Since planning is where this blog started, and is arguably where most of the things discussed here should be addressed and resolved at a national forest level, and is what I did in the Forest Service, I would be remiss if I didn’t provide an occasional status update, especially because three national forest are at key points in their plan revisions (below). Here is the the summary provided by the Forest Service in March.
Most of the interest going forward is in how the 2012 Planning Rule would be implemented, and there are three national forests that have completed their revisions under that regulation: Francis Marion, Flathead and El Yunque. The Flathead has two pending lawsuits.
The Inyo has completed is objection process and the Forest is completing the assignments from the reviewing officer. Here is the reviewing officer response to the objections. The wildlife section illustrates what I think is a problem with the objection process – where the reviewing officer identifies a problem there is no follow-up to determine if what a forest says or does actually fixes the problem; even though the record is inadequate, the regional forester basically trusts the forest supervisor. Examples:
Finding: The ROD states that the plan components meet the diversity requirement, but it does
not appear to meet the planning rule requirement to provide an explanation of how the plan
meets the diversity requirements of 36 CFR § 219.9.Instruction: Include a summary in the ROD that provides an explanation of how the plan
components meet the diversity requirements.
What if the explanation reveals that the plan doesn’t actually meet the diversity requirements?
Finding: The record lacks scientific rationale for why 3 years of surveys are sufficient to determine that PACs are no longer occupied (SPEC-CSO-GDL 02).
Instruction: Clarify the record related to removing PACs.
Finding: Much of the management direction from the lengthy Humboldt-Toiyabe National Forest Land Management Plan Amendment related to sage grouse are reflected in the Revised Inyo Plan, but several standards and guidelines were not brought forward into the Revised Plan. While the record states that the revised plan is consistent with the Humboldt-Toiyabe Amendment regarding sage grouse, some Humboldt-Toiyabe Amendment plan components were not included, and there is a lack of rationale for which plan components were and were not included.
Instruction: Clarify in the record how the sage grouse related plan components from the Humboldt-Toiyabe Amendment were incorporated, or were not incorporated, and why.
What if the rationale is arbitrary, and the plan components are wrong?
Sometimes the Forest could actually change a decision, with apparently no recourse for the public but to sue:
Finding: It is not clear in the project record why the Destination Recreation Area is exempt from the California Spotted Owl plan components.
Instruction: Unless a clear rationale can be provided, remove the Destination Recreation Area exemption language.
And what if a “clear rationale” is not provided in the other examples where the instructions were to “clarify the record?”
And then there’s this “suggestion for the responsible official.” “Consider including the list of species of conservation concern in the plan.” Since the monitoring plan program must be explicitly tied to SCC (36 CFR §219.12(a)(5)(iv)), how could the plan not mention the relevant species?
The next forest expected to complete its revision is the Rio Grande. It has released its final EIS and draft ROD and is in its 60-day objection period. Here’s some more about that.
The plan also altered the Southern Rockies Lynx Amendment to include the dead tree habitat. “The original amendment only included green, healthy forest habitat, so we modified it to include our dead tree habitat which allowed for better management strategies,” said Perez.
The “original amendment” was also based on the best available scientific information about lynx and their habitat.
The Sierra and Sequoia national forests have issued a revised draft EIS and its public comment period closes September 26. Maybe they have addressed the “burning” issues we’ve discussed on this blog?
What you said: “The wildlife section illustrates what I think is a problem with the objection process – where the reviewing officer identifies a problem there is no follow-up to determine if what a forest says or does actually fixes the problem; even though the record is inadequate, the regional forester basically trusts the forest supervisor. ”
While it is true no followup is specifically required, my experience was that followup does happen. I worked on the Lake Tahoe Basin Management Unit LMP, which was the second in the country to go through the objection process. We followed the lead of the Kootenai/Panhandle, and included an appendix in the Final ROD which listed page numbers in the EIS and Plan where changes were made in response to objection instructions. The Region reviewed and approved those changes before the Final ROD was signed. I cannot say for certain that these have become standard procedures, as I am now retired (Yay!). But it makes sense – this kind of documentation and checking is in the agency’s interest, because one wants the record to be in the best possible shape in the event of subsequent litigation.
D. That was my experience as well in Region 2 prior to objections but the same idea with appeals. If you are going to all that work, and you are likely to end up in court (especially for folks wanting to make case law), you always need the record. Now there might be a case where the Forest wants to resolve the issue one way and say regional specialists might want to resolve it another way. In my experience, this would all be hashed out in meetings, but the end result still agreed and written up between the Region and the Forest. Different Regional Offices, RFs and DRFs may operate differently. For one 1982 plan, I remember our RF making edits on the ROD.
Good points. There is even a line in the resolution letter that says, “I am instructing the Forest Supervisor … to proceed with issuance of a final ROD for this project once I have had a chance to review the implementation of the instructions identified in the attachment to this letter.” However, I have a hard time reconciling this with the requirement in the the regulations that “The response of the reviewing officer will be the final decision of the USDA on the objection” (36 CFR § 219.57(b)(3)). It doesn’t look there is authority for a follow-up.
Under the old appeals process there was some effort to preserve the objectivity of the review process by prohibiting ex parte communication between the reviewer and the reviewed. The new objection process is also supposed to provide an “independent” review (36 CFR §219.50). If follow-up were allowed, the kind of internal “negotiations” you are describing wouldn’t provide this kind of process.
Another update: A comment period on the draft plans and EISs for the Carson, Santa Fe and Cibola National Forests is ongoing and ends November 7. Links can be found here: https://www.fs.usda.gov/detail/r3/landmanagement/planning/?cid=fsbdev3_022051