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October 27, 2005

Sustainability commentary
Tony Erba

Here's a insightful, and perhaps naive, look at sustainability...comments are welcome. When you read this, think about these questions if you don't agree:

OK, and now what?

• What are we giving up?

• What are we exactly gaining in return?

• If we are not satisfied, is there a better way?

Here's the link - http://www.fs.fed.us/sustained/commentary-fall-2005.html

Posted by Tony Erba on October 27, 2005 at 08:24 AM Permalink | Comments (2) | TrackBack

October 26, 2005

Judge Orders Firefighting Activities to Comply with NEPA, ESA

On October 24th, Montana Federal District Court Judge Don Molloy ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) and the National Environmental Policy Act (NEPA), when it failed to go through appropriate public process to consider the dangers of the millions of gallons of fire retardant the agency uses annually. For details see FOREST SERVICE EMPLOYEES FOR ENVIRONMENTAL ETHICS v. UNITED STATES FOREST SERVICE [pdf]

For many years the Forest Service has argued that fire fighting is an emergency, that there is no time to do formal environmental compliance for NEPA, and formal consultation for ESA. Judge Molloy's decision countermands this reasoning, saying in part,

…emergency consultation [under the ESA] is intended to be the exception, not the rule. The emergency exception is meant for unexpected exigencies. The use of fire retardant by the USFS is not unexpected but guaranteed; the only question is when and where it will be used. There is no reason why the USFS cannot conduct formal consultations with the FWS and no reason to find that the ESA requires anything less. The remedy here is an order to the USFS to engage in formal consultation with the FWS [US Fish and Wildlife Service] regarding the use of fire retardant in national forests.
Molloy's reasoning on the NEPA compliance issue is similar, saying in part,
… The present case is unlike timber sales, forest plan revisions or most other agency actions that prompt suits seeking to compel NEPA compliance. In most situations time is not of the essence and the law generally requires a site specific plan before NEPA compliance is required. … Here it is impossible to do an EIS between the time that the person in charge of a particular fire-fighting operation orders the use of chemical fire retardant and the actual use of the retardant. If Defendant is correct, the application of fire retardant to national forests, which likely has significant effects on the environment, is completely insulated from NEPA because the decision to apply retardant does not occur until the aircraft is dispatched to a particular forest on a particular piece of land. Such a reading does not comport with the goals of NEPA and would allow federal agencies to evade NEPA by allowing final decision to be made "on the ground" by local officials.
Since the lawsuit was narrowly framed, we are left to ponder what other firefighting activities may be considered similar with regard to legal compliance. What about cutting fire line? What about base camp setup, operation, and cleanup/restoration? And so on. What about decisions as to when and where, and under what circumstances generally, to allow fires to burn instead of suppressing them? Judge Molloy's decision may once-again open up discussion as to when, where and how programmatic NEPA compliance makes sense.

Posted by Dave on October 26, 2005 at 09:15 AM Permalink | Comments (0) | TrackBack

October 24, 2005

Recent Flap over Categorical Exclusions

Having been on the road and out of touch the last two weeks, I wondered just how to work up a post on the "Earth Island Institute v. Ruthenbeck" flap over categorical exclusions (see this FS Litigation Page). This morning I found this letter from Bob Wolf to Mark Rey in my inbox and thought I’d just jump-start the discussion there:

U/S of Agriculture Mark Rey Oct.22,2005.
Judge Singleton’s Decision

Dear Mark:

When you proposed to expand the timber sale acres that would be exempt from CE’s, my comment to those assembling views on your plan was that this would lead to inadequate analysis of likely problems on some sales.. This happened on the California salvage sale Judge Singleton

Instead of fixing that sale you professed that the Judge Singleton’s decision was not clear. It took contorted inventivenes to contend that clear Court language was full of ambiguity. This led to a memo from the Chief that virtually any Forest action needed a full EIS process.

Lo and behold, cutting the National Christmas Tree, mushroom picking and other tasks that never had EA’s were said now required them.

For years commodity groups have contended that all it took was a postage stamp to file an appeal or a suit designed to stop timber sales the filer falsely contended were unsound.

Now comes your claim that Judge Singleton's decision was obtuse. You alleged that you feared that it required every little project to have a full exam and opportunity for public comment. Failure to do so would produce more "enviro suits."

The result was your appeal to the Judge to clarify the obvious.

This was a clear Administration abuse of the court system. There were far more sensible and far less draconian ways to determine that the Judge’s decision did not require creating a paper mountain to cut a National Christmas Tree, mushroom picking, fire wood gathering, etc. A common sense reading of the decision would have sufficed. The risk of appeals ranged from unlikely to never.

Your ploy backfired. Congress didn’t leap to overturn the Judge Singleton’s decision. Instead, senior Members wrote that you were playing a game.

On Oct 19 responding to your appeal, Judge Singleton made it clear that only major projects, such as large salvage sales, were the target of his decision.

Winning back public confidence in the Forest Service is more important than tilting at windmills. Your ploy is one more example of needlessly widening the chasm between the Service and an important segment of the public.

There was nothing gained by your seeking to distract people from the real implementation challenges timber sales often pose.

The National Forests have the most competent, well-trained resource professionals in the world. They are backed up by a world class Research network. Universities are further back-up.

What’s needed is clear policies that sets forth issues that need to be explained about planned timber sales.

Timber sales need sharp, tight analyses of likely positive and negative impacts. The effort and thought should be on fixing the analysis process so that it accurately and succinctly shows issues and how they are going to be resolved. Try this. It will lead you out of the woods.

The 2005 timber sales program was about the size of 1940 sales. The rigor mortis that has set in is not due to appeals, Owl decisions and other external road blocks - it is self-induced. There aren't viable appeals on every Forest.

There is no system of loss management or cost control. The "Gate" system for tracking sale progress doesn’t require any accountability for it’s a lack of results.

I don't seek to return to the era when we made sales but never looked at the environmental or the governments financial outcome.

Making sound sales isn’t rocket science. Each Forest has made enough sales on enough different sites in the past 100 years that it should be able to put together a map and atlas that identifies the range of flexibility one has in selecting a sale area. What is remarkable is that the Service has been so slow in charting soil, site, aspect, stand and cost indicators to be used as guides.

Don't curse the darkness - light a candle.


Bob Wolf, retired, Fellow, Society of American Foresters.
CC: Chief and various RF’s
See also10/24/05 Washington Post article, Forest Service Sulk

Posted by Dave on October 24, 2005 at 02:48 PM Permalink | Comments (1) | TrackBack

October 07, 2005

Healthy Forests?

Wondering just how healthy the 'Healthy Forests Initiative' is? Here’s a new book that may shed some light. Review is from the publisher’s website:

George W. Bush's Healthy Forests
Reframing the Environmental Debate

by Jacqueline Vaughn, Hanna Cortner

In George W. Bush's Healthy Forests, Jacqueline Vaughn and Hanna Cortner detail how the Bush administration, by changing the terms and processes of debate, sidestepped opposition and put in place policies that restrict public and scientific involvement in environmental decisions. Their groundbreaking study analyzes the context and legal effects of the Healthy Forests Initiative, Healthy Forests Restoration Act, and related regulatory changes.

The authors show how the administration used news events such as wildfires to propel legislation through Congress. Focusing blame for wildfires on legal obstacles and environmentalists' use of appeals to challenge fuel-reduction projects, the administration restricted opportunities for environmental analysis, administrative appeals, and litigation. The authors argue that these tools have a history of use by diverse interests and have long protected Americans' right to question government decisions.

This readable study identifies the players, events, and strategies that expedited the policy shift and contextualizes it in the president's career and in legislative and administrative history. Revealing a policy change with major implications for the future of public lands and public process, George W. Bush's Healthy Forests will become required reading.

Jacqueline Vaughn is a professor of political science at Northern Arizona University and author of several books on environmental issues, including Environmental Politics and Green Backlash.
Hanna J. Cortner, president of Cortner and Associates, coauthored The Politics of Ecosystem Management, co-edited State and Nature, and has held professorships at Northern Arizona University and the University of Arizona.

Posted by Dave on October 7, 2005 at 09:52 AM Permalink | Comments (7) | TrackBack

October 05, 2005

Why Not Categorically Exclude Everything?

With the continued spate of exclusions from law, some of us are now wondering why the legislature, hand in hand with administrative agencies and the administration, doesn’t just go for the whole enchilada. Why not just write a blanket provision saying, "Henceforth all federal 'good projects on the ground' will be exempt from NEPA, NFMA, ESA, the National Historic Preservation Act, …."

The latest in the series of exclusions cleared the House Committee on Resources on September 28th as an energy bill that would exempt certain oil and gas activities from review under the National Historic Preservation Act. The bill has not yet been scheduled for a vote in the full house. The bill would exempt ground-disturbing activities (oil and gas pipelines, etc.) on non-federal land from review.

As now written the energy bill amends Section 106 of the National Historic Preservation Act to exempt "any federally authorized activity, including the issuance of any drilling permit, right of way, or authority to conduct any other surface-disturbing activity, related to the development of Federal oil and gas resources where the surface estate is owned by a non-Federal landowner, unless specifically requested by the non-Federal surface landowner". (emphasis added)

You can find the language of the proposed amendment on page 6 of the bill at [pdf]. The Committee's website is here.

Posted by Dave on October 5, 2005 at 03:04 PM Permalink | Comments (1) | TrackBack