Fred Norbury and Law Professors on Planning and the 2005 Rule (video)

One of the reasons we started this blog was to increase the net discussions between law school folks and practitioners of planning and NEPA. This is a video recorded in October 2007. The main voices are Fred Norbury, Professors Fred Cheever of the University of Denver Law School and Mark Squillace of University of Colorado Boulder Natural Resources Law Program. Rick Cables, the Regional Forester at the time, weighs in with his experiences and I pop in from time to time (sounding much less articulate than the rest of them).

Cheever starts asking questions first, and then Squillace. You can see Fred Norbury on the video and the only other FS players chiming in were Rick and me (who do not sound alike).

Here’s a link to the video.
Fred starts in with his talk at about 3:40; at about 21:00 are some of the ideas about collaboration. An interesting discussion about how 82 plans had requirements.. some of which were fulfilled and important (standards); others not fulfilled (outputs)around 51:00. it’s fascinating to me as to how it’s important for some things to be “binding” and others not so much; which is still echoed today in the O&C debate.

Because these folks have a policy agenda, of course. Which is OK, as my friend “Eeyore of the Forest Service” says with a sigh..”it’s not good, it’s not bad, it just is.” But it seems to be a very different approach than if you rounded up a group of professors at CSU or OSU or NAU..but if you disagree, please comment.

There is a discussion about the divisiveness of traditional alternatives (related to today’s discussion of collaboration) around 56.

An issue to Professor Squillace was the EIS on the rule (yes, a judge required the FS to write an EIS on implementing different planning processes- as if they would result in different outcomes in a way that could be “meaningfully evaluated” (that’s NEPA, not me). But Fred Norbury says that logically, one could find that planning itself had no impacts on the environment because most of what was planned never happened (that’s right at the end of the video). There is a fundamental difference it seems to me between the language of Ohio Forestry and doing an EIS on a planning regulation.. if plans do not have effects then planning to plan probably doesn’t have an effect. But that’s just me.
So given that so many years have passed; Fred Rick and I are all retired; the 2005 Rule has gone to planning rule heaven; and I am looking at this in a more reflective way.

Here are my thoughts and I welcome discussion.

1) FS workers have traditionally come from natural resource and other schools, hence there is a natural conversation that happens and it seems like that leads to a feeling that “our graduates are generally attempting to do something right and know more than we do about actually doing it.” They tend to have mid-career training where “world as practiced” meets “academic world.” which if structured right, leads to fertile discussions.

2. I have noticed that many fewer FS employees come from law schools. So the trust/competence level must not be there. I don’t think someone from CSU would assume that folks in the FS hadn’t been working with community planners; or that they could think up better ideas about how to plan than people who work with planning every day. It’s almost like “we know more than you do about what you do because of our perspective.” But they are very nice people.. so I think it might be a legal culture thing.

3. These professors and students seem to feel like it’s their job to protect forests from abuse; not to illuminate what the trade-offs are, as say scientists are supposed to (at least when I was trained). My observation is that they tend to see things more politically (good guys vs. bad guys) than I remember in natural resource schools.

One more story.. we were having another discussion with Squillace and students and one of the students said that he thought each plan should start from scratch, and then only add uses as they made their case. I pointed out that that might not be satisfactory to people and their lawyers at say, Vail and Aspen. He said something like “but I go skiing!”. I think it is a good idea for discussions to happen across the academic/practitioner divide. Because the divide can be wide.

Let me know if you have problems.. this is the first one I’ve ever uploaded.

23 Comments

  1. Sharon

    Do you think that it could be a simple as everyone wanting to have a “raison d’être”?

    “Every man’s way is right in his own eyes” and woe unto him who would attempt to show him otherwise.

    Re: “I think it is a good idea for discussions to happen across the academic/practitioner divide. Because the divide can be wide.”
    –> I look at the state of our national forests and I find it hard to agree that management by committee is a net positive. However, I also understand that the USFS has no other choice. Even though it is self defeating. But even if we were practicing sound forest management on USFS lands, any mistake would be blown out of proportion and we would be right back where we are because “Every man’s way is right in his own eyes” especially when it is something so simple and common sense as forestry. ‘I mean, just look at that logging job, its not as pretty as it was before they let those greedy capitalist loggers and forestry people in there. Anyone can see that. We should let nature do its thing’. Well nature is doing its thing and people still aren’t happy and its all the fault of global warming. ‘Oh, yea, we don’t want nature to do its thing with that cute little NSO’.

    It is like the story of the family who loaded up their donkey with firewood and set off to the market to sell it. They meet someone who shamed the husband because the wife should be on the donkey and the kid should carry the firewood. So they made the changes. The next person that they meet shamed the husband and so the wife carried the firewood and the kid rode. Of course this went on continuously until they got to the city after the market was closed and they had to give up the firewood to pay for lodging and return home empty the next day.

  2. Hi Sharon! Thanks for posting the video; The bit of historical perspective was interesting. As someone who graduated from a natural resources school but took most of my coursework in policy and law, I have a perspective that doesn’t quite fit into the “natural resource school” OR “law school” camp. Moreover, these days most natural resource school graduates take an array of courses, thus the perspective that “scientists come from natural resource schools and lawyers come from law schools” is fairly outdated. It’s just not that clean cut.

    Anyway. I hope you’re having a fantastic autumn; it finally started cooling down here in Missoula 🙂

  3. Sharon – below are my comments, organized by your numeric list:

    1) I agree that every college graduate (regardless of what type of school) will grapple the dynamic of the “real meeting the ideal” (and vice versa). What natural resource graduates do know more than most people is the technical aspects of how to manipulate the natural environment. Whether those manipulations are “good” or “bad” is in the eye of the beholder, but a forester, wildlife biologist, botanist, archaeologist, etc. should have more technical knowledge about their field than a person who did not graduate from that field. The trip wire for FS employees is that they work with public lands, meaning that the general public inherently has input as to how those lands are managed. Those same NR graduates are now faced with a non-technical work environment, which is centered on values. This is the day-to-day struggle that is realized, whether it be for on-the-ground actions or policy making. So, the ideal of working with technical knowledge competes with the realism that public values do color (dominate?) the conversation.

    2) I find it hard to believe that legal graduates would be so entrenched in one perspective when it seems to me that the study of law is partly about forming the justification for a position with legal precedent while acknowledging other positions that are supported by legal precedent. Rarely is there a “bright line” in legal arguments and policy development for public lands (whether it be regulations or a local land management plan) experiences the same dilemma. So, I have found that collaboration on a one-to-one level with attorneys who are WAY smarter than me in legal knowledge helps me understand their perspective while helping me understand whether my position/idea can be accomplished. At the end of the day, I think most of us would like to reflect on what good we have accomplished for the environment rather than the seemingly satisfactory position that we were “right” in our position. (BTW – who determines what “right” is?)

    3) I believe the legal profession is premised on an “us vs. them” approach (which can have a wide array of players…for example, loggers vs. environmentalists, federal government vs. local government, etc.). And while the debate over public land policy can rapidly move into this confrontational dynamic, I have found that debating/arguing over philosophical and value positions doesn’t help us understand the issues or opportunities that we humans should be paying attention to. But, a lot of that argument can result from not appreciating the background of one’s perspective. Just because a person did not go to college, but lived their entire life in a forested landscape, doesn’t mean they don’t have something to share. That sharing can help build a bridge across the academic/practitioner divide that you suggest exists. However, the constructive pursuit of compromise does not occur in the courtroom – it’s a “win/lose” game once a judge is involved. I personally find those outcomes less satisfying than if I was able to work out with someone a solution that works for both of us.

  4. The trip wire for FS employees is that they work with public lands, meaning that the general public inherently has input as to how those lands are managed. Those same NR graduates are now faced with a non-technical work environment, which is centered on values. This is the day-to-day struggle that is realized, whether it be for on-the-ground actions or policy making. So, the ideal of working with technical knowledge competes with the realism that public values do color (dominate?) the conversation.
    This.

    The challenge of managing the public’s land is that there are many publics. Does that make our job more difficult, time-consuming and bureaucratic? Undoubtedly. But it is our responsibility to listen to those publics and consider their views and values when we make decisions about their land.

  5. @Travis Mason-Bushman

    Re: “The challenge of managing the public’s land is that there are many publics. Does that make our job more difficult, time-consuming and bureaucratic? Undoubtedly. But it is our responsibility to listen to those publics and consider their views and values when we make decisions about their land.”

    –> Are you satisfied with the performance/effectiveness of the USFS? What could be done to change how it operates so that it significantly reduces the number of lawsuits against it?

    • Keeping in mind that I have been a PFT employee for only a month (but with two seasons of field experience before that, along with an intern stint in the RO) from my perspective many challenges are internally-driven. For example, information systems are outdated and disjointed – FSWeb is an impossible mess, to name just one issue on that side of the house.

      Also, to take a page from our forest strategic plan, we need to do a better job of telling our story to the public. We do not sufficiently and proactively engage those diverse publics with mission-based communication about our role as land managers and our decision-making processes. Again, viewed through my lens as a professional interpreter, it is our agency’s loss that interpretation and education are not valued and funded here as they are in the NPS.

      • Travis

        What is a PFT employee?

        I thank you for your feedback.
        Am I correct in remembering that you think that harvest levels need to be higher than they are? If so, what are your observations and opinions that lead you to think that way?

        As to “FSWeb is an impossible mess”. I have never heard anything good from any USFS employee about their computer systems all the way back to the 80’s.

        Re: “viewed through my lens as a professional interpreter, it is our agency’s loss that interpretation and education are not valued and funded here as they are in the NPS”
        –> Isn’t that because of their different purposes as they were originally conceived?
        –> Would you support moving a portion of USFS lands to the NPS where the land use was more suited to recreation, aesthetics and interpretive purposes?
        –> Would you support moving a portion of USFS lands to the EPA where the lands were significant to the endangered species act?
        –> Would you support moving a portion of USFS lands to the states where they weren’t especially suited to management by the NPS and had no serious environmental concerns that couldn’t be addressed by Best Management Practices?
        –> What does the USFS do that couldn’t be done just as well as the sum total of splitting its lands up between the NPS, EPA, and States?

        • Isn’t that because of their different purposes as they were originally conceived?

          And yet the purpose of interpretation and education isn’t that different. One major role of I&E for the NPS is to help visitors understand the agency’s role in managing the lands – why does the NPS do what it does? It is an extensive agency investment of money and people in an effort to explain its management principles, policies and activities. The result is that the public has a pretty good understanding of the NPS and there is a broad level of public support for the agency’s activities.

          Perhaps in 1905, there wasn’t much public interest in how the Forest Service managed its land. That’s clearly not true today. We need to engage diverse publics and explain our role.

          • Travis.. I think the Park Service is comfortable with a “human intervention is bad” kind of message.. you are hurting the land by consuming too much, whereas the FS message would be more complex.
            Also, I think different administrations feel differently about what the FS mission is.. so that politics switching makes it hard to have a consistent message. NPS doesn’t have that same kind of switching.

            But I think your point is well taken.. how can you get support if you can’t tell your story? If your story has become politicized? GREAT question!

            • Oh, certainly, there’s no question that our message is more complicated and that it is a bigger challenge to communicate. But, if anything, that makes it even more of an imperative that we try to do so.

        • Sorry, slipped into jargon. Permanent full-time.

          Would you support moving a portion of USFS lands to the NPS where the land use was more suited to recreation, aesthetics and interpretive purposes?
          If there is national and local support for NPS management of particular areas, that would be worth considering. But there are significant differences between NPS recreation management and USFS recreation management, culturally and institutionally. Their missions are not the same, and there are important recreation constituencies which are better-served by the Forest Service than by the National Park Service.

          Would you support moving a portion of USFS lands to the EPA where the lands were significant to the endangered species act?
          The EPA isn’t a land management agency and I’m not sure that they want to expand their bailiwick to include land management.

          Would you support moving a portion of USFS lands to the states where they weren’t especially suited to management by the NPS and had no serious environmental concerns that couldn’t be addressed by Best Management Practices?
          No, I would not. The public lands have been reserved by and for the people of the United States — all of them. They are truly America’s best idea – the idea of collective land ownership and management by a democratic government. The American people may argue a lot about what to do with our national forests, but the fact that we argue a lot about what to do with them is explicitly a good thing because it indicates healthy debate in a democratic society and concern for the places we own. If everyone suddenly stopped caring about the national forests, then I would be worried.

          What does the USFS do that couldn’t be done just as well as the sum total of splitting its lands up between the NPS, EPA, and States?
          The USFS, more than any other federal agency, is trying to figure out how to live on a piece of land without spoiling it.

          To quote Bill Cronon:

          The work of the Forest Service can and should and must continue into the 21st century and beyond. Because in a way, the issues that this agency has been struggling with since its creation are at the very core of what it means to be a human being on the planet and what it means to build a sustainable human society. And it is the struggle, not just of the United States. It’s the struggle of humanity.

          • Travis

            Thank you for your thoughts, we are making some progress. So let’s go the the next question which is How Much Is Enough and, more specifically, the disparity between the lands east of the great plains (USFS regions 8 and 9) and the rest of the country? What are your answers to questions 3-a, 3-b and 3-c below?:

            1) From: http://www.epa.gov/agriculture/forestry.html
            — a) “The United States has about 751.2million acres of forest land”
            ———-NOTE: Forest land is not Timberland
            — b) “approximately 249.1 million acres (33.8 percent) are owned by the Federal Government”
            — c) “514.2 million acres of the total 751.2 million acres of forest land, are classified as timberlands”

            2) From: http://www.census.gov/compendia/statab/2012/tables/12s0884.pdf
            — a) Of the 514.2 million total US TIMBERLAND acres, 22% are held by the Federal Government.
            — b) Of the 368.0 million Northern (Region 9) and Southern (Region 8) US TIMBERLAND acres, 8% are held by the Federal Government.
            — c) Of the 146.2 million Pacific and Rocky Mtn. US TIMBERLAND acres, 57% are held by the Federal Government.

            3) Re: Your comment that “The USFS, more than any other federal agency, is trying to figure out how to live on a piece of land without spoiling it.” and your quote from Bill Cronon: “the issues that this agency has been struggling with since its creation are at the very core of what it means to be a human being on the planet and what it means to build a sustainable human society. And it is the struggle, not just of the United States. It’s the struggle of humanity.”
            Those are nice “motherhood and apple pie” statements but they don’t answer the question as to how much is enough, justified and equitable?

            Given these two references:
            http://www.ask.com/wiki/United_States_Forest_Service?o=2801&qsrc=999&ad=doubleDown&an=apn&ap=ask.com
            http://www.infoplease.com/ipa/A0004986.html

            — a) Please explain Why the Lands from the great plains to the west coast require that the federal government control 57% of the TIMBERLANDS yet the federal government only needs to control 8% of the TIMBERLANDS east of the great plains?
            ——> Is it harder to “figure out how to live on a piece of land without spoiling it” in the west than in the east?
            ——> Are the people east of the great plains being shortchanged by lack of access to federal timberlands and having to pay taxes for the rest of the country to have 8 times more access (see 3-b) to federal timberlands?
            ——> Isn’t this all simply the unintended consequence of inconsistent settlement policies on one side of the continent versus the other and therefore not justified and inequitable?

            — b) Why can the lands east of the great plains get by with 29.1million acres of federal timberlands (234.1million people = 8.05 people/federal timberland acre) but the rest of the country needs 83.7million acres of timberlands (83.7million people = 0.95 people/federal timberland acre)?

            — c) So let’s go back to the beginning of this discussion:
            ——> Why shouldn’t we sell some federal timberland in the west to:
            ———– buy more federal timberland in the east?
            ———– pay down part of the national debt?
            ——> Why shouldn’t we turn some federal timberland in the west over to the states for whatever use they deem appropriate to partially compensate for inequitable settlement policies?
            ——> Why shouldn’t we go further in debt and buy enough timberland in the east to provide more access to federal timberland in the east or to provide more protection for endangered species in the east?
            ——> HOW MUCH IS ENOUGH? What is right and equitable?

            • Correction to the last two lines of 3-b:

              CHANGE: “needs 83.7million acres of timberlands (83.7million people = 0.95 people/federal timberland acre)?”

              TO: needs 79.9million acres of timberlands (83.7million people = 0.95 people/federal timberland acre)?

            • Re: Posted September 23, 2013 at 4:33 pm | Permalink

              Any one interested in addressing my questions 3-a, 3-b and 3-c at the Permalink above as to:

              3-a) “Please explain Why the Lands from the great plains to the west coast require that the federal government control 57% of the TIMBERLANDS yet the federal government only needs to control 8% of the TIMBERLANDS east of the great plains?”

              3-b) ‘Why can the lands east of the great plains get by with 29.1million acres of federal timberlands (234.1million people = 8.05 people/federal timberland acre) but the rest of the country needs 79.9million acres of timberlands (83.7million people = 0.95 people/federal timberland acre)?’

              3-c) “——> Why shouldn’t we sell some federal timberland in the west to:
              ———– buy more federal timberland in the east?
              ———– pay down part of the national debt?
              ——> Why shouldn’t we turn some federal timberland in the west over to the states for whatever use they deem appropriate to partially compensate for inequitable settlement policies?
              ——> Why shouldn’t we go further in debt and buy enough timberland in the east to provide more access to federal timberland in the east or to provide more protection for endangered species in the east?
              ——> HOW MUCH IS ENOUGH? What is right and equitable?”

  6. @Emily Schembra
    Emily..my impressions are from discussions with DU and CU Law students. In Colorado, the natural resource school is separate, in Fort Collins, at CSU. I’m sure it’s easier to be a “person in the middle” in places where both schools are on the same campus.

    What I was saying was that (and also in the Hickenlooper post) that you have a basic trust of the people you went to school with and it is hard to think of them as “other.” The professors seem very sure of themselves, of things they know a lot about (the law) and things they know not so much about (how FS environmental documents are constructed vis a vis site-specific plan amendments). Is this because they are professors? Or because they are lawyers?

    I speak to many university folks in the course of my business, and I have found that generally people from natural resource schools are more respectful of my practitioner observations. Either they are naturally more respectful of people (I doubt that) or there is some connection. I am thinking that the connection is “our school trained you so you must be OK way down deep somewhere and your observations worth listening to”. From the law professors, I get more “you need to listen to us because you are really wrong.”

    We also have excellent FS employees who went to law schools and then went to work in the FS… it would be interesting to ask them about how they perceive the differences in culture.

    Note: I never felt like that from FS or BLM lawyers, not OGC, not DOJ, not CEQ. They seem to operate with the assumption “these FS people who work with NEPA know useful things and somehow we all have to work together to find that place where the agency can do what it’s supposed to do, and meet legal requirements.” A person who now works at DOJ even paid me a high compliment of “you could have been a good lawyer.”

    So it was quite a surprise to me to find this difference in my encounters with the law schools.
    It could simply be the lack of customary contact (compared to USG lawyers) (compared to natural resource academics) that leads to estrangement.

    I have felt the same kind of estrangement from faculty members at CU. For example, we once had a meeting with some professors in which they were saying we shouldn’t be doing fuel treatments everywhere in the backcountry. We told them we weren’t doing that.. after they decried it in the newspapers, scientific papers, etc.

    I think a lack of regular contact and opportunities for back and forth open discussions can be hazardous to relationships.

  7. @Travis Mason-Bushman
    Travis, yes, that’s true we need to consider all those peoples’ opinions, but when they disagree with each other and the FS selects one, the FS is clearly agreeing with some opinions and disagreeing with others..

    Let’s take an example of decisions to close roads. Some people would like to access their huckleberry patch. Others are worried about road impacts. Some are worried that the FS can’t maintain roads with its budget. I guess it seems to me that There is No Single Right Answer.

  8. @Tony Erba
    Tony, thanks for your comment. The great thing about discussions like these, for me, is that it helps make what goes on in my head match what I write down better. A great gift.

    2) I think maybe you are being idealistic about academia and both sides being debated. Check this out..http://www.law.yale.edu/news/1855.htm (note, I have examples of that from natural resource world as well, but not so much in terms of political ideologies). In my attendance at law conferences, it seemed like party ideologies were more “in your face” than discussing the same policy topics at a natural resource school.

    3) I agree that the “us vs. them” mentality might be good for some things.. but does not add value or promote relationships. That’s why I’ve suggested required mediation in this and prior posts…

    I wonder if a simple statute were passed that required cases (say, as a trial run, FS cases involving vegetation management) to go to mediation prior to litigation, and the mediation record was available to the judge when ruling, and the mediation documents were also publicly available. This could be tried as a pilot anyway.. perhaps starting with this case? Rider, anyone?

    in this August post and Jon and I had an interesting discussion specifically about that idea.

  9. I attended both a natural resource school (2) and a law school but I’ve never really thought about your points (have not watched the video, but I know the players, and besides I’m a busy retired person). Somewhere along the way I saw a distinction between decisions about ‘whether’ to do something and decisions about ‘how’ to do something. I think the natural resource disciplines are mostly about how to do something – implementing a decision in a technically appropriate manner (though they also have an important role in assessing consequences and even advocating prior to a decision, as in much of the forestry advocacy I see on this blog). The legal discipline is all about advocacy (and maybe especially for environmental law). That difference might attract different kinds of students and might produce the results you are observing.

    • That’s possible… I remember when I worked in the science part of the FS, folks were mostly ISTJs on Myers-Briggs.. in planning they were mostly NTPs. I wonder what law school students are?

      I think you raise a very good point.. which reminds me of the discussion over forest plan EIS’s.. I would say you don’t know the environmental impacts until you know when, where, and how you are going to do a project and what the conditions are at that time. Just in time NEPA is the best in terms of accuracy.

      If you do look comprehensively at the beginning of a 15 (or 30) year period but what you’re looking at never happens, what good is it? So the “whether” and the “how” are inextricably linked.. but often the discussions don’t involve both sets of folks in the same room. Not to speak of whether being a political and not a legal question, ultimately.

      We did have this post a while back on a related topic.. the concrete/abstract divide..
      http://forestpolicypub.com/2010/04/01/talking-across-the-concrete-abstract-divide/

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