I was intrigued by the Senate hearing where Senator Tester of Montana grills Chief Randy Moore here. Yay! someone talking about FS categorical exclusions! On Youtube!.
We already have discussed the Holland Lake Project (which Senator Tester didn’t mention by name) here and here.
Senator Tester seemed to think that the fuels CE he had voted on had been used for recreation. Around 1 minute.
Hopefully his staff knew more but.. why would they allow him to say something that’s obviously out to lunch?
Tester states that a corporation will come in (to this recreation site) with “potentially devastating impacts”, and “no public input.”
As Randy answers, CEs in the FS don’t mean “no public input”- there is required scoping. Yay, Randy! Scoping is public input.
As to “no public comment” here’s the scoping letter:
The full public scoping package can be found on the Holland Lake Lodge Expansion project webpage at: https://www.fs.usda.gov/project/?project=61746.
The Flathead National Forest will be hosting a public meeting about the Holland Lake Lodge Facility Expansion Project on Thursday September 8th, 2022, from 5:00-7:00 pm MST on the Holland Lake Lodge grounds at 1947 Holland Lake Lodge Rd, Condon, MT 59826. The purpose for this public meeting is to engage in information sharing with the public on project activities and to answer questions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be considered part of the public record and will be available for public review. Electronic comments must be submit- ted through the project webpage at https://www.fs.usda.gov/project/?project=61746. On the right side of the project webpage there is a box “Get Connected” click on the ‘Comment/Object on Project’ link to submit your comment. The sender should receive an automated electronic acknowledgment from the agency as confirmation of receipt. If the sender does not receive an automated acknowledgment for receipt of comments, it is the sender’s responsibility to ensure timely receipt by other means. Acceptable formats for electronic submission are text or
html email, Adobe portable document format (PDF), and formats viewable in Microsoft Office applications (e.g., Word). Please address your written comments to Project Leader Shelli Mavor, Swan Lake Ranger District, 200 Ranger Station Road, MT 59911. The office business hours for those submitting hand-delivered comments are 8:00 a.m. to 4:30 p.m., Monday through Friday, excluding holidays.
“The CE was meant for cutting trees, not for recreational purposes.” That’s not the CE that was used, so, well, that’s a false statement.
For the curious, it wasn’t a legislated CE. According to this article:
Recreation Site and Administrative Site CEs, 36 CFR §§ 220.6(e)(21) and (22)
These two new CEs allow for construction, reconstruction, decommissioning, relocation, or disposal of buildings, infrastructure, or other improvements at recreation or administrative sites. The Forest Service foresees using these CEs to help restore its aging infrastructure at various administrative and recreational facilities, as well as allowing it to establish agency procedures for facility master planning.
For me, as we’ve discussed before, if a category fits, use it unless there are extraordinary circumstances as defined in the regs. And Jon well represented another point of view.
Here is what the Flathead folks said in their scoping letter:
Based on a preliminary assessment, intentions are to categorically exclude the proposed project from documentation in an environmental impact statement or an environmental assessment under 36 CFR 220.6(e)(22): Construction, reconstruction, decommissioning, or disposal of buildings, infrastructure, or improvements at an existing recreation site, including infrastructure or improvements that are adjacent or connected to an existing recreation site and provide access or utilities for that site.
I’ll restate.. “based on a preliminary assessment, intentions are..”. In my experience in other Regions, this would have been met with “don’t use a CE” and “we think it’s overbuilding”, not the level of outrage that this forest seems to have received.
Tester framed it as making corporations rich.. but on the other hand, no one is required to stay or eat there, so they must be providing a useful service to individuals and families. In fact, Tester started out in his statement with how important the recreation economy is to the State of Montana. Hopefully none of those folks are growing rich :).
The actions of the career feds.. er.. “Gives government a bad name,” according to Senator Tester. Actually, having watched some recent Congressional hearings, I would give Congress an 90/100 for “giving government a bad name”, and the Flathead a 0/100.
Most irritating to me, Senator Tester even implied that the reason for the use of the CE was to sneak by and cut a deal with corporations.
It’s not really clear what kind of benefits would accrue to the employees of the Forest by “cutting a deal”. In my experience, when deals are cut, it’s at a much higher level than the Forest, even than the Chief.
I did get a laugh out of his next statement -“the government should never be cutting a deal”.
Indeed, folks in the Executive Branch cuts deals for corporations all the time- and indeed “make corporations rich off our public lands.” Here’s an example:
The Biden administration said on Wednesday it would cut in half the amount it charges companies to build wind and solar projects on federal lands, a move designed to encourage development of renewable energy.
The new policy comes after years of lobbying from clean power developers who argued that lease rates and fees for facilities on federal lands were too high to draw investment
It’s not clear from the newspaper articles if there was public comment on this change.
Anyway, I can hear it now, why pick on this guy? They all bloviate- it’s in the job description. Yes, I agree, but I’d like them all to be less casual with facts. And not punch down. Yes, it’s too much to ask, but I can still ask. Accountability- not just for agencies anymore.
28 thoughts on “Senator Tester Spreads Misinformation About Forest Service Categorical Exclusions at Senate Hearing”
The spirit and intent for CE was to ensure that really minor projects don’t have to go through a lengthy planning process.
For example when a dozens of trees fall across miles of a heavily used road in a storm and crews clear the road and the logs are on the side of the road, they could be quickly sold.
But if those logs are connected to a planning process for a much larger project, which could harm the environment, by the time the EA or the EIS process is completed those logs will have been sitting there for a year or longer and will most likely get poached for firewood, which makes the sale of the logs moot. That’s what CE works well to address…
Problem is the BLM and USFS gets jealous that minor CE log sales don’t have to go through the same planning process that their larger projects have to go through and so when they push the envelope of what a CE can get away with we take them to court and win.
That’s why for many, many decades public land managers and sawmills have constantly lobbied for expanding CE in every possible way because they think it will allow them to nullify much needed EAs or an EIS.
And yes beyond selling logs, there’s additional appropriate uses of CE for recreation related planning, but that just confuses what the never-ending litigation to prevent the expansion of CE Is all about.
As for Tester himself, I’m not even gonna bother watching. He’s just promoting whatever his primary funders told him to promote. There’s no representative government coming out of his mouth, there’s no meaningful policy work he’s actually doing here. He’s just saying stuff to get paid so he can afford to win the next election and keep the insider trading gravy train rolling.
Seriously, look at the wealth of our elected officials in congress before and after they get are in office. The corruption is insane… Some studies say they spend as much as 2/3rds of their work day raising money, rather than representing the concerns of the people who voted for them.
Tester? Haha! He knows how to cut deals, that’s how he can recognize one. He’s sponsoring the most blatantly discriminatory bill I’m familiar with, which was a collusion between Montana Wilderness Association and Ovando, Montana area outfitters. A deal, one created through a secretive process. He rewarded their selfish vision with a bill that has almost passed, likely just a matter of time. He disguised it as “stewardship” and various toadies are disingenuously promoting the bill. Once it passes we will all see the full impact of its built-in discrimination. Just watch.
But anyway, He may be somewhat correct about the Holland Lake Lodge project. Just trying to understand the public outrage, it does seem to warrant a full NEPA process with scoping, alternatives and robust public participation. It’s a big project in a sensitive area.
This might help explain the public outrage.
It seems to me (not a special uses expert) that the FS transferred the permit. That does not approve any specific construction or reconstruction. I don’t think the FS would be allowed to not transfer the permit to a specific other entity, because that entity is “not in the public interest.” It would seem- and would be- discriminatory.
The Special Use Permit specifically states that “The Forest Service is not obligated to issue a new permit to the party who acquires title to the improvements.”
I get that, but suppose the company takes the FS to court .. they would have to have a good reason.. not “they submitted a proposal people don’t like”.
The special use permit is not transferable. Change in ownership or control of the entity holding the permit automatically terminates the special use permit, and the entity that aquires ownership or control must apply for a special use permit. The Forest Service is under no obligation to approve a new permit. Those are the terms stated right on the face of the Holland Lake Lodge permit. The Forest Service ignored those terms and let the parties attempt to expand and upgrade by submitting an MDP and telling the public their preliminary decision would be to approve it as a categorical exclusion. The Forest Service accepted that MDP in April, 2022 but didn’t put it out for public comments until September, 2022, long after the permit had
been terminated. It took a lot of volunteers to expose what happened. The Forest Service should have resolved the permit situation before accepting an MDP. So, there’s a lot more to the story, and Tester asking the Chief to look into this seems appropriate.
I agree about the Chief looking into it.. but he’s still telling the truth about CEs.
Greg, that’s my point..unless I’m not understanding something
It’s 15 acres. They could put any new lodging or restaurant in the existing footprint with the same number of people… or do something different.
What do you think a “full NEPA process is”.. an EA or an EIS? because just as a NEPA person, an EIS with full blown alternatives seems like overkill for 15 acres of an existing developed rec site.
I hope I haven’t irretrievably confused this discussion. The discrimination I spoke of refers to Tester’s Blackfoot Clearwater Stewardship Act, which coincidentally is nearby Holland Lake Lodge.
What I’ve heard about Holland Lake Lodge is that the 15 acre footprint has never been accurate. Apparently the sewage system strays outside the permit boundary right now, and doesn’t adequately treat the sewage. Tripling the lodge size and building new rental cabins would necessitate a larger permit area. It’s not discriminatory, just inept or deceptive.
Tester has inserted himself into the Holland Lake Lodge issue in an attempt to change how Flathead NF is going about this project. Plus it’s to his political advantage. As much as I hate him and his staff, I admit he may do some good by speaking up.
The existing permitted acreage is actually only 10.53. It’s right at the top of the Special Use Permit. Despite knowing this, Wohlfeil, POWDR and the USFS have repeatedly told the public that the existing acreage is 15, and it took diligence and digging on the part of the public to expose the truth. (Members of the public have asked POWDR several times to correct their website, but those requests have been ignored and it still, inaccurately, reads 15.) So, already, POWDR has lied to the public and attempted to grab additional acreage, including shoreline frontage. In an email obtained via FOIA request, according to POWDR’s Brian Stewart, “more would be better.” And that’s just the tip of the iceberg. The USFS planned on ramming this through, with all its many “inaccuracies”, with limited public input, and the use of a Categorical Exclusion. That’s a problem.
The existing acreage is actually 10.53. It’s right at the top of the Special Use Permit, but despite KNOWING this, Wohlfeil, POWDR, and the USFS have been parroting 15 to the public since we were first notified of the proposed expansion in the fall. If it were not for diligence and digging by the public, the USFS would have simply given this additional acreage, including shoreline frontage, to POWDR, slipping it by as a “mistake”. The public has repeatedly asked POWDR to correct this deception on their website, but we have been ignored, and it still reads 15. In emails obtained via FOIA request, POWDR’s Brian Stewart asserts that any additional land would be good and “more would be better”. And this is just the tip of the iceberg! The USFS claims to have not even known who owns the improvements, and in fact, POWDR is STILL lying to the public about it. So, with so many “inaccuracies”, and the fact that POWDR’s plans go far beyond the lodge’s existing use, limiting public input and utilizing a Categorical Exclusion here is wrong.
If you really want to know… The permit was terminated by the actions of the holder when he gave control to a prospective buyer.
Here are details of what’s gone on here.
Obviously, Tester doesn’t understand CEs as much as he could, but I would not go so far as to say he’s spreading misinformation. There’s a lot more to be concerned about with the way the Forest Service is handling the Holland Lake Lodge proposal, and the Chief needs to look into it to hold people accountable.
Using CE authority vs EA/EIS was an issue in the beginning when the original MDP was being scoped. The Public Information Officer at the time told a journalist that they intentionally put scoping out to the public saying the preliminary decision was to approve with a the CE in order to create an inflammatory situation so they could get more public responses. Is it standard FS practice to intentionally create inflammatory scoping proposals to generate more public comments?
The MDP should never have been accepted, because the permit was terminated (in 2021) when control of the Lodge was ceded by the owner to a prospective buyer. A new permit was never applied for or issued at that time. A permit application was submitted in February, 2023 and is pending with the Flathed National Forest Service.
Background: The holder of the now terminated permit and a prospective buyer formed a partnership thinking they could get an MDP to update and significantly expand the resort approved. It took months of volunteer work to sort through and uncover all of the deception and misinformation involved. Once facts became clear, the public pressed the Forest Service to terminate the permit. Only recently did the Forest Service finally admit the permit is terminated by change in control. The way this process was, and continues to be, handled by the Flathead National Forest Service is deceptive and inept, full of misinformation. If anyone is spreading misinformation, it’s the FNF. They should have resolved the permit termination issue before accepting that original MDP. For more than 2 years the FNF worked on a proposal for an entity that did not have a permit. Then they accepted the proposal and put it out for scoping. The public was blindsided with the way this was handled and shocked by incorrect details (and misinformation) in the proposal. Permit acreage was incorrect, to start. While proposing to use a CE to approve the original MDP (which was returned in November) was a big concern, the deception, misinformation, and frankly, inept way in which this was/is handled trumps the preliminary proposal to approve it using CE authority. A large expansion almost doubling the permit area and tripling the use under did not fit CE authority in more ways than can be described. Proposing to approve with the CE knowing everything that has been exposed results in tremendous damage to the public trust. Now, after admitting the permit is terminated, the Forest Service wants to resurrect and issue it to the new controlling entity using (yet another) CE authority, different from the one proposed with the original MDP.
36 CFR 260 d.10 allows a permit to be amended for the existing use if the only change is the name on the permit. Wonder what you think about that? Is it ethical knowing what has been revealed to issue a permit to the new entity using this CE, or is this just another way to skew the intent of the law to issue a permit to an entity that is not interested in buying the Lodge as is. They want to build a big new resort. Once they get the permit issued with a CE, we will see a new MDP. (We haven’t seen the new MDP but we know one is coming if they get a permit.) What harm would there be in evaluating the permit application as a new one under 36 CFR 251.54 which would include screening and public comments?
Your readers who note that including the public is important are spot on. Had the public been treated with the same dignity and respect as the developers, this mess might have been avoided.
The Flathead National Forest Service Supervisor says he can approve the pending permit application without public involvement using this CE. Is that ok?
The public has to beg for involvement and threaten to sue, while the developers are treated like royalty in what the Flathead National Forest Service calls an “internal process”. What harm would there be if the Forest Service simply followed the law: 36 CFR 251.54 to screen the new application as a new one rather than amend a terminated permit using a CE? Terminated means terminated. New means new. The Forest Service also says that although the permit is terminated, the termination is not effective until/unless a new permit is issued. Does that make sense? So, if no permit is issued, for whatever reason, the termination is not effective indefinitely? Everyone knows the intent of the new entity is much more than taking over the Holland Lake Lodge as is.
In summary, there’s been a lot of misinformation about CEs, but it’s not because of Tester. Thank you, Gregory Beardslee, for putting aside your feelings about Tester and recognizing what’s at stake. Thanks to others for commenting on the social aspects involved, too. In my view, had the Forest Service followed their own rules from the beginning and included public land owners in the discussion, we would not be where we are, still in limbo, discussing CEs. This is not over.
“The Public Information Officer at the time told a journalist that they intentionally put scoping out to the public saying the preliminary decision was to approve with a the CE in order to create an inflammatory situation so they could get more public responses. Is it standard FS practice to intentionally create inflammatory scoping proposals to generate more public comments?”
Uh, no, I’d say generally FS folks try to scope to follow the regulations and unearth any possible future minefields. They’ve also been accused of scoping inadequately to avoid minefields that (almost always) crop up later. I have never heard of this…
Unless perhaps some employees wanted to use a CE because they wanted more public pushback against the proposal??? But my experience is that people who don’t want the project at the end of the day will still not want it, CE or EA or EIS so logically it’s not going to make a difference- if proponents and opponents both have legal access it will end up in court, and a possible infinite series of redoing NEPA docs until a deal is done or a proponent gives up.
Thank you. What does “not in the public interest” mean?
I’m sure that’s debatable by different members of the public :); but I’d say there’s probably a legal definition that’s above my pay grade.
You piqued my curiosity. I didn’t really expect the FS to spell this out very clearly because that would limit its discretion, but I did find this in the special uses regulations (36 CFR 251.56), regarding terms and conditions to include in a permit. In addition to some required terms and conditions, these might be in the “public interest”:
“(ii) Such terms and conditions as the authorized officer deems necessary to:
(A) Protect Federal property and economic interests;
(B) Manage efficiently the lands subject to the use and adjacent thereto;
(C) Protect other lawful users of the lands adjacent to or occupied by such use;
(D) Protect lives and property;
(E) Protect the interests of individuals living in the general area of the use who rely on the fish, wildlife, and other biotic resources of the area for subsistence purposes;
(F) Require siting to cause the least damage to the environment, taking into consideration feasibility and other relevant factors; and
(G) Otherwise protect the public interest.”
“In the context of noncommercial group uses, the Forest Service interprets the term “public interest” found in § 251.56(a)(1)(ii)(G) to refer to the three public interests identified by the Forest Service on August 30, 1995 (the Federal Register Notice issuing these regulations). These public interests include the protection of resources and improvements on National Forest System lands, the allocation of space among potential or existing uses and activities, and public health and safety concerns. Under this construction, § 251.56(a)(1)(ii)(G) allows the Forest Service to impose terms and conditions that are not specifically addressed in § 251.56(a)(1)(ii)(A)-(F) but only those that further these public interests.”
While this is aimed at including terms and conditions in a permit, the same factors could also be appropriate for denying a permit completely. I don’t know why it seems limited to “noncommercial group uses.” (The only other distinction made in this regulation allows requiring a bond for commercial uses.)
I’d love to see the FS documentation of why a special use permit is in the public interest based on specific factors.
Just thinking here..
There is a lodge. It was in the public interest, apparently or wouldn’t have a permit. If the new owners wanted to continue doing the same thing, would it not be in the public interest?
So to me the FS could reissue the permit with the current terms and conditions
To say that group X could do it but group Y can’t, with the same terms and conditions, would seem discriminatory.
Unless the NEPA construction/reconstruction were part of the permit itself. But then we have an interesting problem of any occupation of the site or maintenance not being permitted to anyone once th property is sold, which seems like a bad concept for safety and maintenance. Where are the retired special uses folks when we need them?
Why isn’t saying incorrect things about CEs “spreading misinformation”? Like the FS is using fuel treatment CEs to approve recreation facilities?
He was wrong?
Yes, he spoke about Congressional intent… for fuels CEs. In this case it’s an Administrative CE, so it didn’t specifically go before Congress. Congress doesn’t vote on all CEs.
Thank you. I do hope Chief Moore will look into the Holland Lake Lodge debacle as he told Tester he would.
For clarification of my earlier statement with background on why we’re where we are and it’s not over, here is the new CE that the Forest Service Supervisor says authorizes him to approve the new permit application.
36 CFR 220.6(d)(10)
(10) Amendment to or replacement of an existing special use authorization that involves only administrative changes and does not involve changes in the authorized facilities or increase in the scope or intensity of authorized activities, or extensions to the term of authorization, when the applicant or holder is in full compliance with the terms and conditions of the special use authorization. Examples include but are not limited to:
(i) Amending a special use authorization to reflect administrative changes such as adjustment to the land use fees, inclusion of non-discretionary environmental standards or updating a special use authorization to bring it into conformance with current laws or regulations (for example, new monitoring required by water quality standards), and
(ii) Issuance of a new special use authorization to reflect administrative changes such as, a change of ownership or control of previously authorized facilities or activities, or conversion of the existing special use authorization to a new type of special use authorization (for example, converting a permit to a lease or easement).
The question is why use this CE now, knowing that the applicant’s intent is not for the existing use, the intent is to get a permit so a new MDP to expand the resort may be submitted? I’m not saying deny the permit application. I’m saying don’t shortcut the process with permit approval by CE. Evaluate the application as any new application would be evaluated guided by established regulations which include screening and public comments. Once a decision is made, the next steps will be whatever they will be based upon a trustworthy process and solid foundation.
I think that 1) we know that the applicant wanted x. 2) we don’t know what they would settle for less than x, so 3) the fact that they had previously submitted something people don’t want should take them as an organization off the table?
If outfitter-guide Schmoe wanted to transfer his permit to Hernandez and Hernandez fit the screening criteria, I’m not sure what the value of public comment would be. But that’s a Special Uses question.
Not saying take them off the table. I’m saying the permit shouldn’t be approved using a CE. It should be screened as any new permit would be screened. If the applicant meets criteria, go from there.
This has been fun. Thanks for the forum.
Connected actions are actions that are “closely related” and “should be discussed” in the same NEPA document (40 CFR 1508.25 (a)(1)).
Actions are connected if they:
(ii) Cannot or will not proceed unless other actions are taken previously or simultaneously.
(iii) Are interdependent parts of a larger action and depend on the larger action for their justification.
This determination would be made prior to deciding to use a CE, and the decision to use a CE would have to be based on the scope of the entire action (otherwise it is “segmentation” of an action, which is prohibited). NEPA is always about what is “reasonably foreseeable.” Someone take it from here …