Introducing a KISS Old Growth Amendment

Let’s go back to what law prof Bagley said in yesterday’s post.

 Minimalism should be the watchword. New procedures should be greeted with suspicion and old procedures should be revisited, with an eye to cutting them back or eliminating them

When someone told me that the proposed OG amendment wasn’t pronounce OG (ahhg) but actually NOGA (nohgah, like nova), it reminded me of the word nova, or no va in Spanish.  It doesn’t go.  As proposed, IMHO,  it’s just another layer of paperwork and talk stratigraphy overlaying the possibility of … action.  To that end, I’m proposing instead, a KISS (keep it simple, stupid)  old growth amendment.

So I think we need to start the discussion with the point of the NOGA (formerly MOG) exercise.  It appears to me that someone in the Admin (likely above the Secretary of Agriculture)  is doing this work with the rationale “we want to support our friends.”  Both parties do this, and if there were a third party in office, they would do it too.  So I am not criticizing this tendency, I accept it as a fact of political life.

When I worked on Colorado Roadless, I was told that we needed to do what a certain ENGO wanted.  Their rep kept telling us “you have to give me somethin’-somethin'”.  I think of this, and wonder “was there a way to give the Key Influential Group or Groups something that didn’t require extra work from all the forests, partners, Tribes and volunteers? ” After all, setting up desired conditions and making forests and cooperators do “adaptive management strategies” makes the majority of the work float downhill.   When the titans clash, the rock pieces fall on the heads of.. Forest and District people, partners and the public at the local level. But what if we just acknowledged the reality- to paraphrase Solzhenitsyn” we know what’s going on, they know what’s going on, they know that we know what’s going on, and we know..” and so forth.  What if we all just opened up about this reality and figured out a “somethin’-somethin'” with minimal extra procedures?  Perhaps the FS, the Department and the White House have had that discussion, and it wasn’t satisfactory to the KIGGs (Key Influential Group or Groupss). Still.. we can talk about it here, or even suggest it in our comment letters.

In this particular moment, the Forest Service has paused hiring,  plus has the Congress breathing down its neck about accomplishments.    Having read and analyzed the alternatives in NOGA,  I would like to suggest one designed with the idea of possibly the groups “somethin’-somethin'” and minimizing the (extra, unnecessary) work for everyone else.

My alternative would be to simply put one new standard in the national amendment.  It would be the standard in alternative 3, no commercial harvest in OG as determined by on-site review of each forests’ OG definitions.  No other DCs, objectives or standards.  That would be the whole amendment enchilada.

What would happen with this standard ? It would cost more to do service contracts in identified OG areas.  Part of the KISS alternative would be that counties would be reimbursed for the foregone receipts from timber sales in identified OG, so they would be made whole.

The EIS analysis that would be most germane, it seems to me, would be the additional costs of doing service contracts (plus the county reimbursements)  rather than timber sales in OG.   These additional costs could be estimated, and weighed against the costs of developing Adaptive Management Strategies, as well as the opportunity costs of the work not done by the FS employees, Keystone Agreement folks, collaborators, partners and volunteers while they are developing “strategies” and working on new objectives, and all the new analyses. Based on what Travis Joseph said in his podcast, industry doesn’t want OG anyway (at least not in the NW).  So there’s that.

I went down a little bit of a sidetrail on the question of what is “commercial”, whether it’s an administrative thing (the timber sale contract or service contracts) or whether someone who received a service contract wouldn’t be allowed to sell the logs- because maybe if they were large the contractor would bid less?)  I don’t know enough about this.

I am not a fan of the objectives requiring projects to do OG improvement, when people are clamoring instead for projects to reduce risks to their homes and communities. It places the FS in a difficult situation of not doing things people want them to do, and being forced to do things people in communities, elected officials and Tribes may not see as a priority. I don’t see this as good for relationships, which over the long term,  is not good for federal forests nor people.  Nor for building support for government programs.  It’s especially not a good look to promulgate during a big wildfire season.. like this year.

This is not to be critical of the FS in any way, although the rumor is that the desired conditions and other fairly obtuse wording was contributed by a contractor with a legal background.   It reminds me a bit of the language of the 2012 Rule, which I considered notable for what I called at the time “bristling with legal hooks” and what still seems to me, a jungle of unnecessarily complex verbiage.

There are  positive ideas in NOGA about Indigenous knowledge and Tribal rights and sovereignty.  There is also, probably equal or more excellent,  language  in the NWFP FAC committee report.  Problem is, each of those is just a piece of the FS decisional pie.  Why not select a simple, easily comprehensible, better way to treat Tribes and make that a national policy?  Actually, I thought it already was.  If the point is that it needs to be part of NFMA to be enforceable, then maybe a separate Tribal amendment?

And monitoring? That doesn’t have to be in a plan, nor all plans, at all. If you want it to be national, and meaningful, just do some satellite stuff, with ground-truthing, every five years.  In fact, I would almost bet there are folks doing this already, or, if not, we could fund FIA/NOAA or whomever to do it.

So those are my thoughts. To summarize, (1) analyze a simple alternative that doesn’t require extra work for the FS and partners, except where old growth considerations are not already included in project analysis.  (2) Prepare a Tribal/Indigenous policy or plan amendment.  (3) Develop a monitoring program outside of NFMA.  There.. done!

As always, ideas, suggestions, critiques, other alternatives appreciated.

23 thoughts on “Introducing a KISS Old Growth Amendment”

  1. The Adaptive Management Strategies would be done by the Planning Service Groups (at least according to the WO). Yes, forests would have to have some level of involvement, but they would not be leading or carrying out the bulk of the work.
    Most “commercial” removal in “old-growth” is not old-growth trees – it is smaller, younger trees that have encroached due to a lack of disturbance and have created fuel ladders and high crown bulk density that carries crown fires in drier forests or it is reducing the density of these forests to reduce the stress on the old-growth trees from drought and insects (and climate change?). I would think that the American public would want to have some income go to the treasury for that work instead of having to pay tax dollars to have it removed. Or those receipts could be used to finance additional restoration work instead of relying on congressional appropriations.

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  2. Likely a dumb question – feel free to laugh: The roadless rule already severely restricts harvest in unroaded areas, including unroaded OG areas. So the new amendment, whatever it might end up looking like, will mainly affect roaded OG areas (ROGA – sounds like Yoda’s grandfather). Where are those?

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    • No question is too dumb around here, Rich.. because really how many people can track even what’s in the NWFP FAC recommendations, let alone as SJ pointed out above, what the FWS said in its 2011 recovery plan? And you know quite a bit of stuff, I, for one don’t know. Each of us have only a piece of the elephant and we can only get the bigger elephant picture by comparing notes, IMHO.

      Yes, tree-cutting is off limits in Roadless Areas under the 2001 Rule (the state rules are more complicated). However there are exceptions.. here is the actual language.

      The cutting, sale, or removal of generally small diameter timber is needed for one of the following purposes and will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.

      (i) To improve threatened, endangered, proposed, or sensitive species habitat; or

      (ii) To maintain or restore the characteristics of ecosystem composition and structure, such as to reduce the risk of uncharacteristic wildfire effects, within the range of variability that would be expected to occur under natural disturbance regimes of the current climatic period;

      (2) The cutting, sale, or removal of timber is incidental to the implementation of a management activity not otherwise prohibited by this subpart;

      (3) The cutting, sale, or removal of timber is needed and appropriate for personal or administrative use, as provided for in 36 CFR part 223; or

      (4) Roadless characteristics have been substantially altered in a portion of an inventoried roadless area due to the construction of a classified road and subsequent timber harvest. Both the road construction and subsequent timber harvest must have occurred after the area was designated an inventoried roadless area and prior to January 12, 2001. Timber may be cut, sold, or removed only in the substantially altered portion of the inventoried roadless area.

      So outside of Roaded Roadless (4) you could cut old growth to “reduce the risk of characteristic wildfire”. Except it would have to be “generally small diameter.” Then the other issue is that you can’t build roads, which tends to make it unlikely that a timber sale would be used. Unless they’re there already. Sorry if that’s confusing. But people could still cut trees and leave them, or burn them in piles or broadcast. This seems unlikely unless the trees were right around houses, and some places there’s way too much of a fuel load to make burning without some kind of removal safe.

      In the 80s I went on a field trip to Lake Tahoe, where apparently residents didn’t like burning, so they were removing material using wheelbarrows (I’m not making this up).

      Given all that, it is possible, albeit unlikely, that the FS would propose a timber sale in unroaded roadless, but they might do fuel treatments without selling the trees

      So if I were the Department, I would ask the Influential Groups “is this about the idea that the FS prescriptions are swayed by the timber industry/getting timber bucks?” if so, then simply no timber sales in OG. But if it’s about no treatments at all in OG, even those that would protect OG, then we would have to explore their ideas further.

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  3. Adopting procedural requirements is a substitute for making substantive decisions. That can be for good reasons (we don’t have enough information yet) or not so good (we are afraid to make a decision). Sometimes the unwillingness to make a decision is because there is too much disagreement and somebody doesn’t want to take the heat. More commonly, I think, is the principle that substituting procedural requirements keeps the substantive options open, and we know that the Forest Service wants its FLEXIBILITY. They PREFER procedures to that other option.

    “… doesn’t require extra work … except where old growth considerations are not already included in project analysis.” I assume that this “exception” is the problem they are trying to correct, that they have some idea of the magnitude of the problem, and that it is more the rule than the exception.

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  4. “Part of the KISS alternative would be that counties would be reimbursed for the foregone receipts from timber sales in identified OG, so they would be made whole.”

    The legal definition of “make whole” is “to pay or award damages sufficient to put the party who was damaged back into the position he/she would have been in without the fault of another.” More generically it assumes someone has harmed someone else by interfering with their right to do something. I’m not seeing where the fault lies or what that right is that would be impaired and justifies compensation.

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    • I read this provision to be kind of an extension of the Secure Rural Schools concept – if the new rule would have the effect of reducing a county’s federal timber base then the government would compensate the county in manner analogous to the SRS act. (How this could be done in accord with applicable appropriations laws is another question.) But I agree that the phrase “make whole” could be problematic. The wording on the FS SRS page perhaps captures the idea better: “to help stabilize the funds available to rural counties.”

      https://www.fs.usda.gov/working-with-us/secure-rural-schools

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    • Well, if you think that there is an agreed-upon relationship between counties and the FS with regard to timber receipts, it would be interfering with their “agreement” – not “right” to get funding.
      law.com doesn’t say anything about rights..
      “v. to pay or award damages sufficient to put the party who was damaged back into the position he/she would have been in without the fault of another.”

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      • Wyden has a standard floor speech regarding Secure Rural Schools – the thrust of the speech is “we had a deal.” The federal government facilitated the settlement of the PNW by promising that the settlers would be able to make a good and stable living. The settlers held up their end of the bargain, but the feds ultimately didn’t.

        There is nothing really legal about this argument, and Wyden’s characterization of the history can be debated. But I’m guessing his views are consistent with many throughout rural OR, at least.

        The KISS language at issue here isn’t directly related to SRS, but I think it may be directed at addressing Wyden’s narrative.

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        • Rich J.. there’s more history to it than that.. Here’s a roundup by Ron Roizen. https://countieswithnationalforests.wordpress.com/2015/12/15/the-script-counties-in-crisis/

          Chapter 4: National Forests Created

          On our side of the Atlantic, the national forest system was a byproduct of the Progressive Era, around the turn of the 20th century.

          Gifford Pinchot, the Forest Service’s first head, and his good friend, President Theodore Roosevelt, were its passionate advocates and chief architects.

          Together, they rapidly expanded national forest lands. From 1905 to 1910, while Pinchot headed the agency, national forest area ballooned out from 56 to 172 million acres across 150 forests.

          By 1910’s end, the Forest Service commanded fully 90 percent of the land area it commands today.

          The expansion drew heated opposition, particularly in the West.

          Westerners were concerned that national forests would blunt potential growth in population and commerce.

          Because federally owned lands would pay no taxes, county governments and local school districts saw that their property tax base shrink – in more than a few cases, dramatically.

          Local counties, moreover, retained the responsibility for maintaining forest roads and public schools.

          Idaho’s Senator Weldon B. Heyburn, among others, wrote long, detailed, and passionate letters to T.R. and Pinchot, laying out the hardships imposed by new national forest designations in that state.

          In 1907, Congress reacted with the Fulton Amendment to the agricultural appropriations bill.

          It terminated the president‘s authority to proclaim new national forests, now reserving that authority to itself.

          Pinchot and Roosevelt, in turn, responded by further hastily expanding the national forest system before the new appropriations bill took effect, on March 7, 1907.

          This bold – some might say, audacious – action added some sixteen million new acres to the system with the stroke of a pen.

          They became known as the “Midnight Forests” for their rushed mapping and last-minute designation.

          Chapter 5: Pinchot’s Guarantee

          Gifford Pinchot couldn’t ignore the howls of protest coming out of the West.

          He reassured westerners that what appeared to be the disadvantages of national forest lands were actually blessings and advantages, because such forests were now protected from the depredations of private ownership and big business.

          Pinchot’s “Use Book” manual argued that federal governance wouldn’t limit the uses of national forests but instead would insure that they achieved their highest use.

          All the customary productive uses of forests would go on unfettered.

          Also, national forests would proffer a ready timber and wood supply to the local “ home builder, the prospector, the miner, the small mill man, the stockman, and all kinds of local industries.”

          The 1907 edition of Pinchot’s “Use Book” addressed the issue of lost county property tax revenues directly. He painted a rosy picture of greater benefit in return for this seeming deprivation.

          Federal ownership, he boldly asserted, “did something better” than paying property tax.

          It paid counties a portion of federal receipts from timber sales – and, did so year after year.

          Private timberlands, on the other hand, he wrote, tended to be laid waste by greedy owners, thus reducing taxable value.

          A national forest, Pinchot wrote, “does not act like a wall built around the public domain, which locks up its lands and resources and stops settlement and industry.”

          Instead, national forests offered an enduring, well cared for, productive, and rich resource for the states privileged to host them.

          This, then, was the understanding, the grand bargain — with its guarantee of enduring forests and productive forest use — that helped assuage the West’s grave concerns and helped quell the roiling controversy surrounding the creation of the national forests.

          It would last almost a hundred years.

          Also here’s the text of the 1908 Good Neighbor Act https://alleghenyforestalliance.org/wp-content/uploads/2019/06/Act-of-May-23-1908.pdf

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          • Thanks, Sharon! Yes, Wyden’s speech makes it clear he is at least somewhat aware of this history, although he recites it in abbreviated form. Unfortunately, I can only find the short version of his speech, which is here (among several other places in the Congressional Record):

            https://www.govinfo.gov/content/pkg/CRECB-2000-pt12/pdf/CRECB-2000-pt12-Pg17949.pdf

            at pdf p.5.

            This story is accurate but incomplete, as it elides the wild commodity price swings, predatory competition, and class warfare that plagued the Oregon timber industry in the years preceding the Great Depression.

            https://www.oregonencyclopedia.org/articles/timber_industry/#:~:text=Timber%20communities%20in%20Oregon%20operated%20in%20an%20economic%20environment%20that%20prospered%20and%20suffered%20with%20the%20price%20of%20lumber.%20Timber

            As Robbins indicates in the paragraph just preceding the link, mill technology evolved rapidly in the late 19th and early 20th century. This led to further conflict as the bigger and more advanced mills drove the smaller ones out of business.

            I mention all this not to deny that there was a kind of deal between the forest nationalists (if you will) and the affected localities, but rather to note that the situtation of timber-dependent communities, in OR at least, was hardly idyllic before the environmental legislation of the 1970s. Even in the post-war boom years, industry consolidation and mechanization yielded benefits for some but not others.

            Changes in federal laws in the 1970s may well have made the situtation of timber-dependent communities in the West more precarious, but the idea that these communities were not at all precarious before those statutory changes must be viewed with skepticism. Whether and to what extent any given Oregonian benefitted from the deal was something of a crapshoot, with the dice generally favoring those who owned more dice.

            Readers interested in learning more about OR’s timber industry history should google William G. Robbins, about whom more here:

            https://www.oregonencyclopedia.org/about/authors/91/

            In addition to the materials listed at the link, he has published numerous open source and paywalled articles.

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      • I’m glad you and Rich know the history so well. Perhaps “rights” wasn’t the best choice of words, but “fault” has to do with responsibility So the question is whether the Forest Service has any responsibility for a particular level of national forest logging, such that it would owe something to somebody for reducing it, and it’s pretty clear, currently and legally, that it does not.

        Others can argue about whether that is “fair” or not, but I’ve never been convinced that local government costs associated with the presence of federal lands typically outweigh the benefits. Sure they could get more revenue from more taxable private property, but their costs for roads and schools would go up, too. What am I missing here? (I suppose you could make the leap that private ownership would prevent loss from wildfires, but I don’t think the facts back that up.)

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        • To unpack the “deal” concept in the context of the timber counties in OR, it may be useful to get behind Wyden’s generalities. I agree that the “deal” established no enforceable legal obligation, but it may be worth trying to figure out where that idea comes from.

          Oregon was admitted as a state in 1859. At that time, the general understanding was that the concept of “federal land” was, with few exceptions, a temporary one. The federal government’s job, via the General Land Office, was to sell off its land, primarily (in theory) to yeoman farmers.

          This concept failed in the timbered districts of OR – the farmable portion of those lands was (and is) derisory. Timber provided the only economic value for most of these lands.

          However, the impermanence of timber settlements quickly become evident. The disastrous mismanagement of timber resources in the Lake States, culminating in the Peshtigo fire in 1871, raised questions about whether as yet unharvested districts could ever be settled on a permament basis.

          By the early 1900s, Pinchot had arrived at the answer, and it was revolutionary: the government would keep the land and administer it for the benefit of surrounding communities. This, in essence, is the “deal” – let the US retain the land, and in exchange the US will manage the land to ensure that timber was harvested in a sustainable manner that kept local towns intact – not necessarily until the end of time, but indefinitely. However, there was no legal commitment to a specific level of harvest or a specific revenue level.

          In seeking political support for legislation authorizing the establishment of a Forest Service, Pinchot did agree to forward 25% of timber receipts to the affected counties. This may have been styled as a replacement for the taxes private harvesters would have paid, but it was in any case a bribe, and a very effective one. This amount probably far exceeded the amount county governments of the time could have actually extracted from the private companies, especially since those governments were often in the pocket of the timber companies or the railroads, both of whom despised taxes.

          (The 50% revenue share on O&C lands is the result of Secretary of Interior Harold Ickes’ desparate bid to wrest control of the national forests from the Forest Service – he secured the O&C lands but got no further.)

          As Sharon pointed out, this revenue sharing system worked until timber receipts began to dry up in the early 1990s. The Secure Rural Schools Act represented a way of moving beyond “the deal” – counties would get payments that made up (at least to some extent) for lost timber receipts, until they could “transition” to post-timber economies. As has been documented elsewhere (probably by Headwaters, among others) this worked in some places but not others.

          Some counties were able to transition, but these were usually the counties least dependent on timber revenues to begin with. Other counties were left behind, and many of those never accepted the idea that “transition” was a desirable goal in the first place – indeed, some did and do consider the very concept insulting. These are the places where “the deal” is still very politically relevant, and for which easy answers (legal or otherwise) to their problems still appear to be beyond reach.

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          • Yes, thanks for this summary. It all makes perfect sense up to the point where some “never accepted the idea that “transition” was a desirable goal in the first place.” We’re talking about buggy whips and coal mines again (or Studebakers where I come from, which was the top employer, and then contributed to the Rust Belt). I don’t think the fact that a century ago government officials appeared to promise this would never happen makes it “unfair” today.

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            • Or these rural areas could take all the tax money from the large tax bases in the cities within their states, while making their own local rules that go against the whims and desires of the larger urban population centers generating the tax revenue. Same concept, really.
              Maybe for every 10 point increase in AQI in an urban area from July to October, one million dollars can be sent to the rural county the smoke came from.

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              • States already have systems for redistributing taxes to equalize funding for schools with small tax bases (don’t know about roads). Could you elaborate on how this is the “same concept” as “owing” rural counties something based on past behavior? I see the former as education being good for society as a whole, not just the poor communities.

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    • Diameter is measured at precisely 4.5 feet from the ground on the uphill side. This is to eliminate the varied sizes of the flare at the bottom of the tree. There are other rules for measuring ‘DBH’ that involve forks, swells and other specialized situations. It is not to increase the size limit of trees that can be thinned. It is an established scientific standard for measuring the size of the trunk of trees.

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