The BLM Proposed Rule I. Some General Observations

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I’m going to do a series of posts on the BLM proposed rule, don’t know how many yet. I was intrigued by a couple of things… first, the coverage by some was “the best thing since sliced bread” and by others “potential to kick out current users.”  Of course, some people think that kicking out current users is the best thing since sliced bread, so there’s that.  Then I happened to sit by some BLM retirees, who pointed out “we can already do this, and have done so.” In fact, they gave me all kinds of examples of conservation lease-like stories, which I am hoping to inveigle someone to write about (either for TSW or reporters) because they are stories that haven’t been covered as far as I know.

Anyway, I attended the Denver/Golden public meeting on the Proposed BLM Rule. There were folks from various other States (state government) there, and the folks from Utah Diné Bikéyah- those are just the folk I spoke with, not a random sample. I counted about 70 folks there.

The BLM Director and Nada Culver were there as was the State Director, Doug Vilsack. Career folks gave the presentation. We submitted questions on file cards, and they answered some. Then we broke up and there were lines for questions on different topics. I tried to overhear other peoples’ questions, but the acoustics made that fairly difficult. They said that the questions that weren’t answered would be answered in the online Q&A’s. I learned many things, including how to pronounce ACEC’s… ay cee eee cee’s.

The other thing they mentioned was that they had asked local managers to do sensing with their partners in addition to the formal meetings. It would be interesting to see how this is being carried out. Please comment if you’ve been involved.

It seemed like the audience, based on the questions, was curious about the rationale for this rulemaking. The argument from the BLM is that “we can manage better with these regs in place.” Questioners thought that many of the things in the rule were already being done. I heard a couple of answers “this is a framework” “it provides consistency” but my guess is that it’s protection-by rulemaking- to narrow the decision space of future administrations.  It would take time to undo a reg.. and groups would argue that it would be the end of life as we know it if the reg were removed.  I guess if that’s really true, they can’t say it out loud, and so that makes for fuzzy answers. It is 2023 and we all know what happens next year.

It seems to me that the Biden Administration is between a rock and a hard place.  If we think of politics as being about “rewarding your friends and punishing your enemies”, the Biden folks have two sets of friends with different goals.. one wants to “protect” federal land acres, and the other wants to cover federal lands with solar panels and wind turbines.  Both sides probably want to kick out oil and gas, OHVs and perhaps cattle grazing.  If we were logical about this.. when the Admin came in they could have set up a national program to pick out places for each. My guess is that we would find out it’s impossible to do 30×30 with protected areas and have the number of renewable installations and powerlines desired.  So perhaps the easiest thing for them was to kick the can down the road and have us hash it out place by place.

Here’s an example of rewarding your friends, from last year

Shortly after Secretary Haaland’s announcement, BLM posted an updated rent manual chapter, which adjusts downward the amounts charged to existing and new wind and solar energy projects located on public lands.1 BLM expects the revised rates to reduce bills by over 50 percent on average.

Now we know that those industries already get many regulatory and tax relief advantages as well.

And then there’s Monumentizing.

“The president’s actions today show that he is listening to communities and tribal nations that have been calling for the protection of natural and cultural resources and for safe, equitable access to more public lands,” Jennifer Rokala, executive director of the Center for Western Priorities, said in a statement. “But he still has a long way to go to reach the 30×30 goal.”

Now if you do the math, and you define “protection” as being in some kind of specially “protected” area, and you also have a goal of increasing wind, solar and transmission lines, there might not be enough land at all, let alone much left for the rest of us.

So one way of looking at this proposed regulation is “does it change who will be calling the shots on what uses will be favored?” Can the tools in it be used to divvy up land between “protection” interests and renewable corporate interests?  And some people are reacting in a non-trusting manner to assurances that their uses won’t be affected.  I have some ideas as to why they might not be trusting. This might be helpful during the next election cycle, and for the next Admin.

1. If the President goes after certain uses (most notably the Prez promising to end oil and gas leasing on federal lands), and then have a reg that you say “will have no impacts”; it’s going to be hard for people to trust you. The choices of political appointees and the organizations they came from speak for themselves, as folks on TSW have pointed out.  But that’s water under the proverbial bridge, so..

2. Focus on one thing. As this shows, it’s a three-part rulemaking. This reminds me a bit of the kitchen-sinkery MOG ANPR; one wonders if this is a new rule-making strategy..maybe people won’t find the parts they won’t like if you throw enough different ideas into the mix.

3. So you can’t/won’t make “wise” decisions without the reg?  Decisions now aren’t based on “science” nor “data”? This is a bit puzzling. Because I thought they always have been.. it also doesn’t place current employees nor the current Admin in a particularly good light.. are they making “unwise” decisions now? This does not sound right.. so doesn’t lead to trust.

Next post: Abstractions Run Amok

More on Eastside Screens Amendment

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From AFRC’s latest newsletter (see note and links below):

Oral Argument Held in the Challenge to the Eastside Screens Amendment

On May 1, oral argument was held before U.S. District Court Magistrate Judge Andrew Hallman in Pendleton, Oregon, in a challenge to the Forest Service’s 2021 rule to amend the Eastside Screens (Eastside Screens Amendment). See Greater Hell Canyon Council et al. v. Wilkes, et al., Case No. 2:22-cv-00859-HL (D. Or. filed June 14, 2022). The previous Eastside Screens was an interim management standard for six national forests in eastern Oregon and southwest Washington. The Eastside Screens prohibited the removal of trees over 21-inches diameter at breast height (dbh) where the late old structure (LOS) forest was below its historic range of variability and proposed harvest activity was outside of the LOS. See February Newsletter. AFRC and Eastern Oregon Counties Association intervened in support of the Forest Service.

The Eastside Screens resulted in an inefficient, piecemeal approach to forest management because the Forest Service had to develop numerous project-specific forest plan amendments to accomplish forest health projects. See January 2021 Newsletter. The Eastside Screens Amendment, on the other hand, would allow the removal of trees with diameter limits of 21- to 30-inches dbh based on tree species and growth potential, and trees 150 years and older.

On summary judgment, plaintiffs argued the Forest Service failed to prepare an EIS under NEPA because the Amendment is not “insignificant.” Plaintiffs also alleged that the Forest Service failed to take a “hard look” at the direct, indirect, and cumulative impacts of the Eastside Amendment; failed to follow the required procedures for a significant change to a forest plan; and failed to prepare a Biological Assessment and undergo Section 7 consultation under the ESA. Plaintiffs also claim that the Forest Service failed to conduct a pre-decisional administrative objection resolution process in violation of the National Forest Management Act (NFMA). The Nez Perce Tribe participated in the case as amicus curiae in support of plaintiffs and was able to provide argument during the summary judgment hearing.

Oral argument was divided into four categories: NFMA, Standing/Ripeness, NEPA, and ESA claims. Regarding plaintiffs’ NFMA claim, the Government argued that 36 C.F.R. § 219.51(b) does not provide an objection process for decisions signed by the Under Secretary of the Department of Agriculture and, therefore, the Forest Service’s Eastside Screens Amendment (which was signed by the Under Secretary) did not violate NFMA. Plaintiffs argued that the plain text of the regulation unambiguously requires an objection process unless the Under Secretary actually proposed the Amendment before issuing a final determination, and Judge Hallman seemed sympathetic to that argument.

Judge Hallman asked whether claims under NEPA and the ESA were ripe for judicial review and whether plaintiffs had standing. During argument, the court expressed some concerns as to whether plaintiffs’ ESA claims were ripe because plaintiffs did not allege any interest or particular impacts to ESA-listed species resulting from the Amendment. Judge Hallman also asked several questions about whether the preparation of an EIS was necessary, particularly whether uncertainty and scientific controversy warranted additional analysis. The court asked questions related to whether significant beneficial environmental impacts could warrant an EIS. In response, the Government explained that, even though the Amendment is applicable to six national forests, there is not a significant change from the Eastside Screens in terms of acres impacted. Plaintiffs emphasized their estimate of the number of acres to which the Amendment applies and their position that there is genuine scientific controversy around the Amendment’s flexible guideline for species-specific removal of trees. The Government reiterated that any departure from the guideline in a site-specific project would have to meet the purpose of the guideline and justify the departure.

The parties also discussed the importance of the Ninth Circuit decision in Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir. 2020), in which the court held that the agency did not meaningfully address scientific studies and controversy regarding the efficacy of variable density thinning to reduce fire risk. Intervenors explained to the court how the agency considered and responded to public comments, and the changes made between the draft and final EA in response to public comments. Plaintiffs took issue with how those responses were not provided to the public and only found within the administrative record and in footnotes. Intervenors pointed out that the court should not fall into the trap of form over substance when evaluating the agency’s response to public comments.

Ultimately, Judge Hallman requested the parties submit supplemental briefing on the following: (1) the beneficial impact of the Eastside Screens Amendment in relation to NEPA significance; (2) the context of the Amendment, again in relation to NEPA significance; (3) the Forest Service’s engagement with public comments and opposing viewpoints in the administrative record; and (4) the proper remedy in the event the court were to find a legal violation. AFRC submitted its supplemental briefing on May 30.

In the week prior to oral argument, Dr. James Johnston with the College of Forestry at Oregon State University re-submitted an amicus curiae brief and declaration, joined by eleven other scientists, in support of the science behind the Amendment—the court has not yet ruled on whether to accept Dr. Johnston’s amicus curiae brief. Judge Hallman is expected to issue a Finding and Recommendation by the end of July and, in the event of any objections, those would be reviewed by District Court Judge Ann Aiken. /Sarah Melton

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The Bark v. U.S. Forest Service involves the Crystal Clear Restoration Project on the Mt.  Hood National Forest, which we discussed here. Shortly after the court’s decision was released, the White River Fire burned through the project area. The agency’s Rapid Assessment Team’s report on the fire’s impact is here.

Cottonwood: Some Observations from the March 23, 2023 Hearing and a PERC Post

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I am not a fan of watching Congressional Hearings because there are many people quite full of themselves with various axes to grind, who waste our time blathering on about unrelated things or giving political speeches about why the other party is bad.   It would be more fun if the videos had a chat function and we could throw virtual flags on things  like “unnecessary pontificating” and “completely off the topic of this hearing”.  Of course, both sides do it. Congresswoman Kamlager-Dove, from LA (my native district) was filling in for Joe Neguse (from Boulder, Colorado) as the ranking member. She’s in her first term. On the House Natural Resources Committee. From LA. If I were Joe, I would ask Congressfolk with skin in the national forest game or some knowledge thereof to fill in for him at a hearing like this.. but that’s just me.

Anyway, I watched this one in March and picked out some interesting wonkish parts for you.

It’s fun to watch Representative Kamlager-Dove (with a unique pronunciation of “salmon”)  grill (so to speak) Chris French on Cottonwood. Starts at 1:50:32.  It did make me wonder whether short timeframes (11 days) in the Sierra for reconsultation might have to do with pressure from important Congressfolk in California?  Anyway, Rep. Kamlager-Dove cuts Chris off before he has time to explain his views.

Chris also says that at a recent Regional Forester meeting, Cottonwood was thought to be a #1 problem, and also something like “every little thing that diverts natural resource biologists and others holds up implementation of wildfire risk reduction projects.”

At about 2:05:56 Susan Jane makes some statements about Plans making final decisions “binding decisions in plan level documents.” “Off-road vehicle use is authorized in forest plan with no further authorization.” 2:06:21. I thought OHV use was authorized in “travel management” decisions, which tend to be separate from forest plans. For example, the PSICC has a travel management decision we’ve discussed previously, but its forest plan is from 1984.. after doing the travel management plan would they have to reconsult on the forest plan? How is winter travel different from summer travel?  If there are final decisions made in plans, wouldn’t it be better to strip plans of final decisions so you wouldn’t have to reconsult on them all the time?  Oil and gas leasing availability decisions, travel management decisions, and so on seem to do just fine outside the forest planning process.  It seems like they’re done when they’re needed (or forced to via litigation) not on some plan revision timeline which may put a given forest 10 or more years out.

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Here’s a blog post from PERC that summarizes some of Cottonwood:

This week, multiple forest management bills passed out of committee in the U.S. House and Senate with bipartisan support. One of the bills passed by both chambers offers a permanent fix to a controversial Ninth Circuit Court ruling known as Cottonwood. This tiny provision carries huge implications for conservation, impacting the speed at which the Forest Service can mitigate the wildfire crisis and restore healthy forests.

What is Cottonwood? 

The ruling requires the Forest Service to halt forest restoration projects throughout a forest whenever a new species is listed, critical habitat is designated, or other new information is discovered about a species in that forest. The projects can’t proceed until the Service consults with the Fish and Wildlife Service over whether to change its overarching forest plans, a slow and expensive process.

Pausing projects to protect vulnerable species may sound reasonable, but the reality is that this is a duplicative and distracting process. The Service already analyzes this new information before proceeding with specific projects, ensuring that no harm can come to species. The additional plan-level analysis is a duplicative bureaucratic obstacle.

And the pause itself is no small matter.

Consider the case of the Bozeman Municipal Watershed Project in PERC’s headquarters in Bozeman, Montana. The project was intended to create critical fire breaks and insulate Bozeman’s watershed from wildfire risk, but the urgently needed restoration work was delayed by 18 years. Once one suit filed under the Cottonwood precedent was resolved, another would be put forth, creating delay after delay and leaving Bozeman’s drinking water vulnerable to a wildfire.

Such examples explain why the Obama administration said the Cottonwood ruling would “cripple” the Forest Service.

How can this hurdle be addressed?

A temporary legislative fix was put in place in 2018, but it expired in March 2023. With Cottonwood left unchecked, Forest Service Deputy Chief Chris French estimates projects could grind to a halt in 87 forest plans across the West. According to French, completing duplicative analysis for all of these forest plans would take “somewhere between 5 and 10 years and tens of millions of dollars.” With an 80-million-acre forest restoration backlog, that’s time and money the Forest Service does not have.

That’s why this bipartisan congressional action is so welcome. It’s past time Congress establishes a permanent fix for Cottonwood.

“Wildfires move fast, and they don’t wait around for bureaucracy that’s slow,” notes PERC CEO Brian Yablonski. “The bipartisan Cottonwood fix will foster more resilient forests, nurture healthy wildlife habitat, and play a critical role in tackling the wildfire crisis. With larger, hotter wildfires fueled by a backlog of forest restoration projects, it’s critical we remove needless and redundant obstacles to this urgent conservation work.”

PERC stands with other conservationists in thanking Sen. Steve Daines (R-MT) and Chairman Joe Manchin (D-WV) in the Senate and Chairman Bruce Westerman (R-AR) and Rep. Matt Rosendale (R-MT) in the House for their leadership in protecting our forests.

What happens next? 

Now that the bills have committee approval, they move forward for votes by the entire House of Representatives and Senate, after which they go to the President for his signature.

PERC will continue to support this bipartisan effort and move us farther down the path to fixing America’s forests.

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The FS testimony for the above hearing includes the fact that the two circuits disagree.  Since I live in 10th circuit territory, I thought that that was worth mentioning.

The pair of Ninth Circuit court decisions, commonly referred to as Pacific Rivers Council (PRC) and Cottonwood, which held that a new ESA listing of a species or critical habitat designation required the Forest Service to reinitiate consultation on approved land management plans because either the plan was an “ongoing action” (PRC) or because the agency retains discretion to authorize site–specific projects governed by the land management plan (LMP) (Cottonwood), have no basis in the ESA or its implementing regulations. LMPs provide general management direction for an entire national forest or grassland. This direction is then integrated into projects, which normally requires a second decision and ESA consultation to dictate what on–the–ground actions can be taken. A Tenth Circuit decision (commonly known as Forsgren) reached a different conclusion than the Ninth Circuit’s conclusions in Cottonwood, and instead held that the Forest Service did not need to reinitiate consultation on an approved plan with the Services because LMPs are neither ongoing nor self–executing actions for purposes of the ESA.

I don’t know why we would assume that the 9th Circuit is right and the 10th Circuit is wrong. In case you’re curious,there are many National Forests outside the 9th Circuit.

 

Much Ado About NEPA

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For the NEPA nerds among us…. Fron Brownstein, a law firm.

Much Ado About NEPA

The Fiscal Responsibility Act’s Revisions to the Iconic Statute Largely Codify Existing Interpretation and Practice

On May 31, 2023, the House of Representatives advanced the Fiscal Responsibility Act of 2023 (“FRA”), which would suspend the federal debt limit until Jan. 1, 2025. The FRA passed the Senate last night and will be signed into law by the president. Though largely focused on federal spending, the legislation also amends the National Environmental Policy Act (NEPA) of 1970. The amendments are notable because the statute has rarely been revised in its 53-year history. Because the amendments largely track existing regulations and federal case law interpreting NEPA, the modifications will not significantly change how NEPA is applied in practice. However, by codifying the current regulations, Congress entrenches the provisions, providing project proponents with greater regulatory certainty.

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Norm Johnson, Jerry Franklin & The History of “Wild Science!”

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Here is an indexed 60-minute primer on how “Wild Science” led the way to the creation of the Northwest Forest Plan — basically by six people and three animals: the “Gang of Four,” Bill Clinton, and Judge Dwyer; spotted owls, marbled murrelets, and coho: 

This video is Norm Johnson and Jerry Franklin promoting their new book, The Making of the Northwest Forest Plan, at Oregon State University, mid-May 2023, during which they give a surprisingly honest assessment of how they did it, how it has turned out, and what needs to be done next. I’ve highlighted key words, phrases, and acronyms on the index, so you can just skip to any part you think might be interesting. This is the best 60-minute summary to the Northwest Forest Plan I’m aware of, and I’m guessing it also summarizes their new book fairly well.

They never say “HCP,” they just refer to federal streamside buffers being critical next creations on state, private, and tribal lands and the most important current political focal point — see Oregon’s State Board of Forestry, Private Land Accord, and former “First Oregon State Forest,” the Elliott, for definition and update. That, and systematically killing barred owls in the name of racial purity. I am in full agreement, though,  as to what happened to all of the “critical habitat” in the Labor Day Fires — and also the lasting economic damage to affected rural communities; both barely mentioned.

Biased summary follows Index.

3:30 Norm Johnson /spotted owls

5:40 Pinchot stable communities objective: “old-growth was the fuel for the sustained-yield engine”

6:40 ESA litigation

8:35 Jack Ward Thomas: “It’s not science. It’s scientists doing planning.” “Wild Science!”

10:40 Jerry Franklin: “A different kind of science . . . Who was going to get the money? . . . All kinds of dead wood = Healthy Forest”

17:00 Norm: “The Power of Scientific Authority . . . shocked the world . . . if the managers would just stay out of the way”

19:05 Gang of Four: Norm & Jerry talk old-growth and politics: Accepted by USFS Fall 1990

22:00 “We can map the old-growth in a week!” “Don’t forget about the damned fish!” (Congress)

24:40 Jerry: Yacolt Burn becomes artificial standard for 80-year-old trees (LS/OG!)
“That rule, which they dreamed up in an afternoon, is still there! It’s kind of amazing!”
“Only complete forest ecosystems in the Douglas Fir Region . . . the organisms . . . the processes.”

27:00 [Jim Sedell]/Gordie Reeves: “Gang of Four = Big Kahunas.” Gordon story: “People don’t care about spotted owls — you [fish biologists] just changed the game”

30:15 Norm: “Amazing change: 300-foot buffers on fish-bearing streams” “Fund restoration”

30:35 “Gang of Four Choices” Personal values in 3 or 4 days — “kind of amazing!” Congress approved! They understood owls and fish were incompatible with timber harvest

34:50 Gordie: USFS Planners Really Upset — “probably easiest conclusion I ever reached in my career”

35:55 Spotted Owls: Spring 1992 Judge Dwyer “really changed things” w/ESA invertebrate surveys

36:45 Clinton Plan: FEMAT LS/OG = 2x”Deeply Disappointed” = Option 9 LSRs Riparian Reserves Matrix

40:05 Jerry: Option 9 was “more efficient method of preservation” bringing aquatic-terrestrial together

41:05 Norm: President’s Plan “Released July 1, 1993 after a Furious Debate within the White House” 75% Decrease in Sales vs. spotted owls, marbled murrelets, salmon (Quotes Obama)

42:50 Public Criticism: massive drop in cut = negative employment/community impacts — no Tribes involved — Lawyers need more “protections”

43:40 Northwest Forest Plan: Dwyer “admires and approves” “greatly expanded (x 2) Riparian reserves”
“Moist and Dry” Forests and “the harvest level collapsed” — USFS timber had “near death experience”

47:50 30-Year Scorecard: “Moist Forest plantation thinning saved the federal timber program”
“Stabilized habitat” until the 2020 Labor Day Fires and barred owls . . .
fish need more buffers on lower tree farm and agricultural lands, too
difficult to provide economic assistance to displaced workers and damaged communities

50:20 Why the NWFP Matters: Implemented ecosystem planning: science & lawyers (Trump cite)

50:45 Recommendations: Kill barred owls, adopt “Moist Forest” planning, focus on private properties
Tribes were completely ignored, except for fish benefits — need to be included
started with one listed fish — now more than 30; needs to include private lands for buffers
Jerry: need to manage for future habitats based on current “science”

56:00 Questions: 1) “Survey and Manage?”: doesn’t apply to plantations; hasn’t been “court-tested”
2) BLM “storyline” regarding “conservation?”: “Most innovative . . . in adopting ecosystem management”
3) Wildfire and climate change: Jerry: “Obviously plantations most susceptible to change”
4) Eastern Oregon ladder fuels should be treated: no comment
5) “Newer goals” should include carbon sequestration: no comment

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Bottom Line: Jack Ward Thomas said that “This isn’t science. This is planning done by scientists.” He was exactly right. In my opinion, we should have relied on experienced professionals from the beginning — this experiment of having nameless modelers construct our resource management plans — and our public employee hiring criteria — has been an obvious and costly failure. In 1990 the ESA-endorsed spotted owl allowed the “Gang of Four” and two fish biologists to impose “Ecological Forestry” on our public lands. In the Douglas Fir Region the result has been dozens of catastrophic wildfires, bankrupt counties, millions of dead wildlife, tens of thousands burned homes, thousands of failed businesses, and hundreds of deaths. The cost is in the tens of billions and continues to increase daily. When is it time to say “enough,” and return the active management of our public resources to local control, where the true experts live? Compare the 33 years of successful forest and wildlife management preceding 1990 to the 33 years that have followed. ESA bureaucrats have only been the silent tip of the iceberg in this mess. In my opinion.

TGIF TSW Random News Roundup

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F to WaPo on State Farm in California Story: A to  E&E News

WaPo is not the only one, but their “analysis” (?) tells us it’s all about climate change.  But no mention of California’s unusual legal requirements, and no skepticism about the insurance companies potentially using climate to pad their estimates.    Best coverage so far goes to E&E News, and special kudos to them for making that article public.

Pielke, Jr. on Hurricanes

In the WaPo article, they pivoted to hurricanes.  Which reminds me that Roger Pielke, Jr. had a Substack piece on hurricanes this week that rounded up some current information. There are National Forests that are affected by hurricanes, so it is part of TSW country.

Still No Articles on “Feds are already allowing proponents to fund NEPA”

I have seen many more articles on the Debt Ceiling NEPA changes, but none so far that address this.  If you have read one, please link in the comments.  Curious minds need to know..are all other agencies able to do this? What’s their track record.

Write Legislation  in Haste, Litigate at Leisure

Speaking of the Debt Ceiling NEPA, I asked Dan Farber of UC Berkeley Law, about some of Center for Biological Diversity’s claims.  Many thanks to him for answering my qeustions!  He wrote a post exploring some of the text (NEPA ites will find the entire post interesting)  it and concluded:

In addition, given the rest of the garbled language, it’s not clear whether dropping the word “potential” was just another glitch, or was done to make the definition more concise, or was really intended to change the meaning. It’s equally unhelpful to compare the rule to the current, post-Trump version, which is much simpler, does drop potential, but also revamped the rule in other ways different from the new bill.

I suppose the bill might be amended somewhere along the way to fix the problem. But given the lack of time, and the dangers of opening up the bill to changes, I’m not sure whether that’s at all feasible. A later “technical corrections” bill would also be possible, but I think Democrats would oppose any effort to redraft the section in a way that limited the application of NEPA, while Republicans might oppose any fix that restored the current status quo as a back step,

In the absence of a quick legislative fix. I predict lots of fun litigation. Maybe the upshot will be to ignore the definition entirely and only give effect to the exclusions. In the meantime, however, all that litigation is only going to increase delays, which is ironic given that the whole purpose the NEPA changes is supposed to be speeding up the process.

A final thought: I stumbled into this drafting disaster by chance. How many similar glitches are lurking in the bill?  The moral may turn out to be: “Draft in haste. Repent at leisure.”

Red line Analysis of Debt Ceiling NEPA by Bipartisan Policy Center.

Thanks to Xan Fishman..”We don’t need legislative doomerism any more than we need climate doomerism.”

Here’s a link to a red line analysis and it also points to BPC and One Federal Decision recommendations.

 Legislators (or Their Staff) Who Cry Wolf

There’s a reason The Boy Who Cried Wolf is such a longstanding and popular story. Aesop lived between 620 and 564 BC and the story is still popular today. Question: is there any change to  NEPA or to its implementing regulations that according to Grijalva’s office, does not “gut environmental laws”?  How would we know what a real “gutting” would look like, if everything is “gutting?”  What other adjectives might be left on the table for future use? Here’s their “fact sheet”. It’s interesting to contract with the Bipartisan Policy Center and Dan Farber’s analyses.

No Wolves for You, Colorado

Perhaps this has been resolved, but there is a complex story behind Colorado’s initiative based wolf reintroduction program. It wasn’t supported by CPW wildlife managers, but thrust upon them.  Then the state legislature and the Governor got involved in the 10j question. This article in Colorado Politics by Marianne Goodland was over my head about the 10j stuff so good for her, unless Jon and other experts think she missed something.

Context: wolves have been migrating down from Wyoming anyway.  So why reintroduce? Many of us asked the same question, but it was on a ballot initiative.

Back to reintroduction. Below is from an article in gohunt.com by Kristen Schmitt.

The draft wolf reintroduction plan includes sourcing wolves from Idaho, Wyoming and Montana; however, that’s where it gets a bit tricky. In fact, language within the plan states that “[s]pecific agreements regarding donor populations have been discussed with these three states but final agreements have not yet been concluded.”

But that doesn’t seem to be true.

“We have not been and are not in conversations about moving wolves to another state. To be clear, we have not talked and are not talking to Colorado about moving wolves,” said Greg Lemon, a spokesperson for Montana Fish, Wildlife and Parks.

Idaho noted that “the states have not had any formal conversations” and Wyoming Gov. Mark Gordon is against Colorado’s reintroduction effort, which means that they don’t plan on relocating any wolves to the Centennial State. Period.

“Our current wolf management plan is working, and it works because it is designed to manage wolves in biologically and socially suitable habitats and to keep wolves out of areas of the state where conflicts would be highest,” said Gordon. “Our border with Colorado is an unsuitable area for wolves, and that would mean more human conflicts. Resolution of conflicts are almost always deadly to wolves.”

Oregon and Washington are suggested as possible alternatives though no formal discussions have occurred, according to Channel 9 News. The same goes for Utah.

“There are currently no established wolf packs in Utah, which would likely not make us a viable candidate for providing wolves,” said a Utah Division of Wildlife Resources spokesperson.

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Feel free to add your own “news of the week” in the comments.

Public Lands Litigation – update through May 31, 2023

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A number of high-level court decisions here.

New lawsuit:  Kettle Range Conservation Group v. Smolden (E.D. Wash.)

On May 12, the plaintiff challenged the Bulldog logging, thinning and prescribed burning project on close to 44,000 acres over many years on the Colville National Forest.  The area is considered a stronghold for the threatened Canada lynx, and the complaint alleges failure to properly consult with the U. S. Fish and Wildlife Service on how the project may affect lynx.  It also claims violations of NEPA and failure to ensure compliance with the forest plan’s lynx habitat requirements.

Notice of intent to sue

On May 15, the Center for Biological Diversity filed a formal NOI with the U. S. Fish and Wildlife over its failure to protect the Railroad Valley toad in Nevada under the Endangered Species Act.  The BLM has leased out land around the toad’s habitat to oil companies.  (The press release includes a link to the notice.)

  • Mountain Valley Pipeline

Forest Service action in response to a prior court decision

On May 15, the Forest Service issued a record of decision allowing the Mountain Valley Pipeline project to proceed through a 3.5-mile stretch of the Jefferson National Forest.  The decision amends the forest plan 11 times to allow the pipeline to cross the Forest and provides terms and conditions to include in a decision by the BLM to grant permits under the Mineral Leasing Act.  The pipeline is mostly complete, including some tree clearing on the national forest.  The U.S. Fourth Circuit Court of Appeals threw out two past Forest Service approvals of the Jefferson National Forest crossing in July 2018 and January 2022 (discussed previously here).

Court decision in Sierra Club v. Federal Energy Regulatory Commission (D.C. Cir.)

On May 26, the circuit court held that FERC had inadequately explained its decision to not prepare a supplemental analysis on erosion and sedimentation along the pipeline’s right-of-way.   It ordered FERC to either to prepare a supplemental environmental impact statement or to better explain why one isn’t necessary.  However, the court allowed construction to continue “in areas adjacent to wetlands.”  (The article includes a link to the opinion.)

HOWEVER, this long-running controversy may become moot if the debt ceiling legislation is approved as currently proposed.  According to the Washington Post on May 29, “The new legislation could nullify that decision and other outstanding court orders, experts said. Legislative language prohibits court oversight of decisions on MVP permitting from FERC and other federal agencies. It says Congress ratifies all permits and gives the Army Corps of Engineers 21 days after the bill’s passage to issue those permits.”

Court decision in Alliance for the Wild Rockies v. Petrick (9th Cir.)

On May 16, the circuit court reversed the district court and dismissed some issues for failure to provide sufficient notice to the government of its concerns that it violated the Healthy Forests Restoration Act, but remanded that the Hanna Flats project on the Idaho Panhandle National Forest.  The court agreed with the district court’s ruling that the Forest Service’s reliance on Bonner County’s Community Wildfire Protection Plan was insufficient to apply a categorical exclusion, but it disagreed with the way the district court defined “wildland urban interface.”  This led it to lift the injunction against the project while the district court addresses the remand.  (The article includes a link to the opinion.)

Court decision in Center for Biological Diversity v. U.S. Fish & Wildlife Service (9th Cir.)

On May 17, in a split decision, the circuit court set aside parts of the U.S. Fish and Wildlife Service’s 2014 designation of critical habitat for the jaguar in southeastern Arizona.  CBD had challenged the biological opinion on the Rosemont Mine on the Coronado National Forest, and Rosemont Mine had cross-claimed that the FWS had improperly designated two areas as critical habitat.  The court concluded that, based on its record, FWS improperly designated Unit 3 as “occupied” critical habitat (as of the time of listing in 1972) and that neither this nor another unit met the more demanding requirements to qualify as “unoccupied habitat.”   The court remanded the critical habitat designation, and so it could not address the effects of the mine on critical habitat.  (The article includes a link to the complaint.)  (A related case on the Rosemont Mine was discussed here.)

Notice of intent to sue

On May 18, the Environmental Protection Information Center notified the Fish and Wildlife Service that it is challenging an incidental take permit issued by that agency to Sierra Pacific Industries to “take” northern spotted owls when logging their land under a habitat conservation plan.  EPIC argues that the extent of take allowed would violate ESA by jeopardizing the northern spotted owl’s long-term survival. (The news release includes a link to the notice.)

Supreme Court decision in Sackett v. Environmental Protection Agency

On May 25, the Court limited the scope of federal jurisdiction under the Clean Water Act.  It decided in favor of private landowners who wanted to build a house on land including wetlands that would need to be filled, and for which the EPA would require a permit because they were “near a ditch that fed into a creek, which fed into Priest Lake, a navigable, intrastate lake.”  The Court held that the permit was unnecessary because the wetlands lacked a “continuous surface connection” to “waters,” defined as “geographic[al] features that are described in ordinary parlance as `streams, oceans, rivers, and lakes'” (not “wetlands”).  There were no dissenting opinions but multiple disagreements with the reasoning in the opinion.  There has been a lot written about this issue, and here and here are a couple of takes on this decision.

Federal land management is subject to the Clean Water Act, and this holding could, for example potentially reduce the scope of the potential violations in the fire retardant case, especially if, as the first article suggests, it does preclude inclusion of all ephemeral features and the vast majority of tributaries  …

  • Fire retardant and the Clean Water Act

Court decision in Forest Service Employees for Environmental Ethics v. U. S. Forest Service (D. Mont.)

On May 26, the district court found that the Forest Service had conceded that it violated the Clean Water Act when it aerially dropped fire retardant, a pollutant, into waterways without a permit.  However, the court did not enjoin the activity while a permit is being sought.  We’ve discussed this case here (where there is a link to the opinion).

Court decision in Western Watersheds Project v. Haaland (10th Cir.)

On May 25, the circuit court reversed a district court decision and reversed a decision by the Bridger-Teton National Forest authorizing livestock grazing for 10 years on land in the Upper Green River Area Rangeland (“UGRA”) in Wyoming.  The Forest Service and Fish and Wildlife Service violated the Endangered Species Act because the FWS biological opinion (BiOp) failed to “consider (1) a limit on lethal take of female grizzly bears, and (2) the UGRA Project’s likely contribution to the already-existing mortality sink (where mortality exceeds or nearly exceeds survival) for female grizzly bears in the Project area.”  The incidental take statement permitted “the killing of up to 72 grizzly bears” (as the plaintiffs put it), and did not distinguish females nor consider the more serious effects of female mortality.   This article provides more background on this issue.  (The news release provides a link to the opinion.)

The court also found that the project violated the forest plan and NFMA because the record contradicted the Forest’s conclusion that the project would provide adequate forage and cover for migratory birds.  It upheld the application of the forest plan’s forage utilization requirement to sensitive amphibians.  The court remanded the decision to the agencies “to address the deficiencies in the BiOp and the ROD,” but did not vacate the decision because “deficiencies in the BiOp and the ROD are curable upon remand to the agencies, and vacatur would cause disruption.”

A year after the hunters were declared not guilty in Wyoming criminal court, a federal judge ruled that the four Missouri residents didn’t trespass when they corner-crossed through the airspace over private land in Wyoming during their 2020 and 2021 hunting trips. The judge noted that “corner crossing on foot in the checkerboard pattern of land ownership, without physically contacting private land and without causing damage to private property does not constitute an unlawful trespass.” The wealthy landowner had sought more than $7 million in alleged damages, but the judge said that even if they had trespassed, any damages to the plaintiff would be “nominal.”  We discussed this case here.

A California man was convicted of obstructing an investigation into why his plane crashed, apparently into the Los Padres National Forest.  Blame it on YouTube.

Beachie Creek Fire Postmortem

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Interesting story in the Salem, Oregon, Statesman-Journal.

“‘Missed opportunity?’ Records detail Forest Service response to Beachie Creek Fire before blowup.”

The fire started in a wilderness area.

The Statesman Journal looked at multiple records called “fire decision documents” from the earliest days of the fire, along with daily public records and information released by the Forest Service last week to create a detailed narrative. Among the findings:

  • After an initial attack that attempted to put the fire out, crews stepped back and didn’t drop water for nine of 10 days from Aug. 21 to Aug. 30.
  • Smokejumpers, hotshot crews and a rappel team attempted to access the fire, but it was deemed beyond the “realm of acceptable risk,” leading to a containment strategy.
  • Crews wrote on Aug. 21 that the containment strategy “is vulnerable to resource availability and to critical fire weather events (east winds for example).”
  • Later, the Forest Service said calls for additional resources went unanswered even as historically dangerous east winds and fire danger arrived — the two things they feared.
  • Independent and retired fire experts who looked at the response were mixed in their assessment. Some said the agency did the best it could given a difficult, dangerous fire location — and limited resources — while others said fire crews were too cautious and should have stayed more aggressive.

Note that this was an extreme fire season in the west, especially in Oregon. Resources were stretched.

The fire burned nearly 200,000 acres of land, destroyed homes in Detroit, Gates, and Mill City, and killed five people.

 

State Farm and California Insurance-E&E News Story

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When I first read about California and State Farm wanting to get out of the market, it was couched as being about climate change and wildfire.  Well, being a native Californian, I thought of downtown San Fran and LA, and Palm Desert and Barstow, and thought “huh, can’t be about wildfire.”  I guess insurance companies want to use climate models to set rates.. I’d guess they’d prefer RCP 8.5 as well.  I wouldn’t blame them.  1. Scientists tell us, 2. It’s good for business, 3. Let’s go with it!

Anyway, I thought this story was more holistic about the many factors involved, which not surprisingly, has to do with state regulation. The story is from E&E news and isn’t paywalled.

For property insurers, Prop 103 has made it almost impossible to set premiums based on computer models that project future risks including climate impacts, said Mark Sektnan, vice president for state government relations at the American Property Casualty Insurance Association. That’s because Prop 103 requires modeling used by insurers to be made public, which modeling companies want to avoid, Sektnan said.

Instead, insurers are setting rates based on their losses over the preceding 20 years.

“It’s a little bit like driving your car using the rearview mirror when your windshield is right there in front of you,” Sektnan said.

When insurers analyze the past 20 years to set rates, they are not fully capturing recent increases in California’s wildfire risk as climate-driven hotter temperatures have made the state’s forests and grasslands drier and more combustible, experts say.

For example, in the 20 years from 2003 through 2022, wildfires burned an average of 1 million acres a year in California, according to an E&E News analysis of data from the state Department of Forestry and Fire Protection.

But in the six years from 2017 through 2022, California wildfires burned an average of 1.8 million acres a year and destroyed or damaged nearly 51,000 structures in total.

“The problem in California is that the risk is changing pretty quickly, especially if you think over two decades. Two decades is just not fit for the problem,” Wara said.

Nancy Watkins, a California-based principal at Milliman insurance consultants, said the retrospective method “is an extremely simple rate-making model that in practice has totally failed to anticipate the growing risk in California due to factors like housing growth in high-risk areas, vegetation build up, the effect of climate change on longer fire seasons, hotter temperatures, drier air.”

“None of that is factored into a backward-looking formula,” Watkins added.

I don’t know what “making modeling public” entails versus having insurance regulators review the models, but it seems like an area that could lead to a potential lack of trust.

Three national forests in Colorado receive nearly $47 million for wildfire barriers: Colorado Sun

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I’ve got more on NEPA and the debt ceiling but everyone’s probably tired of that.. so here’s a nice article by reporter Shannon Mullane of the Colorado Sun on Colorado getting $ for PODs and fuel breaks.

On May 4, Secretary of Agriculture Tom Vilsack visited Durango, roughly an hour west of Pagosa Springs, to announce a total of $63 million for fuel breaks from the $1 trillion Bipartisan Infrastructure Law, passed in 2021, and the $700 billion Inflation Reduction Act of 2022, which reflect a historic amount of investment, he said. The funds will go to Colorado, Montana, Oregon, South Dakota and Wyoming.

According to the story, if there is 63 mill total and Colorado is getting 46.7 mill. that’s about 74% of the $ that are supposed to go to five states.  Maybe the other states got more of the other BIL and IRA funding? Sure, we’re special (and Secretary Vilsack’s son was hired from the State government to be BLM Director) but are we that special?

The article discusses PODs and how they’re developed. There’s also a discussion of the importance of protecting municipal water supplies.

That’s what the San Juan Headwaters Forest Health Partnership, a collection of land managers, government officials and community partners working across sectors and jurisdictions, was discussing during a 2018 tour along Fourmile Road.

Members of the incident management team develop a plan of attack in response to the Plumtaw fire, which started May 17, 2022, north of Pagosa Springs in Archuleta County. (U.S. Forest Service, Contributed)

The group mapped out vegetation types, terrain and the locations of roads, rivers and rocky turf — the same process used throughout San Juan National Forest and some nearby lands to identify areas where crews would have the best chance of containing a potential fire, called potential operational delineations, or PODs.

“You get all the fire experts in a room and say, ‘Hey, we don’t have a fire now, but if we hypothetically had fires all over this landscape, piece by piece, where would you start?’” Lawhon said.

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On the first anniversary of the fire, the fuel break project was an important “invisible success,” said Guinn, who helped put together a documentary about the fire for the headwaters partnership. The fact that a community group identified it as a way to protect municipal water supply — and that the Forest Service jumped in to partner on the project — was significant, she said.

“This fire could have turned into something that was a much more challenging event for our community down the line,” Guinn said. “But because we had done some pre-planning, and a variety of other factors came together, we were able to be prepared as a community and help our emergency responders help us.”

With the influx of funding, other fire mitigation and fuel break projects are set to start as soon as this summer, said the Forest Service’s Lawhon. From Dolores to Pagosa Springs, no watersheds that the San Juan National Forest works in are owned by a single entity. The POD units, which have been mapped across the region, break the landscape into manageable chunks and help agencies work across complex jurisdictional boundaries.

It’s a whole-system approach that could make a significant difference in how effectively communities prepare for an increasingly long and intense wildfire season, Lawhon said.

“You have to do this cross-boundary, multipartner approach, or you won’t be successful,” he said.

It’s interesting to think about where we read about PODs and where not.. is everyone delineating them across the country? And for Jon, do they/should they require plan amendments?