Cherokee National Forest objects to objection

Plaintiff environmental groups expressed concerns from the beginning of the Dinkey Project about the effects on water quality because of erosion caused by previous nearby timber projects in similar terrain.  After the Forest released the draft EA on the Project it also released a monitoring and evaluation report that revealed the erosion problems caused by the earlier projects and included recommended mitigation measures.  The EA and Decision Notice for the Dinkey Project failed to acknowledge this information and relied on mitigation measures that had failed in the earlier projects.  The complaint alleges violations of NEPA and also NFMA because the Project would be inconsistent with the forest plan requirements for soil protection and would cause irreversible resource damage.

The plaintiffs also filed an administrative objection to the Dinkey Project raising these concerns.  The Forest Service dismissed the objection, citing failure to comply with the requirements for objections as follows:

“Based on the information provided in your objection, the issues raised do not demonstrate connection to prior comments with specific violations of law, regulation, or policy. In addition, no specific proposed remedies are stated for consideration by the Reviewing Officer for resolving the objection. Therefore, the objection does not comply with 36 CFR 218.8(d)(5) and (6).”

Here are those requirements:

(5) A description of those aspects of the proposed project addressed by the objection, including specific issues related to the proposed project; if applicable, how the objector believes the environmental analysis or draft decision specifically violates law, regulation, or policy; suggested remedies that would resolve the objection; supporting reasons for the reviewing officer to consider; and

(6) A statement that demonstrates the connection between prior specific written comments on the particular proposed project or activity and the content of the objection, unless the objection concerns an issue that arose after the designated opportunity(ies) for comment (see paragraph (c) of this section).

The complaint describes how plaintiffs have met these requirements.  In my experience, it is unusual for the Forest Service to nitpick an objection like this, especially in a case where the parties have consistently described what their concerns are and what they would like the agency to do.  It’s certainly not consistent with the idea that pre-decisional objections are more collaborative than post-decisional appeals.  Is this a unique situation or is it a manifestation of Trump Administration policies to get rid of barriers to “getting the cut out” (again, “GTCOA”)?

7 thoughts on “Cherokee National Forest objects to objection”

  1. I have seen a lot of appeals go by and there can be random factors. As my old mentor, Dr. Gene Namkoong used to say, if you think the FS is doing something wrong, it’s more likely to be that they’re disorganized and random, rather than through organized malevolence. Even less that a WO or administration directive would filter through to a ranger district (possible, but not likely).
    The only time I’ve seen this has been with hiring directives.

    In this case, I would have to look at the objection and the response.. but I couldn’t find it on the FS objection site. Has the FS stopped loading objections and appeals so that people can search on them across forests and regions? I also couldn’t find them here I guess I find it hard to believe someone else’s story without looking at it myself.

    • I can email you any of the documents you want. The objectors submitted oodles of information and argument in comments, primarily about one specific issue (namely, that the same harvest methods on the same soils and slopes a dozen miles away caused really bad erosion, much greater than predicted or allowed by the forest plan). The NEPA documents did not explain why this project would be different. They raised the same arguments in the objection, which was “set aside” without response.

      As for the broader issue, there’s no doubt line officers are feeling increased pressure to get projects done. There’s also no doubt that they don’t have any more resources to do it responsibly. Locally, that seems to be manifesting more and more as doubling down on bad ideas instead of dropping them or slowing a project down to change them. This leads to defensive and evasive NEPA documents. Is this part of that pattern? Did the Forest service evade discussion of a serious problem because they were afraid it would clog up the project pipeline? Only they can’t say for sure. Regardless, however, they botched this process and added to the mistrust. They can only fix that by embracing transparency and accountability.

      • Sam, I am still disappointed that I couldn’t pick up the docs on the websites they’re supposed to be on. But please do send the objection and the response. My point is not that this may be bad, but that the explanation is pressure to produce. I have seen plenty of “bad NEPA” in my two related jobs (in DC and Region 2). There are plenty of explanations that I have seen including lack of staff, poorly trained staff, newbies that are learning processes, interpersonal relationships (is this worth overruling an employee about?) and so on. Thanks for this though, you have given me some ideas.

        • My point was more about objection policy than “bad NEPA.” I agree that bad NEPA can happen for many reasons, but “lack of staff, poorly trained staff, newbies that are learning processes, interpersonal relationships” should’t be a major factor in following the objection regulations. That kind of decision should have OGC input and could have political oversight.

  2. The decision to dismiss the objection was made at the Forest SO level, not the district, so more likely. But I generally agree with your mentor’s observation. In this case a court will tell us who to believe – unless the FS quickly settles the case.

    • Wherever they thought their greatest vulnerability was, we are eager to get this one behind us. The Ocoee District is doing some really positive and innovative stuff, and I think we will look back on this case as an outlier.


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