Forest Policy - Forest Practice

Sloppy Writing Accompanies Flawed Decision Making: USFS and the Courts Dave

In a recent post I mentioned that Forest Service Chief Bosworth might want to hand out a few hundred copies of two classics on clear and definitive writing. But that alone will not begin to address the problems the Forest Service repeatedly faces in court. Another place to begin might be decision making.

Here are two classics on administrative decision making that might accompany any attempt to correct imprecise writing. Both stress the very public and political nature of administrative decisions:
   A Primer on Decision Making: How Decisions Happen. James G. March
    Policy Paradox: The Art of Political Decision Making. Deborah Stone

Both books deal with too-narrow and mistaken problem framing. Stone argues that such mistaken framing derives from what she calls "the rationality project." In "rational decision making" decision makers are supposed to follow these well-defined steps:

1. Identify objectives.
   
2. Identify alternative courses of action for achieving objectives.
   
3. Predict the possible consequences of each alternative.
   
4. Evaluate the possible consequences of each alternative.
   
5. Select the alternative that maximizes the attainment of objectives.

As both books point out, the problem is that in real life—the life of political administrative decision making—nothing works out according to "the rationality project" and decisions are not made that way.

It would be good to spend some time discussing decision making in real world contexts, but such a discussion is not likely in the Forest Service any time soon. Instead we'll see mad-dash attempts to build new systems (e.g. most recently Environmental Management Systems), rework process requirements, and almost anything but taking an in-depth look at agency policy making and decision making.

Write So That You Cannot Be Misunderstood: Or Lose in Court Dave

In 1978 Jefferson D. Bates wrote a little book titled Writing with Precision: How to Write So That You Cannot Possibly Be Misunderstood. Good advice. Hard to follow. Most of us would do well to read this book and/or William Zinsser's On Writing Well. The Chief might want to buy a few hundred copies and distribute widely among various staff groups, line officers, and so on. For now, though, we are likely to see more of what the Ninth Circuit Court of Appeals handed the Forest Service last month.

On March 24 a Ninth Circuit panel of judges (John T. Noonan, A Wallace Tashima, and William A Fletcher) issued an opinion that ought to give FS managers and staff pause. In EARTH ISLAND INSTITUTE v. USFS [PDF] the Ninth Circuit reversed the District Court for the Eastern District of California and issued a preliminary injunction against the Power Fire Restoration Project and the Freds Fire Restoration Project on the Eldorado National Forest.

When viewed through the narrow lens of "writing so as not to be misunderstood," some points of the opinion prove interesting:

[7] NEPA's procedural requirements require agencies to take a "hard look" at the environmental consequences of their actions. …

[8] …When reviewing the adequacy of an FEIS's hard look, we follow a "rule of reason" approach, which requires "a pragmatic judgment whether the [FEIS's] form, content and preparation foster both informed decision-making and informed public participation." Native Ecosystem Council v. U.S. Forest Serv., 418 F.3d 953, 960 (9th Cir. 2005); see also Dept. of Transp. v. Public Citizen, 541 U.S. 752, 767 (2004). …

… Agencies have wide discretion in assessing scientific evidence, but they must "take a hard look at the issues and respond[] to reasonable opposing viewpoints." Earth Island, 351 F.3d at 1301. "Because analysis of scientific data requires a high level of technical expertise, courts must defer to the informed discretion of the responsible federal agencies. Id. "When specialists express conflicting views, an agency must have discretion to rely on the reasonable opinions of its own experts, even if a court may find contrary views more persuasive. At the same time, courts must independently review the record in order to satisfy themselves that the agency has made a reasoned decision based on its evaluation of the evidence." Id. (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989)). ….

[9] The primary purpose of an FEIS is to allow for informed public participation and informed decision making. …40 CFR § 1502.8 requires that FEISs "be written in plain language and may use appropriate graphics so that decisionmakers and the public can readily understand them." … [Note that the court interpreted "public" as] "interested non-professional laypersons likely to be affected y actions taken under the [FEIS]." Or. Envtl. Council. V. Kunzman, 817 F.2d 484, 494 (9th Cir. 1987).

After laying the groundwork, the court cuts to the chase w/r/t the FEISs for the fire restoration projects and mandates for full disclosure and clarity:

[10] … Table 3-6, is, to say the lest, misleading. Its title is "Probability of Tree Mortality," rather than "Probability that Predictions of Probability of Tree Mortality and Survival are Correct." Second, there is no other table in the FEISs providing the probability of tree mortality. The absence of such a table is significant. The single most important aspect of the FEISs is their estimate of the likelihood that trees with certain amounts of fire damage will die. This is so for the obvious reason that the justification for cutting burned or scorched trees is the likelihood that they will die. Any readers of the FEISs will therefore look for a table providing probability of tree mortality. The only table in the FEISs that appears to provide that information is Table 3-6. It is not unforeseeable that a reader – even an expert reader… – would misunderstand the table. Further, the explanation for Table 3-6 provided by Smith's declaration [USFS expert witness] in the district court is nowhere provided in the FEISs. … The absence of such an explanation in the FEISs obviously increases the chance that the table will be misunderstood.. …

[11] In the end we conclude that the USFS abused its discretion in its estimates of the likely tree mortality in both … FEISs. … Table 3-6 is, for the reasons given above, extremely misleading. A casual, or even a careful, reader of the FEISs and of Table 3-6 could easily conclude that 96% of yellow pine with a minimum of 75% crown length scorch will die, or that 90% with a minimum of 65% crown length scorch will die. If those were, in fact, the percentages of yellow pine with that degree of fire damage that will die, it would be easy to conclude that the USFS is justified in cutting all yellow pine that satisfy those criteria. But those are not the percentages of tress that will die.

… It is possible that those who prepared the FEISs, and the Forest Supervisor who signed the RODs [Records of Decision] based on the FEISs, understood Table 3-6 in the way Royce [Earth Island's expert witness] understood it. If this is so, the USFS failed to take the requisite "hard look" at the data underlying their analysis and decision. Kern, 284 F.3d at 1066. It is also possible that those who prepared the FEISs, and the Forest Supervisor, understood Table 3-6 in precisely the way Smith described it in her declaration. If this is so, the USFS also abused it [sic] discretion, for it failed to reveal the actual percentages upon which it relied and it drafted highly misleading FEISs. Native Ecosystem Council, 418 F.3d at 965. Under the first alternative, the USFS misunderstood the data: under the second, it understood but concealed and misrepresented the data. Under either alternative, it abused its discretion.

There is much more to digest in the opinion, but we will skip to the court's conclusion:

We have noticed a disturbing trend in the USFS's recent timber-harvesting and timber-sale activities. … [trends and eight court case citations in original]

… It has not escaped our attention that the USFS has a substantial financial interest in the harvesting of timber in the National Forest. We regret to say that in this case, like the others just cited, the USFS appears to have been more interested in harvesting timber than in complying with our environmental laws.

Courts not amused by NEPA avoidance Forrest Fleischman

This story began back in 2001, when the Six Rivers National Forest, in coastal Northern California, completed its fire plan. The Environmental Protection Information Center (EPIC) sued because the Six Rivers had not done NEPA for the fire plan. The judge agreed with EPIC that the fire plan constituted a major federal action, so the Forest Service tried to rewrite its forest plan so that it would no longer be construed as an action. This involved removing direction for protecting Port Orford Cedar from root-rot (the direction was included in a separate EA), banning wildland fire use, and removing other direction regarding fire fighting and fuel reduction projects. Yesterday, the judge, who did not seem amused, once again ordered the Forest Service to write an EIS for the fire plan.

This is the second time that the court has rejected the agency’s argument that the fire plan is not a major federal action. As the agency tries to remove more of the planning process from NEPA review, it seems to be running into increasing problems.

The judge argued that even if the new fire management plan had not made any decisions, it still was replacing a management plan that contained clear standards with one that did not have those standards, and this alone would have triggered NEPA. In addition, banning wildland fire use (by eliminating all guidance about where it could be applied), was akin to a decision to suppress all wildfires, and therefore, required NEPA analysis. Finally, the judge wrote:

The new FMP, like the old one, is a programmatic document containing new fire management direction and therefore requires NEPA process. The Court notes that although it has identified the WFU ban as an example of new fire management direction in the 2005 FMP, the Forest Service cannot achieve compliance by subjecting only that direction to NEPA. NEPA requires “coherent and comprehensive up-front environmental analysis.” Churchill County v. Norton, 276 F.3d 1060, 1072 (9th Cir. 2001); see also Atchison, Topeka and Santa Fe v. Callaway, 382 F. Supp. 610, 620 (D.C. Dist. Ct., 1974) (holding that NEPA requires that agencies “consider the impact of an overall program and not just isolated aspects” of it, that is, “an agency may not engage in segmentation, i.e., an appraisal of each tree to one of the forest”). Therefore, the entire 2005 FMP must undergo NEPA process.

This raises clear hurdles for the new generation of forest plans. For example, new forest plans eliminate management direction contained in existing forest plans, much as the 2005 fire plan eliminated direction contained in the 2001 fire plan. It also raises question about why the agency is committed to going out of its way to break the law. Why not do NEPA on a fire plan? As an activist quoted on EPIC’s press release states,

“This is a huge opportunity for both the Forest Service and the public they serve,” said Timothy Ingalsbee, executive director of Firefighters United for Safety, Ethics, and Ecology (FUSEE). “Fire management plans can only benefit from including the best available science and informed public input, especially local community knowledge. Public involvement will not only help managers craft better fire plans, but will also help gain buy-in from communities on using wildland fire to protect communities and restore forests degraded by a century of fire suppression.”

NEPA opponents frequently cite two problems with NEPA: expense and time. It seems that in this case the Forest Service would have saved money and time if it had complied with the law in the first place rather than trying to come up with obscure procedural arguments about why it didn’t have to do NEPA. As Ingalsbee points out, the Six Rivers also would have had the advantage of public input into its planning process. I wonder if the forest planning regulations will end up in a similar place? At the very least, the agency is running a very real risk that it will have a whole generation of forest plans – and several years of work – thrown out of court due to NEPA compliance issues.

Lure of Money is Shaping the National Forests Dave

We are seeing more advertising, more fees, more roads to draw timber sales and lumber-mill jobs, more attempts to sell land outright, more "partnerships"—often with big-money concessionaires and others with greedy eyes focused keenly on our national forests. April Fool's joke? Yes, but not in the traditional 4/1 sense. Foolishness seems to abound within the FS, the Congress, and the Administration. Or maybe it is "wisdom," and I'm the April Fool?

For more, see John Haliprin's Forest Service looking for new revenue, Seattle Times, 3/29