DxP

 

Indianapolis Indiana Dead Tree Removal 317-783-2518

One of the threads of this discussion went off on a topic of how much discretion loggers should have in deciding what trees to cut down.  “Tricky Dick” offered that, “The USFS in its office attired lazyness doesn’t want to have to cruise the forest landscape piece by piece and thru honest Forestry discretion , uninhibited by profit motives, mark the bigger trees as ” leave or cut…”  Larry replied with regard to marked trees, but what if they are not marked?  I think there’s a name for that – “designation by prescription,” or DxP.  Here is how the Colville National Forest explains it (2020):

The Colville National Forest in Washington began using Designation by Prescription (DxP) in 2009 in order to become more efficient in timber sale preparation. Marking individual trees with paint in a sale area can be a time-consuming and costly process. DxP saves time preparing a timber sale and money spent on paint by allowing the logger to select which trees to harvest based on a timber stand prescription, which defines the desired condition after harvest.

With DxP, the operator may need to know tree species, how to measure tree diameters, forest health indicators, or how to achieve desired stocking level. This has the potential to initially slow operations. However, the flexibility that DxP provides (the contractor needs only to meet the prescription and that outcome can be accomplished in different ways) can create efficiencies for both the USDA Forest Service and the contractor

Is Tricky right?  But wouldn’t “allowing a logger to select which trees to harvest” allow them to do whatever they want within the broad confines of a “desired condition” in the “timber stand prescription?”  I have lots of questions about this.  How common is this?  Is the “timber stand prescription” part of the NEPA disclosure process in a way that all possible effects of the loggers’ decisions are accounted for?  If they only have to achieve the desired condition, could they do that in a way that is inconsistent with standards or guidelines in a forest plan?  Those aren’t included in the Colville’s “need to know” list above.

Asking for a friend.  Thanks.

The popularity of categorical exclusions

WildEarth Guardians noticed that the Forest Service is approving more and more vegetation management projects using categorical exclusions from NEPA procedures:  “a category of actions which do not individually or cumulatively have a significant effect on the human environment.”  They decided to do a little research, and found someone to report on it.

Rissien used Forest Service postings to tally all the logging and/or burning projects proposed for the past quarter – January through March – where forest managers had applied a “categorical exclusion” to avoid the public process normally required by law.

For just those three months, 58 national forests– that’s three-quarters of the forests in the West – proposed 175 projects that would affect around 4 million acres.

Rissien found, during the past quarter, USFS Region 4 – which covers southern Idaho, Nevada and Utah – proposed four projects that exceeded 100,000 acres each. One was 900,000 acres alone.

USFS Region 1, which includes Montana, northern Idaho and North Dakota, proposed 30 projects with CE’s last quarter, totaling more than 215,000 acres.

Logging projects intended to reduce insect or disease infestation or reduce hazardous fuels can be as large as 3,000 acres with some limitations. One CE created by the Forest Service for “timber stand and/or wildlife habitat improvement” has no acreage limit. Rissien found the Forest Service uses that for a majority of projects, and doesn’t even give a reason for others.

(There is also the “road maintenance” CE that has been the subject of litigation, including EPIC v. Carlson, here.)

There are some things to question in the article, but the slant of the article is not so much that what the Forest Service is doing is illegal, but that it is being done without much public information or awareness.  The article also points out that the Forest Service just seems to be following its marching orders from the president.  Tracking through the links gets you to this letter from the acting deputy chief, which says:

Consistent with this direction, Regional Foresters are to ensure that the Agency meet minimum statutory timeframes for completion of National Environmental Policy Act documentation and consultation with regulatory agencies. Categorical exclusions to complete this work should be the first choice and used whenever possible. I encourage you to explore creative methods and set clear expectations to realize this priority effort.

There’s a few points to make here.  I’m not aware of any “minimum statutory timeframes” for NEPA or consultation (the consulting agencies do have a deadline for providing a biological opinion).  I would translate “explore creative methods” into “take legal risks.”  Artificial deadlines aren’t creative, but they also result in legal risks.  Last is the implication that the use of categorical exclusions somehow avoids the need for an administrative record that shows that the use of the categorical exclusion isn’t arbitrary – that it fits the requirements of the category and does not have any extraordinary circumstances that could result in significant effects.  The lack of public review or an administrative objection process may save time, and it forces an opponent to sue, but it increases the risk of losing the case on an issue that could have been resolved before the decision.  (But if it gets points on the board during the game, does it matter what happens after?)  WEG said, “But we have to take their word for it since there is no supporting analysis we can review.”  If that’s what is really happening, it would eventually be a problem for the Forest Service in court.

BLM Great Basin fuel break EIS

The BLM has released its final decision to implement 11,000 miles of fuel breaks in six states.  The figure is in miles because the fuel breaks would be constructed along roads and right-of-ways.  Given our discussion of the Forest Service trend towards large landscape “condition based” management decisions, this language from an article quoting the BLM piqued my curiosity (my emphasis added):

According to Jennifer Jones, a spokeswoman for the BLM, the program will help streamline the implementation process by reducing or eliminating the need for environmental analysis. Once the plan is finalized and funding available, said Jones, “offices will be able to use it immediately and for many years to come.”

The timeline for implementation and the location of fuel breaks will depend on what offices develop plans and apply for funding.

The BLM’s notice of availability added:

… these potential treatment areas cover approximately 38 million acres within the project area boundary.

The goal of these Programmatic EISs is to significantly minimize the subsequent National Environmental Policy Act (NEPA) work required to approve on-the-ground projects.

(A second EIS will address “fuel reduction and restoration” over the same area.)

These statements sound like the more conventional approach to programmatic NEPA analysis (such as has been done for the use of herbicides).  They are intended to provide context for subsequent site-specific analysis that will produce overall savings in planning efficiency.  They make no pretense that this large scale analysis would necessarily be a substitute for site-specific analysis as some Forest Service proposals have stated. This kind of “merely programmatic” analysis has sometimes been given more leeway by the courts because a subsequent site-specific analysis would follow that would address site-specific issues and effects that have not been addressed.

The BLM decided also to do an EIS, unlike some of the Forest Service efforts that used an EA.  This analysis of effects of fuel breaks is also probably more site-specific than area-wide, “condition-based” Forest Service proposals because they know where the candidate corridors are, and they know the area of BLM lands where no action would be taken (away from these corridors).   (The scientific validity of fuel breaks is also discussed.)

Condition-based project in Georgia

We’ve discussed “condition-based” NEPA analysis and its legal implications – mostly thinking about timber management.  Here’s the Foothills Landscape Project, affecting 157,000 acres on the Chatahoochee-Oconee National Forest.  It raises the usual concerns about  NEPA sufficiency (it’s an EA, which was a key factor in the Tongass case injunction).  Here’s how it works, according to the EA:

The locations and timing of treatments would continue to be selected and prioritized using a systematic process that evaluates restoration needs, determines appropriate treatments to address those needs (through use of decision matrices) and balances implementation of those activities with operational feasibility, agency capacity, and social considerations, to the extent possible.

But apparently no further consideration of environmental impacts.  Here’s a statement that caught my eye, because the whole point of NEPA (as stated in many court opinions) is to analyze effects before you take action, whereas it sure looks like their intent is to act and then see what the effects are:

If, as a result of monitoring, the effects of activities require management or maintenance treatments that fall outside of the treatment toolbox options assessed within this EA and the forthcoming decision, additional analyses could be warranted.

I’ve also got NFMA concerns if what they are doing is establishing new long-term management direction (which should be in a forest plan) without going through the forest planning process.  How are “project design” requirements different from forest plan standards?

But what was new to me was the application to developed recreation sites, as described here:

On the recreation side, the project looks to make strides to improve the visitors’ experiences by enhancing existing trails and campsites that are used heavily while closing those that are not rarely used and no longer sustainable.
“We don’t have any specific proposals in any specific campground, but we are going to look at the conditions in areas that make sense … “We don’t have a lot of hard proposals, but basically we just want to make investments in areas that have high resource protection and high visitors’ satisfaction,” Grambley said. “We’re proposing reroutes to properly layout trails because we realize that a lot of our trails go straight up a ridgeline and we don’t want that because it causes erosion and it’s not fun to hike quite honestly. So we want to make the trails more sustainable and more-friendly layouts.”

These sound like the kinds of priorities that a forest plan should establish.  But when we want to implement them?  Just trust us to know what “makes sense.”

 

Stewardship contracts – a better tool for the job than a roadless rule?

I wouldn’t have thought that one is a substitute for the other, and maybe this suggests that Utah defined its problem wrong initially.  But they’re happy enough with the way their Shared Stewardship agreement is working that they have put their roadless rule proposal on a back burner.  At least some greens seem happy, too, and least those concerned about roadless areas.  Priority-setting, within the framework of a forest plan, is one thing that I think lends itself to collaboration.

Amid debate about state-specific exemptions to the Roadless Rule, Congress created the capacity to negotiate “stewardship contracts” ranging up to 20 years with states in the 2018 Consolidated Appropriations Act.  It allows the Forest Service to rely on “state’s guidance for designing, implementing, and prioritizing projects geared toward reducing the risks of damaging wildfires and promoting forest health.”

 

Wilderness Society Senior Resource Analyst for National Forest Policy Mike Anderson said conservationists are encouraged by what Shared Stewardship agreements could foster in addressing critical needs.  “Working side-by-side to identify the major risks and implement projects that are actually going to make a difference on the land is something conservationists, I think, can generally can support,” he said. “We think it is good.”

 

(Utah Public Lands Policy Coordinating Office lead counsel) Garfield said under the agreement, projects “can happen, and are occurring, within and without the roadless area, when necessary.”    ‘The existing rule provides a lot of exceptions that the Forest Service can use for forest restoration,” he said. “The Forest Service wasn’t using those” exceptions in many cases.  Garfield said PLPCO will be watching closely over the next four years to see if the Shared Stewardship agreement works out before withdrawing its petition. “I won’t say everything we hoped to accomplish under a state-specific Roadless Rule will be achieved under the Shared Stewardship agreement,” he said, “but a lot of progress is being made.”

(One error in this article – the Idaho and Colorado state roadless rules have been approved.)

When should national forest old growth be logged?

Joyce Kilmer Memorial Forest, North Carolina

 

Old growth logging projects on national forests are almost sure to generate objections, but most likely they are in an area that was “allocated” to timber production in the forest plan.  (Otherwise timber harvest would have to be for non-timber reasons, and there aren’t many of those to log old growth.)  This thoughtful article examines the issue on the Nantahala-Pisgah National Forest as it continues to develop its forest plan revision.

Williams and other conservationists argue that this stand of older trees and others like it are exceptional and should be conserved. The Forest Service currently says they are not sufficiently exceptional to be conserved.

If a forest plan has been revised under the 2012 Planning Rule, we would know how much old growth is needed for ecological integrity, and old growth could be logged where there is “enough” old growth on a forest based on its natural range of variation (and where not prohibited by the forest plan).  But there are only two plans completed under these requirements.  Both have desired conditions based on what they determined to be the NRV (which is not an easy thing to do because of lack of reliable historical records).  The Flathead also prohibits destruction of old growth characteristics and limits removal of old trees to certain circumstances.  The Francis Marion includes this standard:

S37. Stands meeting the criteria for old growth as defined in the Region 8 old growth Guidance will be identified during project level analyses. Consider the contribution of existing old growth communities to the future network of small and medium-sized areas of old growth conditions including the full diversity of ecosystems across the landscape.

That is similar to the current Nantahala-Pisgah forest plan:

Steverson Moffat, the National Environmental Policy Act planning team leader of the Nantahala National Forest, told CPP that the current Pisgah-Nantahala national forest land and resource management plan requires that the forest designate large, medium and small patches of old growth to form a network that represents landscapes found in the Southern Appalachians that are well dispersed and interconnected.

A big problem with this approach is that this strategic and programmatic “designation” (of a “future network”) would probably occur outside of the forest planning process and maybe out of the public eye (unless the forest plan is amended each time it occurs).  And unless a “network” has been fully described, there is no way to tell whether a particular proposed project area is necessary to comply with the forest plan.  Which leads to that debate on a project-by-project basis, like we have here on the Nantahala-Pisgah.

On a 26-acre stand near Brushy Mountain slated for harvest, the Forest Service said the site meets the minimal operational definition for old growth defined in a Forest Service document known as the Region 8 Old Growth Guide. Even so, the stand won’t be protected since it “is already well-represented and protected in existing old-growth designations.”

How were those “designations” made?  When that occurred, did the public know that it would mean these other areas would be subject to future logging, and did they have an opportunity to object then?

“Only one-half of 1 percent of the forest is old growth in the Southeast,” Buzz Williams of the Chattooga Conservancy told Carolina Public Press. “That is the reason within itself to leave it alone.”

“There is not a need to create (early successional habitat) right on top of old growth.”

The Forest Service disagreed. In an official response to the objections, the Forest Service wrote that while the Forest Service “should provide and restore old growth on the landscape,” this spot and others within the project are either not old growth or unique enough to protect.

I get that old growth should be allowed to “move” across a landscape over time, but that timeframe is even slower than the one for forest planning (note: humor).  There would be little administrative risk in designating which areas would be preserved in a forest plan and which would not (subject to amendments in cases where designated areas are destroyed by natural events).  Better yet, except on national forests that have an abundance of existing old growth (where would this be?), require an ecological reason to log old trees.

This is a debate that should be settled in forest plan revisions not passed on for objections to future projects.  An attorney for the Southern Environmental Law Center agrees:

“The question of protecting old-growth forests is very much a planning-based question — in terms of the big picture of the management of the National Forest and restoring its ecological integrity,” Burnette said.

“In light of broad-based community support for protecting old growth, it’s perplexing that the (Forest Service) would want to rush out ahead of the process during a time when the question of protecting old-growth forests in the future is being considered in the revision of the forest plan.”

State “primacy” for NEPA documents

Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme. This article reports on “a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.”

“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.

Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”

“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.

The states are already given a front row seat in federal NEPA processes, and the federal government can contract for NEPA services; it is the apparently new concept of “primacy” that is going to run into legal problems. It’s not clear from the examples provided whether the issue is decision-making authority, or to get “more of this work done in a timely manner.” If it’s the latter, I’m sure the feds would be happy to have state volunteers or state dollars (but isn’t this the focus of the “Good Neighbor” program?), though increased legal scrutiny of potentially biased NEPA products should be expected. If “primacy” means “the final word” on anything in a NEPA product they should probably spend their committee time elsewhere (like Congress).

 

 

Interior Dept. to limit freedom of information

To add to the lawsuits that result when the government misses its deadline to provide information subject to the Freedom of Information Act, we may soon see a lawsuit against USDI’s effort to not have to provide the information in the first place.  Comments on their proposed new FOIA regulations were due Monday.

(The purpose is to) “streamline the FOIA submission process in order to help the Department inform requesters and/or focus on meeting its statutory obligations.”

The department proposes limiting the number of requests that individuals or groups could file each month, and to “not honor a request that requires an unreasonably burdensome search or requires the bureau to locate, review, redact, or arrange for inspection of a vast quantity of material.”

A department spokeswoman said making the process more efficient would “ensure more equitable and regular access to federal records for all requesters, not just litigious special interest groups.”

FOIA represents a strong statement from Congress about the importance of open government.  Responses to FOIA requests often reveal illegal activity and become the basis for lawsuits. Still, every administration seems to stamp its own bias on its FOIA procedures, and this is Trump and Zinke.

As a practical matter, it can take a lot of agency resources to comply with FOIA requirements.  But as a legal matter, the law is pretty clear about what has to be provided and how fast.  Regulations can’t change that.  There is nothing in the law that excuses agencies from honoring a request if they happen to take actions that generate “vast” quantities of material, or if some aspect of providing required material is “burdensome.”

(Could the USDA Forest Service be brewing something similar?)

 

Black Hills ghost trails come alive

Two existing but unauthorized recreational trails will be considered for inclusion in the Black Hills National Forest’s official non-motorized trail system. But the trails were apparently blazed by users rather than Forest Service officials, and neither trail is considered part of the forest’s official trail system.

Just two years ago, the then-ranger of the Forest’s Mystic District, Ruth Esperance, threatened to criminally prosecute builders of unauthorized trails. The threat provoked a backlash among trail users, especially in the mountain-biking community, who accused forest officials of longstanding inaction on proposals for new trails.

In other words, they got tired of waiting and just decided to do it themselves, and the Forest Service is about to sanction that.  Meanwhile, four other proposed trails were set aside for now by Forest Service officials, who considered a total of six proposed trails as part of a new trail-proposal process that was created in August.  They were not approved because of unacceptable impacts.

Van Every identified numerous problems with the Storm Mountain and Victoria Lake trails. “Issues include routes through documented cultural sites, crossing private property, permitting bicycles on the historic Flume Trail where they are currently not authorized, crossing a major highway, fence crossings in the Foster Gulch area, lack of parking, and potential conflict with big game winter range,” Van Every wrote…  Furthermore, Van Every wrote, the Paha Sapa trail goes through the Norbeck Wildlife Preserve, where trail miles are limited by the Black Hills National Forest’s management plan.

For the two trails that were advanced for further review, several more steps in the process remain, including environmental reviews in accordance with the National Environmental Policy Act.

Well, this kind of points out the problem with this approach – these trails are already there and impacts have already occurred.  The reason the Forest Service doesn’t “just do it” is because there are resources they are charged with protecting that they are required by law to consider BEFORE they decide to do it.  But here is a great way to shortcut the process, and ignore legal requirements; just look the other way. The users could have funded the environmental analysis needed to proceed, but instead extra-legal “self-help” is apparently being rewarded.

Maybe this new process of “build it, then ask for it” will become the model for other places where the Forest Service doesn’t act fast enough on trails or other developments (or maybe even where they’ve already said “no”).  Maybe national forest neighbors (or their governments) will start using this approach to cut down trees on public lands that they consider a fire risk, or maybe they’ll burn them.  (This actually reminds me of the “shovel brigade” that rebuilt a Forest Service road in Nevada after a flood, which damaged bull trout habitat, but there the Forest Service at least resisted it.)

 

Pacific northwest collaboratives

This article is about the fact that the Malheur National Forest hasn’t had a lawsuit in 15 years.

Hannibal said “three to four times the amount of work” is getting done nowadays compared to 15 years ago. Timber sales data from the Malheur National Forest tell a similar story. From 2010 to 2016, the volume of timber cut from the forest more than doubled. The collaboration and a 10-year stewardship contract gets credit for saving the last sawmill in Grant County, Oregon, too.

It also links to the “Collaborative Directory” for the Pacific Northwest Region.

Every national forest in the Pacific Northwest has now aligned with at least one outside “collaborative,” as they are called. The idea is to build trust and get compromises done at the front end of proposed timber sales, thinnings or controlled burns. That way, the work doesn’t get bogged down in litigation or analysis paralysis later.

Forest Service directory lists 36 collaboratives associated with the 16 national forests in Oregon and Washington state. Some are more successful than others. Brown said the greater presence of endangered species west of the Cascades complicates the work of the groups active in wet-side forests.

It’s interesting to see how many groups are working where, but I just want to highlight that last point.  It suggests to me that addressing at-risk species is the key to successful projects, and that forest plans can and should provide the framework for doing so.  It would be nice to see revised forest plans treat this as an important issue and consider alternative approaches in that context.  On the other hand, there are no references to any forest plans or forest planning (as opposed to project plans and planning) in this document.  What am I missing?