Inventory of Environmental Permitting Tools

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The Forest Service and BLM are part of  “permitting world,” so while this is a little NEPA-nerdy for TSWites…

I ran across this application inventory from the Federation of American Scientists , their idea being to:

“survey permitting tools for interested users, open up lines of dialogue for cross-application learning, and highlight where we see needs for further permitting tech investment. ”

It’s pretty interesting to look at the federal lineup of apps.. I didn’t know that EPA has all EISs since 2012 online (of course, I retired in 2012); also CEQ has a comprehensive list of all CEs. Hopefully the descriptions of FS and BLM apps are accurate.

The world is obsessed with forests’ climate benefits. Here’s the problem.

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Interesting essay in Grist. Not directly applicable to national forests, but there are some insights here to consider when pondering call for setting aside national forest lands as “climate forests.”

The world is obsessed with forests’ climate benefits. Here’s the problem.
People depend on forests for food and income. Offset projects can kick them out.

“The conversation about how to manage forests “has been overtaken by the climate discussion,” said Daniela Kleinschmit, an author of the report and the vice president of the International Union of Forest Research Organizations, the network behind the research. The result? Indigenous peoples are getting pushed out of their lands because of carbon offset projects. Native grasslands are getting turned into forests, even though grasslands themselves are huge, overlooked reservoirs of carbon. And offset projects in forests, more often than not, fail to achieve all of the emissions benefits their backers had promised.”

 

Litigation Settlement in Montana and Social Justice Concerns

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While this is normally Jon’s bailiwick, this settlement is of particular interest. Here’s the article from the Daily Montanan, without a paywall.

This story describes a settlement of litigation on a project in Montana.  It would appear to an outsider, and by Garrity’s own claims as reported (I bolded below), that their organization’s views had an outsized role in determining on-the-ground specifics of projects.  Once again, the way it works is that DOJ gets credit for settling..the Forest Service gets credit for doing things, so it appears that different federal agencies have different goals.  For folks relatively new to TSW,  I wrote a post  in 2011 on Chief Jack Ward Thomas’s  experience at being overruled by DOJ:

The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.

Now I don’t have any insider information about this particular settlement, so perhaps this was not the case with this one.  From the news article:

Under the agreement, accepted by federal district court Judge Dana Christensen, the United States Forest Service can still move forward with aspects of the massive plan, including the Crouching Trout Timber sale, which authorizes nearly 25 miles of temporary or current road construction. The Crouching Trout timber portion covers approximately 1,600 acres.

Originally the project touched three Montana counties — Lewis and Clark, Meagher and Broadwater counties — and called for more than 53,000 acres of tree cutting and burning, 6,669 acres of commercial burning, and 45,934 acres of burning, plus more than 100 miles of road building. The groups had argued in federal court that the project was illegal and could disrupt critical habitat for several species.

The project was originally slated as a 20-year project in the Helena-Lewis and Clark National Forest and the Big Belt Mountain Range.

As part of the agreement, the Forest Service can continue with the “associated activities” in the Crouching Trout Timber sale. The service also agrees to limit prescribed burning to the “inventoried wilderness areas” of no more than 25% of any area.

The U.S. Forest Service also agreed to produce annual summaries of the prescribed burning in the Middleman Project, “including units where burning has occurred and the acres burned.”

The U.S. Forest Service also agreed to a $39,000 lump sum payment to settle claims of attorneys’ fees.

Previously, the conservation groups had argued that the central Montana land was a key part of grizzly bears’ habitat and made it easier for “genetic exchange” between the populations of Yellowstone and Glacier National Park areas.

“We are thrilled that the Forest Service agreed to settle this case,” said Mike Garrity, executive director for the Alliance of the Wild Rockies. “We stopped over 100 miles of road construction and reconstruction in the forest, and we stopped over 5,000 acres of commercial logging in lynx and grizzly habitat.”

I’ve looked at the Board of Alliance for the Wild Rockies and they seem like nice people.  There appear to be two Montanans, a Utahn, and an Idahoan.  It’s not clear to me who funded the lawsuit.

Here’s a link to their 990. It looks like the source of their funding is restricted, but maybe I’m reading it wrong.

My point is not that folks shouldn’t have views. It’s not even that rich people shouldn’t fund whatever they want, through the processes like 501c3s and c4s, that we have in this country.

My point is about justice.  Some people’s views count much more than others, apparently. Possibly people (funders) who have never set foot in Montana.  They are not political folks who have some accountability to the broader (Montana) public via elections.  We can’t even examine their diversity in the terms we usually use.

As far as we know, they (nor the DOJ) folks haven’t read nor considered public comments on the project.

I haven’t mapped the project itself, but certainly parts of  Lewis and Clark County are identified as disadvantaged in the CEQ Climate and Economic Justice screening tool.  So I guess there is an environmental justice perspective as well.  We need to listen to the voices of those communities, and that’s a major push for this Administration.. but they were not in on the settlement discussion. Maybe this is another case in which agencies are not aligned.

Interestingly, AWR has a page about its supporters.  Senator Sheldon Whitehouse from Montana, Reps Raul Grijalva from Arizona, Carolyn Maloney from New York, Jimmy Carter, Carole King (Montanan), and Gloria Estefan.

Now, I’ve heard the argument that they are federal lands, and so anyone across the country should have an equal vote on what happens.. as one EPA senior executive said to me “an apartment dweller in New York should have an equal voice to a resident of Delta” (we were in Delta, discussing a project on the GM).

I call that the “property rights” argument.  But this is not that.

Funders we don’t know, from where we don’t know, whom no one elected, are effectively setting policy for a piece of the country, with those policies having an outsized influence on local residents.  Their intentions are noble. I agree. But noble intentions combined with political power don’t always work out so well for ordinary people, as some of us older folks recall from 20th century history.

 

Forest Bridges: Working Toward Agreement on O&C Lands

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I’m always interested in people seeking agreement about forest issues, and Oregon seems to be a long-time source of ongoing controversy.  Thanks to Nick Smith for this one.

There was an interview on Jefferson Public Radio, but I couldn’t find it.  Here’s the description.

The so-called “O&C lands” of Western Oregon have long been a focus of contention. They are lands once given by the federal government to the Oregon & California Railroad (O&C), taken back by the feds, then managed under law by the federal Bureau of Land Management.

The bone of contention comes from the sharing of timber receipts from those lands with the 18 O&C counties, which puts pressure on those lands to produce timber.

The nonprofit Forest Bridges proposes bringing the multiple sides of the debate together, to agree on timber cutting methods, and–more importantly–which land to include in the timber base. Forest Bridges Executive Director Denise Barrett gives us an interview with an overview.

Forest Bridges has a good website with lots of info. Their Principles of Agreement are here.

Below is a snapshot of their principles of agreement. Feel free to discuss anything on the website in the comments.

Traveling Critters: Toads, Suckers and Cougars, from the Utah Wildlife Migration Initiative

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From the Utah Wildlife Migration Initiative:

1000 Mile Journey of Cougar F-66

She completed 1,000 miles in less than 165 days, averaging 6 miles per day — with some days exceeding more than 20 miles of travel! Once up and over the Rocky Mountains, she continued her journey east, crossing 75% of the state of Colorado before her death on Nov. 13, 2022. In conjunction with Colorado Parks and Wildlife, a biologist and wildlife veterinarian determined she had been killed by another cougar.

“Around 220 miles into her journey, on July 4, 2022, F66 sat on the banks of the Flaming Gorge Reservoir in Wyoming. At that point, F66 could either turn around and return north, or plunge into the cold water and move forward.

Hinton said F66 made the shocking decision to swim at least a quarter of a mile to reach the other side of the reservoir. From there, she continued her journey south.”

Video of Boreal Toad Journey

Tracked toad went five miles across rocks and desert.

Razorback Sucker Migration Animation: hatchery sucker’s nearly 1000 mile journey over dams and through reservoirs.

USFS Climate Action Tracker and Old Growth Report

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A link in Nick Smith’s email today goes to a press release about the USFS’s Climate Action Tracker, which I have not yet explored. The release also mentions “A revised Mature and Old growth Definition and Inventory revised report released today has new charts that include lands managed by both the Department of the Interior’s Bureau of Land Management and the Forest Service.”

From the exec summary:

Based on the working definitions used in this initial inventory, Forest Service and BLM lands collectively contain 33.1 +/- 0.4 million acres1 of old-growth and 80.8 +/- 0.5 million acres of mature forest. Old-growth forest represents 19 percent and mature forest another 45 percent of all forested land managed by the two agencies. This initial national-scale inventory was conducted by applying the old-growth and mature working definitions to Forest Inventory and Analysis (FIA) field plot data.

Like all of the Nation’s forests, old-growth and mature forests are threatened by climate change and associated stressors. The initial inventory and definitions for old-growth and mature forests are part of an overarching climate-informed strategy to enhance carbon sequestration and address climate-related impacts to forests, including insects, disease, wildfire risk, and drought. Initial inventory results will be used to analyze threats to these forests, which will allow consideration of appropriate climate-informed forest management, which is also required by E.O. 14072.

New Flathead National Forest Supervisor interview

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Anthony Botello took the job as forest supervisor on the Flathead at the beginning of the year, and provided this extended interview to the Missoulian.  This may be paywalled, but I’ve pulled out a few quotes related to things I tend to talk about.

Staffing of NEPA specialists is especially hard:

We have staffing challenges all across our workforce, but the one that pops to mind right now — because much of what we do revolves around very smart people who lead our ID (interdisciplinary) teams through our NEPA (National Environmental Policy Act) process, and those are folks that are in high demand and we have very limited numbers of them that are interested in our jobs.

For example, we have three interdisciplinary teams on this forest that do the work all across the forest, and we plan projects that then we go and implement. It could be timber, it could be fuels reduction, recreation. And we need team leaders — we call them environmental coordinators or team leaders — to lead those teams to get us through that legal NEPA process. And we’re struggling, not just this forest but the forest I came from was struggling.

Condition-based NEPA:

Some projects have a very focused purpose and need, they’re very focused in what we’re wanting to do, and so we have more of the traditional, our specialists go out there and monitor and look at conditions and then use that for our analysis to determine.

And then we have some places where we want to look at bigger landscapes, we want to look at more adaptive management, so we pull into this idea of, let’s make conceptual decisions and then when we go to implement we’ll do more of the site-specific look at things.

A new forest plan is a good thing:

We’ve got really good strong language in our forest plan. The forest plan that we have here is a relatively new plan. In my career I’ve worked on forests with 20-, 30-year-old forest plans. The Payette had a relatively new plan when I was there, the Wallowa-Whitman had a pretty old plan.

And this one, thankfully, has been redone as of ’18. In that, we worked very closely with some of our U.S. Fish and Wildlife Service, Montana Fish, Wildlife & Parks partners to come up with the standards that are in there.

And our forest plan — through public involvement, through NEPA, through line officer decision — withstood all of those thresholds, which was good. And we’re implementing the forest plan. The forest plan does have some pretty good, strong, prescriptive language about all those things — about roads, about (recreation) sites, about grizzly habitat — it’s a very contemporary plan when it comes to that.

Litigation and policy decisions:

The role of a line officer is not to interpret any kind of court ruling, decision, etc. We wait for our agency to promulgate a rule or a regulation.

(Follow-up question)

Just to make sure I understand: In a situation where the forest plan or a project loses in court in a certain issue, any sort of reaction to that is not going to come from you as the forest supervisor, it’s going to come from higher-up in the agency with either a new rule or amendment to a plan? And then when that comes down, you simply keep following the plan or the rule? 

Kind of, yeah. Litigation, obviously, can affect the way we manage. But there’s a whole bunch of steps between that and changing our forest plan. We have a legal staff that advises us on that, and until that happens we’re managing the way our forest plan has guided us to manage.

There’s a whole bunch of steps that would happen between some theoretical court case and us changing our management, and we’ll do that when it goes through the process that it needs to go through before it changes something that we’ve already adopted.

Federal Lands Litigation – update through May 1, 2024

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FOREST SERVICE

New (to me) lawsuit

Last fall, Safe Alternatives for our Forest Environment, Conservation Congress and Klamath Forest Alliance sued the Shasta Trinity National Forest for its decision to approve the McFarland Project using a categorical exclusion for “wildlife habitat improvement.”  According to plaintiffs, the project would include commercial logging of over 2000 acres, most of which is in a late successional reserve that supports “one of the few successful breeding pairs of the northern spotted owl left in the Shasta Trinity National Forest.”

Court decision in Purgatory Recreation I, LLC v. United States (D. Colorado)

The substantive issue in this case is whether the Purgatory ski resort retained a right to an easement to divert and carry water across national forest land when it conveyed that land to the Forest Service as part of a land exchange.  In a quiet title action, the Forest Service objected on the basis that the diversion could detrimentally impact the native cutthroat trout population.  On April 15, the court held that, since the land exchange was completed in 1991, and Purgatory should have been aware at that time that there would be no easement, the 12-year statute of limitations for proceeding under the Quiet Title Act had not been met.  This doesn’t foreclose Purgatory using other means to access its water right.  Here is the court opinion.

Settlement

The parties have settled a case filed in September by Native Ecosystems Council and Alliance for the Wild Rockies against the Middleman Project on the Helena-Lewis and Clark National Forest.  The Forest can implement parts of the project that include 4.1 miles of temporary road construction and about 21 miles of road reconstruction, but will forego commercial timber harvest not already under contract.  The settlement also limits prescribed burning.

According to plaintiffs, “The settlement stops over 110 miles of road construction/reconstruction and over 5,000 acres of commercial logging in lynx and grizzly habitat.”  Michael Garrity is also reported to have said that while he appreciated the Forest Service settling the case, he wished they would have listened to the plaintiffs’ concerns when they commented on the project instead of forcing the issue to court.

New lawsuit:  Defenders of Wildlife v. U. S. Forest Service (D. North Carolina)

On April 18, Defenders of Wildlife, MountainTrue, Sierra Club and Center for Biological Diversity filed a lawsuit against the revised forest plan for the Nantahala-Pisgah National Forest.  The complaint alleges multiple violations of the Endangered Species Act with regard to the effects of the plan on four endangered bat species: the northern long-eared bat, the Indiana bat, the Virginia big-eared bat, and the gray bat.  Plaintiffs claim that the Forest provided misleading information to the Fish and Wildlife Service, and the FWS failed to consider the best available scientific information and drew arbitrary conclusions in its biological opinion, which plaintiffs seek to vacate.  A link to the complaint is provided.

Court decision in Rocky Mountain Wild v. Dallas (10th Circuit)

On April 19, the circuit court reversed the district court and upheld the 2019 Forest Service ROD and 2018 FWS Biological Opinion under ANILCA, NEPA, and the ESA, affirming the USFS’s grant of a right-of-way across Rio Grande National Forest land so that a private owner could develop a ski village on its own land.  This article reviews the long history of the case.  Plaintiffs said the developers still have other steps to complete before they can begin work, and a “concerned local citizenry will be actively engaged.”  Here is the court’s opinion.

New lawsuit:  Center for Biological Diversity v. U. S. Forest Service (D. Utah)

On April 24, the Center for Biological Diversity, Yellowstone to Uintas Connection, Alliance for the Wild Rockies and Native Ecosystems Council sued the Forest Service over the Ashley National Forest’s Aspen Restoration Project.  They allege it violates the Roadless Rule as well as NEPA.  With regard to the Roadless Rule, which requires that trees removed must be “generally small diameter,” the complaint says, “It places no limits on the size of trees to be removed, nor does it otherwise demonstrate or ensure that only generally small diameter trees would be removed. The Forest Service ignored repeated public requests that the agency explain how the project would comply with the Roadless Rule.”  Plaintiffs claim that the Forest Service did not provide details for the project necessary to determine compliance.  This press release includes a link to the complaint.

BLM

Court decision

A district court halted BLM’s practice of removing wild horses in areas where the agency has reached its planned population for the area.  The BLM had developed ten-year management plans for two areas, authorizing roundups for “maintenance,” even after achieving appropriate management levels.  The court said that new plans with public participation are necessary in this situation.  (Best play on words award, from plaintiffs:  “I’m hopeful that this decision will pull back on the BLM’s unbridled discretion to remove horses …”)

Court decision in Tohono O’odham Nation v. Department of the Interior (D. Arizona)

On April 16, the district court denied a preliminary injunction to halt construction on 50 miles of the 550-mile SunZia power transmission line from windfarms through the San Pedro River Valley (recently discussed here).  The court held that the tribes waited too long to challenge the NEPA sufficiency of the 2015 decision.  As for the National Historic Preservation Act, the court held, “BLM (1) complied with its obligation to identify historic properties, (2) considered measures to avoid adverse impacts to historic properties, and (3) consulted with Plaintiff Tribes during each phase of the PA.”  The court’s opinion is here.

“Notice of intent to sue”

An NOI is required by the Endangered Species Act, but not for other types of claims we usually see related to public lands.  The idea is to give the agency a chance to change its ways before being confronted in court.  That doesn’t seem likely with the recently released BLM Public Lands Rule – at least until after the election, but they are getting plenty of “We’ll see you in court” warnings.  From the Governor of Utah:

“The added layers of red tape and federal bureaucracy embedded in the BLM’s Public Lands Rule create new roadblocks to conservation work. The health of Utah’s lands and wildlife will suffer as a result. This rule is contrary to the bedrock principle of ‘multiple-use’ in the BLM’s governing law, the Federal Land Policy and Management Act.”

It will be interesting to see what specific legal claims they’ll make, given that the “multiple-use” requirement has always been interpreted to allow a lot of discretion, and the agency should get a lot of deference regarding what will promote “conservation.”  (The article also provides perspectives from environmental groups.)

ENDANGERED SPECIES

Notice of Intent to Sue

On April 22, the Fish and Wildlife Service received a notice written on behalf of Animal Wellness Action, the Center for a Humane Economy, Project Coyote, the Kettle Range Conservation Group, Footloose Montana, and the Gallatin Wildlife Association.  The parties object to the agency’s February 2, 2024 finding that western United States gray wolf does not warrant listing under the Endangered Species Act.  This is the third lawsuit filed against that decision (the other two are discussed here), and it is being attributed to a wolf-torturing incident in Wyoming that represented “everything that’s wrong with Wyoming’s handling of wolves.”  (Meanwhile, the U.S. House voted April 30 to end federal protection for gray wolves across the lower 48 states, but the legislation is not expected to be adopted.)

Preliminary injunction in Flathead-Lolo-Bitterroot Citizens Task Force v. State of Montana (9th Cir.)

On April 23, the circuit court affirmed the district court’s decision to limit the wolf trapping and snaring season in Montana to six weeks in January and February when grizzly bears are expected to be denning, based in part on effects of climate change shortening the denning season.  However, it also limited this restriction to areas where grizzly bears are known to live.  Grizzly bears are listed as threatened under the ESA, and they have been harmed by wolf traps.  Plaintiffs are now seeking a permanent injunction.  (The article includes a link to the opinion.)

Settlement in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On April 25, the parties agreed to a court-ordered deadline to complete overdue listing designations that the Fish and Wildlife Service had proposed for 10 species: two snapping turtles, the white-tailed ptarmigan, the Peñasco least chipmunk and six species of Texas mussels will receive federal protections by the end of the year. Three other species will also receive final designations of critical habitat, including Humboldt martens, and two mussel species will get an initial listing determination.  The Northwest’s tall western penstemon flower and Nevada’s Fish Lake Valley tui chub fish will get final protection decisions later.  (The article includes a link to the settlement agreement.)

OTHER

Preliminary injunction in National Wildlife Refuge Association v. Rural Utilities Service (W.D. Wisconsin)

On March 6, the NWRA, Driftless Area Land Conservancy and Wisconsin Wildlife Federation filed suit against a proposed land exchange that would facilitate construction of a transmission line across the Upper Mississippi River National Wildlife and Fish Refuge. The complaint alleges violations of NEPA and the National Wildlife Refuge System Improvement Act.  A  preliminary injunction was quickly granted.

Criminal sentencing

On April 23, a Missouri man was sentenced to two years and six months in federal prison without parole, and was required to pay $30,000 in restitution for cutting down and selling at least ten trees from the Mark Twain National Forest.

Court decision (10th Circuit)

On April 30, the circuit court affirmed the lower court’s denial of a preliminary injunction against the Department of Labor’s requirement that a minimum wage of $15 per hour be paid in federal contracts.  This case involved river outfitters operating under permits from the Forest Service and BLM which have typically used a flat fee.

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

On May 1, the circuit court issued an order to the district court to dismiss this high-profile case claiming that the government’s actions encouraging a fossil fuel economy, despite scientific warnings about global warming, is unconstitutional.

Northwest Forest Plan Amendment- FACA Committee Discussion Draft Plan of Components

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Susan Jane Brown was kind enough to provide links to the draft plan components and draft recommendations. She pointed out, importantly (!) that “THESE ARE DRAFT AND UNDER ACTIVE DISCUSSION AND NEGOTIATION. The USFS hasn’t made any decisions yet, nor has the FAC reached consensus.” Here’s a link to their meeting archive page, and here’s one to the recommendations.

As with many things in forest planning there are many words here,  the Tribal recommendations are too long to post, 15 pages and change.

So I hope readers will take a look and give us your thoughts on any section. Maybe our thoughts will help inform the FACA committee and the Forest Service? I’d like it if they would not use “resiliency” and always use “resilience” but that’s just me.

Here are plan components for those not familiar with the planning process:

Here are the different sections for you to look at.

Here’s a section some might be interested in (I picked it because it is relatively short):

More on the Hiring Pause That May or May Not Refresh

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This is the latest I received from one of my sources..
I asked the question “so it’s the folks covered in FF retirement and who have fire quals that are not being affected?”

Also I got an answer as to “why it’s so hard to count.”

It does get a little fuzzy around the edges. Clearly fire positions with FF retirement coverage are not in any kind of pause. Right now, even some fire-funded positions such as Fire Cache positions are not affected. No current non-fire employee is impacted except in terms of applying for a position for competitive promotion and/or lateral…opportunities may decrease as vacant positions are held vacant due to funding concerns.

Figuring out how many vacancies are out there in the process of being filled is not that simple. For a lot of hiring, for various reasons, an SF-52 is no longer submitted to initiate a hiring action, and is only generated and entered into the system once a tentative selection is made. This cuts down on a tremendous amount of unnecessary front-end work when for whatever reason a hiring manager ends up not making an offer. Intake portals have replaced the early submission of 52s in these scenarios. Also, hiring managers are doing more backfilling at the same time they are selecting for vacancies, so there are often additional hires being done that were not listed in the initial portal inventory. Bottom line is there is no one system to accurately account for how many hires are in process, and no way to quickly assess this, hence the “pause”.

Anyone with more information, please weigh in.