75% of Park Service FACA Committee Members Resign “In Protest”- Thinking About FACA Committees

Tony Knowles, former D governor of Alaska, member of National Park System Advisory Board

Here is an interesting story about the National Park Advisory FACA Committee from NBC News. Maybe Interior is different, but in USDA, FACA committee members are approved by political appointees, which is one of the problems with FACA committees, in my view. If you need to be considered OK by an administration of a different color, what are the chances that the exact same people will be considered OK by the administration of the opposite color? Did NBC news leave this part out of the story, or did it not fit in with the narrative “Trump people do uniquely awful things”, or did they just accept it at face value because the sources said so and details of how the government works are too complicated to go into? Notice the”news” story includes a tweet from the League of Conservation Voters. Makes you wonder “whose tweets count as news?” and how do reporters decide? But the story made me think some more about FACA committees in general and whether they could work better.

If you go to the National Park advisory board website here, you find out “Congress passed the Federal Advisory Committee Act (FACA) in 1972 to create an orderly procedure by which Federal agencies may seek advice and assistance from citizens. In general, any council, panel, conference, task force, or similar group utilized by NPS officials for the purpose of obtaining consensus advice or recommendations on issues or policies will likely fall within the purview of FACA.” And yet on the same page it has the Board expiring in 2007 (guess other agencies have trouble keeping up their websites also.) You can also see the folks appointed and their backgrounds, and the report the Board generated with the help of 120 outside folks.

I had the challenging experience of being the Designated Federal Official for the Forestry Research Advisory Committee, which required working with the Office of White House Liaison with USDA (at the time, don’t know how it is now). I’ve also been involved in recruiting folks for various USDA advisory committees.

To me, getting approval from unknown levels of unknown folks is really difficult and keeps these groups from being as effective as they could be. And which ones really accomplish much? Do more focused ones (like the Black Hills FACA committee) do better than the broader, national ones?

The Roadless FACA committee did stuff (at least those of us working on the state Roadless Rules had to pay attention), I am not so sure about the Ag Biotech FACA committee USDA used to have. What has the planning rule FACA committee done?

Should the FS have a national FACA committee?

When the State of Colorado worked on the Colorado Roadless petition, I believe it was Josh Penry’s (state legislator and wonk extraordinaire) idea to have the taskforce who worked on it composed of (1) some people selected by individual parties, (2) some people both parties could agree on. Maybe in this hyperpartisanized era we seem to be in, we could somehow engineer the partisan-ness out of advisory committees (Congress picks them? or would that be against the Constitution?.but if they are only advisory? How about Governors?).

I think it would also help if some outside groups (say, a cooperative effort of schools of Public Administration) regularly (10 years) reviewed each FACA committee according to some criteria of utility, and made suggestions for improving its value to the government. These could then be send out for public comment and discussion, including among thoughtful blogging communities like ourselves. And of course, ways for streamlining the process. But perhaps now that it is so easy to get people’s opinions, we could dream up another way to do what advisory committees do by involving a broader range of people in some more structured and online process. What are your ideas?

Dr. Martin Luther King Jr. on Conflict

Sure, Dr. King was concerned about the great issues of the day, war and peace and civil rights. But some of the things he said about peace also relate to environmental conflicts. Things to think about.

(This is a repost from 2011)
In honor of our holiday honoring Dr. King, I selected some quotes that may be worthy of our consideration with regard to our daily “environmental conflict” lives.

We will never have peace in the world until men everywhere recognize that ends are not cut off from means, because the means represent the ideal in the making, and the end in process. Ultimately, you can’t reach good ends through evil means, because the means represent the seed and the end represents the tree.

Peace is not merely a distant goal that we seek, but a means by which we arrive at that goal.

Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.

We must accept finite disappointment, but never lose infinite hope.

We must learn to live together as brothers or perish together as fools.

Thank you, Dr. King.

Reducing Mountain Bike Access on National Forests: How Widespread?

Photo thanks to Bitterroot Backcountry Cyclists

I’ve been researching access issues related to National Forests for outdoor recreation and other personal uses (think berry picking, or firewood cutting). In my efforts to give examples of the Forest Service reducing access, I found this piece by John Fisch in 2016.

Since I know many Montanans read and contribute to this blog, I’m especially interested in your opinions of this piece.

Anti-cycling forces have long used lobbying clout and legal action to close longstanding cycling routes to cyclists. Nowhere have they been as successful in doing so as they have in Montana, which has seen the loss of hundreds of miles of outstanding singletrack access to cyclists in recent years. In a state which already has Wilderness area totaling more than 3.4 million acres, including a single Wilderness complex as large as the entire state of Delaware, anti-cycling lobbies have teamed with sympathetic judges to remove quiet, human-powered, low-impact mountain biking from vast tracts of non-Wilderness land as well. The trend has carried over into recent United States Forest Service (USFS) travel plans governing non-Wilderness lands. The most recent losses come courtesy of the Bitterroot National Forest Travel Plan. The Bitterroot National Forest, which is already comprised of nearly 50% Wilderness, increases mechanized restriction to an additional 200,000 acres, all of which was previously accessible to motorized and mechanized travel.

Now, a consortium of affected user groups has sought to challenge this trend in court by bringing suit against the USFS for their “arbitrary and capricious decision.” Not just a mountain bike issue, the suit is brought forth on behalf of seven recreation groups with total membership in excess of 13,000 individuals, including the Bitterroot Ridge Runners Snowmobile Club; Ravalli County Off-road User Association; Bitterroot Backcountry Cyclists; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; Citizens for Balanced Use; and Backcountry Sled Patriots. IMBA opposed the decision and coauthored a letter of objection to the USFS, but has not chosen to be a party to the recently filed suit.

Fisch’s critiques of the decision are found later in the piece. I don’t really want to talk about the Bikes in Wilderness controversy here, but I’m interested in what you all know about this and other FS decisions (around the country) that have reduced mountain bike access.

Three Strikes

Consensual sex between co-workers, regardless of their relative power positions, is not harassment nor employee misconduct under federal law and workplace rules. Perhaps the Forest Service should regulate its employees’ consensual sexual relations, but no rules do so now. The status quo is that only harassing, i.e., unwelcome, actions of a sexual nature are barred; consensual sex is not.

This matters when it came to the retired regional forester’s view of what should have happened in regard to Tooke’s consensual affair ten years ago. According to the RF (willieboat007), Tooke’s boss, the forest supervisor, should have “report[ed] this type of Misconduct to Regional Forester,” i.e., herself. She believes that “consent didn’t matter, the Forest Service doesn’t condone this type of conduct.” In fact, the Forest Service is silent when it comes to consensual sex, barring only harassing, “unwelcome” sex. Strike one.

According to the RF, having determined that “misconduct” occurred, an “investigation should have taken place to determine the facts.” Government is allowed to investigate only alleged wrongdoing. Government is not allowed to investigate in the absence of a credible allegation that a law or rule has been violated. In particular, government is not allowed to investigate an employee’s private, consensual sexual affairs. Doing so violates the Fourth Amendment’s right to privacy. If Tooke’s lover had said their affair was “unwelcome,” that fact would justify an investigation (USDA employee relations manual calls for misconduct investigation of “sexual harassment”). But, simply reporting the existence of an affair is insufficient to establish a probability of misconduct. Strike two.

According to the RF, had the investigation revealed consensual sex between Tooke and the “young lady,” the RF would have issued a “letter of warning, letter of reprimand with or without time off and/or removal from the supervisor position, or letter of termination.” In other words, she would have punished Tooke for something that broke no law or rule, based on an investigation that invaded Tooke’s privacy. Strike three.

Maybe the times “they are a changing,” as some have commented on this blog. But, until the law changes, too, government agencies and their managers are required to follow the law as written, not as they wished it were. There’s a reason Tooke received only a “verbal reprimand,” i.e., no disciplinary action at all. He didn’t break any rules.

Litigation Weekly – January 12, 2018

Litigation Weekly Jan 12

A Freedom of Information Act case.  Documents created by contractors in conjunction with their preparation of an EIS for the Wolf Creek Land Exchange on the Rio Grande National Forest, but never provided to the Forest Service, were not “agency records” subject to release under FOIA.  (10th Cir.)

(New case.)  Reauthorization of livestock grazing would allegedly “impair the viability and recovery” of the federally threatened Spalding’s catchfly in the Hells Canyon National Recreation Area on the Wallowa-Whitman National Forest.  (D. Or.)

(Notice of intent to sue under the Endangered Species Act.)  Earthen berms used to close roads in the Pilgrim Project on the Kootenai National Forest fail to effectively prevent motorized access to protect grizzly bears as required by the forest plan’s access requirements, which results in unauthorized take of a listed species.

The Migratory Bird Treaty Act allows the U. S. Fish and Wildlife Service to kill barred owls (protected as migratory birds) to determine whether that practice would benefit spotted owls listed under ESA.  (9th Cir.)

Plaintiffs did not have standing to sue USDA Wildlife Services for killing wolves in Idaho because a court decision would not stop the State from using other means to kill the wolves.

 

WSJ: “Are foundations running state energy policy without transparency?”

This Wall Street Journal article ($) adds a knotty twist to recent greenhouse gas proposals in Washington State. The first article is disturbing, regardless of the aims of the parties involved. Two other recent articles show how forest management (though not USFS lands, I think, at least directly) comes into play….

Climate of Unaccountability
Are foundations running state energy policy without transparency?

“An environmental nonprofit, the World Resources Institute, actually hired Washington’s state government as a contractor last July.

“Under this remarkable arrangement, the state agreed to perform a “scope of work” for the nonprofit that includes “activities and deliverables” to advance a green agenda. The special-interest tail is officially wagging the democratic dog, given that the contract provides the job framework for Mr. Inslee’s senior policy adviser for climate and sustainability, Reed Schuler.

“In other words, he holds an influential policy position. And it’s funded through a grant from the World Resources Institute, which reimburses Washington for Mr. Schuler’s salary, benefits and expenses. Under its contract, Washington State sends progress reports alongside its $33,210 quarterly invoices to the nonprofit.

“Tara Lee, the Governor’s spokeswoman, says Mr. Schuler is “a Washington state employee with the same scope of work, review process and accountability as any other state employee. The only difference is the funding source.” She adds the World Resources Institute’s largesse amounts to “general support for expanding the Inslee Administration’s work to combat climate exchange,” but that “they do not decide or dictate the details of this work, nor do they have input on any employee’s work plan.” And she says such arrangements are “not unusual.” “

The only difference is the funding source? The WSJ notes that, “Substitute the Koch brothers for the World Resources Institute, and the outrage would be predictable.”

Dots to connect:

Seattle Times, Jan. 9: “Gov. Jay Inslee Tuesday urged Washington lawmakers to embrace his ambitious plan to tax fossil-fuel emissions in Washington state.”

“Inslee’s proposal would levy a $20-a-ton price on carbon emissions, said Reed Schuler, an Inslee policy adviser. That price would rise over time.

“The billions of dollars raised would support clean-energy projects, work to improve floodwater management and reduce risks of wildfires, and assistance to offset the tax’s impact on low-income communities.

“The state would start collecting the revenue in the 2020 budget year, with $726 million generated that year. The tax would raise a total of $3.3 billion over four years.

On Jan. 5, also in the Times:
Washington state lands commissioner urges legislators to target carbon pollution

“That could put her at odds with fellow Democrat Gov. Jay Inslee, who next week is expected to unveil a carbon tax or fee that could be used partially to replenish a state reserve account he would like to tap to meet a state Supreme Court mandate on paying for public-schools improvements. Franz’s proposal wouldn’t allow carbon money to be used that way.”

“Smart carbon policy would focus on several areas, including reductions in wildfire danger and improving forest health, she said. The department and Legislature have committed to treating 1 million acres of forest with thinning and prescribed burning over the next 20 years.”

Study blames pot farms for poisoning spotted owls

Researchers from the University of California, Davis, and the California Academy of Sciences tested 10 northern spotted owls found dead in the region. Seven of the owls tested positive for rat poison, used by pot farmers to keep rodents away from their irrigation systems and crops.”

“California officials argue that legalization will allow them to increase oversight and regulation of cannabis farms in fragile forests.”  Is there an opportunity here for California to work with Attorney General Sessions on federal lands since they have a shared interest?  Could the revived “war on drugs” lead to more money for the Forest Service?  (This is slightly tongue-in-cheek, but …)

(Another opportunity … for those cut-over private timberlands to improve their cashflow?  Not that this would be any better for the spotted owls, though rat poison would also work on barred owls attracted to the clearcuts.)

Chetco Bar Fire salvage – agreement?

“The U.S. Forest Service is planning on salvage logging later this year in about 8 percent of its acres burned in last year’s 191,197-acre Chetco Bar fire in Curry County, a move timber advocates welcomed and one conservation group called “something we can live with.””

George Sexton, conservation director for the Ashland-based Klamath-Siskiyou Wildlands Center, said a sound plan to get sellable timber from the fire would be to continue focusing on commercial logging of hazard trees as well as previously logged plantations within the study area.

The forest also should add fuels-reduction timber sales immediately around communities to ensure public safety in these areas eyed for salvage, Sexton said.

“I could see that as a project that sails through pretty quickly and gets out a decent amount of volume,” Sexton said. “That’s about the best they can do and I think it will produce a fair amount of volume.

The Southern Oregon Timber Industries Association said:  “Getting some rather than not getting any out,” “That is what we’re hoping for.”

The Ends Don’t Justify the Means

Sex in the workplace is a risky proposition at best. Between employees with different status positions, sexual relations are even less wise. When unwelcome or coerced, workplace sex is also illegal. While there’s room to debate whether Tooke acted illegally or broke workplace rules (I don’t think he did) by having consensual sex with a subordinate and supporting her professional advancement, there’s no disagreement that doing so showed very poor judgment. Because Tooke hasn’t been Chief long enough to know whether he’d be missed, I’m ambivalent about his continued tenure.

I’m more concerned with the collateral damage the retired Southern regional forester has done to the government’s confidential system for resolving sexual harassment and other employee-related conflicts and complaints. Ten years ago, the regional forester was Tooke’s superior, as far above him as he was above the employee he was sleeping with. She learned the facts of the Tooke affair, including the disciplinary action taken (a verbal reprimand — not good enough in her view) in the course of her official duties. The fact that Tooke received a reprimand at all is a confidential personnel matter. The fact that the Forest Service investigated Tooke’s sexual activities is a confidential personnel matter. Personnel information of this type is protected by law from disclosure. Whether retired or not, the regional forester had no right to disclose this confidential information to a U.S. Senator. That she could face criminal prosecution or civil damages for doing so is her brief, not mine.

It’s not just Tooke who has been harmed by the regional forester’s zeal to punish a Forest Service bad boy. The “young lady” she expresses concern for has had her privacy violated, too. The “young lady” did not ask to be a pawn in the regional forester’s #metoo tell-all. The “young lady” did not seek to out her former lover, nor did she claim harassment or harm. The government, and its agents (whether retired or not), are barred statutorily and constitutionally (4th Amendment) from investigating her intimate sexual relations or disclosing those facts to a politician or news media.

In her zeal to get Tooke, the regional forester has damaged the cause she claims to believe in. She has impeached the credibility of the Forest Service’s solemn promise that every employee’s personal and confidential information will remain secret — not spread all over tabloid pages, the halls of Congress, or this blog.

I await willieboat007’s response.

Interior: “biggest reorganization in its history”

January 10 Washington Post story: “Interior plans to move thousands of workers in the biggest reorganization in its history.” In contrast to the OneUSDA initiative, this move would be consequential. The plan may require approval from Congress.

“The proposal would divide the United States into 13 regions and centralize authority for different parts of Interior within those boundaries. The regions would be defined by watersheds and geographic basins, rather than individual states and the current boundaries that now guide Interior’s operations. This new structure would be accompanied by a dramatic shift in location of the headquarters of major bureaus within Interior, such as the Bureau of Land Management and the Bureau of Reclamation.”

“If you look at the way we’re presently organized, all the bureaus under Interior have different regions . . . and are not aligned geographically,” Zinke said. For example, a single stream with trout and salmon can fall under the view of five separate agencies, one for each fish, another for a dam downstream and yet another to manage the water, and each generate reports that often conflict.”