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August 18, 2005

Dissent, NEPA, 2005 Planning Regulation

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 | Comments (6) | TrackBack

August 02, 2005

How Can We Fix the Mess?

Many of us spend a lot of time kicking the Forest Service around for what it gets wrong. Maybe we’d be more helpful if we would spend more time suggesting what the agency might do to make things right.

Let’s start things off with a very good suggestion from Independent Forester. If we did nothing more than take this suggestion to heart and couple it with my pleas for “A Simpler Way” to manage, to plan, to budget, and so on, we’d be well on our way to recovery and renewal.

1. Go See The Forest

Forest planners and policy-makers need to see the thing they are planning and policy-making about. Turn off the computer, put on your boots, get in the rig, and go out there. And don’t just look at the forest; get squiggy with it. Develop a feeling for the organism. Spend some quality time in the forest.

Try to see the whole, the parts, what’s there, and what’s not there. The indecipherable code on the map is not the thing itself. The lines on the map do not exist in the real world. Be in the forest. Study it, count it, measure it, walk all over it, and be observant. You just might see something you didn’t expect to see. You just might experience something new and wonderful

I recommend a full six-month field season, or a minimum of 1,000 field hours over the course of a year, for every able-bodied USFS employee, especially those assigned the task of making policies and plans.
So have at it! The thread is open. Ideas are welcome

Posted by Dave on August 2, 2005 at 03:53 PM Permalink | Comments (4) | TrackBack