Do FS Fire Folks Care About NFMA Planning?

whatmeworry

I admit, it’s a rhetorical question. Of course they don’t. Never have, probably never will.

Just to illustrate . . . On April 9, 2012, the Forest Service released its new NFMA planning rule. Remember? It was a big deal.

Two months later, on June 20, the fire folks released their new “Fire Management Manual,” FSM 5100. According to the Chief, this was also a big deal. In fact, the manual’s new doctrine is “relevant to everything we do.”

The new fire manual cites four sources that “authorize and guide fire management activities for the protection of National Forest System lands and resources,” including the NFMA rules:

Regulations at Title 36, Part 19 of the Code of Federal Regulations (36 CFR 219.27) specify that, consistent with the relative resource values involved, management prescriptions in forest plans must minimize serious or long-lasting hazards from wildfire.

But, there is no 36 CFR 219.27 in the 2012 NFMA rules. In fact, there is no current rule that requires forest plans minimize serious or long-lasting hazards from wildfire. Instead, the 2012 NFMA rules emphasize restoring “fire adapted ecosystems.”

Nor will you find any such fire rule in the version that preceded the 2012 rules. In those old rules, 36 CFR 219.27 had nothing to do with fire — they were about “special designations,” like wilderness.

You gotta go back to the 2000 rule to find the latest mention of the [cf Haber below] provision the Forest Service’s fire dogs cite in 2012.

51 Comments

  1. Of course, this summer, they were able to turn a 150 acre Wilderness fire into a $30,000,000 firestorm (West Fork Complex), burning up a bunch of dead trees, along the way. I really doubt that the result is “natural and beneficial”, or, magically, “fire-adapted”, now.

    AND, who knows if the extra fire resources that could have been freed up by suppressing that fire would have helped on the Yarnell Hill Fire. Certainly, some extra aircraft could have been useful in the days before that fateful day, when so many lost their lives, needlessly.

  2. This language was actually in the 1982 planning regulations in section 219.27. But it’s an interesting observation that they don’t appear to be paying attention to the new requirements. I know that fire staff was at times heavily involved in trying to integrate fire planning with evolving forest planning concepts. At other times the two staffs seemed to say ‘you go your way and I’ll go mine’ – especially more recently. I thought this was driven by two things. One was reluctance to let forest plans limit wildfire suppression response options in any way anywhere, and the other was about when to do the NEPA (remember the lawsuits on fire plans failing to follow NEPA requirements?) – each wanted that to be the other’s problem. There sometimes also seemed to be an attitude that fire was too important to have to play by others’ rules. In my opinion, differences in fuels and fire management across a forest should be a big part of what future forest plans will be about, and some important decisions need to be made there.

    • I know this may shock some people.. but maybe the many layers of planning, manuals, handbooks etc., are too complex and difficult for people to keep up with?

      Andy.. do YOU care about NFMA planning? I still lament the demise of the KISS rule.

      • “I know this may shock some people.. but maybe the many layers of planning, manuals, handbooks etc., are too complex and difficult for people to keep up with?”

        I can get on board with this assessment. I’ve read a ton of cases lately on both NEPA & NFMA. Conclusion: It’s a mess. Both are in serious need of a comprehensive audit. NEPA needs a case law audit & NFMA needs a statutory/regulatory audit. I was working on NEPA paper the other day — tracking the line of cumulative effects precedent backward from the case I was working on — when it struck me: it’s haywire. The district courts are going in 50 different directions at the same time. Occasionally one will get bumped up to the 9th Circuit and they’ll use some new language to describe some old precedent and the district courts are off and running in a new direction trying to interpret the difference between the old language and the new word or two that the 9th slipped in on top of the old precedent. The same is true of NFMA. Not the case law so much, but the agency’s interpretation of their own regs. Solution? A massive external audit that doesn’t change the rules, but simply identifies redundancies and conflicting regs. This needs to be done going clear back to the Organic Act. The USFS could hire me to do it if they’d like 🙂

        • Doesn’t change the rules? Are you kidding me?
          Sharon has it right, the laws, rules and regulations, combined with case law, are so dysfunctional and irreconcilable, there’s no way any one human being could look at a proposed action (of any significance suitable to the scale of action needed) and say yes with any certainty. “No” is a given, however.
          If public lands or national forests are ever to be managed in a timely and economic manner, Congress needs to act with legal reforms, over the inevitable howls from the bayonet brigade. Nothing less will give socially-acceptable results.

          • I guess I was not being as clear as I thought. You have to know what is actually there before you change it. If you don’t know what’s there, then how can you ensure that the changes aren’t creating further redundancy or conflict. I wasn’t saying for a moment that changes don’t need to be made.

          • It sure seems like the courts are going with a “Do No Harm” policy. If a project does any harm to any protected value or organism, the project is shot down. It doesn’t matter how many benefits will occur, from the project, in the future. Colt Summit seems to have taken that path, only hand-thinning plantations and harvesting nothing. Is THAT the future of our National Forests? A future based on Judges’ decisions? A future based on “whatever happens”?

            • Hi Larry-
              As I have recently discussed with Guy, I’m in the process of writing a law review paper specifically confronting the Colt Summit decision. The cost/benefit consideration you raise is definitely one of the points I’m addressing in the conclusions section of the paper. Judicial deference is another.

              • Eric, there’s also the concept of loss avoidance, something that has been desultorily discussed but should be more systematically pursued. For example, the massive reduction in thinning budgets versus the potential results from NOT thinning.
                For another example, the 26 million dollar hit UP took for loss of value from a fire starting along its tracks. But if that fire had been naturally caused, it would have been acceptable in the Forest Service schema…. and the argument can be made that management actions to preserve the 26 million bucks worth of landscape from catastrophic loss could have been fairly substantial and fully justifiable on an avoided-cost basis.

              • Hi Eric:

                One of the problems we’ve had with this new blog format is that comments aren’t necessarily shown where they are made — including my last comment to you, which should have immediately followed your Smiley Face, but doesn’t (so far).

                I’m interested in reading your Colt Summit paper once it is completed. Larry is right on target with his economic concerns, and the importance (and significance) of not having them considered in too many (“most”) instances. When you do your cost/benefit analysis I’d like you to consider using some of the linked approaches included with this earlier post: http://forestpolicypub.com/2013/09/25/calculating-the-true-costs-of-wildfire-the-douglas-complex/

        • Thank you, Eric. I have often asked these questions myself. To me the outcomes appear to be going in different directions when I read them, but I’m afraid if I say something, people will say “you dummy, they are different legally due to (the facts of that case) or something else you don’t understand.”

          Example, it was OK for Wyoming to not be a cooperating agency (I get that) in Roadless 2001, but it was not OK for the forests not to work with the State of California in a more specific way in the southern Cal plans case (reading it, it seemed pretty obtuse what they hadn’t done).

          I think your idea is excellent! And a draft could be posted for discussion. How much do you think it would cost?

          • *Smiles* Thank you Sharon. I’m going to have to get back to you on both the draft & the cost question as: 1) I’m no economist, and; 2) for a discussion, I think I’ll have to polish the idea up some more.

            But shooting from the hip it would seem that the NEPA component would be undertaken by an advisory committee to CEQ. Ultimately, they would review and rewrite what could be several guideline memoranda to streamline the current confusion.

            As for NFMA, that would probably need to be done in two places: 1) at the statutory level, and thus an advisory committee that would coordinate between the House and Senate Natural Resources Committee’s, and; 2) on the regulatory level, it would seem that the regs would need to be reviewed per Forest. Those regulations would then be compared to the audit that occurred at the statutory level.

            Obviously no easy undertaking. But I think with the software out there today a balanced interdisciplinary team of legal and scientific experts with a committed staff could get it done fairly expeditiously.

        • Eric:

          I like your approach and agree with your statement that “this needs to be done going clear back to the Organic Act.” Also, I think your chances of getting any funding from the USFS for such a venture are highly unlikely, which is at least a partial reason for your Smiley Face, I’m guessing.

  3. An organization is doomed to failure if it doesn’t have an easily remembered and easily understood vision.

    An organization is still doomed to failure even if it has an easily remembered and easily understood vision but has no single leader to reconcile contradicting goals placed on it by multiple leaders constantly grandstanding and trying to show each other who is boss without having any knowledge of the subject at hand.

    Thanks to the American citizens, even Congress and the Prez are more functional than the USFS.

    • Gil, I think that’s an overstatement. Really, this Congress?

      So let’s take a look at objectives met. Fires are still suppressed, and timber cut, trails maintained, etc.

      Not so much budgets passed, etc.

      And the Prez is responsible for the FS situation as it is an Executive Branch agency. So I don’t think he can be more functional than the sum of the functionality of his agencies.

      • Sharon

        Sorry to touch a sore spot – I hope that you saw that I did not lay the blame for dysfunction on the USFS. – The USFS problem is ultimately the fault of congress not providing the USFS with a clear set of non contradicting laws to operate from – I was a proud part time USFS employee for 3 summers and one school year (64-67). I don’t take anything from the USFS where they have the power to act. And as a former Fire and TSI crew member on the Shasta-Trinity I have the utmost respect for the fire suppression efforts of the USFS and those who put their lives on the line. I have never worked with a better bunch of people.

        As far as “Fires are still suppressed, and timber cut, trails maintained, etc.” I think that you know my belief that fire suppression and beetle kill would be significantly reduced if timber cut was allowed at a sufficient level to provide the heterogeneity necessary to minimize the risk of loss. I understand that that isn’t going to happen, through no fault of the USFS, and therein lies the dysfunction (an ounce of prevention is worth a pound of cure). I also recognize that pure regulation on non set aside USFS lands isn’t going to happen ever. I would just like to see small incremental steps made until we start seeing some benefits and then evaluate where to go from there. From what other foresters have said since 1990, in person, in print, here and on the SAF and on the “Forest Management and Wood Sourcing” Linked-in sites, I am not alone in that belief which is based on the collective training and experience of those foresters.

  4. Eric, how would you envision a case law audit actually being used? I can’t really see either district court judges or appeals court judges using it, and isn’t it pretty much what the attorneys for the opposing parties do (or should be doing) when they Shepardize the case and present their arguments with the supposedly most current controlling and persuasive precedent? (Though of course they usually emphasize and interpret it quite differently). As a related thought, maybe it’s true that NEPA/NFMA/ESA are too complicated for USFS to keep up with, I don’t know, but it’s also true that there’s a great deal of thematic similarity among cases that come to litigation: lack of monitoring where required by forest plan, various other violations of forest plan standards, corner-cutting especially for environmental assessments, and an insular and authoritarian approach to public involvement. I don’t think the FS necessarily needs an external audit to point these things and start correcting them, a basic attitude change would go a long way. That’s just one opinion, of course. If anyone’s interested, here’s a website that I really like, with annual NEPA litigation stats for all federal agencies, including short case summaries and outcomes (USFS consistently leads the pack, both in terms of number of lawsuits and in the percentage that they lose, which maybe relates to above comments). Anyway, here it is: http://www.lucindalowswartz.com/NEPAinfoandResources.html

    • It could only be used by CEQ Professor Knudsen. I know in theory that the opposing sides sort this out. However, per usual, the agency is at what I think is a significant disadvantage in this regard. I suspect you may know this, but the USDA OGC only has six attorneys on staff to handle all of Region 1. Only two are dedicated specifically to USFS concerns. And as for an attitude change among FS employees, again, funding considerations have them constantly struggling just to keep their heads above water. It isn’t a matter of attitude I don’t think. The large majority of them want to do good. In my experience many of them ARE environmentalists. They are simply pushed to the max and must fall back on doing the best they can with what they have. Which isn’t much considering the scope of the job they are tasked with completing. I’m not just bloviating here. My wife is a fuels planner with 13 years of experience. It’s human nature: they want to do well so they over-promise; however, the reality of the on the ground resources to do their jobs occasionally sees them underperform. My opinion: they need help. An outside audit could be useful.
      On a final note- Thanks for the link. I will definitely be putting it to good use.

      • Good points Eric. I didn’t know the number of USDA OGC lawyers in Region 1, though I think the attorneys that I’ve ever encountered as opposing counsel (all congenial and competent folks, btw) have been DOJ, maybe with OGC providing background assistance? I agree 100% about the good attitude of most FS people on the ground including scientists, I’ve collaborated on research with a number over the years, and continue to do so. I wasn’t clear in what I wrote but was referring attitude-wise to “line officers” and above (e.g. forest supervisor and on up to secretary of ag), again painting with a very broad brush and other appropriate clichés, a few bad apples, black sheep, exception proves the rule, whatever. Thanks again for your comments, p.s. I know the law school faculty love to be called “professor”, but in the ag college we’re mostly all on a first name basis (but not in court of course, there I’m “Mr.” 🙂 ) -Guy

        • Thanks Guy. Yeah, I did an externship this summer with OGC. They write up all the briefs and DOJ generally just argues from the briefs they are provided. Thus, if OGC drops the ball, then DOJ is likely to as well. And pretty much agree with your assessment on the upper echelon officers. To grossly generalize, I think most at the district level try to get it right. However, they generally get their marching orders from the S.O. That’s where the detachment from the land begins, and it only gets worse as the ladder is climbed. Any district officer will tell you that the agency is massively top heavy. Their solution is often to get the S.O. functions back at the district level under the control of the Rangers to reattach them to the pragmatic on the ground issues the district has to confront. And yeah, the Prof. thing gets to be habitual. I can definitely lighten it up 🙂

          • My last District Ranger decided that he had enough science in GTR-220 to justify the cutting of trees larger than 30″ dbh, which were blocking sunlight and taking away water and nutrients from the oaks we wanted to enhance. Even though every single person under him, and above him advised him not to do this, he insisted that us timbermarkers follow his decree, even though it went against the Sierra Nevada Framework Plan, for the entire Sierra Nevada range. Then, about midway through the large project, that idea was scrapped, without telling me about it. All along, I had been using my “discretion” to find ways to not mark some of those trees but, I did continue to mark some over 30″ dbh. Later in the season, I was finally told that the prescription had changed, and we had to go through many of the units, looking for those oversized trees. I’m sure that some were missed, as they had hoped I would remember where they were. Sometimes, it was easier to mark the tree than to measure it. I think the District Ranger was annoyed that I had used my discretion to not mark those big trees, when I was directed to do just that. Then, he was annoyed again, when I used my discretion to mark some more of those large trees. Simply put, it takes more than a science paper to overturn a policy that litigators use to sue the Forest Service over. The District Ranger then decided that he didn’t want a marking crew on his Ranger District, which was part of a Collaborative. He decided it would be easier to “borrow” crews from the adjacent Ranger District, not caring that they were slower, less experienced and burned an hour or three, each day in office and travel times.

          • Eric,

            Books could be written (and probably have been) about the various tensions among folks in the FS.

            Staff vs. line on districts, different disciplines, different programs, natural resource folks vs. administrative (oh whoops most of them are gone..) rin S. O.’s and so on. District vs. SO. vs. Region vs. WO. I would not argue that the WO is top-heavy, yet I’ll never forget the stories that the Chiefs used to tell when the left the WO; “before I came here I thought you guys were useless, but I have seen what you do and I really appreciate it and how hard you work and how your work helps folks in the field.”

            My old job was a good way to get insight into some of these tensions; because the RO sometimes gets brought in due to SO/District tensions. In my experience, these were mostly due to a variety of interpersonal issues, but ultimately they were all about power and who gets to decide. Line officers generally believed “the closest line officer to the ground is assumed to be right.,” which raised difficulties if they were wrong. I am not an organizational expert, but having a hierarchical organization (the Supe is the boss of the Ranger) but culturally it is bad for a Supe to overrule a ranger or an RF to overrule a Supe, so the interactions can be quite complex. I’d be interested in what other FS types have experienced.

            In our regional Ranger Meetings I remember concerns that they had been stripped of authority over all administrative functions (budgets and hiring and contracting) but that was not about “people in the SO who don’t understand how things really work”; I think the genesis was an effort to pass an audit and centralize for “efficiency.”

            • Hi Sharon-
              Yes, it really is more complex than what I portrayed. I was really just trying to give a sense of the feeling that comes from the districts. As mentioned earlier in the thread, I worked in the R1 office this summer for the OGC, and thus, due to the variety of legal tasks I was asked to perform, interacted with many different elements of the R1 staff. So yes, I got first hand experience in understanding that much of what is said at the district level is due to a lack of knowledge about what happens at Region/Forest level and vice versa. I think it all needs to be taken with a grain of salt. I’ve noticed in the brief time I’ve been commenting here (and I think this speaks to the thread you were just commenting on with Guy) that due to the lack of time/space/interest/etc. comments are taken out of context, or “flyspecked” (a term I recently acquired from one of your posts). I don’t think the detriments outweigh benefits of the blog by any means. However, I am learning, as I just commented, that much needs to be taken with a grain of salt.

            • “culturally it is bad for a Supe to overrule a ranger or an RF to overrule a Supe”

              Could you explain this to me? Is this different from the military (which I’ve always heard the FS described as modeled after) or private enterprise?

              While I think you are accurately describing FS culture, I ask because in the planning world, the RO has always been responsible for ‘oversight’ of the forest planning process. Under the 1982 planning rule, the RF was the decision-maker, even though the planning work was done by each unit. Under the 2012 planning rule, the forest supervisor is the decision-maker, but the Chief is required to: “Establish and administer a national oversight process for accountability and consistency of NFS land management planning under this part” (36 CFR 219.2(b)(5)(ii)). The draft directives reiterate regional office oversight responsibilities for planning.

              This was a point of contention in developing the planning rule. It could be that in this culture, this kind of oversight is just not going to work (my short R1 experience with the 2012 rule bears this out). And that likely means there will be more ‘outside’ oversight (read as judicial review). (I think this kind of culture could be a reason the agency doesn’t seem to learn well from its litigation losses.)

    • Guy… really “corner cutting” in environmental assessments? It seems to me, in my experience, that different folks can have legitimate different views of how much analysis is needed. The line officer’s challenge (and the NEPA practitioner) is how to meet the legal requirements without an EA becoming an EIS.

      Again, I think most NEPA practitioners I have worked with (and I have worked with plenty, both when I worked in DC as the NEPA AD and in R-2) keep up with the case law and know what needs to be done. They also know when they have a target painted on their backs by one or more groups and do more than the law requires, “just to be safe in case of litigation”.

      It’s also interesting that you would see a lot of “violating forest plan standards”. R-2 had folks litigate on that, but at the end of the day the courts found that the FS was not. So it appears that people could disagree about that.

      I think (and many other FS folks have pointed out to me the same thing) that the fact that some the folks who meet with DOJ without anyone in the public to settle how projects will be done (that’s how it works!), would critique the FS for an “insular and authoritarian approach to public involvement” is ironic. I have seen people bust their butts every day, and even on the projects we have reviewed on this site, we have seen substantive changes based on public comment.

      Since I started attending theology school, I have had my writing critiqued as my claims sounding “weak” because they are stated appropriately (to my mind) conditionally. I guess if you had been trained that way it would be easy to make broad claims and state them strongly, e.g. an “insular and authoritarian approach to public involvement”. But as you and I know, in Science World without the qualifiers “in my experience” or “on x, y and z, projects I saw”, it seems inappropriately broad and somewhat offensive to those on the other end. Which explains some of the difficulties communicating across the science/practitioner/legal interface.

      • Sharon, I’ll be a little more specific:
        “corner cutting”: this ties in with your comment about “how to meet the legal requirements without an EA becoming an EIS”. Sometimes an EIS is what is appropriate, and a preoccupation with avoiding it would be a good example of what I called corner-cutting. As with most things legal, if one continually tries to dance as close to the line of legality/illegality as possible, once in a while you’re going to step over it. Result: litigation, which (in the context of this discussion) the FS often loses.
        “violating forest plan standards”: I don’t follow R2 so much, but there are endless examples in R1. Common ones relate to requirements to maintain species viability, monitoring requirements, habitat upward trend requirements, etc. Courts commonly interpret standards as legal obligations (1982 rules anyway), so if they’re not followed the result is often: litigation, which the FS often loses.
        “insular and authoritarian approach to public involvement”: Probably no better example than the recent elimination of the appeal process (which at least had to be conducted in view of the public), replaced with the new “objection” process, in which the public is expected to come up with specific issues of concern before the FS even releases project information, and then objections are simply dealt with by a phone call from a FS administrator, with little or no chance for the public to know what’s going on (= “insular”), and a project decision then made on the basis of this toothless process (= authoritarian, as I would define it). Result often: litigation, which FS often loses (this is obviously a theme I’m emphasizing).

        These really aren’t science issues (as we’re discussing them anyway), they’re policy issues. Both in the sense of formal policy = law, and unwritten institutional FS administrative policy aka “just trust us”. We can probably agree to disagree about the existence of the latter, but it’s hard to not realize that this is a pervasive perception of the FS, and I doubt that it sprang up de novo. So, as policy observations I don’t consider the above characterizations to be inappropriately broad (again, we’ll have to agree to disagree probably), and if they’re “offensive” to the FS powers that be, I look at it as a case of “if the glove don’t fit, you must acquit”, except that here I think it often fits pretty well. But as always, thank you for your comments, -Guy

        • I tend to think there are more loopholes in an EIS, for litigators to use. It is no wonder that the Forest Service tries to avoid using them, when an EA meets the guidelines. The last project I worked on was a thinning project in an area where very little management has happened in the last 30 years. I’ve seen where objections to the project have claimed that an EIS should be used but, that idea was shot down by the Forest Service. We’ll see if that push ends up in court. I’m pretty sure that other issues, mostly dealing with cumulative effects on water, will cause this project to end up in court. I’d bet that if an EIS were done, there would be more certainty that the project would be in court, due to more hoops to jump through. Since groups want an EAJA “payday”, they want more issues to “stick” to the legal walls, when thrown.

          • That’s an interesting perspective, I won’t disagree with you but need to think about it. I’ve always assumed the main objection to doing an EIS is that it’s a major pain in the ass (which is true), but also kind of assumed that having done one would be advantageous to the FS. Shows that they’ve done more due diligence, etc., plus a chance to pre-emptively deal with issues that might be contentious. Sometimes the only “relief” requested is that an EIS should be done (and/or formal ESA consultation, also pretty common), but I can see where your scenario might be a possibility too. Thanks for the food for thought.

            • The conventional wisdom when I was in the business (and usually the advice given by counsel) was that an EIS was easier to defend. That mostly comes from the fact that defending an EA requires a (substantive) demonstration that there is no significant impact (using CEQ’s list of factors), while defending an EIS only requires showing that the relevant impacts have been considered. An EIS must be prepared when there ‘may’ be a significant impact.

              Agency arguments against doing an EIS were often about workload, or maybe more importantly about time frames. EISs do tend to take longer because of the requirement for circulating a draft EIS for public comment.

            • Here is an example of where the Forest Service defends its decision to not do an EIS, in favor of an EA, in response to an objection:

              Issue 2
              The Forest violated NEPA because they failed to do an EIS. When an EA reveals a
              significant impact, as this one has, an EIS must be prepared. The Hydrology Report
              indicates the project would double ERA and TOC from the project in the Cat Creek
              Watershed, increasing the risk of CWE from Low to High. This is a significant effect
              that requires an EIS. An EIS is also needed to analyze potential impacts from the
              reconstruction of 48 miles of roads. (Appeal, pg. 4)

              Response
              40 C.F.R. 1508.27 (b)(3) defines significance for NEPA purposes: “Significantly as used in NEPA requires consideration of both context and intensity:…The following should be considered in evaluating intensity:…unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.”

              The direct, indirect and cumulative effects from the reconstruction of 48 miles of roads have been analyzed. (Hydrology Report, pp.16, 18, 33-36)

              “The risk of Cumulative Watershed Effects (CWE) as a result of Alternatives 1, 3, and 4 of the CERP is not significant in any of the four watersheds that contain the CERP for the reasons described below.” (Hydrology Report, pg. 31)

              “For three watersheds (Upper Middle Fork Cosumnes River, Middle Fork Cosumnes River –
              Pi Pi Creek, and Anderson Canyon), the results from the model used to assess the risk of CWE indicates that the CERP would not cause those three watersheds to approach the Threshold of Concern and the very high risk category of CWE. This is largely because the CERP involves a small portion of those watersheds. For the Cat Creek watershed: Commercial timber harvest would be implemented over a minimum of four years, there would be no more than 500 acres of commercial timber harvest in any single year, and tractor piling in commercial timber harvest units would limited to no more than 300 acres in a single year. This means that less than 10 percent of the watershed would be subjected to ground disturbance from commercial timber harvest in any one year, and 90 percent of the watershed would not be subjected to such ground disturbance in any single year. This greatly reduces the likelihood that a large rainfall event – should such a rainfall event occur – would result in adverse effects to aquatic features on a watershed scale. The results from the model used to assess the risk of CWE indicate that the CERP would not cause the watershed to exceed the Threshold of Concern and would not cause the watershed to be in the very high risk category of CWE.” (Hydrology Report, pg. 31)

              I find that the direct, indirect and cumulative effects analysis of 48 miles of road reconstruction was sufficient and complies with NEPA. The effects analysis found no significant impacts and an EIS is not required.

            • Guy or anyone, Do you know of a good source that summarizes the essential claims made in successful litigation against the FS iver land maangement decisions in recent years? Thanks in advance for any help provided.

              Mike

              • Mike, there’s this one that I posted above, it gives good summaries by year of NEPA cases that FS (and other fed agencies) have been involved in (either won or lost), and identifies the basic issues involved: http://www.lucindalowswartz.com/NEPAinfoandResources.html

                Of course, this doesn’t include ESA cases (or at least ESA-only cases) which of course also arise out of land management decisions. Or CWA cases etc. As you know, an alleged NFMA violation will show up as a NEPA case. There may be other summaries out there, but this is the only one I’m aware of -Guy

  5. Do we think this situation is different from any other area of law? After laws are adopted, they get interpreted by the judicial branch. They evolve (maybe in different directions in different jurisdictions). There then needs to be oversight by the executive and legislative branches to see if these interpretations are what was intended or are appropriate for today. Interpretations can be modified administratively (the comment period just closed on a revision to the ESA regulations dealing with incidental take) or the law can be changed. I think these kinds of processes have been operating on public land laws (along with outside reviews in law reviews and the like). It could be that Forest Service reviews have been more (litigation)-issue-driven than comprehensive recently, though longer ago both Chiefs Thomas and Bosworth railed against legal ‘Gordian knots’ and ‘process predicaments.’ We can always benefit from other views, but I question the premise that this is anything other than the typical regulated entity chafing at the regulation. (Anyone out there that has had similar experience in another field?)

  6. And the creature becomes something unrecognizable AND dysfunctional.

    Eric, if you are still on this, can you say if any of the OGC lawyers “get” the forestry as well as the law, or understand the overall fit of law to reality?

  7. Hi Dave-
    Yes, definitely still following. Unfortunately (or not) school seems to make significant demands and I have to mind my priorities.

    As I said earlier in the thread, at Region 1 there are only two lawyers to deal with all the litigation that surrounds the timber project disputes. Thus, they are largely specialists in NEPA and the ESA. However, they still get roped into other challenges. The USDA just has SO MANY fronts open on any given day. But to specifically answer your question I would emphatically say that, yes…they get it. Not only do they get it, but they are surrounded by others in the larger R1 office whose sole job is to get it and they meet with them on a regular basis. I’m not sure if I entirely understand what you mean by whether or not they get the “overall fit of law to reality.” But I guarantee you, they are two of the sharpest individuals I have ever met.

    • I’ve worked with OGC attorneys in several regions and the WO. Many of them have years (careers) of experience reading EAs and EISs and what they teach about forestry and other disciplines, as well as talking to the specialists. Some are probably THE experts on the ‘overall fit of law to reality’ on these subjects (though I’m not agreeing that law and reality are two different things). However, that is not as true for the DOJ attorneys who actually argue the cases. They are more transient and often have to be educated by OGC and the FS, and sometimes make case decisions based on larger litigation strategies, and sometimes in part on political reasons (another form of ‘reality’).

      • Thanks for the answers, you two.
        Always found it strange that DOJ lawyers would be arguing on packages put together by others. Everyone here knows you leave a lot of stuff off the paper no matter how much you put on the paper, and in assembling the parts, you know how they fit. Kind of like building the car, then driving it, versus just driving it.

        • “Always found it strange that DOJ lawyers would be arguing on packages put together by others.”

          Me too. My Administrative Law Professor recently enlightened me on why this is so. Over time and of necessity, agencies have consolidated all three of the governmental powers granted by the constitution. They can make rules (legislative function), investigate & prosecute (executive function), and adjudicate (judicial function through administrative law judges). Thus, ALJ’s are given great freedom from being pressured by the agency that employs them. However, their decisions are rarely final. A final appeal can almost always be made to the agency head for a final decision. This is where OGC’s comes in. OGC’s really only have power to operate “within” the agency as counsel to the agency head. When an appeal is taken to an ALJ or agency head’s final decision under the APA, then it leaves OGC’s grant of power. Thus, DOJ picks up where OGC leaves off. That they “pick up” all the legal research and material that OGC has generated along the way is more a matter of convenience b/c the agency is the expert than a requirement. DOJ could, and does, do its’ own legal research; however, as Jon noted, their expertise is more transient and thus they are usually forced to rely on the agency’s experts.

          • Well, I have had more or less the same experience as Eric and Jon, except for a longer time period and in the WO and a different region.

            I would say that OGC attorneys “get” Physical World compared to Legal World, only sometimes. As Jon says, there are many people who can explain Physical World to them, but really, when you are in the crush of legal exigencies, knowing about Physical World is “nice to have” but not “essential.” Also, I don’t know about the Region 1 RO, but in ours, people who were experts in different areas often disagreed about key Physical World parameters (hope no one is shocked by this revelation!) and so if OGC attorneys depended on them, well.. and then folks on the District that generated the case might not agree with the specialists in the RO, so.. on the whole arriving at the truth of Physical World is not easy to do. And like I said not directly relevant to cases. Then there is the cultural overlay of “The District is Always Right”; but they didn’t do what the specialist in the RO asked them to do, despite the RO person conceivably knowing more in general about the discipline, although not on that specific piece of land.

            Sometimes, especially when politics (internal and external) heats up, the idea of coming to consensus about Physical World becomes a distant mirage to anyone. And as folks have said, there is no time for niceties with the case loads attorneys have.

            When something is on appeal or being litigated, generally Physical World is simply not relevant. Perhaps this is less the case with regions with many ESA claims, due to different approaches to finding out what endangered species really need and the role of science.

            At the end of the day, though, it seems like DOJ “does the deal” with the plaintiffs and is incentivized to close the case, not necessarily going along with what the agency thinks (hence line between OGC and them).

            One time we were discussing policies about some travel management thing. One of our attorneys said ” you can’t do that, we already settled a case saying something different.” It seems to me that sometimes in the urge to settle, policy and precedent implications are lost or dismissed (perhaps those people with responsibilities for that policy are not involved in the discussions). It’s not the same thing as a lack of knowledge about Physical World, it’s more “let’s just settle this.” It kinds of leads to a hodgepodge of court and agency generated policy which is difficult to keep track of.. possibly leading to the situation that this post started out with.

  8. Eric and Jon, you’ve got me confused (not an unusual condition). At least in the context of FS project appeals/objections/litigation, it’s now not clear to me who does what (and worse, I used to think it was pretty clear). For example, I don’t think USFS even has Administrative Law Judges, so I don’t see where they fit in? A FS line officer deals with appeals. And appeal to the agency head (Tidwell? Vilsack? Jewell?), whoever does that? Appeal denied (back when we still had appeals) = administrative remedies exhausted = litigation time, no? I’m looking back through some pleadings in a couple of project cases, and they’re all filed by DOJ attorneys right from the start, are you guys saying those briefs were written by somebody else (OGC)? And I’ve been giving credit to the wrong people? (because they are generally well-written, though sometimes bend the facts and tone is often “snarky”, to use Sharon’s word 🙂 thanks, my world has been shaken but it’s good to know!

    • I was being very general in the last post Guy because I was trying to show why agencies don’t litigate their own cases. However, as you have pointed out, each agency has it’s own rules embodied in its organic statute. Thus, appeals at the USFS (in my limited understanding) were (I say were because the objection process is changing all of this) initially reviewed by a committee qualified in different areas of expertise & appointed by the “appeals review officer” drawn from outside the district to limit bias. They then recommend their decision to another Forest Supervisor (again, not on the Forest facing appeal) who for the USFS has been delegated the power to decide under the organic statute. Then the agency head, in this case the Forest Supervisor, decides whether to deny or approve, right? It’s during this time that the OGC is briefing the Forest Supervisor and all the legal work is being done. The Forest Supervisor doesn’t want to make a legally uninformed choice. Thus, once the plaintiff has exhausted Admin Remedies and the judicial appeal is taken, DOJ takes over. But by that time, OGC has already written the substantive arguments that DOJ uses to inform their arguments to the court.

      • that’s more in line with my understanding (I misunderstood what you meant by “agency head”), although I’m a little surprised how much OGC apparently gets involved early on. First, at the amount of apparent legal butt-covering that goes on even while the so-called “impartial” appeal evaluation is still taking place, second by what a team effort it seems to be. Third, with all that effort by OGC and DOJ and paid interns, how many cases the FS still manages to lose 🙂

        • Well, I guess OGC gets involved when someone in the agency picks up the phone and calls them with a legal question. Early or late, it seems like that’s what they’re there to do. As far as the impartial evaluation, my wife has been on a few review committee’s and it doesn’t seem like there is generally much legal involvement there. They just take an objective look at what has been dome and compare it to how they would have done things. If they think they see a weak spot that someone is appealing then they will probably kick it back to the district to give it more attention. A lot of the time though it seems they trust one another’s judgement because, in the end, they’ve all been on the other side of a review. Lastly, hook me up with some of this paid internship action at the OGC if you could please!!! All I got was class credit 🙂 The OGC office I worked for had never had an extern before. I just barraged them with enough emails that someone finally emailed me back…

          • Congratulations, Eric: further proof that Nagging Works! The best advice I got as a graduate student was that a graduate degree was an exercise in committee management. Once I took that approach to heart (“almost immediately”), grad school became a very pleasant experience. Of course I’d had 20 years experience operating a business and reforestation and logging crews before then, so once I got clued into the process it was all pretty much second nature.

            One of my biggest promotions during my college career was to push for the idea that interns should be paid! My own internship however, much like your own, went unpaid. I think your idea has a lot of merit and should reasonably be funded — of course I think the same about a lot of my own ideas, and funding is always the major hurdle. Good luck!

            • Thank you Bob. The committee seems fairly manageable thus far. At 43, I think I’ve got some years (and significant real world experience) on two of the three which, like you said, definitely goes a long way.

  9. In R-2, we used to have OGC involved directly in the appeals in the RO. In fact, they have stayed up late working on them and carefully edited appeals letters, spoke to the Appeal Deciding Officer on legal issues, etc.

  10. My experience was that OGC’s top priority was always litigation (including writing briefs for DOJ), and there wasn’t often much time for lower priorities like ‘pre-decisional’ review, including administrative appeals or objections. I would not assume that OGC necessarily had involvement in a case prior to litigation. (Having interns might let them do more of this!) This was especially unlikely if a forest supervisor was reviewing a decision by a district ranger. It would also be unusual for OGC to be involved in policy discussions at the regional level (the FS seemed pretty possessive of its authority), though I would say the opposite was true at the national level, where OGC had direct access to the Secretary.

    Eric’s wife’s observations about the appeal process point out what I have always seen as a problem. The process is designed to deal with substantive issues, not procedural (legal) ones (see Sharon’s various comments on the ‘real reasons’ for opposing decisions). This means 1) reversals of decisions are uncommon due to the culture of deference to subordinates (discussed on another thread), and 2) legal review may not occur when it should. Then, of course, the final agency decision-maker may choose to discount or disregard legal advice as part of their risk management (‘can I get away with it’) process. And maybe that’s how they lose so many cases.

    Lawyers and judges apply law to facts, and they must establish the facts before applying the laws, so it’s hard for me to accept that the facts (if that is what is meant by ‘real world’) are irrelevant. The ‘truth of the physical world’ should be in the administrative record (which is why the FS is rarely involved in trials any more). If there are conflicts in the record, that is a vulnerability that is likely to be exploited.

Leave a Reply

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