Here’s a link to the paper, well worth reading in its entirety from Jack Ward Thomas, wise elder, world-class scientist and former Chief of the Forest Service.
Here are some excerpts:
Courts ruled that the FS’s applications of “professional judgment” fell short of the required “hard look” in evaluating proposed management actions. As a result, NF administrators (and legal counselors) became increasingly risk averse and, too often, produced evermore voluminous assessments in an effort to demonstrate compliance with laws and regulations. Evidently, it was assumed that costs of court ordered “do overs” exceeded costs of “overkill” in the form of excessive documentation. For the most part, the strategy largely failed. Losers included citizens who felt inundated, confused, and turned-off by increasingly voluminous and “technically dense” documents. Costs in time and money increased. Post-mortem examination showed that such “over kill” was an ineffective defensive mechanism.
Does this remind anyone of say, Colt Summit, or the Little Belt hazard tree project? And I would add citizens who feel that they are excluded from legal processes that determine the outcomes on their public lands.
“Fierce in battle, many of the eco-warriors have been unable to come to grips with the consequences of victory and are now reduced to wandering about the old battlefields ‘bayoneting the wounded.’ Their counterparts from the resource extraction community, likewise, cannot come to terms with defeat and hold ‘ghost dances’ to bring back the good old days when they were the undisputed Kings of the West.”
Most hard core “environmentalists” demonstrated little concern with the social/economic consequences of their victories. Some, figuratively, continued to wander the old battlefields “bayoneting the wounded” via challenges to even minor forest management activities. Victories have consequences. To the victors belong the spoils – and some responsibility to ameliorate consequences of their victories – “you break it – you own it” (Thomas 2001a and 2001b). There was applicable wisdom in President Lincoln’s admonition to General Grant near the end of the Civil War – “Let ‘em up easy.”
The Equal Access to Justice Act (EAJA) (1980)
The EAJA allows citizens to sue federal agencies for non-compliance with law(s) and/or regulation(s). Winning plaintiffs are compensated for costs. Conversely, plaintiffs with low net worth (or have non-profit status) have no liability when they lose – no matter what havoc the suit may have inflected in terms of management delays and legal costs. An ongoing drumbeat of judicial decisions (i.e., “case law”) defines and redefines the “playing field” for political/legal games surrounding NF management.
What do you think of these ideas for the future?
Of “Gordian Knots” and “Certain Trumpets”
Today, the NFs are increasingly viewed by some as a liability – economic, political, social, and ecological – rather than an asset. NFs should be increasing in value as populations increase and forest and range lands in private ownership are increasingly fragmented and “no trespassing” signs blossom like flowers in the spring.
One of two approaches to that problem seems possible – perhaps likely. The first is to continue to “pick around the edges” with clarifying adjustments in applicable laws. That approach, if past is prologue, will entail long drawn out processes of adjusting myriad laws – and making new laws – piece meal. Such is likely to have predictable consequences – after all, we have been down that road before.
Or, it can be realized that picking, prodding, poking at, and adding to the Gordian knot could/should be replaced by a bold stroke that cleaves the knot. Past efforts to address management of public lands provide insights into reform – and why previous efforts failed. There are only two options – learn to love and appreciate the Gordian knot as having essentially brought active management to an end or to, once again, “break new ground.” The second will, sooner or later, become mandatory as we struggle with reducing public debt (which will, in the end, involve reducing federal expenditures while increasing revenues). A revised approach to NF management could contribute to solution – but only if the Gordian knot is severed, the mission clarified, and achievement of management objectives facilitated.
That task is too complex to be effectively addressed by Congress or the Administration with out some help. Preliminary efforts by a carefully selected group of knowledgeable individuals experienced in the management of natural resources arena, public land law, and administration of land management agencies, should be charged with developing potential solutions with associated benefits and costs. Those assigned should complete the task in a year or less given the information and experience already at hand.
Recommendations should focus on revisions of present laws (including repeal of those that are not current with extant situations, redundant, or are not in synch with other applicable laws) and new law(s) that clearly define the mission and the expectations for the FS. The best of the spectrum of “old laws” should be incorporated into new law(s) so as to clarify intent. Ideally, the result would be the “certain trumpet” to guide the management of the NFs and the FS.
Land use planning should be a meaningful – a guide to management action and funding – achieved within a year at much less costs. Before embarking on new efforts in planning it is critical to determine why such planning has failed so miserably and short comings rectified. Flexibility should be a component so as to deal sudden alteration in conditions – fires, markets, economics, and, insect and disease outbreaks.
New sources of revenues should be explored and instituted. As examples, grazing fees should be adjusted at regular intervals to reflect market conditions on similar private lands. User fees for recreational activities should be explored – say fees for access for hunting (Thomas 1984, Sedjo 2000b). Methods of dispute resolution, short of resort to the courts, should be developed. Perhaps those that challenge the agency in court should, when they lose, be held liable for damages – which can be significant in terms of legal costs and delays in executing scheduled operations (Peterson 2000).
The new instructions should prioritize the importance of factors bearing on the FS’s decisions – environmental questions, jobs, welfare of local communities, monetary returns to the treasury and counties, balance of trade, water flows, clearly defined tradeoffs, etc. Thomas (2009:198-199) put forth suggestions to overcome the shortcomings of previous commissions that addressed public land management. FS Chief Emeritus R. Max Peterson has made similar suggestions (2000).
1.) There will be a limited time for execution – say six months to one year. The report will be delivered to Congress and the President at the beginning of a new Congress so as to be sheltered from the every second-year fascination with elections.
2.) The key members will work full-time on the project.
3.) Commission members will be compensated at the rate of the highest level of the senior executive service.
4.) Support staff will be made available as requested by the Chairperson.
5.) The effort will begin with recognition that there are problems (the Gordian not) that demand adjustments in laws and regulations.
6.) Results will take the form of potential alternative courses of action packaged as legislation, or amendments to existing law(s), ready for introduction.
7.) Clarity of purpose, intent, and required process will be of paramount importance – i.e., there should be limited potential for court interpretation.
8. Efficiency of management (in both time and money) will be of paramount concern.
9.) An arbitrations process to handle disputes short of federal court will be determined.
10.) The right to appeal proposed agency actions should be preserved. However, processes will be instituted that prevent or discourage “game playing” to draw out decisions and impose costs that render pending management infeasible. Those who challenge and lose will be subject to economic penalties.
11.) It will be recognized that the existing panoply of laws, interpreted variously by the courts over the years, has created an effective, burdensome, cumbersome, and inefficient system of accountability that thwarts action by the FS and Congress. Such will be corrected.
Posewitz (2008:11) opined:
“If we are to sustain the legacy that it has been our privilege to enjoy, it is essential that people of principle and idealism respond to the current iteration of the perpetual crisis in public land management. It is time to not only rise in defense on the National Forest System, but also in defense of the custodial agency planted in our culture by Theodore Roosevelt and Gifford Pinchot. “
Mitch Friedman (2008), self-identified as a leader of a “green group” supported FS Chief Dale Bosworth’s proposals for “collaborative restoration” of NF lands with “forest health” and “collaboration” as guiding principles. What seemed a rational and promising approach failed to yield much success. Funding such activities and keeping involved constituencies engaged in attaining support, the key to success – proved intractable.
“Muddling through” is wasteful and should not be tolerated (Nienaber and McCool 1996). As former Congressman Pat Williams (2008:8) of Montana plaintively asked: “FS – where did you come from, with what mission, and where, oh where are you headed?” That cogent, well-informed, plaintive question demands answers.
Miller (2008:17-18) believed that a successful future for the NFs lies in:
“…the creation of a cooperative conservation strategy in which local governments and organizations, in combination with federal land managers, develop forest plans. Proponents of collaboration have been inspired by the NFMA and the ESA that require public participation and interagency coordination: they have also been energized by community-based managerial initiatives promoted at the 1997 Seventh American Forest Congress…”
“…Moreover, although any change in the agency’s land management mission will require internal support from the FS’s leadership and staff, the real locus of any such transformation lies in Congress and the executive branch…”
Sedjo (2000b) recognized that the FS
“…no longer controls NF policy. Instead, mandatory provisions of the law and regulations…mean that the regional and local landscapes, watersheds, and their resources are now the focus of attention…the FS …now lacks the institutional capacity and authority to fully develop and implement ecosystem conservation agenda and resource management programs…due to lack of ability …to interpret and respond effectively to the public’s priorities…”
Enough already, it is time, way past time, to answer those old, up to now intractable questions. The future of the NFs and the FS rides on the answers. Obviously, the FS cannot, acting alone, provide such clarity. And, clearly, it is time, far past time, for clarity. Carpe Diem!
Martin Nie in the previous post suggested that we need a “land law review.” Framed that way, it places the locus of control, at least to some extent, with the legal profession. What I like about Thomas’s idea is that the group is determined more broadly.
Preliminary efforts by a carefully selected group of knowledgeable individuals experienced in the management of natural resources arena, public land law, and administration of land management agencies, should be charged with developing potential solutions with associated benefits and costs. Those assigned should complete the task in a year or less given the information and experience already at hand.
And perhaps not biting off all public lands and focusing only on the Forest Service would make the problem more tractable. What do you think?