Extraordinary Extraordinary Circumstances? The Flathead’s Holland Lake Project and Using a CE

Early TSW readers may remember that this blog was started in 2009 with me and Martin Nie,  a professor of the University of Montana, discussing forest planning, when the 2012 Planning Rule was beginning to be designed.  At the time, we called the blog “New Century of Forest Planning.” One of the reasons Martin was so fun to argue with is that we disagreed on many things about planning. My idea was that in the relatively arcane world of forest planning, students would learn from heating different perspectives.  I haven’t heard from Martin lately, but apparently we still disagree.

Yesterday it turned out that the Forest Service rejected the proposal, according to KPAX

They cite inaccuracies between the master development plan and the proposed plan.

Tammy MacKenzie, the public information officer for the Flathead National Forest, told MTN the plan to expand the lodge at the base of the Swan Mountain Range was bigger than what was originally asked for.

I thought this earlier article from the Daily Montanan “Flathead National Forest: Decision on Holland Lake likely coming this week or next”  was interesting in terms of  Martin’s more general comments on Forest Service public involvement, NEPA and the use of CEs, as reported.

In comments and at public meetings, many people have called on the Forest Service to do a thorough environmental review and not grant a categorical exclusion. Martin Nie, director of the Bolle Center for People and Forests at the University of Montana, is among those.

In his Oct. 5 letter, Nie talked about working for a center named after the late Arnold Bolle, named in the Gallery of Outstanding Montanans in the Capitol as the “Dean of Western Forests,” he said.

He said Bolle led an investigation of forest management in 1969 that resulted in a report that found the Forest Service’s culture didn’t involve the public “in any way but as antagonists,” and he said decades later, the same is true.

Wow, that’s quite a claim! All that work with collaborative groups, all that learning, all those requirements, it’s hard to believe he really said that. Perhaps in his experience. Not in mine. More likely there is literature around that, there certainly is around improving processes (e.g.this 2006 Leach paper).

“Rarely have I been approached by so many citizens about a local project or proposal, all with deep concerns and lots of questions about the proposed expansion and the Forest Service’s misuse of NEPA,” Nie wrote of the National Environmental Policy Act, which sets the standards for exceptions and reviews.

He said granting exceptions to some projects “is both reasonable and necessary,” but the Forest Service is using the NEPA exclusion “to an alarming degree,” some 84 percent of the time.

I’m hoping that the Forest Service uses both statutory and regulatory CEs as appropriate. For me, that’s kind of the point of being in a federal agency, do what Congress says, plus your own rulemaking. Suppose there is a new legislated CE for certain outfitter guide activities. Would that be even more “alarming” because the percentage of projects using CEs would increase? Also, if the number came from the 2020 Fleischmann et al. paper, it should probably be 82% (rounded from 82.3 in the abstract)*.

But federal regulations prohibit the exception where there are “extraordinary circumstances,” such as where threatened or endangered species might be affected, and he said the Flathead National Forest’s own plan identifies unique characteristics of the area.

“The ecological setting of Holland Lake provides a textbook example of extraordinary circumstances that warrant closer environmental analysis and full public participation,” Nie wrote.

For those of you who aren’t familiar with finding items of interest in the FS NEPA regulations here is a link. Extraordinary circumstances are at 31.2.

31.2 – Extraordinary Circumstances

Resource conditions that should be considered in determining whether extraordinary circumstances related to a proposed action warrant further analysis and documentation in an EA or an EIS are:
(1) Federally listed threatened or endangered species or designated critical habitat, species proposed for Federal listing or proposed critical habitat, or Forest Service sensitive species;
(2) Flood plains, wetlands, or municipal watersheds;
(3) Congressionally designated areas, such as wilderness, wilderness study areas, or national recreation areas;
(4) Inventoried roadless areas or potential wilderness areas;
(5) Research natural areas;
(6) American Indians and Alaska Native religious or cultural sites, and
(7) Archaeological sites, or historic properties or areas.
The mere presence of one or more of these resource conditions does not preclude use of a categorical exclusion (CE). It is the existence of a cause-effect relationship between a proposed action and the potential effect on these resource conditions and if such a relationship exists, the degree of the potential effect of a proposed action on these resource conditions that determine whether extraordinary circumstances exist. (36 CFR 220.6(b))

I actually don’t see “ecological setting” included.  I’m guessing the environmental docs on this project discuss this..

16 thoughts on “Extraordinary Extraordinary Circumstances? The Flathead’s Holland Lake Project and Using a CE”

  1. I’m all for using CEs as much as legally possible and socially acceptable but will confess my first thought when reading about the resort MDP was that it seemed like an unnecessary reach. Not saying the development should or should not be approved, I don’t know enough about it to speculate on that, but why antagonize the public with a CE determination for a project that you know is going to have significant public opposition? The number of days you can shave off compared to a light analysis EA is not worth the trouble.

    • Yes but they decided against the project without the unnecessary work.. or do you think it would have helped them with the decision? Because it could be argued that people against the project will always support more analysis.

  2. The basic question to answer is whether the proposed action to expand the lodge has a cause-effect relationship with ecological settings that warrants further examination. If “no”, and the action fits a category, then why not use a CE to cover the analysis requirements of NEPA? Not every project warrants an EIS.

    Sounds like the project has not adequately addressed the social interest/concerns with the project. This would require the Forest to act beyond the regulatory minimums, which line officers are reluctant to do in the name of time efficiency. So, how much more efficient is it to charge into a headwind of public discontent?

    • The headwind of public discontent would probably be there regardless of level of analysis. It seems to me that the place to address that is in the decision itself, not the analysis. As Anonymous says below, what are they likely to find that will change their minds? I think the question is “is there a compromise that will be satisfactory to everyone, and if not, whose view should win?” That’s not an environmental analysis question, in my view. At the end of the day, if everyone cannot get to a decision they can live with via conflict resolution, then it’s a political decision, in some sense, as to who wins and who loses.

      • 100% agree, Sharon…this decision will not turn on any level of environmental analysis. It WILL turn on which social values drive the decision and how that choice is explained. The FS flounders with this situation.

  3. The Flathead PIO needs to get educated on CE’s. The current regulations allow up to 20 contiguous acres, and as pointed out do not allow for “ecological setting” as an extraordinary circumstance. They also leave wide discretion as to methods and levels of public involvement. To argue for an EA, which absolutely is more cost and time, just to allow for more formal public coins t opportunities, is entirely against Congress’ intent. That being said a master development plan is intended to ensure these types of uses are balanced between what is necessary for public use and enjoyment, and protection of other NF values. So decision sounds reasonable, Mr. Nie’s critique not so much.

  4. granting that the “levels” of analysis and concept of extraordinary circumstances are not readily straightforward, it is surprising to see this. Extraordinary circumstances

    A few thoughts in order: one, that the CE is not obviously ruled out by the language of the category. One wonders if it was a different sort of recreation facility (perhaps not one under private ownership?) if it would generate the same level of controversy.

    Generally, I’m of two minds here. On the one hand, controversy as a barometer for the “level” of NEPA seems to be bad practice.

    Why? For one, if you have the tool, use it. Two, perpetuating the idea that doing more analysis will provide an answer that resolves the conflict is far from plausible (Nie is obviously aware of this, see Governing Western Public Lands, p. 176-178, making one look askance on his comments here)

    On the other hand, the nature of privately owned recreation on public land seems to be an area of increasing controversy (AZ snowbowl, others), and this is more interesting than the (frankly probably empty) call to do more analysis (after all, what information would possibly emerge in the analysis that changes the minds of those party to the conflict?).

  5. Sharon,

    A few people alerted me to your write-up about Holland Lake and my comments that were pulled by a reporter from my letter to the USFS about the proposal. Just some quick clarifications for the record because you mischaracterize my statement and I would have been happy to send you my public comment if so requested.

    First, my comparison to the Bitterroot controversy and Bolle Report was focused on this particular proposal and local opposition and disbelief. Period. Nowhere in my short letter do I suggest the USFS’s approach to public participation is similar to that of 1970. I understand and appreciate how much has changed in this regard.

    Second, my cat ex figures were pulled from the USFS and are cited in my letter. (“The agency now completes an average of 1,588 CE determinations, 266 environmental assessments (EAs), and 39 EISs annually (between 2014-2019). U.S. Forest Service, NEPA Compliance Final Rule, 85 Fed. Reg. 73,620 (Nov. 19, 2020).

    Third, nowhere in this letter did I reference “ecological setting” as part of CE regulations. I used the term to describe how this special place was characterized in the recently revised Flathead National Forest Plan and think it is pertinent to the proposed CE.

    Martin Nie

    • Thanks for responding, Martin! I did use the phrase “as reported”; often there are nuances that get missing in reporting. Your letter was indeed very interesting and now that I have it I will post on it separately. This project raises a number of interesting questions, as we see in this discussion.

  6. good clarifications – thanks. Can you explain why or how an ecological setting is pertinent to a CE ? my training and experience is that a CE is 2 part 1) doescit fit category; and 2) are there extraordinary circumstances. Perhaps you are speaking to the planning rule requirements for Forest Plan consistency? If so those have case law indicating detailed analysis is not required, more like brief rationale. I like Anon’s comments above – controversy is a bad barometer for NEPA level. And if the public only knew and understood that much of the rec opportunities they enjoy are a result of private enterprise…..have been since the 1915 Term Permit Act……silly reason to object in my mind.

    • I don’t think it’s a reach to characterize the first two or three extraordinary circumstances as an “ecological setting.” I also think that a CE needs to consider extraordinary circumstances in the proper context of scale and extent of the project effects. Here the issue is growth-induced effects that would occur in a much larger area than that covered by the permit and could implicate these factors. (I agreed with your statement about the 2-step CE process in the other post on this, but said I don’t think this project gets past step 1.)


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