New Congress, New Ideas (This Time I Really Mean It!)

In yesterday’s post I asked:

New Congress, new ideas.. we could take this project and ask the question, how could we do better with justice for all and still follow the existing laws? Ideas? When I retired, the solution to this was “collaboration”- folks have been doing this, and spending a great deal of time and energy… but the same result seems to be occurring (in some cases). It is certainly not the solution that some believed.

Now we have some very experienced and smart people on this blog, plus many of the people who like to talk about these kinds of things over a beer or two. Now I realize that there are folks out there like Guy who think things are fine the way they are and “if the FS would only follow the law, there wouldn’t need to be litigation.” I know others may not agree with that framing. So those of you who think the current situation is sub-optimal, please put on your thinking caps and propose some ideas for solutions.. and I’d like to go with ones that keep the land in federal ownership, because the end result would be something we could try to sell to Congress. NePA nerds of all stripes are requested to chime in..

Thanks to all!

More Details on the Daschle Amendment

From 2005
From 2005

Due to the word limit of op-eds, it’s difficult to get all the nuances, even when you are trying to do so.

It’s a pretty obscure field of knowledge, so here goes. In our op-ed, we were saying that if you trade wilderness for “managed acres”, you should understand if the situation will be different than today on the managed acres. If the hold-up to management is appeals and litigation, and you haven’t changed the framework for that, the situation is not going to change. Isn’t that the definition of crazy.. doing the same thing and expecting different results?

Now what’s a bit obscure and confusing is the Daschle amendment, which successfully mandate a quid pro quo kind of deal. Section 706 a) authorized specific projects in and adjacent to Beaver Park, b) authorized two sales in Norbeck, and c) designated an addition to the Black Elk Wilderness. That was the extent of the projects, and all of the authorized on-the-ground work was completed by September 2003. The success of the Black Hills today is not due to “evading environmental laws” through the Daschle amendment. It seems to be due to a lack of interest or success by serial litigators,..correlation or causation?

Now, to you who claim that the problem is that “the FS just needs to obey the law,” I would say that while the folks on the Hills are generally excellent when it comes to NEPA; when I worked in DC in NEPA, I noticed that others, including those in Region 1, are pretty darn good also. So I don’t think the wonderfulness of the people on the Hills, while absolutely true, is the only reason for their success.

As to the specifics of the Daschle amendment, which I think are important to this discussion, according to my historian:

Despite the Chief’s assurances to Senator Daschle that the remand (of the 1997 plan) was relatively minor, the language in the appeal decision basically said that the revised plan was illegal, which shut down the timber sale program and called into question the legality of all sales sold subsequent to the June 1997 ROD. The BHNF did not sell any more timber sales in FY 2000 and much of FY 2001, while they worked on completing a Phase I and Phase II amendment to correct the deficiencies identified in the Chief’s appeal decision.

With Senator Daschle’s guidance (through Eric Washburn), the FS, environmentalists and industry negotiated a Settlement Agreement to a previously unrelated lawsuit involving a salvage sale of beetle killed timber in the Beaver Park area (an inventoried roadless area) that allowed sales already under contract to be modified and operations to continue. That Settlement Agreement was signed in September 2000.

Subsequent to that, the mountain pine beetle outbreak in Beaver Park continued to intensify and expand, with considerable concern and attention from the public and from, then, Representative John Thune. However, the BHNF did not have any ability to respond because a) the second forest plan amendment was not completed and b) the environmentalists wouldn’t agree to it. Senator Daschle (through Eric Washburn) then proposed legislation that would enable the BHNF to respond to the beetle epidemic in the Beaver Park area. The FS, environmentalists, and forest industry negotiated legislative language that a) allowed FS response to beetle epidemic in and adjacent to Beaver Park, b) allowed two sales in the Norbeck Wildlife Preserve to proceed, and c) expanded the Black Elk Wilderness by an additional 3,600 acres of the Norbeck Wildlife Preserve, subject to a) no additional NEPA, b) exempt from Appeals Reform Act and c) not subject to judicial review. That legislation was passed into law in August 2002 as part of a 2002 Supplemental Appropriations Bill (specifically, Section 706 of HR 4775). The legislation was unsuccessfully litigated in federal District Court and the 10th Court of Appeals by a splinter group of diehard Black Hills Sierra Club members.

So here.. 1) litigation had shut down the timber sale program based on the plan.
2) it appears that there was NEPA done before on the project (or related project) that the previous settlement agreement was dealing with (see “no additional NEPA”)
3) the legislation was a deal done by FS, environmentalists and forest industry, overseen by Congressfolk.

Now, I would ask, is a settlement done by a) DOJ and environmentalists, without public presence or involvement (and sometimes leading to odd settlements in Physical World), somehow more fair to everyone than an agreement with the b) FS, environmentalists and forest industry (people who know the details of Physical World and are closer to “the public”), with Congressional involvement?

Because it seems to me like b) is likely to lead to better real world outcomes, that also follow environmental laws. I too, am concerned about “the public” being left out of decisions about public lands; which is one reason why I don’t think settlement agreements from litigation are the best place to make those decisions.

The public at least talks to the FS, and writes comments, and on the Hills, has a formal FACA advisory committee. There is no doubt in my mind that the Supe on the BH has a better idea of what “the public” thinks than do DOJ or environmental group lawyers.

Note: check out the tenor of this story from 2005 about the Wyoming projects in the map above. Just to show that there were appeals and litigation after the amendment.

Most local residents and virtually every government official in the Black Hills – local, state and federal – oppose Biodiversity’s appeals of the three projects. Among those is rancher and real-estate broker Nels Smith of Sundance, Wyo., a former Wyoming state legislator who now serves on the federally chartered Black Hills Advisory Council.

“To me, this is an abuse of the process,” Smith said. “We need timber harvests for a number of reasons. If you don’t cut trees, you end up with a biological desert. It hurts the availability of water and wildlife forage and the health of the forest.”

Nichols, who calls the Cement Project area “the gem of the Black Hills,” says public lands in the relatively unpopulated Wyoming side of the Black Hills are best left to natural processes.

What I like about Jeremy is that he says what the point is.. he doesn’t want timber sales. Not that he “just wants the FS to follow the law.”

What Should Congress Do? II Trusts

Pages from JayOLaughlin_US-Senate-testimony_03-19-13

This post involves information from Mac McConnell, Jay O’Laughlin and about the Valles Caldera experiment.

Solving these many and diverse local problems require local solutions based on local know-how. The current topdown,
one-size-fits-all land management by the feds has proven itself incapable of problem-solving at the forest
level. Removal of selected lands from federal oversight and transferal to local autonomous authority, similar to
state trust lands, would seem to be the most direct and efficient way – perhaps the only way – to secure reliable,
adequate funding and cut through the tangle of shifting, restrictive, and often conflicting laws, regulations,
executive orders, litigation, and judicial mandates that make federal management a hopeless cause.

Here is an in-depth look at this option, from Mac.

Jay O’Laughlin has also published some papers on trusts as a solution to some federal lands problems. Here is avery thorough one with charts and tables, and here is his testimony from a hearing in March. rough and one and here is his testimony at a Congressional hearing in March.

I’m interested in 1) what you think of the trust idea in general, and 2) whether you think a pilot might be feasible as a test case (or adaptive management). Perhaps O&C lands? Or somewhere else? Why would that area be good for a pilot?
3) What have we learned about trusts through the Valles Caldera trust experiment?
I was just reading about how:
from the Sierra Club

The Sierra Club, Caldera Action, National Parks Conservation Association, New Mexico Wildlife Federation, Coalition of NPS Retirees, Audubon and others have been pushing to replace the current experimental trust management with the National Park Service since around 2007.

Many people feel Valles Caldera is a National Park-quality place and it could be well protected and a tremendous economic asset to Northern New Mexico when the National Park Service assumes management of the land as a preserve.

Maybe any place placed into trust would be a “non-National Park quality” place? But I wonder if to the NPCA,to the retirees, and to the Sierra Club everyplace is “National Park quality” either now, or once current users are removed.

The grazing language now reads that the National Park Service “shall” permit livestock grazing but the NPS will have full discretion about where cows can be, when, and how many.

So to a pilot, we would have to find a place that most folks would say is not “National Park Quality”. Perhaps lots of timbered country, no pretty canyons, lots of existing roads. In a state with existing land trusts. Perhaps Northern Washington or Idaho?

CREATE: What Should Congress Do? I.Harmonize BLM and FS Appeals

When I worked for the Forest Service, I worked on many coal and oil and gas projects. If a Forest Service fuels reduction project appeals and litigation seems incredibly complex, think about coal or oil and gas, in which BLM and the Forest Service have different pieces, different appeal processes and different lawyers all for the same project. Of course other federal agencies are involved; OSM for coal, and the relevant regulatory agencies, and for each NEPA document EPA has to review it and give their opinion (of the NEPA). So there’s lots of opportunities for interagency intrigue and drama.

I was always curious about using IBLA (the Interior Board of Land Appeals) and how that works compared to the Forest Service appeals process. It seems like that group (IBLA) would develop expertise and perhaps lead to fewer projects ultimately going to litigation, because judges are involved (hey, it’s just a hypothesis).

Note: for the projects I was involved with, future plaintiffs had these projects in their sights for litigation from day 1, and it was only a case of bullet- proofing the documentation, because certain groups are strongly philosophically opposed. So perhaps in that situation, the different appeals processes don’t matter except for giving folks many, many more (federally funded) bites at the same apple because there are separate processes.

I’m hoping someone on the blog (or ask your colleagues) has some comparative experience between IBLA and FS processes in terms of CREATE (conflict resolution effectiveness, accountability and transparency)?

I found this writeup “Administrative Appeals in the Bureau of Land Management and the Forest Servicein 2012” by the Congressional Research Service.. it’s mind-boggling and seems like, though it would be a large task, cost savings and clarity to everyone could be improved if an attempt were made to somehow consolidate and streamline appeals processes. The many flowcharts themselves are enough to make your neurons implode.

The Series: CREATE: What Should Congress Do?

congress1

I’d like to start a discussion along the lines of CREATE (as you may or may not recall, “Conflict Resolution Effectiveness, Accountability and Transparency Enhancement”) for Forest Service projects and plans. Here and here are some previous posts.

We have some bills that are place-based. But the problem with these, to some, is that areas to be preserved are preserved, while areas agreed to be open to timber harvesting (these are where there is current timber industry) will still be open to exactly the same “Random Project Rejection by Groups with Lawyers” that they are today (and so clearly in the Colt Summit project). Doesn’t seem like a very good deal.

Then there are the O&C lands. Much is going on, but not sure how applicable all of it is to anywhere else. (People who know can chime in). Then there are trusts. For this series, I would like to focus on other ideas..and generate a great many different and possibly new ideas.

Everyone is welcome to post their own ideas, but for organization, if you have a new idea, submit it to me and I will post as a post. That way each idea will have its own string of comments. Make sense?

Let me know if you have questions.

Chuck Roady on Budget Cuts

Gil suggested posting this...

I don’t believe that people litigate for the money. I think they believe that they are doing good. However, it does seem that some people’s opinions count more than others and there are issues of justice involved in who has access to these decisions, as we’ve pointed out on this blog before.

My curiosity was aroused by his figure of $350 million for NEPA and where it comes from. As Fred Norbury used to say, how can we say NEPA takes too long and costs too much if we don’t track how long it takes or how much it costs? And I don’t think we actually know. Further, I have opinions (and I’m sure you do) about some NEPA investments being worth more than others. For example the latest Colt Summit redo required by the courts has 0 value. Whereas the GMUG and White River oil and gas leasing decision has substantial value. In my opinion. How about you?

I agree with Chuck, and so does the GAO report, that something is different in region 1 and in Montana, at least compared to Wyoming and Colorado. And if I had to give any impressions from the last couple of years of observations on projects in Montana, I would have to say it has to do with specific groups, such as Garrity’s, who do business there. I also agree with Chuck that it is not a partisan issue..

“Paid Gladiators” or Unpaid Peacemakers:There Must Be a Better Way

gladiator

OR

quilt-club

But, the fighting goes on and accelerates infrequency and intensity. The people, our sense of community, and the forest are bruised and battered in the process. The gladiators never tire of the fight – it is what they do. The fight itself provides their sustenance. I detect, however, that many concerned about forests we collectively own have long since approached exhaustion.

That may be good news, for with exhaustion, there may come a willingness to seek an answer to the statement made earlier, “There must be a better way.”

That better way can be built on new knowledge and past experiences and on changes in personal and societal concepts. And, that better way can be embraced because the old way has led us to a place where we cannot stand for long.

Shakespeare said (Julius Caesar, Act 1, Scene 2) “…the fault, dear Brutus, is not in our stars, but in ourselves…”

If the fault lies within us, the solution also resides in us as well.

Jack Ward Thomas, (1992, in Forest Management Approaches on the the Public’s Lands: Turmoil and Transition) here.

I was reflecting on Dr. Martin Luther King and what he might think of our natural resource situation. I was also thinking of the dangers of partisanizing these issues and what happens when we consider people with different views “the other”; not to be spoken to, but to have their moral character questioned. I hope in some small way this blog helps have a safe discussion about some of these issues.

At the same time, I was speaking to an associate who was going to DC this week. I asked him about the objections rule and where it was. He said to me something along the lines of “why don’t you write your elected officials and ask them to ask the Chief where it is?”

This was a bit of a shock to me. After 32 years of federal service, including a year working for Congresswoman Carrie Meek of Florida, I realized that I had adapted to my role in the understory of policy. Now I had been released (to put it into silvicultural parlance, as this definition here) but was I responding to the freedom and the nutrients and light? Not really.

From my time with Congresswoman Meek, I remember how seriously constituents were taken. So I went on the web and wrote two notes to my two senators, basically asking where the objections rule is (given that Congress asked for it in the Approps Bill last year). It probably took me all of 15 minutes to write it. I made the discovery that one of my senators has a category for natural resources/public lands and the other did not, I had to file it under “environment”..which I found interesting (I am saving my Representative for working with OPM should I run into problems with my annuity, so that’s why I didn’t contact his office).

What my associate opened my eyes to is that I don’t need to have or be an organization, I just need to be an active constituent. When I worked with the Forest Service, I often had to answer questions posed by various Congressional staffs either at the behest of industries (ski or energy, generally) or environmental NGO’s. But this is open to regular people as well. And groups of regular people with ideas. I don’t think we’ve had as much of that as we could, and if we depend on our elected officials to reach across the aisle, well, let’s just say that we might not have the desired results as expeditiously as we might otherwise. That, to me, would be the power of local collaborative groups, but also the power of each one of us.

“Unpaid peacemakers” arise! And through kindness and understanding, let us make beat the swords into some riparian remediation implement.

The Saga of Colt Summit Continues: Opportunity for Direct Action?

colt-summit-table

Just when you think it might be done, because it went to court and the judge told the FS to analyze more and the FS did…

Maybe it’s time for some of the direct action proposed earlier on this blog. Here’s a link to the members of the Western Environmental Law Center Board of Directors. If I were one of the collaborators on the project, or any knowledgeable person in the area who supports the project (especially those with environmental street cred), I might organize with my collaborators to call them up, and invite each one to talk about your opinion of what action they should pursue, or maybe take a tour with the FS and the collaborators of the project area, plus some nearby areas that have had similar treatments to get an idea of what the completed project would look like.

My personal curiosity is why of all the possible environmental problems in the world, including in the interior West, they chose to spend energy, their funds, and your tax dollars litigating 597 acres of commercial thinning and underburning near Seeley Lake, Montana. Well, maybe based on the yarding acres there will be 706 acres commercially treated.. still..

As we’ve discussed on this blog, there are fuel treatment projects everywhere in the West (and south). Why of all of them… this one? Is it some kind of Montana thing? But who is from Montana? Doesn’t look like any of the board members.

Also, the news stories keep calling it a 2,038 acre “logging project” which is a bit of a summary.. but I don’t think the broadest category of “logging” would include “understory slashing and prescribed fire”. So is it really accurate to call it a 2,038 acre “logging project” or more accurate to call it a 2,038 acre fuels reduction project with 706 acres of logging? (People who work on this project: ifyou read this blog could you please send me the correct number of “logged” acres?) Note that the acres that would be logged were reduced by over 50% based on public comment.

Here’s the link and below is an excerpt.

MISSOULA — The U.S. Forest Service says it has successfully answered a federal judge’s legal questions involving a 2,038-acre proposed logging project in the Lolo National Forest about 10 miles north of Seeley Lake.

Lolo National Forest Supervisor Debbie Austin last week wrote there was no need for additional information about the Colt Summit Project proposed in 2011. The decision opens the way for work to start this summer.

“I have found no reason to further supplement, correct or revise my March 25, 2011, decision,” she said.

Four conservation groups — Friends of the Wild Swan, the Alliance for the Wild Rockies, Montana Ecosystems Defense Council and Native Ecosystems Council — sued in September 2011 to stop the project, saying it would harm lynx, bear and trout habitat.

U.S. District Judge Donald Molloy last June knocked down most of the plaintiffs’ claims and said the Forest Service properly studied the project’s effects on lynx and grizzly bears. The exception was the claim that the Colt Summit Project analysis violated the National Environmental Policy Act by not studying the cumulative effects of the project on lynx, a threatened species. The judge sent that portion of the proposal back to the Forest Service for further consideration.

Austin in August submitted a supplemental environmental assessment for public review and comments to address those concerns about lynx, which she said clears the way for the project to continue.

Western Environmental Law Center attorney Matt Bishop, who represented the environmental groups, said he was disappointed Austin didn’t issue a new environmental assessment but chose to reaffirm the old one. He said he needed time to review Austin’s decision before the conservation groups could consider their next move.

Idaho Roadless Upheld by Appeals Court, Plus An Idea For CREATE

Thanks to Terry Seyden for this one.. Here’s the link.

First congratulations to all those folks who worked on the Idaho Rule throughout the state, the Forest Service folks, and OGC and DOJ for all their assistance. I met some of the folks who worked on the Rule at various RACNAC meetings and other roadless geekfests and they were extremely dedicated to an excellent public process, persevering and knowledgeable. And thanks to the RACNAC members as well. And for that matter, Mark Rey, who thought up the “State plus national advisory committee” model.

A three-judge panel of the Ninth Circuit Court of Appeals ruled unanimously to uphold Idaho’s national forest roadless rule.

The panel, which included Idaho Senior Appeals Judge Stephen Trott, denied the appeal by the Wilderness Society, the Greater Yellowstone Coalition and other environmental groups of the decision in 2011 of U.S. District Judge B. Lynn Winmill upholding the rule.

“After scouring both the administrative and district court records in this case, we conclude that the district court’s grant of summary judgment to the defendants was warranted,” the panel said in its decision. “The inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error.”

The rule, negotiated by Jim Risch when he was governor, set up a unique system to protect nearly 9 million acres of roadless land in Idaho. The Idaho Conservation League and Trout Unlimited filed briefs in support of the Idaho rule, splitting with their environmental partners.

The rule is separate from the 2001 roadless rule that has been upheld by two appeals courts and the
Supreme Court by its decision not to hear the case.

Note from Sharon: After I read the stories of the Idahoans traveling to the appeals court (in this previous blog discussion), I was thinking that this might be a good project for accountability in litigation and direct action by other concerned individuals, as per some of the ideas in CREATE (previous post here).

This formed a mental image that might be worthy of a photo..

The federal courtroom in Portland was packed. A dozen people made the trip from Idaho to sit in silent support of the state’s roadless rule, including former Idaho governor Jim Risch and the chair of the Kootenai tribe.

Attorney Julie Weis represents the tribe. She says the rule is a good compromise, hashed out between environmental groups and mining interests. And it hasn’t led to more roads in Idaho’s national forests.

Given that some organizations made the decision to invest in a court appeal, I thought perhaps if I lived in Idaho and was involved with the rule development, I would try this. I would get a group together to email or write a letter to each member of the Board of Directors, include the above photo, and tell them that I was willing to meet with them anytime anyplace to talk to them about why they were choosing to appeal this decision. What did they think about the Idaho Rule, and why did they think it was worth the investment to appeal? Then folks who had worked on it and knew about it (and the 2001, and the differences) could engage them in a meaningful discussion.

If they did not answer the emails or letters to talk, then that would be another story. From my board memberships, I take the role of the board in providing direction very seriously. It seems to me that communicating directly (people who know about the project or rule) with board members (people who are deciding whether to invest in litigation) would be a useful and educational exercise. We often talk about accountability of federal agencies (not that they are paragons ;)), but shouldn’t we all be accountable to the people affected (that is, all taxpayers, in this case, as well as Idahoans) for our actions?

This direct action is probably not OK for federal employees to do, but I would think that concerned citizens (involved in collaborative groups?) certainly could do so. The results of these discussions could be reported back through this blog or in the press.

Now there is one easy fix that will help this process. The board members, as part of their fiduciary oversight, know how much their appeal cost their organization, but do not know how much it cost the taxpayer. That is why IMHO it is important for the FS, OGC, and DOJ to accurately track costs of litigation. How can anyone decide whether and how much to spend when they have no idea of the costs?

When To Do an EIS for a Regulation?

EIS’s for regulations can be expensive. Yet it seems like sometimes it’s useful. A concerned citizen might ask, “is there some interagency (say CEQ) guideline as when to do such an investment?” or “is it an artifact of case law and different for each kind of action by each kind of agency?” Sort of a patchwork quilt of court rulings?

My instinct based on common sense would go something like, roadless regulations might make sense to do because there is something that can be projected and analyzed (well, more or less, guessed at, what you might have done, but now won’t do). Planning regulation not so much. Yet the Forest Service spend megabucks analyzing the 2008 and 2012 planning rules. Meanwhile, the EPA “forest” roads regulation has no EIS.

It appears to me that the Planning Rule, is an outlier then. My memory is fading for some of these things, but I think the FS was required to do one as an outcome of a court case. I did find this letter under scoping comments for an EIS for the 2005 Rule, which said it was Citizens for Better Forestry et al. v. USDA.

Can you think of other examples? What would be your “common sense” approach?