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January 11, 2007

Time to Abandon the Forest Planning Process?

As we await a decision an the validity of the 2005 NMFA planning rule from the U.S. District Court for the Northern District in California, we are all pondering the worth of and/or mid-course corrections for forest plans, National Environmental Policy Act (NEPA) compliance and categorical exclusions for plans, the worth of Environmental Management Systems (EMS) and the relationship between EMS and NEPA compliance responsibilities.

Into this mix we need to add this: Is it time to let the planning process as we've know it die and find a simpler way to sense public needs and render public service on the national forests?

Is it time to let the planning process die? Long-time forest activist Randal O'Toole says YES!:

Forest plans that do nothing, Randal O'Toole, The Seattle Times, 01/07/2007: … [T]he forest planning process is a failure, and the best thing we can do is let it die a natural death.

In the 1980s, the Forest Service spent well over $1 billion trying to write plans for each of the 120 or so national forests. The plans took so long to write that by the time they were done, they were obsolete.

Some forests rewrote their draft plans as many as three different times in response to new events, such as a forest fire or the listing of the spotted owl as a threatened species. But before they were finished, something else would happen that would render the new plan useless.

When forest managers finally got the plans, they quickly discovered they were worthless and pretty much ignored them. National forest management in the 1990s bore little resemblance to what the plans had said.

Of course, environmental groups challenged some of the plans in court. After spending all this time and money, the Forest Service made the curious argument that the plans actually made no decisions, and so there was nothing to challenge. The Supreme Court agreed, and so we spent $1 billion and 10 years doing nothing.

Unfortunately, no one bothered to tell Congress that the process was a failure. …

Those who want better forest management realize that it makes more sense to spend scarce taxpayer dollars actually managing the forests, not writing plans that are obsolete before they are finished.

This does not mean I have a lot of faith that the Forest Service will do a good job. … Forest planning is a waste of everyone's time. Let the forest planning process wither away. Then we can go on to debate the real issues involved in public land management.

Posted by Dave on January 11, 2007 at 01:38 PM | Permalink


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Posted by: Doug Heiken

O'Toole's ultra-libertarian views don't make sense to me as long as there are economic externalities that prevent the rational allocation of resources among users in the absence of some kind of planning process. The planning process may not be perfect but it beats all known alternatives. Public involvement (NEPA) is currently the best way to correct for the externalities.

Doug Heiken | Jan 15, 2007 9:56:51 PM

Posted by: Bob Zybach

Heiken's simplistic views don't make sense to me at all -- for once, I'm in agreement with Randall O'Toole. I have no idea what kind of "economic externalities" he refers to (probably "corporate greed," or something similar, I'm guessing), but the economic destruction of rural western communities and the destruction of our forests by wildfire are two of the "externalities" that can be directly attributed to NEPA and the forest planning process. Before these things came into law, the USFS did a fine job of contributing to local communities, maintaining healthy forests, and combatting wildfire. Maybe Doug isn't old enough to remember those days, but management by trained experts definitely beats the planning process. Getting the general public involved in processes that require trained experts and local knowledge was a huge mistake, and the current state of our federal forestlands is proof positive. Time for change.

Bob Zybach | Jan 15, 2007 11:43:00 PM

Posted by: Dave Iverson

Hey Doug, Bob,

I don't like ultra-libertarian views either. And while I think "professionalism" a necessity, I don't trust management of, by, and for "trained experts". Neither did Gifford Pinchot.

So, what I wanna know is: What do you recommened as per my post on "US Forest Service Betterment"

See also, for reference, my post in "Adaptive Forest Management" titled: "Rebuilding Public Trust"

Dave Iverson | Jan 17, 2007 9:18:37 AM

Posted by: Kenton Call

If we do away with forest plans, we no doubt could save money. Without plans, much time, effort, and money would need to be spent to provide forest managers the tools to meaningfully, authentically, and thoughtfully interact with their communites of place and communities of interest to identify projects that will move the condition of our forest in the direction of the common good. While most of our managers are well-intentioned individuals, they are not always equipt with the tools and confidence to operate in community dialogue where give and take is the rule. Furthermore, many potential partners in charting the course for the dynamic settings in which we exist, are not sufficiently equipt to weigh the optimal balance of the social, economic, and ecological needs of our communities and public resources.

Doing away with plans may not be a bad idea, but it would necessitate a perestroika of how the Forest Service does business that would no doubt be painful? Could we survive such a "restructure"? Would the agency still be relevant without the "authority" that a plan bestows upon managers?

Kenton Call | Jan 17, 2007 1:39:58 PM

Posted by: Dave Iverson

Perestroika for the Forest Service would no doubt be painful. But as they say, No pain, no gain...

"Could we survive such a 'restructure'?"

Can the agency survive without such?

"Would the agency still be relevant without the 'authority' that a plan bestows upon managers?"

I suspect that the agency would have to back up to a previous authority, or a new one from the Congress. In the meantime is there a possibility of simplification on the far side of complexity? Complexity, that is, of the environmental and social systems, not of FS rules of engagement. The Forest Service routinely over-complexifies all its rules, directives, etc. We certainly don't want to encourage that.

Dave Iverson | Jan 17, 2007 2:25:28 PM

Posted by: artemisia

These are public lands. Plans are in the public interest because they establish a set of rules and "zoning" of land for what can and can not be done to it.

The effort to do away with Forest Plans is part of a privatization agenda. Looks like it is now surfacing again, just like in the mid-90s, 'cuz the handwriting's on the wall for the Republicans so it is now time to dress privatization up in the same old pontificating academic pundit garb. Like the whining from the Andrus Center at Boise State in the mid-90s over "gridlock" and if we can only get rid of NEPA, all will be well.

This is all to advance the agenda of the timber, grazing, mining, energy and land trade/disposal developers interest. You folks are their frontmen.

Please keep your hands off our public lands and processes.

artemisia | Jan 17, 2007 3:05:19 PM

Posted by: Tara Ferma

Boy, you just see more and more of this "let's grow up and get serious" tone about what a pain the ass environmental laws are, what a waste of time NEPA is, etc. It has become increasingly fashionable in the last few years to trash environmental laws and planning processes as outmoded, quaint old concepts that we have grown out of in our sophistication--and just can't afford anymore. The current system is sometimes downright awful, but I'd rather see the public involved at every step, even (perhaps especially) if we slow things down to a crawl, than swept aside with the admonishment to trust the experts. I think the experts were the ones who thought fighting every spark of fire was a good idea? That clearcutting would make way for "thrifty" forests? That land trades were a good way to neaten up the map and funnel more timber to Weyerhaesuer and Plum Creek?

Tara Ferma | Jan 17, 2007 3:40:20 PM

Posted by: Dave Iverson

Tera Ferma says; "...I'd rather see the public involved at every step, even (perhaps especially) if we slow things down to a crawl, than swept aside with the admonishment to trust the experts."

Me too. And I have argued long and hard that we ought to "tell the truth, obey the law, and practice ecosystem management" as Chief Jack Ward Thomas admonished us to do. (And yes, I've argued for EISs for forest plans too.) Here are a few examples:

EMS to the NEPA Rescue!

Why Not Categorically Exclude Everything?

Judge Orders Firefighting Activities to Comply with NEPA, ESA

California Court says Sequoia National Forest Fire Plan Fails to Comply with NEPA

The Curious Case of Forest Planning and EMS

Dave Iverson | Jan 17, 2007 9:30:46 PM

Posted by: John Freemuth

wow..it is interesting to me that everyone's comments reflect their own training, assumptions, and worldviews. Good stuff!


John Freemuth | Jan 18, 2007 1:20:50 PM

Posted by: Bob Zybach

When I was a young man, in the late 1960s and 1970s, when federal Wilderness areas and forest management laws were first being implemented, I was a reforestation contractor based, and raising a family, in the Oregon Coast Range and working throughout the Pacific Northwest. That was when privatization of federal forest lands first became a big issue -- in the 1970s and early 1980s -- and not the 1990s, as one (probably much younger) writer claims.

Since then we have experienced wave after wave of catastrophic wildfires; massive business, family, and personal failures throughout the rural west; spent billions of dollars annually "fighting" such fires; needlessly endangered tens of thousands of people and hundreds of communities; killed tens of millions of wild animals or left them homeless; and turned millions of acres of old-growth forests into ruins, only to let them reburn or rot needlessly while we import wood from (and export jobs to) Canada.

These have not been "slow and considered changes" (paraphrase) to the management of our nation's forest and grasslands at all! Rather, they are a direct result of, and bear obvious witness to, the failed long-term social experiments of a central government with a strong urban-based bias. (That bias can be measured in many ways, including per-capita income, unemployment rates, landscape aesthetics, recreational opportunities, average education, infant health, wildlife populations, registered voters, etc., beginning any time after the mid-1970s).

I remember well the forests and tree farms of the 1950s and 1960s, and am familiar with their past and present conditions as well. The federal forests of the west are probably in the worst shape -- for both people and wildlife -- as they have been at any time in the past 10,000 years. And they have been getting progressively worse since the mid-1980s and the advent of a new era of federal wildfires and failed communities.

We can do better; they showed us how in the mid-1900s. Maybe they clearcut too much for some, built too many roads, or were not very creative with their refforestation plans, but the land was prettier, the rural communities healthier, and fish and game abundant. Songbirds, berries, butterflies, and wildflowers, too. The current experiment of "man as a visitor" and policy based on "science by vote" seems to be a proven failure; it's not working in Australia, either. It's been thirty years, and change has not been slow, nor positive.

We can do better, and should.

Bob Zybach | Jan 19, 2007 2:18:13 AM

Posted by: Forrest Fleischman

Hello Dave et al.,

This is an interesting discussion. Advocates of the status quo prefer the present (i.e. pre Bush administration) planning system because it involves the public. Advocates of change seem to prefer a soviet style Forest Service that cannot be held accountable to the public. O'Toole seems to be suggesting something else - perhaps involving people through economic decision making (which incidentally, is not necessarily the same as privatization).

I for one am not sure if the present system really does involve the public that well. Of course the public can comment on plans - but the only comments that really count are those written by people who possess expertise in submitting them. Little old ladies who write to ask that wildlife habitat be protected, or loggers who want an increase in production, are ignored in favor of experts who need to understand both the law and the scientific details of the relevant issues. And in the end, as long as the Agency jumps through the correct procedural hoops properly, it can do pretty much whatever it chooses to. The problem, as the Jack Ward Thomas quote points out, is that the Forest Service is pretty good at messing up the procedural steps, and in coming up with dubious legal theories to justify their actions. A system that gave the public greater control over Forest actions would probably be alot messier. After all, our National Forests are valued by very diverse people for very diverse regions, and the Multiple Use mandate is a real challenge.

On the other hand, the present system does strike a balance between administrative expertise and public involvement. The planning process cannot proceed without the public - but in the end it is the administrative experts who make the final decision.

Would a different institutional arrangement lead to a "better" outcome? It is clear from Bob Zybach's comments that the unfettered Forest Service of the 1950s produced outcomes he preferred - but those days are gone for good, and an unfettered Forest Service today would be forced to swing even more with the political winds of different administrations. I tend to think (as both you and O'Toole have argued at different times) that decreasing the amount of centralized control exerted by the Forest Service would improve outcomes dramatically. Rather than trying to eliminate laws, the Forest Service should eliminate its thick layers of bureaucratic procedure, which are its own invention, and not NEPA. Give each Forest a set budget & let them figure out their own ways of complying with NEPA, NFMA, and the rest of the laws. As you have said before, throw out the manuals. At least some forests will find innovative and effective ways of doing the required analysis and public involvement. Those that succeed will have more money to spend on project implementation, and will provide examples to the less innovative. Those that fail to find effective ways to involve the public will face steep legal costs, and if they are forced to pay these out of their own budgets, they will quickly learn to comply with the laws rather than attempt to avoid them.

In short, I believe the problem is not with planning per se, but with a centralized bureaucracy that rewards obedience and organizational loyalty over innovation and creativity.

Forrest Fleischman | Jan 19, 2007 3:19:49 AM

Posted by: Bob Zybach

Hello All:

A quick correction. If I am reading this right, my "position" is being characterized as some kind of unaccountable "soviet-styled," expert-based, (hopefully) benign dictatorship, that may be ultra-Libertarian and/or anti-Pinchotian.

Please read the words. By "[forest and wildfire management] processes that require trained experts and local knowledge," I meant precisely that, however my own "training, assumptions, and worldviews" are being interpreted.

"Trained expert" does not mean self-proclaimed expert or PhD. It would be someone who is an expert in their field, trained in their job function, and familiar with their working environment. Not a Soviet functionary or "fire ecologist."

By "knowledge" I mean the combination of academic learning and actual experience. "Local knowledge" means "listening to local people that have experience and accurate information about local [forest and wildfire management processes]."

Sorry for belaboring the point, but it is an important one. There seem to be a lot of assumptions associated with this discussion, and several of them seem to be confusing or wrong.

Bob Zybach | Jan 19, 2007 4:57:21 AM

Posted by: Judd Lehman

I would throw out the point that the 2005 NFMA regulations has got it all backwards. Why not do one NEPA document when creating the forest plan. Then projects that are done within the scope and direction of the plan proceed with no NEPA because the environmental effects have already been taken into consideration. If then need comes up for a project that is outside of the scope of the forest plan, such as the Biscuit salvage, do a NEPA document on it and proceed. There is no reason that NEPA needs to be done at the project level, especially when most projects these days are thinning.

I agree with the following point:

"Rather than trying to eliminate laws, the Forest Service should eliminate its thick layers of bureaucratic procedure, which are its own invention, and not NEPA."

Correct me if I am wrong, but doesn’t the forest service define what is a major federal action and how they are going to comply with NEPA in the CEQ's.

I think another issue that does not get brought up all the time is that the responsible official in the planning process does not always meet the responsibilities of the job. It is the responsible officials job and right to set the objective of a project. Direction is already laid out in the forest plan and statutes that governs the forest service such as NFMA, MUSY, ESA, Organic act, ect.... It seems as though many conflicts with NEPA alternatives are based on different objectives when they should be different ways of meeting the clearly stated objective of the project or plan

Judd Lehman | Jan 19, 2007 9:38:00 AM

Posted by: Travis Cork

Ludwig von Mises and F. A. Hayek explained in very lucid terms why government central planning
fails. The problem is not that we do not or cannot understand it. The problem is that self-
interest (in most cases, a job, or some other perk that we cannot get through the market force of cooperation) keeps us from wanting to accept this reality (someone once called it a ferocious, wilfull ignorance).

Travis Cork CF

Travis Cork | Jan 20, 2007 3:38:02 AM

Posted by: Dave Iverson


Your point doesn't escape me. That is why I advocate for public deliberation and consensus methods (aimed at, at minimum gruding consent).

Although "Austrian" and other "schools" of economic thought are not a main topic for this conversation, I do cover such on other blogs (Econ Dreams-Nightmares and Ecological Economics). In the latest post on Econ Dreams, I was defending the Austrians a bit on international finance and banking theory/practice, although my leaning is more strongly toward the Post Keynesians. Here's a link if you are interested: http://forestpolicy.typepad.com/economics/2007/01/using_minsky_to.html

In that and my Ecological Economics and Adaptive Management blogging I use complex systems theory/practice as a theoretical backdrop.

Ecological Economics

Adaptive Forest Management

Dave Iverson | Jan 20, 2007 10:01:54 AM

Posted by: Zadig

I think there is some basic confusion here. Forest Plans don't really do all that much "planning." True, they historcially have allocated lands (mostly in vague and wishy-washy ways) to particular uses and they did set some "targets" like ASQ, but the principal effect of Forest Plans is to set thresholds of uses. So for example a forest plan might require that ten percent of timbered forest be maintained in old growth, but not say where that ten percent has to be. Or perhaps it will say that soil productivity may not be impaired my more than fifteen percent, or water quality may not be diminished beyond a given point.

It is an important distinction because this conversation has swung into a discussion about centralized planning that doesn't really apply in any way that I can imagine in the real world of federal forest management in the U.S.

The real issue is that the Forest Service, once it completes its new plans that will very explicitly no longer have legally enforceable thresholds, will at last truly become the lawless agency that everyone has been accusing it of being for several decades now. There will be no substantive limits to road density or soil impairment or anything else.

The argument that site-specific projects will still have to go through NEPA is a red herring. Without the substantive thresholds found in Forest Plans, NEPA is practically meaningless. Show me an administrative appeal or lawsuit that has stopped a project without reference to an underlying substantive law. Ninety percent of the time that will be NFMA as expressed in a forest plan. The other ten percent it will be the Endangered Species Act.

Zadig | Jan 20, 2007 4:22:16 PM

Posted by: Bob Zybach


Your comment about not understanding how national forest planning (conducted by the federal government from Washington DC) is related to "centralized planning" is odd. If this isn't a classic instance of "centralized planning," what is? Maybe you should reread the discussion or become more familiar with the concepts being discussed before commenting further.

Your statement: "Show me an administrative appeal or lawsuit that has stopped a project without reference to an underlying substantive law" tips your hand. One of the failures of centralized planning is the resulting ease with which projects can be "stopped" by litigation. That's just bad planning, by defintion. "Stopping projects" isn't a forest management function -- designing and completing good projects is.

The true "red herring" is your ludicrous charge that the NFS is becoming (or has become) a "lawless agency." That borders on nuts. Somone else chimes in about its "unfettered past." Maybe we should lock our doors at night and pass legislation to keep USFS employees from obtaining firearms or gathering in groups. Sheesh.

Bob Zybach | Jan 20, 2007 6:38:44 PM

Posted by: demarcatedlandscapes

Bob, sarcastic remarks rarely advance discussion anywhere. But since I think you genuinely misunderstood, I'll try again.

1. When I think of "a classic instance of centralized planning" I think of Stalin's soviets, in which a central office mandated outputs from distant places. I do not know how many Forest Plans you've gotten to know, but I have spent an awful lot of time with about eight or ten of them, all in the West. Not a single one of them mandated an output (some people tried to interpret the ASQ as a requirement, but it pretty obviously wasn't one). Rather, they set thresholds, like road density for example. ("Road density may not exceed 3.4 miles/sq. mile in Management Area Z.") So in centralized planning, some distant bureaucrat says: send me fifty tons of widgets every month." But Forest Plans say: do whatever you get funded to do, just don't exceed xyz road density when you do it."

I think that is a lot different from "centralized planning." And Forest Plans were never dictated from the Washington Office, anyway. Good grief, have you ever noticed how different they are from one another? Everything from the basic format to the font they are printed in is different, and local people, not Washington D.C. bureaucrats, wrote them -- I happen to know a lot of people who worked on various plans in the 1980s. So maybe I'm wrong and maybe you will show me how I am wrong, but I actually think I am pretty familiar with the concepts of both centralized planning and forest plans. And I stand by my statement that Forest Plans don't actually plan very much. They never did.

2. My point about administrative appeals requiring an underlying substantive law to succeed was merely meant to back up the other point you don't like, which is that without legally enforceable forest plans the Forest Service will become unmoored to environmental law, despite the constant refrain I hear from today's planners that site-specific projects will "still have to undergo NEPA." I'm only trying to say that NEPA doesn't give you very much if there isn't an underlying substantive law. If the outside world has no way to exert an influence on what the FOrest Service does, then the Forest Service is "lawless" within the realm of forest management. It sounds as if you think that is a good thing, but I would caution you that when an agency is unconstrained by law, it becomes run by personalities, and sometimes those personalities make decisions that are extraordinarily unfortunate. Law dampens the personalities, constrains them and prevents them from acting arbitrarily. Just as our own American constitution does.

There is a reason we tend to prefer the rule of law to the rule of a monarch. Laws keep people honest.


demarcatedlandscapes | Jan 20, 2007 8:01:37 PM

Posted by: Bob Zybach

Zadig Demarcatedlandscapes:

First, it is difficult to carry on a serious discussion with an anonymous person; particularly when that person presents themselves as something of an expert on the topic, but whose ideas and vocabulary suggest otherwise. "Sarcasm" seems a natural outcome of such discussions, no matter in whose eyes or how defined.

Plans that are not plans; font selection as proof of non-centralized planning process; "lawless" agencies created, maintained, and funded through hundreds of federal ("central government") laws and regulations for more than 100 years, etc., etc. -- it's hard NOT to be sarcastic!

Zadig, whoever you are, reading and rationalizing forest plans does not make you an expert on the topic, especially if your analysis includes font selections and "knowing people from the 1980s." Your anti-management, pro-litigation bias shines throughout your postings and even your choice of pseudonyms.

Maybe sarcastic humor is poor for communication, but hiding behind a false name while sniping at others and inferring skills and abilities that are not documented is probably worse.

What is your current occupation and what big city did you live in when you went to High School? Please don't tell me that you work for the government!

Bob Zybach | Jan 20, 2007 8:49:35 PM

Posted by: demarcatedlandscapes

I don't understand. What is wrong with my vocabulary? Why do you demand to know where I attended high school? What does that have to do with anything? The people I know worked on forest plans and helped write them; I offer this only as evidence for my belief that the planning process was not "conducted from Washington, D.C." by a central office, and because you accused me of being unfamiliar with forest plans, which is unjust and not true.

You are a hard person to satisify. I do work for the state . . ..

Anyway, I'll move aside and let others discuss this topic further.

demarcatedlandscapes | Jan 20, 2007 9:52:45 PM

Posted by: Aaron Poe

Yikes - I hesitate to wade into these hot waters but have a couple of thoughts to share with the group. With respect to the O'Toole editorial in the Seattle times - consider the source. Here is just a snippet in that regard: http://en.wikipedia.org/wiki/Randal_O'Toole

And there is much more to be said about this longtime USFS critic and his oft unreasonable perspectives on public land management and urban development via "the invisible hand". In my view his analysis is hardly objective and aims only to inflame rather than inform; something akin to Faux News.

It seems to me the forest planning process has been continually changing and evolving since its inception (see Loomis 2002; ch 10 for a nice, concise review), and though admittedly it’s not perfect, for O’Toole to evaluate its utility now and to pronounce it worthless for the future is at best intellectually lazy.

Furthermore, O’Toole’s fixation on the cost of forest planning is a bit of straw-man when analyses of the money spent on forest planning over the years have shown that it has not been a hugely significant portion off the agency’s national budget (See Loomis 2002 ch 10 for discussion relative to 1982 regs.) nor is it likely to be under the new 2005 regulations: http://www.fs.fed.us/emc/nfma/includes/cba2.pdf which are predicted to have significant savings in plan development. I emphasize predicted as these new planning rules have yet to be implemented; bringing me back to my previous point about the continued evolution of the process.

Though I certainly have doubts about the 2005 rules and am aware of numerous deficiencies from the past, to wish “death” upon the entire planning process seems quite like the behavior of a child who has been hushed and subsequently vows never to speak again; in other words reactionary, melodramatic, and completely impractical.

Aaron Poe | Jan 21, 2007 1:14:22 AM

Posted by: Dave Iverson

Forrest Fleischman says, "...decreasing the amount of centralized control exerted by the Forest Service would improve outcomes dramatically. Rather than trying to eliminate laws, the Forest Service should eliminate its thick layers of bureaucratic procedure, which are its own invention, and not NEPA. Give each Forest a set budget & let them figure out their own ways of complying with NEPA, NFMA, and the rest of the laws. As you have said before, throw out the manuals. At least some forests will find innovative and effective ways of doing the required analysis and public involvement."

"...the problem is not with planning per se, but with a centralized bureaucracy that rewards obedience and organizational loyalty over innovation and creativity."

That's what I'm talkin' about. Both here in various posts, and on "Adaptive Forest Management" and "Forest Environmental Management Systems." I guess that I'm so damned depressed by the lack of attention by top FS mgmt to what I consider glaring problems in "management/leadership" areas that I spend too much time talking mostly to myself. To be fair the problem is not unique to the FS, as I note in the AFM blog under a title "Rebuilding Public Trust."

Adaptive Forest Management

Forest Environmental Management Systems

Dave Iverson | Jan 21, 2007 1:40:13 PM

Posted by: Demarcatedlandscapes

I would have to agree that there is a centralized bureaucracy that exerts influence in what kinds of decisions get made. You only advance in the agency if you play the game in a certain kind of way, and generally that is a way that increases funding. Hardly a surprise.

Those wishing "death" on the planning process like O'Toole aren't necessarily against planning, they're against pressing forward and spending money on something that is a pointless charade. I think the Ohio Forestry case pretty much sealed the fate of Forest Plans because it created a situation where the Forest Service, if it wants to, can deliberately write Forest Plans in such a way as to be completely unchallengeable. The catch, though, is that they also have to be totally meaningless. It is unfortunate that the agency has selected this option, but it shouldn't be surprising. The result, as O'Toole says, is a lot of money, a lot of time, all for nothing.

Why would anyone be in favor of that? My local National Forest is holding an incredible number of meetings on their Forest Plan, and I have dutifully attended many, but to what end? It's a complete waste of time.

Demarcatedlandscapes | Jan 27, 2007 4:35:52 PM

Posted by: Dave Iverson

"...the Ohio Forestry case pretty much sealed the fate of Forest Plans because it created a situation where the Forest Service, if it wants to, can deliberately write Forest Plans in such a way as to be completely unchallengeable."

Not necessarily. Attorneys I talk with argue that the Forest Service routinely misinterprets Ohio Forestry (although there are likley differing opinions). All that "Ohio Forestry" says, argueably, is that in the narrow confines of that particular challenge, the issues presented before the court were not ripe for consideration. The decision, however, left the door open for other challenges.

It will prove interesting to see what the court will say re: the recent challenge to the Forest Planning rule, and how that may or may not shed light on Ohio Forestry.

Dave Iverson | Jan 28, 2007 2:08:45 PM

Posted by: Demarcatedlandscapes

The attorneys you've spoken with are, in my humble, been-wrong-before opinion, correct. But it is more complicated than this. Ohio Forestry said that to the extent that a Forest Plan does anything at all, like allocate lands to logging or limit road density or any of the host of other things that Forest Plans historically did, a challenge to the Forest Plan will not ripen until a site-specific action is taken that somehow implicates those land allocations, road densities, etc.

This sounds like not such a big deal until you start to work out the actual mechanics of it. If land allocations and forest plan standards are not ripe for review until an action is taken under them, then as long as the Forest Service can semi-credibly argue that it is not operating pursuant to a given long-term plan provision, site specific actions will not provide an avenue to attack a plan. Plans quickly become unenforceable.

This is precisely the reason the Forest Service is categorically excluding its plans now -- it is deliberately writing plans that are designed not to have an impact on the environment because they don't have standards, don't set land allocations, and do not authorize site-specific actions. It makes perfect sense to categorically exclude them. With this step, the agency has decoupled plans from anything that happens on the ground (in a legal sense, anyway). As O'Toole (sort of) points out, the only reason the Forest Service is going through this exercise is because of NFMA, but NFMA has lost all its teeth as a meaningful statute, since post Ohio Forestry it no longer compels the Forest Service to write or follow standards or land allocations. It's a toothless relic.

It is possible that the lawsuits you point to will end up saying that NFMA still must set standards and allocations -- I think NFMA does a pretty good job of saying that, actually -- but I doubt they will. And even if they do, the Forest Service will be able to get away with writing standards that are so wishy-washy that they will be, realistically, unchallengeable even with a site-specific action to hook them to.

Statutes that are unenforceable are a charade, a waste of time and money. If we want the agency to be bound by laws that protect forest ecosystems, then congress needs to write some. If we are happy with letting the individual personalities make all the decisions, then we are better off without NFMA anyway. Either way, NFMA has lost its relevance. All it is doing is employeeing people to sit in public meetings.

Demarcatedlandscapes | Jan 28, 2007 8:07:40 PM

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