Save Upper Echo Lake

 Today was an important day for the United States, and we fared well. There is much work to do in Washington, D.C. and elsewhere to realize the hopes and dreams of the framers. But we are closer rather than farther as of January 20, 2021.

This past week the U.S. Forest Service marked dozens of trees at Upper Echo Lake. The agency explained that some permit holders requested that trees be marked for removal and agency personnel also marked other trees that pose hazards to the public. The agency has indicated it will not be removing the trees but permit holders should do so.

Claire Cudahy of the Tahoe Daily Tribune  reported that trout introductions played a key role in the decline of the Sierra Nevada yellow-legged frog. Recently progress has been made toward conservation of the species. "From 2013-2015 Knapp and his team conducted a series of translocations and frog reintroductions in the areas around the Upper and Lower Echo lakes; they recently received another three-year grant to continue the work this summer." Rather than deny the importance of the area to this endangered frog, the Forest Service should embrace it.

This image provides wonderful context to assess the Forest Service's ill-conceived Upper Echo Lake Hazardous Fuels Reduction Project. Notice how sparse the vegetation is at this elevation.  Certainly when one thinks about wildfire risk, this is not the image the mind conjures.

On the heels of a settlement agreement that signals the end of the Forest Service's plans to cut, pile, and burn vegetation around Upper Echo Lake south of Lake Tahoe, there are grim reminders of continuing agency mismanagement of forestry resources in the vicinity. First, prescribed burns in the El Dorado and Lake Tahoe National Forests contributed to poor air quality in the region, as reported here .  This led regulators to encourage Washoe County residents to stay indoors. Second, according to reporter Jason Hidalgo , the Little Valley Fire, which has destroyed dozens of homes and other buildings in Washoe Valley, may have been caused by prescribed burns in the area. Federal and state forestry agencies are staunch advocates for prescribed burns.  We wonder if there is empirical research to support their position.  At least one expert thinks otherwise as reported some time ago on the NEPA Lab blog .  Robert E. Keane in his book Wildland Fuel Fundamentals and ...

The United States District Court for the Eastern District of California issued a stipulated order after the Forest Service and Dr. Dennis Murphy filed a settlement agreement with the Court.  This marks the culmination of a number of years of effort to halt a misguided project.  We are indebted to those who supported the effort to protect the Echo Lakes.

This summer, Congress and the President enacted the FOIA Improvement Act.  The language of the Act is available here .  One article describing the Act by Josh Gerstein of Politico is here .  The Act includes a provision to amend the existing law creating a presumption of disclosure. While the Act has symbolic value, the federal agencies so routinely violated FOIA prior to passage of the FOIA Improvement Act that it remains to be seen whether transparency and responsiveness will improve.

Dennis Murphy and the United States Forest Service settled (pdf) their outstanding FOIA lawsuit with the agency agreeing to provide a response to Murphy's FOIA appeal and to pay Murphy $4500 in costs and fees.  The Forest Service since responded to the FOIA appeal releasing over 75 pages of records in their entirety that were previously redacted in whole or in part by the agency.  At the same time, the agency has redacted 261 pages in whole or in part, continuing to withhold information that could be released on guidelines set out by President Obama and Attorney General Holder.  The full FOIA response is here (pdf).

The recent decision of the federal district court in Sacramento to deny the Forest Service's motion to dismiss a challenge to the Upper Echo Lake Hazardous Fuels Reduction Project as moot was covered on the blog, NEPA Lab + .  It builds on past precedent that the federal government is likely to find problematic, barring agencies from skirting NEPA then declaring projects complete and seeking to moot potential challenges.  For the public, the precedent is an important victory.

By order dated February 1, 2016, the United States District Court for the Eastern District of California has denied a second effort by the Forest Service to dismiss the case filed by Dr. Dennis Murphy challenging the legality of the Upper Echo Lake Hazardous Fuels Reduction Project. The agency sought to dismiss the case as moot after issuing a two-sentence memo withdrawing the Project authorization.  We reported the motion here .  But the Forest Service never conducted adequate environmental review of the Project under the National Environmental Policy Act, and the partially implemented Project has actually increased local fire risk while also causing unanalyzed environmental degradation.

This week the U.S. House of Representatives passed the " FOIA Oversight and Implementation Act of 2015  (pdf)," a FOIA reform bill.  Last year both Houses passed FOIA reform bills, but the federal bureaucracy monkey-wrenched reform efforts. Reporter Ken Bogardus stated in E&E Daily (House approves FOIA reform bill, Jan. 12, 2016), "Though popular on Capitol Hill, FOIA reform often stalls out before becoming law after it runs into opposition from agency officials." President Obama and Attorney General Holder made strong written commitments (pdf) to open government and in favor of disclosure of information under FOIA early in the current Administration, but numerous executive departments apparently are failing to respond to FOIA requests and/or improperly withholding government records. There is no question that the government is routinely violating FOIA and that FOIA reform is a worthy idea, but it is an open question whether a policy window will open in 2...

Dennis Murphy filed a complaint (pdf) in federal district court today in response to the Forest Service's continuing disregard for its obligations under FOIA. Blog posts explaining the agency's illegal conduct can be found here and here . In addition to its violations of FOIA, the agency is also violating the Information Quality Act and its own guidelines for implementation of that Act by failing to respond to a request for correction filed by Dr. Murphy in July 2015. We describe the request here .

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 .