NFS Litigation Weekly August 21, 2019

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The Forest Service is now providing these short overviews in their cover email, which serve the same purpose as the summaries I have been providing here, so I’m just going to copy them and add the links to the relevant documents.

Forest Service Summaries:  2019_08_21_Litigation Weekly_Email

Court Decisions:

Timber & Minerals | Region 6

Animal Legal Defense Fund v USA et al Region 6

Animal Legal Defense Fund, et al. v USA, et al. (18-1860, D.OR.) Region 6—On July 31, 2019 the District Court of Oregon issued an opinion and order in favor of the United States in which the Department of Agriculture is a party concerning commercial logging and mineral extraction contribution to climate change. This is the second climate change case that was filed after the Juliana v. United States (15-1517, D. OR., 18-36082, 9th Cir.). The Federal Government urged the district court to restrain “from dictating environmental policy by creating a “right to wilderness” and argued that the plaintiffs lacked standing to bring such a broad claim.”

Litigation Update:

Nothing to report

New Cases:

Recreation | Region 4

Sawtooth Mountain Ranch v USFS_Region 4

Sawtooth Mountain Ranch LLC et al. v. United States Forest Service et al. (19-00118, D. Idaho) Region 4— On August 8, 2019, plaintiffs filed an amended complaint in the District Court of Idaho against the Forest Service concerning plans to construct the Redfish to Stanley Trail (Trail) on the Sawtooth National Recreation Area (Sawtooth National Forest).

Notice of Intent:

Wildlife | Region 1

NOI Neighbors Against Bison Slaughter_Region 1

NOI (dated August 16, 2019 and received August 20, 2019) by Neighbors Against Bison Slaughter (NABS) alleging the Forest Service and National Park Service (NPS) violated the Yellowstone National Park Act (YNPA), National Forest Management Act (NFMA), Multiple-Use Sustained Yield Act (MUSYA), National Environmental Policy Act (NEPA), and Interagency Bison Management Plan (IBMP) by not imposing reasonable restrictions on the migrating and hunting of wild bison in Beattie Gulch on the Custer-Gallatin National Forest (CGNF) — Region 1.

Natural Resource Management Decisions Involving Other Agencies:

Pipeline | Region 8 & 9

Wild Virginia et al v USDOI Region 8_9

Wild Virginia, et al. v. U.S. Department of Interior, et al. (19-1866, 4th Cir.)-Region 8 and 9—On August 12, 2019 the petitioners filed a request for appeal with the 4th Circuit Court of Appeals concerning the Mountain Valley Pipeline on the Monongahela, George Washington and Jefferson National Forests. The petitioners are appealing pursuant to the Administrative Procedures Act, 5 U.S.C. 702, Section 19(d)(1) of the Natural gas Act to review the U.S Fish and Wildlife Service’s Biological Opinion (BO) and Incidental Take Statement (ITS) dated November 21, 2017 for the Mountain Valley Pipeline.

Mining | Region 1

Nez Perce Tribe v Midas Gold Corp Region 1

Nez Perce Tribe v. Midas Gold Corp, et al (19-307, D. Idaho)-Region 1— On August 8, 2019 the plaintiff filed a complaint in the District Court of Idaho against the defendants (Midas Gold Corp., Midas Gold Idaho, Inc., Idaho Gold Resources Company, LLC, and Stibnite Gold Company) concerning the Stibnite Gold Project on the Payette National Forest. Plaintiff’s complaint alleges violations under the citizen enforcement provision of the Federal Water Pollution Control Act (Clean Water Act-CWA). An initial Notice of Intent was sent to the defendants on June 5, 2019

BLOGGER’S NOTE

WildEarthGuardians_v_Weber_19-56_amended_19-056_8-8-2019

An additional document was included with this summary, but was not summarized.  It is an amended complaint filed on August 7 in WildEarth Guardians v. Weber, which is one of two lawsuits filed against the revised Flathead National Forest Plan.  They have dropped their claims of violations of NFMA and the Planning Rule and added claims related to the Endangered Species Act.

BLOGGER’S BONUS

Colville cows

The Maryland-based Center for a Humane Economy filed a suit in King County Superior Court, to prevent the state of Washington from killing more wolves from a pack that is preying on cattle. The Lands Council, a Spokane-based conservation group, said it may be time to move the cattle off of the Colville National Forest.  (However, the Forest Service is not a defendant in the lawsuit.) 

NFS Litigation Weekly August 7th & 14th, 2019

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Forest Service summaries:  August 7 and 14, 2019 Litigation Weekl

COURT DECISIONS

The District Court of Montana denied the plaintiffs’ motion for preliminary injunction to enjoin the Agency from constructing the Porcupine Ibex Trail on the Custer Gallatin National Forest.  Background here, and discussed here.

The Court for the Eastern District of California ruled favorably for the Forest Service on all claims associated with cattle grazing in three livestock allotments on the Stanislaus National Forest.

The District Court of Arizona vacated the Forest Service’s Final Environmental Impact Statement and Record of Decision for the Rosemont large scale copper pit-mining operation within the boundary of the Coronado National Forest.  (According to this article, Federal District Judge James Soto said in his decision Wednesday that the U.S. Forest Service “abdicated its duty to protect the Coronado National Forest” when it failed to consider whether the mining company held valid unpatented mining claims.)

The 9th Circuit Court of Appeals denied the appellants’ motion for injunction pending appeal of the Moose Creek Project on the Helena-Lewis and Clark National Forests under the Healthy Forest Restoration Act (2014 Farm Bill) Categorical Exclusion.

COMING SOON

The Central District Court of California will hear a case against the Cuddy Valley Forest Health/Fuels Reduction Project on the Los Padres National Forest (LPNF), which was analyzed and authorized under a 36 C.F.R. § 220.6(e)(6) categorical exclusion (CE) for timber stand and/or wildlife habitat improvement activities.  More on this lawsuit here.  This is the second project discussed here that is now under litigation.

Western Watersheds sent an NOI claiming the Forest Service is violating the ESA by failing to reinitiate consultation regarding impacts of its grazing management on listed fish (shortnose sucker and the Lost River sucker) and their designated critical habitat on the Modoc National Forest.

 

BLOGGER’S BONUS

In other mining news, state courts in Minnesota have approved the state rules that would allow the PolyMet copper-nickel mine planned within the watershed of the Boundary Waters Wilderness in the Superior National Forest, but blocked the mine itself until it addresses “procedural irregularities.”  In Colorado, the Colorado Court of Appeals ruled companies must reclaim uranium mines that sit idle for more than 10 years.

Researchers: Forest carbon still plentiful post-wildfire after century of fire exclusion

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More information for our discussions of carbon and forests. From Penn State:

“Forests in Yosemite National Park hold more carbon today than they did 120 years ago despite burning in a severe wildfire in 2013, according to a Penn State-led team of researchers.”

Yes, but fires — such as the Rim Fire — burned the large amounts of fuel that accumulated in those 120 years and gave off huge amounts of CO2.

“Fire exclusion has probably allowed a lot of carbon to accumulate in the western United States,” said Lucas Harris, a postdoctoral scholar in Penn State’s Department of Geography. “But in the long term it’s not a good ecological or carbon storage strategy because it greatly increases the risk of the forest burning up and killing all the trees.”

The researchers also found that carbon storage across the research site was evenly distributed in the years before fire exclusion. The fire exclusion policy, however, encouraged the growth of less-fire-tolerant tree species that prefer shade and wetter conditions. These trees shifted the concentration of forest carbon to valley bottoms and areas with wetter soils. The Rim Fire burned less severely in these areas and reinforced the geographic shift in forest carbon storage.

“Thinking about carbon storage in terms of where it actually is at the landscape scale is meaningful if you want to manage for carbon storage going into the future,” said Harris. “For a land manager looking at where they might want to use a prescribed fire to reduce surface fuels, or where they might want to go through and thin the forest to reduce fire hazard, having this spatial perspective can be really valuable.”

The Cult of the Line Officer. I. Line Officers in the Forest Service and Their Cultural Importance

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Joan Friedlander, former District Ranger of the Palomar Ranger District on the Cleveland NF

We’re at a bit of an intersection between discussing the proposed NEPA regulations, and a discussion on the role of political appointees and career folks in policy development. But let’s go back to Sam Evans’ op-ed in the NY Times:

But under the Trump administration’s proposal, a host of potentially harmful projects — including timber sales of up to 4,200 acres (about 6.6 square miles), construction of up to 5 miles of roads, and permits for pipelines and fracking pads — would be approved without public involvement.

Sam assumes that if it’s not specifically required, line officers, in this case District Rangers for the most part, won’t do any public involvement (even using a 4200 acre CE). As a person who worked in NEPA in DC and in Region 2, my experience is that generally District Rangers wouldn’t do that. Which I think leads me to an important point, especially for externals. In the Forest Service, there is a cultural inclination not to overrule the local line officer, and I think we need to understand the cultural context of line-officerhood before we can project any real world impacts from a change in regulations.

After ten years of discussing the Forest Service on The Smokey Wire, it’s high time we talked about this aspect of Forest Service culture. I’m hoping that others will volunteer posts about different aspects of line officer-hood, including their own experiences- that’s why I’m calling this The Cult of the Line Officer I. Now, you might say that this is really “The Cult of the District Ranger,” and we can talk about what that might mean also. I’m particularly interested in thoughts from those of you who have had line responsibilities in both the Forest Service and the BLM. In my career, I spent a great deal of time trying to convince people that folks from my staff “had what it takes” to be a line officer when that was their career goal; and I’m still not sure I get it. Hence this discussion.

Why am I calling these posts “The Cult of the Line Officer”? I am using it in the sense of the “derived sense of “excessive devotion” arose in the 19th century.”(Wikipedia) I don’t know if it’s actually excessive, but that’s something we can talk about.

There are almost metaphysical elements of caring and responsibility for a particular piece of land. There is the responsibility for people’s safety and lives, and being the person who speaks to the family if there has been an accident. I’m sure that there have been people who have written beautifully about what this means for them, and culturally for the Forest Service. I’m hoping people will post these expressions below or attach links.

The other side, though, is that for some to have that unique role, other roles are, at least to an extent, considered “less than.” Let me tell two stories that illustrate this.

First, in about 1981, we had a Women in Timber meeting in Region 6. It was held at Hood River, and I remembered two things. First was that the Timber Director said that women could never be sale administrators as the contractors would not respect us. The second was that the women in line had a separate meeting. As I remember, there were only two, and one was a nursery manager (still line, but not quite as OK as being a District Ranger). As a relative newbie to the Forest Service, I didn’t quite get it.

Second, (I’ve told this story before), when I worked in Region 5 during the Consent Decree, we had to have a Consent Decree Action Plan as part of our performance. Since we didn’t have many women in line at the time, I came up with the idea of having a field course to teach women in administration all the things they would need to know so that they could become District Rangers.
I was thinking that some natural resource courses from a university would do it, and perhaps more importantly, history and culture. For me it almost bordered on mysticism. This was when the RO called me and told me to stop talking about it, as it might give those administrative folks “ideas.”

Finally, the question “do we expect too much from these human beings, and how has that changed over time?” One story. At the Retiree Rendezvous in 2012, I happened to attend a session on fire. Many of the retirees were conveying to Tom Harbour, the WO Fire Director, that they believed that every line officer needed to have fire experience. This seemed to me not remotely practical and I tried to break in to say so, but the other retirees at this meeting were very adamant.

So three ideas to riff on:
What is that exactly that being a line officer means? Yesterday, today and tomorrow?
Is it just a mid-level manager in the government, or something more culturally or metaphysically resonant?
We depend on their judgment calls to “care for the land and serve people,” are they up to it?
Are (internal and/ or external) expectations too great for these positions? (E.g., liked externally and internally, inspiring, make wise decisions, and so on..)

Proposed NEPA Regs III. How To Comment – Comment Period Extended To August 26th!

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It’s easy to comment. Go to the webpage and click on the “comment now!”
Let’s review what the Proposed Rule document said about comments on the ANPR (Advanced Notice of Proposed Rulemaking) said about those comments.

The Agency published an ANPR on January 3, 2018 (83 FR 302). The Agency received 34,674 comments in response to the ANPR, of which 1,229 were unique. Most of the unique comments expressed support for the Agency’s effort to identify efficiencies in the NEPA process. The unique comments in support of the ANPR all generally acknowledged that there is room for increased efficiency in the Agency’s NEPA process. Some of these comments expressed unqualified support for increasing efficiency; other comments supported the Agency’s goals, but included caveats that these gains should not come at a cost to public involvement or conservation of natural resources.

There were three form letter campaigns in response to the ANPR. Approximately 33,000 form letter comments came from two form letter campaigns, which urged the Forest Service to reject any proposal to weaken the Agency’s NEPA process. The Forest Service received about 600 comments from a third form letter campaign in favor of the Agency’s efficiency goals as stated in the ANPR. The Agency will not regard form letters as ‘‘votes’’ as to whether the proposed rule should go forward.

1200 unique letters may sound like a lot, but my experience with content analysis is that it does provide an opportunity to get your ideas before the people making the decision. The way this usually works is that some group analyzes comments by what they’re about (which part of the proposed regulation), and then staff go in to brief the decision maker, who is likely to consult with interest groups of various kinds, and then makes the calls. If lots of unique letters suggest a change, that is data that may well go to the decision maker.

The more general “don’t cut the public out” “don’t weaken NEPA” are probably not as helpful as recommendations for specific changes. Even people who don’t want category 26 for example, based on wanting more public involvement or analysis, could ask for exactly what about public involvement or analysis they think is missing, and how to bump it up (notice and comment? require the appeal regs apply?). That’s what I tried to do for category 26. Asking the agency to drop the proposal is probably not as helpful.

Here is the link to submit your comments. They are due August 26th, so we have time for more discussion and suggestions. It’s really simple to do, they could listen to you and make a better decision from our comments. I encourage you all to consider doing it, at least for one or two issues of concern or support. One more thing, re: any vitriol about the Forest Service or the Administration. The human being reading the comments doesn’t have any power either and the people with the power generally won’t be reading the comments directly (as opposed to summaries). If you don’t find the argument “don’t say mean things” compelling, remember that taxpayers share in paying for federal employees’ stress as part of their health benefits.

Finally, if you find an interesting idea in other comments you see, again, feel free to post it below.

Proposed NEPA Regs: II More Things We Might Agree On and More Ideas For Comment Letters

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Many of you know I worked on developing category 12 when I worked in NEPA in DC. So let me say that the background papers that describe the rationale for the new categories,were really well done, and I think the people who wrote them did a terrific job. much better than we did 15 years or so ago.

(2) Category 17. However, an associate noted that the same degree of background was not given for Category 17 (Approval of a Surface Use Plan of Operations). The way the “adjacency” is written also seems to open the category up for possible CE abuse. Finally, my colleague pointed out that BLM does not have this category. I’d recommend dropping this category.

(3) Better SOPAs and contact capabilities. We discussed this before, but stakeholders and the Forest Service, in this day and age, ought to be able to design something an app (Zillow like?) so that Forest Service folks wouldn’t have to try to guess what the best outreach methods are when some people don’t read newspapers, some don’t have internet, and so on.

(4) Public accountability, transparency and access to information about NEPA efficiency. To get better public support, we all need to work off an open source of information (not FOIAs). I’d recommend that the FS implements a tracking mechanism that summarizes projects, including initiation,types of NEPA documents used, Forest/Region, objections, litigation, and ultimately when the project is completed with links to monitoring. This is not a glamorous or partisan idea (it’s definitely more work than giving the public access to PALs) but maybe if many commenters suggested it?

(5) Determinations of NEPA adequacy. You may like them or not (BLM uses them) but the second sentence “new project and activity decisions made in reliance on a DNA shall be subject to all applicable notice, comment, and administrative review processes.” It isn’t clear to me whether “applicable” refers to the original decision. If it is an EIS, you would have to do all the notice, comment and appeal required for an EIS. I’m not sure where that all leads. I prefer what the BLM says in their Handbook, that if the new project was not discussed in the previous proposed action, more public involvement is necessary at the discretion of the decision-maker.

(6) Mileage limits for including roads. I liked the Rocky Mountain Elk Foundation’s “RMEF asks USFS to consider inclusion of appropriate mileage maximums (limits) for conversion of unauthorized trails (e)(23) and unauthorized roads (e)(25), as is proposed in CE(e)(24).” (from their comments).

(7) New outfitter guide permits should have case file and decision memo? There are “categories of actions for which a project or case file and decision memo are not required (but may be prepared).” Most of there are purely administrative or clerical changes with no new or different environmental effects. However (12) says “issuance of a new authorization or amendment of an existing authorization” for activities”on existing roads and trails.. or in areas where activities are consistent with the applicable land management plan.” Examples include outfitting and guiding permits for mountain biking, and back country skiing. It seems to me that new uses like these should instead fall under (e) categories of actions for which a project or case file and decision memo are required.

(8) Clarify “non-commercial timber harvest”. OK, I get that it is in “old” category 14, but still, commercialness is not an environmental factor. If the issue is dragging the tree-parts offsite, then say “tree cutting with or without removal from the site.” Coming from an area where many trees are not commercial, calling tree removal a “harvest” when they may be removed and burned in piles, seems like it doesn’t accurately portray what’s going on.

Others are welcome to add ideas of their own, or from other comments or additions or critiques of the above. Please don’t include the whole comment letters, just ideas that you think are helpful.

Proposed NEPA Regs: Things We Might All Agree On? I. More Public Involvement Requirements For Some Categories

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In this post, we talked about the FS reducing public involvement with the new regulations. But then as we explored the actual current NEPA regs in this post, we found out that removing the scoping requirement appears to mean that the change to the regs goes from
https://www.law.cornell.edu/cfr/text/36/220.4

(e)Scoping (40 CFR 1501.7).

“(1) Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§ 220.6).

(2) Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed.

(3) The SOPA shall not to be used as the sole scoping mechanism for a proposed action.”

I’ll call the old regs, notification = SOPA plus one.

(d) Scoping and public notice. Minimum requirements for scoping and public notice are listed below, except where specified by applicable statutes or regulations (for example, 36 CFR part
218). Additional public involvement is at the discretion of the local responsible official.
(1) The Forest Service will publish to the Schedule of Proposed Actions (SOPA) all proposed actions that will be documented with a decision memo, environmental assessment, or environmental impact statement. The local responsible official shall ensure the SOPA is updated and notify the public of the availability of the SOPA.
(2) Scoping is required for all Forest Service environmental impact statements (40 CFR 1501.7)

The new regs are Notification=SOPA

This doesn’t actually answer any questions about changes to “public involvement”. A minimalist might still not do enough notification under the previous reg (SOPA plus one) if they pick the a suboptimal “plus one,” say, a newspaper people don’t read, or a homeowner’s association Facebook page.

Now if changing projects that otherwise would be EA’s to CE’s gets rid of the notice, comment and appeal requirements for EA’s and that’s the problem, that’s indeed a different kettle of fish. But that is only relevant to the new categories.

As Sam Evans says in his op-ed “Under current law, new roads and all but the smallest and least consequential timber sales require, at a minimum, advance public notice and the opportunity for the public to comment and suggest improvements.” He seems to be saying that categories 12, 13 and 14 are OK (well, they were also litigated at the time), but 4200 is a bridge too far. The legislative CE’s require collaboration, and the case law for what that means is being established.

I would argue that if that is the concern, write in and say “I think that new categories 24, 26 (and others) should have required public notice (SOPA plus one as old regs), plus a minimum 30 day comment period on a proposed action defined in enough detail for reasonable public comment.” (I’m sure there are more appropriate legal terms).

Next post: Other comments we might agree on.

ClimateWire: Forest Service lets blaze burn in Ariz. A new era?

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The article is here. I think it’s public. Quotes Andy Stahl.

The Forest Service is letting a wildfire burn near the Grand Canyon, and fire experts are thrilled.

Officials are allowing the Castle Fire to burn roughly 19,000 acres of Arizona’s Kaibab National Forest, saying the fire will clear out dead vegetation and make the ecosystem healthier. Experts applauded that decision, saying it’s an overdue pivot from the agency’s history of heavy suppression.

“The Forest Service has been slow to make that transition, and even slower to talk about it,” said Andy Stahl, executive director of Forest Service Employees for Environmental Ethics.

As climate change exacerbates fire weather, officials are also grappling with the 20th century’s legacy of aggressive suppression. The absence of fire left forests overloaded with fuel, meaning future blazes would be more intense. Some experts call it the Smokey Bear effect.

The Forest Service is backing off full-scale suppression, Stahl said, but officials have been reluctant to communicate that until now. Public pressure to extinguish fires anywhere near settlements remains strong.

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The Forest Service has highlighted the fire’s ecological benefits throughout the blaze, something observers say used to be an afterthought.

“The fire has burned through … a significant amount of dead and down trees and some mixed conifer species. By allowing the wildfire to naturally burn through this area, the ecosystem will become healthier and more resilient,” the agency said in a news release.

Wood Pellets, Southern Forests, and Bottomland Hardwoods

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Enviva’s wood pellet production plant in Ahoskie, N.C., is booming because of the European Union’s aggressive renewable and low-carbon policies. Wood pellets are co-fired with coal to lower the carbon footprint of electricity. Photo: Enviva.

This is a follow up to a previous discussion about wood chips and the Southeast, including “logging and draining wetlands”. I found an interesting article from TreeSource. The author is Marcus Kauffman of the Oregon Department of Forestry. There’s quite a bit about the carbon angle and how that relates to wood pellets from the SE.

The author quotes Dr. Bob Abt of NC State:

A growing body of research shows that using low-value trees for bioenergy drives up the value of forested ground, which leads to increases in forest cover. Call it the price effect – or the classic principles of supply and demand at work.

“It’s the fact that when you’re increasing prices to landowners, that kicks in all the benefits that you need on the carbon side,” Abt said. “When prices go up, forestry becomes more profitable and there’s actually more trees on the landscape because of that extra demand.”

Abt explained that marginal land in the South fluctuates between agriculture and forestry. Landowners seek the use that will yield the best return.

The South has a long history where as demand increases for wood, forest land increases and with it intensive management, said Abt. “It’s been empirically shown in the South that increased demand for trees leads to more trees on the landscape.”

But then the article talks about the possibility of cutting trees where they otherwise wouldn’t be cut, in sensitive areas:

But does the price effect cut both ways? Do higher prices push ecologically sensitive lands to market when they would be better off left intact? Demand for wood pellets can lead to increased forest cover, but can it also lead to the destruction of valuable habitat?

That is the critique leveled by environmental groups concerned with protecting the Southeast’s bottomland hardwood forest, a unique forest type valued for its beauty and biodiversity.

“Intact bottomland hardwood forests are really cool,” said Amanda Mahaffey, Northeast region director for the Forest Stewards Guild. “They’re just beautiful primeval systems when they’re intact. When you lose them, then that’s really different. It’s a different visceral effect than harvesting a pine plantation.”

According to information provided by Enviva, in the first half of 2017 bottomland hardwood forests provided just 3 percent of the company’s supply. The remainder came from pine/hardwood forests (38 percent), southern yellow pine forests (31 percent), mill residuals (sawdust, shavings and chips) 21 percent, 6 percent from upland hardwood forests and less than 1 percent from arboricultural sources (urban tree trimming).

In response to concerns from environmental critics, Enviva partnered with a broad range of stakeholders to convene the Bottomland Hardwood Task Force and charged it with implementing ways to improve its sourcing from bottomland forests.

“I think Enviva was looking to improve their understanding,” said Mahaffey. “How could they be better forest stewards and help to sustain the resource while they are extracting from it? They are in it for good. They’re trying to sustain a renewable resource and lower the overall carbon output.”

For Enviva, the task force shifted the company’s procurement process from macro to micro – enabling managers to make better decisions about where to source raw materials and how to protect sensitive lands.

“As we evolve, we’ve moved from a macro-policy of simply avoiding sensitive lands to a much more micro-controlled process – land by land, tract by tract, GPS coordinate by GPS coordinate strategy to ensure we can actually influence outcomes,” said Meth, the vice president at Enviva. “We go to the micro-level [with the landowners] and sometimes we find areas that are literally along the river. The best outcome is not to harvest those lands and provide compensation to the landowner.”

The U.S. Endowment for Forestry and Communities helped Enviva identify which sensitive bottomlands should be taken out of production via a conservation easement.

“For me personally, when you realize there’s a gap you are obligated to take a leadership position,” Meth said. “We have been heavily scrutinized and we intend to stay in those areas a long time. As leaders in the industry, we needed to bring people together and seek the knowledge that will create better outcomes.”

The company launched the Enviva Forest Conservation Fund in December 2015. During the first two years of the partnership, the fund committed $1 million to seven projects that, when completed, will protect 10,500 acres of sensitive wetland forest and other valuable habitats.

Clearly, forests and wood energy are playing important roles in our low-carbon future.

How Does The Forest Service Scope Today, and What is Required? : Draft NEPA Regs

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I’d like to thank Susan Jane Brown, Anonymous, and others for engaging deeply and thoughtfully on the proposed NEPA regs. They’ve brought up many good points, which I’m going to try to separate into different threads. This one is about scoping. I’m hoping we can all get on the same page about what is required by the current scoping, and what practices are actually used.

One of the main talking points against the proposed reg is reducing public involvement. So we can look into exactly what happens now, and how that might change. I found this helpful information in the Forest Service (2012) NEPA Handbook. Note: my understanding of why the Forest Service developed their own NEPA regs in 2008 was so that they would have more legal oomph. The Forest Service’s sister agency in multiple use, the BLM, does not have NEPA regs but operates from a Handbook.

Here’s what the Handbook says about scoping:

Although the Council on Environmental Quality (CEQ) regulations require scoping only for environmental impact statement (EIS) preparation, the Forest Service has broadened the concept to apply to all proposed actions. Scoping is required for all Forest Service proposed actions, including those that would appear to be categorically excluded from further analysis and documentation in an EA or an EIS (§220.6). (36 CFR 220.4(e)(1))

A reasonable argument could be made that (all) other agencies scope without it being a requirement. Agencies like the BLM, for example. So the idea that the Forest Service would never scope without the requirement seems, to me, to be unlikely. Why did the Forest Service decide to do this when no other agencies do? Maybe someone out there knows that history and would share their knowledge.

So what does the scoping requirement require exactly? Here’s what the Handbook says:

The process of scoping is an integral part of environmental analysis. Scoping includes refining the proposed action, determining the responsible official and lead and cooperating agencies, identifying preliminary issues, and identifying interested and affected persons. Effective scoping depends on all of the above as well as presenting a coherent proposal. The results of scoping are used to clarify public involvement methods, refine issues, select an interdisciplinary team, establish analysis criteria, and explore possible alternatives and their probable environmental effects.

The methods and degree of the scoping effort undertaken for a given project vary depending on scope and complexity of the project (see the CEQ scoping guidance).
Scoping shall be carried out in accordance with the requirements of 40 CFR 1501.7. Because the nature and complexity of a proposed action determine the scope and intensity of analysis, no single scoping technique is required or prescribed. (36 CFR 220.4(e)(2))

Selection of scoping techniques should consider appropriate methods to reach interested and affected parties. For example, a project with potential localized effects to a small community might consider posting fliers at locations where they are likely to be seen.

This is all very interesting, as when CEQ talks about scoping, they are not thinking about the Forest Service, but are thinking about EIS’s, so it is the first step of a very long and complicated process with lots of requirements (doing an EIS).

At the same time, there don’t seem to be any specific requirements in the Handbook, other than “no single scoping technique is required or prescribed.” If it is “use your common sense” then what difference does it make to have the requirement? Note: I could argue this either way, if there’s a requirement to “use your common sense” versus just “using your common sense.”

(1) I could argue that having the requirement is suitably innocuous, so why get rid of it? How many court cases have there been about scoping? (I have no idea). The other point of view would be “why have an extra requirement that no other agency has?”. I couldn’t tell what the rationale was from the discussion on page 27545 of the proposed Rule, so we can only assume that it was to simplify the requirements. While this has been portrayed by some as being about “more logging” there are many CE’s that are much less likely to cause concern (and some, like the oil and gas one that we seldom hear about in op-eds) that might cause more concern.

(2) Given that, one could have another alternative in which scoping could be kept for some subset of CE’s, especially the new restoration CE (26) since the 3000 acre legislative CE’s require collaboration.

(3) It seems to me that there are solutions that could actually be better than just scoping. It seems like the idea of putting a project on the SOPA, with a name to submit comments to is seen to be not enough, but I think it may be just right for something like “shoulder widening or other safety improvements within the right-of-way for an NFS road.” But maybe the whole SOPA could be made more user-friendly. For example, people might fill out a form so that they could be notified of all projects and an email sent to them. And it might be handy for regional or national groups for this to be made so that they could sign up for all the relevant forests. We discussed these kinds of things about 15 years or so ago when the E-gov initiative was going on and the PALS database developed. It makes sense to me that notification and commenting could be streamlined and that responsibility for giving input could be shared somehow between the agency and interested parties.