July 13, 2005
California Court says Sequoia National Forest Fire Plan Fails to Comply with NEPA
On July 11, 2005 the United States District Court for the Northern District of California sent the Forest Service packing on its claim that the Sequoia National Forest Fire Management Plan is a non-decisional documents not required to undergo National Environmental Policy Act (NEPA) review. This is the second such loss for the Forest Service. The Forest Service lost similarly, arguably, on the Six Rivers National Forest Fire Management Plan (Environmental Protection Information Center, et al. v. US Forest Service, C-02-2708 JCS, Sept. 5, 2003).
It will prove interesting to see whether the Forest Service will this time agree to comply with NEPA and how it will do so. Christine Ambrose of the Environmental Protection Information Center argued in September 2003, that
"Every other federal land management agency complies with the nation's environmental laws in developing their fire management plans because they recognize the value of public input; why should the Forest Service be exempt? It's time we had a higher level of agency accountability….”Ambrose’s dream didn’t happen. For whatever reasons the Forest Service chose not to effect NEPA compliance at the national forest fire plan level in the wake of the unfavorable Six Rivers National Forest Fire Management Plan decision. What will follow in the wake of this decision is anyone’s guess. But it may prove telling to watch the legislative arena as well. See, this , From the July 7, 2005 LA Times for example, which includes,
“Now, however, NEPA is facing strong challenges from the Bush administration, Congress and business interests who say the law has been holding up progress on a number of fronts, among them building highways, preventing forest fires and drilling for oil and gas in the Rocky Mountains.”For the recent Sequoia National Forest Fire Management Plan loss, see the recent US District Court, Northern District of California decision in: People of the State of California et al., v. US FOREST SERVICE, et al. No. C 04-02588 CRB [pdf]
Here are a few snippets:
Defendant [US Forest Service, et al.] claims that the Fire Plan is exempt from NEPA because it is not a decisional document.... [T]he Fire Plan merely implements programmatic-level policy decisions that were made in earlier, NEPA-compliant documents and postpones ground-level decisions until site-specific projects are initiated and so, as a non-decisional document, the Fire Plan was not required to undergo NEPA review.... (p.3)
ANALYSIS I.B. Statutory Standing under NEPA and the APA ...
The Court finds that legal obligations flow from the Fire Plan because it is only the existence of a signed Fire Plan that authorizes on-the-ground fire managers to depart from the default national policy of total fire suppression throughout the entire forest... ... (p.10)
Because the Fire Plan constrains future decisions, the Forest Service’s reliance on statements in the Fire Plan that it is not meant to be a decisional document is also misplaced. … If the Forest Service were able to shield agency actions from rulemaking procedures simply by including a disclaimer on operative documents, meaningful judicial review of such actions provided for under NEPA and the APA would be eliminated. It is the content of the Fire Plan—not a statement of the document’s intended function—that is the basis for the determination of whether it is a decisional document.
In sum, since the Fire Plan makes several decisions beyond the scope of earlier documents—the geographic designation of the FMUs [Fire Management Units], the total suppression in areas assigned to FMU #3, and the annual acreage treatment goals for each FMU—and since at the site specific level—such as the decision to let burn or suppress a wildland fire, once naturally ignited—the Court finds that the Fire Plan constitutes final agency action. Plaintiff [People of the State of California, ex rel. Bill Lockyer, Attorney General] has therefore established a right to review under the APA. (p.14)
II. Motion and Cross-motion for Summary Judjment ...
[T]he Ninth Circuit has found that, in applying the “point of commitment” test, “courts are mindful of the need to avoid creating a ‘catch-22’ situation in which NEPA analysis in not required until a point when environmental review cannot be conducted effectively….” ...(pp.16-17)
Defendant argues that the Fire Plan has no direct environmental impact because it makes no decisions, and so any “significant” environmental impact is traceable to earlier documents. Because the Court finds that the Fire Plan is a decisional document, the environmental impact of the decision to let burn or suppress a major wildland fire is traceable to the Fire Plan. Defendant does not and could not seriously argue that there is no possibility that the decision to let burn or suppress a major wildland fire will have any significant environmental impact. Therefore, the Court finds that the significance requirement is satisfied.
Defendant argues that its decision that the Fire Plan is not a major federal atcion is subject to deference unless unresonable. ... The Court finds that the Fire Plan is a major federal action, and so defendant's decision not to conduct any environmental review was unreasonable. (p.17)
For the reasons set forth herein, the Court herby GRANTS plaintiff's motion for summary judgment and DENIES defendant's motions for summary judgment and judment on the pleadings.
The Court does not reach the remedy issue today, but rather rules that the Fire Plan in its current iteration is not in compliance with NEPA.... (p.18)
Judge Charles R. Breyer,
United States District Judge
Dated:July 11, 2005
Posted by Dave on July 13, 2005 at 03:11 PM | Permalink
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Posted by: Independent Forester
Although the State of Cal brought this lawsuit against the USFS, the action was inspired by the Sequoia ForestKeeper’s, (www.sequoiaforestkeeper.org). This organization wants the National Park Service to manage the Sequoia NF, instead of the USFS. So the question arises, how good a job is the NPS doing managing forests?
My son’s fiancé’s brother is an Arrowhead Hotshot. His co-worker, Daniel Holmes, was killed last October on a Prescribed Fire in Sequoia-Kings Canyon National Park. The tragedy was huge and felt deeply by his family, of course, but also by the extended family associated with, and alumni to, this very special organization. Follow-up incident reports were done, and the conclusions were that an unusual happenstance occurred, and Danny was just in the wrong place at the wrong time. Arrowhead Hotshots take risks, and sometimes lose. It is part of the job.
The tragedy was so enormous and so personal to so many people that no cold-blooded, dispassionate review has been made. That is, no evaluation of the SKCNP Prescribed Fire program has been done to determine whether the Park managers might possibly have made some mistakes and put firefighters into an unnecessarily dangerous situation. This was a Prescribed Fire, not a wildfire. The area was selected ahead of time, preparations made, and the fire was deliberately set by Park managers. In some respects, the details of the fatal incident itself are (perhaps) less important than the decisions made that led up to the situation.
In my opinion, knowing what I do about the SKCNP managers, the Arrowhead Hotshots, prescribed fire, and woods-work, I believe the Park managers were seriously negligent. The wrong place was chosen, inadequate preparations made, the timing of ignition was bad, safety concerns were not properly addressed, leadership was lacking, and young men and women were put into an untenable situation.
It is very clear to everyone that nothing is going to bring Danny back. No amount of blame analysis or finger-pointing will ever heal the wounds inflicted on his immediate and extended family. Understandably, nobody wants to bring issues to the forefront that re-open those wounds, and neither do I. But it also should be understood that the NPS is not especially well-experienced at managing forests. Whether the USFS is any better is another question.
Independent Forester | Jul 14, 2005 11:30:58 AM
Posted by: alex dunn
I think this points out that NEPA really is in need of some soul-searching.
Major federal action? or policy guidance to help inform site specific decision making? Isnt this the same question asked in relation to the new planning rule?
Do we need to micro-manage every decision that the agencies make? More to the point, where do we draw the line in terms of simple day-to-day operational efficiency. Certainly an issue such as whether to supress a fire or not and in what area you do that more or less agressively, etc. is very important and should undergo some level of public and intergovernmental scrutiny and dialogue. Is NEPA the venue for this? Seems to me that NEPA is much less an opportunity for 'public deliberation' than it is a strategicaly played legal game.
Can we predict and 'analyze' the outcomes of future decisions with any reasonable sense of certainty? For some things yes, like building a toilet or a trail ( and sometimes that doesnt even work so well). However with such issues as those addressed in Fire Management Plans like where and how a fire will behave in a particular area, without knowledge of critical factors (namely weather) that affect fire behavior and spread (not severity necessarily), how is a NEPA 'analysis' or better yet a host of separatly analyzed 'alternatives', going to trump the uncertainty??????
The point that is not made in the snippet from the judges ruling, and doubtfully was a point that OGC argued during the hearing of the case: site-specific decisions are made all the time in fire-fighting operations that could be construed as major federal actions, and if those actions could have been predicted prior to the fire, then NEPA would be an appropriate venue to analyze their potential effects (maybe). However this just aint the case with suppression and, I would argue, with many other management actions--we just think they're that much more predictable cause we dont make split second decisions.
I believe in the deliberative aspects of NEPA that have been so minimized by implementation and case law (not to mentionn section 101), however the law as currently implemented is (at the risk of interpreting Congressional intent) not living up to the ideals that the authors had in mind when they wrote it and flys in the face of this nebulous thing we call adaptive management.
alex dunn | Jul 15, 2005 10:25:07 AM
Posted by: Independent Forester
At first blush it might appear that Martin Litton, Ara Marderosian, and Valerie Cassity of Sequoia ForestKeepers, California Attorney General Bill Lockyer, and Federal Judge Charles Breyer are sticklers for the law and the US Constitution. At first blush it might appear that they care deeply for forests and seek to protect such from a cold-hearted bureaucracy subservient to corporate greed.
But the REAL truth is that they are leftwing America-hating arsonists. They would like nothing better than to see the Sequoia NF burn to the ground.
And after they achieve that goal, they will celebrate. They will hold rendezvous on the edge of the moonscape and pat each other on the back for their big success. Those who question the wisdom of the destruction will be told that converting hundreds of square miles of priceless and irreplaceable old growth forest to early successional fire-type brush is fully natural, and the way Mother Nature intended.
If you think this analysis and prediction is fallacious and laughably paranoid, then you haven’t been paying attention to what has been happening elsewhere in the real world.
Independent Forester | Jul 16, 2005 10:00:13 AM
Posted by: Independent Forester
Here's a question worth pondering. Who are the USFS lawyers?
It seems to me that the USFS loses every legal suit filed against them. Sometimes I think this is deliberate, but maybe that's unfair. Maybe the USFS legal team is simply incompetent.
The Other Side realizes that 99% of litigation occurs OUTSIDE the courtroom. They have political action committees that proselytize and promote. They have gatherings and protests. They issue press releases. They apply political pressure. They lionize their attorneys, (I could name a dozen). It's all about showboating and grandstanding. State Attorneys General want to get in on the action because they are consummately political animals. The judges are, too. There is a give and take, a mutual backscratching, that is ultimately about elections and political power tripping, not forests.
The USFS does none of this. Their attorneys are anonymous. There is no promotion. And they lose every case. If you had a serious personal legal problem, which group of attorneys would you use?
Who are the USFS lawyers, what is their strategy, and how can I ring their bell? I have some ideas that might help them actually WIN a case every once in awhile.
Independent Forester | Jul 18, 2005 10:47:19 AM
Posted by: Forrest Fleischman
Alex, Dave, and others,
The conversation about NEPA seems limited to me by the lack of a clear alternative. NEPA's major purposes appear to be:
1. Insuring full disclosure to the public of the effects of government actions.
2. Involving the public through formal commenting process, and insuring dissenting views are seriously considered and incorporated.
3. Insuring the use of good, interdisciplinary scientific information in designing projects.
4. Pushing agencies to consider multiple options as they develop their plans.
5. Providing a framework for decision-making.
6. Maybe I missed something?
I happen to think that all of these purposes are important, but I remain undecided as to whether they are effectively acheived by NEPA.
Recent legislative and administrative attempts to limit administrative burdens (such as recent categorical exclusions) have exempted certain types of projects from the NEPA process, allowing largely unlimited agency discretion. I expect that if Pombo & his ilk in the House Natural Resources Committee come up with a proposal to re-write NEPA, it will look a lot like a categorical exclusion, writ large.
These sorts of proposals frighten me. They appear totalitarian - unlimited government discretion was one of the fatal flaws of the soviet system. But do we have ideas of how a better system that is not the current NEPA process would work? Are there specific examples from other countries, or from states, or even from innovative units of the federal government that we can look to? Would this require rewriting NEPA? Or is this acheiveable (as some seem to be arguing on this blog) within the current framework by changing the way the agency approaches the environmental review process?
Forrest Fleischman | Jul 18, 2005 5:28:40 PM
Posted by: Dave Iverson
Alex and others,
When I get to your ending, I find reasons to agree with you. I too “believe in the deliberative aspects of NEPA that have been so minimized by implementation and case law …, however the law as currently implemented is … not living up to the ideals that the authors had in mind when they wrote it and flies in the face of this nebulous thing we call adaptive management.”
But even here I must add that “case law” is a reflection of the agencies behavior in attempting to comply with the law. If that behavior is the root of the problem, wouldn’t we expect to see case law reflecting such?
Before I came to nearly agree with your concluding paragraph, though, I struggled. Here are the results of my struggle, point by point:
alex dunn: “I think this points out that NEPA really is in need of some soul-searching.”
I think that the Forest Service in particular needs to do some NEPA soul-searching: How did we get to where we now stand? What can we do to better comply with the law AND help nudge the agency toward better adaptive management. To seek categorical exclusions on every front hardly seems like a responsible attempt to do both.
alex dunn: Major federal action? or policy guidance to help inform site specific decision making? Isnt this the same question asked in relation to the new planning rule?”
I’m not sure what you are talking about here. But remember that we are dealing with two different legal requirements, among others, RPA/NFMA and NEPA.
alex dunn: “Do we need to micro-manage every decision that the agencies make? More to the point, where do we draw the line in terms of simple day-to-day operational efficiency.”
I’m not sure how you draw the conclusion that NEPA is the reason some think they need to micro-manage every decision the FS makes. In my frame of reference, the FS is its own worst enemy in this regard too. WE follow a long tradition of trying to micro-manage, over-complexify, etc. every decision made. It’s as if everyone, in every function, at every level, wants to be making every decision, or at least to over-analyze every decision. I don’t fault NEPA for such, but rather an agency that fell victim to its own culture. Herb Kaufman (author of The Forest Ranger) called it “the down side of cohesion” in his 1994 vintage “The Paradox of Excellence.” http://forestpolicy.typepad.com/fs_history/kaufman_paradox_1994.html
alex dunn: Certainly an issue such as whether to suppress a fire or not and in what area you do that more or less agressively, etc. is very important and should undergo some level of public and intergovernmental scrutiny and dialogue. Is NEPA the venue for this? Seems to me that NEPA is much less an opportunity for 'public deliberation' than it is a strategically played legal game.”
NEPA compliance IS a game played by the agency, the CEQ, the public, etc. It was designed as such by the US Congress. It is not the same game as the NFMA game. The point is that we have to comply with the law. We have choices as to how to comply with NEPA, e.g. “tiering” of programmatic to site-specific decisions. And yes, there is discretion as to how site-specific to go that is informed both by legislation, case law, and more.
alex dunn: “Can we predict and 'analyze' the outcomes of future decisions with any reasonable sense of certainty? For some things yes, like building a toilet or a trail ( and sometimes that doesnt even work so well). However with such issues as those addressed in Fire Management Plans like where and how a fire will behave in a particular area, without knowledge of critical factors (namely weather) that affect fire behavior and spread (not severity necessarily), how is a NEPA 'analysis' or better yet a host of separatly analyzed 'alternatives', going to trump the uncertainty?????? “
Don’t you think that the folks at CEQ and in the judiciary know that the arenas we work in are uncertain? Again, I believe we have been our own worst enemies here.
alex dunn: “The point that is not made in the snippet from the judges ruling, and doubtfully was a point that OGC argued during the hearing of the case: site-specific decisions are made all the time in fire-fighting operations that could be construed as major federal actions, and if those actions could have been predicted prior to the fire, then NEPA would be an appropriate venue to analyze their potential effects (maybe). However this just aint the case with suppression and, I would argue, with many other management actions--we just think they're that much more predictable cause we dont make split second decisions.”
Again I have a hard time understanding where you are headed. If you are crying “emergency” then I respectfully disagree with you. We can, I believe, know well in advance, by vegetation types, climate/weather patterns, and other environmental/social conditions:
· Where we intend to “suppress” and where we intend to “let burn,”
· Where we intend to build mechanical v. hand-hewn fire line
· Where we intend to use fire retardant and where not
This is the stuff of programmatic NEPA compliance. This is the stuff of these two court cases and the stuff done routinely by other federal agencies. Why do we cling tightly to the “It’s an emergency” excuse?
Dave Iverson | Jul 19, 2005 9:45:21 AM
Posted by: Independent Forester
“NEPA's major purposes appear to be: (2) Involving the public through formal commenting process, and insuring dissenting views are seriously considered and incorporated.”
NEPA is about public involvement? Please, who are you kidding?
Public involvement in EIS’s is a sham, a joke, an utter hypocrisy. NEPA is about legal wrangling by a new class of lawyers. No matter what the “public” has to say, logical or illogical, every significant action by the USFS is litigated under an arcane set of judicial precedents and new rulings. The USFS is today controlled by the judiciary and special interest NEPA lawyers. The result is “unmanagement” and a do-nothing agency drawing up plans for actions that never happen.
The real public, people like me who know and care about forests, are entirely shut out of the process. My input is ignored, just as it is on this web site. My forests are being destroyed and despite my most vehement protests, my voice is mute. All of my neighbors in our rural, forest-based community feel the same way. They have given up on you all. The disconnect is complete. Not that you care or that we aren’t aware of it; I’m just speaking out as an act of performance art.
Independent Forester | Jul 19, 2005 9:41:38 PM
Posted by: Independent Forester
By the way, “categorical exclusions” are another joke. Case in point: The USFS planned a salvage sale of dead snags from the Sims Burn on the Six Rivers NF in California. The treatment was a Healthy Forests Act project on 167 acres, categorically excluded from judicial review because it was under the 250 acre threshold. That did not stop special interest lawyers from suing, nor the courts from hearing the case.
On June 27, 2005 (last month) US District Court Judge Susan Illston enjoined the salvage sale. Moreover, her decision was based on a memo about an unpublished progress report on alleged northern spotted owl use of the Timbered Rock Burn in SW Oregon. Susan did not allow any rebuttal, nor contrary disclosure, nor peer review of the secret surprise memo. So there’s your due process and “categorical exclusion”; completely meaningless concepts to arbitrary and capricious judges and their pet NEPA lawyers.
Independent Forester | Jul 20, 2005 12:03:29 AM
Posted by: Dave Iverson
Independent Forester and others,
You say, "Public involvement in EIS’s is a sham, a joke, an utter hypocrisy. ... By the way, “categorical exclusions” are another joke."
I agree. They have become such. So is planning. But we differ as to causal factors. Whereas you seem to blame it all on activist judges and their pet NEPA lawyers, I believe that there is plenty of blame to share. In my book part of the blame goes to the Forest Service and the professional arrogance that helped give rise to the litigious culture that is so prevalent in the environmental community. See, for example David Clary's book Timber and the Forest Service, wherein he says that timbering became a religion of sort for the agency. Damn the feedback loops, get the cut out!
We both agree, I would venture, that Sally Fairfax was spot-on in her pronouncement that NEPA would become "a disaster in the environmental movement." But I believe it became such in the main because agencies didn’t want to engage with the “unwashed” public in decision making. So they tried to use NEPA to bullet-proof preformed decisions.
Still, part of me says that in the face of agency resistance, without Fairfax's alleged disaster the movement toward ecosystem management may not have been born, and both the Forest Service and our society writ large would still be caught in the dream of industrial forestry, to compliment larger dreams of remaking ALL in "our" image rather than finding our balance with and within Nature. Something had to stand in the way of administrative agencies power—the power that some call “the fourth branch of government.”
Dave Iverson | Jul 20, 2005 8:59:55 AM
Posted by: Independent Forester
Is there really a difference between the “religion” of industrial forestry and the “religion” of ecosystem management? To borrow a quote from gardener and author Michael Pollan (The Botany of Desire):
“The two are complexly intertwined expressions of the same Apollonian desire, our impulse, I mean, to elevate the universal over the particular or local, the abstract over the concrete, the ideal over the real. The spirit of Apollo celebrates the One, Plutarch wrote, denying the many and abjuring multiplicity. Against Dionysus’ variability and wantonness he [Apollo] poses the power of uniformity.”
Independent Forester | Jul 20, 2005 11:31:11 PM
Posted by: Independent Forester
USFS industrial forestry and ecosystem management are both conditions of Prufrockian sepsis, a command-and-control anal retentiveness so extreme as to be fatal to organism.
Both involve convoluted and Byzantine rules, a bloated and moribund bureaucracy, and power-mad snake oilers and sycophants. Most horrifying, they both annihilate forests, destroying the very thing they set out to “save”.
Independent Forester | Jul 21, 2005 8:48:57 AM
Posted by: Dave Iverson
Perhaps Independent Forester is right. Perhaps Ecosystem Management is just the latest FS religious fanaticism, and really no different in general framing from timbering. But many of us have been trying to make it something different. Time will tell if we are successful. Here are a few snippets from a 1995 thing I put together titled “Ecosystem Management: Challenges, Hopes, Responsibilities” http://www.fs.fed.us/eco/eco-watch/ew950103.htm
"Ecosystem management" (EM) represents an interesting choice of words. At first glance EM seems to be an oxymoron since it is probably more appropriate to think that we are managed by ecosystems than vice versa. Still, we know that the culture from which EM sprang is one focused predominately on humans and on what we humans do, so it is not likely that EM was intended to be an inquiry into what ecosystems are doing to us. Yet the debate that has already been spawned by the very act of putting the two words together has given us a chance to rethink the dominant paradigm: the belief in the 'ascension' of humans from the rest of nature, the coincidental belief that we humans have divine rights of dominion over nature granted by God, by Science, or Both, along with coincidental beliefs in individualism outside the context of cultural interconnections. Putting the words "ecosystem management" together also gives us a chance to rethink the behavior and policy of the so-called land and resource management agencies….
To effect the type ecosystem management I'm talking about will require that we retool our thinking, replacing our "factory-model" mental image for most everything from education to commerce with an "ecology-model" image based on cooperation and competition in co-evolutionary dynamic balance one with another, and with "innovation" and "influence" as key principles replacing "efficiency" and "control." …
… a definition for ecosystem management: Ecosystem management is the process of bringing people together to work out their best sustainable endeavors in pursuit of quality of life into the far future. Ecosystem management recognizes that we must manage ourselves within the context of interrelated physical, biological, and social systems, recognizing further that the boundaries between the three so-called systems are artificial human constructs since they are really part of one evolutionary whole. Finally, ecosystem management recognizes responsibility for leaving Earth's systems intact--to the end that we are proud of the heritage we leave to those who follow in our footprints.
What challenges has EM created for you as a planner? Frustrations? Hopes?
For some, ecosystem management is a last-chance hope to reconnect to things that Modernism -- characterized by individualism, dominion over nature, and a penchant for hyperactivity -- has laid waste. …
For others, EM seems to hold out a much different hope. EM is thought by some to be a thin veneer overlayed over past management. In the US Forest Service, for example, we often hear the idea expressed that EM means to take an ecological approach to multiple use management. Such phrasing begs the question "Where did the idea of multiple use (and wise use) come from?" "Wise use" was a phrase often used by Gifford Pinchot in the early days of the Forest Service to talk about a better way to tend land for timber, grazing, firewood cutting, and other mostly basic (sometimes called utilitarian) uses of the land. One doesn't have to read too far into the writings of Pinchot to see how he was caught-up in the progressivism that was so prevalent in his day.
Dave Iverson | Jul 21, 2005 1:37:08 PM
Posted by: Independent Forester
Arrgh. Just when we were making some progress. “Ecosystems” and “sustainability” are not real things. They are concepts, and ill-defined or indefinable concepts at that, as the preceding labored attempts to do so demonstrate.
Forests, on the other hand, are actual existent things, clearly distinct from say, deserts, oceans, brush fields, or tree farm plantations. You can see, touch, and smell a forest. Forests are real.
It is folly to spend billions of dollars to manage ill-defined concepts for indefinable goals. It is not folly to make the effort to care for real forests. Even the Sierra Forestkeepers recognize this, and ostensibly seek to protect, maintain, and perpetuate a real, bona fide, flesh-and-blood forest. So does the Sequoia NF staff. The disagreement is (or ought to be) about which actions will accomplish this, and which will endanger that forest.
The judges and NEPA attorneys have a different set of goals and objectives, however. Their bailiwick is Process, Procedure, Nuance of Verbiage, Symbols on Paper. Their concern is the Fire Plan and the way it was derived and framed, not the future fire nor its potential catastrophic elimination of the actual forest.
This disconnection in and of itself endangers the forest. Counting angels dancing on pinheads will not rectify the situation. It would be better to assign USFS employees shovels and fire extinguishers, and have them stand out in the actual forest, than to fritter away tax dollars on sophistry and nonsense while the forests vaporize.
Please stop incinerating my forests. Please; they are your forests, too.
Independent Forester | Jul 22, 2005 8:42:05 AM
Posted by: Dave Iverson
I'm not even sure the Forest Service still uses the term ecosystem management. I dug up what I did on "ecosystem management" simply to respond to your latest response.
Still, it sometimes makes sense to talk in more abstract terms. But it makes no sense to talk in more abstract terms unless such talk/thought helps us make sense of the particulars. In this case it is the particulars of 'the forest' that is the stuff of our sensemaking.
It matters little whether we err on the side of "We can't see the forest for the trees" or, "We can't see the forest for the ecosystems,” or other nebulous terms. We are in error either way.
Practice must be contextual, dealing with wholes AND particulars. That is why this blog is titled Forest Policy-Forest Practice, to help guide us away from either error, and to center the discussion on "forests."
Dave Iverson | Jul 22, 2005 3:58:31 PM
Posted by: Tom Mitchell
An interesting dialogue between you and Independent Forester and though I tried not to, I can't help but joining the fray ... oooops perhaps I meant discussion.
Independent Forester said "...The disagreement is (or ought to be) about which actions will accomplish this [to protect, maintain, and perpetuate a real, bona fide, flesh-and-blood forest], and which will endanger that forest. ... Their [judges and NEPA attorneys] bailiwick is Process, Procedure, ..."
Putting aside the visual of a flesh and blood forest, I suggest that process and procedure are the tools that can be used to address disagreement over which actions will protect, maintain, and perpetuate a real forest. How else can such disagreements be addressed if not through an agreed upon process and procedure?
I can stand here and state that I am an expert and believe that these actions are the "right" ones.
You can stand over there and state that you're education is as good as mine and you have walked this forest and you believe the actions I propose are the "wrong" ones and the ones you propose are the "right" ones.
We can then stand and debate and argue and discuss and fight and ... but in such discussions/debates/fights there is never a winner. You won't convince me based upon your "belief" and I won't convince you based on my "belief."
Ah, so instead of just a belief, you trot out articles by professionals to support your position.
I am not impressed because I have professionals I like who think just the opposite of your professionals.
So you say, well, as rational, educated people who are interested in what is going to happen to this real flesh and blood forest, let us do some analysis, some research and make projections to try to figure out if either of the proposed set of actions are correct or if there is something wrong with both and if so, can we devise something that seems to be a set of actions that are scientifically supportable and real and that will accomplish the mutual goal of protecting, maintaining, and perpetuating a real forest.
I can then say, yes, let's analyze the actions you propose and the actions I propose and project these out into the future to see what the results would be ... but... but, before you do that, before I do that, before we do that, let us agree on the procedures we will use to do that analysis, and the process that we will follow.
Hmmm, it appears that in order to address "...The disagreement is (or ought to be) about which actions will accomplish this [to protect, maintain, and perpetuate a real, bona fide, flesh-and-blood forest], and which will endanger that forest." One will end up having to develop a set of procedures and a process that is agreed upon by all sides and then faithfully meet the criteria of these procedures and process. Otherwise, we aren't being honest with each other and can't work to find common ground to achieve our common goal.
And who is to decide if we faithfully met the requirements of the agreed upon procedures and process. Well in this case, we, as a society, have agreed that the "final" judgement on this is in the courts.
How can we avoid going to court? By having all parties involved in defining the procedures that will be used to meet the requirements of the process specified in law, agreeing to those procedures and then working collaboratively to implement those procedures. If we do the process correctly, we should resolve the conflict as to which set of actions has the greatest potential to achieve the goals we all share ... and even if some disgruntled participant whines to the courts, if we followed the process correctly, the courts will uphold the decisions we make.
So NEPA and the process required by the law and its regulations is nothing more or less than our society's joint decision as to what the process should be to address questions/actions that have a potential impact on the quality of life for each and every one of us. And even if there were no law and regulations, as a society, we would end up at the same spot eventually because the only "fair" way to settle disputes as to which are the "right" actions to take to protect, maintain and perpetuate a real flesh and blood forest is to follow an agreed upon set of procedures and a process for designing and analyzing alternative sets of actions.
It appears, then, to achieve the goal that Independent Forester states is her/his goal one has to follow the procedures and process Dave seems to be advocating.
And it aint that hard to do.
Tom Mitchell | Jul 25, 2005 10:35:53 AM
Posted by: Independent Forester
Tom and Dave, I can’t help but think you may be missing my point. Of course this site is about process. All my comments relate directly to USFS policies, processes, and judgments that affect and effect USFS practices. Those practices in turn affect and effect forests, sometimes to the detriment of those forests. In such cases, we who care about forests are obliged to evaluate the processes, to figure out what went wrong.
Science is the process we use to discover truth. No other method is as effective. In a previous thread a contributor cited a study that claimed native burning had little effect on forests. I provided over 150 citations that countered that thesis. These included studies by the top anthropologists, forest scientists, forest ecologists, and eye-witness observers. You can choose to disagree, but you cannot cite 150 first-class scientists who “think just the opposite”. Moreover, the truth is not what you want it to be; it is what it is.
Like some posts here, however, our current judiciary is blind to the truth, and chooses instead to rely upon obscure and unscientific statements or “studies” that support their preconceived notions, and to ignore the vast body of work that counters their prejudicial biases. They carefully select “expertise” that endorses their immediate political leanings and conveniences, while discarding any that are inconvenient, regardless of scientific merit.
This is a breakdown in the process. We all wish to have functional processes. We all want the system to work. Rational, compassionate people do not desire anarchy or totalitarianism because science, logic, and especially history demonstrate that anarchy and totalitarianism are failure-prone to the extreme. Suffering and devastation are the outcomes every time.
Our goal, yours and mine, is to find adjustments to the process that repair its defects without causing total collapse or abandonment of our hard-won freedom to make decisions democratically. We can’t get there by denying scientific truths or by ignoring the serious defects in the current process. We can’t find solutions, and save our forests, if we paper over the core problems.
P.S. It’s just my egotistical opinion, but I think this site was as boring as paint until I chose to spice it up.
Independent Forester | Jul 26, 2005 10:45:54 AM
Posted by: Tony Erba
There is no such thing as scientific “truth”. Truth is a human value that we use to distinguish between “right” and “wrong”. These two things are also value-laden since they define how we view the world and our behavior in that world. Science can provide us facts – those occurrences that can be replicated over and over again through scientific experimental design. How those facts are interpreted helps develops the “truths” that we choose to live by. What Tom Mitchell posed as a scenario is an opportunity to move beyond dueling “truths” with scientists used as hired guns (note that Tom relates “truth” to “belief”). Regardless of how much science you invest in, a decision is made by a person, who is flawed with personal experience, bias, and paradigms. This also applies to the judges and NEPA attorneys who also have their own experiences, biases, and paradigms. It’s part of our system on how we govern ourselves.
Instead of running to a judge and expect him/her to issue some social behavior edict, perhaps it would be better for us approach a scenario much as Tom presents – all parties defining the procedures that will be used to make the eventual decision. This is something that I’ve heard Dave declare as ‘engaging stakeholders.’ If done in this manner, the conflict can then move from the process used to the outcome realized, which will never end in a consensus. Too many people have too many different opinions on the outcomes (some of those are stridently expressed in recent posts to this blog).
However, there are basic precepts that can be agreed to, which is progress. This progress will be instantaneously halted when the different methods are discussed (passive vs. active management being one of the basic divisions). At some point, people will have to decide for themselves that it is more important to work on creating a desired environment to live in/exist with than being factually or “truthfully” correct. Until that happens, no process is stable enough to resolve the conflict.
Tony Erba | Jul 27, 2005 9:08:49 AM
Posted by: Independent Forester
Sorry to disturb your passive slumber with stridency, but when my forests are destroyed and you tell me not really, and that it’s no skin off your nose anyway, my boiler gets stoked.
Let’s evaluate USFS planning and policy-making. The Legislative Branch doesn’t like you, and passes laws intended to circumvent your efforts. USFS planning budgets are cut every year. The Executive Branch concurs, and the Chief blames you for what he calls “analysis paralysis”. The Judicial Branch puts the kibosh on everything you do. The Far Right thinks you are anti-American commies. The Far Left sues you chronically, in a knee-jerk fashion. The Vast Middle doesn’t know you exist. Your own field personnel despise you. Your “union” has abandoned you, and also sues the agency constantly.
Your numbers are dwindling. Ranger Stations are closing all over. SO’s are rented out to other agencies. Last time I was in the R6 RO it was a hollow cavern of empty cubicles.
The National Forests are burning at a rate greater than ever. Record-sized fires have occurred in every western state in the last decade. You burned down much of Los Alamos, and your fires have nipped the edges of Los Angeles, San Diego, Bend, Grants Pass, Wenatchee, and numerous other western cities and towns.
It seems like a cascade of failures to me, but I want to be fair. What is it, exactly, that you are doing right?
Independent Forester | Jul 27, 2005 3:35:01 PM
Posted by: Forrest Fleischman
Tom Mitchell (and Tony Erba)'s comments on the nature of scientific truth in the context of forest management debates ring true even within the fairly narrow context of the debate on this blog.
In a previous post, I cited a recent volume edited by T.R. Vale that called into question the assumption of many past authors that native American burning had been a dominant feature of the historic landscape of the American west. The various articles in the book argue that while native americans had an important impact on fire regimes, that impact was limited to areas that Indians lived in high densities - for example fertile river valleys - and did not have a major impact on the fire regime of other areas - such as high mountains - which were very lightly populated and had a plentiful source of non-human ignition (in the form of summer lightning storms.)
Independent Forester cited, as he says, 150 sources of some very top fire ecologists and anthropologists, that supposedly refute my source. In fact, many appear to me to agree with my source (which also includes some very top fire ecologists and anthropologists). Others disagree - and my source, being more recent, attempts to refute them. For example, one article by William Baker of the University of Wyoming notes that Lewis and Clark, who were widely cited by many anthropologists as saying that extensive fires in the northern plains and rockies were lit by Indians, did not know about lightning caused fires (and therefore never saw one - they simply assumed that wildfires were all caused by "savages.")
It appears in this case that the truth is a little sneakier than it initially seemed to either of us. The experts disagree, and the nature of their disagreement changes over time as they gather evidence, and as their paradigms are questionned and occasionally overturned. Advocates for particular policies will often be able to gather expert opinion for opposing paths. So how do we find the truth? Are our processes robust enough to contain the inevitable disagreements over beliefs, values, and truths?
I tend to think that more than just good processes, we need good participants in the processes - not just the Forest Service, but industries, local citizens, environmentalists, etc. have a responsibility to engage each other in meaningful dialogue, and respect the work and beliefs of others. Perhaps most importantly, I think those of us who are critical of current conditions have a responsibility to come up with constructive solutions and work to implement them.
Forrest Fleischman | Jul 27, 2005 5:56:30 PM
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