To Manage, Perchance to Sell, Forest Vegetation on Public Lands: Why or Why Not?

We have been discussing what lies behind our different worldviews on a deeper level, or at least trying to, for some time. Recently, Mike Wood asked us to talk about our interests here. For some reason, this ran out of steam, but now our guest, Bryan Bird, volunteered to engage in this discussion. The discussion started in a thread about the Rim Fire, so I am starting it over here so it doesn’t get lost. It’s really not about the Rim Fire, it is more general and more fundamental.

Again, Bryan is a guest, so I ask you to be on your best behavior on this thread.

Here’s the first post, in reply to Bob, which triggered my latent desire to have this conversation:

Point taken, but if we are doing this: I am a trained scientist (Masters), held science jobs with the USFS and the US Park Service, and spent the last 17 years digging around in the relevant scientific literature and working in the field on fire and logging related issues. I grew up in the Sierra Nevada foothills outside of Sequoia-Kings Canyon NP.

One thing I am fairly certain of, based on this experience, is that on the balance, timber harvest on federal, public lands is a losing proposition, both ecologically and economically. That is not to say that there may be circumstances when mechanical vegetation treatments will be justified and we should put people to work doing it, but generally not.

So I replied here:
Bryan, if you are up for it..

I am a trained scientist (Ph.D), held science jobs with the FS and CSREES, and have spent 40 years (sheesh!) working sometimes in the field and sometimes not on forest management (including fire and logging issues). Including a notable stint in FS Research where my cubicle adjoined two fire scientists. I worked many places including the Eldorado in California.

I am not certain, based on this experience, that timber harvest is a “losing proposition both ecologically and economically”. In fact, I would argue the opposite.

I think there are two framings that I have…
1. “Local” production is best:
Should the US get its wood it uses from here or from our neighbor to the North or from ?. Why is wood different from agriculture or energy? Isn’t it better economically and environmentally to produce it ourselves?

Or 2.
Why not use trees you remove?
This posits that there are reasons to thin forests and to diversify stand structure. These reasons may be for fuels treatment or to increase habitat for certain species.

How do you frame this issue?

I would imagine that you, like me, are not an expert in economics. But there are markets for wood, and people sell wood and wood products all the time. But we can have that discussion as well, as lots of folks on the blog and elsewhere do know about it.

I would be very interested in carrying on this discussion with you, and see where we diverge in our thinking. We have similar experiences, but I suppose different values. If you are up for it, I definitely am.

And he replied here:

I suspect our fundamental difference is found in what we value our public forest lands for. It appears to me that you see some mix of subsidized commodity production to be preferable (classic multiple use), whereas I see recreation, clean water, wildlife, hunting, wildness, property values, and even aesthetics to be the highest value for the most people (Americans). Go to Headwaters Economics website to see any number of rigorous analyses of these values in Western states and counties. http://headwaterseconomics.org/land/protected-public-lands-increase-per-capita-income

I do not have a degree in economics but I have co-authored several papers, reports and projects that considered the economics of timber sales on public lands and non-commercial, restoration on public lands. My general take home is that, when all values on public lands are considered, it does not make fiscal sense to manage them for commodity production. In fact, there were few forests, post the Ronald Reagan/James Watt heyday of logging levels that actually made any positive returns for the treasury. Most forests, with perhaps the exception of the Allegheny (cherry) did not return receipts to the treasury from their timber programs. I know this is a complex equation and others will argue it.

I do believe in sourcing our timber from within our borders. I also believe private, commercial timber lands are the place for that and can meet the demand. You have to keep in mind the public forest system (USFS mainly) was established after the prime growing lands were already in private ownership. What remained was marginal for timber production (thus the high costs).

If there is product coming from genuine ecological management of public forests, then sure, use it locally for cottage industry, firewood, stove pellets etc. But, I do not want the commodity production driving the management of our public forest again as it did in the 70s, 80, and even into the early 90s.

At this point, we’ll transition to this thread. See comments below.

106 Comments

  1. Bryan

    Since the discussion has moved, I am moving my as yet unanswered questions to see if you have any objections to these areas that I and many other foresters believe are part of what constitutes “genuine ecological management of public forests”.

    Re: “If there is product coming from genuine ecological management of public forests” and “I do not want the commodity production driving the management of our public forest”

    Do you see the following as contributing to a “genuine ecological management of public forests”?

    –> A mixture of nature only management and strategically placed commercial sound forest management that would:
    —- Bring in some offsetting revenue to reduce the cost of “genuine ecological management” thereby allowing for more “genuine ecological management” than the present process allows
    —- Keep stand density down to reduce the probability of catastrophic beetle outbreaks and wildfires thereby reducing the cost of fighting wildfires in order to increase the use of “genuine ecological management”?
    —- Use final harvests (clearcuts and other as appropriate to the site and the species suited to the site) in order to:
    ——- Provide more varied age and species distributions rather than driving a disproportionate share of our acreage into one age class and thereby overly focusing on one endangered species. Is homogeneity to help one species at the expense of providing less diversity in terms of habitat reductions and gaps for many other species who may or may not become threatened as an unintended consequence?
    ——- Create open areas up to 80 acres by clearcutting in strategic locations to make it easier to stop runaway wildfires when the fire threatened to do more harm than good to the forest ecosystem?

    Finally, do you see the professional opinion of foresters as being so worthless that you are willing to ignore their cries that a fair amount of what is being professed as good for the forest is actually counter productive to a healthy global ecosystem? Wouldn’t you rather hedge you bets and have some of what professional foresters say is proven science and some of what environmental groups say. Wouldn’t you rather have diversity including diversity of opinion rather than putting all of your eggs in one basket?

  2. Debating what our preferences for the management US Forest Service lands is fine, but you have to start with the law. Go back to the founding of these forests in the Organic Act of 1897:

    “No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States…”

    So we have to start with the fact that these forests were reserved for multiple uses, one of them being timber production, whether we like it or not.

    • Steve

      Unfortunately, the Organic Act of 1897 has been ignored even more than the constitution. We have many laws that contradict it now. Its kind of like those US congressmen on the steps of the capital that said “we don’t have any laws, we make them up as we go along”. That was on two separate occasions that I saw on TV when they were questioned about something they were doing being against the constitution. Instead of changing laws, congress simply ignores the ones they don’t like which creates lots of contradictory laws and totally messes up the the effectiveness of the USFS.

    • I read the Organic Act’s mandate as first and foremost “improving and protecting the forest.”
      Another is “favorable conditions of water flows.” There is much case law on buffer strips since discretionary management failed. See Stein v Barton where the Alaska USFS was found arbitrary and capricious in its design of stream protection and buffer strips were found necessary.

      Finally, timber must be provided for the necessities of US Citizens. We are now exporting logs in large quantities from the Western States and Alaska. This provision of the Organic Act conflicts with free market philosophy that requires commodities to flow to the highest bidder.

      But these mandates of the 1898 law have all been modified by subsequent statutes and case law, notably by the National Forest Management Act (1976) that came into existence because of cases citing the Organic Act in West Virginia and Alaska.

      • Over the course of the past century, two major pieces of legislation have supplemented (i.e. refined) the 1897 Organic Act (i.e. MUSYA and NFMA). The Wilderness Act and NEPA, along with other environmental laws further constrained FS management options in various ways.

        Prior to, and since these Acts were passed, a huge body of case law has grown which further refines the original intent and/or further defines the meaning behind subsequent laws affecting NF management. I have yet to see, however, any legislation that explicitly rescinds the 1897 Organic Act.

        Perhaps this is because the original purposes of the NF system, vague as they are, represent a pretty good summary of enduring aspirations within the grand American experiment. If so, one could make the case that the MUSYA and NFMA were simply a refinement of these aspirations in response to changes in public values. If so, I wonder how we might “update” our interpretation of the Organic Act to better reflect societal interests today. So much has changed, even since 1976, that it could very well be time for a new, comprehensive encapsulation of how we would like our NF system to be managed today. My sense is that we could probably do this without rescinding the Organic Act, and it might even be a great way to get more people involved and interested in our NF system in general. Just some 50,000 foot thinking. I’d be curious if others are already involved in an effort along these lines.

        • Given that they just spent 15 years or so writing new regulations to implement NFMA, I doubt if the Forest Service would have much enthusiasm for rewriting the law right now. I’d also be surprised if Congress would see the problems described here as a big enough crisis to act on.

          I consider the Organic Act to be irrelevant to this discussion because we are not talking about ‘establishing’ new national forests. We are also not talking about whether the Forest Service has exceeded its management authority (‘to make such rules and regulations and establish such service as will insure the objects of such reservations’), which is what most lawsuits involving the Organic Act have been about. However, I would say that was a problem NFMA addressed, and its restrictions on timber harvest represent a narrowing of Forest Service authority that could be considered a partial rescission of the Organic Act.

          The Supreme Court has addressed the distinction between the purposes for establishing national forests and the purposes for administering them in order to determine the scope of federal reserved water rights (which are derived only from the establishment purposes). Here is the language from U. S. v. New Mexico (1978):

          “The Supreme Court of New Mexico concluded that this Act did not give rise to any reserved rights not previously authorized in the Organic Administration Act of 1897. “The Multiple-Use Sustained-Yield Act of 1960 does not have a retroactive effect nor can it broaden the purposes for which the Gila National Forest was established under the Organic Act of 1897.” 90 N. M., at 413, 564 P. 2d, at 618. While we conclude that the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the purposes for which national forests had previously been administered, we agree that Congress did not intend to thereby expand the reserved rights of the United States.[21]

          “The Multiple-Use Sustained-Yield Act of 1960 establishes the purposes for which the national forests “are established and shall be administered.” (Emphasis on ARE and SHALL added.) The Act directs the Secretary of Agriculture to administer all forests, including those previously established, on a multiple-use and sustained-yield basis. H. R. 10572, 86th Cong., 2d Sess., 1 (1960). In the administration of the national forests, therefore, Congress intended the Multiple-Use Sustained-Yield Act of 1960 to broaden the benefits accruing from all reserved national forests.

          “The House Report accompanying the 1960 legislation, however, indicates that recreation, range, and “fish” purposes are “to be supplemental to, but not in derogation of, the purposes for which the national forests were established” in the Organic Administration Act of 1897.”

          • Excellent post, Jon — thanks. Despite the intent of Congress in 1960 (or at least the House), recreation, range, and “fish” purposes have been given equal footing with the purposes for which the national forests were established in the Organic Administration Act of 1897. One could argue that those “supplemental” purposes are now primary, and timber, if not water, are secondary purposes.

          • Thanks Jon. I always learn new things from your writing, although in this case I’m not sure I am following why the purposes of the NF system are irrelevant to subsequent administration. It seems like the purposes tell you “why”, and the administration tells you “how”. While most every argument over public land management has to do with the “how”, I’m trying to get at the “why”.

            In any case, working with the language you cite, Jon, perhaps the most relevant question is whether the purposes outlined in the MUSYA that “broadened” those originally counted in the Organic Act represent the most relevant way to encapsulate the purposes for which NFs ought to be managed today. In trying to be more clear, it seems like many of the problems facing the FS come from that fact that NF management is far more integrated than it used to be, so I wonder how we might re-frame the purposes today (i.e. Is there a better way to describe the purposes than to just list them out in a “multiple use” framework?

            I also want to clarify that I am not suggesting that the FS can or should review the purposes. What I am trying to describe is a much broader societal discussion. I do appreciate the opportunity to play these ideas out here, and I hope it is at least somewhat interesting to others too. 🙂 Thanks.

          • The MUSYA did not mandate mutiple use of “fish?”

            Most certainly. NFMA testimony argued for buffer strips along salmon streams, because of perceived abuse by, among others, the United Fishermen of Alaska. Congress chose in 1976 to defer to the discretion of the USFS to protect salmon habitat.

            Further abuses were perceived, leading to Stein v Barton ( 1990) which held that the USFS was “arbitrary and capricious” in its management of stream resources in the Tongass National Forest under the Administrative Procedures Act. The court order 100 foot mandatory buffers along salmon streams replace USFS discretionary management. The size of the resource is reflected in the 70 million salmon harvested in that region this year.

            Congress adopted the finding of the court in the Tongass Timber Reform Act (1990).

            Finally there was specific statuory guidance as to what protection was necessary.

  3. I will stipulate in advance that I am not a trained scientist. But as a parting shot (I’m taking a few months off) I’d like to offer this as an answer to the question. It’s from the Quincy Library lawsuit:

    On April 22, 1998, twenty-five government employees, all but one from the U.S. Forest Service [USFS], met in Sonora, California as the Sierran Province Assessment and Monitoring [SPAM] Team. They were working on pieces of their “Ecosystem Conceptual Model,” a theoretical construct of how literally all the pieces fit together and interact to form the entire Sierra Nevada ecosystem, from geological processes of soil formation from bedrock and the effect of climate change on photosynthetic capture of solar energy, right down to the effects of roads and landings on the capture of solar energy. This model of ecosystem function developed by the SPAM team became the philosophical and theoretical basis of the management concept embodied in the Framework and SNFPA [Sierra Nevada Forest Plan Amendment] EIS. The essence of that concept was this: (1) The pre-European-settlement forests were shaped largely by fire — both lightning- and Indian-ignited fire — that were frequent, widespread, and generally of low intensity; (2) Settlers wiped out Indian-ignited fire, and later residents logged, built roads, and suppressed most of the lightning- and human-ignited fires; (3) Modern forests are thus highly unnatural, but pre-settlement “natural” forests will be restored if we just stop logging, close roads, and re-introduce frequent low-intensity fire –prescribed fire. In other words, it will fix itself if we just stop doing the wrong things. That concept is appealing to well-meaning idealists, and the Forest Service would find it relatively easy to implement. Unfortunately, that concept is also badly mistaken. The awkward facts are that: (1) modern forests have structures and compositions radically different from historic natural forests; (2) large human populations now occupy forests and/or depend on them for essential commodities and functions, ranging from timber and water to recreation and safety; and (3) both law and regulation provide for human uses that did not exist in the pre-settlement forests. In order to accommodate these awkward facts, the Forest Service must be pro-active in restoring our forests to structures and compositions that are both natural and sustainable, with full regard for both ecological and human necessities.

    • Ya know, Brian, I was going to craft a comment in response to this, addressing some of those same items but, after reading your comment, I can’t write anything better about the realities of today’s landscape-scale issues. If we had 500 years to try and exclude man’s bad impacts (somehow), and were able to (somehow), increase prescribed fires (without prior fuels modifications), we MIGHT approach the pre-Gold Rush conditions. WELL DONE, Brian!

      I’m grateful for your comment, as I can now work on producing a comment that is specific to Bryan’s home area. Give me an hour or so to work it out in my mind.

    • Bryan: Do your “historic natural forests” contain people who expertly and regularly hunt, fish, harvest, and use fire? That’s usually the major missing component of most description I hear trying to describe “natural forests.”

  4. Bryan, you said:

    1. It appears to me that you see some mix of subsidized commodity production to be preferable (classic multiple use), whereas I see recreation, clean water, wildlife, hunting, wildness, property values, and even aesthetics to be the highest value for the most people (Americans).

    I notice that you use “mix of subsidized commodity production”. Let me explore that in greater detail. Right now public lands in the west are used for recreation, grazing, timber, oil and gas and coal production, minerals, etc. Recreation, at least on FS, is clearly “subsidized” due to the FS inability to charge in most places. I haven’t done the economics of managing ski area permits, or outfitter guides, so I don’t know about those. I don’t think anyone’s saying that fluid minerals don’t pay for themselves. But when poorly regulated, they can also have more severe environmental impacts than, say, a timber project.

    All those things have impacts. Many don’t pay for themselves. Is recreation a commodity? We have the corporations involved banding together to influence policy… the Outdoor Industry Association. One could argue that the cumulative impacts of people stomping around along rivers on rafting trips has substantially more impact than a timber sale.

    So is it the “subsidized”- not unique to timber.. or the “commodity” that concerns you? Is it removing physical things from the land? If so, what kind of physical things? And why is timber shut down more by litigation than oil and gas? They are both commodities, and I think that we would all agree that O&G has more impacts (due to roads and activities taking place longer).

    We have discussed the Headwaters Report here on the blog before. You can see my comment here.

    2. It does not make “fiscal sense”. Now we know that states can make money from timber from state land. And feds do not seem to be able to. If we assume that states are adequately taking care of their land, then it seems to be the structure of FS management that makes that difficult or impossible.

    It wouldn’t need to be that expensive to “follow the law”; in fact, Derek could point you to relatively small environmental documents and projects that have been successfully implemented in Colorado and Wyoming. If the FS started today, and threw out the manuals and handbooks and said “in some cases, we need to pay our way with timber, in other cases we just need to reduce the outlay we would otherwise pay in service contracts”; and looked at the states for lessons, and received support from Congress for making some changes, I think a great many more timber sales could make a profit. Like when I was on the Ochoco in the 80’s, a simple pilot project could test this assumption.

    3. I agree with all the recreation, property values, but I don’t agree that they are mutually exclusive. For example, in Colorado, some people think that “property values” are enhanced by removing dead trees on national forest land around houses. Many of us have worked in forests where many of these things go on compatibly.

    4.

    “I do believe in sourcing our timber from within our borders. I also believe private, commercial timber lands are the place for that and can meet the demand. You have to keep in mind the public forest system (USFS mainly) was established after the prime growing lands were already in private ownership. What remained was marginal for timber production (thus the high costs).”

    It’s not exactly that simple. Huge chunks of land across the west are forested and made it into public ownership, and while the economics may not favor “intensive forest management with inputs” the lands are flat enough to thin or do group shelterwoods and make money. That was the original philosophy of the Forest Service as I understand it .. extensive (pick and pluck silviculture with natural regeneration) kind of management.
    Some communities have very little else economically going on, and honestly, are not going to become tourist meccas. If it hasn’t happened in 20 years when the economy was going well.. well I think there’s a message there.
    5.

    “If there is product coming from genuine ecological management of public forests, then sure, use it locally for cottage industry, firewood, stove pellets etc. But, I do not want the commodity production driving the management of our public forest again as it did in the 70s, 80, and even into the early 90s.”

    I agree that I don’t want a particular interest “commodity production” driving management. But I don’t like environmental groups ” driving management,” either. Particularly ones that are not local, and use litigation as their policy tool.

    The timber industry in the NW may have egregiously used their power. My experience is that environmental groups can also egregiously use their power.

    Further, I just don’t see that the timber industry was ever a “big scary” presence except in the NW. And I would say possibly only the W side of Oregon and Washington. It certainly isn’t in CO, AZ, NM or UT. Our little Mom and Pop sawmills are hardly worthy of worry.

    I understand that you are concerned about that timber industry could get too much power, but it seems to me that there it’s possible that there are ways of dealing with that that we could both agree on.

    • I generally agree with your points about subsidies and impacts from other uses when not well managed, Sharon.

      I do think that the commodity interests have run the show for too long and in many other parts of the nation than you list. Leaving the south and mid-west off the table for now, in the Southwest Region (AZ and NM) the industry, in collusion with the USFS, cleaned out all the large ponderosa pine and Douglas fir. We are now left with that legacy (combined with fire suppression and livestock overgrazing). Add drought and climate change (if you are a believer) and you have very unfortunate results. So, yes, we are still suffering from the “long-distant past.” We ignore it at our peril and must employ many solutions including a mix of mechanical and prescribed fire treatments, stronger ordinances in the WUI, and allowing the majority of fires to burn when human lives are not in jeopardy.

      The threat is still present that management will be driven my commodity forces in the form of new industries including ORV manufacture and sales, ski industry , etc.

      That is what I am currently directing my energy to, ensuring that national forests are managed for the greatest good for the greatest number, based on the best available science. Where you live (local v. some far away state) in my mind has little import as these are “national” forests, our shared American heritage.

      Finally, there are ways to deal with the current conditions, my favorite example is the New Mexico Collaborative Forest Restoration Program (http://www.fs.usda.gov/detail/r3/workingtogether/grants/?cid=fsbdev3_022022) on which I am an appointed member of the federal advisory committee. This model has worked well here for several reasons: 1. the ecological science is fairly clear and agreed upon; 2. our forest practitioners and wood product industry is small and sustainable (scaled to the resource) and 3. we don’t call each other names.

  5. Having lived in timber towns around the Olympic Peninsula for the last 40 years, I have come to wonder why folks see Headwater Economics as a source of objective reporting. They seem to be more of a PR firm that crafts reports to fit the environmental group that requests them. I would never call their results non-partisan. OMB puts out non-partisan reports, but not Headwater Economics.

    Case in point, the rural towns around the Peninsula and in many NW communities remain economically depressed over the past 20 years, and recreation has done little to change this. The ever present potential to lose Secure Rural Schools funding will be devastating, as has been pointed out by many state and local officials. It is hard to tell entire towns that are on the verge of default that non-resource activities are the answer to them.

    One of the studies by HE as to how communities thrive without resource points to Port Ludlow. The development of Port Ludlow was not a success story for the loss of logging. Indeed, the development was on lands owned by Pope Resources (also being the developer), still an active logging company.

    This does show the real issues with using science to argue USFS land management. You can’t look at once thriving towns now almost ghost towns and say this is working. Science in the hands of people that have an agenda they want supported just becomes sociology. Or economics in the sense that if you want justification for a certain belief, someone will sell it to you.

  6. To put this thinking into a planning context, the forest planning process should identify the purpose(s) of timber harvest in areas where it would be allowed:

    Where will it be used to produce or maintain conditions deemed ecologically ‘correct’ (historic range of variability or something like it) for a landscape?

    Where will it be used to improve (or protect from disturbance) a particular wildlife species’ habitat?

    Where will it be used to protect water quality?

    Where will it be used to protect private property (or public resources) from fire (or enhance private property values)?

    Where will it be used to offset project costs incurred for some other purpose (as defined in the plan)?

    Where will it be done for socioeconomic reasons alone?

    Instead of starting with an assumption that there is some ‘timber base,’ build the case for it. In each case it would be necessary to demonstrate factually that the specific need exists, and that timber harvest would meet that need, and that timber harvest would be a better choice than other ways of meeting that need (there are many potentially debatable points here). It would also be necessary to discuss and project how intensive the timber management would need to be. This would facilitate an honest public discussion of why a particular land use decision is being made for public lands.

    • Jon

      Do any of my suggestions above fit in with what you are looking for?
      See: http://forestpolicypub.com/2013/10/11/to-manage-perchance-to-sell-forest-vegetation-on-public-lands-why-or-why-not/comment-page-1/#comment-20416

      You’ll see that I referred to the need for “strategically placed commercial sound forest management that would:” and then I listed some things that established forest science and experience tell us are appropriate and are not being done effectively under the present hamstrung, USFS operating environment.

      I apologize if this ends up being a duplicate post – I tried using HTML here to attach the link but it seems to have disappeared.

      • Yes, Gil, and I may have even borrowed from it. But my point is that the application of any of those principles should be explicitly considered in a specific factual context in the planning process.

        Regarding the Organic Act, it applies to the ‘establishment’ of national forests. The Multiple-Use Sustained-Yield Act and NFMA were needed to authorize ‘management’ of national forests. These laws would allow national forests that were established because of a timber resource to be managed for something else. Counter-intuitive I guess, but times change (a ‘living constitution’).

        • Yes, but the Organic ACt established the National Forests for a purpose, one of which was (is?):

          “to furnish a continuous supply of timber for the use and necessities of citizens of the United States…”

          The Multiple-Use Sustained-Yield Act Of 1960 was “supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in the Act of June 4, 1897.”

          What’s more MUSYA stated that “The Secretary of Agriculture is authorized and directed to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom.”

          Directed, not “may.”

          And ” ‘Sustained yield of the several products and services’ means the achievement and maintenance in perpetuity of a high level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.”

          One can argue that harvest levels in the 1980s were too high. In the last decade, it would he hard to argue that they have been at “a high level.”

          • Steve, no disagreement with what you just said, except to note that while one purpose of the Organic Act was “continuous supply of timber”, the purposes also included “to improve and protect the forest within the reservation, or for the purpose of securing favorable conditions of water flows”, so that one interpretation can well be that “improve and protect” already contains the germ of a multiple use and conservation philosophy. And the MUSYA does call for “the achievement and maintenance in perpetuity of a high level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land”, but also elsewhere specifies those resources as being more than just timber, specifically: outdoor recreation, range, timber, watershed, and wildlife and fish. NFMA goes still further in being specific, but I think it’s not hard to find consistency in these laws about the need for a balancing of timber and non-timber values.

          • Well, ‘high’ can be a relative and subjective term, but in context, I think it has to be limited by both the ‘impairment of the productivity of the land’ and the conditions needed for a similar ‘high level’ of other various resources. The result is a lot of agency discretion and deference from courts (including a court’s conclusion that MUSYA ‘breathes discretion at every pore’). Maybe zero timber harvest would take this too far, but viewing it as a means rather than an end (as I think Bryan was suggesting) may be appropriate.

            • Here’s one example of ASQ’s and how they have varied over recent history on one of my previous Ranger Districts.

              1989- ASQ=65 million board feet
              1990- ASQ=45 million board feet, due to “New Perspectives”
              1993- ASQ=16 million board feet, due to CASPO guidelines
              2000- ASQ= 2 million board feet, due to Clinton’s Sierra Nevada Framework
              2004- ASQ= 5 million board feet, due to the amended Sierra Nevada Framework

              An interesting fact is that the original SNF only allowed harvest of trees between 10.0″ dbh and 11.9″ dbh, in some areas, as well as reducing the maximum diameters to 19.9″ dbh in all other areas.

              What is “too high”, or “too low”, throughout the entire Sierra Nevada range???

              (Interestingly, we harvested 300 million board feet of dead and dying timber in the 4 years between 1989 and 1992, while not selling ANY green sales, at all.)

            • Jon, I think the FS tried that for the last 10 (20?) years or so… doing “restoration” projects, fuel treatment, etc. Here’s how that goes…1) propose a project that does that 2) people argue that the “science” says it doesn’t work and it isn’t really restoration, and that it will hurt some creature and you haven’t done NEPA correctly. Just the same as if the project were for giving people jobs and providing resources that people use, except that you get to get involved (extra fun!) in all the discussions around whether your treatment works to have the desired “ecological” effect.

              I often wonder if the FS hadn’t gone down that track and just said “here are these resources, communities surrounded by federal forests should be able to use them under federal environmental laws, we will figure out where best these treatments should take place for wildlife, fire behavior changes, diversity of age classes and species. I think that’s why the smart people on the Biscuit wrote their P&N as economic… it skips ideology based “science-slinging” in justifying why you are doing it. Which of course if you read many salvage-oriented “science op-eds” during the period they would say “salvage is not ecologically justified,” but the Biscuit people never said it was.

              • Sharon, I think there are two things going on here. The “science slinging” (as good a term as any) doesn’t really show up that much in litigation, as far as I know, because agency deference by the courts usually makes it a non-starter, so it is most prominent (as you indicate) in “science op-eds” and other extra-judicial outlets. What shows up in the courts is, again as you indicated, primarily either “it will hurt some creature” = ESA/NFMA viability standards, and/or “you haven’t done NEPA correctly”. I don’t think justification of fuel treatment or restoration (some would argue those terms are often a greenwashing argument for same-old harvesting interests, but that’s a whole other discussion) are bad or non-strategic things for USFS to put out there. They are important areas of consideration that should be part of the public discourse. And I think the days are long gone when the argument that “we will figure out where best…” etc. is a good one. Agency scientific credibility just isn’t all that high, and in a very hierarchical organization like USFS the agency perspective often is put forth by administrators whose daily job really isn’t doing science anyway. The one place where I think science does show up in court, is when plaintiffs can argue that the agency just plain didn’t do any science at all (and that they should have), or else that the agency willfully ignored available science that didn’t conform to a preordained decision. But there may be examples that I’m unaware of, where science-slinging played the major role in litigation, I’d be interested in learning more about them. thanks,-Guy

                • This is very well stated, Guy, and it gets somewhat to Sharon’s point above about power. The conservationists do not have power in the same way that commodity interests do. Yes, we have won in court, but that is a very different and limited power compared to the power of marketing (money) and politics (arguably money as well).

                  • But none of the people on the blog here are “commodity interests”. You see yourselves as against “commodity interests”. I guess like the ski industry (that’s not a commodity, I guess but is litigated..) or the oil and gas or coal industry. In the case of timber, though, you frame it as you against those old “corporate interests”; but I see the “other side” as small communities and their leaders and folks like us on the blog who have seen on the ground that you can follow environmental laws and have timber jobs.

                    But we actually see legal cases that aren’t against anyone with bucks, just small sawmills (if they had bucks to spend on marketing and politicians, why would they be going bankrupt?) and the working class folks who work there, and the communities that they buy things, and pay taxes, in. And as Bob has pointed out, some of the biggest industry probably doesn’t care that much as they have holdings elsewhere than the US.

                    For example, look at Colt Summit… all the collaborators got together. It appears Mr. Garrity isn’t standing up against some “commodity interest” but against TWS and other folks. Nope, it doesn’t seem to fit our current conditions that “commodity interests have all the power.” Timber may have had once, and I can understand the fear that they might have again, but they don’t now. The Oregon legislators are listening to people from their communities.

                    • Sharon,

                      I agree with what you say here except:

                      1. I do not see myself as against only commodity interests, but rather management that would result in species loss, polluted water, etc.

                      2. We have very different views of litigation, its purpose and players. Yes, many parties are affected by litigation, but very rarely are there defendants in this type of resource litigation other than the government. I am unaware of any “cases against small sawmills and the working class folks.” Are you? I get what you are saying, these parties may ultimately be affected.

                      As fr Colt Summit (and I must plead some ignorance), I believe Mr. Garrity is not against the TWS, but rather is for the lynx and its habitat. If we are going to collaborate on these projects, a bottom line for the conservationists is going to be that wildlife and its habitat are not harmed, but rather only benefited. This is where I draw one of my lines in the sand in my collaborative work, no more species trending towards listing under the ESA only recovering.

                    • Bryan seems quite OK with the trend of catastrophic wildfires, offering no solutions, while blasting all forms of thinning and active restoration projects. He claims we need a “new paradigm” but offers no actual examples that will save old growth habitat from big wildfires. Tell us, Bryan (since you are the “Birdman”), how can owls and goshawks recover, or even SURVIVE, when nesting habitats are being burned at high intensities?!? Tell us YOUR site-specific solutions, please! If you are not a part of the solution, you are, indeed, a part of the problem! Here’s your chance!!

                    • I thought Bryan explained it well regarding Colt Summit.

                      But, as a point of fact the “collaborators” who filed an amicus brief in support of the Forest Service’s Colt Summit project:

                      1) Didn’t include all those who “collaborate” regarding the management of the Lolo National Forest; and

                      2) Did include “commodity interests” such as Montana Wood Products Association, Pyramid Mountain Lumber, Montana Logging Association and the Forest Business Network.

                    • Bryan says:

                      Bryan has a point in being against management that would result in species loss and polluted water. What he’s missing is that the non-management taking place on much of our federal forest lands is one of the primary drivers for species loss and declines in water quality, not to mention declines in water flows.

                      The open-floored forests the early explorers and settlers marvel at in their journals were the result of thousands of years of forest management by the people they found living in and near those forested landscapes.

                      Federal non-management, whether driven by litigation or philosophy, results in overgrown and in some cases over-age stands characterized by habitat loss for some species, habitat gain for a few others. Water flows from these non-managed landscapes decrease because the overgrowth of vegetation consumes more water than a well-managed forest does. Reduced flows result in less capacity for removing pollutants (natural and otherwise) from the forest ecosystem. Lower flows also mean warmer water, which is suboptimal for many fish and other aquatic species.

                      Non-management also results in higher fuel loads that lead to catastrophic wildfires that sterilize the soil far below the surface, significantly delaying meaningful vegetation recovery. These catastrophic fires directly kill individuals of both plentiful and threatened or endangered species. They also destroy the critical habitat necessary for these species to survive and thrive.

                      Non-management fosters the spread of destructive insects and diseases. Overcrowding forces competition beyond levels supportive of plant species, and the resulting death of trees provides the tinder awaiting the spark that starts the conflagration. (The Beaver Creek fire complex in Idaho was started by lightning this summer . . . it’s still burning out of control, with 1,300 people just having been ordered to evacuate out of its path.)

                      The nation doesn’t have the funds to manage the forests without the commodity interests being part of the picture. Even if we did, what would we do with the biomass removed from the forests as part of the management processes?

                      Bryan is correct in saying that litigation is nearly always filed against the federal government, but he fails to go into some of the reasons for why that is the case.

                      There are very few, if any, litigants who want to engage in litigation where they would have to argue a case in which they would have to argue beyond process and/or science. If they filed against entities other than the federal government, they might have to litigate in an environment where the statutory mandates requiring that the human environment be considered on an equal footing with the natural environment would become a significant factor . . . and that might not go so well for them.

                      Few, if any, organizations can afford to litigate against more than a very few entities at a time. The federal government is a relatively easy target, particularly when “sue and settle” can be used as a primary goal.

                      Case in point, though not directly related to forest management, is the litigation brought against EPA to require that EPA take the regulatory reins over agricultural and other practices for the entire 64,000 square mile Chesapeake Bay watershed. At present, six states have portions of the watershed in their respective jurisdictions, with regulatory responsibilities for the portions of the watershed within their boundaries.

                      The litigants do not want to have to litigate their issues of interest with each of the six states. Not only can they not afford to do so, but they can never be assured of consistent outcomes across all six states. If they can convince the courts to order the EPA to take control of regulation over the entire watershed, then they will only have to litigate their issues with the single agency.

                      They’ve won at the initial court, though with the judge expressing concern that this will result in the EPA exceeding its authority.

                      The appeals are being written as we speak.

                      Forest management, properly carried out across both local and large landscape levels, allows for management for habitat. Non-management often works against habitat and species.

                      As for “no more species trending toward listing under the ESA only recovering”, I suppose my line in the sand might be “no more use of species as proxies serving other agendas.”

                      Looking at the spotted owl as an example . . . it may be that this particular species is nearing the end of its evolutionary run here on earth, in common will millions of other species since life began on our planet. If could be that the barred owl, which can successfully mate with the spotted owl, is its natural successor.

                      The spotted owl has served interests well in sharply curtailing harvest and other management activities wherever it is found. Some who oppose “commodity interest” activities in our forests have found the owl very useful to their organizational agendas.

                      We are now at a point where we are seriously considering slaughtering barred owls in a last-ditch attempt to save the spotted owls. I’ve spoken with biologists and other federal managers who have very much off the record expressed their unwillingness to “play God” as part of the effort.

                      So, Bryan, I suppose we would have to accept that we are of differing philosophy on all of this. I do have a question I would like to ask, though . . .

                      You are opposed to “commodity interests” gaining from management of our federal forest lands. You are against management that “would result in species loss, polluted water, etc.” (as are all the other people participating in this thread).

                      I would suppose that you are also against allowing the Tribes to take over management of the nation’s forests again, given how they respond to disease, post-wildfire salvage, and other forest issues.

                      So . . . what is your preferred approach to forest management?

                    • Norm: Excellent and succinct essay — except the Beaver Creek Complex evacuations were two months ago! I’m guessing you penned this in mid-August? Still, glad you posted it here, and the content is still valid, if not entirely current!

                  • Bryan: I am a little sensitive when it comes to the use of the “c-word.” I grew up with people who called themselves conservationists and had history and the dictionary on their side. I’ve read much of what you’ve written here and you certainly do not come across as any kind of actual conservationist I ever met — anymore than I am a brain surgeon that flies commercial jets on weekends for a hobby. If you and your cohorts are going to keep calling yourselves that, please use a qualifying phrase or adjective. I could live with “an Andy Kerr conservationist,” for example, or maybe even the word itself, so long as you use quotes; i.e., “conservationist.” But very little of what you’ve written seems to qualify you as a legitimate conservationist, no matter how you label yourself. Honesty in advertising is important. Especially for people who use pseudonyms to begin with — but that’s another soap box.

                    • Bryan’s group is all about those preservationist issues, which his website shows quite well. They, clearly, want no management on public lands. We’ve seen his like before and they want what they want, and will go to any length to get it. Of course, they cannot defend their views, with actual science and common sense. We’ve seen what happens when people adopt the “whatever happens” mindset. They seem to be just fine when wildfires wipe out old growth, as long as there is no salvage logging. His “hashtag” is “birdguardians” but, he doesn’t seem to care if owl and goshawk core habitats burn at high intensities, even when the wildfire is man-caused. It sure seems that such a strategy ensures that birds remain “threatened” and “endangered”, which benefits their bottom line, through donations from gullible rich people. We have seen this kind of “hit-and-run” mentality, where he makes broadbrush statements, but leaves out any and all scientific content. I guess if it is working for Bryan in New Mexico, maybe he should tell us about those situations, instead of weak attempts to apply them to other places, with other parameters, and other issues. He refuses to discuss the issues I brought up in California.

              • I would argue that the only way the Biscuit purpose and need could be written as economic is if the forest plan included that purpose for that area. Under NFMA and the 2012 regulations, projects must be consistent with the plan (and under the 1982, regulations, projects had to be ‘based on’ the plan). That is why it is important for the plan to establish the purposes for which projects can be developed. (An agency’s purpose and need gets lots of deference from the courts, but can’t be arbitrary and capricious.)

          • Hmmmm, maybe we need a new law that mandates that we cannot import more wood than we produce, off of Federal lands, eh? Canada seems like they can make more money from China exports, instead of sending it to the States. They can also avoid the American import duties, too. Once they have converted over to metric, I doubt we’ll see them change back, anytime soon.

        • Jon

          Re: “But my point is that the application of any of those principles should be explicitly considered in a specific factual context in the planning process.”

          —> We are in total agreement. I guess that I just assume that everyone understands and agrees with that. It can’t be an implementable strategic plan unless it is written down in sufficient detail to be reviewed, agreed to, executed properly, and revised as things go bump in the night. Anything else is just a smoke screen.

        • The Organic Act, now found at 16 U.S.C. § 475 speaks not only to the establishment of national forests, but also to the purpose for which they are established. Once established, the mandate is for the Forest Service to manage the forests to fulfill those purposes.

          Multiple use is there. Timber production is mandated. Improving the forest is mandated. Managing for water flow is mandated. The statute is explicit. The Forest Service is remiss in not meeting the mandate.

          If the Forest Service were to manage for water flow, we would not have the extreme fuel loads we have now, because we would have the spacing to meet the need to produce the flows. Our forests would be more fire-resistant and insect-tolerant. Wildlife would have more habitat, and drug cartels would have a harder time hiding their activities.

          Our forests are sick, and it’s lack of management that’s making them sick.

  7. In southern California, there is but one lumber mill left, that being the Sierra Forest Products mill, near Porterville, a family-run business, not to be confused with Sierra Pacific Industries. SFP is located close to the Sequoia National Forest (including the Sequoia National Monument, administered by the Forest Service), and Sierra National Forest. Those Forests represent “the prime growing lands” in the southern Sierra Nevada. SFP can also bid on projects on the San Bernardino NF but, fuel costs are quite prohibitive, due to a one-way six-hour trip for log trucks.

    So, if Bryan says “I do believe in sourcing our timber from within our borders. I also believe private, commercial timber lands are the place for that and can meet the demand.”, how is SFP going to stay in business when most of their timber volume must come from Forest Service lands, due to a lack of their own timberland ownership, and a lack of other private timberlands, in their area(s)? SFP is on the edge of solvency, due to a lack of timber supply. Both the Sierra and Sequoia NF’s have underperformed in supplying timber, even under current laws that allow less controversial thinning projects. New Forest Plans, under the new Planning Rule, seeks to remedy that situation. Without SFP, beneficial actions will be seriously curtailed in the Sierra and Sequoia NF’s, due to budget problems and capability.

    In the case of areas where Sierra Pacific Industries operate, they used their vast land ownership to stay in business, usually clearcutting. I am very sure that they would like to reduce cutting on their own lands, in favor of thinning overcrowded National Forests. If Bryan is for banning Forest Service thinning projects, that means SPI would continue clearcutting on their own lands. Yet another result of the “whatever happens” strategy, so embraced by preservationists.

    If we follow Bryan’s lead, that would mean more and more large, destructive wildfires, like the Rim Fire. Fires starting on Forest Service lands never stay on Forest Service lands, resulting in heavy-handed salvage logging on those SPI lands. Again, thinning projects seek to reduce crowded forests, by thinning out smaller trees, and plucking out the occasional medium-sized tree between 24 and 30 inches dbh. Additionally, thinning projects also employ a strategy based on their recent study GTR-220 ( http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5275492.pdf ), which would also employ a “gaps and clumps” strategy in appropriate spots, seeking to enhance a mosaic upon the land. While we cannot follow all of the recommendations in GTR-220, due to current rules, laws and policies, we should accomplish what is legal and desirable, in as many places as we can.

    It is important that we realize that there are many non-commercial necessities, including road maintenance and submerchantable plantation thinning, that needs to be funded with logs from our thinning projects. Biomass use might need some subsidies, as long as fuels costs remain high. One solution is to establish many strategic regional biomass sites, where materials could be dropped off and then burned by mobile biomass burners, on a rotating basis.

    Regarding recreation, I doubt that the area of the Rim Fire will generate much in the way of tourist dollars, for the foreseeable future. Tourists will drive through there, on the way to Yosemite, without stopping. I’m sure that parts of the Rockies are losing tourist dollars, due to dead and dying forests. I am also sure that people don’t want to live near such forests, either.

    I’m sure I am leaving out some issues I want to cover, so I will reserve my right to address those issues as they come to me.

      • That isn’t a very convincing reply, Bryan. However, it is a very expected reply, coming from people who want the “whatever happens” strategy, including the Rim Fire’s massive destruction. There ARE eco-groups, here in California, who support the current style of forest management. They see the value in doing “something”, to avoid firestorms that cost 10’s of millions of dollars, and the elimination of vast old growth forests. I’d really like to see what you tell your contributors about the loss of critical endangered species habitats, especially regarding goshawks and California Spotted Owls. Is it “All Good”??? Or, do you blame the now-distant past for today’s troubles?

        I’m sure that many folks here would like to see your solution of how to deal with the Rim Fire (and how to mitigate future Rim Fires). C’mon, let’s see what you want to do. Here is your soapbox!

  8. I am not so sure of how nice it was of you Sharon to ask Bryan to get into this discussion. But his position is one that I afraid is commonly held by many otherwise intelligent people.
    First I would like to say that it has been my observation that the Federal government in the West owns some of the best and most productive forests lands in the world.
    Second that since we own some of the most productive and valuable forests in the world we as an intelligent society should be able to create economy with them. My point here being there is no reason for below cost timber sales. The reason we have below costs timber sales is as complex and confusing as the agencies and laws that manage our federal forests. Sometimes I think there is a segment of these agencies that don’t want to see profitable timber sales.
    Restoration work in our forests takes taxpayers money to perform. You cannot create an economy this way.
    Tourism has not and will not create economy in our rural communities. Very few tourist visit our federal forest lands. It might help REI, but it isn’t helping rural Oregon.
    I am offended by viewpoints’ like his for many reasons. Two of them being, first, it shows total disrespect for our rural communities. No matter what they say they don’t really care if we have jobs or not or if our school are good or bad.
    Second is I think shows a total disregard for the value of the trees. How can we ignore the useful things of beauty that can be make from these trees. Things that can be made to last for centuries.
    About allowing private forests land to provide all our forests products needs. This will only results in the continued consolation of production and wealth. Soon if we continue on the path we are on there will only a few giant corporations producing wood products in North America. (Remember with the shutdown of timber production from Federal lands the impact was immediate, the closure of family own sawmills, lost of jobs in rural communities, and the deterioration of public facilities. The large international forest corporations continued to flourish.)
    With our federal forests we have the unique opportunity to create a strong diverse society and keep our incredibly beautiful environment. But we cannot do this without considering harvest of forest products.
    There is only one reason to sell timber and that is to create jobs.

    • I think the economic process that analyzes costs and benefits needs attention. The money from logs are being re-invested back into our forests, in many forms, including non-commercial tasks and “payment to counties”, that aren’t accounted for when people claim those projects are “below cost”. I also think there are other things that should get paid for, from the sold logs, as well. Since the government is unwilling to enact living family wages, health plans and retirement benefits for temporary timber folks, couldn’t we use logs to pay for those costs, which would encourage the best people to be hired, as permanents? Otherwise, the people wielding the paintguns continue to be people hired right off the street, with little-to-no experience or education. It’s a revolving door, and as soon as they get training, many of them leave, due to the fact that those are dead-end jobs, with no possibility of advancement. Indeed, HR 1526 seeks to eliminate those temporary jobs, altogether, in favor of industry doing the work. I don’t think the public wants that.

      I do welcome Bryan’s thoughts, as they offer clear contrasts to people’s thinkings and actual realities.

    • “There is only one reason to sell timber and that is to create jobs.”

      There are obviously many people who feel this way, including some members of Congress. The problem is that it is not an authorized multiple-use under MUSYA, so I don’t know where the authority to do this would come from. Is there another law that says national forests are to be managed to provide jobs?

    • stump: I’m in full agreement with everything you’ve written, except I believe that “restoration work” if done properly, creates a profit AND lots of jobs. Most of this leaf-raking and tree pruning that’s been labeled “restoration” suffers from the same semantics malady as “preservationists” posing as “conservationists.” Here’s a post from last year on this exact topic you may wish to consider (or, “I’d like you to consider”): http://forestpolicypub.com/2012/04/04/8829/

  9. Actually, I don’t agree that all the purposes should be spelled out for lawyers to fight over.
    All lands need to be managed for their purposes, from timber production to habitat creation to water yield to wilderness “values.”
    An example — sometimes an event will happen on noncommercial timber that is accessible. Wasn’t planned for a cut, but it’s dead now, or monolithic fuel, and yep, someone could make a buck going in there to swat down enough wood for it to be safe to torch. Put in some fuel breaks and let her rip.
    And I’m okay with the parkies and wilderniks burning their stuff to ash. They want “natural” fire? Good, just keep it within the boundaries.
    I did a major massive road trip through several closed Indian reservations. Bottom line is, the treatments used are constrained by pragmatic decision on whether or not an action will pay off in a reasonable time frame. Post fire, the tribal managers will log some, rob the money to plant some, and leave the rest or maybe burn a bit more later.
    Their treatment of OG PP is also pretty interesting. They manage to leave a cohort of trees for part of the pumpkin cycle, from 80 years up to about 120-140, depending on the aggregation rate. Older trees just take up space as they lose their crown and vigor, in the meantime, younger trees are coming along. The OG associated critters can’t tell the difference between a 100 or 300 year old pumpkin, they use both.
    The best way I can describe the overall deal is — capitalistic socialism. The tribes manage in ways that make fiscal sense, or moderate losses, because they can’t print money. They have to make it. And the results, especially recently as tribal control has consolidated and matured, is impressive.
    Then there is the issue of profitability. States make money, private holders make money, Indians make money, but the feds lose hand over fist because of all the preparation costs and staff overhead aimed at shepherding programs through the court system. Never mind the recreation cross-subsidy — I was okay with timber first and foremost because it created and supported the kind of recreation forms I like. Then I started appreciating the jobs angle, and now, the habitat angle given the outcomes of passive “management.”
    Intrinsic value is fine. Some can call it priceless, but there are real costs to society, most of whom price these intrinsic values far lower than folks like Byrd, Soule et al. They are the ones bearing the cost, and the burden upon the society at large needs to be respected far more than it is now.

    • If you don’t resolve the purposes in a plan, the lawyers will fight over them on every project. In your example the plan should say that this area is one where it’s ok to harvest timber for the purpose of …. (capturing economic value of dead trees).

      • Even when you “resolve” the purposes in a plan, people who continue to not agree with the resolution will still “fight them on every project.” Maybe my experience includes something yours does not?

        • I think that generally/usually when the FS has a viable plan, and scrupulously follows the standards within it, and doesn’t attempt an end-run around NEPA and/or ESA, then few folks would bother to try and litigate it. That’s why, as others have often noted here, the majority of projects don’t get litigated (so saying “fight on every project” is probably a little bit hyperbole). I know that I’ve personally looked at proposed projects for clients, we’ve determined that the FS was following the law at least “close enough” for those projects, and nothing more was done. I think the relatively high success rate of litigation against FS projects isn’t really a question of liberal judges or whatever, but rather that the proposed implementation of those projects entailed fairly clear violations. There will always be some outliers, I suppose, but few attorneys are eager to take on obvious losers, since most aren’t on salary and a losing case boils down to a lot of work (and opportunity costs) at about minimum wage or less. I can understand, though, how from the FS side it may seem otherwise, since getting sued is always a drag.

          • I worked on a big Collaborative project on the Eldorado last year, and it has been winding its way through the system. The Callecat Fuels Reduction Project had three appeals, all of which were addressed. I read through all three and I am not convinced that it would make it through the courts, especially the Ninth Circuit court.

            Here is the link to appeals within Region 5: http://www.fs.fed.us/appeals/appeals_list_plain.php?d=1&r=110500 The Callecat project is at the top of the list.

            Some of the items seemed quite frivolous, like requiring a Table of Contents within an EA. Other items seemed very technical, especially regarding Cumulative Watershed Effects, in an area that hasn’t seen much logging in the last 20 years. I sure cannot tell if the Forest Service “followed the law” on this stuff, especially not having any hydrology classes. One appellant, Dick Artley ( a member of PEER) appealed 4 different thinning projects in Region 5. Many of his “concerns” seem quite “procedural”. Another appellant, Erik Holst, used to work for the Eldorado as an “ologist”. He knows the ins and outs of NEPA compliance.

            It is interesting to see how the Forest Service reacts and explains their decisions. Does anyone want to read through some of those and “judge” their probability of winning in court? The complexity is too much for me but, I think these issues are an eye-opener for people concerned about the new process. At first glance, by my admittedly naive viewpoint, it looks like the Eldorado will have their hands full, with at least one lawsuit against the project. However, I AM surprised that no one is appealing issues like the cutting of “old growth”, under 30″ dbh. Also, will the Forest have to do an EIS, as opposed to the EA they produced? (I have no relationship with the Eldorado, at this time.)

          • Guy, Thanks for this thoughtful comment. First of all, I don’t know what a “viable” plan is, but it’s probably in the eye of the beholder. Like, perhaps, one in which the plaintiff has the outcomes she/he preferred. but I like what you said, if things were not an “end-run” “few folks.”.. would ..
            We can use the example of Colt Summit. Apparently they did not do an “end-run” in the eyes of the law, but one group thought they did. Hence a couple of years and more documentation. Even in a project that was developed collaboratively. And acres further reduced because of the FS attempting to address people’s concerns. So it only takes one person who really “believes they violated the law” to keep all the other people from getting the project done. I did not see a “clear violation” in Colt Summit and neither did the judge..
            Anyway, outliers may be outliers, but there are enough “outliers” to be a great deal of work that 1) we are paying for with taxpayer funds and 2) there are opportunity costs of things people could be doing that are useful, that they are not if they are rewriting documents, adding more paragraphs, Bates-stamping, copying administrative records, etc.

            I would like if we could separate out the “outliers” somehow and leave generic abilities to sue. Unfortunately, so far, only one “side” seems to be coming up with ideas and they are all rejected…do you have any ideas?

  10. In the interest of continuing an interesting conversation regarding the purposes of National Forests, I would like to come back around to the fundamental purposes of the National Forest System: “No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” (from the 1897 Organic Act).

    Since this statement has ostensibly set the context for all National Forest management (and the controversies over public land management), it is important to look closely at what this statement means and decide whether, in light of changed public values and socio-political context since the formation of the NF system, we are not at the point where we should consider a revised “purpose statement” for the National Forests. In full disclosure, I am an in no way an historical expert on this topic. Having said this, here’s my take on the purposes of the National Forest system…

    NO NATIONAL FOREST SHALL BE ESTABLISHED, EXCEPT:
    1. Improve and Protect – Given the time period and social context in which the Organic Act was passed, it seems reasonable to assume that to “improve” a forest meant to actively manage the forest for the greater society’s benefit, thereby taking it from its existing condition (which was perceived as inefficiently producing goods and services), and moving it toward a condition that better served society’s needs. Likewise, to “protect” a forest (in the late 19th Century) meant keeping it out of the (unregulated) hands of the timber and mining companies, such that it would exist in perpetuity for the benefit of the larger society (fire suppression didn’t really come in vogue until after 1910, as everyone on this blog knows).

    2. OR Securing favorable Conditions for Water Flows – Taken in context, it is reasonable to interpret from this part of the purpose statement that a National Forest could be established for the sole purpose of securing favorable water flows, which would imply that any activity that may infringe upon the conditions for favorable water flows within a fores would be in contravention of the purpose for which the Forest was reserved. However,

    3. AND Furnish a Continuous supply of Timber – Again, taken in context, a “continuous” supply of timber would not imply maximizing timber from National Forests. Indeed, when one considers the social context within which National Forests were created, it is reasonable to interpret this part of the purpose statement as imposing a very conservative approach to timber harvest. So long as the harvest is “continuous” (at whatever level), it can be argued that the National Forest(s) is/are meeting their intended purpose.

    Now let’s look at what Bryan said at the start of this thread:

    “I see recreation, clean water, wildlife, hunting, wildness, property values, and even aesthetics to be the highest value for the most people (Americans).” Bryan’s values as stated here appear to fall solidly within the clause of “improving and protecting” National Forests for the greater benefit of society. Managing National Forests for the greater good in this manner is an enduring value the underlies the purpose of the NF system as a whole. This is not to say that managing National Forests for timber production couldn’t also be argued as for the greater good, even without the subsequent clause that speaks to a “continuous” supply of timber. My point here is clarify that Bryan’s values (all of which I share, as I think most of do) all fall within the “improve and protect” purposes of the National Forest system.

    The next part of what Bryan said, which really caused a lot of angst for some folks on this blog was the following:

    “If there is product coming from genuine ecological management of public forests, then sure, use it locally for cottage industry, firewood, stove pellets etc. But, I do not want the commodity production driving the management of our public forest again as it did in the 70s, 80, and even into the early 90s.” If it is conceivable that an admittedly small but “continuous” flow of timber products might be produced from National Forests through implementing “genuine ecological management”, then here again Bryan’s preferences are well within the original purposes of the National Forest system.

    My point in bringing all of this up is that I sense many people who favor more commercial timber harvest often conflate the history of the National Forest management since the 1960’s in particular with the actual purposes of the National Forest management system. I’ve often heard people say, for instance, that if people “don’t want commercial timber harvest (i.e. commodity timber harvest) on National Forests, then we should just turn all the National Forests into Parks”…or something along those lines. Yet, from my understanding, there has never been a mandate in law that the Forest Service must produce a “commodity level” of timber harvest. While there is case law that suggests the FS must consider commercial timber harvest in its decisions, this is because commercial timber harvest was (and still is in some areas) one of several broader public interests in National Forest system management, and NOT because commodity timber production was ever a founding purpose of the NF system. In other words, I am suggesting that as public interests and values have continued to shift away from commodity level timber harvest, the FS has legitimately moved away from commodity timber production in most areas, AND that this is perfectly consistent with the provisions of the 1897 Organic Act.

    • Mike, I suggest that the intent of Congress in writing the Organic Act was specifically to mandate a “commodity level” of timber harvest. Nothing in the Multiple Use or in any other law changes this, except to temper harvests with consideration and sound management of other values.

      If so, then what is an appropriate harvest level today and in the future? Unfortunately, no law spells that out, so the various interests fight for their view of the appropriate level of commodity harvesting. Some groups set the level at zero (the Sierra Club, for example). Other groups champion increased harvests, but I don’t know of one that suggests harvesting more than the sustainable yield.

      A reasonable compromise might be to set the harvest level, by law, at some percent of sustainable yield. Fifty percent would certainly be sustainable, so let’s start the debate there. If a law were passed mandating a harvest of 50% (or 10%, 20%, or some other figure), then the public input, appeals, and lawsuits would be focused on where and how to harvest, not whether to harvest.

      Such a grand bargain would change the nature of the debate over forest management on USFS lands.

      • Steve, why is it that you believe the Organic Act specified a commodity level of harvest? I’m not arguing with your interpretation, just wanting to learn more. Is there a citation you can provide? Or are you like me in that you are just surmising from your view of the context within which the NF system was created?

        • Mike, I did not say that the Organic Act specifies a commodity level of harvest. I said that the intent of Congress was to be a major source of timber: “…to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” And I think they’d say that what the current harvest is less than what they would expect. For example, in Washington state, harvests from federal lands in 2012 were slightly less than 3% of the total amount harvested in the state. 43% of forestland in the state in federally owned.

          However, my main point is that establishing an annual harvest based on some percent of annual growth would shift the focus from whether to harvest to how and where.

          • Hi Steve,

            OK, I understand better what you meant now (although if you take a look at your post you did say that “intent of Congress in writing the Organic Act was specifically to mandate a “commodity level” of timber harvest.”) My understanding of your perspective, now, is that the Organic Act language that speaks to a “continuous flow of timber” for the “use and necessities” of US citizens is, by itself, enough to suggest that current levels of harvest are too low. If so, I would alternatively argue that at the time the NF system was created most timber used by the citizens of the US was still being clear-cut off of private lands and that NF system lands could not have competed with the unregulated timber harvest from these lands. Indeed, there wasn’t even a system for harvesting and selling timber off NF system lands until years later (at least that’s what I recall).

            However, given this social context of 1897, it seems reasonable to me that the “continuous flow” language was likely intended to authorize a much more conservative timber harvest, one that could meet “SOME” of the uses and necessities of citizens over the LONG RUN and in a sustainable manner. Here, I think you and I may agree on the ultimate effect of the Organic Act language. When considered in the context of the other provisions of the Organic Act, it seems that the key wording in the statute is the term “continuous”.

            As you say, Steve, the question is not whether, but how much timber should be harvested? I would also add, “for what purpose”? In other words, is it a central purpose of NF system lands to produce timber for timber’s sake? I would argue it is not, obviously. Is it a central purpose of the NF system to serve a “greater good” of some sort? I would argue yes. So the question remains, “what did the greater good look like in 1897”? How has the “greater good” changed since then? If we can answer these questions, we can begin to discern what level of harvest levels ought to be employed, including when, where, how, because we would know what greater good purpose they are serving.

            • Mike: I’ve got a phone call in the next few minutes, but I have the survey corner post to the first federal timber sale in the US leaning against my house. It was from South Dakota and was for timbers in the Lead mine near Deadwood, about 1897 (all from 30-year old memory, so names and daytes might be a little off, and I don’t have time to Google). It had rotted and fallen over and was a few feet from a rattlesnake, where I showed my frightened boys how to kill it “Indian style.” Still have the snakeskin, too, and the meat tasted like ocean perch.

              The problem then was all of the second growth being clearcut off public and private lands to make railroad ties in pre-automobile/pre-creosote treatment times. I think you’d like reading Stephen A. D. Puter’s “Looters of the Public Domain.”

              • Thanks Bob. I think you hit a good point that reinforces the notion that “continuous” timber supply was likely more important than a high volume. Thus they used this term instead of an other term that might suggest they should optimize timber harvest. There was so much illegal, unregulated and unsustainable timber harvest going on back then that it is reasonable to assume whatever timber that came (legally) off public lands would necessarily be at a very cautious and conservative level, probably far from what later became “maximum sustained yield” through the political pressures of post WW II.

                I’ll check out the text you note. Thanks for the chuckle regarding the snake!

            • For what purpose? I can think of a few purposes.

              1. To supply an important resource to the public
              2. As part of a program of sound management of forests
              3. As a means of supporting rural communities through employment.

              In short, for the sake of the economic, environmental, and social benefits of a healthy domestic forest-products industry.

              • Resources should be plural, Steve: wood products, water, clean air, recreation, food, minerals, fuel, etc., are all important resources that result from sound forest management. Otherwise, fully agree.

                • I agree, Bob. We were talking about the why of timber harvests, so I wrote “resource” — meaning wood. The other resources you mention fall under “a program of sound management of forests.”

                • PS I know that you were just referring to “timber,” but that equals roads, sunlight, berries, water, firewood, etc., via management and extraction practices. Also, carbon storage for the Global Warming foresters.

              • Thanks Steve. These are all solid value statements about what is important to you, and at this level I can support all of what you say as part of the “greater good”. I do like the sound of a “healthy domestic forest-products industry”, and I agree that this can provide economic, environmental and social benefits, all of which would appear to meet the intent of Organic Act. But I also wonder whether these values comprise the whole of the “greatest good” that ought be served even in “timber rich” areas today? Is there a greater purpose that could be served that is not exclusive of timber interests but that is also not driven by them either?

                Again, back in 1897 it was pretty clear that a NF system was needed to protect the resources within or we would likely have experienced a timber and water famine in the US. This does not bode well for the argument that National Forests were created for a primary purpose of producing timber (which I am not suggesting anyone is arguing here). Instead, it is a much stronger argument to suggest there was a longer-term public interest involved (a greater good) in the creation of the NF system, one in which we could perhaps learn how to live in a much more sustainable way with the land. It was the “greatest good” as perceived by the progressives of that era and so was context dependent.

                Putting aside the debate as to whether the NF system has lived up to its original “greatest good” for the moment, here we are over 100 year later and we are once again at a threshold in which the breakdown of the existing system presents enormous opportunities to envision/re-envision how the NF system can be managed for the greater good as it exists today.

                I suggest the three-parts of the Organic Act that we’ve been discussing provide a nice framework for discussing a greatest good for the 21st Century. How do we “improve and protect” forests? For what are we improving them? From what should they be protected (there are no more robber barons)? How do we protect conditions for water flow in the modern day and why? For what purpose should we provide a “continuous” flow of timber? At what scale and why (Steve has obviously already answered this form his perspective)? And how does climate change, the urbanization of our population, over-population, and numerous other present day realities affect our answer to these questions?

                We all clearly care about NF system lands, and so it is we who must think as broadly as possible about why others should care too. This means thinking and advocating beyond our more narrow interests to make the case for why the NF system is important. If we don’t, no one will.

                • Mike: I think it would be a great idea to begin framing current planning discussions around the 1897 Act, which, in my perspective, should have always been done. To do so might even be a wake-up call to the Congressional people that seem to have lost sight of the importance of federal land and resources management. It is important to keep the basic concepts of the 1891 Forest Reserve Act, the 1897 Organic Act, the 1905 Use Book (which was not a legislative action, but rather an interpretation and a directive), and the 1937 O&C Lands Act clearly separated from one another. Too, it is important to understand that the O&C Lands are almost entirely specific to Oregon. The Coos Bay Wagon Roads and the 1934 Taylor Grazing Act are other public land management directives that seem to get homogenized and neutered by subsequent actions without proper (including legal precedence) consideration.

                  • I am presently working on a couple of projects where we are putting emphasis on planning based on the intent and plain language of 16 U.S.C. § 475. (That’s the statutory reference for where the Organic Act of 1897 is located in the 2012 United States Code.)

                    Two primary areas of the statute we are leaning on pretty heavily are the mandates to improve the forests and manage for water flows. Our outlook is that managing for water flows works to satisfy the mandate to improve the forests because in managing for water flow we are reducing fuel loads and increasing spacing at appropriate intervals. In addition to making more water available to aquifers, streams, and other water bodies, we are increasing insect tolerance, reducing catastrophic wildfire risk, providing better habitat for a greater number of wildlife species, and improving overall forest health.

                    Whether you look at it as a prime motivator or value-added side effect, we are also providing wood fiber product for everything from biomass fuel to high-quality saw logs.

                    • Interesting projects Norman. Can you tell us some more about what you are working on? I’d also suggest that it would be vital to look at the entirety of the Organic Act language, so as not to fall prey to the perception of “cherry picking” the parts that fit a per-conceived agenda. For instance, the language speaks to “improve and protect”, not just “improve”. Thus, the question is, from what threat are we “protecting” the forests today? What does protection mean in the age of climate change? Might we translate protection into “resilience” such that now we are “improving the resilience” of the forest? Just thinking out loud…I would be really curious to learn more about the projects you noted. Thanks Norman.

  11. I don’t think the question today is about the purpose for which national forests should be ‘established,’ but rather is about the purposes for which national forests should be ‘administered.’ I don’t think the Organic Act answered that question, which is why the Multiple-Use Sustained-Yield Act now answers both. While it is interesting to stretch the ‘improve and protect’ and ‘continuous flow’ language to encompass administration for amenity uses, Congress apparently wasn’t comfortable with that in 1960. Here is the relevant language from MUSYA (which does get you to the same answer).

    “It is the policy of the Congress that the National Forests are ‘established’ and shall be ‘administered’ for outdoor recreation, range, timber, watershed and wildlife and fish purposes. The purposes of this Act are declared to be supplemental to, but not in derogation of, the purposes for which the National Forests were ‘established’ as set forth in (the Organic Act).”

    “The Secretary of Agriculture is authorized and directed to develop and ‘administer’ the renewable surface resources of the National Forests for multiple use and sustained yield of the several products and services obtained therefrom.”

  12. Thanks Jon. I do acknowledge the clarification from MUSY regarding the administration of the NF system. My main interest in speaking to the Organic Act was simply to clarify that arguing for management that is in support of non-timber related values is consistent with the ORIGINAL purposes for which the National Forest system was created, rather than an “add-on” to the system that didn’t come along until more recently. To your point, it would not make any sense for Congress to declare an administrative policy in MUSY that was inconsistent with the original purposes of the NF system. It therefore makes sense, I think, to look more closely at the original purposes for which the NF system was created.

    But my broader interest here is to move from questions of whether or not timber harvest should or should not occur on NF system lands, toward a conversation centered around what the “common good”/”greatest good” is or ought to be in 21st Century America, when it comes to managing NF system lands. Underlying virtually every debate I see here and elsewhere are values and perceptions of the “greatest good” for society which, as we know, is all in the eye of the beholder. At its core, the purpose of the NF system (and therefore NF system administration and management) is to serve the greatest good of society, which one could argue has changed considerably since 1897 (or 1905 or 1960). Discerning the “greatest good” has always been the toughest question to answer, but in my view it is the question that must be answered first, and then answered again and again and again.

    I would be really curious to learn more about what people think serving the “greatest good” of society would be today and why (with emphasis on the “why”), when it comes to National Forest system management.

    • While it may be interesting to talk about the ‘greatest good’ in the abstract, NFMA now requires that it be done for each NFS unit through the planning process, now provided in the 2012 planning regulations, which define ‘greatest good’ in general terms in 36 CFR 219.1(c). I had kind of hoped this blog might be more about how to make the new planning process work, than about throwing out existing laws.

      • Jon: I think the real problem is that the new planning system isn’t working, and that is what this blog is trying to deal with — along with Congress, the USFS, and the average taxpayer. Personally, as a citizen I spent a great deal of time in the 1980s and 1990s working on “10-year plans” and they didn’t work, either. How is a single blog supposed to make unworkable plans capable of functioning? Or spend time discussing abstract fixes? Maybe the answer really is to throw out the dysfunctional regulations and start afresh.

        Can you please provide a quote for 36 CFR 219.1(c) so most of the rest of us will know what you are talking about, and then offer something proactive so that we can discuss it in English? That would be the best start that I can think of toward steering this in a direction you would like to see.

        • Bob, I’m not sure we can say that the 2012 rule isn’t working (yet), have any plans been written under it yet? (don’t think so) Or in progress? (maybe?) I know Idaho’s Nez Perce/Clearwater is supposed to be an “early adopter”, but not sure how far along that is, someone else here probably knows. Here’s a link to 36 CFR 219, with the various parts. I actually don’t see a 219.1(c), but 219.1(a) and (b) have some nice vague flowery language that may be what Jon is referring to. http://www.law.cornell.edu/cfr/text/36/219/subpart-A

          I don’t know if we’ve yet discussed the big lawsuit against the 2012 plan, not by the tree-huggin’ greenies but by forest industry groups, very interesting, topic for a different post though.

          • Thanks, Guy: Good point, of course. I just keep looking at these things as good money after bad, and I’m basically an optimist. After 30+ years of failed effort, though, it gets harder and harder to become enthused at the latest ruling 2 subset 3(0)a-2011(b.). Especially when the go back to a common foundation that seems perfectly fine to work with — it’s just the construction that has become increasingly off-kilter. Keep building along a proven failed structure, or return to basics and learn from your mistakes?

            • I will, however, follow these links tomorrow and see if I can offer any constructive comments or constructive criticisms in regards to what I think they are saying. I am curmudgeon-age now, though, so there’s always that to plow through.

                • Larry: I’m not so sure “letting it collapse” is a good strategy, either. I’d rather see it disassembled and recycled before it falls apart any further. An orderly deconstruction followed by a more reasoned reconstruction would be my ideal. However, that probably won’t happen and the result will more likely be to watch it continue collapsing from its own top-heaviness until something is done in an emergency fashion. Kind of like a slow motion “let it burn” that has gotten out of control.

                  • Larry and Bob, I can’t help but chuckle about the clear parallel between your exchange here and Washington politics happening right now…Its just too funny. Everything from whether to keep the govt shut down, allowing the US to default, and how to deal with the ACA…good stuff.

                    • Well, they DID compromise, and I wonder if that would have happened without a threat, of some kind. That being said, I am neither Democrat or Republican. I’m in favor of “the greater good, for the greatest amount of people”. We need to jettison the “do no harm” policy of preservationist groups. They need to understand that there are, indeed, harms, associated with every decision, or non-decision. We need to decide which harms are worse, which harms are short term and which harms can be mitigated.

                  • We’ve been trying that avenue, and the courts aren’t siding with us. Of course, that strategy is extreme but, it would probably be effective. That is a big reason why I think we need to more completely analyze the “No Action” alternatives, so that Judges can more clearly see the scientific Agency predictions of what will (or might) happen, if the project is not upheld. We also need to document and advertise that fact, when the predicted worst does occur. Can the courts ignore those Agency predictions, which are based in science?

                    • OK I’ll wade in a bit to this part…Larry, the course you suggest is risky. What happens, for instance, when the agency’s predictions do NOT occur? The real challenge for industry folks is that you have a “known” condition (i.e. status quo), which has not yet caused the “speculative” harm the agency is purportedly trying to avoid by taking some action. Courts are almost always conservative on such issues. You might draw a parallel between this and the whole issue of standing, in which you have to show and actual “harm” to you or your interests before the court will hear your case. The real tough part for industry is that it is difficult to show the “harm” created by any individual project not happening because of a lawsuit.

                    • The “whatever happens” strategy of the preservationists is even MORE risky. That is EXACTLY why we have a “purpose and need”, as well as a “no action” alternative! Certainly, the Rim Fire has caused ample and un-challenged harm, to me and other huge amounts of people, including the entire city of San Francisco. THIS is why we need to have more in-depth analysis of “doing nothing”, and its predicted impacts. Courts simply aren’t reliable sources of science, effects and impacts but, amazingly-enough, the Forest Service IS! AND, I shouldn’t have to remind you of the “Agency deference”, regarding science. THAT is exactly why we need more and better analysis of the “no action” alternative. The harm of future Rim Fires has been long-predicted. There can be little doubt that the loss of endangered species habitats through wildfires is, indeed, “harm”. If I can’t see goshawks or spotted owls, I consider myself “harmed”. I feel good when I hear a pair of spotted owls hooting location calls at each other, in my own neighborhood. AND, there is this little law called the “Endangered Species Act”, which I think should also protect habitats from catastrophic loss, whether it is from logging old growth, or from future Rim Fires.

                    • Larry,

                      I can hear your passion and frustration and I do not want to come across as discounting feelings for even a moment. My only point is that the court system is not designed to get you where you would like to go, and I can only see more frustration for you and many others if you continue along this path. Here’s why.

                      The kind of claim you are describing is a tort claim, since there is no statute that covers the type of injury you are describing. One of the greatest challenges in a tort claim situation is to prove proximate cause. While this is easier when you can tie the cause back to a particular action, its really tough to show that a specific “inaction” actually caused the subsequent harm.

                      Having said all of this, I think you make a very good point that there are real costs to inaction, and these need to be better articulated, if not in court, then in the court of public opinion.

                    • I think you are confused as to my intent, Mike. My slant is that it appears that some Judges are back-filling with some of their own opinions and value “judgements”. What I desire is a Judge’s increased awareness of what is very likely to happen if the project is blocked. If the Forest Service presents a detailed and, sometimes, extended view of the “no action” alternative, a Judge might change those anti-management opinions, and render a better decision, based on more convincing facts. Indeed, some Judges DO seem worried about a growing public’s view of blame, when large and destructive wildfires, like the Rim Fire burn, on their watch. I’m sure that some Judges feel that forestry is mere child’s play, compared to the “infinite intricacies” of the legal world. Let’s just say that I want Judges to be more tied to their “discretionary decisions”, via the “no action” alternative.

                    • Thanks for the clarification Larry. That helps and makes a lot more sense than what I thought you were saying. Now that I understand better, I like your idea, since I am always in favor of a fully informed judiciary. It makes good sens that they have the full understanding of the implications of their decisions.

                      Nonetheless, and I don’t say this lightly or without sympathy to what you are suggesting, since there is not currently a statutory provision that recognizes the “harm” from inaction (proximate or otherwise), most judges will not include this as a basis for their decision. They may consider, as you suggest, the fact that inaction could bring about a harm, but if they allow this to influence there decision, it would be almost guaranteed to be overturned on appeal for the foregoing reasons.

                      Just playing this out a bit more…The basis for most environmental litigation concerning public lands management (outside of ESA claims) is the “arbitrary and capricious” clause of the APA. To satisfy this clause and open the door ligation, you need to have;
                      1. an affirmative decision from a government agency subject to the APA to actually do something that;
                      2. will have a distinct effect on the ground which;
                      3. can be claimed to causes harm in some way that runs contrary to a statutory provision.

                      Because of this, agency inaction does not trigger the “arbitrary and capricious” clause, since it is not a “decision” as recognized by the APA; does not have a distinct effect on the ground by itself; cannot be claimed by itself to cause harm. I have admittedly not stayed abreast of litigation involving “agency inaction”, so I’d be really curious to learn more from others about how this has evolved in recent years. At the end of the day, though, my sense is that the law is designed most often to be reactive, not proactive, and that makes it really tough to even influence court decisions in the way you are describing Larry…

                    • So often, lower courts seem to side with the Forest Service, not seeing how the Forest Service is “not following the law”. Then, when it goes to the Ninth Circuit Court, projects (especially salvage projects) are shot down in flames, using mostly procedural reasons. Sometimes, it seems that no matter how much is included in the NEPA, it is impossible to win against those “judgement calls”. Surely, there is bias there, especially when the reason is “arbitrary and capricious”, or “needs more analysis”. Those sound more like judgement calls, based on emotion and opinion. Like I said before, those Judges are worried about public opinion, regarding Forest Service projects, as well as the accusations of partiality and partisan politics. I’m sure there is nothing more irritating and disrespecting to a Judge than accusations of lack of impartiality and objectivity (but, we continue to see them, regarding the Ninth Circuit Court). I really think that government lawyers should spend some time presenting these “No Action” alternatives in court. If for nothing else but education of the Judges, so they have a more well-rounded understanding of forest dynamics and ecosystem realities. The many mounting harms resulting from “whatever happens” should be considered, personally, by each Judge. That being said, I am very sure that some Judges are pushing themselves to learn more, and recognizing what is rhetoric and what is real. Yes, their hands are somewhat tied, in some cases. Again, I think we should be “courting” the Judges’ discretion, through education. While I know very little about legal process, we should be pursuing every avenue to better decisions, including my “outside the box” idea.

                      Thanks for your patient explanations, Mike.

                    • And I fully support you effort to help Judges understand the implications of their decisions, especially at the Circuit level Larry. Fully informed Judiciaries is a noble and worhtwhile goal….

          • Guy,

            Do you have a cite or any more information on the lawsuit to which you referred? Thanks for the link to the pertinent CFRs too. I think Jon and you raise some good points and we absolutely should be tracking how this latest iteration of the Planning Rule plays itself out. There is a lot of good language in the rule (from my view point), but I’m also concerned about loosing site of the forest for the trees, once again..

            In other words, with every planning rule and every decision that flows from a planning rule there are endless opportunities for folks to argue about who has the “right” interpretation and/or to critique the language of the rule, Forest Plan, or project level decision. These are almost always “zero-sum” arguments (I’m right, you are wrong), since that’s how our legal system is structured. The timber industry folks that have filed suit are just continuing this tradition (but I would be curious to learn more about their claims nonetheless if you have a cite or some such)…

            Thus, I would echo some of Bob’s comments and suggest that coming full circle to the original purposes of the NF system might provide a pathway out of the zero-sum game. This is because these purposes were truly quite visionary, aspirational and most importantly, inclusive from what I can see. They did speak to a “greater good” as the folks in the late 19th Century understood this concept. So again, what does this mean today?

            The language in much of the 2012 planning rule does speak to a lot of what I would call “greater good”, so it could be a lucrative discussion to consider whether this rule adequately “fits” within the visionary intent of the 1897 Act, as adapted for the modern day (which would include considerations for the MUSYA, NFMA, ESA, CWA, CAA, The Wilderness Act, NEPA etc).

            Searching for a “greatest good” and discerning the real substance of this “good”, is an inclusive process by definition. Thus, it cannot be driven by narrow interests, which runs contrary to the zero-sum game that dominates our politics and thus our NF management. Because it is inclusive by nature, searching for the greatest good is also one of the most democratic ventures one can undertake. In turn, it is a great way to get more people involved and excited about our National Forests, something I think we all can agree is desperately needed.

          • Guy,

            Here is the 219.1(c) to which Jon was referring:

            “(c) The purpose of this part is to guide the collaborative and science-based development, amendment, and revision of land management plans that promote the ecological integrity of national forests and grasslands and other administrative units of the NFS. Plans
            will guide management of NFS lands so that they are ecologically sustainable and contribute to social and economic sustainability; consist of ecosystems and watersheds with ecological integrity and diverse plant and animal communities; and have the capacity to provide people
            and communities with ecosystem services and multiple uses that provide a range of social, economic, and ecological benefits for the present and into the future. These benefits include
            clean air and water; habitat for fish, wildlife, and plant communities; and opportunities for recreational, spiritual, educational, and cultural benefits.”

            Sounds like a good statement from which to ask about the “greatest good”. Does this language get us there? If so, why? If not, why not? …Will any language couched in a planning rule ever get us there? I don’t know.

            • Well, except for introducing the term “ecological integrity” as a purpose which hasn’t been in previous legislation..or regulation. As read, it fundamentally changes the main purpose from multiple use to “ecological integrity”.

              remember my series on on “warning fuzzy concept in regulation”.. there were at least four posts.. just search on “warning fuzzy concept.”

              Also I’d like to ask the question “what about this planning rule makes it less likely that we would have the current difficulties with NFMA planning?” But maybe that’s a separate post.

            • Thanks, Mike:

              This is just what I was afraid of. More Jabberwocky. There is nothing scientific about it, and it is nothing more than more job security for lawyers written by lawyers — same ol’, same ol’.

              Compare the language in this mess with the language in the 1897 Organic Act and then consider our recent commitment to “Plain English” and “transparency”. I wonder how much taxpayers had to pay to get the professional committee-goers to come up with this nonsense?

              • all good points (Mike, Sharon, Bob). It is both fuzzy and warm. Though to me, it sounds more like written by administrators rather than lawyers (lawyer prose may sometimes seem fuzzy, but at it’s heart it’s rarely warm 🙂 )

                I did post that industry lawsuit info, which seems to relate very much to this discussion. -Guy

                • Guy, you’re a good lawyer. There’s just too few of you guys! And I know when I’m railing against “lawyers” that you know I’m talking generically and not about people who take time to join and contribute to these types of discussions. And, yes, it probably IS being written by chair-sitters and committee-goers because that is what they do, but they always like to say “under advisement” when they’re arguing for their own verbiage, and I think that’s when the “other lawyers” put in the job security phrasing. Plus, 1/2 of Congress is lawyers, so there’s always that.

                  • Wow, that is complete junk, thanks for the actual language, notice the benefits do not list economic — even though “ecosystems services” are inherently an economic exercise in valuation and prioritization.
                    Scary. Complete whackadoodlery.

            • Thanks for providing the actual language, Mike. I was on a 6:00 am flight the next morning and took the shortcut of citing rather than typing. I apologize for rolling this grenade out there before skipping town, but am glad it generated a little discussion.

              I fully agree that this wording is nothing to be proud of. I think what it tries to do is explain what multiple-use and sustained-yield mean today. I agree with Sharon that ‘ecological integrity’ is important, but I think it is easily traceable to ‘sustained-yield’ concepts. What the rule adds that I don’t see in any statute is social and economic benefits, but maybe it is only recognizing explicitly something that has been implicit in ‘multiple-use.’

              Guy is right that the Forest Service has just started developing the first plans that will be completed under this new process. Starting over again now to design a different approach would be like throwing out Obamacare because we don’t like the user interface (bad analogy?).

              I’m not going to try to answer Sharon’s question about how I would make the planning rule work in general (I’ve had my shot at that). There are opportunities now for the public to continue to shape the process on the ‘early adopter’ forests (listed in this news release: http://www.fs.fed.us/news/2012/releases/01/newplanningrule.shtml, and there is a second group that I’m not sure has been formally announced), and the development of agency planning directives (http://www.fs.usda.gov/main/planningrule/committee). It may also be worth a look once in awhile at how the new planning regulations may have addressed policy questions being discussed on this blog.

        • In Wisconsin the county forest system uses a 15-year comprehensive plan for each county’s forestry operation. It works.

          Perhaps we should start by examining those plans to see if we can determine why they succeed when the USFS so demonstrably fails.

          Wisconsin’s county forests are in excellent shape, and their harvest regulations fully meet or exceed federal regulations every step of the way. Even with that, the file for a typical sale is well less than a quarter of an inch thick . . . while the typical file for a USFS sale is generally two inches thick or more.

          I’d have to say that tossing out the administrative overhead that appears to be getting in the way of effective management of the federal lands is a good place to start.

          • Interesting question Norman. I wonder if the purposes of the Wisconsin county forest system are as inclusive as those of the NF system appear to be…There could be a correlation between the narrowness or breadth of purpose and the resulting style of forest management.

            • Wisconsin has perhaps the most comprehensive county forest operation in the nation. The ones I’m most aware of are usually dual FSC and SFI certified.

              Again, the ones I’m most aware of offer the same full range of multiple use activities as the National Forest. In fact, for most user groups, they offer more in terms of recreational options and activities than the current offerings on USFS lands.

              • Thanks Norman. Can you provide the primary purpose statement that guides and directs the Wisconsin county forest system? I would imagine it is somewhat analogous to state land directives in which timber management take precedent over other concerns. This isn’t to say that other concerns aren’t considered or don’t have influence over decisions. Indeed, it could be an interesting case study to look more closely at the role of timber interests relative to managing for multiple use in a system that (unlike the NF system) holds timber paramount amongst competing interests.

  13. Skinner: The lost and compensated “value” in the Feather River UPRR fire was “grandeur of the landscape.” 50,000 odd acres of lost grandeur of the landscape, and the US Attorney was able to quantify that loss, to the tune of over $100 million dollars, and satisfy a Federal Judge in a civil lawsuit. I don’t think you can give value to “below cost timber sales” as a compensable loss, or ascertain timber values in Wilderness, as those trees can never be made into logs and thus have value by market comparisons. As it now stands, the only “lost value” the USFS publishes or collects are the direct costs of fire suppression. No other “values” are compiled that the public has ever seen. Hard to bank “potential” or “aesthetic.” I think the Feds like it that way, and want it that way. Or else they would have a method of compiling real loss to landscape fires like the Rim Fire, in dollars, by an array of categories. And “habitat loss” is like an open jar of air, in that what you have is in constant change, as are all habitats, but specific to whatever species occupies any particular stage of vegetative succession at any given time to the detriment or exclusion of other species. Can lawsuits determine biological winners and losers with any degree of ethical or moral certainty, if you cannot quantify damages? So we get the Kodak moment value: loss of grandeur of the landscape. And that is temporal and soon to change, by their own management goals stated in the fire response documents. Alice in Wonderland land management and Federal prosecutions by the Mad Hatters of the Attorney General’s office. Three teams of US Attorneys: one in Sacramento, Salt Lake City, I forgot where the other is. Probably L.A. All to sue for damages to the Federal Estate by fire from private land origin. Of course, no recourse in court for fire from “let is burn,” “fire for management purposes” Federal fire management decisions that result in burned private assets. Tort liability limits are in place, along with civil servant liability protections. That is why many Sun Valley mansions threatened by this summer’s fire were being protected by private fire fighting assets hired by insurance companies. A good investment when you have a $15 million dollar home insured and no liability recourse. Socialists won’t understand but it was about protecting profits and the bottom line.

  14. So, John, does that mean I can sue USFS for the lost grandeur of the Skyland basin, Moose, Robert, Brush, or emotional loss realizing I’ll die bereft of grandeur?

    Seriously, tho, is THAT what the judgement read — “loss of grandeur?” Are you flippin’ kiddin’ me?

  15. Somehow I missed all of this esoteric B.S. earlier. “Loss of grandeur”! Wow! Right up there with “Spiritual renewal” as a key factor in managing public lands. Don’t these people have a day job that requires them to exist in the real world? Every taste of this absurdity (a gentle word) reinforces my belief that public lands must be removed from public ownership if rationality is to be restored to their management.

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