NEPA Study, Western Environmental Law Center Letter

The Western Environmental Law Center recently sent this letter to the USFS, regarding a study in the Journal of Forestry on agency NEPA processes. The letter stats that “The conclusions of Fleischman et al. support the analysis and conclusions in our comments on the Forest Service’s proposed rule. The root causes of “delays” with NEPA analysis and completion are not due to the regulations or the law itself, but rather the way in which the Forest Service staffs, trains, and retains (or not) its employees, as well as declining congressional funding levels for mission-critical work.”

Greenwire has an article on this topic today:

A new study takes aim at the idea that environmental reviews take too long for timber and other projects in national forests.

Forrest Fleischman, a professor at the University of Minnesota’s Department of Forest Resources, said his research largely shows the opposite: that the Forest Service completes environmental reviews faster than other federal agencies and that the vast majority of projects on land the service oversees proceed without a major hitch.

The real problem, Fleischman told E&E News, is staffing or funding shortages or both, and the difficulties seem to vary from Forest Service region to region.

“I think the main story is budgeting,” said Fleischman, who added that he had long accepted that the National Environmental Policy Act is a roadblock to forest management — a narrative popular with many Republican lawmakers and the Trump administration. “That really doesn’t seem to be the case.”


33 thoughts on “NEPA Study, Western Environmental Law Center Letter”

  1. We had a pretty good discussion of the reality of Forest Service NEPA here:

    It lines up pretty well with the idea that it is a “management” problem. Here’s what I said then:
    “I think a number of the comments here have shown some of the reasons why nothing changes. A couple of additional things I’ve thought over the years. Specialists preparing NEPA documents that don’t really understand WHY they’re doing NEPA; instead they just try to follow agency instructions for HOW. These instructions are generic and result in including things not needed for particular projects. You also have specialists who want to make sure they have as many pages as everyone else. There has been lots of NEPA training in the FS (I provided some), and I’m sure it helps. But then, when you do get someone who actually understands what they are doing, they move on to a job they really want (there’s no glory in the agency for being great at NEPA).

  2. Here’s what Imbergamo has to say, in the E&E article
    “One of the biggest is a lack of information about the acreage involved. Most categorical exclusions are for small jobs such as extending a forest road, improving campsites or clearing hazardous trees near roadways after a wildfire, they said, but the Forest Service doesn’t keep close track of acreage.

    “Categorical exclusions do not enable the agency to implement the large scale land management projects that three successive administrations have said are needed to restore the health of our national forests,” said Bill Imbergamo, executive director of the Federal Forest Resource Coalition, representing timber companies.

    “When the Forest Service uses EAs or EISs to reduce hazardous fuel loads in regions hardest hit by the forest health crisis, they are routinely challenged both administratively and in court,” Imbergamo said.

    Among the most egregious examples, Imbergamo said, is a nine-year delay in a “modest” 4,500-acre project in the Custer Gallatin National Forest in Montana. Despite going through an expedited process for NEPA projects, he said, the proposal stumbled amid a legal challenge.

    “Creative litigants found a hook and forced the Forest Service to waste years fighting spurious legal claims,” Imbergamo said.”

    Given our recent discussion about the Black Hills, it’s also interesting what Fleischman said about it:

    “In the Black Hills National Forest in South Dakota, officials seem to have the NEPA process down well, Fleischman said. There, forest managers conduct more environmental impact statements than in other forests, yet complete them in a year and half, compared with three and a half years elsewhere, he said.

    He added: “Maybe we should all be copying them.”

    Or maybe it has to do with a relative lack of litigious groups there? And as I observed, high level attention and support from some Administrations? I am a firm believer in the wonderfulness of Black Hills NEPA people, but it’s not fair (given other evidence and studies by the GAO) to compare them to Montana.

  3. I just thought it seems timely that Fleischman’s conclusion from his work is juxtaposed on TSW with “Dating back to 2007, the Alliance litigated or threatened to litigate 24 of R-Y’s timber contracts equaling over 100mmbf.” (I don’t know about the quantities but we have followed some of this litigation).

    Again, the study has taken the National, Regardless of Kind of Project, to claim that, not just the Trump administration and Republican lawmakers, but all these other folks’ observation over time have just been.. wrong. I’m not saying that the FS doesn’t have much management stuff they could improve, but the black cloud of litigation exists in certain areas for certain kinds of projects.

    • So, if you are a good manager, you’ve recognized that that your area has one of those black clouds – how do you manage that? I’d suggest the first thing you do is question why you need that kind of project in that place, and consider alternative places (and/or alternative projects in that place). If you’ve got a real good case for why it has to be there and now, you put your best people on it to reduce the risk of legal error and you manage the process well. If you get an administrative objection, you take it seriously to avoid litigation. (Keeping in mind that it should be possible to meet performance “targets” somewhere else, or if that isn’t the case, maybe a good manager would question the targets.)

      • The “black cloud” of litigation often stems from the efforts of groups who are opposed to logging, or at least commercial logging. The Sierra Club is a noted example. Bark, one of the groups that sued the USFS over the Crystal Clear Restoration Project, which we discussed here recently, has this goal:


        * Bark will end all profit-driven extraction of resources and enabling infrastructure in Mt. Hood National Forest and surrounding public lands
        * Bark will prevent development, commercial recreation and other non-commercial proposals that degrade water quality, destroy native forests, threaten wildlife or damage cultural resources

        How do you manage to work with groups with such aims and aren’t much interested in compromise?

        • “How do you manage to work with groups with such aims and aren’t much interested in compromise?”

          Are you posing this question about the timber industry? The fracking industry? The coal mining industry? The Trump administration? The right-wing protesters storming state capitol buildings in recent days with military assault weapons and military tactical gear? Or is this question just posed to some environmental groups who think public lands, clean water, biodiversity, wildlife habitat should be protected?

          In the United States of American is BARK doing anything illegal by holding such views about how public lands should be managed? Can the same be said about the timber industry, fracking industry, coal industry, Trump administration or right-wing militia/Nazis members? How do we manage to run a country full of diverse people from diverse cultures when some people in this country want Jews to be exterminated and deny the holocaust? Or some people think women should not have the same rights as men? Or some people think black people should be lynched?

          • Matthew, I think I was pretty clear. Some groups seem to be less interested in working collaboratively on forest-management projects than they are in litigating.

            • BARK isn’t doing anything illegal and BARK is fully participating in ALL of the REQUIRED public lands management processes. BARK has every RIGHT to do what they are doing and to believe what they believe. In the current political and social environment in the United States of America (and given a global pandemic directly related to destruction of nature, and within a climate crisis and extinction crisis) you attempts to make it seem like BARK is doing anything outside of the lines strikes me as odd and likely self-serving to your industry and profession.

              P.S Thanks BARK! Keep Barking, out!

              • Hang on, Matt, I didn’t say Bark is doing anything illegal. The folks I know at Bark are well-intentioned but, in my view (opinion), they’re misguided regarding Crystal Clear. How does one deal with groups that have “end all profit-driven extraction of resources and enabling infrastructure” as a goal? Not much room for compromise.

                • That’s a question you will have to answer yourself, Steve. But BARK has every right in the world to hold that view. One could also say that given the current state of the world (as outlined above) BARK’s view, which appears to apply to only the Mt. Hood National Forest and surrounding public lands, may actually make a lot of sense.

                  Finally, how does one deal with groups that have “no more Wilderness” as a goal? How does one deal with groups that have “no road demission/closures” as a goal? And again, how do we as a society deal with groups of people who think Jews and blacks should be exterminated? In the greater scheme of things “dealing” with groups like BARK that want to defend nature, clean water, wildlife habitat, stop extinction and protect public lands seems a little easier. Maybe you should join them and BARK-out.

                • Steve,

                  Sorry, old pal, but I can’t let this go….

                  “How does one deal with groups” of heavily armed militia members who took over the Malheur National Wildlife Refuge in your state a couple of years ago? I don’t recall you saying much about that.

                  These heavily armed, white, anti-government militia members in the Bundy clan owe the American people over a $1,000,000 in unpaid grazing fees and used weapons to take over a National Wildlife Refuge to support a family (the Hammonds) who were convicted of arson on federal public lands and who threatened to kill federal land managers. “How does one deal with groups” like this? Did you or Society for American Foresters say anything about that?

                  The current president of the United States of America pardoned the people who were guilty of arson on federal public lands. “How does one deal with groups” like this?

                  Once pardoned by Trump the Hammonds were flown on a private jet, riding alongside Forrest Lucas, the owner of Lucas Oil, who used his relationship with Vice President Mike Pence to help secure the Hammonds’ release. “How does one deal with groups” like this?

                  For football fans, remember when Mike Pence staged his NFL protest (complete with documented fake photo) at Lucas Oil Stadium because a black man had the audacity to silently and respectfully take a knee to protest police killing black people and black people having their civil rights violated daily in the United States of America? “How does one deal with groups” like this?

                  But, BARK is the real problem, right? I mean, how do we deal with people who want to protect public forests, clean water and wildlife habitat in the midst of all of this?

                    • Steve, I’m sorry that you can’t, or won’t, answer your own question when applied to the situation I’ve outlined above. Everything I’ve outlined above is documented and verifiable, not only as it relates to federal public lands issues, but also, unfortunately, to the current state of our world. But sure, keep BARK-ing up the wrong tree and let’s see how that solves these systemic problems facing the world right now.

        • I think there should be plenty of room for compromise.

          The 1st bullet lines up with the Forest Service policy of paying more attention to what’s left on the land than what is taken from it (or at least that was a policy principle for the 20 years before Trump). There can be a lot of vegetation management that isn’t “profit-driven” and some could still result in some lumber.

          The 2nd bullet, opposed to degrading, destroying, threatening or damaging national forest resources, is consistent with the sustainability principle embedded in the 2012 Planning Rule.

          • Perhaps not “profit-driven” for the agency, but contractors can’t operate at a loss. It is not immoral or unethical for private businesses to profit from performing services for the agency (and the public).

            • I think what Jon means, perhaps, by “profit-driven” is that cutting trees with the only purpose of selling them (not restoration or resilience or whatever).

              I believe that is a legitimate use of federal lands (based on MUSYA) and I’ve read purpose and need statements that say that “the purpose is to provide timber.”

              • True, that. The purpose and need should be derived from the forest plan, and forest plans mostly predate ecosystem management.

                • Jon, what do you mean by “ecosystem management?” You mean the concepts that the New Perspectives group worked on in the 90’s? “considering all things”? Or something else?

                  • I was trying to use the term generically, as in managing the ecosystem rather than the timber volume/value. While NFMA promoted managing forests instead of trees, I tend to link it in practice to the spotted owl, and the first round of forest plans was done by the early ’90s, when that happened. Conceptually and analytically, the difference is timber volume/value driving the outcome then vs vegetation conditions driving the outcome now.

      • Jon, what you seem to be saying is that if you get an objection, you should just move on to “somewhere else”, which seems to give lots of power to the objectors.

        But what if (as has happened in R6) both timber folks and enviro folks object- what does it mean to take both of them “seriously”?

        • I suggested “go somewhere else” earlier in the process (when you first see that black cloud). Then, by taking an objection seriously, I mean they have to give you their legal arguments then, so you can do a realistic assessment of your litigation risk. I think there are often warning lights here that are ignored.

  4. Wading into a minefield here, but I might suggest some compromise and some background.

    As a litigator, I value access to the courts as essential to American democracy. I will always defend the right to go to court to seek redress. And I oppose efforts to curtail that access.

    That said, litigation isn’t always the right tool. Sometimes collaboration and partnership is a better avenue to achieve objectives.

    There is robust collaboration occurring in Grant and Harney Counties in eastern Oregon, the location of the Malheur Wildlife Refuge takeover. As folks may know, Harney County did not welcome the occupiers. Grant County is a little different, but there, too, loggers, ranchers, environmentalists, and the Forest Service have been working together for more than a decade to change the dialogue and use science to restore the Malheur National Forest and provide for local community economic well-being. It’s working.

    Like litigation, collaboration isn’t always the right tool either, nor is it for everyone. We should never force people to a collaborative table who don’t want to be there. That’s one reason why we need a robust NEPA process: so all voices can be heard.

    Bark *does* sit at the collaborative table on the Mt. Hood. While they have an end commercial logging stance, that doesn’t mean they don’t try to work with the agency where appropriate to improve commercial timber harvest. I think many of us have goals (“lose some weight”) that we do our best to achieve, but realize will take time to achieve (“…but this cake looks tasty”).

    In fact, Bark was at the collaborative table when the Forest Service proposed the Crystal Clear project. The collaborative group was in the process of working together to develop a different project, but the USFS leadership came in and told the collaborative group that rather than work on the collaborative project, they were shifting resources to Crystal Clear – to chase volume targets. You can imagine how well that went over with the collaborative.

    I confess I’m surprised that Bark won its lawsuit in the Ninth Circuit. But also not surprised, since Bark’s attorney Brenna Bell is excellent, and I suspect she ate DOJ counsel for lunch. I also believe that the government has petitioned for rehearing, so that story isn’t yet complete.

    • Thanks for this background, Susan. I agree with you that sometimes litigation is the right tool.

      I think you can also appreciate that to folks who have worked on projects, sometimes the judicial outcomes seem random, depending on vagaries of the judge, or as you point out, the face-off between attorneys, and the FS has no ability to select who will represent them. That’s why “we do the best we can” and “going to court is a crapshoot” can coexist in people’s brains.

      • Most definitely! I am sure that the legal process seems like a black box to those who aren’t in it day to day. That’s why I try to share that knowledge with nonlitigants because it helps to demystify the process.

        For those agency folks who deal with the specter of litigation, or litigation itself, the stress is real and I’m sure it feels like a personal attack and that “everything” one does ends up in court. This is why the Fleischman and other papers are valuable: they take an agnostic approach to analyzing the data, and the data shows that the actual rate of litigation is quite low.

        • Again, that’s a function of where the FS unit is, and what kinds of projects they are working on.
          For example, if you were at a university and you felt that your department had a ridiculously high level of committee work that interfered with your teaching, research and extension work. Someone came in with a study that said across the university, averaged across all departments, was not so bad. Because you were only one of say, 70 departments. So clearly there is not a problem, despite your perceptions that there is.

          Or you could take a community whose economy is suffering.. because the state/regional/federal economy is good (not now, obviously) then your community is an outlier and everything is really fine.

          Different spatial/temporal scales can give different answers.

          • I agree. And what’s good for the goose is good for the gander: if NEPA is only “a problem” for some units, then the Forest Service should spend time working to address the situation *on those units,* rather than undertaking a national rulemaking (for example) that does not recognize local or regional differences.

            Of course, that raises the subsequent question of whether it is certain units that struggle, or given the Forest Service’s penchant for requiring staff to move around to be promoted, it’s a people problem.

  5. Hi all,
    I want to chime in to this discussion as Bark’s staff attorney, who was lead council in the lawsuit that Steve mentioned as well as being a founding member and five-year participant on the Wasco County Forest Collaborative, which is the collaborative group that the Forest Service circumvented when it planned the Crystal Clear Project. In contrast, Bark did not even object to other vegetation management projects on the east side of Mt. Hood, like the Rocky Restoration Project, that were planned with full participation of the collaborative group.

    Steve knows this, as he has invited me to come as a guest speaker to his class twice talking about Bark’s work and specifically about why we chose to sue on Crystal Clear (our organization’s first lawsuit against a timber sale in five years). I told his students about how the sale was planned without participation of the collaborative group, how it logged almost 2,000 acres of suitable spotted owl habitat in designated critical habitat, how it planned to log thousands of acres of mature forest (up to 330 years old) for “fuels reduction” even though the project was specifically intended to produce twice MHNF’s annual timber volume.

    What I don’t understand is why Steve is now acting as if Bark such an extremist group and ignoring all the work we do with the agency to improve their management projects. Also, if a three-judge panel from the Ninth Circuit agreed with Bark that the Forest Service did not adequately review or discuss science that contradicted its findings – how is this extreme? I invite people to read the opinion and judge for themselves if this lawsuit was indeed a “black cloud” or simply a corrective to the Forest Service ignoring pertinent information:

    • Hi Brenna: Thank you very much for taking the time to provide some important context and background information here about Bark and your work, especially in light of Steve Wilent’s comments.

    • Smokey Wire folks, I apologize for Steve Wilent not coming even close to telling the entire truth about Bark. “How does one deal with” people who won’t tell the truth?

  6. Wow… pretty juicy stuff. Having worked on Siuslaw NF pre- and post- owl plan, and having achieved a “lasting peace” in a former timber fortress under siege that yielded 25 YEARS!!! without a single timber sale appeal or lawsuit, I think I have some legitimacy to address the issue. (This accomplishment is unique, I believe, in last 50 years of FS history) There is NOTHING to prevent FS from pursuing legal activities, orgs like BARK notwithstanding. Matt makes MANY serious and important points. The table is definitely tilted in favor of env antagonists, especially when FS engages in NEPA buffoonery. It is elemental that the FS has to make a bona fide case for action, which includes describing negative env effects, even “significant” ones. But this does not prevent action. It is why most NEPA cases are lost on procedural merits. As I said in another post elsewhere, timber industry has almost no legal leverage to make the FS offer them timber sales. In the final analysis, if you choose to do something that smart, feisty opponents disagree strongly with, you better have your shit together.

    • My experience with minerals projects is that even if you have your shit together, there may be something somewhere in the project that litigants can pick apart- because they are looking for something to pick apart.

      So on one hand, the EIS should be perfect in every respect, even in the way it estimates things that are basically unestimable (for which, of course, there are different ways of estimating). And others would say the document can be both perfect and short.

  7. A bit more grist for the mill… Siuslaw NF worked with FS Research and OGC to do an EIS that spanned 10 years on about 40000 acres and covered all anticipated projects work (Five Rivers project). DEIS was 38 pages + appendices; FEIS “ballooned” to 85 pages + apps… Took about 8 months start to finish. Product drew yawns or downright antipathy from Reg Office NEPA shop. NO APPEALS. We disclosed significant effects INSTEAD of spending 400 pages proving there were none. No need for glib FONSI. This was also right smack in the middle of T&E spp — owl, salmon, murrelet. Just sayin’ it CAN be done! Always amazed me that FS (collectively) paid little attention to this project when they were trying so hard to streamline NEPA costs and time.


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