New Forest Service planning rule highlights the tension between flexibility and accountability

Here’s a piece by Holly Doremus on the new Planning Rule, on the Legal Planet blog here. I didn’t copy the links in the original to the piece below.


The Forest Service has now finalized the new planning rule it proposed a year ago. The final rule with preamble runs more than 240 pages. I haven’t yet plowed through it. The blog A New Century of Forest Planning is reporting reactions from a variety of sources. So far, there seem to be a lot of general statements of support, with the unsurprising proviso that the devil will be in the implementation details.

The thing that pops out at me about the new rule is the extent to which it brings to life what I view as the key dilemma of modern conservation policy: the tension between desires for management flexibility and demands for management accountability. Consider the most negative public commentary on the rule so far, and the one threat I’ve seen of litigation. It comes from the Center for Biological Diversity, which notes that:

The new rule significantly weakens longstanding protections for fish and wildlife species on national forests. While the Forest Service was previously required to ensure the viability of those populations, the new rule largely defers to local Forest Service officials.

What CBD is referring to is that the 1982 rule which this one replaces included the following provision:

Fish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area. For planning purposes, a viable population shall be regarded as one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area. In order to insure that viable populations will be maintained, habitat must be provided to support, at least, a minimum number of reproductive individuals and that habitat must be well distributed so that those individuals can interact with others in the planning area.

That regulatory provision, popularly known as the “viability rule,” was the source of considerable successful litigation against the Forest Service. Groups like CBD correctly saw it as one of the few sources of strong accountability in a regime that gives the Forest Service a great deal of management discretion.

The new rule eliminates the viability rule, which the Forest Service now describes as inconsistent with “the most current science” and insensitive to “limitations on the Agency’s authority.” No wonder the Forest Service is worried about committing itself to maintaining the viability of particular species in every planning unit, given the realities of climate change.

The new planning rule focuses instead on ecological integrity and ecosystem diversity, which are admittedly fuzzy concepts. It also calls for additional species-specific conservation measures as needed to conserve ESA-listed and proposed species and other species of conservation concern. The regional forester is given discretion to decide which species are of conservation concern, and to determine that it is beyond Forest Service authority or the capability of the planning area to maintain a viable population of a species of conservation concern. That determination doesn’t mean the plan doesn’t have to deal with the species at all. It must still include provisions designed to “maintain or restore ecological conditions within the plan area to contribute to maintaining a viable population of the species within its range.”

I’m sympathetic to CBD’s concerns about loss of oversight. The Forest Service has hardly been a reliable champion of the public interest on national forest lands in the past. It often seems to be highly sensitive to local economic interests, at the expense of long-term conservation.

But in this case, I’m not sure I could craft a better rule. It looks to me like the new language meets the relevant statutory requirement of NFMA, which mandates that the planning rule specify guidelines for plans “to provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives.” I agree with the Forest Service that the old viability rule is too rigid for the current situation. The Service will need some flexibility to respond to a changing climate, and it is right that many species that live part of their life on national forests are also strongly affected by the actions of other landowners.

The key, of course, is to provide the Service with the discretion to respond to legitimate conservation challenges without allowing it to disregard conservation in favor of extractive industry interests. This is just one example of a far more general problem — if we need to adaptively manage lands and resources in order to be able to adjust to new conditions and new understanding, we have no choice but to give managers some discretion. The documented history of putting conservation well behind economic uses makes it difficult for environmentalists to feel comfortable about that, and its hard to create effective accountability and oversight measures for a necessarily discretionary regime.

At first glance, it looks to me like the new rule makes a credible stab at striking that difficult balance. It requires an explicit determination that species of conservation concern can’t be fully protected within the planning area, and the adoption of provisions to at least contribute to conservation. But I agree with CBD that there doesn’t seem to be as much limit on the ability of local forest officials to simply read species out of the list of concern, and it will surely be more difficult under the new rule to force reluctant forests to make robust conservation efforts. Still, I’d like to see a clearer explanation from CBD of what language they would like to have seen in place of what’s been adopted. If there isn’t a better option, than this one might have to do even though it’s clearly imperfect.


10 thoughts on “New Forest Service planning rule highlights the tension between flexibility and accountability”

  1. One easy technique that can, and should be used to compel Forest Supervisors to make the right decisions, is to make “following the best available science” into a “critical element” of that person’s annual evaluation, explicitly tied to their raises and included in that person’s personnel file. Along with the full transparency that comes with the new Rule, such a practice could go very far to ensure the Rule’s intent. Indeed, that errant Forest Supervisor could be removed from the position for failing their “critical element”.

  2. Ah but what is the “best available science” and how can it be “followed”? Many times the research study doesn’t address questions framed in the way that would help managers decide.

    • Why not tie that critical element to the court outcome? That could force the “decider” to make decisions that will hold up in court. Let’s hear from those who eschew discretion about how to ensure that decisions are made in good faith. While the Forest Service surely wouldn’t like such a “Draconian Measure”, would it satisfy those who fear “discretion”?

  3. A fairly balanced treatment of the issue by Holly Doremus on the new improved Planning Rule.
    It seems though, there’s an oversight, if not an admission of failure, imbedded here that is worthy of scrutiny:

    “At first glance, it looks to me like the new rule makes a credible stab at striking that difficult balance. It requires an explicit determination that species of conservation concern can’t be fully protected within the planning area, and the adoption of provisions to at least contribute to conservation.”

    An analysis of the reasons for a “determination that species of conservation concern” is in order — no, it is essential — to understanding and addressing the genesis of how the problem is with us today.

    The Planning Rule minimizes scrutiny on how we got here, and maximizes the notion that we’ll just wing it with adaptive management while we devolve triage decisions to local Forest Supervisors (in the past this was a full committee of scientists referred to as the “God Squad”) on what to save, and what to cast away to oblivion — due to “economic realities.”

    This is not a positive step forward, by any measure.

    • David- I think the God Squad aspect was invoked due to the ESA, not NFMA. Here is a link to a brief history by JWT from the standpoint of lessons learned. Perhaps someone more knowledgeable can split the NFMA parts from the ESA parts, or disagree with Jack’s version of the history. Which is also interesting because of what he says about east side forests (italicized).

      The current state of affairs relative to accomplishments under the NWFP is not acceptable politically, ecologically or economically. So, given the powerful disturbance forces at work, what can federal land managers do within the boundaries/limitations of the NWFP? My answer is relatively simple. Follow the plan. There is far more leeway in the NWFP than is being used.

      Do not spend any more time or effort trying to cut old growth. “Search and manage” protocols have simply made this a fruitless endeavor. Take my word for it, if you search for old growth associated species in old growth stands you will find them. And, even if you were able, by some heroic effort, to get such a sale through all of the certain appeals and legal actions to market at anything approaching reasonable costs, you can anticipate determined civil disobedience. New estimates of the probable sale quantity should be made excluding the sales of late-successional stands that were anticipated in the NWFP. My mantra when I was Chief was to “obey the law and tell the truth.” I repeat that advice today.

      Move aggressively in LSRs in fire prone areas (east of the Cascade crest and in southern Oregon and northern California) to produce conditions that enhance the chances that these LSRs would survive wildfire and that dominant trees in younger stands would grow rapidly. Thinning should proceed in all LSRs in younger stands to speed stand structure and tree size along toward “old growth” conditions. If you are not going to follow the NWFP in this regard, make new estimates of the probable sales quality. Tell the truth.

      Stream buffers should be adjusted, as was anticipated in the NWFP, and appropriately managed to protect and enhance stream conditions including reduction of probability of loss to stand-replacing fire. Failure to adjust these buffers essentially precludes much of the land in the matrix from management either directly or by making construction of access roads impossible. If you have no intention of adjusting these buffers and managing the remainder, make new estimates of the probable sale quality. Tell the truth.

      AMAs should be utilized for the purposes for which they were intended. Unless we are willing to experiment with various ways of achieving and sustaining biodiversity we will be stuck with “static” management approaches that are almost certain to fail in the long run. Regulatory agencies must become full partners in such experimentation and realize that AMAs were a part of the plan approved by the President of the United States. It is well to remember President Clinton’s instructions to the FEMAT. “You should carefully examine silvicultural management of forest stands – particularly young stands – especially in the context of adaptive management…” If there is no chance that the AMAs will be managed in this spirit say so and make it clear that there is no extra timber volume to be expected from these areas. Tell the truth.

      The bottom line is that the NWFP in practice is but a pale imitation of what was advertised in relation to dynamic management. That, coupled with the de facto elimination of the cutting of old growth, has brought both active stand management and timber output to a small fraction of what was anticipated. This is both unfortunate and unwise. If the NWFP cannot be followed it should be revised so that the consequences of the status quo can be examined, explained, and considered.

      Note that with all this analysis and these committees, and disruption, the owl is still in trouble.

      I wonder if the owl would have been better off in the long run if we had spent the money that we spent on committees and plans and monitoring, instead on buying private land in key owl areas? Perhaps we could develop a model and test this idea? Just a thought.

      • Similar beliefs have been “exported” to the Sierra Nevada, in the form of declaring that ALL trees bigger than 20″ dbh are now forever-protected old growth, never to see a chainsaw, ever again. Also, in some areas, 12″ dbh trees gain that magical status, with most of them being in the WUI.

        Progress?????? “Following the law”????

  4. Sharon:
    You responded, “David- I think the God Squad aspect was invoked due to the ESA, not NFMA.”

    I thought so too as I wrote my comment. I am not surprised you missed the point I was raising — that of species viability being devolved to the local forest supervisor level by the deregulatory aspects of the New Planning Rule. I’m not sure what your point is invoking an unnecessary distinction between NFMA and ESA, but I do sense we have very different values and perspectives.

    My point is, a species is Life — its viability is dependent upon laws enacted by Congress which obligate your agency to treat a species as a species, and not reduced to a budget item or a factor in an economic equation. Past statements made by you as scientist with a background in genetics are focused upon equivocating what a species is, as well as reminding everyone how much money is involved saving a species imperiled by the “management” actions of your agency.

    It seems the crux of our differing values is that I refuse to reduce a species to a dollar value. Money does not — cannot — equal Life. You can quote me on that — in stark contrast to the Jack Ward Thomas quote you proffer:

    “That, coupled with the de facto elimination of the cutting of old growth, has brought both active stand management and timber output to a small fraction of what was anticipated. This is both unfortunate and unwise.”

    The level of taxpayer investments in your agency versus the damage it has incurred on Life in all its forms — whether old growth dependent species, rural communities, watersheds, or the national economy undermines your position greatly.

    What we have here is an agency’s pathologic “management” directives which are in the pursuit of economic and (presumably) ecological objectives, but which are more often than not unfulfilled — and that is cheapening, endangering, degrading, depleting and/or destroying Life.

    I have a problem with that.

    I also have a problem understanding Martin Nie’s notion of where the pathology actually lies. As a self-described “outsider” on Tongass issues, Mr. Nie regards this “an advantage” in his treatise, “Governing the Tongass”. With that as a qualifier of scholarly effort, Mr. Nie prefers to decry citizen activism on the Tongass as among the “most pathological cases”
    rather than analyzing the well-demonstraed systemic pathologies of your agency.

  5. Sadly, David uses an extremely broad brush to slap so very many people in the face with lead-based paint, assuming the absolute worst in people. This definitely hurts his cause, which looks like it doesn’t need such vitriol and insults.

  6. Happily, Larry is always ready to provide entertaining comments demonstrating he’s more than capable of providing an even better example of what he accuses others of.

    • YOU label ALL Forest Service people with your “broad brush” as destroyers of the land. YOUR words certainly speak volumes of your hatred for everything Forest Service. I am merely reminding people of that fact, as I am assuming that some people are choosing not to read your vicious attacks. I think you would get more support for your Tongass quest, if you would drop your blanket statements, attacking all that is Forest Service, you would gain more support for something that seems worthwhile. Instead, you drive potential supporters away by attacking everyone who doesn’t buy into your narrow view of the world. Again, your “either you are with us, or against us” attitude that turns people off. I keep an open mind, away from partisan politics. You whack people in the face with your broad brush.


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