Is the Forest Service Trying to Evade the Public?

NY Times op-ed today: “Is the Forest Service Trying to Evade the Public?” by Sam Evans, National Forests and Parks Program Leader for the Southern Environmental Law Center.

“If the Forest Service has its way, visitors won’t know what’s coming until logging trucks show up at their favorite trailheads or a path for a gas pipeline is cleared below a scenic vista.”

That’s hyperbolic, to say the least.


26 thoughts on “Is the Forest Service Trying to Evade the Public?”

  1. The Forest Service’s proposed rule would shift 93% of its decisionmaking to CEs, which would not be subject to scoping, only notice in the quarterly SOPA (never a bastion of correct or current information in my experience). CEs are already not subject to administrative review. So, Sam is right that for many projects – including logging projects (for which there are several new CEs, including one for timber harvest on 7,300 acres) – the public won’t know about them until the project is underway or complete.

    That’s not hyperbole, that’s fact.

    • Susan, I disagree for the following reasons:
      (1) you are assuming that without the requirement to scope, the FS would not scope. Since many stakeholders have questioned if the FS will even use these CE’s based on the FS conservative NEPA inclinations, the idea that not only will they use CE’s all the time, but they will never scope, is unlikely.
      (2) I don’t know how folks got 93% but I don’t think people equate one oil and gas leasing EIS to one decision that refers to “reconstructing a power line by replacing poles and wires.” These are apples and kale. I totally understand why you are concerned about CE’s involving logging. and so I think that there is vast acreage of middle ground that is getting lost here.
      (3) If people are going to weigh in (perhaps we could call this pre-scoping, as emailing the contact person on the SOPA would help the FS decide whether it needs to scope) and we are moving toward that as being important, the FS should get better about SOPAs and making them readily available, and basically making it easier for regional and national groups to find projects they might be interested in. This would be a bit of an e-NEPA effort (I worked on the original PALS database).
      (4) I don’t know how you can say that you or Sam knows how many FS officials would not scope for a 4,200 acre project (that’s actually the max for harvesting not 7300). That CE has restoration requirements, and people want to know about those as well, and possibly volunteer to help. My view based on my experience would be 5% would choose not to scope a CE with 4,200 acres of timber harves- that FS folks are generally conservative with NEPA, but there are a few outliers.

      So you believe that 100% won’t scope 4300 acres of timber harvest, and I believe that 5% won’t scope. Neither can be “fact.” I guess I narrowly define “facts” as what we observe in the (adequately maintained) records after five years. I’d be willing to bet the figure is closer to mine than yours. Unfortunately, I’m less sanguine about getting adequately maintained records to win my six-pack.

      • Sharon –

        First, yes, I am assuming that unless there is a requirement to scope, most line officers – especially under this Admin. – will not scope. But don’t take my word for it, take CEQ’s. Horst Greczmiel, who spent 15 years at CEQ as the Associate Director for NEPA Oversight, said in his comments on the proposed rule:

        “It is not sufficient to say that additional public engagement is at the discretion of the local responsible official. History teaches that when a requirement is eliminated and emphasis on speed or streamlining continues to grow, then there is little, if any, likelihood that early engagement such as scoping will be used. Finally, if the Forest Service continues to “encourage() early and ongoing engagement with the public and other external partners (such as other Federal agencies, Tribes, States, and local governments) that is not limited to a single NEPA process”, then it should not be a heavy lift to merge scoping with that ongoing engagement.”

        Second, the 93% number comes from the Forest Service itself in the preamble to the proposed rule. There, the agency says that new categorical exclusions (CEs) would likely be used for up to 3/4 of the decisions currently authorized with an environmental analysis (EA) and decision notice and finding of no significant impact (DN/FONSI). 84 Fed. Reg. at 27,550 (estimating that, of its 277 annual decisions completed with an EA, up to 210 would be made with CEs). Based on data provided under the Freedom of Information Act fro this rulemaking, of the roughly 30,000 decisions made by the agency between 2006 and 2016, the vast majority (80.1%) were approved using CEs; 17.6% were approved using EAs; and the remaining 2.3% of decisions were made with EISs. If 3/4 of the EAs were shifted to CEs, 93.3% of all decisions would be authorized using CEs.

        Third, the SOPA is not an effective replacement for comments received during scoping. As you know, the SOPA simply includes the name of a project, the legal description, and perhaps a sentence or two about the nature of the project. This is “informing” on the public engagement spectrum, and provides no analysis of any kind. Scoping seeks comments from the public about a project, which requires more information to be provided to the public, and at least some kind of bare bones environmental review. Importantly, it also allows the public to offer feedback about a project, which is often quite useful to the Forest Service when it comes to project implementation.

        Fourth, CE 26 (the so-called “restoration” CE) allows for 4,200 acres of “commercial/noncommercial timber harvest,” 220.5(e)(26) but also allows for “restoration and resilience activities” including “terrestrial and aquatic habitat improvement and/or creation,” “hazardous fuels reduction and/or wildfire risk reduction,” “commercial harvest,” and/or “non/pre-commercial thinning” for a total footprint of up to 7,300 acres. I’ve seen dozens of projects where the Forest Service refuses to call “hazardous fuels reduction” or other cutting, felling, and removal of trees “timber harvest.” Moreover, from a regulatory construction perspective, it is at least arguable (and I bet this argument will be resolved by a federal judge) that the USFS considers the list of “restoration and resilience activities” to NOT be “timber harvest;” or else they wouldn’t be included in that list at 220.5(e)(26)(i), because commercial/non-commercial harvest is expressly listed at 220.5(e)(26) (which (e)(26)(i) further subdivides and defines).

        This may be an example of sloppy drafting by the rulemakers, in which case I truly hope they correct this mistake in any final rule.

        Yes, I think there are unscrupulous line officers out there who will push the limits of this CE. Why tempt them to do bad things?

        Finally, my overriding concern with this proposed rule is that it undermines public trust in the Forest Service, which badly needs the public to support them and help them implement science-based restoration on our national forestlands. Telling the public that their input isn’t important to 93% of the decisions this public land management agency makes is, I’m sure, making Gifford Pinchot roll over in his grave.

        The Giff’s 10 maxims, for posterity:

        • A public official is there to serve the public and not run them.
        • Public support of acts affecting public rights is absolutely required.
        • It is more trouble to consult the public than to ignore them, but that is what you are hired for.
        • Find out in advance what the public will stand for. If it is right and they won’t stand for it, postpone action and educate them.
        • Get rid of an attitude of personal arrogance or pride of attainment or superior knowledge.
        • Don’t try any sly, or foxy politics. A forester is not a politician.

  2. As a person who has gotten involved in the details of this proposed regulation (someone really owes me one for this!), and also with great respect for Sam Evans and his contributions to The Smokey Wire, what this op-ed basically says is that “The Trump Administration and the FS are trying to cut people out so they can carry out their nefarious logging schemes” . The problem, to me, with this is that anyone would look at this regulation and find (1) parts they agree with (2) parts they disagree with and (3) parts that are ho-hum-whatever. But what is the chance that the Times would post an op-ed with ideas like “we understand the Forest Service’s desire to harmonize its NEPA regs with those of its sister federal agencies; nevertheless, the history that previously the FS required scoping should be taken into account in this proposed regulation, perhaps by continuing to require scoping on categories x, y, and z, and not on a, b, and c.”

    I think it’s unlikely.

    • Sharon –

      POTUS issued EO 13855 (“Promoting Active Management of America’s Forests, Rangelands,
      and Other Federal Lands To Improve Conditions and Reduce Wildfire Risk”) at the end of 2018, tells the USFS (and BLM) to use more CEs, and reduce public process. In turn, the USFS only has two targets: board feet and acres treated.

      The USFS’s rule is calculated to deliver more board feet and less public oversight.

      While I have a lot of respect for many people in the Forest Service, including those who are told to do bad things to please an out-of-touch administration (remember that “raking the forest” tweet?), this proposed rule is absolutely about timber production and not good governance.

      It is also a wasted opportunity to work with the public to actually address the root causes of inefficient planning: the lack of funding, training, and staffing.

      • if it were all about timber production, why does 220.5 (12) include examples of “issuance of outfitting and guiding permit for mountain biking on NFS tails that are not closed to mountain biking” and “issuance of an outfitting guiding permit for backcountry skiing. It seems to me that those are responses to the backlog of special uses that was identified at the EADM workshops.

        Reasonable people may disagree about what are the root causes of inefficient planning. I don’t think that by putting out this reg the FS has abandoned efforts to train, staff and so on. One of the most serious and least popular efforts to cut through inefficiency was Fred Norbury’s (former Director of EMC) view that the culture of the Forest Service was that the business of producing NEPA documents and decisions was like a cobbler shop, and it should be more efficient like a Nike factory. Anyway, perhaps we could agree on recommending public annual reports with a public comment feature on all the efforts around EADM including data on usage of the CEs. I’d tend to want a “bipartisan” FACA committee to advise, but they are a pain in the patootie to set up and manage. I don’t know if it’s legal to have some kind of an informal advisory committee.

  3. I’ve been saying for years that the marginalizing of the extremes would be awkward and painful. Both extremes have their propaganda machines in high gear, counting on a confused and polarized public to donate money and embrace the misdirection, through lies and rhetoric. There are plenty of conspiracy theories going around, and the public seems to buy into all of them.

    Maybe we should have another go at those three “C-Words” again? (all of them!)

        • Maybe I’m mistaken. But I’ve heard this ‘two extreme’ idea for 20 years and have yet to come across this “clearcut every acre” group (or its propaganda machine).

          Want to make the case that oil, gas and mining is the opposing side? Okay. Maybe. Large timber companies? I’m not so sure about that. I think a much better case can be made that it is state and local governments that are the key drivers of this change.

          My point is that the “two extreme” idea diminishes the debate. Call out any invective-laden NYT oped for sure. But consider that it spurred good discussion from Sharon and Susan Jane Brown.

          • Obviously, you haven’t seen the legions of Facebook users saying “Log it, Graze it, or watch it burn”. Most of those in the extremes don’t even mention site specific conditions and treatments. The pro-logging folks WANT to go back to clearcuts and overstory removal, even in the Sierra Nevada, where that has been banned since 1993.

  4. Where I grew up, the other side of the road was Wharton State Forest. (NJ)

    There is a new development in that place now. Nobody knew until the buldozers showed up.

    I’d say that experience backs up that concern and it’s not hyperbolic.

    • But that isn’t a national forest. Like county planning, each kind of government entity has its own rules about public engagement.

      • OK, perhaps you will elaborate. What safeguards are in place, and do you expect will prevent a surprise “improvement”?

        • Let’s turn it around, Angelica, since folks have also been surprised by projects that have been scoped. What do you consider to be the right level of information sharing about a proposed project – that would avoid surprises?

  5. NEPA.GOV has this document: “Guidance: Establishing, Applying, and Revising Categorical Exclusions under the National Environmental Policy Act,” 23 November 2010.

    I thought it might serve as a valuable review in this discussion (emphasis mine).

    Categorical exclusions are not exemptions or waivers of NEPA review; they are simply one type of NEPA review. To establish a categorical exclusion, agencies determine whether a proposed activity is one that, on the basis of past experience, normally does not require further environmental review. Once established, categorical exclusions provide an efficient tool to complete the NEPA environmental review process for proposals that normally do not require more resource-intensive EAs or EISs. The use of categorical exclusions can reduce paperwork and delay, so that EAs or EISs are targeted toward proposed actions that truly have the potential to cause significant environmental effects.

    When determining whether to use a categorical exclusion for a proposed activity, a Federal agency must carefully review the description of the proposed action to ensure that it fits within the category of actions described in the categorical exclusion. Next, the agency must consider the specific circumstances associated with the proposed activity, to rule out any extraordinary circumstances that might give rise to significant environmental effects requiring further analysis and documentation in an EA or an EIS.8 In other words, when evaluating whether to apply a categorical exclusion to a proposed activity, an agency must consider the specific circumstances associated with the activity and may not end its review based solely on the determination that the activity fits within the description of the categorical exclusion; rather, the agency must also consider whether there are extraordinary circumstances that would warrant further NEPA review. Even if a proposed activity fits within the definition of a categorical exclusion and does not raise extraordinary circumstances, the CEQ Regulations make clear that an agency can, at its discretion, decide “to prepare an environmental assessment … in order to assist agency planning and decisionmaking.”

    If actions in a proposed categorical exclusion are found to have potentially significant environmental effects, an agency can abandon the proposed categorical exclusion, or revise it to eliminate the potential for significant impacts. This can be done by: (1) limiting or removing activities included in the categorical exclusion; (2) placing additional constraints on the categorical exclusion’s applicability; or (3) revising or identifying additional applicable extraordinary circumstances. When an agency revises an extraordinary circumstance, it should make sure that the revised version clearly identifies the circumstances when further environmental evaluation in an EA or an EIS is warranted.

  6. Norbeck Society Comments on Proposed Changes to USDA Forest Service National Environmental Policy Act (NEPA) Regulations

    The Norbeck Society is a non-profit citizen organization created in 2005 in South Dakota with the mission:
    “Friends and neighbors as advocates for stewardship, restoration and enjoyment of public lands, ensuring a conservation legacy for future generations.”
    Because of the Forest Service’s existing NEPA regulations, we have been and remain very active participants in the development of projects and programs proposed for Black Hills National Forest.
    We do not have a staff of paid analysts to dissect all the details outlined in the Federal Register Notice of June 13, 2019. Below are our comments based on the concept of the changes proposed and how we envision they will negatively impact our ability to continue to advocate for stewardship of Black Hills National Forest within a field of multiple users, including those with large corporate backing (e.g. commercial timber harvest, livestock grazing and mining).

    We agree with the need explained in the Federal Register Notice for desired revisions. It is a sad summary of the state of multiple uses and environmental stewardship and management that: “The Forest Service is not fully meeting agency expectations, nor the expectations of the public, partners, and stakeholders, to improve the health and resilience of forests and grasslands, create jobs, and provide economic and recreational benefits.”

    Our experience with management of Black Hills National Forest in the last 15 years does not allow us to agree, however, with the assertion in the Notice that the Forest Service currently is honoring a commitment to scientifically-based, high-quality analysis. Nor do we foresee that with the proposed changes in NEPA regulations, “The Agency will continue to hold true to its commitment to deliver to decision-makers scientifically based, high-quality analysis that honors its environmental stewardship while maintaining robust public participation.”

    What the Norbeck Society sees in our recent dealings with Black Hills National Forest is:
    1) A steady, erosional loss of scientific/technical staff positions and people in them who understand, research, analyze and communicate within and outside the Agency;
    2) A loss of leadership positions and loss of leadership ability in remaining positions to balance political pressure (from private industry to inside-Agency agendas at regional and national levels) with scientific conclusions in short-term project planning and long-term planning;
    3) Constant efforts to reduce transparency to the public regarding input from private industries and their role in shaping project plans;
    4) Attempts to streamline and speed up project development using sequential special orders and acts that stack projects (especially commercial timber harvest) on the same piece of ground, with no acknowledgement or analysis of cumulative impacts.

    The Federal Register Notice notes that Forest Plan documents exist that set out valid goals and objectives to guide project development. We note that Black Hills National Forest current Forest Plan (aka Land and Resource Management Plan) was written in 1997 with an Amendment in 2006. Black Hills National Forest is a very different place and set of resources than it was 20 years ago. A new Forest Plan is overdue by at least 5 years, yet no document is in development nor is there a schedule or funding for a Forest Plan anytime in the future. How can there be agreement between the Forest Service and concerned parties for speeding up designated Forest activities without any reasonably-current documentation of overall direction for Black Hills National Forest? We bring this up as an example because Black Hills National Forest is what we know and are dealing with. Other National Forests vary in their situations.

    To give a quick outline of an example – consider the Black Hills Resilient Landscape Project 2018 (BHRL), put forward under the umbrella of the Healthy Forests Restoration Act.
    Much of this large, undefined project area was also part of the large, undefined project area harvested for commercial timber under the Mountain Pine Beetle Response (MPBR) Act of 2012. Actions from the MPBR Act are still being carried out; conclusions of goals achieved are not reported and were not explained in the BHRL Project. BHRL is hardly under way and Black Hills NF recently released a Federal Register scoping notice for a Categorical Exclusion for Teepee Canyon commercial timber harvest in a project area included within the BHRL area. The scoping description provides no information regarding how the Teepee Canyon project relates to BHRL or MPBR Act and states that impacts fall within the level of Categorical Exclusion under NEPA. Norbeck Society has provided input for all NEPA processes involving these projects and has standing as formal Objector to the BHRL Project – and still we are confused about what is happening where, when and why.

    These projects are occurring within the context of several years of Forest Inventory Analysis (FIA) results showing that Black Hills ponderosa pine tree growth to mortality ratio in 2018 is 1:10-12. This is a significant depletion trend. The Black Hills National Forest Supervisor recently released information that FY20 timber sales volume will be 197,000 cubic feet, up from the final timber volume removed in FY19 of 183,000 cubic feet. Additionally, there is a requirement in the design of timber sales that includes regeneration of 150-450 or more trees per acre within 5 years of vegetation treatment. This does not set the stage for a healthy, resilient forest but rather another mountain pine beetle epidemic or wildfire catastrophe.

    Given this example, we trust you see that it is impossible for Norbeck Society to agree that the Forest Service is currently using scientifically based, high-quality analysis to design projects for the greatest public good in the Black Hills National Forest. The public has had to work very hard under the current Forest Service NEPA regulations to have any chance of understanding how and why projects developed, how they have been or will be implemented, and how they relate to additional activities occurring over time in the same location. The public will have more difficulties and less chance of understanding under the proposed NEPA regulations. Perhaps Black Hills National Forest is actually already applying the new NEPA regulation philosophy – that is, setting up larger projects on undefined lands, overlapping project areas, making unspecified applications of “condition-based management” and “adaptive management”, with bottom-line outcomes supporting commercial interests, no matter what scientific data/analyses show.

    Negative highlights we see of the Forest Service’s proposed changes for NEPA regulations are:
    – Less public input for most environmental reviews, at the discretion of local Forest Service officials
    – New projects piggy-backed on environmental processes for other, older projects (not recognizing differences)
    – More activities qualifying under Categorical Exclusion, with little or no environmental review
    – New categories for Categorical Exclusions that favor development and impact sensitive species, especially related to mining
    – Speedier (but not necessarily more accurate) handling of large projects
    – Shorter and less complete Environmental Assessments
    – No Environmental Impact Statements for mining operations expanded less than 640 acres

    These changes are proposed in the name of increasing efficiency. However, it is more important to us that the proposed changes significantly reduce the public’s right under NEPA to understand, to participate, and to have input into environmental reviews and project development. Our experience in Black Hills National Forest over the last 15 years is that public scrutiny and input by Norbeck Society (and other local groups and individuals) have been key to development and implementation of a balance of projects having a greater likelihood of widespread ecological stewardship, thus leading to a healthy, resilient forest.

    We are fortunate to have, in the Black Hills National Forest and National Forests across the country, such a grand resource from which so many people draw a multitude of benefits. The cultural, recreational, commercial (timber, forage, minerals), spiritual, watershed protection, and other benefits have enriched us in many ways and for a long time. The Norbeck Society’s purpose is to ensure these benefits flow perpetually to those who come after us. Generations of people in the future will need the country’s National Forests, too.

    It does not appear to us that the Forest Service proposed revisions to its NEPA regulations appropriately recognize and address issues regarding inadequate NEPA compliance.

    Thank you for the opportunity to comment. We never take our ability to participate for granted.

  7. FYI, a public radio article:

    “The U.S. Forest Service has extended public comment period on a controversial plan to relax environmental permitting for new logging and forest management projects across millions of acres of federal forest lands.

    “The proposal would upend long-held environmental practices that have been in place since 1970, and make it easier for timber harvesting and bulldozing forest roads in all 20 of California’s federal forests, including national forests in Mendocino, Tahoe, Los Padres, and Lassen.”

  8. And, thanks to Nick Smith for this link to an op-ed by Jim Furnish in the WaPo — which I can’t get since I’m not a subscriber:

    Opinion: This Trump administration proposal to roll back logging rules is reckless

    I was the supervisor of Oregon’s Siuslaw National Forest in 1996 when a huge landslide caused by shoddy road construction sent tons of mud and debris into a critical salmon stream. I felt terrible ― and personally responsible. In the rush to build logging roads along treacherously steep hillsides, we mismanaged forests for decades and pushed salmon and spotted owls to the brink of extinction.

  9. With all due respect to Jim, I don’t think bad road-building practices have anything to do with whether folks do a CE or an EA. It probably has to do with what the rules are for roads and how well the contract was administered.
    As to salmon, there were many (and continue to be) many pressures on fish populations. Improving forest practices over time may well be a success story. But again, whether the FS uses a CE or an EA, they are probably going to use the same stream protection practices.


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