More Details on the Daschle Amendment

From 2005

From 2005

Due to the word limit of op-eds, it’s difficult to get all the nuances, even when you are trying to do so.

It’s a pretty obscure field of knowledge, so here goes. In our op-ed, we were saying that if you trade wilderness for “managed acres”, you should understand if the situation will be different than today on the managed acres. If the hold-up to management is appeals and litigation, and you haven’t changed the framework for that, the situation is not going to change. Isn’t that the definition of crazy.. doing the same thing and expecting different results?

Now what’s a bit obscure and confusing is the Daschle amendment, which successfully mandate a quid pro quo kind of deal. Section 706 a) authorized specific projects in and adjacent to Beaver Park, b) authorized two sales in Norbeck, and c) designated an addition to the Black Elk Wilderness. That was the extent of the projects, and all of the authorized on-the-ground work was completed by September 2003. The success of the Black Hills today is not due to “evading environmental laws” through the Daschle amendment. It seems to be due to a lack of interest or success by serial litigators,..correlation or causation?

Now, to you who claim that the problem is that “the FS just needs to obey the law,” I would say that while the folks on the Hills are generally excellent when it comes to NEPA; when I worked in DC in NEPA, I noticed that others, including those in Region 1, are pretty darn good also. So I don’t think the wonderfulness of the people on the Hills, while absolutely true, is the only reason for their success.

As to the specifics of the Daschle amendment, which I think are important to this discussion, according to my historian:

Despite the Chief’s assurances to Senator Daschle that the remand (of the 1997 plan) was relatively minor, the language in the appeal decision basically said that the revised plan was illegal, which shut down the timber sale program and called into question the legality of all sales sold subsequent to the June 1997 ROD. The BHNF did not sell any more timber sales in FY 2000 and much of FY 2001, while they worked on completing a Phase I and Phase II amendment to correct the deficiencies identified in the Chief’s appeal decision.

With Senator Daschle’s guidance (through Eric Washburn), the FS, environmentalists and industry negotiated a Settlement Agreement to a previously unrelated lawsuit involving a salvage sale of beetle killed timber in the Beaver Park area (an inventoried roadless area) that allowed sales already under contract to be modified and operations to continue. That Settlement Agreement was signed in September 2000.

Subsequent to that, the mountain pine beetle outbreak in Beaver Park continued to intensify and expand, with considerable concern and attention from the public and from, then, Representative John Thune. However, the BHNF did not have any ability to respond because a) the second forest plan amendment was not completed and b) the environmentalists wouldn’t agree to it. Senator Daschle (through Eric Washburn) then proposed legislation that would enable the BHNF to respond to the beetle epidemic in the Beaver Park area. The FS, environmentalists, and forest industry negotiated legislative language that a) allowed FS response to beetle epidemic in and adjacent to Beaver Park, b) allowed two sales in the Norbeck Wildlife Preserve to proceed, and c) expanded the Black Elk Wilderness by an additional 3,600 acres of the Norbeck Wildlife Preserve, subject to a) no additional NEPA, b) exempt from Appeals Reform Act and c) not subject to judicial review. That legislation was passed into law in August 2002 as part of a 2002 Supplemental Appropriations Bill (specifically, Section 706 of HR 4775). The legislation was unsuccessfully litigated in federal District Court and the 10th Court of Appeals by a splinter group of diehard Black Hills Sierra Club members.

So here.. 1) litigation had shut down the timber sale program based on the plan.
2) it appears that there was NEPA done before on the project (or related project) that the previous settlement agreement was dealing with (see “no additional NEPA”)
3) the legislation was a deal done by FS, environmentalists and forest industry, overseen by Congressfolk.

Now, I would ask, is a settlement done by a) DOJ and environmentalists, without public presence or involvement (and sometimes leading to odd settlements in Physical World), somehow more fair to everyone than an agreement with the b) FS, environmentalists and forest industry (people who know the details of Physical World and are closer to “the public”), with Congressional involvement?

Because it seems to me like b) is likely to lead to better real world outcomes, that also follow environmental laws. I too, am concerned about “the public” being left out of decisions about public lands; which is one reason why I don’t think settlement agreements from litigation are the best place to make those decisions.

The public at least talks to the FS, and writes comments, and on the Hills, has a formal FACA advisory committee. There is no doubt in my mind that the Supe on the BH has a better idea of what “the public” thinks than do DOJ or environmental group lawyers.

Note: check out the tenor of this story from 2005 about the Wyoming projects in the map above. Just to show that there were appeals and litigation after the amendment.

Most local residents and virtually every government official in the Black Hills – local, state and federal – oppose Biodiversity’s appeals of the three projects. Among those is rancher and real-estate broker Nels Smith of Sundance, Wyo., a former Wyoming state legislator who now serves on the federally chartered Black Hills Advisory Council.

“To me, this is an abuse of the process,” Smith said. “We need timber harvests for a number of reasons. If you don’t cut trees, you end up with a biological desert. It hurts the availability of water and wildlife forage and the health of the forest.”

Nichols, who calls the Cement Project area “the gem of the Black Hills,” says public lands in the relatively unpopulated Wyoming side of the Black Hills are best left to natural processes.

What I like about Jeremy is that he says what the point is.. he doesn’t want timber sales. Not that he “just wants the FS to follow the law.”

10 Comments

  1. Wasn’t the fact that South Dakota Democrat Daschle was Senate President, at the time, and the whole of this project proposal and implementation severely colored by that fact, and the issue of the NGOs of the environment knowing they had not mess too hard with him in the pro quid pro world of appropriations, present and future bills in the Congress, and the flow of campaign money to the greenest and most liberal of the Democrats? What happened in the Black Hills had no impact on the other 198 odd national forests at the time. The totality of the deal was about Democrat power in the Senate, which Daschle had the most of. He created an anomaly for His State. An environmental Warlord from SoDak strutted his power and the minions of the US Govt bowed in respect. I am surprised he isn’t still in office, retained by the ESA as a distinct rare species: South Dakota white faced weasel.

      • Sharon, I’m with John on the miffed factor. The legal sufficiency angle behind Daschle’s royal favor was simply a self-preservation attempt on his part, which wasn’t enough to save his hide in the next election. It is not hard to put such language in any place-specific bill — the real issue is passing it in the face of entrenched power freaks who shudder at the thought of such exemptions leading to outcomes the larger voting public can see for themselves and deem positive.

        That was the cause of the howling over the Border Patrol exemption bill for infrastructure construction. Heaven forbid projects be emplaced in a cost-effective manner, with little to no significant environmental impact, that have a positive effect on border porosity that the public might realize is a good deal — and therefore start questioning the status quo.

        Is “power-gaming hypocrite” a better descriptor?

        And where the heck is Derek?

    • It looks like there have been two lawsuits in the past 10 years on the Black Hills, one before the 8th Circuit regarding MPB treatments in the Norbeck Wildlife Preserve, and one ongoing before the 10th Circuit regarding the last major amendment to the Black Hills forest plan, which was supposed to fix legal and scientific problems identified in the 1997 plan revision by the Chief of the Forest Service, but appears to have taken a turn away from those promises to focus instead on MPB and wildfire.

      http://forestpolicypub.com/2013/07/27/the-black-hills-theyve-got-it-figured-out/#comment-24756 (link edited by Larry H.)

  2. I did help do the stand exams on the Planting project. While I cannot say the area was “grossly overstocked”, I do think that there were opportunities for thinning and increasing diversity in that forest. It seemed to be on the drier side so, maybe they needed less density, in order to grow bigger trees. Of course, lodgepole pines are ubiquitous, and those were probably targeted. The ponderosa pines were rather uniform in size.

    I also worked on the Cement project, marking timber. It seemed similar to the Planting project, and the trees weren’t really lucrative, by more western standards. It is a different world, in the Black Hills, where east meets west meets north. Brush isn’t a problem there but, prescribed fire could probably be easier accomplished than in other western forests.

  3. I think this pretty much makes the case the Daschle amendment was sui generis (if you’ll excuse a Latin legal term for ‘one of a kind’). The biology and politics and history of these projects were unique (and it may also be relevant there are no threatened or endangered species on the BHNF). It would be foolish to use any measure of ‘success’ here as a justification for the same approach anywhere else.

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