The Missoulian on Objections and Appeals

Thanks to the Missoulian for giving us a break from the planning rule.. my comments in italics..

U.S. Forest Service streamlines appeal process

By ROB CHANEY of the Missoulian | Posted: Saturday, January 28, 2012 10:16 pm | No Comments Posted

What’s the difference between an appeal and an objection?

When dealing with the U.S. Forest Service, it determines whether your complaint gets dealt with on paper or face-to-face. A recent change in Forest Service decisionmaking requires project opponents to argue their points much earlier in the process.

Proponents of the change expect better, faster decisions on logging sales, special use permits and other activities on national forests. Agency sparring partners fear it limits people’s ability to block bad decisions.

“Frankly, we think it’s going to be a huge improvement,” said Keith Olson of the Montana Logging Association. “In order for somebody to become a litigant, they have to have involvement in the project. They can’t come in at the 11th hour and throw a monkey wrench in the works.”

“I think it’s kind of screwy,” said Arlene Montgomery of Friends of the Wild Swan, an organization that’s frequently tangled with the Forest Service. “The normal process is they scope a project, release an environmental assessment, you comment on that, they make changes. Then they issue a decision and you can appeal the decision.

“Now they’re skipping a step. It’s not possible for the public to raise every issue that could possibly come up in an EA before seeing the EA. I think it’s a way to truncate and thwart the public process.”

During the announcement of a major revision to the Forest Service’s planning rule last week, the word “collaboration” was a frequent touchstone. The agency managing 193 million acres of public forest and grassland wants the same connection with local residents, businesses and advocates that it’s traditionally had with the wood products industry.

At the same time, it wants to spend less time in court trying to fix projects.

A little-noticed change in the Forest Service’s 2012 budget bill eliminated the old appeals process and replaced it with an objection procedure for all environmental assessments and environmental impact statements.

“The idea was to get it down to the lowest level of decisionmaking,” said Region 1 objections coordinator Ray Smith. “Under the existing appeal process, a deciding officer can’t meet with appellants or the (Forest Service project) team. He only looks at documents, and that pulls that person away from the back-and-forth human interaction.

“With the objection process, the person reviewing the objection is able to talk to the objector, the interdisciplinary team and the district ranger in order to get, hopefully, a better project and decision.”

*****

In Region 1, which includes national forests and grasslands in Montana, the Dakotas and parts of Idaho, there have been 28 projects launched under the new objections rule instead of the appeals process. Of those, 26 received a total of 71 objections, but only three projects went to court. The Forest Service won one lawsuit, withdrew one project and still has one in litigation.

To object, someone has to get formally involved at the earliest stage of a project. The Forest Service tries to alert all affected landowners, businesses, government agencies, non-governmental organizations and other interested parties through its Schedule of Proposed Activities notices and direct contact.

Those who don’t register interest in the project lose the right to lodge objections, and also may lose their standing to take the project to court.

“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.”

But Montgomery countered that her experience with the objections process found projects poorly done. She recalled a logging proposal called Paint-Emery around Hungry Horse Reservoir that showed the flaws.

“This particular one had all this logging and 100 miles of road decommissioning,” Montgomery said. “The logging went forward, and 10 years later 70 miles of road hadn’t been decommissioned. The only reason those last 70 miles got done was (federal) stimulus money. The timber sales don’t generate the money to do the restoration. So when it comes to implementing restoration, nothing happens on the ground.”

*****

I’d like to point out that there are two issues 1) on the ground actions not matching the NEPA and 2) not having the money to do all parts of a project, that have been pointed out by many groups.. just the ones I’ve attended included groups convened by Western Governors and NFF. This can happen equally under appeals or objections as they are all post decision actions (or inactions or errors). Not sure why Montgomery and the reporter considered this to be relevant to the issue of appeals vs. objections.

Under the old appeals process, a project would get a environmental assessment or environmental impact statement, and an opponent had 90 days to file an appeal.

Under the new objections process, opponents have 60 days from publication of a draft EA or EIS to point out problems. Then the Forest Service will schedule a meeting to attempt and reach a resolution.

That still wouldn’t have helped keep the Colt-Summit project north of Seeley Lake out of court, according to Montgomery. The Friends of the Wild Swan and two other groups lost an appeal of that project and are now challenging it in federal court.

“We couldn’t have got our issues fixed by objection on Colt-Summit,” Montgomery said. “Our main concern was that the Swan-Clearwater Divide is a really important wildlife corridor. Yet they were going to be logging in old-growth forest, which we think will detrimentally alter the habitat of that crucial area. And that was given no analysis at all.”

The statement “no analysis at all” triggered a look. See what I found in a few minutes of examination below. If you take the quote at face value, it does not appear to be a true statement.

The Lolo National Forest promoted the 4,300-acre Colt-Summit project as an example of the new attitude of collaborative decision-making. It had support of the Montana Forest Restoration Committee, which includes many conservation, environmental and forest industry organizations. It proposed 740 acres of logging and thinning, 1,216 acres of understory clearing and burning, 19 acres of clearcuts to improve tourist vistas, nine miles of road decommissioned or repaired, and 34 miles of weed-control spraying.

Leslie Weldon, the Forest Service’s director of National Forest Systems, said the new format should produce more solutions than obstructions.

“Objections are only effective if we have a much more extensive level of engagement initiating projects,” said Weldon, who was Region 1 forester in Missoula before her promotion to Forest Service headquarters in Washington, D.C., in January. “It’s about making things public at the very beginning, understanding the issues and concerns with a particular area, and understanding conditions on the landscape. Then we can use all that at the front-end of the process to inform what a project will be.”

Read more: http://missoulian.com/news/local/u-s-forest-service-streamlines-appeal-process/article_e9bec5f4-4a38-11e1-9bad-001871e3ce6c.html#ixzz1krJeMNUy

A couple of things- the Congress are the ones who voted on the appropriations bill- it almost sounds like it was an executive branch concept that Congress adopted. More likely, constituents found the current situation suboptimal and asked for some help by Congress, who felt that HFRA seemed to be a successful experiment, so.. there are only so many ideas out there.

It is also interesting that Pacific Northwest Earthjustice Kirsten Boyles says that her group has had good experiences with objections. I wonder if there are local differences in approach that would explain the difference. Perhaps it would be useful (since regulations are to be developed) if we had a feature of “good objection experiences” and “bad objection experiences” with the names of the projects and exactly what people liked or didn’t like about them. You can send any submissions to me at [email protected].

We have had previous discussions on appeals vs. objections on the blog here. Be sure to check out my chart in comment #32 and Mike’s visionary thought in comment #42.

We have had previous discussions on the Colt Summit project here. Re the “cone of silence” for litigation here, when I asked what the litigators would like to see on the project for it to be acceptable, and a discussion of the project and who supports it and not here, and the map with the FWS concurrence letter here.

As I’ve said before, what I like about objections is that at least in my experience, it moves the discussion from “your are violating NFMA and ESA, and plus your NEPA sucks” to something more pragmatic “want 150 foot buffers, or a diameter limit”. I believe it is better because these desires can be openly discussed with the objector and the other members of the public, and does not go directly into the litigation “cone of silence.” Which. it seems to me, gives the public better access to information and more open discussion.

* A cursory look at the original EA yielded these paragraphs shows pp 51-52:

Old Growth
Stand exam data shows that the current stand-relative densities in the old-growth units proposed for treatment (units 6, 7, 28, and 29) range from 56 to 71 percent. Each unit is currently at risk from agents of disturbance. A direct effect of the proposed action will be to reduce post-treatment relative densities to a range from 34 to 56 percent. Indirectly post-treatment relative densities and structure will leave the old growth stands more vigorous and resistant to beetles and wildfire than before treatment, thereby maintaining the current availability of old growth in the analysis area and increasing its availability over time.
Following treatment, there would be no change to the existing number of trees greater than 21inches dbh in the stand except other trees that are felled for safety reasons. If trees over 21 inches are felled for safety they would be left in place as coarse woody debris (table 5, WL-4, WL-5). Underburning will be hand ignited to manage the fire intensity to protect residual old-growth trees from fire in these units (table 5, FM-6). The post treatment basal area will be more than sufficient to meet the thresholds specified in Green et al. 1992. Existing snags needed to meet old-growth requirements will be left post-treatment. Again, some may need to be felled for safety reasons, and if so, will be left in place as coarse woody debris. A variety of scientific literature has been published that discusses the appropriateness of using silvicultural treatments to maintain or restore old-growth vegetative structure. The Lolo National Forests Old Growth Monitoring Study cited no less then fifteen papers (USDA 2008). Data from the 2008 Lolo National Forest Old Growth Monitoring Report vividly demonstrates the effectiveness of thinning–from-below followed by underburning in old-growth stands. Doc# A-1
Colt Summit Restoration and Fuels Reduction Project
52
If proposed treatments in the old growth and potential old-growth stands did lose old-growth characteristics, which is highly unlikely due to over 10 years of old-growth management experience and monitoring (USDA 2008), site-specific prescriptions, and resource protection measures (table 5, FM-6), the percentage of area managed for old growth would still exceed the Forest’s 8 percent goal within the Upper Clearwater Ecological Management Area (USDA Forest Service 1996b).
An indirect benefit of the proposed action is the acceleration of the creation of old-growth structure in potential old growth units by 30 years in units 6 aand 7, and by 5 years in unit 29 when compared to a no-action scenario.

Here’s what’s in the March addendum to the EA (which contains the final acres in Table 1 on page 4)

Forest Vegetation:
Although there is a reduction in old-growth enhancement treatments from 57 acres in the proposed action to 17 acres in the modified proposed action, and an increase in the old-growth slash and underburn treatments from 80 to 120 acres, there would be no difference in the direct, indirect or cumulative effects to the amount of old-growth. Neither the proposed action nor the modified proposed action would affect the quantity of old-growth in the project area, and could help protect old-growth and stands that could mature into old-growth. The guideline for 8 percent of an ecological management unit to be managed for old growth would continue to be exceeded.
Both alternatives’ treatments would maintain and protect old-growth characteristics in a 22-acre stand (unit 28) that currently meets old-growth criteria, and help move 115 acres in other stands (units 6, 6A, 6B, 7, 7A, 7B, and 29) towards meeting old-growth characteristics 5 to 30 years sooner, through less competition and faster growth, than if not treated.

If this doesn’t seem like enough analysis of old-growth, check out the draft NEPA efficiency guidelines here (page 5 last paragraph), “Similarly, the CEQ guidance issued in 1981 indicated that 10-15 pages is generally appropriate for EAs.”