Engaging the Public in the Latest Round of Rulemaking on Forest Planning

On May 11 and 12, in Washington, D.C. (actually, Rockville, Maryland) the Forest Service convened the last (for now) of a series workshops on forest planning. This most recent workshop followed a series of workshops throughout the country in which hundreds, perhaps thousands, of interested parties gathered together to offer the agency their ideas for improving national forest planning and management. As a party to the Lakewood, Colorado workshop and the most recent workshop in Rockville, I’d like to share a few personal observations and conclusions.

First, the Forest Service deserves substantial credit for initiating this remarkable process. The agency wisely chose to hire an outside professional consultant (Meridian Institute) to organize and facilitate public involvement and the consultant performed admirably. Moreover, recognizing that not everyone has the time, inclination, or interest to participate in workshops, the Forest Service has supplemented this more conventional process, with a web page, blog, live web casts of the workshops, and other electronic resources, in an effort to engage a broader audience.

Second, if the first step to addressing a problem is admitting you have one, then the Forest Service seems well on its way to addressing its problem with planning. While the workshops certainly did not dwell directly on past failures, the unspoken premise for much of the discussion was that forest planning is broken. Agency officials seem to get that. Despite several substantial efforts to develop a workable planning process, going back to at least the early 1980’s, land and resource management plans, as they are called, take far too long to prepare and are too often the subject of appeals and litigation. Moreover, they tend to suck most of the energy (and financial resources) out of the agency, with the result that not much is left to adequately assess project level decisions and to engage in post planning monitoring of forest conditions.

Third, the Forest Service seems genuinely committed to engaging the public and hearing how they might improve the planning process. Numerous agency officials at all levels actively participated in both the regional and national workshops and they genuinely seemed grateful for the public’s sometimes disparate ideas for designing a smarter approach to forest planning.

Fourth, the level of dialogue among participants was, on the whole, quite sophisticated, but it was also welcoming toward the views of those with less direct experience in forest planning. Kudos once again to the facilitator, Meridian Institute, for attracting and convening a diverse group, and for structuring an efficient and effective program for engaging participants with varied backgrounds in the task at hand.

A good process, of course, does not guarantee a good result, and time will tell whether this process will fulfill the agency’s goal of developing a better way to do planning. But the prospects for better forest planning are brighter because of the choice of process, and we owe the Forest Service a debt of thanks for offering other agencies a model for effectively engaging the public in this important decision. Now it’s our turn to offer the agency our best ideas for improving forest planning.

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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 substantive issues surrounding forest planning are set out in a post titled Rethinking Forest Planning on the Forest Service’s planning blog.

too many leaks; too few answers

Last month an oil rig in the Gulf of Mexico exploded and caught fire. Following the initial explosion the underground pipes from the rig continued to leak oil. This has become the worst environmental disaster, in America, in the last decade, and is threatening to surpass the Exxon Valdez leak of 1989 to become the worst environmental disaster ever in America. The story has been gaining lots of media coverage and the focus of this coverage has been broad. Originally, I was impressed at how many different parts of the disaster the media was trying to cover, including: how it happened, who is responsible, how is it going to be stopped, how will it be cleaned up, who will clean it up, etc., but my optimism quickly faded as it became clear that while there was a lot of coverage about the questions surrounding the disaster, there are few answers to actually be found.

Finger pointing and passing the buck has continued to keep any positive progress on solving the problem from happening. Even after there was a Senate hearing over the cause of the disaster it is still unclear who was responsible. Everyone blames someone else down the line. It was BP’s fault, and then it was a concrete plug that wasn’t correctly poured, or a failure of a safety device and battery. While the blame game continues the leak has still not been stopped. Two attempts to cap the well have fallen short, and there appears to be no other solid strategy to seal off the leaks. It boggles my mind that with all of the attention this problem has received there has not been any new plans made or attempted to stop the leak at the source. Before the cleanup can begin it is necessary to contain the problem. The leak occurred over three weeks ago and it still has not been stopped. I believe that more attention should be turned to why this hasn’t been stopped instead of focusing on other issues, like who is to blame, which is trivial at this point and can be determined at a later time.

An important question yet to be answered is the impact that this event will have on off-shore drilling? President Obama has been pledging to make future changes between the Government and oil industry, but what will these changes entail? This has re-opened many concerns and fears about off-shore drilling, but it may still be a necessary evil because the need for oil has not decreased. It will have to continue, but how will it be improved to prevent another tragedy from occurring?

I am tired of finding all of these reports that provide nothing but more questions. Even my own rants about this issue have added nothing but more questions. Enough time has passed, and I am ready for solutions.

State Roles in Protecting Wildlife: Implication of Greater Sage-Grouse and the Endangered Species Act in Colorado

The greater sage-grouse may be listed as a threatened or endangered species by February 26, 2010. Traditional and renewable energy developers are not thrilled at the prospect of an endangerment listing because it will limit their ability to develop large areas of greater sage-grouse habitat. At the same time, the controversy raises concerns about Colorado’s ability to protect wildlife. Some counties in Colorado do not protect un-endangered wildlife because the state lacks mechanisms for ensuring wildlife regulation. Inconsistent and insufficient wildlife protection can result in endangered species listings, which can be detrimental to industries and local economies.

When deciding whether or not to list or delist species, the U.S. Fish and Wildlife Service considers efforts made by states “to protect such species, whether by predator control, protection of habitat and food supply, or other conservation practices.” Endangered Species Act § 4 (b). Thus, states’ actions to protect wildlife can stave off an endangered species listing and the accompanying strict federal regulation. In the case of the greater sage-grouse, Wyoming has taken steps to protect the species to avoid listing. Governor Freudenthal issued an executive order directing state agencies to prioritize greater sage-grouse protection in core population areas. Wyoming’s Industrial Siting Council, a fairly comprehensive authority over permitting on state and private lands, administers the strategy.

The greater sage-grouse issue is more pertinent in Wyoming than Colorado because 50% of the remaining population lives in Wyoming. However, the issue raises questions as to Colorado’s ability to protect wildlife in general (including the newly returned wolves). Colorado’s Land Use Act of 1970 and Land Use Enabling Act of 1974 delegated broad discretion to counties, resulting in varying permitting processes and wildlife standards for each county. While some counties self-impose wildlife regulations, others do not require significant wildlife consideration. Even though the Colorado Division of Wildlife prepared some excellent reports on greater sage-grouse conservation strategies, the counties are not obligated to comply with Division of Wildlife recommendations.

Varying approaches by counties (including a total lack of wildlife consideration in some areas) leave gaps in wildlife protection. Because of these gaps in local protection, the federal government is more likely to step in and list species as endangered or threatened. A listing could constrain development in the areas where the species is found thus affecting industry, local economies, and tax revenue. At the same time, revisiting the state’s land use laws could benefit numerous species beyond the greater sage-grouse. Colorado could look at Wyoming’s Development, Information, and Siting Act of 1975, as an example of a program with state level comprehensive authority. Although criticized by some environmentalists, Wyoming’s more comprehensive approach provides a clearer permitting scheme for industrial development, allows interest groups to congregate and engage at the state level, and ensures consideration of wildlife matters. Alternatively, the state could mandate county consideration of sensitive wildlife or maintain backstop authority when counties fail to regulate.

While the state is understandably concerned that the greater sage-grouse will be listed under the ESA, the decision could give Colorado occasion to reconsider its approach to protecting wildlife.
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Cabell Hodge and Christian Alexander

Return of the Wolf!

In 1995, packs of wolves were reintroduced to Yellowstone National Park and Idaho under the special, more relaxed rules that apply to “experimental, non-essential” populations under Endangered Species Act (ESA). The wolves have thrived and are now firmly established in both regions.

Last week, owners of the High Lonesome Ranch near De Beque, Colorado called the Colorado Division of Wildlife to confirm the presence of a wolf pack that they believe has taken up residence at the ranch. Workers have reported wolf sightings, scat, and howls on this hunting and fishing preserve in western Colorado. Biologists sent animal droppings to the University of California – Los Angeles for DNA testing and the results are not yet known. Federal officials claim they haven’t yet seen sufficient evidence. But if the presence of wolves in Colorado is confirmed, they will, ironically receive a much higher level of protection than currently exists for Wyoming and Idaho wolves, courtesy of the Endangered Species Act.

Before our society began to truly appreciate the importance of biodiversity, the federal government funded bounty hunters who eradicated all wolves in Colorado by the 1940’s. Similar efforts throughout the country pushed the gray wolf species dangerously close to extinction.

While ranchers and wolves have had a tumultuous history, Paul Vahldiek, owner of the High Lonesome Ranch, says he welcomes the return of the wolf. “It seemed logical to me, based on what happened in Yellowstone National Park, that keystone species like wolves might have a positive effect on biodiversity and restoring the health of aspens on this property,” Vahldiek said.

Others, including rural residents from surrounding states where wolves have been reintroduced, do not share Vahldiek’s enthusiasm, claiming that wolves have devastated livestock herds and threatened human lives. In Idaho, State Representative Dick Harwood, R-St. Maries introduced a bill on Monday encouraging the governor to declare a state of emergency and require the Idaho Department of Fish and Game to use “any means” to reduce wolf numbers.

Wolves and other predators play a very important role in biodiversity. By helping to keep ungulates such as elk and deer on the move wolves may be the answer to the widespread aspen die-off occurring throughout the Rocky Mountains.

Biologically speaking, wolves can live just about anywhere people allow them. As a legal matter, wolf recovery in Colorado will depend on the ESA and the success of the state and federal governments in adhering to the sometimes inflexible requirements in that law. But ultimately, wolf recovery in Colorado depends on the good stewardship of property owners like Paul Vahldiek and on all Coloradoans, whose informed opinion can give the wolf a fighting chance on social and political fronts.
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Judson Brehmer
Project Manager, Red Lodge Clearinghouse

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.