andystahl

If I was Chief . . .

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No doubt tired of my whining, Sharon gently threw down the gauntlet — “what you would do if you were Chief for a Year to make things better.” Friday seems a good time to nibble at the bait.

I’d start my tenure by listening to Forest Service leaders. In 2004, Jim Kennedy (Utah State University), Richard Haynes (FS economist) and Xiaoping Zhou (PNW research forester) surveyed line officers gathered at the third National Forest Supervisors’ Conference. The officers ranked the “operational values” they believe the Forest Service rewards, followed by a ranking of the values that participants believe should be rewarded. Most rewarded, in practice, are (1) teamwork, (2) agency loyalty, (3) meeting targets, (4) professional competency, (5) hard work, and (6) promoting a good FS image. What should be most rewarded, the leaders say, are (1) care for ecosystems, (2) professional competency, (3) consensus building, (4) care for employee development, (5) responsiveness to local publics, and (6) concern for future generations.

These results suggest that line officers believe the Forest Service rewards loyalty to the organization, e.g., loyalty to the team, agency, and targets. Kennedy calls this “dog” loyalty: “Dog-loyalty is direct, unswerving, immediate loyalty to the master, that is, the boss or the agency.” Kennedy, J. and Thomas, J.W., “Exit, Voice, and Loyalty of Wildlife Biologists in Public Natural Resource/Environmental Agencies,” in Mangun, W.R. (ed), American fish and wildlife policy, the human dimension. In contrast, many of the values line officers want rewarded (care for ecosystems, consensus building, responsiveness to local publics and concern for future generations), exemplify “cat loyalty” – “a less master-oriented, broader, and more diverse loyalty to the household” – in other words, loyalty to the agency’s mission.

My first priority as Chief would be to work against the bureaucracy’s natural dog-loyal tendencies by pushing cat-loyal practices. Here’s a modest forest planning example.

Has anyone not used the web to find out how others rate a product, like a new car, book, or bicycle (after much research, my new racing machine is a Cannondale CAAD9)? So how about an on-line rating system for forest plans available to those implementing the plans (FS employees), those working on the national forest (contractors, special-use permittees, local governments), and everyone else (visitors)? Here are some rating questions (scale 1-5 with room for comments):

Does the forest plan help you do your job?

Is the plan easy to understand?

Does the plan tell you what you want to know?

A “dog loyal” organization might ask these questions, but would make sure that the answers are hard to find, hidden away in agency files. Cat-loyalists seek transparency because they want to improve their agency’s mission performance (“Caring for the land and serving people”), even at the risk of offending internal vested interests.

So what would you do as Chief?

Wilderness, Commercial Enterprise and Speech

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The Salmon-Challis forest supervisor, Frank Guzman, is coming under attack from the Idaho Conservation League and Governor Butch Otter for up-holding the letter of the Wilderness Act. Guzman denied a public television station’s request to film a documentary in a wilderness area. Guzman explained to the Idaho press that the Wilderness Act bars commercial enterprises; the filming is a commercial enterprise; and, thus, the filming is not permitted.

ICL and Otter argue that public television is non-commercial; a claim readily dismissed by anyone who has ever listened to public television’s sponsorship credits. More problematic still is ICL’s argument that the television station’s record of supporting pro-environment programming justifies the wilderness filming. Content-based speech regulation is a slippery slope that ICL should know better than to be encouraging.

Supervisor Guzman is no great friend of wilderness or forest preservation. He’s likely tickled that public television gave him a chance to offend free speech purists, environmentalists, and wilderness advocates who downplay the Wilderness Act’s restrictions as they seek to add wilderness areas to the system. Nonetheless, I’m happy to commend Guzman for obeying the law.

K.I.S.S. Maps

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Maps are planning’s most ubiquitous and useful tool. Maps put place in the center of the planning conversation. It’s no surprise that all of the place-based collaborative processes use maps as their exclusive planning tool. No linear programming optimizing models; no ecological forecasting models; in fact, no complex models at all are used in collaborative, place-based planning (in a future post I will discuss why complex models create more trouble than they are worth).

In the days before GIS, maps and transparent overlays were used to avoid placing clearcuts next to campgrounds. Conventional NFMA plans use maps to zone land, showing where uses are permitted or prohibited.

The proposed K.I.S.S. planning rule eliminates this discretionary zoning function from NFMA plans. Without zoning, what information would K.I.S.S. maps illustrate?

A map of the 3-year vegetation management and timber harvest program would be useful. This map would show the metes and bounds of lands slated for vegetation treatments. Using Google Earth as a base, the vegetation treatment map would show where the land to be treated is located in relation to towns, homes, or natural resource features and what the current vegetation looks like from a bird’s eye view. During the forest planning process, Google Earth could be used interactively with the public allowing anyone to build a kml file to recommend treatment sites to the planning team or illustrate why a proposed treatment is unwise.

Google Earth maps can display inventory information used in the planning process, such as the location of endangered species critical habitat. Planners and the public can use Google Earth to overlay vegetation management maps onto resource inventory maps to see the intersection of vegetation actions with the places and things they care about.

So what happens to zoning? NFMA does not require that forest plans zone national forests by use or prescription. Of course, where zones have been imposed by law, e.g., wilderness, the Forest Service must conform its management to the zone’s requirements. But there is no compelling reason for the Forest Service to zone uses in the NFMA planning process. People want to know what the Forest Service will do and where, on-the-ground, in the immediate future. Speculative zoning does not serve that purpose.

The Camel’s Nose

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On May 6, Deputy regional forester Pena denied Crested Butte Ski Area’s appeal of GMUG forest supervisor Richmond’s decision rejecting the ski area’s proposal to expand downhill skiing onto Snodgrass Mountain. Pena notes correctly that NEPA is not triggered when a private entity proposes a project on the national forests; thus, Richmond’s decision denying the ski area’s expansion plan does not require an EIS.

That’s the simple part of Pena’s decision. Things get more complicated when Pena turns to NFMA. He is obviously troubled that the GMUG’s NFMA plan zones Snodgrass Mountain for downhill skiing. Crested Butte thinks this ski area zone creates a presumption that it can expand downhill skiing to the undeveloped Snodgrass Mountain. Pena appears to agree. His decision directs Richmond to either tell Crested Butte what an acceptable Snodgrass Mountain ski area expansion would look like or revise the forest plan to eliminate the ski zone on Snodgrass Mountain.

Under current NFMA rules, a forest plan revision (as distinct from an “amendment”) requires an EIS. Thus Pena is giving the ski area what it wants — an EIS — but through an NFMA backdoor instead of NEPA.

This illustrates an underlying problem of viewing NFMA plans as all-resource, comprehensive zoning documents. That’s not what Congress required or envisioned. Doing so creates perverse consequences, such as at Snodgrass Mountain, where NFMA zoning creates an EIS obligation not required by NEPA.

Filming the Planning Rule Process

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EPA is sponsoring a video contest to “explain rulemaking and win $2,500.” EPA says that “government regulations help set the price of the coffee you drink, the voltage of electricity your alarm clock uses, and the types of programming allowed on the morning news.”

Get your video uploaded to YouTube by 11:59 p.m. Eastern Daylight Time on Monday, May 17, 2010. Better avoid the type of video the government bars from your morning news.

K.I.S.S. in Rule Form Conclusion

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In contrast to the Forest Service’s official planning rule blog, the software that supports this blog is actually useful. The WordPress search feature lets readers aggregate onto one screen blog entries that share a common word and turn that search into a URL. For example, here are the K.I.S.S. blog entries (read from bottom to top).

The K.I.S.S. rule is based on these principles:

1) Revising a forest plan is a different task than writing a new plan from scratch. Existing plan provisions are presumed valid and reviewable only when new information or changed circumstances overcome that presumption.

2) The revision includes the planned timber sale and vegetation management projects. Eliminating the two-step NEPA planning process for tree-cutting projects keeps plan revisions relevant and reduces analysis paralysis.

3) The planning rule should be flexible in those matters Congress has left to the Forest Service’s discretion. The rule should be outcome-oriented and leave the technical details for achieving the required outcomes to the agency’s expertise.

4) NFMA planning is not the end-all, be-all of Forest Service planning exercises. In NFMA Congress sought to solve logging issues. The Forest Service should resolve other issues elsewhere than in the NFMA plan.

K.I.S.S. in Rule Form, Part 8

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The proposed K.I.S.S. rules are based on the premise that the Forest Service is revising forest plans, not promulgating new plans from scratch. This premise implies a rebuttable presumption that the existing plan’s provisions are satisfactory. NFMA supports this approach to plan revision.

For example, NFMA requires the Forest Service review timberland suitability decisions “at least every 10 years” and “return lands to timber production” when the Forest Service finds that “conditions have changed.” Thus, only if “conditions have changed” does the FS review its previously-made timberland suitability decisions. This mandate appears best met by adding to K.I.S.S.’s “new information or changed circumstances” assessment a new provision, as follows (addition is in italics):

36 CFR 219.3: Assessment of New Information and Changed Circumstances

(a) The revision shall assess (the “assessment”) new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.

(b) The assessment shall determine whether new information or changed circumstances warrant a review of lands the Forest Service has classified as suitable or unsuitable for timber production. The review shall focus on, but is not limited to, lands proposed for timber harvest in the plan revision’s vegetation management and timber harvest program.

K.I.S.S. in Rule Form, Part 7

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K.I.S.S. in Rule Form, Part 7

Keeping-it-simple-sweet means omitting matters from the NFMA rules that are satisfactorily covered by statute. For example, a section of NFMA (paragraph i) separate from the planning rule sections (paragraphs g and h) requires that permits (e.g., special-use permits) and contracts (e.g., stewardship, sale of timber) “for the use and occupancy” of the national forests be consistent with the plan.

There is no need to repeat this requirement in the planning rules themselves. The law speaks for itself. Forest Service employees can read the law. And the courts have routinely enforced paragraph (i) without reference to the identical 1982 NFMA rule. So I’ve deleted item 7 (“Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan”) from the K.I.S.S. purpose and principles post.

K.I.S.S. in Rule Form, Part 6

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No NFMA provision has transformed (and bedeviled) national forest management more than the law’s mandate to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). The consensus view of the federal courts (citations upon request) is that NFMA’s diversity language is a substantive limit on the Forest Service’s discretion – procedural analysis and models alone are insufficient to meet the law.

In its 1982 (and original 1979) rules, the Forest Service met the diversity mandate by requiring that plans ensure the viability of animal species, which is accomplished by identifying and protecting management indicator species. This approach to meeting the diversity requirement was never challenged in court. Those courts that have commented upon the viability/management indicator species approach have done so favorably. Regulatory efforts to eliminate the viability/MIS rule were defeated in 1982 (by Congressional pressure) and in 2000, 2005, and 2008 (in the courts).

It is with this history in mind that I suggest the following diversity rule language. This provision relies upon the 1979/1982 rules, but with fewer words and more discretion in the methodologies individual national forests can use to meet the law’s substantive mandate.

36 CFR 219.7: Plant and Animal Community Diversity

(a) Plan revisions and the vegetation management and timber harvest program shall ensure habitat sufficient to support viable populations of existing native and desired non-native species in the planning area. Methodologies for assessing and ensuring species viability shall consider and be appropriate to 1) the scope and scale of the plan revision and program decisions made; 2) the ecology of the plan area; and, 3) the biology of the species.

(b) Plan revisions and the vegetation management and timber harvest program shall, to the degree practicable, preserve the diversity of tree species similar to that existing in the plan region.

K.I.S.S. in Rule Form, Part 5

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In drafting these K.I.S.S. model rules, I look first at what the original 1979 and subsequent 1982 rules have to say on each subject. I use the 1979 rules because I have a ragged paper copy of that day’s federal register with the rules in it. This heirloom was given to me when I was hired as an assistant to teach NFMA planning to Forest Service interdisciplinary teams. My boss told me to read the rules, which were hot of the press, and be prepared to “teach” them the following week. I look to the 1982 rules because they are the rules under which all forest plans were promulgated.

It was with some amusement that I noticed, for the first time, that the 1982 rules fail to faithfully implement NFMA’s nominal public participation requirement (see the link’s paragraph (d)). I have fixed that problem below:

36 CFR 219.6: Public Participation

(a) The revised land management plan shall be made available to the public electronically and at convenient locations in the vicinity of the unit for a period of at least three months before the revised plan is adopted. During this three-month period, public meetings at locations that foster public participation in the plan revision shall be held.

(b) If the land management plan revisions, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the public participation process set forth in Council on Environmental Quality regulations, 40 CFR Part 1500 et seq., shall be followed.

(c) In addition to the requirements of (a) and (b) above, other processes suited to the decisions made in the plan revision, including the vegetation management and timber harvest program, may be used to involve the public.