CBD Still Doesn’t Like New Rule- Interview by Bob Berwyn

The U.S. Forest Service hopes a new planning rule will help restore ecosystems and protect wildlife. Another fine photo by Bob Berwyn.

Interview with Taylor McKinnon by Bob Berwyn here. My comments in italics.

SUMMIT COUNTY — With more than half the country’s 155 national forests operating under outdated management plans, the U.S. Forest Service is eager to start implementing a new planning rule that was finalized March 23.

But like several previous attempts to revise the existing 1082 rule, this latest version may face a legal test. Now that the rule is final, the Center for Biological Diversity is evaluating whether to pursue a courtroom challenge, said Taylor McKinnon, public lands campaign director for the organization.

McKinnon said his organization is scrutinizing the rule for compliance with the National Forest Management Act and will also take a close look at the biological opinion accompanying the rule to see if meets federal standards for protecting plants and wildlife.

“This rule reflects the work of a lot of federal lawyers,” McKinnon said, referring to the perception that the rule was designed at least in part with the idea of repelling potential legal challenges.

Hmm. Should federal lawyers not be involved in developing regulations? That sounds like a recipe for illegality.. if you look at CBD’s staff here, you’ll find that there are many lawyers, who conceivably think that courts are a good place to promote agendas. Seems to me that if you choose courts to promote agendays, you should expect to see a great deal of federal lawyers, it’s a natural consequence. Just sayin’

The way the Center for Biological Diversity sees it, the latest version of the rule represents the fourth attempt to weaken wildlife protection.

but at least this time they can’t claim any partisan reasons.. is there a message in that both parties are going in the same direction?

The Forest Service was not able to successfully defend its previous attempts to update the planning rule.

Top agency officials say the rule includes stronger protections for water and wildlife, and touted the rule as providing a path toward long-term forest restoration.

“This new rule provides the framework we need to restore and manage our forests and watersheds while getting work done on the ground and providing jobs,” Secretary of Agriculture Tom Vilsack said. Listen to a previous teleconference on the planning rule here.

According to the Forest Service, the new planning rule includes requirements to keep common native species common; contribute to the recovery of threatened and endangered species; conserve proposed and candidate species, and protect species of conservation concern.

But McKinnon said the new rule only includes mandatory conservation requirements for species of concern, while the old rule included broader standards aimed at maintaining viable populations of all native species.

Wasn’t it all vertebrate species? While this one includes thing from prions to petunias?

And reiterating a concern expressed by conservation advocates throughout the rule-making process, McKinnon said the new rule gives local Forest Service officials too much leeway in deciding whether individual plans offer adequate protection.

“They’ve taken mandatory protections and make them discretionary,” he said.

Altogether, the Forest Service received more than 250,000 comments on the rule during the process. The agency says it strengthens the role of public involvement and dialogue throughout the planning process. It also requires the use of the best available scientific information to inform decisions.

“We are ready to start a new era of planning that takes less time, costs less money, and provides stronger protections for our lands and water”, said U.S. Forest Service Chief Tom Tidwell. “This new rule will bring 21st century thinking to a process that is sorely needed to protect and preserve our 193 million acres of amazing forests and grasslands.”

Conservationist concerns over loss of species shouldn’t be taken lightly. Leading biologists have been warning for years that the current global wave of species extinctions is a serious threat to the web of life. with each loss affecting greater ecosystems in ways that are as-yet little understood.

I have three counters to this. First, those assertions are based on assumptions and models about how many species are gone (there’s a chapter in Aynsley Kellow’s book on this). Second, some places are resilient to loss of some species (e.g., most notably the American Chestnut). In fact, the idea that “ecosystems will unravel” is based on the idea of an “ecosystem” which is a human construct, and the reification of that concept Ithink leads to a variety of fuzzy thinking (but that will probably be a post after I retire, inasmuch as it would require more time). Third, and most importantly, species that are close to extinction (or not, in some cases, but someone has made the case that they are) are protected by ESA, not NFMA. BLM land does not have NFMA viability clauses and they seem to be doing fine with protecting species based on ESA. At least I don’t think anyone has claimed that BLM land has seen species extinctions due to lack of an viability regulation?

That’s a tough thing for Forest Service planners and bio-crats to grasp as they focus on technicalities and on making sure that their plan is legally foolproof.

This seems a bit pejorative about hard-working federal employees (but it sounds like this is Bob and not Taylor) , and additionally, others (perhaps AFRC?) have gone on record as thinking that this rule opens many other areas to future new, and potentially equally difficult, case law.

In areas other than species conservation, the new rule has garnered favorable reviews, especially in its push for restoration of forests and watersheds. If the agency is successful in healing scarred ecosystems, those efforts could do more to maintain healthy plant and animal communities than legal battles over individual species or projects.

15 thoughts on “CBD Still Doesn’t Like New Rule- Interview by Bob Berwyn”

  1. Simply put, the CBD wants to “preserve” their own “discretionary” options to sue, if they don’t like any or all Forest Service actions. Those in power (like the CBD) will not give up that power willingly. So, are we going back to square one, where, ironically, some in industry prefer to be, knowing where the fewer loopholes lay?


  2. Anybody besides me find this odd:

    The agency says it strengthens the role of public involvement and dialogue throughout the planning process. It also requires the use of the best available scientific information to inform decisions.

    It isn’t ‘odd’ all by itself, in fact it is a laudable goal. But as usual, the Forest Service talks at length about public involvement and dialogue “in the planning process” but pretty much failed at it when developing the NFMA rule. Or at least that’s been my contention not only on this blog, but on previous blogs for other NFMA rule trials. Here are examples from this round:

    So too with science. Where is the adaptive governance science in this rule? By and large it looks like the Forest Service missed the last 20-30 years in the decision sciences, and in the field of adaptive management. [Note: I thought about leaving a few links on this, but realized that most of my rants here have been about this. So instead just start at the beginning of my rants, if you feel inclined to call BS on them, then move forward to earlier pages.]

  3. “Both parties moving in the same direction” to undermine NFMA safeguards just reaffirms that both parties mainly work for corporate interests, just to different degrees. The R’s are more extreme and open about it than the D’s.

    The idea that ecosystems are resilient to species loss is misleading. Ecosystems have to be redundant or they would not be resilient. Removing species removes redundancy. How many rivets can you remove the the plane before it crashes?

    It’s fine to have lawyers involved to ensure that the rule meets the requirement of the Act, but I think CBD may be suggesting that the lawyers were in the room to make sure the rules are not enforceable when the rules are implemented in plans and projects. Removing all the “shalls” was one of the main themes in recent revisions. So now we’re back to capricious decision-making by line officers insulated form accountability. We know where that lead pre-1990.

    • Tree- “ecosystems” are a human mental model. If one species is removed, for whatever reason, other species tend to move in over time to fill that niche. For example, American Chestnut. Following glaciation, species returned at different rates and occurred in different assemblages.

      Humans have messed with “ecosystems” since they started hunting animals (long long time) and gathering plants (before we were human, perhaps), grazing animals and domesticating plants (shorter time).

      These actions have changed the structure, function and compositions of “ecosystems”.
      I don’t know how many “ecosystems” have “crashed” (those are both human based terms; as a scientist I would prefer to talk about with more specific and technical framings of the changes).

      But if you are “removing species” doesn’t ESA kick in? and so we still don’t understand why additional NFMA protections would help with the “extinction” problem.

      Finally, I still don’t get the whole “corporate interest” thing. We have already discussed this with regard to the timber folks, from Todd Morgan in this post quoted from below. What “corporate interests” are you thinking about?

      Thank you for contacting me regarding forest industry information. I used the link and went to the blog discussion about “corporate interests.” There seems to be a lot of misconceptions or misunderstanding of the logging and wood products industries in the West. Sure, most mills & logging operations are part of corporations, but most local businesses (bike shops, ice cream stands, coffee shops) are incorporated too. Incorporating is a legal means to separate one’s personal finances from those of one’s business. But there are many different kinds of corporations—limited liability, publicly traded, privately held, etc.

      Most of the logging and timber-processing firms (the businesses that use timber from private and public lands) in Montana and the other Interior West states are privately held, not publicly traded, most employ fewer than 100 people, and most have owners, officers, and managers that live in or near the community where the business is located. I don’t think the same can be said of industrial forest landowners (TIMOs & REITs). As the wood products industries have changed over the past 30 years, many companies that owned mills and timber land (vertically integrated) sold off one aspect of their business or the other, becoming either a mill/wood products business or a timberland business. There are very few left that have both, and those that do have both are generally overwhelmingly into one aspect or the other. For example is Plum Creek; they are a REIT with a great deal of timberland all over the country, but their only mills are the few in Montana; Rayonier, Weyerhaeuser, Boise, International Paper—these are similar publicly traded companies. But those are quite different than the local mills Pyramid, Tricon, R-Y, Sun Mountain, etc. that have very little or no land holdings, are not publicly traded, and must compete against the big corporations for timber, labor, and market share.

      Most logging in our region is also performed by small, private contractor firms; they are not crews that work for the mills; they are not publicly traded companies; and I suspect most are in debt up to their eyeballs, considering the price of logging equipment, fuel, insurance, and skilled labor. Hopefully they are incorporated, so that if the business fails, they don’t lose their homes to pay business debts..

      • My short take on some of the points being discussed:

        Is biodiversity a critical component of resilient ecosystems? Yes.

        Will the new planning rule adequately protect biodiversity? Probably. (To the extent that Forests Service actions make a difference).

        Does the Forest Service mainly “work for corporate interests”? It has in the past. Refer to A “Conspiracy of Optimism: Management of the National Forests since World War Two” by Paul Hirt for the details.

        Does it now? Corporate interests certainly have influence. However, the timber industry does not enjoy the access to this Administration that it did during the past one.

        Does the language in the rule reflect a desire of the Forest Service to serve corporate interests? No. It reflects a desire to develop a rule that implements NFMA in a way that can be realistically implemented and can withstand legal challenge.

        • Clearly, ALL the past Administrations have mismanaged our Forests, with the middle scientific ground ignored. Blind preservation is turning out to be just as bad as calculated clearcutting. What is worse? Plantations or the “scorched Earth’ of catastrophic wildfires? What good is a “re-wilded” land, devoid of trees? What good is it to push for impossible humanless forests? Killing trees to spite “The Corporate Man” is just as shortsighted and destructive as the opposite extreme.

        • Jim, I mostly agree — and add:

          “realistically implemented” — This implies that the viability rule was unworkable. Some might argue that it merely required the FS to conserve habitat more than it was willing to (which then comes back to the purpose of the rule change to serve corporate interests more than ecological interests).

          “Withstand legal challenge” — Does legal accountability interfere with accomplishment of species viability or meeting timber targets? (oop, we’re back at corporate interests.)

          The problem is that the agency is still funded primarily to “get the cut out,” not save species and habitat. The agency’s internal reward system is thus aligned with the timber industry, no matter how well-intentioned they are.

          • Tree— I partly agree with you.
            The viability language was unworkable to the extent that it’s impossible for any entity to “ensure viability”. Where there is widespread support for projects and thus no incentive to sue, it worked just fine.

            Not being able to withstand legal challenge interferes with the ability to do anything if folks don’t like what you are doing. If they like it, it’s a moot point.

            Yes, Congress does reward “getting the cut out” along with getting fuels treatment acres accomplished and some other things. It rewards the Southern Region most royally for doing more of this and doing it cheaper than any other region. The timber industry is one beneficiary along with everybody who desires healthy ecosystems, abundant wildlife, fire safe communities, the recovery of endangered species, and well, you get the point I’m trying to make. As far as the internal reward system, I’m pretty familiar with that, and it rewards a whole lot of things, some good, some not so good.

          • “The problem is that the agency is still funded primarily to “get the cut out,” not save species and habitat.”

            What about the many forests who have no timber crews, for the next several years??!?? There will be no “cut” this year, probably next year, and who knows for the years after that?

            However, we WILL continue to lose species and habitats, as surely as the sun rises and sets, despite the lack of “blue death spray”. The Forest Service’s alignment with the preservationists will ensure that certainty. Habitats will die, rot and burn.

      • I think it is dangerous to assume that loss of species is inconsequential because there is always another species ready to assume the role of the extinct species.

        My point about the importance of redundancy, is to remind us that there is not a limitless degree of redundancy. Each lost species, represents a loss of redundancy.

        If you don’t think species are important, maybe you can be convinced that the ecological functions provided by species are important. Different species and their different functions are not fungible. Think about the loss of species as a loss of redundancy of functions.

        See Bruce G. Marcot & Madeleine Vander Heyde, Key Ecological Functions of Wildlife Species. http://www.nwhi.org/inc/data/GISdata/docs/WHROW/chapter6.pdf

        When a key ecological function is provided by just a few or one species, extinction can start to have serious consequences. Flows of energy and nutrients that were previously tightly coupled, start to become decoupled and nutrients begin leaking from the system.

        See also Eric D. Schneider and Dorion Sagan. 2005. Into the Cool: Energy Flow, Thermodynamics, and Life, published by the University of Chicago Press. http://www.intothecool.com/contents.php

        • Well said, Tree. The question now will be can the Forest Service successfully demonstrate that the new approach works to “provide for diversity of plant and animal communities” as required by NFMA and defend it in a court of law.

        • Yes, I agree that there is not a “limitless” degree of redundancy. I also agree that some species do more useful things for other species than others do. Say, prairie dogs, in my world. Nevertheless, I don’t see that current FS practices are the kind in degree or quantity that have those kinds of effects (loss of species) and before they did, ESA would kick in.

          Plus biodiversity is not just species in terms of definitions.

          Biodiversity is the totality of genes, species, and ecosystems in a region… Biodiversity can be divided into three hierarchical categories — genes, species, and ecosystems — that describe quite different aspects of living systems and that scientists measure in different ways.
          WRI 1992
          Since scientists measure different pieces in different ways, some measures could be going down and some going up in the same area.

          • Sadly, some don’t see that habitat losses through wildfires as “real” habitat loss. When nesting habitats are lost, it can stay lost for decades, or even centuries. Preservationists put the blinders on, when this happens, and use denial to explain away the flaws in their eco-beliefs. Scientists use science to support their beliefs, while others use emotion and rhetoric. Lost habitat is lost, no matter how it is lost.

          • Right, which is why how the rule works as a whole needs to be considered, not just “viability” language. The definition I like is “The variety of life in an area, including the variety of genes, species, pant and animal communities, ecosystems and the interactions of these elements.”

            Back in the early 90s I got sick of hearing folks in the Forest Service say “We don’t know what biodiversity is so how can we manage for it?” So I printed up 1000 business cards with that language and handed one out every time I heard “we don’t know.”

            In response to “OK so what do we do about?” The back side of the card listed the agency’s responsibilities from several laws, regulations, and policies, not just NFMA:
            Manage to recover and conserve threatened and endangered species.
            Manage habitats to maintain viable populations of existing native and desired non-native wildlife, fish and plant species. Conserve sensitive species.
            Manage special plant and animal communities to achieve overall multiple-use objectives.
            Manage for selected management indicator species.

            Maybe somebody will print up a card for the new rule, whenever we figure out what it should say.

            You are right about ESA, but of course we don’t want to let things get that far. One of the stated purposes of the new rule is also to “keep common species common.” Under the previous rule, the agency actually held itself to a higher standard (viability) than ESA.(don’t cause extinction).

    • The main symptom of paranoia is the feeling that they are all against you. We keep hearing this meme of “you’re either WITH us, or AGAINST us”. Clearly, all the “shalls” were not working in the scientific arena, with all those tens of thousands of square miles of dead and dying forests. Yep, let’s protect all that critical bark beetle habitat. Fear of the past blocks the future.


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