Mark Squillace is a law professor and the Director of the Natural Resources Law Center at the University of Colorado Law School. Some of his views on the process-related issues surrounding the current round of forest planning are set out in a post titled Engaging the Public in the Latest Round of Rulemaking on Forest Planning on the Red Lodge Clearinghouse blog.
After two days of intense discussion about the forest planning process at the May 11-12, 2010 workshop in Rockville, Maryland, I’d like to offer these observations while they are fresh in my mind. First, kudos to the Forest Service and the Meridian Institute for establishing such an open and effective process for engaging the public. I have written more specifically about the process on the Red Lodge Clearinghouse website and those comments can be found here. In this post, I would like to suggest a few principles that I believe should govern the rulemaking process for forest planning and a few ideas for establishing a process that reflects those principles.
First and foremost, the Forest Service must not lose sight of the fact that the central problem with the current framework for forest planning is that it is too complex. As a result of this complexity, plans often take many years to develop, and their very complexity invites appeals and litigation. Let’s not ask too much of our forest plans. They should offer a vision for the future management and use of discrete areas and not much more. They should be simple enough that they can be completed within a year – two at the very outside. They should be relatively short – no more than 150 pages, and they should be accessible to the general public so that the general public can meaningfully participate in the planning process. Plans are likely to be most accessible if the alternatives that are being considered can largely be understood by looking at series of maps reflecting the alternative visions for forest management.
The complexity contained in most of our current plans relates largely to the fact that the Forest Service has historically used the plans to establish detailed standards and guidelines for managing particular forest resources. My sense is that this largely traces back to the Forest Service’s belief back in the early 1980’s that forest plans developed under the 1982 rules could essentially govern all future decisions on the forest, at least until a new forest plan was developed. I think we know now that this model does not work. Yet the Forest Service still seems to cling to the belief that more complex forest plans will make project level decisions easier. If they stepped back and thought about this they would surely realize that more complex plans do not make anything easier.
This leads to my recommendation that the planning rules should establish a process for “tiered planning.” Tiered planning borrows a concept from NEPA. Under a tiered planning regime the Forest Service would first develop a large scale, “bird’s eye” vision for the forest that would meet the basic legal requirements of NFMA for land and resource management plans. This would involve a NEPA process that considers various alternative visions for a forest, before a final vision is chosen. Among the decisions to be made at this large scale level would be what resources on that particular forest required separate resource specific plans. The large scale plan would guide the Forest Service in the development of these sub-level, tiered (and integrated) plans for the particular resources identified during the land use planning process. These tiered resource-specific plans would be accompanied by separate NEPA processes and separate opportunities for review. Different forests would need different resource plans. Project level decisions that relate to particular resources studied in a sublevel plan would then fall under a third tier, but since not all forest resources would necessarily require a sub-level plan, some project level proposals might simply flow from the large scale plan itself.
Breaking down plans into component parts, as the proposed tiering process would do, will not necessarily lead to less work for the Forest Service up front. But it will allow the basic plan – the vision document – to be developed more easily and more quickly, and it will allow conflicts and controversies to be better isolated to particular resources While tiered planning might be criticized for failing to promote sufficient integration of resource-specific assessments with land use decisions as required by NFMA, the Forest Service can address this problem simply by adhering to the basic principles of tiering articulated in the Council on Environmental Quality rules implementing NEPA. In particular, those rules describe “tiering” as appropriate when “it helps the …agency focus on issues that are ripe” and “exclude[s] from consideration issues … not yet ripe.” 40 CFR 1508.28(b). By divorcing the planning choices from the choices relating to specific resources, the Forest Service can put off consideration of those resource specific issues until the agency is ready to consider whether and how specific resources should be used.
Another great advantage of tiered planning is its potential for engaging the public in a more meaningful way. Tiered planning can achieve this goal because it allows interested parties to be involved at whatever level of detail they desire. Those most interest in the particular type of land uses that are going to be allowed on particular tracts of lands (or perhaps over the entire forest landscape) can participate only on the land use level decisions, with some confidence that the choices made during this large scale planning process will be honored as sub-level decisions are made. Those interested in the development, use, or management of particular forest resources can focus their attention on particular resource plans or project level decisions involving those resources and those lands where particular resources are authorized for use.
I want to conclude with one general observation about the current process. Even as I applaud the Forest Service for initiating this ambitious exercise in civic engagement, the agency should recognize that one of the risks associated with this process is that it invites even greater complexity in planning. The natural tendency of participants asked to consider ways to improve forest plans is to suggest additional requirements that might be imposed on forest planners. For all of the reasons expressed above, making forest plans more complex than they already are would be a huge mistake, even if, in the abstract, we might agree on an idea for further improving forest plans. A great example of this comes from the workshop and concerns the request to participants that they consider “restoration and resiliency” as one of six issues for forest plans. Understandably, most people think that restoration of degraded forest resources and managing forest resources to promote resiliency are generally good things. I don’t disagree. But restoration and resiliency cannot and should not be treated as ends in themselves. Indeed, it is generally accepted that restoration of degraded lands to their original condition is probably not possible, and maybe not even desirable. More importantly, restoration and resiliency should be seen for what they are – tools that might (or might not) help to achieve the goals and objectives established in a forest plan.
The elusive goal of finding a better way to do forest planning will only be achieved if we come to grips with the fundamental problem associated with the current process. It’s too complex. We need to rethink forest planning in ways that will allow forest plans to be concise, accessible to the general public, and developed and implemented within a reasonable period of time. I appreciate the fact that it won’t be easy. But I nonetheless believe that it can be done.
For those of you who aren’t familiar with this paper, it was a recent effort to figure out if another approach to climate policy could be more successful.
Here is quote from Mike Hulme in this essay on the Hartwell paper .
To move forward, we believe a startling proposition must be understood and accepted. It is not possible to have a “climate policy” that has emissions reduction as the all-encompassing and driving goal.
We advocate inverting and fragmenting the conventional approach: accepting that taming climate change will only be achieved successfully as a benefit contingent upon other goals that are politically attractive and relentlessly pragmatic. Without a fundamental re-framing of the issue, new mandates will not be granted for any fresh courses of action, even good ones.
The paper’s first primary goal focuses on access; to ensure that the basic needs, especially the energy demands, of the world’s growing population are adequately met.
The second is a sustainability goal; to ensure that we develop in a manner that balances social, economic and ecological goals.
Third is a resilience goal; to ensure that our societies are adequately equipped to withstand the risks and dangers that come from all the vagaries of climate, whatever their cause.
Most regular readers of this blog will know that my approach to climate change for public lands is basically:
1. Do all the things we know we should have been doing (monitor and adapt in a transparent disciplined way)
2. Preferentially protect the fundamentals, especially water and air. There is no correct or incorrect composition of plants and animals, now or in the future.
3. Connect landscapes through riparian and other corridors.
4. Use land trades to decrease fragmentation of public lands and open areas to solar or wind development.
5. Develop sustainable biomass industries where needed to conduct fuels treatment or for ecological resilience.
I am also a big fan of Trout Unlimited’s “protect, reconnect and restore” as described in their “Healing Troubled Waters” document here.
So here’s the question- think about Hulme’s concepts, my concepts, TU’s concepts and your own concepts of what to do about climate change… what is the public lands piece to you? And what, if any of that should fit into a planning rule?
A guest post by Lynn Jungwirth
Clearly modern forest plans must have a restoration plan embedded in them. We’ve been struggling here lately with trying to figure out “how much is enough”. Currently “cumulative effect” means that you figure out where the threshold is for negative impact….how many roaded acre equivalents can happen before you have tipped the watershed into an unacceptable trajectory. But if we are going to be planning for restoration and maintenance of ecosystem function, we do not have an equivalent cumulative effect analysis for when you reach a threshold which means the system is on a good trajectory and can take care of itself, or is at least adequately repaired or resilient in the face of projected climate change.
How could a forest planning rule help us make that investigation?
I’m also pretty concerned that many of these place-based approaches in legislation are sort of just running over the forest planning process and again splitting the baby . wilderness vs industrial restoration seems so old fashioned. The forests have been run ragged with this either “too much” or “not enough” management approach. The 22nd Century seems to ask more of us. If we are truly going to wrestle with the integration of recreation, silviculture, restoration, ecosystem services, biodiversity, and an “all lands” approach, it seems that what is required in forest plans is going to be very very different than what we have now.
The proposed K.I.S.S. rules are based on the premise that the Forest Service is revising forest plans, not promulgating new plans from scratch. This premise implies a rebuttable presumption that the existing plan’s provisions are satisfactory. NFMA supports this approach to plan revision.
For example, NFMA requires the Forest Service review timberland suitability decisions “at least every 10 years” and “return lands to timber production” when the Forest Service finds that “conditions have changed.” Thus, only if “conditions have changed” does the FS review its previously-made timberland suitability decisions. This mandate appears best met by adding to K.I.S.S.’s “new information or changed circumstances” assessment a new provision, as follows (addition is in italics):
36 CFR 219.3: Assessment of New Information and Changed Circumstances
(a) The revision shall assess (the “assessment”) new information and changed circumstances and conditions in the unit that are relevant to the decisions made in the land management plan. If the new information or changed circumstances and conditions warrant amendments to the land management plan, the land management plan amendments shall be assessed as a part of the vegetation management and timber harvest program’s NEPA document. If the land management plan amendments, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., an environmental impact statement shall be prepared.
(b) The assessment shall determine whether new information or changed circumstances warrant a review of lands the Forest Service has classified as suitable or unsuitable for timber production. The review shall focus on, but is not limited to, lands proposed for timber harvest in the plan revision’s vegetation management and timber harvest program.
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.
In drafting these K.I.S.S. model rules, I look first at what the original 1979 and subsequent 1982 rules have to say on each subject. I use the 1979 rules because I have a ragged paper copy of that day’s federal register with the rules in it. This heirloom was given to me when I was hired as an assistant to teach NFMA planning to Forest Service interdisciplinary teams. My boss told me to read the rules, which were hot of the press, and be prepared to “teach” them the following week. I look to the 1982 rules because they are the rules under which all forest plans were promulgated.
It was with some amusement that I noticed, for the first time, that the 1982 rules fail to faithfully implement NFMA’s nominal public participation requirement (see the link’s paragraph (d)). I have fixed that problem below:
36 CFR 219.6: Public Participation
(a) The revised land management plan shall be made available to the public electronically and at convenient locations in the vicinity of the unit for a period of at least three months before the revised plan is adopted. During this three-month period, public meetings at locations that foster public participation in the plan revision shall be held.
(b) If the land management plan revisions, singly or in combination with the vegetation management and timber harvest program, require an environmental impact statement pursuant to Section 102(2)(C) of the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the public participation process set forth in Council on Environmental Quality regulations, 40 CFR Part 1500 et seq., shall be followed.
(c) In addition to the requirements of (a) and (b) above, other processes suited to the decisions made in the plan revision, including the vegetation management and timber harvest program, may be used to involve the public.
After a day listening to ecologists talk about landscape models, I am further inspired to urge planning rules that keep-it-simple-sweet.
There are three kinds of government rules. Most government rules regulate the behavior of private concerns, e.g., point-source pollution and building codes. A few regulate the behavior of other government agencies, e.g., Endangered Species Act consultation and CEQ NEPA process. Fewer still self-regulate an agency’s own behavior. The NFMA planning rule falls in this last category.
I don’t know about you, but if I wrote enforceable rules to regulate my own behavior, I’d make sure the rules were as spare and flexible as possible. Thus I offer the following rules to implement NFMA’s inventory and interdisciplinary mandates:
36 CFR 219.4: Inventories
The revision shall be based upon inventory data, maps, graphic material, and explanatory aids, of a kind, character, and quality, and to the detail appropriate for the land management plan revisions and vegetation management and timber harvest program decisions made.
36 CFR 219.5: Interdisciplinary Preparation
An interdisciplinary approach shall be used in the revision of the land management plan. The disciplines of the preparers shall be appropriate to: 1) the formulation of the vegetation management and timber harvest program; and, 2) the new information and changed circumstances and conditions in the unit that warrant revision of the plan.
So what’s the value of a forest?
In a previous post, I described the shift away from the Forest Service’s multiple-use mission to a sustainable ecosystem mission. Many public stakeholders are confused by this shift, including those that rely on forest uses and services. The same is true for Forest Service employees trained in multiple-use management. Often, it’s about having a voice, or being able to clearly articulate these viewpoints, as the dialogue shifts toward concepts such as resilience, ecosystem integrity, ecological function, restoration of degraded ecosystems, etc. As an example of this new framework, see the interim directive FSM 2020-2008-1, intended as a “foundational policy” for all restoration activities.
In the shorthand about sustainability, we sometimes forget the reason we want to achieve sustainable management. In Forest Plans, we talk about desired conditions, but we don’t describe why they are desired.
The interim FSM 2020 explains the reason for ecological restoration and maintenance of resilience: ”to provide a broad range of ecosystem services.”
It really isn’t much of a leap at all to move from the idea of multiple-uses to the idea of multiple-services. The 1960 Multiple Use Sustained Yield Act itself explains that multiple use results in both products and services. The idea of ecosystem services draws on these concepts, and extends the idea by attempting to categorize all of the benefits. In particular, one framework getting attention was developed for the worldwide U.N. Millenium Ecosystem Assessment. It divides services into four categories:
1. The provisioning “uses”, including those mentioned in the Multiple-Use Sustained-Yield Act: timber and grazing.
2 The cultural services, including recreation. It would also include things like historical and heritage appreciation, and the experiences people have in the forest that create feelings of solitude or aesthetic appreciation. The diversity of wildlife could fall into this category also.
3. The regulating services, including streamflow or flood control, alteration of fire, and influence on climate. The role of wildlife species in ecological processes is also important.
4. The supporting services for the other three categories, like soil formation and retention, or production of atmospheric oxygen.
Based on the Farm Bill, the Department of Agriculture has established an office for ecosystem services, now called the Office of Environmental Markets, to explore the development of markets. For Forest Service planners who suffered through the economic requirements of the 1982 planning rule, this is a bit scary. The same type of linear programming models used in forest planning to maximize sustained yield of timber are now being used to maximize carbon storage. Economists are working on ways to value services. We should encourage qualitative descriptions of services. The director of the office, Sally Collins, advised a slow-cautious approach to these issues in a 2007 speech:
Resist the impulse to jump on the ecosystem services bandwagon in response to the Forestry Blues—but also resist the impulse to dismiss it as the latest in a series of attempts to redefine forestry. It is what it is, and forestry in America and the world is what it is.
The idea of ecosystem services was introduced in the December 18 Federal Register notice for a new planning rule. This may be a chance for the Forest Service to embrace its multiple-use roots while articulating the importance of intact, functioning ecosystems.
A wise colleague suggested that it might be time again to take a look at this article from the May 1990 Journal of Forestry. Here are some quotes from the paper:
Planning has literally become an end in itself, with a large…interest group.. dedicated to its continuation
The National Forest Management Act is indeed an elegant solution to a nonexistent problem.
Thanks again to the Society of American Foresters for allowing us to post this paper on our blog.
Also note that it was originally published in Western Wildlands, a publication of our friends at the University of Montana.