When a Tree Falls in a Forest, Does it Make a Decision Memo?

Last autumn, a giant sequoia with a dbh of nearly 18 feet fell across a popular trail in the Giant Sequoia National Monument in California. PHOTO: Sequoia National Forest

This is reprinted with permission from the Forestry Source, one of my favorite publications.

Editor’s Notebook

When a Tree Falls in a Forest, Does it Make a Decision Memo?

By Steve Wilent
The Forestry Source, February 2012

This is the story of a tree that fell in the forest. Actually, two huge trees that were “joined together at the base, appearing as one for approximately 30 feet,” according to the Sequoia National Forest. But in any case this was not just any tree or trees. On September 30, a Sequoiadendron giganteum in the Giant Sequoia National Monument in California fell across the popular Trail of 100 Giants, a paved, half-mile path through a grove of truly awesome trees, harming no one, but blocking the trail.

“These two trees were truly giants, each about 240 feet tall, as much as 18 feet in diameter at the base,” wrote the editors of the Visalia (Calif.) Times-Delta in an editorial a couple of weeks later. “They were estimated to be as much as 2,000 years old. A fire about 200 years ago created a recess at the base of the trunk of one of the trees that was so large that groups of tourists frequently posed inside it.”

The Sequoia National Forest, which manages the monument, promptly and properly closed the trail until the debris was removed and the trail deemed safe for visitors once again. End of story? No, the beginning of the planning process.

Imagine a fantasy world in which federal foresters are allowed to make significant decisions based on their education and experience with a minimum of planning and documentation — in some cases, no formal planning or documentation. If in such a world a giant sequoia fell across a trail, a forester might walk the site the next day and admire the fallen giant(s), talk with coworkers, and then go home and have a beer or a drop of single-malt whisky (only to aid in the process of deliberation, of course). A few days later — or maybe in the next week or two, since this is not an average tree — the trail would be repaved or rerouted or both, and interpretive signs about the tree and its demise would be installed. Maybe they’d opt to cut a section from the tree and roll the “cookie” to a nearby area for viewing and ring-counting by legions of park visitors. In any case, a few weeks later, the job would be done.

However, this particular tree and trail are on US Forest Service land and thus are subject to the requirements of myriad laws and regulations, and the agency must seek public input, produce scoping documents, and jump through numerous other planning hoops. So it was that on October 22 about 100 people gathered at the site, according to the Porterville Recorder, to offer their input to the agency about what ought to be done. At least two environmental groups were represented — the Sierra Club and Sequoia Forest Keeper.

The Times-Delta praised the agency for its “open-minded approach” to dealing with the trail: “With enough input,” the editors wrote, “the Forest Service will certainly find a way to make the right decision.”

On December 9, the forest issued an eight-page scoping letter noting that it had received more than 150 verbal and written comments and suggestions about the fallen trees and the trail. The letter described the existing condition, the desired condition, the purpose and need, and so on. The desired condition, the letter stated, is that “The main loop provides an ADA-compliant trail for all visitors to enjoy…. The trail passes near the fallen sequoias so visitors can see them and learn about what happened there, while not contributing to unnatural erosion or resource damage.”

The letter included six alternatives and indicated Suggestion 2 as the Proposed Action: a boardwalk, meeting ADA requirements, that routes the trail around the fallen trees. This is a perfectly reasonable plan, developed under a planning process carried out by the book and executed very well by the Sequoia’s staff — no one could have done this better, under the current system. The forest expects to announce its decision in March. Some time thereafter, a contract will no doubt be advertised and awarded. By the time work begins on the trail, it will be at least six months since the trees fell, probably longer.

I suggest that such extensive scoping, analysis, and documentation in this case is excessive, as is the time it will take, due to all that planning, to complete this relatively simple project. If this were an isolated case, there’d be nothing for curmudgeonly editors to write about. The trouble is that at any one time there are hundreds of minor (but important) projects in various stages of planning. For example, the Mount Hood National Forest’s Schedule of Proposed Actions lists these projects, among others:

• Relocation of short sections of trail and reconstruction of walking trails above Timberline Lodge to the Pacific Crest Trail, involving the removal of broken asphalt and replacing it with packed gravel.
• Installation and maintenance of a solar-powered weather station, including a weather-proof building, solar panels, fencing, and various sensors and gauges.
• Digging a trench for geologic research on fault scarps. The trench, 100 feet long, 10 feet wide, and 15 feet deep, would be open for 2-3 weeks, after which the site would be restored.

Added together across the agency, the time, effort, and funding — an increasingly limited resource — devoted to the planning process for projects like this, let alone more-complex ones — is exorbitant.

In testimony before Congress on November 15, Chief Tom Tidwell said, “We need a [National Forest] planning rule that has less process and costs less, with the same or higher level of protections.”

I agree, and my take on the forthcoming revision of the National Forest planning rule is that Tidwell’s goals will be met, to some degree (see the interview with the Chief beginning on page 1). I commend the Forest Service for crafting a well-thought-out, if imperfect, rule, one with a good chance of easing what has been an immensely contentious and costly struggle over National Forest planning.

But what about “less process and costs less” when it comes to specific projects? How much time and effort is spent on collecting public input, compiling scoping letters, and producing reams of NEPA documents?

At the project level, the way out of the process thicket is to allow forest-level agency staff to make executive decisions based on their education and experience — and to expect regional and national managers to back them up. This requires a certain level of trust and, of course, accountability, not to mention a willingness to take reasonable risks.

In other words, at least for relatively small projects, a district ranger ought to have the authority to have a trail rebuilt, a skiers’ warming hut constructed, or a culvert replaced, without jumping through a series of administrative hoops. In the case of the Sequoia National Forest, the district ranger ought to have been allowed — expected — to decide on a course of action on her own and then delegate staff to carry out the restoration of the trail as soon as practicable, all without necessarily conducting formal scoping and issuing a Decision Memo.

A transparent planning process is an essential part of managing federal lands. The public’s right to be involved is indispensable. Granted. However, one can have too much of a good thing. Without legal and regulatory reforms that let forest-managers manage, “less process and costs less” on the nation’s 155 National Forests and 20 Grasslands is just pie in the sky.

DU Law Students and Handkerchief Mesa

Matthew Koehler sent this one in, and I can’t say anything about this project due to the litigation cone of silence. Suffice it to say that there are two sides. I wish more law students would volunteer for proactive (I think the legal term is affirmative) litigation for the government, say trespass cases, water rights, etc. IMHO it would be a better deal for the taxpayer.

Students at the University of Denver’s Sturm College of Law representing two regional environmental nonprofits successfully blocked a federal timber permit that would have allowed logging in the Rio Grande National Forest near Alamosa in southern Colorado.

U.S. Judge William Martinez in U.S. District Court for Colorado ruled Thursday that the U.S. Forest Service did not meet obligations spelled out in the National Forest Management Act and that an Environmental Assessment was inadequate.

“The court finds fault with the Forest Service’s failure to lay out a more detailed plan regarding … soil compaction. The court finds even greater fault with simply identifying the fact that mitigation measures exist, without even mentioning what those mitigation measures are, not to mention how and when they might be used,” Martinez said in his ruling regarding soil and regeneration issues.

The ruling overturns issued timber permits for more than 3,436 acres in the Handkerchief Mesa area of the Rio Grande National Forest. Permits would have also allowed for the construction of 11 miles of roads.

The suit against the Forest Service and its parent agency, the U.S. Department of Agriculture, was prepared in June 2009 by DU student Jacob Schlesinger and Environmental Law Clinic fellow Ashley Wilmes under the direction of DU Environmental Law Clinic director Michael Harris.

It was filed in federal court in Denver on behalf of environmental groups Rocky Mountain Wild based in Denver and Durango, and WildEarth Guardians, based in Santa Fe.

DU student lawyers Mason Brown and Justine Shepherd argued the case in federal court in December 2011 under a provision that allows students to practice in federal court while supervised by a licensed attorney.

The case argued timber cutting would affect lands stressed by previous clear-cutting and an ongoing spruce budworm infestation.

Allowed to proceed, the proposal could lead to continued soil damage, including erosion and compaction, impacting the flow of water to the Rio Grande and thousands of communities downstream, according to a DU press release.

Runoff from the area feeds the headwaters of the Rio Grande river, which is a major source of drinking water for millions of people in Colorado, New Mexico and Texas, and provides water for agriculture in both the United States and Mexico.

Harris said stopping a permitted timber project in Colorado is “extremely rare.” The ruling, he says, sends a message to the Forest Service that its permitting process must take into account changing conditions, ongoing insect infestations and other ecological conditions.

“The court has told the Forest Service, the game has changed, and you need to change with them if you are going to continue to permit these projects,” Harris said in the press release.

Martinez ordered the Forest Service to “analyze anew, on remand, whether the project will significantly affect the quality of the human environment.”

2013 President’s Budget

Budget would see slight increase under 2013 request

Phil Taylor, E&E reporter

Published: Monday, February 13, 2012

The Obama administration requested a slight bump in Forest Service funding in fiscal 2013, including an increase for wildfire fighting.

The agency’s $4.861 billion request would be a $15.5 million increase compared to current funding levels.

The request would fund the collaborative forest landscape restoration program at $40 million, the maximum authorized amount and on par with current funding levels. The program enjoys widespread support from conservation groups, the timber industry and lawmakers on both sides of the aisle.

“The president’s budget continues to emphasize the Forest Service’s ability to restore our nation’s forests through landscape scale efforts,” says the administration’s Agriculture Department budget summary.

“These efforts include targeting scarce resources to on the ground activities, implementing a comprehensive approach to restoration and maintenance of sustainable landscapes, streamlining programs to improve forest management efficiency [and] reducing wildfire risk.”

The budget requests $1.97 billion for wildland fire management, an increase of $236 million above current levels. The budget also calls for $315 million for the FLAME wildfire suppression reserve fund, which is roughly even with the 2012 level.

But the budget requests $346 million for capital improvement and maintenance, a dip of $48 million below current funding levels.

Click here to read the Forest Service’s 2013 budget overview.

Here’s an article about putting payments to counties in the President’s budget

Obama puts NW timber funds in budget
Making the five-year extension a mandatory spending item is ‘solid step,’ says Sen. Wyden

February 14, 2012
Paul Fattig
By Paul Fattig
Mail Tribune

http://www.mailtribune.com/apps/pbcs.dll/article?AID=/20120214/NEWS/202140321

President Barack Obama’s extension of the safety net payments for counties dependent on timber dollars in his new federal budget proposal is a good start, says U.S. Sen. Ron Wyden, D-Ore.
“It is a solid step in the right direction,” Wyden said Monday in a telephone interview with the Mail Tribune.
The proposal amounts by year
Total amounts that would be allocated each year under the plan
First year $328 million
Second year $294 million
Third year $195 million
Fourth year $145 million
Fifth year $113 million
“It has three things that are very important: mandatory spending, a five-year budget for the counties and a specific funding amount.”
In his $3.8 trillion plan announced Monday for the federal budget year that begins Oct. 1, Obama calls for mandatory funding for the “timber” counties in the West for the next five federal fiscal years.
For the first year, the counties would receive about $328 million, followed by $294 million the second year, $195 million the third, $145 million the fourth and $113 million the final fiscal year, Wyden said.
In the past, county payment extensions were designated in the federal budget as discretionary spending, meaning they could be cut.
However, mandatory spending is controlled by laws other than the annual appropriations acts, with funding provided without requiring further action by Congress, according to Wyden’s staff.
While noting that including the payments in the president’s budget doesn’t guarantee its extension in the long budgetary process, having the presidential backing is significant, Wyden said.
The extension would help budget-strapped counties bridge the gap until a final solution is found, said Wyden, who has been calling for a temporary extension of the timber payments while a long-term solution is worked out.
“The proposal isn’t perfect, but it gives us something to work with while making it clear that abandoning rural communities is not an option,” he said, adding the Oregon delegation prefers more generous funding levels.
The Secure Rural Schools Act of 2000, co-authored by Wyden, provided timber payments to counties but it is expiring, leaving many rural counties in Western Oregon without adequate funding. Since it became law, it has produced some $3 billion for 700 counties in 41 states, with Oregon receiving the lion’s share.
“I feel very strongly that this is a historic obligation,” Wyden said of counties receiving a share of revenues from federal timberlands within their borders in lieu of taxes.
“This came about because more than 100 years ago, the country said we needed a national forest system,” he added. “If you live in Cleveland or Atlanta, you can come to Oregon to visit our federal forests. In recognition, the federal government said it would be there for help with schools and roads. There is a historic obligation.”