Draft Forest Service Planning Rule Delayed

The release of a draft Forest Service planning rule has been delayed until early 2011, according to an announcement today on the planning rule website.  Originally, a draft rule and accompanying Draft Environmental Impact Statement were targeted for December with a final in November 2011.  A planning rule is required by the 1976 National Forest Management Act.

Meanwhile, 21 Forest Plans are being revised using the transition provisions of the existing rule, originally finalized in 2000 and republished in December 2009, which allow continued use of the procedures of a 1982 rule.

Forest Plans May be More Meaningful after Sixth Circuit Decision

Are Forest Service Land Management Plans themselves a final decision about the location of activities such as snowmobiling and hunting, or are they merely guidance for when decisions are really made at a project level or subsequent travel management decision? 

That question has been central to controversies about new Forest Service planning rules that were developed in 2005 and 2008, and relevant to the team now writing a new planning rule.  The 2005/2008 planning rules were based on the concept that plans are merely aspirational and not inherently enforceable, citing the 1998 Supreme Court Ohio Forestry decision on timber harvest projections in the Wayne Forest Plan.  The Forest Service used the Supreme Court decision in its logic for the 2005 rule, explaining that plans do not need to be accompanied by an Environmental Impact Statement, because no specific decisions are being made and because environmental documentation will be completed as timber projects are proposed.  It also led to the idea that the planning process itself could be simpler, because forest plans don’t make site-specific decisions.

A Sixth Circuit decision on Wednesday could lead to a different view of the nature of a Forest Plan.  The decision on the Huron-Manistee Forest Plan ruled against the Forest Service in favor of Kurt Jay Meister, an attorney representing himself.  The Court ruled that Forest Plans under the existing 1982 rule (under 2000 rule transition provisions) make meaningful recreation decisions.  Citing inadequacies in the analysis of the noise impacts of snowmobiling and hunting on semi-primitive recreational experiences,  the Forest Service has been given 90 days to correct the deficiencies of the Huron-Manistee Plan.

The Sixth Circuit Court noted the difference between recreational activities in a Forest Plan and timber activities mentioned in the earlier Supreme Court decision:

But the (Supreme) Court observed that the Plan itself “does not give anyone a legal right to cut trees, nor does it abolish anyone’s legal authority to object to trees being cut.”  To the contrary, additional agency action – namely, issuance of a site-specific permit – was required before anyone could engage in the logging that the Sierra Club said would harm its interests.  Thus, the Court held, the plan had not yet “inflict[ed] significant practical harm upon the interests that the Sierra Club advance[d].  Hence the case was not ripe.  Meister’s case is different.  Unlike logging, the activities about which Meister complains – gun hunting and snowmobile use – do not require further action by the Service before they can occur.  To the contrary, they have in fact occurred ever since the Plan’s issuance, with the resultant harms that Meister now alleges.  Thus, the Plan itself has harmed him in concrete ways.  His claims are ripe.”

Regarding travel management, the Circuit said that the 1982 regulations “imposed the bulk of its obligations at the (forest) planning stage; and one such obligation, as we read the regulation, is to determine whether certain clases of areas and trails ought to be altogether off-limits to off-road vehicle use.  Meister says that one such class are trails that the Service itself admits are “in or near” semiprimitive nonmotorized areas. That claim is properly presented at the Plan level.”

Regarding hunting, the court rejected a Forest Service argument that it is solely controlled by the State.  Instead, the court said that both the Federal Land Policy and Management Act, and Forest Service directives allow the Forest Service to limit hunting when it is inconsistent with direction in forest plans such as the establishment of semi-primitive non-motorized areas.

This case underscores how the 1982 planning rule is continually being interpreted by the courts.  In the development of the new planning rule, it will be important to clearly spell out what analysis will be expected in the forest planning process.  Elsewhere on this blog, there have been discussions about the importance of addressing recreation in the planning process, and how recreation isn’t being taken seriously.  However, the planning process needs to be simplified and must be more concise.  The National Forest Management Act (NFMA) does not require the planning rule to direct zoning of recreational uses in a Forest Plan.  If recreation is addressed in the new planning rule, hopefully the requirements will be clearly laid out and are achievable.

Secretary of Interior Issues Science Integrity Order

The Secretary of Interior issued a new Science Integrity Order yesterday, which directs Department of Interior (DOI) employees, both political and career, to never suppress or alter, without new scientific or technological evidence, scientific or technological findings or conclusions.  Further, DOI employees will not be coerced to alter or censure scientific findings, and employees will be protected if they uncover and report scientific misconduct by career or political staff.

The policy is receiving generally favorable reaction, although it has not been codified into enforceable regulations.

The Secretary’s Order is an expansion of a draft DOI manual policy released in August with a public comment period ending September 20.  A sticking point for critics of the draft policy was that it did not cover political appointees if they alter scientific documents.  Yesterday’s order seems to address those concerns.

The Interior action could be a template for other government agencies to adopt because the development of a government-wide policy in response to the President’s March 2009 memo has been delayed.

Recreation Groups Want Additional Meetings on the Proposed Planning Rule

A coalition of 72 recreation groups sent a letter to the Forest Service Chief last week about recreation interests not being heard by the proposed planning rule writing team and their comments not being reflected in summary documents on the planning rule website.  The coalition of primarily hunting, fishing, and off-road vehicle interests includes such groups as the National Rifle Association, the Theodore Roosevelt Conservation Partnership, and the National Association of Forest Service Retirees. 

The groups explain that “we do not assert that outdoor recreation is, or should be, a dominant use of all national forest lands.  But it is important and relevant to note that the Congress specifically listed outdoor recreation first in the identified mandated management responsibilities of the Forest Service.  Also noteworthy is the fact that assessments of the economic contributions of the national forests since 1992 have consistently identified outdoor recreation as the leading national economic benefit of the forests.”

The groups disagreed with a conclusion in the Fourth Planning Rule Roundtable summary that the Forest Service does not really have much ability to intentionally influence local economies, but should focus instead on the land management business it knows.  “We strongly disagree with both contentions.  Decisions regarding use of national forests, and especially decisions regarding kinds and levels of recreational uses, clearly and dramatically shape the economic health of nearby communities.  And this impact must be reflected in Forest Service planning.  There is no option under NEPA to abrogate this responsibility.  If the expertise resident within the Forest Service is incapable of meeting this responsibility, it must be found and included.  By reducing recreation opportunities or by constraining or prohibiting new recreational uses – like the initial opposition of the agency to geocaching – without considering ways to develop and apply new management protocols, the agency compromises the viability of hundreds of communities near national forests.”

“We are greatly concerned by the lack of emphasis placed upon recreation in the documents associated with the proposed new Planning Rule and will not support a final rule that fails to correct this flaw.  We intend to deliver this assessment to the public and to those representing the public if no commitment to change is made by the agency.”

The groups are asking for a meeting with the Chief, and a formal working session with the planning rule team to include provisions in the rule that requires Forest Plans to actively search out strategies to provide for and manage diverse public recreation uses.

Addressing Watershed Health in the Forest Service Planning Rule

The management of water resources in National Forests and Grasslands continues to be an important topic in the development of the new planning rule, and was discussed at last week’s National Roundtable.  While the meeting presentations were intended to focus on the more general topics of forest restoration and resilience, some participants at the meeting wanted to speak specifically about water. 

There is substantial interest in this topic.  The importance of water and watersheds as a unifying principle in the planning rule was discussed previously on this blog.  The Forest Service’s inability to address watershed restoration was also previously discussed, as well as problems integrating scientific information with observed watershed conditions. 

The planning rule website contains some of the initial concepts proposed to be included in the rule for addressing watersheds:

  • Each Forest Supervisor would assess existing conditions and trends of aquatic systems, riparian systems, connectivity, wetlands, floodplains, and the flow processes.  The roles and contributions of each forest would also be determined.  Watershed vulnerabilities and risks would be identified.
  • Each Forest Plan would be required to address the maintenance or restoration of water resources, including protection for lakes, public water supplies, shorelines, source waters, streambanks, streams, wetlands, and other bodies of water from detrimental changes in water temperatures, blockages of water courses, and deposits of sediments.
  • Monitoring would be implemented to evaluate watershed health and status, trends, and risks associated with public water supplies and source water protection areas.

Earthjustice and Pacific Rivers Council released a concept paper last week with additional suggestions about what the planning rule should do.  The proposal suggests that the planning rule should require forest plans to establish riparian reserves, prioritize protection and restoration of key watersheds with the highest aquatic integrity, establish measurable watershed conservation objectives and indicators of aquatic ecosystem integrity that are directly linked to management standards and monitoring, describe road removal objectives and road density standards, provide for connectivity and watershed processses, and integrate monitoring of watershed integrity into project design.

A new General Technical Report from the Pacific Northwest Research Station released in June also lists several planning actions that should be considered to protect watersheds from population pressures, land uses, and rapid climate change.  It suggests that planning should set priorities for watersheds and specific effective protection measures, based on predicted vulnerabilities to climate change and other stressors.   Scenario-based planning should be used to design contingency plans based on plausible events or impacts.   The document also lists considerations in protecting watersheds from energy development, fire and fuels projects, infrastructure development, recreation, water use and diversions, timber harvest, and livestock grazing.

Some researchers have also outlined a “no-regrets” strategy to watersheds and planning for potential hotter and drier conditions.  Based on scenario planning, a Forest Plan could establish baseline protections and make sure that watershed systems are better able to adapt to whatever comes along. 

In a search for a streamlined, easy-to-implement planning rule, the specifics of watershed management may be left out of the proposed text.  However, there is strong support for water planning as a central feature of the rule.  One watershed program manager told me that the rulewriters should avoid making the same error that many in the Forest Service do, assuming that the concept of restoration only appeared on the scene when foresters started writing about it in the 1990’s and 2000’s. Watershed restoration has a much longer history in the agency and the scientific community, and is one of the foundations for why the Forest Service came into existence.  Watershed maintenance and restoration could be the cornerstone of the philosophical underpinning of the rule.

Changes Proposed to NFMA Species Viability Requirements

Proposed changes to the NFMA planning rule species viability provision were presented to the public at last week’s National Roundtable on the proposed planning rule in Washington D.C.  The viability provision, intended to fulfill the diversity requirement of the National Forest Management Act, has been the most contentious element of previous attempts to change the NFMA planning regulations (or rule).

The proposal would make five major changes to the species viability requirement of the existing 1982 rule.

1. The requirement would apply to all species, not just vertebrates. The following categories of species would need specific attention in a forest plan: (1) contribution to recovery of Threatened or Endangered species; (2) conservation of “species at risk” to preclude listing (species at risk are candidate, proposed, and other species for which loss of viability is a concern across the range of the species); (3) conservation of “species of concern” to prevent extirpation from the plan area (“species of concern” are rare within the plan area but are relatively secure throughout their range.)

2. The plan would need to provide “ecological conditions” (rather than “habitat”) to support viable populations of native species in the plan area.  Ecological conditions would include components of the biological and physical environment that could affect diversity of plant and animal communities and the “productive capacity of ecological systems.”  The components could include not only habitat, but roads and other developments, human uses, and non-native invasive species.

3. Rather than selecting “management indicator species” to monitor, there would be a “strategic” selection of a “small set” of focal species. Focal species would be those whose status and trends are likely to be responsive to changes in ecological conditions, permit inference to the integrity of the overall ecosystem, and provide meaningful information regarding the effectiveness of the plan in maintaining diversity of plant and animal communities. The rule would require two levels of monitoring – the first level would be specific to the forest, and the second level would require coordination between the Forest Supervisor, Regional Forester, and Station Director for those species whose range is wider than a forest.

4. The rule would contain language similar to the 2005/2008 rule that provided for species at two levels or “filters.” The first level, is the “ecosystem level”, and the plan would guide the maintenance or restoration of structure, composition, processes and diversity of healthy and resilient ecosystems (lots of buzzwords there – new terms of particular importance are “restoration” and “resilience” – the rule attempts to relate those two terms by explaining that the goals of restoration are to assist in the recovery of resilience and adaptive capacity of ecosystems) Also, the idea is intended to be consistent with NFMA’s diversity provision that uses the notion of “community.” The second level would be the species level, but like the 2005/2008 rule, the intent is that most plan direction would respond to the first level and not the second.

5. Specific language would be added to the rule to explain that the species viability obligation is “within the authority of the Forest Service” and the “capability of the land.” This addresses cases where factors affecting viability are outside of the agency’s control. Note that these provisions may also be relevant when changes in climate would change the capability of the land.

The draft proposed rule will begin the clearance process in the Forest Service and the Department throughout August and Sepctmber. In October, it will be submitted to OMB and other federal agencies. The proposed rule and DEIS will be published in December, with public comment from January to March.

Further information is available on the planning rule website.

Planning Rule Text Reviewed at Fourth National Roundtable

Proposed text for a new Forest Service planning rule was shown to the public at a Fourth National Roundtable last Thursday and Friday in Washington D.C.  Approximately 90 public participants and about 35 Forest Service employees discussed the specifics on how the rule might guide Forest Plan revisions and amendments.  About 20 people also watched the proceedings online and participated in a “virtual” discussion forum.

The meeting began with the Forest Service rule-writing team discussing what they had heard at previous meetings, and what concepts they were proposing.  They focused on five key areas: collaboration, monitoring, recreation and other multiple uses, plant and animal diversity, and ecosystem restoration and resilience.  Then participants were broken into smaller groups for further discussion.  On the second day, the Forest Service planning team talked about the overall planning framework (assessments, revisions, monitoring) and addressed additional questions about climate change, water, social considerations, fire, roads, and the objections process.

Several key issues emerged from the discussions. 

There is considerable confusion about how a planning process will address multiple uses given several ecological concepts that are embedded in the rule, such as restoration, ecosystem resilience, ecosystem services, and sustainability.  For some, those ecological concepts are too fuzzy and are confusing. 

There is general agreement with the principles of collaborating with the public and other governments, but many felt there isn’t much in the proposed language about how collaboration will be conducted.  There are questions about basic requirements, how all views will be considered, and how it will be related to decision making. 

There is also agreement about the increased emphasis on monitoring, especially the requirement to include broad-scale monitoring larger than a specific National Forest.  However, there is confusion about how monitoring data will be used, and what role monitoring will play in triggering plan revisions and amendments, or changes to projects.  There are questions about how to respond fast enough once a problem is identified through monitoring.  There are also questions about how monitoring data will be available to the public.

A complete report of the discussion is available on the planning rule website and blog.

The development of the planning rule is moving quickly.  Using feedback from the Fourth roundtable, the planning rule blog, a National Tribal Roundtable, and internal Forest Service discussions, the Planning Rule Team will finish a draft of the proposed rule and write a Draft Environmental Impact Statement.  The draft proposed rule will go through clearance in the Forest Service and Department of Agriculture throughout August and September.  In October, the Department will submit the proposed rule and DEIS to the Office of Management and Budget and for review by other federal agencies.  The proposed rule and DEIS will be published in December 2010, with public comment from January to March 2011.

Should Restoration be the Forest Service Mission?

The first “substantive principle” in last year’s Federal Register notice for a new Forest Service planning rule is restoration.  How did we get here?  Should we get out?  Before we adopt the restoration idea as a central theme of the rule, we need to be aware of the pitfalls.

The idea of restoration started with site-based approaches on well-defined areas such as a minesite or a wetland.  In the 1990s, a need was recognized to expand the scope of restoration ecology to embrace broader scales and tackle landscape-scale problems.  The term  “Forest Landscape Restoration” was a term first coined in 2000 by a group of forest restoration experts that met in Segovia Spain.  Internationally, several organizations such as the Global Partnership on Forest Landscape Restoration have formed to address the worldwide loss of half of the Earth’s forests over the last 200 years. 

There is currently a wealth of information about the emerging field of ecological restoration.  The non-profit Society for Ecological Restoration publishes a Restoration Ecology journal that helps explain restoration processes and descriptions of techniques.  The Society also works with the University of Wisconsin-Madison to publish an Ecological Restoration journal about current projects and techniques, and essays about the restoration idea.

Largely due to concerns about fuels and increases in large fires, the Forest Service started thinking about restoring fire regimes affected by a century of fire suppression.  Along with concerns about invasive species, declining road maintenance budgets, and climate change, in 2005, the Forest Service chartered a team to look at the evolving science of landscape restoration, and developed an Ecosystem Restoration Framework.  The framework made the following recommendations:

  • adopt a national policy regarding ecosystem restoration, including defining ecosystem restoration as “the process of assisting the recovery of an ecosystem that has been degraded, damaged, or destroyed;”
  • increase the productivity of the agency’s restoration efforts through improved integration of various programs spanning all Deputy areas;
  • use national, forest, and project planning to engage Forest Service resources, partners, and stakeholders in identifying and implementing restoration needs and priorities;
  • use budget and performance incentives to increase accomplishment of ecosystem restoration objectives.

Based on these recommendations, an interim directive was initially written last year and updated in March.  This directive, Forest Service Manual id-2020 , says that ecological restoration is a “foundational policy” for all program areas for the National Forest System.  It defines ecological restoration as:

Ecological restoration.  The process of assisting the recovery of resilience and adaptive capacity of ecosystems that have been degraded, damaged, or destroyed.  Restoration focuses on establishing the composition, structure, pattern, and ecological processes necessary to make terrestrial and aquatic ecosystems sustainable, resilient, and healthy under current and future conditions.

As a signal of the intent of the Administration, the Secretary of Agriculture spoke prominently about ecological restoration in his August 2009 speech in Seattle about the Forest Service. 

Then, the restoration idea quickly got more attention when the Collaborative Forest Landscape Restoration Program was established in the 2009 Omnibus Public Lands Management Act.  Now restoration needs were tied to money, and not surprisingly, needs were identified nearly everywhere.

Restoration is now being offered as a central theme of a new Forest Service planning rule.  But there are several problems.

First, the Forest Service may have troubles reconciling the idea that there are “degraded” ecosystems which must be restored, with its 100-plus year history of managing these lands.  Are agency leaders willing to admit that past forest management policies were wrong?  Are these past policies continuing today?  How can they be changed?

I remember talking to a representative of the timber industry at a regional roundtable meeting on the planning rule in Rapid City, South Dakota.  He told me that there are many “managed” forests that aren’t in need of restoration because of past forest management practices.  He described those instances where timber management has been used to thin forests and reduce fuels.

Second, for some forest types, there isn’t a clear idea about what restoration might look like.  For instance, in lodgepole pine, trees will eventually burn or die from insects.  The presence of large fires or insect outbreaks does not mean that the system is out of balance.

The idea of restoration leads to several value-laden questions:  restoring to what?  restoring for what purpose?  what do you do once things are restored?  Earlier posts on this blog have discussed the confusion with the Forest Service multiple-use mission, and the wicked problem that Forest Planning attempts to solve.  In describing the social problem posed by the idea of restoration, Eric Higgs from the University of Alberta notes that restoration efforts rest in the notion of redemption, where we heal ourselves culturally and perhaps spiritually by healing nature.  Because nature and ecosystems are historically and culturally contingent ideas, Higgs suggests that there is no one single, fixed, correct restoration for any particular site, although structure, composition, and function criteria may provide tight guidelines for success of a project.

Third, shouldn’t the idea of “maintenance” of ecosystems at least get equal billing?  A regional watershed program manager recently told me that “maintenance” is a well thought out priority for land management, as captured in the mantra for the Northwest Forest Plan: “Save the best, restore the rest”.    Maintenance means your first priority is to make sure that ecosystems that are already functioning well stay that way.  Maintenance gets to the core of what the agency does on the landscape – all the mitigation measures (i.e  soil and water  BMPs) that we supposedly implement for our projects and for third party authorizations, to ensure that we “do no harm”.   Even if it’s important to fix what’s broken, it’s also important to not break anything else.

 The problem with a restoration only focus is that it could potentially reward bad behavior (you made a mess, now you get money to clean it up) rather than reinforcing good behavior (you implemented BMPs, monitored to see that they were effective, and nothing went wrong).

Fourth, there are the purported “myths” about restoration ecology.  In a 2005 article by Robert Hilderbrand, Adams Watts, and April Randle,  the authors describe five problems with the restoration idea.  First, there is a problem with the typical assumption that ecosystems develop in a predictable fashion toward a specified, static, end-point or climax.  Many Forest Service planners these days are enamored by the “desired future condition” description as the central part of a Forest Plan.  But when systems are “reset” they usually don’t end at the same point, and the idea that you can restore a “carbon copy” of an ecosystem is the first myth.

There is also the problem with the idea that restoration of the physical structure will result in the same biological response.  The authors point out the “field of dreams” myth – that if you build it, they will come.  It’s not apparent that you will get the same distribution of species when you create the previous habitat.

Other myths include the idea that you can “fast-forward” succession and ecosystem-development, that you can develop a “cookbook” of practices that can be used to restore landscapes, and the “sisyphus complex” that nature can be controlled.  We may describe detailed and specific desired conditions in a Forest Plan, but can we really control the outcomes?

The authors are clearly in the adaptive management camp, and they explain that to get beyond the myths, projects need decision points along the way for possible interventions with contingency plans if things aren’t proceeding appropriately.

In previous attempts to develop a planning rule, the Forest Service has committed to the idea of “sustainability” as the guiding star for management of National Forests.  This idea flows from the legal mandate under the Multiple-Use Sustained-Yield Act.  The idea of ecosystem services is an extension of the multiple use mission.   Perhaps restoration is a part of this mission, because the ecosystem must be functioning in order to provide the services.  But restoration may not be the full story, and perhaps it’s not the best way to describe the important work that must be done.

House Oil and Gas Proposal Contains NFMA Forest Plan Viability Provision

Language that supplements the species provisions of NFMA is included in the discussion draft of a comprehensive oil and gas bill being reviewed by the House Natural Resources Committee.  The latest discussion draft of H.R. 3534, the Consolidated Land, Energy, and Aquatic Resources Act (CLEAR Act) was unveiled by chairman Nick Rahall (D-W.V) last year and discussed at a hearing on Wednesday.  The proposal is getting a lot of attention and may be moving quickly because of its reforms of both onshore and offshore oil and gas management in light of the Deepwater Horizon disaster.

Section 228 of the draft relates specifically to Forest Service planning, and regulations that would be issued under this section are deemed to be NFMA regulations.  It says that the Secretary of Agriculture or Interior in cooperation with State fish and wildlife agencies “shall plan for and manage planning areas under the Secretary’s respective jurisdiction in order to maintain sustainable populations of native species and desired non-native species within each planning area” consistent with (a) FLPMA, (b) NFMA, and (c) all other applicable laws.   The definition of “sustainable populations” is similar to the 1982 planning rule viability language:  “The term ‘sustainable populations’ means a population of a species that has a high likelihood of persisting well-distributed through its range within a planning area based on the best available scientific information, including information obtained through the monitoring program . . ., regarding its habitat and ecological conditions, abundance and distribution.”  The Secretary would certify that each Forest Plan would comply with this provision.  If there are factors affecting wildlife sustainability that are outside of the Agency’s control, the Secretary would certify that to the maximum extent practicable any project does not increase the likelihood of extirpation from the area covered by the Forest Plan.

The draft language would also require the monitoring of “focal species” to determine their population status and trend.  The Forest Plan monitoring program would provide for both monitoring of habitats as well as population surveys.  Focal species are defined as species whose “population status and trends are believed to provide useful information regarding the effects of management activities, or other factors, on the diversity of ecological systems to which they belong, and to validate the monitoring of habitats and ecological conditions.”  This focal species concept is similar to what was used in the 2000 planning rule.

The language also requires coordination with state and local governments, other Federal agencies, and NGOs to maintain sustainable populations, develop strategies to address the impacts of climate change on species, establish linkages between habitats and discrete populations, and reintroduce extirpated species where appropriate.

Dreaming about Reforming Public Land Laws

It has been 40 years since public land laws have been systematically reviewed by a land law commission, the longest period ever separating their use.  Much of the gridlock in how public lands are managed can be traced back to statutory language. 

Lawyers and policy-makers met at the University of Colorado Law Center in early June to celebrate the 40th anniversary of the Public Land Law Review Commission’s Report “One Third of the Nation’s Land“, and to reflect on the need for a new Commission and a new report to address the challenges for public lands in the 21st century. 

The 1970 report led to the 1976 Federal Land Policy and Management Act (FLPMA).  According to Charles Wilkinson, FLPMA was a textbook example of Congress taking the long view – carefully studying the problem through a commission, and then crafting a bill which addressed those concerns.  He noted that the National Forest Management Act (NFMA) was very different – it went through Congress in less than a year because of a timber cutting crisis.

The speakers at the conference generally concluded that today’s political environment makes it difficult to repeat a 1970-type commission.  Congress is too polarized.  We may be too impatient to repeat the process that took six years from 1964 to 1970.  There may not be a political sponsor like Wayne Aspinall, the Congressman from Colorado who pushed for the formation of the Commission as part of a 1964 compromise legislative package which enabled the package of the Wilderness Act.  In addition, the problems today with public land management may not be grabbing the attention of the public, more concerned with the economy and other pressing matters.

Much has changed since 1970. 

Norman James, a Phoenix attorney, observed that the review commission did not anticipate that wildlife preservation would often dominate public land management after the passage of the 1973 Endangered Species Act.  He gave an example of the dominant role played by management of the Mexican spotted owl in Arizona and New Mexico, which led to dramatic reductions in timber sale volumes, essentially destroying the region’s forest products industry.

Todd True, an attorney with Earthjustice, noted that the commission hinted about “fish and wildlife values”, although the idea that public lands play a critical role in fish and wildlife protection may not have been fully developed or its implications well understood in 1970.

Undersecretary of Agriculture Harris Sherman, the keynote speaker at the conference who oversees the Forest Service, explained that 110 million acres of National Forest System land are in need of restoration.  Historically there has been 5 million acres a year of fire, but we could be approaching 10 million acres a year of fire.  Fire is a threat to water quality.  Sherman also said that there are 17 million acres across the West dying from bark beetles.  In Colorado, he said that 10,000 trees a day will fall down over the next 10 years.  Sherman said that he wants to emphasize an “all lands” approach, working across sister agencies, other federal agencies, state agencies, and private landowners.  He wants to focus more on water, thinking about ecosystem services, and responding to climate change. 

Rebecca Watson, former Department of Interior assistant secretary in charge of the BLM and MMS under the Bush administration, explained that the 1970 report was written before the shock of the 1973 Arab Embargo hit our country and underscored the depth of our dependence on imported oil.  Like today, however, the report was written in the wake of a terrible offshore oil spill that came to dominate the management of the Outer Continental Shore.

BYU law school dean Jim Rasband said that the February 2010 leak of an Interior Department memorandum listing potential candidates for national monument proclamations reignited a debate about the Antiquities Act and the president’s power to proclaim monuments without notice or any form of public participation.  His presentation asked if there should be an ethical dimension to the political “trophy hunting” of monument designation, or do “only losers care about process?”

Indiana law professor Rob Fischman observed that the two major issues facing public land planning are funding and climate change, two topics with little or no treatment in the 1970 Report.  Climate change has undermined historic benchmarks for ecosystem management.  Climate change is now the principal rationale for better federal interagency coordination.  Regarding funding decisions, Fischman said that current laws are good at managing between conflicting uses, but not good at managing between competing uses.

Adjunct Colorado law professor Joe Feller explained that public lands livestock grazing provides a difficult challenge to the application of any theory of, or prescription for, public land planning and management.  On the mostly arid or semi-arid lands of the West, grazing’s adverse impacts are manifold and its administrative costs often exceed its economic benefit.  Former Interior solicitor Bill Myers countered by mentioning the environmental ethic of Western ranchers, and the dangers of the loss of ranches adjacent to National Forests to subdivision and development.

Utah environmentalist Scott Groene concluded that federal land management agencies have not been effectively addressing recreation-related problems, including impacts of motorized recreation activities.  Blue Ribbon Coalition president Greg Mumm said that motorized recreation is extremely popular, and one in five Americans 16 and older participate in some form of off-highway vehicle recreation each year.  Moreover, virtually every public land user is motorized at some point – it’s more a question of if or when they park their vehicles.

Summaries of the presentations are posted here on the University of Colorado Natural Resource Law Center website.