More Rim Fire Pictures

All too often, once a firestorm goes cold, a fickle public thinks the disaster is over with, as the skies clear of smoke. In the situation of the Rim Fire, the public hasn’t had much chance to see the real damages within the fire’s perimeter. All back roads have been closed since the fire was ignited. Besides Highway 120, only Evergreen Road has been opened to the public, within the Stanislaus National Forest.

From my April trip to Yosemite, and Evergreen Road, this unthinned stand burned pretty hot. This would have been a good one where merchantable logs could be traded for small tree removal and biomass. Notice the lack of organic matter in the soil.


Sometimes people say there is no proof that thinning mitigates fire behavior. It’s pretty clear to me that this stand was too dense and primed for a devastating crown fire. I’m guessing that its proximity to Yosemite National Park and Camp Mather, as well as the views from Evergreen Road have made this area into a “Park buffer”. Now, it becomes a “scenic burn zone”, for at least the next few decades.


There is some private land along Evergreen Road, which seem to have done OK, at least in this view. Those mountains are within Yosemite National Park. Sadly, the media likes to talk about “reduced burn intensities, due to different management techniques”, within Yosemite National Park. Only a very tiny percentage of the National Park lands within the Rim Fire have had ANY kind of management. Much of the southeastern boundary of the fire butts up against the Big Meadow Fire, generally along the Tioga Pass Road (Highway 120). Additionally, much of the burned Yosemite lands are higher in elevation, as well as having larger trees with thicker bark. You can also see that there will be no lack of snags for the blackbacked woodpecker. Can anyone say, with scientific sincerity, that over-providing six years of BBW habitat will result in a significant bump in birds populations? The question is really a moot point, since the Yosemite acreage, alone, does just that.


People have, and will continue to compare the Yosemite portion of the Rim Fire to the Stanislaus National Forest portion, pointing at management techniques and burn intensities. IMHO, very little of those comparisons are really valid. Apples versus oranges. Most of the Forest Service portion of the fire is re-burn, and there is no valid Yosemite comparison (other than the 2007 Big Meadow Fire). It has been a few months since I have been up there, and I expect that there are plenty of bark beetles flying, and the trees around here have no defense against them, with this persistent drought. Everything is in motion and “whatever happens” is happening.

Sisikiyou County files suit re: owl “critical habitat”

I was just headed out, when this came in from Sisikiyou County Commissioner, Marcia Armstrong. My opinions of hoot owl varietals and “scientific” designations of so-called “critical habitat” are well known to people familiar with my opinions, and can probably be inferred by my choice of adjectives. Once this is posted, I will email the link back to Marcia so she can monitor (and maybe even participate) in any possible discussion on this. Also, so she can distribute to Brian and her own network of scientists, politicians, landowners, and resource managers.




Contact: Brian Morris, County Counsel March 22, 2013

(530) 842-8100 or

[email protected] FOR IMMEDIATE RELEASE

Yreka, CA – Siskiyou County has joined with the Carpenters Industrial Council, the American Forest Resource Council, and a number of forest products companies to file a lawsuit in Washington, D.C. challenging the latest critical habitat designation for the northern spotted owl.

The lawsuit seeks declaratory and injunctive relief to address violations of the Endangered Species Act, National Environmental Policy Act, and Administrative Procedure Act. The defendants are Interior Secretary Ken Salazar and U.S. Fish and Wildlife Service Director Daniel Ashe.

“With the new habitat designations, the Fish and Wildlife Service is doubling down on a strategy that has been failing for over two decades,” said Supervisor Marcia Armstrong. “We will not just stand by as forest health continues to decline, catastrophic fires increase, and our economy suffers the consequences of failed federal policies.”

“The County issued repeated warnings to the Fish and Wildlife Service about their flawed approach, but our request for appropriate coordination was denied,” said County Counsel Brian Morris. “This lawsuit should be a warning to other federal and state agencies that the Board of Supervisors will not tolerate violations of procedural and substantive laws when agency actions are hurting the people of Siskiyou County.”

Critical habitat for the owl was originally designated in 1992 and revised in 2008. A lawsuit successfully challenged the 2008 designations, and the court ordered the Fish and Wildlife Service to start over again. The third attempt was completed in November 2012.

The lawsuit alleges that the Fish and Wildlife Service failed to conduct proper analysis of economic impacts and consider detailed economic data submitted by a coalition of forest counties. The lawsuit also argues that the Fish and Wildlife Service failed to integrate measures to fight the invasion of the competing barred owl into its spotted owl strategy, and that the agency’s determinations are legally unsustainable because of numerous errors in science, modeling, and statistical analysis.

“The repeated failures of the Fish and Wildlife Service underline the need for reform of the Endangered Species Act and the laws governing management of our National Forests,” said Supervisor Michael Kobseff. “We call on Congress to ensure that the current session does not end without enactment of reforms that will put our forests back on a path to healthy management and restore economic opportunity in forest communities.”

The County is working actively on federal legislation to establish a pilot project on the Shasta-Trinity National Forest demonstrating innovative, effective, and economical forest management practices.

The Interior Department will have 30 days to respond to the lawsuit. The timeline to get to a decision from the federal district court will likely take most of a year.

Cows vs. Fish: $1.4 Million in Legal Fees Revisited


This post is a follow-up to the February 27, 2013 blog entry, “Feds oppose environmental group’s request for $1.4 million in legal fees”:

That post resulted in more than 60 responses — mostly by the Usual Suspects, and mostly on-topic. Much of the discussion focused on the disputed hours and rates by prevailing attorneys, as indicated by the title of the post. A request to Wyoming attorney Karen Budd-Falen for more information in this regard resulted in being sent thirteen summary files with supporting documentation:

The total of $1.4 million in requested fees is summarized in file 66-1_Attach.pdf, showing hourly breakdowns of costs. Although the requested fees appear relatively modest ($200 to $300/hour) — particularly when compared to the “enhanced” fees of northern California attorneys for similar actions, which can vary from $700 to $900/hour – Budd-Falen notes in a March 6, 2013 email:

“The legal answer is that the environmental groups are only supposed to be paid in proportion to their successful achievements in litigation.  That is a completely ambiguous legal requirement.  I have never seen a court or the Justice Department say that if group X prevails in 1 out of 5 causes of action, they get paid 1/5 of their fees and expenses — it is just a negotiated number.  Even if you didn’t have a Justice Department so free with our money, there is really no way to tell how an attorney spends his/her time.  The billing sheets you are supposed to provide will simply say “draft complaint.”  There is no way to determine how much of that drafting and research time was spent on losing arguments versus winning arguments.”

“I do think that some of the whining we are doing is having some impact and we are starting to see a little more scrutiny to fee requests.  So now the groups are getting trickier and writing fee requests that say things like “we can justify fees up to $800 per hour” and our fees are in the neighborhood of $XXXX.  It is a racquet and these groups are going to keep at it until we get the law changed.”

In an earlier email that day, she also notes:

“While the total payments may be “small” (at least compared to the National debt) look at the comparison between the Bush administration and the Obama administration.  For the same general number of payments made, Obama’s average payments are $209,000 per case – compared with $61,000 per case during the Bush years.”

I am personally more interested in the purpose and scientific basis for these claims, which seem best summarized by the plaintiff, Brent Fenty of the Oregon High Desert Museum (669_Declaration.pdf: pg. 2):

“ . . . our main objective in filing these cases against the U.S. Forest Service and National Marine Fisheries Service was to protect threatened steelhead trout and their critical stream and riparian habitat in the upper John Day River basin. This Court’s 2008 and 2009 preliminary injunction decisions protected some of the worst-hit areas on the Malheur National Forest, and made clear that the agencies must make steelhead protection their highest priority.”

 And by attorney Daniel Rohlf (672_Declaration.pdf: pg. 7):

“I believe that ONDA achieved a direct and substantial benefit to the steelhead; that ONDA achieved its stated interests in obtaining federal court decisions reducing ongoing damage by livestock in key migratory, spawning and rearing habitat for threatened steelhead; and that ONDA served the public interest by waging a successful, nearly decade-long battle against two federal agencies charged with protecting the steelhead but whose management of key stream and riparian habitat throughout the Malheur National Forest had ceased to properly take into account the needs of the steelhead and the requirements of the law.”

Two scientists were paid (or requested payment) for their Expert Testimony reports: $26,800 to Forest Hydrologist Robert Beschta (666-2_Attach.pdf: pg. 4), and $31,277 to Hydrologist Jonathan Rhodes (666-2_Attach.pdf: pp. 5-6), but the results of their findings do not seem to appear in the attachments, nor do there seem to be any direct quotes in the text (Note: yellow highlights are as they appeared on recipt from Budd-Falen’s office).

A cursory search of the literature only added more confusion: there appeared to be no baseline data available to determine whether Upper John Day steelhead runs were becoming greater or lesser over time; a large amount of adult fish mortality seemed to result from Indian and recreational fisheries; I could find nothing regarding steelhead mortality related to grazing; the “threatened” run was characterized as “completely wild”; surveys showed a significant portion of the runs to be hatchery-based, despite “no hatchery fish ever being released” in the John Day, etc. Of most importance, given the nature of the claims, was a seeming lack of documentation regarding any relationship between “critical habitat” and actual fish populations. Too, it seems as if the first “critical habitat” designations were made in 2005 (at least by BLM), which means legal action regarding this concern must have been filed about the same time as the designation was made.

 If anyone has access to the Beschta and Rhodes reports, I would be very interested in seeing them. Also, any statistically valid data regarding Upper John Day steelhead population trends, or statistical relationships between “critical habitat” and steelhead populations in the area. A good thing that seems to have come from this action (despite the apparently great legal expense), is the requirement to monitor future steelhead populations in the Upper John Day. How are these numbers going to be generated, and how are they being affected by changed cattle grazing patterns? Or is “taking” just a legal term in this regard?