probative value in the sage-grouse conservation efforts for which the [research natural areas] were created in the first place,” and “the public interest in preserving nature and avoiding irreparable environmental injury outweighs economic concerns.”

New lawsuit:  Torongo v. Burgum (D. Michigan)

On May 1, a Michigan resident (a miner in the area of the Monument, represented by the Texas Public Policy Foundation) and the BlueRibbon Coalition challenged the January 2025 designation of the Chuckwalla National Monument as a violation of the Antiquities Act, and the Antiquities Act as a violation of the U. S. Constitution.   They add that, “The designation, as a national monument, of over 600,000 acres of California desert is a political matter for which there is no clear congressional authorization.”  The article provides a link to the complaint.

New lawsuit:  WildEarth Guardians v. Hoffman (D. Oregon)

On May 6, plaintiffs sued over The Hotcase Lane Salvage Project within the 2020 Riverside Fire perimeter. Guardians seeks a declaration that the BLM violated NEPA, FLPMA, and their implementing regulations by failing to prepare an EA or EIS, failing to take a “hard look” at and publicly disclose the Project’s environmental impacts, and failing to comply with the governing resource management plan. The complaint specifically faults BLM for approving salvage logging in riparian reserves where it is prohibited by the plan.  It also alleges that the BLM misapplied guidelines for determining whether trees are dead or dying.  The press release contains a link to the complaint.

ENDANGERED SPECIES

Court decision in WildEarth Guardians v. U. S. Fish and Wildlife Service (C.D. California)

On May 12, the district court set aside the 12-month finding by the Fish and Wildlife Service that the Joshua tree did not warrant listing under the Endangered Species Act.  The court found that the agency’s use of climate change science was arbitrary and capricious, writing in the decision that “the Service has not provided a rational explanation as to why climate change alone does not threaten the species to become threatened or endangered.  The Service provides no explanation as to why it did not use current trends and standards regarding greenhouse gas emissions as a basis for its decision, when this data currently is available.”  It was also arbitrary to define the “foreseeable future” as the middle of the century when most scientific assessments of climate effects consider the end of the century, especially because, “It is essential that the Service considers climate change’s effect on habitat suitability in relation to young Joshua trees, and not just the persistence of stronger, adult Joshua trees.” FWS also failed to consider cumulative threats properly and made an arbitrary determination that the species was not threatened in a “significant portion of its range.”  The article includes a link to the opinion.

OTHER

New lawsuit:  U.S.A v. Vermont (D. Vermont)

On May 1, the U. S. and the Environmental Protection Agency sued the State of Vermont over its Climate Superfund Act, which would make fossil fuel companies responsible for damage that climate change has caused.   The complaint (linked to this article) asserts that, “The Superfund Act is preempted by the Clean Air Act, exceeds the territorial reach of Vermont’s legislative power, unlawfully discriminates against interstate commerce, conflicts with federal interstate commerce power, and is preempted by federal foreign-affairs powers.  The Trump Administration is taking similar actions against Hawaii, Michigan and New York.

Court decision in Blue Triton Brands v. California State Water Resources (Fresno County Superior Court)

On May 5, the company that sells Arrowhead brand bottled water won a court ruling from a California court overturning a decision by California water regulators, who in 2023 ordered it to stop piping millions of gallons of water from the San Bernardino National Forest.  The Forest Service denied the company’s permit application last year and ordered it to shut down the water pipeline and other infrastructure, and that decision is being challenged in federal court.  The Forest Service is also being sued by a local non-profit organization.

New lawsuit:  Washington v. Trump (W.D. Washington)

On May 9, 15 states sued the Trump Administration over its executive order declaring an “energy emergency,” and urging oil and gas expansion through federal use of eminent domain and the Defense Production Act, which allows the government to use private land and resources to produce goods deemed to be a national necessity.  The complaint states, “The Executive Order is unlawful, and its commands that federal agencies disregard the law and in many cases their own regulations to fast-track extensive categories of activities will result in damage to waters, wetlands, critical habitat, historic and cultural resources, endangered species, and the people and wildlife that rely on these precious resources.”  The article provides a link to the executive order and the complaint.

Forest Service reverses its decision in Northeast Organic Farming Association of New York v. U. S. Department of Agriculture (S.D. New York)

On May 12, the Forest Service wrote to the court that it “will restore the climate change-related web content that was removed post-Inauguration, including all USDA webpages and interactive tools enumerated in Plaintiffs’ Complaint,” which includes the Forest Service’s “Climate Risk Viewer,” a “one-stop shop for climate-related geospatial data” with over 140 data layers.  A link to the USDA letter is provided.  We discussed this case here.

Court decision in Idaho v. Bundy (Idaho Supreme Court)

On April 1, the Idaho Supreme Court upheld Ammon Bundy’s conviction for trespassing and resisting arrest when he refused to move out of reserved seats at a special legislative session where he was protesting COVID-19-related public health measures in August 2020.  He was sentenced to 3 days in jail, 40 hours of community service and a $1089 fine.  Bundy and his family first made national headlines in 2014 when they forced the Bureau of Land Management and the Las Vegas Metropolitan Police Department into an armed standoff in Nevada over grazing rights, followed by instigating another armed confrontation over federal land management issues at the Malheur National Wildlife Refuge in Oregon in 2016.  The article links to another that has a link to the opinion.

 

Forest Service (and USDA) News: May 20, 2035: Interim Operational Planning, Whole-USDA Approach to Wildfire, Communication Guidance for Employees

by
  1. Chris French update on interim operational planning

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On May 6, the Chief shared our next steps for implementing interim governance structures and operating plans to ensure we maintain critical services and support. With so much change in the agency and so many folks that are no longer with us, these operating plans are important for us to maintain safety, continuity, and services across the agency. We realize that the organization today must share resources and talent and that all of us may be asked to help out or do work much differently than we did just a few months ago.

Since then, the Chief and I have approved several recommendations developed by interim working groups—many of which are already in the early stages of implementation. These actions aim to maintain essential services, address critical risks, and support the agency’s priorities. Key focus areas with dedicated working groups include:

  • employee and public safety
  • disaster recovery
  • active management (timber/vegetation/fuels)
  • recreation
  • energy, minerals and geology
  • NEPA planning
  • grants and agreements
  • information technology
  • communication and legislative affairs
  • fire response (incident management capacity)
  • human resources
  • law enforcement and investigations
  • budget
  • Chief Finance Office (payments, billings & reimbursable agreements)
  • procurement & property services/contracts, facilities & leasing

It’s important to reiterate that these recommendations are not reflective of, or designed to inform, broader agency reorganization planning; instead, they are necessary to maintain mission readiness.

While many of these actions are still being finalized and embedded within the appropriate staff sections, I want to reiterate what the Chief said in his message—employee and public safety remain our top priorities. To that end, we are proactively dedicating resources to safety systems and programs, including training and qualifying employees with additional safety and risk management skills.

Here are some of the actions underway that will assist our collective efforts and maximize our effectiveness:

  • Establishing zoned NEPA/planning operations in Eastern, Mountain, and Pacific regions to improve support for priority projects.
  • Prioritizing contracts moving forward to manage recreation sites, such as waste management and purchasing of other maintenance supplies.
  • Developing 90-day acquisition, partnership, and capacity plans to prepare for disasters on each administrative unit.
  • Integrating national press desk and issues management with region/station staff to provide zoned coverage, enhanced communication support.
  • Developing an active management collaboration team and tracking tool to help manage timber and fuels, focusing on FY25 contracts and agreements.
  • Defining Casuality Assistant Program/Critical Incident Stress Management (CAP/CISM) responses and prioritizing the hiring of law enforcement and safety officers to address safety concerns.
  • Updating public-facing websites and identifying minimum viable information technology and operational support.
  • Streamlining incident procurement and prioritizing incidents for on-site support.

This is a significant undertaking, and your professionalism and talent make this work look effortless. Thank you for your continued adaptability and grace as we navigate these changes together.

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2. Secretary of Agriculture Letter on Prioritizing Wildfire

Here’s the Directives part of the letter:

A. I hereby direct all USDA Mission Areas to assess their ability to assist with wildfire response within 30 days. Agency administrators should assess the following:
• Take all necessary steps to ensure employees who can support wildfire response have the ability and leadership support to secure or maintain their fireline or fire support
qualifications (i.e., “Red Cards”);
• Assess all business processes and support systems for contracting and purchasing and identify any additional capacity available to assist with wildfire response during peak
wildfire activity; and
• Prioritize funding to increase opportunities for communities and private landowners to reduce wildfire risk.

B. Given the U.S. Forest Service has the strongest and most prepared wildland firefighting force in the world, I hereby direct the Chief ofthe U.S. Forest Service within 30 days to:
• Identify the impact of the voluntary departures on the firefighting and fire support workforce and propose a plan and timeline to remedy critical vacancies and immediate changes to business practices to ensure adequate resource capability and mobilization; and
• Identify and eliminate all barriers and unnecessary procedures, and make use of all needed waivers, to ensure rapid resource deployment when there are imminent threats to life and property this summer.

At Preparedness Level 3 and above, I hereby direct the Chief of the U.S. Forest Service to:
• Prioritize and redeploy the non-fire workforce to support wildfire response as wildfire activity increases. This will include a necessary adjustment to the agency’s other program work. The agency shall provide updates every 30 days to the Natural Resources and Environment Mission Area on workforce capacity constraints and anticipated impacts; and
• Exercise all available authorities, consistent with prior direction, to ensure the agency is using every tool and authority available to meet the Nation’s wildfire response needs.

Throughout wildfire season, I hereby direct the Chief of the U.S. Forest Service to:
• Prioritize wildfire risk reduction efforts in and around communities at risk of wildfire and, where possible, continue to offer timber volume consistent with EO 14225; and
• Use all available emergency authorities, including those outlined in Secretarial Memorandum 1078-006, to prioritize post-fire hazard tree removal and salvage activities as appropriate.

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I’m having trouble imagining how other USDA agencies can help other than maybe, as the letter says, loaning business and support systems.  Probably NRCS has programs to reduce wildfire risk?  Maybe grassland grain and livestock producers need help developing some kind of POD-equivalents?  Folks at universities paid by NIFA grants could be red-carded? It would be interesting to see how the other USDA agencies respond. Maybe rural development grants are going to fire departments or could?  It feels like it’s imbedding fire functions, at least this season, at USDA. Proactive work in terms of keeping the FS from going to Interior?

3. Secs Burgum and Rollins also wrote a joint memo which basically says that they will work together.

4.  Communications Guidance For Employees

This is a piece by Chad Douglas, Director of the Office of Communication.

The basic principle for both: Only speak for the agency if you are authorized to do so; otherwise, be clear you are speaking as an individual..

We all enjoy sharing stories and opinions about our work. As Forest Service employees, we care about issues that affect our families, communities and careers, just like everyone does. I’ve noticed that because you care so much, sometimes on social media and in traditional media lines are crossed that should not be.

We want interaction with the Forest Service to be a positive experience for everyone, and for that reason, there are parameters around how we engage in both social media and news media.

So, what do you need to know before you post to social media or give an interview?

Social Media

Let’s start with rule one. Be clear you are speaking for yourself. That means you do not identify yourself with your job title. And, if you are posting to social media from your personal accounts, we recommend including a disclaimer within your profile clarifying that the views and opinions expressed on the account are your own. Also, make sure to only share publicly available information. Don’t post, share or speak about information you are privy to only due to your position.

Be polite. Social media can be both a very useful tool and a space that can quickly become overwhelming and contentious. We all know we aren’t going to win any arguments on social media. Even if you’re tempted, always keep in mind that if someone takes offense to what you post, they may report you to the agency. If they do, that could trigger a conduct investigation.

Rule two is simple: Don’t post or share personal social media content during work hours. The Standards of Conduct that apply to all federal employees say that, while on government time, we must make an honest effort to perform official duties. There are exceptions—like during lunch or on your day off—but as the saying goes, discretion is the better part of valor. We should avoid unnecessary risks, sticking to times when we are clearly off duty.

Traditional Media

We all have rights—and responsibilities—in this nation with a free press, as well as guaranteed rights to free speech under the first amendment to the Constitution. If you decide to engage with a media representative in a personal capacity, you should make clear to the reporter that you are doing so and not speaking on behalf of the Forest Service. Nor should you be discussing matters related to your professional capacity in such a conversation. It’s important that there is a clear line between personal experiences or opinions and those tied to your job with this agency.

So, what should you do if you are contacted by the media? If a media outlet asks you to provide information or an interview in your professional capacity, it is important that before responding, your first step is talking to your unit’s public affairs specialist. They have a responsibility to help determine the best way to proceed when coordinating media requests. If you work in the Washington Office, coordinate with the national press officer in the Office of Communication. Everyone else, including line officers, should consult with the appropriate public affairs officer for the unit, region, station, area, or institute. You’ll find this policy in Forest Service Manual Chapter 1650, Media Relations.

If the opportunity to speak publicly presents itself, be careful to avoid partisan political events. If you are a speaker at an event, ensure it is non-partisan. That doesn’t just apply to political candidate events or events on behalf of a political party. It also means any events hosted by a partisan political group.

In summary, no matter the forum, always remember to speak for yourself and not the agency, unless you are authorized to do so.

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