Save Upper Echo Lake

This you tube video provides a wonderful, bird's eye view of Lower and Upper Echo Lakes.  Among other things, it reinforces the indisputable fact -- set forth in the Forest Service's  Lake Tahoe Basin Multi-Jurisdictional Fuel Reduction and WildfirePrevention Strategy  -- that the lands adjacent to Upper Echo Lake are at low risk for wildfire as a consequence of the low density of forest at this high elevation. The premise for the Upper Echo Lake Hazardous Fuels Reduction Project is that those lands are at high risk for wildfire. Once that premise is falsified, both as a legal and practical matter, it becomes clear that the Forest Service acted improperly by pursuing the project.

More than 30 months after the Fish and Wildlife Service issued a proposed rule designating critical habitat for the endangered Sierra Nevada yellow-legged frog, the agency has yet to issue a final rule.  In the meantime, the Forest Service opposes designation of lands it holds in trust for the American people as critical habitat, even where they constitute habitat for the species.

A number of blog posts on this site address the failure of the Forest Service to respond to a FOIA request for a narrow set of e-mail communications made more than a year ago.  Although this Administration has committed to open government consistent with FOIA, its track record is checkered, like the previous Administration's.  The Forest Service's conduct reinforces the need for open government and checks and balances so that over-zealous bureaucrats can be held to account for their conduct.  Folks interested in open government might be interested in the FOIA blog .

Plaintiff Dennis Murphy is seeking leave to file a supplemental complaint to add new claims that the Forest Service's decision to implement just the first phase of the Upper Echo Lake Hazardous Fuels Reduction Project violates NEPA. Defendants moved to dismiss all plaintiff's existing claims as moot.  Their motion is based on their own action withdrawing the project authorization and the theory that federal agencies can violate the National Environmental Policy Act by failing to conduct mandated environmental review of a project, implement the project, then declare the project authorization withdrawn to avoid a judicial determination that they have violated federal law.  Dr. Murphy filed an opposition to the motion. Meanwhile, Defendants have littered the project area with slash piles, creating new fire risk. In some cases, the Forest Service's has created fuel ladders where they did not exist before. At the same time, the Forest Service has yet ...

More than 250 scientists signed a letter (pdf) opposing a bill passed by the U.S. House of Representatives ( H.R. 2647 ) that would expedite logging on public lands by allowing the Forest Service to avoid the environmental review requirements of the National Environmental Policy Act (NEPA). NEPA has often been referred to as the magna carta of U.S. environmental law. Phil Taylor of E&E reported on the letter and House bill on September 25 in E&E Daily.

One year ago today, Dr. Dennis Murphy filed a FOIA request with the Forest Service for e-mail sent by or received by the Forest Supervisor who approved the Upper Echo Lake Hazardous Fuels Reduction Project pertaining to the project and by the lead biologist with respect to the project. Shortly after receiving the request, the Forest Service improperly denied Dr. Murphy's request for a fee waiver. Following an appeal by Dr. Murphy, on January 6, 2015, the agency granted the fee waiver. More than three months later (and more than six months after the initial request was filed), on April 7, 2015, the Forest Service issued its "response" composed primarily of hundreds of pages of redacted (i.e., blacked out) documents . On April 9, 2015, Dr. Murphy once again filed an administrative appeal from the agency's unlawful decision to withhold documents. More than five months since the appeal was filed, the agency has yet to respond. This was not a burdensome request; the...

The NEPA Lab , a blog published by Pennsylvania State University  Professor  Jamison E. Colburn, features a story entitled Mission Impossible: When the Pressure to do Something Exceeds the Knowledge of How to do it Right . Professor Colburn states: "the Service and others have tended toward “fuels treatments” of various kinds by a wide acreage margin.  But the science behind this approach—whether it is mechanical thinning, understory collection and incineration, or plain old logging to create “fire breaks”—is much less certain than fire planners would have you believe." The story features the Upper Echo Lake Hazardous Fuels Reduction Project as a failed fuel reduction project that increased environmental risk.

In an  article  written by Scott Sonner, the AP described the decision of the U.S. Forest Service to withdraw the memo authorizing its Upper Echo Lake Hazardous Fuels Reduction Project.  The article was picked up in hundreds of news outlets nationally, such as the San Francisco Chronicle .

In an article written by Jack Barnwell, the Tahoe Daily Tribune described the decision of the U.S. Forest Service to withdraw the memo authorizing its Upper Echo Lake Hazardous Fuels Reduction Project.  The decision to halt the project comes at a time that politicians and agency officials prepare for the annual Lake Tahoe Summit .

In a one sentence memo dated July 20, 2015, the Forest Service withdrew its November 2012 decision to implement the Upper Echo Lake Hazardous Fuels Reduction Project. This marks an important milestone in the effort to address both the impacts of the Project and the agency mismanagement that led to its development in the first instance, including the effort to skirt required federal environmental review.

On July 13, 2015, Dennis Murphy submitted a request for correction under the Information Quality Act to the U.S. Forest Service. The request seeks correction of information in two documents generated in support of the Upper Echo Lake Hazardous Fuels Reduction Project: 1.   USDA Forest Service, Lake Tahoe Basin Management Unit of El Dorado County, CA, Decision Memo – Upper Echo Lakes Hazardous Fuels Reduction (November 15, 2012). 2.   United States Department of Agriculture-Forest Service Lake Tahoe Basin Management Unit, Biological Assessment/Biological Evaluation Terrestrial Species (April 23, 2012). The documents overstate the fire risk in the project area and understate the environmental impacts associated with implementation of the project on native species, wetlands, and water quality. The Information Quality Act (IQA) requires agencies to develop guidelines to assure a basic quality of information is disseminated.  The Office of Management and Budget (OMB)...

Here is a link to a story about the status of mountain yellow-legged frogs by Katie Vane, reinforcing the precarious status of the species and the need for conservation-minded management of those areas of the national forests that provide habitat for the frog.

As reported in Environment and Energy Daily (June 1, 2015 by Phil Taylor), Congress is considering a bill to streamline NEPA review of Forest Service projects and impede legal challenges to such projects.  The bill includes a legislative categorical exclusion from NEPA for certain Forest Service activities.  In addition, it would require groups that sue to block certain projects to post a bond to cover the government's anticipated legal costs, which the groups would forfeit if they are not successful. The difficulty with such streamlining is that it facilitates both legitimate wildfire risk reduction projects and illegitimate agency boondoggles.  Thus, the Forest Service is relying on an existing categorical exclusion to justify its Upper Echo Lake Hazardous Fuels Reduction Project.  That project is unnecessary to reduce the threat of wildfire and therefore fiscally imprudent, and it is also environmentally destructive. In any challenge to a Forest Service proje...

As already reported on this blog, the Forest Service responded to a FOIA request for records related to the Upper Echo Lake Hazardous Fuels Reduction Project by withholding large amounts of material the agency was obliged to disclose. One of the more egregious examples is an e-mail from Forest Service staff to Regional Water Quality Control Board staff displayed below. The agency invokes the attorney-client privilege for a communication on which there are no attorneys.  And it claims deliberative process for a communication not only outside the agency but to a state government employee acting in a regulatory capacity.  This is plainly contrary to the law.

To visitors hiking toward Desolation Valley Wilderness along the Pacific Crest Trail, the first signs of environmental damage caused by initial Forest Service activities under the Upper Echo Lake Hazardous Fuels Reduction Project are not dropped trees and scattered limbs. It is the inexplicable gaps in the shrubby understory of the small forest patches that punctuate the slopes above Lower Echo Lake. There in autumn of 2013 the Forest Service hacked and pulled up knee-high huckleberry oak and montane manzanita that form a near-continuous cover on otherwise exposed soils amidst glacially polished granite sheets and boulders. The intent apparently was to reduce continuous ground fuels and potential ladder fuels. The outcome was certainly very different. The scattered vegetation at the west end of Lower Echo Lake offers no possibility of wildfire; with less than a third of the landscape with any vegetation at all. No risk of fire bounding beyond a small area of ignition exists. B...

On April 7, 2015, the Forest Service responded to a FOIA request for records related to the Upper Echo Lake Hazardous Fuels Reduction Project.  The request was submitted to that agency more than 6 months earlier, on September 18, 2014.  An earlier post regarding the outstanding request is here .  The agency provided a few hundred pages of documents, and a very substantial number are similar to this: And this: This sort of response is contrary to the concept of open government that is the foundation for the Freedom of Information Act.

Dry chaparral piles in November 2013, just a month after cutting. They  remain in place, others are scattered 18 months later. Large shrub pile pulled from the base of two hundred-year-old Jeffery  pine, stacked to create a potential fuel ladder. Material remains in place  18 months later. Another view of the same damaged chaparral stand from May 2014 showing  a pile of flammable material where it cannot be safely burned. Huckleberry oak and lodgepole pine slash piled in wetland seep (May 2014). Chaparral slash piled on meadow in foreground. The material was dragged  from the middle ground in the photo, leaving soils fully exposed. In spring 2015, a pile of chaparral creating a localized fire hazard  where none previously existed.

The legacy of just two months of cutting and placement of slash piles around Upper Echo Lake by the Forest Service in 2013 is a scarred local ecosystem. This photograph taken in spring 2015, a historic dry period, provides just one example of the fact that the Forest Service placed cut material in wetlands through the affected project area.  Slash piles left behind by the agency are finding their way into stream courses and remnants of the piles can be expected to eventually make their way into Upper and Lower Echo Lake, degrading water quality. This photograph documents loose slash in a water course also in spring 2015.

On March 31, the United States District Court for the Eastern District of California issued an order denying the motion of the Forest Service to dismiss a lawsuit filed by Dr. Dennis Murphy challenging the legality of the Upper Echo Lake Hazardous Fuels Reduction Project.   The court rejected the Forest Service’s motion to dismiss in all respects.   While the agency argued that Dr. Murphy was required to voice his concerns regarding the Project through an  ad hoc  administrative appeals process and his failure to do so left him with no recourse to the judiciary, the court did not agree.   Likewise, the court rejected the agency’s argument that even if the Project implemented has environmental impacts that were not disclosed or analyzed up front, Dr. Murphy cannot challenge the Project once it is underway.

A number of news outlets have covered the recent announcement that Jeff Marsolais was named as the new forest supervisor for the Lake Tahoe Basin Management Unit .  For example, the Tahoe Daily Tribune printed a Q&A with the new supervisor.  What remains to be seen is whether Mr. Marsolais will perpetuate the status quo initiated by his predecessor or work to lead a more efficient and accountable agency.  Let's hope for the latter.  Both the public and agency staff would benefit from leadership in the Management Unit that makes fiscally responsible decisions informed by quality science in a transparent manner.

Nearly six months after the Forest Service received a simple FOIA request, the agency has yet to provide a single responsive record.  Meanwhile, according to this story , the executive branch evidently has mounted a campaign against a bill in Congress intended to improve government transparency.

The Forest Service has refused to disclose documents regarding the Upper Echo Lake Hazardous Fuels Reduction Project.  More than four months after Dr. Dennis Murphy filed a Freedom of Information Act (FOIA) request for e-mail regarding the Project in the possession of the agency's supervisor with oversight of the Project and lead biologist with respect to the Project, the agency has yet to turn over a single responsive record.  Instead, the agency attempted to fend off Dr. Murphy's inquiry by denying his request for fee waiver.  Dr. Murphy filed an administrative appeal of that decision, which the agency granted. As a consequence, Dr. Murphy has established he meets the agency's requirements for a fee waiver. After the agency granted Dr. Murphy's administrative appeal, it nonetheless failed to produce the responsive records, requesting that Dr. Murphy consider narrowing his request.  Though he agreed to narrow his request and in spite of the facts that the request ...