Roadless Rule Rescission Proposal: I of Many: Read the 2001 Yourself

I couldn’t find the new Roadless EIS yet, and apparently there are three alternatives, based on this interactive online map. So we’ll talk about those when they come online, perhaps tomorrow.

FS: please fix year of announcement on the website.

There are already a plethora of news stories about it based on yesterday’s news release. Roadless is one of my favorite topics, having worked on Colorado’s version from 2005 until I was ignominiously removed from working on it in 2011, for reasons that were never made clear to me, but whatever.

As I worked on it, I noticed that many media outlets got things wrong or were missing important context. After I was removed from working on the Colorado Rule, I wrote this piece explaining some of the complexities of the oil and gas so-called gap leases. The first paragraph is likely to fit this Roadless iteration, much as it did in 2011:

As you all know, I think it’s really important that the public gets a chance to understand Forest Service (publicland, natural resource) issues so they can make informed choices. The problem is that institutions such as policy centers don’t really help on the day to day issues and don’t necessarily allow dialogue with the public on the web; I hope this blog helps with that. News stories are intended to help inform the public, but by their very nature and the current structure of the news industry, I don’t think they can ever be the right place.

Even if the journalist takes the time to understand the complexity, and is committed to presenting both sides fairly, there is no guarantee that that can fit into a newspaper article format. It seems like a structural problem that falls somewhere between the Extension role and a journalism role. So in this case I will take a news story and try to clarify the issue according to my understanding.This one I know something about (although I am not currently working on this, just to be clear), so I thought by posting here I could help share with readers my understanding of the somewhat arcane and confusing oil and gas terminology and processes (of course readers are interested in forest planning, so arcane and confusing is familiar territory 🙂 ). Here’s the link. I also need to clearly state that I am not saying that the proposed rule is without flaw and directly transmitted by a Higher Power. I just think it’s important to understand what the issues really are. If we, who know, don’t inform the public, who will? Below is the story with my annotations in italics.

I think I’ve heard every argument about anything in the 2001, plus was peripherally involved in several court cases. I know you will be reading a great deal of “hair on fire” articles, but these are many of the same points that were raised about Colorado and Idaho Rules (by the same outfits), and after the drama (court cases on the rules) died down, we don’t hear much about them.

Anyway, you don’t have to have the 2001 Roadless interpreted by reporters, you can read the key sections of 2001 yourself.

First, I’ll pluck some things from the proposal, and then the EIS, and finally take a look at some of the media takes.

The 2001 Roadless Rule prohibited cutting, sale, or removal of timber—except when one of a limited set of exceptions applied. Per the Rule’s text, the use of these exceptions was “expected to be infrequent” (36 CFR 294.13(b) (2001)). In addition, while exceptions were available, their use was limited and inconsistent due to associated reviews and approvals to demonstrate consistency with the 2001 Roadless Rule.

This is true, while exceptions exist, and have been used, many employees are wary of using them. That is not on the writers of the 2001, but is a fact human nature. For the proposer, it can be like the rat who pushes the lever and sometimes gets a pellet and sometimes gets a shock.  Why push the lever?

People will argue both sides of this, and have… on the one hand “the Rule allows fuel treatments, so why change?” and on the other hand “if you get rid of it the timber industry will ravage roadless areas.” But here’s section 294.13, see for yourself.

Prohibition on timber cutting, sale, or removal in inventoried roadless areas.

(a) Timber may not be cut, sold, or removed in inventoried roadless areas of the National Forest System, except as provided in paragraph (b) of this section.

(b) Notwithstanding the prohibition in paragraph (a) of this section, timber may be cut, sold, or removed in inventoried roadless areas if the Responsible Official determines that one of the following circumstances exists. The cutting, sale, or removal of timber in these areas is expected to be infrequent.

(1) 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.

Now in 2001, climate change was not quite the major issue it is today. So the clause “within the range of variability…” carries much weight of potential litigation. Reducing fuels is not on the list.  Is a burned stand of dead lodgepole killed by bark beetle “characteristic” or “uncharacteristic” risk. Certainly there have been dead stands of lodgepole since the ice age.. so a person could argue that any fires are “characteristic.”  Sometimes I thought that part of the attraction of the Rule for some groups was the opportunity to lower the litigation boom on projects they disagree with.

For example, remember the Los Padres case (Tecuya Ridge Shaded Fuelbreak Project) about “generally small diameter?”

U.S. Court of Appeals for the Ninth Circuit vacated approval for the project, holding that the U.S. Forest Service failed to adequately justify or substantiate why removing trees up to 21 inches in diameter (dbh) qualified as “generally small diameter timber” under exceptions to the 200

Judge R. Nelson dissented. He agreed with Sections I.B and II of the majority opinion. He wrote, however, that the majority wrongly held that the Forest Service’s determination that 21-inch dbh trees are “small diameter” was arbitrary or capricious under the Administrative Procedure Act. He would deny the petition for review