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.
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.
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?
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.
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.
Sharon, thank you! Good food for thought.
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.
“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.
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
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.”
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.
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/
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
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.
So I think there’s three different questions.
1. Was there some kind of obligation or deal (promises made) to counties to help them make up for lost tax payments? I think the answer is “yes”.
2. a)should that have been specifically timber receipts? It seemed to work for a while but now doesn’t hence SRS funding.
b) should another approach be used today? For example, for payments to DC, there is the concept of “structural deficit” that is used. https://forestpolicypub.com/2013/12/11/say-why-not-apply-d-c-s-structural-deficit-concept-to-counties-and-schools-with-national-forests-ron-roizen/ or directly to his piece on NWAF https://countieswithnationalforests.wordpress.com/2013/12/10/say-why-not-apply-d-c-s-structural-deficit-concept-to-counties-and-schools-with-national-forests/
3. I remember those discussions of how much the owl decision affected the industry compared to other factors. Today, though, we would want to have considerations of a “just transition” if we were to do something similar. This wasn’t a concept at the time. Anyway, even NPR says jobs were lost..
“The listing of the spotted owl led to the eventual shutdown of 2.4 million acres of forest in Washington alone, and 30,000 forest jobs were lost,” with of course, impacts to communities beyond the related businesses themselves. I don’t think anyone is downplaying other industry factors. But many people (not me) on TSW were actually there, so I would tend to believe their experiences.
“1. Was there some kind of obligation or deal (promises made) to counties to help them make up for lost tax payments?”
If promises are made by someone who doesn’t have the authority to execute them, is it still an “obligation?”
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.)
KISS. Oh, you mean like diameter limits measured at stump height to ensure accountability.
Not sure what you’re talking about..???
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.