Spring 2003. How the administration is taking apart environmental regulations one rule at a time. Big trees on the block in California national forests.

Rules, Rules, Rules, Rules

Rules, rules, rules. The U.S. Forest Service says it is paralyzed by rules. Forest Service Chief Dale Bosworth, a former forest planner, has made ending “analysis paralysis” his premier goal. To that end the Forest Service and the Bush administration proposed a barrage of rule deletions and amendments during the winter holidays. Here is our take on the proposed i dotting and t crossing.

The National Forest Management Act of 1976 broadened the Forest Service’s perspective beyond cutting trees by requiring the agency to involve the public in writing a plan for each national forest. Rules written in 1979 and revised in 1982 imposed limits on logging to protect water quality, soil productivity, scenery and fish and wildlife habitat.

The most important of the act’s rules requires that forest plans protect viable populations of native species. This viable population rule was the centerpiece of litigation that protected 8 million acres of ancient forest spotted owl habitat. No single sentence of the federal government’s voluminous regulations has had a more profound effect on reducing national forest logging from 12 billion to less than 3 billion board feet a year.

Bush proposes to eliminate the viable population rule. The last time the rule was proposed for the scrap heap, in 1982, a Democrat-controlled Congress overruled the Reagan administration. No such luck this time around. The fate of this critical rule will be decided in the courts.

The National Environmental Policy Act of 1973 requires federal agencies to tell the truth about the environmental impacts of their actions. Its rules permit agencies to exempt routine maintenance actions, such as campground cleanup, from NEPA’s disclosure requirement. Such actions are called categorical exclusions because they exclude entire categories of agency actions from NEPA’s environmental analysis process.

However, as only the government can, categorical exclusions themselves have exceptions, called, appropriately enough, extraordinary circumstances. These include, among other things, any adverse effect on a threatened or endangered species, steep and unstable hillsides, floodplains or archaeological sites. Thus an otherwise categorically excluded action must be assessed for its environmental consequences.

The Forest Service’s list of extraordinary circumstances, although admittedly not exclusive, omits several significant circumstances, such as any consideration of sensitive species. Sensitive species are those that a regional forester has identified as needing special management in order to prevent them from becoming threatened or endangered. Of course, any extraordinary circumstance will be effective in initiating an environmental review only if the Forest Service carefully examines the proposed project area for such circumstances. The Forest Service has been known to rely on inadequate databases and maps instead of conducting the detailed fieldwork necessary to know what’s out there.

The Forest Service has proposed three new categorical exclusions for activities that 1) reduce hazardous fuels, 2) restore burned forests and 3) log fewer than fifty acres of green timber or fewer than 250 acres of dead timber.

The hazardous fuels reduction activities include prescribed fire, forest thinning and livestock grazing. The new categorical exclusion would permit these activities without environmental analysis regardless of the number of acres proposed to be burned, thinned or grazed. So long as the Forest Service justifies its burning, logging or livestock grazing to reduce hazardous fuels, the agency will escape disclosure of environmental effects to the public.

The post-fire activities the Forest Service proposes be categorically excluded from environmental analysis include reseeding, fence construction, culvert repair, installation of erosion control devices and road and trail repair where necessary to ameliorate the effects of wildfire or firefighting. In Forest Service vernacular, these are projects done under the rubric of burned area emergency rehabilitation, a program for which the Forest Service has a special pot of congressional money.

Reseeding with nonnative seed can introduce noxious weeds into the forest that compete with reestablishment of native grasses, forbs, shrubs and trees, and there’s scant evidence that post-fire reseeding helps to control erosion or prevent floods. Erosion control devices, generally hay bales along creeks and dead trees felled along hillside contours, are also of dubious utility. And hay bales can introduce noxious weeds into the forest environment. In sum, there’s no reason to believe, as the Forest Service proposes, that these post-fire projects have no adverse environmental impact. They do, as has been well documented by the Forest Service’s own research. See “Evaluating the Effects of Post-Fire Rehabilitation Treatments” at www.fs.fed.us/rm/pubs/rmrs_gtr63.pdf. The third categorical exclusion rule, for logging fewer than fifty acres of live timber or 250 acres of salvage timber, has its genesis in a 1999 court ruling that declared this rule’s predecessor illegal. The court determined the Forest Service had no rational explanation for why logging of up to one million board feet and associated road construction of up to one mile would never have a significant environmental impact.

The new rule replaces its predecessor’s timber volume ceilings with acreage limits. It also reduces road construction from one to one-half mile and requires that such roads be “temporary.” As with the other categorical exclusions, an adverse extraordinary circumstance would trump the rule’s allowances and require an environmental analysis.

While it is fair to say that most projects falling within the scope of this small harvest exclusion will prove environmentally insignificant (so long as the Forest Service scrupulously adheres to the extraordinary circumstances exceptions), one must wonder what the agency seeks to hide by eliminating all citizen appeals of logging performed under this categorical exclusion. A 1992 law guarantees citizens the right to appeal all decisions that implement forest plans. Now the Forest Service is trying to carve out an exception to that law for so-called small timber sales.

Speaking of the 1992 law, the Forest Service has proposed new regulations to implement it, too. The law, optimistically called the Forest Service Decisionmaking and Appeals Reform Act, passed Congress in response to an earlier Forest Service proposal to eliminate all citizen appeals of its decisions. Now the Forest Service has proposed to scale back citizen oversight by limiting the kinds of decisions that may be appealed.

Not subject to appeal under the new rule would be any decision that is categorically excluded from environmental analysis. Because of the proposed changes in the categorically excluded activities discussed above, the new appeal rule would allow logging of less than fifty acres of live trees or 250 acres of salvage timber to be immune from formal citizen protest, except in a court of law.

In addition, the new rule would exempt from appeal any decision made by the secretary or undersecretary of agriculture. The Forest Service tried this gambit when it sought to exempt salvage logging on Montana’s Bitterroot National Forest from appeal by asking Undersecretary of Agriculture Mark Rey to sign the decision. The federal district court slammed the Forest Service for its sleight-of-hand, pointing out that the 1992 law creates a right to appeal decisions implementing forest plans, regardless of who signs the decision. The new rule flies in the face of the district court’s ruling, presaging what will likely be a Bush administration effort to rewrite the 1992 law in the new Republican-controlled Congress.

There’s little chance the Forest Service, given the present administration, will be dissuaded from adopting these new rules. The net effect of the rule changes will be lower environmental performance standards, fewer opportunities for public participation and less public accountability. —Andy Stahl

The Push to Cut Big Trees, California Style

In the last days of the Clinton presidency, the U.S. Forest Service approved a far-reaching management plan known as the Sierra Nevada Framework. Hailed by many environmentalists as protective of the region’s natural resources, the framework guides management of eleven California national forests.

Today the framework is under attack. When Jack Blackwell, a Bush administration appointee, took over as California’s top forester, he assembled a review team to find ways to make the framework “consistent” with the latest science about “fireproofing” forests. At press time, Blackwell appeared set to make public his review’s findings. He has been hinting about “a major shift in how public forests are managed across California.”

Blackwell says the framework is rife with conflicting language and “overlapping prescriptions” for spotted owls and other wildlife. Such conclusions are not surprising given the grumbling from Blackwell’s line officers. Many of his forest supervisors and district rangers—the people charged with implementing the framework—have complained that it won’t work. Their most common complaint has been the guidelines designed to ensure the viability of the California spotted owl.

Blackwell wants his rangers to thin brush and trees to reduce wildfire danger, but he claims they are hamstrung by owl guidelines, restrictions on cutting trees bigger than twenty inches in diameter and too much emphasis on prescribed fire.

In December, the Plumas and Lassen national forests teamed up with the research branch of the Forest Service to propose a study of spotted owls and the effects of logging and fuel treatments on nearly one-half million acres. The study is long term and can’t be expected to change what Blackwell plans, but it is indicative of the push to cut big trees.

The defensible fuel profile zone strategy is one of several fire and fuel treatments to be evaluated. Robert Olson, a retired fuel management officer from the Lassen National Forest, helped create the strategy about ten years ago. Yet he opposes the study because he says it alters his original concept by including big trees. The new study includes treatments that would log trees up to thirty-four inches in diameter. “This is only about making money,” Olson says. “It’s not ecosystem management.” Cutting trees of this size has little to do with reducing wildfire risk.

The Quincy Library Group, made up of environmentalists and timber industry representatives, opposes the study for different reasons. George Terhune, a Quincy member, says the study must adhere to the owl guidelines under the Herger-Feinstein Act. Although Terhune supports relaxing the guidelines, he believes this study is not the right vehicle for doing so.

Controversy is certain. If a Forest Service study cooperatively arranged with agency research scientists generates this level of concern, imagine the uproar when under the guise of reducing fire risk, the Forest Service shifts to logging bigger trees throughout California. —Bob Dale

Forest Magazine | FSEEE