Forest Policy - Forest Practice

A Forest Service 'Perfect Storm' John Freemuth

The federal lands and the bureaus that manage them may be entering a period from which they may well emerge very different than they are today. At first glance this might surprise people, as the Bush administration, led by the Secretary of Interior, Dirk Kempthorne, has proposed large spending increases for the national parks in a move not seen since days of Mission 66. All must be well.

Well not exactly. The parks are really a small part of the federal estate, some 76 million acres, with both the national forests (Forest Service)and Bureau of Land Management administered land amounting to around 450 million acres, while the national wildlife refuges (Fish and Wildlife Service)add around 87 million. Perhaps the most noticeable change is what is happening to the Forest Service and by implication the national forests. The bureau did have all lot of trouble in the recent past, adjusting to changes in public attitudes about the primary purposes of national forests. Rightly or wrongly, forests became seen more as places for recreation and resource protection, than for the provision of goods and services (notably timber) for society. The Forest Service struggled, but has tried steadily to work its way though adapting to those changes in public expectations. There have been successes and there have been failures. Yet now the agency may be facing a perfect storm of alarming proportions.

That storm has a number of forces within it. Fire costs are eating up higher and higher portions of the agency’s budget. The reasons include increased growth in rural forest interface lands, but also a fire fighting culture that still largely emphasizes suppression, and a Congress that that demands it. Some argue that states counties and localities should pay more of the costs, but that is difficult to imagine being accomplished anytime soon. The agency is also looking at a 25% reduction of its costs (it is unclear whether this is regional and Washington level, or agency-wide)over the next three years, leading to a reduction in personnel, while suggesting that it might have to close some campgrounds and other recreational sites. Some of its other core functions are being subjected to contracting, a process that could lead to a legitimate argument that the agency ought to simply abolished. If this is not enough, the agency has announced that it will no longer link forest plans with the preparation of environmental impacts statements (EISs), while at the same time also giving energy projects categorical exclusions (applications for permits to drill) at a project level, leading some people to assert that this amounts to a “double exemption” from NEPA. While there may very good reasons for some of this, and the agency might, if given time, be able to show that its decisions have actually gotten better and timelier, suspicion is rampant.

The agency is showing increasing signs of being an organization under stress and it knows it. It has begun internal discussions on what might be described as a return to key ideas (foundations) that might allow it to better govern itself, restore morale, and make consistent and principled decisions. We in the public should wish the agency well. We need to do something else. We need to consider what the alternatives really are. There are a hundred things that the Forest Service might do better….but that’s true about any organization, public, private or nonprofit. But what we may be embarking on here is a shrinking of a very visible and many would say cherished part of the public estate and its very public agency. If we want these lands to remain public and open to all then we need to realize that that is what may be ultimately at stake.

If a Tree Dies… Dave

If a tree dies in the forest, someone will notice — particularly if there are many trees dying at once. Commercial foresters will notice, since they tend to have an aversion to dead and dying timber (including what they used to call 'decadent old growth'). Wildlife biologists will notice since they too track 'dead and dying', but view such much more an opportunity than a threat (e.g. habitat for 'cavity nesters'). Ecologists will notice while looking at cycles of 'insect and disease' and 'fire', among other disturbance regimes at work in the process of stand and forest-replacement. Recreation enthusiasts will notice since they like their forests to be 'park like' for the most part. And the general public will notice, when driving through the forest, and will likely side with the recreationists. Finally, the courts will notice in the ongoing and inevitable court battles that well-up over public lands and public purposes. So this story begins.

Background

On August 5, 2005 the "School Fire" burned about 51,000 acres in southeastern Washington, with 28,000 acres located the Umatilla National Forest. The US Forest Service subsequently studied the situation and released a Final Environmental Impact Statement on July 10, 2006. A subsequent Record of Decision (August 14, 2006) allowed logging in portions of two uninventoried roadless areas. {Whether or not relevent in the current case, remember that at that time the Clinton-era Roadless Rule (now reinstated [Earthjustice Press Release]) had been replaced with the Bush-era Roadless Rule (called the "State's Petition Rule" — which has now been "set aside" when the Clinton Roadless Rule was reinstated)}.

The School Fire Record of Decision authorized immediate logging in three areas, based in part on the prediction that "a delay would result in a potential loss of value of $1,547,000 to the Federal Government." One day later the Forest Service was sued by environmental groups. A district court denied plaintiffs' motion, and the issue was appealed to the Ninth Circuit. On February 12, 2007 the United States Court of Appeals for the Ninth Circuit overturned the lower court's decision [PDF].

'At Issue'

Contrary to some popular opinion, courts aren't prone to second-guess professional theory/practice/method. Instead they usually rule on 'procedure' rather than 'substance'. In this particular case, 'at issue' was the fact that the Forest Service had decreed in policy ("Eastside Screens" for the Cascades) that it would "Maintain all … live trees [greater-than or equal to] 21" dbh … within stands proposed for harvest activities."

Reveral (in part) and 'Remand with Instructions'

[US Appeals Court, Ninth Circuit (Judges Graber, Paez and Bea)] …We therefore reverse the district court's denial of a preliminary injunction on the NFMA claim and remand with instructions to grant immediately a preliminary injunction to prohibit the logging of any "live tree" [greater than or equal to] 21" diameter at breast height that currently exists in the sales areas…i.e., any tree of the requisite size that is not yet dead. In accord with the "conservative definition" of a "live tree" given by the Forest Service's own expert, no tree of the requisite size with green needles shall be harvested. …

In overturning the lower court, the Ninth Circuit said:

… We apply the common meaning of the term "live trees" because neither the NFMA [National Forest Management Act of 1976] nor the applicable Forest Plan defines the term [as a "technical term understood by foresters"]. … Foresters very well may consider dying trees suitable for logging, but on this record we cannot conclude that they consider dying trees not "live." Indeed, the Forest Service's own expert testified that some "live trees" had been designated for removal … applying the common meaning of "live trees" to include trees that were not dead but that, in his opinion, had a low likelihood of ling-term survival.

The Ninth Circuit Court concluded:

…"the district court made a clear error of law, and Plaintiffs have established a very strong likelihood of success on the merits of their NFMA claim. Additionally, the resulting injury—logging of old-growth trees—is a permanent environmental injury."

Adding, by way of advice:

The Forest Service is free, of course, to amend the Eastside Screens to allow logging of old-growth dying trees…. Until and unless it does so, there is no basis to adopt its proposed definition.

Time to Kill Forest Plan EIS Categorical Exclusion? Dave

On January 29, Defenders of Wildlife and Forest Guardians filed suit in the United States District Court for the District of Columbia, requesting that the court:

1. Hold unlawful and set aside Defendants' December 15, 2006 Final Rule [PDF] pursuant to 5 U.S.C. § 706;.
2. Enter a declaratory judgment that Defendants' Final Rule violates NEPA;
3. Enter a declaratory judgment that Defendants' violated NEPA and the Administrative Procedure Act in promulgating the Final Rule;
4. Enjoin defendants from applying or otherwise relying upon the Final Rule; …

Here is a snip from the Complaint:

…Defendants have recently greatly expanded the number and size of timber sales and other projects that are categorically excluded from NEPA analysis, although none of these expansive CEs approach the magnitude of the new forest management plan …

Having granted itself greatly expanded authority to exempt increasingly large and numerous timber sales from NEPA, the Forest Service now categorically excludes 72% of its forest management projects from NEPA, projects which covered 2.9 million acres from 2003 to 2005. See http://www.gao.gov/new.items/d0799.pdf. Under the December 15, 2006 Final Rule, the Forest Service will now also categorically exclude forest management plans from NEPA analysis. This means that the individual, and cumulative, impacts of nearly three quarters of Defendants' projects, encompassing millions of acres, will never be evaluated, because they are categorically excluded form NEPA at the project level, and are now categorically excluded form NEPA at the plan level. …

Follow-up Commentary:

From Common Dreams: Newscenter 1/29/2007, Bush Effort to Exempt National Forest Management Plans from Environmental Review Challenged: Lawsuit seeks to restore role of public in forest management : … "The Forest Service under the Bush Administration has gone further than any other agency in history in attempting to circumvent NEPA by eliminating essential environmental reviews," said [Rodger Schlickeisen, president of Defenders of Wildlife]. "The decisions made in forest management plans affect every action on every acre of a national forest. Failing to consider their environmental impacts under NEPA could be disastrous for essential natural resources such as water and wildlife." …

CBS, Local Denver AP Story, 2/1/2007: Forest Service Asks Public To Give Rules A Chance … "The rationale is that the plans are not making decisions that affect the land. The plans are more oriented toward sitting down with the public and agreeing on a desired future condition for the landscape," [USFS Rocky Mountain Regional Forester Rick Cables] said. …