Supreme Court Affirms Programmatic EIS for Sierra Nevada Framework

Burney-Falls-poster-web

Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565.Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, “This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012), is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote onwhether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied.”

According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, “The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.” On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.

The Appeals Court rules, “Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.”
In a lengthy dissenting opinion, one Justice concludes, “. . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . .”
It appears that an impossibly comprehensive study of the entire Sierra Nevada “watershed” will not be required for the amended Sierra Nevada Framework plan. If the Forest Service loses this case, it would have to limit the harvest of trees within thinning projects to 12″ dbh in some areas, and to 20″ dbh in the rest of the Sierra Nevada. This decision means that the Forest Service has followed NEPA law since the amendment has been in force. If the Pacific Rivers Council had prevailed, we would be seeing a complete failure of the Forest Service’s timber management program throughout the Sierra Nevada. Sierra Pacific Industries has plenty of their own lands, stocked with plenty of trees in the 12″-20″ dbh size. There would be no need for SPI to bid on the thinning projects that would be offered by the Forest Service under the old diameter limits. The small amount of harvested trees between 20″ and 29.9″ dbh are what pays for the biomass removal needed for true restoration. When thinning projects reduce wildfire threats, and actual wildfire impacts, water quality and fish habitats are improved.

Barry Wynsma: U.S. Forest Service Collaboration Process: Solution or Sham?

This is pretty interesting because Mr. Wynsma was able to obtain a great deal of information, (should that information be available more generally?) and also his observations as employee and collaborator. I’m starting a page on ideas for solving “the Problem” and will put his ideas, as well as the ideas found (buried?) in comments here, on that page. Here’s the link, and below is an excerpt.

The Good, The Bad, and The Ugly Truth about Collaboration

Even though I don’t believe the current process for collaboration will solve these problems, that doesn’t mean there aren’t good things about the collaborative process or that the process can’t be improved upon to help solve the problems.

Here’s what I and other current and retired Forest Service acquaintances I contacted think are good things about the collaborative process:

Involving a diverse group of people (I hate the term “stakeholders”) during the project planning process is a good thing. I believe it helps the Forest Service design projects that better meet the desires of the public, even though it’s impossible to meet everybody’s personal opinions on how to best manage the public forests.
With collaboration comes group ownership in projects and support from start to finish.
Joint solutions and commitment means no backing out.
The collaborative program provides assistance with funding to accomplish needed treatments.
Collaboration can help lay people better understand the complexity of forest management.
Collaboration may build community relationships that encourage continuing positive working relationships between Forest Service people and the community.
Collaborative groups police themselves and force extremists on both sides of the spectrum to consider what they are really saying philosophically vs. practically on any given issue.

On the other hand, there are things about collaboration that are not so good, if not bad. Here’s what I and other current and retired Forest Service acquaintances I contacted think are bad things about the collaborative process:

The collaborative process is time consuming and more costly than the traditional process of public scoping and comment gathering for projects. The more people involved in a project, the harder it is to schedule meeting dates and field trips that will maximize the largest group involvement. The results of my inquiry clearly show that projects aren’t moving through the NEPA and appeals process any faster than normal and possibly even taking longer.
The time consuming nature of collaboration can be a major deterrent to people that are not paid to attend meetings during working hours, people who have limited free time or travel. Forest Service people can become weary of after hour meetings, paid or not paid.
Meetings can go on for months, if not years. This consumption of time makes it difficult, if not impossible, for many people to take part.
Poorly managed meetings generate negative emotions and can ruin the entire process.
For individuals or groups with an agenda to limit or eliminate forest management, collaboration can provide an opportunity to wear others down by dragging meetings on and on, then appeal and/or litigate after an extended collaboration process. Collaboration can also usurp the agency’s authority.
The Forest Service may or may not be aware of hidden agendas or games being played by some members in a collaborative group.
Forest Service specialists may feel like they get “cut-out” of project development.
Also considering project specialists: the more days they have to spend in meetings, the less time they have to conduct field work and write reports, which extend the timeline for implementing projects.

The ugly truth is that collaboration won’t reduce analysis paralysis, appeals and litigation. Collaboration also won’t increase the rate at which the Forest Service can reduce fuels and restore unhealthy forests until the appeals process and our current myriad of conflicting environmental laws are reformed.

So what are some possible ways to improve the collaborative process?

Here’s a few:

After all the time and effort put into project development by collaborative groups and the Forest Service, it simply isn’t fair to the collaborative or to the taxpayers of this country to allow an inexpensive process for individuals and groups, whether they were members of the group or not, to stop or delay project implementation through appeals and litigation.

Congress should pass a new law that will exempt collaborative projects from the appeal or objection process. They should also include bonding requirements for any individual or group that file suits to stall or stop collaborative projects.

Congress should also reform or eliminate the Equal Access to Justice Act, which allows litigants to recuperate court costs from the tax paying public.

The Forest Service should develop a new Categorical Exclusion to replace the Healthy Forests Restoration Act version (CE #10) that allowed for fuels reduction timber harvests less than 1,000 acres in size. The CE #10 was rescinded following a lawsuit filed by environmental groups because in my opinion this CE allowed for expedited implementation of fuels reduction projects.

To get a broader spectrum of public involvement, make more use of the internet to gather input from people who want to participate in collaboration but don’t have the time or money to show up for meetings and field trips. The Forest Service could maintain email mailing lists for projects that people want to be engaged in and could be kept up to date on the progression of projects without having to show up for meetings. For example, with the smart phone technology I could imagine a logger sitting in the woods during a lunch break or a hiker up on a mountain top being able to participate in a collaborative project.

Note from Sharon: I was somewhat involved in the development of CE#10, not sure that would help at the end of the day. I really like his last point in terms of the criticism I hear from both sides.

Project could have lessened fire damage (?) Ruidoso News

Whether a project would have helped.
Here is a link to the article.
Below are some excerpts.

But Stewart, a participant in the thinning project from its inception in 2008, said Tuesday the group’s appeal relied on hazy technical details that nobody had a specific answer to. The reason the reversal was upheld was that there was not enough historic data for the area to establish natural conditions and allow the team to speak from a position of expertise, he said.

“It’s a lot about interpretation,” he said. “There’s not a set template for describing the effects of old growth as there is for goshawks and other endangered species. (The project) got turned back, more or less saying we did not analyze the effects enough to make a professional recommendation for treatment.”

Regulations and rulings clearly define what is required to maintain habitat for endangered species, but decisions on old growth typically relied on site-specific data, though the plan did have goals to encourage old growth, loosely defined as multi-age tree stands, to expand, he said.

Issues with erosion brought up by the environmental groups also were based on a lack of historical data, he said.

“We were in the process of beefing those (reports) up, gathering data on the soil and for the old growth to show a more in-depth analysis,” he said. “We expected to do treatments this year. To have it appealed put it on hold, and we were expecting a new decision by the end of this fiscal year, in September.”

With the new information, Stewart said the project was “at the door, waiting to go,” requiring no changes from the original draft. “We were getting more justification for what we had already proposed.”

Without an appeal, thinning treatments would have begun possibly as soon as spring of this year, continuing through the summer, he said. Timber contracts would have been issued during autumn, though few areas would be worth the expense of logging, he added.

It sounds like another project that is not about “logging” in the sense of the dictionary definition.

Lininger said that the thinning project would have harmed Bonito Lake by causing sediment to fall into the lake from the slopes where temporary roads were to have been cut.
Bird added that with the shift in typical conditions in the Southwest to a dryer, drought-ridden landscape, he questioned whether thinning would be effective, or feasible in the backcountry.
“The bottom line is that you can fire-proof a community, but you can’t fire-proof a forest,” he said.
According to the Wild Earth Guardian’s website, the group seeks to “transcend this paradigm of fear-driven fire policy,” and protect communities with “common-sense safety measures and financial incentives from state and federal governments.”
“Our forests were born of fire and, just as rainforests need rain, forests need fire’s rejuvenating properties to perpetuate and thrive,” the website states.

Specific directives to maintain old growth and the “largest, healthy green trees” per acre were included in the thinning plan, though the minimum number of trees could dip if there was an excess of mistletoe infesting the trees. Base levels of mistletoe would be maintained, according to the report.

A diverse landscape of mixed meadows and both light and heavy tree stands to “reduce crown fire potential,” “protect and enhance the watershed” and increase biodiversity and habitat was prescribed for the area, according to the report.
The groups also pushed for a 16-inch cap on tree removal, which was taken “under consideration” by Robert Trujillo, supervisor for the Lincoln National Forest.

“It’s hard to put a dollar cost on (appeals), because it’s people’s time,” Stewart said. “I think the cost is, more or less, what else could (Forest Service workers) be working on aside from this appeal?”
He added that thinning projects already were hampered by cost-cutting concerns. Hand crews cost upwards to $1,200 per acre, mechanical thinning ran at about $300 per acre and controlled burns typically cost $90 per acre, but could only be applied in areas without a significant concentration of ladder fuels, he said.

“(Thinning) has to take a more holistic approach, and I have to do this across the entire forest,” he said. “The Bonito (project), to me, was almost heartbreaking. We knew it was going to be important, we knew it was a municipal watershed for Alamogordo and we knew that if there was a fire, it was going to be devastating. And we got it, unfortunately.

Note from Sharon: I looked for a copy of the EIS or EA for this project on this site but couldn’t find it. I did look at the list of projects for the forest and noticed a bunch of CE’s and not many vegetation management projects. That adds to our database of “what projects do people use CE’s for, and is it good public policy to require notice comment and appeal for all CEs?”

Also, having spent most of my career working in western pine forests, it’s hard for me to believe that any FS project or a cumulative impact of FS projects could result in a dearth of mistletoe. Just sayin’

Sequoia Forestkeeper II, of Probably Many Posts

From Bob Berwyn here:

By Bob Berwyn

SUMMIT COUNTY — A federal judge in California this week ruled that the U.S. Forest Service can’t simply drop a post-decision appeals process for logging, forest health and other projects approved under a categorical exclusions, which is a streamlined approval process for smaller projects. In those decisions, the appeals process is replaced with a pre-decisional objection period, which enables people to raise concerns before the final decision is made. Read the decision here (PDF on Scribd.com) or at the end of the post.

That means citizens or stakeholder groups across the country once again have the right to challenge certain Forest Service projects after the final decision has been made by a district- or forest-level official.
The agency has often used the categorical exclusion process in recent years to gain speedy approval for projects relating to the pine beetle epidemic. While many of the projects aren’t controversial, some have been.
Absent a formal administrative appeals process — which involves review by forest officials higher up the chain of command — citizens and environmental groups must go directly to court to challenge a project.
In some regions, the agency has done a good job of involving stakeholders in the process early to help shape decisions that have community support. But that’s not the case all over the country, and having the opportunity to appeal enables people to challenge bad decisions without the expense of going to court.
On the other hand, environmental groups have sometimes abused the appeals process to obstruct and delay projects. Those tactics led frustrated Forest Service officials to look for shortcuts. But fundamentally, appeals have always helped ensure that citizens have some recourse to challenge the agency when it comes to what are often irrevocable commitments of public resources.
In his decision, U.S. District Court Judge Lawrence O’Neill also ruled that the agency must give adequate notice for its decisions on categorical exclusion projects, as well as provide the public with an opportunity to comment.
The ruling, issued by a U.S. District Court in California, is a skirmish in the long-running regulatory and legal battle over the Forest Service’s desire to cut red tape, sometimes at the expense of public involvement and adequate environmental review.
The Forest Service fired the first salvo when it tried to eliminate administrative appeals altogether in an attempt to speed up approvals for projects. In response, Congress in 1992 passed the Forest Service Decision-making and Appeals Reform Act.
“Congress said, we want to ensure that you’ve heard all the voices … and that you use the appeal process to repair your mistakes,” said Forest Service Employees for Environmental Ethics director Andy Stahl, explaining that he lobbied for the appeals reform act.
That law states very clearly that the Forest Service must include an appeals process for any decision or project that implements a forest plan.
Stahl said appeals help make the Forest Service decision-making process accessible to the general public, giving citizens a chance to influence decisions without having to hire a lawyer if they think a project has some fundamental flaws. And based on the agency’s track record of losing appeals and court cases, that happens as often as not.
In the bigger picture, Congress just recently passed a law that eliminates appeals for all decisions approved under Environmental Assessments and Environmental Impact Statements, instead replacing those appeals with pre-decisional objection periods.

Here’s the link to the decision (thanks, Bob!)

Sharon’s note : I’m not sure what Andy means by “losing appeals and court cases” and “that happens often as not.” How does that fit in with the concept of “appeals are just a higher level review and often just restamp the decision”? (Not that Andy said the latter, but I think someone has on this blog.) I don’t think that quantitatively appeals are 50/50 affirm/ remand nor are court cases 50/50 (although I don’t have the numbers at my fingertips). Andy- did I miss something or was I excessively quantitative in interpreting “as often as not” as 50/50?

For our mutual education and information on this subject, I propose we each pick a district and look at which actual CE’s are in progress to get a picture of how many of them actually deal with timber harvest compared to other kinds of actions, which are “implementing the forest plan”; so I picked Trabuco Ranger District (the name just came to me) and here’s a link to the current SOPA (schedule of proposed actions).

I found a decision expected in April (maybe not anymore?) :
“The Descanso Ranger District proposes to authorize reissuance of a special use permit for maintaining a club for use by the San Diego Chapter of the Sierra Club, located in the Laguna Mountain Recreation Area. ”

Or this one right below it, fortunately already completed:
“Eradicate with herbicide invasive Spanish Broom along the roadway to improve visibility, clear the roadway for vehicle passage and reduce fire risk.”

Adding notice, comment and appeal to CE’s seems like a great thing for the public, but it seems to me that given the kinds of CEs that are out there, reasonable people could disagree about the value added compared to the taxpayer expense.

I invite you to “pick a district” check out the SOPA, and see what you find.

Forest Service appeal regs exempting CE’s dinged again by federal courts

A federal court ruling yesterday one again enjoined the Forest Service regulations that exempted Categorical Exclusion (CE) decisions from notice, comment and appeal.  According to one of the attorney’s who worked the case,  “This certainly means any new CE’d decisions must be subject to notice, comment and appeal – beyond that, and how this will affect (or be affected by) any new regulations regarding the HFRA-like rider, is TBD.”

UPDATE: Just to be clear, here is the Summary Judgment Decision on Merits of Plaintiffs’ Claim.  Also, the same Court issued this Summary Judgment Decision on Jurisdictional Issues.

A McKenzie Bridge logging plan takes neighbors by surprise

(The following article appeared in today’s Eugene Register-Guard. – mk)

McKENZIE BRIDGE — Jerry Gil­mour is able to escape from Bend most weekends and drive over the Santiam Pass to his wooded retreat, a cabin he built on a 4-acre swath of pristine land bordering the Willamette National Forest.

 A few weeks back, Gilmour drove up the narrow road off Highway 126 that leads to his property in the small community of McKenzie Bridge, fired up the 100-year-old wood stove that once burned trash in a locomotive and took his yellow Labrador retriever, Kona, for a walk. It’s a routine.

But on this trip, as Gilmour trudged past his favorite old maple tree and through the woods on the edge of his property, something was different. Stapled to the trees were bright blue signs, bright orange markers, and flags dangling from the branches.

“Boundary cutting unit,” the signs read. The author: the U.S. Forest Service. The telltale markers of a soon-to-commence logging operation.

Gilmour was surprised, but as a part-time resident, he figured maybe he’d just been out of the loop. He did some investigating on the Internet and found the description and documents relating to the Goose Project, a 2,134-acre timber sale that will produce 38 million board feet of lumber, enough to fill 7,000 log trucks.

Then Gilmour drove to Edgar Exum and Claudette Aras’ house, which rises from a meadow in the shadow of Lookout Ridge on 20 acres that also border the national forest. Had they heard about the Goose Project? They hadn’t. Nor had any of the neighbors they wound up asking. Not even the publisher of the local newspaper, the McKenzie River Reflections, had heard about it.

Eventually, Gilmour and the Exums learned that a couple of conservation groups, Oregon Wild and Cascadia Wildlands, knew about the project, which the Forest Service had approved in 2010. The groups had appealed the sale, arguing that the agency failed to adequately describe how it would protect the 956 acres of spotted owl habitat in the area. The appeal was denied, the project approved, the 45-day window for public comment closed.

Which means Gilmour and his neighbors have no recourse for weighing in on a substantial logging operation that is literally in their backyards. No recourse to file an appeal or a lawsuit, because they didn’t comment on it in the first place. They can only watch and wait, for the buzz of chainsaw and the whir of helicopters to arrive and start plucking trees out of the forest, one by one.

Except, watching and waiting is not in these neighbors’ DNA. They’ve embarked on what may be a quixotic quest to persuade the Forest Service to stop the Goose Project, gather public input, answer questions from people in McKenzie Bridge and consider changes to the operation.

“They just didn’t tell us,” Edgar Exum said. “That’s my major objection.”

Added Aras: “Burying it in the legal notices is not notification. It just isn’t.”

The Forest Service has no obligation to listen. The agency published a notice of the proposed timber sale in the small print of The Register-­Guard’s classified ad section in 2010, and the 45-day public comment period that followed has expired. But Terry Baker, the McKenzie River District ranger, who was not in that post in 2010, said he’s come to a conclusion that may surprise Gilmour and his neighbors:

“As a district, we dropped the ball on contacting some of the adjacent landowners and community members about the project,” he said.

In addition to the legal notice, the district did contact a few community leaders and held a field trip before finishing the project design, Baker said. That resulted in some changes, among them an agreement that no trees greater than 36 inches in diameter will be cut within 350 feet of a private residence. But the Forest Service could have done better, Baker said. What he would have done is study a map of the property and contact all property owners within a quarter-mile of the project, mailing out notices to all involved and inviting them to participate in the discussion, he said.

While he can’t turn back time, Baker said he’s looking at holding a public meeting in the next few weeks and talking with landowners between now and then to discuss their concerns. He also intends to set up a “community monitoring group” that will keep tabs on the project as it develops and provide feedback that could be used to make changes as it progresses or be taken into consideration on future jobs.

Whether any of that will address the residents’ specific concerns depends on how talks with the Forest Service play out in the coming weeks. The first of five sales of timber closed on Thursday, and it’s unlikely that even a renewed effort to gather input would result in major changes to the project.

Still, “If there are site-specific concerns landowners have, I’m willing to work with them,” Baker said. “There’s going to be a threshold. I’m not sure what it is yet.”

Some of the neighbors’ concerns have already been addressed by the Forest Service in its response to the two conservation groups’ appeal of the project.

Doug Heiken, conservation and restoration coordinator for Oregon Wild, said the Forest Service should have chosen an alternative that avoids logging in mature forests and in riparian areas and that cuts back on the 7.7 miles of temporary roads that will be built to support the project. Beyond that, he said, the 965 acres of spotted owl habitat should have prompted the agency to conduct an Environmental Impact Statement, a more detailed analysis than what the Forest Service did, which was an Environmental Assessment.

“We shouldn’t be logging mature forests in riparian reserves,” Heiken said.

Most of the project involves thinning young planted stands, which is good for fire suppression and wildlife foraging, Heiken said. In fact, Baker says those are among the key reasons the project is happening in the first place: to improve the forest and reduce hazard fuel levels, along with supplying local communities with sustainably harvested timber.

But some residents in McKenzie Bridge question the Goose Project’s 322 acres of “gap” cutting, which they say is a euphemism for clear-cuts, which could result in scars to an otherwise lush forest.

“That ridge is going to resemble a checkerboard in 20 years,” Edgar Exum said.

Baker said the gap cutting on the project is designed to help species from butterfly to elk to ground squirrels who do better in the brushes and shrubs that comprise “early seral habitat,” areas that exist before conifer trees begin to block out the light. As for riparian reserves, that part of the effort is aimed at improving riparian reserves by doing thinning that could allow larger trees to flourish, he said. And the decision to go with an Environmental Assessment was based on consultations with other agencies that resulted in a conclusion that no endangered species would be harmed by the project.

What bothers Gilmour, Exum, Aras and others is that they never got a chance to ask their questions, raise their concerns and have them answered directly. They see good things about the Goose Project, too, but they want more input, information and involvement.

“People around here ought to have known the answers to these questions,” Gilmour said.

Appeal Challenges Old-growth Logging Near Grand Canyon

(Below is the press release from the Center for Biological Diversity.  Click here to download a copy of the appeal.  Photos of the Jacob Ryan project area, including old-growth trees aged by the Center and previously marked for logging by the Forest Service, can be seen and downloaded here. – mk)


Photo:  Center for Biological Diversity ecologist Jay Lininger displays the core of 180-year-old ponderosa pine marked for logging at the Jacob Ryan timber sale. Center photo.

FLAGSTAFF, Ariz.— For the third time in a decade, the Center for Biological Diversity and Sierra Club today administratively appealed a 25,000-acre timber sale that is slated to log old-growth trees and forests on the Kaibab National Forest near Grand Canyon’s north rim.

Approved in January, this is the Forest Service’s fifth iteration of the Jacob Ryan timber sale since 2003, each plan seeking to log old-growth trees and forests. The Center and Sierra Club blocked two earlier iterations of the sale; the Forest Service voluntarily withdrew two others.

“This forest needs a limited amount of small-tree thinning to safely reintroduce natural fires, but for a decade the Forest Service has rejected common sense and opted instead to cut down old trees,” said Jay Lininger, an ecologist with the Center. “The Jacob Ryan timber sale makes a mockery of forest restoration and exposes the need for leadership and reform within the Forest Service.

”

Today’s appeal challenges logging of old-growth trees and argues that logging will not retain sufficient forest canopy to support the rare northern goshawk — a woodland raptor. A source population of goshawks lives on the Kaibab Plateau, where Jacob Ryan is located.  According to a Forest Service report, goshawks are “vulnerable to extirpation or extinction in Arizona.”

“It is just outrageous that the Forest Service is proposing for the fifth time to log these old growth and large trees, when we have so little remaining,” said Sandy Bahr, chapter director for the Sierra Club’s Grand Canyon (Arizona) Chapter. “The old growth and large trees make up less than 3 percent of our forests and are a critical component of healthy forests and essential for wildlife species such as the northern goshawk. In a real restoration project, they would be the centerpiece, not slated for logging.”

In its last failed attempt to implement the timber sale, the Forest Service in 2009 admitted violating its own management plan in response to a Center appeal. Center staff documented old-growth trees marked for cutting, despite bogus claimsby the Forest Service that it would protect old growth.

The Missoulian on Objections and Appeals

Thanks to the Missoulian for giving us a break from the planning rule.. my comments in italics..

U.S. Forest Service streamlines appeal process

By ROB CHANEY of the Missoulian | Posted: Saturday, January 28, 2012 10:16 pm | No Comments Posted

What’s the difference between an appeal and an objection?

When dealing with the U.S. Forest Service, it determines whether your complaint gets dealt with on paper or face-to-face. A recent change in Forest Service decisionmaking requires project opponents to argue their points much earlier in the process.

Proponents of the change expect better, faster decisions on logging sales, special use permits and other activities on national forests. Agency sparring partners fear it limits people’s ability to block bad decisions.

“Frankly, we think it’s going to be a huge improvement,” said Keith Olson of the Montana Logging Association. “In order for somebody to become a litigant, they have to have involvement in the project. They can’t come in at the 11th hour and throw a monkey wrench in the works.”

“I think it’s kind of screwy,” said Arlene Montgomery of Friends of the Wild Swan, an organization that’s frequently tangled with the Forest Service. “The normal process is they scope a project, release an environmental assessment, you comment on that, they make changes. Then they issue a decision and you can appeal the decision.

“Now they’re skipping a step. It’s not possible for the public to raise every issue that could possibly come up in an EA before seeing the EA. I think it’s a way to truncate and thwart the public process.”

During the announcement of a major revision to the Forest Service’s planning rule last week, the word “collaboration” was a frequent touchstone. The agency managing 193 million acres of public forest and grassland wants the same connection with local residents, businesses and advocates that it’s traditionally had with the wood products industry.

At the same time, it wants to spend less time in court trying to fix projects.

A little-noticed change in the Forest Service’s 2012 budget bill eliminated the old appeals process and replaced it with an objection procedure for all environmental assessments and environmental impact statements.

“The idea was to get it down to the lowest level of decisionmaking,” said Region 1 objections coordinator Ray Smith. “Under the existing appeal process, a deciding officer can’t meet with appellants or the (Forest Service project) team. He only looks at documents, and that pulls that person away from the back-and-forth human interaction.

“With the objection process, the person reviewing the objection is able to talk to the objector, the interdisciplinary team and the district ranger in order to get, hopefully, a better project and decision.”

*****

In Region 1, which includes national forests and grasslands in Montana, the Dakotas and parts of Idaho, there have been 28 projects launched under the new objections rule instead of the appeals process. Of those, 26 received a total of 71 objections, but only three projects went to court. The Forest Service won one lawsuit, withdrew one project and still has one in litigation.

To object, someone has to get formally involved at the earliest stage of a project. The Forest Service tries to alert all affected landowners, businesses, government agencies, non-governmental organizations and other interested parties through its Schedule of Proposed Activities notices and direct contact.

Those who don’t register interest in the project lose the right to lodge objections, and also may lose their standing to take the project to court.

“That concept of pre-final decision comes from the Healthy Forest Restoration Act (of 2003), and it works fairly well,” said Earthjustice attorney Kirsten Boyles, whose law firm frequently challenges Forest Service policy. “It requires people be involved earlier in the process, and it seems to have worked fine.”

But Montgomery countered that her experience with the objections process found projects poorly done. She recalled a logging proposal called Paint-Emery around Hungry Horse Reservoir that showed the flaws.

“This particular one had all this logging and 100 miles of road decommissioning,” Montgomery said. “The logging went forward, and 10 years later 70 miles of road hadn’t been decommissioned. The only reason those last 70 miles got done was (federal) stimulus money. The timber sales don’t generate the money to do the restoration. So when it comes to implementing restoration, nothing happens on the ground.”

*****

I’d like to point out that there are two issues 1) on the ground actions not matching the NEPA and 2) not having the money to do all parts of a project, that have been pointed out by many groups.. just the ones I’ve attended included groups convened by Western Governors and NFF. This can happen equally under appeals or objections as they are all post decision actions (or inactions or errors). Not sure why Montgomery and the reporter considered this to be relevant to the issue of appeals vs. objections.

Under the old appeals process, a project would get a environmental assessment or environmental impact statement, and an opponent had 90 days to file an appeal.

Under the new objections process, opponents have 60 days from publication of a draft EA or EIS to point out problems. Then the Forest Service will schedule a meeting to attempt and reach a resolution.

That still wouldn’t have helped keep the Colt-Summit project north of Seeley Lake out of court, according to Montgomery. The Friends of the Wild Swan and two other groups lost an appeal of that project and are now challenging it in federal court.

“We couldn’t have got our issues fixed by objection on Colt-Summit,” Montgomery said. “Our main concern was that the Swan-Clearwater Divide is a really important wildlife corridor. Yet they were going to be logging in old-growth forest, which we think will detrimentally alter the habitat of that crucial area. And that was given no analysis at all.”

The statement “no analysis at all” triggered a look. See what I found in a few minutes of examination below. If you take the quote at face value, it does not appear to be a true statement.

The Lolo National Forest promoted the 4,300-acre Colt-Summit project as an example of the new attitude of collaborative decision-making. It had support of the Montana Forest Restoration Committee, which includes many conservation, environmental and forest industry organizations. It proposed 740 acres of logging and thinning, 1,216 acres of understory clearing and burning, 19 acres of clearcuts to improve tourist vistas, nine miles of road decommissioned or repaired, and 34 miles of weed-control spraying.

Leslie Weldon, the Forest Service’s director of National Forest Systems, said the new format should produce more solutions than obstructions.

“Objections are only effective if we have a much more extensive level of engagement initiating projects,” said Weldon, who was Region 1 forester in Missoula before her promotion to Forest Service headquarters in Washington, D.C., in January. “It’s about making things public at the very beginning, understanding the issues and concerns with a particular area, and understanding conditions on the landscape. Then we can use all that at the front-end of the process to inform what a project will be.”

Read more: http://missoulian.com/news/local/u-s-forest-service-streamlines-appeal-process/article_e9bec5f4-4a38-11e1-9bad-001871e3ce6c.html#ixzz1krJeMNUy

A couple of things- the Congress are the ones who voted on the appropriations bill- it almost sounds like it was an executive branch concept that Congress adopted. More likely, constituents found the current situation suboptimal and asked for some help by Congress, who felt that HFRA seemed to be a successful experiment, so.. there are only so many ideas out there.

It is also interesting that Pacific Northwest Earthjustice Kirsten Boyles says that her group has had good experiences with objections. I wonder if there are local differences in approach that would explain the difference. Perhaps it would be useful (since regulations are to be developed) if we had a feature of “good objection experiences” and “bad objection experiences” with the names of the projects and exactly what people liked or didn’t like about them. You can send any submissions to me at [email protected].

We have had previous discussions on appeals vs. objections on the blog here. Be sure to check out my chart in comment #32 and Mike’s visionary thought in comment #42.

We have had previous discussions on the Colt Summit project here. Re the “cone of silence” for litigation here, when I asked what the litigators would like to see on the project for it to be acceptable, and a discussion of the project and who supports it and not here, and the map with the FWS concurrence letter here.

As I’ve said before, what I like about objections is that at least in my experience, it moves the discussion from “your are violating NFMA and ESA, and plus your NEPA sucks” to something more pragmatic “want 150 foot buffers, or a diameter limit”. I believe it is better because these desires can be openly discussed with the objector and the other members of the public, and does not go directly into the litigation “cone of silence.” Which. it seems to me, gives the public better access to information and more open discussion.

* A cursory look at the original EA yielded these paragraphs shows pp 51-52:

Old Growth
Stand exam data shows that the current stand-relative densities in the old-growth units proposed for treatment (units 6, 7, 28, and 29) range from 56 to 71 percent. Each unit is currently at risk from agents of disturbance. A direct effect of the proposed action will be to reduce post-treatment relative densities to a range from 34 to 56 percent. Indirectly post-treatment relative densities and structure will leave the old growth stands more vigorous and resistant to beetles and wildfire than before treatment, thereby maintaining the current availability of old growth in the analysis area and increasing its availability over time.
Following treatment, there would be no change to the existing number of trees greater than 21inches dbh in the stand except other trees that are felled for safety reasons. If trees over 21 inches are felled for safety they would be left in place as coarse woody debris (table 5, WL-4, WL-5). Underburning will be hand ignited to manage the fire intensity to protect residual old-growth trees from fire in these units (table 5, FM-6). The post treatment basal area will be more than sufficient to meet the thresholds specified in Green et al. 1992. Existing snags needed to meet old-growth requirements will be left post-treatment. Again, some may need to be felled for safety reasons, and if so, will be left in place as coarse woody debris. A variety of scientific literature has been published that discusses the appropriateness of using silvicultural treatments to maintain or restore old-growth vegetative structure. The Lolo National Forests Old Growth Monitoring Study cited no less then fifteen papers (USDA 2008). Data from the 2008 Lolo National Forest Old Growth Monitoring Report vividly demonstrates the effectiveness of thinning–from-below followed by underburning in old-growth stands. Doc# A-1
Colt Summit Restoration and Fuels Reduction Project
52
If proposed treatments in the old growth and potential old-growth stands did lose old-growth characteristics, which is highly unlikely due to over 10 years of old-growth management experience and monitoring (USDA 2008), site-specific prescriptions, and resource protection measures (table 5, FM-6), the percentage of area managed for old growth would still exceed the Forest’s 8 percent goal within the Upper Clearwater Ecological Management Area (USDA Forest Service 1996b).
An indirect benefit of the proposed action is the acceleration of the creation of old-growth structure in potential old growth units by 30 years in units 6 aand 7, and by 5 years in unit 29 when compared to a no-action scenario.

Here’s what’s in the March addendum to the EA (which contains the final acres in Table 1 on page 4)

Forest Vegetation:
Although there is a reduction in old-growth enhancement treatments from 57 acres in the proposed action to 17 acres in the modified proposed action, and an increase in the old-growth slash and underburn treatments from 80 to 120 acres, there would be no difference in the direct, indirect or cumulative effects to the amount of old-growth. Neither the proposed action nor the modified proposed action would affect the quantity of old-growth in the project area, and could help protect old-growth and stands that could mature into old-growth. The guideline for 8 percent of an ecological management unit to be managed for old growth would continue to be exceeded.
Both alternatives’ treatments would maintain and protect old-growth characteristics in a 22-acre stand (unit 28) that currently meets old-growth criteria, and help move 115 acres in other stands (units 6, 6A, 6B, 7, 7A, 7B, and 29) towards meeting old-growth characteristics 5 to 30 years sooner, through less competition and faster growth, than if not treated.

If this doesn’t seem like enough analysis of old-growth, check out the draft NEPA efficiency guidelines here (page 5 last paragraph), “Similarly, the CEQ guidance issued in 1981 indicated that 10-15 pages is generally appropriate for EAs.”

2012 Appropriations Language- Objections and Other Topics of Interest

Here’s a link to the Appropriations Bill.

I think NCFP readers might be particularly interested in this section (428):

FOREST SERVICE PRE-DECISIONAL OBJECTION PROCESS
SEC. 428. Hereafter, upon issuance of final regulations, the
Secretary of Agriculture, acting through the Chief of the Forest
Service, shall apply section 105(a) of the Healthy Forests Restoration
Act of 2003 (16 U.S.C. 6515(a)), providing for a pre-decisional
objection process, to proposed actions of the Forest Service concerning
projects and activities implementing land and resource
management plans developed under the Forest and Rangeland
Renewable Resources Planning Act of 1974 (16 U.S.C. 1600 et
seq.), and documented with a Record of Decision or Decision Notice,
in lieu of subsections (c), (d), and (e) of section 322 of Public
Law 102–381 (16 U.S.C. 1612 note), providing for an administrative
appeal process: Provided, That if the Chief of the Forest Service
determines an emergency situation exists for which immediate
implementation of a proposed action is necessary, the proposed
action shall not be subject to the pre-decisional objection process,
and implementation shall begin immediately after the Forest
Service gives notice of the final decision for the proposed action:
Provided further, That this section shall not apply to an authorized
hazardous fuel reduction project under title I of the Healthy Forests
Restoration Act of 2003 (16 U.S.C. 6501 et seq.).

I thought we had discussed appeals vs. objections here before, but perhaps under the planning rule discussions, and projects are different from plans, so, perhaps we have never had a robust discussion on that topic here. Since the FS will be doing a regulation based on Congressional intent, this seems like a good time to start a discussion of people’s experiences and ideas about objections on projects.

For example, our friends at CBD did not seem enthusiastic about objections compared to appeals as in their press release:

Budget Deal Slashes Public’s Oversight of National Forests

WASHINGTON— In a major blow to public oversight of the national forest system, the 2012 Omnibus Appropriations Act — which now awaits President Obama’s signature — includes a rider that eliminates the public’s ability to administratively appeal Forest Service management decisions. The change, which applies to all management actions across the 193-million-acre national forest system, will diminish opportunities for the public to weigh in on timber sales, oil and gas leasing and other activities affecting forests, recreation, wildlife and pristine landscapes. Instead, it leaves litigation as the public’s only recourse against illegal Forest Service decisions.

“This year’s appropriations bill is a bad deal for the American public and our national forests,” said Taylor McKinnon, public lands campaigns director at the Center for Biological Diversity. “National forests are publicly owned lands that deserve public oversight. Curtailing the public’s participation will mean more bad timber sales, drilling and other development proposals.”

The bill replaces administrative appeals with a Bush-era “pre-decisional” objection process that only allows the public to “object” to management proposals before they’ve been finalized. The bill also reduces the amount of time that the public has to respond to specific proposals — from 45 to 30 days. In addition, it includes a sweeping, vague clause allowing the Forest Service to bypass even the pre-decisional objection processes whenever it determines that emergency circumstances exist.

The rollbacks in public participation come just as the Forest Service is re-writing and substantively weakening National Forest Management Act regulations that provide the framework for national forest management nationwide. After being struck down numerous times by the courts, the Forest Service is again seeking to replace longstanding enforceable standards for wildlife and watersheds with largely unenforceable discretionary provisions. A final rule is expected early in the new year.

“For decades, national forest policy trended toward stronger environmental safeguards and more public involvement and oversight,” said McKinnon. “This week’s elimination of administrative appeals, along with the attempted weakening of safeguards in the planning rule, mark a drastic step backwards for our national forest system — all on the Obama administration’s watch.”

But why would pre-decisional objections be inherently worse than post-decisional appeals? Both give folks a chance to express their feelings about a project. After both, if you don’t agree with the outcome, you can litigate?? (I also don’t know what they mean about the planning rule potentially (as it hasn’t been released yet) replacing “longstanding enforceable standards for wildlife and watersheds”. I understand that wildlife means the viability provision of the 1982 rule; however, I’m not clear what they are referring to with regard to watersheds.

If there are other topics in the Appropriations bill that others would like to discuss, let me know ([email protected]) and we can start separate posts on those.

Stay Tuned: Conflict Resolution/Litigation Topic

Thank you to Martin, Ray, Matthew and Andy for your thoughtful posts on the use of litigation as a conflict resolution tool. What I would like to do next is to carefully read Martin’s essay, synthesize everyone’s points and reflect them back to you to make sure I understand them.

Unfortunately, this is the time of the year that my other volunteer activities reach a crescendo (so to speak) so it may be over the holiday break that this happens.

Nevertheless, I think this is a rich and robust topic for discussion. Our greatest number of hits for this blog occurs when we discuss this, so it seems like our readership feels the same way. I am looking forward to further engagement and enlightenment.

So stay tuned.

P.S.
If anyone knows where I could get a searchable electronic version of Jack Ward Thomas’s “The Journals of a Forest Service Chief”, it would be helpful- he has some great quotes on this topic which I would prefer not to have to search for and type in manually.