The recent ruling on the Southern California plans may well increase the weight of local governments at the table for forest planning, if Fred Kelly Grant’s logic here is correct.
The Court found that the only element of the coordination process not followed by the Forest Service was a requirement that it discuss the California policy as to “roadless areas” in order to demonstrate the inconsistencies between the Forest Service proposed plan and the California policy:
“Even if the Forest Service’s review of California’s policy was impeded by California’s failure to fully engage in the planning process, the rule nevertheless required the Forest Service to display the results of its review, however impeded. . . .The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process….”“The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”
The Court ordered the parties to file briefs describing their views of what process should be followed in compliance with her decision. December 22, 2010, the California Attorney General, and Governor elect, Edmund G. Brown Jr. announced a settlement through which the Forest Service is required to “reconsider its plans regarding wilderness lands in four national forests.”
Brown said: “With this settlement, the state of California will now play an active role along with the Forest Service in determining which areas of Southern California forests will be preserved as wilderness.”
According to Brown’s news release, the state’s basic complaint, in addition to failure to coordinate, was that the Forest Service was planning to allow new roads and trails for off-road vehicles and other uses. California opposed the new road and trail openings. The Court did not rule against the Forest Service on any issue except the failure to coordinate.
Even though local governments did not involve themselves in the lawsuit, each county in which any of the affected forest lands are located would have been entitled to the same result. The laws that require coordination with the state require the same with local governments—cities, towns, counties and special taxing districts. If any local government has an interest in the roadless nature of the Los Padres, Angeles, Cleveland and San Bernardino national forests, it must act quickly in asserting its coordination rights.
You can find the actual decision here.
What I found fascinating in my concrete-thinking way, is the quote from the decision:
“The results of the Forest Service’s review of state input should have been displayed in the FEIS, even if part of the discussion would have consisted of noting that the State had not fully engaged in the process established by the 2005 State Petitions Rule, the lawful process at the time.The failure to provide any discussion of input from the State, or at least of the State’s failure to fully engage in the planning process, was a violation of the NFMA. This is more than a merely technical violation, as it significantly inhibits the public’s ability to understand the competing priorities of the Forest Service and the State.”
A couple of points.
1. So if the FEIS had simply noted that “the State had not engaged in the process”; perhaps maximally one paragraph, would have obviated years of litigation and the settlement – which seems to be more analysis and collaboration with a relatively restricted number of seats at the table? Perhaps another settlement would have been to reissue the FEIS with the new paragraph as a revised DEIS and go for more public comment. Or even establish a FACA committee (including representatives of local governments) to review the comments on the new RDEIS and provide recommendations.
2. This case law around the coordination process definitely makes for more review and analysis, but at the end of the day, after documenting many alternatives and much more analysis, if local and state governments and feds still disagree about what to do, we still have a problem. It seems to be a pattern that we substitute more analysis for conflict resolution. Or we move the conflict resolution to the court system, where seats at the table are restricted.
3. Here’s a couple of ideas- First, in settlement agreements, only procedural solutions should be allowed for procedural problems. It is tempting to resolve these issues substantively, but that tends to leave out the groups that participated in the public collaborative process from the substantive discussion.
Second, I still think FACA committees where states and local governments have a place at the table, as well as others, are a way to build agreements and understandings that will stick.
4. Finally, the involvement of the State of California and the coordination element reminded me of this quote from Martin’s interview with Mark Rey here.
So when we came in, we looked at that history and we concluded that the crux of the problem with this issue is that it’s—on the one hand—an intensely political debate because it’s a basic resource allocation question over resources that people feel very strongly about. On the other hand, it’s a very technical debate because you’re trying to decide the fate of individual areas, putting boundaries around them that are based upon site specific data and so therefore you have to be able to amass and work with a substantial database to make good decisions.
In the case of trying to do a nationwide rule, you know you can get all the political closure you want to finally end the debate. You can have the president of the United States stand on the side of a ridge in southern Virginia and announce the outcome, but as the courts have told us, it’s hard to do justice to all the technical detail that is required to make the decision sound from the standpoint of a reviewing judge.
On the other hand, if you deal with this on a forest-by-forest basis, you can—by virtue of the fact that you have a lot less data to deal with—deal with it more intelligently.
The problem is that you can’t really get political closure to the decision because the decision is going to be made by a GS-14 or a GS-15 career civil servant and everybody knows that you can take the debate on up the food chain to see if you can get a better result. So you don’t get any real closure to the issue, both because of where it’s made and also because you don’t engage national interests to the same degree that you do in a national debate.
So we thought if we tried to find a middle road or a third path by working on a state-by-state basis, we could, on the one hand, reduce the size of the decision down to a manageable level, and on the other hand engage for the purposes of bringing better political closure to this, the one person who’s arguably elected to represent all the citizens of the state and that’s the governor, and that in a partnership with the governor we could get the right balance.
Maybe many forest plans today are now “too hot to handle” in terms of the GS-14 or 15 FS employee and being able to get political closure. What’s noteworthy about the S Cal forests is that there is no timber industry, so this is definitely a post-timber wars issue.