September 13, 2006

A Few Questions about "Strategic and Aspirational" Forest Plans
Martin Nie

The other day I had a chance to comment on the forest planning process for the Western Montana Forest Planning Zone. It provided me a chance to think through my frustrations, stemming from the fact that the US Forest Service is only providing direction that is "strategic and aspirational" (often vague in other words), but asking the public to focus on particulars. There is a lot to like in some of these plans. But the process, as I see it, runs the risk of further diminishing public trust in the agency.

Here is my full comment:

To Whom it May Concern:

Thank you for the opportunity to participate in the forest planning process. There is a lot to like in all three plans, but rather than go through the particulars of each, I would rather ask a few general questions.

First off, I find it a bit frustrating to ask the public to provide specifics and details in providing public comment, when there is no such specificity in the draft plans. It seems that the USFS is able to provide direction that is merely "strategic and aspirational" (often vague in other words) in nature, but the public is admonished to focus on the particulars. I certainly would like to do such a thing, but only if the agency does so first.

It would be helpful to contrast the original forest plan with its proposed revision. What's changed and stayed the same?

I would like to learn more about the binding nature of the forest plan, and how it will be used as a guiding document in the future. I understand how the 2005 planning regulations are different from the 1982 regulations, so no need to respond in that direction. But how exactly will responsible officials use the plan to make and base future decisions? I certainly hope that officials will not say that various matters have already been resolved at the plan level, because many issues have clearly not been resolved—nor have they gone through NEPA's EIS process.

It is also important to clarify how the forest plan revisions interact with all of the other recent regulatory changes to forest management (e.g., the roadless rule, travel management rule, Healthy Forests Initiative, etc.). The plan seems like the best place to explain the decision making environment to the public. How does it all fit together?

I hope that you can provide more detailed information about the future decision making process under the 2005 planning regulations, and how decisions will be tiered to the plan in the future. If any meaningful "decisions" have been made in the plan, with significant environmental effects, then why was NEPA not used? The 2005 planning regulations will fail if the agency plays a type of shell game wherein managers say that project decisions have already been resolved at the plan level, and when plan level direction is challenged, they say that such decisions will be made at the project level. That would not be a good way of building trust and public confidence in the planning process.

Thankfully, the 2005 regulations talk a lot about monitoring. But how exactly will monitoring be done and how will it be paid for? What will happen to various projects and activities if monitoring money, as usual, is not forthcoming?

Most importantly, I’m very frustrated by the agency's refusal to look at the big picture when it comes to forest management. The rapid population growth in the region, coupled with decentralized development and rampant subdivision, should give the agency much to consider (see e.g., RPA Assessment documenting this growth and development). Not so long ago, National Forests in the region lowered their timber harvests because of the liquidation taking place on corporate timber lands. At what point will these National Forests consider what is happening on these private lands, from the amount of timber being cut to real estate transactions?

From Plum Creek divestment to sprawl in the Bitterroot Valley, intermixed public-private lands are a major concern. For all of the talk and rhetoric about ecosystem management, when and where will the agency address these intermixed ownership issues? Will they be considered in future cumulative effects analyses? How will future private lands development be considered and anticipated in the future? NEPA regulations require that agencies consider cumulative impacts in their decision making, defined as "the incremental impact of past, present, and reasonably foreseeable future action regardless of what agency (Federal or non-Federal) or person undertakes such other actions." (40 C.F.R. §1508.7). In short, it is necessary for the agency to seriously consider what is happening on nearby private lands, and modify management accordingly. This was clearly not done at the forest plan level, so when and how will such cumulative effects be considered in the future?

Thank you for your consideration.


Martin Nie
Missoula, MT

Posted by Martin Nie on September 13, 2006 at 03:26 PM Permalink | Comments (0) | TrackBack (0)

May 06, 2005

Roadless: A Rule to Sue By
Martin Nie

Last fall I suggested that the proposed roadless rule wouldn't result in less litigation, but it might well let the Bush administration off the hook. Now that the rule is out, perhaps it is time to see how well my forecasts conform to what unfolds. Here are snippets from my earlier essay.

A rule to sue by
By Martin Nie
for Headwaters News

The Bush administration has proposed replacing the original roadless rule with a "petitioning process" that would give governors an opportunity to seek establishment of management requirements for roadless areas within their states.

The proposed change would be available to governors for 18 months following the final rule, a time frame seen as "sufficient for states to collaborate effectively with local governments, stakeholders and other interested parties to develop proposals that consider a full range of public input."

Any petition would then be evaluated, and if accepted by the Secretary of Agriculture, the Forest Service "would initiate subsequent state-specific rulemaking for the management of inventoried roadless areas in cooperation with the state involved in the petitioning process, and in consultation with stakeholders and experts."

It is also at this stage that the agency would comply with the National Environmental Policy Act and consider the environmental effects of these state-based rules.

While the 2001 rule emphasized the need to look at the national-level picture regarding roadless-area management, the proposed change accentuates the importance of the local.

The proposal is also an excellent example of how the executive branch can use rulemaking to its political advantage. If implemented, it provides the executive significant powers to judge the acceptability of state petitions, while also giving it a potential way out of making politically risky decisions.

From a process standpoint, this proposal is fundamentally flawed. First, it is important to remember that Article IV of the U.S. Constitution gives Congress – not state governors – power over public lands management.

Of course, the administration argues that ultimate decision-making authority still will rest with the Secretary of Agriculture, as it must to be legal. Instead of outright delegation to governors, their petitions will be "considered."

For example, will gubernatorial petitions that advocate opening up more roadless areas be "considered" differently than roadless-friendly ones?

Second, what happens when there is a change in gubernatorial administrations? Will the status of a state's roadless lands swing widely on a four-year election cycle? If so, it places those advocating increased roadbuilding at an advantage because they only have to win once.

Also curious is the argument that the proposed rule will take care of the litigation surrounding the 2001 rule. This is poorly reasoned on numerous counts.

First, it is inaccurate to suggest that the courts have forced the administration to rewrite the original roadless rule. That rule is currently in legal limbo, as the 9th Circuit Court of Appeals upheld it on substantive and procedural grounds, while an unfavorable Wyoming District Court decision has been appealed to the 10th Circuit.

It is quite possible, then, that two western Courts of Appeals will uphold the original roadless rule promulgated under Clinton. Or, we may have another circuit split and wait for the Supreme Court to sort things out.

The claim that the new proposed rule will reduce future litigation surrounding roadless areas is also inaccurate. Instead, litigation will certainly proliferate, as some states go forward with crafting detailed petitions – petitions that are then subject to further NEPA analysis and more litigation. Instead of litigation over one national-level rule, it will be over several state-based ones.

And third, it is insincere to lament the amount of litigation surrounding the 2001 rule and use it as a reason to write a new one, when the administration has chosen not to mount a rigorous defense of the rule from the beginning. Instead it plays the role of the helpless federal government that has no choice but to back off from the original rule. And this comes from an administration that has exerted more raw executive power than any other in recent memory.

This is brilliant politics, but it also illustrates the limitations of relying too heavily upon the courts and bureaucracy to resolve conflicts over public lands management.

In the past, the procedural debate over the roadless rule was split between those advocating a national policy and those who favored more traditional forest-planning processes.

Those opposed to the rule often claimed that roadless-area decisions should be made on a forest-by-forest basis, as they have in the past.

So it will be odd if professional foresters and the timber industry now champion the proposed national rule giving governors more power over public lands management. If so, it raises serious questions about the authenticity of their previous arguments.

The proposed rule is particularly egregious from an accountability standpoint. It is an artful dodge of responsibility and may prove to be nothing more than a shrewd way of avoiding responsibility for a risky political decision.

Instead of making the tough choice to either defend or scrap the rule, the Bush administration passes the buck to state governors. If the petitions are made without authentic broad-based public input and participation, they will be a mockery of the original rulemaking process and the unprecedented public comment that went into it.

The proposed rule's promotion to the public has also been disingenuous, for while it is offered as proof of "President Bush's commitment to cooperatively conserving roadless areas on national forests," it does no such thing, as the proposed rule is merely procedural in nature: Maybe it will, maybe it won't.

What is does do, however, is put an enormous responsibility on Western governors and gives the executive branch a sharpened rulemaking tool.

If implemented, the administration will be able to stand for the principle of roadless area conservation in the abstract while laying responsibility at the feet of Western state governors when these lands are proposed for development.

But by retaining final decision-making authority, the administration can also play the rulemaking "consideration" game when it suits itself.

In short, the proposed rule perfectly illustrates the possible dangers of using rulemaking as the primary means to resolve conflicts over public lands.

Posted by Martin Nie on May 6, 2005 at 03:39 PM Permalink | Comments (6) | TrackBack (0)