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August 18, 2005


Dissent, NEPA, 2005 Planning Regulation
Dave

Tom Mitchell asked if we could post his perceptions/questions on this topic. Here they are:


Dissent, NEPA, and 2005 Planning Regulations:
A Recipe for Disaster?
Thomas R. Mitchell

Recently I was reminded that the right to dissent is a vital part of a democracy. This led me to think about points raised by “Independent Forester” and others regarding NEPA, use of collaboration in planning, and the 2005 planning regulations. How is dissent handled? What are implications of this in terms of the organizational level the agency has chosen to deal with such dissent? Is there a better way to allow/provide for dissent than we are now? If not, is there a better way to organize the agency so that those dissenting from agency decisions don’t grind it to a halt?

Prior to NEPA, there were few, if any, real ways for individuals or groups to register their dissent when it came to how the Forest Service managed national forests. They could write letters to the Forest Supervisor, to the newspapers, or to their congressional delegation. But beyond that, there were no real ways for dissent to be expressed.

When the Forest Service didn’t pay attention to such dissent in the 1950’s, there were bills introduced into Congress to carve out large portions of the National Forest System for National Parks. A response to this was passage of the Multiple Use, Sustained Yield Act to allow/foster management of National Forests for recreation as America traveled like never before and the car became king.

In the late 1960’s and into the 1970’s, dissent became a very disruptive force in some places. In New Mexico, particularly the Carson National Forest, dissenting publics resorted to vandalism of Forest Service property and vehicles as well as an occasional shooting at or kidnapping of Forest Service employees (La Raza). Then there came the Bitterroot controversies and clear cutting became a national issue. Bills were introduced in Congress that would ban clear cutting in the western U.S. but allow it in the east, others that would ban all clear cutting and again, there were proposed transfers of lands from National Forest System to the National Park System. And all of these forms of dissent and their consequences were viewed as unwanted and very threatening to the continued existence of the Forest Service and how it managed national forests.

The National Forest Management Act of 1976 grew out of this environment. It appears it did more than just call for development of land and resource management plans. It, and its 1979 and 1982 regulations, tied such planning into NEPA. Under NEPA, there are avenues for people to register their wishes and their dissent: in required public meetings during the planning process; in letters on the Draft EIS that the agency has to respond to; and then through appeals and litigation processes. In this, NEPA appears a much better way to deal with dissent and not nearly as disruptive as having people shooting at Forest Service employees.

Once decisions are finalized in a Plan and subsequent appeal and court decisions, Congress and the writers of the regulations seem to have thought that this should be a “binding” contract; that the public should be able to expect that the agency will follow “the plan” when requesting budgets, allocating budgets and doing on the ground projects. For this reason, planning was to follow all of the requirements for “rule making.” In this way, forest plans would have the force of law. Meeting these requirements also provides a second avenue for dissent. If a forest doesn’t request budgets, allocate budgets and follow the plan for on the ground projects, those who dissent can litigate based upon the Administrative Procedures Act (APA).

Critics of the Forest Service have found in NEPA a vehicle for registering their dissent in a very effective manner. Their effectiveness in using this approach is one that seems to cause many within the agency a great deal of frustration. But, the only basis for litigation under NEPA is that the process was not followed. In other words, if the process if followed, the Forest Service will win in court no matter the decisions made in the decision document. But, if the court finds that the process was not followed, it appears the courts can stop or modify what the agency had proposed.

So one strategy for the agency would be to get very good at following the NEPA process?

Is there a way to avoid dissent, particularly with the emphasis placed on collaborative planning? Probably not:

  1. There are some in our society that believe that whatever humans do to the “natural world” is wrong/bad. So short of proposing that all national forests and national parks be turned into wilderness, there is nothing that can be proposed that will satisfy this group of people.
  2. There are others in our society that believe that natural resources are part of the wealth of this country and should be used to provide goods and services to its citizens. This group will tend to fight any expansion of wilderness as well as anything they perceive as constraining the full “development” of natural resources.
  3. To others, particularly local citizens and indigenous peoples, the resources being managed are tied to their lives; these can be their livelihood, places where they have a family history or tradition, and places of spiritual/religious value. For these people, altering how these resources have been managed and used, perhaps for as much as the last 400 years, will cause dissent.
This means that there probably will be dissent no matter what is done in terms of public meetings, public involvement or collaboration.

The 2005 regulations for implementation of NFMA appear to close off both the NEPA and APA as avenues for registering dissent, discontent, and disagreement. By categorically excluding Forest Plans from preparation of an EIS or EA, there is no avenue for those who disagree with a plan to register that complaint and request relief from the courts under NEPA. By stating that Forest Plans make no decisions and are not binding on future management because the agency is going to implement EMS, the agency has closed off the use of litigation under APA. In short, it could be argued that those avenues for peaceful and manageable dissent of agency plans for which NFMA was fashioned now have been abrogated. (And though there have been many appeals and court cases since NFMA was passed, there hasn’t been a repeat of the level of violence or controversy that existed before its passage.)

There appears five possible outcomes of closing off these avenues for registering dissent:

  1. Interest groups, native peoples, state and local governments, and local citizens who disagree with agency plans and actions will just shrug their shoulders and say “well there is nothing we can do about it but complain” and then go about their business letting the agency do what it would. Not a likely scenario.
  2. Without NEPA or APA, people who want to register dissent will resort to some strategies employed in the 1960’s and 1970’s - violence and vandalism. Not a healthy situation for Forest Service employees.
  3. People who want to dissent will create a controversy such as the clear cut controversy of the 1970’s and force legislative solutions. This puts control of the agency’s future and its ability to manage national forests in the hands of Congress and out of agency control. Not a pleasant possibility for the agency. (Remember the New Zealand experience with this.)
  4. People who want to dissent will appeal and litigate the only thing left to them, the EA’s for on-the-ground projects. This is occurring at the present time, the agency isn’t pleased with this, and if escalated, this approach could grind the agency to a standstill.
  5. Some combination of 2 through 4.
It appears that the agency is hoping for outcome number 1 which is unlikely to occur. And it appears, the agency and the resources of national forests will suffer under any or all of the last 4 of these outcomes.

Because it is the most likely outcome and one that is occurring currently, lets examine outcome number 4, those who dissent appealing/litigating project by project decisions as it may be under the 2005 regulations for forest planning.

First, it appears the agency has moved the battlefield to the lowest and least able level for dealing with NEPA within the organization. Good District personnel are those that know how to get work done out on the ground. They know most of the local people and talk with them; but their expertise and experience is in doing or administering on-the-ground projects. This is a valuable skill set and one necessary for management of National Forests.

On the other hand, good interdisciplinary teams (ID Teams) require a very different skill set. They require a high level of expertise of at least four kinds – expertise to listen to and communicate/collaborate with internal and external stakeholders, expertise to design good plans and/or projects, expertise to do good analysis of possible consequences and documenting these, and expertise in meeting the requirements of NEPA. Further, to be successful, such teams need a full breadth of expertise in all of the natural resource, social and economic specialties. Putting together such teams requires significant investments of money, time, staff and training as well as good leadership.

Thus there is a dichotomy. One skill set necessary to do the work on a District and another (with some overlaps) to do the design and analysis of proposed actions and alternatives while meeting the procedural requirements of NEPA. It is unreasonable to expect that those with the first skill set can adequately deal with the second and vice versa. To ask District personnel to have expertise in planning, design, analysis, technical writing and NEPA is unreasonable. Further, putting the focus of meeting NEPA requirements down to the District level and expecting to succeed appears unrealistic when viewed in this way.

The current spate of losing court cases based upon NEPA would appear to support these conclusions.

On a more tentative note, dealing with a technical analysis question, it could be argued that NEPA requirements can not be met on a project by project basis in the absence of “decisions” as to what is planned for specific areas on a national forest. One of the requirements of NEPA is to do a cumulative effects analysis of proposed actions and possible/probable subsequent actions. For instance, it was successfully argued that NEPA analysis supporting decisions regarding oil and gas leases should include the cumulative effects of full field development over a time span of 30 or 50 years of field operation. It is possible to do such analysis because actions necessary to develop a field, standards that could be imposed on such actions and timing of these out into the future can be predicted if it is assumed that a full field will be developed on a proposed lease.

Instead of a leasing decision, lets look at a decision regarding a proposed timber harvest project. Analysis of the road that is needed to access the area, of the volumes of timber that will be removed, of the decrease in habitat for some wildlife species and increase in habitat for others, etc., of this single project can be analyzed, estimated and predicted. Now, the question is, will there be other such harvests within this same area? Well, we really don’t know because our plan says we could or might not harvest in this area and adjoining areas. Will the road network be expanded now that you have opened this area? Well, we really don’t know because we aren’t sure what we will be doing in those areas that could be accessed by expanding the road network. An entire series of questions regarding effects on wildlife, including protected species, water and water quality, added stream energy down stream, possibilities of flooding or siltation of downstream reservoirs, etc., can be asked and should be addressed as part of cumulative effects analysis. How else can the decision maker say that (s)he has looked at all of the possible effects and selected this alternative? But without decisions as to what is planned for each area on a forest, it could be argued that such analysis is impossible. Which means NEPA provisions can not be met on a project by project basis. Which means that there is a high likelihood of being able to grind the agency down to a standstill if this strategy is followed.

NEPA as a way for allowing and dealing with dissent has served the agency well over the last 30 years when compared with actions and controversies of the 1950’s, 1960’s and early 1970’s. Perhaps the current frustration with NEPA is, at least in part, due to the agency strategy of putting all NEPA analysis and compliance at the lowest level of the organization.

Some questions for discussion:

  • Are there other strategies that the agency could use for dealing with NEPA?
  • Are there other strategies for allowing/providing for dissent?
  • Will the 2005 regulations for implementing NFMA help or hinder the situation?
  • Are there ways that can provide enough direction in a forest plan and enough disclosure of probable effects to use forest plans to tier to for cumulative effects analysis

Posted by Dave on August 18, 2005 at 04:29 PM | Permalink

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Comments

Posted by: Independent Forester

Perfect! This exactly the kind of flaw-ful thinking that got us into this mess in the first place!

1. The “right to dissent” is not a specified right in the Constitution, like free speech, petition for redress of grievances, due process, etc. I’m not sure what he means by “dissent”. The examples given include physical violence to people and structures, which are not rights, then or now. Participation in so-called “non-violent” demonstrations that block public roads, commandeer public land, constrain legal activities, and endanger lives is not a right. Many people with criminal records, or on the lam from the law, can attest to this fact. Extortion and threats of violence do not and should not drive USFS policies.

2. If the NMFA and NEPA were created to quell or channel “dissent”, then they didn’t work. Mr. Mitchell writes, “… since NFMA was passed there hasn’t been a repeat of the level of violence or controversy that existed before its passage [in 1976].” This statement is factually wrong. If Mr. Mitchell would provide some evidence in support, I would examine it. Until then, I do not accept his contention. The Acts may have engendered a million lawsuits, but they did not reduce the violence.

3. He pigeon-holes dissenters into three groups. This is logically fallacious over-simplification. Is this what planners do, as an expression of their limited world-view? This is precisely how public input is evaluated in NEPA planning: all symbol, no substance. I find it hugely annoying to be binned with a bunch of diverse others, with whom I generally disagree, no less. It’s a mental habit I wish all you simple-minded people would kick. I’ll make you a deal: I won’t discount you, dehumanize you, and chuck you into a barrel full of disagreeable strangers, if you will stop doing it to me.

4. Mr. Mitchell lists five possible “outcomes” from the 2005 regulations. All these outcomes are facts of life and have been happening for decades. I agree with his prognosis, except I’d put it more like, “nothing is going to change”.

5. He states that District personnel, “know most of the [local] people and talk with them.” This is another unsupported (and unsupportable) statement. Most District offices in Oregon and Washington are shut down or staffed by skeleton crews. Whatever their merits, a handful of individuals, most of them recent transfers who will be transferring out soon, cannot “know” the locals, who number in the tens or hundreds of thousands. They cannot know the forests well, either.

6. I agree with Mr. Mitchell’s contention that forest planners have little or no familiarity with the forests they plan for. He says this is necessary because the legal details in planning are so numerous and esoteric that only specialists, who are not field personnel, can understand or deal with them. This may also be true, but what does it say about the state of the Process? The USFS is spending all its money on lawyers and paralegals, and not on the actual forests, except to fight the inevitable fires that result from un-management.

7. Mr. Mitchell correctly states that, “One of the requirements of NEPA is to do a cumulative effects analysis of proposed actions and possible/probable future actions.” This is a requirement, but it is an impossible task and something so easy to litigate that it has become a favorite of NEPA attorneys. Furthermore, never in USFS EIS cumulative effects analyses is there ever any mention that NOT doing the proposed action will lead to catastrophic destruction of the forest. The USFS wanted to protect spotted owl habitat so it halted all vegetation management, decommissioned roads, reduced fire protection, and the owl forests burned to the ground. Pretty poor cumulative effects analysis, in my opinion.

8. Which brings me to my main disagreement with this essay. NEPA is killing forests, as well as crippling the ability of the agency to do anything about it, and depriving forest planners of the careers they once set out to pursue. I think the main job of the USFS ought to be protecting, maintaining, and perpetuating forests, not quelling dissent or turning foresters into lawyers. Success should be measured by forests saved, not demonstrations averted or lawsuits attracted. This is what troubles me more than anything, this vast disconnect with real forests. I can accept affection for the Process, but I cannot accept indifference to the actual forests.


I’m telling you people, all you forest planners and policy makers, that it doesn’t have to be this way. You don’t have be desk-bound bureaucrats, drawing up plans that are rejected for arbitrary minutia, and only seeing the forest on weekends on your own time. It is in your power, within your grasp, to change the way things work, if you want those changes bad enough. You can reorder the system, remake the Process, and do so on terms that make your daily lives much better.

And just maybe, by virtue of the changes you institute, you might be able to save some real forests, our remaining heritage forests, from what appears, at this point in history, to be certain destruction.

Independent Forester | Aug 20, 2005 10:36:45 AM


Posted by: Tom Mitchell

To Independent Forester

Your “dissenting” comment proves my point regarding dissent. Only in democracies is dissent allowed and in this country it is protected as free speech in our Constitution. Because forests are precious resources, many people have opinions of how those resources should be/could be managed and for what purposes such management is to take. And, because they are NATIONAL forests, they are owned by all of these people whether or not they are within the agency. Further, I have not met one person (1) within an interest group, (2) representing an industry involved with National Forest, nor (3) anyone within an agency who doesn’t want the agency to do the “right” thing on the ground. The problem is, we don’t agree as to what the “right” thing is.

A point I was trying to make in my earlier comments is that there is and will be dissent over almost any project the agency proposes to do. When the agency didn’t have an agreed upon process for dealing with that dissent, there was violence toward agency employees and destruction of property. There were also calls, such as those of Sally Fairfax in the August issue of the Journal of Forestry, that would either severely limit the actions the Forest Service could propose or disband the agency entirely. Why do such proposals get traction? Because people are dissatisfied and want to dissent, and this is one avenue for such dissent. Perhaps finding other ways than violence or legislative mandates would be of benefit to the agency, but more importantly, be of benefit to the resources of National Forests.

NEPA provides a process and a system for dealing with dissent. This process and system appear to be agreed upon by most as a system to be used and once a judgement is made, most/all have agreed to abide by that judgement.

NEPA may not provide the best system for dealing with dissent, but it is the one we have and one agreed to by all parties. It appears to be better than having no system for dealing with dissent based upon the events and proposals related to controversies of the late 60’s and early 70’s. Changing NEPA because one agency hasn’t figured out how to deal with it effectively doesn’t seem a realistic option; nor does trying to create a new process for dealing with dissent.

Given this, it seems that a strategy for the agency is to get very good at NEPA. If this is done, then appeals and litigation won’t stop proposed actions; rather the agency can start the NEPA process far enough in advance of when they want to do the action on the ground to allow time for appeals and litigation. (I’ve seen this kind of strategy work well on one National Forest over a 9 year time span where all appeals and litigation were won by the Forest.)

If this is a viable strategy, then the question becomes how does the agency get very good at NEPA?

I suggested in my post that being very good at NEPA requires a skill set that is different than the skill set resource specialists need to do projects out on the ground. There is an overlap in these skill sets, but they are different. Currently, the agency seems to have pushed NEPA compliance to the District level and to some, this is where the 2005 planning regulations appear to place NEPA compliance (though there are legitimate arguments to be made that that isn’t the case). The current situation is a mess with the agency losing many NEPA battles, much frustration on the part of agency personnel and the public and some management actions being ground to a standstill. So I posed/pose questions for discussion.

1. Is it reasonable to expect those skilled in project implementation to also be NEPA experts?

2. If not, should the agency add a well trained interdisciplinary team to each District skilled in NEPA compliance?

3. Can the agency afford a well trained ID team capable of NEPA compliance on each District?

4. If not, are there other ways NEPA compliance can be handled within the agency other than expecting District personnel to be experts with two distinct skill sets? And answers to this last question may provide some insights into solutions to the other problem you raised: complying with cumulative effects analysis requirements within NEPA.


Tom Mitchell | Aug 25, 2005 9:39:55 AM


Posted by: Joe Carbone

Mitchell's discussion questions with my perspectives and follow-up questions:

- Are there other strategies that the agency could use for dealing with NEPA?
Rather than thinking that we need to "deal with" NEPA we should be working to meet the national policy outlined in Section 101 of the Act http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm. When many people refer to NEPA, they refer to the action--forcing requirements of Sec. 102. The better question for me is "are there other strqategies to fulfill the visions of NEPA Section 101? What is is about the 2005 Planning Rule that furthers Sec. 101? We'll find out as we implement, but I predict EMS, collaboration, shorter planning cycles, and comprehensive evaluations of social, economic, and ecological conditions and trends will bring us further to realize our national environmental policy than more forest plan EISs will. We'll see.
-Are there other strategies for allowing/ providing for dissent?
The 2005 Planning Rule allows for at least as much dissent as previous rules. NEPA is still an available option, but given the potential for involvement under the 2005 rule, NEPA dissent would likely be more of the end-game.
-Will the 2005 regulations for implementing NFMA help or hinder the situation? I think it helps as it offers something new.
-Are there ways that can provide enough direction in a forest plan and enough disclosure of probable effects to use forest plans to tier to for cumulative effects analysis? Plan EISs have not been very effective for cumulative effects analysis. There are much better ways to get to cumulative effects for project-level analysis than to rely on even a new plan EIS. Even the 5-year comprehensive evaluations offer a better window to cumulative effects as they will be refreshed under this rule more frequently than those on a 15-year plan revision schedule.
----I've been a strong NEPA advocate since I first learned about the act in 1970. I've devoted most of my career to furthering the act and have come to realize that there is sooooo much more we can do to meet the policy set out in Seciotn 101. It's been 35 years since that policy was written. As good as the EIS requirement has been to further the policy, surly we've learned something and have more ideas today to further the policy than to just write and circulate more documents.

Joe Carbone | Sep 6, 2005 8:31:11 AM


Posted by: Tom Mitchell

A response to Joe...

I believe I agree with most of your points - particularly regarding the intent of NEPA. In fact, on other topics, I have suggested some of the same items that you have. I am confused about two or three points you made however.

First, I see the comment that "...but I predict EMS, collaboration, shorter planning cycles, and comprehensive evaluations of social, economic, and ecological conditions and trends will bring us further to realize our national environmental policy than more forest plan EISs will."

I find this a very interesting statement and perhaps my understanding of forest planning and NEPA is very different than yours. It seemed that doing plans with a requirement for an EIS included requirements for collaboration, comprehensive evaluations of social, economic and ecological conditions and trends under the 1979/1982 regulations. Further, planning with implementation, monitoring and evaluation on an annual basis and a requirement to revise a plan if monitoring and evaluation concludes that there is a need to change based upon factors such as inabiility to implement as quickly as planned or having unexpected results from a project or a change in the local, regional or national economy or ... any variety of things would be about the same as doing EMS. And it appears that at least some forests are planning on taking 2 to 3 years to complete a plan revision under the new regulations while under the 1979/1982 regulations and analysis standards, I know of several that completed their Forest Plans in that amount of time. (If you would like a list, I will be glad to provide it.) Yes, some forests took 5 or 10 years to do a plan, but there is nothing in either NEPA nor NFMA or even in the 1979/1982 regulations that required that much time as evidenced by those who finished much sooner.

And, like in an EMS process, when conditions deviated from those anticipated within the plan, a plan amendment or revision should be triggered even if that occurred in the first or second or fifth year. So though the regulations stated a plan could stand for 10 or 15 years, there was no requirement that it HAD to remain unchanged for 10 or 15 years. In fact, the requirements for monitoring and evaluation should be continually triggering plan updates even if they just say, yes, we did what we said we were going to do and yes it had the effects we anticipated so we are going to keep going in the direction we are headed now.

The difference between the regulations, of course, is that earlier plans had to go through the EIS process where it was required to not only do collaboration, but to gather comments on the draft plan. This provides a place for those who dissent to make their feelings known. And often, changes between draft and final addressed these dissenting points perhaps avoiding appeals and litigation later on or on a project by project basis. So in terms of my over all comment, this provided a mechanism for people to register their dissent that is missing in the new regulations.

Given that the new regulations take great pains to stress that no decisions are made in forest plans, it would be a difficult task to appeal or litigate such plans. If there is no decision, then there is no decision/analysis process to review. So there is nothing for anyone to appeal or take to court. This seems to leave the only place for registering dissent to where these regulations state that decisions will be made... on a project by project basis. Which, as pointed out frequently by many on this site, appears to be causing a great deal of frustration among agency personnel and in some places, grinding all management actions to a halt. This is not a desirable outcome nor does it further the purposes of Sec. 101 of NEPA.

So my confusion is how do the things you listed bring us closer to meeting the intent of NEPA? In fact, when you get down to the nuts and bolts of caring out the requirements of these versus planning under the older regulations, is this list of things really any different than the former requirements, just dressed in different words, with the only exception that an EIS is no longer required.

The other major point where I am confused is in your discussion of cumulative effects analysis. I could be very wrong, but my reading of NEPA appears to call for an analysis of the cumulative effects of all proposed actions and those that could logically flow from those actions ... not a retrospective on what has happened when we have implemented something and then monitored the effects. If this is the case, then how would a 5-year comprehensive evaluation provide any kind of a window to cumulative effects. Isn't a 5 year comprehensive evaluation looking back at what was done and what the effects of that were and not a look at the subsequent actions that could logically flow from the actions already taken?

My examples and explanation could have been too poor for me to convey what I was trying to say and may be the source of confusion. From my reading of cumulative effects analysis, if, say, the proposed action is to build a bit of a road extension to access timber stands, and harvest some of these stands. A simple timber sale project. Cumulative effects analysis would involve asking the questions: (1)What are the subsequent actions that will/could logically flow from those proposed actions AND (2) what are the cumulative effects of all of those subsequent actions.

On a simple timber sale, this could mushroom into a huge analysis because the extension of the road makes access for recreation and hunting easier and possible access for future timber harvests further up the drainage more attractive - so subsequent actions would include regeneration surveys of the cut areas, perhaps planting, possible construction of trails from the end of the road for hiking/horseback riding, future extension of the road, more timber harvest, operation of seismic equipment, etc. and etc. and etc. Where do you draw the line in terms of speculation of what is "reasonable" to expect in terms of subsequent actions that could be spurred on by this simple timber sale project. If taken to court, your judgement of "reasonable" may not be the judgement of the opposing lawyer or, sadly, of the judge.

Perhaps ... note I did say perhaps ... if there existed a plan for the larger area of which that timber sale was a part, and if that plan specified the ecosystem states that management was going to try to achieve in that entire area and if the probable actions necessary for achieving these conditions and the effects of those actions were included and summarized in the EIS for the plan, then the question of what subsequent actions are foreseen for this area and their cumulative effects becomes a fairly straight forward and easy to defend kind of thing. Otherwise, it becomes very murky/a matter of your judgement of what is reasonable versus what an opposing lawyer could convince a judge is reasonable in terms of anticipated actions and their effects. I've been in both circumstances in Federal Court, and the former is much more comfortable than the latter.

So, restating my original questions, is there a way to meet the intent of NEPA and NFMA that provides acceptable avenues for those who disagree to register their dissent and have that adjuticated in an agreed upon manner... where the "battle" is not on a project by project basis and where there is a "reasonable" analysis of cumulative effects?

Within the agency and among those outside who are very concerned about doing "the right thing" on the ground, there is enough experience, expertise and wisdom to find that way. But how do we tap into that experience, expertise and wisdom... how do we all come together and agree on what it is we want to do?

Or said yet another way, in the words of that wise elder statesman who hosts all of this ... How can we fix the mess?

Tom Mitchell | Sep 9, 2005 11:07:42 PM


Posted by: Joe Carbone

-I may be missing the point on "dissent". Some characterize dissent as the end game when all else fails (like litigation may be the ultimate dissent allowed under NEPA)and some as the right to be involved and listened to (during the NEPA process). Could someone still use litigation under NFMA? Or wouldn't they still have dissent opportunities under the public involvement and plan review requirements of the 2005 planning rule? I've seen several references lately to NEPA and democracy and I understand the point. However, that doesn't stop me from thinking of better ways to engage public discussion and collaborative processes to better agency environmental impact assessment and decision-making. There's always a better way if we're willing to learn and try new things. Sure we could go on using the EIS for plans, but I think there is a better set of tools for the job. We'll see.

-Cumulative effects - Cumulative effects is looking retrospectively as well as forward in the context of the decision being made. Plan EISs just don't do that to the detail that is very meaningful or useful at the project level (at least not for very long). It seems like it would be more efficient to maintain the information and not rely on the EIS supplement process to do so. Although I suppose one could use the EIS to maintain cumulative effects analyses if they thought that was the best way.

Joe Carbone | Oct 13, 2005 11:39:28 AM


Posted by: Tom Mitchell

Joe,

I understand a search for a better set of tools for the job. And I heartily applaud your statement ..."There's a better way if we're willing to learn and try new things."

It is hard to visualize litigation under NFMA if a Forest Plan makes no decisions. About the only thing that could be litigated is whether or not the Forest Plan adequately implemented NFMA; and NFMA is so broad/general, that it appears that would be nearly impossible to litigate (but that wouldn't stop a creative lawyer from trying anyway, would it?). So not making decisions in a Forest Plan AND not producing a NEPA document for it basically closes off all paths for dissent.

Yes, more collaboration is called for. But if you are in the minority and the collaborative group at the meeting you attended doesn't seem to appreciate your position, what recourse do you have? About the same recourse of those that created the situations in the late 1960's and 1970's that led to the passage of NFMA. So, in effect, we could be back where we started 30 years ago.

Perhaps there is one difference. NEPA wasn't on the scene during most of the late 1960's and no one seemed to know how to approach it in the early 1970's; at least not the way it is approached now. So those who truly dissent as well as those whose end game is to tie up the agency in court have the option of appealing/litigating project by project EA's or EIS's. And we all know how well the agency fares in that arena.

And in the spirit of looking for a better way, please note that though most forest plan EIS's weren't detailed enough to support cumulative effects analysis for projects. At least one forest plan was. And if it can be done on one forest, then it probably can be done on others. The part of cumulative effects that can be assisted by a detailed forest plan is that dealing with the set of planned actions/projects selected for specific geographic areas on a forest and a description of the detailed desired forest conditions these planned actions/projects are designed to achieve. This puts the proposed project in context with everything planned for that area. Without this, those involved in project design and analysis have to try to project through time all of the possible actions that this project could lead to. That is a daunting task and one on which most project EAs are vulnerable.

In summary, by making no decisions in a plan and not documenting even the collaboration in an environmental document, appears to have created a situation where a forest has effectively closed all channels for those who dissent to the plan to express that dissent. This saves not having to deal with the plethora of forest plan appeals and litigation that have plagued the agency. A good thing. This forces those who dissent to focus on project EA's. Not a good thing. Yes, there are some who use dissent as an end game; appealing/litigating is how they show their members they are preserving the resources of a forest during fund raising. But there are ways to deal with this so that it doesn't disrupt a forest.

Will better information help? Yes.

Are there other ways to approach this problem that could provide for expressions of dissent without grinding the agency to a halt through appeals/litigation on project EAs? I believe so. And I believe that this can be done without changing the planning regulations or NFMA or NEPA. To get there though, one must subscribe to your statement that I quoted earlier "There's always a better way if we're willing to learn and try new things."

Tom Mitchell | Oct 18, 2005 9:39:50 AM


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