K.I.S.S. Part II

Contributed by Andy Stahl

In comments on K.I.S.S. (Part 1, I now realize), John Rupe suggests that NFMA requires that forest plans be an “umbrella document” to guide all national forest activities.  There are three reasons for thinking that’s not the case.  First, the existing plethora of non-NFMA forest-wide plans argues that the Forest Service has never acted as if NFMA plans are all-encompassing.  These include separate plans for roads and trails (“Access and Travel Management Plans”), fire suppression and use (“Fire Management Plans”), and recreation infrastructure (“Recreation Facilities Analysis”).  None of these forest-wide plans is a part of the NFMA planning process or that law’s planning regulations.

Second, NFMA is most parsimoniously read as I suggested in K.I.S.S. Part 1.  The “one integrated plan” language Rupe cites requires only that plans include “all of the features required by this section.”  As I noted previously, the only mandatory feature NFMA requires of its plans is “forest management systems, harvesting levels, and procedures.”  What makes NFMA revolutionary, for its day, is that NFMA plans must make timbering decisions “in light of” the multiple uses.  That means the Forest Service must demonstrate that logging decisions are not made in a vacuum as if other natural resources don’t exist.  Thus, for example, NFMA requires an interdisciplinary team prepare the plan and that the plan be based on inventories of “applicable resources,” e.g., fish and wildlife.

NFMA further emphasizes that logging’s environmental consequences are important by its reference to the National Environmental Policy Act.  16 U.S.C. 1604(g)(1).  But disclosing the environmental consequences of timbering decisions is not the same as comprehensively planning the future of all natural resource activities on a national forest in a single plan.  NFMA requires the first; it does not the second.

Third, NFMA’s legislative history shows that Congress was 100% preoccupied with curing the real and perceived sins of over-logging the national forests.  Beginning with the 1970 Bolle Report that criticized clearcutting and terracing on the Bitterroot National Forest, the 1971 hearings on clearcutting held by Senator Frank Church (the recommendations of which were adopted almost verbatim in NFMA), and culminating in the spirited debate between Senator Randolph (who favored a bill that would have banned clearcutting outright) and Senator Humphrey (who favored a planning process), it is clear that Congress cared about how logging was regulated on national forests.  Nothing about mining, grazing, ski area development, water use, campgrounds, utility corridors, recreation cabins, or any other national forest use, except insofar as it is harmed by logging, can be found in the Act’s extensive legislative history.

Far from a call for all-resource, comprehensive planning, Senator Humphrey believed the Act’s purpose was to “get the practice of forestry out of the courts and back in the forests.”  He wanted foresters to stop seeing forests “only as trees and trees viewed only as timber.”  Humphrey wanted “the soil and water, the grasses and the shrubs, the fish and the wildlife and the beauty that is the forest” to be integrated into “resource managers’ thinking and actions.”  That is, their “thinking and actions” about silviculture and logging.

18 Comments

  1. Andy- I am not so sure that the cause of forest planning excess is the community of FS planners themselves.

    In my experience, the 05 Rule was an effort by FS planners to simplify and streamline plans. But, as it turns out, others felt there was a need for a) standards b) EIS’s, and c) proving that plans address species diversity, regardless of activity (logging or not) that might reduce diversity.

    So are you thinking we do not need these things in plans, and hence in a planning rule?

  2. Sharon – NFMA includes two kinds of requirements. Most concern how the FS writes a forest plan. These include using an interdisciplinary team, publishing the plan with appropriate maps, and obtaining inventory data. One of the key processes required by NFMA is adherence to NEPA, 16 USC 1604(g)(1). I doubt any planning rule that categorically excludes forest plans from the EA/EIS process will survive. The reason is simple. NFMA requires that plans make certain decisions. Those decision are actions that may have a significant environmental effect and, thus, cannot be categorically excluded from NEPA.

    NFMA also imposes substantive standards on forest plans. The standards are few and all concern logging and its environmental impacts. First, the plan must “provide for diversity of plant and animal communities.” The 1979/1982 rules do so by requiring that plans assure species viability. The 9th circuit court has said that species viability is a necessary component of NFMA’s diversity requirement, i.e., plant and animal communities that lose a species are less diverse. There is no reason to think that Congress meant the diversity requirement to apply to non-timbering actions, e.g., campgrounds, mining, livestock grazing, ski areas, etc.

    The other substantive standards are all contained in 1604(g)(3)(E) and (F). These standards protect soil and water quality from logging impacts. They also regulate clearcutting and other even-aged management.

    In sum, the planning rule needs to cover the logging-related standards required by NFMA — no more, no less. The decision to adopt a forest plan must comply with NEPA. The forest plan must include a timber sale program that states how and how much timber will be logged.

    The problem with the 2005 rule is that it included lots of process not required by NFMA, eliminated all of the substance that was required by NFMA, and ignored NEPA. It’s as if the authors never read the Act itself.

  3. I’d be interested to hear from other contributors on this blog about this topic. My impression of the language of NFMA is that it requires planning for management of all the resources, not just timber.

    In addition to the language of the Act that I mentioned in my earlier post, it’s also worth mentioning that NFMA plans were originally intended to be a component of planning under the 1974 Resources Planning Act (RPA). The RPA program required recommendations which “evaluate objectives for the major Forest Service programs in order that multiple-use and sustained-yield relationships among and within the renewable resources can be determined.”

    From a practical matter, it’s difficult to treat other uses of a Forest as a “constraint” on timber, which might occur with a narrow reading of NFMA to just limiting overcutting of forests. If other programs like wildlife management or watershed protection are only viewed as constraints on timber, you would lose to the opportunity to collaboratively agree on the goals for those programs. However, I certainly agree with Andy that we should simplify how these goals are represented in a Forest Plan.

  4. I’m of the opinion that NFMA’s planning mandate is not so simple. We can debate its legislative history, but there is some danger in trying to devise any one congressional intent in passing NFMA, or NEPA for that matter.

    I recall, for example, Professor Richard Behan’s argument that NFMA’s planning focus was a “solution to a non-existent problem.” He was dismayed that local conflicts on the Bitterroot and Monongahela were reframed by Washington insiders as planning problems. On the other hand, others like Dean Bolle of the famous “Bolle Report,” argued that NFMA was a necessary legislative reponse that had been poorly implemented. He argued that public participation was the key point of NFMA.

    On top of this, there was the back-and-forth debate about whether the RPA/planning mandate was essentially a top-down or bottom-up endeavor. My point is simply that there is no one nice, tidy, mutually-agreed upon interpretation of NFMA’s planning mandate.

    Nonetheless, most would agree that forest plans make zoning decisions of some sort, with a public participation mandate, and they must be done in accordance with NEPA. And that necessarily means that plans must account for a variety of factors and values other than timber. Some complexity is unavoidable. And certainly we can all agree that however complex, forest plans should be meaningful.

    This doesn’t mean that forest plans must become hyper-rational comprehensive document dumps. But it is at the forest plan level where serious decisions get made about the future of National Forests. It is here where they get placed on a trajectory that is hard to stop once begun. This is where the big picture gets viewed, and my fear is that calls for simplicity become excuses for dodging tough questions or working with blinders on.

  5. Martin,

    Are forest plans really where “serious decisions get made about the future of National Forests?” The Roadless Rule, for example, is the most consequential policy decision about western national forests in recent memory. The R.R. was made outside the framework of forest plans and the NFMA planning process altogether.

    Another example . . . almost half of the Forest Service’s budget is spent on activities not covered or assessed in NFMA forest plans — fire suppression. Perhaps fire suppression has had even more profound environmental/social effects than logging. Yet you’ll find no analysis, alternatives, or the like regarding this critical Forest Service activity in NFMA plans.

    Livestock grazing decisions, e.g., how much and where, are made outside of the forest planning process. Take a look at most vintage 1980s forest plans and you’ll see that every alternative is the status quo when it comes to livestock.

    I can think of only one example of NFMA plans making serious decisions about the future of national forests — the Northwest Forest Plan. But this example supports my thesis that forest plans are and should be about timber policy. For it was in the epicenter of the Forest Service’s timber machine that NFMA really changed the world.

  6. I could be wrong, but I don’t think of the NW Forest Plan as a traditional NFMA plan, as those are usually forest by forest and the NW Forest Plan was over a larger area. Which supports your argument that most broad scale really important decisions are made outside the forest planning process.

    However, as currently configured, fire use, travel management, grazing, and guidance for suppression, to some extent, follow broad scale guidance, especially the zoning, originally derived in forest plans.

  7. Sharon,

    The NW Forest Plan is precisely a NFMA plan. Formally, it is an amendment to each of 17 LRMPs. The administrative/legal saga leading to the NWFP began as an administrative appeal of the NFMA regional guide (remember regional guides?).

    NFMA is quite flexible in its geographic scope for plans. So-called unit plans, for portions of a national forest, were pre-1979 versions of NFMA plans. The Willamette NF was the first forest-wide NFMA plan. It creatively took half-a-dozen unit plans and stapled them together, calling it a forest plan.

    Other regional NFMA planning efforts include the aborted Interior Columbia River Basin plan.

    In sum, the NW Forest Plan was a NFMA forest plan in every sense of the word. It even used FORPLAN!

  8. Sharon,

    A quick PS to the question “is the NWFP a NFMA plan?” The dispositive test is whether the NWFP’s standards are enforceable under 16 USC 1604(i). This section of NFMA requires that “resource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent with the land management plans.” Numerous court cases have enforced the NWFP’s standards pursuant to 1604(i), e.g., survey-and-manage and aquatic conservation strategy cases.

    The roadless rule is not enforceable under 1604(i) because the roadless rule is not a NFMA plan.

  9. OK. I have to admit I was not in the planning world in the Northwest Forest Plan days..but this is a helpful discussion as many people might have different images when the term “forest plan” comes to mind.

    So I was operating from an experiential, not legalistic, definition of a forest plan.

    My experiential definition is that “a forest plan is done for one or a couple of forests at a time, it follows the 82 regs (or the 05 or 08 although none of those made it to final under those regs) and covers all the traditional stuff required in whatever set of regs you are using.”

    I think of the Forest Supervisor being the deciding official in the sense of a national forest yields a “forest plan”. A group of them might be done together but they address the comprehensive requirements of the regs.

    Many decisions amend forest plans. I am thinking of the grizzly bear and lynx amendments. Because those have enforceable standards, do you think of those as “forest plans?”

    • Sharon – The grizzly bear and lynx decisions amend NFMA plans. These amendments were promulgated using NFMA procedure and authority. Pursuant to the NFMA, all legal instruments, e.g., timber sale contracts, outfitter special-use permits, road right-of-way permits, and the like, must comply with the grizzly bear and lynx standards.

      The reach of 16 USC 1604(i) is as broad as the standards contained within a forest plan. For example, if a forest plan includes road density standards that apply to all national forest uses, then all permitted uses must comply with the road density standard. If, however, the road density standard applies explicitly only to roads built for timbering purposes, then permits for non-timbering purposes that require road construction (e.g., for private residential access to in-holdings) would not come under the forest plan umbrella.

      I keep flirting around the edges of the NFMA/ESA intersection (grizzly bear example above), to which I’ll devote a future post. It is a fascinating topic (well, to me) that figured prominently in the northern spotted owl litigation.

  10. Andy,

    I respectfully disagree with the notion that plans are somehow not important, or cannot be made important in the future.
    Yes, they are necessarily supplemented with larger regionwide amendments or national-level rules (e.g., roadless rule). But that does not mean that plans are insignificant. Quite the contrary. How would you explain the epic battles waged over a forest plan like the Tongass for example?
    That plan is like others crafted using the 82 regs: it guides all management activities, sets management standards and guidelines, and “sets forth in detail the direction for managing the land and resources,” and says that “all future plans and administrative activities will be based on the forest plan.” TLMP 1997. Other NF plans that I’m most familiar with use similar language.
    If I could reframe the debate I would put it in an altogether different direction.
    I would start with the premise that the Supreme Court has seriously degraded the purpose of planning in its SUWA v. Norton decision, and then ask how best to respond.
    This point is worthy of a full posting, and I’ll pester an expert on the matter to write it up for us.

    Martin

    • Martin — I haven’t said forest plans are not important. They are important for the timber-focused purposes NFMA requires of them. It is precisely where timbering is the predominant issue that NFMA has revolutionized national forest policy, e.g., the Pacific Northwest. The “epic battles” waged over the Tongass you cite have all been about logging and its environmental impacts.

      SUWA v. Norton concerned off-highway vehicle use of BLM lands. The Supreme Court decided an Administrative Procedures Act issue — under what circumstances does a court have jurisdiction to compel agency action? Only where that action is compelled by law.

      I think the case you mean to refer to is Ohio Forestry v. Sierra Club. This is the case on which the Forest Service relies in its repeated attempts to eviscerate decisions from forest plans, turning them into “broadly aspirational” pablum. So far, however, the Forest Service has been mostly thwarted (and totally so at the level of the NFMA regulations).

      The problem for the Forest Service is that Ohio Forestry did nothing to relieve forest plans from NEPA; in fact, the Court said that NEPA challenges to forest plans are ripe at the time the EIS issues: “Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.” That’s why the Forest Service has tried to exempt or categorically exclude forest plans from NEPA — unavailingly, to date.

      • Sorry for any misinterpretation on my part.

        As for the Supreme Court, I am thinking SUWA v. Norton, not Ohio Forestry. Recall that the USFS (questionably) used both cases to justify why planning regulations needed to be revised and rethought in 2005. I actually consider SUWA to be a bigger blow to planning than Ohio Forestry because it calls into question how binding a commitment made in a plan is on the agency.

        You’re right that the SUWA decision is focused on BLM and OHV management. Nonetheless, the USFS has used SUWA in subsequent years as a way to insulate itself from judicial challenge to all sorts of agency actions. Michael Blumm and Sherry Bosse at Lewis and Clark Law School recently wrote a good review of this matter, documenting the impact of SUWA and its embrace by the USFS (and BLM). See Michael C. Blumm and Sherry L. Bosse, Norton v. SUWA and the Unraveling of Federal Public Land Planning, 18 DUKE ENVIRONMENTAL LAW & POLICY FORUM 105 (2007) (reviewing SUWA’s effect on litigation in the federal courts).

        I’ll ask these authors to write a full post on the matter.

  11. Andy- categorical exclusions are NEPA, they are allowed for in the CEQ NEPA regs, they are categorically excluded from DOCUMENTATION in and EA or an EIS.

    The idea is that there are some things that generally do not have the kinds of environmental effects that require an EA or an EIS. So those things are analyzed using NEPA procedures as a class of actions. Most agencies, including the FS, use categorical exclusions for a variety of purposes.

    The Forest Service as a whole didn’t care that much; it seemed that a legal argument could be made that doing NEPA on projections of projects we “might could” do followed by more NEPA on the actual projects when they were designed was somewhat wasteful (because the projects proposed never actually mirrored the ones projected to be done in the plan).

    Programmatic NEPA is fundamentally difficult, because you attempt to analyze environmental effects when you don’t know exactly 1) what activities you will have, 2) how you will conduct those activities, 3) where the activities will be conducted and 4) the total size of the activities (200 acres, 2000, 20,000) and 5) when you will conduct them. And generally we are very experienced with project NEPA and not so much programmatics. Which is not to say they are impossible but that they are difficult.

    I think most folks at this point have figured that the care that had to be taken to not move outside a CE (as stated by legal advisors- your “broadly aspirational pablum”)is more trouble than actually just doing an EIS, even though the utility of the EIS to really estimate the environmental effects of future unknown activities remains highly questionable, as noted above.

    So I don’t think, practically speaking, that not doing EIS’s is currently on the table.

    Anyway, this 2004 CEQ modernization of NEPA report talks about adaptive management, CE’s, programmatics, collaboration and EMS, all topics in past planning rules.

    • Sharon – I agree that the FS will likely continue to assess the environmental consequences of forest plans in an EIS. Two reasons: Obama and Citizens for Better Forestry lawsuits.

      That makes narrowing the scope of forest plan decisions to only those required by NFMA all the more important lest the EIS becomes as unwieldy as the plan itself.

  12. Martin,

    At the risk of extreme hair-splitting (but what’s a blog for?), I think SUWA had less effect than Ohio Forestry because SUWA does not prevent either challenges to forest plans or challenges to agency actions regulated by plan standards (where the FS is careless enough to include them).

    Ohio Forestry bars substantive challenges to forest plan decisions that are not yet ripe (e.g., a timber sale schedule), but allows procedural challenges to forest plans (i.e., under NEPA) to go forward at the time the plan is adopted.

    It is to avoid NEPA challenges to forest plans, of the type permitted by Ohio Forestry, that the Forest Service has sought (unavailingly) to turn plans into meaningless aspirational documents that make no decisions and, thus, are not “major federal actions.”

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