Spring 2002. Sierra Nevada framework reconsidered. Judge chastises government attempt to circumvent Bitterroot appeals.

Sideways Attack in the Sierra

It’s no secret: environmental initiatives finalized in the last days of the Clinton administration have not fared well in the first year of the Bush administration. The roadless rule and other policies that enjoy immense public support have been traveling a rocky road since Clinton left office.

One Clinton initiative, however, appeared to be enjoying survivor status. The Sierra Nevada Framework, a sweeping management plan aimed at protection of old forests, sensitive wildlife and aquatic resources across eleven California national forests, seemed reasonably safe politically. Then, on December 31, its survivor status vanished suddenly amid a quiet, unassuming announcement by California’s new regional forester, Jack Blackwell.

Nearly a year earlier, Blackwell’s predecessor, Brad Powell, made what many political pundits characterized as a courageous decision—one aimed at stemming the tide of natural resource losses and restoring ecological integrity across entire landscapes. Consistent with that aim, it called for a cautious approach to the aggressive logging program that some people claimed was needed to reduce fire risk in forests clogged with spindly trees and brush by decades of fire suppression. It was a decision most bureaucrats might have chosen to sidestep. Clinton was on his way out and the incoming president didn’t appear to share his enthusiasm for making regionally based decisions about how to manage national forests.

Powell characterized his decision as the right thing to do. Yet it may have cost him his job as California’s top forester. Today Powell oversees the agency’s national forest program in the more conservative northern region, based in Missoula, Montana. His transfer was probably the first public signal from the Bush administration that it had no intention of leaving Powell’s decision intact.

Other signals seemed more positive. In the fall, U.S. Forest Service Chief Dale Bosworth reviewed numerous citizen appeals and announced that he would uphold Powell’s Sierra decision—with one significant caveat. He wanted his new regional forester to review aspects of the Sierra plan addressing fire management to ensure that they incorporated any new information, including the “latest and best science.” He also wanted the plan reviewed for ways to “harmonize” it with the Quincy Library Group Forest Recovery Act. Whether the review would lead to wholesale changes in the plan was still anybody’s guess.

In late December, Undersecretary of Agriculture Mark Rey called a press conference about the Sierra plan. There appeared to be little reason for the considerable fanfare and the roomful of reporters asking questions that elicited mostly evasive answers. Rey used the time to simply reiterate that the Sierra Nevada Framework would stand, exactly in the manner specified by Chief Bosworth. One interesting item came out of Rey’s non-announcement: a promise that Blackwell would soon be sharing publicly an action plan for how he would conduct the review that Bosworth asked for.

The next announcement—the real one—came without fanfare days later. Forest Service Employees for Environmental Ethics was not invited, in contrast to the invitation we received for Rey’s empty pontification. On December 31, Blackwell stated that his review would be “broader” than the one Bosworth requested. Not only would he examine the fire management aspects of the plan, he would also assess “its effects on grazing, recreation and impacts to local communities.” In essence, he left little doubt that the intent was to make numerous changes in the plan, cloaked in words such as refine, adjust, monitor and adaptive management. We wonder why the administration didn’t undercut the plan altogether rather than run Forest Service employees through the wringer of review and analysis again.

Bosworth and Rey have complained a lot recently about the “analysis paralysis” that has pervaded the Forest Service and the need to streamline regulations. They may have a point—a bit more pragmatism about how to apply certain regulations might help get beneficial restoration activities to the ground more efficiently. However, the additional twelve months or more of analysis that Bosworth, Rey and now Blackwell have promised for a decision that was nearly a decade in the making appears to be one of the finest examples of analysis paralysis that the Forest Service has ever produced.

Are these guys to be taken seriously? Do they really want to rid the agency of analysis paralysis? Or is it only those kinds of analyses that favor more environmental protection that they seek to eliminate? We fear it’s the latter, and the next year holds more promise of sideways attacks from an administration that clearly understands that open warfare on the environment could spell political suicide in the fall election.—Bob Dale

Rey’s Gambit

Environmentalists 1, Undersecretary of Agriculture Mark Rey 0.

Six months into Rey’s administration of the U.S. Forest Service, his first decision, approving the Bitterroot salvage sale—the largest in history—was rebuffed by a federal judge after Rey asserted that the public had no right to administratively appeal it.

Environmental groups sued, arguing that the Forest Service Decisionmaking and Appeals Reform Act of 1992 guarantees citizens who commented on the draft timber sale proposal a right to appeal the final decision. Forest Service Chief Dale Bosworth and Rey concocted a novel legal theory—if Rey made the final decision, there would be no one to whom citizens could appeal.

In a scathing and blunt opinion, U.S. District Judge Don Malloy slammed the government. Calling the government’s rationale “mystical legal prestidigitation,” the court enjoined the Bitterroot sale until the Forest Service took citizen appeals. At this writing, the Forest Service had chosen to appeal Malloy’s ruling to the Ninth U.S. Circuit Court of Appeals.

Forest Service Employees for Environmental Ethics Executive Director Andy Stahl provided an expert affidavit on behalf of the environmental plaintiffs that explained timber quality and economic factors important to the court’s consideration of the case. FSEEE is also helping a Bitterroot National Forest employee who seeks to ensure that his scientific information concerning portions of the proposed salvage sale is accurately stated in the sale’s administrative record.

Malloy noted that the Forest Service could “completely circumvent the appeals process” for all timber sales “simply by having the Undersecretary of Agriculture sign any or all controversial project records of decision.” Given Bosworth’s and Rey’s public statements bemoaning “analysis paralysis,” and Rey’s January speech to Oregon loggers that he wants to fix the appeals process, that appears to be precisely their intent.

The government’s show of force at the court hearing, with no fewer than a half-dozen lawyers and eighteen witnesses, left no doubt about the importance of this case to the Forest Service. If Rey prevails on appeal, he will create a loophole through which he can drive a whole convoy of log trucks. A loss would, Rey reasons, strengthen his hand in Congress when he seeks to have the 1992 appeals law rescinded. Key to that fight will be Senator Max Baucus, a Democrat from Montana, who is under intense pressure from his state’s timber industry to cut the public out of Forest Service decision-making (see enclosed post card to Baucus).

The Bitterroot forest is no stranger to national controversy. A quarter-century ago, it made headlines when a committee chaired by the dean of the University of Montana’s School of Forestry attacked its clear-cutting and terracing of mountainsides. The so-called Bolle Report was one of the catalysts for passage of the National Forest Management Act of 1976, which guaranteed public access to a formal forest planning process.

The Forest Service has chafed under the scrutiny ever since. In 1992, the Forest Service proposed eliminating public appeals of timber sale decisions. The Forest Service reasoned that eliminating public appeals would “achieve administrative efficiencies in agency decision-making, reduce the uncertainty for communities and workers dependent upon Forest Service goods and services by minimizing delay in providing a stable supply of resources, remove impediments to economic growth arising from the current appeals process, and provide a reasonable assurance that the Forest Service has the ability to carry out programs authorized and funded by the Congress.” It would make logging on national forests easier.

Congress said no. As Malloy noted in his decision, “Congress wanted the opportunity for full democratic participation in Forest Service decision making when it created a statutory right to an administrative appeal. Neither the Secretary of Agriculture, the Undersecretary of Agriculture nor the Forest Service can take away a right the Congress granted or a process Congress demanded.” FSEEE couldn’t have said it better.

Forest Magazine | FSEEE