Draft Forest Planning Rules: A first look

Posted: Aug 20, 2019

This entry has been updated substantially here, where most prior comments have been addressed.

The updated version was developed at the conclusion of the National Planning Rule Forum held in Washington, D.C. on March 10, 2011. To the extent possible, it reflects the comments and questions raised at that forum.

By Mark Squillace, Director, Natural Resources Law Center, University of Colorado at Boulder

The much-anticipated draft Forest Service land use planning rules were published in the Federal Register earlier this month. Unless the comment period is extended, the public will have until May 16, 2011 to submit their comments on the proposed rule.

There is much to like about the new draft rules, but as with any rules this important and this complex, there is also cause for concern. Set forth below is a brief history of the Forest Service’s land use planning rules along with my first take on the draft rules and some suggestions for public comments.

Background

Two reports released in the early 1970’s – the 1970 Bolle Report, named for Arnold Bolle, the head of the Department of Forestry at the University of Montana, and the 1972 Church Report, named for Senator Frank Church from Idaho – had been highly critical of the Forest Service’s timber management practices. The Bolle Report, for example, had criticized the agency for its “overriding concern for sawtimber production.” A UNIVERSITY VIEW OF THE FOREST SERVICE, S. Doc. No. 92-115 (1970). The Church Report had focused much of its attention on the ubiquitous clear-cutting practices that the Forest Service had approved in the Monongahela National Forest in West Virginia, and led to the development of the so-called “Church guidelines" for limiting the size of clearcuts.

These two reports led to pressure for legislative reform and in 1974 Congress passed the Forest and Rangelands Renewable Resources Planning Act, which required, among other things, decennial reports on the renewable resources of the national forests, and “land and resource management plans” for each forest unit. In the meantime, however, the Izaak Walton League had seized on the information from the Church report to sue the Forest Service over its clear-cutting practices. The League prevailed in the district court, and then famously won on appeal to the Court of Appeals for the Fourth Circuit.

In West Virginia Division of Izaak Walton League v. Butz, 522 F.2d 945 (4th Cir. 1975), the court held that the 1897 Forest Service Organic Act had limited logging on national forests to selective cutting of methods of “dead and matured trees.” This limitation was anathema to the timber industry and perhaps to the Forest Service itself, which, as noted previously, had arguably become a captive of the sawtimber industry.

The initial efforts by the Forest Service to simply amend the Organic Act to remove the limitations on logging were beaten back in favor of the broad-based reforms approved in the 1976 National Forest Management Act (NFMA). 30 U.S.C. §§1601 et seq. NFMA sets comprehensive standards for land use planning on national forests. Regarding logging and clear-cutting in particular, the law makes clear that timber harvesting is not allowed unless water and soil resources are adequately protected, and unless harvested lands “can be adequately restocked within five years.” 36 U.S.C. §1604(g)(3)(E). Moreover, clear-cutting is only allowed in limited circumstances and in a manner that assures the protection of other forest resources. 36 U.S.C. §1604(g)(3)(F).

NFMA also required the Forest Service to convene a “Committee of Scientists” comprised of outside experts who could assist the Forest Service in developing regulations to implement the requirements of NFMA. The first Committee published its findings and recommendations in 1979, and this led to the adoption of the 1982 planning rules that largely govern forest planning to this day. Efforts to change these rules by both the Clinton and second Bush Administrations led to the promulgation of three new sets of final rules but due to lawsuits and changes in Administrations, neither of these rules were ever actually implemented. The draft rules published on February 14, 2011 represent the latest effort by the Forest Service to amend its planning process.

Before turning to the draft rules, one other important issue should be considered. In the humble opinion of this author, land use planning on public lands generally, and on national forest lands in particular, has gotten out of hand. In an ideal world with unlimited time and resources, careful planning down to every detail might make some sense. In the real world, the amount of time and money spent on planning represents a trade-off between the amount available for lower levels of planning (for the development and use of particular resources) and most importantly for project level decisions.

When public land use planning first became prominent in the mid 1970s many agencies' officials thought that the plans could be used to guide most or all of the project-level decisions that would subsequently be made, to the point that little further study and analysis would be necessary. Experience has proven these expectations wrong. In fact, it is probably not possible, and certainly not practical, for agencies to anticipate every issue, problem, or project that might arise during the planning cycle.

In light of this fact, and in light of the critical importance of resource-level and project-level planning, commenters should be wary of a planning process that tries to do too much. Plans should offer a vision for the forest and spell out with some particularity what types of uses will and won’t be allowed on particular zones within the forest.

They should also address the management of certain resources – such as water and wildlife – that necessarily require landscape- or basin-level planning. Generally, however, they should avoid the unproductive practice that has historically been used: that of setting particular standards and guidelines for the development and use of particular resources.

Don’t forget that forest management is a zero sum game. For every dollar spent on unit-level planning, a dollar will not be available for the thorough and considered analysis that may be needed at the project level.

A Section-by Section Analysis of the Draft National Forest Planning Rules

This section offers a tour through most sections of the proposed rules in chronological order. A brief description of the section is included along with my suggestions for possible comments. This is not intended as a comprehensive assessment of every subsection; it skips section 36 CFR §219.13-18, because I had no comments on those provisions, and it offer a single general comment on the subpart B rules that deal with objections to forest plans.

Subpart A: National Forest System Land Management Planning. 

The proposed structure for forest planning (proposed 36 CFR §219.2). Under the draft rules, land management planning is carried out at three levels: (1) national strategic planning; (1) unit level planning; and (3) project or activity planning. The draft rules appropriately focus on the middle level of planning – unit planning or plans developed for individual forests. They should arguably, however, add another level of planning at the resource-level.

Many forests already develop resource-level plans such as travel management plans, but the rules should arguably recognize the possible value of adding this additional layer, not for every resource in every forest, but where the particular resource would benefit from this extra focus, where, for example, it represents a particularly important activity in that forest.

The preamble to the draft rules briefly discusses comments received regarding sub-unit level planning – for example at the ranger district or watershed level – and suggests that the draft rules would allow but not require such planning. The idea of resource-level planning, however, is different and should perhaps be considered both to reflect the reality of how units of the forest currently operate and to recognize the potential value of focused attention on critical forest resources.

Science and planning (proposed 36 CFR §219.3). The proposed rules require the “responsible officer” (typically the forest supervisor), to "take into account the best scientific information throughout the planning process,” to “determine what information is the most accurate, reliable, and relevant to a particular decision….,” and to document how the best science was considered in every assessment report, plan decision document, and monitoring report. (I will have more to say about these particular documents later.)

While these new requirements go a long way toward requiring that Forest Service decisions are based upon the best science the proposed rules actually require only that the best science be considered. The rules do NOT require that the best science support the decisions that the agency makes. Perhaps it is impractical to make every decision based upon the best science, but the agency should at least be required to offer a rational explanation for making a decision that is not supported by the best science. I would encourage comments to this effect.

Public participation (proposed 36 CFR §219.4). While I have concerns about the appeal process established under Subpart B of these draft rules (described below), the draft rules generally do a good job of encouraging public engagement in planning decisions. Indeed, the agency should be congratulated, not only for the language on public participation in these draft rules, but also for the open and inclusive process that they have used to develop these rules. No doubt this process was expensive, but if it leads to final rules that avoid much of the conflict and controversy (and litigation!) that characterized the previous two sets of rules the expense will be well worth it.

Planning framework (proposed 36 CFR §219.5). The proposed rules do a nice job of breaking down the unit planning process into three stages – (1) assessment; (2) developing, revision, and amending the plan, and (3) monitoring. Assessment is the process for gathering the data necessary to prepare the plan. The planning process itself will require an EIS – something that has been historically required but which was omitted from the Bush era rules. This is an important improvement because it assures that the agency will develop and analyze a reasonable suite of alternative visions for each national forest. See 40 CFR 1502.14.

Monitoring receives far more attention in these draft rules than it has in previous rules and that is generally a very good thing. Still, there remain some serious problems with the draft rules in terms of their monitoring requirements and my concerns are set out in the various parts of the rule that address monitoring. In the context of the planning framework, the draft rules require monitoring at the unit level and over a broader-scale – presumably even across public land boundaries. But the draft rule oddly states that “unit level monitoring is informed by the assessment phase[sic] developed during plan development.”

While the baseline data developed during the planning process will surely be useful to monitoring, it is not at all clear that the Forest Service intends to treat the assessment process as ongoing and dynamic – one that constantly demands that the assessment to be revised to reflect new information and new data. Indeed, monitoring will not be especially meaningful if new data is not gathered and analyzed to determine wildlife population trends, changes in ecosystem health, and simply to reflect the better information about resources that will become available for each forest over time. Ideally, each forest will have a program requiring the agency to gather new information about forest resources on a regular basis, and that they use that information to update their assessments and, where necessary, to amend the forest plan. 

The draft rules also require that monitoring reports be prepared every two years. Currently, monitoring reports are prepared annually and then compiled over five years but, in my experience, the annual reports are not especially good. It would be a worthwhile trade-off to cut the number of reports in half if we could see an improvement in the quality of these reports. The draft rules, however, inspire no confidence that this will happen. The main problem with the monitoring reports is that they do not necessarily trigger action, even where the reports make clear that such action is needed. As described in more detail in conjunction with other sections of the proposed rules, the Forest Service should commit itself to address the problems that it identifies in the monitoring reports.

Assessments (proposed 36 CFR §219.6). The proposed rules commit the Forest Service to engaging the public on their assessments and they contain a reasonably good discussion of the scope of assessments, including a requirement to “[i]dentify the distinctive roles and contributions of the unit within the context of the broader landscape.” The proposed rules also note the important role that the assessment should play in identifying “potential monitoring questions or information needs.” But as noted above in the discussion of the planning framework, the draft rules are deficient in their failure to view the assessment as a dynamic document that is constantly being revised to reflect the best available information.

New plan development or plan revision (proposed 36 CFR §219.7). The draft rules continue the long-standing practice of requiring that plans contain “standards” and “guidelines” that constrain or guide decisions on individual projects or activities. As I read NFMA, unit plans are supposed to include standards and guidelines set out in NFMA itself (16 U.S.C. §1604(c)) and these standards and guidelines are supposed to be reflected in the planning rules. 16 U.S.C. §1604(g).

Additional standards and guidelines are not, however, required to be included in the plans themselves beyond those specific standards and guidelines required by the statute itself. In my view, requiring the inclusion of non-statutory standards and guidelines in land management plans is a big mistake for three important reasons.

First, they unnecessarily complicate the plans and make it more difficult for the interested public to engage the Forest Service on what ought to be the primary reason for the plan – setting forth a vision for the particular forest unit. Second, they bog down the planning process and tax the agency’s resources in a way that makes it far less likely that the agency will have sufficient resources to address project-level activities adequately when they arise.

A final and related problem with non-statutory standards and guidelines is that they lead both the agency and the public to think that the Forest Service has addressed the site-specific issues that invariably arise when the agency is considering a proposed project. In fact, the generic standards and guidelines that have been included historically in unit plans are a poor substitute for the site specific analysis that ought to be conducted when a new project is proposed. Indeed, the standards and guidelines rarely serve as an adequate constraint in agency action. Because they are general in nature, the Forest Service is typically loath to make them very strict. And if it ultimately turns out that even these modest constraints are found to unduly limit project level actions, it is simple enough to amend the plan to accommodate the proposed action.

Simplifying our forest plans by liberating the agency from the responsibility to prepare standards and guidelines would allow the Forest Service and the public to engage in a more meaningful way over the vision for a forest unit, and it would free up agency resources to give adequate consideration of project level decisions when they are proposed.

Some people may object to this suggestion on the grounds that it will remove important constraints on project-level actions before the pressures to approve those actions are on the table. But in my experience, the restrictions on projects that are necessary to protect the forest’s resources are far easier to see in the context of a site-specific proposed action. And the very absence of standards and guidelines will allow the public to demand a more fulsome analysis of the site-specific impacts associated with individual projects.

I have three other thoughts about this important section of the draft rules. First, subsection (d)(1)(v) requires the agency to identify lands that are suitable or not suitable for particular uses, including timber production. It will be far more productive for the public to engage the agency on this aspect of planning than on the standards and guidelines for such activities.

Second, the proposed rules at subsection (e)(1)(iv) require the plan to “[c]ontain information reflecting proposed and possible actions that may occur on the unit during the life of the plan including the planned timber sale program.” The draft rules make clear, however, that this information is not an appealable action. I can understand that some parties may want some idea as to the amount of timber that is likely to be available over the life of the plan, but since the provision of this information does not reflect an enforceable commitment by the agency, its inclusion in the plan is most likely to mislead the public.

As described previously, it may be appropriate for the Forest Service to develop resource level plans that are in between the land management plan and the project level actions. But the agency should not bog down the plan with this type of information that does not reflect an enforceable commitment.

Finally, I suggest that the agency rewrite subsection (c)(2)(vi). It seems to express an important point about the agency’s desire to allow compatible and to avoid incompatible uses, but I found the language extremely confusing.

Sustainability (proposed 36 CFR §219.8) This is an interesting new section that would benefit from clarification. First, the requirement to account for landscape scale integration would benefit if it made clear that such accounting should occur regardless of land ownership. Second, the requirement to account for stressors, including climate change, is important but ought not be limited to the plan itself. Most importantly, the monitoring plan needs to be designed to identify possible stressors on the system, including climate-related impacts, so that the adaptation that is otherwise encouraged in the rules can be carried out. Third, the language in subsection (a)(3) on riparian areas is unclear. The draft rules talk about a “default width” for protecting riparian areas but are quite vague regarding the types of protection required. While I appreciate that the default width may have to vary depending on the forest type, rainfall, and soil factors, the rules should make clear that the protection intended for riparian zone is no surface disturbance. While there might be a need for some limited exceptions for emergencies, or if necessary to protect other natural resources, the rules should not allow exceptions.

Finally, the draft rules (subsection (b)(3)) require that plans account for “multiple uses … that contribute to local, regional and national economies in a sustainable manner.” This language should be revised to reflect the statutory requirement from the Multiple Use Sustained Yield Act that forest resources be managed so that they can be sustained in perpetuity.

Diversity of plant and animal communities (proposed 36 CFR §219.9)

This section warrants some substantial rethinking and clarification. The general intent behind this section seems appropriate. Efforts to maintain the diversity of native species, contribute to the recovery of threatened and endangered species, conserve candidate species, and maintain populations of “species of conservation concern” are all laudable goals. But it is hard to see how any of these requirements will be especially meaningful in the context of land use planning. The first subsection (subsection (a)) requires the agency to “maintain the diversity of native species.” Unfortunately, this requirement seems vague and not particularly meaningful. Is the agency responsible for maintaining the diversity of every native species? If not, who decides which native species warrant protection? If climate change requires adaptation in such a way that the protection of certain native species does not make sense, is the agency free to simply ignore this requirement? It would certainly seem problematic to maintain the health of a native species in decline because the ecology of an area is changing, perhaps due to climate change, but making such a judgment is fraught with difficulties since the decline of species is often due to myriad factors.

Subsections (b)(1) and (2), which focus on species that are listed under the Endangered Species Act (ESA), really adds nothing to the requirements of that law. In particular, Section 7(a)(1) of the ESA already requires all federal agencies to conserve listed species. Conserving candidate species (that is, species being considered for listing under the ESA (see 50 CFR 424.12(d)) is not specifically required by the ESA and the Forest Service should be applauded for extending its conservation responsibility to such species. But it would be foolhardy to ignore such species during planning since management flexibility could be severely compromised if such species are ultimately listed as threatened or endangered..

Subsection (b)(3) requires the agency to “[m]aintain viable populations of species of conservation concern.” The phrase “species of conservation concern,” is defined at section 219.19 as a species that is not listed or a candidate for listing under the Endangered Species Act, but whose “capability to persist over the long term in the plan area” is nonetheless in doubt. As with candidate species, it makes good sense for the Forest Service to pay close attention to species that are in decline or are at risk. But the rules do not impose any particular obligation to identify any particular species of conservation concern, and it would not be surprising if the responsible officials limited their designations to candidate species, since they will be required to protect these species anyway. More troubling is the fact that the initial statement in this section of the rule, which requires the agency to maintain viable populations of species of conservation concern, is followed by a sentence that I found largely unintelligible, but which clearly seems designed to undercut the obligation to maintain viable populations:

"Where it is beyond the authority of the Forest Service or the inherent capability of the plan area to do so, the plan components must provide for the maintenance or restoration of ecological conditions to contribute to the extent practicable to maintaining a viable population of a species within its range." Proposed 36 CFR 219.9(b)(3).

If the intent of this language is to give the agency a pass at maintaining viable populations of species of conservation concern, it needs to explain and justify this position more clearly and transparently. First, it is entirely unclear how such an obligation would ever be beyond the agency’s authority.” It is a bit easier to see how a plan area might be inherently incapable of sustaining viable populations. And if the conditions that give rise to this situation are caused by human disturbance then restoring the ecological integrity of these areas makes sense. But the language is so equivocal as to make this requirement virtually meaningless.

Even more puzzling is the agency’s separate treatment of a new category of species described as “focal species.” These are defined at section 219.19 as “a small number of species selected for monitoring whose status is likely to be responsive to changes in ecological conditions and effects of management….” Oddly, however, these species are only mentioned again in the context of monitoring and are not part of the rule providing for the diversity of plant and animal communities.

Moreover, as with “species of conservation concern,” there is no requirement to actually designate focal species and the definition is so vague that it is impossible to know what the agency has in mind. Interestingly, the preamble to the rule contains a lengthy discussion of the focal species idea. That discussion makes clear that “several categories of species … could be used to inform the selection of focal species, [including] … indicator species, keystone species, ecological engineers, umbrella species, link species, species of concern, and others.” But the preamble goes on to say that it does not expect “that a focal species [will] be selected for every element of ecological conditions.” Rather, the agency may choose “to monitor a small number of focal species … to properly assess the relevant ecological conditions across the planning area, within the financial and technical capabilities of the Agency.”

No doubt, preserving the integrity and stability of the biological communities on a forest is among the most difficult challenges facing the agency. Perhaps this explains the lack of specificity in the draft rules, and their failure to describe with more clarity how they intend to accomplish that goal. And given the expense involved in gathering reliable population data, the agency’s unwillingness to commit itself to monitoring populations of particular species is understandable.

But surely more can be expected here. With that in mind, I would like to make the following suggestion. At the heart of this suggestion is a request that the agency commit itself to mapping the ecosystems of the forest and the surrounding landscapes, including portions of landscapes that are outside forest boundaries. These maps should include information about the condition of these ecosystems and their potential for restoration. So, for example, each area could be identified as intact, modestly degraded, moderately degraded, or severely degraded. In addition these areas could be described as having low, moderate or high potential for short and long term restoration.

These maps should also contain information about whether individual areas serve as actual, probable, or possible host to listed species, candidate species, species of conservation concern, and focal species. In their first iteration, these maps will be imperfect. But the Forest Service already has much of the information needed to produce these maps, and the maps will surely get better over time. The information contained in these maps should then be used to inform the collection of new data, including, where appropriate, population data for various species. Ideally, this mapping exercise will allow the Forest Service to better determine whether it is maintaining viable populations of the various species that it is watching, and it will also help inform changes to the assessment, and amendments to the management and monitoring plans developed for each forest. Finally, these maps could form the basis for a restoration plan for the forest. Which areas should be targeted first and why? Which areas are most critical to conserving important species? In what areas would restoration provide the most bang for the buck?

Most of us who have been following forest planning for many years understand the critical role of species conservation to forest management. We also appreciate the difficult, even daunting task that the agency faces. But the draft rules do not go nearly far enough to confront the problem. Much more needs to be done, and I hope that this discussion and recommendation will help lead to some significant changes to the current draft rules.

Multiple uses (proposed 36 CFR §219.10) The draft rules conspicuously omit any mention of the roadless rule and are arguably in conflict with that rule. While the legal status of that rule may remain in some doubt, this is not an issue that can just be ignored without possibly misleading the public.

Timber requirements based on the NFMA (proposed 36 CFR §219.11) Subsection (a) of this section of the draft rules requires the agency to determine those lands not suitable for timber production and prohibits timber harvesting on these lands for ten years. It provides an exception, however, from this prohibition for “salvage sales or sales necessary to protect other multiple use values.” The exception renders the prohibition virtually meaningless. Any proposed sale could be justified on the grounds of protecting other multiple use values, and the history of salvage sales on national forest lands does not inspire confidence that the agency will use this exception only in extraordinary circumstances.

If agency officials believe that changed conditions support logging on an area that was deemed unsuitable for logging when the plan was developed it should have no trouble amending the plan to reflect this new situation. This will ensure that the important forest values that gave rise to the original decision to prohibit logging in these areas are duly considered in a public planning process. (The protections included in subsection (b) of this section of the draft rules do not overcome this objection.)

The maximum size limits for clearcuts, which may be as large as 100 acres for the hemlock-Sitka spruce forests in southeastern Alaska, are already pretty extreme, and the preamble to the draft rules offers no scientific justification for these standards. But to then allow for larger cut openings without any meaningful standards as the draft rules do in subsection (d)(3)(i) seems entirely unreasonable. Indeed, under the draft rules it appears that the possible economic benefits of larger clearcuts would be a sufficient reason in itself to justify such clearcuts.

Given the importance that the draft rules otherwise attach to the role of science in planning, it seems incongruous for the agency to fail to offer a scientific basis for its choices and to refuse to demand that ecological health be considered an overriding factor in the choice of clearcut size.

NFMA (16 U.S.C. §1611) and subsection (c)(4) of the draft rules require plans to limit the quantity of timber that can be removed annually in perpetuity on a sustained yield basis….” NFMA allows but does not require an exception where consistent with overall multiple use objectives.

While it may be implied, the rules should be amended to require the agency to first identify and then limit the amount of timber that can be removed. The rules should also make clear that the amount identified should reflect the constraint imposed under the plan. So, if timber production is not suitable for lands within the forest for whatever reason, these lands must not be included in the timber base used to calculate sustained yield. Moreover, the agency should include in the rules a clear requirement for a scientific assessment of the suitability of allowing a forest unit to exceed sustained use limits in light of climate change and other stressors.

Finally, the draft rules duck the question that has long-plagued the Forest Service – i.e., whether the agency should approve below-cost timber sales. The rules do allow the responsible office to designate lands unsuitable for timber production based upon economic factors, but they certainly do not require that lands be designated as unsuitable simply because they cost the government more money than they return in the form of timber revenues.

While there may be legitimate non-economic reasons for approving below-cost sales, those reasons should be articulated and opened for public discussion and debate, and the rules should make clear that below-cost sales will be allowed only in exceptional circumstances.

Monitoring (proposed 36 CFR §219.12). As noted previously, it is great to see that the agency is paying much more attention to the importance of monitoring. Unfortunately, the draft rules seem designed to ensure that monitoring will continue to be a meaningless exercise. The critical subsection is (d). It requires the agency to prepare a biennial assessment and written report that "must indicate whether a change to the plan, management activities, or monitoring program may be warranted based on the new information; whether a new assessment should be conducted; or that no amendment, revision, or administrative change is needed."

Unfortunately, where the agency finds that a change may be warranted or that the assessment should be revised, its failure to follow-up on such findings is not reviewable. Indeed, the agency makes clear that the “monitoring evaluation report is not a decision document representing final agency action and is not subject to the objection provisions of subpart B.” Unless this language is changed the public can fairly question whether monitoring will amount to anything more than a paper exercise.

Following are several ideas for improving the draft monitoring rules. Changes like these would show that the Forest Service is serious about improving its monitoring program.

First, the Forest Service should commit to using the biennial monitoring report to update the assessment without delay. This would help make the assessment the dynamic document that it ought to be. Second, if the monitoring report leads to the conclusion that changes to the plan, management activities or monitoring program are needed, the agency should commit itself to implementing these changes expeditiously, and should refuse to approve proposed projects or actions that would be inconsistent with the findings in the monitoring report until a final decision is made about the changes that are indicated by the monitoring plan. Third, monitoring should be required to include information on populations and population trends of the key species in the forest. (Elsewhere, I have suggested that monitoring for “focal species” might offer a useful surrogate for a broader species monitoring program, although the term “focal species” will need to be redefined to ensure that such species offer a picture of forest health for all ecological conditions on the forest.)

Finally, the Forest Service should change the language of subsection(d)(4) and make clear that the monitoring evaluation report will be treated as a decision document for purposes of determining whether and how the assessment should be changed (this assumes that the agency accepts the recommendation that the monitoring report should be used to update the assessment), and for purposes of the decision that changes to the plan, management activities, or the monitoring program may or may not be warranted.

Definitions (proposed 36 CFR §219.19) The draft rules define a new term “focal species” to mean “a small number of species selected for monitoring whose status is likely to be responsive to changes in ecological conditions and effects of management….”

As defined, the term “focal species” appears to be designed to serve the role that “management indicator species” (MIS) served under the 1982 forest planning rules. I think it is a good idea to retain some provision that allows the agency to use particular, carefully chosen species to assess overall forest health, and I have previously suggested that the draft rules on the diversity of plant and animal communities (proposed 36 CFR §219.9) use this approach.

While the MIS or focal species approach is not perfect, the difficulty and expense of gathering population data makes it impractical to do so for all of significant forest species. Properly implemented, the MIS concept offers a good surrogate for determining ecosystem health. Unfortunately, the proposed definition of “focal species” inspires no confidence that the approach will serve its intended purpose. If “focal species” are to be used to assess ecological conditions and forest health, a sufficient number of species must be chosen to ensure that all of a forest’s ecological systems are well represented.

Subpart B: Pre-decisional administrative review process.

The draft rules purport to establish “an independent Forest Service review” process. In fact, the draft rules would continue the current practice of giving review responsibility to the line officer at the next highest administrative level. This is hardly the type of “independent review” that the public rightly expects of administrative agencies. A line officer is, by definition, not independent. He or she supervises the person who made the decision and almost certainly was in regular contact with that person while the decision was being developed.

Ideally, the Forest Service would establish a truly independent review body that answers only to the Chief, or perhaps the Undersecretary, and that is insulated from the day to day decisions that are being made by the responsible official.

Second, the draft rules do not allow objections by parties who have not participated in the administrative process. This seems like a reasonable restriction. The rules go further, however, and require that anyone filing objections must base those objections on the objector’s own formal comments, unless the objection arose after the opportunity for comment had closed. (The rules themselves seem somewhat ambiguous on this point but the preamble discussion of proposed 36 CFR §219.57 makes clear that the agency intends this result.) This will force every commenter who is even remotely considering an objection to coordinate with other commenters to be sure they are repeating the same comments that others have made, thereby preserving their right to object. Likewise, it will encourage multiple objectors to help ensure that the comments of each objector can be raised.

One can imagine that major arguments will ensue over whether an objector was a party to a particular comment, even though the comment was clearly made by someone. This is silly. If a prospective objector filed substantive comments they should be allowed to avail themselves of the comments filed by any other objectors.

Finally, the 30-day time frame for filing objections is absurdly short given that it apparently must include all of the legal and policy arguments and attachments that support the objections. While it is not unreasonable to require that the barebones objections be filed within 30 days, the agency should afford the objector a reasonable time to marshal their arguments. Indeed, there ought to be an opportunity to meet with the reviewing officer (see proposed 36 CFR §219.57(a)) before all of the arguments and supporting documents are filed. Even if this does not resolve all of the issues, it may limit or clarify the issues in a way that will make their resolution easier and more efficient.

The unfairness of the 30-day time frame can be seen by the fact that the reviewing officer is allowed 90 days to respond to the objections and has the discretion to extend that time period. To correct this problem, the rules should be changed to require that objections be filed within 30 days, but allowing the reasons for the objections and supporting documents to be filed within 30 days thereafter, with extensions to that later time frame available from the reviewing officer.

As I receive feedback on this draft review, and delve deeper into the draft rules, I will continue to revise this document.

Please contact me with your thoughts, comments, and questions: mark.squillace@colorado.edu.

To comment on the proposed Planning Rules, click here.

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