Planning

Supremes Take On Sierra Nevada Forest Planning..

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Here’s a link and below is an excerpt.

On Monday, the court agreed to referee the dispute pitting environmentalists with the Portland, Ore.-based Pacific Rivers Council against the U.S. Forest Service over decision-making that dates back to the second Bush administration. While the specific case involves 11 Sierra Nevada forests, the eventual outcome could shape everything from who gets to file lawsuits to the scope of future environmental studies.

“Definitely, throughout the West, this could have huge impacts on the moving of projects forward,” Dustin Van Liew, executive director of the conservative Public Lands Council in Washington, D.C., said in an interview Monday.

One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.

A second major question is how extensively detailed the Forest Service must be when preparing overarching management plans, such as the one governing the 11 Sierra Nevada forests.

“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”

Underscoring the case’s potential significance, the Public Lands Council and the affiliated National Cattlemen’s Beef Association secured Supreme Court permission Monday to file a brief opposing the environmental group. Many more briefs, from both sides, are sure to come.

The court’s decision to hear the Sierra Nevada case, sometime during the 2013 term that starts in October, means that at least four of the court’s nine justices agreed to reconsider a 9th Circuit Court of Appeals decision from last year in which environmentalists prevailed.

In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.

“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.

Has anyone actually looked at what they did write about fish? Seems like if they wrote “enough” about everything else in the document they would have also written about fish “enough”.

Funny that Judge Fletcher says that the 2004 plan “allows” more burning, as if that was a bad thing.. prescribed as opposed to wildfires?

Of course, I am not a believer in hypothesized future effects of unknown projects in unknown numbers, of unknown kinds with unknown mitigation requirements in unknown locations…

“My first Sierra Nevada backpacking trip was to the Mineral King area in 2000, during which time I also fished,” Pacific Rivers Council Chairman Bob Anderson, a South Lake Tahoe resident, said in a court declaration used to establish injury and standing. “I plan to continue these activities as long as the management of Sierra Nevada national forests does not prevent me from doing so.”

Of course, forest plans require actual projects to be “management” that could have environmental impacts of the kind Mr. Anderson is concerned about.

This follows a bit of the ocean liner vs. flotillas of dinghies discussions about NEPA documents. As NEPA documents grow in size and area covered, they are increasingly functions of assumptions made about what might happen, and move further from physical reality (“might-could” NEPA). That makes them both easier, and more important, targets for litigation. The idea of humungo-NEPA makes the ultimate disposition dependent on the vagaries of random sets of judges determining what is “enough,” and or small sets of people at DOJ and for groups working to settle. The nexus of decision making moves further from the area impacted, and from those familiar with the actual land and people most impacted by the decisions. I don’t think that that’s a good thing.

Tongass Futures Roundtable Collaborative Group Shutting Down

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Image-7-e1331969858229Thank you to David Bebee for passing along this news report by Ed Schoenfeld, CoastAlaska News.  The Tongass Futures Roundtable has been discussed here on this blog a number of times in regards to the management of the Tongass, America’s largest National Forest.

The Tongass Futures Roundtable is shutting down. The organization tried to resolve Southeast Alaska forest-issue conflicts. It formed about seven years ago.

Organizers hoped to bring together all parties involved in the forest to craft compromises on land-use issues, such as logging and habitat protection.

“The roundtable brought people together who had never had to sit across from each other at a table. The normal environment was a courtroom,” says Bruce Botelho, the group’s facilitator and moderator.

The former attorney general and Juneau mayor says roundtable members decided to end their work during a meeting earlier this month.

“One of the benefits for us to dissolve right now is to create the opportunity for people to come together and perhaps learn from our experience, but also build on it. And one would hope that any assembly of stakeholders would truly bring back the whole range of participants,” he says.

A map of the Tongass National Forest. Image courtesy USFS.

Membership originally included industry, government, tribal and environmental leaders. But about two years ago, the state, timber representatives, four towns and some conservation groups pulled out.

“We didn’t have enough movement in the direction we felt needed to occur,” says State Forester Chris Maisch, one of the original roundtable members.

“So the governor decided it would be best to put state energy and time and resources into a task force, which he established through an administration order,” he says.

Maisch chaired that task force, which released its final report a few months ago.

It recommended a number of actions meant to increase logging. One was expanding state forests. Another was revising state rules to help small timber operators.

Yet another called for the federal government to turn two million acres of the Tongass over to the state to be managed for harvest.

Maisch says the timber task force has since shut down.

Botelho says the roundtable eventually decided it couldn’t fully do its work without the groups that left. It will cease operations July 1st. But he says it achieved some of its goals.

“We devoted a great deal of time to examining the proposed mental health land exchange between the state and the trust and ended up endorsing a process, which is underway. And I think that, absent the support of the roundtable, would have been more difficult,” Botelho says.

He says some of the roundtable’s working groups will also continue meeting. One focuses on Alaska Native issues, another on sustainable forests.

The Tongass Futures Roundtable had about 35 members and tried to reach decisions by consensus. State Forester Maisch says that just didn’t work.

“It was a well-intentioned effort. And a lot of people spent a lot of time in trying to make that process work. And unfortunately, it just wasn’t the right time and the right place. So it’s too bad that it didn’t come to a better conclusion,” he says.

The roundtable had funding support from the Rasmuson Foundation and other donors. The Juneau office of the Nature Conservancy, an international conservation organization, staffed the group.

Roundtable Coordinator Norm Cohen says money was not the reason the group decided to dissolve.

Court Upholds Forest Plan for Black Hills

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Black Hills MPBR Project
Black Hills MPBR Project

So we have the sale-by-sale focus of groups in Montana. We have the “timber wars” narrative continuing to play out in Oregon. Then we have the little old Black Hills where peace seems to have broken out. What does it take? Good environmental work and local people who work with each other. Supportive state governments and reasonable courts. Small timber and logging firms. A FACA committee?

Interesting because the next step is their adaptive NEPA large scale project (248K acres), which could be a lead example of how to streamline NEPA and follow the current legal framework. They had three objection, so far no litigation and are about to start implementation. Here’s a link to the documentation.

Here’s one article..from radio KOTA.. this one has more history in it about the Norbeck lawsuit..

Attorney General Marty Jackley announces that the Wyoming Federal District Court has again upheld the current Black Hills Forest Plan. The 1990 Forest Plan was amended in 2005 after a top ranking forest service official sent it back for more study of its effects on wildlife.

During the review, the amendment process also included extensive consideration of the rampant mountain pine beetle infestation which grew exponentially from 1997-2005…

South Dakota has vigorously urged the Forest Service to fully consider the mountain pine beetle and its damaging effects on trees and the increased risk of fire damage…

Jackley said that the timbering activity has been ongoing because the courts have sided with the National Forest Service and the state of South Dakota during these litigations..

In 2011, the Eighth Circuit Court of Appeals in St. Louis upheld the related plan for the Norbeck Wildlife Preserve that also provided for diversity in timber management for game animals and bird habitat in a portion of the Forest. Within weeks after losing their Norbeck challenge in the Eighth Circuit, the same environmental groups and others filed suit in Wyoming Federal District Court, seeking to set aside the 2005 overall Forest Plan. The South Dakota Attorney General intervened on behalf of the State of South Dakota in support of the 2005 Forest Plan. The Wyoming Federal Court upheld the Forest Plan in late 2012 and has now rejected a motion by the environmental groups to reconsider the ruling. The environmental groups will have until mid-June to appeal the District Court’s ruling.


Here’s another article on the court decision from the Rapid City Journal.

Federal Judge Tells USFS It Must Manage Snowmobile Travel on National Forests

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This is a guest post from regular commenter John Persell. -mk

Here’s the link to the Oregonian story: “Federal judge in Idaho agrees with skiers, says snowmobile excemption is arbitrary.”

The meat of the court’s decision is in the last several pages, but the intro provides good background on how travel management came about on public lands.

This is a very satisfying victory for many who have advocated for management of snowmobiles and motorized travel in general on national forests, and is the result of great work by Advocates for the West on behalf of the Winter Wildlands Alliance.  It is not clear yet whether the Forest Service will appeal to the 9th Circuit or comply with the 180-day timeframe ordered by the judge.

The judge’s straightforward decision highlights some truly head-scratching plain language twists the Forest Service attempted to use.  The case also raises questions as to why the current administration chooses to defend some of the previous administration’s actions (as here) but not others (the 2008 NFMA planning rule).

Mountain bikers, environmentalists clash over Angeles National Forest plan

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The Mountain Biking Community.. (paraphrase of Niemoller)

First they came for the loggers,
and I didn’t speak out because I wasn’t a logger (and timber industry is “corporate.)

Then they came for the people who wanted fuel treatments,
and I didn’t speak out because I didn’t live in a WUI (and they shouldn’t really be living there)

Then they came for the OHV users,
and I didn’t speak out because I didn’t have an OHV (and those things are noisy and smelly)

Then they came for me,
and there was no one left to speak for me.

Here’s the link.

I don’t get the thing about wheelchairs based on the story.

Courtroom Backroom Collaboration: Southern California Forests

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Backroom-Deals-300x202
Here’s the link.

Here’s an idea. If the FS has to analyze an alternative proposed by a litigo-collaborative group, wouldn’t it have been more cost effective to analyze it right away as part of the rest of the NEPA rather than draw this out.. how many years have these poor folks been planning? Which would be an argument for analyzing both a collaborative group’s alternative and the “likely litigator’s” alternative upfront. Then we’d just have to think up a “more intrusive” alternative, and call it good.

The process seems to be:
Government tries really hard to write a perfect document
Groups who want control find flaws
Sit down with DOJ and make a deal

Leaving out the FS (well they are talking to DOJ but..), the public, Congress and other elected officials other than the ones influencing DOJ (current administration) Wish the political science folks were still here on this blog to talk about the “separation of powers” but as I recall, when things get out of balance with courts and executive, it is time for Congress to step in.

And back to our collaboration topic, by the same logic as Macfarlane suggested, then developing a proposal with groups as part of a settlement would also “violate NEPA..” But could that be, since it’s apparently ordered by a court? The non-legal mind boggles.

U.S. Forest Service officials could add 80,000 acres of wilderness areas in the four Southern California national forests — which would prohibit road building, commercial development and mountain biking — and ban motorized vehicles from another 300,000 acres.

The proposal is part of a settlement between the Forest Service and seven environmental groups that sued in 2008 over the agency’s decision to allow road building and off-highway vehicles in remote roadless areas.

The San Bernardino, Cleveland, Angeles and Los Padres national forests, which total 3.5 million acres, would be affected. Those forests, all near urban areas, are among the most popular in the country for recreation, drawing more than seven million visitors a year.

The proposal is outlined in a draft of the Forest Service’s management plan. An environmental analysis of the plan is open to public comment through May 16. The Forest Service will hold a public meeting on the topic March 28 at the San Bernardino National Forest headquarters.

Three alternatives are proposed:

Alternative 1 would make no changes.

Alternative 2, preferred by the Forest Service, would establish backcountry areas where no motorized vehicles would be allowed. The zoning would allow bicycling and makes an exception for road construction for tasks such as forest fuels management. It would not remove vehicle access where it is already allowed, however. The largest portion — 300,000 acres — would be in the Los Padres National Forest, headquartered near Santa Barbara.

Alternative 3, the most restrictive, recommends additional wilderness, a designation ultimately made by Congress. This would ban off-road vehicles, mountain bikes and construction of new roads and prohibit installation of cellphone towers, radio repeaters and microwave reflectors. This is the proposal favored by environmentalists.

Hmm. I guess it you have no timber, grazing, or oil and gas, you have to go after mountain bikes, fuel treatments and cellphone towers. Maybe we can see the ultimate endgame for some, as proposed for Southern California.

Wanted: Studies on Costs of Planning

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Emily Schembra, a student at University of Montana, who is studying forest planning with Martin Nie, an originator of this blog, was looking for any papers or information around the cost of NFMA planning.

Here’s her note:

“looking for information on costs associated with forest planning (or implementation of the forest plan). So far, I have a 1986 GAO report on the Boise/Clearwater National Forests and a 1994 GAO report on USFS efforts to achieve cost efficiency, and other less specific academic articles, but not much else that focuses specifically on costs. ”

It reminded me of the famous Fred Norbury quote “How can we say planning takes too long and costs too much if we don’t know how long it takes or how much it costs?”

Point/Counter-Point: Nez Perce-Clearwater NF Forest Planning Process

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Looking into the Mallard-Larkins Roadless Area on the Nez Perce-Clearwater National Forest, Idaho. Photo by Brett Haverstick.
Looking into the Mallard-Larkins Roadless Area on the Nez Perce-Clearwater National Forest, Idaho. Photo by Brett Haverstick.

Recently, the discussion of collaboration and forest planning – at least on this blog – has focused on the processes at play with the Nez Perce-Clearwater National Forest forest plan revision. See here, here and here.  The discussion and debate continues, as we can clearly see in these point/counter-point guest columns, which recently ran in the Moscow-Pullman Daily News.  The first one is from Lee Rozen, who wrote his piece on behalf of the Moscow-Pullman Daily News editorial board. The second piece is from Gary Macfarlane, ecosystem defense director for Friends of the Clearwater.

We have this Friend, see, who’s stumped us
By Lee Rozen, for the Moscow-Pullman Daily News editorial board
http://dnews.com/opinion/article_245cf435-b50e-58a3-a9e4-98e2b09b816a.html

Sometimes, you have to wonder whether the Friends of the Clearwater can see the national forest for the trees. Generally speaking, we agree with much of what the Friends, and groups like them, stand for. We are skeptical whenever industry or local government tells us to just trust them because they are acting in our best interest.

But when government in the form of the U.S. Forest Service comes forward and seeks the informed advice of a wide variety of groups – both industry and Friends included – we don’t see sinister conspiracies lurking behind the next stump. Challenges, perhaps, but not conspiracies.

The Forest Service is trying a “collaborative” process to develop a management plan for the newly combined administration of the Nez Perce-Clearwater National Forest. That’s instead of proposing a plan and offering it up for industry, governments, recreationists and environmentalists to take potshots at, and eventually go to court over.

It seems that’s what Friends of the Clearwater want them to do. The Friends seem to be afraid their principles will be co-opted if they sit down across the table from industry, government, hunters, motorcyclists and ski-mobilers and negotiate the best way to reach an acceptable compromise on the use of this forest. More practically, they argue that industry and government can pay to have their representatives at the discussions but groups of volunteers with day jobs can neither afford the time off nor the travel expenses. As a result, the Forest Service has offered to help the collaboration occur online.

A plan for running a national forest poses a complex problem because it is so unclear what national forests are and what they should be. It’s pretty clear what’s intended for national parks, wilderness areas and national recreational areas. But national forests are different. They are supposed to support a mix of goals, many of which can be contradictory – logging and recreation, for instance. The Friends of the Clearwater, and other interest groups, should be working to make the “collaborative process” work for all, rather trying to shoot it down in hopes of “total victory” in the courts.

US Forest Service must follow the law
By Gary Macfarlane
http://dnews.com/opinion/article_1207ba0f-0a26-5e2d-a44f-ac89653a0672.html

Lee Rozen’s criticism of Friends of the Clearwater (Our View, written for the editorial board, March 13) is off base, misinformed and reflects a lack of understanding concerning our public land laws and the public involvement process. Had he contacted us, he would have learned why we believe the Forest Service is not following the law. It appears the agency has stumbled into a quagmire, under the guise of collaboration, with its new forest planning process.

The process the Forest Service is currently following on the Nez Perce-Clearwater National Forests plan revision circumvents existing law, creates a contradictory and confusing public involvement process and lacks accountability. For 40 years, the National Environmental Policy Act has governed public input and analysis of agency proposals. NEPA mandates that the first step of the public involvement process is to identify pertinent issues. However, this collaborative process is seeking to resolve issues before the genuine public involvement process even begins. How can the Forest Service resolve issues before they are properly identified?

Under NEPA, all citizens can participate equally. However, the new collaborative forest plan revision process – which has no statutory authority – creates two unequal classes of citizens. The E-collaborative invention funnels citizen comments from the second class through the first class citizen collaborative group. Why should a special working group have more input and be allowed to determine whether or how other citizen comments are used?

Furthermore, NEPA requires an objective analysis of alternatives before decisions are made. Thus, the integrity of NEPA is compromised when the agency reaches a deal or understanding with the collaborative forest planning group before the NEPA process even begins. NEPA must be more than a pro forma exercise. Can you imagine having a collaborative group decide the outcome of an election before the election begins in order to avoid the contentiousness of elections?

Another stated reason behind the new forest planning process is to save time and money. How is having two competing public involvement processes for national forest planning more efficient? Indeed, the Forest Service recently admitted the collaborative process would take longer than anticipated. We feel that such redundancy wastes time and money and also creates conflict and confusion. In fact, a member of the forest planning collaborative for the Nez Perce-Clearwater National Forests – Jonathan Oppenheimer of the Idaho Conservation League – recently termed the process as collective collaborative confusion at a presentation given in Eugene, Ore. Even proponents of collaboration find the new process fatally flawed.

Retired Forest Service fishery biologist and Moscow resident Al Espinosa stated in a comment letter on the new process, “The intent here is to avoid accountability by eliminating the appeal process and providing a phony pathway around the regulations and laws.”

He also noted the new planning process would circumvent the national interest. Removing accountability and de-legitimizing NEPA’s public involvement and decision-making process is not in the public interest. The Forest Service could have prevented scrutiny, confusion and distrust had the agency followed citizen suggestions made in an October meeting in how to lawfully proceed with the forest plan revision process.

If national forest management is to be determined by local collaborative groups, then existing laws like NEPA need to be repealed first. If the goal is to remove the ability of citizens to have judicial redress and to challenge agency decisions in court, then the Constitution must be amended. The new process for national forest planning clashes with the law. Friends of the Clearwater simply believes the Forest Service should be accountable to U.S. citizens and the law. We think the majority of Americans would agree with us.

McClatchy Take on Pacific Rivers Supreme Court Case

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Martins photo
Note: This post is not just an excuse to run Martin’s photo again.
Planners: I’m looking for a photo that shows a real forest plan and all its associated documentation for future posts.

Here’s a link to another story about the Supreme Court case.

Below are a couple of excerpts I found interesting:

One key question confronting the court will be whether environmentalists have the “standing” to sue against a general forest plan, as opposed to a specific project proposal, by virtue of their making recreational use of the national forests. To gain standing in federal court, individuals must show they’ve been injured or face imminent injury.

It seems to me that no one faces “imminent injury” from a forest plan other than, as planner DeAnn Zwight once remarked, by dropping one on your foot. Or potentially tripping over a pile of Appendices. Or falling asleep while reading one (very likely) and smoking…

Apparently DOJ agrees with me, below is a quote from an E&E story.. if you read past the “project htat would “threaten the forest’s ecosystem”.

Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.

The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.

“Absent approval of a site-specific project or other irreversible commitment of resources by the Forest Service, [Pacific Rivers Council]’s challenge to that programmatic decision is merely an abstract disagreement not appropriate for judicial review,” the agency wrote.

“The only role for a court is to insure that the agency has taken a ‘hard look’ at the environmental consequences of its proposed action,” Pacific Rivers Council’s attorneys said in a legal brief, adding that “agencies cannot take a ‘hard look’ unless they have reasonably identified the consequences of their actions.”

It was interesting in the 2001 Roadless Rule case, it appeared that very general and not very accurate environmental analysis was OK. Some have suggested that different levels apply if you are documenting a decision “not to do things” as opposed to “doing things”. I’m not sure I read that in NEPA, though. But plans, of course, don’t “do things” either. So perhaps if we looked at the 10th Circuit Roadless case and the 9th Circuit Pacific Rivers case, we would have to argue that levels of analysis can differ from decisions that “don’t allow things” to ones that “might could (plans are all about “might could”) allow some things, and not allow other things. I wonder what would happen if the same standards of analysis were applied to the 2001 Roadless Rule and to the Sierra Nevada plans? After all, that was a final decision on not allowing things, and any actions allowed by plans have to go through specific NEPA.

I was also curious about this quote:

In that 2-1 appellate court decision, the 9th Circuit panel concluded the Forest Service in 2004 failed to adequately study the effect of dramatically revised forest plans on Sierra Nevada fish populations.
“The Forest Service provided no analysis despite the fact that the 2004 (plan) allows much more logging, burning, road construction and grazing,” Judge William A. Fletcher wrote for the appellate panel.

It’s hard for me to believe that there was “no analysis”. What “Joe, I thought you were going to do the fish chapter. Oh, no, I guess we forgot? Well it’s too late, the document’s printed. I guess we’ll have to see if anyone misses it. Especially since this document is sure to be appealed and litigated.”

Anyone from familiar with this case, please shed some light.

Supreme Court to Take on Plan NEPA

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Below is an excerpt: Pacific Rivers Council Cert Reply is a link to a legal document I think submitted to the Court by DOJ, the questions that the Justices will consider. Thanks to readers for sending both. Lawyers on the blog are invited to explain more..
If someone has the link, please send and I will update.

The Supreme Court agreed today to review the standing of an environmental group challenging a Forest Service management plan for the Sierra Nevada.

At issue is a 9th U.S. Circuit Court of Appeals ruling for the Pacific Rivers Council that invalidated a regional management plan for 11 national forests covering 11.5 million acres.

The council successfully argued in appeals court that the Forest Service’s 2004 revised environmental impact statement and framework failed to comply with the National Environmental Policy Act for assessing potential damage to fish species.

The case dates back to the mid-1990s, when Congress found habitat in the sprawling Sierra Nevada — home to 61 fish species and 35 amphibian species — had become severely degraded. It directed the Forest Service to develop a new environmental impact statement for the service’s 11 management plans.

After years of delay, the Clinton administration issued a final statement to conserve and repair aquatic ecosystems in November 2001.

The George W. Bush administration re-examined the statement and in January 2004 issued revisions. According to court documents, the new document made significant changes, including “substantially” increasing total acreage to be logged and the size of trees that could be harvested.

It also paved the way for new logging roads and reconstruction of existing roads and reduced grazing restrictions for commercial and recreational livestock.

The Pacific Rivers Council brought a lawsuit in May 2005 contending that the revised framework did not analyze the environmental consequences of those changes and, therefore, did not comply with NEPA for fish and amphibians.

At issue for the court is whether the environmental group has standing to bring the lawsuit: In other words, could the group prove it was harmed by the agency’s action.

The San Francisco-based 9th Circuit in a February 2012 ruling said the group has standing. They “have used, and will continue to use, the national forests of the Sierra in a variety of places and in a variety of ways,” 9th Circuit Judge William Fletcher wrote. The court held that the 2004 framework didn’t comply with NEPA for fish but did for amphibians.

In asking the Supreme Court to take the case, the Forest Service argued that the environmental group failed to meet that bar.

Pacific Rivers Council “has not identified even one project that will adversely affect even one member,” the service wrote in court documents.

The agency also wrote the challenge was “un-ripe” for a lawsuit because it had yet to sign off on a specific project that would threaten the forest’s ecosystem.

Here are the issues:

United States Forest Service v. Pacific Rivers Council, 12-623

Issue: (1) Whether respondent Pacific Rivers Council (PRC) has Article III standing to challenge the Forest Service’s 2004 programmatic amendments to the forest plans governing management of 11 Sierra Nevada Forests when PRC failed to establish that any of its members was imminently threatened with cognizable harm because he or she would come into contact with any parcel of forest affected by the amendments; (2) whether PRC’s challenge to the Forest Service’s programmatic amendments is ripe when PRC failed to identify any site-specific project authorized under the amended plan provisions to which PRC objects; and (3) whether the National Environmental Policy Act required the Forest Service, when adopting the programmatic amendments, to analyze every type of environmental effect that any project ultimately authorized under the amendments throughout the 11 affected forests might have if it was reasonably possible to do so when the programmatic amendments were adopted, even though any future site-specific project would require its own appropriate environmental analysis before going forward.