Condition-Based Management: Vermont Law School Paper

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Montana’s attempts to punish environmental litigation stopped

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Vladayoung/iStock, vectorplusb/iStock
The Week

Montana Republicans have had more fun this year than in the last 16 when their creativity was blocked by a Democratic governor.  This year they advanced a couple of ideas that might look good to those who don’t like environmental litigation.  However, they were too extreme for even a supermajority legislature and a Republican governor.

A measure introduced late last week by Sen. Duane Ankney, R-Colstrip, that would have directed the Department of Justice to investigate environmental groups is likely dead after a free conference committee voted to strike it from House Bill 693. Among other things, Ankney’s amendment would have empowered the Department of Justice to investigate environmental groups’ membership lists, funding, engagement in political speech, and influence on the government’s regulatory or permitting actions.

Democrats on the committee questioned if the measure would hold up to a judicial challenge and said they were troubled by the lack of a definition for “environmental organization.” Sen. Ellie Boldman, D-Missoula, wondered aloud if groups like the Rocky Mountain Elk Foundation would be subject to investigation. Ankney replied that was not his intention. Earlier in the meeting he’d said that his bill was directed at investigating groups that target natural resources issues with rhetoric.

The end of this article also discusses another bill that was still pending, Senate Bill 278, which then passed.  However, it was vetoed by a very conservative governor.

Governor Greg Gianforte on May 14 vetoed SB 278, a bill that contained provisions designed to penalize nonprofit environmental organizations. SB 278 would make nonprofit legal actions “challenging or supporting a government action” a taxable action under unrelated business income, and also require a nonprofit that challenges or supports a government action to – “under penalty or perjury” – file documentation with the Montana Attorney General listing the source of each donation over $50.

There would be serious constitutional questions about “rhetoric” (also known as “freedom of speech”), but I’m sure that won’t stop them from trying again.

 

One Experimental Forest- Super-Sized : OSU and Elliott State Forest

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Thanks to Peter Williams for this one, reported in Nature.

If the project — proposed by DeLuca and other researchers at OSU — launches successfully, the newly created Elliott State Research Forest in southwestern Oregon would occupy a roughly 33,000-hectare parcel of land. This would be divided into more than 40 sections, in which scientists would test several forest-management strategies, some including extensive logging. The advisory committee for the project, which comprises environmentalists, hunters, loggers and members of local Indigenous tribes, approved the latest research proposal on 22 April.

Controversially, the study would allow logging in a new research forest, in an attempt to answer a grand question: in a world where wood remains a necessary resource, but biodiversity is declining, what’s the best way to balance timber production with conservation?

Well, it will answer that question at least for areas similar to Elliot State Forest, anyway, or at least illuminate trade-offs. Is it controversial to allow logging in a new (or old) research forest? Most of them, at least on Forest Service land, were established to do precisely that. Here’s a link and map of all Forest Service Experimental Forests and Ranges. At least two of them, H. J. Andrews in Oregon (16K acres) and Hubbard Brook in New Hampshire are also Long Term Ecological Research units and get infusions of funding from NSF.

It’s also interesting that some environmental groups are on the advisory committee, while others think clearcutting shouldn’t occur at all, and others don’t trust OSU. The advisory committee would conceivably review plans for specific sites, though, so mistakes like the 16 acre old growth one shouldn’t occur in the future.

Questions:

“As currently designed, the project would leave more than 40% of the forest — a section of old growth that has been regenerating naturally since the area last burnt, a century and a half ago — untouched by logging.”

Is 150 years old considered “old growth” in that area? Or are there pockets of old-growth in the burned area that will be untreated?

But the Elliott research forest would be larger than most of its predecessors, and advocates say that it would provide scientists with the first opportunity to test ecological forestry at such a large scale.

I’m curious about the larger ones.. the H.J. Andrews is “only” 16,000.. I wonder where those larger ones are? I also wonder what are the kinds of specific questions for which you need more than 10,000 acres of designed experiment to answer.

Totally off the subject side note: I ran across this while looking at the (excellent) H.J. Andrews website. I found it a bit disconcerting.

CONSERVATION ETHICS
Natural resource management can be seen as a set of practices, which reflect certain ideas about the world. Ideally management practices will be consistent with our best scientific ideas about the workings of both biophysical and social systems, but management practices also and inevitably manifest our ideas about what is good, what is right, and what is valuable. For example, we manage riparian zones in certain ways because we understand certain relationships between riparian zones and streams and rivers; but also because we believe certain management practices will achieve important goals, or protect important values, related to streams and rivers. In this way, management fuses science and ethics.

At the Andrews Forest, we consider ethics an inherent part of our work. We seek not only to understand how ideas work in socio-ecological systems, but also to explicitly consider how they ought to work, particularly at the interface of science and management. Formal methods of critical thinking, or argument analysis, are used to understand and evaluate both the science and ethics of management decisions, predicated on the belief that decisions made through such a process of sound and rigorous reasoning will be more systematic, more transparent, and ultimately more reasonable than they might otherwise be.

I didn’t learn much about ethics in my science education, except research ethics. I grant you that my education was a long time ago.  Still, I found it pretty fascinating that the scientists are “explicitly considering how social systems (well, at least socio-ecological systems) “ought to” work. Because it sounds like “we reason more reasonably than people who make management decisions” or “we are more attuned to ethics than they are.” I’m not sure that there’s relevant social science research behind either claim.

USFS and Small, Forest-Based Communities

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Another article from the May edition of the Journal of Forestry is worth a look: “Changes in Relationships between the USDA Forest Service and Small, Forest-Based Communities in the Northwest Forest Plan Area amid Declines in Agency Staffing.”

The authors note “chronic budget cuts and shrinking resources,” but not the shift of a large portion of the budget it does have to suppressing wildfires.

The paper rings true for me, as a resident of a small community in the NW Forest Plan area. The local agency staff are good folks, but they are too few to meet the management needs on a diverse, high public use national forest. I’m interested to hear from others on Smokey Wire whether the situation is similar outside of the NW Forest Plan area.

Abstract

This article explores the changing relationships between the USDA Forest Service and 10 small, forest-based communities in the Northwest Forest Plan area in Washington, Oregon, and California. Interviews with 158 community members and agency personnel indicated that community member interviewees were largely dissatisfied with the agency’s current level of community engagement. Interviewees believed that loss of staff was the primary factor contributing to declining engagement, along with increasing turnover and long-distance commuting. Interviewees offered explanations for increasing employee turnover and commuting, including lack of housing, lack of employment for spouses, lack of services for children, social isolation, improving road conditions making long-distance commuting easier, agency incentives and culture, decreasing social cohesion among agency staff, unpaid overtime responsibilities, and agency hiring practices. Community member perceptions regarding long-term changes in community well-being and agency-community relationships were more negative than agency staff’s perceptions.

Study Implications: We found evidence that staffing declines, turnover, and long-distance
commuting may contribute to decreasing agency engagement in some communities, and that
diminished engagement by federal forest management agency employees may contribute to
negative attitudes toward the agency. Agency employee interviewees suggested that incentives
(i.e., promotions, opportunities to live elsewhere), internal conflicts, and a lack of opportunities
and services for their families are reasons that staff commute from neighboring communities
or leave their jobs. Our findings suggest that the USDA Forest Service may improve agency community
relationships by supporting its staff in ways that reduce turnover and long-distance
commuting and incentivize community engagement.

Journal of Forestry, Volume 119, Issue 3, May 2021, Pages 291–304, https://doi.org/10.1093/jofore/fvab003

Check Out the National Prescribed Fire Act of 2021

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A great summary of this bill from Bill Gabbert of Wildfire Today..

 

$600 million could be appropriated

Prescribed fire, Indiana Dunes National Lakeshore near Ogden Dunes in northwest Indiana
Prescribed fire, Indiana Dunes National Lakeshore near Ogden Dunes in northwest Indiana in 2013. NPS photo.

Legislation that did not pass in Congress last year to promote prescribed fire was reintroduced yesterday by four Senators. The National Prescribed Fire Act of 2021 would appropriate $300 million each to the Departments of the Interior (DOI) and Agriculture (DOA) to increase the pace and scale of controlled burns on state, county, and federally managed lands. Companion legislation with four sponsors was introduced in the House of Representatives.

Of the total of eight sponsors and co-sponsors, seven are Democrats and one is Republican. The legislation did not stand a chance in 2020 but it could fare better this year.

Senators have issued press releases promising that if the bill is passed it “would help prevent the blistering and destructive infernos from destroying homes, businesses and livelihoods.” ?

The legislation:

  • Establishes a $10 million collaborative program, based on the successful Collaborative Forest Landscape Restoration Program, to implement controlled burns on county, state and private land at high risk of burning in a wildfire.
  • Establishes an incentive program to provide funding to state, county, and federal agencies for any large-scale controlled burn.S tates and counties could receive up to $100,000 for prescribed fire projects.
  • Establishes a workforce development program at the Forest Service and DOI to develop, train, and hire prescribed fire practitioners, and establishes employment programs for Tribes, veterans, women, and those formerly incarcerated.
  • Directs the DOI and DOA to hire additional personnel and procure equipment, including unmanned aerial systems equipped with aerial ignitions systems, in order to implement a greater number of prescribed fires.
  • Encourages large cross-boundary prescribed fires exceeding 50,000 acres.
  • Sets an annual target of at least one million acres treated with prescribed fire by federal agencies, but not to exceed 20 million.
  • Requires that by September 30, 2023 a minimum of one prescribed fire to be conducted on each unit of the National Forest System, unit of the National Wildlife Refuge System, unit of the National Park System, and Bureau of Land Management district under the jurisdiction of the two Departments. The intent is to increase familiarity with prescribed fire in local units.
  • The two Departments shall hire additional employees and provide training and development activities, including through partnerships with community colleges, to increase the number of skilled and qualified prescribed fire practitioners in the DOI, DOA, Indian Tribes, and other qualified organizations, including training in smoke management practices.
  • The Office of Personnel Management shall give the two Departments new authority to hire temporary personnel to perform work related to prescribed fire, including training, implementation, and post-prescribed burning activities. The workers could begin three days before the project and work through three days after “the prescribed fire has stopped burning.”
  • Overtime payments for prescribed fire could be paid out of wildfire suppression accounts.
  • Each Department shall create at least one crew for implementing prescribed fires. After a person works on the crew for five seasons they would become eligible for noncompetitive conversion to a permanent position.
  • The Departments may spend up to $1 million in working with the National Governors’ Association to host a conference to discuss the benefits of addressing liability protection related to prescribed fires, and possible incentives for States to enact a covered law.

“In the simplest terms, the National Prescribed Fire Act offers a legislative solution to increase the use of prescribed fire,” said National Association of State Foresters President, Arkansas State Forester, Joe Fox. “With this bill, state foresters would be able to maximize their utilization of controlled burns to enhance forest health while minimizing damages and mega smoke emissions from catastrophic wildfires. It is a win-win-win for forests, wildland fire management, and public health.”

Litigation summary supplement, April-May 2021

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These recent case developments are evidently not covered in a Forest Service litigation summary.

Court decision (Forest Service):  Ksanka Kupaq Xa’lcin v. U. S. fish and Wildlife Service (D. Mont., April 14, 2021) (The news release includes a link to the opinion.)

The district court vacated the decision to permit construction of an evaluation adit for the Rock Creek Mine Project under the Cabinet Mountains Wilderness on the Kootenai National Forest without considering the effects of mine development, operations and reclamation in the biological opinion prepared pursuant to the Endangered Species Act.  The court found that, while the Forest Service has the authority to limit its current authorization as it sees fit, the Fish and Wildlife Service was required to explain adequately “why a comprehensive biological opinion addressing later development would be unproductive in assessing the impacts of the Project,” and “not only was a more comprehensive biological opinion possible, but that such opinions had already been completed” (in earlier iterations where the project had been considered as a whole).  The history of this project showed that mine operations are “reasonably certain to occur,” so their effects must be evaluated, even though the Forest Service had not formally permitted those operations to occur.

Court decision (Agricultural Research Service):  Western Watersheds Project v. U. S. Sheep Experiment Station, (D. Idaho, April 16, 2021)  (The court’s opinion is here.)

In the latest action in litigation that began in 2007, the court held:  “The Sheep Station/ARS acted arbitrarily and capriciously under the APA by failing to take the required hard look mandated by NEPA at the impacts of the project by (1) not adequately addressing its direct and indirect effects on non-ARS allotments (including on the Caribou-Targhee National Forest), (2) not sufficiently examining its impacts on bighorn sheep and grizzly bears, and (3) not objectively analyzing alternatives.”

Court decision (Forest Service):  WildEarth Guardians v. Bail, (E.D. Wash., April 20, 2021)  (This case was previously discussed here.)

The court denied plaintiffs’ motion for a preliminary injunction against sheep grazing on four allotments (of the seven under litigation) on the Okanogan-Wenatchee National Forest.  The court found no “significant threat of irreparable injury in the absence of injunctive relief,” because domestic sheep would still be grazed on proximate private and state-owned lands, and therefore the court did not address the merits of the case.  Those are related to delay in addressing new information about the effects on bighorn sheep until after the forest plan is revised.

New lawsuit (BLM):  Center for Biological Diversity v. U. S. Bureau of Land Management, (D. Idaho, filed April 27, 2021).  (This article has a link to the complaint.)

The proposed Caldwell Canyon Mine in southeast Idaho’s “Phosphate Patch” would extract the raw material to make glyphosate, which is primarily used in Bayer’s Roundup herbicide.  The three plaintiffs claim BLM’s approval of the mine violates the National Environmental Policy Act with its inadequate EIS reviews of effects on sage grouse and selenium pollution.  (No mention of the effects of using Roundup, which to me would be similar to NEPA requiring evaluation of the use of fossil fuels that results from oil and gas leasing.  But maybe it’s because EPA is responsible for that.)

Update (Fish and Wildlife Service):  The U. S. Fish and Wildlife Service has announced that it has delayed a decision on northern spotted owl critical habitat until December.  Plaintiffs in litigation opposing the vast acreage reduction adopted by the Trump administration are happy; plaintiffs in litigation opposing the delay in adopting the new designation are not.  (Those cases are discussed here.)

Interestingly, the Fish and Wildlife Service under the Biden administration has just followed through on the reduction of critical habitat for the northern Mexican garter snake from its original proposal in 2013 of 421,423 acres to 20,326 acres.  The remaining units of critical habitat include lands on the Tonto, Coronado, Coconino and Prescott National Forests.  (That is summarized here, with a link to the Federal Register notice.)

New lawsuit (National Park Service):  The State of South Dakota is suing the Park Service for failing to grant a permit for a fireworks show on the Fourth of July.  While the Trump administration had signed a Memorandum of Understanding for such permits, the Park Service determined:

“Potential risks to the park itself and to the health and safety of employees and visitors associated with the fireworks demonstration continue to be a concern and are still being evaluated as a result of the 2020 event… In addition, the park’s many tribal partners expressly oppose fireworks at the Memorial. These factors, compiled with the COVID-19 pandemic, do not allow a safe and responsible fireworks display to be held at this site.”

 

NFS Litigation Weekly May 7 & 14, 2021

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The full Forest Service summaries are here:  Litigation Weekly May 7 and 14 2021_Email

Abbreviated summaries below include links to related court documents.

COURT DECISIONS

Alliance for the Wild Rockies v. Higgins, (D. Idaho) – On April 27, 2021, the district court remanded the Forest Service’s categorical exclusion and decision memo for the Hanna Flats project on the Idaho Panhandle NF to the Forest Service to issue a supplemental decision memo explaining the how the project falls under the definition of wildland-urban interface under the Healthy Forest Restoration Act.  The district court held that, “[b]y not using the statutory definition of a wildland-urban interface, the USFS violated HFRA, thus rendering its use of the categorical exclusion unlawful” and noted that the Forest Service never provided a clear explanation of how the entire project area could be defined as a “wildland-urban interface.”  (Plaintiff’s view of the decision is provided here.)

Blogger’s note:  It appears to be common for revised forest plans to refer to the WUI as a location for certain kinds of management, and they also fail to include maps or provide any basis for what areas are considered WUI.  While forest plans do not rely on HFRA categorical exclusions, this approach raises questions about whether the plans properly identify areas where plan components apply as required by 36 CFR §219.7(d) and (e).

2-Bar Ranch Limited Partnership v. USFS, (9th Cir.) – On May 6, 2021, the 9th Circuit Court of Appeals reversed the District Court of Montana’s partial grant of summary judgment to plaintiff rancher permittees concerning the decision to apply the 1995 Riparian Mitigation Measures to the Dry Cottonwood Allotment on the Beaverhead-Deerlodge National Forest.  The court held that the 2009 revised forest plan allowed for continued application of range seasonal utilization requirements previously established through a site-specific allotment management plan and NEPA analysis instead of using newer forest plan default requirements that would have been more lenient to the permittees.  The 9th Circuit also held that the Equal Access to Justice Act does not provide for attorney fee recovery in Forest Service administrative proceedings.

NEW CASES

Alliance for the Wild Rockies v. Lannom, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint concerning the Horsefly Project on the Helena-Lewis and Clark National Forest. The complaint alleges the project includes a forest plan Amendment to exempt the project from two forest plan standards that protect elk hiding cover because the project violates those standards.  The complaint also addresses old growth and goshawks.

Friends of the Clearwater v. Probert (D. Idaho) – On April 28, 2021, plaintiff filed a complaint challenging the approval of two logging projects known as the  “End of the World” (50,000 acres) and “Hungry Ridge” (30,000 acres) projects on the Nez Perce-Clearwater National Forests without preparing an EIS (for 19,000 acres of logging).  Issues include effects on old growth and several species, including listed grizzly bears, lynx, salmon and steelhead, and failure to consult under ESA for grizzly bears.

Alliance for the Wild Rockies v. Munoz, (D. Mont.) – On April 28, 2021, plaintiffs filed a complaint regarding approval of the Elk Smith Project on the Helena-Lewis and Clark National Forest, which is within an inventoried roadless area.  The project calls for the removal of small-diameter trees and prescribed burning in an area that burned in the Canyon Creek Fire of 1988.  (Additional background is provided here “Twin Metals Mine.”)

OTHER AGENCIES

NorthMet Mining Project, Superior National Forest (not Region 1, as indicated in the Forest Service summary).  On April 28, 2021, the Minnesota Supreme Court ordered a remand to the state Department of Natural Resources to conduct a contested case hearing and to determine an appropriate definite term for the permit to mine as necessary.  (This appears to be related to prior discussions of mining near the Boundary Waters Wilderness we have discussed  previously, most recently here.)

Center for Biological Diversity v. Spellmon, (D. Mont.) – On May 3, 2021, plaintiffs filed a complaint alleging the Army Corps of Engineers violated the Endangered Species Act, National Environmental Policy Act, and Clean Water Act when it issued Nationwide Permit 12 for oil and gas pipelines.  (Additional background is provided here.)

The Need for Speed (or Not): The Saga of the Bozeman Municipal Watershed Project

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Yesterday we had a discussion about what kind of evidence we might use to determine that there are, or are not, problems with the current FS NEPA-Litigation process. Another way to see if there are problems is to ask people directly “what are the problems you perceive?”  The EADM Roundtables that the Forest Service conducted a few years ago received much input about the problems people saw, as well as suggestions as to what to do about them.

 

Here’s an op-ed by Jack Smith and Holly Fretwell from last week:

After more than 15 years of delay, the Bozeman Municipal Watershed Project will finally move forward this spring—a victory for the U.S. Forest Service, wildfire resilience, and above all, the people of Bozeman.

And they specify what they see as the downsides of litigation (note, not NEPA):

But litigation has at least three serious downsides. First, it’s slow. And for a city like Bozeman, delays carry a potentially enormous cost. As appeals have played out, Bozeman has continued to face real risk from wildfire, illuminating the need for quicker processes to resolve conflict and develop collaborative forest management solutions.

Litigation also costs the Forest Service, taking time and dollars away from forest management. In a day and age when wildfires consume an ever-larger portion of the agency’s budget, dollars that remain would be most wisely spent getting ahead of wildfire risk rather than defending projects that aim to do so.

Last, the added delays and uncertainty caused by litigation can hold back partners, like the city of Bozeman, who want to invest in wildfire resilience but who need to know what the Forest Service will do in order to plan complementary work.

They acknowledge that litigation had value:

These repeated legal challenges have ultimately deepened the project’s environmental analysis and assuaged concerns about the project’s impacts, particularly on endangered species.

I assume that somewhere along the line, the proposal itself had changed for the better, not just the documentation.

I think we’re all familiar with their first and second points. What I think hasn’t been explored much, though, is the impact of Litigation-Induced-Uncertainty (about time, place, and if at all) on the efforts of other entities. Clearly this has been problematic for people who work in the timber industry, and they have been pretty open about that. But what’s it like to have the Forest Service trying to do something for 15 years for those potentially impacted from fire, sediment, and so on, and other landowners who want to plan what to do?

In a recent report by PERC, Fix America’s Forests, we suggest multiple ways Congress can help the Forest Service avoid long delays without sacrificing litigation’s important role. A good place to start would be to clarify how courts should decide whether to block forest restoration projects while deficiencies revealed by litigation are fixed.

Currently, when a court finds that a project’s environmental analysis is insufficient in some way, it has to decide whether to block the project or to allow it to proceed while the agency performs additional study. Congress could clarify how courts should weigh the risk of delay versus its potential benefits when making this decision. Congress could also require that challenges to forest restoration projects be filed quickly after those projects are approved, giving the Forest Service and partners early notice of whether litigation will affect a particular project.

My bold.. do you think it’s possible to agree that speeding up the process would be a good thing? Is 15 years to plan a 4,700 (?) acre fuel treatment project too long? And if so, what are your ideas for speeding things up?

One more thought: if reducing wildfire extent helps with climate change, and if dealing with large fires is adapting to climate change, then wouldn’t we want to speed up climate mitigation and adaptation if possible?

NY Times: “Climate Change Forces Brutal Choices at National Parks”

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The New York Times today: “What to Save? Climate Change Forces Brutal Choices at National Parks.”

For decades, the core mission of the Park Service was absolute conservation. Now ecologists are being forced to do triage, deciding what to safeguard — and what to let slip away.

Probably available only to subscribers. However, the article has a link to this USF&WS web page on the topic.

NY Times excerpt:

The first one [of Park Service two papers], titled “Resist, Accept, Direct,” aims to help park employees triage species and landscapes. In some cases, that will mean giving up long efforts to save them. The second outlines how to assess risks when relocating species. That may be crucial to saving plants and animals that can no longer survive in their natural habitat.

Those two papers were the basis for the guidance published last month. On the very first page of that document, set over a photo of the charred Santa Monica Mountains after the 2018 Woolsey fire, the authors state that “it will not be possible to safeguard all park resources, processes, assets, and values in their current form or context over the long term.”

Decisions about what to protect are especially imminent for forests, where changes are leading some researchers to wonder if the age of North American woodlands is coming to an end.

In the United States Southwest, for example, research suggests that, in the event of wildfires, up to 30 percent of forestland might never grow back because global warming favors shrubs or grasslands in their ranges. Joshua trees appear likely to lose all of their habitat in their namesake national park by the end of the century.

Response to the Response to the Journal of Forestry Article: “US Forest Service NEPA Fast, Variable, Rarely Litigated, and Declining”

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The following comment was written by Forrest Fleischman and posted here, but I believe it deserves it’s own post, so here it is. Here’s a link to the Fleischman, et al original paper, “US Forest Service Implementation of the National Environmental Policy Act: Fast, Variable, Rarely Litigated, and Declining.”  Also, here’s all the raw data (which the U.S. Forest Service has notoriously—and intentionally?—made nearly impossible to locate, for many years). – mk

Hi Sharon,

It’s an honor to have one’s work being seen as important enough to merit a response. This being said, as the lead author of the original paper, there were two surprising things about this publication.

First of all, in the scientific process, the norm is to inform the original authors of a paper that a critique of their paper is being published, and give them an opportunity to respond in the same issue. We were not given such an opportunity, and this reflects poorly on JOF as a scientific publisher. We learned about the critique the same way you did, I just read this paper yesterday.

Second, we can’t figure out what Morgan et al. disagree with us about. For example, they highlight that the length of time for analysis varies between CEs, EAs, and EISs, which was something we highlighted in our original paper. They highlight some regional differences, and our original paper included an extensive discussion of regional and local differences.

You highlight that they take issue with our statement about Forest Service budgets (which they erroneously describe as “one of our conclusions”). We reported that the number of NEPA analyses was declining over the time period of study, and wrote “This decline is likely related to the combination of flat or declining real budget allocations, retirement of experienced staff without adequate replacements, and increasing fire impacts that divert agency resources away from routine land management (National Interagency Fire Center 2019)” – so we wrote a *clearly* speculative sentence, including declining budgets as one of several well documented issues the agency faces, and cited an *agency* source which discussed these problems (elsewhere in the paper we cite a whole bunch of other sources that document flat or declining agency budgets in the face of rising fire costs). Although we presented this work in language that was clearly speculative, I haven’t found anyone who disagrees with it – including Morgan et al! Morgan et al. look in more detail than we did at the budget and what did they find? Flat or declining budgets (they frame one budget measure as a slight increase but the increase isn’t statistically significant, which is to say, its what a scientist would call no change – looking at the graph presented in their paper, that budget declined through most of the study period, and then had a modest increase in the last few years of data, so even if the increase had been statistically significant, most of our study data was produced in a period of declining budgets).

As far as the data cleaning issues they highlight, give me a break. We spent hours on the phone with PALS people working with them to try to understand the data (and the many data cleaning issues it contains). We spent months cleaning this data before publishing it, and like any good scientist, ran many versions of our analysis using different assumptions about which data were good. Most of the patterns we report are robust to just about any data cleaning assumption. We decided to not analyze the data for ongoing projects because from speaking with the PALS people, we learned that we would not be able to clearly distinguish projects that were discontinued or dropped from those that were suspended from those that were ongoing. Put in other words, since the incomplete projects are ambiguous, analyzing those data are not likely to be very meaningful. According to the people who manage the PALS database, many of the projects that Morgan et al. report having long time frames that are not completed are likely to be projects that were dropped (but were not listed as so in PALS), hence the long time frames. And including the incomplete projects doesn’t actually lead to very different results – as Morgan et al. themselves show. In fact, they don’t point to any data cleaning decisions we made that change any actual results in substantively meaningful ways.

We are debating whether we should write a response to Morgan et al., but its hard to write a response when its apparent that your critic’s analysis almost entirely supports your original analysis. Or to put it in other words, we think Morgan et al. could have written a better paper if they had written it not as a critique of our work (which they don’t really succeed in because their findings aren’t substantively different from ours), but as an addition. I found some of their work interesting on first glance, although I haven’t really been through it in alot of detail yet. For example, the detailed analysis of budgets they did seems valuable (and seems to be consistent with our original story), and its interesting to know that litigation is more common in Region 1 (again, this illustrates a point we made in our original paper, i.e. that there appears to be alot that could be learned by studying regional and forest level variation inside of the agency). We ran numerous analyses, but I don’t recall looking at litigation broken down by region.

There’s lots that can – and probably should be – done with this kind of data. I strongly agree with you that its a shame that the data isn’t collected in a cleaner manner – and it ought also to be openly publicly available – there’s no reason other than a modest investment in building an interactive public-facing web portal – that it can’t be shared openly and in real time with the public. We shouldn’t need a bunch of academics to spend a few months cleaning data when the data should be clean and publicly available in the first place.