Committee of Scientists Report 23ish Years Later: Origins of Desired Future Conditions and the Loose Leaf Notebook

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Jon and I were having one of our arcane NFMA discussions about desired conditions and the loose leaf notebook concept. Our memories were somewhat different (no surprises!).  So I went to my computer files and searched on “loose leaf notebook.”  What I was surprised to find was the role of the Committee of Scientists in developing those ideas.  The Committee of Scientists was a bunch of scientists (and one legal scholar) who were asked to weigh in on how  NFMA planning should work.  There were other complementary choices- like asking people and practitioners what worked and what didn’t- suggested by me, or involving professional planning experts,  but the Forest Service chose not to take that approach.  For those of you who weren’t there or who could use a reminder, I found this Journal of Forestry summary in my notes. It’s interesting to reflect on these ideas and how they have or have not been incorporated or worked in practice over the last 20 years. Here’s a link to the entire report.

The Loose-Leaf Notebook
… the land-and resource-management plan should be in the form of a loose-leaf notebook that contains all of the policy directions, strategies, and implementation proposals from decisions that have been made at all levels of the planning process…. It must also contain the monitoring methodologies that will be implemented as well as the evaluation results from monitoring…. Rather than a formal process involving review and comment, these loose-leaf plans are dynamic and evolving, readily reflecting and accommodating the outcomes of adaptive management.  Thus, as decisions are revisited and revised in response to changing social understanding, natural and social events,and policy priorities,the loose-leaf notebook immediately reflects those changes. Consequently, any “amendments”made to these plans reflect decisions that have been made aud reviewed elsewhere.

Desired future conditions also came from this effort.. as  a “central reference point” for planning. I think the idea was that more people would agree on DFCs than outputs.

One of the authors (Roger Sedjo, an economist)  disagreed with the conclusions and wrote this in the Journal of Forestry in an article (his primary concern was that a mission shift was a political call, not a scientific call):

There is much discussion in the report about managing the national forests for the American people,yet it is clear that the American people are highly disillusioned with the managers
of the national forests.To the distress of some of its members, the committee, which held meetings in all parts of the country,found that many of the most outspoken critics of forest planning and agency management were the local communities and local users of the forest.With few exceptions,these groups and individuals felt cheated by the process.They had entered into the planning process in good faith and spent huge amounts of time working through the process,only to find their decisions overruled by appeals, litigation, or administrative decisions.

It might be interesting for people engaged with planning today to take a look back, and see which of these ideas were tried, which worked, and which did not. It’s also interesting to reflect on the implicit role of stasis in ecosystems and how that has changed in the last 25 ish years due to predictions about climate change.  Would the goal of “sustainability” change to “resilience?”

Modeling the risk reduction benefit of forest management

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Folks, this USFS paper may be of interest: “Modeling the risk reduction benefit of forest management using a case study in the Lake Tahoe Basin.”

Authors: Evans, Samuel G.; Holland, Tim G.; Long, Jonathan W.; Maxwell, Charles; Scheller, Robert M.; Patrick, Evan; Potts, Matthew D.

Date: 2022

Source Ecology and Society. 27(2):18

Abstract: Across the United States, wildfire severity and frequency are increasing, placing many properties at risk of harm or destruction. We quantify and compare how different forest management strategies designed to increase forest resilience and health reduce the number of properties at risk from wildfire, focusing on the Lake Tahoe Basin of California and Nevada. We combine landscape change simulations (including climate change, wildfire, and management effects) with scenarios of current and plausible fuel treatment activities and parcel-scale fire risk analysis. Results suggest that more aggressive fuel treatment activities that treat more area on the landscape, whether through mechanical and hand thinning or prescribed fire, dramatically lower the fire probability in the region and lead to a corresponding lower risk of property loss. We estimate that relative to recent practices of focusing management in the wildland–urban interface, more active forest management can reduce property loss risk by 45%–76%, or approximately 2600–4900 properties. The majority of this risk reduction is for single family residences, which constitute most structures in the region. Further, we find that the highest risk reduction is obtained through strategies that treat a substantially greater area than is currently treated in the region and allows for selective wildfires to burn for resource objectives outside of the wildland–urban interface. These results highlight the importance of more active forest management as an effective tool in reducing the wildfire risk to capital assets in the region.

Leaked Draft Permitting Deal from WaPo: What’s in There and Would it Work?

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Here’s a leaked copy of draft legislation for permitting “side deal”.. maybe someone want to read through this and figure out what it means and whether or not it is likely to help?

Here’s a link to a WaPo article:

According to our old friend Rep. Raul Grijalva, there seems to be no middle ground.

“Destroying NEPA has long been on Republicans’ wish list,” Rep. Raúl Grijalva (D-Ariz.), the House Natural Resources Committee’s chairman, said in a recent interview. “But now, in a bizarre twist of history, Democrats are in a position to deliver on that agenda.”

Here’s what the WaPo says about the contents:

The leaked draft of the bill, which bears the watermark of the American Petroleum Institute, would shorten environmental reviews under the National Environmental Policy Act and require President Biden to designate 25 energy projects of “strategic national importance,” among other provisions.

And responses of groups.. but is a deal a deal or not? Is it too late to go back on the deal? Were groups negotiating in good faith, or are these different groups?

A coalition of 650 climate groups on Wednesday sent a letter to Democratic leadership expressing “strenuous opposition” to the deal. Earthjustice, an environmental law organization, has also circulated an analysis of how the permitting proposal could accelerate the approval of fossil fuel projects, according to a copy of the analysis obtained by The Post.

“There’s a misconception right now that we won’t be able to build out the clean energy infrastructure we desperately need unless we roll back environmental laws,” said Earthjustice President Abbie Dillen.

But Heather Zichal, a former White House climate adviser who is now the chief executive of the American Clean Power Association, said the permitting proposal will play an essential role in realizing the benefits of the climate bill, dubbed the Inflation Reduction Act.

“There are so many terrific new opportunities for clean energy deployment within the Inflation Reduction Act,” Zichal said. “If you don’t have a parallel call to modernize the way these projects are permitted, it’s hard for me to see that these projects will come online in a timely manner.”

It looks like it’s “clean” power supporters vs. the “current permitting processes as sacred” groups.. I think it will be hard for either to argue from a position of moral superiority. Which will be a welcome relief, at least to some of us.

Get Ready for a new American West: Who Sacrifices What to Meet California’s Electricity Demand?

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Hundreds of active turbines produce power at PacificCorps' Ekola Flats wind farm.
Turbines at PacificCorp’s Ekola Flats wind farm outside Medicine Bow, Wyo.
(Robert Gauthier / Los Angeles Times)

This is the Aug. 25, 2022, edition of Boiling Point, a weekly newsletter about climate change and the environment in California and the American West. Sign up here to get it in your inbox.

Sammy Roth’s newsletter today which is well worth looking at.

But not every Western community is embracing renewable energy — and it’s often hard to blame them.

As my colleagues and I traveled across Wyoming, Utah, Colorado and Nevada, we spent time with a biologist who worries about wind turbines killing golden eagles; a rancher who fears Anschutz’s power line will industrialize his rural backcountry; and a National Park Service official who says the power line will interrupt scenic views on the road to a national monument. There are many such conflicts across the West, some of which involve clean power projects threatening sacred Native American sites.

Global warming is still the overriding concern — at least for me, a 30-year-old Los Angeles resident worried about a future of more dangerous heat waves, droughts, megafloods, wildfires, infectious diseases and rising seas. These changes should be alarming for everyone, everywhere, in my view. There’s no spot on planet Earth immune to the climate crisis.

But our road trip gave me pause.

Yes, the landscapes and communities we explored are distressingly vulnerable to climate change. But who am I to tell the people who live and work and play in these rural places that they’re missing the big picture? How is it fair for me to conclude that parts of the West are worth sacrificing to meet California’s demand for large amounts of electricity?

And yet Governor Newsome is now trying to keep Diablo Canyon open; and there is funding for nuclear in the IRA.

Anyway, here is Roth’s roundup of ideas..

As I’ve learned over eight years reporting on energy in the American West, there are plenty of opportunities to build bridges and seek out middle ground.

That could involve big cities working with small towns — especially towns losing fossil fuel jobs — to help those rural communities actually reap the economic benefits of clean energy. That’s what Los Angeles is trying to do in Utah’s Millard County, where the nation’s second-largest city is preparing to shutter a coal-fired power plant it’s operated for decades.

As we’ve seen in Kemmerer, Wyoming, there was not need to involve big cities, just big bucks from Bill Gates, and probably the feds. One wonders whether LA has enough of its own problems to solve.

It could also involve government agencies and conservationists mapping out the most sensitive habitats, and prohibiting wind and solar farms in those spots — while promoting clean energy development in less sensitive areas. That’s what California and the federal government have tried to do with the Desert Renewable Energy Conservation Plan.

Jon has mentioned this before.. we all agree that this is the way to go.. but what is keeping it from happening elsewhere? Lack of federal or state leadership? We have a D federal admin and several western states have D govs, so it must not be politics.  And what if we map all those sites and they do not add up to the amounts needed?

It almost certainly involves going big on rooftop solar power in major cities such as L.A. The more solar panels installed on homes, parking lots and warehouses, the fewer sprawling solar and wind farms will be needed to eliminate fossil fuels — which is one reason many climate activists are furious with a California proposal to slash rooftop solar incentives.

Stronger collaboration among Western states could also help. Right now, power-grid operators from California to Montana share relatively little electricity, even when one of them has extra solar or wind capacity that could help keep the lights on in a state facing a power-supply crunch. Although there are political pitfalls to overcome, a coordinated Western electric grid could help phase out fossil fuels in the West while (somewhat) reducing the need for new clean energy infrastructure.

A man in a hard hat stands on a staircase next to a huge wind turbine, whose blade is seen above.
Laine Anderson, PacifiCorp’s director of wind operations, stands next to a turbine at the Ekola Flats wind farm outside Medicine Bow, Wyo.
(Robert Gauthier / Los Angeles Times)

Farms and ranches offer another intriguing opportunity. As I’ve written previously, building solar projects on farmland is one way to avoid damaging pristine wildlife habitat, while also reducing water use in drought-stressed regions such as California’s Central Valley. And scientists have found that reducing cattle grazing is one of the best ways to restore Western ecosystems.

Um.. don’t we need farms to produce food?  And turbines don’t seem to bother cattle all that much, so how does that relate?

But as always, there are complications. Although some farmers and ranchers have embraced solar and wind energy as a new source of income, others see industrial renewable energy projects as a threat to their agricultural way of life. It’s a topic I’ll be covering soon as part of the next story in our Repowering the West series.

Which brings me to one last point: Seeking out middle ground is extremely worthwhile, and necessary to speed up the clean energy transition. But all the creative problem-solving in the world won’t make everyone happy.

It’s pretty much impossible to build a clean energy project with zero opposition and zero consequences — no matter how much care you might take to protect ecosystems and work with rural communities. Confronting the climate crisis will almost certainly result in some ruined views, dead eagles and job losses in towns that can’t afford them.

That may sound harsh, but so is living in a small apartment without air conditioning during a brutal heat wave, in a neighborhood with few shade trees and no public parks. So is going to elementary school in the shadow of a polluting oil refinery, and struggling to secure safe drinking water after your well runs dry, and fleeing from wildfire after wildfire.

Wouldn’t the solution to these be.. establishing shade trees and public parks (role of city government?). The link goes to a Grist article making the case that California does a poorer job of regulating drilling in neighborhoods than Wyoming and Texas and not about refineries at all.

Al Muratsuchi, the state assemblymember who introduced A.B. 345, pointed to the political power of the oil industry as the culprit for the bill’s failure. “The reason why the bill died in committee with three Democrats voting against the bill is not only the political power of big oil but also the political power of the labor unions that represent workers who have a stake in the oil industry,” Muratsuchi said. “We talk a lot about how science should prevail over politics. In this case, the science is clear — but the politics prevailed.”

In response to a request for comment, a WSPA spokesperson said that the oil and gas industry does not oppose setbacks wholesale, but that “a one-size-fits-all approach for an entire state for an issue like this is rarely good public policy.”

Interesting that “Still, California is the nation’s seventh-largest oil-producing state.”

The “well runs dry” link goes to an article that says:

The San Joaquin Valley’s water well problems stem from a complex mix of infrastructure failure, contamination and record-dry conditions.

I don’t see how wind farms in Wyoming will help with lack of urban forests and parks, or problems with setback regulation in California, or infrastructure failure and contamination.  In the long term it can help (to some extent) with wildfires and droughts.. but only over a very long term.  And wildfires and droughts also affect the states to be industrialized. Until then, we need to deal with those issues as best we can, both in LA and throughout the West.

 

 

193+: II. Ecosystem Management and the Return of Administrative Discretion, by Al Sample

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We didn’t get much discussion going on the last of Al Sample’s 193 Million Acres posts.

So I’ll set out what I think might be the most controversial part..

Ecoregional planning was defined by immense landscapes, entire mountain ranges, the great river systems, the habitat requirements of wide-ranging vertebrate species—and by the federal courts’ tightly-articulated interpretation of what was required of federal agencies to comply with the Endangered Species Act.  Adaptive management demanded near-continuous experimentation, monitoring, evaluation, adjustment, and more experimentation.  This resulted in equally continuous plan revisions and adjustments, rather than a wholesale reconsideration of a national forest plan every 10-15 years as originally envisioned in NFMA.

Because these large landscapes invariably encompassed a mosaic of federal, state, tribal, and private lands and an enormous diversity of stakeholders, new collaborative planning models gradually emerged (Cortner et al. 1998, Cortner and Moote 1999), built upon a foundation of shared values, common goals, mutual respect—and a commitment to keep moving forward in order to address the ever-increasing array of conservation challenges on these landscapes.  Large landscape conservation and ecoregional planning, by their sheer scale and complexity, do not lend themselves to central planning or micromanagement.  They tend to steadily push decision making toward the local level (Kennedy and Quigley 1998).  Even within the strictures of the reform statutes of the 1970s and subsequent case law, agency decision makers now have broader de facto administrative discretion in federal land management than at any time in the past half-century.

What was your experience of “ecoregional planning”? I thought maybe it was the Northwest Forest Plan and the Interior Columbia Basin Ecosystem Management Project, but are there others across the country?  Are they plans outside of NFMA planning that amend plans? I don’t think the NWFP passed decision making to the local level (but I haven’t read the Kennedy and Quigley paper) nor did it allow for much adaptive management (according to my sources).

So what was “ecoregional planning” supposed to do in your view?  Where was it tried? Where did it work? Is anyone doing it now? And how did it/does it relate to NFMA planning?

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Here’s Al’s post.

Ecosystem management and the return of administrative discretion

Against all odds, the US Forest Service has managed to navigate more than four decades of controversy and existential challenges.  Since the 1960s crisis over clearcutting on the Bitterroot, Monongahela, and other national forests, various political forces on the left and the right have called for the abolishment of the agency, the national forests, or both.  Chastened by prescriptive reform legislation in the 1970s, and wrestled to a virtual standstill by litigation in the 1980s, the agency has endured external strife and internal strains that would have broken most organizations.

Yet the US Forest Service has gradually found new footing, and today exercises greater professional discretion in forest management decision making than at any time in the past half-century. The Forest Service has helped pioneer the ecological science as well as the social processes that are central to modern adaptive management of forest ecosystems. But the pace of environmental, economic, and social changes affecting forests is accelerating.  The future of the Forest Service, and its ability to continue its evolving mission to promote the conservation and sustainable management of the nation’s forests, may depend on its ability to demonstrate to policymakers and an urbanized public the net values derived from the nation’s relatively modest—but critically important—investments in forest sustainability and resilience.

Striving to meet public (and Congressional) expectations, the US Forest Service and the national forests almost single-handedly supplied the raw materials for the post-war housing boom, mostly from old-growth forests in the West, as private forests recovered from harvesting in support of the war effort (Hirt 1996, Culhane 2013). At the same time, the national forests hosted a steadily increasing number of outdoor recreationists, with more than twice the number of visitors to the national parks (Steen 1977).  Having arguably invented the concept of multiple-use sustained-yield forest management (Steen 1991), the agency was stunned by its public characterization as disregarding environmental values in its quest for ever-higher timber harvests.  The eventual compromise on the National Forest Management Act, in combination with other environmental reform legislation of the period—the National Environmental Policy Act, Clean Water Act, Clean Water Act, Wilderness Act, and Endangered Species Act—brought much greater public participation and oversight in the agency’s land management decision making, and new limits on its professional discretion (Ackerman 1990).  The breakdown of this compromise in the 1980s ushered in a difficult decade of repeated litigation, with the agency’s management discretion even more sharply limited by new statutory interpretations in case law.

Ironically, the ecosystem management policy that emerged from this struggle started a process whereby the agency’s field managers began to regain a measure of their former management discretion, but in a different form.  Ecoregional planning was defined by immense landscapes, entire mountain ranges, the great river systems, the habitat requirements of wide-ranging vertebrate species—and by the federal courts’ tightly-articulated interpretation of what was required of federal agencies to comply with the Endangered Species Act.  Adaptive management demanded near-continuous experimentation, monitoring, evaluation, adjustment, and more experimentation.  This resulted in equally continuous plan revisions and adjustments, rather than a wholesale reconsideration of a national forest plan every 10-15 years as originally envisioned in NFMA.

Because these large landscapes invariably encompassed a mosaic of federal, state, tribal, and private lands and an enormous diversity of stakeholders, new collaborative planning models gradually emerged (Cortner et al. 1998, Cortner and Moote 1999), built upon a foundation of shared values, common goals, mutual respect—and a commitment to keep moving forward in order to address the ever-increasing array of conservation challenges on these landscapes.  Large landscape conservation and ecoregional planning, by their sheer scale and complexity, do not lend themselves to central planning or micromanagement.  They tend to steadily push decision making toward the local level (Kennedy and Quigley 1998).  Even within the strictures of the reform statutes of the 1970s and subsequent case law, agency decision makers now have broader de facto administrative discretion in federal land management than at any time in the past half-century.

 

References

Ackerman, S., 1990. Observations on the transformation of the Forest Service: The effects of the National Environmental Policy Act on US Forest Service decision making. Envtl. L., 20, p.703.

Cortner, H. and Moote, M.A., 1999. The politics of ecosystem management. Island Press.

Cortner, H.J., Wallace, M.G., Burke, S. and Moote, M.A., 1998. Institutions matter: the need to address the institutional challenges of ecosystem management. Landscape and urban planning, 40(1), pp.159-166.

Culhane, P.J., 2013. Public lands politics: Interest group influence on the Forest Service and the Bureau of Land Management. Routledge.

Hirt, P.W., 1996. A conspiracy of optimism: Management of the national forests since World War Two. U of Nebraska Press.

Kennedy, J.J. and Quigley, T.M., 1998. Evolution of USDA Forest Service organizational culture and adaptation issues in embracing an ecosystem management paradigm. Landscape and Urban Planning, 40(1), pp.113-122.

Steen, H.K., 1977. The US Forest Service: A History. Durham, NC: Forest History Society.

Steen, H.K., 1991. The beginning of the National Forest System. US Department of Agriculture, Forest Service.

Public Lands Litigation Summary – Late July/Early August, 2022

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In the only case where the Forest Service is a party …

On August 10, a federal district court approved an agreement between the U.S. Forest Service and two environmental groups that filed a lawsuit to stop the 50-mile Crow Creek Pipeline Project that partially crosses the Caribou-Targhee National Forest.  The Forest Service agreed to first conduct additional environmental studies.  Here is plaintiffs’ take:  “the government canceled the project without even waiting for a final court order.”

Other cases of possible interest …

Court decision in Fallon Paiute-Shoshone Tribe v. U. S. Department of the Interior (9th Cir.)

On July 25, the 9th Circuit Court of Appeals refused to bar construction of a Nevada geothermal plant that opponents say threatens to destroy a sacred site and drive the rare Dixie Valley toad to extinction. However, following the emergency listing of the toad under ESA, the developer has agreed to delay construction while consultation occurs between the BLM and Fish and Wildlife Service.  The district court case was discussed here, and remains pending.

New case: WildEarth Guardians v. Colorado Department of Public Health and Environment 

On July 26, WildEarth Guardians, Center for Biological Diversity, Sierra Club, High Country Conservation Advocates, and Wilderness Workshop sued in a state court to compel Colorado state agencies to comply with their mandatory duty to timely grant or deny the air pollution operating permit application submitted for the West Elk Coal Mine located on the Gunnison National Forest, as required by the Colorado Air Pollution Prevention and Control Act.  Under this state law, major polluters are required to obtain and comply with air pollution operating permits.  The state was required to either approve or deny a permit for the mine by September 2021.  The press release includes a link to the complaint.  We last discussed the West Elk Mine here.

  • Mt. Rushmore fireworks

On July 27, the 8th Circuit Court of Appeals dismissed an appeal by the Governor of South Dakota and 16 other intervenor states of the decision by the National Park Service to deny a permit for fireworks at Mt. Rushmore National Park in 2021 (which was upheld by the district court).  The case was now considered moot, but the court also upheld the requirement to obtain a permit, stating, “Nobody has a right to shoot off fireworks on someone else’s land.”  There is a link to the opinion in this entertaining take by the Dakota Free Press.  The original case was summarized here.

Court decision in Cascadia Wildlands v. Scott Timber Co. (D. Oregon).

On July 29, the district court enjoined three timber companies from logging on the Benson Ridge Tract, a private parcel of land (that used to be part of the Elliott State Forest) in the Coastal Range of Oregon, because the logging project would “take” marbled murrelets, a threatened species, in violation of section 9 of the ESA.  The court specifically upheld the determination that the site is occupied by marbled murrelets and that a 49-acre clearcut would result in harm.

Settlement agreement in Western Watersheds Project v. Feldhausen (D. Ariz.)

On August 1, The Bureau of Land Management and Fish and Wildlife Service agreed to reevaluate the impacts of the resource management plan’s livestock grazing decisions on plants and animals inside Arizona’s San Pedro Riparian National Conservation Area.  This will include preparing a biological assessment and biological opinion analyzing the impacts of the RMP proposal for additional grazing on the Huachuca water umbel, southwestern willow flycatcher, desert pupfish, Gila topminnow, northern Mexican gartersnake, yellow-billed cuckoo and Arizona eryngo.  The article has a link to the settlement agreement.  The complaint was summarized here.

Court decision in Western Organization of Resource Councils v. U. S. Bureau of Land Management (D. Mont.)

On August 3, the district court ordered the BLM to consider a no-leasing alternative and to disclose to the public the environmental and human health harms from the combustion of federal coal for the Miles City (MT) and Buffalo (WY) resource management plans in the Powder River Basin.  The news release contains a link to the opinion.

  • Gray wolves
(Photo by Matt Moyer/Getty Images)

New case:  Center for Biological Diversity v. USDI (D. Mont.)

On August 9, the CBD along with the Sierra Club, the Humane Society of the United States and the Humane Society Legislative Fund challenged the U.S. Fish and Wildlife Service’s failure to make a mandatory 1-year finding on whether the gray wolf warrants (re)designation as “threatened” or “endangered” under the ESA.  They claim laws passed by Idaho and Montana this past year have allowed for new and aggressive wolf-killing measures that are putting too much pressure on the species that was delisted in Idaho, Montana and Wyoming in 2011 and 2012.  The article has a link to the complaint.  (I like the expression on the woman’s face.)

New case:  Center for Biological Diversity v. Washington Department of Fish and Wildlife (Washington state court)

Also, on August 5, five conservation groups filed a lawsuit asking a Washington State court to enforce a governor’s order to enact wolf management rules.

On August 8, a federal district court in Seattle held that NOAA Fisheries had authorized Southeast Alaska’s chinook troll fishery at levels that the federal agency admits are pushing federally protected southern resident killer whales and wild chinook salmon closer to extinction.  The Court found that NOAA violated the ESA by improperly relying on uncertain mitigation measures in the form of hatchery production that “lack specific and binding plans, lack specific deadlines or otherwise-enforceable obligations, and are not subject to agency control or otherwise reasonably certain to occur.” The Court further found NOAA violated the ESA by relying on the supposed benefits to SRKWs from increasing hatchery production, without fully evaluating the harm those same hatchery increases will cause to native Chinook salmon populations in Puget Sound, the Columbia River, the Snake River, and the Willamette River. NOAA recognizes hatcheries and associated impacts as one of the top four factors contributing to the decline of wild salmon, along with overharvest, habitat loss, and hydroelectric dams.  Reduced reliance on hatcheries could lead to greater emphasis on habitat conditions, including waters on public lands.

Settlement agreement in Center for Biological Diversity v. U. S. Bureau of Land Management (C.D. Cal.)

On August 12, a legal agreement was reached to secure the permanent closure and restoration of 11 long-dormant oil wells along the Santa Barbara-San Luis Obispo County line inside the Carrizo Plain National Monument.   A proposed new permit for additional operations will not be granted by the BLM.  The news release has a link to the agreement.

 

The Latest on the Wyoming Corner Crossing Federal Lands Access Case

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Article in Wyofile by Angus Thuermer. Lots of legal stuff.

Aside from the routine practice of not commenting on pending or ongoing investigations, U.S. Attorney Nick Vassallo’s office couldn’t immediately explain the investigative process and what or whose allegations it probes. Eshelman’s attorney, along with the BLM, also did not respond to inquiries.

1885 law

In a July 29 filing, attorney Semerad defended his clients against Eshelman’s civil claim.

“Plaintiff [Iron Bar Holdings] is now violating and has, at all times relevant to its claims in the Complaint, violated existing federal law … by unlawfully enclosing public lands and/or by using force, threats, intimidation, and other unlawful means to prevent or obstruct Defendants, as members of the public, from peaceably entering upon, freely passing over or through, or freely traveling over or through the public lands,” the document reads.

With the UIA, Congress protected legal access to federal property, especially in the West, by restricting landowners’ actions and structures. How and whether the UIA applies in the civil case could have a bearing on public access to some 8.3 million acres in the West, 2.4 million acres in Wyoming alone.

A photograph purporting to show the corner in question. (GoFundMe)

That’s the amount of acreage considered by the digital mapping company onX to be “corner-locked” by any definition that corner crossing is illegal.

 

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Obstructing transit

A section of the 1885 UIA titled “Obstruction of settlement on or transit over public lands” prohibits landowners from blocking “…any person from peaceably entering upon or establishing a settlement or residence on any tract of public land…” No person “shall prevent or obstruct free passage or transit over or through the public lands,” the UIA states.

But another clause appears to protect landowners, stating that the law “shall not be held to affect the right or title of persons, who have gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith.”

The federal law has teeth, if prosecutors choose to use them. Any “owner, part owner, or agent, or who shall aid, abet, counsel, advise, or assist in any violation” of the act who is found guilty can be fined up to $1,000, imprisoned for a year, or both.

From the BLM’s perspective, the UIA does not protect corner crossing as a means to access public land.

“There is no specific state or federal laws regarding corner crossings,” the agency states in a pamphlet that appears to have been updated in 2013. “Corner crossings in the checkerboard land pattern area or elsewhere are not considered legal public access.”

Courts could decide whether the BLM policy and the UIA are in conflict.

How Surprising is That Really?: “To Fight Wildfire, California Gets a Surprising Solution: a New Sawmill”

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A new sawmill under construction near Lake Tahoe is offering hope to state officials and some environmental advocates. Its first job will be to process wood from trees killed in the massive Caldor Fire in 2021, before moving onto smaller trees. Photographer: Patrick Mouzawak/Bloomberg

A Bloomberg article today talks about a new sawmill under construction near Lake Tahoe. Some of us may have a “back to the future” vibe about this. Others may wonder about whether communities without the substantial resources and economic/political clout.. think casinos, resorts, Billionaire’s Row, ski areas and so on, might also be assisted by having a sawmill in the community. Lake Tahoe is the place with its own CE, after all.

Under our legislation, active forest management of up to 10,000 acres at Tahoe now qualifies for a categorical exclusion from NEPA. Forest Service Region 5 Manager Randy Moore told me that this takes their environmental assessment from more than 800 pages to less than 40 pages, and Tahoe Basin Supervisor Jeff Marsolais reports that their first project under this new authority took just four months to permit.

Perhaps other philanthropic organizations could support traditional underserved rural communities? The U.S. Endowment for Forestry and Communities is doing that in John Day, Oregon, but perhaps the larger philanthropic foundations?

Check out the Tahoe Fund’s website it looks like they have an enormous variety of projects, trails, sugar pine restoration, scholarships for forestry education (could forestry be cool again?), including a grant to a biomass plant:

The Tahoe Fund has made Forest Health our top priority, with a focus on increasing the pace and scale of forest restoration in the Tahoe Basin. A major issue our public land managers face is the lack of places to offload woody biomass. There is currently nowhere feasible to take the excess biomass, resulting in hundreds of thousands of burn piles sitting in the Basin.

The Tahoe Fund has been working with Sierra Valley Enterprises, the new owners of a biomass facility in Loyalton that was shut down in January of 2020, to help get it back up and running. To help facilitate the financing required to re-open this facility, the Tahoe Fund hired TSS Consultants to develop a Resource Study of available forest biomass and log supply within the economic transport distance of the Loyalton site.

Anyway, here are some excerpts from the story. I think you can read Bloomberg News for free if you register.

The Tahoe Fund helped convene the sawmill project leaders, which include Shinn and Kevin Leary, the CEO of a Reno-based private investment firm, Hallador Investment Advisors. In 2021, it commissioned a study that examined how much supply would be available for a sawmill operation in the region. It cited recent funding and planning by the state of California and the US Forest Service to increase fuel reduction treatments such as thinning as well as prescribed fire. That support should help keep the supply of logs for the sawmill flowing, with the oversight of environmental regulators, said Berry of the Tahoe Fund.

“Everyone has a role to play here,” she said.

The Carson City mill will be built on land owned by the Washoe Tribe of Nevada and California. Wendy Loomis, the executive director of the tribe’s business arm, said the project will aim to hire tribal members for jobs that will be available in the sawmill.

“When we look for projects, our first priority is to support the Tribe’s vision and mission statement to help Mother Earth,” Loomis said. “Number two is to create workforce development. So this accomplishes both of those things.”

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Several environmental groups and restoration experts offered cautious support for the types of thinning projects that the new sawmill is supposed to help. A spokesperson for the Nature Conservancy, the largest environmental nonprofit in the US, said that while it did not specifically endorse the Carson City project, “we can envision a future where a small-diameter sawmill, properly sited and sized, could help scale forest restoration efforts.” The Sierra Nevada Alliance, an environmental nonprofit based in the Tahoe area, similarly advocates for healthy forest restoration.

relates to To Fight Wildfire, California Gets a Surprising Solution: a New Sawmill
The plans for the Tahoe Forest Products sawmill in Carson City.
Photographer: Patrick Mouzawak/Bloomberg

Last year’s Caldor fire provided some evidence that thinning and prescribed fire — which was developed and practiced by Indigenous people for millennia — are beneficial for forests. In areas that had been treated, flames dropped down enough to leave patches of forest still green and alive, officials said at the time.

Not everyone is in favor of the Carson City plan. Some residents have registered concerns with elected officials about noise impacts related to the mill. And there are some scientists and activists who oppose all forms of logging, arguing that forest thinning is a smokescreen for the economic interests of timber companies. A lawsuit impacting a restoration-focused logging plan in Yosemite National Park reflects that ongoing tension.

Battles, the Berkeley scientist, said those voices are in the scientific minority. And the Carson City sawmill isn’t the only project of its kind. Further north, in Quincy, California, another sawmill is being built to tackle the acres of dead trees killed by last year’s Dixie fire.

“We need to do more forest management, whatever it is,” he said. “But we need the capacity for it, and one way to get that is to sell the wood and make sawmills that can handle it.”

For groups that “oppose all forms of logging, arguing that forest thinning is a smokescreen for the economic interests of timber companies”.  But what about all the timber industry-free places like Lake Tahoe or many other places that have the (identical bolded above) problem? Thinned trees in piles?

I’d really like to have that discussion with someone who represents that point of view, perhaps a TSW reader? Otherwise it sounds like a “bad industry, we can’t work with them” thing. And I think this “bad industry” attitude can actually work against environmental goals, be it decarbonization, keeping green forests on the landscape, helping fire suppression folks do their job, and so on.  There are plenty of ENGOs without that attitude, so I wonder what underlies it.  In fact, I was kind of surprised by the relatively lukewarm TNC quote.

In this case, it would have been helpful if the reporter had pushed back.  Should they (public and private) not thin? What else should they do with the piles?

Carbon Dioxide Emissions from Wildfire For Parts of the Western US: Who Has the Best Numbers?

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TSW Readers: I seem to remember a discussion here or on Climate Twitter or somewhere that the CARB numbers were wrong. I think it was in a discussion of R-5 using those numbers in a powerpoint..  Does anyone remember whether there are better numbers on wildfire emissions in various states/years?

Thanks!  The below is from a Bloomsberg Law article.

California’s 2020 Wildfire Emissions Akin to 24 Million Cars

Jan. 5, 2021, 11:03 AM

California’s 2020 wildfire season thwarted the state’s fight against climate change, spewing enough carbon dioxide into the air to equal the emissions of millions of passenger vehicles driving over the course of a year.

Those roughly 9,600 fires burned nearly 4.2 million acres, killed 31 people, and emitted an estimated 112 million metric tons of carbon dioxide, according to a California Air Resources Board report released Dec. 31. The number is akin to the greenhouse gas emissions of 24.2 million passenger cars driving in a single year, according to a calculator from the U.S. Environmental Protection Agency.

And the emissions figure is expected to increase as the California Department of Forestry and Fire Protection calculates final wildfire acreage from the end of the year. An update should be released in March or April, said Dave Edwards, assistant division chief in the Air Board’s air quality, planning, and science division.

Increasing fire intensity and the health dangers of the accompanying smoke is California’s new reality and needs to be faced now, advocates and politicians say.

“We’re always going to have fire in California and, with climate change, we’re going to have more,” said Bill Magavern, policy director for Coalition for Clean Air. “We shouldn’t treat it like this is something that’s going to happen once in a while.”

Eagles and Wind Turbines: A Roundup of Recent News Stories and Some More General Reflections

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Wildlife biologist Mike Lockhart admires a golden eagle after trapping, sampling and fitting the raptor with a GPS device in June 2022. (Dustin Bleizeffer/WyoFile)

For years we have been told that oil and gas drilling on federal lands is bad because:

1*Federal land is abused for the profits of a few. (corporate profits)

2* Pristine landscapes are industrialized

3* Placement of infrastructure interferes with recreation

4* Bad for wildlife,

5* Roads bad for water quality, also increase human activity

6* Other environmental concerns

7*Methane leakage, chemicals onsite, and finally

8*Usage of oil and gas (not considering substitution from elsewhere)

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If you’ve ever been to a wind installation (whose footprint is much greater and, with proposed solar, is going to be gigantic), you’ll know where I’m going with this.

Some will argue that sacrificing concerns 1-6 are necessary for a low-carbon future.  On the other hand, through time, there will be other choices (including in the new IRA) for low-carbon energy such as the nuclear plant being developed in Kemmerer, Wyoming that will use former coal plant workers and existing powerlines.

Anyway, I’m bringing your attention to three stories about this, two current stories one from Wyofile, one from the AP and one from 2019 from the Hill.

The Wyofile story is an interview with a retired USFWS wildlife biologist now doing resarch for USGS and Conservation Science Global.

 The expansion, which energy experts believe may even accelerate further under the Inflation Reduction Act, could pose a serious threat to eagles and other wildlife in certain areas without field-data-driven information to guide avoidance and mitigation strategies, according to Lockhart. …..

This is probably one of the best places, that I know of anyway, for golden eagles in North America,” Lockhart said. “I am a big wind energy advocate and definitely a green energy supporter. But we can’t devastate one really critically important resource for another.”

Maestro has yet to file an official permitting request with the BLM and other permitting authorities. The company didn’t respond to WyoFile inquiries. To move forward, the BLM, which manages more than 80% of the project area, must conduct a full National Environmental Policy Act analysis with public comment.

The Maestro project isn’t the only wind proposal that worries Lockhart.

“I’m equally concerned about the ones that might impact breeding birds and kind of fill in those gaps between the existing wind [energy facilities],” he said.

Another field scientist concerned about modeling over field data (see, it’s not just me).

But Lockhart worries that the vital data from field research is emerging slower than encroaching wind turbines in southern and south-central Wyoming. Federal wildlife managers that can determine where and how wind energy facilities are configured to avoid threatening eagle populations are relying too much on modeling to fill in gaps between actual data, he claims.

“The data is just inadequate for making these [permitting] decisions,” Lockhart said…

Then there are cumulative impacts:

Of particular concern, he said, are proposed wind energy projects that will essentially fill in yet-to-be industrialized areas, such as the Maestro wind energy project in the Shirley Basin. Carlsbad, California-based Maestro Wind LLC proposes to construct up to 327 wind turbines spanning nearly 99,000 acres that straddle Highway 77 here. The project area essentially encompasses the heart of the Shirley Basin’s eagle habitat, according to Lockhart.

Wind energy developers, in the pre-construction federal and state permitting process, typically borrow from existing data on local nesting sites and eagle populations and hire consultants to conduct new surveys in the field. But that information isn’t typically compiled in a way that allows for a comprehensive count or region-wide database that could be used to analyze potential cumulative impacts.

Although the Wyoming Game and Fish Department reviews and comments on wind energy proposals in federal permitting, it doesn’t conduct comprehensive eagle field surveys and mostly defers to federal wildlife authorities, according to Public Information Officer Sara DiRienzo.

“There is a growing concern especially with raptors, such as the golden eagle or the ferruginous hawk, that there may be population impacts, especially when you look at locations that have multiple wind farms,” DiRienzo said. “Understanding the cumulative effects is still ongoing and not conclusive at this time.”

In the mid 90’s there were many Biodiversity workshops, and so I spent much time listening to presentations about endangered birds of various kinds (think owls and murrelets). I had to wonder whether populations go down partially because wildife biologists conduct activities that look like harassment, calling, baiting, trapping and so on.  Maybe there are studies on this.

The AP (Matthew Brown) has a lengthy story about eagles and windfarms. I found it in the Colorado Sun. Hopefully it’s not paywalled or is available elsewhere.

The rush to build wind farms to combat climate change is colliding with preservation of one of the U.S. West’s most spectacular predators — the golden eagle — as the species teeters on the edge of decline…

Federal officials won’t divulge how many eagles are reported killed by wind farms, saying it’s sensitive law enforcement information. The recent criminal prosecution of a subsidiary of NextEra Energy, one of the largest U.S. renewable energy providers, offered a glimpse into the problem’s scope.

The company pleaded guilty to three counts of violating the Migratory Bird Treaty Act and was ordered to pay more than $8 million in fines and restitution after killing at least 150 eagles — including more than 100 goldens at wind farms in Wyoming, California, New Mexico, North Dakota, Colorado, Michigan, Arizona and Illinois.

Government officials said the mortality was likely higher because some turbines killed multiple eagles and carcasses are not always found.

Prosecutors said the company’s failure to take steps to protect eagles or to obtain permits to kill the birds gave it an advantage over competitors that did take such steps — even as NextEra and affiliates received hundreds of millions of dollars in federal tax credits for wind power.

The company remained defiant after the plea deal: NextEra President Rebecca Kujawa said bird collisions with turbines were unavoidable accidents that should not be criminalized.

Utilities Duke Energy and PacifiCorp previously pleaded guilty to similar charges in Wyoming. North Carolina-based Duke Energy was sentenced in 2013 to $1 million in fines and restitution and five years probation following deaths of 14 golden eagles and 149 other birds at two of the company’s wind projects.

A year later, Oregon-based PacifiCorp received $2.5 million in fines and five years probation after 38 golden eagle carcasses and 336 other protected birds were discovered at two of its sites.

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We don’t have to go too far back in time, though,  to get a different take. From a news piece on The Hill.

Shawn Smallwood, a California ornithologist, told PolitiFact that about 100 eagles die each year due to impacts with wind turbines…

In truth, wind turbine collisions comprise a fraction of human-caused eagle losses,” Obama-era U.S. Fish and Wildlife Service Director Dan Ashe wrote in 2016. “Most result from intentional and accidental poisoning and purposeful shooting. The majority of non-intentional loss occurs when eagles collide with cars or ingest lead shot or bullet fragments in remains and gut piles left by hunters. Others collide with or are electrocuted on power lines.”

I think Ashe’s argument is interesting.  If x, y and z contribute to decline of a species, when do we try to shut down x, y, and z, and when do we determine that if the majority of the loss is due to x and y, we aren’t concerned about z.  Is the way we think about this inconsistent?

Finally, these articles are about collisions.  Noise may also interfere with a variety of bird activities. For example, the highly political dramatized sage grouse..from a BLM document:

Recent research has demonstrated that noise from natural gas development negatively impacts sagegrouse abundance, stress levels and behaviors (Blickley et al. 2012; Blickley & Patricelli 2012; Blickley et al. In review). Other types of anthropogenic noise sources (e.g. infrastructure from oil, geothermal, mining and wind development, off-road vehicles, highways and urbanization) are similar to gas-development noise and thus the response by sage-grouse is likely to be similar. These resultssuggest that effective management of the natural soundscape is critical to the conservation and protection of sage-grouse.