Fixing the “Rule”

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As we have been discussing in previous posts/comments, one possible resolution to the forest planning dilemma — as part of NFMA rule development — is to deal with what has been called forest planning under the broad umbrella of adaptive governance, or adaptive co-management.

A part of the process would be to require an “every five years review/evaluation” of ALL decisions related to or interrelated with an administrative unit of the national forest system. This was recommended by the Clinton era Committee of Scientists as I recall. The evaluation, along with a database of all decisions relating to the FS unit would be all that a new rule would require. Specifics required by the law could be packed into the review/evaluation requirements or allowed in other decisions fitting into “ALL decisions” above. Note that most decisions would be appropriately framed (scale and scope) and dealt with as wicked problems (Wikipedia, EcoWatch) at levels above or below the forest administrative unit—on rare occasions “at” the level of the administrative unit.

The “review” might be accompanied by some simple scenario planning (Wikipedia) — which is more the stuff of futuring than of planning — to deal with emergent, but unknown, even unknowable futures. Note that scenario planning specifically avoids the “desired future” trap.

My vision of the every-five-years-evaluation would also allow for “niche” statements to be developed for a forest unit (perhaps for appropriate subunits as well). As with “scenario planning”, the Forest Service/USDA might or might not require niche statements in the NFMA Rule. My preference would be to include both, but with a strong caution not to over-complicate “requirements”, in the rule, in manuals, in handbooks.

I would be pleased to see the Forest Service adopt such a resolution or to at least explain how such is inappropriate framing (Wikipedia) for RPA/NFMA forest planning/management, or inferior to alternate proposals. Maybe some who frequent this blog can step up and explain any inappropriateness in advance of what will likely be yet-another nonresponse from the Forest Service. Or maybe you will like it, and will offer up suggestions for improvement. I am very concerned that the forthcoming “show and tell” NFMA Rule meetings will yield no useful results. So any suggestions coming from us here may be the Forest Service’s best hope to avoid another wasted 30 years.

Related:
The Frame Game
A Simpler Way (Forest Policy-Practice, 2006)
Interrelated Ecosystems and Adaptive Management, (EcoWatch, 1992)

QLG – Granddaddy of Place-Based Collaboration

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The granddaddy of place-based national forest legislation is the 1998 Herger-Feinstein Quincy Library Group Forest Recovery Act (“QLG”), which resulted from a 1993 collaborative group “community stability proposal.”  So how has the law worked out?  Here’s what the Forest Service reported in its latest QLG monitoring report:

Implementation of the Pilot Project continues to be affected by litigation and appeals. Court decisions are pending on cases that have been in litigation for up to four years. In FY08, approximately 90 percent of all timber sales or service contracts across the HFQLG Pilot Project area were stalled due to litigation or appeals. As a result, volume of both sawlogs and biomass sold declined by 50 percent from FY07 levels.

Since 1998, QLG-area sawlog volume sold averaged less than 20% of the 1992-1997 average level.  Forest Service expenses have stayed constant, but timber revenues have declined to 35% of pre-QLG law levels.  Forest industry jobs have dropped 25% and several of the area’s largest sawmills have closed.

The Forest Service bureaucracy is the major beneficiary, as QLG proved to be a magnet for federal spending.  But few would argue that the original “community stability” goal was realized, nor, perhaps, could changes in natural resource policy alone alter the downward economic trajectory suffered by most of the West’s rural communities.

Modern-day proponents of similar schemes, e.g., Beaverhead-Deerlodge and eastern Oregon legislative proposals, would do well to learn from QLG’s experience.

Recommended Reading: BLM Negotiation Strategies Document

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Kudos to BLM for this excellent document ..  at a glance, it is a comprehensive overview of the landscape of collaboration and conflict resolution.   The photos included are excellent also. The below section talks about the competitive style of negotiation, thoughts which are similar to what I said in this morning’s post but expressed way more articulately.

Negotiators who use a competitive approach aggressively advocate for their position and are disinclined to accept any agreement other than that which satisfies their preconceived goals. Using this approach, the objective is to “win,” if need be, at the expense of other parties. For natural resources issues, competitive approaches can lead to intractability as negotiators focused on winning their positions may miss opportunities for discretion, compromise, or common interests, thus unnecessarily escalating a dispute to litigation or appeal.

The competitive approach is also less likely to take into account preservation of the relationship between the negotiating parties. As such, while competitive negotiators initially may succeed in winning their positions, the approach quickly becomes less effective in future negotiations with the same parties. In managing public lands and resources for multiple-use, the BLM often is in a position to negotiate with the same stakeholders multiple times in multiple situations. Competitive approaches from either the Bureau or stakeholders can create an adversarial relationship, thus decreasing the potential for success in future negotiations.

Reflections on Dispute Resolution via the Courtroom: Field Trip to 10th Circuit Court of Appeals

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Yesterday morning we visited the 10th Circuit Court of Appeals to listen to the appeal of Judge Brimmer’s decision on the 2001 Rule.

There were three judges presiding,Anderson, Murphy and Holmes.  Since this is Women’s History Month, I have to point out that all the lead counsels, and all the judges were male.  The ratio of female to male judges in the Tenth Circuit is 3/20   or 15% based on their website, so the latter is not surprising.

Only some topics were relevant to our discussions of the planning rule.  One was the degree to which the concerns of the public during commenting need to be taken into account, and to what extent  decisions can be predetermined in advance.   I think it was Judge Anderson who said “Presidents are entitled to say let’s do this; that’s why they’re elected.” And there was also some discussion about inclinations, predispositions, predeterminations, and I think I also heard predestination (??).

One of the points made by the Wyoming attorney was that the analysis in the 2001 was  not site-specific enough to be meaningful .  I think it was something along the lines of “NEPA does not give you a pass because it’s hard to do the work”  quoting a 9th Circuit case on that.  Just another illustration of the problems of  programmatic  EIS s and the question of  “how specific does it need to be to allow site specific decisions without site specific analysis.”

I also heard echoes of our ongoing conversation on local places- how can you know about what is best for a creek and a landscape if you are dealing with millions of acres in a short period of time? But whether good land management decisions for specific units can be made nationally  is not fundamentally a legal question.

There are a couple of cultural differences worthy of note between the courtroom level and the kind of collaboration we work with day to day.  The first is that it is more adversarial. People win and they lose.  The judge doesn’t say “what can we walk out of here today and live with?”.  The second is that people care about trees and fire protection and wildlife, but the discourse is mostly about documents and analyses and relationship to statutes- not  what we can agree on to encourage productive and enjoyable harmony between man and his environment (NEPA section 101). When the judge and counsel talk about say, bark beetles, fuel treatments or coal mining,  they don’t seem to be clear on the facts (or counsel is intentionally unclear to slide by on their point), and certainly the structure of the process at this point does not allow for further fact-finding (15 minutes per side, in this case).

Third, is that compared to public comment and even discourse on this blog,  only some people are allowed to give their opinions.  So, for example, science is filtered through the legal profession, e.g.,  ” the 2001 rule was based on science.”

At the end of the day, I was feeling like perhaps this was not the best place for public land conflicts if it could be avoided.   The question is whether it could be. I remembered that some states,  for divorces, require mediation before they are allowed to go to court.

Here is the rationale for that in Utah (my translation is in italics):

Why is mediation required?

Mediation is appropriate in family (resource) related matters because it encourages collaborative problem solving by the parties. Mediation provides the greatest opportunity for direct communication and the sharing of information that can be critical to the successful resolution of disputes and when children (land decisions) are involved, the implementation of parenting agreements (and monitoring of those decisions). Mediation offers an environment well-suited to identifying and addressing the strong emotional issues associated with divorce and parenting conflicts (people’s livelihoods, and deeply held feelings and values for land and Nature). Mediation is structured to focus parties on a common interest: the resolution of the disputed issues and when children (the land) are involved, the future of their children (public lands). The informality and flexibility of the mediation process allows issues to be discussed that might otherwise be raised in a more adversarial or narrowly-focused process.

The benefits of mediation include:

  1. You directly participate in finding solutions to the issues in dispute;
  2. Mediation allows you to resolve your case more quickly;
  3. Mediation is less expensive;
  4. Mediation promotes relationships and you will end the process with a better relationship with your former spouse (other people and groups who are interested in public lands); and
  5. Mediation is less stressful than court.

I would add only that  you and the disputants know more about the details of the issues at hand and are likely to resolve the dispute in a more meaningful way to both of you and to the land.

We tried this, partially at least, as part of the objection process under the 2005 Rule but never worked out all the details before the Rule was enjoined (this happened twice, we were stopped during the objection process).

New GAO Report on Appeals and Litigation

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Here’s the link. Also check out Matt Koehler’s piece in New West and the comments.

If you look at the comments, it turns out that in Region 1, 36% of projects that can be appealed are appealed, and 87% of those that can be objected to are objected to.

I reviewed this GAO report’s predecessor prior to its publication (and they did not incorporate my comments in the final report). I was concerned at the time that the conclusions were a function of the scale. To me, to be fair reporting, if results vary by spatial scale you would carefully talk about that in the narrative.

To imply that nationally there is no problem, so complaining is unfounded, when one or more regions has a problem seems arbitrary. Based on that logic, if one of your family has serious health issues, but the rest don’t, you can’t shouldn’t be complaining about the health care system.. after all if you take the average for your family, it works. It’s  a framing or judgment call.. is it a problem if any of your children have a problem, or is it only a problem once you average them all out?

In Region 1 that older study showed that 48% were appealed and 90% of appealable decisions were appealed. If you had been there, your world would have been full of appeals.

Nominations Wanted: FACA committee for Forest Landscape Restoration Act

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Here is the press release..

Here is the Federal Register Notice.

Thanks to Peter Williams, here is the act itself..

Here are the kind of experts they are looking for:

The Committee shall be comprised of no more than 15 members and fairly balanced in terms of the points of view represented. The Committee shall include experts in:

1. Ecological Restoration,

2. Fire Ecology,

3. Fire Management,

4. Rural Economic Development,

5. Strategies for Ecological Adaptation to Climate Change,

6. Fish and Wildlife Ecology, and

7. Woody Biomass and Small-Diameter Tree Utilization.

Anyone can nominate someone.. I have successfully nominated people (or encouraged their organizations to nominate them )  and everyone has said it has been a good experience fo them. It is a public service and also a way to meet new and interesting people.

Place-based Bills & Agreements: Defining Characteristic #1: The Search for More Certainty in Forest Management

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By Martin Nie, University of Montana

A defining characteristic of these initiatives is their shared goal of securing greater certainty and predictability in national forest management.  This manifests itself in numerous ways. 

First, it explains why some groups have chosen to pursue national forest-specific legislation, and in other cases, why some groups have formalized their relationships with the USFS through MOUs and decision making protocols. 

Second, most initiatives I reviewed are seeking more permanent types of land designations than that provided by forest planning processes or roadless rules that are viewed as being more tenuous.  Consider the following for example:

  • Senator Tester’s S. 1470, the Forest Jobs & Recreation Act (FJRA):  It seeks not only to designate wilderness and special management areas, but to also codify defined “stewardship areas” where timber harvesting and restoration goals are given priority.  (These stewardship areas are defined by making reference to the relevant Forest Plans and those areas designated as suitable for timber production).  Tester’s Bill also provides greater certainty regarding management of ORVs.  In some places, access is permanently restricted, and in others, long-term access is guaranteed. 

 

  • The proposed Rocky Mountain Front Heritage Act:  It would designate more than 300,000 acres as the “Rocky Mountain Front Conservation Management Area” with a set of customized purposes and restrictions.  Chief among these are restrictions placed on motorized usage, as the proposed bill would codify decisions made in the area’s travel plan. 

 

  • The Northeast Washington Forestry Coalition Blueprint:  It divides the Colville National Forest into three management zones:  responsible management areas, restoration areas, and wilderness areas. 

 

Third, these groups hope to take some intractable issues off the table with some finality.  Finding permanent protections for inventoried roadless areas is the most common example.  But in some cases, this applies to old growth as well.  Senator Wyden’s Bill (S. 2895) is most direct in this regard, as it prohibits the cutting of live trees exceeding 21 inches in diameter (with some exceptions).  Old growth is also addressed in the Colville and Fremont-Winema MOUs, as both seek to protect and restore old forests.  And in Arizona, debate over a diameter cap is front-and-center in the Four Forests Restoration Initiative. 

Fourth, several of these initiatives are seeking ways to generate a more certain and predictable flow of timber. 

  • The most controversial example is provided by Senator Tester’s FJRA.  The bill mandates that 70,000 acres on the Beaverhead-Deerlodge and 30,000 acres on the Kootenai are to be “mechanically treated” by the USFS over the next ten years. 

 

  • Senator Wyden’s Eastside Oregon Bill also seeks “to create an immediate, predictable, and increased timber flow to support locally based restoration economies.”  To kick-start this goal, Wyden’s bill requires interim mechanical treatments that produce an average of 100,000 acres a year for three years.  Wyden’s bill is different than Tester’s in that mechanical treatments are to “emphasize saw timber as a byproduct.”

 

  • The two MOUs also share the goal of creating more certainty for the timber industry, but they go about things a bit differently.  On the Colville, for example, the Coalition’s designation of a responsible management area, along with its MOU, provides a more predictable land base from which timber may be harvested.  The Lakeview Federal Sustained Yield Unit also “promote[s] the stability of forest industries, of employment, of communities, and of taxable forest wealth, through continuous supplies of timber.”  The Unit does so through its MOU with the USFS, as it commits the Fremont-Winema “to the extent permitted by and consistent with all applicable laws and land use plans, offer a minimum of 3,000 treatment acres per year” outside the Stewardship Unit, and a minimum of 3,000 acres per year within it. 

 

Securing a more predictable flow of timber is often explained by making linkages between local economies/sawmills and forest restoration goals.  Several of these initiatives define the problem similarly:  landscape-level forest restoration requires the harvesting of small diameter trees, and that means the necessity of some sustainably-scaled, locally-rooted forest products industry.  And for that industry to survive, or to make the requisite capital investments (in say, small diameter processing equipment), it needs greater assurances about timber supply. 

Also relevant to this theme is the widespread interest in stewardship contracting.  In most of the initiatives I examined, stewardship contracting is a central part of restoration strategies.  The tool is seen by some people as a means to secure more predictable dollars for restoration work, money that stays on a particular national forest and is not sent back to Washington, D.C., and thus not subject to the highly uncertain congressional appropriations process.  (Stewardship contracting will be discussed again in the context of restoration and funding).

Next Post:  What to make of this search for certainty and stability? What does it have to do with forest planning?

Place-Based Forest Bills & Agreements

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Senator Wyden of Oregon

This is my introductory post related to an important emerging trend: the increasing interest in “place-based” (national forest-specific) legislation and the use of formalized agreements/MOUs between the USFS and various collaborative groups.  We’ve had some discussion of Senator Tester’s Forest Jobs and Recreation Act already (here’s my perspective on it).  Another controversial bill is Senator Wyden’s S. 2895, the Oregon Eastside Forests Restoration, Old Growth Protection, and Jobs Act of 2009. 

While these bills receive national attention, there are place-based initiatives happening on other national forests as well, including the Lewis and Clark, Colville, Clearwater and Nez Perce, Fremont-Winema, Tongass, and federal forests in Arizona, among others.  Each initiative is different in significant ways.  But all are searching for more durable, bottom-up, and pro-active solutions to national forest management.  Some negotiations, like that on Idaho’s Clearwater and Nez Perce, may result in proposed legislation.  But others, including arrangements on the Colville and Fremont-Winema, aren’t based on forest specific laws but instead operate through formalized agreements and protocols with the USFS.

Here is a list of such initiatives that I’ve been looking at lately:

Bills and Legislation
S. 1470 Forest Jobs & Recreation Act (Senator Tester/Montana Bill)
S. 2895 Oregon Eastside Forests Restoration, Old Growth Protection, and Jobs Act of 2009 (Senator Wyden Bill)
Pub. L. No. 111-11, Forest Landscape Restoration Act
Rocky Mountain Front Heritage Act (unsponsored proposal) (Lewis & Clark National Forest, Montana)
Agreements
Northeast Washington Forestry Coalition Blueprint (Colville National Forest)
Lakeview Stewardship Group (Fremont-Winema National Forest, Oregon)
Misc/In Development
Clearwater Basin Collaborative (Clearwater and Nez Perce National Forests, Idaho)
Others at various stages of development (e.g., Arizona’s Four Forests Restoration Initiative, Tongass Futures Roundtable, etc.)

I’ve chosen this sample because it includes two controversial bills and two well-established MOUs that share some similar goals and purposes, but go about things differently.  I’ve also included the proposed Rocky Mountain Front Heritage Act because it provides a specific proposal focused on travel management and other resource management issues, like weeds.  My analysis also includes the Forest Landscape Restoration Act (Pub. L. No. 111-11).  I included this Act because it shares some similar goals and purposes as found in the aforementioned bills and MOUs, and because some initiatives hope to use funds already authorized in the law.   Also included in parts of the analysis are some proposals that are still in the drafting stage.  In these cases, no final agreements have been made, but in some situations there are preliminary areas of agreement that are of relevance.  This list is not exhaustive, and there are others I hope to learn from as well, like the restoration efforts in Alabama, the Four Forests Restoration Initiative in Arizona, and the tumultuous life of the Tongass Futures Roundtable. 

What I hope to do in this series of posts is to make some initial observations that are of general relevance to national forest management, and in some cases of particular relevance to the new forest planning rule.   I believe these cases offer a lot of lessons, from the bottom-up.  I also hope that our sophisticated cast of contributors and readers can help raise questions, and in so doing help sharpen my analysis of this issue. 

Martin Nie

Science or “Scienciness” Situation 4- When Scientists Speak for Nature

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This is Science Policy “Situations that Shout Watch Out” Number 4
Back to the Hanson paper.
Ecologists are apparently saying (either they are saying this, or the statement is so global about ecologists as to be incorrect) that high intensity fire must be “facilitated”

There is strong consensus among ecologists that high-intensity fire, and resulting snag forest habitat, is something that must be preserved and facilitated, not prevented or destroyed

The Hanson goes on to say a lot about wildlife, plant and bird diversity.

But what about these watershed scientists with USGS?

In addition, surface water flowing from burned areas may carry increased levels of sediment, organic debris, and chemicals that may contribute to significant degradation of municipal water supplies and aquatic habitats.

Or this study at PNW.

With less productive soils, Bormann said, a forest will not grow as quickly nor reabsorb as much carbon as before a burn—a process critical to mitigating the accumulation of atmospheric carbon, which traps heat in the atmosphere and can, thus, raise temperatures.

So some scientists say that “high intensity fires are good for some plants and animals”. Other scientists say “bad things can happen to good soil and aquatic habitat from high intensity fires.”(actually we don’t have to read about that, we can observe it directly).
Other scientists measure the differences in soils.

All these different positive and negative impacts happen from the same event- high intensity fire. Given that array of possible impacts, how do we decide how to manage vegetation and fire?

1) Back to the Basics. Work on keeping hydrologic function and soil- no matter what some plants will grow and some animals will eat them. Vegetation is a blanket that will grow if we maintain soil and water. This is a good strategy even under climate change. This empowers hydrologists, soil scientists, fish bios and aquatic ecologists. You could call it restoring and protecting hydrologic function.

2) Natural (pre European or ?) is best for vegetation and animals. First, we would have to figure it out. Then we would have to invest in efforts to manage for that, and live with negative impacts on other resources. Of course, this idea may not even be possible given changed conditions due to climate change. Like the concept of HRV, this empowers various kinds of ecologist. You could call it trying to retain some previous composition and structure.

3) Think about a given situation (which is never only about one thing- it might be about protecting communities AND watersheds) and work with people to figure out the right thing to do- informed by 1 and 2.

My point is that 1, 2 and 3 are not science questions- although 1 and 2 empower different groups of scientists to be the experts. 1, 2 and 3 are ideas about how land should be managed and priorities set. Questions like “who wins and who loses, among people and different components of the environment, what are the best investments in protection and restoration” are ultimately values choices. Even within environmental choices (losing endangered trout habitat versus potentially reduced species richness for plants), it can’t, ultimately, be a science question.

Scientists don’t know “what’s best for Nature” because Nature does not speak about what She wants. Fish here and birds there? Soils where trees can or can’t grow? We have feelings that we want natural conditions (fish in streams, good water quality) and that is wonderful. But when it comes to trade-offs, we can’t punt to scientists but have to work out what we want most, and what we don’t like but can live with.

Next Situation that Shouts Watch Out: redefining English words
Previous Situations that Shout Watch Out 1-3 and 5