News Story on Objections.. Missoulian

Thanks to Rob Chaney for writing a story on this.. there’s been a great deal of silence out there in Medialand on this. Here’s a link..

Western Environmental Law attorney and Lewis and Clark Law School professor Susan Jane Brown has served on a federal advisory board reviewing the new Forest Service rules. She said her biggest concern about the pre-decision objections was the lack of evidence they would improve anything.

“Over the years, we’ve heard a lot about ‘analysis paralysis,’ ” Brown said. “But in the scholarly research on that issue – whether administrative appeals slow down or delay or preclude forest management – there’s no support that links administrative appeals and delays in project implementation. There are many confounding factors in play, so pointing the finger at administrative appeals is hasty.”

I don’t know about scholarly research (if a tree falls in a forest and a scientist is not there to observe it, has it really fallen?), but if there is an appeal period with no appeal, the project goes to implementation. How can someone say that appeals and their resolution does not slow things down? This is not clear. Also, I know field folks that have used HFRA objections successfully and prefer them.
It seems like evidence to me. I wonder what kind of evidence Brown is looking for? If we did interviews of people on forests and published it somewhere, would that count as “evidence”? Ah.. but there is no budget particularly to do that kind of research (the People’s Research Agenda). It seems odd that a person who (if Rob was carefully quoting) dismisses something everyone can plainly see, was selected for a FACA committee on a related subject.

Craig Rawlings of the Forest Products Network said timber mill owners he’d spoken with had a different view.

“It almost forces these litigants to participate in the process,” Rawlings said. “Right now they just wait until everything is done and then file appeals. That does drag it out longer. I think the industry is very optimistic about it.”

The appeals process has been around since 1993. The objection process debuted in 2003 as part of the Healthy Forest Restoration Act, and Congress applied it to all EAs and EISs through the new Forest Rule last year as an anonymous rider on an appropriations bill, according to Brown.

The objection does not apply to what the Forest Service calls categorical exclusions, which are supposed to be small projects that don’t warrant a full NEPA analysis. It also doesn’t apply to permits for grazing, special use, access and mining. Those actions still face post-decision appeals.

I’m not sure that that’s clear about CE’s I think the Administration decided to wait for the court case to work its way through (Grandaughter of Earth Island) instead of making a point of it in the regulation.

Also, I think Rob is referring to 251 appeals (for the permittees) people can have 215, now 218 objections for those projects as well (just not the permittees).

The new rule took effect March 27. However, Forest Service officers have some leeway with existing projects whether to shift them to the pre-decision process or continue with the post-decision appeal procedure. Smith advises district rangers and forest supervisors on the issue, and has been running about 50-50 on staying with the old or adopting the new rule.

Anyone who can further help clarify, please chime in.

7 Comments

  1. Ironically I just read the story and minutes ago just submitted this comment to the Missoulian site:

    “It almost forces these litigants to participate in the process. Right now they just wait until everything is done and then file appeals.” – Craig Rawlings of the Forest Products Network

    The views expressed in this article from Craig Rawlings about the Forest Service appeals process and how NEPA actually works are just flat out wrong and demonstrate a shocking lack of understanding of the NEPA process, especially for someone in Rawlings position.

    For example, under the old appeals process anyone who filed an appeal and a subsequent lawsuit did, in fact, have to fully participate in the entire NEPA process. So why does Rawlings claim the opposite is true?

    If anyone bothers to actually go through many Forest Service project files they will actually discover that groups or citizens who file appeals and/or lawsuits provide incredibly detailed and often lengthy comments about the proposed project, all the way from the start of the process until the finish of the process.

    Also, Ray Smith of the USFS provides the public with some wrong information about the old appeal process. He stated, “Under the appeal process, an appellant couldn’t sit down with the person who made the decision or the person who’s reviewing the project.”

    Again, totally not true. Over the years I’ve attended a number of “appeal resolution meetings” with the Forest Service. In those meetings, the Forest Service would often be represented by the district ranger, forest supervisor and other USFS employees who put together the project and the NEPA process.

    Why are Forest Service employees and timber industry supporters giving the public false information and the wrong impressions of what the NEPA process and the appeals process is/was all about?

    OK, if the Forest Service and the timber industry actually think it will be better and save time to have citizens and organizations “object” to a project prior to the USFS even making a decision, that’s certainly their right. However, these folks simply cannot just make up false notions about what the NEPA process and the old appeals process were all about, and how that process actually worked. Thanks.

  2. The swipe at Susan Jane Brown is unnecesary. Perhaps the interviewer didn’t ask follow-up questions about the scholarly research mentioned or did not include any responses in the published article. But to say Susan Jane Brown is “dismissing something everyone can plainly see” and therefore her service on the 2012 planning rule FACA should be questioned is disrespectful. She is highly regarded as an instructor and practicing attorney, and has worked with the collaborative Blue Mountain Forest Partners as well as served on the FACA.

    Resolving administrative appeals does not happen overnight, but there are a lot of other factors and events in the timeframe between project proposal and project implementation than just the administrative appeal.

    Without an administrative appeal process, once a decision is made, citizens would have to go straight to court to challenge it. But I thought you did not want to see forest management decisions litigated? That may be the outcome.

  3. John, I did say “(if Rob was carefully quoting)”.. so let’s hear from Rob..

    this is the quote:

    “But in the scholarly research on that issue – whether administrative appeals slow down or delay or preclude forest management – there’s no support that links administrative appeals and delays in project implementation. There are many confounding factors in play, so pointing the finger at administrative appeals is hasty.”

    Is it or ain’t it?

    Is she claiming there is no link?
    Or that no studies have found a link?

    Or is it simply a misquote?

    Now as to objections, people have been using them successfully. So it could be seen (if folks had research bucks to do so) whether the HFRA projects with objections led to more litigation.

    Just a casual observation is that most of the projects we discuss on this blog (which we discuss because of litigation) have appeals that you can find in the appeals database (good source of the FS arguments, even while they are under the cone of litigation silence). Only one, the Ashland project, did I not find an appeal and it was due to them using an objections process.

    My hypothesis would be that we would see the same kinds of litigation, but folks have to be more forthright about what they want earlier in the process. I don’t know if you were on the blog when I tried to find out what people really wanted changed about Colt Summit.

    http://ncfp.wordpress.com/2011/10/11/now-entering-litigation-the-cone-of-silence-descends/

    It seems like there is “we will only tell you what we really want in private settlement discussions.. procedural complaints are our tool to get a private seat at the table” compared to going eyeball to eyeball with other members of the public in a public venue and explaining what you want and why.

  4. Thanks for bringing this up, John. This is a great case of different ways of framing the question yielding different results.

    If you have a project, and it is not appealed, at the end of the appeal period, you go ahead and implement the decision. If there is an appeal, you try to meet with the appellant. If you don’t agree it goes through an appeal process involving (sometimes) a team of folks to review it, and formal appeal response letter. This clearly delays implementation.

    What that study showed was that many (averaged across the country) fuels treatment projects aren’t appealed. It doesn’t help you if you are working in Montana to know that if you averaged across the country, your problem is insignificant.

    I used this example in previous posts looking at the two studies..

    To imply that nationally there is no problem, so complaining is unfounded, when one or more regions has a problem seems arbitrary. Based on that logic, if one of your family has serious health issues, but the rest don’t, you can’t shouldn’t be complaining about the health care system.. after all if you take the average for your family, it works. It’s a framing or judgment call.. is it a problem if any of your children have a problem, or is it only a problem once you average them all out?

    I would just add that it seems not only arbitrary, but also capricious! But then GAO studies are not subject to APA..;)
    Really it’s a values question of “is it a problem if a district experiences it?” “is it a problem if a Region experiences it (as 1 did in those studies)? or “is it only a problem if the whole country averaged experiences it?”

    It’s kind of like the demise of timber … “is it a problem if it affects the average income of Forks, Washington”? Or is it a problem only if it affects the average income of the state of Washington? Or is it a problem only if it affects the average income of the US?

    “Studies” try to derive legitimacy from their “objectivity”; yet you don’t have to be a rocket scientist to see that “scale chosen” is a value- and not particularly objective. And if you choose to select a local scale, then you would actually talk to the people affected, perhaps, in your “study” and examine their experiences.

    Here’s a link to our previous discussion

    If you look at the comments, it turns out that in Region 1, 36% of projects that can be appealed are appealed, and 87% of those that can be objected to are objected to.

  5. Rob got back to me (thanks Rob!) and said that Brown had said:

    Brown’s observation was that many things delay FS projects, not only administrative appeals. Her point was that swapping one protest process for another without confronting the other delay factors was not much of a solution.

    Is it just me, or is that a different idea than the quote above?

    “But in the scholarly research on that issue – whether administrative appeals slow down or delay or preclude forest management – there’s no support that links administrative appeals and delays in project implementation. There are many confounding factors in play, so pointing the finger at administrative appeals is hasty.”

    One idea..
    ” there’s no support that links administrative appeals and delays in project implementation.”

    Another idea:

    “Appeals are one of many things that delay projects”

    These seem like different ideas to me.

    And also the new quote implies that “objections instead of appeals won’t improve the delay factor”.

    I know some field folks are quite fond of objections instead of appeals. It would be nice to hear directly from them why they find them preferable. One thing is it seems like you have put your cards on the table and give the FS a chance to respond in the decision documentation. Rather than wait until the record can’t be supplemented to address your concerns.

    Back to John’s point.. the new quotes are reasonable. But to say that appeals don’t delay project implementation..that’s what I found questionable.

    Truth in advertising.. I used to be the Consort of Commander Gridlock (no, not literally!) so I do have some experience with the world of “analysis paralysis.”

  6. An often neglected perspective on “delays” cause by public protests and appeals.

    A typical Forest Service timber sale planning process often takes 2-3 years from scoping through appeal That’s 700 to 1100 days. The public typically gets 30 days notice for scoping, + 30 day period for comments on the NEPA document, + 45 days for appeals. That’s 105 days – only a small fraction of the delays causes by the agency. Also, the agency can often continue to work on the project concurrently during public comment periods.

    It’s true that an appeal adds 90-100 days of delay compared to not appealing, but that’s still only a small fraction of the total planning time. And there’s value in that delay. Appeals often result in resolutions that are agreeable to a broader spectrum of the public.

    Think of all the reasons that planning is delayed. Many do not involve the public, e.g. staff sent out on fires, staff pulled to other projects such as salvage, staff sent on details to the SO, RO, or WO, policies in flux (such as ESA recovery plans and critical habitat).

    To blame project delays on the public participation process is a gross oversimplification of reality.

Leave a Reply

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