The Forestry Source on “Sagebrush Rebellion Renewed”

The April issue of The Forestry Source, leads off with “The Sagebrush Rebellion Renewed: Bills Aim to Create Trusts to Manage Federal Timber,” by Steve Wilent, Forestry Source editor. The article begins with what I perceive to be a very narrow view of the origins of the 1980s Sagebrush Rebellion, blaming it all on “environmentalists”. The article ends with what I perceive to be cheerleading for “forest trusts” as a solution to current problems including the impending drying up of “Secure Rural Schools and Community Self-Determination Act” funding. It is an opinion-editorial, so Wilent is entitled to his perspective. But I thought I’d share it with you, since my own framing of this matter is much different. I see the 1980s Sagebrush Rebellion being just one of many from a West that was always angry over public lands. In my frame, fully funding Payments in Lieu of Taxes is a better solution to the rural schools problem. And I find the “forests trusts” idea a non-starter in dealing with America’s national forests.

Wilent’s article begins:

In his 1993 book, Federal Land, Western Anger R. McGregor Cawley describes the Sagebrush Rebellion as “a protest originating from three interrelated perceptions: first, that environmentalists had succeeded in gaining a dominant position in federal land policy discussions; second that the environmental community’s influence had created an underlying bias in favor of preservation over development in federal land management decisions throughout the 1970s; and third, that the only way to counteract the increasingly restrictive character of federal land management decisions was to precipitate an open confrontation.”

The first shot in that confrontation was fired in 1979, when the Nevada state legislature passed a bill that sought to transfer control of 40 million acres managed by the US Bureau of Land Management (BLM) – about 79% of Nevada – to the state. …

In February, Utah fired a new salvo when its house of representative passed the Transfer of Public Lands Act&#8230.

My own framing, built in part off the Public Land Law Review Commission’s “History of Public Land Law Development”, here, tracks the Sagebrush Rebellions (several of them, with continued skirmishes in between) back to the fights for statehood in the USA. In my state of Utah the fight was nasty and long-standing. Some Utahan’s were mad back then and continue to be mad today, with their anger welling-up periodically. Ron Arnold may have captured the spirit of that 1980s “Rebellion” as well as did the Society of American Foresters (SAF) article, calling it “a temper-tantrum over public lands thrown by a handful of cowboys”. That “temper-tantrum” turned into yet-another bandwagon that powerful rural Western politicians could jump onto—which they ultimately parlayed into substantial gains. Here is what Frank J. Popper had to say about these “gains” in “A Timely End of the Sagebrush Rebellion” (pdf), National Affairs 76, Summer 1984.

The Sagebrush Rebellion did not fail—it ended because it achieved many of its goals. The Reagan administration rapidly found clever, politically appealing ways to start to transfer some public lands without having to ask Congress for new legislation. Watt’s Interior Department undertook a “good neighbor policy” that allowed state and local governments to request the department’s “surplus” lands. The initiative was soon broadened to an Asset Management Program whereby all federal agencies could sell their excess land in the West and elsewhere; the eventual sale of 35 million acres–an area the size of Iowa–was expected. Separately, the Forest Service prepared to sell up to 17 million acres. The federal land agencies sped up the transfers to Alaska’s state government and Native Americans authorized by the 1958 Statehood Act, the 1971 Native Claims Settlement Act, and the 1980 National Interest Lands Conservation Act. The BLM experimentally revived homesteading in the Kuskokwim Mountains in central Alaska. Numerous federal-Western state land exchanges were in exploratory stages, and seemed most advanced in Utah. [p. 68]

Another look at the 1980s Sagebrush Rebellion, from “A Brief History of the Anti-conservation Movement” frames the issues as conservatives v. liberals:

At its most basic level the Sagebrush Rebellion was a conservative backlash against the growth of federal power represented by, among other things, such landmark environmental legislation of the late 1960s and ’70s as the National Environmental Policy Act (NEPA), the Clean Air Act, the Clean Water Act and the Endangered Species Act. These legislative programs created new roles and concerns for managers of federal land — protection of endangered species, water quality, air quality, etc. This required closer scrutiny of activities on federal lands, including the activities of miners, loggers and ranchers who operated there. Significantly, these businesses usually enjoyed substantial operating subsidies by virtue of longstanding below-market rates for grazing, mineral and timber rights on federal land. This closer scrutiny inevitably led to federally imposed restrictions when mining, grazing and foresting practices damaged the water and air and threatened endangered species. Recognizing that a return to the good old days of less regulation would be good for business, the movement took support and comfort from the 1980 election of Ronald Reagan, one of whose campaign planks was reduction of the size and power of government. Certain Reagan cabinet appointees, most notably James Watt as Secretary of the Interior and Anne Gorsuch as head of the Environmental Protection Agency, were selected in part for their willingness to further the de-regulatory agenda of Reagan and the right wing of the Republican Party. …

The Anti-Conservation Movement further benefitted from the attention it received from industries with something to gain. In particular, big agriculture (the American Farm Bureau Federation, The Cattlemen’s Association), the extractive industries (mining, including coal, oil and gas) and timber producers (who thrive on easy access to federal forest lands) saw a reduction of federal regulatory power working to their advantage. This message of the economic benefit of deregulation appealed as well to small businesses. After all, if workplace safety regulations could be reduced or eliminated, the money saved could be plowed back into the business.

During this period anti-regulatory forces sought to define and project an agenda that would be publicly acceptable. Throughout the 1980s the anti-regulatory/anti-environmental sentiment was expressed largely as support for the Reagan Revolution and its promise to deliver the country from the clutches of over-zealous, regulation-happy bureaucrats.

In studying the various Sagebrush Rebellions we would all probably benefit from a good class on the history of the American West. Here is one (pdf, syllabus) from Professor Chris Lewis, from the University of Colorado. Lewis places Cawley’s book in a class lecture on “‘The Lords of Yesterday’ and the Sagebrush Rebellion”. The book is well-placed there, since it is evidently written from the perspective of ‘the rebels’, according to a Great Plains Research book review (pdf). There is nothing wrong with that. One of my favorite books is Howard Zinn’s A People’s History of the United States, which is unabashedly written from the perspective of those who lost (and/or who were horrible abused) in the struggles to form the United States. Zinn acknowledges his bias, but is quick to note that no “history” is written without bias. But what is wrong with Wilent’s piece, in my opinion, is to use the book to suggest that one particular perspective is the only perspective that counts. Still, opinion/editorial pieces often do that. So, I’ll just leave it at, “I beg to differ”.

Wilent’s article goes on to highlight various ongoing problems including the impending falldown in Secure Rural Schools and Community Self Determination Act funding—problems which are clearly still with us. These problems don’t necessarily cry out for the solutions that are being proffered in the various bills currently working their way through Congress. But you wouldn’t arrive at that particular conclusion from Wilent’s article, which concludes by essentially cheerleading attempts to put federal land management into “land trusts.” “Cheerleading” is how I see it. What Wilent actually said was this: “Management by a trust dedicated to maintaining revenues to schools and other beneficiaries may offer a solution. …”

Wilent didn’t bother to daylight any other “solutions.” So cheerleading is where I’ll leave it. When dealing with ‘trusts’ my question is, as has been for a long time, “Land trusts provide a solution to what?” Yes land trusts are a good way to generate revenue if that is all you are interested in. But I thought that the ‘public trust doctrine’, under which the national forests were carved out and managed, is much broader than ‘revenue generation’. And we are not living in 1900, when income taxes and other revenue generation means now available to the federal government were not established.

In the middle of Wilent’s article, John Freemuth is quoted on both the complexity of federal lands management and his desire to reconvene a Public Lands Law Review Commission. I support Freemuth’s desire. On the other hand, I’m pretty sure that just about no one who is ranting and raving in this (or the last) Sagebrush Rebellion has ever read the last Public Lands Law Review Commission Report. Why should we expect a new one to add value to this debacle? Still, I would like to see a new one, if only to force the Administration and the Congress to delve deeper into the issues (and the history) surrounding our “Angry West”. But I’m not sure that a re-reading of the original Public Lands Law Review Commission Report wouldn’t suffice to dispel myths surrounding each seemingly-novel episode when the American West, particularly the “rural West” explodes anew in yet-another “temper-tantrum.” I guess we all get to pick our frames, and our scapegoats.

Related NCFP Posts:
Free America From Her Public Lands?
Utah’s Sagebrush Rebellion Awakens
The Frame Game
The Blame Game

Collaborative Forest Management: What the FACA?

Recently, one of the main the topic of conversation here at NCFP has been about collaborative forest management. We have wandered though several posts and many comments into the controversy surrounding, in particular the Montana Forest Restoration Committee in Montana and the Tongass Futures Roundtable in Alaska. In these discussions, there have been those sitting just beyond the perimeter of a collaboration who feel that something is amiss. Concerns often expressed by local environmental groups include, “Who is at the table, collaborating, and who is absent?” That is, Is the committee biased? If so, what type bias? On the other side of this divide are those who champion collaboration, particularly some National environmental groups who seem tired of litigation battles and stalemate, and to prefer more direct forms of engagement. These would-be collaborators don’t seem too uncomfortable with the make-up of collaboration committees. Because they are well-represented?. Sometimes they look askance at those who challenge the validity of specific collaborations, even accusing local environmental groups of being obstructionists. Local environmental groups counter, and accuse the Nationals of “selling out,” becoming part of the problem that is often labeled “Washington D.C.”

As I’ve watched and participated in surrounding discussion, I’ve wondered: Whither FACA? The Federal Advisory Committee Act FACA) was passed in 1972 in an effort to reign in federal agency ‘capture’ by special interest groups, particularly corporate interests. By the late 1990s there was substantial interest in collaboration in natural resource policy, but FACA was seen by many as a barrier to effective collaboration: Too bureaucratic, too heavily-laden with process requirements. But collaborators seem to have forgotten, else never understood a little facet of the law: an advisory committee doesn’t need to be declared to be a FACA Committee to be held accountable to at least some aspects of FACA law.

A good overview of this FACA problem/opportunity can be found in “The Federal Advisory Committee Act and Public Participation”, 1999 (pdf) publication by Resources for the Future. The act itself can be found here. Another useful reference is “The Federal Advisory Committee Act and Its Failure to Work Effectively in the Environmental Context”, (pdf) 1995, Boston College Environmental Affairs Law Review. After reading the latter, I was about to give up on FACA, in part because the courts had failed pretty much to allow people to challenge federal agencies under FACA. And the prevalence of closed-to-the-public advisory committees was still substantial in 1993:

FACA has … failed to fulfill Congress’s goal of opening all advisory committee meetings to the public. Closed-door advisory committee meetings still prevail, despite FACA’s mandates that meetings be open to public participation.218 The GSA, which monitors advisory committee activity throughout the government, reported that, in fiscal year 1993, there were more closed and partially closed advisory committee meetings (2,225) than open meetings (2,162).219 It is clear from these statistics that a substantial amount of advisory committee work is still done in private, away from the public scrutiny and participation that would help limit the influence private interest groups have on the agencies they are advising.

In short it looked like those finding themselves on the outside of collaboratives couldn’t find much recourse via the courts. Then I found an interesting little decision (pdf) rendered after the Idaho Wool Growers Association successfully challenged the Forest Service in Idaho, 2009. In Judge Winmill’s decision I saw a ray of hope that indeed FACA challenges might still reign-in committees that bias agency decision-making. In particular I found this interesting:

Memorandum Decision and Order – Page 18
FACA defines an “advisory committee” as “any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof . . . which is . . . established or utilized by one or more agencies in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government . . . .”

Memorandum Decision and Order – Page 19-20
“When a committee is established to provide expert summaries or interpretation of technical data, their reports can be ‘in the interest of obtaining advice or recommendations for . . . one or more agencies.’” . . .
“Even though [the committee] provided the USFS with only narrative summaries of scientific information, and made no policy recommendations, the [committee] drafts and the final assessment provide the framework, context and information that the USFS will rely on in making policy decisions.”

Memorandum Decision and Order – Page 20
FACA imposes a number of requirements on advisory committees. See, e.g., 5 U.S.C. App. II, §§ 2, 5, 9-14 (records must be made available for public inspection; charter must be filed; upcoming meetings must be announced; meetings must be held in a public place; minutes must be kept; attendance must “be fairly balanced in terms of the points of view represented” and may “not be inappropriately influenced by the appointing authority or by any special interest”). Typically, a close examination of each requirement, contrasted against the circumstances in a particular case, is warranted when determining whether a FACA violation occurred.

So FACA may indeed be ‘in play’ in broader contexts than have heretofore been considered by many. That is, it matters not so much that FACA committees be chartered by agencies. What matters is what the players do, how they deal with the public interest and how they vet various interests/positions. Post Judge Winmill’s decision, it looks like the courts may finally be listening. Or not! If the courts are listening, we may be in for more FACA lawsuits to test these waters.

What does it all mean? How does and agency, say the US Forest Service, go about getting workable committees (defacto FACA committees) that can come to any agreement or give advice that is not all over the map?

I think that the answer lies in an area that the Forest Service is so far loathe to go. That area is the area of multi-scale adaptive governance that includes policy development as well as program and project management. The Forest Service seems to want to hold policy development to itself, yet to collaborate on site-specific watershed projects. That type arrangement gives no space to deliberate upon and enact the type preservation sought by John Muir naturalists, who want intact ecosystems for say, wildlife—big home ranges for large carnivores, protected corridors for migration, etc. So the whole idea of local-only collaboration is a nonstarter to many environmentalists.They want to deal with matters of broader scale and scope. But there is no such forum available in the 2012 NFMA rule. At least that’s the way I see it. No wonder environmentalists cry fowl. When will the Forest Service warm up to adaptive governance, with its emphasis on collaboration and adaptive management? Not likely anytime soon. So, for this and other reasons, we’ll just see what shakes out in FACA court room battles. When dealing with extant collaboratives, we are left to wonder: What the FACA? Or maybe just WTF?

Perhaps the answer, or part of it, has already been offered up in a NCFP comment from Terry Seyden, if only ALL would/could operate in good faith and keep the public interest in mind:

In my view, there is just no substitute for ongoing substantive dialogue to help the agency truly understand what the real underlying interests of various constituents are. Having a rich two way dialogue also assists the agency in creatively exploring all available options for meeting agency goals while trying to meet sometimes competing interests. … [T]o be legitimate and effective, any collaborative effort has to be well grounded within a larger public involvement strategy that gives the larger community of interests substantive opportunity to comment on and influence collaborative recommendations BEFORE decisions are reached.
Of course for any of this to work, the process has to be seen as credible and fair, both in terms of who directly participates in a collaborative group and how those “not at the table” have meaningful opportunities to contribute before decisions are made. While good faith among all interests is not a requirement for this approach to be successful, good faith on the part of the Forest Service or other third party convening any collaborative effort is absolutely essential.

This is echoed by An Optimist:

A good process… will seek to represent the ideas or interests of even non-participating groups. The challenge, however, is that a collaborative process is a learning process ….

In a Michigan Law Review article, Daniel Walters (pdf) seems to agree with both. He advocates for a “deliberative approach” to FACA. It all sounds right to me.

The challenge, for all of us is to be ever-vigilant to ensure that ‘collaboratives’ are indeed operating in good faith, and in the public interest. But if the many of the comments in the posts linked just below are an indicator, many such collaboratives in the past may not have been acting in good faith and in the public interest. Also the Forest Service needs to make sure that collaborative fora are available at appropriate scale to deal with relevant issues—not just at the local level. So let’s keep talking, keep challenging emergent collaboratives and broader policy both in terms of resource-related policy, programs and projects and in terms of collaboration design and operation. And let’s talk here about what I missed, what I messed up, and so on re: FACA, collaboration, and US Forest Service policy and planning.

Some related NCFP collaboration posts of interest:
Odd bedfellows try collaborating to resolve conflicts- from E&E News, March 15, 2012
“Collaboration on natural resource management is divide and conquer” The Wildlife News, March 11, 2012
New Research: Who Litigates, Who Collaborates and Why?, March 7, 2012
Two Views of the Tester Bill, December 22, 2011
Collaboration Can’t Fix What Ails Public Forest Management, October 6, 2011
Colt Summit- Garrity EditorialOctober 6, 2011

Lower North Fork Fire Started as Prescribed Burn

From ABC News, Denver:

How The Fire Started

On Tuesday, the Colorado State Forest Service admitted to 7NEWS that the Lower North Fork Fire started as a result of a prescribed burn it was conducting late last week. …

Last Wednesday, the Colorado Forest Service initiated a prescribed burn on Denver Water Board property. The purpose was to reduce woody fuel from past forest restoration activity.

Prescribed fires sometimes have unintended consequences, and sometimes the consequences are tragic. We all know this, but it proves useful to our extended conversation here at NCFP if we acknowledge it. Our forest management efforts play out in contexts that are quite wild, and we should be ever-mindful of that fact.

When Policy Trends Toward Bullshit

Much government policy and some law resides in a realm philosopher Henry Frankfurt labels “bullshit”—in earlier times called humbug or balderdash. Much US Forest Service policy falls here too: regulation, manual and handbook directives. At least that’s the way I’ve seen it for a very long time.

Early in my Forest Service career, a colleague and I were conscripted into a week-long Forest Service Manual/Handbook writing exercise, specifically focused on the Forest Planning sections. A quick survey of the materials led us to conclude that our week had to be spent making sure that there was nothing in the FS planning manual that could possibly harm anyone. We knew that we could not ‘fix’ the manual, so we spent our week in a second-best endeavor.

A few years later a FS Planning Director asked a group of us for policy ideas at an economists conference. I suggested a bold move: Throw the Forest Service Manual and Handbook in the Potomac. I made the recommendation in the main because both the FS Planning and Economics Manual/Handbook materials were pretty much bullshit. Note that I immediately added that people should be able to swim out and retrieve portions of the policy manuals they deemed useful, and then upgrade them as necessary to help advise program development, project design and work generally. The point was to decommission the whole mess, and free the agency of both the manuals/handbooks and the mini-bureaucracy that oversaw them. Of course I didn’t believe that the FS would act on my suggestion, at least not then. But one can always hope. [Note: I wish there were electronic copies of earlier FS Manual/Handbook materials to point to for historical (hysterical?) purposes. ]

I suggested “tossing” the FS manual and handbook to both Chief Dombeck (via Chris Wood) and Chief Bosworth. Both were somewhat warm to the idea, but nothing happened. I’ve once again raised that issue with FS top brass, suggesting that collaborative adaptive governance can’t work if everybody shows up with several yards worth of “holy writ” that must be followed.

Later I called bullshit on the Forest Service’s initiative to tie planning (and pretty much all else) to environmental management systems—chronicled in my Forest Environmental Management Systems blog (Oct. 2005 – April 2007). That particular mess went away, with EMS rightfully retreating to a minor place (facilities and fleet management) in Forest Service administration. I’m sure my blogging did not influence the outcome. But at least I left a record, so that we might learn from the mistake.

Common wisdom says, “When you find yourself in a hole, stop digging.” Let’s pause a moment and explore special characteristics of what we are digging through.

What is ‘bullshit’?
Before anyone gets too upset with my BS terminology, maybe we ought to delve into Frankfurt’s little book On Bullshit—an essay really, which you can read online. Frankfurt’s little book adorned a special shelf in my FS office bookshelves, accompanied by Joseph Heller’s Catch-22 and Something Happened, Lewis Carroll’s Alice in Wonderland, and some other classics. Frankfurt begins On Bullshit with,

One of the most salient features of our culture is that there is so much bullshit. Everyone knows this. Each of us contributes his share. But we tend to take the situation for granted. … In consequence we have no clear understanding of what bullshit is, why there is so much of it, or what functions it serves.

Frankfurt attempts to tease out a ‘theory of bullshit’ for us. I’ll not bore you with all Frankfurt’s building blocks, but I at least we need to know that he distinguishes bullshit from lying, in part as follows:

The essence of bullshit is not that it is false, but that it is phony. … The bullshitter is faking things. But this does not mean that he necessarily gets them wrong. [But it does mean that they don’t quite ring true.]

How much FS policy falls in this realm? Politicians tend to create bullshit to pander—to curry favor. Bureaucrats create bullshit for very different reasons. Frankfurt says,

Bullshit is unavoidable when circumstances require someone to talk without knowing what he is talking about. … [This is] common in public life, where people are frequently impelled—whether by their own propensities or by the demands of others—to speak extensively about matters of which they are to some degree ignorant.

Think about how Forest Service teams are put together, often without asking for volunteers and without too much regard for seeking out the most knowledgeable team members. It always seemed to my jaundiced eye that team members were selected to construct manual and handbook materials in the main because they were ‘good soldiers’, and particularly not ‘radicals’ who might rock the boat too much.

Why I’ve tried to stop the BS

I know that it is pretty much a fool’s quest, but I’ve always tried to get the Forest Service bureaucracy to ‘swing for the fences’ and pull itself up from the morass of its own policy, manuals and handbooks. But, like many American institutions the Forest Service will not take a hard look at itself. Maybe it’s due of fear. Maybe it is due to ennui—stuckness, lack of hope. Maybe it is something else. Maybe it is just because they don’t realize that bullshit might be outright harmful, even toxic to the organization.

This proves especially true when bullshit policy is brought into court, “for the record,” when people challenge federal actions, which must be based on federal policy. At the point federal policy bullshit makes an appearance in court, federal judges are not pleased to have to wade through it—so we too often get strongly-worded federal decisions against the Forest Service.

In any case, meaningful links between process and outcome in the Forest Service often simply don’t exist in any practical sense. They are too encumbered by bullshit. For example, we often hear that if the Forest Service can’t fix the Forest Planning process (for example) in ‘rulemaking’ then we’ll fix it in forest plan implementation—as if that can happen. Isn’t such talk just administrative governance denial?

I keep the pressure on, hoping against fate that a miracle will occur, as it did with General Electric not too long ago, just before GE was to fall in to a bureaucratic quagmire from which it would not, could not escape. Make no mistake, the GE rebirth was brutal. But the company is arguably much better today than before—now that fierce conversations are standard practice innovation is center stage, and people are required to challenge each other to do better, and to be better. Maybe someday the same will happen in a government agency, even perchance to the Forest Service. But I’m not holding my breath.

Free America from her Public Lands?

Robert H. Nelson is at it again, pitching the transfer, sale, or lease of much of our federal lands. Today’s installment comes from the Denver Post, 3/11/2011, where Nelson writes as “Guest Commentary” a little diatribe titled Free America’s West. I remember Nelson’s earlier attempts to sell the idea of selling or leasing much of the federal estate. I wrote about it in my little quasi-blog Eco-Watch in 1995, as Public Lands, Private Rights, Public Responsibilities. Let’s look at a bit of both my argument and Nelson’s. You can decide which is in the best interest of the American people.

Here is a snip from my “Public Lands, Private Rights, Public Responsibilities”, which was in part a response to Nelson’s Book Public Lands, Private Rights:

Even though much of the history of the West (or at least the mythology of the West) has been written in terms of individual rights and responsibilities, there has always been lurking in the shadows of conscience the public side of life and the responsibilities that accrue to living in communities, in regions, in nations, and on Earth. To highlight some of these issues consider the following: (1) responsibilities to maintain clean air and water systems; and (2) responsibilities to provide habitat for communities of species that keep landscapes functioning as forests, as marshlands, as prairies, etc. to form the environment that nurtures the variety of life that provides both sustenance and quality for our own existence?

What are we to do, if anything, to try to maintain the functions of the biosphere that cleanse both air and water throughout the world? Many of those functions are performed by our forests, rangelands, marshlands, and estuaries. Also, what value do we find in the presence of other species with whom we share the Earth? We commonly recognize and mourn the loss of each species that vanishes from the planet (at least those few that we hear about–or even know about) but we seem to forget that these ‘other’ species do not recognize our so-called property rights and often fall victim to human endeavors. …

Arguments that [Robert ] Nelson and others bring to the table are only germane when placed in context. Absent context how could we get to the heart of this or any other issue? What is at issue, it seems, is: Who are we as a people? What is our heritage? What heritage are we to leave to those who follow in our footsteps? Some of our collective desire to leave a proud heritage is wrapped up in the noble goals embodied in federal land and resource law. What are we to do, for example, about habitat needs for species that have grown up and flourished in Western wildlands? What about the access to relatively undeveloped public lands (also strictly undeveloped lands in primitive areas and wilderness areas) for recreation and spiritual renewal that so many take for granted? Would this access be retained in proposals for changing management? If so, where and at what cost to the user? What about the ‘attraction value’ that accrues to lands adjacent or in close proximity to federal set-asides from development? Are Sun Valley, ID, Jackson Hole, WY, Whitefish, MT, Telluride, Aspen, Vail, CO, Taos, NM, Moab, UT valuable in their own right as isolated communities filled with rather rich inhabitants? Or are the values somehow generated from the intertwining of private and public lands and the unspoken trust that the public lands are to remain intact? …

Yes, public land management is expensive. Federal government administration is expensive, as noted by all recent administrations as well as the Congress. So is a new home, a new car, or even most vacations we Americans take. But that is not to argue that we should abandon government improvement efforts. Government should be improved, and if the Government Performance Act of 1993 ever takes hold some of the costs of federal administration will better balance with the beneficial outcomes from that administration. And in part that balance will develop, assuming that it develops at all, due to partnerships between federal, state, county, and municipal government administrations working in concert with other organizations hand-in-glove for better government in general rather than locked in head-to-head competition one with another. As we begin to discuss these matters maybe we can find better roles for government generally and specifically in the hierarchy from local to federal government. But to ask right now, out-of-context, if federal government administration is too expensive is to ask a question anchored in air.

And here is a snip from Nelson’s “Free America’s West”:

The U.S. can no longer afford to keep tens of millions of acres of “public” land out of service. Some of these lands have great commercial value; others are environmental treasures. We need policies capable of distinguishing between the two. …

Probably no more than 20 percent of the tens of millions of acres of public lands are nationally important, requiring federal oversight and protection. This includes 45 million acres of Forest Service and BLM lands in the national wilderness system and other environmentally special areas such as BLM’s Grand Staircase Escalante National Monument in southern Utah.

An additional 60 percent, perhaps, are ordinary lands, used principally for recreational purposes, such as hiking, hunting, fishing and off-road-vehicle use. Most of the remaining public lands are useful primarily for commercial purposes, such as the timber-rich forests in the Pacific Northwest.

A rational public lands policy more suited to current and future needs would put the nationally important lands into a newly reorganized federal environmental protection system. Ordinary recreational lands would be managed at the state and local level, perhaps by transferring them to local counties. What better steward of a local recreation area than the people who live in the area?

The commercially most valuable lands, meanwhile, would be transferred to new ownership or put under long-term federal leases. Lands that have real commercial value could produce a double benefit: revenue from leases and land sales, and additional revenue from the jobs, minerals, oil, gas, lumber and other commodities the freed-up lands would produce.

It is time to end outdated federal land policies that are draining our country’s wealth, tying up valuable resources in red tape and bureaucracy, and harming the environment.

Where will all the hot air around this issue go this time around?

Lingering Recreation Fee Issues

With the recent Ninth Circuit Decision, suggesting that the Recreation Enhancement Act of 2004 disallows “parking fees” on the national forests, I think it time to begin to think through some issues that surround the Forest Service recreation fee debacle. ‘Area access’ fees have been highly controversial since at least the late 1990s (See, e.g. my To Fee or Not to Fee?)

I think that many would agree that right now we have too many users for some of our public places, e.g. some National Forests, some National Parks, etc. And many would agree that there are too few dollars to oversee recreation programs on public lands. There are law enforcement problems, garbage collection issues, rest-room facilities issues, environmental damage problems, and more. It seems that there are always, everywhere, too few dollars chasing too many initiatives. Or maybe the federal government just doesn’t prune initiatives or programs back to fit the realities of budgets. In any case there is always plenty to fight over when it comes to money.

In this little note and follow-ups we will begin to sort out what is ‘at issue’ regarding recreation programs and dollars, and to see whether we few bloggers and commentators can find any common ground on issues and resolutions. Here are my preliminary issues: congestion (How do we disperse and/or discourage use where resource damage or experience degradation results from congestion?), ease of fee collection and participation, distribution of moneys, government agency culture transformation.

Congestion/Dispersion of Use
Let’s begin with congestion. Some would propose that fees be used to help disperse users from over-used areas to other areas. But in this day it might be that other measures could be used to disperse use. For example, federal land managers could require passes for over-used areas—passes that could be allocated via computer-based lottery and waiting lines at places of entry (e.g. a FS Ranger Station). These could be administered and allocated for free. So, perhaps too easily we can take ‘congestion’ off the table when discussing recreation fees.

Fee Collection—ease of collection, ease of participation
With congestion issues off the table at least for now, maybe we can look directly at fees to used to defray government costs. If the Congress wants to charge access fees, in addition to specific facility fees that are allowed in the 2004 Recreation Enhancement Act, then it would seem prudent to have people buy an ‘all federal lands’ pass, that could be used anywhere on federal lands for specific periods of time. This is not my recommendation, but rather a least impact means to an end. [Here is my plea for free primitive recreation on the National Forests.] At minimum the Congress ought to disallow the piecemeal, nightmarish type fees now common on federal lands. An annual pass comes to mind, that would be available at all federal public lands facilities and also on the Internet. It might be an interesting twist to allow users with scant means a free pass, if they were to pass an income/asset test—although I don’t really see an easy way to administer a test like that.

Distribution of Fee Money
There are problems associated with allowing local units to keep the monies they collect from fees. I would like to see local units keep none of it, except as filtered through governmental funding mechanisms. First, there are equity problems that accrue to, say, national forests that don’t have the attraction points (focal points) that other forests have. Second, there is the incentive to pump up prices to cover costs, a phenomenon known to some as ‘budget conservation and enhancement,’ or simply ‘budget maximization.’ I’m sure there are other issues, but let’s move on. Of course the forests flush with cash from a ‘keep it local’ advantage, will argue the flip side of this argument.

Government Agency Culture Transformation
Finally, there is the problem of creeping commercialization—the problem of government forest managers perceiving themselves to be business people rather than government administrators. This problem has to do with government administrators and their attitude and behaviors toward outfitters and guides and concessionaires (including big-ticket items like ski resorts). Do we really want the US Forest Service to move further into the marketization/commercialization world? If not, how might the Congress work to ensure that government agencies act like government agencies and not perceive themselves to be in business?

Endnote
So. Take your best shot at me, both as to the issues I put on the table and those I left off. Also, what might we do to help the Congress, as well as the Forest Service and other agencies, as they continue to grapple with recreation fee issues?

Being Wrong: Adventure Pass Edition

Could it be that with the Adventure Pass program, the Forest Service was once-again trying to emulate business interests it once sought to regulate. Not that this is wrong, or evil—at least not unless you firmly believe that “Money is the root of all evil.” But it is clearly not what I want from the Forest Service. I made this case last year in Forest Service Mindshift: From Regulators to Partners.

I believe that the move to “marketize”, say, an ‘Adventure Pass’ program comes naturally to those in the Forest Service who have been hobnobbing with ski resort owners, Disney people, outfitters, etc. and want to be part of that world. It is just a piece of a broader “Print Your Own Money” mentality that has become firmly entrenched I the minds of some Forest Service managers? Of course they want to be apart from that world too, they want to be recognized as government agents, civil servants, etc. Can they have it both ways? I don’t think so.

My ‘beef’ with the Forest Service in this is, and has been for a very long time, simply expressed via Joni Mitchell’s lyrics from A BIG YELLOW TAXI. (copied from a dialogue thread I put into Eco-Watch bulletin board back in 1999):

Big Yellow Taxi
by Joni Mitchell

~~~~~~
They paved paradise and put up a parking lot
With a pink hotel, a boutique and a swingin’ hot spot

Don’t it always seem to go
That you don’t know what you’ve got till it’s gone
They paved paradise and put up a parking lot

They took all the trees, put ’em in a tree museum
And they charged the people a dollar and a half just to see ’em

Hey farmer farmer, put away that D.D.T. now
Give me spots on my apples but leave me the birds and the bees
please

Late last night I heard the screen door slam
And a big yellow taxi took away my old man

They paved paradise, put up a parking lot (choo bop bop bop bop)
They paved paradise, put up a parking lot
~~~~~~

I don’t want national forest trees put into a “tree museum,” where you “pay a dollar and a half just to see them.” I don’t want “swingin’ hot spots” and other overly luxurious recreation facilities on the public lands. Not that such is imminent, but it might be only a bit further down the road to ‘market land’. In short I want my experiences on public lands to be as far from Madison Avenue spin as possible.

So I was delighted that the Ninth Circuit slapped the Forest Service hard (pdf) on this one—particularly since the Congress put the Recreation Enhancement Act in place to give firm guidance as to how the Forest Service ought to administer fee collection programs. Questions remain. How/Why did the Forest Service come to believe that it was acting within the scope of the Recreation Enhancement Act (available here) when it continued to use the Adventure Pass program for general access fees in some areas after the REA was passed in 2004?

Extended Footnote on Framing/Blaming
In an earlier post, I argued that the there were various ways to frame arguments, building from one of Sharon’s posts. The frame I imposed was a bit extreme, and unfairly characterized the Forest Service as a villain. I did it in part to suggest that Sharon’s earlier post had unfairly characterized the Forest Service as a victim. I realize now that I was unfair in my framing and in my characterization of Sharon’s earlier framing. In short, the victim/villain framing was too harsh and a bit silly—but it did get some folks to think a bit. A better approach would have been to admit that villains are best left for fiction, and that better framing for real world situations ought to follow this advice:

“In the real world there are no villains. No one actually sets out to do evil. … There are no villains … rubbing their hands in glee as they contemplate their evil deeds. There are only people with problems, struggling to solve them.” Ben Bova

In a recent book, Being Wrong, Kathryn Schulz says, among other things, that people often put people they disagree with in one of three boxes: either they are “unformed”, else they are “idiots”, else they are “evil.” Schulz argues that there remains another possibility. People we disagree with may be quite well informed (have plenty of facts at hand), and they may not be idiots, neither evil. They might just view the world differently.

Incidentally, here is a link to a great little video presentation from Schultz at the 2011 TED Conference. Or, if you prefer, just browse the “first few pages” via Amazon of Schulz’s Being Wrong.

I challenge all to steer clear of the victim/villain framing that I used in my earlier post, as much fun as it is to frame things that way. But to so steer is to move away from much of the rhetoric used in the “industry/environmental wars” and other political arenas.

Finally, keep in mind that it proves very hard for any of us, particularly those in power, to admit error. Here is what Diane Ravitch said, when being interviewed on being wrong about her earlier championing of the “No Child Left Behind” program:

Schulz: If you could hear someone else interviewed about wrongness, who would it be?

Ravitch: That’s a hard one. Donald Rumsfeld said he was wrong, but I don’t even want to hear from him. [Former Treasury Secretary, former Goldman Sachs Co-Chair, and former Citigroup Chair] Bob Rubin would be interesting, but he’ll never admit he was wrong. Right now what’s coming to mind are people who have never admitted that they’re wrong about anything.

Schulz: Like who?

Ratcliff: Like basically everybody I’ve been associated with for the last 20 years.

Related Reading
Kathryn Schulz. 2010. Being Wrong: Adventures in the Margin of Error
Robert Jervis. 1997. Systems Effects: Complexity in Political and Social Life
Albert O. Hirschman. 1991. The Rhetoric of Reaction. Perversity, Futility, Jeopardy
Deitrich Dörner. 1989. The Logic of Failure: Recognizing and Avoiding Error in Complex Situations
Larry Tye. 1988. The Father of Spin: Edward L. Bernays & The Birth of Public Relations
Richard Hofstadter. 1952. The Paranoid Style in American Politics

[Note: Here’s a post I developed on The Logic of Failure]

Utah’s Sagebrush Rebellion Awakens

In September Char Miller didn’t give much credit to what he called Rob Bishop’s “Sputtering Sagebrush Rebellion“, [KCET’s “The Back Forty”, 09/21/2011]. Miller suggested that the rebellion might backfire in two ways, first by challenging President Obama to follow Bill Clinton’s lead by either invoking the Antiquities Act to establish yet-another national monument at the end of his term of office, or by helping to rally voters in favor of retaining both the public lands in federal ownership and Obama in the White House come November. But Utah’s Governor Hebert and Utah’s predominantly Republican legislators seem intent on pursuing this “Sagebrush Rebellion” at least as election-year politics, and maybe as a means to gain traction in the upcoming battle over federal education dollars in what we’ve called the “Secure Rural Schools” or “County Payments” debate that will heat up this summer. [Note: Rob Bishop is Chair of the Natural Resources Subcommittee on National Parks, Forests, and Public Lands, US House of Representatives.] A little more on the issue:

(From Ogden Standard-Examiner, Showdown Looms over Utah’s Public Lands, [02/27/2012])

There are four bills now in front of the Utah House of Representatives that form the basis of a legal challenge to the federal government’s right to control approximately two-thirds of the land in the state. The bills invoke promises dating back to when Utah gained statehood in 1896.

One resolution, sponsored by Rep. Roger Barrus, R-Centerville, calls for the federal government to turn over control of the land to the state by Dec. 31, 2014. …

To gain statehood, the Utah Enabling Act contained language stipulating that, as federal lands were transferred to the state, where they could then generate tax revenue, 5 percent of the funds would go to a trust fund for education. Most of the land has never left federal hands, and subsequently, the revenue stream has never developed. A number of officials claim that is why Utah ranks near the bottom of per-pupil funding.
U.S. Sen. Mike Lee, R-Utah, says the land debate raises big constitutional issues. He cites notes from the Constitutional Convention of 1787, in which Elbridge Gerry, a delegate from Massachusetts who would become the fifth vice president of the U.S., worried that federal control of land within a state would allow the federal government to force states to give “humble obedience” to the government.

“That concern 225 years ago still remains today. If you give too much land to the federal government, and let them hold it, and let them declare it (tax) exempt, you have a problem,” Lee said. He said Utah students and teachers deserve the revenue the land should be generating. Lee said Utahns also deserve the right to be on equal footing with other states that have few federal land holdings within their borders.

U.S. Rep. Rob Bishop, R-Utah, estimated in 2011 the revenue the state could generate by being able to impose a small tax on federal land holdings. He suggested that placing a fair tax on those properties, if they are not returned to the private sector, could provide a financial boon to education. He said even sagebrush property taxed at its lowest rate could potentially generate $116 million a year for the state. …

He said the land-use paradigms at the federal level change about every 40 or 50 years. He said it has been almost 50 years since the last change, and he thinks the Legislature’s efforts could be very timely.

“It is time, it is ripe for that discussion,” Bishop said.

[Rep. Roger Barrus, R-Centerville] said he and other lawmakers are prepared for a drawn-out dispute with the federal government. He expects neighboring states, including Idaho, Montana, Arizona and Nevada, to join the fray as well. He said the federal government has just not kept its promises. He likened the problem to the issue facing early colonists in America who had a feudal landlord in Great Britain.

[Update: March 23] Utah Governor Signs Bill Demanding Federal Lands

Gov. Gary Herbert signed a bill Friday that demands the federal government relinquish control of public lands in Utah by 2014, setting the table for a potential legal battle over millions of acres in the state. …

What do They Really Want?
While working up this post I ran into an expose of the late-1970s—early-1980s Sagebrush Rebellion, by Frank J. Popper titled “A Timely End of the Sagebrush Rebellion” (pdf), National Affairs 76, Summer 1984. Popper suggests that in the end the “Rebels” may have won a victory from what seemed to many a loss, in part by opening up the process of slowly selling some of the federal lands. It’s a point to ponder, when trying to figure out today’s Rebels want as they prepare for “a drawn-out dispute with the federal government” for control of lands they probably don’t really want—if they stop to think about it. To Popper:

The Sagebrush Rebellion did not fail—it ended because it achieved many of its goals. The Reagan administration rapidly found clever, politically appealing ways to start to transfer some public lands without having to ask Congress for new legislation. Watt’s Interior Department undertook a “good neighbor policy” that allowed state and local governments to request the department’s “surplus” lands. The initiative was soon broadened to an Asset Management Program whereby all federal agencies could sell their excess land in the West and elsewhere; the eventual sale of 35 million acres–an area the size of Iowa–was expected. Separately, the Forest Service prepared to sell up to 17 million acres. The federal land agencies sped up the transfers to Alaska’s state government and Native Americans authorized by the 1958 Statehood Act, the 1971 Native Claims Settlement Act, and the 1980 National Interest Lands Conservation Act. The BLM experimentally revived homesteading in the Kuskokwim Mountains in central Alaska. Numerous federal-Western state land exchanges were in exploratory stages, and seemed most advanced in Utah. [p. 68]

Illegal ‘Adventure Pass’: What were they thinking?

The Ninth Circuit Court of Appeals recently overturned a lower court’s ruling, declaring that the Forest Service’s Adventure Pass violated the Recreation Enhancement Act (pdf). What I wonder is how the Forest Service thought that the Adventure Pass could pass a ‘red face test’ both in public and in the courts? Moreover, how did their USDA Office of General Counsel legal advisers feel that they could pass that red face test?

Is this yet another example of the Forest Service pushing forward with an initiative without much regard for the law, with both ‘professional arrogance’ and ‘budget protection/maximization’ motivations as backdrop? Finally, where does the Forest Service go from here?

In my book, given the austerity that the American people now face, and will face more squarely in the future, I think it time to talk seriously about what ought the Forest Service to manage for and at what cost, both in terms of direct cost to the US taxpayer and in terms of environmental costs. For me there are plenty of programs to prune, both within what the agency calls recreation and elsewhere. I believe it past time to take a careful look at Forest Service cash flows, sources and uses. Let’s then try to figure out what more and what less to do, and what to do differently.

A Flashback
Fee Demo and Adventure pass discussions are not new to the Forest Service. The Forest Service had a chance to respond to critics of both way back in 1999-2000 on Eco-Watch [Note this link provides a flat file readout of a forum that was largely devoted to fee demo discussion/criticism]. The Forest Service chose to be silent, just as they did with the recent forest planning rulemaking process. See, e.g my Earth to Forest Planning: Get a Blog. In 1999 I could understand their silence, their reluctance to engage in social media discussion. Social Media was brand new and the Forest Service was toying with it.I no longer have patience with their reluctance to engage.

Evidently the Congress did listen, passing the Recreation Enhancement Act in 2004,to replace the Recreation Fee Demo Program of 1994. But the Forest Service somehow thought that it could evade the clear language of the latter Act.

My question is broader than to allege that the Forest Service routinely ignores the Congress and the Courts. My question is, When will the Forest Service engage in public discourse, in public deliberation? And I’m not taking about the many, mostly facilitated, highly spun so-called dialogue efforts that the Forest Service too often employs. [Note: I am a champion of dialogue, when used for deep inquiry. But I’m afraid that the Forest Service is now in the process of turning “dialogue” into another “inform and involve” spin mechanism.]

Footnote on Framing, Blaming
I threw this post together in response to Sharon’s earlier post on this subject. Both posts are examples of what I call The Frame Game and The Blame Game. Sharon’s post frames this as “a problem if the FS can’t charge fees and doesn’t get funding from Congress.” The Forest Service is framed as the victim and the Congress or those who block general fees/contributions are framed as villains. This remains true (or not) whether or not the frame was imposed innocently. My post frames the issue as one where the taxpayer and/or the public interest are victims and the Forest Service is villain. Neither frame does justice to the problem at hand. But, hey, this is a blog and things are “thrown together” quickly.

In both cases—in every case—we ought not to forget that these twin forces, framing and blaming, are almost always at work. And we must never forget that there are plenty of victims (real and imagined) and plenty of us who can rightfully be viewed as villains from time to time. What remains a challenge and an opportunity is to be able to work together toward betterment of the public interest as best we can when we mostly see only our own shadows playing in reflection off the walls of caves that keep our thoughts narrowly confined.

[Note: 2/24/8:23 AM — I updated this post slightly, in response to a comment]

Parsing Economic Sustainability: 2012 NFMA Rule


To make sense of economic sustainability we have to delve into sustainability. Then we can see what sense is (or is not) made of ‘economic sustainability’ in the 2012 proposed NFMA rule (pdf).

Sustainability
At root, what we call sustainability (Wikipedia link) is a vision quest—a movement to better align human action with Nature and natural systems evolution. In Wikipedia, sustainability is said to have ecological, social and economic dimensions. All dimensions are interconnected. Sustainability found its way into the 2000 NFMA rule, and has been there since. But the framing has been tweaked at bit since. Let’s take a close look at “economic sustainability” as framed in the newly proposed NFMA rule, in the context of the overall quest for sustainability.

Social and Economic Sustainability

§ 219.8 SUSTAINABILITY. …
(b) Social and economic sustainability. The plan must include plan components, including standards or guidelines, to guide the plan area’s contribution to social and economic sustainability, taking into account:
(1) Social, cultural, and economic conditions relevant to the area influenced by the plan;
(2) Sustainable recreation; including recreation settings, opportunities, and access; and scenic character;
(3) Multiple uses that contribute to local, regional, and national economies in a sustainable manner;
(4) Ecosystem services;
(5) Cultural and historic resources and uses; and
(6) Opportunities to connect people with nature.

Sustainability Defined

§ 219.19 DEFINITIONS. … Sustainability. The capability to meet the needs of the present generation without compromising the ability of future generations to meet their needs. For purposes of this part, “ecological sustainability” refers to the capability of ecosystems to maintain ecological integrity; “economic sustainability” refers to the capability of society to produce and consume or otherwise benefit from goods and services including contributions to jobs and market and nonmarket benefits; and “social sustainability” refers to the capability of society to support the network of relationships, traditions, culture, and activities that connect people to the land and to one another, and support vibrant communities. {emphasis added}

I don’t quibble with the framing on social sustainability, but the language on economic sustainability seems tortured to me. Worse perchance is the fact that what is called ‘economic sustainability’ is not linked to ‘ecological sustainability’, not even to ‘social sustainability’. How bizarre is this ‘economic sustainability’ frame? As I read the 2012 rule, economic actors can do whatever they want with an umbrella of ‘economic sustainability’ overhead. Is this by intent? By oversight? Or am I off base in my allegation?

I looked to the 2000 NFMA Rule (pdf) to see if they had allowed such discretion. Nope. Not that I agreed with that rule either, but at least that particular mistake was avoided. I went to the 2005 rule (pdf) to see if the economic sustainability language was separate from ecological sustainability. Yep. This is where it began. It was framed as if economic sustainability and ecological sustainability were competitors instead of compliments. The 2008 rule (pdf) is similar to the 2005 rule in this regard. And so is the proposed 2012 rule.

The Wikipedia page on Sustainability, by contrast does not allow for such separation of ecological, social and economics in their rendition of sustainability. In Wikipedia, sustainability is said to have ecological, social and economic ‘dimensions’. All is interconnected.

Perhaps I’m nitpicking. But I believe that something is lost when ‘dimensions’ or aspects of sustainability are framed separately as if they are independent, without interconnections to affirm wholeness. Bridging the gap from philosophy to actionable procedure proves difficult when dealing with something as novel, important, and threatening to the status quo as sustainability. I get that. But the Forest Service has had a few years to mull over this misstep. How was it missed? Or was the separation set up on purpose? Anyone care to clear the air on this?

Personal Addendum (for sustainability nuts)
I began promoting sustainability in the early 1990s (see, Eco-Watch Archives, particularly 1991 , 1994, 1995). In 1994 Zane Cornett and I even proffered a definition for sustainability in the context of what we then called ecosystem management. Our definition, like most others, focuses both on the need for humans to relate better to the environment, and for humans to act in less destructive ways toward the environment. Like most others we tied ALL together, following John Muir: “When we try to pick out anything by itself, we find it hitched to everything else in the Universe.” Here is our rendition:

Sustainability is a relationship between dynamic cultural, economic, and biophysical systems associated across the landscape such that quality of life for humans continues — both for individuals and cultures. It is a relationship in which the effects of human activities do not threaten the integrity of the self-organizing systems that provide the context for these activities.

To further clarify this definition of sustainability, we need a complementary definition for integrity. The philosophy of ecosystem management integrates biophysical, cultural, and economic systems into the single concept of “ecosystems”.

An ecosystem has integrity if it retains its complexity and capacity for self-organization (arguably its health) and sufficient diversity, within its structures and functions, to maintain the ecosystem’s self-organizing complexity through time.

The definition for integrity is applicable to each of the economic, cultural, and biophysical subsystems, as well as to the integrated ecosystem.

At the end of the 1998, when I penned my First Epistle to the Clinton Era NFMA Committee of Scientists, I anchored the whole of my commentary around sustainability and the contextual, multi-scale/scope nature of public lands management. To approach sustainability, public lands management must interrelate various ecological and social systems at various scale across multiple ownerships. Anything short of this is to miss important linkages needed to inform prudent decision-making in setting policy, in program development, and project design. At least that was how I saw it then. I’m still preaching that gospel today, e.g my Adaptive Governance Roadmap for a NFMA rule rewrite.