Dombeck and Other Former Chiefs’ Op-Ed in Denver Post

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Prescribed burn from an Z feed today from the Coconino National Forest
Here’s the op-ed in the Denver Post:

We served national forests under both parties, and know today our public lands are in danger (Opinion)
Divesting our public lands from public ownership would be a grievous error

But maybe the authors didn’t select the title or the tagline.

Collectively, we have over 200 years of experience in public land management and have served as U.S. Forest Service chiefs under both Republican and Democratic administrations. We are adamant that divesting our public lands from public ownership would be a grievous error. We encourage all Americans to support the public servants who work for you and, most importantly, the public lands that belong to all of us and define us as Americans.

There’s the “divesting” thing again. Some of us are still exhausted from the last decades of hearing about this.. for example this Center for American Progress Action write-up from 2015. It, of course, mentions the ever-unpopular Sagebrush Rebellion.

The idea that the federal government should transfer ownership of public lands to state governments or sell them off to private interests has percolated on the conservative fringe for decades. The concept briefly gained attention during the Sagebrush Rebellion—an anti-government movement in the West in the 1980s—but has not been able to overcome criticism that it is unconstitutional, fiscally irresponsible, and environmentally reckless.

Back to the op-ed:

This year started with the catastrophic fires in southern California. It is now only spring, and already we have an active fire season across parts of the southeast. Is this a time to dismiss thousands of trained firefighters? Most U.S. Forest Service employees have collateral firefighting jobs and are called on as fire season escalates.

We believe that the current administration’s abusive description of career federal employees is an unforced and, frankly, unforgettable error. These fired employees, we know from experience, represent the best of America. Many gave up other potentially financially lucrative jobs to serve the public interest, many were military veterans. To see them treated the way they have been over the past few months is incompetence at best and mean-spirited at worst.

We believe that the current administration’s abusive description of career federal employees is an unforced and, frankly, unforgettable error.

Is this really about FS employees or a more general concern about Administration statements? What exactly do the Chiefs mean by “unforgettable”? “incompetence at best and mean-spirited at worst”.

There was the random firing of some 3,400 probationary Forest Service employees, some with years of experience as seasonal firefighters, others with jobs ranging from managing prescribed fire and fuel reduction, timber sale layout, fish and wildlife habitat improvement to campground maintenance. This was followed by a court order to reinstate the fired employees, who were only soon to be fired again. Additionally, there was the buyout and retirement incentives of another 3,000 employees.

I am totally with them on the probationary employees, but on the other hand, the FS had hired more than they could afford, as we’ve described in other posts. So will future RIFs be “non-random?” will that be OK? Again, this takes a twist (one that I’ve heard before) about buyouts and incentives, which to me are a different kettle of fish. For one thing, they are voluntary. I don’t think that we can say “buyouts are disrespectful” when we didn’t say that for previous buyouts. In fact, some of us (including me) were told the FS would be better off if we would retire, and make room for fresh ideas and give a chance for the next generation to flourish. Kind of like overstory removal of trees with decreasing vigor.

While the exact numbers are changing daily, the chaotic approach resulted in many of the top leaders, including the Forest Service chief and another dozen top agency leaders to leave or be demoted. Further, major reductions in the workforce are expected. The administration has asked USDA to significantly cut more funding and people.

For me, if I had been SES, it would be all about pay retention, not demotion. GS-15 jobs can be more fun than SES, as far as I’ve observed. Not as much power, but not as much stress. And I would guess that there are many folks out there equally capable and desirous of being SES, given the chance. Unless things have changed, we always had pretty stiff competition for Forest Supervisors and above, and there are relatively few SES positions in the FS (and will possibly be fewer with consolidations).

This is occurring while a recent Executive Order calls for the immediate expansion of timber harvest from the National Forests and other federal public lands.

If the White House continues to dismiss the employees who manage the campgrounds, visitor information centers, trails systems for hiking, biking, horseback riding and motorized uses, facilities will have to be closed. The summer vacation season is just around the corner.

Permit holders for animal grazing, oil and gas leases, logging and mining activities will also be affected. It appears the intent is to create a number of crises for the millions of Americans who use the national forests and grasslands for their livelihoods and for their recreation.

How do we discern the intent of the Admin? If they want to reduce employees at the DOE, for example, does that mean that they want to create crises for users of energy? or CDC and public health?

And I believe the Secretary of Agriculture said that efforts to reduce would focus on middle managers (shades of Clinton Administration!) and administrative functions. I’m sure many folks including elected officials, who are probably giving their opinions to the Admin directly, don’t want any recreation, grazing, timber or other holdups.

Rural economies are intertwined with the uses on these lands, bringing millions of dollars to local economies.

Are these drastic actions the first steps toward crippling the agencies so they cannot carry out their Congressionally mandated mission? If so, they portend a cynical effort to divest and transfer federal public lands to the States and private interests.

Oh for Gifford’s sake! Here we go again with the standard privatization fear-mongering (as in above CAP 2015). States don’t want them, and the private dog (except for local housing) won’t hunt.

The national forests are public lands that are owned collectively by all U.S. Citizens and managed under the Multiple Use Sustained Yield Act and a host of other laws. These laws allow for responsibly managed oil and gas development, mining, timber harvest, as well as recreation development, untouched wilderness, and many other uses. Most importantly, they are the backyard of families that camp, hike, bike, cut firewood, ski, float rivers, hunt or fish on their public lands without “no trespassing” signs.

More than 60 million Americans get their drinking water from streams that flow from the 193 million acres of national forests. Truly, we have a federal public land system in the U.S. that serves us daily and is the envy of natural resource professionals around the world for the benefits realized by our citizens daily. Divesture of these precious lands, that belong to all citizens rich and poor, would be an irreparable tragedy.

The first Forest Service Chief Gifford Pinchot famously wrote, “Where conflicting interests must be reconciled, the question shall always be answered from the standpoint of the greatest good of the greatest number in the long run.” We believe the greatest good is keeping the National Forests and all federal public lands in the hands of all citizens for future generations.

It seems like the Chiefs are saying “don’t get rid of employees who provide important services.” I think the Administration probably agrees with that. Legally, though, they have to follow OPM procedures for RIF and VERA, which means that the outcome can’t be precisely controlled, as many of us have experienced in the past. Fortunately for the mission, if particularly knowledgeable and useful people retire, they can and do come back as Reemployed Annuitants, contractors, hired by partners/grantees, or via the ACES program.

We all support the National Forests, I think everyone here can agree. And yet, the Forest Service apparently has more employees than it can afford. The op-ed is arguing against selling public lands, which isn’t on the table. The writeup sounds like it was mostly Dombeck and associates, and the others signed on. Wouldn’t it be interesting, instead to hear what their desired solutions would be, given the situation? Here are some possibilities.

(1) No one should be RIFed or take early out, despite the fact that FS is over budget.(Every position is needed? I would say I don’t agree with that.
(2) We recognize the problem, but think a better way to reduce numbers would be to…. Keep everyone red-carded who has been on say…more than three fires in the past three years?
(3) Increased the budget to cover the recent hires? Keep everyone red-carded who has been on say…more than three fires in the past three years?
(4) The Admin should stop disrespecting employees by making negative statements. I don’t think the Chief or the Secretary is, so .. they would have to be more specific. There are other ways of disrespecting, possibly including pulling purchase cards?
(5) Temporaries are very important to summer field work, so the FS should find the money to hire them, even if it may be too late.

Vinegar or Honey?

In contrast to the Dombeck et al. op-ed, on X this morning I saw an open letter to Secretary Wright from various energy groups who all benefit from the DOE Loan Programs Office:

As budget and staffing decisions are weighed across the Department, we encourage the administration to ensure LPO remains fully equipped to carry out its mission. The office’s ability to underwrite and monitor large-scale energy projects depends on specialized technical staff and institutional capacity. Without them, the federal government risks slowing or stalling the diverse mix of energy projects that serve national priorities, such as new nuclear energy development for powering AI data centers—undermining investment certainty and weakening American competitiveness.

….

These are precisely the kinds of projects the administration has championed: American-made, job-creating, pro-growth, and foundational to national strength and security.We respectfully urge you to preserve LPO’s robust financing capabilities. As your administration advances its energy and industrial agenda, maintaining the Loan Programs Office will be critical to delivering results.Thank you for your leadership and commitment to American energy excellence.

It’s quite a different tone (and audience) from the op-ed in the Denver Post. Recalling:
“Are these drastic actions the first steps toward crippling the agencies so they cannot carry out their Congressionally mandated mission?”
“current administration’s abusive description of career federal employees is an unforced and, frankly, unforgettable error.”

Maybe the Chiefs would be more likely to have their ideas considered by the new Administration by taking a less histrionic approach, and dealing directly with the Administration? Or maybe they are and this is a two-pronged approach? It would be easy to imagine rewriting the DOE letter to incorporate their/our concerns. They/we could write one to the current Chief and relate our concerns to the Chief’s stated priorities of “safety, active forest management, fire management and recreation.”

If I said “respect is a two-way street” you might say “this Admin should not be respected because…”, but I am a pragmatist. As the old saying says, “you can catch more flies with honey than with vinegar.” I think the authors of the DOE letter are obviously interested in procuring flies (loans). Not so sure about folks using vinegar.

Shout-Out to Megafire Action- FOFA Senate Bill Changes Analysis!

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Note: Bob Zybach and I posted these at almost the identical time yesterday, so I changed the time on this to today, so it would be more visible to folks. Also since then, Tom Erb of Senator Hick’s office posted on X that FOFA is an “abundance bill.” If you’re not familiar with the Abundance idea promoted in this book according to Wikipedia it’s generally about “better managing the trade-offs between regulations and social advancement.” It’s always interesting to see what larger movements have to contribute (or not) to forest policy, so if someone would like to read and review the Klein and Thompson book for TSW, that would be great!

When I first ran into Matt Weiner of Megafire Action, I wondered “who are these people?”, “why are they in our space?” and “why is he talking about wildfire and I am moderating the panel?”.  I felt challenged to gracefully accept new people interested in our policy arena, and not be suspicious. They are big fans of the Wildfire Center, and I have some reservations about it.  Nevertheless, this group, working with others, has been successful at moving FOFA along- likely in a way that the traditional groups would not have been, so “by their fruits” and all that.

Folks I have spoken with in the past have had trouble getting through to various D staffs about this bill because to some any changes affecting litigation possibilities are a non-starter.  Thanks to a dedicated effort by many groups, FOFA has arrived as a bipartisan bill to the Senate.  People have been asking me about changes between the House and Senate Bills, and it looks like this is a nice summary by Megafire Action. So many thanks to them, both for helping shepherd the bill through and providing this handy section by section analysis. Changes are noted in red in the document.

As an elderly wonk, FOFA reminds me a great deal of HFRA (pick certain areas and change the generic rules for projects for fuel treatments) and so I would have liked a more formal review of “why HFRA didn’t work” before starting FOFA, but that’s just me. Here’s the FS summary of HFRA (2003):

Healthy Forests Restoration Act

The Healthy Forests Restoration Act of 2003 (P.L. 108-148) contains a variety of provisions to expedite hazardous-fuel reduction and forest-restoration projects on specific types of Federal land that are at risk of wildland fire or insect and disease epidemics. The act helps rural communities, States, Tribes, and landowners restore healthy forest and rangeland conditions on State, Tribal, and private lands. It also:

  • Encourages biomass removal from public and private lands
  • Provides technical, educational, and financial assistance to improve water quality and address watershed issues on non-Federal lands
  • Authorizes large-scale silvicultural research
  • Authorizes acquisition of Healthy Forest Reserves on private land to promote recovery of threatened and endangered species, and improve biodiversity and carbon sequestration
  • Directs the establishment of monitoring and early warning systems for insect or disease outbreaks

Title I provides authorities for expedited vegetation treatments on certain types of NFS and BLM lands that are at risk of wildland fire; have experienced wind throw, blowdown, or ice-storm damage; are currently experiencing disease or insect epidemics; or are at imminent risk of such epidemics because of conditions on adjacent land. This title:

  • Provides expedited environmental analysis of HFRA projects

  • Provides administrative review before decisions are issued on proposed HFRA projects on NFS lands

  • Contains requirements governing the maintenance and restoration of old-growth forest stands when the USDA Forest Service and DOI BLM carry out HFRA projects in such stands

  • Requires HFRA projects on NFS and BLM land to maximize retention of larger trees in areas other than old-growth stands, consistent with the objective of restoring fire-resilient stands and protecting at-risk communities and Federal lands

  • Requires collaboration between Federal agencies and local communities, particularly when Community Wildfire Protection Plans are prepared

  • Requires using at least 50 percent of the dollars allocated to HFRA projects to protect communities at risk of wildland fire

  • Requires performance to be monitored when agencies conduct hazardous-fuel reduction projects and encourages multiparty monitoring that includes communities and other diverse stakeholders (including interested citizens and Tribes)

  • Encourages courts to expedite judicial review of legal challenges to HFRA projects

  • Directs courts that consider a request for an injunction on an HFRA-authorized project to balance the short- and long-term environmental effects of undertaking the project against the effects of taking no action

So it’s been 22 years and here we are with FOFA.

I am REALLY glad that Megafire Action did this analysis, as it’s very difficult for many of us to follow “remove section Xof HFRA and replace it with…”

Here’s the litigation section (remember Rich J. explained this to us in greater detail in a previous comment).

The Senate version updates standards for judicial review of fireshed management projects and limits injunctions to defined conditions. It codifies the existing balancing test for injunctions and removes the “proximate and substantial environmental harm” threshold included in the House version. It introduces separate four-part tests for preliminary and permanent injunctions and establishes clear criteria for when courts may vacate agency actions—explicitly considering wildfire risk and ecosystem health. It also extends the statute of limitations from 120 to 150 days, removes the requirement that plaintiffs must have participated in the agency comment process, and requires agencies to act on court remands within 180 days. In all, this represents a balanced compromise between preserving process and preventing obstruction of badly needed projects.

I wonder about “removes the requirement that plaintiffs must have participated in the agency comment process.”  I thought that was already a thing somewhere.   It seems like if  folks had concerns about a project they would want to participate so the agency would have a chance to do what they wanted. Maybe this has to do with increased use of CE’s, and maybe some groups would miss scoping? Would like to hear more about the rationale for this.

Here’s the NEPA xection: FYI Kelly Martin is on the Board of Megafire Action.

Under FOFA, forest management projects receiving up to a 10,000 acre CE must first be identified by a fireshed assessment. FOFA mandates that fireshed assessments comply with
applicable forest plans which are developed with community input, incorporate the best available science and traditional ecological knowledge from Indian Tribes, and allow for local government participation in their formulation. These added guardrails ensure that CEs will not be used for projects that harm our forests.
While sensitivities around changes to NEPA are justified, it is important to note that FOFA does not amend, alter, or rollback NEPA or the Endangered Species Act (ESA). Agencies must still adhere to all rules and regulations governing the use of categorical exclusions and CEs must only be used in appropriate areas and not used in areas where work is prohibited. It is also important to note that while the original draft eliminated acreage limitations for the utilization of categorical exclusions, the current version sets the acreage limitation to 10,000 acres. FOFA would not enable agencies to “stack” CEs any more than they are able to under the current 3,000 acre limitation.

To further understand the practitioner perspective on categorical exclusions, Megafire Action interviewed Kelly Martin, Ret. Chief of Fire and Aviation at Yosemite National Park, and Type 1 Incident Management Team member in Operations and Fire Behavior, who provided important insights on CEs:
“Categorical exclusions (CE) are a key tool for forest resilience and wildfire mitigation. Currently, there is an over-allocation of funding and human capital dedicated to
planning and revising existing NEPA Environmental Impact Statement (EIS) or Environmental Assessment (EA) documents sometimes 5 to 10 years in the making.
This favors what seems like endless and duplicative planning efforts compared to implementing beneficial actions on the ground that we know are based on solid science and research. CEs help us streamline the public review process and start putting meaningful projects on the ground faster to meet existential wildfire threats. Unfortunately, projects done under the current 3,000 acre CEs fall woefully short of what is needed to meet the ever increasing size of contemporary wildfires. Smaller CEs often don’t provide the buffer or resiliency needed to change conditions on the ground at a meaningful scale. In contrast, the value of a 10,000 acre CE is that you’re not just looking at small sections, you’re starting to look at the entire landscape and how it can withstand future challenges to watersheds, biodiversity, and key ecosystem services we deeply care about.

A common mindset around CEs is that they represent a rollback of environmental protections, but CEs are really about accelerating the implementation process for projects that have already been vetted and approved in existing land management plans backed by an EIS or EA. CEs are nothing new, they’ve been an important part of public engagement and meaningful land management actions for years. The CE reduces planning and analysis tiered to existing EISs and EAs and reduces the need for a redundant round of review for each specific project. This is not about returning to clear cut logging, going into sensitive areas, or removing mature growth old timber. We’re talking about targeting areas that are accessible, where intervention can make a meaningful difference to landscape resilience. While forestry in the past, particularly in the early 1900s, often led to negative outcomes, those earlier mistakes should not cloud the judgment of today’s forest management strategies, which are vastly more informed by modern science. We’re not going back to those days.”

The Senate version keeps the core of this provision while making a few tweaks to ensure that the CEs apply to fireshed management areas that are properly selected with the best science, and adds some new guardrails on the use of emergency authorities. The Senate version adds  riparian and wet meadow restoration and more detailed descriptions of the types of treatments intended, to further signal that clearcutting is not a desired management activity.”

The Megafire Analysis is comprehensive, so if you find any other topics of interest, please feel free to comment.  I just selected these because I heard that these were sticking points to some offices.

 

National Wildfire Emergency: NWA Proposed EO

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There has been no Executive Order (EO) regarding wildfires that has been issued yet, but the National Wildfire Alliance (NWA, formerly NWI) submitted a proposal several weeks ago, including a cover letter and request to President Trump signed by 15 wildfire experts, including several with many decades of USFS and wildfire fighting experience.

(Note: I can’t control the bolded text or acronyms. Here is the link to the referenced and indexed 37-minute video of the edited testimonies of 15 NWA experts, several of whom have also signed the following cover letter to their proposal: https://youtu.be/UPg61jDRd94)

To: Donald J. Trump, President of the United States

Dear President Trump,

The National Wildfire Alliance (NWA) is a coalition of experts with decades of experience in wildfire and forest management. Our affiliates include organizations and citizens who share our concerns about the accelerating degradation of our nation’s forests, prairies, rangelands and rural economies.

In recent years, US wildfires have killed hundreds of citizens while countless thousands more continue to die from deadly smoke toxicity. Billions in taxpayer dollars have fueled the destruction of trillions in public and private property, including 100 million forested acres and thousands of homes. These fires also damage critical wildlife habitat and key watershed needed for clear water supplies. This devastation was predictable, documented, and largely preventable.

In response to the continued escalation of unrelenting fire, NWA has declared a National Wildfire Emergency in 2025 to advocate and implement real and lasting solutions. This video testimony features insights and critical information from NWA leadership.

The following executive order is crucial for the restoration of rational wildfire policy and operations across the nation. Decades of politically driven agendas have led to soaring economic costs and human suffering. This crisis will only escalate unless we take urgent action now!

Mr. President, your recent visits to the Southern California fires and the Camp Fire underscore the urgent need for an Emergency Order to protect our federal lands and ensure nationwide commitment to prioritize: First put out the fire!

NWA stands ready to provide data-driven insights and essential guidance in support of effective forest restoration and wildfire emergency response. Our commitment is to help regenerate healthy forests through proven strategies that mitigate risks.

In service to our great nation,

National Wildfire Alliance (NWA)*

/s/William A. Derr, President, National Wildfire Alliance (NWA)* USFS, Special Agent in Charge [ret.]

/s/ Michael T. Rains, Deputy Chief, USDA Forest Service [ret.]

/s/ Ray Haupt, Siskiyou County Supervisor CA RPF #2938, USFS District Ranger [ret.]

/s/Jen Hamaker, President, Oregon Natural Resource Industries

/s/ Philip S. Aune, Retired USFS Research Program Manager

/s/ Ted Stubblefield, [ret.] Forest Supervisor Fire Quals: Type I Command

/s/ Nadine Bailey, COO Family Water Alliance                                           J

/s/James A. Marsh, e -PEAK LLC “A Service Disabled Veteran Owned Small Business”                                        “

/s/Anton R. Jaegel, USFS District Engineer [ret.] County Supervisor, Trinity Co. CA [ret.]

/s/Bob Zybach, PhD. Program Manager, ORWW

/s/ Jim Petersen, Founder, Evergreen Foundation

/s/ Chuck Sheley, Editor, Smokejumper Magazine

*National Wildfire Alliance, Formerly NWI

Cc: Elon Musk, Department of Government Efficiency Secretary of Agriculture

National Wildfire Alliance Executive Order 2025*

EXECUTIVE ORDER NO. [INSERT NUMBER]

BOLD ACTION TO COMBAT CATASTROPHIC WILDFIRE & REFORM FEDERAL LAND MANAGEMENT POLICIES

 By the authority vested in me as President of the United States by the Constitution and the laws of the United States of America, and in recognition of the unprecedented wildfire crises devastating communities, natural ecosystems, and economies across the country, it is hereby ordered as follows:

Section 1. Policy and Purpose

Wildfires have grown in frequency, intensity, and destructiveness, endangering the lives, properties, and livelihoods of countless Americans. This crisis demands immediate, bold, and coordinated federal action to mitigate risks, prevent disasters, and ensure the resilience of our landscapes and communities. Inefficient federal land management practices, coupled with the accumulation of hazardous fuels, have exacerbated this crisis. To protect public safety, preserve natural resources, and mitigate environmental degradation, this order establishes a framework for swift and decisive action.

Section 2. Reinstating the 10 a.m. Rule

(a) Federal agencies, including the Department of the Interior and the Department of Agriculture (USDA), shall immediately adopt wildfire suppression strategies prioritizing containment of wildfires by 10:00 a.m. the morning following detection, wherever feasible. (b) Agencies shall employ advanced technologies, satellite-based detection systems, and modern firefighting techniques to achieve this goal.

Section 3. Active Forest and Rangeland Management

(a)The USDA and the Bureau of Land Management (BLM) shall implement a comprehensive hazardous fuel reduction program within 90 days, which shall include:

    • Identification of all lands that have been deforested by wildfires in the past 25 years;
    • Development and implementation of programs to remove remaining hazardous fuels;
    • Responsible thinning of overgrown forests;
    • Mechanical and hand-fuel treatments;
    • Restoration of site adaptive vegetation on lands damaged by wildfire; and
    • Targeted grazing and invasive species management;
    • Utilization of controlled burns in previously treated areas where fuel loads have been reduced;
    • Implementation of prompt salvage and restoration of burned landscapes.

(b) Federal land management agencies shall work collaboratively with state, tribal, and local governments to tailor these measures to regional needs and ensure rapid implementation.

Section 4. Advocacy for Legislative Reforms

(a) The Secretary of the Interior, in consultation with the Attorney General and the Director of the Office of Management and Budget, shall propose amendments to the Federal Tort Claims Act and the Tucker Act within 60 days, enabling victims of federally linked wildfires to seek appropriate compensation for damages and losses.

(b) Federal agencies shall review and recommend changes to existing policies that hinder effective wildfire prevention and suppression, ensuring that state and local expertise is prioritized.

Section 5. Emergency Resource Allocation

(a) The Secretary of Homeland Security, through the Federal Emergency Management Agency (FEMA), shall allocate additional federal funds to enhance wildfire suppression, evacuation readiness, post-fire recovery, and disaster resilience in affected states. (b) Federal agencies shall prioritize infrastructure hardening projects and ecosystem restoration efforts to mitigate long-term wildfire risks.

Section 6. Public Awareness Campaign

(a) The Department of the Interior and USDA, in partnership with state and local governments, shall launch a nationwide public awareness campaign within 60 days. (b) The campaign shall educate Americans about wildfire risks, prevention strategies, and emergency preparedness, with an emphasis on the role of federal land management in wildfire mitigation.

Section 7. Establishment of a Wildfire Resilience Task Force

(a) A Wildfire Resilience Task Force is hereby established, chaired by the Secretary of the Interior and co-chaired by the Secretary of Agriculture, to coordinate federal, state, tribal, and local efforts. (b) The Task Force shall include representatives from state forestry departments, tribal governments, professional foresters, wildfire suppression experts, and scientists. (c) The Task Force shall submit a report within 120 days detailing innovative, actionable strategies to reform federal land management and address wildfire risks.

Section 8. Accountability and Transparency

(a)Federal agencies shall report quarterly to the President on progress made under this Executive Order, including measurable outcomes related to wildfire suppression, prevention, and recovery. (b) The Office of Management and Budget shall oversee the allocation of funds to ensure that resources are used efficiently and effectively.

Section 9. General Provisions

 (a) Nothing in this order shall be construed to impair or otherwise affect:

    • The authority granted by law to an executive department or agency, or the head thereof; or
    • The functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

Section 10. Effective Date

This Executive Order is effective immediately.

IN WITNESS WHEREOF, I have hereunto set my hand this [Day] of [Month], [Year], in the year of our Lord [Year], and of the Independence of the United States of America the [Year].

Donald J. Trump, President of the United States

*Formerly National Wildfire Institute (NWI)

State Foresters Voice Concerns About Potential Forest Service Restructuring

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Press release from April 7….

WASHINGTON, DC.– Recent reports suggesting that certain critical programs –specifically regarding private land ownership and wildland fire management– may be shifted outside of the Forest Service have been a particular source of alarm for State Foresters. Forests are a vastly complex and unique resource that require a dedicated federal agency with the technical expertise currently residing in the USDA Forest Service. Wildfire is an inherent part of the forest lifecycle, and its management necessitates a forestry lens. Moving programs to an alternate agency in pursuit of efficiency may compromise both the integrity of those programs and the ultimate utility of efficiency efforts.

Forests are our nation’s most valuable natural resource, providing a myriad of public, economic, and environmental benefits. As efforts to downsize and reorganize the federal government move forward, State Foresters are raising concerns that decisions affecting the USDA Forest Service could unintentionally hinder the prosperity of forested communities and heighten wildfire risks for communities across the nation.

Many State Foresters acknowledge the potential benefits of organizational restructuring, having gone through similar processes in their own states before and appreciating the difficulties and progress that stem from such efforts. This same experience, however, is why State Foresters hold legitimate concerns regarding the ongoing downsizing and reorganization efforts at the Forest Service and are eager to provide state perspectives on the process.

“State Foresters can play a critical role in the federal reform dialogue, provided they are included,” said Jay Farrell, Executive Director of the National Association of State Foresters. “They are informed, engaged, and ready to ensure positive outcomes for forestry and wildfire management throughout this transition. While we are eager for progress, we urge a thoughtful and collaborative approach to achieving efficiency.”

Friday Thoughtpiece: The Dangers of Non-Financial Conflicts of Interest

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Conflict of interest management depends on the existence of a critical culture that recognises the issues. Waldo Jaquith

 

Sometimes it’s refreshing to step outside the world of forests and federal lands and see how other people think about public policy challenges.  I thought that this article (from 2012!) was thoughtful and relevant even though it comes from the medical field, it’s not too difficult to transplant the ideas into our world. The authors are Australian medical folks.

This concern about conflicts of interest (a situation that exists where two or more interests are contradictory and compel incompatible outcomes) is undoubtedly well founded, as a large volume of research shows that financial links between individuals and industry do, in fact, influence decision-making.

And now virtually every institution in the country has a process for addressing the issue and governments, peak bodies and professional bodies all, to a greater or lesser extent, require disclosure of financial interests in settings where a conflict of interest (CoI) may arise.

But for all the attention the subject has attracted, the response has been curiously limited and partial. This reveals a major blind spot in the understanding of both interests and the conflicts they produce.

The blind spot in CoI

The discussion has focused almost exclusively on pecuniary, or financial, interests. But these may play a relatively minor role in medicine. Most doctors or researchers don’t do what they do primarily to increase their material wealth. If making money was their primary goal, they could choose more effective ways of doing so.

The motivations that underlie most decisions in medicine are not financial. Rather they range from an interest in patient care or research or public welfare, to a commitment to certain ideas, principles or values and the desire for personal advancement in career, reputation or status.

These factors are powerful drivers of decisions and actions and are no less capable of generating conflicts than the prospect of monetary rewards. Division of loyalties between the roles of clinician, researcher, administrator or public health practitioner may create serious concerns or anxieties; personal religious or political commitments may undermine the operation of an ethics or policy committee; and the quest for international recognition may overcome the natural caution or circumspection required of clinical judgement.

While it’s easy to highlight this gap in the understanding of conflicts of interest, how to deal with it is not quite as clear. Indeed, the reason why public debates have focused on financial interests and almost completely ignored non-monetary ones is that, by their very nature, the latter are more difficult to define and quantify. And, their impact is more difficult to prove.

The nature of interests

The problem is not simply that we’ve ignored non-pecuniary CoI but that our focus on financial interests has distorted our understanding of what interests are and what it means to say that they’re in conflict.

For starters, interests are not bad things, they refer simply to the ways in which we necessarily and habitually attach value to our relationships and practices. Every social role has associated with it a collection of moral imperatives into which one enters when one assumes that role. This applies regardless of whether you’re a doctor, teacher, researcher, administrator or public servant.

The chance of dualities, multiplicities and conflicts is increased by the great diversity of roles and responsibilities assumed by individuals in modern society. The existence of a CoI is neither unusual nor shameful and doesn’t reflect a psychological aberration. It’s a straightforward, unavoidable fact that we must accept and recognise.

This doesn’t mean that CoIs don’t produce problems. On the contrary, unregulated conflicts, both pecuniary and non-pecuniary, can confound and distort decision-making processes and generate inappropriate and harmful outcomes.

Not for money

Despite the difficulty in defining and evaluating non-financial interests, it’s possible to regulate them in a systematic way. The first, essential step is to recognise the issue and identify the key interests at stake within the setting.

There must also be a process of review or deliberation so relevant stakeholders can decide whether the existence of multiple interests has the capacity to corrupt a decision-making process. If it’s decided that this is the case, action may need to be taken to disengage the conflicting roles. The relevant community will also need to be assured that danger has been averted and the integrity of decisions preserved.

Case studies

The approach for managing these conflicts is the same as in most cases of financial conflicts of interest, but not all. Let’s consider some examples:

  • A doctor working as both a clinician and a researcher encounters a conflict between the demands of science and clinical care. She recognises her conflicting interests, declares them and, with the help of an ethics committee, entrusts the job of recruiting research participants to an independent assistant;
  • An individual is approached to participate in a committee to write guidelines for the conduct of research involving embryonic stem cells. He recognizes that his strong religious beliefs would make it impossible for him to engage in the open dialogue required for the task, so after discussion with the chair he declines the invitation to join the committee;
  • A senior office holder in a professional organisation recognises that the fact that her husband’s role as a senior government official may compromise her independence of judgment. She declares her interests and recuses herself from discussions involving dealings with that government department; or
  • A surgeon involved in developing a new operation that may not only improve clinical practice but also enhance his personal reputation and standing recognises that he is vulnerable to errors owing to his duality of interests. To protect both himself and his patients, he engages in discussion with colleagues who agree to help guide him in cases where there might be uncertainty about the role of the new procedure.

Of these examples, the last is the most difficult because it depends on a degree of introspection, even if objective criteria may still be recognisable to those around the surgeon. In such cases, we are forced to rely on two things – personal integrity and the vigilance of the community of practitioners in which the affected person works.

Both of these depend on the culture within which all parties operate, including the prevailing ethos of the hospital setting; the standards set by professional organisations; the ability of the educational process to develop the critical qualities of self-knowledge and humility; the level of community awareness; and the readiness of doctors to engage in open dialogues with their patients.

Still an elephant

Non-financial interests are the elephant in the room during discussions about conflicts of interest. Although they’ve received relatively little attention, it’s undeniable that they are as important as monetary interests in the decision-making process, and the risk posed by conflicts involving them is just as great.

With care, they can be recognised and managed, although the procedures involved may at times differ somewhat from those developed to deal with financial issues. Some conflicts of this kind fall into easily definable categories, such as specific roles, relationships or belief systems, while others may concern personal motivations and intentions. The management of these latter may depend on more complex processes.

The management of all conflicts – financial or not – ultimately depend on the existence of a critical culture that both recognises the importance of the issues and provides support and guidance for practitioners.

**********

My guess is that we think it’s too complicated to deal with, and give up.

Sinker cypress: deadhead logs

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A change of pace — not federal forest planning, but interesting: An article in Switchboard Magazine by Nathan Rizzuti offers an inside look at Louisiana’s oddest odd job: hunting for long-submerged cypress trees. “Cypress – taxodium distichum – goes by many names: bald cypress, red cypress, swamp cypress, gulf cypress. But if you hack away at a living cypress tree on state property, the Louisiana Department of Agriculture and Forestry can, and will, serve you up to a 5-year prison sentence and a fine of up to $5,000. … Hamilton and Jack go for the wood that’s been dead a long time – sinker cypress, also commonly called deadhead logs. Sinker cypress is a term for mature cypress logs that were cut or felled anywhere between one hundred to five hundred years ago. A handful of factors determine a log’s value, but a large, mature stick can fetch a price upwards of $20,000,” he wrote.

Text of Wildfire Executive Order- Your Thoughts?

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Rumor has it that reporters are calling around to find out what people think about the new Wildfire Executive Order.  So before we read the stories we can look for ourselves.
The Hotshot Wakeup gave his impression earlier this week, plus did a survey. There’s quite a bit to look at and discuss, including many details that probably only wildfire people understand. The idea of combining fire folks from different agencies to increase efficiency and decrease interagency boondoggling has been around for a while, and is probably the biggest thing, but there are many details of interest also.

  The priority will be the immediate suppressing of fires and protecting our communities and critical infrastructure

sounds like it will appeal to some TSW-ites. Sorry about the formatting and I think this is the version, but can never be absolutely sure until it’s published.

Section 1. Background and Purpose.
The devastation of the recent Los Angeles fires has shocked the American people and awoken in
all of us the realization that we must do better to protect our communities from catastrophic
wildland fires. As of today, the incidents in the Pacific Palisades and wider Los Angeles
metropolitan area have become the most expensive disaster in American history. From Lahaina
Hawaii, to the Everglades of Florida, from the mountains of Montana to the forests of Maine,
from Los Angeles to Washington state, wildland fire is a 50-state challenge that we have failed
to properly prepare for. As ranchers in Texas and brave first responders in Los Angeles learned
these past several months, our national wildland firefighting apparatus is insufficiently prepared
to protect our communities.
Therefore, this Executive Order is directing the Secretaries of Agriculture and Interior, on behalf
of our Land Management agencies, and the United States Fire Administrator on behalf of state
and local fire and public safety agencies, to immediately restructure our national wildland
firefighting system, so that by the summer of 2025, we are able to rapidly and aggressively
respond to our national wildland fire threat. The priority will be the immediate suppressing of
fires and protecting our communities and critical infrastructure. Included in this is the
immediate establishment of a national wildland firefighting task force that will spearhead these
efforts. This task force will cut across all federal agencies and will have the full authority
eliminate red tape, reform our agencies and reforge our efforts around the priority to address
fighting fire fast. The task force will coordinate with state and local fire agencies to enhance
capabilities, capacity, and readiness to leverage the workforce of our federal, tribal, state and
local fire service. This will involve making structural changes to our current statutory
environment, and addressing the immediate and aggressive need to combat wildfire fighting
across all 50 of the United States. This Executive Order shall serve to overhaul our regulatory
apparatus to protect American families from wildfire from coast to coast, year-round. The
national mission shall be to provide the same level of response, protection, and competence
that the American people have come to expect of their local emergency first responders.

Section 2. Policy. It is the policy of the United States to:
a) Enhance the effectiveness and efficiency of wildland fire management operations;
b) Streamline procurement processes for critical firefighting resources;
c) Standardize operational procedures across federal, tribal, state and local agency
response;
d) Improve coordination between federal, state, local and private sector partners;
e) Modernize systems and technology for wildland fire response;
f) Establish year-round readiness requirements;
g) Reduce bureaucratic barriers to effective response;
h) Support workforce development through public-private partnerships.

Section 3. Performance Standards and Metrics.
a) Within 90 days, the Secretaries of Agriculture, Interior, and Homeland Security shall:
i. Establish a consolidated wildland firefighting Task Force that is
responsible for the coordination and direction of all efforts relating to
wildland fires within the United States;
ii. Dissolve the Memorandum of Understanding dated Aug 2, 2024
authorizing the Wildland Fire Leadership Council.
iii. Establish a clear metric of performance for wildland fire management;
iv. Establish minimum aviation availability to meet established standards of
cover and performance metric’s for eight regions at Preparedness Level 3
and two regions at Preparedness Level 4
v. Maintain call when needed contracts for surge capacity of aviation assets
to meet wildfire needs for preparedness levels that exceed minimum
aviation availability standards.

b) These metrics shall incorporate:

i. Response time measurements;
ii. Remote asset availability tracking;
iii. Mission success rate;
iv. Safety performance indicators.
Section 4. Emergency Response Enhancement.
a) Within 60 days, the Secretaries of Agriculture and Interior and Homeland Security shall:
i. Award new contracts and review existing contracts for opportunities to
enhance wildland fire preparedness by extending or adding performance
dates;
ii. Streamline dispatch processes for faster resource deployment, utilizing
modern approaches to ensure cohesiveness across dispatch centers;
iii. Resolve issues between agency requirements to ensure there is no
duplication of effort in the reciprocal acceptance of inspections and
certifications for similar commercial contract equipment, supplies, and
services;
iv. Review airtanker bases for modernization, refurbishments,
enhancements, and expansion;

v. Integrate all commercially available data in operations for the purpose of
early wildland fire detection and monitoring; Establish and maintain a
common data management framework at federal, state, and local levels
for improved coordination.
1. In cooperation with other federal and state agencies, establish a
fire environment center to provide real-time, science-based, and
data-rich scientific and technical analytic services, decision
support, and predictive services to inform land and fuels
management, community risk reduction, and fire management
and response.
b) The Office of Management and Budget shall:

i. Consolidate all wildland fire fighting accounts receiving annual
appropriation, to include, but not limited to, the preparedness and
suppression budgets for wildland fire disasters, to be moved into a single
wildland firefighting preparedness account.
Section 5. Year-Round Readiness and Resource Management.
a) Within 180 days, the Secretaries of Agriculture and Interior and Homeland Security shall:
i. Establish enhanced year-round resource requirements for readiness, and
issue contracts for year-round readiness for a per contract term length of
not more than 180 days;
ii. Develop seasonal readiness standards by geographic area;
iii. Create mechanisms for rapid resource mobilization;
iv. Implement regional resource sharing frameworks.

b) The Secretaries of Agriculture and Interior and Homeland Security shall establish
programs for:

i. Mechanic apprenticeships and training;
ii. Third-party certification of aircraft, pilots, chemicals and equipment;
iii. Joint training initiatives between public and private resources;
iv. Regional resources sharing agreements.
Section 6. Industry Collaboration and Bureaucracy Reduction.
a) The Secretaries of Agriculture and Interior and Homeland Security shall:

i. Mandate bi-annual collaboration events between agency and industry;
ii. Require public disclosure of dispatch orders;
iii. Develop contract requirements and performance metrics with industry
input;
iv. Establish data sharing protocols;

v. Create an innovation partnership framework for new technology
adoption.

b) Within 120 days, the Secretaries of Agriculture and Interior and Homeland Security shall:

i. Establish a Wildfire Management Contracting Advisory Board;
ii. Review and streamline administrative requirements;
iii. Begin development of commercial equipment and technology standards.
c) Within 60 days, the Secretaries of Agriculture and Interior and Homeland Security shall
create guidance for:

i. Systematic collection of industry feedback;
ii. Regular technology assessment forums;
iii. Joint training programs

d) Additionally, within 30 days: Agencies responsible for wildland firefighting shall be
directed to immediately suspend, on a temporary basis, pending permanent review and
restructure, all agency rules to prevent and aid in the rapid response of wildland fire:
a. Dispatch centers and contract managers select contractors;
b. Suspend Lowest price Technically Acceptable award criteria for contract;
c. United States Forest Service must accept Federal Aviation Administration
standards for certification to eliminate duplicative aircraft carding and
inspections;
d. Elimination of requirement for initial attack rated lead planes for the dispatch of
Very Large Airtankers, Large Airtankers and other aircraft, and leverage tactical
discretion of incident commander’s and incident management teams ability to
waive contract requirements in accordance with evaluated situational severity;
e. Maximize use of long-term contracts for ground assets and aerial assets,
eliminating expensive short-term “call when needed” contracts that reduce
readiness and increase cost;
f. Require areas that are “high fire danger”, as determined by the Secretaries of
Agriculture and Interior, can have a standard response time of 30 minutes.
g. Agency must prioritize use of American based assets over foreign assets.
h. Suspend and review small business regulations that restrict growth and
competition within the wildland fire contracting industry.
i. Standardize certifications and inspections across agencies in preparation
for consolidation;
ii. Develop recommendations for Commercial Drivers License requirements
in emergency response.

i. Recognize state and local government authorities to utilize public use, non-
certificated, aircraft

j. Eliminate the requirement for Aircraft managers to be assigned to assets in order
for them to be dispatched
k. Allow for the Incident Commander, Fire Management Officer, or Air Tactical
Group to suspend Aerial Supervision Standards, so that aerial suppression can be
as prompt as possible.
Section 7. Implementation and Oversight.
a) Each agency shall designate a senior official responsible for implementation within 30
days;
b) The Secretaries of Agriculture and Interior and Homeland Security shall provide
quarterly progress reports to the Director of the Office of Management and Budget;
c) The Director of the Office of Management and Budget shall review implementation
progress and provide recommendations for improvement every 180 days.

Section 8. General Provisions.
a) Nothing in this order shall be construed to impair or otherwise affect:

i. The authorities granted by law to an executive department or agency, or
the head thereof; or
ii. The functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
b) This order shall be implemented consistent with applicable law and subject to the
availability of appropriations
c) This order is not intended to, and does not, create any right or benefit, substantive or
procedural, enforceable at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents, or any other
person.
Section 9. Permanent Organizational Creation.
a) Inhere by direct the Office of Management and Budget and the Department of the
Interior:
a. Immediately begin the process to make permanent the temporary provisions
outlined in this order so that, by 2026, we have a National Wildland Fire Agency,
to be established by Congress, that is led by a Chief of National Wildland Fire that
is responsible for all wildland fire fighting nationwide.

Legal Questions About Senate Fix Our Forests Act

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I took a look at what I think is the current draft of the bipartisan Senate FOFA bill, introduced by Curtis, Sheehy, Padilla, and Hickenlooper, while I have many questions abaout how it’s supposed to work, the section on litigation stuck out to me as needing some interpretation from our legal friends.

Questions: 1) How different is this from the current approach?
2) Do judges usually think plaintiffs can suffer “irreparable injury” from fuel treatment projects?
3) The “public interest” considerations includes the “likelihood that the fireshed management project will achieve the stated purpose of the fireshed management project”. Jon showed us yesterday that at least one judge seems to think that treatments may not achieve the purpose (or that BLM didn’t adequately address the scientific counter-arguments). So it seems like judges will have to weigh in on whether a project will achieve the stated purpose- but maybe that means the judge weighs in on whether the agency adequately wrote about whether it would achieve the stated purpose? Is the judge making a call on whether it will, or whether the documentation was adequate to determine whether it will, or both, or neither?
4) What is a vacatur, and how does it apply to fuels projects, and in what sense this would be a change?

Subtitle C—Litigation Reform
15 SEC. 121. COMMONSENSE LITIGATION REFORM.
16 (a) DEFINITIONS.—In this section:
17 (1) AGENCY DOCUMENT.—The term ‘‘agency
18 document’’, with respect to a fireshed management
19 project, means a record of decision, decision memorandum, environmental document, or programmatic
21 environmental document.
22 (2) COVERED AGENCY ACTION.—The term
23 ‘‘covered agency action’’ means—
24 (A) the establishment of a fireshed management project by an agency;
76
ARP25243 F9N S.L.C.
1 (B) the application of a categorical exclusion to a fireshed management project;
3 (C) the preparation of any agency document for a fireshed management project; and
5 (D) any other agency action as part of a
6 fireshed management project.
7 (3) NEPA TERMS.—The terms ‘‘categorical exclusion’’, ‘‘environmental document’’, and ‘‘programmatic environmental document’’ have the meanings given those terms in section 111 of the National
11 Environmental Policy Act of 1969 (42 U.S.C.
12 4336e).
13 (b) LIMITATIONS ON JUDICIAL REVIEW.—
14 (1) LIMITATIONS ON INJUNCTIVE RELIEF.—
15 (A) TEMPORARY DELAY OF COVERED
16 AGENCY ACTION.—Notwithstanding any other
17 provision of law, in the case of a claim arising
18 under Federal law seeking judicial review of a
19 covered agency action, a court shall not issue a
20 preliminary injunction against such covered
21 agency action unless the court determines
22 that—
23 (i) subject to subparagraph (C), such
24 preliminary injunction is in the public interest;
77
ARP25243 F9N S.L.C.
1 (ii) the balance of equities favors the
2 plaintiff;
3 (iii) the plaintiff is likely to succeed
4 on the merits; and
5 (iv) the plaintiff is likely to suffer irreparable injury in the absence of preliminary relief.
8 (B) PERMANENT LIMIT ON AGENCY ACTION.—Notwithstanding any other provision of
10 law, in the case of a claim arising under Federal law seeking judicial review of a covered
12 agency action, a court shall not issue a permanent injunction against such covered agency action, or an order to otherwise permanently limit
15 such covered agency action, unless a court determines that—
17 (i) subject to subparagraph (C), such
18 permanent injunction or order is in the
19 public interest;
20 (ii) the balance of equities favors the
21 plaintiff;
22 (iii) the plaintiff has suffered or will
23 suffer irreparable injury; and
24 (iv) no adequate remedy is available
25 at law.
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ARP25243 F9N S.L.C.
1 (C) PUBLIC INTEREST DETERMINATION.—
2 (i) IN GENERAL.—In determining
3 under subparagraphs (A) and (B) whether
4 a preliminary or permanent injunction
5 against, or other order with respect to, a
6 covered agency action is in the public interest, the considerations of the court shall
8 include—
9 (I) the purpose for which an 10 agency is undertaking the fireshed
11 management project relating to such
12 covered agency action;
13 (II) the likelihood that the
14 fireshed management project will
15 achieve the stated purpose of the
16 fireshed management project; and
17 (III) the short- and long-term effects of proceeding with the covered
19 agency action, as compared to delaying or limiting such covered agency
21 action, including the potential for significant increases in wildfire risk or
23 severity and significant threats to the
24 health of the ecosystem.
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ARP25243 F9N S.L.C.
1 (ii) WEIGHT OF PUBLIC INTEREST
2 FACTOR.—In determining whether to issue
3 any injunction or order under subpara4 graph (A) or (B), a court shall give signifi5 cant, but not necessarily dispositive, weight
6 to its consideration of whether such order
7 is in the public interest.
8 (2) REMAND.—
9 (A) IN GENERAL.—Notwithstanding any
10 other provision of law, in the case of a claim
11 arising under Federal law seeking judicial review of a covered agency action, if the court remands the matter to the agency, the court shall
14 remand with instructions to carry out, during
15 the 180-day period beginning on the date of
16 such remand, such additional actions as may be
17 necessary to redress any cognizable harm giving
18 rise to such claim.
19 (B) VACATUR.—
20 (i) IN GENERAL.—In remanding a
21 matter to an agency under subparagraph
22 (A), the court shall remand with vacatur
23 only if—
80
ARP25243 F9N S.L.C.
1 (I) the seriousness of any deciencies in the covered agency action
3 weigh in favor of vacatur; and
4 (II) the court determines that
5 any disruptive consequences of
6 vacatur, including the short- and long term effects of vacating the covered
8 agency action or any part of such covered agency action, do not outweigh
10 the justification for vacatur.
11 (ii) CONSIDERATIONS.—In making the
12 determination described in clause (i)(II),
13 the court shall consider whether vacatur
14 would cause—
15 (I) any significant increases in
16 wildfire risk or severity, and
17 (II) any significant threats to the
18 health of the ecosystem.
19 (C) EFFECT OF REMAND ON AGENCY.—In
20 the case of a covered agency action subject to
21 remand without vacatur, or with partial
22 vacatur, pursuant to this paragraph, the agency
23 may—
24 (i) continue to carry out such covered
25 agency action, or such parts of the covered
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ARP25243 F9N S.L.C.
1 agency action as are not vacated, to the extent that doing so does not interfere with
3 any additional actions required pursuant to
4 subparagraph (A); and
5 (ii) use any format, as appropriate, to
6 correct an agency document (including a
7 supplemental environmental document,
8 memorandum, or errata sheet), provided
9 that such format is appropriate to the nature of the deficiency.
11 (3) PRESERVATION OF AUTHORITY.—Nothing
12 in this section alters, limits, or displaces the authority of a court to review a covered agency action
14 under section 706(2) of title 5, United States Code.
15 (c) LIMITATIONS ON CLAIMS.—Notwithstanding any
16 other provision of law, a claim arising under Federal law
17 seeking judicial review of a covered agency action shall be
18 barred unless—
19 (1) with respect to an agency document or the
20 application of a categorical exclusion noticed in the
21 Federal Register, such claim is filed not later than
22 150 days after the date of publication of a notice in
23 the Federal Register of agency intent to carry out
24 the fireshed management project relating to such
82
ARP25243 F9N S.L.C.
1 covered agency document or application, unless a
2 shorter period is specified in such Federal law; or
3 (2) in the case of an agency document or the
4 application of a categorical exclusion not described
5 in paragraph (1), if such agency document or application is otherwise published or noticed, such claim
7 is filed not later than 150 days after the date that
8 is the earlier of—
9 (A) the date on which such agency document or application is published; and
11 (B) the date on which such agency document or application is noticed.

*******

Should We Be Worried About? Privatization of Federal Lands- Deja Vu All Over Again

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It’s baaack!  We had this discussion during Trump I.
We even have a category for privatization.

I first got a hint of  the Trump 2 discussion when Senator  Heinrich posted on X.

Public lands belong to all of us. Under the Republicans’ agenda, wealthy out-of-state landowners can turn our most beloved public lands into their private resorts.

I tried to track down what the Senators were responding to and reporter Kellie Lunney told me:

It’s being talking about as a potential pay-for in reconciliation. But there’s nothing “on paper” yet as far as an official proposal.

That sounded a bit out of the mainstream. Generally the fear is that R’s want to give federal lands to the States who generally don’t want them and can’t afford them.  If we look at the (bipartisan) Western Govs are about strengthening the federal/state relationships.

Certainly there were think tankers during 1.0  and probably now thinking about it. Of course, some can use a broad definition of “privatization” as in leases for oil and gas are, and leases for “conservation” aren’t.

Here’s what Wikipedia says:

Recent Privatization Initiatives and Proposals

In 2006, President Bush’s proposed budget included the auctioning of 300 thousand acres of national forests, 500 million acres of land managed by the Department of the Interior,[5] and 125 thousand acres managed by the Bureau of Land Management[6] in order to reduce the national deficit

In 2017, President Trump decreased the size of the Bear Ears and Grand Staircase-Escalante National Monuments by over 2 million acres.[7] This allowed the land to be leased by oil, gas and mining companies[8]

But indeed, there is some thought to selling or trading land for housing near communities.  But that’s not exactly  “wealthy out-of-state landowners.”  Anyway, this from Center for Western Priorities in today’s newsletter:

The Conservation Alliance announced Wednesday that over 60 businesses have joined together to send a powerful message to the president and Congress: protecting our public lands is critical to individuals, communities, and businesses across the country.

The new coalition, Brands for Public Lands, includes companies headquartered in 17 states representing varying industries and interests, from outdoor apparel and gear to media, retailers, and tourism. Overall the group represents over 48,000 employees and over $17.5 billion in revenue. Its members include REI, Patagonia, and the Outdoor Industry Association.

The group plans to focus on stopping the wholesale sell-off of public lands, defending national monuments, and protecting iconic landscapes from industrial extraction. It sent a letter Wednesday asking Congress not to sell off public land to pay down the national debt or offset tax cuts

Hmm.. “wholesale sell-off of public lands.”  I always wonder why if these folks have $17.5 billion in revenue, and are interested in federal lands, why don’t they spend their time beefing up federal recreation programs by… granting them funds directly.  It just seems to me that helping the Forest Service and BLM serve recreationists and protect the land better would be more direct than being one of many groups trying to get their way with Congress. They are always talking about the importance of the recreation economy, and how recreation is better than
“extractive” industries, but as far as I know only OHV  and hunting and fishing pay into a fund for recreation support.  Or even expanding donation programs like  the Ski Conservation Fund.

So much helpful, direct work could be done, but of course they are an industry looking out for their best interests as well.

It sounds like REI is generally against anyone in the Trump Admin since REI earlier signed a letter supporting Doug Burgum and had to backtrack:

“Many of you shared your disappointment and your frustration with that decision,” Laughton said. “Let me be clear: Signing that letter was a mistake. The actions that the administration has taken on public lands are completely at odds with the long-standing values of REI. While this happened before I arrived at the co-op, I’m here today to apologize to our members on behalf of REI, to retract our endorsement of Doug Burgum and to take full accountability for how we move forward.”

I don’t really understand why these corporations spend so much energy on political stuff. Another example: the Outdoor Retailer Trade Show.

 Denver announcement Thursday that it is the new home for the nation’s largest outdoor recreation trade show underscored an important aspect of modern business — politics matter.

The Outdoor Retailer trade show — actually two trade shows a year — confirmed that it is leaving Utah after 20 years and decamping east to Denver.

The change comes not because Denver has a bigger airport or extended a financial incentive. Organizers who made the announcement Thursday were frank that the reason they chose to move from Salt Lake City to Denver, starting in 2018, was because Colorado is more “progressive” and has a better “culture” for the industry.

Anyway, moving on from that particular puzzle.

In Outdoor Life, there was a fairly comprehensive article “How seriously should we take the sale of federal lands? Very seriously experts say.” I’ll take the scariest ones first.

Land Tawney, co-chair of American Hunters and Anglers Action Network, cited Burgum’s confirmation-hearing statements for his conclusion that large chunks of the federal estate might be sold or traded away as early as this year.

“Most people don’t realize that the BLM already has the authority to dispose of smaller parcels,” says Willms, associate vice president of public lands for the National Wildlife Federation, a legal scholar, and a Wyoming hunter and angler. “The law requires that the BLM has to go through a land-use planning process and identify the acres for disposal. The agency has to show that it’s in the national interest and must sell parcels for fair-market value, but there’s a clear pathway for this.”

How can these two statements both be true? Unless there’s an RMP process that could be started and finished this year.

Given that Republicans have a slim majority in both houses, “you could see a pathway for a proposal to sell [BLM land] that isn’t opposed by Congress, and since it doesn’t require the approval of Congress, it makes it a little easier for a sale to proceed.”

Actually getting RMPs done and getting Congress to agree both sound fairly difficult. Later Willms makes this point.

“The firewall is the process,” he says. “The BLM can’t sell a parcel if it hasn’t been identified in a land-use plan, so the land-use planning process creates an opportunity for public notice and comment and opportunity to legally challenge the outcome of that land-use plan. That’s your first firewall. The second is when the land-use plan is finalized. If it’s over 2,500 acres, Congress has to be notified and there’s an opportunity to weigh in with your members of Congress and encourage them to pass a resolution that says no, they don’t support the disposal.”

Of course, Congress could pass a law that supersedes FLPMA, or Congress could, for instance, use the budget-reconciliation process to dispose of federal lands without a traditional stepwise process.

“Conceivably Congress could say that it wants to dispose of 1.5 million acres of public land to offset proposed tax cuts,” says Willms. “They would then identify a process to do that. If that happens, your firewalls look a lot different.”

Close to the end of the article, Willms broaches the subject of reexamining FLPMA and NFMA

“Throughout the last months you hear the refrain that these public lands are not managed well,” says Willms. “This could be a moment — a way to turn the temperature down — and say we need to have a conversation about federal land management as a whole and are we doing it right? What should our priorities be and how should we do it? We had this conversation 60 years ago that led up to FLPMA and the National Forest Management Act. Maybe it’s time to reconvene that conversation and talk about these land-management statutes and consider what we can do differently.”

Yup, it could happen but I’m sure there are other things to worry about.

Like losing federal recreation positions due to them having been recently hired or converted, for one.

Federal Lands Litigation – update through April 4, 2025

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March litigation went out like a lion.

FOREST SERVICE

Settlement in Oregon Wild v. U. S. Forest Service (D. Oregon)

In January, plaintiffs reached a settlement with the Forest Service regarding the Grasshopper Project on the Mt. Hood National Forest. The Forest Service agreed to drop certain units with old-growth characteristics, limit logging in others to better protect such characteristics, and agreed to require diameter limits throughout the project area, something the EA and FONSI/Decision Notice did not include.  The press release includes a link to the settlement agreement.

Oral arguments held in March

Standing Trees filed suit in U.S. District Court for New Hampshire last May, challenging the Forest Service’s decisions to approve the Peabody West Integrated Resource Project and the Tarleton Integrated Resource Project on the White Mountain National Forest.  The plaintiff argues that the Forest Service violated NEPA because the agency did not analyze alternatives that would log less and failed to look hard at the impacts on water quality, forest health, scenery, recreation, and the northern long-eared bat.  The two projects would authorize nearly 3,000 acres of logging, 12 miles of related road construction and reconstruction in an inventoried roadless area and potential old forest habitat, as well as recreation improvements.

New lawsuit:  WildEarth Guardians v. U. S. Forest Service (D. D.C.)

On March 25, the plaintiff sought to compel release of records pertaining to the “timber targets” established for the Pacific Northwest Region of the Forest Service following an increase in national timber targets announced in December, 2023.  The plaintiff alleges that a proposed amendment to the Northwest Forest Plan “would weaken longstanding protections for wildlife in order to increase logging to meet those higher timber targets.”  While about half of identified records have been provided, nearly 6,000 pages of information were withheld.  The press release provides a link to the complaint.

Court decision in Friends of the Clearwater v. Probert (D. Idaho)

On March 26, the district court dissolved a 2022 injunction imposed on the End of the World and Hungry Ridge logging projects (discussed here) on the Nez Perce-Clearwater National Forest after the Forest Service prepared an EIS that adequately addressed each of the Court’s concerns.  (The opinion can be downloaded from this site.)

New lawsuit:  Mountain True v. U. S. Forest Service (W.D. N. Carolina)

This lawsuit was filed on March 27, and is discussed here, where a link to the complaint is provided.  The above link is to local reporting.

Magistrate’s recommendation in Center for Biological Diversity v. U. S. Forest Service and Gallatin Wildlife Association v. Jedra (D. Montana)

On March 27, in two consolidated cases involving several wildlife and ecosystem protection advocacy groups, the U. S. Magistrate identified deficiencies in an environmental assessment for a plan for six livestock grazing allotments north of Yellowstone National Park on the Custer-Gallatin National Forest.  According to a plaintiff, “The Court ruled in our favor on four out of five of our National Environmental Policy Act claims including: (1) failure to analyze the effects of putting cattle on the allotments early in the spring; (2) failure to analyze habitat connectivity, which is an important factor for grizzlies; (3) failure to analyze the cumulative effects related to activities on private lands in the area; and (4) failure to prepare an Environmental Impact Statement.”

Court decision in Center for Biological Diversity v. U. S. Forest Service (D. D.C.)

On March 28, the district court held that the Forest Service violated the Freedom of Information Act by redacting information that should have been publicly disclosed in appraisals of a 2014 land exchange authorized by Congress to allow mining on lands found on the Tonto National Forest.  The court held that, “the record shows the Forest Service did not conduct that analysis closely enough,” and that, “the Forest Service must conduct another line-by-line review of the withheld information to ensure that it has released all reasonably segregable non-exempt information.”  This article includes a link to the court’s opinion. Earlier litigation regarding this area, known as Oak Flats, was discussed here.

Administrative record ruling in Kentucky Heartwood v. U. S. Forest Service (E.D. Kentucky)

On March 28, the district court denied plaintiff’s motions to supplement the administrative record with extra-record documents and discovery related to the South Redbird Wildlife Habitat Improvement Project (discussed here).  The court found plaintiffs had not demonstrated the bad faith necessary to compel inclusion of a briefing paper and “timber target meeting notes” in the record.  It also declined to compel discovery of records documenting the Forest Service’s decision not to act on plaintiff’s supplemental information asserted in requesting a Supplemental Environmental Impact Statement (which the Forest Service had not responded to).

Court decision in Alliance for the Wild Rockies v. U. S. Forest Service (D. Idaho)

On March 31, the district court held that the Hanna Flats Good Neighbor Authority Project’s implementation will violate the Idaho Panhandle National Forest’s forest plan Access Amendment requirements for total and open road mileage for grizzly bears.  It also concluded that the mileage baseline conditions identified in the Access Amendment and IPNF Forest Plan were not properly changed in 2021 using the “administrative change” process instead of the plan amendment process.  This a continuation of prior litigation, most recently described here.

The Project area open road mileage currently exceeds the amount required by the forest plan, and the project will reduce it, but not enough to meet the requirement.  The court found that to determine consistency with the forest plan, “a project’s assessment against existing conditions rather than the Access Amendment’s baseline conditions is a false comparison.” It held that, “the Project violates the Access Amendment because it exceeds the Access Amendment’s baseline conditions…, and “the fact that the Project might reduce road mileage conditions as compared to existing conditions does not change the analysis.”

The administrative change increased the baseline road miles amount by including previously unidentified roads, so that the post-Project mileage became less than the corrected Access Amendment baseline conditions required by the forest plan.  However, the court held that by changing the baseline requirement, “the USFS is not engaging in ‘corrections of clerical errors’ addressable by an administrative change,” and “Changing baseline mileage figures materially changes the 2015 IPNF Forest Plan and therefore requires a formal plan amendment.”  The fact that actual road miles would be reduced by the Project did, however, influence the court’s decision to remand the Project decision without vacatur.  Plaintiff’s perspectives are provided here.

Court decision in Friends of the Big Bear Valley v. U. S. Forest Service (C.D. California)

On March 31, the district court upheld the North Big Bear Landscape Restoration Project in the San Bernardino National Forest.  The court rejected claims that the Forest Service ignored credible scientific evidence that: (1) fuel mitigation through the removal of trees could increase the severity of forest fires; (2) tree removal more than 100 feet from structures cannot effectively protect structures from ignition; and (3) Project area forests are not any denser than they were 100 years ago.

While plaintiffs pointed to studies and an agency analysis that showed thinning creates drier and windier conditions, the court said that these viewpoints were contrary to the scientific consensus, and the effects of this project are not controversial so an EIS was not required.  The court held:

“The Forest Service discussed its evidence, as well as the opposing viewpoints raised by Hanson, and concluded that the scientific consensus was thinning combined with prescribed burning was an effective method for reducing the severity of forest fires.  The Forest Service explained that Hanson’s studies were insufficient to challenge the scientific consensus and a range of credible scientists have significant concerns about the quality and integrity of Hanson’s and some of his colleagues’ work.”

The court also held that the project purpose did not involve home ignition so the Forest Service was not obligated to evaluate the effectiveness of this project for that outcome, but it followed from the above that there would be benefits to adjacent communities.  With regard to forest density, the administrative record showed that the Forest Service “considered Hanson’s assertion and, in a memorandum, explained why it concluded Hanson’s findings were faulty,” (including the role of basal area in them) and that the status of forest density is also not controversial.

We have previously discussed this project here.

BLM

Court decision in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

On March 31, Judge Aiken for the district court fully adopted Magistrate Judge Clarke’s Findings and Recommendations that BLM Medford District violated FLPMA and NEPA in authorizing the Integrated Vegetation Management Program. BLM authorized a program that included extensive logging in Late Successional Reserves (LSRs), but its 2016 Southwestern Oregon Resource Management Plan requires that any logging in LSRs may not delay spotted owl habitat development by more than 20 years compared to no logging. BLM could not show that to be true for some of the prescriptions, and therefore they were inconsistent with the RMP, and the Program violated FLPMA. Judge Aiken also agreed with Judge Clarke that BLM did not adequately support its decision to not prepare an EIS for the Program, violating NEPA.  The court upheld the recreation portion of the Program as consistent with the RMP.  The article includes links to both the recommendations and the order.

One of the NEPA issues in this case was the same one addressed in the San Bernardino case above – whether there is scientific controversy about the effects of thinning on fire risk that should require discussion in an EIS.  Here the court reached the opposite conclusion:

“The controversy inherent in the IVM Program’s plans remains unresolved by BLM’s response. In simply electing its chosen alternative without fully exploring the conflicting research on the issue through a formal EIS, BLM effectively reduces its findings to only the positive outcomes, while discounting the coinciding negative possibility that treatments would exacerbate forest fires.”

This case also involved two timber sale projects (Penn Butte and Late Mungers) that would implement the IVM Program.  While the Program stated an intent for site-specific analysis to occur with subsequent projects, these projects attempted to instead tier to the RMP EIS (with a “determination of NEPA adequacy”), which prompted the court to say “the style of tiering employed by BLM in this context effectively allows the agency to avoid completing any site-specific analysis under the guise of passing it off as already considered.”  The precedential effect of allowing this to occur at the project-level was another reason an EIS should have been prepared for the Program.

Court decision in Cascadia Wildlands v. Adcock (D. Oregon)

Also on March 31, Judge Aiken ruled partially in Cascadia Wildlands’ favor on NEPA claims it brought against the BLM regarding the N126 Project west of Eugene (Siuslaw Field Office). The N126 Project targets Late Successional Reserve stands surrounding intermingled Harvest Land Base stands. Judge Aiken ruled that BLM had not taken a hard look at impacts of sediment delivery from roads to streams, and failed to consider the cumulative impacts of a nearby Forest Service logging project. Further, BLM failed to adequately support its decision to not prepare an EIS, particularly regarding sediment, cumulative impacts, and impacts to ESA-listed marbled murrelets from road construction.

Settlement in Klamath-Siskiyou Wildlands Center v. U. S. Bureau of Land Management (D. Oregon)

In January, the BLM also settled a case involving the Rogue Gold Project. This project included a nearly identical FLPMA claim as the IVM case: BLM authorized LSR logging without demonstrating such logging would not delay spotted owl habitat by more than 20 years compared to no logging. After plaintiffs filed suit, BLM amended its project decision to drop such treatments. BLM agreed not to authorize such treatments without further environmental analysis and the parties settled.

ENDANGERED SPECIES

Court decision in Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. Arizona)

On March 12, the district court established deadlines for the U.S. Fish and Wildlife Service to complete biological opinions assessing the effects of five pesticides approved by the EPA on threatened and endangered species.  The consultation for chlorpyrifos and diazinon began in 2017 and for carbaryl, atrazine and simazine more recently.  The court ordered completions over a three-year period with dates requested by the Fish and Wildlife Service (starting with carbaryl, due a few days ago.)

Court decision in Western Watersheds Project v. Haaland (D. Nevada)

On March 25, the district court found that trespass cattle grazing on a BLM allotment and development of solar energy sites on federal lands, where such actions had been assumed to not occur, could be considered new information requiring reinitiation of ESA consultation on the effects of the Clark County (NV) Multi-Species Habitat Conservation Plan on Mohave desert tortoises, since the information became available within the 6-year statute of limitations period.  However, the court also dismissed a claim that the HCP became immediately invalid when the criteria for reinitiation were met.  The court will proceed to address the merits of the case.

New lawsuit:  Center for Biological Diversity v. U. S. Fish and Wildlife Service (D. D.C.)

On March 27, plaintiffs sued the Fish and Wildlife Service over failure to issue final rules on their petition to list the Kern Canyon slender salamander and relictual slender salamander after they were proposed for listing as endangered, in violation of the Endangered Species Act’s one-year deadline.  The species’ habitat is found on and near the Sequoia National Forest, and plaintiffs claim the salamanders’ greatest threats include grazing, recreation, fire and climate change, leading to habitat loss.  The article includes a link to the complaint.

Court decision in Kansas Natural Resource Coalition v. U. S. Fish and Wildlife Service (W.D. Texas)

On March 29, the district court vacated the Endangered Species Act special 4(d) rule regarding prohibited incidental take for the northern distinct population segment of the lesser prairie-chicken.  This species doesn’t occur on NFS or BLM lands, but the ruling may affect listings of species that do.  The district court held that ESA section 4(d) requires the Fish and Wildlife Service to make a determination for every proposed prohibition promulgated under ESA section 4(d) that the prohibition is “necessary or desirable for the conservation of the species” (quoting language from ESA), and that this determination must consider economic impacts.

Court decision in Center for Biological Diversity v. Haaland (D. Arizona)

On March 31, the district court upheld a rule updating the section 10(j) nonessential experimental population designation of Mexican wolves.  The court’s conclusion:

“FWS considered numerous model scenarios under the Miller PVA (Population Viability Analysis) and based its 2022 10(j) Rule on the best available science. None of the purported oversights noted by Plaintiffs render the Rule itself unreasonable. Additionally, FWS took a hard look at the environmental impacts of the 2022 10(j) Rule and considered a reasonable range of alternatives (thus complying with NEPA).”

The substance of the dispute revolved around a decision to rely on a population of wolves in Mexico rather than expand the range in the U. S. north of I-40.   The court also upheld the determination that the U. S. population was “nonessential,” largely in light of a captive breeding program.

New lawsuit:  American Farm Bureau Federation v. U. S. Fish and Wildlife Service (D. D.C.)

On March 31, a coalition of seven industry groups representing farming, mining, and oil entities sued, challenging several provisions of the former administration’s 2024 regulations under the Endangered Species Act.  The groups call for a return to 2019 Trump-era regulations.  The factsheet includes a link to the complaint.

OTHER

Court decision in Iron Bar Holdings, LLC v. Cape (10th Circuit)

On March 18, in a suit brought by a private landowner, the circuit court upheld the district court’s ruling that hunters were within their rights to step over the airspace of private land as they accessed parcels of federal public land.  The court interpreted the 1885 Unlawful Inclosures Act, which prohibits landowners from putting up barriers to otherwise accessible public lands, to mean a landowner can’t “implement a program which has the effect of ‘deny(ing) access to (federal) public lands for lawful purposes.’”  The article includes a link to the opinion.  The western policy and conservation manager for Backcountry Hunters and Anglers pointed out that in states outside the 10th Circuit the ruling is “persuasive” and could help bolster the case for corner crossing, but isn’t legally binding.

New lawsuit:  National Treasury Employees Union v. Trump (D. D.C.)

On March 31, the union filed a lawsuit against an executive order that instructs 18 federal agencies to end collective bargaining with federal unions because they were determined to have a “primary function” in “intelligence, counterintelligence, investigative, or national security work” – including the BLM and the EPA.  This would make it easier to fire employees.  The article includes a link to the complaint and the Executive Order.  This article lists the agencies included (the Forest Service is not mentioned).