NEPA

Gila plan revision’s “most divisive issues”

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This is an account of a series of meetings that seems like a useful step in the forest planning process that I don’t think I’ve seen before:

Over the last year, the Forest’s planning team has held dozens of public meetings regarding the ongoing revision process. Through those, and other submission options, they have collected hundreds of comments on various aspects of the Gila’s management. Heather Bergman, of Peak Facilitator Group, called this round of meetings the “last call for ideas,” at Tuesday’s meeting in Reserve. Throughout the meetings, Bergman — whose company the Forest Service contracted to consult on the plan revision process — and Gila planner Matt Schultz showed attendees the range of opinions the team had gathered on each of the most divisive issues to that point.

These might be the same thing as “significant issues” under NEPA that warrant development of alternatives.  Here they are:

  • Livestock grazing management (“permittee should decide how resources are managed on their allotment” vs. “more restrictions placed on permittees” or eliminate grazing)
  • Land adjustments (“less public land” vs. “acquire desirable lands”)
  • Wilderness (delist some wilderness vs. significantly expand wilderness)
  • Riparian area management, restoration tools and “a few more”

Here’s what the facilitator took home:

“It is really amazing when you think about all of the different things the Forest Service manages on the Gila, these are the only things there is controversy on,” Bergman said. “There is a great deal of consensus on management, which is really nice.”

Lucky them!  Wildlife apparently didn’t make this list, which is not uncommon, even in places where it is a source of controversy, which is most places.  Maybe that’s because it is the underlying reason for other divisive issues like livestock grazing and riparian management.  (Maybe fire management is included under “restoration tools?”)

“Land adjustments” is not usually on this list, but at least on the Gila (home of Catron County) it looks like forest planning is seen as an opportunity to bring up privatization again.

You say “logging,” we say “thinning,” “mechanical treatment” or “stand improvement”

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And Trump says “tree clear.”  This article got my attention for a number of reasons.  It’s a follow-up to the story about the Trump tweet regarding forest fires.  It is another case of “upping the cut” under the Trump administration (doubling in this case on the Los Padres).  And it looks like the Forest is trying to disguise what it is actually doing with this project.  And using a questionable categorical exclusion to boot.

Critics contend the proposed logging in the Los Padres is a signal that the balance of power in national forests is shifting under the Trump administration. Such projects could open the door to commercial logging in other public forests currently managed as watersheds rather than timberlands, such as the Angeles, San Bernardino and Cleveland national forests.

Agriculture Secretary Sonny Perdue raised annual timber production targets for the Los Padres National Forest from 200,000 cubic feet of wood in 2017 to 400,000 cubic feet this year.

“We are witnessing a historical change unfolding in the national forests in our own backyard,” said Richard Halsey, founder of the nonprofit Chaparral Institute in Escondido, Calif. “Timber was never part of the equation, until now.”

Here’s the way the article introduced the project:

The federal government is moving to allow commercial logging of healthy green pine trees for the first time in decades in the Los Padres National Forest north of Los Angeles, a tactic the U.S. Forest Services says will reduce fire risk.

The scoping letter described the project as a “shaded fuelbreak.”

Treatments would include a combination of mechanical thinning, mastication of brush/smaller trees, and hand treatments such as hand thinning, brush cutting, pruning and piling of material.

That sounds fairly benign, but the proposed action sheds a little more light on it:

Mixed conifer and pinyon juniper stands would be thinned to a range of 40 to 60 square feet basal area per acre…  Trees would be removed throughout all diameter classes and would include the removal of commercial trees. Residual trees would be selected for vigor; however, larger Jeffrey pine would be retained per Forest Plan direction unless they pose a hazard or are infected with dwarf mistletoe. All black oak would be left unless they pose a hazard.

But the scoping letter states an intent to use this categorical exclusion:

(6) Timber stand and/or wildlife habitat improvement activities that do not include the use of herbicides or do not require more than 1 mile of low standard road construction. Examples include, but are not limited to:

(i) Girdling trees to create snags;

(ii) Thinning or brush control to improve growth or to reduce fire hazard including the opening of an existing road to a dense timber stand;

(iii) Prescribed burning to control understory hardwoods in stands of southern pine; and

(iv) Prescribed burning to reduce natural fuel build-up and improve plant vigor.

And then there’s this:

Ashley McConnell, a spokeswoman for the U.S. Fish and Wildlife Service, said her agency plans to work with the Forest Service to help protect active California condor nest sites or roosting areas. Logging, she said, could “benefit California condor habitat because the larger and older trees where condors typically roost are preserved.”

That’s what “thinning” means, right?

So has it been so long since the Los Padres has had a timber sale that they don’t know what to call it?  Or is this an attempt at sneaking by the NEPA requirements that go along with it?  Maybe you can technically call it “thinning” if you leave any residual trees, but that is clearly not what this CE was intended to cover.  There is another CE for hazardous fuel reduction, but it’s limited to 1000 acres of “mechanical treatments.”  And another for “harvest of live trees” (limited to 70 acres).  Is this the kind of misleading corner cutting the Forest Service is going to go back to when it is under pressure to “get the cut out?”

How the Forest Service manages fires – examples

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A couple of recent stories provide some information about how the Forest Service is “managing fire,” and might provide some insights into the opportunity for public involvement (or not).

The Lion Point Fire is burning on the Sierra National Forest in California. Here is an article that basically incorporates the language (which may be boilerplate) from the Forest Service on its Inciweb site. (As of today, it’s burned 9 acres.)

“This lightning caused fire started approximately two weeks ago. Forest managers are determining the feasibility to manage this fire for multiple resource and protection objectives.  Desirable fire effects that are consistent with the forest plan and beneficial outcomes to the resource values at risk will be the main objectives for this incident.”

If you were the Incident Commander, and looked at the forest plan to see what it says about the desired outcomes and values at risk, you would find this in the 2004 Sierra Framework amendment ROD:

“Lightning-caused fires may be used to reduce fuel loads or to provide other resource benefits, such as conserving populations of fire-dependent species. Before wildland fires can be used, national forest managers must prepare a fire management plan that describes how prescribed fires and naturally caused wildland fires will achieve resource management objectives.”

My search for “fire management plan” did not match any documents on the Sierra website. Does anyone know if such a document exists, or what the managers of the Lion Point Fire are using?

The Sierra forest plan is currently being revised, and the 2016 draft revised plan would create four “strategic fire management zones” with different desired conditions and guidelines. (“Fire management plans” are not mentioned.)

Meanwhile, the revised forest plan for the Coconino National Forest in Arizona has just been released; it emphasizes forest health and thinning initiatives to reduce the risk of catastrophic wildfire. The latest “update” says “the revised management plan provides greater flexibility on the management of wildland fires and seeks to return the forest to its nature-based fire dependent ecosystem.” The Forest Supervisor says the new plan includes updated guidance in managing naturally occurring wildfires to burn dry forest fuels.

I found this ecosystem desired condition and these guidelines in the “fire management” section:”

“FW-Fire-DC

2 Wildland fires burn within the historic fire regime of the vegetation communities affected. High-severity fires occur where this is part of the historical fire regime and do not burn at the landscape scale.

FW-Fire-G

1 WUI areas should be a high priority for fuels reduction and maintenance to reduce the fire hazard.

2 Fire management activities should be designed to be consistent with maintaining or moving toward desired conditions for other resources.”

The Coconino forest plan describes the decision process for managing fires as follows:

“Site-specific analysis is conducted for prescribed fires and for any wildfire that extends beyond initial attack. For prescribed burns, the decision document is the signed National Environmental Policy Act (NEPA) decision. For wildfires, an analysis is performed using a tool like the Wildland Fire Decision Support System, and signed by the appropriate line officer.”

Which is not a “decision document” subject to NEPA.  And this language does not appear to address how to make a decision whether there would be an “initial attack” in the first place.

My take-away?  Forest plan desired conditions relevant to fires are even more important than for most projects if there is no later opportunity to influence a decision, so it is important for them to be specific and for them to vary in the forest plan based on the ecosystem and values at risk.  (While I didn’t look for them here, there should also be forest plan standards or guidelines applicable to suppression activities.)

Does a Fire-Ravaged Forest Need Human Help to Recover?

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That’s the title of this article.  It starts out with Chad Hanson walking the Rim Fire in California, so I thought there would be some interest here.  Like so many things, the answer I get from this is “it depends.”  It first depends on what the desired condition is.

Several months after the Rim Fire was extinguished, Eric Holst, a vice president of the Environmental Defense Fund, penned a blog stating that “letting nature heal itself” after a high-intensity fire is likely to result in a forest dominated by shrubs for many decades.”

As if that result is inherently wrong.  Whether that is a desired outcome or not is the kind of issue that should be addressed strategically through forest planning.  It may be fine from an ecological standpoint.  If the plan determines that speedier regeneration is needed for old growth species or economic reasons, that should be debated and decided at the plan level.

Then there is the science question of whether that would really be the outcome.  That depends on the nature of the site and the fire.  Regeneration problems seem to be the exception rather than the rule in the Bob Marshall Wilderness in Montana:

“The exception, he says, is in areas that have reburned in less than 20 years, too soon to allow for a seed crop to mature, especially on the west- and south-facing slopes that are hotter and drier.”

The key question to me then seems to be whether salvage logging in susceptible areas reduces the chance of reburns.  That is a determination that could be required at the project level by a forest plan standard (for those areas with a desired condition for rapid revegetation).

The site-specific effects of each salvage project would also need to be determined (and could provide reasons to not log despite the authority in the forest plan to do so), because …

“The scientific literature on post-salvage logging is contradictory. Some studies argue that the practice is beneficial because it churns up the ground, softening hard, water-repellant soils that sometimes form after an intense fire. Proponents also insist that the detritus left behind after logging inhibits erosion.  Critics such as Hanson say that the logging skidders decrease natural forest regeneration, kill seedlings, and compact the soil in a way that increases runoff and erosion, harming aquatic life in streams and rivers.”

Of course, maybe salvage logging is just as simple as how this reporter characterized the latest salvage efforts on the Lolo National Forest:

“The Lolo National Forest wants make the best of last year’s 160,000-acre Rice Ridge fire by logging some trees…  If they can get the chief of the Forest Service to grant an Emergency Situation Determination, the public will not be allowed to object to the project once Mayben makes her final decision.”

 

 

Ugly Americans get involved in travel planning

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“The debate over snowmobile access in the Tahoe National Forest has taken an ugly turn with a spate of emails, social media posts and online comments filled with foul and abusive language.

Several people pushing for more restrictions on snowmobiles in the 800,000-acre forest that straddles the Sierra Crest have been the targets of online abuse.

The problem has gotten bad enough that Forest Service officials disabled a portion of the online comment system when they suspected people used it to target other commenters with nasty emails.”

This is a symptom of a much bigger problem in this country right now, but the problem it causes federal agencies is that they will have to start questioning the results of the public comment process where there is any indication that people have been intimidated from participating.

The mysterious disappearance of sensitive species – Flathead plan revision example

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Harlequin duck (Histrionicus histrionicus)

The Forest Service created through its directives (FSM 2670) a program to manage sensitive species, which it defined as species “identified by a regional forester for which population viability is a concern.” Sensitive species “must receive special management emphasis to ensure their viability and to preclude trends toward endangerment that would result in the need for federal listing.” Up until now, forest plans had to include direction for sensitive species “to ensure viable populations throughout their geographic ranges.” In addition, all plans and projects required a biological evaluation (BE) for each sensitive species “to ensure that Forest Service actions do not contribute to loss of viability … or contribute to trends toward Federal listing.” The BE became an important tool for biologists to use at the project level.

The 2012 Planning Rule requires identification of Species of Conservation Concern (SCC). They are defined as those for which “the regional forester has determined that the best available scientific information indicates substantial concern about the species’ capability to persist over the long-term in the plan area.” The plan must maintain viable populations of these species, but there are no requirements for future projects to address them; compliance with forest plan requirements for SCCs is presumed to meet the needs of these species. This elevates the importance of plan components for these species.

The Forest Service issued an internal letter to regional foresters on June 6, 2016 explaining that it would phase out the sensitive species designation. It recognized that, “As noted in the preamble to the 2012 planning rule, “[Regional Forester Sensitive Species] are…similar to species of conservation concern.”   It also stated that, “Applying both systems on the same administrative unit would be redundant.” Consequently, “Once a revised plan is in effect, the Regional Forester’s Sensitive Species list no longer applies to that unit.” The letter acknowledges that a biological evaluation must still be prepared for a revised forest plan. (Interestingly, the letter had only a planning file code, so it did not necessarily go to biologists.)

The Forest Service is thus implementing a substantial change in wildlife policy, with no prior public involvement, through individual forest plan revisions. This should mean that the forest planning process would include a clear explanation for the public that some species are no longer sensitive, and that no species will be evaluated for future projects (outside of any effects analysis NEPA might require). In particular, there needs to be a reasoned explanation of what facts have changed for those species where viability was a concern, but isn’t any more. The forest plan EIS must also consider the effects on sensitive species of removing the existing requirements to evaluate and maintain their viability at the project level (in comparison to the no-action alternative).

Instead, the Flathead has mostly hidden any information about sensitive species. Most existing sensitive species (17 animal species) are not designated as SCC (3 animal species), but there is no list of sensitive species in any of the Forest documents (though they can be identified from a list of all species included in an EIS appendix). There is no biological evaluation as required by the Forest Service Manual and the 2016 letter. There is a summary of “biological determinations” for sensitive species, but it is not listed among the planning documents on the website. It cites the forest plan EIS as the basis for its one- or two-sentence summaries. The EIS does not mention sensitive species at all, but it includes effects analysis for species that are/were sensitive.

While it is therefore possible to find some information on sensitive species, the Forest does not explain the significant implications of that information. It does not disclose the changes in scientific information that provide the rationale for declassifying them as at-risk species, and it does not explain how the sensitive species policy changes will affect future management of this Forest. These seem like fatal (arbitrary) omissions.

Mediation, Arbitration and Collaboration in Natural Resource Decisions: Guest Post by Peter Williams

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Many of you may know Peter Williams from his work in the Forest Service on collaboration. Here is a link to what he is currently doing at the Partnership and Community Collaboration Academy. Thanks to him for writing this for our blog (at my request)! Quite a bit to think about here.. thanks again, Peter!

“As the USFS pursues changes in environmental analysis and decision making, matters of decision process are receiving attention, including dispute resolution. There are numerous schools of thought about decision making, dispute resolution, and decision processes. Some of the thinking is very divergent; most people have a limited understanding of the complexity of that thinking, at least outside of academics and lawyers, despite the fact that making decisions is one of the more basic human actions.

When a dispute occurs, arbitration and mediation are often mentioned as tools or techniques to reach agreement with the assistance of a third-party, either a mediator or arbitrator, also called an arbiter. Generally, the basic difference between arbitration and mediation is the decision maker: under arbitration, the arbitrator has the decision authority if the parties fail to reach agreement; under mediation, the parties make the decision and the mediator guides the process. There are exceptions, like with non-binding arbitration, where there is no enforcement of the arbiter’s decision on the parties. With non-binding arbitration, the arbiter still has the decision authority, but the parties are not bound by the decision, which obviously limits the arbiter’s authority.

Both arbitration and mediation are considered “alternative dispute resolution” (ADR) skills or techniques, with the other ADR techniques including collaboration and negotiation. The 1996 Alternative Dispute Resolution Act (ADRA) authorizes federal agencies to use ADR techniques to supplement other dispute resolution methods when the parties agree; yet, it specifically prohibits use of ADR techniques if, among things, other parties not involved in the proceeding may be significantly affected. For this reason, arbitration under ADRA fits poorly with natural resource management planning and public land management planning. Other ADR approaches, however, do fit well.

A collaborative approach is typically consistent with ADR concepts, for example, while also addressing public land management process issues. Public land management decisions are often a particular type of decisions because the scale of the interests can be so large, well beyond the narrower scope of a typical business dispute or administrative dispute involving a relatively small number of parties. For these reasons, a collaborative approach can be a good choice if the process is designed well. For example, a good process design will address the public engagement required under NEPA, the information collection constraints under the Paperwork Reduction Act, and the sunshine requirements under FACA, as well as any other procedural requirements identified during the process design phase.

In addition, a collaborative approach is fundamentally learning-oriented because it is about jointly coming to understand the issue, context, history, and implementation-oriented options. It is a “diagnostic” approach, as opposed to a prescriptive or predictive approach, because a shared understanding emerges from the broader group. Part of the understanding that emerges is about interests, as opposed to positions. In more traditional planning or decision processes, positions stated at the beginning of the process are treated as fixed, with little learning encouraged to reframe positions or to understand the interests underlying those stated positions.

A collaborative approach to a decision can extend into a collaborative approach to implementation as well as to monitoring, evaluation, and other forms of feed-back, all because of the continuous learning aspects of a good collaborative process. Arbitration and mediation, in contrast, tend to be one-off processes during which a narrow set of disputed issues are addressed. In this sense, arbitration and mediation generally remain in the category of adversarial dispute resolution approaches. Collaborative approaches are in a separate category and it can take careful work to move from an adversarial relationship to a more collaborative one, recognizing that even most collaborative efforts still allow for adversarial disputes to be addressed. In other words, one can work in a collaborative way while also recognizing that adversarial disputes can occur. When those happen, though, the foundation of collaboration often allows those disputes to be worked out more quickly and more constructively, often in a way that allows a return to the more generally collaborative approach.

Returning to the larger category of collaborative approaches, there is collaborative planning and collaborative decision making, as well as collaborative learning and collaborative evaluation or assessment. All of these are related and readily integrated.

Forest Service EADM – Workshop Introductory Powerpoint

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One of my favorite professors at Iliff is a historian named Eric Smith. When we approach the past, he said, “we should neither be naive nor cynical.” This is a message, in my view, that applies to many things in life. With regard to EADM, you could think (the Cynical Partisan View) that this is a plot by the evil Trump Administration and Western Congressional R’s to destroy ESA, leave the public out, and lay waste to western landscapes in the name of money-grubbing corporate elites. Or you might think, (the Cynical NEPA Person View) this is the same old stuff, it comes up every decade or so, since the FS talked about Process Predicament and nothing much changed, what’s the point? But I think that there are many good ideas out there, and that this is an opportunity for us to explore them and see if there are any that we can agree on. It’s a chance to move past being stuck in the partisan swamp, and actually getting to higher ground and a better place.

Absolutely, the FS may not use our ideas. I am not naive. But I am not sure that they won’t, either, so I am not cynical. And who knows, ideas take on their own kind of life and may be adopted by Congress or other groups. And I think us discussing them outside the partisan vitriolic context has its own value to show internet world that more meaningful and less mean-spirited dialogue can take place on these platforms.

The FS says that the next opportunity to give input will be when the Draft Rule comes out in June or thereabouts. Part of the conversation is (1) what is working? (2) what is not working? (3) why do we think so? (4) what might work better? and (5) what would have to change to make that happen?

Here is the powerpoint presentation given by Glenn Casamassa. Note that Glenn’s history involved him being himself a NEPA expert, plus he is a veteran of previous NEPA improvement efforts.

Please feel free to comment on anything in the Powerpoint. I don’t know any more than the rest of you all about the process, but if we have questions we can try to find the answers. I think the NFF was supposed to generate a report based on the workshops. It would be great if that were made available and we could post and discuss. I could FOIA it but why harass FOIA people unnecessarily? Really- public comments, including syntheses thereof, should be made public IMHO.

Landscape Scale Success Stories: I. Upper Monument Creek

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As the Forest Service pursues improvements in Environmental Analysis and Decision Making through the EADM effort, it would be helpful to take a look at successful landscape scale projects and see if we can discern what they have in common. Certainly there is also shared learning on this topic going on within the agency, but this is an opportunity for those of us looking in from outside to see what makes for success, and perhaps give that as feedback to the process somewhere along the line.

Please submit posts on different successful (defined by you) projects to my email on the widget to the right. FS employees are encouraged to do so as well and I do not have to share the name of the contributor.

Here is my first candidate: the Upper Monument Creek on the PSICC National Forest in Colorado.

Here’s a description from the ROD of the project.

The intent of the proposed action is to restore more resilient ecological conditions across the entire landscape and particularly Front Range forests; reduce the impacts of severe wildfires on property, infrastructure, and natural resources; and contribute towards the long-term sustainability of a full range of forest values including creating effective wildlife habitat and protecting aquatic resources. The proposed action entails the treatment of up to 31,700 acres within the 70,600-acre UMC project area (Figure 4). A combination of mechanical thinning with product removal, service work, manual thinning, pile burning, post treatment broadcast burning, and first entry prescribed fire would be utilized to achieve the desired ecological conditions. Implementation of these management actions is expected to begin in 2017, and extend over a period of 10 years or more.

Acres treated: 31,700/70,600
NEPA tool: EIS
Collaboration: CFLRP
Time to prepare: 2012-2017
Time to conduct treatments: 10 or more years
Objections: 1
Litigation:0

I asked the District Ranger, Oscar Martinez, why he thought this approach was successful. Here’s his answer:

Given the nature of the objection, I still saw this as a victory for the IDT because we certainly had a large following of partners that were tracking the decision. To be honest, the process still took some time, but as the saying goes,… it is often necessary to go slow to go fast at the end. For us this translated into spending the time upfront in building a strong coalition with a wide range of partners that were fully vested in the process and the final objectives for the project. Consequently, the majority of the team’s time was spent in building the understanding and trust needed to support a decision that took full advantage of scale, complexity, and adaptive management principles to achieve those objectives. As we proceed with implementation, we expect that many of these partners will remained supportive and interested as we test our restoration assumptions.

The nature of the one objection is that it is pretty generic and from a person who objects or appeals a wide variety of things across the country. In my experience, this same person is not so much into the specifics of the project and makes a variety of what I would call “unsubstantiated knowledge claims.”

But you can check the objection out for yourself 20170618_UMC_obj_artley.
Note: I have seen some objections posted publicly and others not, depending on the project. If FS people can chime in whether the national database is gone, or what exactly is going on, that would be helpful. They are part of the puzzle.

Which comes first, the NEPA or the ESA (process)?

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My experience was generally that the consulting agencies wanted to have the last word. That is that they didn’t want to consult on anything unless it was the final decision by the Forest Service. The expectation was that the FS would just incorporate any needed changes that resulted from the consultation process. I wondered if the public needed be involved in these changes in the decision, but I didn’t think NEPA would apply because any changes required by ESA would further mitigate adverse impacts and/or be non-discretionary.

The court’s recent opinion in Bark v. Northrop discusses this part of the NEPA process. It involves a proposal to build the Timberline Ski Area Mountain Bike Trails and Skills Park on the Mt. Hood National Forest. As approved, the project is a chairlift-assisted mountain biking development with seventeen miles of bike trails and a small skills park within an area designated for managed recreation.

It turns out that after consulting with NMFS on the project’s effects on the Lower Columbia River steelhead the Forest Service issued a New Information Report (“NIR”) and concluded that NMFS’s discussion of the Project’s effects was consistent with the effects considered and disclosed in the project EA. (This actually happened twice, and the Forest Service made the point that the second set of terms and conditions were actually more protective so that impacts had been decreased.)

The court agreed that no supplemental NEPA analysis was necessary because “the mere fact that NMFS found likely adverse effects does not trigger further NEPA analysis unless NMFS’s finding implicates impacts that could significantly affect the environment in a manner not already considered by the Forest Service.”  The effects were minor, and the difference in effects was minor.  (The court reached a similar conclusion for new information about the western bumblebee, a FS-designated sensitive species.)

The Forest Service has little guidance on how to make determinations in accordance with NEPA regarding the significance of new information, never mind how that interfaces with ESA. “NIRs” are not a “thing” recognized in the agency NEPA directives. But the FS got it right this time.