NFS Litigation Weekly July 1, 2022

July 5, 2022 by Jon Haber

Here is the Forest Service summary: Litigation Weekly July 01 2022 Email

Defenders of Wildlife Workplace Culture Seen by Some Employees to Need Improvement

July 1, 2022 by Sharon

“I’ve never, ever quit a job that quick,” said one former Defenders of Wildlife employee. Claudine Hellmuth/E&E News (illustration); NordWood Themes/Unsplash (laptop); dit-kieferpix/iStock (woman)

Greenwire had an interesting story about Defenders of Wildlife with the headline:

Environmental group staffers say it’s a ‘nightmare’ to go to work

Some staffers and others in the environmental movement see the internal strife at Defenders as a microcosm of a larger battle that’s playing out at other environmental organizations and in workplaces across the country.
The Covid-19 pandemic and the racial justice movement have prompted calls for a drastic overhaul in how workplaces function. Defenders was part of a wave of environmental groups that unionized last year (Greenwire, Dec. 22, 2021).
“Generations coming up are expecting their progressive values to be reflected in what they consider to be a progressive organization, and I think that’s forcing generational conflicts,” said a second former Defenders staffer. “I think the good organizations, the effective ones, are able to adapt and transform and listen and share power essentially when it comes to unionization,” that person said.
Clark and other leaders at Defenders feel like they’re backed into a corner, that person said, where they feel like they’re losing if they give something up to the union.
“I think there’s this feeling that [Clark] had to be tough and hard-nosed to make it there to break that glass ceiling,” said the second former Defenders staffer. She’s an “old-school female leader who’s now kind of playing a conservative role that maybe doesn’t reflect all of those values that we would associate with that.”
That ex-staffer said Clark and other leaders at the group are facing a test on whether they can adapt to the current moment.
“Something has to change there,” said a third former Defenders staffer. “The true problem is that there’s so much drama at that place that it’s challenging to have the energy to do your work.”

I’m always curious about “old-school” female leaders and what “values we would associate with that.” Having known pretty much the “oldest school” female leaders in the Forest Service, they were a pretty heterogeneous lot. Is it OK in this day and age to call out a person’s femaleness and age to blame for management problems? Cause it seems to me that stereotyping other folks is not a “progressive value.”It’s absolutely OK to want different leadership, because what was a fit is no longer a fit, or perceived by some to not be a fit, for whatever reason. And I wonder what the Board’s role in all this is?

In an apparent attempt to improve its workplace culture, Defenders has hired three outside consulting groups in recent years to interview staff and analyze the organization, as E&E has previously reported.
The most recent firm hired — meant to address issues like diversity, equity and inclusion — broke off its relationship with Defenders earlier than expected (E&E News, May 24, 2021).
After surveying 144 Defenders staffers, the consulting firm Avarna Group produced a report last year saying that “fear,” “culture of fear” and “afraid” were mentioned over 50 times, primarily by staffers who weren’t in leadership positions. Those staffers said they were afraid of being fired or reprimanded for bringing up issues like “the lack of an inclusive culture,” the report said.
“When asked who staff were afraid of, the primary source of fear was not immediate supervisors, but specific individuals on the Executive Team, including the CEO,” the Avarna report said.
Following Defenders’ split with the Avarna Group last year, supervisors from within the organization sent an anonymous letter to Clark that accused her and other leaders of failing to take responsibility for the “culture of fear” within the organization.
“Neither Defenders’ dedicated staff nor our mission to save life on earth is served by executive leadership that disrespects its employees and stifles the cultural transformation necessary for our success,” the supervisors wrote to Clark.

The group’s annual revenue continued to climb throughout the pandemic. Defenders raised about $33 million in 2019, $34 million in 2020 and nearly $43 million in 2021, according to financial documents posted on the group’s website.

It would be interesting to hear the other side of the story, but they were not forthcoming- for personnel reasons.

Clark declined E&E News’ request for an interview. Defenders did not answer a list of questions about turnover, morale and specific concerns detailed by current and former staff.
Rachel Brittin, the group’s vice president of communications, wrote in an email that, “as a policy, we do not share personal information about individual staff members or HR actions. Many of your questions cannot be answered without divulging personal information about current and former staff.”
Defenders “takes staff concerns seriously and maintains processes and policies to uphold our high standards of workplace fairness while respecting the privacy of our current and former staff,” according to Brittin’s emailed statement.
“We recognize that, like many organizations across the country, there is more work to do in improving and enhancing our workplace,” the statement said. “We will continue to listen to our staff’s concerns, seek to enhance our workplace and advance Defenders’ important conservation mission.”

So What About Those “Historic” 2020 Fires?

July 1, 2022 by andystahl

Today’s in-box brought me, courtesy of firescience.gov, a new report “Cascadia burning: The historic, but not historically unprecedented, 2020 wildfires in the Pacific Northwest,” authored by researchers at my alma mater (Beaver Nation), Washington DNR, U. of Dub, and the Fire Service.

Highlights

The 2020 Labor Day Fires were much larger and more severe than others in the recent record, but they were remarkably consistent with many historical fires. Strong east winds and dry conditions are the common denominators in both large historical fires of the past and the 2020 fires.

Forest management and fuel treatments are unlikely to influence fire severity in the most extreme wind-driven fires, like the 2020 Labor Day Fires. Pre-fire forest structure, largely the result of previous forest management activities, had little effect on burn severity when east winds were strong during the 2020 fires.

Fuel treatments around homes and infrastructure may still be beneficial under low and moderate fire-weather conditions.

Adaptation strategies for similar fires in the future in west-side communities might, instead, focus on ignition prevention, fire suppression, and community preparedness.

California Law Expedites Permitting of Renewables, Battery Manufacture, and Powerlines: and a German National Approach

June 30, 2022 by Sharon

I like watching California grappling with climate change from the “laboratory of democracy” point of view. And I’m helped along in my observations by one of my favorite reporters, Sammy Roth.

California lawmakers passed a sweeping, polarizing energy bill last night, making it easier for state officials to buy electricity from beachfront gas plants and diesel generators, and to approve solar and wind farms over the objections of local governments.

What’s interesting about this at the macro scale is that California is faced with the reality of having reliable power- today and tomorrow. As I often say, you can’t solve an engineering problem with more words. While the chatterati opine about how easy it is to decarbonize, and the evil oil and gas industry preventing it, someone has to actually provide power. So the Legislature grappled, and they came up with something that sounds…at least somewhat common-sensical. It’s interesting that Roth refers to the bill as “polarizing”. I wonder when a plain old disagreement is a “polarizing” disagreement. Or whether by naming perhaps garden-variety disagreements this way, we highlight the emotive extremes and invisibilize the center. Those boring and practical folks who want to deal with climate change AND keep the lights on.

Here’s a link to the article. For the purposes of TSW, though, I’d like to focus on the description of part of the bill that works on speeding up infrastructure buildout, in an earlier Roth piece for some ideas that might be of interest in expediting permitting on federal lands.

A separate provision would allow companies building solar farms, wind turbines and lithium-ion batteries — as well as electric lines to connect those facilities to the grid — to opt in to an accelerated approval process that doesn’t require sign-off from county governments. State officials would be required to conduct environmental reviews and approve or deny those projects within nine months. Legal challenges to any project approvals would need to be resolved by state courts within another nine months.

Needless to say, (at least some) local governments are less than thrilled.

Local governments have at times emerged as a serious obstacle to clean energy, with San Bernardino County supervisors banning solar and wind farms on more than 1 million acres in 2019 and Shasta County supervisors set to vote next month on a wind farm moratorium. Shasta and Humboldt counties have both rejected proposed wind farms in recent years — an increasingly common occurrence across the Western U.S. as local residents raise concerns about environmental damage and diminished views.
Major solar companies have been focused on building better relationships with local officials rather than pushing to circumvent county approval, several people familiar with the industry’s thinking told The Times. The California Wind Energy Assn., on the other hand, supports Newsom’s plan to let the state handle permitting where developers prefer it, executive director Nancy Rader said.
The plan for speedier solar and wind approvals has also drawn support from the International Brotherhood of Electrical Workers. Developers who opt in to the streamlined process would need to hire union workers through project labor agreements.
“We think that’s a wise balancing of an option for developers who have their ducks in a row and want to go to the Energy Commission, which is extremely capable and competent and talented,” said Marc Joseph, an attorney representing IBEW.
Major environmental groups haven’t taken a position on Newsom’s proposal to streamline project approval, after an earlier provision that would have eliminated additional layers of review — including from the Coastal Commission — was removed.
Local governments, though, are furious.
In a letter opposing the bill, the California State Assn. of Counties, Urban Counties of California, Rural County Representatives of California and the League of California Cities said renewable energy facilities “can have enormous impacts on local communities.” They said the Energy Commission approval process is “overly broad, usurps local control, excludes local governments from meaningful involvement in major development projects within their jurisdictions, and could result in even more litigation.”

Two thoughts on this.. (1) could the Feds develop the same ideas for permitting on federal lands and leave the States out?

I’m just thinking federal land, but the Germans have draft laws for relaxing environmental requirements if their states don’t pony up the acres to meet federal requirements (yes, I know that the German government is very different):

With the “onshore wind energy law”, Germany’s 13 larger states have to have designated 1.4% of their surface area to onshore wind power by 2026; by 2032 they have to reach their respective target of 1.8-2.2%.
Bavaria, notorious for its anti-wind power policies, must reserve 1.8% of its land for onshore wind.
The states must do their own planning, guided by a set of uniform rules and modelling issued by the federal government, but can stick to individual distance rules if this doesn’t interfere with reaching the percentage target.
If, however, they do not manage to assign enough space to wind turbines, wind power investors would be automatically allowed to build new turbines in areas previously unavailable due to the distance rules. The country’s three city states, Berlin, Hamburg and Bremen, must use 0.5% of their area for wind power…
While satisfied that the government is tackling too long planning procedures and legal hurdles for wind power, industry representatives strongly criticised the species protection rules for creating new legal uncertainties that would prolong procedures even more.

(2) Who decides what is NIMBY and what is environmental justice, and on what specific criteria?

If it is legitimate for the well-heeled in Redondo Beach to want gas-fired power plants removed from their community, is it equally legitimate for local governments of the less-well-heeled to not want wind turbines?

There is no “no fire” option

June 29, 2022 by Steve Wilent

The NY Times has an interesting essay today by David Wallace-Wells, ‘There is no future in which we somehow manage to suppress all these fires that also does not have any prescribed fires.’ It’s behind a pay wall, but here’s one quote:

“The reality is, there is no ‘no fire’ option,” said Daniel Swain, a climate scientist at the University of California, Los Angeles. “There is no future in which we somehow manage to suppress all these fires that also does not have any prescribed fires.” That’s how he presents the landscape: not a choice between fire or no fire. “The choice is what kind of fire,” he said.

Wells also has this passage featuring Stephen Pyne:

“Inevitably, our future holds a lot of fire,” Pyne wrote recently. His goal: “a variety of techniques for a variety of purposes,” he said, including an “urban fire” approach to those burning in the wildland-urban interface, where a much more aggressive firefighting and fire-prevention effort could be targeted. He mentions Indigenous practices, cultural burning and agricultural burning, alongside forest management through mechanical thinning and burning. “Thinning plus fire is what’s really effective,” he said. “In a lot of places, they get the thinning done, but they don’t do the burning. So in a sense, you haven’t solved the problem. You may even have made it worse in some ways, because now you’ve got all these jackpot piles, like gopher mounds all over the countryside, waiting for a fire.”

But Pyne is most focused on what he calls “working with wildfires”: a more open and fluid approach that treats those that begin with an accidental or natural ignition almost like prescribed burns by guiding them toward useful spread. “I wish the agencies were a little more forthright about this” — that some remote fires can just be left to burn, he said. “It’s legal, it’s legitimate. But it can also seem evasive, a little sub rosa,” especially against a backdrop of growing fire anxiety across the West, driven not just by the fires themselves but the smoke they produce. “People get hay fever in the spring,” Pyne said. “Well, you may be dealing with smoke fever in the fall.”

“We don’t have complete control,” he went on. “We don’t control the weather. We don’t control the mountains. But, he added, “We can decide where and when to set a fire, we can do some prior treatments at a certain level, but we can’t treat tens of millions of acres across the West — much less, a couple hundred million acres across the West before we put fire in.”

Ultimately, “I think prescribed burning has got to be a part of it, but it’s not going to be the dominant one,” he said, pointing out that in most years, acreage consumed by wildfire is much larger than what’s burned in prescribed fires and that in 2021, prescribed fires burned nearly 1.3 million acres in the Southeast, where climate conditions make such fires relatively safe, compared with less than 200,000 in the Southwest, West, Mountain West and Pacific Northwest each.

“In the West, the complications are much larger,” he said — and growing, of course. “It’s a lot harder than it was say a 100 or 150 years ago,” because “the landscape is much more vulnerable to explosive fire,” he said. “We still haven’t grappled with the sense that it’s systemic. And I don’t think we ever will.”

Double Landscape Trouble : Injunction of Two Landscape Level Projects on the Nez-Perce/Clearwater

June 29, 2022 by Sharon

While Jon is our litigation expert, a TSW reader submitted the below litigation post. This case reminds me of the old strategizing we did about packaging decisions in a Queen Mary of analysis versus a flotilla of small decisional boats. If we accept that there are people who don’t want projects and use litigation to stop them, the Queen Marys will become larger targets, whereas some in the flotilla of small boats might successfully evade fire.

In this case, two landscape level projects were enjoined at the same time. Another point of interest is that the Court held the Forest to using definitions in the Forest Plan rather than perhaps more current definitions. Which suggests perhaps that the old growth EO new definitions might take a national amendment of all forest plans?

Still, this was useful in the sense that if the Forest fixes these things as the judge requires, then they both should be good to go. Or the additional work will open up more opportunities for litigation. Or using the latest science, or not, if it conflicts with the Forest Plan. And so it goes.

Other thoughts? Here’s the post.

..the court decided to remand (send back) both projects to the Forest and enjoined until their identified errors are fixed……………………..the court decided that EOTW needs to be an EIS rather than an EA to address old growth.
The 3 identified issues:
NIOG (Green et al. definitions) cannot be counted towards Old Growth to meet Nez Perce Forest Plan Appendix N. They must use the Appendix N definition.
MA20 needs to be verified as to which stands are Forest Plan Old Growth and which meet Replacement. We can’t assume all MA20 is Forest Plan OG
Cumulative effects of old growth between the EOTW and Hungry Ridge projects were not discussed.
Here are the main points….
“While the Forest Service may have developed regional definitions of old growth depending upon forest type, the Forest Plan cannot reasonably be read to include NIOG as meeting the criteria for an old growth stand. The purpose of the Forest Plan was to establish a floor of old growth forest wide, and in each OGAA. Logging predominantly favored large sized trees such as Douglas and Grand Fir. When these factors are considered together, the Court finds the Forest Service’s interpretation that NIOG meets the criteria used to identify old growth in Appendix N is clearly erroneous.” Pg. 18
“Here, while the Forest Service’s NEPA documents indicate it used aerial photos, stand exam information, previous land uses, and personal knowledge to verify stand conditions in MA20, the Court cannot find any evidence in the record demonstrating that it did so other than its bare assurances. The Forest Service did not direct the Court to any documentation in the record of its activities verifying the makeup of MA20 stands. Further, Appendix N requires actual verification of individual stand conditions by specific methods – aerial photos and field reconnaissance. This was apparently done prior to adoption of the Forest Plan to verify the amount of sawtimber throughout the forest. Utilization of “previous land uses and personal knowledge” do not appear on the list of approved verification methods. “ “The Court therefore finds the Forest Service acted arbitrarily and capriciously when it took liberties outside of a reasonable interpretation of the Forest Plan to meet the minimum old growth requirements, and it failed to accurately identify the composition of areas of MA20. ” Pg. 20, 21
“But the Court was unable to locate any discussion or analyses of the cumulative and synergistic impact of the two projects on old growth. This is problematic because the Forest Plan requires the Forest Service to maintain a minimum of 10% of the total forested acres as old growth. It is difficult to reconcile the Forest Service’s justification that old growth need only be looked at in the context of each project’s boundaries when the Forest Plan requires the Forest Service to view the forest as a whole. In this respect, the Court finds the Forest Service’s analyses of cumulative effects to old growth failed to consider an important aspect of the problem, and is therefore arbitrary and capricious.” Pg. 53
The resulting order….
5) The Decision Notice and Finding of No Significant Impact for End of the World are hereby reversed and remanded to the United States Forest Service for preparation of an environmental impact statement under NEPA consistent with this decision.
6) The Record of Decision and the Final Environmental Impact Statement for Hungry Ridge are hereby remanded to the United States Forest Service for further evaluation under the NFMA and NEPA consistent with this decision.
7) The End of the World Project and the Hungry Ridge Project are hereby enjoined.
Here is the text of the decision.

Evacuation Planning (Or Not) Story in Colorado Springs Gazette

June 28, 2022 by Sharon

Yes, we could move everyone out of the Interior West, I suppose, and hope that climate change would bow out long enough to return to “natural” fire regimes denaturalized by climate change, but that doesn’t seem very realistic. Other folks are dealing with making their communities fire resilient and working on evacuation.

Those of us who observed the Marshall Fire in Boulder County, Colorado, noticed what seemed to be a tension between current urban/suburban planning ideas (densification and taking public transportation) and dealing with wildfire (houses further apart and individual vehicles for evacuation). Meanwhile people like living where they do. This extensive article from the Colorado Springs Gazette talks about efforts to plan better for wildfire evacuations and also touches upon mitigation treatments. It’s interesting to me that fuel treatments don’t seem to be controversial here.. for one thing timber industry doesn’t make a good enemy, and most of these projects are on private forest land.

There’s quite a bit of interest in this article. I think you can get it without a paywall here, but if not, please let me know. You might also be able to get it here. It’s interesting as we’ve been discussing climate change and prescribed fires, how this reporter characterizes the “equilibrium”.

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Whereas a metric like the Forest Service’s “burn probability” estimates the likelihood that an area will burn in a wildfire, but does so without regard to where people might be affected, “exposure” shows where wildfire risk collides with communities.

Within the Forest Service’s five-state Rocky Mountain Region, Evergreen has the highest exposure risk. The second- and third-highest-risk areas in the region are the planning zones that occupy the rest of the Front Range between Evergreen and Colorado Springs. In El Paso County, the high-risk areas include Manitou Springs, the Ridgecrest area northeast of Garden of the Gods, and the Broadmoor neighborhood. Although their populations are smaller, some pockets closer to Boulder and Fort Collins also show high risk, around Estes Park and Cripple Creek and north of Lyons.

Evergreen's limited roadways — Evan Wyloge

Population data from the U.S. Census Bureau, combined with geospatial roadway data from Open Street Maps, shows that more than 35,000 residents — not accounting for seasonal or weekend visitors — in the state’s highest exposure area, in Evergreen, have only a few possible evacuation routes, putting the number of people per lanes of egress routes near or above the number in Paradise, Calif., where residents burned in their cars trying to evacuate, depending on the particulars of a future fire’s location and behavior. Estimates that include more of the outlying areas put the possible evacuation total as high as 60,000 people for the area.

A computer program designed to simulate evacuations, called the Fast Local Emergency Evacuation Times Model (FLEET), operated by Old Dominion University in Virginia, similarly shows the Evergreen area has the longest evacuation time for wildfire-prone parts of the state.

Roxborough Park and Woodland Park are not far behind Evergreen, either for computer-simulated evacuation times or the simpler people-per-lane of evacuation rates ratio.

“There’s a heightened awareness of the wildfire danger here,” Chuck Newby, a resident of South Evergreen who was recently elected to the Elk Creek Fire Board in the southwest portion of the larger Evergreen area.

Conversations he’s had with other residents, he said, are more and more often about evacuations.

“After seeing the Camp Fire, East Troublesome, Marshall, these major fires,” Newby said, “you have people asking what would happen? What would happen if this happened here? What would I do?”

The buzz, flutter and gurgle of chainsaws pierced an otherwise calm June afternoon, emanating from the home of Rich Mancuso, in the Echo Hills neighborhood near the center of Evergreen.

LAM Tree Service climber Ezra Vaughn prepares to fell a pine tree next to the deck on Rich Mancuso and Debbie Pasko’s property while bucket truck operator Tyler Engebritson and foreman Elias Cerna pull on a rope attached to the tree on Thursday, June 2, 2022, in Evergreen, Colo. (Timothy Hurst/The Denver Gazette)

Mancuso, who grew up in Staten Island, N.Y., and moved to Evergreen in 1980, watched as the crew from Lam Tree Services strategically felled trees on his property and prepared them for disposal.

Mancuso said he had his property’s vegetation thinned in order to keep his homeowners’ insurance, after his agent told him about the company’s new approach to proper fire mitigation in the high-risk area.

“They told us to do it,” Mancuso said, “or they would cancel our policy.”

The science behind mitigating fire-prone vegetation echoes the natural cycle of wildland fire and puts a mirror to the now broadly panned fire-suppression strategy of forest management deployed in the West for more than a century.

Without human intervention, wildfires burn through forests, destroying saplings but sparing the oldest and largest trees, which has the multiple effects of re-nutrifying the soil, clearing space around and strengthening the bark of the forests’ largest trees, and helping new seeds take root. The sparser forest left behind is healthier overall, and less susceptible to larger fires that spread through the forest canopy instead of closer to the ground.

In the American West, however, the longstanding forest management that favored rapid fire suppression led to forests that are denser than they would be naturally, making fires more intense and harder to fight.

Forest management practices have begun to move toward allowing the natural fire cycle to play out, but it’s estimated that millions of acres of forests in the western U.S. would need to see small-scale fires that naturally restore forest health, in order to get back to equilibrium — a dangerous prospect, given the proclivity of the forests to burn more intensely, because of the misguided policies of the past.

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And a quote from FS retiree Bernie Weingardt

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The Evergreen Fire Protection District’s wildfire protection plan, updated in 2020, includes a roadway analysis that estimates “non-survivable” evacuation routes are spread throughout the area, meaning the roads risk putting drivers adjacent to 8-foot or larger flames, based on the fuels along the roads.

Bernie Weingardt, an Evergreen resident who worked for the U.S. Forest Service for 37 years, said the report told him and other residents what they had long suspected.

“They ran the simulations on it, and in Evergreen, you see it will bottleneck really fast,” Weingardt said. “Just a normal day out here, with everyday traffic, you have cars backed up at the main intersections. So the small roads feeding into the main arteries, they’ll end up gridlocked, with traffic backed up into the neighborhoods.”

Dense forests line Colorado Road 73 just south of North Turkey Creek Road on Saturday, June 18, 2022, in Evergreen, Colo. (Timothy Hurst/The Denver Gazette)
Timothy Hurst

The plan goes on to show where traffic-pattern analysis suggests congestion could form, based on the roadway capacity and number of possible evacuees.

“If high congestion and non-survivable roadway are in the same place,” the plan explains, “there is a high risk to life safety.”

The plan’s introduction nods to the most prominent example of such conditions, when the Camp fire devastated Paradise, Calif.: “Failed communication, poor evacuation routes, and unmitigated vegetation were all contributing factors in the 83 casualties that took place in November 2018.”

193+ From Timber Service to Fire Service: The Evolution of a Land-Management Agency by Andy Stahl

June 27, 2022June 27, 2022 by Sharon

A while back, a commenter asked for (if I remember correctly) visions for the future of the Forest Service. I thought back to the book “193 Million Acres: 32 Essays on the Future of the Agency” edited by our own Steve Wilent (and with essays by many TSW writers and friends). It was published in 2018, which means we wrote our essays before that, and much has happened since. The Infrastructure Bill, Covid and Covid-Enhanced Recreation, the 10-year Implementation Strategy, and so on. So I asked the authors if they would be willing to share the main ideas of their essays, and any updating thoughts they had, in a post on TSW.

I’d also like to invite others to contribute to this series, which I’ll call 193 Million Acres Plus. I’d especially like to hear from current employees, and anonymous submissions will be accepted/encouraged because we’re interested in any ideas attributed to specific people or not. A final suggestion, please don’t just talk about the problems, dream and vision some solutions. And with that, to Andy Stahl’s 193+ essay.

From Timber Service to Fire Service: The Evolution of a Land-Management Agency
Andy Stahl

In 2017, the US Forest Service set an enviable record. For the first time in its history, it spent more than $2 billion fighting fires. The $2.4 billion spent in 2017 (exceeded the next year at $2.6 billion) is more than twice the Forest Service’s average annual spending during the 2000s and seven times the 1990s average. To put the increase into perspective, it’s double the government-wide increase in discretionary nondefense spending. Firefighting has gone from 15 percent of Forest Service spending in the 1980s to more than 55 percent today.

Why and how did this occur, and what are the implications for the Forest Service and our national forests? The answers are 1) because the Forest Service needed to replace rapidly declining timber revenue; 2) because it could; and, 3) budgetary casualties for everything else the Forest Service does.

In 1908, Gifford Pinchot asked Congress to authorize the Forest Service to borrow money from “any appropriation … for fighting forest fires in emergency cases.” Pinchot wanted his field foresters to be able to pay the needed men from locally available government money, from such sources as receipts collected from ranchers or from the occasional sale of timber, and not wait the several weeks or months for a proper check to be cut from the head office. A reluctant Congress agreed, although the authority it granted was less than Pinchot sought (Pinchot also asked to cover costs associated with non-fire emergencies, too, for example, replacing a washed-out bridge, but Congress refused). A parsimonious Congress also made sure the Forest Service accounted for every penny by requiring that “detailed accounts arising under such advances shall be rendered through and by the Department of Agriculture to the General Accounting Office.”

For the first half of the 20th century, borrowing from non-fire accounts to pay for wildfire suppression followed the model Pinchot outlined. Borrowing was minimal, because Forest Service local offices had little cash on hand to advance for firefighting purposes. The post–World War II logging boom changed the income statement, however. Annual logging revenue grew from $20 million between 1946 and 1950, to $140 million between 1961 and 1965. Harvest income climbed meteorically in the 1970s to almost $1 billion by that decade’s end. By the end of the 1980s, the Forest Service was regularly exceeding the $1-billion mark, with timber-harvest income peaking in 1989 at $1.3 billion.

Divvying up this financial windfall proved a challenge. A 1908 law allocated 25 percent of the cash to the state where the timber was cut; these funds were earmarked for building roads and financing schools. A 1913 law allowed the Forest Service to keep 10 percent for road construction and maintenance. Thus, 65 percent of the Forest Service’s timber revenue was returned to the US Treasury, where it would be available for Congress to spend as it saw fit. In the eyes of cash-strapped Forest Service managers who had done the hard work, this seemed an unfair, if not wasteful, outcome. Providently, a 1930 law called the Knutson-Vandenberg (K-V) Act offered a solution.

The K-V Act authorized the Forest Service to retain timber-sale receipts for reforestation and other improvement work on cut-over land. In the early years, when sale receipts were small, this authority provided modest revenue and was exercised conservatively. With the growth of logging, however, the K-V dollars retained grew in absolute and percentage terms. Through 1975, the Forest Service had deposited about 10 percent of timber-harvest revenues into its K-V fund. The K-V fund grew, but only proportional to the increased timber-sale level and associated cost of reforesting the increasing number of cut-over acres. Nonetheless, some states, especially Oregon, became concerned that the K-V fund’s growth was coming at the expense of the 25 percent of revenue to which states were entitled (states were paid 25 percent of receipts net of K-V withdrawals). In 1976, as part of the National Forest Management Act, Congress amended the revenue-sharing law to require that 25 percent of gross sale receipts, including the K-V charges, be paid to states.

From 1976 on, with the states’ 25 percent funds now protected, the Forest Service began diverting an increasing percentage of timber-sale revenue to its K-V fund, from 10 percent in the 1970s to 30 percent of every timber dollar by the end of the 1990s. The K-V fund grew accordingly, increasing from an annual average of $21 million in the 1960s, to $61 million in the 1970s, to $176 million in the 1980s, peaking at $269 million in 1993. In 1991, the Forest Service’s creative financing gurus began dipping into the K-V fund to pay for firefighting costs, too. After all, the Forest Service was using K-V to pay for a bit of everything else, why not firefighting? Pinchot’s 1908 law offered the legal loophole to do so, and the K-V cash reserves were huge, albeit also over-obligated to pay for future reforestation, a concern the General Accounting Office raised in the mid-1990s.

Timber Harvesting Decline
Then the wheels came off. The 1990s lawsuits aimed at protecting northern spotted owl habitat slashed logging levels by 90 percent in the productive Pacific Northwest states, which accounted for a 40 percent drop nationwide. Add in protections for the bull trout, grizzly, and the northern spotted owl’s California and Mexican cousins, and, with the exception of the small east-of-the-Mississippi national forests, the agency’s timber program all but died, dropping from a high of 12 billion board feet annually to an annual three billion board feet over the last 20 years. So, too, the K-V revenue stream dried up. The Forest Service faced a budget nightmare the likes of which it had never seen. Congressional appropriators had grown used to a substantially self-financed Forest Service. Firefighting costs had become no concern to the bureaucracy, which had grown accustomed to a substantial off-budget expense account.

The Clinton administration chose to backfill this gaping financial hole by doubling down on firefighting. In 2000, Clinton’s National Fire Plan provided the justification for a new national forest raison d’être that was all about fire, all the time. Put out fires, light fires, clear fire-prone brush, thin forests overstocked because of a lack of fire, repair forests and watersheds damaged by too much fire, restore fire-dependent ecosystems, write fire-management plans and community fire-protection plans, map wildland-urban interfaces and fire-regime condition classes, buy more fire trucks, lease more air tankers, hire more firefighters. Recruit non-governmental allies by linking fire to climate change (to enlist environmental support), and by linking fire to a lack of active management (to enlist timber industry support). For its own financial survival and to stave off painful cuts to its workforce, the Timber Service became the Fire Service.

This strategy proved astonishingly successful. Forest Service spending is greater than it has ever been. But it’s not the same agency as 30 years ago when timber ruled the roost. Half of the Fire Service’s workforce are firefighters; most are not college-educated. More than half of the Forest Service’s budget is spent fighting fire, a disproportion that exceeds the timber era. But, for a bureaucracy committed to its own survival and growth, it’s a remarkable success story.

The Forest Service, however, tells a different story. It claims that over-grown forests—a result of too much fire suppression—and a hotter climate justify its runaway firefighting costs. But those arguments don’t explain why other wildland firefighting agencies have not incurred the same galloping rate of cost inflation. California leads the nation in the growth of homes in wildland-urban interface zones. Although the California Department of Forestry and Fire Protection (CalFire), which bears the cost suppressing wildland fires on private land, has seen its fire-suppression costs rise, its increases are much less than the Forest Service’s. CalFire’s four-fold rise since the 1990s is substantially less than the Forest Service’s seven-fold increase, and CalFire’s 30 percent increase in costs during the 2000s is less than one-third of the Forest Service’s 100 percent increase over the same period. The Department of the Interior, which manages 500 million federal acres compared to the Forest Service’s 156 million, has had firefighting cost increases of 3.3-fold compared to those of the 1990s, less than half the Forest Service’s seven-fold increase, and a 10 percent increase in the 2000s, one-tenth the Forest Service’s 100 percent rise.

Proposals to “fix” the Forest Service’s fire spending have focused on begging Congress for more money. These pleas were answered in late 2017 with half billion more dollars appropriated for firefighting. While not the “disaster spending” checkbook (unregulated by congressional spending caps) the Forest Service has sought, it’s better than a poke in the eye with a sharp stick. Meanwhile, the steady shrinkage of money to manage recreation, fish, wildlife, and water continues.

The Forest Service’s firefighting costs will continue to go up so long as Congress is willing to pay the tab. Beginning in 2020, and for the first time in its history, the Forest Service had access to off-budget “disaster” spending authority. These spending increases will occur not because there are more fires—fire ignitions have gone down steadily on the national forests for the last 30 years. And not because more acres are burning—acres burned show no clear trend over the past century. The Forest Service will continue to spend more money fighting fires because fighting fire pays its bills.

National Park Service Litigated for “Logging” Hazard Trees in Yosemite

June 23, 2022 by Sharon

There are several interesting things about this FrezBee article on litigation by Earth Island Institute on Yosemite hazard tree removal..

(1) The Park Service can’t comment because it’s under litigation… the cone of silence. So we get only one side of the story. Too bad there aren’t some Park retirees the reporter could interview.

“Yosemite National Park is aware of the litigation that was filed regarding the tree removal in the park,” Yosemite spokesperson Scott Gediman said Wednesday afternoon. “We are currently reviewing the contents of the litigation. At this time, we do not have any further comment on this matter and we’ll continue to work through it.” Gediman said he was not able to answer some other questions from The Bee at this time, which included whether Yosemite ever solicited public input about the project.

(2) for you NEPA-nerds

Instead of conducting a new environmental impact statement or environmental assessment, the lawsuit states, Yosemite filed a less-thorough categorical exclusion form, which largely relies on older studies. Earth Island Institute said that document is inadequate and in contradiction with key points in previous plans, including that Yosemite can now remove trees up to 20 inches in diameter, instead of those only up to 12 inches in diameter. “Tiered actions cannot ‘differ’ from the document tiered to – this is the opposite of what NEPA contemplates,” the lawsuit states.

CE’s don’t have to be tiered to anything is my understanding, and why would the Park Service tier if they didn’t have to?

(3)

Hanson said some of the felled trees are being sent to commercial sawmills, while in the past, hazardous trees cut down in Yosemite were left on the ground to biodegrade as part of the ecosystem. “This is a massive departure from that,” Hanson said, “and they didn’t even tell anyone they were doing it.”

Apparently to Hanson, all biomass needs to be left in place, even if dead and within 200 feet of a road, so that it can fall naturally (?).

Hanson worries about the precedent this project could set. He’s never heard of a similar project in another national park. “I’m profoundly concerned,” Hanson said, “because if Yosemite National Park can start a large-scale commercial logging program, then this can happen in any national park in the country.”

I know that Rocky Mountain National Park also cut down and removed bark beetle killed trees along roads and in campgrounds. They may have burned them in piles, which would be arguably worse for the environment than sending them to become lumber or to a biomass plant (re: carbon and air quality, as well as risk of pile burning escaping containment). It seems awfully philosophical for the rightness of the action is based on whether the trees are sold or not, not what happens to the environment when they are removed/ burned or whatever.

Unless the thought is that the Biden Park Service is out to cut more trees to satisfy the evil timber industry (sounds not too believable, IMHO).

(4) This quote relates to our “how long is a planning document useful” and “what is controversial” questions.

In a court declaration, Hanson said Yosemite shouldn’t be relying upon a 2004 fire management plan. Since then, “the entire scientific landscape has changed dramatically regarding forest and wildfire science, and the 2004-era assumptions and assertions upon which the Project is based are now viewed as strongly contested, highly controversial, or largely discredited,” he continued.

If we follow his logic, any dry forest NFMA plans earlier than 2004 would not have current legal validity as being out of date. And since science changes so quickly, we could expect a plan that takes five years to develop to be out of date as soon as it gets out of litigation. It makes the task of plan revision sound a bit Sisyphean. Of course, this is not news to many FS employees.

(5) If 200 feet from the centerline is too much, how will the public be involved in the outcome of the lawsuit, since the plaintiffs are concerned about the public having a voice. Perhaps putting any proposed settlements out for public comment? I think that that would be a great innovation. This seems like the kind of thing mores suited to open and transparent mediation than litigation IMHO.

Bipartisan “Save Our Sequoias Act” Introduced: HR 8168.

June 23, 2022June 23, 2022 by Sharon

I’ve got some questions for those in the know…

1) Can’t NFF already accept private donations for things? Didn’t know it was restricted.

2) In the distant past (1970’s) I recall a set of sequoia plantations in California in various places (known as Prof. Libby’s sequoia plantings). Did anyone ever round up what information might be available from them about reforestation? Are the trees still alive and measured?

WASHINGTON – Today, House Committee on Natural Resources Ranking Member Bruce Westerman (R-Ark.) joined House Republican Leader Kevin McCarthy (R-Calif.), U.S. Reps. Scott Peters (D-Calif.), Jim Costa (D-Calif.), David Valadao (R-Calif.), Jimmy Panetta (D-Calif.), Tom McClintock (R-Calif.) and 23 other members in introducing H.R. 8168, the Save Our Sequoias (SOS) Act. That link wasn’t working, so here is the text until that one goes live.Save Our Sequoias Act
Background
In the past two years alone, catastrophic wildfires wiped out nearly one-fifth of the world’s Giant Sequoias. Covering only 37,000 acres in California across roughly 70 groves, Giant Sequoias are among the most fire-resilient tree species on the planet and were once considered virtually indestructible. However, more than a century of fire suppression and mismanagement created a massive build-up of hazardous fuels in and around Giant Sequoia groves, leading to unnaturally intense, high-severity wildfires. The emergency now facing Giant Sequoias is unprecedented – the last recorded evidence of large-scale Giant Sequoia mortality due to wildfires occurred in the year 1297 A.D., more than seven centuries ago.
Despite the looming threat to the remaining Giant Sequoias, federal land managers have not been able to increase the pace and scale of treatments necessary to restore Giant Sequoia resiliency to wildfires, insects, and drought. At its current pace, it would take the U.S. Forest Service approximately 52 years to treat just their 19 highest priority Giant Sequoia groves at high-risk of experiencing devastating wildfires. Without urgent action, we are at risk of losing our iconic Giant Sequoias in the next several years. Accelerating scientific forest management practices will not only improve the health and resiliency of these thousand-year-old trees but also enhance air and water quality and protect critical habitat for important species like the Pacific Fisher.
The SOS Act will provide land managers with the emergency tools and resources needed to save these remaining ancient wonders from the unprecedented peril threatening their long-term survival. The bill would:
*Enhance coordination between federal, state, tribal and local land managers through shared stewardship agreements and the codification of the Giant Sequoia Lands Coalition, a partnership between the current Giant Sequoia managers.
*Create a Giant Sequoia Health and Resiliency Assessment to prioritize wildfire risk reduction treatments in the highest-risk groves and track the progress of scientific forest management activities.
*Declare an emergency to streamline and expedite environmental reviews and consultations while maintaining robust scientific analysis.
*Provide new authority to the National Park Foundation and National Forest Foundation to accept private donations to facilitate Giant Sequoia restoration and resiliency.
*Establish a comprehensive reforestation strategy to regenerate Giant Sequoias in areas destroyed by recent catastrophic wildfires.
**
SOS Act original cosponsors: U.S. Reps. Scott Peters (D-Calif.), Bruce Westerman (R-Ark.), Jim Costa (D-Calif.), David Valadao (R-Calif.), Jimmy Panetta (D-Calif.), Tom McClintock (R-Calif.), John Garamendi (D-Calif.), G.T. Thompson (R-Penn.), Mike Thompson (D-Calif.), Ken Calvert (R-Calif.), Anna Eshoo (D-Calif.), Mike Garcia (R-Calif.), Lou Correa (D-Calif.), Doug LaMalfa (R-Calif.), Ami Bera (D-Calif.), Jay Obernolte (R-Calif.), Sanford Bishop (D-Ga.), Young Kim (R-Calif.), Ed Perlmutter (D-Colo.), Dan Newhouse (R-Wash.), Kurt Schrader (D-Ore.), John Curtis (R-Utah), Tom Malinowski (D-N.J.), Russ Fulcher (R-Idaho), Kaiali’i Kahele (D-Hawaii), Michelle Steel (R-Calif.), Juan Vargas (D-Calif.), Pete Stauber (R-Minn.) and Josh Gottheimer (D-N.J.).
More than 90 organizations support the SOS Act, including: ACRE Investment Management, American Conservation Coalition, American Forest & Paper Association, American Forest Foundation, American Forest Resource Council, American Loggers Council, American Sportfishing Association, American Wood Council, Aramark Parks & Destinations, Archery Trade Association, Associated California Loggers, Association of American Railroads, Association of California Water Agencies, Bipartisan Policy Center Action, Boone & Crockett Club, Calaveras Big Trees Association, Calaveras County Water District, Calaveras County, California Assemblyman Vince Fong, California Cattlemen’s Association, California Farm Bureau, California Forestry Association, California Senate President pro Tempore Toni Atkins, California Senator Shannon Grove, Carbon180, Center for Climate and Energy Solutions, U.S. Chamber of Commerce, Charm Industrial, CHM Government Services, Citizens Climate Lobby, Citizens for Responsible Energy Solutions, Congressional Sportsmen’s Foundation, ConservAmerica, Dallas Safari Club, Delek US Holdings, Drax, Ducks Unlimited, Edison International, Enviva, Evangelical Environmental Network, Federal Forest Resource Coalition, Forest Landowners Association, Forest Resources Association, Fresno County, Giant Sequoia National Monument Association, Grassroots Wildland Firefighters, Great Basin Institute, Hardwood Federation, Healthy Forests, Healthy Communities, Houston Safari Club, International Inbound Travel Association, International Paper, Inter-Tribal Timber Council, Kern County, Kern River Valley Chamber of Commerce, Kernville Chamber of Commerce, Mariposa County, National Alliance of Forest Owners, National Association of Counties, National Association of Forest Service Retirees, National Cattlemen’s Beef Association, National Forest Recreation Association, National Wild Turkey Federation, Niskanen Center, Outdoor Industry Association, Outdoor Recreation Roundtable, PG&E, Placer County Water Agency, Placer County, Public Lands Council, Rocky Mountain Elk Foundation, Rural County Representatives of California, Salesforce, Salt River Project, San Diego Gas & Electric, Save the Redwoods League, Sequoia Parks Conservancy, Sierra Forest Products, Sierra Pacific Industries, Society of American Foresters, Springville Chamber of Commerce, The Nature Conservancy, Trust for Public Land, Tulare County Farm Bureau, Tulare County Fire Department, Tulare County, Tule River Tribe, Tuolumne County, Vista Outdoor, Weyerhaeuser Company, Wildlife Management Institute, Yosemite Clean Energy, and Yosemite Conservancy.

Figure 1. Footprints of six wildfires that significantly impacted giant sequoia groves – Rough Fire (2015), Railroad and Pier (both 2017), Castle (2020), and KNP Complex and Windy (both in 2021). Giant sequoia groves in or near the fires are shown in red.
NPS / Joshua Flickinger

Other Groups’ Point of View

Here’s a link to why a Coalition of Conservation Groups oppose it (thanks to Nick Smith).

It’s nothing more than a trojan horse to diminish important environmental reviews and cut science and communities out of the decision-making process.”

It seems like they would like the committee to be a FACA committee, which seems reasonable and to have some kind of public involvement (I’m not sure that the Park Service and the Forest Service would actually propose a project without public involvement. They also argue that the NPS and FS have enough CEs to do the trick already.