The process that we determine whether public or private land for transmission lines or a combination, is environmentally, socially and economically “best” for new powerlines is critical in our new energy economy is a key policy question. See today’s story about Governor Freudenthal’s concerns. One thing that’s for sure is that forest plans in and of themselves can’t keep up with these requests, although management areas or themes or suitability (lines on maps) may be helpful concepts when these questions come up.
Timber Wars Over.. Role of Forest Planning Process??
U.S. Secretary of Agriculture Tom Vilsack (center) expresses his appreciation for being given the opportunity to tour and learn more about Arizona’s groundbreaking effort to restore forest health and protect fire-threatened communities. Congresswoman Ann Kirkpatrick (left) and various local and forest officials accompanied Vilsack on the tour.
Please see story on Four Forests Initiative in Arizona.
It would seem to support the ideas of landscape scale decisions and collaboration, and the forest plan as a compilation of decisions made, rather than the instrument of decision making. Also, as Andy maintains, if NFMA is about timber, and if timber wars are over, then should forest plans be simply a large loose-leaf notebook of decisions made at different scales? Is there any “there” there?
Also it brings up Martin’s question of large scale NEPA- will ask around how they are handling it and report back.
Should Congress Let the Forest Service Off for Good Behavior?
From Andy Stahl
Some have suggested that Congress amend NFMA, establish a public land law review commission, or otherwise lessen the binds of environmental law. They say that the Forest Service has been reformed, that logging is no longer a problem, or that other problems (e.g., climate, insects, private land use) not addressed by NFMA are now paramount.
Wall Street bankers made the same plea in 1999 when they persuaded Congress to repeal the Depression-era regulations that separated commercial and investment banking. Lo and behold, it didn’t take long for the banks to remind us that where there’s money to be made, it will be, and damn the consequences.
Money still grows on Forest Service trees, ripe for the agency’s plucking. The well-intentioned laws (Knutson-Vandenberg, Brush Disposal, Salvage Sale Fund) that allow the Forest Service to supplement its appropriated budget with timber sale dollars remain on the books. In 2000, President Clinton’s USDA proposed to eliminate the off-budget timber funds by re-directing all timber sale receipts to the U.S. Treasury. Guess who opposed the move? Mark Rey, who in 2005, thanks to a midnight appropriations bill rider, expanded K-V spending authority to include paying for green timber sale planning and administration.
Randal O’Toole’s diagnosis, if not his therapy, remains as sound today as when he published Reforming the Forest Service in 1988. And the odds of eliminating these perverse legislative incentives remain as unlikely as the reimposition of any limits on bankers’ greed.
Milepost 2: Through the fog from “tree species diversity” to “the wildlife resource”
As I said in the first post, species diversity and viability are some of the most difficult pieces of a new planning rule, and so my plan is to listen to others responses, ruminate (figuratively, no GHG’s involved) for a week and post something new each week until we develop an understanding of who thinks what and why. This is long for a blog post, but John, Andy and Martin raised many interesting ideas.
First, thanks for the feedback from John, Andy and Martin. This has helped me get from the actual statutory language:
“provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan.”
to some of the ideas we talk about today from the 82 regs.
If I read this in plain English, especially going back in time to how we used those terms in the mid-70’s, I see “plant and animal communities” as being communities in the simplest sense, for example, at the Shaw Nature Reserve.
They have these kinds of plant communities: woodland, bottomland forest, prairie.
Or this example, pinyon juniper, sagebrush, salt desert shrub. , .
If we read it this way it makes more sense, as we would not want to get rid of different plant communities; among other reasons, because different kinds of animals live in different plant communities. We would want to keep all the different plant (and animal) communities (with the caveat “based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives”) The next clause clearly says to preserve the diversity of tree species, with these additional clauses “within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to…” (my italics).
These seem to be important statements in the statute that acknowledge that tree species diversity is not an overarching goal regardless of context, but rather resides within the context of practicality, overall multiple use objectives and appropriateness. It does not directly require preservation of the diversity of tree species, even then, but rather for “steps to be taken.”
In plain English, that would say “try to keep all the communities, and try to keep all the tree species, within a given context.” It seems to me if the legislators meant “keep all the animal species’ they had the opportunity to say “for steps to be taken to preserve the diversity of tree and other plant and animal species similar…”
Plant communities can have individual species go in and out, depending on the climate, predators, diseases and stochastic factors, but a prairie remains a prairie. Through time and changes in climate, where the prairies or bottomlands are found on a landscape can change. It is far easier to retain some prairie habitat on a landscape than to retain all species in all communities, and it is also easier and less expensive to monitor.
Another odd thing, to me, about this transition from dealing with communities to species in NFMA is that ESA was passed in 1973, just prior to NFMA.
“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.”; -President Nixon, upon signing the Endangered Species Act…
Isn’t this law about species diversity? So why would we need another law to be interpreted for one agency to do the same thing or more.. if more, why one agency only?
Back to Andy’s quote:
“Here’s what Judge Dwyer had to say on the subject:
When the [NFMA’s diversity] section is read in light of the historical context and overall purposes of the NFMA, as well as the legislative history of the section, it is evident that section 6(g)(3)(B) requires Forest Service planners to treat the wildlife resource as a controlling, co-equal factor in forest management and, in particular, as a substantive limitation on timber production.The Ninth Circuit sustained Judge Dwyer on appeal. In sum, the FS may not adopt a forest plan that fails to assure any species’ viability. As Aldo Leopold cautioned, you’ve got save all the pieces.”
Somehow, we are reading 6(g)(3)(B) differently. For one thing, I see nothing about wildlife per se but rather plant and animal communities. Then wouldn’t rare plants be equally a “controlling coequal factor in forest management.” Given the parsing of NFMA as described above, I still can’t get there (Judge Dwyer’s interpretation) from the actual language of the statute.
And when Aldo Leopold talked about “saving all the pieces”, I think he meant “try to save all the pieces” not “you must.” Because you can’t. No one can. Neither can forest plans “assure species viability.” They can try to make conditions that foster species viability, but they can’t assure it.
Leopold’s lucid and inspirational writing obscures the realities that every time an organism dies “all the pieces” (genetically speaking) are not saved. And Leopold lived before current scientific information on the dynamic nature of species, populations, and ecosystems.
In my view, somehow we have to incorporate the dynamic nature of populations, species, communities and ecosystems into our regulations. The Forest Service can’t make the American chestnut come back throughout its range in the next 50 years (we can do some, but..). The Forest Service can’t afford to keep species from expanding into areas where they haven’t been, with associated wildlife impacts, due to climate change or drought. We can do some things about some things (e.g., invasive species) but putting something in a regulation that is patently unachievable (even if we fenced the national forests and kept all people and uses out) is questionable, in my view.
With climate change, one approach would be to focus on the basics air, water quality and soils, and accept that vegetation and species are going to shift. This harkens back to NFMA sec. 5 c.
If you haven’t read it lately, I recommend taking another look at Botkin’s 1990 book “Discordant Harmonies” which talks about dynamics and also about climate change.
Finally Martin, you raise a good point about accountability. My questions are:
1) “is legal accountability the only kind that counts- what other mechanisms can we imagine?” Is the best NFMA regulation one that bristles with legal hooks? The much-maligned EMS in the 2005 Rule was designed to have transparent on-the-ground reality-based accountability, a la adaptive management. That didn’t work, but one can imagine other forms of accountability than legal accountability.
Fred Norbury, one of the architects of the 2005 Rule was heard saying more than once “Appeals and litigation are the Forest Service method of quality control of decisions.” I think he was suggesting there might be less expensive, more effective methods. Additionally, and problematically, in my view, appeals and litigation are generally about documentation (you didn’t analyze this) and not directly about impacts (you shouldn’t do this).
2) Why aren’t the environmental laws that work for the other federal agencies (including the sister multiple-use agency BLM) “enough” for the Forest Service? Especially given that the “timber wars” are over.
3) If we have to have a tighter reg than everyone else, and it has to have legal hooks, could we imagine one more sensitive to climate change and faithful to the plain English interpretation of NFMA? Like “protect plant and animal species diversity to the extent practicable, given the multiple use mandate and changing environmental conditions”?
Lessons from National Park Service Planning
Recently, several of us in the planning staff in the Rocky Mountain Region here in Lakewood, Colorado went a few miles down the road to visit the Denver Service Center of the National Park Service. This center has a planning staff, which enters into an agreement with each Park Service Region and individual Park Service units to do a general management plan for each Park unit. The advantages of this approach are the organizational efficiencies from having a trained professional staff in a centralized location. There are some disadvantages such as travel costs, etc., and there appear to be some budget battles between the Service Center and the Park Service regions that sometimes have their own planning personnel. What’s also interesting is that some parks (notably Yellowstone) have refused to do a general management plan, preferring a local planning approach for each area of the Park. Overall, however, there are many lessons from the Park Service planning model that might be useful for the Forest Service. Here is the Park Service planning website.
Here are some further thoughts from Dave Loomis, a regional environmental coordinator on our staff, who also attended the meeting, about an intriguing issue – how much simpler the overall Park Service planning direction appears to be when compared to the Forest Service, and how the guidance sets the stage for planning that is less costly and more efficient.
Forest Service planning is in a state of disarray because it costs too much and takes too long. The agency is currently operating (indirectly) under planning regulations from the 1970s, a time when most of the planning profession was operating under the theory of “rational comprehensive” planning. This theory held that we solve a huge comprehensive list of land use issues by studying them really hard, conducting extensive inventories, and applying rational scientific problem solving models. Sounded great, but did not work. It was too expensive, too time consuming, and did not reflect the reality that land use planning is largely a political process.
Nationwide, the planning profession has moved beyond the old rational comprehensive model towards more efficient, more effective collaborative processes that are extremely difficult to codify in a detailed ordinance or regulation. For example, the National Park Service has a very simple regulatory structure that allows it the flexibility to develop Park general plans efficiently and effectively. The average cost of a Park Plan is $700,000 compared to $2,000,000 for a Forest Plan. Yes, the Park Service mission is more focused and its plans deal with a narrower range of controversies, but its recreation vs preservation controversies are every bit as intensive as any controversy facing a Forest Service plan. Yet, the Park Service is able to complete its plans at a fraction of the cost of Forest Plans and with far less litigation. Simple, straightforward planning directives contribute to this effectiveness. By contrast, the complex Forest Service rational comprehensive planning regulatory structure has contributed to our lack of effectiveness. Think Windows 7 simplicity vs Windows Vista complexity.
OK here’s two caveats. One, Park Service efficiency is not solely the result of its streamlined directives. The Park Service has also developed business models that also contribute to planning effectiveness. However, the ability of the Park Service to develop innovative business practices is related to its less prescriptive directives. Two, the Park Service plans do not solve many land use issues on many of the Parks. They are not all things to all people. Some tough decisions are made during program, project, or site specific planning. There are clearly tradeoffs to be made in developing planning hierarchies.
That said, it’s important to consider efficiency and effectiveness as the Forest Service continues to update its planning regulations. The agency should focus on successful planning structures developed by other federal, state, and local land use planning agencies. The fact that the Park Service’s simple regulatory structure has contributed to its ability to develop plans at a fraction of the cost of Forest plans cannot be ignored.
Mark Your Calendars – Land Law Review Enthusiasts!
Professor Mark Squillace, the Director of the Natural Resources Law Center at University of Colorado Law School brought this to my attention with regard to our interest in a land law review. Check the NRLC website for more details and registration information as the time grows closer.
The Past, Present, and Future of Our Public Lands
Celebrating the 40th Anniversary of the Public Land Law Review Commissions’
Report – One Third of Our Nation’s Lands
NRLC Martz Summer Conference 2010, June 2‐4, 2010
The Natural Resources Law Center is proud to announce its 31st annual summer
conference, which will examine the past, present and future of our public lands as we
celebrate the 40th anniversary of the 1970 Public Land Law Review Commission’s Report –One Third of Our Nation’s Lands. Please join us as we bring together past and present
agency officials, policymakers, lawyers, and interested citizens for what promises to be an informative and provocative program.
Celebrating the 40th Anniversary of One Third of Our Nation’s Lands
In 1964 Congress established the Public Land Law Review Commission to review the public land laws of the United States and to determine whether revisions were necessary. The Commission was comprised of six members appointed by the President, six by the U.S. Senate and six by the U.S. House. Congressman Wayne Aspinall of Colorado served as chair. In 1970, the Commission issued its report – One Third of Our Nation’s Lands. This influential report became a blueprint for much future public lands legislation including, most notably, the Federal Land Policy and Management Act and the National Forest Management Act.
As we celebrate the 40th Anniversary of this seminal document, it is time to reflect on
the need for a new Commission and a new report to address the challenges for our public
lands in the 21st century. The NRLC’s Martz summer conference for 2010 will offer a venue to consider this important idea.
Barriers to collaboration: NEPA concerns?
Interesting story. from the Billings Gazette.. I noticed a couple of things..
First, the FS process looks good- so having a cooperators group is clearly something that can work well. Right now it is not a requirement of any rule but something that makes some sense (at least it is popular in Wyoming).
Second, the BLM seems to be caught up in concerns of “pre-decisionality”, which is a concern about talking to people violating the NEPA process. Since this is a topic that is worrisome to FS folks, it would be useful to explore further.
My pragmatic view is that you talk to people and they talk to you, throughout the NEPA process. Unless you convene a formal group (without FACA), you don’t have to worry about FACA. At some point, the decision maker has to go behind closed doors and make a decision, and they and their staff bring all the conversations, formal public comment, views of cooperator groups and make a decision.
What really concerns me is that NEPA can become a reason for “not talking” to people, and I don’t think that is the spirit of NEPA. Anyway, perhaps some of you could shed some light on these concerns- you can see some of the issues that can be raised in this news story.
Forest Options Group- Some thoughts and questions
Here I suggested we meet back here in a week after we had time to read the report of the Forest Options Group.
I’m glad that Andy brought this paper to our attention. Many of the problems are still as relevant today as they were in 1997.
Not really about planning but interesting to me..
FS pilots
I don’t know how many current FS employees were on the pilot forests in the 80’s. I was on the Ochoco at the time and we thought the bucket of money concept was fantastic. As I recall, it foundered on the shoals of budget line item accountability to Congress or our regional or Washington Office’s view of that. Here’s a summary of that effort to decentralize from the bottom up..
User fees– we have experience with rec fee demo and the Valles Caldera, which suggests that people are worried that if FS units get funds from uses, they will be inclined to favor those uses to the detriment of the environment. Just on its face, the simple act of charging for recreation is a concept that works for state and federal parks… why not national forests?
On to collaborative planning.. Pilot 3. I am not so sure that collaborative councils to help with planning and monitoring are all that different from cooperators’ groups or FACA committees that exist for some forests around the country, except where the final authority rests.
But the forest plan would be developed under a new hierarchy in which a collaborative council helps the forest planning team prepare and evaluate alternatives. Forest planners act as staff for the council, and the council replaces the regional forester in selecting the final plan.
Would the ultimate locus of the decision in and of itself really help people become less polarized? I wonder how the Group thought that would work.
Also, being from a region with low timber values, and as I said above, unable to charge for most recreation, and unlikely to wrest oil and gas revenues from Interior, I don’t think getting receipts directly to the unit is a strong enough incentive to get a plan done. We could think of other mechanisms, but collaboration can take time. In my experience, in general, the fact that the plan is old does not seem to unduly inconvenience anyone (if you can do amendments). Hence there may need to be additional incentives to get plans done, even with a collaborative council.
Jack Ward Thomas on Tester’s Bill
A couple of his criticisms are interesting to me..
The “deal” assumes status quo conditions – political, economic, ecological and legal. But, dramatic change is but one insect and/or disease outbreak, one fire season, one mill closure, one appeal, one successful legal challenge, one budget, one new research result or one shift in market conditions away.
But so are forest plans and (in particular) forest plan EIS’s. That was a criticism of the utility of the forest plan EIS that led to the 2005 to use CE’s instead. If you don’t meet your timber target from the plan, if you need to change your standards based on new scientific information, we have a tendency to just not change and just live with a growing deviation between the plan and reality. I don’t think the solution is to do another EIS. I think (perhaps agreeing with Iverson) that standards for wildlife don’t belong in individual forest plans- they belong somewhere they can be updated on a broader scale. JWT has put his finger right on the forest plan conundrum- we need to lay out some kind of future (or do we?) yet conditions change before we actually implement what we have planned. Too many moving parts.
The “deal” hinges upon trade-offs between interest groups.
The interest groups have negotiated their own “deal” as I understand it, rather than the agency responsible official weighing all their views and making a decision. But are the interests of “interest groups” seemingly longer lived than the opinions of one federal official? I don’t know. This reminds me of this piece in the Denver Post over the weekend on Secretary Salazar.
“I only half-heartedly joke with those in industry that, during the prior administration, their names were chiseled above the chairs outside the office of the Assistant Secretary for Lands and Minerals,” wrote Wyoming Gov. Dave Freudenthal, a Democrat, to Salazar this month, criticizing recent changes to oil and gas leasing policy.
“I fear that we are merely swapping the names above those same chairs to environmental interests, giving them a stranglehold on an already cumbersome process,” Freudenthal wrote.
I am being a bit of a devil’s advocate here, but is a deal between interests who have honestly met and hashed things out “worse” than pendulum swings between administrations?
Finally, JWT says..
Clearly, the governance of national forests is dysfunctional due to numerous, overlapping, contradictory laws continuously and variously interpreted by the courts. That is the problem. These bills are “sick canaries in the mine shaft” – indications that something is dangerously amiss.
Would it not be better to recognize and comprehensibly address that dysfunction?
One path would be a law review, as suggested by many.
Question: Could a planning rule help with this “dysfunction”? And if so, how, in advance of such a comprehensive review of laws?
>>>>>>>>>>>>>>>>>>>>>>>>>>>
see the whole article:
Tester’s forest bill not a feasible, long-term solution
Milepost 0 on the NFMA Diversity Provision Trail
I’d like to revisit, at a deliberate and meditative speed, the path that led from diversity in NFMA to viability and the sustainability provisions in the different planning rules. My experience is that it has been mostly the domain of wildlife biologists and lawyers, and perhaps a discussion that 1) brings the rest of us up to speed on where we’ve been and why, and 2) asks us where we want to go, may be illuminating. Particularly if we consider a broader range of views from different scientific disciplines and practitioners, and consider the context of management in the 21st century, including climate change.
Some people think that this is the most important piece of the planning rule. Others think there are plenty of procedural and substantive protections for species without this. Perhaps we will end up in a previously explored place at the end of the journey, but perhaps not.
Based on this piece by the Department of Justice:
“In conclusion, given the vague and equivocal language of the National Forest Management Act (NFMA), whether the statute will operate as a substantive constraint on the discretion of the Forest Service to allocate uses which adversely affect the viability of the wildlife resource, depends almost entirely on the language of the NFMA implementing regulations, as the exercise with the viability regulation shows. Whether the Forest Service utilizes the 1982 or the 2000 regulations in future planning to deal with diversity and its viability component, future litigation will continue to determine the moving boundary between discretion and constraint inherent in NFMA.”
First question, what do we think the writers of NFMA meant by “diversity of plant and animal communities, and what was the context?” For those of us who don’t have time to read an extensive legislative history, what is a short synopsis and some key papers and concepts? Is there consensus on this in within and among our communities (of discipline and of practice)?
Here’s what DOJ says (here):
NFMA�s Diversity Requirement
NFMA required the Forest Service to develop the planning regulations in consultation with a committee of independent scientists. 16 U.S.C. 1604(h). What NFMA gave them to work with on biological diversity was vague and equivocal, and subjected diversity to a subsidiary role in multiple use planning. The regulations were directed to specify guidelines which would:
provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan.
16 U.S.C. 1604(g)(3)(B).
Back to keeping it simple, it seems to me that the easiest way to deal with this legal requirement would be to require an analysis for each plan of the existing diversity, and possible threats and show that “based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives” the plan provided for a diversity of plant and animal communities.
Second Question: What do you think is the simplest (KISS) approach to translate the NFMA diversity requirement to a planning rule?