Words are essential to communication, whether in blogdom or in person. One reason it’s important to discuss topics with others is that you can find out through discussion that words can mean different things to different people. You might be in agreement about concepts and simply word them differently.
I am a more literal and concrete kind of person, and many people in planning are more visionary- a kind of Myers-Briggs sensing compared to intuitive kind of thing.
Concrete and Abstract
- A concrete word or image is specific and sensual: it evokes a material reality.
- An abstract word or image is general, and communicates an idea; it expresses a connection that is mental rather than sensuous, sometimes one that is not immediately obvious.
First, Martin and I have always disagreed about the need for “thresholds” in NEPA documents, and specifically for forest plans which incorporate adaptive management. I have always thought that that was too vague, and there are too many possibilities with no particular reason for choosing a target level of a given thing.
But as we were talking today in our small groups at the Roundtable, we were talking about area occupied by species and talking about establishing a target of acres of habitat occupied (collaboratively) – and if the species would go below that – a chosen number of those acres based on monitoring- , the Rule could require the collaborative group to get back together, and figure out some different approach to species protection as an amendment. To me, the inhabited acres would be called a target and lower limits, lower limits. But looking back on it, I think I might, by lower limit, mean the same thing as a threshold. But without going through an example with Martin, I didn’t get it. Assuming that is what he meant. But he can weigh in here.
Second, the idea of ecological sustainability being pre-eminent never appealed to me. Strictly pragmatically, I thought we can’t always make the most protective decisions (like fencing all the people out of the Angeles National Forest if they have too many environmental impacts). But talking to Professor Wilkinson, he meant it in a visionary, righ-brained way, as a goal which people could figure out through collaborative efforts and reinvent their interpretation through time and with learning. My original thought was “ecological sustainability” was an analytical idea, and the problem was that you could do all kinds of analyses of everything and never prove something was sustainable.
Something like forest planning, and planning rules involve people from a wide array of backgrounds with different meanings for the same words. That is why it is so important to have conversations with others across different views, including the concrete/abstract divide.
K.I.S.S. in Rule Form, Part 7
Keeping-it-simple-sweet means omitting matters from the NFMA rules that are satisfactorily covered by statute. For example, a section of NFMA (paragraph i) separate from the planning rule sections (paragraphs g and h) requires that permits (e.g., special-use permits) and contracts (e.g., stewardship, sale of timber) “for the use and occupancy” of the national forests be consistent with the plan.
There is no need to repeat this requirement in the planning rules themselves. The law speaks for itself. Forest Service employees can read the law. And the courts have routinely enforced paragraph (i) without reference to the identical 1982 NFMA rule. So I’ve deleted item 7 (“Ensure that, subject to valid existing rights, all outstanding and future permits, contracts, cooperative agreements, and other instruments for occupancy and use of affected lands are consistent with the revised plan”) from the K.I.S.S. purpose and principles post.
No NFMA provision has transformed (and bedeviled) national forest management more than the law’s mandate to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). The consensus view of the federal courts (citations upon request) is that NFMA’s diversity language is a substantive limit on the Forest Service’s discretion – procedural analysis and models alone are insufficient to meet the law.
In its 1982 (and original 1979) rules, the Forest Service met the diversity mandate by requiring that plans ensure the viability of animal species, which is accomplished by identifying and protecting management indicator species. This approach to meeting the diversity requirement was never challenged in court. Those courts that have commented upon the viability/management indicator species approach have done so favorably. Regulatory efforts to eliminate the viability/MIS rule were defeated in 1982 (by Congressional pressure) and in 2000, 2005, and 2008 (in the courts).
It is with this history in mind that I suggest the following diversity rule language. This provision relies upon the 1979/1982 rules, but with fewer words and more discretion in the methodologies individual national forests can use to meet the law’s substantive mandate.
36 CFR 219.7: Plant and Animal Community Diversity
(a) Plan revisions and the vegetation management and timber harvest program shall ensure habitat sufficient to support viable populations of existing native and desired non-native species in the planning area. Methodologies for assessing and ensuring species viability shall consider and be appropriate to 1) the scope and scale of the plan revision and program decisions made; 2) the ecology of the plan area; and, 3) the biology of the species.
(b) Plan revisions and the vegetation management and timber harvest program shall, to the degree practicable, preserve the diversity of tree species similar to that existing in the plan region.