Public Lands Litigation – update through March 23, 2023

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Court-world has gotten a little busy lately, with some interesting cases.

Court decision in Capital Trail Vehicle Association v. U. S. Forest Service (D. Mont.)

On March 10, the district court determined that the Helena-Lewis and Clark National Forest had complied with NEPA, NFMA and the Travel Management Rule in adopting the Forest’s Travel Plan.  Plaintiffs were local nonprofit organizations that promote recreational motorized off-highway vehicles, and they objected to the Travel Plan’s restrictions on OHV use.

(The case addresses an interesting point that I’ve seen raised in relation to closing routes to motorized or mechanized uses – that there would be impacts on other users of concentrating that use in fewer areas.  Citing a 1996 9th Circuit case, Bicycle Trails Council of Marin v. Babbitt, which held that “NEPA does not require that an agency take into account every conceivable impact of its actions, including impacts on citizens’ subjective experiences,” this court concluded that possible overcrowding “does not qualify as an ‘environmental effect’ for the purposes of the NEPA cumulative effects analysis.”  It also added, “Adverse impacts caused by more concentrated OHV use may occur regardless because of the increasing demands on National Forests …”)

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

On March 15, the district court ruled that the U.S. Fish and Wildlife Service unreasonably delayed implementing its plan from 23 years ago to introduce grizzly bears into the unoccupied Bitterroot recovery zone, and failed to prepare a supplemental environmental impact statement based on new information about recent occurrences of grizzly bears in this ecosystem.  The court required the FWS to do the latter.  (The article has a link to the opinion.)

Notice of Intent to sue

On March 16, the Center for Biological Diversity, WildEarth Guardians, and Friends of the Earth notified the Department of the Interior and the BLM of their intent to sue under the Administrative Procedure Act for failure to respond within a reasonable time to their “Petition to Reduce the Rate of Oil and Gas Production On Public Lands and Waters to Near Zero by 2035” submitted in January, 2022.  The petition “provides a policy framework for managing the decline of federal oil and gas production to near zero by 2035.”  Said Taylor McKinnon with the Center for Biological Diversity, “The climate deadline to end oil and gas extraction in the U.S. is 2034, and the natural place to start is on land the federal government controls.”

Proposed listing

On March 17, in response to a Center for Biological Diversity lawsuit, the U.S. Fish and Wildlife Service proposed protection for the Texas heelsplitter (endangered) and Louisiana pigtoe (threatened) found in five southern states, and designated 1,860 river miles as critical habitat.  The proposed rule states, “With regard to silvicultural operations that occur on forested areas across the range of the species, we recognize that private timber companies routinely implement State-approved best management practices.  However, it is important to recognize that while BMPs reduce timber harvest impacts, they do not eliminate impacts; therefore, sensitive species and their habitats may still be impacted even when BMP guidelines are followed.”  (The news release includes a link to the proposed rule.)

Court decision in Texas v. EPA (S.D. Tex.)

On March 19, the district court issued a preliminary injunction to temporarily halt the enactment of the Biden administration’s new waters of the United States (WOTUS) rule within the borders of Texas and Idaho.  On March 20, the rule became effective throughout the rest of the United States.  Background on this issue about the scope of the Clean Water Act and other related litigation is included here.  (The article includes a link to the opinion.)

Motion for a preliminary injunction in Center for Biological Diversity v. U. S. Forest Service (D. Mont.)

On March 20, the Center and four other conservation groups asked the district court to enjoin the construction of logging roads for the Knotty Pine Project on the Kootenai National Forest.  The project would allow more than 5,000 acres of commercial logging over 10 years, and the groups oppose the project because all but 1,200 acres of the project lies within core habitat of the Cabinet-Yaak Grizzly Bear Recovery Area.  The lawsuit was filed last June.  Here is some additional background.

Court decision in WildEarth Guardians v. U. S. Forest Service (D. Idaho)

On March 21, the district court held that the Forest Service had not violated ESA with respect to the use of bait for hunting black bears in Idaho and Wyoming.  The plaintiffs were concerned about effects on grizzly bears of baiting for black bears.  The Forest Service generally allowed this practice on the national forests based on a 1995 national policy that had replaced the practice of issuing individual special use permits for bear-baiting, and allowed states to regulate.  The history of the bear-baiting policy is complicated and included prior consultation on grizzly bears that was withdrawn, but the court specifically found that the 1995 policy was not an agency action and did not establish future criteria for action (that did not already exist), and therefore consultation under ESA was not necessary,

(But what if the agency action that allows states to regulate bear-baiting is the forest plan, which is where forest-level management policy is considered and decided, and where some forest plans have included direction to regulate hunting?  Forest plans are subject to ESA consultation and reinitiation requirements.)

Notice of intent to sue

On March 22, the Center for Biological Diversity and Nokuse Education, Inc. filed a formal notice of their intent to sue the U.S. Fish and Wildlife Service for denying Endangered Species Act protections to the eastern population of gopher tortoises in 2022.  These gopher tortoises have allegedly lost 97% of the longleaf pine savannas they historically inhabited in Florida, Georgia, South Carolina and most of Alabama.  (Gopher tortoises in limited parts of Louisiana, Mississippi and western Alabama are already protected by the ESA.)

Settlement in Center for Biological Diversity v. Daugherty (D. Or.)

On March 23, the Center for Biological Diversity announced settlement of this lawsuit against the Oregon Department of Forestry for the incidental take of coho Salmon in the Tillamook and Clatsop State Forests.  The settlement will increase no-cut buffers around streams to 120 feet and increase the number of non-fish bearing and seasonal streams that receive protections.  It will also require an inventory of forest roads in the next five years.  Both of these conditions are expected to be included in a state-wide habitat conservation plan (which is also discussed here).  (The news release includes a link to the agreement.)

Court decision

On March 23, the district court ruled against the Reno-Sparks Indian Colony, Summit Lake Paiute Tribe, and the Burns Paiute Tribe, who argued that the Bureau of Land Management violated several laws when it permitted the Thacker Pass lithium mine to Lithium Americas.  In particular they object to the tribal consultation, as discussed here.  Construction has begun.

  • Fire damage claims

Court decision in Strawberry Water Users Ass’n v. U. S. A. (D. Utah)

On March 24, the district court dismissed plaintiff’s claims of negligence and trespass by the Wasatch-Cache and Uinta National Forests under the Federal Tort Claims Act alleging it failed to adequately suppress two wildfires in 2018, the Bald Mountain Fire and the Pole Creek Fire, which damaged their property.  To avoid the discretionary function exception from such claims against the federal government, plaintiffs would have to show that the action taken was not within the employee’s discretion pursuant to agency policy.  The court cited forest plan guidelines for wildfire use, a “Default Initial Fire Response Map,” and national fire policy and guidance in holding that the agency actions met the requirements for a discretionary function exception.  The court admonished plaintiff’s attorney for trying to distinguish this case from binding precedents by, “blatantly twisting the government’s written policy statements to make the case that the Forest Service intended to burn non-National Forest lands.  Here is some background information.

Plaintiff attempted to attack the cited map, which allowed wildfire use in these areas, for not complying with the NEPA process when it was adopted, but NEPA violations are outside of the scope of the Federal Tort Claims Act (and therefore damages could not be recovered for this procedural claim, even if valid).  (This court refused to address the merits of the NEPA claim, but I believe that the development of a map that established different management of fires in one area from another should have followed the NFMA forest planning (amendment) process, including NEPA.  There is no mention of the public participation in the decision to potentially allow wildfire use, but it seems like there would have been a lot of interest.)

Court decision in Schurg v. United States (9th Cir.)

On March 28, the appeals court held that determining how to consult with private landowners during the Lolo Peak Fire about fire suppression activities on their properties near the Lolo National Forest “was precisely the type of decision the discretionary function exception was designed to shield,” and denied their damage claims under the Federal Tort Claims Act.

 

Let’s Share CEQ Stories: and Why EPA May Not Give Retardant Regs the Attention They Deserve

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Thanks to the many folks who have contacted me with their own concerns and observations about how the CEQ-Agency decision process is working. I had no idea that the concern was as widespread- and in areas I didn’t expect. So thank you all for reaching out!

My own CEQ Stories: Please Add Yours..

For me, I had expectations for the role of CEQ based on my own experiences. Absolutely each Admin can run things the way they want. Still, as it turns out, there is a vast body of people who work in and with government- what we might call Faithful Denizens of the Swamp- with many familial, friend and other connections who communicate with each other across party and other lines. I too was a Swamp Denizen and proud of the work I did as a career civil servant- trying to keep politicals from doing questionable things- and finding good ideas and floating them when different parties come into power. I I put the word faithful because most of us are faithful to values beyond a political party.. like good government, whatever that it. IMHO good government must be measured by trust, accountability, and the real-world effects on citizens (not hot air). As we used to say, the occupational disorder of DC is believing your own hype.

I have had three experiences of working directly with CEQ.
One was when I worked with Dan Magraw of EPA (assigned to CEQ) on regulation of genetically engineered organisms during the Clinton Administration. I was working at the Office of Science and Technology and the project was joint with CEQ. Dan and I were co-leads.
The second was working on the Limited Timber Harvest Categorical Exclusion during the Bush Administration (as the FS NEPA person). The third was as the FS NEPA person on the interagency NEPA group, but I’ve told that story before.

I was chuckling thinking that when I worked at OSTP (the White House Office of Science and Technology Policy, like CEQ, part of the White House, but not what you think of exactly as “the White House”) the 2001 Planning Rule came through to be cleared. I raised the issue with OMB as part of the clearance process that the costs might be.. well.. underestimated. I got one of the OMB staffers interested in that, until that was shut down by our then-undersecretary (if he needed additional clout to do this, I have no idea). The story goes the Undersec complained to my FS boss at the time (Bill Sommers) who told him “what did you expect when you sent her over there?”

When we finished our interagency report on GE organism regulation, our bosses presented it to George Frampton, the CEQ Chair, with us in the room. He said basically.. no. So I think the higher ups and others had a discussion with him prior to the meeting, and that was definitely a joint Administration decision. Somehow biotech companies had the ear of the powers that were.

When I worked on Limited Timber Harvest, CEQ folks raised lots of questions. Patiently Pam Gardiner and I would answer questions,  and this back and forth went on for months. At one point Pam and I went to a meeting with Mark Rey, our Undersecretary at the time, and as I recall, Jim Connaughton, the CEQ chair dropped in to say to the CEQ staff person “enough is enough” and that was that. Again, I don’t know if Mark, the Sec, Jim, and others had had some prior convo.

I know other readers have had their own experiences. Again, any Admin can organize the way it wants to. However, if one chooses to operate differently, it will raise eyebrows among those who are used to working within the system. And my experiences are old now, but my still-friends in the Faithful Denizens of the Swamp who have emailed and called me are concerned about this new role. At the same time, a big change since the old days  is where exactly climate concerns are interspersed in all this -who hold what “climate” cards, where and how is the climate game played exactly?

Why Not Give More Work to EPA?

Yes, let’s give those poor feds another task.. rulemaking for fire retardant to the EPA! Why not? This is not negative about EPA, but they seem to already have too much to do.

First,  they’re 20K people down and say that they can’t do what’s in the IRA and BIL … see Grist story here..

Today, the workforce is around the size that it was under President Ronald Reagan in the 1980s. The AFGE has said that the agency will need 20,000 full-time staff, a 40 percent increase, to carry out the programs it has been tasked with.

Nicole Cantello, who practiced as an EPA attorney for three decades before joining AFGE Council 238 full time in 2020, told Grist that the issue is not only with hiring, but also with retention. A dearth of promotional opportunities and limited work-from-home options have caused retirement-age employees to depart early. Roughly 20 percent of the EPA’s staff have been at the agency for 30 years or more and could elect to retire soon.

************

For members of AFGE, the staffing shortages are both personal and existential. A failure to address them could have repercussions for generations to come.

“Our mission has grown enormously, and climate challenges continue to escalate, but EPA’s inability to hire and retain staff has created a crisis,” said AFGE Council 238 President Marie Powell Owens in a statement. “We need to raise pay and restore career ladders now. The future of the EPA and our planet are at stake.”

The 2023 TSW Hyperbole Award may well go to Ms. Owens.

It’s also just too… hard… to keep track of all that money. Check out this non-paywalled story from Bloomberg Law. Et tu, Congresswoman DeGette?

The EPA’s inspector general raised concerns to House lawmakers Wednesday that his office can’t adequately track the tens of billions of dollars flowing into the agency from the infrastructure and climate laws under its current funding.

The comments from Sean O’Donnell and two other agency inspectors general come as some congressional Republicans’ concerns that the Biden administration is frittering away taxpayer dollars and increasing the national debt.

“Over the past two years, your federal government has been spending taxpayers’ dollars like it was Monopoly money,” said Rep. Morgan Griffith (R-Va.), chair of the House Energy and Commerce Oversight and Investigations Subcommittee.

But Rep. Kathy Castor (D-Fla.), the panel’s top Democrat, countered that funding from the infrastructure and climate bills is crucial to protect the environment and grow the economy. Rep. Diana DeGette (D-Colo.) said that, despite the financial risks of pushing billions of dollars out the door quickly, the risk of doing nothing is unacceptable.

Broadly, O’Donnell and the other inspectors general pointed to shortcomings in their offices’ ability to oversee government spending. O’Donnell said he wasn’t asking Congress for new money, but “to actually use the money that’s already been given to pay for that independent audit.”

It’s kind of sad to me, as a former Faithful Swamp Denizen,when oversight is seen (by some partisans) to be a partisan issue. Is the future of the planet at stake if billions don’t go out the door fast enough? I can sympathize with those who might wonder (given the non-ground-truthed maps) whether there might be some kind of well- directed- funding in all this? My view.. if people are not trusting, don’t call them names (tinfoil hatted and all that).. become more trustworthy.

EPA EJ Office has cash, staff but not boss.. (E&E News, 3/27/23)

And finally, GAO points out that EPA has not been playing well with land management agencies as reported here earlier.

What could possibly go wrong assigning a new retardant rule to EPA?

Scientist “Rebuking” Other Scientists in Court? OSU Scientists (and Others) at Loggerheads

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Sorry for the headline.. couldn’t resist.

Thanks to Nick Smith, I found this article. I don’t think the context will surprise anyone. I think it’s a good article in terms of showing both sides.  Hopefully you can access it with a free sign-up, fortunately I had a “non-free” email account to use to sign up.

Law360 (March 31, 2023, 7:26 PM EDT) — An ecology professor at Oregon State University rebuked her colleague over his support for new regulations that weaken protections for large trees in the Pacific Northwest, telling a federal judge that scientists are divided on whether such trees pose a legitimate wildfire risk.

The new rules, which the U.S. Forest Service adopted in early 2021, replaced a set of restrictions known as the Eastside Screens that outlawed removing trees more than 21 inches in diameter from almost 8 million acres of national forests in the Cascade Mountain Range.

Contrary to what the Forest Service and a group of scientists have testified, large trees do not substantially contribute to wildfires, according to Beverly Law, a professor in the Department of Forest Ecosystems and Society at Oregon State.

Law, whose formal title is professor emeritus of global change biology and terrestrial system science, told an Oregon federal court on Wednesday that she joined more than 150 other scientists in opposing the Eastside Screens revision before it took effect. Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

That claim to a scientific consensus, Law told the court, “does not accurately reflect the state of the science generally on these topics, nor specifically the best available science and field verification of the condition of the forests at issue in this case.”

The interdepartmental spat — at a university whose mascot is the timber-minded Benny Beaver — comes amid litigation that six environmental groups initiated last June.

Forest Service officials, the groups claim, followed a shoddy review process before adopting the Eastside Screens amendment by forgoing a full environmental study and stifling public opposition.

A group of 15 scientists, led by Oregon State professor James Johnston, is defending the change in a not-yet-approved amicus letter, saying that forest-thinning activities have prevented ecological disasters and benefited the natural environment. Indeed, “no meaningful controversy among scientists exists” on that topic, they told the court in a Feb. 10 submission.

For those curious at this point, here are the 15 I. Derek Churchill, Ph.D., Forest Health Scientist, Washington State Department of Natural Resources 2. Don Falk, Ph.D., Professor, University of Arizona School of Natural Resources and the Environment 3. Jerry Franklin, Ph.D., Professor Emeritus, College of Forest Resources at University of Washington 4. Keala Hagmann, Ph.D., Research Ecologist, Applegate Forestry LLC
5. Lori D. Daniels, Ph.D., Professor, Department of Forest and Conservation Sciences at the University of British Columbia 6. Matthew Hurteau, Ph.D., Professor, Department of Biology at the University of New
Mexico 7. Meg Krawchuk, Ph.D., Associate Professor, College of Forestry at Oregon State University 8. Norm Johnson, Ph.D., Professor Emeritus, College of Forestry at Oregon State University 9. Peter M. Brown, Ph.D., Director, Rocky Mountain Tree-Ring Research 10. Robert W. Gray, Fire Ecologist, R.W. Gray Consulting, Ltd. 11. Scott Stephens, Ph.D., Professor of Fire Science, University of California Berkeley 12. Susan Prichard, Ph.D., Fire Ecologist, University of Washington School of Environmental and Forest Sciences 13. Thomas H. Deluca, Ph.D., Dean, College of Forestry at Oregon State University 14. Trent Seager, Ph.D., Director of Science, Sustainable Northwest. Back to the story:

But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.

That group told the Forest Service that weakening its tree protections was “highly controversial from a scientific perspective” and accused the agency of “rushing forward without adequately analyzing the impacts of the proposal on wildlife habitat, aquatic ecosystems, hydrological cycles and carbon values.”

Law, in a declaration filed by the environmental groups, cited past research indicating that large trees create a canopy that prevents sunlight from drying out the forest floor — a key to preventing wildfires. Debris on the forest floor accounts for around half of the combusting material in a wildfire, she noted, whereas large trees rarely ignite.

Johnston and federal regulators, Law argued, “are making a mountain out of a molehill.”

“We cannot know where wildfire will burn, yet they have eliminated protections for large trees based on a gross overstatement of the risk so that the Forest Service will be able to authorize the preemptive killing and removal of large grand fir trees across the entire landscape,” she said.

Adopted in 1994 as a broad series of timber regulations, the Eastside Screens included a blanket prohibition on removing any tree measuring more than 21 inches in diameter at “breast height,” a standard measurement in forestry.

The federal government began exploring possible amendments to that restriction in 2020, noting that climate patterns, long droughts and poor forest management have produced a worsening pattern of wildfires. Rather than a blanket protection, the rules adopted a year later by the Forest Service carry only a discretionary guidance to preserve some old and large trees.

That policy shift, the agency has argued in court, “satisfies all statutory requirements and enjoys strong scientific support.”

“The weight of scientific consensus counsels the Forest Service to mitigate [wildfire] threats by actively managing forests to favor more historically prevalent, fire tolerant species,” it said in February. “But that change is impossible if the Forest Service cannot cut any competing fire intolerant species over 21 inches in diameter.”

Two advocacy groups, the American Forest Resource Council and the Eastern Oregon Counties Association, are backing the revisions as a common-sense move that doesn’t spell ecological disaster.

But the environmentalists want to focus on their allegations of procedural errors. The groups, in a court filing on Wednesday, said the Forest Service “shortened the [amendment] process and swept substantial controversies under the rug.”

“This court need not wade into the scientific debate to determine that important steps were skipped,” they said, adding that “the failure to abide by the required procedural steps necessitates vacatur and remand of the Screens Amendment.”

The plaintiffs have sought to keep Johnston from getting amicus status, arguing in February that his opinion “is already both functionally and legally represented” because he consults for the Forest Service.

1) I also thought this was an interesting disciplinary observation..

Their views, she said, indicate that ecologists aren’t unified on the question of tree removal, as her Oregon State colleague has indicated.

This seems like a fuels and fire behavior question to some extent, and also a tree physiology question.  It would be interesting to discuss why some scientists in some disciplines come to different conclusions based on what kinds of evidence. Not that this discussion will happen in the courtroom environment.

2) I wonder about the amicus letter thing.. Maybe our legal minds here can weigh in.  What is the difference between Law testifying (giving her opinions) and Johnston et al. giving their opinions to court? If 15 scientists signed on to the amicus letter and she thinks that isn’t kosher because Johnston takes bucks from feds, what about the others? Don’t all university scholars take bucks from feds? Is the difference consulting vs. research?

3) “But Johnston, an assistant professor in the Department of Forest Ecosystems and Society who is also a paid Forest Service consultant, failed to note the objections from Law and many other scientists, she said Wednesday.”

I don’t think he would have to.. isn’t that the role of the response to comments in the EA or EIS? Does her testimony note objections from Johnston?  It doesn’t seem like a legal thing to do that, but I don’t know.

4)  Yes, Johnston is helping Blue Mountains Partners as part of the CFLRP (as far as I understand). As part of that the people there decide what to be studied and have the funds to study it.  It seems to me that local scientific knowledge would be prioritized in some sense over non-local. So Johnston shouldn’t get paid to do that exceedingly useful work? I find this most concerning of all of this.

5) Wouldn’t it be interesting if OSU would  pioneer some kind of scientific joint-fact finding effort in which scientists could engage in discourse with the public about their research design, findings and interpretation? It could be a model for such disagreements and be a form of science education, both to the public and to students? They could bring in the best minds on environmental conflict resolution and other experts… And field trips!!!

Jim Petersen on Lolo Forest Plan

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From The Western News. Excerpt:

The new Lolo Forest Plan revision speaks to diversity, inclusion, social justice, wilderness and wild and scenic rivers, but not a peep about the economic importance of the Montana and Idaho timber industries or the wildfire/ forest health pandemic that grips national forests in both states.

I’ll skip the economic and social stuff because I know others won’t. But I refuse to whistle past the graveyard the Lolo is becoming. You can drive in any direction from Missoula and find visual proof of the power of science- based forestry: The late Steve Arno’s silvicultural research at Lick Creek, near Hamilton; the beautiful groves of ponderosa and larch on the back side of Seeley Lake; the park-like stands on ponderosa on both sides of Highway 135 north of St. Regis; and the thinnings my friend, Tim Hancock is doing on private land near Ravalli.

Far more trees are dying on the Lolo Forest today than when Leiberg saw it in 1898 because there are too many for the carrying capacity of the land.

The solution to this environmental injustice is simple: thinning and prescribed fire, thinning and prescribed fire. Repeat in perpetuity.

Why on earth is the Lolo staff ignoring this? Has anyone on the Planning Team read the Montana Forest Action Plan that the Forest Service helped develop and signed? It doesn’t look like it.

Stockade Flat Fire

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Forestry Aide Maurice Crawford and I were captured on film at the July 1965 Stockade Flat Fire.

 

How’s this for awkward? A few Bridgeport Ranger District fire crew and trail crew guys fighting a timber fire on the West Walker Ranger District as 32 smokejumpers from Redding, California, and Medford, Oregon, soon aided by air tankers and helicopters and reinforced by Forest Service crews including one of 26 Sho Pai firefighters from Owyhee, Nevada, later joined by hot shot crews from the Cleveland and Lolo national forests, a crew of Santo Domingo firefighters from New Mexico, and additional Toiyabe National Forest firefighters—along with our fire control officer and just two of our district’s firefighters—handling a remote several-hundred-acre range fire on our own district.

Fire Control Officer Marion Hysell spotted the smoke rising behind the Bodie Hills on the evening of July 8, 1965, while returning to the Bridgeport Ranger Station from Twin Lakes. As soon as he got to the station, he dispatched me with four firefighters in the pumper and followed in the Jeep with two others. As darkness fell, Marion and Toiyabe National Forest fire staff officer Blaine Cornell, who was scouting the fire from the air—operating under the philosophy that no fire is worth a man’s life—agreed that a night attack on this fire, burning in remote rugged country of relatively low resource values, would be dangerous and impractical. We were sent back to the ranger station to prepare for whatever the supervisor’s office cooked up for the next morning. They planned a daybreak attack that would involve extensive air operations and off-forest crews.

Citing our district’s high fire danger and low manning level, Marion had asked the supervisor’s office not to strip it of all its own fire-qualified personnel. So, instead of going to the Wichman Fire with Marion and just two of our firefighters, I was back on patrol the next day.

As usual, Marion’s call was a good one. Shortly after noon the next day, as I was completing a Buckeye Canyon patrol, my radio crackled with the Bridgeport Ranger Station report to the Toiyabe National Forest dispatcher of a fire at Stockade Flat. That fire, just north and west of Devils Gate on the West Walker Ranger District, had been reported to the station by passing southbound motorists.

Range Conservationist Ken Genz, acting as district ranger between Ranger Bob Hoag’s transfer to the Sawtooth National Forest in Idaho and arrival of a new district ranger from Utah, had sent our two-man trail crew, recalled from their Hoover Wilderness camp when the Wichman Fire took off, to check it out. The fire was burning in Jeffrey pine timber and logging slash, and threatening to run. All they could do was try to head it off and call for help. I was already rumbling back to the ranger station when Ken called.

“You and Crawford will have to take a couple more guys up there and handle it. I’ve requested an air tanker.”

Maurice Crawford assumed the duties of fire boss and, handing me the air net radio, told me to handle air operations.

I cranked up the pumper and all six of us built fireline for all we were worth. The air tanker, an old Navy TBM, responded to my request for a good drop across the head of the fire. We held the Stockade Flat Fire to about five acres, and were released when Alpine District and West Walker District firefighters—not so fresh from our Wichman Fire—arrived to mop up.

Meanwhile, the Wichman Fire had been controlled, and the Bridgeport District crew was to relieve the remaining smokejumpers and hot shots being released the next morning. I didn’t join this mop-up operation. Instead, I went up New York Hill to provide radio relay services. But that’s another story.

 

Adapted from the 2018 third edition of Toiyabe Patrol, the writer’s memoir of five U.S. Forest Service summers on the Toiyabe National Forest in the 1960s.

 

Note: A reader pointed out an error in the March 25, 2023, “Robinson Creek Fire” article. In the second sentence of the twelfth paragraph, the sentence should read “Before the fire was two hours old” rather than “two years old.” Thanks to that reader!

 

New BLM Rule Surfaces on April Fool’s Day! Biden Admin Adopts PERC Ideas-Signs of a Libertarian Turn?

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An alert TSW reader sent me the new BLM reg which is full of interesting stuff- today, April Fool’s Day.

It’s to be released Monday.

What is Monday? Well, we’re coming into the week of Passover for Jews and Holy Week for Christians.  If you are in either of those groups,  your eyes tend to be focused on history, the spiritual and family. So no, not good timing for something very complex. Although to be fair, the press release had one version was posted on the 30th.

There is indeed MOG stuff in there..and the FS is coming out with their MOG maps soon. I think political scientists would be fascinated by the differences in approaches between the FS and the BLM. I am still a fan of the Service First concept. In my experience, the public liked it a lot (local human beings with direct experience). Is it in the interests of good government for these two agencies to be pushed apart by certain groups with current political power? Should it be a Good Government priority to manage any policy and procedural drift between the two multiple-use agencies carefully?

I thought of our old TSW friend David Beebe, who used to say that the FS was a “captured agency”. (We miss you, David!) When I looked up “regulatory capture” on Wikipedia.. I realized that agencies could be captured by ideological forces..

In politics, regulatory capture (also agency capture and client politics) is a form of corruption of authority that occurs when a political entity, policymaker, or regulator is co-opted to serve the commercial, ideological, or political interests of a minor constituency, such as a particular geographic area, industry, profession, or ideological group.[1][2]

When regulatory capture occurs, a special interest is prioritized over the general interests of the public, leading to a net loss for society. The theory of client politics is related to that of rent-seeking and political failure; client politics “occurs when most or all of the benefits of a program go to some single, reasonably small interest (e.g., industry, profession, or locality) but most or all of the costs will be borne by a large number of people (for example, all taxpayers)”.[3]

(my bold)

I’m sure we may disagree about what “the general interests of the public” are.. whether processes or outcomes, and how these might best be determined. Nevertheless, I would say that the “general interests of the public”  is to have the two agencies attempt to harmonize as much as possible.

Anyway, I’m sure there’s lots of interesting stuff in there to talk about. Let me know in the comments, and we can set up separate posts/discussion threads for different topics of interest.

Sometimes on TSW I’ve heard negative things about PERC. Certainly they are fans of things some people here disagree with (as per Jonathan Wood’s House testimony last week on the Cottonwood fix).

They have long touted conservation leasing . Here’s their March 31 post, with links to other of their articles on the subject. I am not necessarily a fan of conservation leasing, but I do like it when the government takes ideas from all comers, regardless of ideological orientation.

Though more work remains to advance conservation leasing, this announcement represents a positive step forward toward that goal.

“The Bureau’s proposed rule is a big step in the right direction toward putting conservation on equal footing with other uses like drilling, mining, and ranching. Empowering conservationists to channel their interests through a market mechanism is more effective than zero-sum political warfare.”—Brian Yablonski, CEO, PERC

PERC believes that creating markets for conservation on public lands would allow resources to be managed for their highest-valued uses, whether that means consumption or conservation. Open markets that give everyone a seat at the table would be a cooperative way to make trade-offs in land use decisions and reduce conflict through voluntary exchange.

 

BLM Proposed Rule Stirs Up MOG-y Drama With Certain ENGOs

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Perhaps a proposed Rule will drop in the Federal Register tomorrow. But I received this email today. It was so different from the DOI announcement that Steve posted, that at first I didn’t think they were talking about the same thing. But maybe there are two? Anyway it sounds like some groups were given advance copies so they could respond quickly.. but maybe they are guessing, or engaging in wishful thinking. From what I’ve heard, the FS will have some information on their OG initiative within the month. Hopefully the agencies are aligned. I think the theme of these two weeks is “are agencies aligned? And how does that occur? And who is calling the shots?”

Contact:

Environment America Research & Policy Center,
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Department of Interior moves to protect mature and old-growth trees and forests from logging

Wide-ranging rule will include Bureau of Land Management forest policies

WASHINGTON, DC – The U.S. Department of the Interior (DOI) announced Thursday a wide-ranging conservation rule with a goal to “promote ecosystem resilience on public lands” and which includes an acknowledgment of the importance of mature and old-growth trees and forests. The DOI will launch a 75-day public comment period during which members of the public will weigh on forest protection and other policies being considered. Members of the Climate Forests Campaign, a coalition of more than 120 organizations working to protect mature and old-growth trees and forests on federal land from the threat of logging, praised this welcome recognition by DOI, and further called on the U.S. Department of Agriculture (USDA) to adopt rules that protect mature and old growth trees and forests as part of its work to restore U.S Forest Service lands and safeguard communities from fire.

Thursday’s announcements come nearly a year after President Biden issued an executive order acknowledging the critical roles that forests play in fighting climate change and protecting wildlife habitat and directing the DOI and USDA to “develop policies, with robust opportunity for public comment, to institutionalize climate-smart management and conservation strategies that address threats to mature and old-growth forests on Federal lands.”

Over 63 million acres of mature and old-growth forests safeguard carbon, clean water, and biodiversity across all federal public lands, including over 5 million acres managed by the Interior Department’s Bureau of Land Management (BLM) and over 53 million acres managed by the U.S. Forest Service in the U.S. Department of Agriculture. Of these, some 50 million acres are at risk from logging. The DOI’s announcement would begin a rulemaking process for forests managed by the BLM.

The Climate Forests Campaign has been working to raise awareness about the necessity of protecting these trees and forests from logging highlighting 22 logging projects targeting mature and old-growth trees in Forest Service and BLM forests. Yet, only one of those projects, Flat Country in the Willamette National Forest, has been withdrawn because it was incongruous with the Biden administration’s policies regarding protecting trees that are important for fighting climate change.

In response to the agencies’ announcements, advocates issued the following statements:

“This is a much welcomed, necessary step in the right direction for protecting mature and old-growth forests,” said Blaine Miller-McFeeley, senior legislative representative at Earthjustice. “President Biden made clear last Earth Day that he wants to incorporate the conservation of these vital trees as a part of the climate solution. We encourage the U.S. Forest Service to follow the lead of the Bureau of Land Management in progressing that vision.”

“These agencies face many challenges when it comes to protecting mature and old-growth forests on federal lands and they have enormous sway over whether logging takes down our mature forests,” said Environment America Research & Policy Center’s Public Lands Campaign Director, Ellen Montgomery. “Americans love our forests and want to see our oldest trees growing tall for decades and centuries to come. We’ll urge people to make these views known through the upcoming public comment process.”

“BLM manages some of America’s most climate-critical mature forests and trees,” said Garett Rose, Senior Attorney at the Natural Resources Defense Council (NRDC). “Logging them releases carbon, destroys habitat, and undermines recreational opportunities. Following today’s welcome announcement, the Agency must ensure that the final regulation includes robust protection for these magnificent forests and trees.”

“Recognizing the importance of mature and old-growth forests as a natural climate solution is a huge step forward for the Bureau of Land Management,” said Oregon Wild’s Conservation Director, Steve Pedery. “Now all eyes are on Secretary Haaland to see meaningful protections established that preserve these giants from logging and ensure they remain standing for generations to come.”

“The Department of the Interior manages some of the most important landscapes and ecosystems in the country, including portions of our last mature and old-growth forests,” said Alex Craven, Senior Campaign Representative with Sierra Club. “Today’s announcement shows important leadership from Secretary Haaland, and we look forward to working with the department to make sure it delivers long-awaited protections to these vital and precious forests.”

“We commend the US Department of Interior for taking an important step in the right direction for the protection of the Bureau of Land Management’s mature and old-growth forests,” said Zack Porter, Executive Director of Standing Trees, which advocates on behalf of New England’s public lands. “Now that the BLM is leading the way forward, we expect the U.S. Forest Service to quickly follow suit so that all mature and old-growth forests on federal public lands can be protected for the benefit of future generations, as directed by President Biden in his executive order from Earth Day 2022.”

“The BLM and President Biden recognize the crucial role mature and old-growth forests have in helping address the climate crisis, and we remain hopeful the government will safeguard them from harmful logging operations,” said Adam Rissien, WildEarth Guardians’ ReWilding Manager. “Halting the logging of older, fire-resistant trees is an immediate step the agency can take to stop exacerbating the many natural threats forest face under a changing climate.”

“BLM older forests are some of the most carbon dense on the planet that are essential to the Biden administration’s nature-based climate strategy. They should be protected from all forms of logging as part of BLM’s overall stewardship responsibilities and in compliance with the president’s executive orders to inventory older forests for conservation purposes and to protect 30% of the nation’s lands and waters by 2030” said Dominick A. DellaSala, Ph. D, Chief Scientist, Wild Heritage, Oregon.

Nantahala-Pisgah forest plan revision – done

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The Nantahala-Pisgah National Forest has completed revising its forest plan.  The final plan was released on February 16 and implementation began last week.  The revision website is here, and the response to the objections is here.

Said Sam Evans, leader of the National Forests and Parks Program for the Southern Environmental Law Center (and Smokey Wire contributor) “A big disappointment for me here at the end of the process is that it is more of the same. It’s going to drive a wedge between stakeholders that had found consensus.” “We can sue over the plan,” Evans said. “We can oppose projects as they come up under the new plan. I would say the only thing that’s not an option for us is letting this plan roll out and be implemented in a way that continues to degrade those same resources — unroaded areas, healthy, intact forests like the state Natural Heritage Areas and existing old growth.”  The ”stakeholders” would be the Nantahala-Pisgah Forest Partnership of 20 interested organizations.  This article continues to discuss these disappointments in more detail (though apparently not all of the stakeholders are unhappy).

The Partnership wanted to see various tier objectives tied together so that, for instance, the Forest Service couldn’t move on to Tier 2 timber harvest goals without first meeting Tier 1 goals in other areas, such as invasive species management and watershed protection. Additionally, the Partnership said, the plan should require ecological restoration treatments to be paired with any commercial timber harvest occurring on the forest landscape.

The group was also concerned that 54,000 acres of state Natural Heritage Natural Areas were placed in management areas open to commercial logging and road building, and that the plan didn’t allow for protection of old growth patches found during timber projects. The group wanted to see a “cap and trade” approach to the 265,000-acre Old Growth Network identified in the plan, so that lower-quality patches in the network could be swapped out for higher-quality patches encountered during projects.

According to Evans, only 30,000 acres of the 265,000 acres is at the minimum age level to qualify as old growth, and the remainder is middle-aged forest of 60-100 years. Meanwhile, known old growth stands were not included in the network. The Forest Service does not have a figure for the number of acres in the network that currently qualify as old growth. “We’re trading young forest that maybe will become older one day for existing old growth now,” Evans said, “and that isn’t a good trade for the species that live in old growth forests and don’t move around.”

The forest supervisor had an interesting response to this old growth issue:  “Because of the complexity of the forest, there’s always going to be places that we might find a particular stand that is in that older forest type, and we can say, ‘You know what, that’s an area that’s special, and that we want to favor for those types, and that’s part of a larger project that’s holistic in a given area,’” he said.  They CAN say that project-by-project, but by allowing that flexibility, does the PLAN comply with the requirements for it to affirmatively provide habitat for at-risk species?

There is also disagreement about whether it does what it should to address climate change.  It apparently pits carbon storage (mitigation) vs “resilience” (adaptation).  Shouldn’t carbon storage projections include any additional risk of having less “resilient” forests?  There was a recent question on this blog about how forest plans are dealing with climate change.  This article (which also highlights the criticisms of the plan) lists the Forest Service’s seven main goals for “dealing with the impacts of climate change” (which are about adaptation rather than mitigation)

  • “Where there are species at risk that are susceptible to the effects of climate change, promote activities that support suitable habitat enhancement.
  • “Consider and address future climate and potential species range shifts when planning restoration projects, facilitating species migration and adaptation when possible.
  • “Monitor for new invasive species moving into areas where they were traditionally not found, especially in high-elevation communities. Utilize the monitoring information to assess threats and prioritize treating highly invasive infestations.
  • “Restore native vegetation in streamside zones to help moderate changes in water temperature and stream flow and enhance habitat.
  • “Anticipate and plan for changes in natural disturbance patterns.
  • “Prepare for intense storms and fluctuations in base flow using methods that maintain forest health and diversity, including controlling soil erosion, relocating high risk roads and trails, and constructing appropriately sized culverts and stream crossings while retaining stream connectivity.
  • “To maintain genetic resiliency, consider locally adapted genotypes for use in restoration projects.”

What’s next?  Will Harlan, a scientist for the Center for Biological Diversity said (here) communities still  not satisfied with the decision will “use every tool possible” including “public engagement, community involvement (and) litigation” to push back against what the plan could do to forests.

However, the Eastern Band of Cherokee Indians was “pleased.”

BLM Releases Proposed Plan to Guide the Balanced Management of Public Lands

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PR from the BLM today:

Interior Department Releases Proposed Plan to Guide the Balanced Management of Public Lands

Public Lands Rule lays groundwork for conserving wildlife habitat, restoring places impacted by wildfire and drought, expanding outdoor recreation, and thoughtful development

WASHINGTON — Today the Department of the Interior published a proposal to guide the balanced management of America’s public lands for the benefit of current and future generations. The proposed Public Lands Rule provides tools for the Bureau of Land Management (BLM) to improve the resilience of public lands in the face of a changing climate; conserve important wildlife habitat and intact landscapes; plan for development; and better recognize unique cultural and natural resources on public lands.

The proposed rule directly responds to the growing need to better manage public lands, waters, and wildlife in the face of devastating wildfires, historic droughts, and severe storms that communities are experiencing across the West, as well as to deepen BLM’s collaborative work with communities, states and Tribes to support responsible development of critical minerals, energy and other resources. The proposal is consistent with strategies used by other state and federal land management agencies to ensure the federal government has tools and direction to identify areas in need of restoration or conservation, as well as the ability to encourage investments in public lands to help balance the impacts of development. It will increase access to outdoor recreation by putting conservation on equal footing with other uses, consistent with the BLM’s multiple use and sustained yield mission.

“As the nation continues to face unprecedented drought, increasing wildfires and the declining health of our landscapes, our public lands are under growing pressure. It is our responsibility to use the best tools available to restore wildlife habitat, plan for smart development, and conserve the most important places for the benefit of the generations to come,” said Secretary Deb Haaland. “As we welcome millions of visitors to hunt, fish and recreate on our public lands each year, now is the time to improve the health and management of special places.”

“Our public lands provide so many benefits – clean water, wildlife habitat, food, energy and lifetime memories, to name just a few– and it’s our job to ensure the same for future generations,” said Bureau of Land Management Director Tracy Stone-Manning. “As pressure on our public lands continues to grow, the proposed Public Lands Rule provides a path for the BLM to better focus on the health of the landscape, ensuring that our decisions leave our public lands as good or better off than we found them. We look forward to feedback from the public on how this proposal will help us best uphold the BLM’s important mission.”

The proposed rule would build on the historic investments in public lands, waters and clean energy deployment provided by President Biden’s Bipartisan Infrastructure Law and Inflation Reduction Act by directing land managers to identify and prioritize lands and waters through the land management process that require habitat restoration work, such as removing invasive species or restoring streambanks. BLM lands are an economic driver across the West, and the proposed rule will ensure those lands and the resources they produce continue to be available for future generations.

It also proposes conservation leasing, a tool authorized by the Federal Land Policy and Management Act (FLPMA), to facilitate restoration work on public lands in cooperation with community partners. A conservation lease is a time-limited lease of public land that allows interested organizations to conduct specific restoration or mitigation activities and would generate revenue for the American taxpayer. This tool has the potential to expand opportunities to accelerate restoration of big game migration corridors or establish carbon markets, for example, and directly responds to comments from state and industry partners on the need for a reliable path on public lands by which to pursue compensatory mitigation to facilitate development projects.

The proposed rule includes a roadmap to align the BLM with other land management agencies, such as the U.S. Forest Service, in ensuring the agency is inventorying and assessing the health of public lands, including watersheds, forests and wildlife habitat. In light of the rapidly changing climate and increasing demands on public lands, the additional information will be used to identify trends, implement adaptive management strategies, and ensure decisions are informed by the best available science and on-the-ground monitoring. It will also be utilized during the existing land management planning processes to identify public lands in need of restoration work or intact landscapes that may be best managed for their contributions to healthy, functioning ecosystems or water quality.

The proposed rule also provides a framework for land managers to apply provisions of FLPMA that direct the BLM to prioritize the identification, evaluation and designation of Areas of Critical Environmental Concern (ACEC) through land use planning. ACECs are the primary BLM designation for public lands where special management is required to protect important natural, historic, cultural and scenic resources, systems or processes, or to protect life and safety from natural hazards.

The publication of the proposed Public Lands Rule in the Federal Register in the coming days initiates a 75-day public comment period. In addition, the BLM will host five information forums to discuss the details of the rule.

The BLM manages more than 245 million acres of public land located primarily in 12 western states, including Alaska, on behalf of the American people. The BLM also administers 700 million acres of sub-surface mineral estate throughout the nation. Our mission is to sustain the health, diversity, and productivity of America’s public lands for the use and enjoyment of present and future generations.