Homegrown Solution or Abdication? - Sen. Tester’s Forest Jobs and Recreation Act Offers a Provocative Approach

An interesting conversation unfolded in Washington this week. Senator Max Baucus slipped away from the clamor of the health care debate to testify in support of fellow Montana Senator Jon Tester’s Forest Jobs and Recreation Act (FJRA). In a several-hour hearing before the Senate Energy and Natural Resources Subcommittee on December 17, speakers from diverse perspectives wrestled with some big ideas about managing national forests.

Sen. Tester’s bill (S. 1470) is the latest in a series of place-based legislative proposals—that is, statutes that direct management actions in particular national forests or tracts of public lands. These statutes reflect negotiations among various interest groups, often hammered out over years of tough discussions by people closely connected to the land and resources at stake—sportsmen, conservationists, loggers, local business owners, and others.

Such collaborative agreements are not new, and the public land agencies are increasingly open to input from groups of “strange bedfellows” as a means of resolving conflicts over multiple-use mandates. But this bill and another one just negotiated in Oregon bypass the usual agency decision process and codify the grassroots proposal directly into federal legislation.

The FJRA grew from three different sets of negotiations in Montana. The largest and most controversial is the Beaverhead-Deerlodge Partnership. The other two are the Three Rivers Challenge and the Blackfoot-Clearwater Landscape Stewardship Project. Sen. Tester combined these proposals into one bill, which cumulatively would designate 677,000 acres of wilderness and 336,000 acres of special management areas on three national forests. It would also mandate 70,000 acres on the Beaverhead-Deerlodge National Forest and 30,000 acres on the Kootenai National Forest to be “mechanically treated” over the next decade, all of which relies on the use of stewardship contracting rather than traditional timber sales. The stewardship contracts will include restoration activities, such as road and culvert removals.

In his thoughtful analysis of the FJRA, University of Montana Forestry Professor Martin Nie described the bill as “a bold and constructive response to a dysfunctional status quo.” Similar words of praise heaped on Sen. Tester at the December 17 hearing from representatives of Trout Unlimited, Montana Wilderness Association, and Sun Mountain Lumber. A recent Missoulian editorial urged passage of the bill, concluding that the “groundbreaking” legislation “meets the immediate needs of every Montanan who cares about protecting our public lands for future generations while also making sure our remaining mills stay in business in the years to come.”

But, as Prof. Nie further pointed out, this bill threatens to set a precedent that makes Forest Service and some environmental groups nervous: “If replicated more broadly, the place-based approach to forest management could further disaggregate the national forest system,” leading to forest-specific prescriptive mandates that might dilute national policies.

This caution was reflected in the testimony of Under Secretary of Agriculture Harris Sherman, who said straight out that the Department of Agriculture (in which the Forest Service is housed) “doesn’t like Congress telling them what to do in individual national forests,” and warned of a Balkanized system with no overall coherence. He was careful to reiterate several times that the USDA does not oppose the bill, but would like to see it stripped of its mandates. Such a move would likely lose the support of all participants in the negotiated proposal.

It’s easy to see that the Forest Service and its political overseers are trying to walk a fine line in responding to this and other place-specific legislation. The agency wishes to demonstrate its genuine commitment to collaborative stewardship, but is reluctant to release any measure of traditional management authority, especially when new good ideas are captured in proposals crafted arise outside standard agency planning processes.

The challenge, of course, is where to take these good ideas—how to expose them to broader discussion and allow folks from all interest groups to be part of the conversation about them. That’s why the FJRA hearing included speakers who oppose the bill, representing interests on both ends of the political spectrum (reminding me of the reference to collaboration as the “radical middle”). Even better, the Forest Service could have incorporated the Partnership’s proposal in its Forest Plan process and hosted a vigorous public debate in Montana, but they chose not to do so.

Collaboration is not part of the traditional way of thinking in public resource management. It represents little reward and a great deal of exposure for managers and stakeholders stepping in this direction. But the opportunity for lasting, workable solutions crafted through partnership is worth the effort, and I join Sherm Anderson in lauding Senator Tester for having the guts to bring this proposal forward for public debate and consideration.

For more information:

Martin Nie, Place-Based Forest Law (Headwaters News, Sep. 24, 2009).

Noelle Straub, “Sen. Tester’s Plan for Wilderness, Logging Roils Big Sky Country,”
New York Times (Dec. 14, 2009).

Sarah (Bates) Van de Wetering, The Legal Framework for Collaborative Conservation (Center for Natural Resources & Environmental Policy, 2006).

Sarah Bates writes about natural resources law and policy from Missoula, Montana. She is a senior associate with the Center for Natural Resources and Environmental Policy at the University of Montana, and maintains an active consulting practice, which includes regular contributions to the Red Lodge Clearinghouse. Her most recent book (co-edited with Lawrence J. MacDonnell) is “The Evolution of Natural Resources Law and Policy (ABA, 2009). The opinions expressed here are solely those of the author.

Office of Surface Mining Seeks Comments on Oversight Policy – Our Response Should be Simple: Enforce the Law

The Office of Surface Mining has requested public comments on a general plan to make oversight more effective. Everyone who cares about the impacts of mining on our communities and the environment should take this opportunity to respond to OSM’s request.

Citizens throughout the country have been disappointed time and again over many years and through many different Administrations – Democratic and Republican – at OSM’s failure to engage in effective oversight. It may seem futile to expect that OSM will ever change. But we ought not – we cannot – concede this fight, especially not now when a new Administration seems open to setting a new course. Too many people in too many communities, and too many of our vital natural resources depend upon a better outcome. So what should we say?

OSM has acknowledged in their draft a “number of problems” but has suggested that these problems “centered on our regulations rather than our oversight policies and procedures.” Some of OSM’s examples were “the lack of clear contemporaneous reclamation standards…, the lack of a definition of material damage to the hydrologic balance, [and] the lack of clear standards in our definition of approximate original contour….” While OSM’s rules could undoubtedly benefit from some clarification, the problem with OSM’s oversight is not and never has been the lack of clarity in their rules. OSM has also suggested that it intends to increase the number of oversight inspections, intensify its oversight activities, and seek greater public involvement. These would all be positive developments. But the only way to make oversight more effective is for OSM to insist on strict compliance with the law. When violations are observed, and the States show that they are unable or unwilling to stand up to operators, OSM must take the appropriate enforcement action. Enforcement must be consistent and scrupulously fair, but it must also be certain where violations are identified.

While this proposed solution to the OSM oversight problem may seem simple, implementation will not be easy. A culture has evolved over many years of OSM acquiescing to the preferences of the states and the coal industry when disagreements arise. This culture is reflected even in the current announcement, which refers to the OSM’s ongoing policy of “providing customer service.” Historically, at least, OSM has hung to the belief that the coal industry and states are among its “customers.” See e.g., OSM Customer Service Report, 1996. Since, as we know, the customer is always right, it’s not surprising that OSM has been loathe to question industry and state policies. This has got to change if federal enforcement is going to be credible. Neither the industry nor the states can or should in any way be viewed as OSM’s customers. Coal operators are regulated entities. They should surely be treated fairly but OSM must insist on strict compliance with the law. The states stand in a somewhat different position than operators. OSM must work in partnership with the states, but they are not OSM’s customers either. On the contrary, if oversight means anything it means that OSM must be prepared to step in where states fall down on their obligations.

We can and perhaps should offer OSM comments about strategies for identifying and better addressing problems that arise at coal mining operations. But all these efforts and strategies will be meaningless unless OSM is serious about enforcement. I hope we can all unite behind this simple but powerful message.

- Professor Mark Squillace, Natural Resources Law Center - Colorado Law

Check out the helpful guide to submitting public comments on the Red Lodge Clearinghouse website.