Westerman’s Bill: What’s In it and What Do You Think? Up to Subtitle C

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I’m working off the discussion draft here.

The idea is to designate firesheds.

are identified as being in the top 20 percent of firesheds for wildfire expo6 sure based on the following criteria:
Wildfire exposure to communities, including risk to structures and life.
Wildfire exposure to municipal watersheds.
Risk of forest conversion due to wildfire.
shall not overlap with any other fireshed management areas;
may contain Federal and non Federal land; and where the Secretary concerned shall carry out fireshed management 20 projects.

I am not a fan of the “risk of forest conversion” criterion..seems to me (given my background in refo practices) that where there are trees, with appropriate practices you can get trees back. Plus with lots of bucks at stake, this could lead to a great deal of..err.. creativity

Agencies Get Their Stuff Together
The Bill would establish a Center where agencies would coordinate efforts. Which ones?
The Forest Service.

8 (B) The Bureau of Land Management.
9 (C) The National Park Service.
10 (D) The Bureau of Indian Affairs.
11 (E) The U.S. Fish and Wildlife Service.
12 (F) The U.S. Geological Survey.
13 (G) The Department of Defense.
14 (H) The Department of Homeland Security.
16 (I) The Department of Energy.
17 (J) The Federal Emergency Management Agency.
19 (K) National Science Foundation.
20 (L) The National Oceanic and Atmospheric Administration.
22 (M) The National Aeronautics and Space Administration.
24 (N) The National Institute of Standards and Technology.

What Would the Center Do?

The purposes of the Center are to—
13 (1) comprehensively assess and predict fire in 14 the wildland and built environment interface through 15 data aggregation and science-based decision support services;
17 (2) reduce fragmentation and duplication across Federal land management agencies with respect to predictive service and decision support functions related to wildland fire;

I’d strike “land management”..it’s likely that NASA NOAA NSF and DOE are all feeding at the prediction and decision support modeling research funding trough.

21 (3) promote interorganizational coordination
22 and sharing of data regarding wildland fire decision making;

1 (4) streamline procurement processes and cybersecurity systems related to addressing wildland fire;

Not sure what problem that is intended to address but it sounds interesting…

4 (5) provide publicly accessible data, models, technologies, assessments, and fire weather forecasts 6 to support short- and long-term planning regarding wildland fire and post-fire recovery; and 8 (6) maintain the Fireshed Registry created 9 under section 103.

I’d add open (including practitioner) peer review of models, technologies and assessments, including involvement of practitioners in modeling, technology development and assessment.

Fireshed Registry Data (interactive spatial)

(a) FIRESHED REGISTRY.—The Secretary of Agri17 culture, acting through the Director of the Fireshed Cen18 ter appointed under section 102, shall maintain a Fireshed 19 Registry on a publicly accessible website that provides 20 interactive geospatial data on individual firesheds, including information on—
22 (1) wildfire exposure delineated by ownership,23 including rights-of-way for utilities and other public 24 or private purposes;
1 (2) any hazardous fuels reduction treatments 2 that have occurred within an individual fireshed in 3 the past 10 years;
4 (3) wildfire exposure delineated by—
5 (A) wildfire exposure to communities, including risk to structures and life;
7 (B) wildfire exposure to municipal watersheds; and
9 (C) risk of forest conversion due to wild10 fire;
11 (4) the percentage of the fireshed that has 12 burned in wildfires in the past 10 years, including, 13 to the extent practicable, delineations of acres that 14 have burned at a high severity;
15 (5) spatial patterns of wildfire exposure, including plausible extreme fire events; and
17 (6) any hazardous fuels reduction treatments 18 planned for the fireshed, including fireshed management projects under section 106 of this Act

This almost sounds like an assessment for a fire plan amendment..whoops.. Section 105 is.. Fireshed Assessments.

Then there’s a Peoples’ Permitting Database

(1) publish fireshed assessments created under 5 section 105; and
6 (2) maintain a searchable database to track—7 (A) the status of Federal environmental reviews, permits, and authorizations for specific fireshed management projects conducted under
10 section 106, including—
11 (i) a comprehensive permitting timetable;
13 (ii) the status of the compliance of each lead agency, cooperating agency, and participating agency with the permitting timetable;
17 (iii) any modifications of the permitting timetable required under clause (i), in1cluding an explanation as to why the permitting timetable was modified; and
21 (iv) information about project-related public meetings, public hearings, and public comment periods, which shall be presented in English and the predominant
25 language of the community or communities most affected by the project, as that information becomes available;
3 (B) the projected cost of fireshed management projects; and
5 (C) the effectiveness of completed fireshed management projects in reducing the wildfire exposure within an applicable fireshed, including—
9 (i) wildfire exposure to communities, including risk to structures and life;
11 (ii) wildfire exposure to municipal watersheds; and
13 (iii) risk of forest conversion due to wildfire.

Now, the NEPA part is confusing to a new reader.
If a project is identified through the Assessment and falls into these (pretty broad) categories..

2) FIRESHED MANAGEMENT PROJECTS.—The 4 responsible official shall carry out the following for5 est management activities as fireshed management projects under this section:
7 (A) Conducting hazardous fuels manage8 ment, including mechanical thinning, prescribed 9 burning, cultural burning, timber harvest, masication, and grazing.
11 (B) Creating fuel breaks and fire breaks.
12 (C) Removing hazard trees, dead trees, dying trees, or trees at risk of dying, as determined by the responsible official.
15 (D) Developing, approving, or conducting routine maintenance under a vegetation management, facility inspection, and operation and
18 maintenance plan submitted under section 19 512(c)(1) of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1772(c)(1)).
21 (E) Removing trees to address overstocking or crowding in a forest stand, consistent with the appropriate basal area of the forest stand as determined by the responsible 25 official.
1 (F) Using chemical treatments to address insects and disease and control vegetation competition or invasive species.
4 (G) Any activities recommended by the state-specific fireshed assessment carried out under section 105.
7 (H) Any activities recommended by an applicable community wildfire protection plan.
9 (I) Any combination of activities described 10 in this paragraph.

Our lawyer friends probably know the CFRs under emergency fireshed management on page 21. Section B on page 22 talks about using existing CE authorities under HFRA, the Lake Tahoe CE, and the IIJA CE’s. It also seems to replace the Emergency Situation Determination described in IIJA with projects identified in the assessment. The practical result seems to be no objection process and this clause:

A court shall not enjoin an authorized emergency action under this section if the court determines that the plaintiff is unable to demonstrate that the claim of the plaintiff is likely to succeed on the merits.

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The bill also adds Indian Tribes to getting funding from Good Neighbor Authority projects (I thought this had been done a while back, but I guess not).

Intra Agency Strike Teams. I read about this and they sounded like inter-agency strike teams, to facilitate coordination so I was confused.

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This is getting long so I will start another post..Subtitle C- Addressing Frivolous Litigation is the next topic.

Hearing Tomorrow on Westerman’s Bill: E&E News Story

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Thanks to a TSW reader for this.

 

E&E DAILY | The House Natural Resources Committee will focus this week on a Republican bill to more quickly thin forests deemed in danger of wildfire.

Rep. Bruce Westerman, the chair of the committee, has proposed draft legislation to create federal “firesheds,” or areas the Forest Service has determined are at the highest risk of fire, and to expedite projects to remove overgrowth and dead or dying trees. The Subcommittee on Federal Lands, chaired by Rep. Tom Tiffany (R-Wis.), is scheduled to take testimony on it.

The draft bill calls for categorical exclusions from the National Environmental Policy Act to designate emergency firesheds every five years, beginning with areas already highlighted in the Biden administration’s 10-year wildfire strategy. More areas would be listed every five years, with projects not subject to environmental assessments or environmental impact statements.

We’ll discuss this in greater detail in the next post.

The draft also would provide for such exclusions along electric power rights of way, responding to the danger of fires started by downed power lines.

Now if we go back to Senator Tester’s questions last week about how a 100 foot tall tree fell on a power line.. and the Forest Service only let the Coop cut trees 10 feet on each side (if that is true, did not hear the FS side of the story) despite the Coop’s asking to do it, then there might be something useful there.  Also, in the Region 2 public meeting about Environmental Analysis and Decision-making, the power company folks offered that power line maintenance would be best served by a power line-wide decision, not District by District.  I wonder whether the Forest Service and the country might be better off with a national plan amendment for power lines rather than Old Growth.

Westerman, a trained forester, is one of Congress’ most outspoken proponents of a more intensive approach to managing forests, many of which have grown thicker with vegetation due to past polices of fire exclusion.

I hope I’m not being overly sensitive about natural resource professionals here, but he’s a Yale-educated forester.  Sounds better than “trained.” Also has experience in practice as a forester and engineer.

From Wikipedia:

He graduated with a Bachelor of Science in engineering in 1990 and subsequently received a master’s degree in forestry from Yale University.[2]

Westerman worked as an engineer and forester before being elected to the Arkansas House in 2010. He was formerly employed as an engineer and forester by the Mid-South Engineering Company.

Back to the story.

Projects to remove trees — dead or alive — on fire-prone federal lands sometimes face years-long delays through NEPA reviews and litigation, both of which Westerman has tried to tamp down through legislation.

On the other side are environmental groups and advocates who say forests are better off, and more resilient, with less removal of trees for timber harvest and other purposes.

Dominick DellaSala, chief scientist at Wild Heritage, a Berkeley, California, environmental group, charged Westerman with “gutting the nation’s bedrock environmental laws as we approach Earth Day,” which is April 22.

Mature forests and large, old trees, on national forests store from 35 percent to 70 percent more carbon than logged areas, contain clean drinking water, support imperiled wildlife and are a guard against wildfire, DellaSala said. “They need to be taken off Westerman’s legislative cutting board.”

Here we go again.. thinning doesn’t help trees survive in dry areas.  As if there was one practice known as “logging” ..

Westerman’s proposal addresses other forest priorities as well, including promoting biochar — partially combusted wood that acts as a soil conditioner — produced from forest thinnings.

The draft bill would also promote re-seeding of native or fire-resistant grasses in burned-over areas, particularly in the wildland-urban interface.

And the proposal would tweak Forest Service provisions for long-term contracting with outside organizations for forest management, including by requiring the government to pay 10 percent of the contract cost as a termination fee, if the government ends such a contract early.

This bill is interesting so we’ll check it out in the next post.

 

The E&E News Story on Keystone Agreements and Some Additions

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This is under the tab for “other”. I think most of them are rural schools funds but maybe not. NFF seems to have two $100 mill ish and one 50 mill ish all started in 2023.

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Also the Great Basin Institute is not a Keystone but did get 59 mill. Looks like that was for some NEPA, perhaps:

In recent years, GBI has scaled support for several post-fire planning needs for the US Forest Service.  In 2022-23, the Sequoia, Inyo, Eldorado, Plumas, and Lassen National Forests have entered into agreements to provide specialist support and scoping services for Categorical Exclusions, Environmental Assessments, and Environmental Impact Statements to address post-fire needs after the Castle, Beckworth, Dixie, Caldor, French, Windy, KNP Complex, and Mosquito Fires, many of which comprise some of the largest wildfires in the history of the region.

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Anyway, back to the Keystone Agreements.   I think a diversity of groups with a track record of on-the-ground accomplishments is the way to go to spend BIL-IRA bucks.  That being said, let’s look at this E&E News story:

The story provides a list of the groups with agreements:

The Nature Conservancy,  American Forests, Trout Unlimited, National Wild Turkey Foundation, the Mule Deer Foundation, National Fish and Wildlife Foundation, Student Conservation Association, and the National Forest Foundation. Officials anticipate further agreements, including with tribes and tribal organizations, French said.

What all of these folks have in common (except maybe American Forests, which has tended to be more focused on urban and community forestry) is a track record of accomplishing things on the ground on National Forests.

The organizations, including hunting groups, have relevant experience and an interest in maintaining healthy forests, said Tony Wasley, president of the Wildlife Management Institute, a nonprofit conservation group representing organizations such as the National Shooting Sports Foundation and Pheasants Forever. “It’s a proven track record by these organizations,” Wasley said, adding that projects funded through the agreements are still subject to National Environmental Policy Act reviews. “It isn’t just a blank check and you’re walking away from it.”

So it seems like a broad diversity of groups with different interests and affiliations, but also with a working track record.

In some cases, the organizations partnering with the Forest Service don’t see eye to eye with the Biden administration on forest policies, or they advocate for approaches such as an increased use of prescribed fire that remain contentious in Congress. The National Wild Turkey Federation, for instance, has cautioned the administration against aspects of its old-growth forest plan and has a history of supporting forest clear-cutting to create wild turkey habitat. The group was the Forest Service’s fourth-biggest buyer of timber in 2019, based on volume.

I’m not sure how much “prescribed fire” is contentious in Congress.   We can ask “should there be a policy litmus test for federal grants?” “wouldn’t we be suspicious of a quid-pro-quo if these groups suddenly parroted everything that (some factions in) the Admin wanted? And “clearcutting?” yes, groups of people who like wildlife who like openings… tend to like openings.

The National Wild Turkey Federation’s agreement raises another question: How does the Forest Service, over a 20-year period, work hand in hand with organizations that don’t necessarily share Washington’s approach to managing forests?

It seems to me that given the list of organizations, and possibilities of future Admins, there will always be some who are more or less aligned with any given Admin.  But it shouldn’t matter as not everything is political.   There, I said it.  Of course, E&E News was bought by Politico Pro so that might be their filter on the world.

While the story focuses on NWTG, and their potential alignment with R’s..

The federation has supported Republican-led legislation to step back environmental reviews of forest-thinning projects and to create larger categorical exclusions from NEPA reviews, calling a proposal by Rep. Bruce Westerman (R-Ark.) to do so a “huge step forward in protecting the nation’s forests.”

Some of us, of course, recall that TU’s Chris Wood was a political appointee in a D Administration:

“It is heartening to see the Bipartisan Infrastructure Law’s resources being put to good use,” said Chris Wood, president and CEO of Trout Unlimited. “This agreement builds on a long and productive partnership between the Forest Service and Trout Unlimited. Together over the years, we have already restored more than 400 miles of important fish habitat, reconnected more than 700 miles of habitat by removing barriers to fish migration, and improved hundreds of thousands of acres of National Forest System lands. We are excited to continue and expand on this work over the coming years.”

Also, the Senior Vice President, Policy at American Forests is Leslie Jones. Here’s what it says on the American Forests website:

*Leslie is on a full-time detail to USDA Natural Resources and Environment, effective February 2022 through February 2024.

Leslie Jones oversees our policy team’s collaboration with agency partners and the development of legislative solutions with federal congressional champions. Jones has over 25 years of experience in shaping conservation policy. Prior to joining American Forests in 2020, Jones served as deputy undersecretary and chief of staff for natural resources and environment at the U.S. Department of Agriculture, where her work included overseeing the U.S. Forest Service and the Natural Resources Conservation Service on a variety of natural resource issues, including management of the 193-million-acre National Forest and Grassland System, and implementation of Farm Bill conservation programs on America’s farms, ranches and forests. Jones was also chief of staff at the global ocean conservation organization, Oceana, and general counsel for The Wilderness Society.

Not surprisingly, given that they seem to be the same people, American Forests tells us that “the Biden Administration continues to deliver as champions of America’s Forests”:

In response to the USDA Forest Service’s Notice of Intent to Amend Land Management Plans released today, American Forests President and CEO Jad Daley released the following statement:

The Biden-Harris administration continues to deliver as champions of America’s forests, helping to conserve and steward the nation’s old growth forests and the vast amounts of carbon they store. For too long, irreplaceable old growth forests have lacked a consistent and adaptable policy to support their conservation and management, but today’s announcement by the USDA Forest Service offers a needed new course.

One can wonder about potential conflict of interest here. Suppose in an R Admin, someone was detailed to an office and that the organization they were from was given a large grant from the agency they were detailed to.. seems a bit revolving door-ish.  But maybe I’m missing something.

But what does CBD think?

Still, some environmental groups, including the Center for Biological Diversity, say they worry that the government is shifting too much of its own responsibility to contractors and, in some cases, handing forest management to groups more prone to cutting big trees than saving them.

“There are plenty of clearcuts on private and state lands that provide habitat for turkeys,” said Randi Spivak, public lands policy director with the CBD. “These agreements should not allow damaging logging on national forests in the name of ‘restoration’ when really, they are just clearcutting national forests to benefit a special interest group.”

What I sense from CBD is the concern that a bias of the organization could overwhelm the usual agency accountability procedures. Still since CBD is litigatorily inclined, and all projects will go through the same NEPA and litigation process as usual.. I think we’d have to dig a bit deeper into their concerns.

But NWTF is doing plenty of work of a non-clearcutting nature, as we shall see tomorrow.  And from Andy Kerr, NW Timber Wars veteran -about Eastern forests.

Kerr said he believes federal forest managers and some conservation and hunting groups have united over the years to keep Eastern forests in an artificially young stage to protect hunting grounds — an allegation buttressed by a January 2023 article in the  journal Frontiers in Forests and Global Change.

Unfortunately, the link to that paper did not come through from my source and I couldn’t find it looking at the journal. If anyone knows where I can find it, please send me the link.  I am a bit skeptical as there is relatively little federal forest to be found among the Eastern forests, but we’ll see.

In general, it seems like the people quoted in this article are concerned about some of the groups and the nature of their fieldwork.  I’m more concerned about some of the more nebulous or planning or strategy aspects of the agreements and how it might be that some NGOs are perhaps tasked with more thinking and writing work, with less expertise, than the Forest Service.  With its own Research arm, and thousands of practitioners spread across the US, I don’t think they need help figuring out what “climate-smart” is.  And there are accountability questions, which I think everyone from CBD to me and probably Congress, share.  What are your concerns?

Keystone Agreement Information Update and Apology

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The above is a screenshot from USAspending.gov. You can click on it to make it easier to read.

Update on Questions From Last Week

Dave Mertz has heard back that the Forest Service will answer the questions he posed last week. So we can look forward to that.

Suggestions for the Forest Service in Communicating

I’d put out a table that shows the agreements thus far, and how much has been obligated over what time period.  Once specific agreements for each project are approved,   I’d have each funded project with a project description, how much money, timeline, and accomplishments when they are finished, located somewhere they can easily be searched (not USAspending.gov).   (the above link is to American Forests, which appears to be $50 mill for Urban and Community Forestry, which also appears to be already obligated, that’s also the screenshot above).  It would be great to have maps also for specific projects, so we can see where the $ are going.  I’m sure Congressionals and others will be curious.  Maybe like the GAOA site.

My Apology to the Forest Service and to Dave Mertz:

I’d like to apologize to Forest Service folks and Dave Mertz.  When Dave and I were working up our list of questions, I added:

(4) Are the Keystone Agreements being used to avoid Federal Acquisition Regulations and federal hiring difficulties?

It wasn’t until I read it in his post that I realized how it might have come across as their ill intent, which I never meant.  I meant it in a broader sense (which I could have expressed more clearly) “are there specific aspects of the FARs and hiring that make it difficult to fulfill the intent of Congress in the BIL and IRA?”  Now, I haven’t heard about contracting, but I continue to hear about issues with USAJobs and the Albuquerque Service Center. On the other hand, vast infusions of money are probably not best used with temporaries, so perhaps the real question is about contracting vs. grants and agreements.

My intent was to see if there were obstacles that could be removed in order to proceed with success in meeting the goals of IRA and BIL, and maybe use that Congressional energy  to make some fixes of a generally positive nature beyond BIL and IRA, but maybe that’s a question for Congress to ask. Or maybe they should have asked before sending the money out. Or maybe they realize that Federal hiring and contracting are cans of worms that they don’t want to get involved with. Easier to send out the money and hope for the best. Gee, I sound a little like Andy.

What I Think About All This

Partners are very important and can be critical to the Forest Service carrying out its mission.  This is nothing new, about 15 years ago I recall a Region 2 Regional Foresters Honor Awards banquet with a video entirely composed of the Regional Forester (Rick Cables) talking about “partners” and “partnerships”.  The SERAL project on the Stanislaus, as we covered here, was successful due to master agreements with the County and others.

As I said about SERAL partnerships, “Various master agreements, including with the County, enabled finances to be transferred and work to be done without federal hiring or FARs difficulties.  Counties and others can hire locally, so that issues like housing affordability may be less pressing.”

It makes perfect sense, in my view, for the Forest Service to have larger scale agreements so that each Forest doesn’t have to reinvent the grant-making wheel.  Also, because of the temporary nature of BIL and IRA, the Forest Service couldn’t actually add people. And these agreements provide handy ways to stash the funding so that Congress can’t get it back (at least that’s how it appears).

Still, two things raise questions for some of us.. transparency and accountability, and that’s what the rest of our questions were about. Some of us are also curious about whether work contracted versus granted have to follow the same rules and have the same degree of oversight and accountability.  Folks with differing perspectives are equally curious about this, as we shall see in the E&E News story.

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While I was exploring the USAspending.gov website, I looked under the contracts tab by accident and found an $89.4 million contract to  Sierra Tahoe Environmental Management, LLC. for stewardship work on the Plumas. So large-scale contracts are also possibilities. As one Anonymous pointed out, though, both contracting and grants and agreements shops might be overwhelmed by the influx of funding.

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Smokey Has a Point: Housefresh Analyzes Human-Caused Wildfires

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Well actually, Smokey never left, although he was defamed in certain circles. Here’s BCm and here’s Burnie the Bobcat. As I said on XTwit or TwitX last weekish.

Thanks to Wildfire Today for this:

Air quality publication HouseFresh analyzed NIFC data from 2023 and ranked the causes of wildfires by number of occurrences. Of the recorded fires, 72.6 percent were directly caused by humans.

The bulk of last year’s wildfires were caused by debris burning and open burning, resulting in 1,302 wildfires. That is an increase from the 1,120 fires started by debris and open burning in 2022. Equipment and vehicle use, power generation/transmission/distribution, and arson were the next listed causes of wildfires in 2023 at 507, 390, and 364 respectively.

“The balance between human and natural fires has almost reversed since 2014, although the trend has not been smooth,” the HouseFresh report said. “The proportion of human-caused wildfires grew significantly in 2015, 2016 and 2020, peaking at 77.2 percent in 2020.”

Here’s a link to the Housefresh report.

A person might wonder if some climate modeling of wildfire dollars could be rerouted to understanding the social science of human ignitions and looking at successful interventions?

Federal Lands Litigation – update through April 8, 2024

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A little weekend reading.

FOREST SERVICE

Notice of Intent to Sue

On March 25, the Center for Biological Diversity notified the Forest Service and Fish and Wildlife Service of its intent to sue for failing to initiate consultation on its ongoing actions that may affect the coastal pine marten, listed as threatened in 2020.  They specifically target “rampant, unchecked off-road vehicle (“ORV”) use” in the Oregon Dunes National Recreation Area, and suggest that the Forest Service should “put up fencing to protect marten habitat, and more signage or enforcement of noise limits that could disrupt the martens’ critical day-to-day behaviors.”  The press release includes a link to the Notice; additional background is provided here.

New lawsuit

A new lawsuit has been filed against the Beaverhead-Deerlodge National Forest because it relocated a repeater antenna to a designated Wilderness Study Area.  The Forest’s decision was apparently based on a categorical exclusion for repair and maintenance of an administrative site.  No news sources without a paywall seem to have covered this story, but background was previously provided here.

Court decision in Greater Hells Canyon Council v. Wilkes (D. Oregon)

On March 29, the district court issued an order supporting the findings of the magistrate judge, previously discussed here.  The court said the Forest Service evaluation of eliminating the 21 inch diameter limit on logging in eastern Oregon and Washington “failed to take a hard look at the amendment’s change and its impact on aquatic species.”  We have already discussed the court’s decision here.  (Press coverage seems surprisingly limited, and I have not seen the actual order.)

Court decision in Friends of the Crazy Mountains v. Erickson (9th Cir.)

On April 8, the circuit court affirmed the district court’s ruling that the Forest Service had complied with NEPA requirements for specificity for this 2018 decision long ago because, “Both the 2006 EIS and the 2009 EA gave reasonable notice that the 2018 trail reroute fell within their respective scopes.”  Plaintiffs had failed to challenge those actions at the time.  The article includes a link to the opinion.  We covered the beginnings of this case here.

BLM/NPS

Court decision in Dakota Resource Council v. U. S. Department of Interior (D. D.C.)

On March 22, the district court upheld BLM’s compliance with NEPA and FLPMA for six oil and gas lease sales affecting nearly 120,000 acres in Wyoming and another 10,000 in several other states.  The court specifically rejected the plaintiff’s arguments that the BLM should combine all leases within each quarter in one decision process instead of separate EAs.  With regard to greenhouse gas issues, the court said:

“Operating at the frontiers of science, BLM reasonably exhausted available tools to analyze the lease sales’ environmental consequences:  It estimated the amount of GHG emissions from the lease sales; placed those projections in proper perspective; monetized the social cost of the emissions; described why it cannot predict the on-the-ground effects that this level of GHG emissions will have on the local ecosystem or global environment; and explained why, absent a government carbon budget or similar reference standard, it was not possible to determine whether the estimated emissions would have a “significant” impact on the environment.”

Court decision in Wilderness Society v. U. S. D. I. (D. D.C.)

In a second case on the same lease decisions, the same judge held that the BLM violated NEPA because it failed to adequately assess “the Wyoming sale’s impact on groundwater and wildlife,” specifically mule deer and the sage grouse, and failed to adequately explain how the effects on greenhouse gas emissions influenced its leasing decisions.  Notably, the court did not approve of the BLM relying on the analysis of wildlife effects in its resource management plan.  The court agreed with the BLM on other issues.  With regard to the greenhouse gas issue, the court said:

“After projecting the emissions and their social costs, though, the Bureau did not explain why it believed that a lease sale of this magnitude was nonetheless worthwhile and consistent with its statutory duties to steward federal lands for the public benefit. Rather, the Bureau appeared to back away from its analysis of GHG emissions when justifying its decision to move forward.”

Briefing on the remedy is pending.  (The article includes a link to both opinions.)

New lawsuit:  Center for Biological Diversity v. U. S. Bureau of Land Management (D. Nevada)

On March 25, plaintiffs went to court to try to force the BLM to develop plans for two national monuments in Nevada, Basin and Range and Gold Butte.  The monuments were established in 2015 and 2017 respectively, and beginning efforts at planning were abandoned.  FLPMA and the proclamations for the monuments require planning. Plaintiffs explained the problems with the delay:

“Some examples of impacts to the monuments from a lack of active management include the proliferation of human waste at recreation sites due to BLM’s failure to install sanitary facilities; a proliferation of unauthorized [off-highway vehicle] uses due to BLM’s failure to properly regulate and enforce laws on limitations to off road vehicular travel; and the ongoing illegal cattle grazing by Cliven Bundy in Gold Butte. These impacts cause habitat degradation and destruction which threaten wildlife like the desert tortoise.”

Solar projects were also mentioned.  This article provides an update on the Bundy cattle (from which one might infer a connection to the lack of BLM action there).  Plaintiffs recognize that completion of plans would not resolve the cattle trespassing issue, since they are already illegal.

Cert denied in American Forest Resource Council v. U. S. A. (Supreme Court)

On March 25, the Supreme Court declined to review the expansion of the Cascade-Siskiyou on O&C lands, and BLM’s 2016 Resource Management Plans for Western Oregon O&C lands, which had been upheld by the D. C. Court of Appeals.  (See also comments by Sean here.)  Only two justices indicated an interest in reviewing the case, and they may have only been interested in the narrower question of conflicts with the O&C Act rather than the Antiquities Act authority to designate monuments.  The door doesn’t appear to be closed to another challenge to the Antiquities Act.  (Coincidentally, the BLM has just released a new draft plan for managing the Monument.)

New lawsuit:  Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On March 27, Klamath-Siskiyou Wildlands Center, Cascadia Wildlands and Oregon Wild sued the BLM for its decision to authorize portions of the Rogue Gold Forest Management Project, which involves logging in late-successional reserves designated under a resource management plan.  The complaint alleges that the Project violates FLPMA because it is not consistent with that plan because, “Generating timber volume is not a permissible objective for logging within the LSR.”

This article provides some additional context regarding large trees and litigation in this area, including this comment from BLM that was something I hadn’t heard before:

“We work really hard to design timber sales and access roads to have the least amount of impact. We hear from our timber operators that they don’t want to cut those larger trees. It’s a safety issue. It increases the costs,” said Kyle Sullivan, a BLM spokesperson.

He said that there are barely any mills left in Oregon that can take old-growth sized logs and claimed those large trees that are felled are left on the forest floor to become wildlife habitat.

Court decision in Leigh v. Raby (D. Nevada)

On March 28, the district court ruled that the BLM “unreasonably delayed” completion of herd management area plans when it failed to adopt such a plan or conduct the necessary environmental review before 31 mustangs died during a roundup in the Pancake complex in eastern Nevada.  The court specifically rejected the argument that BLM’s broader resource management plans combined with individual roundup plans for overpopulated herds satisfies the requirement.  The court stated, “Engaging in the decision-making of an HMAP without actually preparing an HMAP could therefore deprive interested parties of the administrative review processes to which they are entitled.”  (This reasoning may be applicable to decisions that should be in forest plans but are made without following appropriate processes, or attempts to substitute some other process for actions that should be subject to NEPA.)  The court required completion of the Herd Area Management Plan within one year.

ENDANGERED SPECIES ACT

At the end of March, the U. S. Fish and Wildlife Service and NOAA issued a final rule largely reversing the changes the Trump Administration had made in the ESA listing and consultation processes.  This article explains the changes, and anticipates the litigation that will follow.

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

On April 1, the Center sued the Fish and Wildlife Service for failing to respond to its petitions to list four bumblebee species under the Endangered Species Act within the required time period.  The species are the American bumblebee, the southern plains bumblebee, the variable cuckoo bumblebee and the blue calamintha bee.  American bumblebees were found in open areas across all of the lower 48 states except Washington.

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

New lawsuit:  Western Watersheds Project v. Williams (D. Montana)

On April 8, 14 plaintiffs filed two lawsuits against the decision by the U. S. Fish and Wildlife Service to not relist the gray wolves of the northern Rocky Mountains under the Endangered Species Act.  Both complaints argue that USFWS relied on flawed population models and underestimated the impact of aggressive wolf-reduction measures in Idaho, Montana and Wyoming.  The article has links to both complaints.

 

Mass Timber, CLT, GLT, NLT, and Others: What Does it All Mean? Plus NMFSH Auction

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If you watched the Forest Service budget hearing, a few of the Senators brought up Mass Timber and CLT (cross-laminated timber).  The National Museum of Forest Service History had an excellent explanation (with photos) in their newsletter. They are also having an auction until April 15, I’ve bid on a couple of places to stay and there’s other good stuff as well. The below and attached newsletter is reprinted with the permission of the National Museum.  I thought this was a great article, so shout-out to the Museum and to Tom Chung! I just excerpted the introduction below, and the article itself is here.

By Tom S. Chung, FAIA, Principal, Leers Weinzapfel Associates

Many of us may have heard of the term “Mass Timber” but are not sure of what it is, although I would say that many, if not all, of us know what a “wood building” is and have been inside one from log cabins to solid heavy timber office buildings to curved wood structured churches. A Mass Timber building is in one sense, simply a wood building that uses large pieces of wood instead of smaller pieces of wood like lumber (2x4s and 2x6s) that we see being used for single family houses and multifamily housing 5 stories tall or less, all over the country for the past sixty plus years.
Mass Timber as the name implies is made of heavier (or larger) pieces of wood and its earliest examples are the solid heavy timber buildings that were built with old growth trees that made possible large cross sections of columns and beams often greater than 1’ x 1’ and more from a single tree trunk just debarked and cut to size.

But Mass Timber today is a highly engineered product that is assembled into even larger building elements with just lumber (2x4s and 2x6s) or even smaller laminations. Unlike
solid heavy timber that relies much on the characteristics of a single tree and a large safety factor since no two trees are the same, mass timber today is much more predictable and precisely engineered to meet the necessary loads with material efficiency. It is also fabricated in a factory in a highly automated way using digital technologies and equipment and assembled on site quickly and quietly, instead of being constructed piece by piece on site with lots of construction time and material waste.

While most civilizations began building with wood, as it was plentiful and easy to shape with simple tools, our modern society and its need to build bigger and taller buildings over the late 19th and 20th centuries in urban centers, coinciding with the results of industrial revolution which began a century earlier resulted in wood being displaced as the main building material by steel and concrete.

Though wood remained throughout the past century as a building material for smaller structures such as single family homes and small multi-family housing, the emergence of mass timber today makes possible the use of wood as a building material previously reserved for steel and concrete, allowing us to build these larger, taller and more complex buildings now in wood, with a renewable building material with less carbon emissions that helps address the building industry’s responsibility towards climate change.

In addition to being a solution to build more responsibly with less carbon footprint, mass timber buildings, unlike light-frame wood construction often expose the wood since it doesn’t need to be covered up by painted white drywall. This allows for the inherent biophilic attributes of wood to be experienced; visually appealing color and grain, the warmth to touch, the fresh pine scented smell with the humidity and moisture regulating properties of mass timber provides a full tactile experience that enrich the daily routines of those who live and work in these buildings.

Products
Among the commercially available products in the mass timber category are Cross-laminated Timber (CLT), Naillaminated Timber (NLT), Dowell-Laminated Timber (DLT), Mass Plywood Panel (MPP), Glue Laminated Timber (GLT) and glulams, Laminated Veneer Lumber (LVL), Laminated Strand Lumber (LSL) and Parallel Strand Lumber (PSL). They range in costs, appearance
and applications.

Nail-Laminated Timber or NLT are simply lumber (2xs) nailed together in a one way span between beams to make solid floors and usually require a layer of plywood on top for lateral stability. They are simple to build, do not require expensive factories and are on the less expensive end of mass timber product costs. But since there are nails, they cannot be cut with CNC machines
and are more limiting structurally and architecturally in general. Dowell-laminated Timber or DLT can be seen as an evolution of NLT in that the steel nails were replaced by hardwood dowels so that it could be CNC cut and made in a highly automated factory like other mass timber products. It appears similar to NLT and also spans one-way between beams but also with increased
structural and architectural possibilities at a higher cost.

Glulams, similar to NLT as mass timber products have been around for over eighty years. They have been used mostly as beams and columns (linear elements) and can be seen in many old churches and gymnasiums as large curved or arching elements. But they can also laid flat on their sides and with successive pieces become floor assemblies, similar to NLT or DLT.
In this configuration as floor panels, they are called “GLT.”

Seen often in combination with glulam beams and columns are Cross-laminated Timber or CLT panels It is the most well known and most talked about mass timber product today given its versatility. It was first commercially developed in Europe with factories in Austria, Germany and Switzerland about 25 years ago, then to Canada and now gaining traction in the US over the past 5-7 years. CLT arranges lumber laid flat, with each successive layer in a perpendicular direction such that unlike NLT, DLT or GLT the grain of the wood is oriented in perpendicular directions rather than a single direction. This allows for a greater dimensional stability and a two-way span capability and possibility of being point-supported with just a column and without beams. However, most CLT floor panels are still used as primarily one-way systems in conjunction with beams and columns given the simpler engineering involved and greater spans and column spacing that it enables. But the two-way structural capacity of CLT panels also makes it ideal not only as floor or roof (horizontal) panels but also as wall (vertical) panels. Many buildings utilize CLT in this way as load bearing walls and even as building cores for egress stairs, elevators and mechanical, designed to also take on lateral loads such as wind and seismic loads.

As versatile as CLT but very different in appearance is Mass Plywood Panel or MPP. MPP are simply layers of plywood (usually 4’x8’ and ~1” thick) laminated on top of each other to make thick, wide and longer panels of 8’ x 40’ or greater and from 4” to over 1’ thick, similar to CLT, NLT and DLT. Like CLT, MPP can span in two directions, be point supported with just columns and are dimensionally more stable. It can also be used as floors or walls and take on lateral loads. But unlike CLT in which each layer is made of 2x boards which can be seen, it’s made of plywood and one can see the whole or partial pieces of the 4’x8’ plywood in its appearance.

Although CLT precedes MPP, as plywood preceded CLT and as they both can span in two directions as they have the grain of wood oriented in perpendicular directions, CLT is sometimes referred to as “plywood on steroids.” Similarly, as CLT, like DLT and MPP are made in a highly automated factories with multi-million dollar investments in the production equipment-such as presses, CNC machines, glueing, dowelling, sorting and finger jointing machines with butterfly tables and vaccum lifts-all with associated costs. NLT has been referred to as “poor man’s CLT” given its relatively low cost and low production factors.

Laminated Veneer Lumber (LVL), Laminated Strand Lumber (LSL) and Parallel Strand Lumber (PSL) are veneer or strand-based products with much higher glue to fiber ratio and mainly used for their additional strength properties as compared to lumber, often as columns or beams in conjunction with light frame wood construction where stronger members are needed. Though they can be exposed to view, they are often hidden behind drywall just like light frame wood construction. Though they are technically in the mass timber category, they are less associated with mass timber as they are not used for large floor or wall panels or columns or beams that support them as described earlier with with CLT, NLT, DLT, MPP, GLT and glulams.

Bad and worse, from an environmental perspective

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NBC News

As the election campaign overheats, here are a couple critiques of current Biden and future Trump policies affecting the Forest Service.

WildEarth Guardians recently reviewed a FY 2022 Forest Service Report to Congress, which discusses “timber program performance.”  (I’d note that the context was “the unexpected increase in demand for lumber during the recent period of quarantine and social distancing due to the coronavirus pandemic…”)  WildEarth Guardians said,

The document outlines how the agency can increase logging in our national forests by at least 25 percent above current levels, to four billion board feet each year! The last time the Forest Service sold that much timber from our national forests was 1993, the year the agency started developing the Northwest Forest Plan to address habitat loss for the northern spotted owl caused by—that’s right—overlogging. That level of logging was not sustainable then and it isn’t sustainable now, especially in light of what we know now about the importance of protecting mature and old-growth forests to mitigate the effects of climate change. Nevertheless, the Forest Service wants to turn the clock back and actually spells out just how it wants to do that.

The remedy, according to the Forest Service, is not to stop proposing ecologically damaging timber sales that violate the law, but rather to ask Congress for “legislative fixes” that make it harder, if not impossible, to challenge ecologically damaging timber sales in court. Streamlining environmental reviews and limiting public input, the Forest Service says, “will help increase timber volume sold.”

We shouldn’t wonder why there is skepticism from these parts when the Forest Service says “trust us.”  As WildEarth Guardians summarized (with their emphasis):

Such perverse incentives are a stark reminder that timber production remains the overarching priority for the Forest Service while all other values, like wildlife or climate mitigation, are a distant second. As the Forest Service seeks to push timber production levels even higher, those of us who care about our national forests must be ready to speak up and tell the agency and lawmakers that we cannot turn the clock back to a time when unsustainable logging pushed species like the northern spotted owl to the brink of extinction.

An article in the Huffington Post focused on the Department of Interior (but has implications for national forests), and indicates the incentives would be even more perverse for management of our public lands under Trump II, requiring even more public oversight (if they don’t take away the ability to do that):

Pendley’s blueprint for Trump, if he should win in November, includes holding robust oil and gas lease sales on- and offshore, boosting drilling across northern Alaska, slashing the royalties that fossil fuel companies pay to drill on federal lands, expediting oil and gas permitting, and rescinding Biden-era rules aimed at protecting endangered species and limiting methane pollution from oil and gas operations.

Along with a series of actions to boost drilling and mining across the federal estate, Pendley calls for a future Republican administration to not only dismantle existing protected landscapes but limit presidents’ ability to protect others in the future. He advocates for vacating Biden’s executive order establishing a goal of conserving 30% of federal lands and waters by 2030; rescinding the Biden administration’s drilling and mining moratoriums in Colorado, New Mexico and Minnesota; reviewing all Biden-era resource management plans, which cover millions of acres of federal lands; and repealing the Antiquities Act, the landmark 1906 law that 18 presidents have used to designate 161 national monuments.

If that reads like a fossil fuel industry wish list, it’s because it is. Rather than personally calling for the keys to America’s public lands to be turned over to America’s fossil fuel sector, Pendley let the head of a powerful industry group do it for him.

“Beyond posing an existential threat to democracy, Project 2025 puts special interests over everyday Americans,” said Tony Carrk, executive director of Accountable.US, a progressive watchdog group that shared its research on Project 2025 with HuffPost. “The dangerous initiative has handed off its policy proposals to the same industry players who have dumped millions into the project — and who will massively benefit from its industry-friendly policies.”

“They could have found any number of mainstream conservatives to write their agenda for them. They didn’t,” Weiss said. “They picked the notorious anti-public lands extremist, because that is at the end of the day what they want.

 

“Trust Us, We Know What We’re Doing”: Guest Post by Dave Mertz on the Keystone Agreements

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Marc Heller has an article about the Keystone Agreements here. I’ll talk about that tomorrow.  He didn’t cover many of the questions that Dave Mertz, I and other retirees had.  Also interesting (and annoying) that Marc could get answers from the FS and Dave and I (and others who have been asking) could not, after weeks of reaching out to different offices and levels. We had to FOIA to get copies of the agreements themselves, which I’ll attach, also tomorrow.

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Maybe some of you, like me, are old enough to remember the old TV show “Sledgehammer.” His catchphrase was “Trust me, I know what I’m doing.” The problem was, oftentimes, he did
not know what he was doing. I wonder if, with these Keystone Agreements, the Forest Service is asking us to trust them because they know what they are doing. We do know that they are
committing a whole lot of federal dollars through these agreements, and there doesn’t seem to be much transparency.

To be fair, the Forest Service was provided a lot of money through the Bipartisan Infrastructure Law (BIL) and the Inflation Reduction Act (IRA), and they had to figure out how to utilize that
funding in a short period of time. Were all of these Keystone Agreements a logical way to bank that money and put it to good use later? Maybe so. Or was it a convenient way for the Forest
Service to claim accomplishments and take some of the load off of them? Maybe it was both?

In the interest of finding out more about these agreements, I sent an email with several questions to the Forest Service’s National Partnerships Office. To date, I have not had a response. I would
imagine that a response will need to be cleared by higher-ups, so it may take a while. Here are the questions I asked:

(1) We have obtained copies of the Master Agreements with the various NGOs through FOIAs.  We are interested in the details contained in the associated Special Project Agreements (SPA), particularly the financial information.  Shouldn’t this information beavailable to the public?  We believe it is important to know how the Forest Service is spending federal dollars through these agreements.  Do we need to file FOIAs to obtain this information or could it just be available online?  If not, why not?  We realize there would be some proprietary information that would need to be redacted.

(2) How are accomplishments being tracked through these agreements?  Who is providing oversight, Grants and Agreements?  The Partnerships Office?

(3) What is the process of awarding the NGOs funding?  Do they receive the dollars and then projects are developed?  What are the overhead rates of the various NGOs?

(4) Are the Keystone Agreements being used to avoid Federal Acquisition Regulations and federal hiring difficulties?

(5) We are hearing that Forests are having budget difficulties this fiscal year and that it will impact their ability to hire employees.  In hindsight, was it wise to put so much funding into the Keystone Agreements rather than into NFS?  Could a lot of this funding have been put into IDIQ contracts instead?

(6) Are Keystone Agreement accomplishments being claimed when the funding is awarded rather than when the work is actually accomplished?

I have other questions that I did not bring up. How much funding has already been provided through the various Special Project Agreements? It appears that through these agreements, the
Forest Service still has a number of obligations. These projects are not turnkey. If that is the case, are they really saving the Forest Service that much work? Are they a good bang for the
buck? Do these organizations have the expertise to accomplish this work up to Forest Service standards? Who is ensuring compliance with the associated NEPA documents? Are these
organizations doing some inherently governmental tasks? I could go on.

I would be interested in getting other’s thoughts on all of this. Can you help answer some of these questions? It would be good to hear from you!

Tester Presses Forest Service Chief on Unwarranted Fines on Montana ­Electric Co-op

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This is a case in which maybe our lawyer friends can chime in..or maybe folks from Region 1 know more?

When does the FS simply determine a fine, and when do they litigate (as I think they did with Sierra Pacific in California) for starting wildfires? For example, Sierra Pacific was sued for damages and fees in excess of $1 billion for allegedly causing the fire.  Does it depend on the nature of the organization (profit/not for profit?)? The certainty of who started it (as per legitimacy of investigation)? The amount of damage? I guess the questions are “who decides how to proceed and what to charge?” “based on what factors”?

Why did the Chief seem to say (maybe I misunderstood) that it was up to DOJ and he has little control over the decision?

Below is  the press release from Tester’s office on the hearing today. Here’s a link to the exchange with Chief Moore. Thanks to Senator Tester’s office for providing this material!

U.S. Senator Jon Tester today pressed U.S. Forest Service (USFS) Chief Randy Moore during a Senate Appropriations hearing, questioning him on the USFS’s decision to stick Vigilante Rural Cooperative, a Montana electric cooperative, with a more than $5 million bill.

 

Following the Deep Creek Canyon Fire, which occurred in the Helena National Forest in 2021, USFS is seeking to fine Vigilante Rural Cooperative for fire suppression costs. This decision is based on a questionable determination of fault and fails to recognize the potential for this bill to jack up costs for Montana ratepayers. Senator Tester recently called on Secretary of Agriculture Tom Vilsack to reverse the fine.

 

Tester began by outlining the magnitude of the fine on the operating revenue of the cooperative: “The Forest Service fined a small electric cooperative in Montana a little over $5 million for a fire in 2021. To put this in perspective, the annual operating revenue for this small cooperative is $15 million. If this isn’t crazy enough, I recently learned that there is not a process in place for the cooperative to appeal this case directly to the U.S. Forest Service.”

 

Tester continued to specifically note the questionable determination of fault: “While I appreciate the importance of holding folks accountable and I believe in it strongly, I can tell you the jury is still out on whether the cooperative was negligent at all. Put that together, this process seems extremely broken.”

 

Tester went on to outline the consequences of this fine not just on the cooperative, but on Montana ratepayers: “Chief Moore, you know very well…that fining a cooperative with a $15 million budget, one third of its revenue – a cooperative that’s been around, by the way, for 87 years – would have two outcomes. The cooperative either goes out of business, and folks lose electricity, which is pretty darn critical in the 21st century, or the cooperative has to jack up energy costs on its entire members – because cooperatives are owned by the customer – to cover the bill.”

 

“Given that the blame for the 2021 fire is disputable,” Tester concluded. “My question to you, Chief Moore, is how the hell did we end up here?”

  

Tester’s recent letter to Secretary Vilsack can be read HERE.