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February 02, 2007

Time to Kill Forest Plan EIS Categorical Exclusion?

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. …

Posted by Dave on February 2, 2007 at 09:59 AM | Permalink


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Posted by: John Freemuth

What is most interesting is how constrained USFS is from being able to implement a "paradigm shift" as is referenced in the case. Here, the agency may not have control of its own destiny??

John Freemuth | Feb 2, 2007 1:07:37 PM

Posted by: Dave Iverson

More interesting to me is, Why one might conclude that the agency ought to be have control of its own destiny? Not that I believe you are arguing for such, John.

After all, "agencies" are creatures of government writ larger than themselves. In the case of the US Forest Service, it seems that the agency lives and functions at the joint discretion/oversight of the Congress, the Administration, and the Judiciary, with each taking on separate roles.

All that is happening in this case is that attention is, once again, being directed by constituents (grouping themselves as they see fit) to the judiciary to play its role in the balancing of powers in government.

If he agency wishes its "planning" to be outside the purview of the courts, I think it needs to petition for new legislative mandates, in particular something to replace RPA/NFMA.

I have argued before -- but I can't seem to find it in blog space -- that there are opportunities to be found in "scenario planning", whereby organizations engage their members in strategic thinking to "rehash the past" and "rehearse the future." Organizations that employ scenario planning move "decisions" to policy and program development arenas. Again, I suspect that such for the USFS would now require a change in law as well as a change in organizational culture.

Dave Iverson | Feb 2, 2007 2:16:22 PM

Posted by: John Freemuth


Yeah thats my point. It is a bit presumptuous for any of us in the public sector to pronounce paradigm shifts on our own. And yes, the courts do have a role..this was a predictable response from the constituent communities.

John Freemuth | Feb 2, 2007 5:36:14 PM

Posted by: Tony Erba

Dave's offer of "scenario planning" is one worth serious consideration. It seems to me that its practice currently is outside the purview of NEPA, which brings sharply into focus the distraction this lawsuit brings. If scenario planning is as effective as Dave purports (and I've personally experienced), then maybe that method is one that helps shift the Forest Service from its mainly analytic approach to "wicked problems." The DOW/FS lawsuit offers that public involvement is negated by the 2005 planning rule/categorical exclusion - an embracing of scenario planning, under the guise of the 2005 planning rule's "collaborative and participatory approach to land management planning," would be an effective counter-argument. After all, what Dave describes is "public involvement" at its most effective application.

Tony Erba | Feb 4, 2007 9:50:46 AM

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