I won’t let this opportunity go by without linking to the Forest Service’s own document describing CBM since they did such good work on it.
Anyway, back to PERC’s argument. If you go to the link above, you can find the full text of the amicus brief.
Summary of the Argument
Forests are not static but complex and living ecosystems. Planning for forest restoration must be equally dynamic and flexible. In this case, however, North Cascades Conservation Council (NCCC) seeks to impose unnecessary and impractical constraints on the Forest Service’s ability to restore forests while complying with NEPA.NCCC challenges the Twisp Restoration Project, which would restore forest and watershed health, improve wildlife habitat (including for northern spotted owl, lynx, gray wolves, and mule deer), and reduce wildfire risks. NCCC objects to the Forest Service’s use of “condition-based management” to fit the projects’ restoration activities to forest conditions during implementation.
Under condition-based management, the agency authorizes restoration activities in an area but limits their implementation based on local, on-the-ground conditions. For instance, the Forest Service may authorize mechanical thinning to reduce insect and disease threats in an area vulnerable to such threats, but only allow it to go forward within a certain distance of an outbreak. Or it may authorize thinning to address overly dense forest conditions, but limit that activity to areas meeting conditions for slope, density, etc., and, within those areas, limit the extent of thinning based on the degree to which tree density departs from desired conditions. This allows the agency to document and understand the environmental impacts of its restoration work while narrowing implementation in light of on-the-ground conditions.
Condition-based management is “a method to meet NEPA’s requirements, not to avoid or shortcut them.” NCCC, however, asserts that this approach is never permissible under NEPA. Instead, it claims the Forest Service must predict exactly “which trees will be cut, how, [and] when,” which would demand of the Service an impracticable level of foresight that is contrary to this Court’s cases.
Forest conditions vary even within a single unit of analysis and, further, may change during the years that pass between an environmental analysis and on-the-ground work. Therefore, condition-based management provides necessary but limited flexibility to meet the Forest Service’s obligations to conserve forests while also complying with NEPA. The consequences of taking away this flexibility would extend far beyond this case, undermining the Forest Service’s ability to address an 80-million-acre backlog in forest restoration and tackle the wildfire crisis. The district court’s holding that condition-based management is a lawful way for the Forest Service to comply with NEPA should be affirmed
I didn’t read the brief, if anyone finds something interesting, please put it in the comments and we can discuss.
Consider the following two scenarios that are based on actual occurrences:
You buy your piece of heaven located within a National Forest. In fact, the land was advertised as “borders National Forest!” One day you come home and see a lot of trees adjacent to your land marked with paint. You promptly visit the local District Office and ask the District Ranger what is going on? The Ranger explains that there will be a timber sale and a cutting unit will be next to your property. She states that you will have an opportunity to comment on the project during scoping and also to comment on the draft EA. You do that and eventually, you work with the Ranger’s staff to create a more desirable outcome. They agree to leave additional reserve trees and other things that will limit the impact to your property. You are not exactly happy but you feel that at least the FS listened to your concerns and worked with you to make things better. (I want to say here that I do have some problems with units marking trees and then asking for comments during scoping. The FS is already pretty committed when everything is already marked.)
Then the other scenario. You have your piece of heaven and come home one day and see that boundary trees are marked on 400 acres next to your property. You talk with the Ranger and she explains this was a condition-based management project and it authorizes a 400-acre overstory removal next to your property. You say that you knew nothing about it and ask why weren’t you notified? The Ranger explains that this was a huge project authorizing 180,000 acres of overstory removal across the Forest. A fairly nebulous map of the entire Forest was produced with shaded areas where this cutting may or may not occur. The Ranger explains it would have been extremely difficult to notify everyone that could possibly be impacted by this project due to its size and when the decision was signed, they really did not know where the cutting would actually occur. The Ranger says that she is sorry but there is really nothing you can do about it at this point. The decision was signed two years ago. It is a done deal and you are going to have to live with it. After the cutting occurs, you look out your window to see 400 acres of doghair little trees with all of the large trees gone.
The second scenario is how condition-based management can happen and has happened. If you are that landowner, would you be happy with it?
Dave, I think that there are several things going on here.
1. many condition-based NEPA decisions have a separate post- decisional implementation phase where they do have public involvement as individual areas are selected, indeed the public can be involved in prioritizing areas. So it’s not necessarily part of CBM not to have locational public involvement. What you describe is one kind of CBM, and runs a bit against common sense.
2. This particular neighbor example. The same argument that “it’s government property therefore the interests of the country as determined by the current political and administrative forces” holds as much for neighbors as, say, county elected officials. Not that it’s right (ignoring the wishes of those in the community) but that it happens. If you like the project (say wind turbines) you say it’s NIMBYism; if you don’t want the project, it’s the legitimate voice of local people.
3. The plaintiffs’ argument seems to be about the environmental effects not being considered if not site-specific. I’m kind of open to that argument, but then I wonder why we have EISs for things like plans and RMP’s where we make up what might happen where and proceed to analyze it. I called it NEPA for “might could” as “we might could do this here and do that there”. Now you could argue that “at the point of decision to disturb, or not, a specific place is the time we know as much as we could possibly know about the impacts” which I would agree with.. but then why dither around with EISs for programs and plans? Or even the EIS for NOGA? It seems to me that if our legal friends determine that correct application of NEPA requires site-specificity, then whither the NWFP? Maybe someone can explain…
You bring up some good points to consider.
1. If there are units that are taking the extra step and doing public involvement post-decision, I am glad to hear that. I guess I would point out that it is up to their good graces to do it, there is nothing that requires them to do that. It would make CBM more acceptable if they were required to. If you have an example of a project where this occurred that you could share, I would be interested in seeing it.
2. I agree with your point. I would just suggest that if the FS wants to take part in another big example of “trust us, we know what we’re doing”, they should go the extra mile to work with the people most often affected by these projects. They would be the people living adjacent or near the project implementation. In the example I gave, there were hundreds of people that got surprised and had no idea what would happen to their neck of the woods. If the FS thinks it is a project worth doing, they should adequately explain it and not spring it on people just because they can.
3. There may be a conflict with the lack of site specificity tied to specific actions in Forest Plans, etc. and the requirement to complete an EIS. Why is it that way? Lack of imagination on a better approach?
Once upon a time, the Forest Service tried to make forest plans the only NEPA needed prior to projects. They quickly lost badly in court, which lead to the “Gippert paper” (OGC) on the two-step plan/project NEPA process. (The original roadless rule case was also notably about lack of site-specificity.)
I’m somewhat receptive to arguments that overarching plans would not necessarily trigger NEPA. The CEQ regulations encompass “programs” for which EISs are “sometimes required” and “timed to coincide with meaningful points in agency planning and decision-making.” The Planning Rule requirement for forest plan EISs is probably as much a policy decision as anything, which has avoided having to defend forest plans that didn’t. There was also at least a theoretical benefit of being able to streamline project analysis by tiering to the forest plan EIS.
We do have the Citizens for Better Forestry cases against the 2005/2008 planning rules (as I recall), which held that a programmatic decision to relax environmental protections does trigger NEPA requirements. I would say that means that revising an existing plan to remove protecting measures would probably require an EIS. (Think about the Eastside Screens amendment, too: https://forestpolicypub.com/2024/04/04/federal-judge-reinstates-21-inch-rule-east-of-the-cascades/)
I’m going to let the court read the brief and tell us what it thinks. But here is my reaction to part of what you quoted: “This allows the agency to document and understand the environmental impacts of its restoration work while narrowing implementation in light of on-the-ground conditions.”
As in the great example Dave provided, some of what is labeled “condition-based management” does NOT document and understand the environmental effects of all the potential sites that it could choose from. Court cases have gone both ways depending on the facts of each project.
Absolutely true! While the FS still has to go out and do the regular, site-specific arch, botanical, hydro, and wildlife surveys prior to actually implementing activities (or I should say that I at least hope they do and in my experience, that does happen), the public input part is very difficult to make meaningful. How is the public supposed to intelligently comment on activities when they largely have no idea where they will occur? Once the decision is signed, that’s it, no more interaction with the public. In theory, I suppose a pro-active District could make an additional effort post-decision, to keep the public informed as to where activities will occur, but I haven’t seen that happen. I wonder if anyone out there has seen that? They only way that I know where timber sales will happen with these CBM projects is to track every timber sale when they are advertised. Then I know the specific locations and the types of treatments but really, the horse is out of the barn. What will happen at that point, is what will happen.
And even if the public is aware of what’s going on, that may not be enough. If there is new information about environmental effects (a process that has deferred site-specific analysis almost guarantees that there would be new information), that information is subject to NEPA requirements.
I think all this stems for efforts to “streamline” NEPA, resulting in less pre-project information, public involvement, and accountability. When env constituency (to whom the FS owes JUST AS MUCH as others) is seen as the enemy, well…
I might add that Siuslaw NF, a former producer of more timber/ac than any NF, has had NOT ONE timber sale appeal or lawsuit in 30 years, while consistently, sustainably functioning under the NWFP. “Why” is a good place to start discussion…