Conservation Update
…by Janice Reid
Recently, we heard of a decision in a five-year-long legal challenge by Crag Law Center on behalf of our sister organizations KS Wild, Cascadia Wildlands, Oregon Wild, and Soda Mountain Wilderness Council brought against the Medford Bureau of Land Management (BLM). At issue was the way Medford BLM ignored their management plans and tried to justify their logging by insisting that it would reduce fire danger. Using a subjective interpretation of their 2016 Resource Management Plan (RMP) guidelines, they failed to interpret what the management plans intended. The following is a summation of the case and the rulings followed by the importance of this case to the Umpqua basin. You can read the full court ruling here:
“The Integrated Vegetation Management-Resilient Lands Program (IVM Program), the subject of Plaintiffs’ challenge, is a “programmatic” decision flowing from the 2016 RMP and authorizing a broad variety of work in the name of fire resilience.” The court noted that the project would occur in recently active spotted owl sites. Medford BLM chose not to analyze the impacts at the site level. “The Federal Land Management Act (FLPMA) requires BLM to ensure that all future resource management authorizations and site-specific actions conform with the governing RMP. …The Court finds BLM’s interpretation plainly inconsistent with the 2016 RMP.”
Late Successional Reserves (LSRs) protect habitat expressly so that other areas outside of LSRs are available for logging. “The 2016 RMP flows from that policy. It explicitly provides that LSRs be managed for two objectives: maintaining and promoting habitat. “In stands that are currently northern spotted owl (NSO) nesting roosting habitat,” habitat is to be maintained regardless of owl occupancy. “In stands that are not northern spotted owl nesting-roosting habitat,” the 20-year standard directs BLM to administer treatments to speed the development or improve the quality of NSO habitat and to limit such treatments “to those that do not preclude or delay by 20 years or more the development of habitat, as compared to development without treatment.”
The prescriptions in the LSRs of the project that Medford BLM proposed would result in opposite characteristics of nesting and roosting habitat for NSO and could result in long-term habitat destruction, thereby potentially violating the 2016 RMP. The court stated that Medford “BLM’s interpretation is plainly inconsistent with the 2016 RMP.” The BLM argued that they would not be able to undertake any forest health treatments in LSR other than speeding NSO habitat development, further arguing that if their actions are not intended to aid the development of habitat, its actions do not need to comply with the habitat development standard. The court stated, “That reasoning is circular.” Medford BLM’s interpretation of the standard is at odds with the plain language of the 2016 RMP which states that the standard applies in “all treatment stands that are not northern spotted owl nesting-roosting habitat.” The purpose of LSRs is habitat protection. That purpose is clearly and properly reflected in the management directions for LSRs in the 2016 RMP. BLM cannot ignore that simply because it wants to increase commercial logging … BLM is granted substantial deference in its interpretation; however, it is not entitled to such deference where the language is plain and unambiguous and its interpretation is plainly inconsistent with the provision at issue.…“The Court finds that BLM’s determination of compliance was arbitrary and capricious.” The court also indicated that the Medford BLM lacked transparency regarding its actions. “Allowing BLM to apply its interpretation of the 20-year standard across all lands managed under the 2016 RMP would severely undercut the ability of the RMP to protect and promote habitat decades into the future. Second, the style of tiering employed by BLM in this context effectively allows the agency to avoid completing any site-specific analysis under the guise of passing it off as already considered.” Failing to follow the RMP could trigger a FLMPA violation. “The Court may overturn an agency’s conclusion when it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
This case is significant because it shines a spotlight on the BLM’s subjective interpretation of the management plans, bending the language to suit their viewpoint and desire for more extractive projects at the expense of the environment and the future of our late successional reserves.
This case indirectly impacts the actions of the BLM in other areas of the state, including the Umpqua watershed, because the same language is contained in the other Resource Management plans for other districts. Subjective interpretation of the language of the 2016 RMP occurred within the Roseburg and Coos Bay BLM lands. As noted in previous articles in this newsletter, the Roseburg BLM’s interpretation of the language about the right of ways in LSRs is subjective. As the court determined in this case last month, the language of the RMP is plain. We reported in the June 2022 Conservation update in the newsletter.
We sent comments to Roseburg BLM that private companies utilizing the non-discretionary right of way are not entitled to remove the trees from the stand if the right of way traverses an LSR due to the language on page 65 in their RMP. BLM contends that the language does not apply to non-discretionary right-of-ways even though there is no qualification of the type of right-of-way in this section. It plainly says for “right of way permits” and does not mention any specific type of right of way. Therefore, it applies to all rights of way. BLM has cited a regulation that makes it mandatory for them to sell the trees to a private company that insists on constructing a road on public land. CFR 2812.5-1 states:
“An applicant will be required to pay to the Bureau of Land Management, in advance of the issuance of the permit, the full stumpage value as determined by the authorized officer of the estimated volume of all timber to be cut, removed, or destroyed, on O. and C. lands in the construction or operation of the road.”
While the private company retains the right to access their land, there is no implied “purchase” here. The private company cutting trees on BLM land is obligated to pay for the trees cut or destroyed as well as removed. The regulation states that all the trees the company impacts must be paid for, not purchased. According to the language in the RMP, when the trees are retained in LSR as directed by the plan, the landowner must still pay for those trees. The word “destroyed” clarifies that the trees do not have to be cut or removed to be subject to payment from the company.
This proposal is still on the table after over 2 years, as Roseburg Resources has refiled for the right of way. It is clear from the language of the RMP that even if the company does intend to construct the road through the owl core area, BLM must identify the trees that are older than 1850 birthdate and retain those on site. These trees and any others cut, destroyed, or removed must be paid for in advance. According to BLM, no such inventory was conducted. Violations of the management plans are occurring not just in the Medford District but also in the Roseburg District.
The Roseburg BLM has responded to the right of way with a standard letter of non-objection in December of 2021 and continues to “not object” to it even after 2 years and substantial policy changes have occurred (Re: Presidential Executive Order 14072).
Included in the response in December of 2021 from the BLM to the private timber company is a statement: “The BLM requests you to consider the following recommendations for this right-of-way: • Utilize wildlife recommendations in the attached report.” The attached report includes the statement from the BLM biologist: “The Biological Assessment indicates that there is disruption concern for both spotted owls and marbled murrelet through the breeding season and that modification of habitat through the roadbuilding would be detrimental.” The biologist’s recommendation “Therefore, the primary recommendation is to avoid adverse impacts to the spotted owl and marbled murrelet and their nesting habitat, by choosing an alternative route to avoid road construction that removes habitat and further fragments the northern spotted owl nest patch/core-use area and murrelet nesting habitat.”
Will the company abide by the request, and will the BLM abide by their management plans? More to come.
