Mark Squillace Reviews Draft Rule

Mark Squillace, Director of the Natural Resources Law Center at the University of Colorado in Boulder, is quick out of the gate with a review of the draft rule:

If filmed, the Squillace trailer/teaser would begin with the voice of James Earl Jones:  He sees “much to like about the new draft rules,” but notes that “there is also cause for concern.”

26 thoughts on “Mark Squillace Reviews Draft Rule”

  1. I never thought I would say this, but given the points raised by Squillace in his section on “Timber requirements based on the NFMA” perhaps maybe it’s time to abandon timber harvest on national forests that are solely for the sake of timber production. NFMA language not withstanding, if timber production was solely a by-product of management to restore and maintain desired ecological conditions, the following considerations that Squillace references would be irrelevant:

    Maximum clearcut size– make the clearcut the size that makes sense ecologically, for example, 1,000 acres might be best for Kirtland’s warbler habitat. Small patches might make more sense in the Appalachians.

    Lands not suitable for timber production– cut whatever trees need to be cut, wherever they are if that makes sense ecologically. (Including perhaps in riparian areas that need treatment– please no arbitrary buffer widths)

    Below-cost timber sales— do the management that needs to be done. Cheaper is better, but there’s no requirement for a treatment to make money.

    Sustained yield– if timber production is a byproduct, then is concept is meaningless.

    If the timber wars are really over, we need to move beyond all this stuff. Don’t get me wrong, I personally don’t object to managing portions of national forests primarily to produce timber, but lots of other people do. Furthermore, shouldn’t our first obligation be to focus on the work needed to maintain and restore healthy ecosystems “for the long run?” Most of what is going on in the southern national forests already follows this model, and those forests are producing timber more than any other region with widespread support for the approach.

    So why not make it clear– the most important mission of the Forest Service is restoration and timber harvest is one tool to accomplish that. That’s a good step towards a clearly articulated vision. Now maybe somebody could write a rule to implement it.

    • Rules don’t change agency behavior; money does. If the Forest Service is serious about abandoning “commercial” logging, then it should forego all receipts from the sale of timber; eliminate K-V and other timber trust (sic) funds and return all timber revenues to the U.S. Treasury. Stop financing so-called stewardship contracting with timber value. Separate the timber money from the forest manager. Only then can the public have any confidence that the Forest Service is cutting trees for ecological and not pecuniary (i.e., its own budget) purposes.

      • “Commercial logging”, here in my part of California, sells trees with an average diameter of 14″ dbh. That is the only type of project that sells green timber. Several of SPI’s small log mills are currently closed, waiting for more profitable conditions.

  2. I do acknowledge that KV is like certain drugs, in that it can be addictive. In fact, the lure of KV collection to “support my people” discourages some line officers from even considering stewardship contracting(which might get more accomplished.) But KV, like clearcutting and drugs is not inherently evil, it’s a tool that can be abused.

    Successful lawsuits are also fairly effective at changing agency behavior (eventually). What if the rules ensured that the public would be legitimately engaged in crafting a vision for national forest ecosystems? Then the public’s main concern would be seeing that vision implemented as efficiently and quickly as possible. If KV collection helps a forest’s budget, great. They can get more of what the public wants done. Or the Forest Service could eliminate KV and stewardship contracting and get almost nothing done with the severely constrained budgets that are likely for the next few years. With so much in need of restoration, wouldn’t that be irresponsible?

    If you tell me that this is not realistic, I’ll have to reiterate yet another Southern Region example of how this can work! But everybody is sick of hearing about those, right?

    Anyway, it doesn’t seem from the proposed rule that the Forest Service is serious yet about considering doing this. What will it take? More lawsuits, I guess.

  3. Actually, Jim, I am just tickled at hearing that people in the South are more “progressive” about forest management than the people of Missoula, Los Angeles, Eugene, Portland and Seattle.

    Sometimes, there is a fine line about abuse of K-V Funds. I worked on an insect salvage sale, and the boundaries were drawn to include plantations that had no mortality in them. I’m pretty sure they used the salvage K-V dollars to pour into the plantations. It didn’t seem “kosher” to me, at the time but, I was a lowly temporary, not willing to rock the boat.

    And, didn’t the definition of “timber sales” get changed? Only profitable projects can be called that now.

  4. Jim, you said “Lands not suitable for timber production– cut whatever trees need to be cut, wherever they are if that makes sense ecologically. (Including perhaps in riparian areas that need treatment– please no arbitrary buffer widths).”

    In many parts of the country, “timber” is cut for people’s fuels treatment purposes. not necessarily “ecological” purposes. It’s a great thing in ponderosa pine that thinning can be good for both purposes, so I think it tends to generate some confusion. When you get to lodgepole, it tends to be about reducing fuels for human reasons because ecologically, burning off and starting again would be fine.

    I also think we need to screen our “ecological” projects so that we’re clear exactly why we’re doing them, given climate change. For some reason, our language about “returning to the past” has not completely changed, and I would like my tax dollars to invest in something more practical and less philosophical. With climate change, our vegetation could change, and we can’t afford to hold that back unless there is a separate compelling reason (IMHO).

  5. Perhaps I should have been more explicit. I’m including treatments to produce a desired condition in a stand or ecosystem as opposed to being designed primarily for producing a commercial timber output. That could include harvesting timber (perhaps by selling it) near a human community in order to reduce the threat of wildfire to that community. Whatever and wherever we cut, it better “make sense ecologically.” and better consider the likely effects of climate change. In lodgepole it could make ecological sense to cut it or to let it burn. I don’t equate this with “returning to the past” which is generally not possible or necessarily desirable. Knowledge of the past does give us a good reference point though regarding the consequences of our actions and the costs of the “inputs” necessary when we choose to try to maintain conditions that are way outside of the historic range of variation (such as heavy fuel buildup from lack of periodic fire).

    Simply: this new paradigm means using a collaborative process to craft a shared vision for what the forest should look like. Then choosing the appropriate tool to establish those conditions (which may include commercial timber sales). Then implement, monitor, adapt. Don’t spend a lot of time on appeals and lawsuits since most parties (maybe not all) will be supportive of the outcomes and less inclined to focus on the tools. Redeem the agency’s responsibility to maintain and restore healthy ecosystems for the future while building support for national forests and their management. Actually provide some volume to a few mills here and there and some employment through stewardship contracting.

    Or: Stick with existing paradigm for timber production where we fight over how much timber can be harvested without causing unacceptable environmental damage, mitigate damage as necessary, expend lots of effort on unnecessary documentation that really doesn’t better inform the decision or change the outcome and on appeals and litigation. Send less timber to the few mills that are left and fail to address most of the pressing restoration needs present in our national forests while making more enemies. This approach does have one benefit– guaranteed employment for the those involved in calculating ASQ, determining which acres are “suitable”, and arguing about what “below-cost” really means. I for one would like my tax dollars spent on something more important.

  6. Wasn’t Bosworth quoted 20 some years ago saying that with “ecosystem management we just might end up cutting more timber??”

    We hear much about “below cost timber sales”. But what abuot “below cost prescribed burning”?? I was wondering why the economics of these timber sales had five times more expenses then revenue. So I got a hold of a couple forests and got the “costs”. Prescribed burning costs $500/acre on the Lolo. The Cedar-thom project proposes 10,000 acres of burning. Thats 5 million dollars. I’m starting to think that “timber sale layout and administration” is a pretty small part of the individual project budget. I don’t have a problem with prescribed burning-but I see why states who all make money on their timber sale program DON’T burn.

    I hope what works in the South spreads to the rest of the USFS Jim. Good luck.

  7. This is very well done, very thorough and thoughtful, as you’d expect from Professor Squillace. I agree with a lot of his analysis. And I’m still slowly making my way through the draft rule and trying to figure out how it will all fit together. Also curious how information from the science panel was used or considered by the agency (i.e., presentations on diversity, viability, MISs, new monitoring methods, etc.)—but that is for a full post.

    At this point, though, I have questions regarding Mark’s take on what’s wrong with using standards and guidelines at the forest plan level. Here’s his take:

    “First, they unnecessarily complicate the plans and make it more difficult for the interested public to engage the Forest Service on what ought to be the primary reason for the plan – setting forth a vision for the particular forest unit. Second, they bog down the planning process and tax the agency’s resources in a way that makes it far less likely that the agency will have sufficient resources to address adequately project-level activities when they arise. A final and related problem with non-statutory standards and guidelines is that they lead both the agency and the public to think that the Forest Service has addressed the site-specific issues that invariably arise when the agency is considering a proposed project. In fact, the generic standards and guidelines that have historically been included in unit plans are a poor substitute for the site specific analysis that ought to be conducted when a new project is proposed. Indeed, the standards and guidelines rarely serve as an adequate constraint in agency action. If the agency doesn’t like how the standards constrain the activity it is simple enough to amend the plan to accommodate the proposed action.”

    My questions: Might having meaningful S&Gs at the forest plan level potentially reduce redundancies later on in the process. ID teams won’t have to renegotiate all of them for every site-specific project. I also think some groups participating in the planning process focus first and foremost on what they consider to be the most important parts of planning: zoning/suitability decisions and the establishment of S&Gs.

    I’m also not sure if S&Gs are the major culprit in bogging down the planning process—I don’t know of any studies or literature documenting such.

    Aren’t S&Gs also key given the agency’s new emphasis on restoration? I recall the Undersecretary saying at the Science Panel that 110 million acres of USFS lands are in need of restoration. I think some standards and guidelines are appropriate in this regard. And they don’t have to be hyper-complex. Consider, for example, the agency’s example of a standard in a restoration plan: “retain any longleaf pine during the restoration activity.” And it seems that standards will be key to fulfilling the diversity mandate as well, e.g., the agency’s example of setting a maximum road density standard that will improve habitat conditions for the Canada lynx.

    And finally, might S&Gs play some role in giving meaning and parameters to adaptive management? (e.g., a way to provide parameters, limit discretion, provide clear measurable objectives?)

    • Regarding S&Gs, I agree. Furthermore, to be more efficient and effective at recovering endangered species and improving things for certain species of concern, there needs to be more range-wide conservation strategies that are implemented through groups of forest plans. This will clearly require standards and guides that apply across a forest or forests. The red-cockaded wood pecker is the best example I can think of as far as a successful example.

    • I suspect all will agree that standards and guidelines (S&Gs) inform and guide adaptive management. My question has always been, Where do they come from? If you believe Forest Planning Rule rhetoric, you might believe that they come from forest plan development, revision, or amendment. But I’ve had a problem with that notion for a very long time. Dean Gardner was a USDA OGC attorney when I first joined the Forest Service in 1980. Dean helped me better understand the difficulty of trying to deal with developing an EIS accompanying a forest plan when multiple S&Gs were in play. In particular, How are you going to try to fashion forest plan alternatives that consider multiple variants of S&Gs?

      Later, I began to question whether or not such ought to be developed during a forest planing exercise at all. I have come to the conclusion that they probably should not be. Better let S&Gs be developed (or revised) in adaptive management as needs arise, whether it be policy or program development or whatever.

      I served for eight years on a local city council in Utah, and a few years before that on a planning commission. In nearly every meeting we dealt with city ordinances. We didn’t wait to deal with them all at once during our general plan development. Instead we dealt with them “in use”, situationally when they were relevant. We dealt with them “in revision,” almost always one at a time when we found that they were inadequate, as informed by whatever business was at hand when inadequacies were identified. To me that is the essence of adaptive management.

      What I don’t understand is why the Forest Service continues to believe that S&Gs ought to be revisited en masse at a forest plan revision moment. Then again, I don’t agree with much that the Forest Service presents as recommended forest planning — and I haven’t for a very long time.

      • Dave- I agree with you that S&G’s being revised en masse forest by forest does not seem the best way to go about doing things. We have a watershed conservation practice handbook in our region that was developed with public involvement. We have species by species requirements for endangered species.

        If a forest plan is supposed to be a broad visionary kind of thing, that has always been at odds with having S&Gs which deal with the details of doing specific kinds of projects. After the 2005, 2008 Rule experience, though, I came to the conclusion that some internal and external people are attached to them (at least standards)so it probably isn’t worth the battle. What he points out, that “If the agency doesn’t like how the standards constrain the activity it is simple enough to amend the plan to accommodate the proposed action”, I don’t think is widely appreciated.

        That’s why it was so refreshing to hear what Squillace has to say. He is keeping the dream alive.

        Here’s exactly what he said (a couple of paragraphs more than what Martin quoted):

        The draft rules continue the long-standing practice of requiring that plans contain “standards” and “guidelines” that constrain or guide decisions on individual projects or activities. As I read NFMA, unit plans are supposed to include standards and guidelines set out in NFMA itself (16 U.S.C. §1604(c)) and these standards and guidelines are supposed to be reflected in the planning rules. 16 U.S.C. §1604(g).

        Additional standards and guidelines are not, however, required to be included in the plans themselves beyond those specific standards and guidelines required by the statute itself. In my view, requiring the inclusion of non-statutory standards and guidelines in land management plans is a big mistake for three important reasons.

        First, they unnecessarily complicate the plans and make it more difficult for the interested public to engage the Forest Service on what ought to be the primary reason for the plan – setting forth a vision for the particular forest unit. Second, they bog down the planning process and tax the agency’s resources in a way that makes it far less likely that the agency will have sufficient resources to address adequately project-level activities when they arise. A final and related problem with non-statutory standards and guidelines is that they lead both the agency and the public to think that the Forest Service has addressed the site-specific issues that invariably arise when the agency is considering a proposed project. In fact, the generic standards and guidelines that have historically been included in unit plans are a poor substitute for the site specific analysis that ought to be conducted when a new project is proposed. Indeed, the standards and guidelines rarely serve as an adequate constraint in agency action. If the agency doesn’t like how the standards constrain the activity it is simple enough to amend the plan to accommodate the proposed action.

        Simplifying our forest plans by liberating the agency from the responsibility to prepare standards and guidelines would allow the Forest Service and the public to engage in a more meaningful way over the vision for a forest unit, and it would free up agency resources to give adequate consideration of project level decisions when they are proposed.

        Some people may object to this suggestion on the grounds that it will remove important constraints on project-level actions before the pressures to approve those actions are on the table. But in my experience, the restrictions on projects that are necessary to protect the forest’s resources are far easier to see in the context of a site-specific proposed action. And the very absence of standards and guidelines will allow the public to demand a more fulsome analysis of the site-specific impacts associated with individual projects.

  8. I think Bosworth also said that it makes more sense to “focus on what we leave, not what we remove.”

    By the way, in most years, The National Forests in Mississippi both cuts more timber and burns more acres than most (any?) other national forests do. Of course they are able to burn for about $25/ ac.

  9. I’m with Mark on standards and guidelines. As I said here before, they may form a baseline for ID teams, but what ends up in a project document can be far above that.

    What concerns me more is that we have a patchwork of plans from different eras with different S&G’s. It makes more sense to me, along the lines of what Jim suggests, is that we develop S&Gs for a given purpose, such as conservation of species, across forests and keep those updated with the latest information.

    Now some have said that concept won’t work because FWS needs enforceable standards to be sure they can delist- or that we would have to consult on each project. Not sure how all the regulatory issues fit together since this is not my area of expertise. I think folks are still using the grizzly agreement S&G’s even though the amendment itself was thrown out in court. I think it’s all about whether projects use the best S&G’s- that’s what the species perceives- and not so much about the legal status.

    • In the case of the red-cockaded woodpecker, the projects , including timber sales, benefit the bird so the ESA call is simple. This is another reason why projects which are done for the purpose of producing desired conditions make more sense than projects (such as certain timber sales in certain places) which have to have mitigation to avoid harm to listed species.

      The FWS considers “standards” to be enforceable. They don’t feel the same way about “guidelines”. That’s one of the reasons the past Administration had such a hard time with the FWS over the “plans don’t make decisions so a CE is good enough and we don’t need to consult on plans” (il)logic.

  10. This initial review was very useful and I appreciate it being posted. I agree with Martin that we need meaningful standards and guidelines, and its interesting that Director Squillace differentiates between statutory and non-statutory S&G’s; the former of which he agrees are needed. Also, I assume statutory requirements go beyond just NFMA to include the ESA, CWA, etc. It would be great to see S&G’s that at least set a floor for compliance with these mandates along with direction for each unit to develop specific S&G’s that set the ceiling so they can be tailored to each forest. If this is accomplished, then it may be easier to see what non-statutory S&G’s would be needed. The S&G’s discussion will continue to be a major focus throughout this process, and I look forward to seeing people’s thoughts.

  11. Being a moderate, there HAS to be some of Mark’s ideas that appeal to me. Streamlining some areas, and regulating other areas can help to tighten up new rules. Protecting biodiversity can come in a great many forms.

    I still think that the local “ologists” and the local Forest Supervisors should take the lead. The experts in the field should make their recommendations with ample and available documentation. The Forest Supervisor MUST publicly defend his decision in the most open and transparent ways. In essence, make the Forest Service “walk their talk”. If sides still don’t agree, then the courts get involved. If the Forest Service is, indeed, following the law, and has not been shown to “have a hidden agenda”, then work can get done in the woods. Make those Forest Supervisors earn their pay! Might this also result in more alternatives for the Supe to pick from?? I know I would! (In that situation)

    It sure seems like this new collection of rules is subject to interpretation, and hence, vulnerable in the courts. Clearly, more than a few tweaks could be finding their ways into the Final version. This process probably won’t be give-and-take, and things will probably get as restrictive and unwieldly as it was before.

      • I think that many of the S&G’s already within the timber sale contract and Special C’s should be embedded within other collections of S&G’s. It appears that the public thinks there are very little rules and laws regarding timber projects. It also appears that eco-groups ignore the protections for wildlife and water quality already in place. They choose to project the ideas that logging is unregulated and haphazard.

        Reading through Mark’s recommendations, how could one not want to include some of those ideas? I’m not so knowledgable about how Forest Plans are revised, and if such specific recommendations belong somewhere else.

        I do fear that more layers of complexity will lead to more gridlock. Any push for “flexibility” will be seen as “wiggle room” by preservationists and serial litigators. Matt has shown us that “Healthy Forests” has been successful in doing what it was supposed to do (especially after the Democrats did their own tinkering with it before they would vote for it!). How much of a “giveaway for the timber industry” did that turn out to actually be?!? How many political pundits still point at “Healthy Forests” as a ploy for the evil, destructive and Republican loggers to “destroy the wilderness”?

        If foresters aren’t “shackled and gagged”, extremists fear that they will clearcut, slash and burn everything they can. There are still people out there claiming that the Forest Service is clearcutting old growth from the Roadless Areas and exporting the logs to the Orient. There are people who blame logging for the Yellowstone fires.

  12. I welcome this debate about S&Gs and I understand the reluctance to give them up. As I think I acknowledged, in a world of unlimited time and resources some hard thinking about constraining project-level actions at the unit planning level makes a lot of sense. But we should not kid ourselves about how distracting these can be to the broader (and in my view more important) issues that we need to address during the unit planning process. I hope I was clear that we cannot and should not avoid altogether the issue of constraints on project-level-development. I only want to put these off to a time when I think their consideration will be more meaningful; when we are looking at a specific resource or a specific project in a specific location. Moreover, I am trying to minimize the boilerplate EAs that are often produced at the project level on the theory that the issues were addressed in the plan.

    Someone noted my distinction between statutory and regulatory S&Gs. It’s admittedly a bit unclear, but I was simply trying to acknowledge that NFMA itself does establish a few S&Gs that obviously must be incorporated into the plan. But these are minor and I don’t think they undermine the broader point.

    I also wanted to note that I am going to try to update my comments on a fairly regular basis to take advantage of all the great feedback I am receiving. So, keep your comments coming, and visit my blog posting at for the most current version.

  13. I believe standards and guidelines have an important role to play in planning and adaptive management and the USFS is smart to embrace them in the draft rule and hopefully improve upon them in the future.

    But I also appreciate the concerns Mark, Sharon, Dave, and others have regarding their use and value. To me, its not a yes/no answer, but rather how we can use standards and guidelines in a more effective and efficient manner. I think they are generally necessary as a way to provide accountability and give an adaptive planning process important objectives and parameters.

    Standards can be very straightforward and meaningful things. They don’t have to bog down the process at all. Consider, for example, a forest plan that zones a forest into different management areas. Management Area 1 includes a municipal watershed. The accompanying standard for MA 1 is that “livestock grazing permits will not be issued;” and that “chemical herbicides and pesticides will not be used within the watershed.” How exactly is such a standard problematic? How does such an important decision bog down the process?

    Or consider Management Area 3, which includes significant historical, cultural, etc. sites. The timber practice standard for MA 3 is that “timber removal will be limited to that necessary to enhance historic values and provide for public safety. Timber removal will be under administrative use rather than commercial timber sale authority. Slash disposal methods will be employed that do not threaten or impact historic values.” Again, how is this problematic? If anything, it shows how standards, even when employed in the forest plan, can also be site-specific.

    Granted, some standards are much more complicated than this. But instead of rejecting standards at the forest plan level outright, why not try to improve them and learn lessons from elsewhere? Take, for example, the Aquatic Conservation Strategy (ACS) as developed in the Northwest Forest Plan. If I recall correctly, the ACS established a process so that enforceable objectives (incorporated into the Plan as standards I believe) could be tailored to site-specific needs of individual watersheds.

    I think that there are some important options and alternatives in this regard.

    • Martin asks, “instead of rejecting standards at the forest plan level outright, why not try to improve them and learn lessons from elsewhere?”

      I agree that standards are important. I just can’t see how the Forest Service can realistically deal with them in a process that still seems to be set up as a “big event” (read “Revision”), and one that requires NEPA compliance on that “big event.” And as you know, “standards” are not the only fatal flaw that I see in the planning process.

      In my preferred “adaptive management” approach (adaptive co-management, really) standards would be dealt with situationally as needs arise. That way NEPA compliance triggers could work and the Forest Service wouldn’t be burdened by too many things to consider at once, neither at any one “level” (e.g. the forest administrative unit). My preferred approach could be thought of as “once and forever decision making” instead of “once and for all decision making”.

      Stakeholders and government players would be continuously engaged in the management of the national forests (as well as other public lands), and there would be spill-overs to private lands as well — in terms of standards and more.

      Sometimes I think we all talk past one another. Anyone looking into a forest plan developed according to my design would in theory see pretty much what Martin is talking about. You could easily identify land use zones, and could see how standards attach to the zone. The big difference is how much of the effort to get to the end is wrapped up in the “big event” forest plan revision moment.

  14. What I fear is S&G——-> “Protect all species”

    The Northwest Forest Plan attempted to do that with a “suite” of species that had few accepted study protocols. Now, apply that potential to “all species”, and we have a nice, firey gridlock again. I have worked in “Management Area 3”. Due to an emergency bark beetle situation, we didn’t have time to consult with SHPO on the many historic and pre-historic sites in the Mother Lode country of California. We decided to just flag them off and avoid them. After 4 years of cleaning up and recovery, all the sites were choked with dead trees, falling on archeological features.

    More recently, on a burn salvage project, the tribe, SHPO and the Forest Service agreed upon limited, miniscule-impact logging within the prehistoric sites, mainly to reduce future wildfire intensities, and the accompanying damage to features. I was even able to get the logger to cut down a dead oak tree that was threatening to uproot an nice mortar rock. A skilled feller-buncher operator was able to reach into another site and pluck out dead trees along the edge. The rest of the sites were helicopter-logged. The tribe and SHPO were very pleased with how it turned out. I have pictures, if anyone is interested.

    I do get where you are coming from, Martin. I think that “ologists” might find that reading the timber sale contract might help them do their own jobs. If we could make certain decisions up “higher”, then there is less need to “re-invent the wheel” for every new set of projects, nationwide. A compilation of current Contract provisions, BMP’s and other ironclad rules, laws and policies would definitely surprise a few folks who want more regulation, and less “discretion”.

  15. I agree with Martin that standards and guidelines are vital in setting sideboards and direction , not only for future projects but are necessary to retain enduring long term values over time on deserving landscapes– For example there are 14 diverse wild land areas across the Lolo National Forest where traditional non-motorized wild land characteristics and values are protected by nothing BUT the standards of the Lolo Forest Plan. The Lolo Forest Plan (1986) also included a forestwide standard requiring motor vehicles remain on DESIGNATED (legal-established through nepa) roads and trails. This standard is simpler and far more effective in preventing harm and providing guidance for responsible recreation than wasted decades of OHV rule-making, debates and unfinished travel plans.


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