Bitterroot Front Project draft

The Bitterroot National Forest is going to try out “condition-based” NEPA with the Bitterroot Front Project.

The project anticipates 54,046 acres of prescribed burning alone; 35,575 acres of non-commercial logging coupled with prescribed burning for whitebark pine restoration; 27,477 acres of commercial logging with prescribed burning; 16,019 acres of vegetation slashing and burning; and 3,163 acres of non-commercial logging and prescribed burning… It will take dozens of miles of roadwork to do all that.

The project is expected to take four years.  “Condition-based” means they don’t know where any of these things are going to happen until they get there.  From the EA, as the project proceeds …

Information about proposed activities, including maps, treatment unit tables, and the activities’ relationship to the Bitterroot Front project’s overall treatment thresholds, would be available on the Bitterroot National Forest website. The responsible official would finalize proposed activities only after field review of existing conditions. The responsible official would retain the authority to make final decisions about the location, extent, and types of activities planned and completed under the Bitterroot Front project.

Nothing said here about the process they’ll follow to evaluate and disclose that new information they find when they get there, in particular about site-specific effects. They seem to be taking the position that “this is it” for NEPA compliance:

By preparing this environmental assessment (EA), the Forest Service is fulfilling agency policy and direction to comply with the National Environmental Policy Act (NEPA) requirements and to determine whether the effects of the proposed action may be significant enough to require the preparation of an
environmental impact statement (EIS).  (EA, p. 1)

The EA says, “if an EIS is required, the Forest Service will prepare an EIS consistent with 40 CFR section 1501.9(e)(1).”  I know this is the theory, but how often does a draft EA get redone as a draft EIS after public comment makes the case for significant effects?  Usually the agency makes that call early enough to not create the extra step of an EA.   The agency has plenty of examples of timber sales much smaller than this that had “significant” environmental effects documented in an EIS, but they seem kind of committed to an EA.

This years-long project is being pursued under emergency authority, so there will be no administrative review.  So if the Forest stays this EA course here, the emergency determination would allow local officials to make the call on whether they think this EA would hold up in court.

The “implementation plan” in the EA says that the obligation during implementation is to “Demonstrate that the effects of implementation would be within the scope of activities and the range of effects described in the EA and authorized in the Decision Notice.”  This would be an effects analysis, which would trigger consideration of NEPA.  It could answer the question of whether the effects have become significant (triggering an EIS for the whole project), but apparently is not intended to address the question of whether the site-specific effects have been accounted for pursuant to NEPA after the locations and treatments are known, and whether they are “consequential” (in a NEPA sense).

Where courts have approved of approaches like this it has been where the “conditions” are very specifically defined in the initial decision so that there is not much flexibility in implementation and the site-specific effects can be determined and evaluated.  It doesn’t look to me like the Bitterroot Front is similar to the two favorable court examples I’ve read, but it does feel like the familiar pushing of the envelope to see how far they can take this approach.

So, while I think an EA (with no administrative review) in these circumstances seems like kind of an outrageous idea, I actually wanted to focus on another familiar issue this article brings up:

Critics of the proposal argue that the significant removal of vegetation — including live trees and brush and standing and downed dead timber — will actually promote wildfire spread by allowing uninhibited wind to whip flames through opened-up forest that’s been dried by more wind and sun penetration…

A body of science supports the idea that “forest treatments” — a regime of logging, thinning and burning — can reduce wildfire risk on a landscape and make firefighting efforts more successful. But critics of widespread forest treatments can point to other studies that cast doubt on their efficacy, and on the idea that forests in western Montana used to be dominated by spread-out Ponderosa pine with frequent low-severity fire.

I hope the EA has a good discussion of the science on both sides.  But that last point is a new one to me.  Several national forests in Montana with dry forest habitats have revised their forest plans, and included desired vegetation conditions, which are supposed to be derived from historic conditions.  I don’t think I’ve heard much disagreement with establishing “spread-out Ponderosa pine with frequent low-severity fire” as a desired condition for places similar to the Bitterroot.  Have I missed something?  (Or did the author misinterpret something?)

Here’s what I find in the EA (based on “a geospatial analysis of the Bitterroot Front project area to prioritize communities at risk from large wildland fire growth”):

Modeling results of the current conditions within the project area show that the forest is at extreme risk of a catastrophic fire. The modeled outputs from the present fuel arrangement conditions do not mimic the natural fire spread type for sustainable ecosystem management in the Bitterroot National Forest.

Part of the proposed action is:

Restoring and maintaining ecosystem health by continuing to move the fire regime condition class toward the desired future condition through continued treatments that create disturbance.

Most of the discussion in the EA seems to be about the existing fire risk rather than whether that risk is “natural fire spread type.”  According to the Vegetation Specialist Report, “Overall, the desired future condition includes forest structures, composition, and processes that would have been present historically.  It proceeds to offer a description of “warm/dry” and “cool/moist” vegetation types.   If there are truly disagreements about the desired condition of vegetation or fire regime for these types or areas, alternatives should be considered.  (Under the 2012 Planning Rule, these desired conditions should be found in the forest plan.)

Then there is the question of, “whether the forest plan should be amended for elk habitat objectives, snags, old growth, and coarse woody debris standards to accomplish the project objectives.”  This all comes off looking like they are revising their (very old) forest plan for half of the forest, with new desired conditions and standards, using a project EA.

 

 

Court vacates Colville NF project and parts of its revised forest plan

This was going to be a “featured” case in a litigation summary post, but it turned out to be long enough for its own post.  Besides, forest plan litigation is rare, especially Forest Service losses, and this case covers a number of NFMA and NEPA issues that are frequent topics on this blog.  (And, full disclosure, I had something to do with it.)

  • Court decision in Kettle Range Conservation Group v. U. S. Forest Service (E.D. Wash):  Sanpoil clean

On the first day of summer, the district court vacated the decision for the Sanpoil Project on the Colville National Forest, and also vacated the relevant portions of the 2019 revised forest plan.  The portions of the revised plan at issue replaced the Eastside Screens 21-inch diameter limit with a guideline to protect large trees, but included many exceptions.  It also did not designate a minimum amount of old growth habitat to retain.

The court held that, “the agency failed to explain how the 2019 Forest Plan maintains the viability of old-growth-dependent species.”  More specifically, “the agency erred by failing to demonstrate that its data and methodology reliably and accurately supported its conclusions about the viability of old-growth dependent species under each planning alternative, and depicted the amount and quality of habitat.”  (Note that the Colville plan was revised under the 1982 planning regulations, which had somewhat different language describing wildlife viability.  However, this court did not rule on substantive compliance with the NFMA requirement, but rather found a failure to demonstrate compliance due to an inadequate administrative record based on the APA.)

The Forest stated that the selected alternative, Alternative P, provided a “high” viability outcome for these species and that the no-action alternative would not improve viability outcomes.  However, in the EIS, the data showed that “the No Action alternative provides more habitat than the selected alternative for three of the surrogate species,” and “creates the most late structure of any alternative.”  The Forest relied instead on an appendix in an associated Wildlife Report that employed a Bayesian belief model to assign letter grades to viability, which supported the rationale for selecting Alternative P.  The court explained:

Neither the EIS nor the Wildlife Report describe how the agency came to these scores for each species and action alternative. The agency did not define its methodology for assessing the letter grades, such as what factors it considered and the weight they were given. The grades assigned to each planning alternative lack explanation…  the agency acted arbitrarily and capriciously when it offered explanations that ran counter to the evidence before the agency and failed to satisfy the requirements of the NFMA.

The court also found that the Forest failed to discuss the amount and quality of habitat and population trends (a requirement of the 1982 regulations).

The court also held that the forest plan EIS violated NEPA by failing to meaningfully address the original Eastside Screens Report.  The Forest simply argued that it needed more flexibility to achieve the desired conditions, including avoiding numerous site-specific amendments to deviate from the diameter limit in the Eastside Screens.  The Forest failed to include the original Eastside Screens Report in its administrative record, and did not adequately respond to public comments about the Eastside Screens.  The court stated:

Its absence demonstrates that the agency failed consider the scientific rationale for adopting the 21-inch rule before deciding to discard it. The agency did not respond to viewpoints that directly challenged the scientific basis upon which the final EIS rests…  In doing so, the agency violated the NEPA. The absence of the Eastside Screens Report also demonstrates that the agency did not consider an important aspect of the issue, as required by the APA.

… the agency did not consider negative impacts, if any, from (1) elimination of the 21-inch rule or (2) retention of the exceptions in the new guideline. The NEPA requires the agency to discuss and not improperly minimize negative effects of a proposed action…  In this case, the EIS did not assess how often the new guideline’s exceptions will be invoked and how the exceptions may impact the agency’s conclusions about the environmental effects and species viability.”

The Sanpoil Project also violated NEPA.  The EA simply assumed that the new forest plan guideline would protect old-growth trees.  The court held:

This conclusion was contrary to the evidence. The Sanpoil Project EA did not specify the frequency of which the new guideline’s exceptions would be invoked, despite the 2019 Forest Plan’s stated objective of preserving old-growth trees. The agency is not required to catalogue specific trees that will be removed, but in this case, the agency was required to provide site-specific details at the project planning stage to provide a sufficient picture of the Sanpoil Project’s cumulative effects… Without sufficiently specific information about site impacts, the Sanpoil Project’s impact to old-growth trees and their dependent species is speculative.”

(This overlaps to some degree the issues surrounding “condition-based NEPA.”  The court even cites the Forest Service Handbook: “If the Agency does not know where or when an activity will occur or if it will occur at all[,] then the effects of that action cannot be meaningfully evaluated.”  It also is difficult to demonstrate consistency with the forest plan if the project documentation does not provide information about how a project is meeting forest plan requirements.)

The project also violated NEPA and NFMA by conducting “cursory analysis” of the effects of the project on gray wolves, wolverine, sensitive bat species, northern goshawk, and the western bumblebee.  Finally, the court found that NEPA requires an EIS for the Sanpoil Project because it “creates uncertain risks to old-growth forests and the wildlife dependent on them, and “sets a precedent for future actions that utilize the new old-growth guideline, each of which may be individually insignificant, but create a cumulatively significant impact when applying the new guideline.”  Moreover, the lack of quantified or detailed information about the Sanpoil Project’s impacts in this respect “is also highly controversial due to the same questions about its size and nature and effect of the action on old-growth dependent species.”

The court found that this “case” was ripe for judicial review “when the agency issued RODs for both agency actions” “because the Sanpoil Project is a site-specific action governed by the 2019 Forest Plan.”  The plaintiff had argued that forest plan decision challenge was ripe because it dealt with a forest-wide viability requirement rather than timber sale requirements found not ripe by the Supreme Court in its Ohio Forestry decision.  However, the plaintiff also argued that ripeness of forest plan issues could be based on this project decision implementing the plan.  It is not completely clear which rationale the court is employing.  The court also found that the plaintiff had exhausted administrative remedies by identifying large, old trees, wildlife viability and the Eastside Screens “thoroughly and consistently during the public comment process.”

DxP

 

Indianapolis Indiana Dead Tree Removal 317-783-2518

One of the threads of this discussion went off on a topic of how much discretion loggers should have in deciding what trees to cut down.  “Tricky Dick” offered that, “The USFS in its office attired lazyness doesn’t want to have to cruise the forest landscape piece by piece and thru honest Forestry discretion , uninhibited by profit motives, mark the bigger trees as ” leave or cut…”  Larry replied with regard to marked trees, but what if they are not marked?  I think there’s a name for that – “designation by prescription,” or DxP.  Here is how the Colville National Forest explains it (2020):

The Colville National Forest in Washington began using Designation by Prescription (DxP) in 2009 in order to become more efficient in timber sale preparation. Marking individual trees with paint in a sale area can be a time-consuming and costly process. DxP saves time preparing a timber sale and money spent on paint by allowing the logger to select which trees to harvest based on a timber stand prescription, which defines the desired condition after harvest.

With DxP, the operator may need to know tree species, how to measure tree diameters, forest health indicators, or how to achieve desired stocking level. This has the potential to initially slow operations. However, the flexibility that DxP provides (the contractor needs only to meet the prescription and that outcome can be accomplished in different ways) can create efficiencies for both the USDA Forest Service and the contractor

Is Tricky right?  But wouldn’t “allowing a logger to select which trees to harvest” allow them to do whatever they want within the broad confines of a “desired condition” in the “timber stand prescription?”  I have lots of questions about this.  How common is this?  Is the “timber stand prescription” part of the NEPA disclosure process in a way that all possible effects of the loggers’ decisions are accounted for?  If they only have to achieve the desired condition, could they do that in a way that is inconsistent with standards or guidelines in a forest plan?  Those aren’t included in the Colville’s “need to know” list above.

Asking for a friend.  Thanks.

Mendocino Forest-Wide Prescribed Fire and Fuels EA

Apparently 89% of the Mendocino National Forest has been burned over in recent fires. This struck me as a pretty impressive statistic.

They have come up with a forest-wide condition-based management approach to prescribed fire and fuel treatment via an EA (outside of Wilderness).  What I think is interesting is that the proposed alternative seems to neatly avoid  issues around “logging” and whether fuel treatments are really about timber production.. by simply not selling or moving any material offsite as part of using this EA. Seems pretty innovative to me.. what do you all think?

Here’s the description of alternative 2, the proposed alternative.

Hand Thinning & Limbing Trees to Raise Canopy Base Height
In areas where specialists determine that fuel loading and/or stand structure is such that prescribed fire behavior might exceed acceptable thresholds and pose a risk to prescriptive objectives and/or WUI and highly valued resources, prescribed fire alone will not be the sole source of treatment. In these situations, hand thinning and limbing trees using chainsaws or other tools may occur prior to prescribed burning, to reduce ladder fuels and associated potential for crown fire initiation and spread. Resulting slash may be scattered or left in place to assist understory fire spread. When prescribed fire is unlikely to consume most residual slash or would result in undesired fire effects, some or all thinned vegetation may be piled and burned on site.

Prescribed Fire Control Lines
Existing features such as roads, trails, rock outcrops, or existing fuelbreaks will be used for fire control lines where possible. Where existing control lines are absent, firelines will be constructed to facilitate broadcast burning and hand piling burning operations. Fireline construction will also be used for the protection of cultural sites, sensitive resources, administrative sites, infrastructure or private property, and other features as needed. Firelines will be constructed by hand. If ground disturbing mechanical methods are necessary, additional National Environmental Policy Act analysis may be required. The amount of fireline construction will vary depending on the size of the burn area and existing conditions.

They also have an alternative 3:

Prescribed Fire and Mechanical Treatments Alternative
In addition to the Proposed Action, the MNF would like to consider an alternative that utilizes both the use of prescribed fire and mechanical treatments to reduce fuel loads and modify fuel structure. In some places and under some conditions it may be too difficult to safely use prescribed burning and inefficient to hand-thin dense stands of small trees. This is where the mechanical treatment of hazardous fuels can be a valuable tool. Similar to hand thinning in the Proposed Action, mechanical treatments would be used to mulch or remove trees less than 14 inches in diameter, and understory shrubs. The resulting mulch could either be used as a pre-treatment for prescribed fire or left alone where conditions meet the purpose and need.
Mechanical treatments would include but not be limited to the use of equipment such as masticators and feller-bunchers. Equipment is generally limited to slopes less than 45% and would operate on top of generated slash and mulch without the need of skid trails. Material could be removed off-site for biomass operations if existing landings and roads provide adequate access.
No roads or landings would be constructed as part of this alternative.

Here’s a link.

Recent forest plan litigation

Litigation about the validity of a forest plan doesn’t happen very often, but two revised forest plans have been in the news for that lately.

Flathead court decision

The Montana District Court has decided the first case reviewing a forest plan revised under the 2012 Planning Rule, and it rejected decisions made in the Flathead plan related to roads because of the Fish and Wildlife Service and Forest Service had not adequately analyzed the effects of roads on grizzly bears and bull trout.  The court held that the process of revising the forest plan violated the Endangered Species Act; plaintiffs did not challenge compliance with NFMA or the Planning Rule. The court found no violations of NEPA and travel planning requirements.  The revised plan remains in effect pending additional analysis, but additional analysis will also be required for ongoing projects.  I haven’t read the opinion yet, and it’s not clear to me why these projects should not also be required to comply with the old plan direction for roads, which would have limited road construction, unless/until the revised plan complies with ESA.

This article quotes the judge on the crux of the case regarding grizzly bears:

“The mere fact that the (NCDE) population was increasing from 2004-2011 does not justify moving away from the existing management requirements of Amendment 19. In effect, by recognizing that Amendment 19 laid the foundation for recovery of the NCDE population and then using that recovery as justification for getting rid of the existing access conditions, the Fish and Wildlife Service eschews Amendment 19 precisely because it was working. This action is arbitrary and capricious,” Molloy wrote.

Additionally, the article continues:

Molloy agreed the choice of conditions in 2011 was arbitrary. Even had the choice been acceptable, the U.S. Fish and Wildlife Service should have analyzed whether the new Forest Plan would have exceeded the 2011 baseline, which was a reflection of conditions existing while Amendment 19 influenced the plan. But the agency didn’t do that.

The USFWS also didn’t explain why it didn’t recommend culvert removal as part of road abandonment to aid bull trout survival. Molloy pointed out that the agency’s 2015 Bull Trout Recovery Plan emphasizes the importance of culvert removal and road decommissioning. But then the agency backed off, saying culvert removal wasn’t necessary in its 2017 biological opinion on the Flathead National Forest plan. Molloy acknowledged that part of the reasoning is because the roads aren’t being accessed, but evidence showed that at least two-thirds are being used.

Finally, Molloy said the Fish and Wildlife Service had failed to analyze how the new plan would harm grizzly bears on Forest Service land outside of the NDCE core area. So the biological opinion is flawed, as is the agency’s calculation of bears killed or affected by the plan, and the Flathead National Forest erred in basing its plan on a flawed opinion, Molloy wrote.

A key factor in the decision was apparently evidence presented by plaintiffs that requirements for road closures in the forest plan would actually result in continued public use of the closed roads.

This article quotes timber industry intervenors:

“It’s a pretty thorough and nuanced opinion,” said Lawson Fite, an American Forest Resource Council attorney representing the Montana Logging Association.

Colville new lawsuit

There may be more legal action ahead involving NFMA in new litigation filed on the recently revised Colville Forest Plan, which was summarized here (this plan was revised using the 1982 planning regulations). Most of the attention is probably on the Sanpoil Project, where plaintiffs raise issues related to the site-specificity of the analysis (see condition-based NEPA). They also make a NEPA claim related to our many discussions of historic/natural variability (versus an alternative that “was actually focused on maximizing timber revenue”); more on the forest plan aspects of that below.

One of the forest plan issues is old growth – specifically the elimination of the Eastside Screens which imposed a diameter limit on trees harvested, and whether the revised plan direction adequately provides for viability of old growth species in accordance with the provisions of the 1982 planning regulations, which require that old growth be “well-distributed.”  The revised plan also eliminated pileated woodpeckers and American marten as management indicator species for old growth and did not replace them with anything.

The Forest prepared an “issue paper” on old growth as part of the objection process, which I will highlight below (you might want to keep in mind our recent HRV vs NRV discussions, though this is not an explicit requirement of the 1982 regulations):

The proposed Forest Plan replaces Eastside Screens with a series of desired HRV conditions (described in FEIS, Vol. 1, pp. 92-94, 99-132) but allows cutting of individual large trees when needed to meet desired conditions for structural stages, along with several other exceptions (FEIS, Vol. I, pp. 28-30). It provides a desired condition for forest structure (FW-DC-VEG-03) that provides for a diversity in forage and wildlife habitat. Additionally, forest-wide desired condition (FW-DC-WL-03 and FW-DC-WL-13) state that habitat conditions should be consistent with the historical range of variability.

Instead of fixed reserves in the current Forest Plan the proposed Forest Plan would have late structure contained throughout the landscape and all actions that affect forest vegetation would be assessed and compared to HRV, with the goal of moving the overall landscape toward HRV.

The proposed Forest Plan will result in approximately 780,592 acres of late forest structure in 100 years, which is slightly less than the current Forest Plan (810,583 acres). The proposed Forest Plan would, however, allow structure classes to shift around the landscape in response to disturbance and may result in more resilient forest landscapes.

The effects analysis described in the FEIS shows that maintaining a 21″ diameter limit reduces the ability to attain the desired future condition of having a majority of most vegetation types in late structure.

It’s great that they actually projected the amount of late forest structure.  Based on the planned/expected reduction, I would have to conclude that their assessment told them they had too much of this compared to historic conditions.  I think that would be fairly unique and create a burden to demonstrate that using best available science (which plaintiffs seem to be disputing).  The last two paragraphs are a little hard to reconcile since the current plan would produce more old growth, but maybe there is too much of some old growth vegetation types and not enough of others?

The forest structure desired condition (FW-DC-VEG-03) includes an evaluation of the historical range of variability (HRV) and vegetation treatments at the project level will need to show movement toward this desired condition. This means that until the desired condition is reached, existing late structure would need to be maintained on the landscape.

This is an important interpretation of what they think their forest plan requires.  Hopefully it says something close to this in the plan itself, but regardless, their EIS effects analysis would have been based on it and they should be held to it when project consistency is evaluated.

What Do You Think About?: This Forest Supervisor’s Wildfire Comments

This article in High Country News seemed to fit with Sharon’s post yesterday, but also seemed worth a separate post.

In the view of this forest supervisor, the solution is more landscape-scale decisions (which we have discussed a few times, like here), and more categorical exclusions (which we have discussed a few times, like here.)  But his deliberate effort to cut corners with the public is getting pushback from all sides.

All sides agreed that more details were needed to assess the impacts and justifications for the proposals. They wanted to know where projects would occur, and how and when they would be carried out. In short, they felt like Mark was going about this the wrong way.

After receiving that community feedback — and seeing other national forests get sued for similar landscape-level categorical exclusions — Mark put a pause on the proposals. “Some people are uncomfortable, and I knew that coming in,” he said. “But I guarantee you get another (fire) that’s threatening this ridge with a smoke cloud that’s 30,000 feet in the air, I know you’re going to be uncomfortable.”

(To me, that feels a little bit like extortion.)

And then there is this – what I think of as the “bake sale” approach to forest management:

As part of the process, the Forest Service often offers large, fire-resistant trees — which are more valuable because of their size and tight grain — as an incentive for companies to bid on the thinning that, in many cases, is a sale’s true objective. “Something’s got to carry the load,” Mark said. “Otherwise, you’re not going to be able to sell the sale and you won’t get anything done.”

I suppose there is authority somewhere for the Forest Service to cut down trees because they are the most valuable, but I don’t think I’ve ever seen a forest plan say this (and it’s sure contrary to pursuing ecological integrity).

Some interesting commentary on competing collaboration efforts in the article, too.

 

 

Condition-Based Management: Vermont Law School Paper

I was working on this post and Jon just posted a comment here on the same topic, so here goes and maybe we can move the current CBM discussion here.

Many thanks to Sam Evans and to the folks at the Vermont Law School for writing this article on a topic of interest… The U.S. Forest Service’s Expanding Use of Condition-Based Management: Functional and Legal Problems from Short-Circuiting the Project-Planning and Environmental Impact Statement Process. It’s probably clear from the title that their view is fairly negative one.

We can all disagree about CB NEPA, and when or if it should be used, and how it can be made better.

Condition-based management (CBM) is a management approach that the U.S. Forest Service has increasingly used to authorize timber harvests purportedly to increase flexibility, discretion, and efficiency in project planning, analysis, and implementation. The agency believes it needs this flexible approach because sometimes conditions on the ground can change more quickly than decisions can be implemented. In practice, however, CBM operates to circumvent the National Environmental Policy Act (NEPA) review framework by postponing site-specific analysis until the Forest Service implements the project, which effectively excludes the public from site-specific decisions, reduces transparency, and removes incentives for the agency to avoid harming localized resources. The practice should be curtailed by the Biden administration.

I’ll take issue with a number of specifics here:

In practice, however, CBM operates to circumvent the National Environmental Policy Act (NEPA) review framework by postponing site-specific analysis until the Forest Service implements the project, which effectively excludes the public from site-specific decisions, reduces transparency, and removes incentives for the agency to avoid harming localized resources. The practice should be curtailed by the Biden administration.

As I’ve said before, “effectively excludes the public from site-specific decisions” does not fit with what they are doing on the LAVA project, for example, as you can see here. In fact, it looks like there is more or less formal public involvement for prioritization of sites, which doesn’t necessarily occur with standard NEPA. What it means is there is no place for objection and litigation at each site. If a group didn’t think the activity should occur on a site with say, a certain wildlife species, they could still object to and litigate the overall decision. If the decision didn’t have an acreage cap, say, per drainage, they could object to and litigate that. So basically you have a pre-approved toolkit, with pre-approved caveats, in pre-approved areas. This is a pretty fine point, perhaps, but not really hard to understand.

Ah, you say, but that sounds like a programmatic EIS? And so then NEPA should also be done at the site-specific level. But since many of us can’t afford our own attorneys, our views have just as much of a chance of being heard sitting around in a meeting with the FS as in a courtroom. We don’t think of this much, but it seems to me that this is ultimately about power. If we take hunter q or hiker y or neighbor x or timber worker z who know the area, their views will not count compared to the groups who will be litigating (with all good intentions but perhaps different views).

“Site-specific public involvement can significantly improve projects because the agency may be unaware of harmful impacts or resource concerns until the public flags them during the environmental analysis process.” I absolutely agree, but there is site-specific public involvement..so..

The Forest Service appears to be abandoning the site-specific analysis model in favor of CBM.

That’s an interesting claim, since we have seen a number of site-specific EA’s, CE’s and EIS’s go by, and relatively few CBM projects. It would be good to know how many and what kind of projects are out there, and an updated PALs might be able to tell us that.

CBM is not only legally dubious, but also unnecessary. The Forest Service already has NEPA-compliant methods to deal with situations that require a nimble response to the needs of a dynamic landscape. In these cases, the Forest Service can complete a single “programmatic” analysis to which future site-specific decisions will be tiered. This programmatic approach allows the Forest Service to speed the consideration and implementation of site-specific, step-down proposals. Unlike CBM, this approach allows for public review of site-specific decision-making and administrative review of those decisions.

Well, this is the “everything is currently fine” argument. Not everyone agrees with that as we have seen. And again, CBM projects do allow site specific public review, but not administrative review. Is it overkill for one project to have three administrative review/litigation opportunities.. forest plan standards, a programmatic, and the project level. And it’s certainly in the interest of environmental attorneys to have more opportunities for litigation, and for those trying to get projects done, to have fewer, or even one. I just think of a recent I25 widening EIS that had one layer (and it was site-specific). I think there is probably room for some kind of middle ground here.

For example, in the Sagehen example, they have a map of proposed temporary roads. Is that specific enough?

Maybe there should be a FACA committee that reviews CBM projects and makes recommendations for their use based on those experiences. I would see environmental attorneys as one stakeholder group, but not the only one.

Jon mentioned that CBM had been dropped from the new NEPA regs between draft and final. I only read the summary and it said the FS doesn’t need it because it’s already doing it. The counterargument would be that being in regulation would give the FS an advantage in court (perhaps). Maybe someone could read the entire answer in the response to comments?

The LAVA Project: Site-Specific Public Involvement

This photo is from an article on UW researchers’ findings that elk avoid bug kill.https://www.gillettenewsrecord.com/news/wyoming/article_0342d35b-56ea-57b3-9690-92f5bd4c5f73.html
Many thanks to Ted Zukoski of the Center for Biological Diversity for alerting us to the finalizing of the Lava Project on the Medicine Bow National Forest in Wyoming. Since we’ve been having a discussion here on TSW about condition-based NEPA, I thought I’d explore the Response to Objections a bit. Ted also provided the WEG press release.

There are many interesting aspects to this project that don’t come out without some digging into the (naturally) voluminous documentation. I was particularly curious about the opportunities for public involvement on a site-specific proposal..

The Forest developed Appendix A based on public comment on the DEIS. Interestingly, there is a process involving the public in prioritizing areas, something that many cooperators have often called for. Especially in Bug World, there is so much that could possibly be done that working with the public to prioritize areas seems particularly important.

But I was also curious about the “individual site” public involvement process.

Individual Treatments (2 to 3 months)
Intent: Provide an opportunity for the public and cooperating agencies to provide detailed, site-specific feedback for individual treatment proposals identified within the Focus Areas. This phase is depicted in the “Individual Treatments” section of Figure 6.

Outcome: Refined individual treatment area boundaries, treatment proposal information, and maps based on internal Forest Service, public, and cooperating agency feedback.

Phase Outline
• Conduct a meeting to identify preliminary treatment proposals within the focus area and treatment opportunity area boundaries. Identify treatment constraints by:
o Reviewing the “Decision-making Triggers” table
(Attachment 1: LaVA Decision-Making Triggers (this table is 11 by 17)) to determine if treatment proposals are approaching yellow- or red-light triggers; incorporate adaptive action
options as appropriate;
o Assessing treatment feasibility factors, such as slope and sensitive soils; and
o Identifying potential treatment design features (Attachment 2: LaVA Project Design Features) and identifying any additional features, if necessary, to protect area resources (Forest Service
and Cooperating Agencies).
• Identify funding sources (Forest Service and Cooperating Agencies);
• Following the meeting, complete Output 1: LaVA Pre-treatment Checklists (Forest Service and Cooperating Agencies);
• Consolidate completed Output 1: Pre-treatment checklist information into a single document and upload to the Project Website for public feedback (Forest Service).
• Conduct public workshop (All)
• Synthesize public feedback information (Forest Service and Cooperating Agencies); and
• Incorporate feedback into treatment design, as appropriate (Forest Service and Cooperating
Agencies).

So there will be opportunities for public involvement, but not as an aspect of an additional NEPA process. As a person who recreates in the project area, it doesn’t make much difference to me as long as I get to comment. I’m interested what others think.