Special Interests Want Special Uses

Contributed by Andy Stahl

There are two kinds of Forest Service land use actions. No, I don’t mean “ones I like” and “all the others.” First are those the Forest Service wants to do. Second are actions that someone else puts forward. This second category is called “special uses.”

I have argued previously that NFMA plans must include the planned timber sale program; in fact, that’s all the law requires of forest plans. The timber sale program is an example of the first category of decisions – those proposed by the Forest Service.

So what about special uses? Should NFMA plans zone land or prescribe rules regarding the myriad of uses someone else might propose. The range of special uses is broad. They include every use except noncommercial recreational activities, such as camping, picnicking, hiking, fishing, boating, hunting, and horseback riding. If you want to build a ski area, put a driveway into your in-holding, run a commercial guiding business, film a movie, or bury a natural gas pipeline, yours is a “special use” and requires a Forest Service permit.

Big-league commercial interests have long sought to require that NFMA plans make allowance for their special uses. Energy companies ensured that previous incarnations of the NFMA rules require forest plans to identify corridors along which the companies could string their power lines or bury their fiber optic cables. Ski corporations have worked hard to persuade the Forest Service to zone land to accommodate future ski area expansion. These special interests want first dibs on national forest land by getting their nose under the Forest Service’s planning tent.

If the purpose of NFMA is to comprehensively forecast possible futures, then, by all means, forest planners should anticipate who might want each national forest acre for their own special use, and plan accordingly. I suggest that’s a fool’s errand, and certainly not the mission Congress directed in NFMA.

15 Comments

  1. Andy – ..first a NFMA plan might consider ski areas and powerlines, but it is open to full public involvement, same as any other process, so everyone gets to weigh in, don’t see the disadvantage of doing it there in comparison to a project. In fact, a plan usually gets more attention so it could be argued that that is the place for these larger kinds of decisions.

    The point of zoning is to lay out the best places for certain activities so that a holistic look can be taken and not piecemeal (specific request by specific request). This is pretty much the argument that Ray Vaughan made in another thread yesterday. And it seems like it would be particularly important now that we are focused on corridors and linkages to allow species to move for climate change.

    It seems like it would make sense to concentrate powerlines and pipelines in the same corridors as much as possible. However, I think that the Westwide powerline effort, that attempted to do that at an appropriate scale (not forest plan by forest plan) is now under litigation. Also new energy sources may require different layouts on the landscape than traditional. Despite these real-world difficulties, I still think there is some utility to some kind of general kinds of zoning.

    My personal favorite approach to climate change thus far isTrout Unlimited’s “Protect Reconnect and Restore” (found on page 7 here) . I think the key about this to the issue of zoning is to key in on the areas where the general focus is backcountry versus a few kinds of other. Perhaps something along the lines of “More impactful special uses should stay out of backcountry where possible .”
    You could argue that this is already done under the Recreation Opportunity Spectrum, but perhaps not?

  2. Sharon is right that the point of zoning is “lay out the best places for certain activities”, although it is based on the assumption that some uses are not compatible with one another.

    However, perhaps there are two aspects to determining what is best -> one might following the old ‘soil capability assessment’ model that used to allocate the best soils to the ‘highest’ uses and allocated the poorest soils towards other uses. The second aspect is the usual political assessment/horsetrading and that is where special interests have typically made headway.

    One of the things I found interesting with soil capacity assessments was the assumption that there were certain environmental characteristics that were limiting, in contrast to the notion that soil was a value to be traded off against other values/uses.

  3. Sharon says,

    a NFMA plan might consider ski areas and powerlines, but it is open to full public involvement, same as any other process, so everyone gets to weigh in, don’t see the disadvantage of doing it there in comparison to a project. In fact, a plan usually gets more attention so it could be argued that that is the place for these larger kinds of decisions.

    Unlike Sharon, I do see a disadvantage of considering, say a ski area expansion proposal or a power line corridor adjustment in traditionally-developed forest plans. And the disadvantage is a big one. As I attempted to illustrate in my latest post, the forest plan “decision container” can be easily over-filled. People — decision-makers and others — may get distracted from other concerns when a “big-deal” decision is embedded along with other decisions in a traditional forest plan. Remember the early days of forest planning when we wer attempting to resolve the roadless area debate along with pretty much all other things in forest plans?

    Wicked problems are wicked for good reasons. Attempts to deal with them in comprehensive rational-planning containers fail for all the reasons that Mintzberg so carefully explains in The Rise and Fall of Strategic Planning.

  4. We recently had an intern from the University of Denver look at a sampling of projects within the Rocky Mountain Region (Region 2), asking project planners how useful Forest Plans were in guiding project decisions or controlling the project. (If folks are interested, I’ll post the results later on this blog.) We looked both at projects that are generated by the Forest Service (forest health, grazing allotments, travel management, prescribed burns, etc.) and projects generated by other entities (renewal of road permits, research projects, land exchange, cell phone towers, hardrock mineral development, etc.) Vegetation management projects generated by the Forest Service were the only type of projects that used Forest Plan goals/objectives/desired conditions to generate the “purpose and need” for the project. Usually, maps aren’t specifically identified in plans for suitability of most special uses (except for big developments like ski areas) so the suitable use section of plans were also useful to just a few types of projects. However, nearly all the projects were guided to some degree by the Forest Plan standards and guidelines, although the age of the Forest Plan was the biggest determinant of its usefulness (again, a topic for another post.) There are certainly benefits for identifying the basic “design criteria” that is uniformly applied to all types of uses. So if I reject motorized access to someone’s cell tower, at least they will see that I’m doing the same to our own work crews.

  5. Since 1970, Oregon has used soil productivity (or proxies thereof, e.g., farm income) as a zoning tool to prevent residential/commercial use of farm and forestland, as Bill suggests. It has worked well for its intended purpose of preventing building on these lands, with the unintended consequence of helping to fuel the nation’s housing bubble that contributed to crashing the world’s economy.

    A major purpose of state/local zoning ordinances is to inform real estate markets as to the true value of property. Without foreknowledge of what use property can be put to, it is difficult for markets to establish real estate prices.

    But national forest zoning can’t be justified on the basis of informing markets because the FS doesn’t sell federal land (with a few minor exceptions not relevant to forest plans). So why else zone national forest land?

    John suggests that zones are a way for the Forest Service to make rules (i.e., standards and guidelines) for private uses of national forests. But comprehensive rules already exist for this purpose. And there may well be good reasons why FS “work crews” should not be subject to the same rules as a private cell tower owner, such as emergency search and rescue access.

  6. Andy and I need to take the “helping fuel the nation’s housing bubble” comment to another site. Since I disagree completely. While I suspect that housing prices might be higher than they might be without zoning, that isn’t what brought about the bubble.

    Personally I don’t have any trouble with zoning, in my community or on the national forests. I just think that there are other adaptive co-management opportunities that are better suited for the decision-making for said zones. For example, power line (or natural gas, etc.) corridor decisions, where they impact national forest lands are better made with “appropriate others” outside forest planning and typically at much higher geographical scales. And energy corridors are not by any means the only decisions that ought not be made in a “forest plan.”

  7. Regarding Andy’s point about whether or not we should apply the same rules for Forest Service proposed actions and externally generated proposed actions, we need to consider the cumulative effect of all the activities.

    Here’s an example.

    In 2006, we amended all the Forest Plans surrounding Yellowstone to provide for the distinct population segment of Grizzly Bears that were being considered for delisting.

    http://www.fs.fed.us/r2/shoshone/projects/planning/forest_projects/fy2006/decision/02%20Record%20of%20Decision.pdf

    At the time, there were estimates that grizzly bear populations were growing from 4 to 7 percent per year. One of the reasons was that impacts on habitat conditions had pretty much leveled off since 1998. One of the important impacts on grizzlies is bear/human interaction – you can probably think of several ways that bears can get into trouble. Researchers had found that in developed areas, use of habitat by bears is lower, and their foraging behavior is disrupted. For these reasons, it was important to limit development of the primary core habitat area to the 1998 baseline.

    The amendments contained a standard that set a development limit. The limit applied to all types of developments – campgrounds, oil drilling pads, etc. as well as special uses such as lodges, resorts, dude ranches and hotels. The only way you could build something new is if you closed something else. So there is certainly an interaction between special uses and other activities that is important to consider.

    • John,

      “And now, for the rest of the story . . . ” The 2006 grizzly protections in the amended forest plans only become effective if the bear is de-listed as a threatened species. But FWS’s de-listing proposal ran aground on Judge Molloy’s shoals. So, at this time, the 2006 forest plan protections are not in effect.

      This illustrates the folly of “comprehensive, rational” planning — it simply cannot anticipate all contingencies. It’s especially silly for the Forest Service to condition its standards and guidelines on others’ actions over which it has no control.

      So what’s the alternative? Insofar as special uses are concerned, the Forest Service can condition each special-use permit with grizzly bear protections that are consistent with the bear’s biological needs. That may well mean “first come, first served” when it comes to divvying up open road miles. And it will also mean that when the biological caps are met, special use permittees go away empty-handed. The special-use permitting regulations give the Forest Service very broad authority to just say “no.”

  8. There is another way of looking at the grizzly bear delisting saga, as it pertains to forest planning. It pertains to my earlier response this week—that basically went nowhere fast.

    http://ncfp.wordpress.com/2010/02/09/accountability-in-plans-so-adaptive-management-can-work/#comments

    A major thrust of Molloy’s ruling is that there are inadequate regulatory mechanisms in place to protect grizzlies, too many unenforceable and non-binding promises made by too many federal and state agencies (USFS included). He found the Forest Plan amendments to be inadequate regulatory mechanisms for the same reasons the larger Conservation Strategy was inadequate: the “guidelines” and monitoring promises were discretionary and thus legally unenforceable.

    “The majority of the regulatory mechanisms relied upon by the [FWS]—the Conservation Strategy, Forest Plan amendments, and state plans—depend on guidelines, monitoring, and promises, or good intentions for future action. Such provisions are not adequate regulatory mechanisms when there is no way to enforce them or to ensure that they will occur.” Greater Yellowstone Coalition v. Servheen (2009)

    Maybe the lesson here is not (just?) in the folly of rational comprehensive planning. But rather to show how enforceable commitments—by some agency at least, in a plan or some other vehicle—are necessary. Perhaps also a good opportunity to consider how various planning efforts interact with one another—or to approach the question of planning from the perspective of what is best for X—in this case, grizzly bears.

    Martin

  9. But I thought regulators (FWS) thought standards count as enforceable and they are adequate regulatory mechanisms? That’s why leaving them out of plans is such a big deal. I am hopelessly confused.

    • Judge Molloy saw too few standards (enforceable) and too many guidelines (unenforceable) in the forest plan amendments. Here’s what he said:

      The Record of Decision (ROD) for the Forest Plan amendments contains few standards, and those standards only apply inside the Primary Conservation Area. AR 32406. Outside the Primary Conservation Area, there is no enforceable standard in the ROD; instead, there are “guidelines” for managing grizzly bears. AR 32406-07. Whether the 2005 regulations apply or not, these “guidelines” are discretionary and thus legally unenforceable. Miller, 163 F.3d at 594, n. 1. The ROD also contains monitoring protocols. AR 32407. Like the guidelines, the monitoring requirements in the Forest Plan are not a final agency decision so they are legally unenforceable. Ecology Center, Inc, 192 F.3d at 925. Because the Forest Plan amendments contain no enforceable standards outside the Primary Conservation Area, they do not serve as an adequate mechanism for grizzly bear management.

      Forest plans are not the exclusive means by which the Forest Service can assure FWS that regulatory mechanisms are sufficient to justify de-listing (if biological criteria are met, too). The most obvious alternative is for the Forest Service to promulgate an actual, enforceable regulation.

  10. Andy,

    Then, just to clarify, would your keep it simple planning approach simply mean more decisions like this being dealt with through administrative rulemaking? The USFS dealing with more site-specific issues like this through the promulgation of more binding rules?

    If so, isn’t that approach even more problematic for adaptive planning/management?

    I’m a very inductive person, so focusing on real cases like this helps me sort through all the confusion.

    Martin

    • Martin,

      Adaptive mgt. seems problematic when dealing with irreversible consequences, such as species extinction. If I managed a widget factory, then playing around with inputs and processes to find the optimum strategy for making widgets sounds reasonable. The worst that can happen is that I produce too few or too many widgets at too little or too much cost. I can monitor my bottom line and adjust accordingly.

      Grizzly bears and spotted owls aren’t widgets. As a matter of law, Congress decided that adaptive management is not the way to go when species face extinction. With one exception (certain limited experimental populations of threatened species), the ESA takes a strictly regulatory approach to species conservation.

      NFMA says to the FS “decide where and how you’re going to cut timber, inform the public about the consequences of your logging, and make sure you don’t crap up the environment along the way.” The ESA says “before you cut, make sure logging doesn’t harm listed species but, if it does, get FWS’s permission and abide by that agency’s restrictions.”

      If the Forest Service is willing to live with FWS oversight of its management, then there’s no need for the FS to promulgate binding rules upon which FWS could base a de-listing decision. But if the FS wants to relieve itself of FWS oversight, then it had better come up with binding, enforceable rules that meet the ESA’s test for de-listing. The FS could do so in a NFMA forest plan, so long as the plan’s provisions are binding, enforceable standards, not discretionary guidelines. Or the FS could do so by regulation. I don’t think there’s a third alternative, and I prefer the second because I’d like to keep NFMA plans simple.

      At the end of the day, listing/de-listing is not a Forest Service responsibility — it’s FWS’s job. If FWS had done its job properly, i.e., told the FS that vague forest plan promises don’t cut the mustard (among other deficiencies in the de-listing package), then FWS wouldn’t have lost this case (to which, by the way, the Forest Service wasn’t even a party).

  11. I’m puzzled by the Greater Yellowstone Coalition case in a couple of places, and I suspect that courts will be wrestling with this issue some more.
    http://latimesblogs.latimes.com/unleashed/2009/09/yellowstones-grizzly-bears-still-threatened-us-district-court-judge-rules.html

    A confusing line of reasoning in the case is the reference to other court decisions, including the Supreme Court SUWA case, which have ruled that forest plan monitoring is not subject to judicial review. Therefore, the reasoning is that monitoring is not enforceable. One interpretation would be that even if you have standards in a plan, unless you have “enforceable” monitoring, the standards are meaningless. The trust issue in adaptive management is exactly the type of problem that JB Ruhl, Holly Doremus, and others have been describing, as we talked about in the other discussion thread that Martin references above. Andy is correct – ESA issues increase the stakes exponentially, so this isn’t the best example of all the issues we face in forest planning. But proving viable populations of the other species can be just as contentious in light of long term special use permits and other demands on the forests.

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