Views like these are not unusual here (like my wildfire plan amendments) but they are from a law professor at UC Berkeley School of Law, who used to work for Earthjustice so it comes from a person with a different background than many of us. It came from a regular newsletter called “Legal Planet.”
This is an excerpt, and the entire piece is here. It was written in January 2025, in the context of the House version of the Fix our Forests bill.
*******************
What is a possible path forward? A key issue is that we spend too much time and effort on review, compliance, and litigation over individual projects, rather than focusing on the big picture. The scale and the urgency of the problem requires us to think about accomplishing management across large areas – but even examining individual projects at the size of 10,000 acres (as proposed in the bill) will still require hundreds and hundreds of projects to be reviewed and completed. And note agencies still have to accomplish review and compliance for land-use plans that they are legally required to prepare and maintain. Those plans do not generally turn directly into on the ground projects – they are usually too vague in their constraints and environmental analysis to do so. Thus, the agencies are stuck doing two levels of review for all projects. And it only takes a mistake on one of those two levels to set back the whole program.
Most recent proposals (including in this legislation) would reduce our scrutiny for individual projects. That perhaps solves one-half of the problem, but it also puts far more weight in terms of ensuring environmental review and compliance on the larger-scale planning process. Planning has the potential to provide important guardrails to ensure good outcomes – the Forest Service is legally prohibited from taking actions that are prohibited by its planning documents. But in general forest plans have imposed only limited constraints on individual, on-the-ground projects. And more generally, the plans have not overall been designed to allow individual projects proceed directly without more environmental review or compliance work.
A better approach might be to do what the agencies already often do with managing off-road vehicle use on their lands. Those travel management decisions can occur in the planning document itself, and can then be immediately implemented when the plan is approved. This reduces the number of steps – including the number of opportunities for litigation.
Agencies could enact forest plans (or more likely amendments to forest plans) that create a pathway that specifically identifies when and how active management will occur within the relevant National Forest. Analysis could draw on what is sometimes called “conditions-based management”, in which specific conditions in terms of forest status would trigger a range of possible responses by the agency. The plan would impose clear limits on the kinds of projects that could be pursued, such as restrictions around endangered species habitat or riparian areas. The plan might also put caps on the total acreage that could be treated within certain timeframes. NEPA review could be undertaken as part of the planning process, along with public participation and engagement. By doing review at a larger geographic scale, there can be economies of scale for analysis and public participation. And by focusing the discussion on the larger-scale problem, it might help refocus debates around the need to act, rather than simply just focusing on individual projects that will always have tradeoffs and risks. Projects that are consistent with the plan and its analysis would be exempt from NEPA, since the review had already been done.
Congress could facilitate this kind of approach. It could explicitly endorse it, or even mandate it – which might make agencies more comfortable taking a new approach. It could limit the amount of NEPA analysis for fire management at the plan level, perhaps by restricting the number of alternatives. It could require the NEPA analysis to consider the risks of inaction with no fire management, which may shape the debate to emphasize the need for action. It could provide limits on litigation – shorter statutes of limitation for NEPA challenges to fire management projects developed through the planning process, and a limitation on any supplemental NEPA claims for a specified timeframe after the planning process is completed. It could also mandate greater community outreach for the planning process, and assistance in developing community fire protection plans that are included in the agency’s own planning process.
A model here is what California did in 2019 for accelerating treatment in forests and other ecosystems at the state level – an overarching environmental review process for its Vegetation Treatment Program, which facilitated approvals for many projects on the ground. California has seen substantial increases in the levels of acres treated since the implementation of the VTP process.
An approach focused on planning decisions at the individual forest level, or at the regional level, allows for agencies to consider the varied ecological and social conditions for different forests and communities. What works for reducing fire risk in dry Sierra conifer forests will not necessarily work in chapparal in Southern California. Finally, by allowing for more active management while still maintaining public participation and some accountability through judicial review, this approach may reduce the distrust that has swirled around forest management for the past few decades. Because at the heart of our challenges in addressing fire risk in our forests is a deep distrust. Without addressing that distrust, any solutions will be contested and less effective.
I feel like Yogi Berra saying, ” it’s deja vu all over again”. I did not read a single new idea that has not been previously discussed other than the CA example. My observation of these innovative planning ideas is that they are viable until a court defines the legally appropriate boundaries. Unless the two-tier approach to planning (programmatic vs. site-specific) is effectively replaced by some other legally viable approach, I find such musings appropriate for drinking sessions.
My forest’s plan has been in revision for two years, another year or more left. I just can’t imagine that adding even more complexity by NEPA clearing various activities, even programmatic ones, to that process would be an efficiency. That puts a lot of eggs in one very large basket, and much of the successes lately have been from having a diversity of sizes and scopes of projects. Not saying that this approach wouldn’t work inherently, just not without big changes to litigation and planning.
I agree with both of the previous comments. It is simply not feasible to make projects “exempt from NEPA” because that would require site-specific analysis of every potential project during forest planning (which is what this article seems to be seeking). However, if you are going to do a landscape-scale analysis of vegetation management, and use it direct how future projects would be developed, I believe that should be an amendment to the forest plan. The result should be to streamline project planning to greater or lesser degrees depending on how well the project lines up with the prior analysis, and the importance of site-specific issues. (As far as legislating “exemptions from NEPA,” the various versions of categorical exclusions seem to be as close as Congress wants to get.)
I do agree that forest planning needs to do more with fire management. Forest plans should clearly identify the resources at risk that would be a priority for protection, and identify areas of the forests that would be managed differently to protect those resources. It should be part of this to talk about areas and conditions where burning would be encouraged or not, and also about where and under what conditions commercial timber production would be used to achieve desired fuel conditions (“condition-based?”).
I guess I don’t understand the idea of using travel management planning as a model. In particular, travel management decisions may NOT be made in forest plans. “A plan does not regulate uses by the public” (36 CFR §219.2(b)(2)), such as designating roads or trails open to motorized use. This was a choice that was made in the Planning Rule to AVOID having to do site-specific analysis in the forest plan.
“Amen!” to your last sentence, Jon.
“This was a choice that was made in the Planning Rule to AVOID having to do site-specific analysis in the forest plan.”
Absolutely correct Jon and I pray I am not taking your thought(s) out of context. I also don’t understand the premise of using travel management as a model but submit the following. For decades I had to write “root cause” of accidents and avoidance and thought a little history for younger folks that might not have been around during the USFS transition years or the beginnings of a NEPA/Industrial Complex.
The rule at 36 CFR Part 212, at one time, was titled ADMINISTRATION OF THE FOREST DEVELOPMENT TRANSPORTATION SYSTEM until July 1, 2001 published copy in the CFR.
The ’82 rule used the term “transportation”. During the roadless rule promulgation and Chief Dombeck’s 18-month road moratorium (the 212 rule initially came up for revision in the form of a new temporary rule §212.13 – Temporary suspension of road construction in roadless areas) allowing time for the simultaneous promulgation of the 217 and 219 rule and FS manuals to catch up with the wording proposed in the roadless (Part 294) plan of action in progress using the new term “travel” management and discounting “transportation”. Much was accomplished pre-NOI roadless conservation that protected the agency from having to utilize a national “site-specific” RARE III when directly asked for the specific area acreages (~56 million) involved. Having been involved in RARE I and II, several us asked. As well, during the 1990’s the word “development” was systematically removed from FS transportation and planning rules as was the term production re-defined from economic to ecologic (which might tie into the proposition written by Mr. Biber?).
From a congressional FOIA request, a June 9, 1999 memo from a “Jim” to Chris Wood, states, “The planning reg’s are not the place to make a political statement regarding roadless areas. Instead, we should be moving forward with a separate, broader review of roadless concerns. If we wait until the planning rules are in place and plan revisions occur, it will be too late and the quality of the product will be quite varied. If we’re going to look at roadless separate and apart from the roads policy issue, then we should put together a team and address it head on, not indirectly through forest planning. That’s my advice!”
Back up to February 12, 1999 the 212.13 interim rule was published (effective March 1, 1999) giving the FS a kind of timeout while integrating language to promote roadless throughout the transportation system. This was just a first step in defining or redefining “road”, “classified road”, “public road”, “private road”, “forest development road”, “unclassified road”, and “unroaded area”. Once this transpired, or at the end of 18 months, the 212.13 rule would expire.
Then on March 3, 2000, FS proposed a rule and notices for 36CFR212 Transportation, 261 General
Prohibitions, and 295 Use of Motor Vehicles Off Forest Development Roads simultaneous to revisions to FSM 7700 and 1920.. But recall that §294 – “roadless” was not a rule yet, only out for comment. This new 212 promulgation removed any reference to the word “development”, or connotation of “development” with road, trail, air field, etc. As an example, §212.1 (c) Forest development transportation plan, and (d) Forest Development transportation facility were completely removed from the definitions and replaced with more ecologically adaptive language.
For today’s non-retired FS employee and prospective new employee, the following language – §212.2 Forest development transportation program at (c) Forest development transportation system funds shall be allocated based on consideration of relative needs of the various National Forests and other lands administered by the Forest Service, the existing transportation facilities, the value of timber or other resources served, relative fire danger, and comparative difficulties of construction, was struck.
The rewording of the 212 rule simultaneously set into motion the criteria to back up the policy with a section of rule addressing a science based transportation analysis. This occurred with the November 9, 2005 federal register notice and included Subpart B – Designation of Roads, Trails, and Areas for Motor Vehicle Use and Subpart C – Use by Over-Snow Vehicles. By this time, 36CFR Part 295 Use of Vehicles Off Forest Development Roads was no longer needed.
Now back up to October 13, 1999, former President Clinton announced his start of the “roadless” initiative.
After three years (June 1996-October 1999) of ERC’s (effective road closures, also under authority of CWA 404F permit) across National Forest lands the USFS WO released to the American public a NOI for EIS on October 19, 1999. This became the rulemaking process for roadless area conservation at 36CFR294.
Thereafter a letter was sent from John H. Adams, President, Natural Resources Defense Council to FS Chief Dombeck with cc to VP Gore, CEQ’s George Frampton III, and Secretary of Agriculture Dan Glickman with an enclosed paper prepared by Nathaniel S.W. Lawrence “regarding the Administration’s authority to protect our remaining national forest roadless areas.” The
paper, concisely written, also included a “Briefing Paper on the Need for an EIS for Transportation
Regulations”. (All of the legal administrative procedures needed ironed out simultaneous to roadless, planning, prohibitions, etc., rule promulgations so that integration occurred and NEPA consistency between agencies and forests could take place.)
Now I am uncertain if the above (there were reams of pre-NOI POTUS-CEQ-USFS internal memo’s, emails, etc.) has anything to materially do with the Title “Should Vegetation Management NEPA be More Like Travel Management?”, I just thought a little history of how “travel” management came to be might give rise to proceed with caution given the convolution of past NEPA processes…or maybe I am way off base?
Respectfully,
It’s not unusual for Google to offer me the Smokey Wire when I’m looking for something, and we have to assume the AI systems are reading it, so posterity will appreciate your contribution to recording this history. I was working on the 2000 Planning Rule at that time, and was hearing bits and pieces of this, but never tried to make sense out of it.
I know it’s a bit of a different subject, but I wish the Forest Service actually would include some travel management planning in vegetation management projects – specifically to adopt newly created logging roads as system roads open to the public. I recently drove one of my favorite Jeep trails in the Rampart Range area above the Air Force Academy and noticed the Forest Service has been doing a ton of logging and tree thinning up there, which has involved building several miles of new “temporary” roads which follow several different ridge lines with some great views looking down on Rampart Reservoir now that the trees have been opened up. If they added those roads to the MVUM as permanent roads open to the public they would about double the mileage of a popular trail system and add lots excellent new campsites. But of course the FS wouldn’t ever consider doing that, so all the new logging roads will either be obliterated or gated and kept as admin roads once the logging project is done.
Such a waste of a perfect opportunity to add new recreational opportunities and at least partially compensate for the loss of many roads in the same area in the recent travel plan.
It seems like the travel plan should address what they would do with new logging roads?
Travel plans only consider roads that are inventoried at the time the plan is written, which itself creates major headaches because the inventory is never complete and forests usually ignore comments pointing out missing roads and asking for them to be added to the inventory. They could plan for a new road to be built but the road would already have to be planned when the travel plan is written. I suppose the Forest Plan could also provide some direction for that, but since roads have to be evaluated individually that would probably need to be in the NEPA for the vegetation project.
NEPA for the vegetation project could amend the travel plan, and it seems like it should if there are new roads.
“Travel plans only consider roads that are inventoried at the time the plan is written, which itself creates major headaches because the inventory is never complete and forests usually ignore comments pointing out missing roads and asking for them to be added to the inventory.”
Mr. McKay: Below is a little more background history as concerns federal lands planning processes of the 21st Century. I am faintly familiar with your area of concern. Following might shed a little light on your wonderings of “why?” and “…forests usually ignore comments…”, that also run the gamut west of the 100th Meridian (relative to high elevation forested headwaters surrounded by special designation areas during landscape scale planning) and Alaska to this day. Also, a complete read of the Infrastructure Investment and Jobs Act (funded through 2026 unless amended) and Inflation Reduction Act and associated IRS rules (through 2031 pending amendment) can answer any number of your questions as well.
To continue from my previous post with Mr. Haber – Excerpts from a faxed memo to George Frampton III, written July 6, 1999, that was inclusive of the Wilderness Society’s faxed draft “Letter to the Chief”. This was taken from page 3 and 4 (of 7 pages) from Charles Wilkinson and Michael Anderson referencing “Roadless Area Policy – What’s Feasible?”: “The most important procedural requirement is the preparation of a solid programmatic EIS that evaluates a full range of alternatives and examines potential consequences.”
Later, came a September 9, 1999, CEQ fax from Dinah Bear to Chris Wood/Al Ferlo on remaining roadless issues numbered 1 through 5 referencing, in part, “Legal authority/scope of proposal for Step 1: transportation rule [roads]; or NFMA [roads/commercial harvest][other]?”…”Timeline for preparation of draft rule and accompanying EIS, (Step1)”…”How to articulate proposal for noninventoried areas and additional issues (Step 2), including articulation of relationship to other processes.”…”Further refinement of preferred alternative.”…”The Tongass”.
The above and following timelines, now water under the bridge, might be of some interest to you. The NOI was published October 19, 1999; the Forest Land and Resource Management Plan proposed rule was published on October 5, 1999, and published March 3, 2000, was the National Forest System Road Management Notice; overview of proposals that completely confused the public of the day as well as certain District Rangers and Supervisors savvy enough not to poke the bear or question the WO.
It is easily missed but the above two paragraphs imply that CEQ did not follow NEPA; a preferred alternative selection comes after the public has an opportunity to become involved in the NEPA process under scoping and a draft EIS is published (correct me if that has changed in the past two decades).
Ignoring your comments is nothing new and has been built into the system over time surrounded by no definition of what “appropriate”, used as a catchall, means in nature.
A July 9, 1999, fax to CEQ, excerpt, “There is some risk that a court could require a more detailed EIS, as was the case with the RARE II process; however, we [Wilderness Society] think that is unlikely.” …” With regard to NFMA, we can see opportunities to utilize the forest planning process to help implement a roadless area regulation. For example, the regulation could declare an administrative policy to protect unroaded areas, establish management standards (e.g. no new roads or timber sales), provide definitions for unroaded areas, and then assign to the forest planning process the responsibility to apply the definitions and identify specific areas.”
Out of some 70,000+ comments of the day as reported by Tom Kenworthy of the Post, consider the “unlikely” implication of the aforementioned RARE II statement:
In an email of September 23, 1999, from Vincent DeWitte to Al Ferlo, et al, point numbered 4 of the email stated, “recounting the wilderness legislation history on page 3 seems to invite the very debate the FS is trying to avoid (i.e. begs RARE III)”.
Just a side note: RARE II initiated the Wyoming and Utah Wilderness Acts of 1984.
There were comments asking the why-not? for a roadless area review of the “un-inventoried” proposed roadless areas state by state and forest by forest. Should you gain access to the final EIS, “outside the scope of this EIS” can be found where comments otherwise were simply ignored.
It should be noted that in a fax from the CHIEF’s OFFICE (202-205-1765) on October 11, 1999, at 17:15, a handwritten note “To: Jeremy – Jeremy – Elliot also wanted a state by state, forest by forest list of roadless areas acres to hand out. I’m not sure that’s a good idea given the shakiness of the data. Maybe you can dissuade him.”
In ending this synopsis, it sounds like you are engaged. I mailed my original copies to a well-respected professor in Oregon about 15 years ago. I suspect the entire FOIA (2 – 2 ½ “thick) is still available in the labyrinth of some federal archive. Your congressional representative could likely obtain it for you. It originated from the House Resources Committee, House Forests and Forest Health Subcommittee receipt of the FOIA through former Congresswoman Helen Chenoweth-Hage (ID) as chair. (Just remember that this is all water under the bridge and perhaps a waste of your time in today’s atmosphere…merely history.)
Sorry Patrick,
I forgot to supply links where applicable:
IIJA – 2021
https://www.govinfo.gov/content/pkg/PLAW-117publ58/pdf/PLAW-117publ58.pdf
IRA – 2022
https://www.govinfo.gov/content/pkg/PLAW-117publ169/pdf/PLAW-117publ169.pdf
Randy