Month: November 2010

Notes from the Battlefield: Is There a Better Way?

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This post is the beginning of a series on the possibility of turning our public land conflict “swords” into “plowshares.” Outside our natural resource and public lands world, this is generally considered to be a good thing to do. Even though we shed only dollars, piles of documents and snarky words, not blood; we must consider whether our conflict resolution methodologies are optimal- and whether the time and funding we spend fighting could be better spent on the pursuit of “good things” that we can all agree on.

So I would argue that at some spatial scale, we need to establish zones of agreement and a shared vision for our public lands. Right now it is a hodgepodge of seemingly random statutes, regulations and case law done over the past 50 years. It’s easy to blame the Forest Service for this jungle, but we simply make our living looking evading pits and predators and are not responsible for its creation. Getting together with a shared vision seems to happen at the local scale, but at larger scales, not so much. I would be interested in examples that you can share, particularly in larger scale examples.

On the other hand, many people think that appeals and litigation is not the best way of resolving disputes. I think we need to take a clear-eyed look at taking our disputes to court and consider the advantages and disadvantages, as well as creatively look at options for how both conflict resolution, and the use of courts, could be improved.

So let me start with some fundamentals with regard to my opinions on this subject.
First, I like many lawyers, including environmental lawyers, and even personally contribute regularly to an environmental law organization (CIEL). And I think some litigation is necessary, but it is not always the best, nor the most cost-effective, tool for a specific policy making, and/or conflict resolution task. In later posts, I will describe some real-world examples.

Second, nothing humans do is perfect, and Forest Service projects are no exception to that rule. The reasons for this are not always clear; some combination of line officer “discretion” and inertia seem to be factors. Far more common is the project that some like and some don’t like. And what can happen is that it isn’t judged on what it does, but on how it has been documented. Which can, if we are not careful, slowly move our mutual focus from project design to documentation.

Third, as Fred Norbury used to say “appeals and litigation are the Forest Service approach to quality control.” He didn’t mean that that was a desirable approach, just one that had developed and would be difficult to de-entrench. We have jointly built an interdependent, coevolved system with the litigation community (or “frequent filers”, as they are known colloquially). It would require internal as well as external change to reduce the joint burden and expense of this legal-industrial complex.

Fourth, I think that respectfully questioning others can contribute to both sides honing our ideas and thinking, and to being both clearer about, and better at, what we do. For example, although I sometimes disagree with Andy Stahl, I still listen to what he says because he brings a valuable perspective, in my opinion.

We face a great many challenges to public lands in the 21st century and in my opinion, if we improve the way people with different worldviews work together and resolve conflicts in facing those challenges, we will have resilient public lands and be a resilient community in jointly facing a variety of future environmental and economic challenges.

Giving Thanks for Burned Forests

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photo by Matthew Koehler

Giving Thanks for Burned Forests
By Matthew Koehler

The first time I walked through this piece of the Lolo National Forest, smoke was still rising from the deep duff layer of the old-growth spruce-fir forest. It was a crisp, blue-bird October day seven years ago and I was leading a team of University of Montana students on a monitoring trip to get a first-hand lesson in fire ecology.

It was the height the Bush Administration’s effort to pass the so-called Healthy Forest Initiative and roll-back many of our nation’s landmark environmental laws, all of which seems like a long-forgotten bad dream.

The original intent of our monitoring trip on that October day in 2003 was to document fire behavior in the heavily logged and roaded lands of Plum Creek Timber Company compared to adjacent unlogged wildlands on the Lolo National Forest.

That distinction became quite clear as our team biked six miles – and 2,500 vertical feet – up the watershed and were afforded ever-expanding views of the cut-over Plum Creek land. It was quickly evident why crews fighting this fire dubbed the Plum Creek lands “the black desert.” For miles and miles all the eye could see were cut-over lands burnt to a crisp and a network of newly exposed logging roads.

The stark scene before us certainly didn’t conjure up the image of “leaders in environmental forestry,” which the timber company’s sign at the bottom of the watershed proudly proclaimed.

Exhausted, yet relieved to be beyond the reach of industrial forest management, we arrived at a remote trailhead and began walking down a trial that passed through a beautiful unlogged forest and eventually an officially designated Wilderness area. Our noses were overcome with the unique aroma of the recently burnt forest as we took in the mosaic patterns of wildfire across the landscape. A few trees torched over hereŠa light ground fire thereŠa hillside with jet-black snags from a high intensity fire directly adjacent to a ravine that was completely untouched.

These are the mysterious – even enchanting – patterns of low, moderate and high-intensity fires I have come to know and appreciate during my many subsequent trips to recently burned and recovering post-fire landscapes throughout the northern Rockies.

While it seems like some people want us to think that all modern wildfires are bad those of us who actually get out on the ground know a simple truth: our forests and wildlife evolved with fire, including “catastrophic” fire, and burnt forests are not the lifeless, unhealthy landscapes that some would like us to believe.

A few summer’s ago Dr. Richard Hutto, director of the Avian Science Center at the University of Montana, put it quite nicely when he wrote, “It’s important for the public and policymakers to recognize the important role that severely burned forests play in maintaining wildlife populations and healthy forests. Severely burned forests are neither ‘destroyed’ nor ‘lifeless.’ From my perspective as an ecologist, I have become aware of one of nature’s best-kept secrets -there are some plant and animal species that one is hard-pressed to see anywhere outside a severely burned forest.”
Indeed, at least 60 species of birds and mammals use burned forests because they provide the ideal habitat. While the logging industry might call burned forests “destroyed,” many critters call these same forests home.

So, imagine my surprise, when a few months after our monitoring trip, I received notice of the Lolo’s first “Healthy Forest” logging project. You guessed it! The plan was to cut down that same old-growth forest, which burned in such a beautiful mosaic. Apparently out of all the areas on the Lolo National Forest, logging along a popular hiking trail directly adjacent to a designed Wilderness Area was, quite literally, the top priority.

At the time, Mark Rey ¬- the former logging lobbyist who has run the Forest Service for the Bush Administration – scoffed at the notion that anyone would dare question his post-fire logging plans. In a quote I will never forget, Rey referred to these recently burned forests as “moonscapes,” telling a local paper that if we forest activists were successful “those moonscapes will stand as a monument to that idiocy.”

Well, we forest activists were successful. Our success came not from an official appeal or a lawsuit, but from good old fashioned public pressure. Once the spring snows cleared, we organized a field trip to the proposed logging site with Lolo National Forest officials and invited the public and the local media. You got the sense that as our caravan finally came to rest far up in the mountains – fifteen miles from the nearest home – that the forest supervisor knew this wasn’t an appropriate place for one of the first “healthy forest” logging projects. A few weeks later the supervisor called and told me she was canceling the timber sale.

Now-a-days, when I come back to this corner of the Lolo National Forest it’s with a rifle slung across my shoulder. Briskly walking up the same hiking trail in the cool, pre-dawn darkness – my headlight catching the steam from my quickening breath – I’m searching for elk, one of the many creatures who rely on recovering post-fire landscapes for food, shelter and security.

Seven years have passed since the wildfire burned across this landscape and as the sun slowly rises signs of a healthy, recovering ecosystem are everywhere: fir and lodgepole seedlings almost hip high; lightly charred bark of massive, fire-resident larch; the prehistoric call of the pileated woodpecker; the eerie bugle of a bull elk just over the ridge.

These are the healthy, recovering burnt forests that the logging industry lobbyists don’t want you to know about, because contained in these forests is a truth that belies their “moonscape” rhetoric.

As a childhood friend from Wisconsin and I finish quartering a cow elk, which was grazing on grasses and forbs rejuvenated by the wildfire, he turns to me and says, “These forests are pretty spectacular. They’re nothing like I would have expected listening to way some people talk so negatively about wildfire. Thanks for sharing this amazing experience with me.”

Our legs nearly buckle as we load close to 300 pounds of elk on our backs and struggle through the backcountry and eventually to the hiking trail through the old-growth spruce-fir forest, still standing as silent, yet powerful, monuments to a higher truth and the healing powers of nature.

This holiday season, as we gather with friends and family to enjoy the bountiful harvest from our garden and local farmers and count our many blessings, the menu will again include elk and morel mushroom stuffing. And once again as we go around the circle and say what we are thankful for, I’ll find myself giving thanks for wildfire and the wonders of our beautiful, burned forests.

House Members Weigh In On Treatment of Recreation in Planning Rule

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Is Forest Service planning becoming so complex that analysis paralysis is causing delays in decisions affecting outdoor recreation?  The importance of recreation and public access in National Forests continues to draw attention as the Forest Service attempts to move a proposed forest planning rule through the government clearance process.  Earlier this week, the planning team announced a delay in the release of a draft rule.  Throughout the rule development process, recreation interests have complained about apparent biases in draft planning material toward other multiple uses.   In some ways, the planning rule writing team hadn’t anticipated this response by initially failing to include outdoor recreation as an issue to be addressed during initial scoping.

Now Congress is entering the discussion.  In a letter sent to the Forest Service Chief last Thursday, 41 House members asked that a new planning rule “not impose new burdensome regulations or create new obstacles that could ultimately reduce recreational opportunities on these lands”.  The House members are led by Kevin McCarthy of California and Rob Bishop of Utah.  Most of the 41 are Republicans such as Denny Rehberg of Montana, mentioned earlier on this blog, but also include some Democrats like Dan Boren of Oklahoma.

The letter echoes earlier concerns about the vague generalities about ecological concepts on the planning rule website, and relates to discussions earlier on this blog about encumbering an already broken planning process.  “These are broad concepts and difficult to define.  Because stakeholders may be unable to agree on definitions, this could hamper individual forest supervisors’ ability to develop land management plans that include robust and diverse access and recreation provisions.  Other terms such as ‘ecosystem services’ and ‘stressors’ throughout the other concept drafts are also not adequately defined, which could overwhelm local land managers with the need to do exhaustive research, making the already lengthy and complicated planning process more complex and time consuming – and this impacts not just recreation proposals.  These inadequately defined terms could lead to endless litigation of the rule itself or individual USFS land management plans.  In essence, we could have analysis paralysis that denies the public access and the ability to recreate in their national forests.”

Generally, Forest Plans in the past have assumed that lands are suitable for any activity unless expressely listed as “not suitable.”  The Forest Service has also assumed that Forest Plans are generally aspirational and goal oriented and not immediately enforceable until additional site-specific NEPA documentation is completed and a travel order is issued.  However, a sixth circuit decision about the Huron-Manistee Forest Plan may indicate that courts may be changing this view, and that Forest Plans can and should restrict activities such as snowmobiling and hunting.

Forest planning under the Multiple-Use concept has never been easy, and the recreation debate is perhaps the new issue of the day.  As Martin Nie said on his earlier post on this blog: ”and so here we are, closing in on 2011, and we continue to ask about the purpose of planning, the adequacy of NFMA, and the meaning and future of multiple use.”

Rep. Rehberg of Montana on Planning Rule and Recreation

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Here’s an article in the Clark Fork Chronicle.

Here’s a quote

Rep. Denny Rehberg (R-MT) is demanding the U.S. Forest Service (USFS) protect recreation and access in national forests when drafting National Forest System land management planning rules. The letter is in response to concerns being raised in Montana and elsewhere that current draft planning concepts are ambiguous and leave critical decisions to unelected bureaucrats.

“We’ve seen time and time again that when a regulation is vague, unelected bureaucrats tend to abuse the wiggle room to the detriment of the people of Montana,” said Rehberg, a member of the Congressional Western Caucus and the Congressional Sportsmen’s Caucus. “It takes more work to get it right the first time, but in the long run, it saves money and leads to better policy.”

The USFS is in the process of developing a new national planning rule, which will be used to guide local officials with developing individual forest management plans. Draft concepts, which will ultimately be used to develop the rule, have been posted on the agency’s website.

Unfortunately, these drafts include vague and ambiguous terms that could lead to reduced recreational opportunities on forest lands and endless litigation. For example, the Draft Recreation Approach (DRA) specifies that recreation must be “environmentally and fiscally sustainable”, but fails to define what that means. Because stakeholders may be unable to agree on definitions, this could hamper individual forest supervisors’ ability to develop land management plans that include robust and diverse access and recreation provisions.

The complete letter from Rehberg to Chief Tidwell is reprinted in the article.

Draft Forest Service Planning Rule Delayed

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

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

Wanted: Forest Advisory Board

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this photo is of the Black Hills Forest Advisory Board

In this Arizona Daily Sun editorial piece some interesting points are raised about the advantages of an advisory board or group including:

TOP-DOWN AFFAIR

But the visioning process for the forest remains a very top-down, internal affair, just the opposite of what the 2009 conferees envisioned. Forest planners develop maps and draft statements that are presented for comment at irregular open houses, revisions are made, and more comments are solicited. At no time are planners taking their work before a representative standing body of stakeholders, then doing the heavy-lifting needed to achieve consensus in such a diverse group.

Granted, they are under no legal obligation to do the latter. And it’s not their fault that the 2009 conferees have lost the momentum of 21 months ago behind a regional commission.

But consulting on an ad hoc basis with various user groups is simply not going to generate broad-based buy-in to a vision for sustainable ecological, social and economic conditions in the forest, much less for specific plans for off-road travel, Red Rock fees, campfire bans or snowplay. It’s no wonder the Coconino seems to lurch from one public controversy to another — officials have not worked to develop a grassroots consensus on the forest’s mission that would give them cover behind a united community front when the inevitable disagreements arise over specific policies and programs.

I think it’s interesting that both this proposed group and the existing Black Hills Advisory Board, which we have discussed before here, are not just about planning. It’s about the management of the forest- the whole enchilada- for which there seems to be a need.

21st Century Problems- Overuse and Abuse

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Here’s a great description of some of the 21st century challenges facing federal forest land management. An interesting quote:

According to a survey, a large number of visitors also included low-income, low-education, often minority visitors looking for a free swimming hole and an escape from the Valley’s swelter. The Forest Service consultant said few of these visitors have attended the hearings on use of the creek.

Also in this piece is a quote

Fossil Creek: first lay the foundation

Let’s say you want to build the most beautiful house in the world. You’ve got a great piece of land, with a killer view. You’ve got a design. And you’ve got a bunch of relatives who want to spend the night. Quick: Let’s build it. No time for nagging details — like pouring the foundation. Just nail together the walls.

Hopefully, that’s not the approach the Forest Service will take to protecting Fossil Creek, a national treasure. About 50 people from this community showed up at a long hearing in Payson to offer suggestions, as the Forest Service weighs the future of that resurrected creek.

There was a wide range of heartfelt ideas — from shutting down the road to building campgrounds and an interpretative center. So how do you decide? How do you deal with the often-conflicting needs of the people who want to visit the creek? How do you tell the difference between the foundation and a picture window?

We think the Forest Service should bolt its plan for Fossil Creek to the foundation of a healthy, diverse ecosystem, which can serve as a refuge for a host of endangered and threatened species.

Fossil Creek has the makings of a national park or a wildlife refuge. The gush of water tinted blue green with dissolved limestone has created a string of pools and natural dams just two hours from the fifth largest city in the country.

I wonder why it is that people feel beautiful areas should become national parks or wildlife refuges. What is it that they know how to do that the Forest Service doesn’t know how to do? What are those preferred management actions that make it OK to charge if it is managed by the National Park Service but not the Forest Service? All public lands BLM, FS, FWS and Park Service will be confronting the same challenges if they are close to growing communities. Should the Feds attempt to harmonize how we deal with those issues?

Forest Service Leadership Sinks Morale

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Forest Service Chief Tidwell responded this week to the agency’s “morale focus groups,” which convened in response to the Forest Service’s basement-dwelling rankings as a good federal agency workplace. In the survey, employees ranked Forest Service leadership 217th out of 223 federal agencies. Tidwell’s response? He appointed a new director for the Office of Communications “tasked to work on the effectiveness of our internal communication,” among other actions that also include a “major commitment to improving safety.” Tidwell thinks the troops have low morale because they just aren’t getting his messages and working unsafely to boot.

The good news this week is that Associate Chief Hank Kashdan is retiring. Kashdan played a key role in centralizing the Forest Service personnel functions in a new Albuquerque Service (sic) Center. This supposed cost-savings measure, for which there is no evidence of saved dollars, fouled-up hiring, payroll, travel, and other day-to-day chores that should be seamless in any well-run organization. Kashdan’s departure is a welcome start, but the exodus shouldn’t stop with him. That low-leadership ranking was also well-earned by Chief Financial Officer Donna Carmical who retaliated against Forest Service auditor Jeffrey Park after he blew the whistle on former CFO Jesse King’s travel embezzlement scheme. Former Chief Gail Kimbell earned the first-ever directed reassignment for a Chief when she recommended King for a performance raise even while he was being investigated for his malfeasance.

The housecleaning should also sweep up Chief of Staff Tim DeCoster who “reviewed and approved” Jesse King’s fraudulent travel vouchers. In addition to looking the other way as King fleeced the government, DeCoster’s position as Chief of Staff makes him the top day-to-day agency manager; a position he has held throughout the Forest Service’s steep descent to the bottom of the government’s morale rankings.

This better-off-without list wouldn’t be complete without the head guy himself, Tom Tidwell. Tidwell’s biggest failing is that he hasn’t done the housecleaning at the top that is needed to restore leadership as meaning something other than perks for the top dogs. Tidwell’s resignation would be the biggest boost to agency morale he has to offer.