Rethinking Forest Planning – Guest Post from Mark Squillace

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Mark Squillace is a law professor and the Director of the Natural Resources Law Center at the University of Colorado Law School. Some of his views on the process-related issues surrounding the current round of forest planning are set out in a post titled Engaging the Public in the Latest Round of Rulemaking on Forest Planning on the Red Lodge Clearinghouse blog.

After two days of intense discussion about the forest planning process at the May 11-12, 2010 workshop in Rockville, Maryland, I’d like to offer these observations while they are fresh in my mind. First, kudos to the Forest Service and the Meridian Institute for establishing such an open and effective process for engaging the public. I have written more specifically about the process on the Red Lodge Clearinghouse website and those comments can be found here. In this post, I would like to suggest a few principles that I believe should govern the rulemaking process for forest planning and a few ideas for establishing a process that reflects those principles.

First and foremost, the Forest Service must not lose sight of the fact that the central problem with the current framework for forest planning is that it is too complex. As a result of this complexity, plans often take many years to develop, and their very complexity invites appeals and litigation. Let’s not ask too much of our forest plans. They should offer a vision for the future management and use of discrete areas and not much more. They should be simple enough that they can be completed within a year – two at the very outside. They should be relatively short – no more than 150 pages, and they should be accessible to the general public so that the general public can meaningfully participate in the planning process. Plans are likely to be most accessible if the alternatives that are being considered can largely be understood by looking at series of maps reflecting the alternative visions for forest management.

The complexity contained in most of our current plans relates largely to the fact that the Forest Service has historically used the plans to establish detailed standards and guidelines for managing particular forest resources. My sense is that this largely traces back to the Forest Service’s belief back in the early 1980’s that forest plans developed under the 1982 rules could essentially govern all future decisions on the forest, at least until a new forest plan was developed. I think we know now that this model does not work. Yet the Forest Service still seems to cling to the belief that more complex forest plans will make project level decisions easier. If they stepped back and thought about this they would surely realize that more complex plans do not make anything easier.

This leads to my recommendation that the planning rules should establish a process for “tiered planning.” Tiered planning borrows a concept from NEPA. Under a tiered planning regime the Forest Service would first develop a large scale, “bird’s eye” vision for the forest that would meet the basic legal requirements of NFMA for land and resource management plans. This would involve a NEPA process that considers various alternative visions for a forest, before a final vision is chosen. Among the decisions to be made at this large scale level would be what resources on that particular forest required separate resource specific plans. The large scale plan would guide the Forest Service in the development of these sub-level, tiered (and integrated) plans for the particular resources identified during the land use planning process. These tiered resource-specific plans would be accompanied by separate NEPA processes and separate opportunities for review. Different forests would need different resource plans. Project level decisions that relate to particular resources studied in a sublevel plan would then fall under a third tier, but since not all forest resources would necessarily require a sub-level plan, some project level proposals might simply flow from the large scale plan itself.

Breaking down plans into component parts, as the proposed tiering process would do, will not necessarily lead to less work for the Forest Service up front. But it will allow the basic plan – the vision document – to be developed more easily and more quickly, and it will allow conflicts and controversies to be better isolated to particular resources While tiered planning might be criticized for failing to promote sufficient integration of resource-specific assessments with land use decisions as required by NFMA, the Forest Service can address this problem simply by adhering to the basic principles of tiering articulated in the Council on Environmental Quality rules implementing NEPA. In particular, those rules describe “tiering” as appropriate when “it helps the …agency focus on issues that are ripe” and “exclude[s] from consideration issues … not yet ripe.” 40 CFR 1508.28(b). By divorcing the planning choices from the choices relating to specific resources, the Forest Service can put off consideration of those resource specific issues until the agency is ready to consider whether and how specific resources should be used.

Another great advantage of tiered planning is its potential for engaging the public in a more meaningful way. Tiered planning can achieve this goal because it allows interested parties to be involved at whatever level of detail they desire. Those most interest in the particular type of land uses that are going to be allowed on particular tracts of lands (or perhaps over the entire forest landscape) can participate only on the land use level decisions, with some confidence that the choices made during this large scale planning process will be honored as sub-level decisions are made. Those interested in the development, use, or management of particular forest resources can focus their attention on particular resource plans or project level decisions involving those resources and those lands where particular resources are authorized for use.

I want to conclude with one general observation about the current process. Even as I applaud the Forest Service for initiating this ambitious exercise in civic engagement, the agency should recognize that one of the risks associated with this process is that it invites even greater complexity in planning. The natural tendency of participants asked to consider ways to improve forest plans is to suggest additional requirements that might be imposed on forest planners. For all of the reasons expressed above, making forest plans more complex than they already are would be a huge mistake, even if, in the abstract, we might agree on an idea for further improving forest plans. A great example of this comes from the workshop and concerns the request to participants that they consider “restoration and resiliency” as one of six issues for forest plans. Understandably, most people think that restoration of degraded forest resources and managing forest resources to promote resiliency are generally good things. I don’t disagree. But restoration and resiliency cannot and should not be treated as ends in themselves. Indeed, it is generally accepted that restoration of degraded lands to their original condition is probably not possible, and maybe not even desirable. More importantly, restoration and resiliency should be seen for what they are – tools that might (or might not) help to achieve the goals and objectives established in a forest plan.

The elusive goal of finding a better way to do forest planning will only be achieved if we come to grips with the fundamental problem associated with the current process. It’s too complex. We need to rethink forest planning in ways that will allow forest plans to be concise, accessible to the general public, and developed and implemented within a reasonable period of time. I appreciate the fact that it won’t be easy. But I nonetheless believe that it can be done.

Landscape Scale Assessments- Rim of the Valley-Who’s on First?

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On this blog, there have been many discussion of planning over different spatial scales and ownerships. In yesterday’s AP story in the San Jose Mercury News about an assessment in Southern California toward an all-lands approach.

PASADENA, Calif.—The National Park Service is beginning a lengthy study on ways to conserve corridors of wilderness around the intense urbanization of Los Angeles.

Officials suggested Friday that the outcome would likely be a proposal to Congress for collaborative management between the National Park Service, U.S. Forest Service and public-private partnerships, but property rights advocates charged that it will lead to a land-grab for a national park.

The story included this interesting (hopefully) misspelling:

Smeck said the process will include a series of meetings this summer to gather public input and identify stakeholders. Officials will determine which areas rise to national importance and study how the Park Service might fight in with existing entities doing conservation work.

A different take on the same thing showed up yesterday in the Pasadena Star

PASADENA – U.S. Forest Service officials announced Friday the beginning of a five-year study of an open space that stretches from the Santa Monica range to the San Gabriel Mountains.

The Rim of the Valley Corridor includes private and public land from the Santa Monica Mountains, Santa Susanna Mountains, San Gabriel Mountains, Verdugo Mountains and San Rafael Hills.

The Forest Service wants to bring the lands under federal protection and would study the possibilities of trail development, land acquisition and preservation of wildlife corridors that connect different sections of open space in the area.

Read more: http://www.pasadenastarnews.com/news/ci_15231347#ixzz0pzxqGQ9l

It’s interesting how the two different stories described the role of the Park Service compared to the Forest Service. The creative aspect is to take an “all lands” approach and for only $500K over 4 years, and the fact that is is not part of an NFMA process. It is also interesting that the AP story talks about “wilderness” in a kind of generic way..

“The question then became decades later, would we feel the same foresight? Would we be able to anticipate the same kind of growth in population, the same need to proactively try to preserve this incredible wilderness area?” said Schiff, whose district includes foothill communities along the wilderness areas.

So it is not particularly clear from these news stories if the assessment is for land allocations within the Forest Service land, to identify potential acquisitions and easements, to give the Park Service a larger role in collaboration, to “protect wilderness” or all of the above.

Poll shows strong support for Wyden Bill

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Other NCFP bloggers Martin and John, and I (to a limited extent) were at the One Third of the Nations’ Land Conference at the University of Colorado Law School this week.. more to come on that.

The timber panel that Martin led on Tuesday afternoon discussed the peacemaking going on between the timber industry and environmentalists through local collaborative efforts. Which is echoed in this morning’s piece in Oregon Live.

The poll by Public Opinion Strategies showed that 77 percent of respondents support the Oregon Eastside Forest Restoration Act drawn up by Sen. Ron Wyden, conservation groups and timber industry representatives. Half the respondents interviewed are residents of the 2nd Congressional District, which covers much of Oregon east of the Cascades. About 75 percent of them approve of the plan, according to the poll.

“The thing that surprised even us is the depth and breadth of support for this … across all demographics,” said Steve Pedery, conservation director for Oregon Wild, the environmental group that commissioned the poll.

Pollsters interviewed 500 voters by telephone from May 22 to 25, with 250 of them living in the 2nd Congressional District of Republican U.S. Rep. Greg Walden. Nearly 73 percent of the statewide respondents agreed with the statement that federal forest policies are outdated and need to be revisited. Eighty-one percent agreed that forest protection and increased timber production are compatible.

The Power of Precedence- Recreation Residences

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One fundamental principle in public lands policy that I would propose is that it is much more difficult to remove or reduce an existing use, than to never have allowed it in the first place.

At the “One Third of the Nation’s Land” Conference today at University of Colorado, the planning panel was asked to look at Chapter 13 of the report (1970) which recommended phasing out recreation residences. They did not spend any time on it as the time was taken up by other intriguing ideas, including planning and a new FS planning rule. However, the “One Third of the Nation’s Land” report did have this recommendation.

Vacation Homesites
Recommendation 95; Public lands should not hereafter be made available under lease
or permit for private residential and vacation purposes, and such existing uses should be
phased out.p 223

This recommendation was made by a bipartisan commission in 1970, and this issue is as fresh as today’s headlines..”Real Estate Debate Rages In America’s Federal Forests.” I attribute this to the power of precedence… other thoughts?

Forest Service Planning Rule Meeting Notes Now Available

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Notes are now available  on the Forest Service planning rule website for the third national roundtable meeting on a new Forest Service planning rule.  The May 11-12 meeting in Rockville, Maryland was designed to focus on six topics that the rule writing team “identified as needing additional public input”.  In the summary notes, there are no consensus viewpoints on issues including species viability; the inclusion of forest restoration as a rule requirement; balancing local, regional, and national interests; making findings about “best available science”; and writing flexible, adaptable plans vs. plans with strong consistent standards.  An appendix to the report contains some specific recommendations for the rule writing team that were submitted during the meeting from the 111 participants.

A fourth national roundtable has tentatively been set for July 29 and 30 in Washington D.C. to review specific rule language that is now being developed.  More details will be posted on the planning rule website.

If I was Chief . . .

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No doubt tired of my whining, Sharon gently threw down the gauntlet — “what you would do if you were Chief for a Year to make things better.” Friday seems a good time to nibble at the bait.

I’d start my tenure by listening to Forest Service leaders. In 2004, Jim Kennedy (Utah State University), Richard Haynes (FS economist) and Xiaoping Zhou (PNW research forester) surveyed line officers gathered at the third National Forest Supervisors’ Conference. The officers ranked the “operational values” they believe the Forest Service rewards, followed by a ranking of the values that participants believe should be rewarded. Most rewarded, in practice, are (1) teamwork, (2) agency loyalty, (3) meeting targets, (4) professional competency, (5) hard work, and (6) promoting a good FS image. What should be most rewarded, the leaders say, are (1) care for ecosystems, (2) professional competency, (3) consensus building, (4) care for employee development, (5) responsiveness to local publics, and (6) concern for future generations.

These results suggest that line officers believe the Forest Service rewards loyalty to the organization, e.g., loyalty to the team, agency, and targets. Kennedy calls this “dog” loyalty: “Dog-loyalty is direct, unswerving, immediate loyalty to the master, that is, the boss or the agency.” Kennedy, J. and Thomas, J.W., “Exit, Voice, and Loyalty of Wildlife Biologists in Public Natural Resource/Environmental Agencies,” in Mangun, W.R. (ed), American fish and wildlife policy, the human dimension. In contrast, many of the values line officers want rewarded (care for ecosystems, consensus building, responsiveness to local publics and concern for future generations), exemplify “cat loyalty” – “a less master-oriented, broader, and more diverse loyalty to the household” – in other words, loyalty to the agency’s mission.

My first priority as Chief would be to work against the bureaucracy’s natural dog-loyal tendencies by pushing cat-loyal practices. Here’s a modest forest planning example.

Has anyone not used the web to find out how others rate a product, like a new car, book, or bicycle (after much research, my new racing machine is a Cannondale CAAD9)? So how about an on-line rating system for forest plans available to those implementing the plans (FS employees), those working on the national forest (contractors, special-use permittees, local governments), and everyone else (visitors)? Here are some rating questions (scale 1-5 with room for comments):

Does the forest plan help you do your job?

Is the plan easy to understand?

Does the plan tell you what you want to know?

A “dog loyal” organization might ask these questions, but would make sure that the answers are hard to find, hidden away in agency files. Cat-loyalists seek transparency because they want to improve their agency’s mission performance (“Caring for the land and serving people”), even at the risk of offending internal vested interests.

So what would you do as Chief?

Introducing Roadless Media Watch

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Roadless (litigation, rulemaking, projects) seem to be of interest to our group as it involves mapping and zoning, and attempting to make some of these designations permanent, through rulemaking rather than legislation. Right now it involves local (state) versus national decision-making, the role of national environmental groups and a host of other themes of interest to us.

I’d like to contribute to this dialogue by reviewing press articles and observing 1) how closely they stay to the facts (clarity and accuracy), 2) their fairness and 3) whom they choose to speak and the accuracy of the statements quoted. I’m expecting that this will be of interest because roadless areas and polices, unlike planning rules, have distinctive facts associated with them- sometimes that may be too complex to get across in a news article.

I’d like to improve the knowledge and the quality of discourse around this issue- which can be fairly ideological. This is not to criticize members of the press; in the space they have, sometimes all they can say is something generally true with quotes from people who have varying degrees of accuracy and agenda associated with their comments. That’s where I think blogging with people interested, and knowledgeable, with varying points of view, will add substantially to public dialogue on this important subject.

Our first example will be this piece from Noelle Straub of Greenwire in today’s New York Times.

I would give it a score of 15. 5 out of 5 for clarity. 5 out of 5 for accuracy. 5 out of 5 for fairness. That’s a 15 out of 15. Congratulations, great way to start us off, Noelle! If this were an iconic American summer sport, you’d have hit it out of the park!

Next Week: Land Law Review Conference

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Next week is the summer June 2-4, 2010 Martz Summer Conference 2010
The Past, Present, and Future of Our Public Lands.
University of Colorado Law School
It sounds like John Rupe, Martin and I will all be there. Martin is the moderator of the timber session, and Rick Cables is speaking about Forest Service planning. Scott Fitzwilliams, the White River Forest Supervisor, is speaking on recreation, and Harris Sherman the Undersecretary for Natural Resources is a keynote speaker. With the variety of speakers, I am looking forward to some stimulating discussions to carry forward to this blog.

Question for consideration…

John and I have been talking about using ecosystem services as a broadening of consideration of different uses in forest plans- rather than “desired conditions” talk about desired services provided. Not to quantify them or cost them out, just to talk about what we want from a piece of ground and how those desires interrelate. John and I think that might be an easier shift from multiple uses to ecosystem services. I think he’s going to post in the near future on some of the problems we’ve experienced with the use of desired conditions.

As to sustainability- great concept, but it is difficult to prove anything is sustainable and balancing the three kinds of sustainability just led to analytical and conceptual problems, in my view.

What do you think about using ecosystem services as a framework for forest planning?
Pros, cons, and watch-outs?

Place-based Bills & Agreements: Defining Characteristic #3: Frustration with Status Quo and Desire for Change

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Martin Nie, University of Montana

Here is my third post focused on the defining characteristics of selected place-based bills and agreements.  I should have started with this one obviously.  But unlike the other posts on the topic, this one doesn’t emerge from just looking at those tables and associated documents—but required some further background, digging, and conversations. 

A third defining characteristic of these initiatives is a widespread sense of frustration with the status quo.  While differences abound, all of these initiatives want to change something in national forest management.  Though not universally agreed upon, there are multiple sources of frustration shared by members of these groups. 

Some group representatives, for example, express frustration with forest planning processes.  For some, the process takes too long, while for others it doesn’t provide enough certainty or predictability (as discussed previously). Compounding things is the fact that forest planning rules have been in a state of regulatory and legal limbo. 

Funding for the USFS is another commonly identified source of frustration.  All of the initiatives have taken shape in the shadow of a deeply problematic Forest Service budget that has been annually upended to pay for associated fire management costs.  Since the 1990s, the average annual acreage burned by wildland fires has increased by roughly 70 percent. At the same time, the Forest Service’s fire-related appropriations have more than doubled, representing about half of the agency’s total annual appropriations.   In order to pay for the costs associated with wildland fire suppression and management, the agency has regularly transferred funds from other Forest Service programs. 

For Senators Tester and Wyden, among other Senators recently writing to President Obama, money going to fire suppression is money not going to restoration and forest management: 

When the Forest Service’s general budget is reduced either by fighting wildfires or inflationary costs, other vital projects such as restoring watersheds, investing in infrastructure, and managing for ecosystem health are put on an indefinite hold.  These programs are critical to protecting our communities, adapting to climate change, maintaining our forest products infrastructure and improving ecosystem health.

Similar complaints have been made by others, and they cross the political spectrum.  For Russell Vaagen, Vice President of Vaagen Brothers Lumber Inc., and a member of the Northeast Washington Forestry Coalition, the Forest Service’s fire budget “is now squeezing every other non-fire program” and this constitutes a “disaster of epic proportions.” In representing Oregon Wild in favor of Senator Wyden’s bill, Andy Kerr similarly acknowledges the challenges of securing adequate funding to implement S. 2895: 

The best source of funds to pay down this ecological debt—by undertaking the necessary comprehensive forest and watershed restoration—is to reprogram current Forest Service annual appropriations that now go to a fire-industrial complex that wastes billions of dollars attempting to extinguish fires that cannot or should not be extinguished.

This budgetary backdrop adds another dose of uncertainty and frustration into the mix.  And this helps explain why so many initiatives are seeking more secure dollars from alternative funding sources.  Senator Wyden, for example, authorizes $50,000,000 to carry out the purposes of his bill.  Several initiatives are also competing for appropriations already authorized by the Forest Landscape Restoration Act.  And every initiative embraces the use of stewardship contracting authority as a way to pay for restoration and mitigate the problems associated with having to rely upon a highly uncertain Congressional appropriations process. 

Some of the dismay also revolves around the organizational culture of the U.S. Forest Service.  This theme emerged—unprompted—in several discussions with place-based participants.  Some people see the agency as a “paper tiger,” one forced to do more planning and paperwork than active forest management and restoration.  Others emphasize a perceived agency culture that is resistant to change and slow to embrace new ways of doing things.  One person went so far as to compare the agency’s troubles with the history of the U.S. auto industry.  Whatever the reasons, frustrations with the USFS partially explains why place-based initiatives are seeking legislation or formalized agreements, as both approaches ostensibly limit the agency’s discretion and force it to do particular things. 

Several people also expressed frustration with the Forest Service’s small-bore approach to restoration.  A common refrain, heard from conservationists and industry representatives, is that the agency manages and implements projects at too small of scale.  This is probably due in part to the agency’s fear of administrative appeals and litigation.  These challenges apparently get easier as the projects get larger in scope and scale.   The irony here is that the Forest Service, in Pavlonian response to appeals and litigation, are now thinking at too small of scale according to various interests.  Russell Hoeflich, Vice President and Oregon Director of the Nature Conservancy, played a consulting role in Wyden’s Bill and summarized the situation like this:

Controversies surrounding forest management compel federal agencies to plan restoration projects at very small scales.  To meet their action goals, federal agencies have to consider what is doable in addition to considering what is most important.  As a result, they often propose relatively small and narrowly-focused management actions.  On the other hand, ecosystems and the species they support interact in complex ways and at relatively large scales on the landscape.  The magnitude of the forest health problem demands working at vastly larger scales if we are to get ahead of the problem.

When viewed together, these frustrations, among others, help explain why these initiatives are doing what they are doing. 

P.S.  Just a reminder that registration for the upcoming symposium focused on place-based laws and agreements closes this Friday.