Sequoia Forestkeeper II, of Probably Many Posts

From Bob Berwyn here:

By Bob Berwyn

SUMMIT COUNTY — A federal judge in California this week ruled that the U.S. Forest Service can’t simply drop a post-decision appeals process for logging, forest health and other projects approved under a categorical exclusions, which is a streamlined approval process for smaller projects. In those decisions, the appeals process is replaced with a pre-decisional objection period, which enables people to raise concerns before the final decision is made. Read the decision here (PDF on Scribd.com) or at the end of the post.

That means citizens or stakeholder groups across the country once again have the right to challenge certain Forest Service projects after the final decision has been made by a district- or forest-level official.
The agency has often used the categorical exclusion process in recent years to gain speedy approval for projects relating to the pine beetle epidemic. While many of the projects aren’t controversial, some have been.
Absent a formal administrative appeals process — which involves review by forest officials higher up the chain of command — citizens and environmental groups must go directly to court to challenge a project.
In some regions, the agency has done a good job of involving stakeholders in the process early to help shape decisions that have community support. But that’s not the case all over the country, and having the opportunity to appeal enables people to challenge bad decisions without the expense of going to court.
On the other hand, environmental groups have sometimes abused the appeals process to obstruct and delay projects. Those tactics led frustrated Forest Service officials to look for shortcuts. But fundamentally, appeals have always helped ensure that citizens have some recourse to challenge the agency when it comes to what are often irrevocable commitments of public resources.
In his decision, U.S. District Court Judge Lawrence O’Neill also ruled that the agency must give adequate notice for its decisions on categorical exclusion projects, as well as provide the public with an opportunity to comment.
The ruling, issued by a U.S. District Court in California, is a skirmish in the long-running regulatory and legal battle over the Forest Service’s desire to cut red tape, sometimes at the expense of public involvement and adequate environmental review.
The Forest Service fired the first salvo when it tried to eliminate administrative appeals altogether in an attempt to speed up approvals for projects. In response, Congress in 1992 passed the Forest Service Decision-making and Appeals Reform Act.
“Congress said, we want to ensure that you’ve heard all the voices … and that you use the appeal process to repair your mistakes,” said Forest Service Employees for Environmental Ethics director Andy Stahl, explaining that he lobbied for the appeals reform act.
That law states very clearly that the Forest Service must include an appeals process for any decision or project that implements a forest plan.
Stahl said appeals help make the Forest Service decision-making process accessible to the general public, giving citizens a chance to influence decisions without having to hire a lawyer if they think a project has some fundamental flaws. And based on the agency’s track record of losing appeals and court cases, that happens as often as not.
In the bigger picture, Congress just recently passed a law that eliminates appeals for all decisions approved under Environmental Assessments and Environmental Impact Statements, instead replacing those appeals with pre-decisional objection periods.

Here’s the link to the decision (thanks, Bob!)

Sharon’s note : I’m not sure what Andy means by “losing appeals and court cases” and “that happens often as not.” How does that fit in with the concept of “appeals are just a higher level review and often just restamp the decision”? (Not that Andy said the latter, but I think someone has on this blog.) I don’t think that quantitatively appeals are 50/50 affirm/ remand nor are court cases 50/50 (although I don’t have the numbers at my fingertips). Andy- did I miss something or was I excessively quantitative in interpreting “as often as not” as 50/50?

For our mutual education and information on this subject, I propose we each pick a district and look at which actual CE’s are in progress to get a picture of how many of them actually deal with timber harvest compared to other kinds of actions, which are “implementing the forest plan”; so I picked Trabuco Ranger District (the name just came to me) and here’s a link to the current SOPA (schedule of proposed actions).

I found a decision expected in April (maybe not anymore?) :
“The Descanso Ranger District proposes to authorize reissuance of a special use permit for maintaining a club for use by the San Diego Chapter of the Sierra Club, located in the Laguna Mountain Recreation Area. ”

Or this one right below it, fortunately already completed:
“Eradicate with herbicide invasive Spanish Broom along the roadway to improve visibility, clear the roadway for vehicle passage and reduce fire risk.”

Adding notice, comment and appeal to CE’s seems like a great thing for the public, but it seems to me that given the kinds of CEs that are out there, reasonable people could disagree about the value added compared to the taxpayer expense.

I invite you to “pick a district” check out the SOPA, and see what you find.

14 Comments

  1. In 2003, as part of the so-called “Healthy Forest Initiative” the Bush Administration issued a rule change for the use of Categorical Exclusions (CE’s) that allowed the following types of logging projects to go forward without proper environmental analysis and without the citizen appeals process. The Bush Administration’s rationale was that the following types of tree cutting projects are routine and never, ever cause any adverse impacts. Keep in mind that in the late 1980s, the Forest Service limited the size of CE timber sales to 10 acres.

    • CE for Fuel Reduction that allowed 1,000 acre logging projects, also up to 4,500 acres for prescribed burning projects

    • CE for Timber Harvest that allowed logging of live trees over 70 acres and post-fire salvage logging up to 250 acres.

    What we witnessed here in the Northern Rockies immediately following 2003 was a huge increase in the use of CE’s to get the timber volume out as part of the timber sale program. I’d have to go back and check our records, but at one point I believe we documented that the Lolo National Forest had used CE’s for nearly 20 different timber sales during the first few years that the new CE’s rules went into effect. Some of those CE’s projects from the Lolo NF (and also the Bitterroot NF) can be found here: http://www.nativeforest.org/comments/index.htm.

    It seems to me that Larry, Derek and Sharon are spreading the notion that the Forest Service never really uses CE’s for timber sales and they only use CE’s to improve a hiking trail, etc. This is just not true. From 2003 until about 2007, CE’s represented a significant part of the federal timber sale program here in the Northern Rockies. Sure, the Forest Service may have not been as aggressive using CE’s over the past few years, but that’s largely because every time CE’s went to court the federal court system ruled against the Forest Service’s CE program and the agency rightfully saw the writing on the wall.

    Oh, and speaking of Categorical Exclusions (CE’s)….There once was a place called the Gulf of Mexico, a company called BP and a oil well called Deepwater Horizon….Anyone remember that one?

    U.S. exempted BP’s Gulf of Mexico drilling from environmental impact study
    http://www.washingtonpost.com/wp-dyn/content/article/2010/05/04/AR2010050404118.html

    SNIP: “The Interior Department exempted BP’s calamitous Gulf of Mexico drilling operation from a detailed environmental impact analysis last year, according to government documents, after three reviews of the area concluded that a massive oil spill was unlikely. The decision by the department’s Minerals Management Service (MMS) to give BP’s lease at Deepwater Horizon a ‘categorical exclusion’ from the National Environmental Policy Act (NEPA) on April 6, 2009 — and BP’s lobbying efforts just 11 days before the explosion to expand those exemptions — show that neither federal regulators nor the company anticipated an accident of the scale of the one unfolding in the gulf.”

    Why was the Deepwater Horizon given a Categorical Exclusion?
    http://www.thewildlifenews.com/2010/05/20/why-was-the-deepwater-horizon-given-a-categorical-exclusion/

  2. We didn’t need to use CE’s in California, Matt, since we already had boilerplate EA’s for fuels reduction projects, which followed NEPA. Thinning projects here have always been about fuels reductions, instead of timber volumes, since 1993, well before the HFRA. Thinning projects here were, by default, always run through formal NEPA. We recognized that abuse of the CE’s would be challenged in courts, and didn’t want to rely on that shaky loophole.
    However, the eco-groups know that salvage projects have a distinct “shelf life”, and that delays and blockages impact the economics of such projects. Some CE’s sought to bring those small dead trees to market before they go bad. In essence, not harvesting trees between 10-16″ results in worse flammable conditions, and future impacts to a recovering site.

  3. Larry, You actually do a pretty good job of making our case for us.

    You state, “We didn’t need to use CE’s in California, since we already had boilerplate EA’s for fuels reduction projects, which followed NEPA.”

    I agree with you, but that’s also the case in the Northern Rockies, Southern Rockies, Upper Great Lakes, Northeast, Southeast, etc…The fact of the matter is that the Forest Service could always chose to use a simple EA for fuel reduction projects or smaller timber sales.

    You also said, “We recognized that abuse of the CE’s would be challenged in courts, and didn’t want to rely on that shaky loophole.”

    Again, I agree with you. The abuse of CE’s by the Forest Service would be challenged in court and has been challenged in court. That’s what this lawsuit is about. Therefore, it’s sort of surprising that you don’t support the lawsuit.

    Finally, the reason the Forest Service hasn’t been using CE’s for timber sales recently as much as they did during the period 2003 to 2007 is exactly because the USFS realized the CE’s for timber sales were a “shaky loophole” just like you said.

  4. There is always the issue of whether the Forest Service should “follow the law” of HFRA, when BOTH parties joined together to pass the bill. Especially when Democrats, essentially re-wrote the bill, to break the gridlock. They jettisoned several contentious issues wanted by the Republicans, and that fact helped push the bill towards overwhelming passage. I don’t think that every timber CE needs to be abolished. However, their original intent, the acceleration of emergency action, should not be discounted. With an extremely mild winter, there is no doubt that there will be further adverse impacts on our forests. People will “boycott” parts of the country where people can’t address forest health problems. Indeed, millions of dead trees and thick wildfire smoke tends to drive tourist dollars away, for a very…. long…. time.

  5. Larry, I think you are confusing the Healthy Forest Restoration Act, which was an act of Congress, (which by the way, wouldn’t have passed Congress that year were it not for the October 2003 [mainly arson] wildfires that burned through many acres of chaparral brush in S. California) with the 2003 Bush Administration’s administrative rule change for the use of CE’s related to fuel reduction and timber harvest. My understanding is that this court case centered around the Bush Administration’s administrative rule changes RE: CE’s, not around the HFRA. Thanks.

    • Of course, you’ve forgotten about that little fire called “Biscuit”, along with the many other fires, like the McNally and Rodeo-Chedeski, both of which were allowed to grow into the huge damaging fires that Congress wanted to mitigate and reduce. It’s not about how fires start. It is about the fuels build-ups that are/were being “preserved”, far above historic and safe levels. Since then, we’ve seen even more huge fires, like the Wallow, which continue to destroy endangered species habitats. Splitting legal hairs rarely “saves” habitats when we already have vast acreages doomed to burn, because of illegal lines on secret maps. When can we expect to see a comprehensive maps of “Maximum Management Areas” established without proper NEPA analysis and public involvement? We need to be able to cross reference those areas with endangered and threatened species habitats. Where are the wildlife groups on this deadly issue?!?! Do they have their own “finding on no significant impacts” policy on “Let-Burn”??

  6. I agree Jim. That’s my recollection too. That HFI is the term for the Bush Admin’s administrative stuff and that HFRA refers to the bill Congress passed, and Bush signed into law.

  7. So I actually worked on those “Bush administration” categorical exclusions and would offer this input.

    The “limited timber harvest” category was intended to replace a category that had previously been lost to litigation (category 4?). It is “limited” timber harvest, less than 70 acres or 250 of salvage.

    While it was developed during the Bush Administration, it was based on desires by FS employees to have a category for small timber harvests. Of course, if the area has to meet the requirements, and extraordinary circumstances need to be considered.

    Developing a category is a lengthy process, with many decision points over which reasonable people could disagree. However, they all have to be cleared by CEQ, in order to be promulgated, which can entail additional negotiation .

    In this case, I believe that limited timber harvest CE did survive a court challenge. Seems like we should all be happy that the FS is using the appropriate NEPA tool as determined by the courts ;)! Not focusing on the administration in which it was promulgated.

  8. I don’t really understand the concern about “taxpayer expense.” Most CEs will not be appealed, and there’s no real cost associated with that. Those few CEs that do need further review can be appealed, and the cost a worthwhile because those few CEs do have concerns that raise to the level of needing an appeal.

    Any delay associated with appeals is insignificant compared to the much greater time taken by the agency to move decisions of any kind through internal processes.

  9. The limited timber harvest CE is a joke. The previous volume-based CE was disallowed by the courts because volume was arbitrary and unrelated to environmental effects. The FS replaced it with a acreage based CE which is just as arbitrary (and typically allows a much greater amount of volume to be logged).

    The Bush admin process used to justify the new CE was a sham. They looked at a bunch of timber sale EAs and decided that since most of them are approved with FONSIs, therefore the entire category of timber harvest is non-significant. This does not follow any logic. In particular, it is incomprehensible that logging under numerous CEs could never cause significant cumulative impacts.

    Hopefully, the courts will straighten this out someday.

    Interesting that the McKenzie District on the Willamette National Forest (same District that is doing the controversial Goose timber sale) attempted a CE for logging 4.6 mmbf of 158 year old spotted owl habitat, including riparian areas, and leaving only 20-30% canopy cover (so it was really more like a regen harvest). Luckily, the FS withdrew this nonsense. (4.6 mmbf is 18 times larger than the old invalidated CE).

    • No one else has mentioned the use of a BUNCH of small projects that might be better lumped into one logical project. There was at least one lawsuit against such a situation, and amazingly enough, it made it through the lower court. Sometimes a path that looks the easiest ends up being a struggle. Why risk pushing the envelope? These days, political solutions will end up in the courts, until Congress learns how NEPA works. Who knew that lawyers were so very bad at making laws? (Since half of Congress ARE lawyers!)

      • When we were working on the category (that is civil service people, not politicals), one idea was to develop an adjacency criterion (like you can only use this x miles from any timber harvest cut within z years), The problem with such criteria is that they are difficult to decide what the correct values of x and z are (and not be arbitrary and capricious). So the guidance to FS units contained strong warnings against “CE abuse.” Most units use good judgment. Unfortunately, sometimes in the court system, a few units with questionable judgment can outweigh the good that is done by the many. Fortunately, such was not the case for this category.

  10. Like I said, I think the courts already ruled on this one. Here’s the finding. If the courts say the FS is wrong, the courts must be right. If the courts say the FS is right…???

    Here’s the summary:

    Colorado Wild v. USFS, No. 05-1265 (D.C. No. 04-M-2472) (D. Colo.) (Upholding Limited Timber Harvest Categorical Exclusion and Shaw Lake Vegetation Management Project). The Tenth Circuit has rejected a challenge to the Forest Service’s adoption of a categorical exclusion for the salvage harvest of dead and dying trees (Limited Timber Harvest (LTH) CE #13) and its application to the Shaw Lake Vegetation Management Project on the Rio Grande National Forest. In a string of holdings rejecting all of appellants’ claims the court held that: (1) the methodology employed by the Forest Service to support the 250 acre limitation in CE #13 was reasonable, (2)authorizing up to one-half mile of temporary road construction as part of the salvage harvest was reasonable in the absence of “extraordinary circumstances, (3) the Forest Service may rely on the “personal observations” of the Interdisciplinary Teams conducting the post-implementation review process as a basis for its findings, (4) establishing a higher acreage limitation for the salvage sale CE than the green sale CE was reasonable, (5) the agency adequately considered comments submitted on the LTH CE #13 proposal concerning the opportunity for public involvement in the decisionmaking process, (6) the Forest Service’s decision to use an acreage limitation was permissible and rational, (7) the plaintiffs could not show that multiple uses of Category 13 may result in cumulatively significant impacts given both the Forest Service’s duties to consider such effects associated with individual projects applying the category and the presumption of good faith implementation due the agency, (8) and finally that the mere fact that the administrative record contains some evidence pointing to a different conclusion does not render the Forest Service’s decision arbitrary and capricious.

    The internet is a great tool for the aging brain. Here is what I remember from that period (in testimony here). People who are interested in how categories are developed might want to read the whole thing.

    Limited Timber Harvest
    In 2003, the Forest Service administratively created new categories for limited timber harvest. The activities permitted under the category include limited timber harvest of live trees to maintain forest health and improve stand condition, salvage of dead and dying trees and sanitation harvests in response to ongoing insect and disease infestations. These categories were published as proposals for notice and comment in the Federal Register on January 8, 2003. The comment period was open for 60 days and approximately 16,700 comments were received.
    In examining the basis for proposing categorical exclusions for limited timber harvest, the Forest Service looked at two sets of data. In 2001, the Forest Service reviewed 154 timber harvest projects for which monitoring had validated the predicted environmental effects. The Forest Service also analyzed all categorically excluded timber harvest activities reported for 1998, the last year the timber harvest categorical exclusion was available to the Forest Service.
    Of the 154 projects reviewed for establishing these categories, 122 were categorical exclusions documented with decision memos and 32 were documented with an environmental assessment. None of the 154 projects reviewed predicted significant effects on the human environment before the project was implemented. After implementation, on-site reviews of environmental effects of these projects were conducted by interdisciplinary teams of resource specialists. The interdisciplinary review teams’ measurements and observations were documented in a database. These data remain available on the world wide web and may be viewed at http://www.fs.fed.us/emc/lth.
    The 1998 data analysis involved 306 categorically excluded timber harvest projects. The analysis was conducted to estimate to what extent the old timber harvest categorical exclusion was used and to determine average project size and harvest volume. (The last year that categorical exclusion could be used was 1998.) Each Forest Service Region provided acreage and volume information for each categorically excluded timber harvest conducted in 1998.
    The Forest Service found that the categories of actions defined under the limited timber harvest CE did not individually or cumulatively have significant effects on the human environment. The agency’s finding is first predicated on data representing the expert judgment of the responsible officials who made the original findings and determinations for the 154 projects reviewed in 2001; the resource specialists who validated the predicted effects of the 154 reviewed activities after the projects were completed; and a belief that the profile of past timber harvest activities drawn from the 1998 data represents the agency’s past practices and is indicative of the agency’s future activities. The CEQ, upon review of this CE, found that the CE conformed with NEPA and its implementing regulations. The final guidance for the Limited Timber Harvest CEs was published on July 23, 2003.

Leave a Reply

Your email address will not be published. Required fields are marked *