Wilkinson on 4FRI

I thought it was interesting that High Country News published this piece, by Charles Wilkinson, a law professor at University of Colorado. Here’s a link to his bio. Historical note: yes, the same person who was on the Committee of “Scientists” for the 2000 Planning Rule, so he’s been following these issues for some time.

Below is an excerpt of the piece. You can also find it at here at the Summit Daily News (thanks, Bob Berwyn) and other papers where Writers on the Range is syndicated. Because HCN and the syndication reach many readers who are not following this issue, I think it’s important to take a look at what Wilkinson says- what most people (outside the area) will read about what’s going on. The stakes are high for a landscape scale collaboration, so it is interesting to follow this, even for those of us far removed. What is interesting to me is the continuing story/question that the FS is screwing up with its choice of contractor, or about to screw up (before the EIS is released..??). Do people really think that the FS would go back on the general agreements that they worked so hard, for so many years, to get?? Or is this about something else entirely?

This blog is one of the few places that we could actually have this discussion with the details and knowledgeable people involved, so I am hoping when the EIS comes out we can track it here. Also, I think it’s the proposed action we’re interested in and not the EIS, but I guess I’m being pedantic again. I like to keep those separate in my head because I think it helps clarity.

We have discussed the 4FRI selection of contractor before here on this blog. including here, here and here.

The first link discusses the FS reasons for selecting the contractor. Like I said in that post, there is plenty of wood around the SW and Interior West, if folks have a good business plan maybe they could take it and develop 4FRI II elsewhere?

But a red flag has gone up: On May 18, the Forest Service announced its choice of contractor for the 4FRI process — Pioneer Associates, whose representative for the project just recently worked for the Forest Service. This was the largest stewardship contract awarded in the agency’s history, and yet the agency bypassed the contractor most deeply involved in 4FRI, the one whose business plan was closely tied to the project’s unique provisions.

Several 4FRI organizations have strongly criticized the choice of Pioneer Associates, citing the inadequacy of its business plan. The Eastern Arizona Counties Organization, for example, detailed “glaring deficiencies” in Pioneer’s bid and concluded that the award was “not based on either economic or ecological merit.” What’s troubling to many observers is that the choice of contractor may indicate that traditional attitudes are tearing away at the agency’s support of 4FRI.

The Forest Service, with its long and rich history, has run into trouble with the public and Congress in modern times over two main issues: Its timber harvests for far too long were set way too high, and far too often the agency insisted on doing things its own way. This approach — “we are the experts” — persisted in spite of contrary public opinion.

Both problems have been alleviated over the past decade or so. The timber cut is way down. The Forest Service now touts its commitment to collaboration with citizen groups, an approach that is widely agreed to be preferable to litigation and top-down, federal decision-making.

Doubters in Arizona, however, see the recent selection of Pioneer Associates as a bad sign. Tommie Cline Martin, a Gila County supervisor, predicts that, given the chosen contractor, the Forest Service will follow the same path as in the past, and that means “cutting big trees before getting to the small stuff, which is the threat to our remaining sickly forests.”

In the next few months, the Forest Service will face a major test on 4FRI, perhaps the agency’s most ambitious and carefully prepared collaboration effort. The regional office in Albuquerque will release — probably in July or August — the draft environmental impact statement for the collaborative effort. Does the choice of contractor suggest a lesser Forest Service commitment to 4FRI? Will the draft EIS weaken 4FRI’s environmental safeguards?

An immediate sign of trouble ahead is the news that Pioneer failed to include in its bid any funding for the regular monitoring of restoration efforts, an essential activity for good public land management. Will the draft EIS insist upon monitoring that will meet the standard set by the collaborative effort? Another hallmark of 4FRI’s approach is its commitment to thinning small-diameter trees because they, and not the large-growth trees, constitute the fire hazard. Will the draft EIS continue that emphasis?

10 thoughts on “Wilkinson on 4FRI”

  1. The 4FRI project already has published the proposed action. Also, even though the DEIS is not yet published, the 4FRI team has already web-published draft alternatives, draft issues, and some draft cumulative effects analysies. The goal here is to be as transparent as possible. You can find these documents here: http://www.fs.usda.gov/main/4fri/planning

    It’s really unforunate that Wilkinson’s article doesn’t provide the rationale commnicated by the Forest Service as to why Pioneer was chosen as the contractor.

  2. Well, if someone had the time and the inclination, (a not for profit? Pioneer?) they could look up all the papers that the piece appears in, and link to the FS rationale. It continues to baffle me how hard it is to get “both sides of the story” in front of the public.

  3. I wouldn’t worry about appeasing this Wilkinsen guy. The only question that matters with the 4FRI is whether “it” can attract the investment capital nescesary to build this infrastructure. I don’t know the details and am only working with tid bits of news stories, so this is pure speculatation.Let’s see, I do believe that”Pioneer” needs 200 million dollars to pull this off. I also remember reading that they hired some guy to “find investors.” So, does anyone know if they got the 200 million yet? If they got it lined up, then disregard all below.

    Now, it’s inevitable that the CBD will “appeal” the 4FRI. They might not litigate it right away-but isn’t it true they must appeal it to be able to litigate it–whether they sue one month or five years later? CAn someone tell me if it’s true that if they don’t appeal in the allotted time period after the decision- then they can’t sue. If the above is true, then the CBD will have to appeal if it wants to “influence” the project after the decision.

    This begs the next question, “will investers be willing to roll the dice on a project that has been appealed, and can be litigated at any moment”? Is it true that the only way the 4FRI can “Guarantee” a ten year supply of timber “free from the threat of litigation” is if no one appeals the decision? (of course, I doubt anyone would be convinced that would eliminate all enviro litigtion-with judges “making law” and all). Isn’t it true that If the 4FRI gets appealed then it is absolutely NO Guarentee of a ten year supply of timber? I think we’ll have a situation where the CBD “will have” to appeal it, and such appeal will nullify any kind of guarentee to investers. The conundrum of the irrisistable object colliding with the immovable object.

    This begs the next question. If Pioneer builds 200 million dollars worth of infrastructure, and the 4FRI gets litigated and the “guarenteed supply” stops…does the USFS pay Pioneer 200 million dollars? Can anyone answer that-cause I’ll bet the first question investers are asking is “does this 4FRI guarentee a ten year supply (if it doesn’t, what good is it), and the second question is “how big of a hassle is it gonna be to get my money back from the USFS.” Hey, I could be all wrong and investers will flock to this project.

    Appeasing the likes of Mr. Wilkinsen above are peripheral and extraneous to this issue. Frankly, I think it would be best for the rest of the West if the CBD bungles this and it goes down in flames. It would be the final straw to make moderate enviros face reality and change the law. Of course, I’d hate to see the “locals” in Arizone “enjoy the benefits” of a burned forest that used to be their playground.I doubt very much that the CBD will be able to resist appealing the 4FRI. The next few years are gonna be exciting ones in forestry.

    • That’s a lot of questions. While I don’t hope to answer them all, I can shed a little light on some of the situation.

      First anyone can sue the Forest Service about anything they choose. There are no laws or regulations preventing lawsuits on the NEPA process. You are correct; however, that if an individual or organization does not appeal a project then they won’t have standing to later sue on that project and if they file a lawsuit, it will likely be a waste of their money. However, there can be ways around this. For example, the Forest Service can be sued on not meeting the terms and conditions of the forest-wide Biological Opinion, and since projects relied on this Biological Opinion they can be put under a temporary injunction or even enjoined – even if, the projects themselves weren’t directly challenged. This is exaclty what happened in the Southwest Region a few months back when a judge enjoined a number of projects due to challenges from CBD and WildEarth Guardians on various Biological Opinions. So, even if the 4FRI project goes through without an appeal, there still are avenues for litigation.

      Second, the 300,000-acre contract has already been made. Pioneer really only has two choices here and that is to build the infrastructure or default on the contract. I don’t really know exactly what this means as far as money goes. My understanding is that the contract does guarantee acreage to be available for treatment from the Forest Service by Pioneer and in return, Pioneer has agreed to pay certain prices per acre and follow the terms of the work order, which include the design criteria developed during the NEPA process.

      An appeal by CBD or anyone else does not mean all that much. In fact, I think most people expect this possibility (why build a ship without expecting some waves?). If you look at the numbers the FS wins the large majority of appeals, and also wins the large majority of litigation. Furthermore, even when there are lawsuits that the FS loses, the agency is usually still able to implement the majority of the decision at some point. Another point is that the contract will depend on 4FRI, but not only on the 4FRI EIS. Much of the acreage to be treated under this contract for the first few years will likely be from shelf-stock NEPA – or NEPA projects that have already been completed and gone through the appeal process. In summary, an appeal by CBD or anyone else doesn’t necessarily sink the ship, it’s just a wave for which we all hope the ship is prepared for.

      One more point here is that the I’ve been involved in a lot of “collaborative” projects, but I have never seen one as truly open and “collaborative” as 4FRI. I really hope this is worth something in the end.

      • Thanks for the explanation, MD, especially about how the contract and the EIS and the already approved projects are related.
        Since Wilkinson asked “Will the draft EIS weaken 4FRI’s environmental safeguards?” it sounds as if he doesn’t understand that projects have already been designed. I assume that there are certain design criteria that projects must have that the 4FRI collaborative agreed to, whether it’s a “new” project or an “off-the-shelf” project. Is that correct, and if so, where could someone find a ready listing of these design criteria?

        • I don’t know all of the details, because I haven’t been a part of these discussions. In general, however, the projects must be designed to meet ecological restoration objectives (opportunity for collaboration, focusing on the preservation of large trees, returning low-intensity fire to the landscape, etc.).

          The stakeholder group is an open group. Most files are stored on their website (http://4fri.org/index.html) but there are more detailed docs on a Basecamp website, which is where they share draft documents, meeting notes, etc. You can become more involved (and thus get more access) by contacting the stakeholders. This website has more information about that – http://4fri.org/stakeholders.html.

          The stakeholder group has met and reviewed all of the “shelf stock” projects; and in some instances have specifically asked that one or more of these projects be taken out of the acres to be treated in the 4FRI contract even though they had already made it through the NEPA process. The ‘scrutinty process’ is still ongoing. For example, projects such as the Rim Lakes EIS (On the Apache Sitgreaves NF) and McKraken (on the Kaibab) are currently being reviewed/considered by the group.

  4. We should not give in to the CBD’s demands. I say that making side deals with the CBD is grossly un-transparent. If the project is litigated, so be it. Let the blame go to the CBD when forests burn. Let them be happy trying to tell the public that “natural and beneficial” wildfires were always the Plan B, and that the public should be happy with their newly “re-wilded” forests.

  5. Thanks MD. I’d love to know the contract penalty if Pioneer didn’t build it’s infrastructure.I’ve got a feelin it ain’t much. Conversly what the USFS gets to pay. But I realise that contract law is way out of our scope of work. The biggest question of all will be “can Pioneer attract investment capital even though the 4FRI does nothing to guarantee supply.” We’ll know in a couple years how much the well has been poisoned. The 4FRI certainly helps since the radicals can only litigate one project vs. 30 or 40 as in the old days. I’m sure it’s a huge cost savings over 30 or 40. Every forest should be doing one, and probably will-right? And it would be a good vehicle for a “wolf rider.” Hey, evidently Pioneer feels it can work…and I’ll defer to their business acumen. Montana sawmills are paying up to $120/ thousand for ponderosa pine right now, paying $10/MBF in Arizona certainly would give one an edge. Good point about the bilogical opinion…thanks for clarifying that one.
    I do wish the 4FRI well.It’s a win either way.

    Can you tell us when the decision is due? (very approximately of course) I gots a feeling the retoric is gonna heat up a lot before that. Maybe me and you should appeal it Larry, that way we’d have standing if the USFS decides to Kow Tow and not follow the best available science in restoring these forests to their historic “very low” density. Now if we could just find some aging rock star to fund it.

  6. The decision is due Jan. 1st, 2013. Pioneer has announced they’ll have a mill up and running by late 2013, which means they better be breaking ground by, oh, say march 2013. Within a year we should know if investors want to do business with radical enviros. Far out.


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