K.I.S.S. in Rule Form, Part I

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Our task is to write regulations required by NFMA. Having proposed a framework in previous posts (K.I.S.S. and K.I.S.S. II), it’s time to put rubber to the road. Here’s the introductory framework. What have I missed?

36 CFR 219.1: Purpose and principles.

(a) The rules in this subpart set forth the process for revising land management plans for units of the National Forest System as required by the Forest and Rangeland Renewable Resources Planning Act of 1974, as amended. Land management plans shall be revised when conditions in a unit have significantly changed, but no less frequently than every fifteen years.

(b) A land management plan revision shall:

(1) Decide the vegetation management and timber harvest sale program and the proportion of probable methods of tree removal timber harvest (Sec. __);

(2) Include an assessment of new information and changed circumstances since adoption of the previous land management plan or revision thereof (Sec. __);

(3) Be prepared by an interdisciplinary team (Sec. __);

(4) Be based upon inventories appropriate to inform the decisions made by the plan revision (Sec. __);

(5) Involve the public in its promulgation (Sec. __);

(6) Provide for diversity of plant and animal communities and preserve the diversity of tree species (Sec. __);

(7) Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan (Sec. __); and,

(78) Review previous decisions to classify lands as suited or not suited for timber production if the prior classification decision is older than ten years (Sec. __).

Forest Planning Without Knowing the Mission

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The definition of multiple-use management provides no guarantees.

In 1972 two brothers with cattle grazing permits within the Prescott National Forest in Arizona had a gripe with the Forest Service.   One brother’s permit had been reduced from 517 to 250 head, and the next year the other brother’s permit was reduced from 158 to 50.  The numbers had been reduced to protect the watershed from overgrazing, but Thomas and David Perkins questioned if these drastic reductions constituted a revocation of their grazing permit.  So they took the Forest Service to court. In 1977, the District Court sided with the Forest Service, but the brothers appealed to the Ninth Circuit.

When the case made it the appeals court, the Perkins’ attorney tried a new argument.  They asserted that the 1960 Multiple-Use Sustained-Yield Act (MUSYA) established a mandate to allow multiple-uses such as livestock grazing.   MUSYA is perhaps the only statement from Congress about the purpose of managing National Forests and Grasslands.  The Organic Act established timber and water flows as dominant uses, and the agency was built on Gifford Pinchot’s philosophy of the greatest good for the greatest number of people in the long run, but it wasn’t until the MUSYA that the idea of multiple-use was codified.  The MUSYA said that forests were to be managed for recreation, range, timber, watershed, wildlife and fish, in addition to minerals and wilderness.  Renewable resources were to be managed to best meet the needs of the American people, without impairing the productivity of the land, and maintained at a high level in perpetuity.

The appeals court rejected the Perkins’ argument that the MUSYA established a mandate for use.   The Court wrote:

These sections of MUSYA contain the most general clauses and phrases. For example, the agency is “directed” in section 529 to administer the national forests “for multiple use and sustained yield of the several products and services obtained therefrom,” with “due consideration (to) be given to the relative values of the various resources in particular areas.” This language, partially defined in section 531 in such terms as “that (which) will best meet the needs of the American people” and “making the most judicious use of the land”, can hardly be considered concrete limits upon agency discretion. Rather, it is language which “breathe(s) discretion at every pore.”  What appellants really seem to be saying when they rely on the multiple-use legislation is that they do not agree with the Secretary on how best to administer the forest land on which their cattle graze. While this disagreement is understandable, the courts are not at liberty to break the tie by choosing one theory of range management as superior to another.”

The Perkins brothers’ case became one of the leading cases in the Ninth Circuit about the judicial standard of review.  Courts would limit their review to determining whether factual findings as to range conditions and carrying capacity are arbitrary and capricious.  The review was so narrow that very few challenges to multiple use decisions could meet it, semantically or practically. Plaintiffs could satisfy their burden of proof only by demonstrating that there was “virtually no evidence in the record to support the agency’s methodology in gathering and evaluating the data.”  A court would not choose among competing expert views.  The case also meant that MUSYA placed no real limits on the Forest Service, and that it was up to the agency to interpret the principles.

The discretion in MUSYA carried over into the National Forest Management Act (NFMA), which used MUSYA as a primary objective of Forest Planning.  Another Ninth Circuit decision observed that forest planning is inherently discretionary given NFMA’s broad authorizing language.  When the Prescott Forest Plan was completed, the Ninth Circuit refused to second guess the findings about suitable grazing lands.

Since MUSYA and NFMA were broadly discretionary,  Congress essentially left the work to the Department of Agriculture and the Forest Service to define a mission.  In the 1990s, the Forest Service developed its present mission statement: to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.   Multiple-use management is relegated to the fine print.

Then, regulations issued by the Department became important in shaping the mission.  In the preamble to the 2001 roadless rule (p. 3252), the Perkins brothers case was used to explain that the Secretary’s discretion under MUSYA and NFMA allowed roadless areas.   Essentially, the preamble explained that the roadless rule itself was an NFMA rule.

In the  2000 planning rule,  the Secretary translated multiple-use management into the concept of sustainability.   The rule said that the first priority is to maintain or restore ecological sustainability and that it is essential that today’s uses do not impair the functioning of ecological processes.  In an appendix to the 1999 Committee of Scientist report for that rule, one of the scientists, Roger Sedjo, said this was a change to the Forest Service mission.  He noted that sustainability of a forest is fundamentally different than the sustainable production of multiple outputs.  Sedjo later wrote that the search for a new mission is being frustrated by a lack of clear consensus.

The 2005/2008 planning rule didn’t directly address this concern.  It acknowledged the MUSYA, saying ecological, economic and social sustainability were all equal, but focused instead on the mechanics of planning for a “desired condition.”  The weakness of this approach was that the rule never required planning teams to identify why those conditions were desired.   In practice, many planning teams using this rule overcame this weakness through a collaborative exploration of what each forest was about, through identification of the “roles and contributions” and the “niche” of each forest.  But these statements were not to be considered official “plan components” and would not be binding.  The plan had to focus on desired conditions, and all other plan components needed to be linked to those conditions.  But participants typically didn’t want to talk about desired conditions, they wanted to talk about uses.

Now we have begun work on a new planning rule.  The Federal Register notice discusses concerns like restoration, ecosystem resilience, and forest health.  The split in public opinion is again showing up in the formal scoping comments.  If this rule follows the pattern, it may be about more than planning – it may be about the Forest Service.

Start with the Human Scale- Elinor Ostrom

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Guest Post by Lynn Jungwirth

I asked Fran Korten, who interviewed Elinor Ostrom (2009 Nobel Prize winner in economics) for “Yes Magazine”, about
the difficulties with “large landscape level planning”. This answer came
back:

“Yes, there’s a role for large landscape level planning, but when you get
down to implementation, it’s got to be at smaller levels. As Lin puts it,
you’ve got to have decision making and implementation in nested tiers that
start at the human-scale level and stack up to the larger resource.”

Wow! “Starting at the human-scale level and stack up to the larger
resource.” We do it exactly opposite. Start with the National Level, then
the Forest Level, and then try to make the local level fit in with those
goals and constraints. Maybe we should invite Elinor Ostrom and her team to
work with this planning rule.

Excerpt from the “Yes” interview. Here’s the link.

Elinor Ostrom:
At the Workshop we’ve done experiments where we create an artificial form of
common property-such as an imaginary fishery or pasture, and we bring people
into a lab and have them make decisions about that property. When we don’t
allow any communication among the players, then they overharvest. But when
people can communicate, particularly on a face-to-face basis, and say,
“Well, gee, how about if we do this? How about we do that?” Then they can
come to an agreement.

Fran: But what about the “free-rider” problem-where some people abide by the
rules and some people don’t? Won’t the whole thing fall apart?

Elinor: Well if the people don’t communicate and get some shared norms and
rules, that’s right, you’ll have that problem. But if they get together and
say, “Hey folks, this is a project that we’re all going to have to
contribute to. Now, let’s figure it out,” they can make it work. For
example, if it’s a community garden, they might say, “Do we agree every
Saturday morning we’re all going to go down to the community garden, and
we’re going to take roll and we’re going to put the roll up on a bulletin
board?” A lot of communities have figured out subtle ways of making everyone
contribute, because if they don’t, those people are noticeable.

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?