Objections

Cherokee National Forest objects to objection

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Plaintiff environmental groups expressed concerns from the beginning of the Dinkey Project about the effects on water quality because of erosion caused by previous nearby timber projects in similar terrain.  After the Forest released the draft EA on the Project it also released a monitoring and evaluation report that revealed the erosion problems caused by the earlier projects and included recommended mitigation measures.  The EA and Decision Notice for the Dinkey Project failed to acknowledge this information and relied on mitigation measures that had failed in the earlier projects.  The complaint alleges violations of NEPA and also NFMA because the Project would be inconsistent with the forest plan requirements for soil protection and would cause irreversible resource damage.

The plaintiffs also filed an administrative objection to the Dinkey Project raising these concerns.  The Forest Service dismissed the objection, citing failure to comply with the requirements for objections as follows:

“Based on the information provided in your objection, the issues raised do not demonstrate connection to prior comments with specific violations of law, regulation, or policy. In addition, no specific proposed remedies are stated for consideration by the Reviewing Officer for resolving the objection. Therefore, the objection does not comply with 36 CFR 218.8(d)(5) and (6).”

Here are those requirements:

(5) A description of those aspects of the proposed project addressed by the objection, including specific issues related to the proposed project; if applicable, how the objector believes the environmental analysis or draft decision specifically violates law, regulation, or policy; suggested remedies that would resolve the objection; supporting reasons for the reviewing officer to consider; and

(6) A statement that demonstrates the connection between prior specific written comments on the particular proposed project or activity and the content of the objection, unless the objection concerns an issue that arose after the designated opportunity(ies) for comment (see paragraph (c) of this section).

The complaint describes how plaintiffs have met these requirements.  In my experience, it is unusual for the Forest Service to nitpick an objection like this, especially in a case where the parties have consistently described what their concerns are and what they would like the agency to do.  It’s certainly not consistent with the idea that pre-decisional objections are more collaborative than post-decisional appeals.  Is this a unique situation or is it a manifestation of Trump Administration policies to get rid of barriers to “getting the cut out” (again, “GTCOA”)?

Flathead forest plan revision nears finish line

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I’ve been looking at the second final forest plan and EIS prepared under the 2012 Planning Rule, the Flathead. I want to commend them for some of the things they’ve done.

They have done a very good job of describing desired conditions for many vegetation characteristics based on their natural range of variation. I can tell you that this is the kind of “specific” desired conditions the drafters of the Planning Rule had in mind for providing ecological integrity. They also conducted an analysis of how vegetation conditions would change over time as a result of the plan, while factoring in expected fire regimes, and they were able to use this for some of their analysis of effects on viability of wildlife species that are closely tied to vegetation. I pretty much only looked at the wildlife parts of the EIS, but I thought the terrestrial part was well organized, and included some thoughtful discussion of what plan components actually do. One of my interests is habitat connectivity, and they have given it a more serious look than most, including actually considering and identifying specific areas to be managed for connectivity.

I was looking for problems related to at-risk species, and there are some. Regarding fire, even though they don’t call the wildland-urban interface a “management area,” it is one because a lot of plan components apply differently there.

I’ve also seen how big of a job it is to review and understand something this massive within 60 days, even with only a limited focus – and I’m someone with probably as much experience at this as anyone. It helped to have followed this process off and on from the beginning, but I have some sympathy for organizations trying to promote changes at this point in the process.   (There’s much more time to prepare for forest plan litigation.)

Next up? The Inyo is on track for “this spring.”

Prescribed fire in wilderness

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The Ten Cent Community Wildfire Protection Plan led to a fuel treatment proposal on the Umatilla and Wallowa-Whitman National Forests that included prescribed burning in the North Fork John Day Wilderness Area.  Objections included alleged violations of the Wilderness Act.  The objection decision included the following description of the process and requirements to conduct prescribed burning in wilderness.

The first two conditions that must be met are that “use of prescribed fire or other fuel treatment
measures outside of wilderness is not sufficient to achieve fire management objectives within
wilderness”. FSM 2324.22. A Minimum Requirements Decision Guide (MRDG) was prepared that determined that use of prescribed fire or other fuel treatment measures outside wilderness would not be sufficient. FEIS at 404. The second condition that must be met is that “an interdisciplinary team of resource specialists has evaluated and recommended the proposed use of prescribed fire”. FSM 2324.22. The proposal was developed by a team of interdisciplinary specialists. FEIS at 3. The third condition that must be met is that “the interested public has been involved appropriately in the decision”. FSM 2324.22. The public was provided opportunity to comment on the proposed action and draft EIS. Draft ROD at 8-9. The final condition that must be met is that “Lightning-caused fires cannot be allowed to burn because they will pose serious threats to life and/or property within wilderness or to life, property, or natural resources outside of wilderness”. FSM 2324.22. The MRDG documents the current situation in which natural ignitions in wilderness are suppressed to protect life, property, or natural resources outside of wilderness, including adjacent private residences and communities. FEIS at 403. The final condition to be met is that there must be objectives, standards, and guidelines for the use of prescribed fire specific to the wilderness area in a forest plan, interim wilderness management plan, or fire management area plan. FSM 2324.22. The North Fork John Day Wilderness Action Plan specifies that vegetative changes resulting from prescribed fire would not be considered unacceptable changes in forest cover or visual/scenic quality. LRMP at B-2, FEIS at 215.

Finally, policy specifies that manager-ignited fire should not be used where lightning-caused fire can achieve wilderness fire management objectives. FSM 2324.22. The history of fire suppression in the North Fork John Day Wilderness and resulting fuel loading have led to the current situation in which lightning-caused fires are not likely to achieve the second wilderness fire management objective (“Reduce, to an acceptable level, the risks and consequences of wildfire within wilderness or escaping from wilderness.” FSM 2324.21). FEIS at 403. Currently, these risks and consequences within wilderness include the likelihood that “when a fire does occur, it will be of high severity consuming most vegetation and soil cover” and “could potentially remove cover for big game, produce an influx of sediment into anadromous fish spawning habitat, and increase water temperatures due to loss of shade” as well as limit opportunities for primitive recreation. FEIS at 215, 403, 406 and 436.

The decision was then modified to eliminate the wilderness burning, and the rationale was “once areas outside the wilderness are treated, agency administrators may select to manage natural ignitions differently (e.g. confine and contain strategy) inside the North Fork John Day Wilderness to further meet the project purpose and need and improving the naturalness component of wilderness character.”  The bottom line is that a “minimum requirements” analysis could allow intentional burning of a wilderness area without violating the Wilderness Act, but the objection process overruled those findings in this case and found that it was not necessary.  Given that suppression is allowed in wilderness areas, I don’t automatically see a problem with using prescribed fire to offset that (so I guess I’m not a wilderness purist).  (And someone might even say that logging could be good for wilderness.)

Case on forest plan wilderness recommendations

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Ten Lakes Snowmobile Club v. U. S. Forest Service

(Mentioned by Brian Hawthorne here, with links to an article and the opinion.)

This case was about the decision in the 2015 revised Kootenai and Idaho Panhandle National Forest plans to recommend (to Congress) areas for wilderness and to manage them to protect their wilderness values.  The Montana district court upheld the forests’ wilderness evaluation methodology, and their decision that effects on several wildlife species warranted prohibition of motorized and mechanized activities in the recommended wilderness areas (RWAs).  It also reiterated precedents that the Forest Service may choose to manage non-wilderness areas similar to designated wilderness.  It found that the EISs included proper no-action alternatives, and that the Kootenai properly coordinated with the Glen Lake Irrigation District (and did not have to be consistent with their “Natural Resource Plan.”)

Existing policy is that areas recommended for wilderness designation will be managed to prohibit activities that would “reduce the wilderness potential” or “compromise the wilderness values” of the area.  At issue is the role that Forest Service Region 1 policy played in the decision to exclude over-snow vehicles and mechanized use from these areas; specifically whether it improperly influenced the required site-specific analysis for each area.  Plaintiffs argued that the policy “created an inflexible prohibition of all motorized and mechanized travel in the RWAs.”  The court found this argument to be “unfounded and purely speculative,” and, “The record demonstrates that the FEIS in the Kootenai and Panhandle Forests considered site-specific impacts of motorized and mechanized vehicles.”

Plaintiffs also challenged decisions to manage areas as recommended wild and scenic rivers.  The court found that the Forest Service violated NEPA by including two creeks that had not been considered in any alternatives in the planning process prior to the final Record of Decision, which was after the public objection process.  It remanded the Kootenai plan for the narrowly defined purpose of providing an objection period for that decision for these areas.  It did not require a supplemental EIS because the area involved was 0.1% of the national forest which constituted “a minor variation that was qualitatively within the spectrum of alternatives that were discussed in the FEIS.”  It did agree with the Forest Service that the creeks meet the requirements of the Wild and Scenic Rivers Act to be considered eligible.

Owls/logging/fire debate in ongoing “collaboration” in Arizona

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This story seems to deal with some substantive and procedural questions that are popular on this blog.  Environmental groups are offering alternatives that the Forest Service doesn’t seem interested in.

Elson, the Flagstaff District Ranger, acknowledged that some parts of the FWPP plan do fly in the face of the Mexican spotted owl recovery plan’s recommendations. But overall, the plan is in the best interest of the species, he said.

“The recovery plan would say we generally don’t want to disturb the owls during breeding season, but that is the necessary price to achieve reduced wildfire risk,” which poses the greatest threat to the birds, he said.

For example, doing thinning or prescribed burning in owl habitat areas during the spring and summer months, which overlap with breeding season, will allow that work to happen two to three times faster, Elson said. And that means a reduced wildfire risk in the area will happen sooner, he said.

Why does the Forest Service get to decide that NOT following the recovery plan is in the best interest of the species – that wildfire poses the greatest threat?  How “necessary” is it really to do a treatment “faster?”  (Doesn’t that just mean that resources could instead be used to treat other areas?)

Participating, Objecting and Litigating: AWR and Some Montana Projects

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east reservoirA reader sent me this series of questions about AWR’s objections to some Montana projects:

It would appear the Alliance for the Wild Rockies isn’t participating in the formal public comment piece of the proceedings. The attached are objection responses for the East Reservoir (Kootenai) and Trapper Creek (BDNF) projects in Montana. Dated 7/17/14 and 10/17/14.

The summary is the AWR isn’t submitting specific written comments as required by 36-CFR-218, resulting in the dismissal of their objections. It would appear there is a bit of cutting and pasting from previous appeals going on.

Does this flagrant disregard for 36-CFR-218 mean the AWR loses standing to sue?

Will the USFS test this in court?

Is it just another tactic by the AWR to test it in court…and tie the project, and future projects, up in the 9th circuit?

Why can the AWR get away with not following procedural review…but the USFS can’t?

Sharon’s thoughts: When I was working for the Forest Service in a different Region, different people working in appeals and different attorneys had different ideas about what to do when appellants “didn’t get the appeal in on time” and “submitted an appeal without changing the name from the last project (or only changing the title)”. One example I remember concerned meeting the deadline. The appeals coordinator felt that “rules are rules and we need to enforce them for everyone.” But some of the OGC attorneys felt “we ought to cut them some slack because they might get mad and sue us or otherwise cause trouble.” My personal opinion is that this did not become an issue with permittees or the ski industry or whatever.. they were expected to follow the rules. It’s kind of easy to feel sorry for a shoestring operation (some of the environmental groups who did this actually were shoestring operations, but others clearly were much better off, than say, some permitees), but, on the other hand, rules are rules.

So I don’t know how this will work on these Montana projects. I just know, in my experience, there were a lot of different points of view in what was the “right thing to do.”

For those who wonder how these different points of view get resolved, in our case, we would write a letter (say denying the appeal), and the attorneys would sit in on the meeting in which we would brief the Deputy Regional Forester and give their point of view. But if OGC was going to push on it with the DRF or RF, I think the attorneys would check around among themselves to see if they shared the opinion first before deciding to push. If the DRF (the boss of me and our shop) agreed with the attorneys we would go back and do what the DRF said.

Anyway, is there anyone out there who can answer the reader’s questions with more current and relevant experience?

For those who are interested and have not worked in this area, I recommend you take a look at the links below.

Here are the links to the Regional Forester’s letters re the objections on Trapper Creek:

and East Reservoir.

Here are the responses on the two projects:

trapper creek page 2

trapper creek page 3(1)

East Reservoir page 2

East Reservoir page 3

Collaborative objections?

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This is apparently the first test of the 2012 planning rule objection process for forest plan revisions (though the plans were prepared under the 1982 rule).  On the Kootenai, there were 38 objectors and the same number of ‘interested persons’ (presumably some overlap).  On the Idaho Panhandle, 22 objectors and 94 interested persons.  Someone distilled that to these four topics for discussion and possible resolution at a meeting on each forest:  county coordination, Wild and Scenic Rivers, recommended Wilderness and wilderness study areas, and management indicator species.  Meetings with objectors are optional, but if held must be open to the public (interested persons can participate but the general public can’t).  The reviewing officer, Associate Deputy Chief Jim Pena, attended in person.  What do you think?

News Story on Objections.. Missoulian

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Thanks to Rob Chaney for writing a story on this.. there’s been a great deal of silence out there in Medialand on this. Here’s a link..

Western Environmental Law attorney and Lewis and Clark Law School professor Susan Jane Brown has served on a federal advisory board reviewing the new Forest Service rules. She said her biggest concern about the pre-decision objections was the lack of evidence they would improve anything.

“Over the years, we’ve heard a lot about ‘analysis paralysis,’ ” Brown said. “But in the scholarly research on that issue – whether administrative appeals slow down or delay or preclude forest management – there’s no support that links administrative appeals and delays in project implementation. There are many confounding factors in play, so pointing the finger at administrative appeals is hasty.”

I don’t know about scholarly research (if a tree falls in a forest and a scientist is not there to observe it, has it really fallen?), but if there is an appeal period with no appeal, the project goes to implementation. How can someone say that appeals and their resolution does not slow things down? This is not clear. Also, I know field folks that have used HFRA objections successfully and prefer them.
It seems like evidence to me. I wonder what kind of evidence Brown is looking for? If we did interviews of people on forests and published it somewhere, would that count as “evidence”? Ah.. but there is no budget particularly to do that kind of research (the People’s Research Agenda). It seems odd that a person who (if Rob was carefully quoting) dismisses something everyone can plainly see, was selected for a FACA committee on a related subject.

Craig Rawlings of the Forest Products Network said timber mill owners he’d spoken with had a different view.

“It almost forces these litigants to participate in the process,” Rawlings said. “Right now they just wait until everything is done and then file appeals. That does drag it out longer. I think the industry is very optimistic about it.”

The appeals process has been around since 1993. The objection process debuted in 2003 as part of the Healthy Forest Restoration Act, and Congress applied it to all EAs and EISs through the new Forest Rule last year as an anonymous rider on an appropriations bill, according to Brown.

The objection does not apply to what the Forest Service calls categorical exclusions, which are supposed to be small projects that don’t warrant a full NEPA analysis. It also doesn’t apply to permits for grazing, special use, access and mining. Those actions still face post-decision appeals.

I’m not sure that that’s clear about CE’s I think the Administration decided to wait for the court case to work its way through (Grandaughter of Earth Island) instead of making a point of it in the regulation.

Also, I think Rob is referring to 251 appeals (for the permittees) people can have 215, now 218 objections for those projects as well (just not the permittees).

The new rule took effect March 27. However, Forest Service officers have some leeway with existing projects whether to shift them to the pre-decision process or continue with the post-decision appeal procedure. Smith advises district rangers and forest supervisors on the issue, and has been running about 50-50 on staying with the old or adopting the new rule.

Anyone who can further help clarify, please chime in.

Objections Rule and Press Release

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Forest Service rule governing predecisional objection process published
Provides for public input prior to decision-making for many projects and activities

WASHINGTON, March 26, 2013 – The U.S. Forest Service today announced the final rule governing the objection process for projects and activities implementing land-management plans. The final rule will be published in the Federal Register on March 27.

“This rule gives the public more effective involvement, supports our collaborative processes and will result in better decision-making,” said U.S. Forest Service Chief Tom Tidwell.

The predecisional administrative review, or objection process, will be applied under federal regulation to all projects and activities that implement land-management plans and that are documented in an environmental assessment or environmental impact statement.

The Forest Service has successfully used this objection process since 2004 for hazardous-fuel reduction projects authorized under the Healthy Forests Restoration Act.

Within the Consolidated Appropriations Act of 2012, Congress directed the Forest Service to also establish a predecisional objection process for other projects in lieu of the post-decisional appeal procedures that had been in use with those projects since 1993.

The new regulations respond to the statute by creating an objection process that applies to all authorized project proposals.

This final rule follows after a review of public comments submitted in response to the publication of the proposed rule last year. The rule is effective immediately but transition provisions will apply to projects already in the planning stage.

Here’s a link to the Federal Register notice.

Now let’s watch (and compare) the media coverage!
Extra points to journalists who ask local knowledgeable people from both sides.

A couple of comments:

We might want to start an ” adopt-a-project” effort where interested parties can follow the discussions more closely, and possibly report on them (here or elsewhere) to see how the objection process is working (transparency). Since non-local people have equal value, in some people’s thinking, I’ll be adopting projects in Montana ;).

Nothing in the rule prevents interested parties from (1) participating in project planning in such a way that they are eligible to object and therefore are notified directly when an objection filing period begins; (2) requesting copies of objections from the reviewing officer; (3) asking about a schedule of any objection resolution meetings; (4) attending objection resolution meetings
and participating at the discretion of the reviewing officer; and (5) obtaining a copy of objection
responses

Another thing I found interesting was:

Response:
The Department appreciates all of the input provided on this important subject. Since the
proposed rule was published, little has changed with the judicial or legislative
environment associated with this question. The Government’s appeal to the Ninth Circuit in the
Sequoia ForestKeeper v. Tidwell case remains pending. The Forest Service continues to comply with the nationwide injunction subjecting certain CE projects from the notice, comment, and appeal provisions of the Appeal Reform Act, issued by the U.S. District Court for the Eastern District of California on March legislation regarding this question have been introduced in Congress, nothing has been enacted. Therefore, the Department is not yet prepared to make any regulatory changes through this or any other rulemaking. The public responses received in comment on the proposed rule that pertain to this
question will be retained for consideration at an appropriate time in the future.

I wonder if the comments, or a summary, are posted somewhere…?

More Info Dribbling Out From Lewiston About Objections Rule

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objection

AP story here.

My favorite part of this story was…

But critics worry the changes will force them to predict the future. Instead of filing an appeal based on a specific decision, they will have to anticipate a wide range of possible final decisions the agency might make.

“Whether you are a timber industry advocate or a strict preservationist, you are going to need to break out your crystal ball to determine what the Forest Service is going to do before they do it,” said Jonathan Oppenheimer of the Idaho Conservation League.

That has the possibility of spawning more objections and taking more time than the current system, said Gary Macfarlane of the Moscow-based Friends of the Clearwater.

“Right now appeals are done after a decision is made so both parties know what the decision is; objections and concerns can be more pointed, more boiled down,” he said. “It’s going to force people who object to do the kitchen-sink model, to throw as many concerns out there as possible.”

Those who do not participate in the public involvement and objection process won’t have standing to file lawsuits, raising the stakes and incentive for filing a broad range of objections, environmentalists say.

where Mr. Oppenheimer predicts what timber industry advocates think.

However, further down in the article, we actually hear from a real live industry advocate.

For Tom Partin, executive director of the American Forest Resource Council in Portland, Ore., the new process is welcome and long overdue. He believes the new process will compel people who oppose things like timber sales to come forward with their objections rather than holding back and saving rhetorical ammo for court.

“They have to put their dislikes in up front and try to work it out in the resolution process,” he said.

But it’s interesting that “the critics” predict future bad things, but we have actually been using objections since HFRA, so the territory is, in reality, well known or, perhaps, trammeled ;).

It’s interesting that Earthjustice attorney said about the track record (real, past, as opposed to hypothesized future) objections..

“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.”

If the press release is tomorrow and it’s coming out in the Federal Register Wednesday, we might want to review our previous posts and comments on it..

But check out Rob Chaney’s Missoulian piece from January and our discussion and links here. And here (45 comments!) is another extensive discussion we had..plus the tacky diagram above (public opp. is opportunity to give comments) that we can use to parse out some of the discussion, or at least until the news release and background material tomorrow.