Nelder Grove litigation

Court filings continue in 'emergency' dispute

Volume 3, Number 1 - Thursday, Aug. 8, 2024
Published every Monday and Thursday

Sierra National Forest posted this photo on Facebook on Aug. 30, 2022, with the caption: Fuels reduction work began in Nelder Grove Historic Area last week.  Multiple crews have been working hard to hand thin and pile hazardous fuels to create a buffer to protect Giant sequoias from wildfire. A lawsuit over the Forest Service’s work in the Nelder Grove is still in court. — Sierra National Forest via Facebook

Perspective

THIS EDITION of the Giant Sequoia News newsletter is the first of its third year. 

I’ve followed the tradition of magazines and newspapers in changing the “volume” annually. Volume 1, Number 1, was published on Aug. 8, 2022. Volume 2, Number 1, was published on Aug. 10, 2023. Initially, the newsletter was published weekly, but it’s been twice a week since February 2023, except for a few planned and unplanned breaks. 

As this new publishing year begins, I plan to publish twice weekly for 50 weeks with a two-week break over the holidays (Dec. 30 through Jan. 3). The week of Thanksgiving, I will only have a Monday edition.

Achieving this minor milestone — beginning a third year of publishing — would not be possible without readers. I assess the value of this effort in part by whether readership is increasing. I’m always sad to lose a subscriber but heartened when, typically, others join the list the same week. Although my subscriber list is small, and my paid subscriber list is even smaller, the stats provided by the Substack platform show that some issues are read by 5-10 times the number of subscribers who opened the email.

Thank you to those who subscribe, especially to those who pay and help defer some of my expenses, and a big thank you to those who share the newsletter with others!

Government and environmental groups make additional court filings in Nelder Grove lawsuit

I’ve reported previously about litigation filed by some environmental groups against the Forest Service related to its fuel reduction work in the Nelder Grove on Sierra National Forest.

As I reported last summer (HERE), work by the agency in the 1540-acre Nelder Grove is the focus of a lawsuit filed July 13, 2023, by Earth Island Institute, Sequoia ForestKeeper and the Sierra Club against the United States Forest Service and some of its officials (in their official capacity).

On June 6 (HERE), I provided an update on the litigation, Case # 1:23-cv-01045, in the Eastern District of California. At the time, District Judge Jennifer L. Thurston in Fresno said in a minute order that it is likely to be six months or more before recent motions in the matter would be resolved.

Since then, both the government and the environmental groups have made filings, which I’ve summarized below:

June 21, the government noted that the court has issued a minute order that there will be no hearing on the parties’ summary judgment motions, and the motions will be decided on the papers. The government noted that it believed it had satisfied the requirements of the National Environmental Policy Act (NEPA) in issuing a July 2022 Decision Memorandum that authorized emergency response actions to begin on Nelder Grove prior to the agency’s completion of its environmental analysis under NEPA. The government said the Forest Service complied with the National Forest Management Act in authorizing the emergency response actions. (An amended filing was made to correct a table of contents error).

July 15, the plaintiffs responded to the government’s motion for summary judgment. Statements in the response included:

• While the immediate dangers imposed by an actively burning wildfire would be an emergency, the risk of future wildfires and dangers they pose to Nelder Grove’s Giant Sequoias have been quite foreseeable since at least 2017, when the Railroad Fire burned a significant portion of the Grove and killed dozens of mature Giant Sequoias. Those obvious risks did not suddenly create an emergency in 2022. The fact that the Service waited until July of 2022 to take action in Nelder Grove cannot turn those actions into urgently needed emergency actions that can occur before the Service complies with otherwise mandatory procedures under NEPA.

• Even if the risks to the remaining mature Giant Sequoias in Nelder Grove did qualify as an emergency under Section 220.4(b), the “emergency actions” the Service is undertaking go far beyond what is necessary to immediately address the stated emergency and even include logging regenerating young Giant Sequoias. The Emergency Response Decision Memorandum signed by the Chief of the U.S. Forest Service on July 22, 2022 (the “Chief’s Memorandum”) explained that “the remaining unburned groves and unburned portions of burned groves are under severe threat to wildfire. Lighting strikes threaten the groves daily and immediate action is needed to remove fuels from around those trees to limit further mortality.” 

• Although the Service focused its initial true emergency response on removing fuels from around the mature Giant Sequoias in the unburned areas, they have illegally expanded their emergency response into the severely burned areas. There are no living mature Giant Sequoias to protect in the severely burned areas of Nelder Grove. There are numerous regenerating young Giant Sequoias in those severely burned areas, and the Service has even illegally expanded its emergency response to include logging some of the young Giant Sequoias, actions that would surely have drawn significantly (sic) public outcry if they had been publicly disclosed by the Service’s decision, press releases and scoping notice.

Aug.1, the government responded with a filing that included:

• Every major premise upon which Plaintiffs rely is wrong, starting with their overarching theory that the Forest Service is trying to “completely excuse” itself from complying with the National Environmental Policy Act.

• Plaintiffs’ definition of the term “emergency” is artificially narrow, and wrong.

• Plaintiffs’ singular focus on Nelder Grove, ignoring other groves and the regional emergency covered by the July 2022 Decision Memorandum is misplaced. Plaintiffs’ opinion that the Forest Service can do no more than is necessary to address the emergency in Nelder Grove is wrong.

• Plaintiffs’ interpretation of the emergency regulations to require the Forest Service to first identify a categorical exclusion before beginning emergency work is wrong.

• Finally, Plaintiffs are wrong that an erratum to an Environmental Impact Statement and a “policy letter” are part of the 1991 Forest Plan under NFMA. The court should grant summary judgment for the Forest Service and dismiss Plaintiffs’ claims.

Tiresome stuff, litigation. But I guess it goes with the territory.

Wildfire, water & weather update

The app WatchDuty shows there have been a number of wildfires in the Sierra Nevada that so far are very small or have increasing containment. Sequoia National Forest reported great progress on the 2024 SQF Lightning Fires as of mid-day yesterday, as follows: Trout Fire, 23,559 acres, 68% contained and Long Fire: 9,204 acres, 9 % contained. At the time there were 264 personnel on the fires.

SQF had an update on the nearby Borel Fire this morning: 

59,288 acres with 84% containment. The decrease in acreage was determined after an AR flight over the fire. An “AR flight” in the context of wildfire refers to aerial reconnaissance which is equipped with infrared cameras. The AR flight was able to provide accurate information on the size and shape of the fire, in addition it can detect hotspots and provide data on the fire’s intensity. On the northern side of the fire from Highway 178 to Kern River Canyon Road, crews worked on suppression repair. Some smoke was visible within the fire’s interior in the area. On the northeast/eastern sides of the fire, crews were able to hold the line, work on suppression repair and backhaul excess equipment and trash. On the southern side of the fire, suppression is still taking place on open line and suppression repair work along with backhauling unnecessary equipment and trash.

Today, firefighters will continue to hold the line where fire is still active and work towards gaining more containment. Crews on all sides of the fire will work on suppression repair, backhaul excess resources from all sides of the fire and collect trash. Critical infrastructure needs in the affected communities continue to be assessed and repaired to ensure the area is safe from not only fire damage, but all other hazards. A cooling trend begins today with temperatures a few degrees cooler than yesterday in the upper 90’s and low 100’s in the lower elevations around the fire and upper 80’s to low 90’s in the higher elevations. Winds will continue out of the west/northwest at 8-14 mph with winds in the late afternoon into the evening up to 26-28mph. Winds should calm around 9pm tonight.

Due to increased fire risk and strained resources, there have been increased restrictions on fires in many recreation areas—no campfires, smoking, shooting or even charcoal barbecues.

The largest wildfire in the state, the Park Fire in Northern California, is not in the Sierra Nevada. As of this morning, it was still active at 426,538 acres and 34% contained.

Heat in the San Joaquin Valley, heat in the desert, but relatively cooler weather in the Southern Sierra Nevada this week with no Red Flag Warnings or Fire Weather Warnings at this time (HERE). The best Sierra Nevada weather forecasts are at NWS Hanford, HERE, and NWS Sacramento, HERE. 

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