NEPA

NEPA Pilots- 4 FRI and Bell Landscape

by
4FRI with recent fires outlined.
Bell Landscape

Thanks to Terry Seyden for this.. something to keep an eye on.

For more info, here’s the link to Bell Landscape and here’s the link to 4FRI
http://politicalnews.me/?id=11776&keys=CEQ-NEPA-ENVIRONMENT-REVIEWS

PoliticalNews.me – Feb 13,2012 – CEQ and Forest Service announce project to improve efficiency of federal environmental reviews

WASHINGTON, —The Council on Environmental Quality (CEQ) announced a new National Environmental Policy Act (NEPA) Pilot project under an initiative launched in March 2011 to increase the quality and efficiency of Federal environmental reviews and reduce costs. CEQ has selected a U.S. Forest Service proposal to develop NEPA best practices for forest restoration projects using lessons learned from two restoration projects currently being analyzed in Arizona and Oregon.

“NEPA is a cornerstone of our country’s environmental protections and critical to protecting the health of American communities and the natural resources we depend on,” said Nancy Sutley, Chair of the Council on Environmental Quality. “This pilot project will promote faster and more effective Federal decisions on projects that will help restore our forests and support strong and healthy communities and economies.”

“These two projects demonstrate that by involving partners early in the NEPA process we can cut costs and operate more efficiently while still maintaining strong environmental safeguards at the ground level,” said U.S. Forest Service Chief Tom Tidwell. “We look forward to replicating what we are doing in Arizona and Oregon to other parts of the country where we are engaged in critical restoration work.”

Under this NEPA pilot project, the Forest Service will compare and contrast environmental review methods used for the landscape-scale Four Forest Restoration Initiative in Arizona and the smaller-scale 5-Mile Bell project in Oregon. The Four Forest Restoration Initiative is an effort to collectively manage portions of four contiguous National Forests. The pilot includes the first restoration project under consideration, which would cover approximately 1 million acres. The Forest Service will employ a collaborative NEPA approach to plan and analyze the proposed restoration activities in an Environmental Impact Statement of unprecedented scale and scope for forest restoration projects. In collaboration with stakeholders, the Forest Service also will develop an adaptive management strategy to allow for flexibility in implementing the restoration projects and minimize the need for future planning and environmental reviews.

The 5-Mile Bell Landscape Management Project is an ecological and habitat restoration project on nearly 5,000 acres of National Forest System lands on the Oregon Coast. For this smaller scale project, the Forest Service will employ an innovative approach to NEPA by engaging local, state and tribal partners in the environmental review process up front to an unprecedented extent. In an effort to reduce potential conflicts and delays, the partners will collaboratively prepare the environmental review and implement the selected land restoration project.

CEQ and the Forest Service will compile the lessons learned from the NEPA approaches used for both the small-scale and the landscape scale projects and use them to develop best practices for future land restoration projects.

The Forest Service project is the fifth pilot selected under the NEPA Pilot Program, which is part of a broad CEQ initiative to modernize and reinvigorate how Federal agencies implement NEPA. Other actions under the modernization initiative include issuing new NEPA guidance for
Federal agencies, enhancing public tools to encourage participation in the NEPA process, and forming rapid response teams to help expedite the review process for transportation, transmission and renewable energy projects.

For more information on CEQ’s NEPA Pilots Program, please visit: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/nepa-pilot-project.

For more information on CEQ’s Initiative to Modernize and Reinvigorate NEPA, please visit: http://www.whitehouse.gov/administration/eop/ceq/initatives/nepa.

A Look at Judge Smith’s Dissent on Sierra Framework Case

by

One good thing about the recent case is that because there was a dissenting judge (33% of total) we get to hear “both sides of the story” in the case. It sounds like the FS said that analyzing site specific projects impacts on fish made more sense than at the programmatic level. As I’ve said before, it’s hard to analyze impacts when you don’t know if, where, or when you will do a project, nor how it will be done. Judge Smith even quoted some similar thinking from the FEIS in his dissent, which I italicized below.

To analyze it more broadly, you have to make a host of assumptions, which are pretty much predicting the future. The best available science on our predictions of what will happen suggests that we are not too good at it. If we have a bad track record, making those assumptions and doing that analysis is not particularly enlightening or useful, and to some extent is a waste of taxpayer dollars compared to analysis when the details are known. One of the problems with having this debate- “how much and why”
about analysis – through court cases, is that it is never actually debated… judges have opinions and we move on. And as I’ve pointed out before 10th Circuit Roadless and 9th Circuit SNF seem to be going in different directions about site-specificity.

I don’t know if whether a judge is “liberal” or not affects their feelings about this case, as perhaps implied by the Bee reporter. If so, though, we could do a thought experiment about different random combinations of judges and potential outcomes.

The majority did refer to this note:

The Draft was criticized by the staff of the Forest Service’s Washington Office for Watershed, Fish, Wildlife, Air and Rare Plants. The staff wrote a letter complaining that there was no discussion of the effects of the logging and logging-related activities on fish:

Aquatic and Riparian: There needs to be a discussion of the effects of the new alternatives on riparian ecosystems, streams and fisheries. It is not sufficient to dismiss these effects as within the range of impacts discussed in the [2001] framework ․ without further analysis, given the activities proposed in Alternative S2. If the treatments [proposed in Alternative S2] will be sufficient to have their intended effect, there is a high likelihood that there will be significant and measurable direct, indirect and cumulative effects on the environment, which need to be analyzed and disclosed in this document.

To me, the depth of discussion in a programmatic document is really a NEPA question. If every time people wanted more discussion of something in a document and wrote a letter, that was absorbed by the court as a legitimate viewpoint, that would lead us into a even more massive quagmire.As far as I can tell, few people agree about the appropriate level of discussion for any impact, ever. The toggle switch for documentation is inevitably set to more.

Here’s the link to the opinion.
Let’s look at what dissenting Judge Smith says:

Fourth, the majority incorrectly asserts that there is “no explanation” for the Forest Service’s decision to defer more in-depth analysis of individual fish species. See, e.g., Maj. Op. 1027. However, the Forest Service clearly did explain its reasons for deferring in depth analysis until more site-specific projects were identified. Specifically, in its Record of Decision, the Forest Service stated,

Our ability to strategically place fuel treatments for optimum effectiveness has been compromised by the set of complicated rules in the [2001 Framework]. The standards and guidelines in that [Framework] are applied at the stand level, rather than by land allocations․ Some of the rules are so detailed that they prescribe down to one acre what is allowed, and require measuring change in canopy to ten percent increments, which is not consistently practical with existing measurement tools. This fine-scale approach limits our ability to make significant progress. ․ [O]ur ability to strategically place fuels treatments on the landscape has been compromised by the complexity of rules [which allows] ․ more habitat [to be] lost to wildfire․ This decision is intended to reverse that trend.

Record of Decision at 8–9; see also Appellee’s Br. at 6. As a result, the agency explained that the 2004 EIS was being implemented to “assure the most efficient and appropriate use of government resources․” Record of Decision at 23–24. The Forest Service primarily argued not that providing more analysis would be entirely impossible, but rather that “there was insufficient information and analytic tools for a meaningful analysis․” Appellee’s Br. at 48 (emphasis added). Therefore, the majority should have concluded that it was well within the Forest Service’s discretion to determine that the benefits of deferring in-depth analysis of aquatic species to provide more meaningful analysis outweighed any delays in information.

If the Forest Service commits to a site-specific project in the future, without engaging in the required level of NEPA analysis, then Pacific Rivers might have a viable NEPA claim. Indeed, it is likely that “[t]he deficiencies noted by the” majority opinion (regarding analysis of fish) “are precisely the omissions the Forest Service will need to correct in order to comply fully with NEPA” at a later time. Block, 690 F.2d at 763; see also N. Alaska Envtl. Ctr. v. Lujan, 961 F.2d 886, 891 (9th Cir.1992) (approving a programmatic EIS that deferred detailed analysis until an application for a mining permit was submitted, but noting that “judicial estoppel precludes the Park Service from later arguing that it has no further duty to consider mitigation measures ․”).

Not only has the Forest Service affirmed many times that they plan to engage in further detailed analysis when specific projects are identified,7 but we have a legal duty to assume that the agency will perform that analysis. In Salmon River Concerned Citizens v. Robertson, we observed that courts should “assume that government agencies will ․ comply with their NEPA obligations in later stages of development.” 32 F.3d 1346, 1358 (9th Cir.1994) (quoting Conner, 848 F.2d at 1448).

B. The amount of programmatic, high-level analysis was sufficient to engage in informed decision-making regarding broad policies affecting all species, including fish.

The majority claims that the Forest Service “entirely failed to consider an important aspect of the problem” by not providing in-depth analysis regarding how the 2004 programmatic Framework would affect specific species of fish. Maj. Op. 1035 (citing Lands Council II, 537 F.3d at 987). But here, because the Forest Service chose to utilize a tiered NEPA analysis structure and implement a programmatic EIS, the relevant scope of “the problem” is whether the Forest Service “provide[d] ‘sufficient detail to foster informed decisionmaking.’ “ Friends of Yosemite Valley, 348 F.3d at 800 (quoting Lujan, 961 F.2d at 890–91). As discussed above, the majority is only able to claim otherwise by ignoring the proper standard of review and refusing to defer to the Forest Service’s discretion in determining the scope of its analysis. See Kleppe, 427 U.S. at 413 (agencies have discretion to “intelligently determine the scope of environmental analysis and review specific actions [they] may take”); Friends of Yosemite Valley, 348 F.3d at 800 (“[A] reviewing court [must] focus upon a proposal’s parameters as the agency defines them”) (alteration in original omitted) (quoting Block, 690 F.2d at 761). The scope of analysis in a programmatic EIS can include considerably less detail than in an EIS analyzing a site-specific project. See, e.g., Res. Ltd., Inc. v. Robertson, 35 F.3d 1300, 1306 (9th Cir.1993); Salmon River, 32 F.3d at 1357–58; Block, 690 F.2d at 761.

Thus, under the Forest Service’s tiered-analysis approach, the 2004 EIS provides sufficient high-level standards to guide future on-the-ground decisions affecting fish. These standards generally contemplate the relevant range of potential agency action and the consequences on various habitats in the Sierra Nevada. The 2004 Framework “begins by explaining that cumulative effects were analyzed in detail for the eight alternatives considered in the 2001 Framework.” Appellee’s Br. at 50. “It then identifies activities that have occurred” since the 2001 Framework, “including soil and water resource improvements, hazardous fuels reductions, wildfire suppression,” and road construction. Id.

Specifically regarding aquatic habitats (home to fish species), the Framework notes that these are one of the most “degraded of all habitats in the Sierra Nevada,” though much of the original problem was related to “lower elevation dams and diversions.” 1 SEIS at 3. The EIS observed that “[t]he greatest effects on the [a]quatic, [r]iparian and[m]eadow [e]cosystems will generally be from either mechanical fuel treatments or catastrophic wildfires.” Id. at 12, 96. “Fires can have extraordinary effects on watershed processes and, as a consequence, significantly influence aquatic organisms and the quality of aquatic habitats in many ways.” Id. at 208 (citation omitted).

These effects include “reductions in riparian shading and altered streamflows [that] can increase stream temperatures to extreme levels,” “[f]looding, surface erosion, and mass wasting ․ due to vegetation loss,” and “increases in sedimentation, debris flows, and wood inputs may occur” as well as “[c]omplete channel reorganization.” Id.

The Forest Service weighed “tradeoffs between potential aquatic ecosystem and water quality impacts from fuel management activities (mechanical treatment and prescribed fire) and risks associated with high severity wildfires.” Id. (citation omitted). It recognized that “with respect to aquatic ecosystems, there are arguments for and against the use of fuels treatments to reduce the extent and severity of future fires.” Id. (citation omitted). After providing this analysis, the EIS determined “alternatives that lower the risk of fire and have medium levels of treatment pose the least risk to aquatic and riparian system.” Id. at 12. Therefore, by allowing increased fuels treatments, the 2004 Framework would reduce the anticipated acres burned by just over 15% from the 2001 Framework. Id. at 98.

The Forest Service recognized that this approach “pose[d] higher short-term risks to aquatic resources because it prescribes larger amounts of mechanical treatments and greater treatment intensities.” Id. at 12, 97, 215. But the Forest Service concluded that this was mitigated by the expected long-term benefits to aquatic habitats resulting from reducing wildfires. Id. The Forest Service also asserted its intent to reduce any short-term threats through objectives listed in its “Aquatic Management Strategy,” best management practices, and goals related to “landscape-level conditions” and “land allocations” that would be applied during “project level analysis.” Id. at 12, 97, 207, 210, 215. It was reasonable for the Forest Service to defer more specific analysis of the proposal’s effect on aquatic species, because “[p]otential treatment effects on aquatic, riparian and meadow ecosystems are largely a function of the amounts, types, intensities, and locations of treatments and the standards by which they are implemented.” Id. at 210.

Although the majority correctly notes that the 2004 Framework anticipates considerably more logging in the forests, the majority ignores the fact that much of that logging may never occur. For example, 214 million board feet were offered for sale on average between FY 2000–2002, but only 118 million were actually sold—approximately 55%. Id. at 174–75. Similarly, only 58% of the fuel treatments projected under the 2001 Framework were carried out in the first three years of the Framework. Id.; Appellee’s Br. at 22–23. Therefore, the Forest Service reasonably concluded that it would be inefficient to perform a detailed analysis of the impact of activities that may never take place, and the 2004 EIS contains sufficient analysis of the probable consequences of increased fuel management at the programmatic level.

The 2004 Framework identified roads as another “critical component” of the risk and benefit “tradeoffs” to aquatic species, which include fish. 1 SEIS at 209. The EIS explained that roads are just behind wildfires in their potential effect on “aquatic ecosystems and water quality in forested environments.” Id. The EIS cited studies discussing how “roads can deliver more sediment to streams than any other human disturbance in forested environments.” Id. (citation omitted). However, the studies also indicated that “surface erosion from roads can be reduced through improved design, construction, and maintenance practices,” and “[p]roper road location, drainage, surfacing, and cut slope and fill slope treatments are important in limiting effects.” Id. (citation omitted). The Forest Service explained that the proposed “modest reduction in overall road miles, and improved road conditions,” subsequently adopted in the 2004 Framework, were some of “the most important aspects of reducing risks to aquatic resources.” Id. at 215.

The Forest Service determined that, because many details of actual on-the-ground activities were yet unknown, a more detailed analysis would be appropriately conducted when specific projects were identified. For example, the EIS explained that “actual locations and miles of roadwork[will] be determined through project-level planning and analysis.” 2 SEIS at 66. Changing the location of a proposed road by just a few hundred feet could make a substantial difference in the impact it had on riparian areas and on fish. A different location might have significantly different vegetation, soil type, and topography. Changing the location could even place a road in a completely different drainage basin, potentially impacting entirely different species of fish. See, e.g., Biological Assessment for SNFPA SEIS 146, July 30, 2003 (Paiute cutthroat trout found only in 14.5 miles of streams).

The EIS explained that “road management does not vary substantially between [the 2001 Framework and the 2004 Framework]. Under both alternatives, the ․ biological effects of roads, as previously described, would be reduced across the bioregion․” 1 SEIS at 212. The EIS further noted that, under the 2004 Framework, there would be a decrease in the net miles of roads. Id. (under the 2004 Framework, “1175 miles would be decommissioned and 115 miles of new road would be constructed”). Although the miles of reconstructed roads would almost double and may have short-term impacts, reconstructed roads would be expected to “improve water quality and aquatic habitat․” Id.

The 2004 EIS also provided analysis of the effects to watersheds from on-the-ground activity that the Forest Service might permit under the Framework. The Framework explained that, as a broad-based policy, future projects should remain protective of wildlife but strive for more effective reduction of hazardous fuels. See, e.g., Appellee’s Br. at 6, 9, 36, 54. It also identified activities that have occurred since the 2001 Framework, including soil and water resource improvements, hazardous fuels reductions, wildfire suppression, and road construction. Id. at 50. Based on this information, it analyzed combined or synergistic effects of the elements of the 2004 Framework on aquatic ecosystems and species, explaining that the 2001 and 2004 Frameworks are expected to have similar effects, because both alternatives are required to meet soil quality standards. Id. at 47–48.

Similarly, the EIS addressed the impacts of grazing with sufficient detail to satisfy NEPA on a programmatic level. As with logging and road construction, the Framework calls for a flexible approach based on specific conditions, rather than a full-scale analysis at this stage. The same 2001 standards will continue to be in effect and “are expected to reduce erosion of meadows and improve aquatic habitat conditions by facilitating the growth of stabilizing vegetation along streams.” 1 SEIS at 214. The 2001 and the 2004 Frameworks primarily differ in that changes to utilization and stubble heights may be allowed in the 2004 Framework when current range conditions are “good to excellent” (and after “rigorous[ ] evaluat[ion]”). Id. Monitoring requirements under this flexible approach will “minimize[ ] differences in effects on aquatic ․ ecosystems between the [2001 and 2004 Frameworks].” Id.

Thus, after recognizing the general impact that various proposals could have on the environment and the measures that could mitigate those effects in the programmatic EIS, the Forest Service reasonably deferred the detailed analysis of future site-specific projects. Based on this analysis, the Forest Service clearly did not “entirely fail[ ]” to consider an important aspect of the programmatic analysis required to provide informed decision-making. The majority may have preferred more specific analysis about individual fish species, but such preference is not a justifiable reason under NEPA to disregard the agency’s analysis as arbitrary and capricious.

These CEQ guidelines might be also considered from the recent ones put out for public comment:

Concise NEPA Documents
Agencies are encouraged to concentrate on environmental analysis in their EAs and EISs,
not to produce an encyclopedia of all applicable information.16 Environmental analysis should
focus on significant issues, discussing insignificant issues only briefly.17 Impacts should be
discussed in proportion to their significance, and if the issues are not deemed significant there
should be only enough discussion to show why more study is not warranted.18 Scoping,19
incorporation by reference,20 and integration of other environmental analyses21 are additional
methods that may be used to avoid redundant or repetitive discussion of issues.22
All NEPA environmental documents, not just EISs, should be written in plain language,23
follow a clear format, and emphasize important portions of the impact analysis over mere
background material. Clarity and consistency ensure that the substance of the agency’s analysis
is understood clearly, avoiding unnecessary confusion or risk of litigation that could result from
an ambiguous or opaque analysis. The CEQ Regulations indicate that the text of a final EIS that
addresses the purpose and need, alternatives, affected environment, and environmental
consequences should normally be less than 150 pages and a final EIS for proposals of unusual
scope or complexity should normally be less than 300 pages.24
In light of the growth of environmental requirements since the publication of the CEQ
Regulations, and the desire to use the EIS to address, via integration, those requirements, it is
recognized that there will be a range of appropriate lengths of EISs. Nevertheless, agencies
should keep EISs as concise as possible (continuing to relegate relevant studies and technical
analyses to appendices) and no longer than necessary to comply with NEPA and the other legal
and regulatory requirements being addressed in the EIS, and to provide decision makers and the
public with the information they need to assess the significant environmental effects of the action
under review. Length should vary with the number, complexity and significance of potential
environmental problems.

And

Incorporation by Reference
Incorporation by reference is another method that provides efficiency and timesaving
when preparing either an EA or an EIS. The CEQ Regulations direct agencies to incorporate
material into an EIS by reference to reduce the size of the EIS and avoid duplicative effort. An
agency must cite the incorporated material in an EIS and briefly describe the content. An
agency may not incorporate any material by reference in an EIS unless the material is reasonably
available for inspection by potentially interested persons within the time allowed for comment.64

The goal should be to conduct concurrent rather than sequential processes whenever
appropriate. In situations where one aspect of a project is within the particular expertise or
jurisdiction of another agency an agency should consider whether adoption or incorporation by
reference of materials prepared by the other agency would be more efficient.

Appeals Court on Sierra Nevada Amendments

by

Thanks to Matthew Koehler for this one..

FORESTS: Split appeals court orders new environmental study of Sierra Nevada plan

Lawrence Hurley, E&E reporter Published: Friday, February 3, 2012

A federal appeals court today found flaws in a U.S. Forest Service environmental review concerning a management plan for national forests in the Sierra Nevada.

The three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals, splitting 2-1, concluded that the service’s 2004 environmental impact statement had failed to properly analyze how a proposed forest plan would affect fish as required under the National Environmental Policy Act (NEPA).

In dissent, Judge N. Randy Smith said the majority had departed significantly from the circuit’s NEPA precedent.

The court rejected a second claim made by the Pacific Rivers Council that the government had not adequately addressed the impacts on amphibians.

The litigation focuses on an environmental impact statement that suggested changes to a 2001 plan, approved by the Clinton administration in its final weeks, that applied to the nearly 11.5 million acres of national forests in the Sierra Nevada.

The Clinton-era plan was the result of an effort during the 1990s to address certain environmental issues that had arisen, including long-term concerns about sustainability.

When President George W. Bush came into office in 2001, the Forest Service ordered a re-evaluation of the plan.

The 2004 environmental impact statement, which allowed for an increase in logging, was issued over objections from Forest Service staff, who raised questions about the effects on fish. Among other things, the new plan allowed for more construction of logging roads.

Writing for the majority, Judge William Fletcher — a Clinton appointee — said that the agency had failed to give a “hard look” at the environmental impacts on fish that is required by NEPA.

The 2001 study included a 64-page analysis of the impacts on each species of fish, Fletcher noted. In contrast, the 2004 statement “contains no analysis whatsoever of environmental consequences of the 2004 framework for individual species of fish.”

That was despite the fact that the new plan allowed for significantly more timber harvesting “much of it conducted nearer streams,” Fletcher wrote.

The court had no such problem with what Fletcher called the “extensive analysis” of amphibians.

Smith, who was appointed by Bush in 2007, accused the majority of making “fundamental errors” in its analysis by not showing enough deference to the agency and by disregarding circuit precedent stating that an agency’s NEPA analysis is not arbitrary and capricious under the Administrative Procedure Act if it is “performed before a critical commitment of resources occurs.”

The majority also failed to take into account that the 2004 analysis did not need to be as detailed as a site-specific environmental impact statement that is required for individual projects.

The ruling is an “inappropriate and substantial shift in our NEPA jurisprudence,” Smith wrote.

Holly Doremus, an environmental law professor at the University of California, Berkeley, School of Law, said that in her view, Fletcher had the better of the argument.

“I don’t think Smith has it right,” Doremus said. “As Fletcher writes, it has long been the rule that agencies must evaluate the environmental consequences of their actions when it is reasonably possible to do so.”

Click snf to read the ruling.

Note the claims are about NEPA; it might be interesting to compare the level of analysis desired in this programmatic EIS to that in the 2001 Roadless Rule EIS, based on the 10th Circuit Appeals decision on that national level programmatic EIS. If anyone wants to do that, please send what you find and I’ll post.

CEQ Guidance Public Comment Period open ’til Jan 27th

by

In our Winter Solstice celebrations and breaks from work, we might have missed this announcement on Dec. 7 of a 45 day public comment period on the CEQ Draft Guidance on Improving the NEPA Review Process.

Here’s a nice summary from Holland and Hart LLP:

CEQ Issues Draft Guidance on Improving NEPA Review Process

The White House Council on Environmental Quality (CEQ) recently released draft guidance to improve the efficiency and timeliness of environmental reviews under the National Environmental Policy Act (NEPA). The draft guidance is of potential interest to natural resource industries and project developers, among others, that would benefit from a more coordinated, streamlined NEPA process with clear timelines for the NEPA review.

The guidance highlights existing regulatory strategies, such as integrating planning and environmental reviews, coordinating multi-agency or multi-governmental reviews and approvals, and setting schedules. It was released as part of the CEQ’s review of existing regulations under Executive Order 13563 and the President’s August 2011 Memorandum on “Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review.”

CEQ’s guidance first clarifies that many of the CEQ regulations applicable to Environmental Impact Statement (EIS) preparation, the most intensive type of NEPA review, should also be applied to all types of NEPA reviews, including less-intensive Environmental Assessments (EAs). For example, the agencies should conduct a scoping analysis of the full range of actions, alternatives, and impacts for all environmental reviews, including both EAs and EISs. Also, for actions initiated by private or non-federal governmental entities, the guidance encourages the agencies to require the applicant, whenever possible and not already required, to submit an environmental report with its application or request for agency action.

The guidance next provides several principles for agencies to follow in conducting environmental reviews, including that:

NEPA encourages simple, straightforward, and concise reviews and documentation that are proportionate to and effectively convey the relevant considerations in a timely manner to the public and decision-makers while comprehensively addressing the issues presented;
NEPA should be integrated into project planning rather than be an after-the-fact add-on;
NEPA reviews should coordinate and take appropriate advantage of existing documents and studies, including through adoption and incorporation by reference;
Early and well-defined scoping can assist in focusing environmental reviews to appropriate issues that would be meaningful to a decision on the proposed action;
Agencies are encouraged to develop meaningful and expeditious timelines for environmental reviews; and
Agencies should respond to comments in proportion to the scope and scale of the environmental issues raised.

While setting out several basic NEPA principles established in practice over the years, the guidance nevertheless may be helpful in emphasizing the need and avenues for timely and efficient NEPA review process. Projects can experience delay in the NEPA process for a variety of reasons. The CEQ’s draft guidance (and as it may be finalized) cannot reasonably be expected to address all of these instances, but for some, it may be helpful. For example, long linear projects, such as interstate pipelines and transmission lines, that involve multiple federal and state agencies may benefit from the guidance’s emphasis on intergovernmental coordination and concurrent environmental reviews. In addition, for projects where delay is the result of the actual drafting of the NEPA analysis, the guidance may provide additional support, or a policy emphasis from CEQ where needed or helpful, to streamline the NEPA process through incorporation by reference and proportionate responses to public comments. Furthermore, the draft guidance emphasizes the benefits of establishing clear timelines on a project-by-project basis, which may help provide some measure of predictability to the process.

CEQ is providing for a 45-day public comment period on the draft guidance. Natural resource project developers and others requiring federal permits or approvals for their operations that would trigger NEPA reviews may wish to submit comments to CEQ describing their own experiences with the NEPA review process and the need to improve the efficiency and timeliness of the process. Providing specific examples of NEPA streamlining processes that have been successful, as well as examples of where the absence of such approaches have resulted in inefficient or delayed NEPA processes, may be helpful to CEQ in formulating the final guidance. The comment period for the draft guidance expires on January 27, 2012. The draft guidance can be found here and the Council’s press release can be found here.

So we have people from the environmental document writing, and the commenting, appealing, objecting, and litigating sides of the house all represented on this blog. I wonder if there are any areas that we all can agree on to improve efficiency and timeliness? Will this restatement and focused document around relevant CEQ guidance help, or are there other factors at work that need to be addressed? What do you think?

Logjam Project Decision

by

Here’s a link to the decision. I excerpted the parts that referred to the claims made about the NEPA analysis. Here’s a news story.

2. TCS’s first challenge on appeal to the approval of the Logjam Project is that the Forest Service violated NEPA’s requirement that it take a “hard look” at the cumulative impacts of the project by failing to disclose the cumulative environmental impacts from six logging projects currently planned by the Forest Service, as well as from past logging and road building on non-federal lands.
We do not find TCS’s arguments persuasive. The future logging projects identified by TCS involve less than 300 acres, but past harvests in the Tongass National Forest involve over 10,000 acres, and the Logjam Project itself will involve 3,422 acres. The Draft Environmental Impact Statement (“DEIS”) listed the six future logging projects as well as the planned harvests on lands owned by Alaska. It devoted eleven pages to the impact on the aquatic environment, discussed the cumulative impact for each of the alternatives under consideration, and is supported by an appendix that lists projects “in the Logjam Timber Sale Cumulative Effects Area.” Although TCS alludes to other future projects, they appear to be too indefinite to allow a study of their cumulative impact on the Logjam Project. In sum, TCS has not shown that the Forest Service did not take a “hard look” at the cumulative impacts of future projects together with the Logjam Project.
Furthermore, it does not appear that TCS raised concerns about the cumulative impacts from these future projects before the Forest Service. Neither TCS’s administrative appeal of the Logjam Project nor any of the appellants’ objections to the DEIS mentioned the six timber sales on federal land or the two sales on state land. This failure to focus the Forest Service’s attention on the treatment of the cumulative impact of future projects may well bar TCS from raising the matter before this court. See Buckingham v. Sec’y of U.S. Dep’t of Agr., 603 F.3d 1073, 1080 (9th Cir. 2010) (plaintiff barred from raising argument in judicial proceeding because it failed to raise it with the Forest Service “with sufficient clarity to allow the [agency] to understand and rule on the issue”).
TCS also argues that the Forest Service failed to take a “hard look” at the cumulative impacts of future timber sales by “tiering” to a non-NEPA document and by aggregating cumulative impacts. It is true that we have prohibited an environmental impact statement from “tiering” to a non-NEPA document, see Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 801-11 (9th Cir. 1999), and League of Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1219 (9th Cir. 2008). However, it is not clear whether the FEIS’s citations to certain supporting documents constitute “tiering” in the sense of deferring to the supporting documents to address the impacts of the project, or constitute references to specialist reports prepared specifically for an environmental impact statement as permitted by 40 C.F.R. § 1502.21. Similarly, TCS has not shown that the aggregation of cumulative impacts, which the Ninth Circuit allows for past timber harvests, see Ecology Ctr. v. Castaneda, 574 F.3d 652, 667 (9th Cir. 2009), may not be applied to harvests that have already been approved under a separate environmental impact statement. In any event, there is no suggestion that the Forest Service hid, or failed to consider, any relevant information regarding cumulative impacts.

Finally, even if we were to find some merit to some aspect of TCS’s arguments concerning the cumulative impact of future projects, we would still deny TCS relief on the ground that the error was harmless. In Shinseki v. Sanders, 129 S.Ct. 1696, 1705-06 (2009), the Supreme Court clarified that to set aside an agency decision as being based upon an error, the plaintiff must show that the error was not harmless. We recently reiterated that “the failure to provide notice and comment is harmless only where the agency’s mistake clearly had no bearing on the procedure used or the substance of decision reached.” Cal. Wilderness Coalition v. U.S. Dept. of Energy, 631 F.3d 1072, 1090 (9th Cir. 2011) (internal quotation marks and citations omitted). Under NEPA, we will not grant relief for a violation of procedure if “the decision-maker was otherwise fully informed as to the environmental consequences and NEPA’s goals were met.” Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 527 (9th Cir. 1994). Here, in light of the minimum acreage involved, the Forest Service’s consideration of the impacts, and the parties’ focus on other issues, any error in the presentation of the cumulative impact of future projects would not warrant relief.

3. TCS’s second argument on appeal concerning the Forest Service’s approval of the Logjam Project is that the Forest Service violated NEPA by failing to disclose the concerns of the Alaska Department of Fish and Game (“ADF&G”) about wolf mortality. Specifically, TCS asserts that the DEIS failed to state that ADF&G had concerns about wolf mortality, that this resulted in challenges to the DEIS being focused on wolf mortality concerns rather than discussing alternatives, and that the FEIS, while acknowledging ADF&G’s concerns, did not do so adequately.

We do not find TCS’s arguments convincing. The DEIS disclosed that (a) wolf hunting and trapping occurs in the area, (b) roads provide access for hunters and trappers, and (c) the road densities for the area exceeded the recommended density level. Furthermore, it appears that appellants were aware of ADF&G’s concerns and addressed them in their comments on the DEIS. Thus, the DEIS, despite its misstatement of ADF&G’s position, contained enough information to elicit extensive detailed public comments on the wolf mortality issue, and thus served “the NEPA goals of public participation and informed decision making.” Westlands Water Dist. v. U.S. Dep’t of the Interior, 376 F.3d 853, 874 (9th Cir. 2004).
Moreover, a review of the FEIS reveals that the Forest Service gave wolf mortality the requisite “hard look.” The FEIS (a) recognizes the concerns of the ADF&G biologists, (b) notes that the Forest Service and ADF&G are working on wolf mortality concerns on a broader basis than the project, (c) explains why the harvest data and wolf management reports do not support a wolf mortality concern in the Logjam area, (d) discusses a number of options that ADF&G has for regulating the hunting of wolves, and (e) explains why much of the wolf hunting in the Logjam Project is not explained by the density of roads. The district court properly found that TCS had not shown that the Forest Service failed to take a “hard look” at wolf mortality.

4. TCS’s third issue on appeal also concerns wolf mortality and alleges that the Forest Service violated the National Forest Management Act (“NFMA”) by arbitrarily concluding that wolf mortality was not a concern, failing to consider the unlawful hunting of wolves, failing to consider that closing the project area to hunting will not reduce wolf mortality, and failing to prepare a wolf habitat management program prior to approving the Logjam Project.

TCS’s arguments are not persuasive. The record reveals that the Forest Service does not deny that wolf mortality is a concern. Rather, the record shows that the Forest Service is working with ADF&G to address the concern on a broader level than this particular logging project. An appendix to the FEIS details why approval of the Logjam Project will not compromise the wolf population. Also, the regional supervisor for ADF&G confirms that the ADF&G and the Forest Service are working together to develop a wolf management plan and that the Logjam Project “does not trigger an immediate conservation concern.” Accordingly, our independent review of the record leads us to conclude that the Forest Service reasonably determined that it did not have to prepare a wolf habitat management program in advance of implementing the project. TCS has not shown that the Forest Service acted arbitrarily or in violation of the NFMA in approving the Logjam Project.

5. TCS’s final contention on appeal is that the Forest Service acted arbitrarily in analyzing the impact of the project on deer winter habitat. Specifically, TCS asserts that in its model for determining the effect of the project on deer habitat, the Forest Service (a) first correctly excluded non-federal lands for the estimation of habitat capability, (b) recognized that non-federal land have a presumed zero habitat capability, and (c) then “reported the habitat capability it calculated for just federal lands to be representative of the whole” area, resulting in an overcalculation of capability. The Forest Service responds that the deer model is only one tool for assessing management impacts on deer, and denies that it committed any material methodological error.

We need not determine whether the Forest Service committed an actual computation error of the habitat capability of the Logjam Project area because: (1) it is not clear that TCS raised this claim before the Forest Service, see Buckingham, 603 F.3d at 1073; (2) even if the Forest Service committed a methodological error, the record shows that it nonetheless gave the impact of the Logjam Project on deer habitat the requisite “hard look;” and (3) the distortion due to the computation error, if it occurred, was harmless. The ADF&G notes that it and the Forest Service reviewed the deer model, the model tends to overestimate the impact from timber harvests, and that the deer harvest in 2008 was the highest recorded in the last decade. Furthermore, as non-federal land constitutes only two percent of the Logjam Project area, the maximum distortion due to the alleged computation error would appear to be only two percent. TCS has the burden of showing that this alleged error was not harmless. Shinseki, 129 S. Ct. at 1705-06. Here, in light of all the other considerations that went into the FEIS, any error in the computation of the deer model for the Logjam Project had no bearing on the Forest Service’s decision.

Collaboration Can’t Fix What Ails Public Forest Management

by

Thanks to Matthew Koehler for sending this..

Collaboration Can’t Fix What Ails Public Forest Management

By Steve Kelly, Friends of the Wild Swan

For decades, forest activists have performed vital oversight, monitoring and enforcement of environmental laws and regulations. Caused by the rapid rise of neoliberalism, beginning in earnest during the Reagan administration, Congress and administrative agencies largely avoided policy responsibilities associated with our environmental laws. Politicians and agency bureaucrats have been screaming bloody murder about grassroots environmentalists and “gridlock” ever since. The simple fact remains, the primary cause of “gridlock” is the government’s systematic refusal to follow environmental laws and regulations.

The steady rise of neoliberalism in the Clinton years led to the now commonplace sharp political rhetoric, which directs its attacks toward the legitimacy of local grassroots forest activism. Add to this a proliferation of market-based, professional “problem solvers” touting “win-win” solutions and jobs, and one can see the game is rigged in favor of those with a vested financial interest in subsidized commodity extraction. This approach is typically dismissive of science and the law and grassroots activism.

Stakeholder partnerships prefer to engage in consensus and collaboration processes which favor a narrow, economics-based view of forest ecosystems. When challenged, collaborative stakeholders say one thing, and do the opposite, which usually leads to more old growth logging, and bulldozing new roads to access the remaining pockets of big, old trees.

One recent example of collaboration gone wild is the Southwestern Crown of the Continent Collaborative Forest Landscape Restoration Program, which was authorized in 2009 under the Omnibus Land Management Act. The stated purpose of this collaborative program is to encourage the collaborative, science-based ecosystem restoration of priority forest landscapes.

In practice, normal environmental assessment procedures, required by the National Environmental Procedures Act (NEPA), are being undermined by making decisions that may affect thousands of acres of public forest before conducting proper analysis of forseeable environmental impacts, especially cumulative impacts. Full funding has already been allocated by Congress and the Obama administration to a program that lacks a programmatic Environmental Impact Statement (EIS). NEPA just becomes a speed bump at the end.

Once a project has been selected a work plan and business plan must be developed within 180 days. These plans describe how projects will be implemented, treatment costs, infrastructure needed, projected supply of woody biomass and timber and the local economic benefits.

The work plan is then submitted to the Regional Forester for approval. Project
implementation may begin once the requesting unit has been notified that the work plan
has been approved.

All of this indicates that any NEPA will be front-loaded.

Here is a copy of the Friends of the Wild Swan Newsletter
**************************
I read this piece, but I don’t understand it. I know some things about NEPA but perhaps not as much as I should about CFLRP, so perhaps readers could enlighten me.

What does Mr. Kelly want a programmatic EIS on? A specific project?

NEPA doesn’t say that agencies can’t work with the public in developing proposals to be analyzed, in fact one of the ideas in NEPA is fostering public involvement. Doesn’t it make sense to develop a proposal before you analyze it? How else could it work? Would it be better for agencies to develop proposals without the public? Maybe I’m missing something here…

And I wonder about this quote:

Stakeholder partnerships prefer to engage in consensus and collaboration processes which favor a narrow, economics-based view of forest ecosystems. When challenged, collaborative stakeholders say one thing, and do the opposite, which usually leads to more old growth logging, and bulldozing new roads to access the remaining pockets of big, old trees.

It is a pretty broad brush statement about “stakeholder partnerships.” I think that some of the collaborators around the country might question whether their view is “narrow, and economics-based”. They might see themselves as seeing the big picture of sustaining the land and people, and working respectfully with each other to understand different views and find the best solutions. They might see others as “lawsuit-happy ideologues.” 😉

Sharon

Multi-Objective Forest Service Projects: Does It All Get Done?

by
Lisa K. Anderson; Sandy Post' A Link Belt 3900 tears its way up an old gravel logging road. At the entrance contractors will build a berm.

Matthew Koehler raised this interesting point in our previous discussion, which was a bit off the main topic, but I think worthy of its own discussion. He said:

Also, please note that many of the “Land management activities in this decision” will not be accomplished at any point in the near future due to a lack of funding. Of course, all the logging will be completed, but most of the true restoration work (decommissioning of roads, culverts, etc) will only be completed as funding becomes available, which in our experience here in the N. Rockies might take a decade, if the work ever is completed at all. The public and the media would be wise to recognize the difference between simply signing a Decision Notice vs. actual completion of the work. Unfortunately, despite repeated requests to look into this matter, the media (and the Forest Service) continues to give the public the impression that all this work gets completed within a reasonable amount of time. That’s totally not true. In fact, I bet if someone did a comprehensive look at all the Stewardship Projects in USFS Region 1 over the last decade they’d be shocked at the amount of promised, yet unfinished, restoration work.

Knowing FS people, I know that their intention is to do the all the work in the project.

So I’ll start a series of questions of everyone.
1) Do you have an observation in your area, that the “other work” doesn’t get done?
2) If so, please ask the FS why not, and report their answer.
3) If you don’t agree with their answer or have other insights to share, please do.

From Forest Planning to Adaptive Governance

by

“If planning is everything, maybe it’s nothing.” Aaron Wildavsky

[Author’s note: This is a lengthy (for a blog), partisan, historical view rant on the road from NFMA “forest planning” to “adaptive governance.”]

Let’s face it, the “forest land and resource management plan” is an anachronism—an artifact of a bygone era. That era was in its heyday when the Office of Management and Budget (OMB) reigned supreme after President Richard M. Nixon consolidated rule-making and other powers in the OMB via executive order in 1970. Economics-based, comprehensive rational planning was the rage. It is no surprise that The Renewable Resources Planning Act was passed in 1974, just after Nixon consolidated power under the banner of rationally planned and carefully audited governmental process. Twenty years later Henry Mintzberg penned The Rise and Fall of Strategic Planning (1994). Mintzerberg’s classic pretty much laid a tombstone atop rational planning exercises. Or at least it should have.

The Forest Planning Era
Following passage of the National Forest Management Act of 1976 as an amendment to the Renewable Resources Planning Act of 1974, it was thought that forest program management decisions could be adequately fit into a forest plan “decision container”—that somehow each forest could develop a forest-wide plan that would integrate programs now and into the future in a such a way as to allow disclosure of environmental consequences that might flow from said decisions. Project level National Environmental Policy Act (NEPA) disclosure would disappear with proper forest planning and environmental disclosure at the forest level.

Allowance was made for FS administrative region plans, and for a national RPA Program plan. Given the upper two tiers, it was believed that decisions would be integrated vertically, and cumulative effects—according to NEPA standards—could be adequately disclosed.

It was a relatively innocent era, when viewed through the “green-eyeshaded accounting lenses” of OMB over-see-ers. The innocence collapsed relative soon in the forest arena as litigation proved that the three-level administratively-bounded review was not going to pass muster in the courts. Not only were projects not going to be shielded from NEPA review by a forest plan, there was increasing evidence that at least one level of planning/disclosure might be needed between project and forest.

An initial remedy to the seemingly endless process gridlock brought about by too many levels of planning was to eliminate regional plans. I referred to this then as the Texas two-step solution (forests/projects), since at that time the Forest Service’s National Planning Director was from Texas. But that was a solution looking for a problem, or better still a “non solution” not looking for anything but an easy way out. The problem between forest and project remained. Another problem was to be found elsewhere, framed larger than forest plans but not fitting into regional plan containers.

Spotted Owls, Roadless, and more
Much time and effort was now spent in the 1970s, 80s, 90s on above-forest policy making, brought about by actors and actions taken either against the Forest Service or from within the Forest Service responding to the Endangered Species Act of 1973. They were, “Spotted Owl Management Plans,” “The Roadless Rule,” “The Northwest Forest Plan,” and more. These decision containers were bounded as regions, not FS administrative regions but geographical regions more appropriately suited to the issues and the actors petitioning for problem resolution. Note that the policy-level decision making was largely about curtailing timbering and roading, but the Forest Service chose to name the efforts after the initiating issues, not the federal actions being considered.

Forest Planning Proves Resilient, if not useful
The forest planning paradigm still captured much attention, but the three-level planning process swirling around the forest plan—projects/mid-scale/forest—was felt by forest planners and the Forest Service generally to be too cumbersome. Something else needed to be done. While the rest of the world was waking up to complex systems, wicked problems, and adaptive management, as was part of the Forest Service via the Northwest Forest Plan, the Forest Service via the NFMA rule was still stuck in the wonderful, if overly complex and somewhat bizarre world of capital P “Planning.” And the Forest Service was always trying to force-fit things into forest-level and project-level decision containers. But times were changing by 1990 and at least for a time, the Forest Service seemed to be ready to catch up to the rest of the world.

Adaptive Governance: Emergence in the Clinton Era
Adaptive management seems to be evolving in name to Adaptive Governance, following a path laid down early on by Kai Lee in Compass and Gyroscope: Integrating Science and Politics for the Environment (1993). For a time the Forest Service seemed inclined to follow. [Note: Today, the “adaptive governance” path seems already well-discussed, if not well traveled. That is if my “adaptive governance” Google search is an indication. But my Wikipedia search didn’t give me much. Recognizing that the only viable adaptive management for dealing with public lands management has to deal with both Kai Lee’s Adaptive management compass and his civic-engagement gyroscope. I’ll go ahead and use the term “adaptive governance” hereafter.]

In what we might call Clinton era management, Chief Michael Dombeck sought to bring about a Leopoldian awakening (see, e.g. here, here) to Forest Service thinking. That “awakening,” as per Leopold’s earlier thinking, was about adaptive governance. But the largely Republican-dominated Forest Service resisted. Chief Dombeck was never accepted by Forest Service managers since he was from the BLM and appointed by an environmentally left-leaning Clinton administration. Things didn’t get better under Chief Jack Ward Thomas, himself a huge fan of Leopold. The road from Pinchot to Leopold was not going to be an easy one. Adaptive governance thinking was soon on the chopping block along with pretty much all else from “new forestry” to “new perspectives,” etc. following the election of George W. Bush as a new Administration came to Washington.

Adaptive Governance: Bush/Cheney Backlash
The Bush/Cheney public lands legacy can be viewed as a legacy of war—war on the environment and war on anything the previous Clinton Administration had built under the rubric of “ecosystem management” (See generally Bob Keiter’s Breaking Faith with Nature: The Bush Administration and Public Land Policy). Under Mark Rey as Undersecretary of Agriculture, the Forest Service moved into its “Healthy Forests Initiative,” followed soon thereafter by the “Healthy Forest Restoration Act of 2003.” As Bob Keiter notes, the names could be viewed as cynical, as part of a well-orchestrated backlash against Clinton era reforms. To Keiter:

By using the Healthy Forests Initiative to expand the scope of NEPA categorical exclusions and to alter the ESA consultation process, the Forest Service has further enhanced its authority and reduced the potential for judicial review of its decisions, which is also what the [Aquatic Conservation Strategy] and species inventory revisions to the Northwest Forest Plan would have done. Congress has abetted this de-legalization effort by including NEPA provisions in the HFRA and the Energy Policy Act that either eliminate or reduce environmental analysis requirements for timber thinning and energy exploration projects.279 Add to this the Bush administration’s approach to its ESA responsibilities—which include an overt hostility to new listings, a rush to delist species, and contemplated revisions to the section 7 consultation process and critical habitat designation and critical habitat designation criteria—and the land management agencies could well be relieved from meaningful regulatory oversight. Related efforts to eliminate administrative appeal opportunities are plainly designed to further insulate management decisions from review. The net effect is to minimize opportunities to enforce environmental standards and procedures, and thus shield criteria—and the land management agencies could well be relieved from meaningful regulatory oversight. Related efforts to eliminate administrative appeal opportunities are plainly designed to further insulate management decisions from review. The net effect is to minimize opportunities to enforce environmental standards and procedures, and thus shield the agencies from any meaningful accountability. It is a return to an era when discretion reigned supreme. [Footnote in original]

All good things come to an end. So do all bad things. The Bush/Cheney regime and its war on the environment ended in January 2009, although effects (and federal judges) linger. [Personal aside: My friend from the early “planning days,” Dale Bosworth served as Forest Service Chief early in the Bush/Cheney Administration. I believe Dale did what he could to curb the worst of the what might have been done to the Forest Service during that era, but didn’t take my advice the be take a firm stand and be the first Chief since Gifford Pinchot to be fired for standing up against the powers that be. Had I been in his shoes I might not have taken that advice either. Who knows? But it wasn’t in Dale’s nature to work that way. I don’t find fault with Bosworth’s leadership/management during that era.]

Adaptive Governance: Obama’s ‘Audacity of Hope’
Unfortunately for Leopoldian dreamers, incoming President Barrack Obama’s audacious plans have not yet been focused on matters environmental, other than green energy. Nor will they likely anytime soon, even if Obama or anyone in his Administration were prone to do so—which itself is in question. Obama is too distracted with two wars, emergent unrest in the Mideast and Middle America following Tea Party elections in statehouses and the US Congress. Not to mention continued after-shocks from the near-disaster of the financial meltdown that arrived coincidentally (or not) right as Obama was entering the White House.

Obama cut his political teeth on community organizing, and that is in a sense Kai Lee’s gyroscope to accompany his adaptive management compass. So we can at least hope for endorsement from Obama if planning is replaced with adaptive governance. Whether or not it will be a good thing depends largely on whether or not untoward devolution happens—or is perceived to likely happen—under adaptive governance schemes. Time will tell. But I get ahead of our story. The Forest Service hasn’t yet embraced adaptive governance, although I hear they are flirting with it. Instead they are still wedded to capital P “Planning.” As Andy Stahl noted, the recent Draft NFMA “planning rule” (pdf) (as the Forest Service likes to call it), stages up a rational planning exercise. The difference is that this time it is driven by ecological rationality instead of the earlier economic rationality from the OMB era.

Adaptive Governance: Absent in the NFMA Draft Planning Rule
I suspect it was because the Bush/Cheney era NFMA rule was thrown away by the courts, but for whatever reason the Obama Administration chose to rewrite the “NFMA rule.” There has been a flurry of commentary on this blog and elsewhere about the rule and associated planning. But does anyone really care about this type planning anymore? What decisions are really contained by a forest-level plan? Despite the language of the draft rule, I find no “ecological resilience” decisions, neither “ecological or social sustainability” decisions, nor any “species viability” decisions, nor … that can be contained in a forest-level plan. All such considerations will well-up at scales different from forest boundaries.

As I’ve argued before, these are wicked problems. Wicked problems are not amenable to rational planning resolutions. Part of the “wicked problem” problem is that they are shape-shifters, they vary in problem identification and resolution across both time and space. They just won’t stand still, and will not be force-fit into predetermined “decision containers.”

In addressing wicked problems, I believe that scale-dependent futuring, and/or puzzle solving, is in order alongside scale-dependent assessments and monitoring. We ought to add in scale-dependent standard setting. They all fit under a header “puzzle solving.” Where scale-dependent is really the stuff of framing decisions/actions according to a “Garbage Can Model” wherein issues, actors, and arenas self-organize across the landscape into various and sundry decision containers. We all need to think hard about wicked problems and, e.g. Cohen, March, and Olsen’s garbage can decision model. Here’s a pdf of CMO’s 1972 article: “A Garbage Can Theory of Organizational Choice.”

See too Pritchard and Sanderson’s chapter in Panarchy: Understanding Transformations in Human and Natural Systems (2002), “The Dynamics of Political Discourse in Seeking Sustainability.” After setting stage for adaptive governance, complete with “wicked problem identification” and “garbage can” resolution mechanisms, Pritchard and Sanderson conclude:

[Testing hypotheses and applying lessons learned] to the thorny puzzles of environmental management and governance are [noble] goals. The greatest promise lies in addressing political issues directly, rather than in avoiding or submerging them. The fondest hope might be that individuals, communities, and formal organizations engage the spirit of adaptation and experimentation, by allowing a set of contingent ideas to shape “the gamble” of democratic resource management, and citizen experts to report on the results. Of course, for such a profoundly disorganized and multiscale approach to thrive, government, market, and citizen must share a common vision—that all must address these puzzles in order that they might be engaged and worked on—not solved forever; that “expertise,” popular voice, and power are separable, and none holds the dice [from a “floating crap game” model of politics] for more than a pass.

A Few Questions Linger
Is an ecologically framed rational planning rule what we need to resolve controversy?
Or is it time to embrace adaptive management, even adaptive governance in an attempt to tame wicked problems? Yes, I know that the preamble to the Draft NFMA rule claims that forest planning will be driven by adaptive management. But, really? Read the rule and explain to me how the draft rule stages for more than rational planning.

———–
Related:
The Forest Service as a Learning Challenged Organization, Iverson, 1999
US Forest Service Deeply Flawed Planning Culture, Iverson, 2004

Forest Wars: From Multiple Use to Sustained Conflict

by

When we sometimes tire of our “word wars” here, we need to remember that they are just one manifestation of broader holy wars being waged in and around our public lands.

Long Road to War

Utilitarian ideology has been a mainstay in forest policy development since the early 1900s when Gifford Pinchot and Bernhard Fernow introduced forestry into American government. Samuel Hays’ Conservation and the Gospel of Efficiency, alongside David Clary’s Timber and the Forest Service both build on self-righteousness to the point of religious fervor among many who chose to work on the land, notably foresters and engineers, and their evangelists (pundits, professors, etc). Similar books could be written — likely have been — talking about the religious-like fervor of the environmental community. [See, e.g. Environmentalism as Religion, Wall Street Journal, 4/22/2010.]

For many years, what later emerged as forest wars were never more than disagreements between mainstream forestry practitioners and malcontents like John Muir, Aldo Leopold and Bob Marshall. Such “disagreements” were deep-seated ideological splits, but contrarians of that era didn’t have the political/legal muscle to make for war. Later, however, the very same disagreements intensified into ideological war with the dawn of the environmental movement.

Environmentalists gained traction in forest debates, appeals, litigation, etc. after people began to wake up to environmental concerns in the late 1960s. The first of a series of Wilderness Acts became law in 1964. The Endangered Species Preservation Act of 1966 predated and set a stage for the Endangered Species Act of 1973. Earth Day began in 1970. In 1969 the National Environmental Policy Act (NEPA) became law. In 1976 The National Forest Management Act (NFMA) and the Federal Lands Policy Management Act added to the mix. The environmental battles gained legal footing. But it is not clear that the legal footing was ever recognized, or at least accepted by the US Forest Service. At least if actions speak louder than words, we must question whether the Forest Service and its USDA overlords ever accepted these legislative mandates.

Disdain for legislative mandates runs deep, but there is an alternative path — a road not taken. Sally Fairfax set a stage for continued disgust for NEPA among forest practitioners with her 1978 Science article titled A Disaster in the Environmental Movement. Countrast Fairfax’s view with that from Jim Kennedy’s NEPA note: Legislative Confrontation of Groupthink.

Environmental Wars

Beginning in the 1970s, environmentalists waged war on timbering, grazing, road building, mining and oil & gas development, developed recreation, and more. Warriors on the “enviro” side typically vilify corporations, else government “lackeys” for the corporations. Warriors on the practitioner side vilify the enviros. In war there is little room for thoughtful discussion or dialogue. The rift between the two camps will likely remain very deep for a long time.

It is not clear that the Forest Service ever gave much heed to the “legislative confrontation of groupthink” ideas in NEPA. It seems that the Forest Service has been evading/avoiding NEPA responsibilities from the get-go. They continued “go-go timbering” up to the point of shutdown following the Monongahela and Bitterroot controversies. After things were sort-of opened up again via NFMA, the Forest Service wanted “once and for all NEPA”, i.e. the forest plan would be a catch-all NEPA container, allowing all projects to flow without any further NEPA review. When that didn’t work, the Forest Service played various shell-games pointing either upward (e.g. forest plans, regional plans) for NEPA compliance, else downward toward projects depending on what was being challenged. Finally, during the Bush/Cheney period, they sought to “categorically exclude” as much as possible from NEPA review.

In 1999 I wrote up a little thing titled Use of the National Forests. I noted four distinct periods of Forest Service history: Conservation and “Wise Use” — 1900-1950, Multiple Use — 1950-1970, Sustained Conflict — 1970-2000, and Collaborative Stewardship — 2000+. Although we might quibble over the dates as well as the categories, I now realize that I was over-optimistic as to the dawn of the Collaborative Stewardship era. At minimum there was a dramatic backlash — not necessarly against collabortion but clearly against environmetalism — commencing with Bush/Cheney Administration and their ABC (“anything but Clinton”) campaigns. The Bush/Cheney war on the environment was a reenactment of an earlier war waged by the Ronald Reagan Administration.

Bob Keiter (Univ. of Utah Law School) chronicled the emergence of both ecological awareness and collaborative stewardship in Keeping Faith with Nature. Keiter later chronicled the Bush/Cheney reactionary footnote in a 2007 article, Breaking Faith with Nature. Taken together, the two trace certain aspects of emergent gospels that were part of the ideological wars. The former traces what I’ll call the “ecosystem awareness” movement in the Clinton era of government, and the second the Healthy Forests Initiative and the Healthy Forests Restoration Act reactions during the Bush/Cheney era.

An era of “collaborative stewardship” may yet be emerging, albeit slowly and as already seen, with pushbacks. Enviros are still quite leery of “collaborations” and high-sounding agency rhetoric. They are warriors, after all. So the wars are not yet over, and may not be for a very long time. Timbering continues, albeit a a much lower volume than in the go-go days, and reframed as “ecological restoration” or “forest restoration”. New forest evangelists appear on the stage. Now we have both Wally Covington and Jerry Franklin preaching the gospel of forest restoration. I’ll leave it for further discussion as to how the two brands compare, and as to who buys into one, the other, both, or neither.

Other Wars

Even if wars between environmentalists and industrial and government practitioners were to ever end, these are just the tip of an iceberg of forest wars. We must add in the budget and staffing wars (hereafter budget wars) that have been ongoing in the Forest Service for a long time. Timber and Engineering reigned supreme in budget wars for many years, particularly after World War Two and the housing boom that fed rapid increases in timbering and associated road-building after WWII. Recreation, Wildlife, Soil and Water, even Fire, Personnel (later, “Human Resources”), Planning, Budget, Fiscal, State and Private Forestry, etc. were always struggling for funds. After go-go timbering days were a thing of the past — i.e. Environmentalists effectively shut down “go-go timbering”, Recreation and Fire gained an upper hand in budget wars. Somehow Engineering always seemed to keep its share of the money. [Note: Someday, maybe I’ll get these budget categories approximately right. For now, they are “good enough for government work”]

Finally — not trivially — Public Lands Wars have raged more of less continuously for many years. Remember the “Sagebrush Rebellion” and the so-called “County Supremacy Movement”? Now those have transformed into more of a “States’ Rights” movement. In all cases, part of the action has been an assault on federal lands.

I’ve probably missed some of the “wars” here. But if I’ve captured any of this even partially correctly, the landscapes, biophysical and political, have been transformed in the process. Some argue, as did Fairfax way back when, that the legal-administrative gridlock that has been a reality in federal lands management during the last 30-40 years, has done significant harm to the environment, and only resulted in wasted paper (EISs and dollars/time spent on forest planning, project planning, related NEPA work, appeals and litigation). Others like me argue that sometimes it is necessary to grapple with vexing social issues, even wicked problems in a very public way. Such “civic discovery” is a necessary part of a working democracy. Would that we could move from “war talk” to “fierce conversations“.

Related:
NEPA is Not the Problem, Forest Policy – Forest Practice, Oct 2007
The Blame Game

Court Decision- NEPA for Ski Master Development Plan

by

Pp 10-12 of this Ark Initiative vs. Forest Service decision deal with the “NEPA for master development plan” question. It also has a good discussion of a variety of NEPA issues and the detailed discussion of the FS approach and why the judge found it was OK. Sometimes on this blog we talk about “if the FS followed the law there would be no problem” but people can disagree on not so much the concept, but the details of following the law, especially NEPA.

Here’s a quote:

The Forest Service’s acceptance of the conceptual 2003 MPA does not meet these
criteria. The 2003 MPA merely discloses Aspen Skiing’s goals and objectives, AR
5748-50, the existing conditions, AR 5762-76, and Aspen Skiing’s desired future
conditions, AR 5778-96. The Forest Service expressly noted that the acceptance of the
2003 MPA “in no way guarantees that all elements represented here will be completed at
any time in the future.” AR 5751. Nor does the agency’s acceptance mean that all of the
elements described in the 2003 MPA will be approved in the future, that the Forest Service has completed its environmental review of elements described in the 2003 MPA, or that the Forest Service completely agrees with Aspen Skiing on all of the listed actions. AR 5898-99. Instead, the Forest Service accepted the 2003 MPA as a guiding document for Aspen Skiing’s future development of the Snowmass Ski Area that would help the agency understand Aspen Skiing’s vision for the ski area and evaluate future connected actions when analyzing site-specific projects. AR 5899. Accordingly, it is not a “definitive statement of [the Forest Service’s] position determining the rights and obligations” of Aspen Skiing or other parties. More decisions remain to be made, depending on what Aspen Skiing actually proposes and the further required NEPA analysis, which means that it is not the consummation of the agency’s decision-making process. Thus, the acceptance of the 2003 MPA is not a final agency action.