News Story on Objections.. Missoulian

Thanks to Rob Chaney for writing a story on this.. there’s been a great deal of silence out there in Medialand on this. Here’s a link..

Western Environmental Law attorney and Lewis and Clark Law School professor Susan Jane Brown has served on a federal advisory board reviewing the new Forest Service rules. She said her biggest concern about the pre-decision objections was the lack of evidence they would improve anything.

“Over the years, we’ve heard a lot about ‘analysis paralysis,’ ” Brown said. “But in the scholarly research on that issue – whether administrative appeals slow down or delay or preclude forest management – there’s no support that links administrative appeals and delays in project implementation. There are many confounding factors in play, so pointing the finger at administrative appeals is hasty.”

I don’t know about scholarly research (if a tree falls in a forest and a scientist is not there to observe it, has it really fallen?), but if there is an appeal period with no appeal, the project goes to implementation. How can someone say that appeals and their resolution does not slow things down? This is not clear. Also, I know field folks that have used HFRA objections successfully and prefer them.
It seems like evidence to me. I wonder what kind of evidence Brown is looking for? If we did interviews of people on forests and published it somewhere, would that count as “evidence”? Ah.. but there is no budget particularly to do that kind of research (the People’s Research Agenda). It seems odd that a person who (if Rob was carefully quoting) dismisses something everyone can plainly see, was selected for a FACA committee on a related subject.

Craig Rawlings of the Forest Products Network said timber mill owners he’d spoken with had a different view.

“It almost forces these litigants to participate in the process,” Rawlings said. “Right now they just wait until everything is done and then file appeals. That does drag it out longer. I think the industry is very optimistic about it.”

The appeals process has been around since 1993. The objection process debuted in 2003 as part of the Healthy Forest Restoration Act, and Congress applied it to all EAs and EISs through the new Forest Rule last year as an anonymous rider on an appropriations bill, according to Brown.

The objection does not apply to what the Forest Service calls categorical exclusions, which are supposed to be small projects that don’t warrant a full NEPA analysis. It also doesn’t apply to permits for grazing, special use, access and mining. Those actions still face post-decision appeals.

I’m not sure that that’s clear about CE’s I think the Administration decided to wait for the court case to work its way through (Grandaughter of Earth Island) instead of making a point of it in the regulation.

Also, I think Rob is referring to 251 appeals (for the permittees) people can have 215, now 218 objections for those projects as well (just not the permittees).

The new rule took effect March 27. However, Forest Service officers have some leeway with existing projects whether to shift them to the pre-decision process or continue with the post-decision appeal procedure. Smith advises district rangers and forest supervisors on the issue, and has been running about 50-50 on staying with the old or adopting the new rule.

Anyone who can further help clarify, please chime in.

Objections Rule and Press Release

Forest Service rule governing predecisional objection process published
Provides for public input prior to decision-making for many projects and activities

WASHINGTON, March 26, 2013 – The U.S. Forest Service today announced the final rule governing the objection process for projects and activities implementing land-management plans. The final rule will be published in the Federal Register on March 27.

“This rule gives the public more effective involvement, supports our collaborative processes and will result in better decision-making,” said U.S. Forest Service Chief Tom Tidwell.

The predecisional administrative review, or objection process, will be applied under federal regulation to all projects and activities that implement land-management plans and that are documented in an environmental assessment or environmental impact statement.

The Forest Service has successfully used this objection process since 2004 for hazardous-fuel reduction projects authorized under the Healthy Forests Restoration Act.

Within the Consolidated Appropriations Act of 2012, Congress directed the Forest Service to also establish a predecisional objection process for other projects in lieu of the post-decisional appeal procedures that had been in use with those projects since 1993.

The new regulations respond to the statute by creating an objection process that applies to all authorized project proposals.

This final rule follows after a review of public comments submitted in response to the publication of the proposed rule last year. The rule is effective immediately but transition provisions will apply to projects already in the planning stage.

Here’s a link to the Federal Register notice.

Now let’s watch (and compare) the media coverage!
Extra points to journalists who ask local knowledgeable people from both sides.

A couple of comments:

We might want to start an ” adopt-a-project” effort where interested parties can follow the discussions more closely, and possibly report on them (here or elsewhere) to see how the objection process is working (transparency). Since non-local people have equal value, in some people’s thinking, I’ll be adopting projects in Montana .

Nothing in the rule prevents interested parties from (1) participating in project planning in such a way that they are eligible to object and therefore are notified directly when an objection filing period begins; (2) requesting copies of objections from the reviewing officer; (3) asking about a schedule of any objection resolution meetings; (4) attending objection resolution meetings
and participating at the discretion of the reviewing officer; and (5) obtaining a copy of objection
responses

Another thing I found interesting was:

Response:
The Department appreciates all of the input provided on this important subject. Since the
proposed rule was published, little has changed with the judicial or legislative
environment associated with this question. The Government’s appeal to the Ninth Circuit in the
Sequoia ForestKeeper v. Tidwell case remains pending. The Forest Service continues to comply with the nationwide injunction subjecting certain CE projects from the notice, comment, and appeal provisions of the Appeal Reform Act, issued by the U.S. District Court for the Eastern District of California on March legislation regarding this question have been introduced in Congress, nothing has been enacted. Therefore, the Department is not yet prepared to make any regulatory changes through this or any other rulemaking. The public responses received in comment on the proposed rule that pertain to this
question will be retained for consideration at an appropriate time in the future.

I wonder if the comments, or a summary, are posted somewhere…?

More Info Dribbling Out From Lewiston About Objections Rule

AP story here.

My favorite part of this story was…

But critics worry the changes will force them to predict the future. Instead of filing an appeal based on a specific decision, they will have to anticipate a wide range of possible final decisions the agency might make.

“Whether you are a timber industry advocate or a strict preservationist, you are going to need to break out your crystal ball to determine what the Forest Service is going to do before they do it,” said Jonathan Oppenheimer of the Idaho Conservation League.

That has the possibility of spawning more objections and taking more time than the current system, said Gary Macfarlane of the Moscow-based Friends of the Clearwater.

“Right now appeals are done after a decision is made so both parties know what the decision is; objections and concerns can be more pointed, more boiled down,” he said. “It’s going to force people who object to do the kitchen-sink model, to throw as many concerns out there as possible.”

Those who do not participate in the public involvement and objection process won’t have standing to file lawsuits, raising the stakes and incentive for filing a broad range of objections, environmentalists say.

where Mr. Oppenheimer predicts what timber industry advocates think.

However, further down in the article, we actually hear from a real live industry advocate.

For Tom Partin, executive director of the American Forest Resource Council in Portland, Ore., the new process is welcome and long overdue. He believes the new process will compel people who oppose things like timber sales to come forward with their objections rather than holding back and saving rhetorical ammo for court.

“They have to put their dislikes in up front and try to work it out in the resolution process,” he said.

But it’s interesting that “the critics” predict future bad things, but we have actually been using objections since HFRA, so the territory is, in reality, well known or, perhaps, trammeled .

It’s interesting that Earthjustice attorney said about the track record (real, past, as opposed to hypothesized future) objections..

“That concept of pre-final decision comes from the Healthy Forest Restoration Act (of 2003), and it works fairly well,” said Earthjustice attorney Kirsten Boyles, whose law firm frequently challenges Forest Service policy. “It requires people be involved earlier in the process, and it seems to have worked fine.”

If the press release is tomorrow and it’s coming out in the Federal Register Wednesday, we might want to review our previous posts and comments on it..

But check out Rob Chaney’s Missoulian piece from January and our discussion and links here. And here (45 comments!) is another extensive discussion we had..plus the tacky diagram above (public opp. is opportunity to give comments) that we can use to parse out some of the discussion, or at least until the news release and background material tomorrow.

Objections Rule to Be Released (?) and a Recap on “Contacting Your Representatives”

This came across me email from the LM Tribune online here.

The U.S. Forest Service is changing the process by which citizens can challenge timber sales and other actions.

Under the new guidelines, which are expected to be unveiled this week, people who want to challenge agency actions will be required to fully participate in the public review process and file formal objections prior to forest supervisors making final decisions.

Some of you may remember that I wrote my Senators asking why this had been requested by Congress last year and still hadn’t been completed. That was part of the post here Paid Gladiators and Unpaid Peacemakers: There Must Be a Better Way.”

Here is what happened:

Senator Udall’s office first wrote back and said they received my email. In about six weeks they sent a copy of a letter they sent to the Chief asking about it and for the Forest Service to write me back (I expect this became “controlled correspondence”). I never heard from the Forest Service, but if the objections rule is coming out, that’s what I wanted. As I noted before, they had a place for natural resources in their drop down menu.

Senator Bennett’s office never wrote back to say they received my email. About a month and a half in they sent a form letter saying that they noted my concerns and would take them into consideration (which actually wasn’t the point). This office’s dropdown didn’t have a place for natural resources so I had to select “environment.” For the State of Colorado. Really.

They are both in the same party, so it appears that it’s not a partisan issue.
Ed had mentioned in a previous comment here

In response to your great suggestion about working with (talking to) our fed reps, I have to share from an Idaho perspective. As you likely know, Idaho has gone totally to the right, with extreme GOP control at all levels, county, school boards, House and Senate. OK, I accept that we of the other persuasion are vastly outnumbered.
But I have, on a few occasions, emailed my federal reps in DC. Their electronic sites are a real test of how determined you are to finish. Layer after layer of background and categories before you can insert your message. And you go through this again and again, each time you want to confer. Can’t help but wonder if all this preliminary junk is really intended to screen us out so we won’t “bother them”.
And knowing that I and “them” are so politically separated, my efforts are half-hearted. Tried the phone a few times, but again how many comments to some intern answering the phone are really passed accurately to the congressmen or senators. Doubtful.
A real challenge to be an environmental Democrat in Idaho.

I know some of the rural economic groups have training in working with elected officials and even trips to DC, I wonder if some information is written down that could be shared here about how to work with Congressional folk? The retired feds may have some pent-up desire for this… but in some cases it has to be them who will have to find solutions to the problems we’ve identified.

Sharon’s Easy Guide to the Proposed Objections Rule

Some folks thought it was difficult to understand the bureacratese of this proposed reg. So I scheduled 2 hours to develop an “easy guide”. It only took an hour and a half, and now it will take you less, and you will get more out of it.

An objections rule describes a process, so most of it is, by nature, uninteresting (e.g, what happens to the count of number of days, if 45 days falls on a Saturday?). However, if you read my handy 6 page guide here, you can figure out 1) what they want you to comment about, 2) general things of interest, and 3) some topics you might want to look at further.

I’d be interested in discussing here what you think about the proposed rule and if I’ve done this correctly.

Draft Objection Process in Federal Register- Beginning of 30 Day Comment Period

Here’s a link from the FS website.

US Forest Service proposes to streamline land management plan review process
Provides for public comment opportunity for some land management plans

WASHINGTON, Aug. 8, 2012 — The U.S. Forest Service today published in the Federal Register a proposed regulation that will improve the administrative review process for proposed projects and activities implementing land management plans. The proposed rule is posted here.

The proposed rule for an objections process will be applied to all projects and activities that implement land management plans requiring an environmental analysis or environmental impact statement. The publication of the proposed rule will provide a 30-day public comment opportunity. All comments received will be considered before a final rule is published.

“This proposal will result in better, more informed project decisions, better documentation of environmental effects of agency proposals, and reduced regulation for administrative reviews,” said US Forest Service Chief Tom Tidwell.

The Forest Service has used a predecisional objection process for hazardous fuel reduction projects since 2004. This year Congress directed the Forest Service to also establish a predecisional objection process for other projects in lieu of the post-decisional appeal procedures in use with those projects since 1993.

Note from Sharon: there was some talk of developing an interim final rule so that it could be used during the comment period and as the final rule would be developed. Since Congress specifically directed this in the Approps bill last year, this seemed to me like an appropriate approach. I wonder why it was decided to go with a rule that won’t be effective until after the public comment period, analysis of comments, and further development internally, added on to the unpredictably slow process of clearance. For something Congress directed fairly straightforwarldy, IMHO.

I heard through the grapevine it had something to do with lawyers and potential confusion with, and linkage to, the court order around notice and comment for CE’s. However, to me it seems that these can go down separate tracks. If I were in Congress, I would be wondering…and maybe attempt clarify Congressional thoughts on notice and comment for CE’s, if that is really the hold-up .

In looking around on the FS website for a “plain English” version of what’s in the proposed rule, I found this website of existing objections, which is also interesting. You can look up if there are any projects around you that use objections (HFRA projects can use them not, without the proposed rule going into effect).

If anyone knows of such a document (what I call a “plain English” version, or summary of requirements) put out by the FS, or other groups, please comment and show a link or send to my email (terraveritas@gmail.com) if it’s a document.

A Tale of Three Projects – South Shore Fuel Reduction

The 10,000-plus South Shore fuels project could begin in 2012. Photo/LTN file

An interesting thing that happens on this blog is that we get “into the weeds” or snags (?) of projects in different parts of the country, so we can compare the different approaches and concerns. We also have readers with on-the-ground experience in many of these areas. Thanks to Derek for submitting these articles about the South Shore Fuel Reduction in California. It’s interesting for a number of reasons, the size, the cost ($40 million), the ICW (Index of Comparative WUI-ness), and the fact it used the objection process. The three projects we are currently discussing are Colt Summit (Montana), Goose (Oregon) and now this one. In the past, we’ve examined a host of others.

10,000-acre thinning project may start in 2012 on S. Shore

Posted By admin On October 11, 2011
By Kathryn Reed

With parts of the forest near developed areas being in prime condition for a wildland fire much like in June 2007 when the Angora Fire consumed more than 3,000 acres, the U.S. Forest Service is ready to do something about that land.

Once the long-awaited South Shore Fuel Reduction and Healthy Forest Restoration Project gets under way – which could be next summer — 10,112 acres will be treated.
The 10,000-plus South Shore fuels project could begin in 2012. Photo/LTN file [1]

The 10,000-plus South Shore fuels project could begin in 2012. Photo/LTN file

Duncan Leao, U.S. Forest Service forester, calls the wildland urban interface (this is where the forest abuts development) on the South Shore one of the areas in the basin that most needs treatment.

“It’s important work to do. We don’t want another Angora Fire. The conditions we are looking at in many places on the South Shore are conditions we saw in Angora before the fire,” Leao told Lake Tahoe News.

It will take about four years to thin the trees, with another four years for follow-up treatments. In all, it is roughly estimated to cost $40 million. The U.S. Forest Service, mostly through the Southern Nevada Public Lands Management Act, has secured three-quarters of that figure.

Before a single branch is limbed or tree felled, comments on the project will be taken until Oct. 28 from anyone who submitted a comment when the environmental impact statement was first released. If anyone files an objection to the final EIS, it triggers a 30-day resolution period.

Ultimately it is up to the forest supervisor to sign off on the document, allowing the project to go forward.

Then comes the process to obtain the necessary permits. The one from the Lahontan Regional Water Quality Control Board is the biggie.

However, Lauri Kemper, No. 2 at the regional water board, said the draft of the permit has been on hold since February 2010. But it takes more than a signature to make it valid.

California Environmental Quality Act regs are what Lahontan is going by. Lahontan officials must certify the EIS addresses CEQA concerns.

The project will involve working in stream environmental zones – that’s a main sticking point for the water board. It doesn’t mean no permit; it means a thorough review and not just taking the Forest Service at its word that the EIS is complete and addresses those concerns.

“We’re all for fuels reduction,” Kemper said.

What could hold up the project is the Lahontan board may not grant a permit until its May meeting. The Forest Service cannot go out to bid until all the permits are in place. This could delay work in what is already a limited season for thinning because dirt in the basin, per TRPA rules, can only be disturbed between May 1-Oct. 15.

A combination of mechanical and hand treatments are likely to be used.

Whether hand thinning could begin without the Lahontan permit depends on what type of permit Lahontan decides to issue. There are three possible ways it can permit the project.

Trees 16-inches and less in diameter are likely to be felled by hand, while those up to 30 inches would be taken out by machines. Most likely the process will be similar to what is being done in the Angora area [2] in terms of the machines used. The forest pattern will be different because Angora is mostly about removing dead trees.

“A lot of hand work goes pretty quick. Then (people) would see piles. Those may last a couple years,” Leao explained. “With the mechanical you do not see as many piles because most of it is removed.”

Trails used by recreationists will either be off-limits at times or rerouted to ensure no one is hurt as the work is being done.

“It will be a combo of biomass and merchantable material — stuff that could go to a mill will depend if there is a mill nearby. The market is very difficult to predict,” Leao said. “If no sawmill is open, then contractors would have to determine what to do with that. It’s very helpful to have both biomass and saw log markets.”

The USFS decides which trees to thin first based on size – taking out the smallest at the get-go. Then the health of the tree and species are determining factors.

Jeffery and sugar pine, incense cedar and larger trees are ones Leao said the Forest Service wants to keep.

Diseased trees, including ones with mistletoe, will be on the chopping block.

“Ideally, you want a forest with multiple sizes and age classes. You can’t do that with thinning alone,” Leao said. “As we get the WUI stuff done, the forest still has an even age to it. Fire and planting trees, and other methods could be used to get it into a healthier condition. That is more long term.”

To view the South Shore final EIS, go online. [3]

The comments are interesting also as they suggest a charitable firewood program for the elderly.

So I looked up the Southern Nevada Public Lands Management Act, which will provide the funding

About SNPLMA

The Southern Nevada Public Land Management Act (SNPLMA) became law in October 1998. It allows the Bureau of Land Management to sell public land within a specific boundary around Las Vegas, Nevada. The revenue derived from land sales is split between the State of Nevada General Education Fund (5%), the Southern Nevada Water Authority (10%), and a special account available to the Secretary of the Interior for:

Parks, Trails, and Natural Areas
Capital Improvements
Conservation Initiatives
Multi-Species Habitat Conservation Plans (MSHCP)
Environmentally Sensitive Land Acquisitions
Hazardous Fuels Reduction and Wildfire Prevention
Eastern Nevada Landscape Restoration Act
Lake Tahoe Restoration Act Projects

Other provisions in the SNPLMA direct certain land sale and acquisition procedures, direct the BLM to convey title of land in the McCarran Airport noise zone to Clark County, and provide for the sale of land for affordable housing.

Here are a couple of other links on this project:

Massive South Shore fuels reduction project approved

January, 13 2012
Staff Report
SOUTH LAKE TAHOE, Calif. — The U.S. Forest Service Lake Tahoe Basin Management Unit has approved a more than 10,000 acre project to reduce wildfire risk to communities at Lake Tahoe’s South Shore and restore the health of the area’s forests, according to a Friday statement.

The South Shore Fuel Reduction and Healthy Forest Restoration Project will thin trees and brush on national forest system land from Cascade Lake to the Nevada stateline. The project will take approximately eight years.

The project is designed to provide defensible space, reduce the risk of high intensity fire and create forests better able to resist drought, insects and disease, while restoring stream environment zones, meadows and aspen stands, according to the statement.

Thinning by crews with chain saws, removing trees using tracked and rubber-tired equipment and prescribed fire are included in the project.

The Forest Service plans to move forward with hand thinning as soon as conditions allow. Mechanical thinning will undergo permitting through the Lahontan Regional Water Quality Control Board before starting.

“The fuel reduction efforts outlined in the South Shore project are critical to protecting our communities from wildfire,” said LTBMU Forest Supervisor Nancy Gibson in the statement. “We will continue to work closely with the Lahontan Regional Water Quality Control Board, and our goal is to begin implementing the project this summer.”

The Forest Service has coordinated with other public land management agencies and local fire protection districts to ensure the fuels reduction work will complement local Community Wildfire Protection Plans, according to the statement.

Detailed project information is available online at: http://www.fs.usda.gov/goto/ltbmu/SouthShoreFuelReduction.

and Extensive Fuels Reduction Project faces challenges.