Judge Rules Against ‘Ecoforestry’ Pilot Project

This court decision bars the BLM from proceeding with a pilot project designed to demonstrate the “ecological forestry” described by Norm Johnson and Jerry Franklin. The court decision is here. From Greenwire today:

BLM can’t use ‘ecoforestry’ in Ore. woods — judge

26 Comments

  1. The court explains how BLM drifted from the ecological forestry concepts advanced by Johnson and Franklin by emphasizing variable retention harvest in mature forest (80 to 110 years old), rather than in mid-seral stands of intermediate age (<80 years).

  2. It is unfortunate the media uses or miss-uses the term ECO-FORESTRY and Ecological Forestry. A more ECO-FRIENDLY approach to the management of our remaining forested lands would be welcome. A focus on improving diversity within our forests is also extremely important. The court ruling does not oppose a more eco-friendly application of forest management but, found the environmental impact analysis was inadequate. Today our scientists are strapped to a desk and have little if any time to observe the on-the-ground details required to prepare realistic environmental impact documents. The documents represent the knowledge of the scientists education, textbook information and previous experience rather than detailed observation of the lands to be treated. We must insist on an analysis of the individual unique forest communities that make up the 160 acres to be treated. The judge was correct and taking short-cuts will not lead to a more diverse mosaic of forest communities!

  3. The court notes that, “Plaintiffs do not challenge the pilot project’s other timber harvest, the Buck
    Rising Timber Sale, because it would affect younger trees that do not provide nesting, roosting, and foraging habitat for the threatened northern spotted owl.” The main problem seems to be that BLM refused to evaluate this alternative in the NEPA process for the White Castle sale, even though it was their initial design that resulted from discussion with Franklin and Johnson. Fail.

    They also chose to prepare an EA instead of an EIS where there was known uncertainty and controversy about effects on a listed species and its critical habitat (which the pilot project was specifically designed to address). There was also evidence that the BLM deliberately tried to ignore information about red tree vole use of the project area.

    No exemption from NEPA for ‘ecological forestry.’ Which by the way would be an INCREASE in management intensity and effects: “a shift for the Roseburg District, which has relied almost exclusively on less intensive thinning and density management strategies for timber production since 2000.”

  4. I hear your comments about NEPA, mature timber, etc., JL, Brian, and Jon, but this was a pilot project designed to test the so-called “ecological forestry.” An EIS for 160 acres? A wildfire that size would barely make the local news.

    • Perhaps this extract from CFR Title 40 → Chapter V → Part 1502 entered into the ruling:

      §1502.4 Major Federal actions requiring the preparation of environmental impact statements.

      (3) By stage of technological development including federal or federally assisted research, development or demonstration programs for new technologies which, if applied, could significantly affect the quality of the human environment. Statements shall be prepared on such programs and shall be available before the program has reached a stage of investment or commitment to implementation likely to determine subsequent development or restrict later alternatives.

      • Mac- “significantly affect the quality of the human environment” is a judgment call but I don’t think cutting trees is in any way shape or form a “new technology.” People have been cutting trees in old forestry, new forestry, new perspectives, ecosystem management and every other possible permutation. Really, 170 acres?

        It could be argued that poisoning non-native fish is, or is not , a “new technology”- certainly more recent than cutting trees.. yet it’s easy to find an EA doing that http://parkplanning.nps.gov/projectHome.cfm?projectID=30504 that hasn’t been litigated.

        If we look at this 2002 Petition to APHIS for example, we find that APHIS regs allowed EAs for releases of GE species. I think we all would agree that GE species are fairly new techologies, at least compared to cutting trees.

        In reality, what happens is some project follows, as Guy says, the EA and FONSI path. If someone doesn’t like the project, who can afford to litigate, they can argue that a project (say 160 acres of cutting trees) is significant. As Derek would say, this works just fine in some places, as it should (if you think that impacts on 160 acres of tree cutting are generally not significant) and the project is completed. In other places, when a case is made in court, the judge either buys it, or says, why not, it just makes the FS do more work, and then we’ll have better info (or whatever he or she is thinking).

        So in reality, there are all kinds of strategies involved, including putting lots of extra stuff in an EA so the plaintiffs know the FS has the goods, so to speak. On the other hand, that just signals the plaintiffs to hunt further.

        I have seen and worked with many people who changed analysis from an EA to an EIS (EIS- ification). But at the end of the day, as one citizen of the US, I appreciate line officers who call them as they see them in terms of significance. I think that’s how NEPA and its implementing regulations are supposed to work.

        So I’m with the BLM on the EA thing.

    • Unlike a fire, this “Pilot Project” is precedent setting. The court pointed out that BLM itself said that this project was a test of new logging methods that could be applied much more widely across BLM lands.

      Also, unlike a fire, this regen harvest project would remove most of the large woody structure from the site and require road building. This project is more like fire followed by salvage logging, rather than fire alone.

      And, this regen project is 187 acres, 160 of which are over 80-110 years old.

      • I think what it really shows that the way the current laws are Oregon Wild and Cascadian Wildlands can stop any sale they choose too, especially if there happens to be a tree over 80 years old included in the sale.
        How much is enough studying? Are you suppose to go out count all the tree voles? And if you can’t?
        Can we really ever know what all the impacts are? Will we ever agree on what they are? Who created the criteria in the first place?
        They stopped the ” Johnson and Franklin” sale in a second growth forest on the Coos Bay district also.
        60 to 120 year old trees really are not “old growth”, but they are larger trees.
        Cascadian Wildlands caused the state to sell off part of out Elliot State Forest.
        Why don’t they go talk to Weyerhaeuser? No money in that is there?

      • So the impact of removing large woody structure and road building is not really unusual in its environmental effects (because I think it’s been done once or twice and has not had significant effects) but the idea that it could be used again makes it a legal precedent. But NEPA talks about analysis of impacts, not in legal precedents (??). It almost sounds like you are thinking all the other potential sales are connected actions in the NEPA sense?

  5. I’m increasingly of the opinion that federal forest management (i.e., the courts) is designed to mollify the environmental community. If that is the standard the courts use, then it is a pretty low standard. A national forest supervisor stated recently that they are not being sued and that seemed to be his standard for successful management. My question is, do these groups represent the wishes of the American citizen, the true owners of these lands? Our elected officials ought to give that thought some consideration for a change.

  6. “The Media” and in this case Kelly House, is content to function as the mouthpiece of these litigious organizations rather than dig for the facts behind the story. She even conveniently sends the reader directly to Oregon Wild’s website so that they can feed us their spin on the case. So here are a few facts that you will not find without digging into the archives for now 5-year old information, clearly long forgotten by most:
    Summer of 2011: The Obama administration sends Secretary of Interior to Roseburg to try & untangle the mess that has embroiled BLM land managers unable to deliver on nearly every element the Clinton Northwest Forest Plan intended. Secretary Salazar offered an alternative approach using Norm Johnson & Jerry Franklin’s Ecological Forestry prescriptions. Johnson, incidentally, was one of the Gang of Four authors of the NW Forest Plan. White Castle would become part of the Roseburg Secretarial Project, one of the 3 demonstration pilot projects to be conducted in SW Oregon. These projects were supposed to be prioritized and on a short track to be designed, sales sold & harvest operations well underway by the summer of 2012. With the Secretarial mandate & Congressional support, Johnson & Franklin began the laborious process of engaging the public in several informational meetings, field trips and listening sessions aiming to find a path of little or no resistance. BLM provided all of the information & staffing to help find a socially & ecologically suitable area for the demonstration of their concepts. Out of the 400,000 acre Roseburg District, they finally settled on roughly 250 acres at the top of the South Myrtle Creek watershed, now months behind the intended schedule. Since this was a pilot for the planning process as much as for the vegetative treatment, an EA as opposed to the more laborious EIS document was prepared. Out of that came two projects, Buck Rising and White Castle. Since Buck Rising involved previously managed stands and plantations, it was not the focus of Oregon Wild and Cascadia, at least not until after it was harvested. But White Castle was the target and included the help of an organized tree-sitting camp-out well into the winter of 2013. Now the common questions asked in the community are how will the Administration/Secretary/BLM respond to judge Aiken’s ruling and how much will the government pay in attorney fees to the plaintiffs? For more detail on the White Castle Timber Sale I include the 120+ page sale prospectus, should anyone care to read it.
    http://www.blm.gov/or/districts/roseburg/timbersales/files/White-Castle-VRH.pdf

  7. There’s a pretty good profile of Norm Johnson here. It talks quite a bit about his and Jerry Franklin’s “ecological forestry.”

    “Boy, have I caught hell over this,” he said.

    Ain’t that the truth — from all sides!

    Andy Kerr is mentioned, too:

    “There is a shortage of complex early seral habitat, but it would be better restored by allowing some forest fires to burn and avoiding salvage logging, said Andy Kerr, former executive director of the Oregon Wild environmental group.”

  8. Brian, I’m presuming that you do not work for a land management agency. “Scientists” are not tied to their desks. Rest assured, every inch of this 160 acre project are was reviewed by specialists.

    The difficulty lies in the proper way to document environmental effects. Folks that don’t work in the field don’t understand the difference between EISs and EAs. The differences are primarily procedural. The actual analysis in the documents is very similar.

    • “Folks that don’t work in the field don’t understand the difference between EISs and EAs. The differences are primarily procedural. The actual analysis in the documents is very similar.”

      Well, not exactly. From the start, the purposes of these different analyses are quite different, with an EA being a concise evaluation of whether there will be a significant impact on the “human environment” (and thus whether follow-up with an EIS is necessary). An EIS takes the existence of significant effects as a starting point, and provides a comprehensive and detailed analysis of those effects. Those really are substantive differences (though as you point out there are procedural differences also).

      Agencies have often lost in court when they produced an EIS that was “very similar” (i.e., not comprehensive and therefore inadequate) to an EA.

      Differences are explained pretty well on this BLM web page: http://www.blm.gov/wo/st/en/prog/planning/planning_overview/frequently_asked_questions.html#12

      • Modern day EAs are not a “concise evaluation.” Timber sale EAs routinely run 200+ pages and involve extensive research, surveys and analysis. NEPA intended EAs to be brief documents. Anyone who works in the field knows that this is not the case.

        For most complex projects, an EA analysis looks the same as an EIS analysis. From the agency perspective, an EIS takes the “significant impact” argument off the table. For litigants, a demand for an EIS is simply a hope for a time consuming/soul sapping process that often spells the end of the project.

        • well, that’s just incorrect (except for the 200+ page EA part, that’s true enough). If agencies truly believe that EAs and EISs are interchangeable, that may be one more reason they often end up in court (and often lose there). An EIS does not take the significant impact argument off the table, because it requires the agency to then determine “steps that can be taken to mitigate the adverse environmental consequences” of a proposed project, and to discuss “the extent to which adverse effects can be avoided,” i.e., by mitigation measures, “in sufficient detail to ensure that environmental consequences have been fairly evaluated.” e.g., see Robertson, 490 U.S. at 351, 352. That’s the law, agreed it’s time-consuming, but if the agency finds it “soul sapping” to follow the law then maybe that calls for some agency soul searching. An EIS also mandates a higher level of public participation and agency response to public concerns, and I can see how that might be considered purely procedural if the agency mostly finds it to be an annoyance, but to the extent that public participation impacts the project outcome, it most definitely is substantive as well. An agency decision (which is not subject to public input) to prepare an EA vs an EIS generally represents a foregone conclusion that a FONSI will be issued at the end of the analysis (that’s not what NEPA says, it’s just one opinion). As such, the decision may be more of a strategic one than an environmental one. If it’s true, as you suggest, that the same level of analysis goes into an EA as an EIS, then it’s hard to understand why preparation of an EIS would be either soul-sapping or would spell the end of the project, unless the higher level of scrutiny would make the project unjustifiable and thus would “spell the end of it.”

  9. Thanks, Javier, for the background on this. I suspect a key reason for the problems was “Secretary Salazar” + “now months behind the intended schedule.” That’s a formula for short-cuts. Judges seem to have a nose for attempts to paper over them with disingenuous explanations. They tend to call them ‘arbitrary and capricious.’

    • I don’t agree that there were short cuts taken on this project. We don’t typically do EISs on timber sales in western Oregon.

      In this case, the agency overplayed the “new approach” angle for ecological forestry. The techniques proposed in White Castle are not new – clearcutting with reserves. The reliance on aggregating the reserve trees is a little outside the norm. Retention trees are more typically scattered – 6-8 per acre.

      The other issue is trying to drop this project into a mature stand (not old growth) with owl issues. Judge Aiken is known to be a tough draw for federal agencies.

      This is further proof that the NWFP is dead. It’s a shame too. The Plan was supposed to be a compromise between conservation objectives and sustainable forestry/economics. We have implemented the conservation goals. The sustainable forestry has been an utter failure. We have about 20 years of thinning left and then it will be time to turn out the lights on timber harvest in western Oregon.

      • Well, the eco’s never went into the NWFP with sincere efforts to make this a good compromise. They knew that they would fight against any project that didn’t thin plantations, as well as getting the old growth protections they wanted. In essence, they have been “double dipping” into the preservation pool. Once again, compromise is one of those feared “C-words”, in the preservationist’s camp. Really, I don’t see any way of getting out from under this bait and switch tactic, right now.

        On the other hand, there should still be some plantations that need thinning, as well as some more intermediate stands that need a more commercial treatment. Yes, I know that some people don’t like thinning in Douglas-fir stands. We have to work with what we have, regardless of the hazards and conditions. Yes, it takes more skill and expertise to selectively log stands, rather than clearcutting.

  10. And the loggers are getting pretty good at thinning too. When it’s about survival you adjust, even if you don’t like it. Not many cutters left who know how cut old growth, mostly just the old guys.

    • I’ve seen some excellent cutters, in my time, working closely with them. One pair of guys were the best I’ve ever seen, working on Hazard Tree projects, you usually cut down large trees, with obvious defects, in situations where you don’t have much leeway where to put the tree. These two guys were experts in salvage logging, too, able to work in dense stands without have to do stage felling. It was remarkable how few trees crossed other trees, on the ground.

      Mechanical thinning is also extremely efficient, with an excellent operator. I’ve also seen some “alternate methods”, which we had to look at, to see if they did the intended job, without tearing up the ground. One guy used an excavator with a grapple on the end, to line up whole trees along the skid trails, so his skidders could just grab and go. He had good reach with the boom and could stay on the main trails, most of the time. The problem is that the machine is a little bit wider than the standard skid trail. That means cutting into the slope just a little more when it gets steeper. We really didn’t have any cheap way to mitigate those impacts. Instead, we traded less ground disturbance for more “benched” skid trails, in some areas.

      Back to the topic, I just shake my head when I see the Forest Service get caught trying to fool somebody. We need to be earning trust, and this is an easy way to lose a lot of it, especially in court. It is unfortunate that there are still some “dinosaurs” in the Forest Service, still using 80’s-era tactics to get 80’s-era logging.

  11. “On the other hand, there should still be some plantations that need thinning”
    In regions/areas that were harvested several decades ago with the practices of the day–vast areas of clearcuts–and highly productive lands, there may indeed be many plantations to thin. However, if you look at the BLM & FS lands in Jackson, Josephine, Klamath & Douglas Counties 60% or more of the lands are older stands like White Castle and older. With very little prior access & harvest activity, most of the plantations are between 20 & 65 years old. The NW Forest Plan (& other rules, court actions, etc.) brought us wide no-touch buffers, road decommissioning, etc. thus removing much of the plantation land base from harvest. Even with today’s intensive silvicultural practices, which are not available to federal land managers, it takes 40-50 years for stands on these steep slopes to develop into commercially sized trees. And just because they are plantations does not eliminate “the controversy,” just look at what is happening in the Tillamook, stands that were all replanted after the Tillamook Burn. The plantation thinnings that we’ve been seeing for the last 15 years were largely intended to meet timber harvest goals, yielding less than 25% of even the NWFP’s harvest levels. If you talk with Forest Service and BLM managers, they will tell you that even this reduced harvest level will drop severely within 5-10 years. And thinning plantations does very little to reduce the threat of fire on the remaining 60% of the lands which by every measure are under severe threat of catastrophic wildfire–but that’s a whole other discussion.

    • I did measure and take a core sample from a tree on the Powers RD that shows how big a younger tree can be. It was 32″ dbh western redcedar and was 64 years old. Of course, it was one of those trees inside a clearcut that was never cut. Once it got that full sun and plenty of water, it really took off. When does a stand cease to be a plantation, and when does a plantation become a forest? Activists tend to “protect” big trees (their opinion), regardless of how old they are. Just because the thinned trees are “big”, that doesn’t mean they shouldn’t be cut. It should be more about basal areas matching the annual preciptations, and species compositions favoring longer-lived forests, site specifically.

  12. And the early seral species are being extirpated. I was reading an EIS from one of these “thin a plantation to accelerate future old growth” timber sales on the Siuslaw in OR., and you could sense the USFS biologists just anguishing over the lack of early seral. “Patch cuts” of an acre or two were interspersed throughout the matrix of future old growth…along with a long soliloquy about the importance of early seral…but the size of the clearcuts were limited to 3 acres so as to not attract the barred owl. It’s about as laughable as endangered seals eating 40% of the returning endangered salmon below Bonneville.

    On national forests across the west, you get a sense that the new fret among wildlife biologists, whether state or federal, is the lack of early seral on national forests. The new Idaho Panhandle “plan” goes to great length and hand wringing about the importance of early seral since it is far below both the HRV and “desired”…but then admits that for the last 20 years they have been doing “1000 acres/year” of regen harvesting which equates to about half a percent per decade. But fear not…40,000 acres/decade is slated to be managed with “prescribed natural fires” AKA as “unplanned ignitions for resource benefit-LOL”…so all will end well.

    To be fair…and knowing that all modern forest plans spend more pages on “snags” than they do on “timber”…by teasing it out it would appear that the IPNF wants to increase the regen harvesting to 4,000/year. There you have it…2%/decade coupled with the 2%/decade that hopefully will burn…and in 50 years their projections show…a “decline” in early seral habitat(damn that forest just won’t stop growing). Of course “large diameter” trees would increase (can’t ya feel the good vibes).

    Of course, we all know that forest plan SIMPPLLE future modeling is about as useless as a Congressional Budget Office projection of future tax revenues. The Colorado White River NF 2005 Plan projected that in 50 years there would be a sea of old growth…and then 5 years later the pine and spruce beetle epidemic came along. So on the IPNF…I’m going to project we’ll get a lot more of the burning part and a lot less of the logging part.

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