Local plans for federal lands – the latest

This is a continuation of the “sagebrush rebellion” in the form of local government plans that purport to exert local control over federal land management.  They are being peddled to rural counties by Karen Budd-Falen, an attorney with a history of promoting private property rights (who some expect to be the new director of the BLM).  Since she certainly knows what she is talking about, she must also know that there is no legal basis for some of the expectations she is generating.  It’s just another way of stirring up local sentiment against federal land management.

A new local plan was just adopted in Oregon:

Earlier this month, Crook County leaders passed a plan designed to give county residents more say in how local public lands are managed by the federal government. However, discussions over how the plan will be implemented and what it will mean for the county’s oft-contentious relationship with its local public land managers are just getting started.

In addition to articulating county priorities for how federal land should be managed with regard to mining, agriculture and recreation, the plan states that the county expects state and federal agencies to meet with county officials on an ongoing basis.

Still, Michael Blumm, professor of law at Lewis & Clark College in Portland, said federal agencies don’t have any obligation to follow the county priorities set out in the plan, which range from mandating no reduction to grazing allotments on federal land, to ensuring that roads providing access to public lands stay open year-round.  “It’s a political move,” he said. “It’s not legally enforceable.”

And another is being discussed in Montana:

A controversial land-use attorney drew more than 100 protesters and as many supporters to Hamilton Middle School Saturday, but the topic of her talk with county residents was interpreted differently by people attending the event.

Budd-Falen’s talk centered around having a more detailed county land-use plan that would be used to strengthen its own management desires carried out by federal agencies, including the Forest Service. She said that federal policymakers in Washington, D.C., were out of touch, and local governments could help guide more micro-level policies.

While Budd-Falen never spoke about public land transfer, state Sen. Jennifer Fielder, R-Thompson Falls, gave a presentation about her efforts to support federal land transfer to states. 

Actually Ravalli County has already has a “natural resource use plan” it developed in 2012, and Commissioners changed their minds about asking Budd-Fallon to speak about adding “teeth” to it (she was invited instead by a local state representative).  Maybe their experience with that plan has helped them understand that its greatest value is probably in helping them articulate their interests rather than as something to beat up the Forest Service with.

Litigation Weekly November 17

Litigation Weekly Nov 17

Temporary restraining order denied for the North and South Pioneer projects on the Boise N. F. approved under an emergency situation determination, and involving bull trout, Canada lynx and forest plan soil condition standards.  (D. Idaho)  (previous summary 10/6 here)

The lawsuit involves publication of over-snow vehicle use maps on the Bridger-Teton N. F., and an amended complaint adds claims regarding failure to consult under ESA.  (D. Idaho) (previous summaries here and 9/1 and 9/15 here)

Environmental plaintiffs claim a violation of section 7(a)(1) of ESA, which requires that agencies carry out programs to conserve listed species, as applied to the Rosemont Copper Project on the Coronado N. F. (previous summaries on this project 9/29 here and 8/11 here and discussion here)

Chief Tooke’s Five National Priorities

Chief Tony Tooke

Here’s a link:

Five Priorities for Our Work

These five national priorities do three things: They give urgency and focus to critical needs; help foster the work environment we want for our employees; and set expectations for the manner in which we accomplish our work with citizens, partners, volunteers, and each other.

1. Uplifting and empowering our employees through a respectful, safe working environment.

I have enormous respect and admiration for the work every employee does. I am committed to ensuring our work environment is safe, rewarding, respectful, free of harassment, and resilient—that every one of you works in an environment where you are recognized and valued for your contributions. I want every employee to be empowered to continuously improve our work.

2. Being good neighbors and providing excellent customer service.

We will work with efficiency and integrity with a focus on the people we serve. I envision a broad, diverse coalition for conservation, working across boundaries and using all authorities available to us. We have a backlog of special use permits, range allotment work and deferred maintenance and other needs to address. To increase customer service, we must understand customer requirements, expand our use of best practices, apply innovative tools, and address barriers that get in the way of doing good work. Each and every visitor, forest or grassland user, contractor, partner, cooperator, permittee, volunteer, and citizen deserves our very best service.

3. Promoting shared stewardship by increasing partnerships and volunteerism.

We can’t do this alone and only on National Forest System lands. It takes others to help us make a difference on the whole landscape. We will work with all citizens—from rural and urban communities—as we pursue the work in front of us. Strengthening and expanding partner and volunteer programs around shared values is critical for a sustainable future.

4. Improving the condition of forests and grasslands.

About 80 million acres of the National Forest System are at risk from insect disease and wildfire. About one-third of these lands are at very high risk. Drinking water, homes, communities, wildlife habitat, historic places, sacred sites, recreation opportunities, and scenic vistas are among many of the values at risk of loss. Having sustainable, healthy, resilient forests and grasslands in the future depends on our ability to increase work on the ground and get increased outcomes. We will use all management tools and authorities available to us to improve the condition of our forests and rangelands. Improving the National Environmental Policy Act (NEPA) environmental analysis and decision-making processes will help us increase our capacity and ability to improve the condition of forests and rangelands. This work will also restore ecosystem function, deliver dependable energy, provide jobs and economic benefits for rural communities, and be responsive to the American taxpayer.

5. Enhancing recreation opportunities, improving access, and sustaining infrastructure.

Most Americans experience the national forests and grasslands through recreation activities. Although these lands offer some of the most valued outdoor recreation settings in this country, the settings and visitor experiences are increasingly at risk. Deteriorating recreation facilities and roads, eroding trails, and increasing user conflicts pose numerous challenges and a decline in the quality of the visitor experience. Currently, we can only maintain to standard half of our roads, trails, facilities, and other components of our infrastructure. Access to the National Forest System is more limited. We will take steps to address these challenges and create more enhanced, sustainable recreation opportunities, access, and infrastructure to better meet the needs of visitors, citizens, and users.

NEPA environmental analysis and decision-making improvements can help us achieve goals and objectives for enhanced recreation, improved access, and a more sustainable infrastructure.

The Chief also asks:

My questions for you are: What do you see standing in your way? What are you experiencing that we can collectively learn from?

I’d be interested in how folks on the blog might answer this question, just substitute “they” for “we” if you’re not an employee.

Friday Feel-Good Story: Glenn Ryan and the Rocky Mountain Packstring

Here’s a human interest/ Forest Service history story for Friday. It’s about employee Glenn Ryan and the Region 2 Packstring, from the Colorado Springs Gazette.

SHAWNEE – In the late 1960s, freshly removed from college for what he says were false accusations of “mouthing off,” Glenn Ryan did not go home. He hit the road and slept where he could, under trees or in chicken coops.

“Spent about three years being a bum,” he says, “which was actually training for this job.”

Now he’s spent 13 years living in Colorado forests, working as an Old West packer, leading a string of mules that make up one of the last two hooved trains across the U.S. Forest Service.

“If it involves getting dirty, bloody and blistered, then we’ll work with ya,” says Ryan, 67, a Forest Service employee who rides horseback while commanding the Rocky Mountain Specialty Pack String.

The Rocky Mountain Field Institute, a Colorado Springs nonprofit, has called upon Ryan’s string yearly to deliver thousands of pounds of equipment to a base camp deep in the wilderness surrounding Kit Carson Peak.

Other frequent requests come from the Colorado Fourteeners Initiative, which also employs trail builders on the state’s highest mountains and counts on the mules to move heavy necessities such as tools and stoves.

“The amount of work and the type of work he does is just mind-blowing,” says Ryan’s boss, Brian Banks, head of the South Platte Ranger District. “There really are very few professions left in the world like that, and his is not only one of the most unique positions, but also one of the most dangerous. It’s one of the most difficult positions in the Forest Service.”

Ryan spends summer days driving a trailer around the state and beyond; missions are also in Wyoming’s Medicine Bow-Routt National Forest, South Dakota’s Black Hills and Nebraska’s grasslands. Often his team of 11 mules starts before sunrise and finishes after sunset, performing as their ancestors did.

Here’s the link to the packstring site itself.

Forest Service Litigation-Behind the Scenes III: Bringing Knitting to a Knife Fight?

Long time readers are familiar with this post from 2011 which links to an interview with Kieran Suckling of the Center for Biological Diversity. I have appreciated his directness and honesty about what the Center’s lawsuits are really about. The interview was by Ray Ring of the High Country News, and Gina is a friend of his who is a marriage counselor.

“(Lawsuits) are one tool in a larger campaign, but we use lawsuits to help shift the balance of power from industry and government agencies, toward protecting endangered species,” Suckling told HCN in 2009. “By obtaining an injunction to shut down logging or prevent the filling of a dam … we are in the position of being able to powerfully negotiate the terms. …”
Suckling’s group often wins in court. But instead of helping various parties come to an agreement, as Gina does, Suckling wants to steamroll opponents: “New species listings and new bad press take a terrible toll on agency morale. When we stop the same timber sale three or four times running, the timber planners … feel like their careers are being mocked and destroyed — and they are. So they become much more willing to play by our rules. … Psychological warfare is a very underappreciated aspect of environmental campaigning.”

Of course, “psychological warfare” is too strong a term, but Mr. Suckling’s natural public language seems to be Hyperbolic. In my language, it would be.. “unnecessarily unpleasant experiences” and perhaps sometimes a “hostile work environment.” But let’s check in with the BBER study..

Other ripple effects mentioned by the FS and FWS personnel involved with the SBR case included reduced morale and feelings of frustration among personnel involved from repeatedly having the quality, completeness, and/or validity of their work called into question by litigants, by the press when these cases make it into the news, and by their professional peers and community neighbors.”

What I remember being frustrating about this was the feeling of bringing knitting to a knife fight. We were carefully trained to be collaborative and respectful of other opinions, and yet working in an area in which other people were disrespectful and snarky. One of my employees quit because a certain group she was dealing with were so nasty to her. For me, it wasn’t so much the part between us and the appellants/plaintiffs (although that does wear on you, others can be snarky and inaccurate but we have to be respectful and accurate), but the part about what gets to the neighbors and in the press. Note that in this case, it’s not just the FS but the FWS folks involved. It can feel like being beaten over and over again, but being unable to fight back. It’s not a good feeling.

The reasons I’ve heard to not reply to inaccurate statements included: 1. if we tell our story/ attempt to correct what is stated, it will sound defensive. 2. It’s in litigation, we can’t tell our story, the cone of silence has descended. I’d be interested in other reasons that folks have heard. The feeling I got is something along the lines of “it’s a contentious world but we can’t get involved, it will only make it worse.” Solution-wise, we could imagine an “Adopt-a-Project” Program in which we get folks (perhaps retirees?), train them to “fight back” and give them the appropriate tools. This could be scary for the Agency, because of losing control, but it seems to me that you need to balance someone “assuming the best” with folks who are “assuming and promulgating” the worst if the public is to get an accurate view of what is happening on their National Forests. Other ideas to help those on the front lines?

Forest Service Litigation-Behind the Scenes II: Should Secretary of Agriculture Adopt EPA Transparency Guidelines?

It turns out that other folks have noticed the problem of lack of transparency in government settlements, and also the idea that other people should have time to weigh in to these settlements. These include more powerful entities (compared to FS employees and retirees) like States, specifically in dealing with EPA settlements and the problem of “Sue and Settle”. I definitely think that the transparency approach would be worth considering for Forest Service cases. It would help take care of the previously identified problems of “who is in the room”, “good solutions may not have been on the table” and “understanding broader impacts of a settlement.” Here’s the link to the directive:

To promote transparency and public participation in the consent decree and settlement agreement process involving lawsuits against EPA, the Agency shall follow the procedures set forth below:

(there are more but the below are the key ones for the FS)

8. EPA shall post online for review and comment by the public any proposed consent decree lodged in federal court or draft settlement agreement to resolve claims against the Agency. EPA shall also publish a notice of the lodging of the proposed consent decree or draft settlement agreement in the Federal Register.

a. When posting the proposed consent decree or draft settlement agreement on EPA’s website, the Agency shall explain: (1) the statutory basis for the proposed consent decree or draft settlement agreement; (2) the terms of the proposed consent decree or draft settlement agreement, including any award of attorney’s fees or costs and the basis for such an award; and (3) where applicable, the Agency’s plans to meet deadlines in the proposed consent decree or draft settlement agreement, including the identification of necessary milestones and a demonstration that the Agency has afforded sufficient time to modify its proposed rule if necessary, provide notice and comment on the modified proposal, and conduct meaningful Agency consideration of the comments received on the modified proposal.

b. EPA shall provide a public comment period of at least thirty days, unless a different period of time is required by law.

c. EPA may hold a public hearing on whether to enter into the proposed consent decree or draft settlement agreement.

d. Based on the timely public comments received, EPA may seek to withdraw, modify, or proceed with the proposed consent decree or draft settlement agreement. If the terms of a consent decree or draft settlement agreement are modified, EPA shall follow the process set forth above.

9. Where appropriate, I reserve the right to exercise my discretion and permit EPA to deviate from the procedures set forth in this directive. In no circumstance, however, will I permit the agency to violate its statutory authority or to upset the constitutional separation of powers.

10. This directive is intended to improve the internal management of EPA and does not create a right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, EPA, its officers or employees, or any other person.

What do you think? Would you sign this or tweak it if you were the Secretary? I haven’t seen too much in the press that is against this idea substantively.

Forest Service Litigation-Behind the Scenes: I. Settlements, Policy and Public Comment

In this series of posts, I’m going to talk about what it was like for me to be a Forest Service employee involved in litigation, and how that experience leads me to this claim: that for many, if not most, projects and land management decisions, making decisions via the court system is suboptimal.

I’m not saying litigation of federal decisions is a bad thing. Separation of powers is something I think is a good idea. I don’t think people who do it to affect policies are bad people. People all have policy goals and use different tools to achieve them. If you’re a politician you use legislation, if a lawyer you use law, if a scientist you use science. I just don’t think the system works as well as it could for land management decisions.

A few weeks ago, I was in Montana giving a talk to a group of folks interested in collaborating with the Forest Service and veered onto the topic of “how FS litigation works.” Some were surprised and a bit horrified/depressed when I said “during settlement, often no one is in the room (or on the phone) who has read the public comment.” They didn’t realize that after the Forest Service goes through one or more public comment processes, using citizens’ time and money as well as taxpayers’, when the deal is being done, no one in the room or on the phone may have actually seen it. I think that this is important because I think that knowing what people think (even if they disagree, and of course they do) is key to making good federal decisions. At least in a “response to comments,” people get a chance to understand the agency’s rationale for not picking their approach. Not that “it wasn’t considered because no one making the decision was aware of it.”

Sometimes these settlements set precedents that are bad policy (in mine and others’ view). They settled the particular case, for example, but the next time a similar project came through, our attorneys said “you have to do this, or can’t do that, because the case law says so.” Not because a statute (voted on by elected representatives) or regulations (agreed to by the executive branch, selected by the voted for President, and including required public comment), said so. Of course, DOJ is also part of the executive branch, but their role in establishing policy, instead of the involved agencies, is contested.

But don’t believe me, I was just a humble Planning Director, with litigation being one of our staff’s multiple and variegated responsibilities. Here is what Chief Jack Ward Thomas had to say:
“In my opinion, and those of my legal advisers, the proposed agreement contained three real clunkers to which we strenuously objected. The Department of Justice is, in my opinion, almost always too eager to settle legal actions, particularly when plaintiffs are of the environmental persuasion. It was a shock to my system to find that the Department of Justice does not consider the Forest Service a client. They have little concerns as to the desires of the Forest Service or any other agency. They set their own course and in doing so are de facto setters of policy. Somehow that seems to be a serious flaw in the system. But for now, at least, it is the system.”

Again, I am not ascribing bad motives to anyone. The system is probably such that DOJ needs to close cases to meet their performance metrics. Whoever designed the performance elements didn’t make them apparently a joint maximization function among the affected agencies. Also, in my experience, settlements can develop a head of steam and it’s hard for someone to say “wait, let’s think about the potential impacts of this on (related projects)”.
Here’s a more gentle (I was still working then) post on the same subject from 2011.

“Public lands advocates push collaborative approach “

A Nov. 7 article in The Missoulian by Rob Chaney.

Public lands advocates push collaborative approach

Collaboration brings people together. Lawsuits divide them. Reaching the first without triggering the second remains the challenge for those interested in the future of forests.

Montana public lands currently have between 30,000 and 40,000 acres left in legal limbo because of litigation, participants at Montana Forest Collaboration Network conference heard Tuesday. Getting beyond that might take congressional legislation or simply better local relationships, according to panel moderator Brian Kahn.

“Blaming environmentalists for litigation is politically inflammatory,” Kahn said. “It’s said by people who don’t know that eight out of 10 environmentalists are participants in collaborative efforts. That kind of polarization is fertile ground for demagoguery.”

Collaborative forest projects occupy a special slice of work in the woods. They depend on a group of local residents, county and state officials, clubs and organizations and businesses to semi-formally advise the U.S. Forest Service on how to manage a particular part of a national forest.

Projects developed through the collaborative process should have more value than traditional agency-industry deals because they reflect local knowledge about jobs, habitat, wildlife, recreation and other on-the-ground knowledge.

That hasn’t protected them from scrutiny by critics of the Forest Service, who sue the agency over alleged violations of the National Environmental Policy Act (NEPA), Endangered Species Act, and other federal requirements. In 2013, the last year with complete data available, national forests in Montana had 13 of 29 forestry project decisions challenged in court.

“If you can’t find a NEPA violation in a document, you’re not trying hard enough,” American Forest Resource Council attorney Lawson Fite said. “These are policy matters. It’s not: Are you following the law? It’s: We want you to do different things.”

The Wilderness Society forest campaign manager Megan Birzell said making an environmental assessment “legally bombproof” was virtually impossible. She said her organization worked more to show where broad arrays of support existed for a project, in order to convince a judge that lots of different perspectives had been fairly considered.

“Collaboration is making a lot of progress in Washington, Oregon and California,” Birzell said. “That’s true across the west, except in Montana where it’s bogged down.”

Who gets to be “in the room”

Discussion about the unfair access of litigants to decision-makers ignores the privileged position of local governments and economic interests during the planning process.  That is illustrated by this account of a meeting between the Forest Service, ESA regulatory agencies and northeast Oregon ranchers and county commissioners concerning revision of the Blue Mountains forest plans and changes in grazing requirements.  It sounded good up through the point where a forest supervisor said, “It was a productive meeting.  People said we need to do this more often — get around the table and share our thoughts in a respectful way.”

But here’s what the local public is taking home from the meeting (I’ve added the italics):

One of the major bones of contention with the plan among ranchers was something referred to as Watershed Condition Framework, which would require ranchers to leave taller grass stubble after grazing.  We got buy-in from the Forest Service that Watershed Condition Framework is out the door,” Nash said.  (WCF is actually a national requirement.)

Matt McElligott of North Powder was asked to attend the meeting as a representative of the cattle industry. He said the county commissioners and the ranchers asked that the Forest Service use grazing guidelines and not standards. The commissioners also asked that those guidelines be assessed allotment by allotment rather than across the more than 5 million acres on the three forests.  “When we left the meeting the other day, we got close to all the points the commissioners wanted,” McElligott said.

Those in attendance methodically went over each point step by step, hashed out the terminology and agreed to the items proposed for inclusion in the Pacific Northwest Regional Forester’s Record of Decision due early next year, McElligott said.

This seems to me to create a lose-lose situation.  Either the attendees get what they want and the Forest Service and regulatory agencies look like they are making backroom deals, or they don’t and they feel betrayed (and might sue).  A reason why such “collaboration” is not a substitute for public involvement and NEPA – or for litigation.