Draft Forest Planning Rule: Public comment ideas

Posted: Oct 17, 2017

By Mark Squillace, Director, Natural Resources Law Center

This current iteration of ideas 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.

The much-anticipated draft Forest Service land use planning rules were finally published in the Federal Register on February 14, 2011. Unless the comment period is extended, the public has until May 16, 2011 to submit comments on the proposed rule and the draft EIS that accompanied the 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 current take on the draft rules and some suggestions for public comments. I am updating these ideas regularly and I welcome your feedback.


Two reports released in the early 1970s – 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 captive to 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 under limited circumstances and in a manner that ensures 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, 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: 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. 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 resource- or project-level.

When public land use planning first became prominent in the late 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.

The bottom line is that the current planning process is too complex, too time-consuming, and too fraught with unnecessary decisions and choices that invite litigation.

The draft rules inspire no confidence that this situation will change in any meaningful way. Moreover, the complexity of the process stifles meaningful public engagement. 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 (which has historically been used) of setting particular standards and guidelines for the development and use of particular resources.

All of these problems can be overcome if the Forest Service did a better job of viewing the planning rules from the perspective of interested members of the public. What does the public really care about at the planning stage, and what would most effectively engage the public in the process? For me, the answer lies in the preparation of maps, and I offer this general comment to urge the Forest Service to require certain types of maps in the rules themselves and to discuss their importance to the planning process.

A “visioning” process requires visual resources. To that end, the final rules should require the preparation of appropriate maps. Maps have always been a part of the Forest Service’s planning process but particular maps have never been required. The draft rules never once mention maps or the need for them. With one important exception, anything that cannot be displayed on a map, is probably not important to the planning process. That exception involves the requirement to maintain viable populations of certain wildlife species and the obligation to protect and to conserve the habitat for those species.

Maps have been used most prominently in the planning process to describe, for the public, the uses that would be allowed or not allowed on particular tracts of lands throughout the forest.

Alternative visions for the forest, that make different designations regarding the suitability of lands for particular uses, are likewise displayed through the use of this type of “zoning” map. The draft rules are unclear about whether the Forest Service intends for this process to continue. Indeed, the draft rules only require that lands be designated as suitable or unsuitable for timber productions. Designation regarding the suitability of lands for other uses is optional (see 76 Fed. Reg. 8489). This must be changed. The suitability maps were the single most effective means for engaging the public on the alternative visions for a forest and they should be expressly required in the draft rules.

Beyond these zoning maps, additional maps should be required to display watersheds, ecosystems, and habitats for particular wildlife species. There should also be maps that show the current ecological condition of the forest landscape so that the public can track improvements or degradation of these landscapes over time. These maps can be designed as overlays so that the public can see how these landscape level resources interplay with the suitability designations for particular tracts of land.

Elsewhere in this analysis I elaborate on the importance of mapping for managing wildlife, and there are surely other resources that might best be described through maps. Admittedly, some of these maps might initially be crude but they will surely improve over time and, if maps are a good idea, then we should start developing them now.

The important point here is that the Forest Service should see planning more literally as a visioning process. If they do so, they will appreciate the importance of tools like maps that best describe the alternative visions that the agency is considering. I sincerely hope that the final rules better reflect the importance of maps in planning and I urge comments that will push the agency in this direction.

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

This part 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 and it skips section 36 CFR §219.13-18, because I had no comments on those provisions. It also offer a single general comment on the subpart B rules that deal with pre-decisional 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; (2) 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 recognize the possible value of adding this additional layer, not for every resource in every forest, but where a 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.

I encourage the Forest Service to consider the possible value of resource level planning, both as a way to simplify the unit planning process, and as a way to focus more specific attention on those resources of special importance for particular forest units. I want to emphasize that resource level planning should be optional. It need not be carried out for every resource used in, or produced from, a forest. Rather it can be limited to significant resources with substantial public interest.

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 be based on the best science, the proposed rules actually require only that the best science be considered. The rules do NOT require that the agency’s decisions reflect the best science. At the National Planning Rule Forum, one Forest Service representative suggested that science was just one factor that the agency had to consider in making a decision. If this is what the agency truly means by requiring officials to “take into account the best scientific information,” then this rule is a paper tiger.

Science is not like other factors. If best science suggests that grazing on particular lands, or clearcuts greater than a certain size, would harm the ecological integrity of a forest, then the agency has no choice but to limit grazing on the relevant lands and limit the size of clearcuts, unless it is not serious about its commitment to “maintain or restore…ecosystems…” as provided in draft section 219.9(a). More specifically, it cannot simply balance the scientific evidence against other economic and social needs in deciding how to proceed.

To be sure, uncertainty often pervades scientific issues, and several participants at the Forum raised questions about how the agency might deal with uncertainty. One commenter even suggested that there is no “best” science, only competing views of science. A Forest Service representative suggested that this was a good point and should be reflected in the questioner’s comments. With due respect, this is not a good point. While it is true that uncertainty pervades science, the public rightly expects the Forest Service to make an informed judgment about what constitutes the best science.

If the Forest Service can avoid using what it considers to be the best science by simply noting that scientists take different views of the issue then this is truly a meaningless standard.

Climate change deniers have been extremely effective at parlaying the uncertainty about the science into public doubt that climate change even exists. Yet the scientific consensus about climate change is pretty clear and overwhelming. The Forest Service cannot allow uncertainty about other scientific issues to avoid making hard decisions based upon its considered judgment about what constitutes the best science.

Perhaps it is impractical to make every decision based upon the best science but, if the agency decides to deviate from a decision based upon its determination about the best science, then it should at least be required to offer a compelling justification for any such decision. I 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 of 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, the rules themselves are not especially clear about how the Forest Service will keep the assessment process ongoing and dynamic, how it will be a process that is constantly revised to reflect new information and new data.

At the National Planning Rule Forum, the Forest Service showed a slide that was designed to illustrate the agency’s view of assessment, planning, and monitoring as a continuous circle constantly feeding each other. The Forest Service should use and explain this illustration in the preamble to the final rule to better describe its intent to the public.

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, in my opinion, 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 addressing 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 indentifying “potential monitoring questions or information needs.” But as noted above in the discussion of the planning framework, the final rules would be improved if the agency explains its apparent intention that the assessment be viewed as a dynamic document that is constantly being revised to reflect the best science and the best available information.

The assessment provisions would also be greatly improved if the agency made clear that it will display as much of the information as possible with maps and overlays that allow the public to better visualize the current conditions, and the future desired conditions of a forest. In the section on “diversity of plant and animal communities” I suggest a particular mapping exercise that would provide this information for that topic.

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.

Requiring the inclusion of non-statutory standards and guidelines in land management plans is a big mistake for four 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.

Third, they mistakenly lead both the agency and the public into thinking 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 historically been included in unit plans are a poor substitute for the resource-specific or site-specific analysis that ought to be conducted for important forest resources, or 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 limit project level actions unduly, it is simple enough to amend the plan to accommodate the proposed action.

Finally, more detailed forest plans with specific standards and guidelines provide fodder for litigation over the plans. One can imagine the kinds of issues that will likely be raised. For example, do the standards and guidelines for clearcut size or restocking reflect the best science? To be sure, these are important questions but they do not need to be decided at the unit planning level, especially if they will invite more litigation.

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 perform resource-level planning for significant forest resources and to give more focused consideration of project level decisions when they are proposed. Some will object to this suggestion because 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 in 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, which 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 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 from the clarification 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 clarify what types of riparian resources are meant to be protected in a riparian zone. Presumably, the agency intends that riparian zones will be largely free of surface disturbance, and certainly from use by heavy machinery that might compact hydric soils but, as currently written, the rules are far too vague.

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 as currently provided under the draft rules.

Before addressing the particulars of the current draft, I would like to focus on a key omission from the draft the rules. If the Forest Service is serious about engaging the public in forest planning in a more meaningful way then it must commit itself to developing tools that will facilitate public involvement. In particular, it should commit itself to more and better mapping.

As previously noted, maps have always been a major part of the planning process and maps have historically offered the best way to describe for the public the alternative visions that are being considered by the agency. But the rules nowhere require maps of any particular kind. (The word “map” is never even used in the draft rules, and is used only in passing in two places in the preamble.)

I urge the Forest Service to memorialize in its planning rules requirements for the key maps it already uses, and to further commit itself in the final rules to developing maps that show ecological communities and habitats, as well as ones that briefly describe those “focal species” [see "Spotlight on Focal Species" below] and other species of concern (including endangered, threatened, candidate, and species of conservation concern) that are found or that may be found in each of the habitats. To the fullest extent possible, all ecological communities should be shown, even where they extend beyond Forest Service 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 healthy, marginally 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, and all of this information could be used to develop 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?

At the National Planning Rule Forum, Carl Petrick, the Ecosystem Management Staff Officer for National Forests in Florida described a process called ecosystem condition modeling that allowed the agency to develop maps much like those that are proposed in this comment. According to Mr. Petrick, these maps are not particularly difficult or expensive to produce because the Forest Service already has most of the information needed to produce them. Moreover, even if the initial information is incomplete and the maps are somewhat rough, they will surely improve over time.

Not only will these maps better engage the public they will also help inform the collection of new data, including, where appropriate, population data for various species. Ideally, this mapping exercise will also allow the Forest Service to better determine whether it is maintaining viable populations of the various species that it is watching, and help inform changes to the assessment and to the management and monitoring plans developed for each forest.


The draft rules establish a new category of species, which the agency
calls “focal species.” They are defined in 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, 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 seems extremely vague and narrow.

The preamble to the draft 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.”

As proposed here, a requirement to map ecosystems would offer an
excellent opportunity to identify focal species for each of the key
ecosystems. The Forest Service may not be able to monitor for every
focal species but they should at least identify all focal species that
might help assess ecosystem health. By identifying these species, the
Forest Service will essentially be signaling to outside parties, such as
graduate students and private resource users, to focus on these species
in the research. 

What follows now are a few specific comments about the text of the proposed rule itself.

The first subsection (subsection (a)) requires the agency to “maintain the diversity of native species.” At the National Planning Rule Forum, the agency described this section as the “coarse filter.” It is this coarse filter that I am proposing be described (in much more detail) through a mapping process.

As the rule stands now it 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. If the mapping suggestion is adopted many of these concerns will likely be addressed since the public will be able to see the ecological conditions of the forest.

Subsection (b) is what the agency describes as its “fine filter” since it focuses on particular species. Subsections (b)(1) and (2) address species that are listed under the Endangered Species Act (ESA), but they really add 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 in 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.

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 clearly seems designed to undermine 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).

During the National Planning Rule Forum the Forest Service explained that this language was intended to address the fact that land ownership and wildlife habitat patterns sometimes make it impossible to maintain viable populations of species of concern on national forest lands. Perhaps this is true, but the current language is so vague and anemic as to severely undercut the principle obligation set forth in this section, which is to “maintain viable populations of species of conservation concern.”

An even bigger problem with the draft rules is the obvious reluctance of the Forest Service to commit itself to identifying an appropriate number of both “species of conservation concern” and “focal species” and to maintaining viable populations of all such species in every ecosystem in the forest. In one sense, the agency’s reluctance to make such a commitment is understandable. But many of us would welcome a more honest and robust listing of focal species, including species of conservation concern, in exchange for a recognition that the Forest Service has a limited ability to actually maintain viable populations of all of these species.

To this end, I suggest that the Forest Service revise subsection (b)(3) as follows:

(3) Maintain viable populations of all focal species, including species of conservation concern within the plan area to the extent possible taking into account other priorities and the financial constraints on Forest Service resources. Where the Forest Service lacks information or resources necessary to maintain viable populations of all focal species in the plan area the Forest Service will use best efforts to maintain or restore ecological conditions that will support viable populations of all focal species within their appropriate landscape. In developing ecological maps, identifying focal species, and planning strategies for maintaining and restoring viable populations and ecological conditions, the responsible official shall coordinate to the extent practicable with other Federal, State, tribal, and private land managers having management authority over lands where the population exists.

No doubt, preserving the integrity and stability of the biological communities in 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 the Forest Service intends 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 provided here.

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 these recommendations 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 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 seem 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 first to identify and then to 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. At the National Planning Rule Forum, the Forest Service suggested that the rule was designed to afford an effective feed-back loop.

Unfortunately, the draft rule inspires no confidence that problems identified during the monitoring process will be addressed in a timely and sufficient manner. 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.

If, however, the agency finds that a change may be warranted or that the assessment should be revised, its failure to act upon those findings is apparently 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.

If the monitoring report is not itself the proper place to make decisions that follow from that report, then the Forest Service should commit itself to making a formal decision within a reasonable but fixed time as to how it intends to proceed in light of the monitoring report. This decision should be subject to the objections process.

Whether the Forest Service reverses itself and agrees to treat the monitoring report as a decision document, or whether it instead agrees to issue a separate decision based upon that report, 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 is supposed to be. More importantly, if the monitoring report leads to the conclusion that changes to the plan, management activities or monitoring program are necessary, 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.

The monitoring rules should also make clear that the Forest Service will include information on populations and population trends of all focal species in the forest at least to the extent that such information is needed to make reasoned decisions about the future management of the forest. This is much more than monitoring the “status of focal species” as required under the draft rules. To the extent that the Forest Service lacks sufficient resources to gather population data it should actively encourage independent outside research from universities or non-governmental organizations who might be in a position to help fill in the gaps.

On a related point, and in conjunction with the mapping exercise proposed here, the Forest Service should monitor habitats and any progress made toward restoring degraded habitats.

In the end, the monitoring process will only be as good as the obligation it imposes to change the assessment and the plan to reflect the information in the monitoring report. By refusing to treat the monitoring report as a decision document, the current draft rules fail to offer the public any assurance that assessment, planning, and monitoring will be a dynamic and constantly evolving process that reflects the best information available to the agency.

As suggested above, the Forest Service might reasonably avoid treating the monitoring report itself as a decision document if it commits itself to a separate decision based upon that document within a reasonable and fixed time. But the current language in subsection(d)(4) must be changed to ensure that the process does not break down because the agency is unwilling to take the action that monitoring suggests is needed.

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, except that focal species would not be used as a proxy for the health of other species, but rather to help assess the health of particular ecosystems. 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 focal species approach is not perfect, the difficulty and expense of gathering population data makes it impractical to do so for all 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 contemplate a “pre-decisional” review process. While I applaud the Forest Service for trying to resolve conflicts before decisions are made, the formality and strict standards for this new process has the potential to introduce an adversarial proceeding even before an actual decision is made. Moreover, since this pre-decisional process is offered in lieu of any post-decisional appeal, the Forest Service must ensure that the process affords a reasonable opportunity for the pubic to demand appropriate changes to a plan before it goes into effect. If it fails to serve this role, then the Forest Service is inviting litigation over its planning decisions.

I have several particular comments about the draft rules.

First, despite its title, it does not appear that the process is actually “pre-decisional.” Under the draft rules, “[w]ritten objections, including any attachments, must be filed within 30 days following the publication date of the public notice for a plan, plan amendment, or plan revision before approval.” Thus, it appears that the final plan will have been published at the time of the objections. Thus, the review process is only pre-decisional in the sense that it has not yet gone into effect. The objections, however, will be filed on a plan that presumably took into account the public comments received during the public comment period.

Conceivably, the plan upon which objections are filed could be quite different from the draft plan that was the subject of the original notice and comment process. Given that the review process described in the draft rules is not really pre-decisional, it is not at all clear how this process offers any real advantages over the appeal process that has historically been used.

Regarding the process itself, first, 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. At a minimum, however, the agency should consider a review process carried out by line officials in different regions who have not been involved in any way in the development of the plan.

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. See 76 Fed. Reg. 8504 (Paragraph (a) further would require that objections must be based on the substance of the objector’s formal comments, unless the objection concerns an issue that arose after the opportunities for formal comment.) 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, especially since the Forest Service has apparently designed this process to be less formal than the appeals that were historically filed. If a prospective objector filed substantive comments the rules should make clear that the objector is 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.

At the National Planning Rule Forum, the Forest Service suggested that the 30-day time frame for objections should be sufficient since the objecting parties had already filed comments. But this assumes that the plan over which objections were filed is essentially the same as the plan over which the comments were filed. If the Forest Service paid much attention to the comments, however, then the final plan that is the subject of objections could look substantially different than the original draft plan. Thus, requiring interested parties to file objections within 30 days from the release of the final plan seems extremely unfair.

The unfairness of the 30-day time frame is further 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.

This ends my current review of the draft forest planning rules. As I continue to receive feedback on this draft review and delve deeper into the draft rules I will again revise this document, so please leave a comment below, or contact me directly with your thoughts, comments, and questions: mark.squillace@colorado.edu .

To comment on the proposed Planning Rule, click here.

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