Separation of Powers in Action: The Cottonwood Fix

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Indeed, the idea of separation of powers among judicial, legislative and executive branches in the US is intended to provide checks and balances. This one (the Cottonwood Fix) is a little hard to figure out unless you are familiar with the details of how ESA is carried out, that is, consulting and reconsulting on plans and projects. I used the description from an AFRC attorney in his Congressional testimony here. As always, others are free to post their own perspectives. Shorthand.. Circuits disagree, Executive branch asks Supremes, they decline and Congress fixes.

According to Fite, the fix was bipartisan

“It is no surprise that this common-sense legislation has attracted the support of lawmakers from both parties, from state and local governments, and prominent environmental groups including Trout Unlimited and the National Wildlife Federation. AFRC offers the strongest possible support, as do many industry groups including Intermountain Forestry Association, Montana Wood Products Association, California Forestry Association, and Federal Forest Resource Coalition.
In brief, S. 605 will allow projects to move forward under existing forest plans if an appropriate plan-level ESA consultation is completed. It will eliminate any requirement for the Forest Service or Bureau of Land Management to reinitiate consultation due to new ESA listings or critical habitat at the plan level—and only at the plan level. The bill does not change existing law regarding applicable requirements to consult on individual projects, new forest plans or plan
revisions. The Ninth Circuit requires consultation on new plans, while the Tenth Circuit does not. S. 605 leaves this circuit split in place.

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The Obama Administration, including Secretary Vilsack, asked the Supreme Court to review Cottonwood in 2016, but was denied. That fall, the Forest Service began the arduous process of consulting on 11 National Forests and more than 35,000 square miles of lynx habitat. This July, the Forest Service completed its biological assessment—the first piece of the consultation process. It is unclear when a biological opinion will be complete at the plan level. Then, project-level analyses will have to be reviewed against the plan-level opinion. This process will not be completed in 2017 and will likely stretch well into the 2018 forest management operating season. Of course, each step will be subject to multiplying lawsuits and injunctions.

Since nearly every forestry project already undergoes ESA consultation, this plan-level exercise has no real conservation benefit. A plan-level analysis generally assesses an amount of specieswide impact that is sustainable. Projects can proceed as long as their impacts fall within the plan-level approved impacts. When a project is evaluated without plan-level clearance, there is no such buffer for the agency to rely on. Therefore, ESA consultation at the project-specific
level is likely to be more conservative.

S. 605 simply and directly fixes Cottonwood. It provides that re-initiation of plan-level consultation is not required due to a new species listing or critical habitat designation. It does not affect any applicable requirement to consult on a new plan or a significant plan revision. The bill applies to both the Forest Service and the BLM, which each manage significant forestlands.

Steps to Fixing the Forest Service Harassment Problem: Chief’s Phone Call Transcript

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Here is a link to the transcript of the all-staff phone call. Christiansen talks about her background and experience, and also what she is looking toward in the future for the Forest Service. It’s interesting for those reasons (and the fact that the Department is planning to get an Undersecretary sometime). There is a discussion with others about what the Forest Service intends to do about sexual harassment and some questions.

I think that they are right on the fact that it is an ongoing problem and will take an ongoing focus and pressure through time, and I think they are the right people and this is the right time. Based on the phone call, I would add a few twists:

(1) To fix it, we need to know where it’s a problem and understand predisposing factors. Let’s face it, most of the examples in the news stories are in Fire. Fire is a separate subculture in the Forest Service. A heat map is good, but a heat map that includes location and staff area would be better.

(2) On the call they mentioned a few outside groups including NOAA. Since Fire is a thing, they really need to bring in the other Fire agencies because FS people interact with them, and because agencies like the BLM are working on the same problem. I would say “know what they are doing, work together, but don’t wait for them.”

(3) And the most relevant people again, because we have to say Fire is at least part, and potentially most, if the problem and fire tends to have a militaristic tone, then work with the military and see what they are doing and how it has worked.. or not. Learn from them. Even if there weren’t a connection to Fire, the military has had ongoing problems in this area (including assault) and has had very smart dedicated people working on it. For example DOD has an entire Sexual Assault and Prevention Office.

(4) Absolutely, the first line supervisors need support in dealing with these problems, as one of the people on the call asked. They need to trust that those people they are asking for advice are not random people assigned by unknown entities who might make things worse. That element of trust is crucial.

(5) IMHO the questions in the previous (OIG) survey were haphazard and not directed at useful kinds of information. Use consultants, and your own high quality cadre of social scientists (who also have skin in the game over time) to figure out what needs to be asked, and how to ask it to get the answers you need to manage into the future. Run the draft survey questions by a variety of people.

(6) Post to the public what you are doing and develop annual reports, so employees and outside folks can track patterns over time. This will help the agency not lose focus when the next alligator biting its rear lunges onto the scene.

To relate to some of the issues in the military, here’s an example from the 2017 Service Academy Gender Relations Focus Groups..

Cadet and midshipman focus group participants primarily discussed a form of retaliation known as ostracism. Ostracism involves exclusion from social acceptance for making a report or intending to report protected communication, such as a sexual assault allegation. Fear of ostracism may be acute at the MSAs, since many focus group participants noted that cadets and midshipmen rely on the help and camaraderie of classmates to graduate.
Cadets and midshipmen students were also concerned that rumors of involvement with a sexual assault case could harm their careers and follow them in their future roles as officers. Due to the Academies’ small size, rumors travel quickly via word-of-mouth and victims are concerned about loss of anonymity.

Info Request: Language/Analysis of Omnibus Appropriations Bill

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Steve started with this post. I’m sure that somewhere, someone, in fact many people are paid by their employer to follow this and write an assessment for their members. This thread would be a good spot to collect them, and we can look at a variety of perspectives and discuss them.

Please post links to the relevant language (not the whole bill) and any analysis thereof. If you have a document, email me and I will upload it. Thanks to all!

Elder Care Works: Guest Post from Alan Baumann

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We’ve talked about the People’s Research Priorities before on this blog, but this is the first time we’ve posted research prioritized, funded and carried out by a member of the public here. The author, Allan Baumann graduated from O.S.U. in 1979 in Forest Management. He worked with O.S.U. researchers, the F.I.R. project and then on the Umpqua NF for 31-years. He held a variety of roles in Silviculture, Fire Ecology, Timber Pre-Sale and Sale Appraisals and research. Perhaps this fits into the category of “Seniors are doin’ it for themselves” to paraphrase the Eurythmics song.

The Stand:

Lynx #1 is a 3.64 hectare (9-acre) partially-harvested stand with light-moderate entries in 1976 and 1996. It is an average Site Class Four quality stand. The stand is at about 1,000 meters elevation (3,300 feet) and is located on Panther Ridge above Steamboat, Oregon. There are three main age classes of old-growth present in the overstory: 150-175 years, 300-350 years, and 500+ years of age.

The Growth:

Similarly, the average tree weight increased from 3.13 to 4.17 Mg_Tree, while the average tree increased its diameter by 3.56” over the 40-year period. Remarkably, 89% of the 440 live-trees measured exhibited moderate-fast growth rates following both stand entries at 20-year intervals. At its current growth rate, the 440 live old-growth trees will “grow back” carbon, totaling what was removed by harvest in 1996, by the year 2020. There was 550.7 Mg_Ha of biomass measured before
harvest in 1996. The partial removal in 1996 led to a 15% reduction, or removed 84.2 Mg_Ha of biomass. In 2016, there was 538.64 Mg_Ha of biomass measured in the old-growth trees in Lynx #1; with Lynx stand #1 actively growing at 3.62 Mg_Ha per year.

Older Trees Grow Differently:

Furthermore, it is key to understand that old-growth trees seemingly grow differently than young-growth. The study measured key structural attributes like bark thickness, limb diameter, crown form and noted any visible tree pathogens like conks, fire scars, broken tops or multiple tops. Conventional young-growth thinking is that key crown structural form is important for adequate tree development; e.g. having crown ratios greater than 40% for Douglas-fir and not having a one-sided form.

In testing these hypothesis against the Lynx old-growth some interesting results were found. These might influence future forest management for improving the resilience, health and sustainability of these valued genetic-legacy trees of the forest. An in-depth look at one-sided crown trees found that while 24% did have poor growth rates, 76% had moderate or fast growth rates. Testing trees with less than 20% crown form found only 13% growing poorly, while 87% grew moderate-fast over the 40-year period. Testing trees with both poor crowns and one-sided structure, found that 23% had poor growth and 77% had moderate-fast growth rates.
Further analysis was done on trees with visible conk indicators. Fifty-one (51) trees with Phellinus pini were measured and while 26% had poor growth rates, 74% had moderate-fast growth rates. Six (6) trees with Phaeolus Schweinitzii were measured and 33% had poor growth rates and 66% were unexpectedly growing moderate-fast. Implications for this additional growth are not normally considered.

Lynx #1 white paper finala link to the entire white paper.

Here are some caveats from the author:

It is important to know that my study only followed the 471 old-growth trees in the 9-acre stand. There is a healthy intermediate layer in this all-aged stand with a 90-year cohort and now a 20-yr and 40-yr. cohort after two light partial harvests. These were not measured or factored into any carbon calculation for my paper, though it would be very interesting to sample and tabulate.

I have been asked to go back and get 50 trees as a control in an untreated area nest to this stand. I plan to do that this year and then recalculate their carbon sequestration over the same time frame given the proximal site and weather conditions.

“Long-time” forest supervisor

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I noted this article in an Oregon newspaper, “Siuslaw National Forest supervisor moving on”. States that “The longtime head of the Siuslaw National Forest is leaving next month to take a promotion, the U.S. Forest Service announced on Thursday.

Long-time?

Jerry Ingersoll, who has been forest supervisor on the Siuslaw since March 2010, has been tapped to become the deputy regional forester for the agency’s Alaska Region.

Eight years doesn’t seem like a long time, but for the USFS maybe it is.

OSU study: Carbon benefits in forest management change

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OSU press release: “CORVALLIS, Ore. – Oregon could eliminate an estimated 17 percent of carbon emissions from its forest ecosystems in the next century by increasing the amount of forested area and lengthening times between harvests, according to a new study from the University of Idaho, Oregon State University and EcoSpatial Services LLC.”

The full text of the study is online and free, from the Proceedings of the National Academy of Sciences.

The authors consider substitution:

“While product substitution reduces the overall forest sector emissions, it cannot offset the losses incurred by frequent harvest and losses associated with product transportation, manufacturing, use, disposal, and decay. Methods for calculating substitution benefits should be improved in other regional assessments.”

Info Request: Proportion of Women in Firefighting Agencies?

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One of the things we do on this blog is help journalists find information.. I had a request..

Here’s an article from Outside Magazine:

But firefighting is still a men’s club, and for many women in the trenches, little has changed. Women make up 39 percent of the Forest Service’s workforce, but hold just 11 percent of permanent wildfire jobs. In other agencies that fight fire—the Bureau of Land Management, the National Park Service, the Bureau of Indian Affairs and the U.S. Fish and Wildlife Service—the figure is as low as 6 percent. Even the U.S. military has done a better job of recruiting and retaining women.

What is a current source for data from the Interior Agencies number of women in firefighting? Answers can be posted here or sent to my email. As an aside, I wonder what are similar numbers with state agencies, including CalFire?
Also, are there figures on temporary employees compared to permanent employees?

Thanks, all!

FS Announces New Approaches For Fighting Sexual Harassment

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Anit-harssment workshop July 2017 at Albuquerque Service Center

This PBS News Hour is worth reading in its entirety.

The U.S. Forest Service is implementing what it’s calling a 30-day action plan to address harassment, sexual misconduct, and retaliation in the agency.

The changes come weeks after a PBS NewsHour investigation into these issues, especially in the agency’s firefighting ranks, along with the departure of Forest Service Chief Tony Tooke amid allegations of his own sexual misconduct.

Interim chief Vicki Christiansen announced the plan on an all-staff call last week, and in an email to staff Wednesday. Recent news reports, she said, had “focused a bright light on a problem the agency has been combating for years” and “made it painfully clear that the policies prohibiting such behaviors are not enough.”

A transcript of the call was given to the PBS NewsHour by two Forest Service employees.

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Additionally, Lago announced there would be an agency-wide workplace survey to look at employee perceptions of sexual and non-sexual harassment. In January, the Forest Service released a survey of harassment in the agency, but it looked only at Region 5, or the state of California, an area whose issues were the focus of a congressional hearing in December 2016. The Forest Service has never done a national survey of the problem, as the National Park Service did after similar issues were reported in its agency in 2016.

Lago also announced the creation of a heat map tool to identify particular problem areas, an employee code of conduct called “This Is Who We Are,” and standardized harassment trainings for employees.”

I will post the transcript on this blog in another post.

A couple of points: I think the survey on sexual and non-sexual harassment is good because plenty of people feel harassed for various reasons and it needs to be explored in depth. I also think the heat map tool would be great at helping to understand patterns and causes. I’m a little surprised at the assumptions that folks are making that these approaches are not enough and won’t work, since they have not yet been tried. One commenter on the News Hour story didn’t think a heat map would be useful.

Retired Forest Service firefighter Jonel Wagoner, who joined the Forest Service in the 1980s and alleged decades of harassment based on her gender, said she was skeptical of the “soundbites and fed-speak” she heard on the call.

“More training, more promises to hold people accountable … None of that has helped to change the culture to date,” Wagoner wrote in an email. She and other longtime employees recounted years of harassment and retaliation in an interview with the NewsHour.

f I were Chief, I would get retired Employee Relations folks in a room and ask them what they think would work. For example, I wonder if centralizing HR contributed to a de-emphasis on working on tough personnel problems on districts and forests. I know when I filed a grievance, being able to go down the hall to those folks (in the RO) made a big difference. I also wonder whether there should be a more formal approach to reach out to retirees and discuss our experiences, and what worked and didn’t. But it’s ultimately up to the people working today to figure this out and make it happen.

Here’s a link to the information on the efforts they were developing last July.

Omnibus Bill Forestry Provisions

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Just received a press release from the Forest Resources Association:

Omnibus Legislative Overview- (Passed House awaiting a Senate vote and the Presidents signature)

H-2B Cap Relief

 We have succeeded in attaining nearly the same language as last year related to raising the cap of the H-2B program.

·         The bill allows the Secretary of Homeland Security, in consultation with the Secretary of Labor, the authority to raise the H-2B cap when he determines that there is an economic need. 

·         It limits the total number of H-2B workers to that may enter the U.S. during fiscal 2018 to 129,547, the number of new and returning H-2B workers admitted to the U.S. in fiscal 2007(the highest year).

·         Once the bill becomes law, we must work with the Administration to encourage the Secretary of Homeland Security to implement this provision more quickly than last year and to consider authorizing a much larger number of visas than they did last year. 

Fire Funding/Federal Forest Management Reform

 ·         The $1.3 billion FY 18 omnibus spending deal includes provisions that would establish a fund of more than $2 billion a year, which would increase modestly over a 10-year period. The fund could be tapped when the cost of wildfires exceeds the 10-year average cost of wildfires, which would be set at the 2015 level — an approach pushed by Sens. Ron Wyden (D-Ore.) and Mike Crapo (R-Idaho).

·         That arrangement wouldn’t take effect until 2020, however, meaning current law would remain in effect through 2019.

·         On the forest management side, the deal includes categorical exclusions from the National Environmental Policy Act (NEPA) for hazardous fuels reduction on areas up to 3,000 acres. Lawmakers also opened the way to more 20-year stewardship contracts, in which the Forest Service collaborates with states on forest management projects.

·         Timber companies would also see an easier process for repairing and rebuilding access roads in some areas of national forests.

·         The agreement also includes language to limit the effect of the 9th U.S. Circuit Court of Appeals’ 2015 ruling in Cottonwood Environmental Law Center v. Forest Service. That case forced the agency to consult more closely with the Fish and Wildlife Service on forest projects that might affect endangered species.

Biomass Carbon Neutrality

The wording maintaining the definition of forest biomass as carbon neutral was approved and extended through September 30, 2018.   This is good, but we continue to seek language that will preserve the concept of biomass carbon neutrality in perpetuity.  

 

OSU’s CLT Demonstration Project Crashes

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Last summer, I suggested that cross-laminated timber was unlikely to make a dent in small wood supply. Even at full build-out, the market niche for this engineered wood product is just too small.

It may have just gotten smaller. Oregon State University’s School of Forestry (I’m a proud alum) suffered an “oops” moment in the construction of its new flagship replacement for the venerable Peavy Hall: “A large section of subflooring made of cross-laminated timber gave way between the second and third stories.” The panel “delaminated,” a catastrophic form of collapse not suffered by steel.