May 16, 2011
U.S. Forest Service Planning
c/o Bear West Company
132 E 500 S
Bountiful, UT 84010
Re: 2011 Draft Proposed Planning Rule
To Whom It May Concern:
The Resource Development Council (RDC) is writing to express its view on the 2011 Draft Proposed Planning Rule, which will guide land and resource management planning for all units of the National Forest System under the National Forest Management Act of 1976 (NFMA).
RDC is an Alaskan, non-profit, membership-funded organization founded in 1975. The RDC membership is comprised of individuals and companies from Alaska’s oil and gas, mining, timber, tourism, and fisheries industries, as well as Alaska Native corporations, local communities, organized labor, and industry support firms. RDC’s purpose is to link these diverse interests together to encourage a strong, diversified private sector in Alaska and expand the state’s economic base through the responsible development of our natural resources.
The proposed rule sets forth process and content requirements to guide the development, amendment, and revision of land management plans to provide for sustainable multiple uses, including timber harvesting and other economic activities to benefit local communities and the nation, while maintaining, protecting, and restoring national forest lands. However, in our view, the proposed rule fails to build on the Multiple Use Sustained Yield Act (MUSYA) and follow the requirements of the NFMA. Moreover, the rule fails to comply with current direction for regulations to be shorter, more flexible, and less costly and burdensome. The rule is excessively long, detailed, and encumbered with inflexible mandatory requirements that will prevent it from being a practical, workable, and affordable rule. We believe it will provide fertile ground for litigation that will create additional disputes and obstruct planning and management activities.
Proposed Rule Significantly Minimizes Multiple Use Management
The proposed rule sharply downplays true multiple uses such as timber harvesting, energy development, and mineral extraction while clearly giving an extremely dominant and overriding role to ecological services, defined within the planning rule as wilderness preservation, diverse plant and animal communities, resilient ecosystems and watersheds, and other environmental values. In addition, the proposed rule launches into areas like carbon sequestration and spiritual sustenance. These are all issues and values that should be considered, but multiple use management requires a balancing of uses, not an elevation of one or more uses above another.
Though occasionally referenced, the proposed rule essentially ignores the multiple use mandate, which has been imposed by Congress, codified in agency regulations, and affirmed by the courts. The problem is apparent in three ways. First, the proposed rule fails to acknowledge the multiple use mandate as a guiding principle of forest planning. Second, proposed provisions specifically conflict with the multiple use mandate. Third, the definition of ecological services is so inclusive and vague that it dilutes the entire concept of multiple use to a point where it is basically meaningless.
The multiple-use sustained-yield mandate is a viable and credible planning tool that has been wisely used for managing forest lands. The Forest Service is required to ensure that multiple use remains on par with other sustainability concepts, but the proposed rule clearly emphasizes forest restoration and conservation, wildlife conservation, climate change, and watershed protection over the need for the rule to meet the statutory requirements of NFMA, MUSYA, and other legal requirements. Additionally, the sustainability section states “sustainability is the fundamental principle that will guide land management planning.” Such statements clearly reflect a lack of acknowledgment on the part of the Forest Service of the important function of multiple use in the land planning process and demonstrates the agency’s bias toward ecological services over true multiple-use management.
The U.S. Court of Appeals for the Seventh Circuit appropriately concluded that the Forest Service does not have the discretion to ignore the multiple-use mandate to focus almost exclusively on environmental and recreational resources. The court specifically held that “the national forests unlike national parks, are not wholly dedicated to recreational and environmental values.” Cronin v. United States Department of Agriculture, 919 F.2d 439, 444 (7th Cir. 1990). Through the planning rule, the Forest Service must actively promote multiple-use management, a mandate delegated to it by Congress in legislation spanning more than a century and consistently upheld by the courts. As it stands now, the planning rule fails to adequately do so.
With the proposed planning rule and the agency’s nearly-exclusive emphasis on ecological services, the Forest Service appears to be morphing into a hybrid of the National Park Service and the Fish and Wildlife Service, elevating such issues as species viability, watershed protection, roadless areas, and preservation above the needs of rural economies that depend on true multiple-use management of forests. The original mission of the Forest Service has been lost. The proposed rule does not promote an increase in timber production at a time when rural economies are reeling from high unemployment and low tax revenues. Why should states be importing timber rather than harvesting timber that is rotting in our national forests? Why have harvest levels in Alaska fallen to all-time record lows of under 30 million board feet annually when the Tongass National Forest can support an annual harvest of over 500 million board feet in perpetuity?
The Tongass is a case-in-point on how the Forest Service has strayed from it mission of multiple use management to one that almost exclusively emphasizes ecological services. As a result, annual harvest levels have plummeted as the timber supply from the forest has been dramatically curtailed. Only six percent of commercial grade old-growth acreage is now open to logging. The economic consequences to local communities have been severe. Logging and wood products employment is a mere shadow of its recent past, falling from 4,600 jobs in 1990 to approximately 400 logging and wood products manufacturing jobs in 2010. Annual payroll lost since 1990 is well over $100 million. Clearly, the Tongass is being managed as a national park and not a true multiple use national forest. On a nationwide scale, timber harvests from our national forests can provide hundreds of thousands of jobs and billions of dollars in economic activity, in addition to thinning overgrown forests and allowing optimal absorption of greenhouse gases. With regard to climate change, there is perhaps nothing more effective than harvesting trees on a sustainable basis. Unfortunately, that is not being done in the nation’s two largest national forests in Alaska, nor elsewhere, as special interests who embrace the ideology that preventing human access to forest lands is the best way to keep forests healthy. We couldn’t disagree more with such an assumption.
In a prolonged period of national economic weakness, soaring deficits, record trade imbalances, and chronically high unemployment, the natural resources available within national forests could help spur a nationwide economic revival and restore local economies. Active land management uses such as timber, mining, energy, grazing, and recreation would create thousands of jobs, expand local and state economies, and provide needed revenues to the federal government. Active forest management itself would significantly improve forest health and reduce wildfires. However, all of this is not possible unless the rule requires that social and economic sustainability be equal requirements to ecological sustainability. The rule’s sustainability, diversity, and other requirements must incorporate multiple use and high-level sustained yield of goods and services, per NFMA and MUSYA provisions.
RDC disagrees with the agency’s assertion that it has more influence over factors influencing ecological sustainability. We believe the agency is in a better position than it realizes to influence economic and social sustainability through its land management directives. Highly-restrictive land management policies have led to a precipitous decline in the forest industry not only in Alaska but throughout the West, displacing families and severely impacting local communities. From an ecological standpoint, a lack of active forest management on federal lands have led to increased fires and spread of native and invasive pest species at historic levels and are, if not the primary factors, currently influencing forest health and sustainability of western forests. While the agency can influence ecological sustainability, it can through its management practices, regulations and policies even more so positively impact social and economic sustainability.
Because the Forest Service can have a substantial impact on all factors influencing ecological, social and economic sustainability, RDC requests that the proposed rule recognize this fact and include language for plan components that maintain or restore all three elements.
With regard to wilderness, the rule inappropriately puts those areas recommended for wilderness designation on an equal basis to those areas under current wilderness designation. Essentially, the planning rule gives equal “protection” to both areas, meaning an area proposed for wilderness status would be managed as if it were already Congressionally-designated wilderness. By requiring that any area recommended for wilderness be “protected,” the Forest Service is creating de facto wilderness. This is wrong because only Congress has the authority to designate wilderness. The agency’s highly-restrictive protection measures for recommended wilderness areas essentially transforms these areas into designated wilderness.
Moreover, the 2001 Roadless Rule already “protects” millions of acres of roadless areas. In the Tongass National Forest, the vast majority of the forest is roadless and these areas are essentially being managed as wilderness, even though the current land management plan authorizes timber harvesting on 663,000 acres over the next 100 years – about 12 percent of the forest’s commercial timber. The Planning Rule does nothing to provide for new management considerations over the millions of acres of roadless areas nationwide when new plans are revised. As a result, the planning rule violates NFMA because it requires that its planning provisions apply to all lands, not just those that were exempt from the roadless rule.
Section 219.7 states, “The responsible official would also assess potential wilderness areas, eligible wild and scenic rivers, suitability of areas for resource management, and the quantity of timber that can be removed in accordance with NFMA requirements.” This section of the planning rule is in conflict with the “No-More” clause of the Alaska National Interest Lands Conservation Act (ANILCA) 101(d) 16 U.S.C. 3101(d), which states, “No further studies of Federal lands in the State of Alaska for the single purpose of considering the establishment of a conservation system unit, national recreation area, national conservation area, or for related or similar purpose shall be conducted unless authorized by this Act or further Act of Congress.” We urge the Forest Service to modify this section of the planning rule to ensure compliance with ANLICA. In addition, section 219.1 should also be revised to comply with ANLICA, as should any other sections that are inconsistent with ANILCA.
The Rule is Cumbersome and Inflexible
The proposed rule is excessively long, complex and hindered with inflexible requirements that prevent it from being a workable and enduring Planning Rule. The proposed rule is inconsistent with the Executive Order issued on January 18, 2011 by President Obama, “Improving Regulation and Regulatory Review,” as well as other requirements for cost-effective, less burdensome, and flexible regulations. The January 2011 Executive Order requires that regulations be tailored to “impose the least burden on society, consistent with regulatory objectives” and that agencies are to review, change or eliminate rules that are outmoded, ineffective, insufficient, or excessively burdensome. One of the objectives of the new rule is that it be workable, affordable, and will withstand court challenges. The proposed rule fails on each account. Under the January 2011 Executive Order, rules are supposed to be cost effective, less burdensome, and more flexible. The proposed rule does just the opposite.
There are available alternatives that are much less costly and burdensome, while still meeting NFMA requirements and the agency’s purpose and need for a new Planning Rule. For example, Alternative C in the draft environmental impact statement would cost nearly $24 million less annually than the proposed rule to implement. Additionally, the 2008 Planning Rule contains most of the same basic elements but is only half the length of the proposed rule. The 2008 Rule is not perfect and it has its problems, but it was enjoined by a federal district court only for procedural shortcomings in the EIS and Endangered Species Act (ESA) Section 7 consultation completed for the rulemaking, and not any inadequacy in meeting NFMA requirements.
The burdensome and overly detailed rhetoric and mandates in the proposed rule can be eliminated without any loss of useful, nationwide programmatic guidance for management of national forests. Much of what is in the proposed rule would be better placed in the Forest Service Manual or Handbook (FSM/FSH) where it can be more easily adjusted if it is not workable. Most, if not all of the content in the “sustainability” and “diversity of plant and animal communities” sections of the proposed rule is already included in similar form in FSM. Section 219.1(d) of the proposed rule already requires the Forest Service to establish procedures for the Planning Rule in the FSM/FSH. Much of the detailed content in the proposed rule, with appropriate modifications to simplify and conform it to NFMA and MUSYA principles, can be moved to the FSM/FSH with ease.
RDC joins the Alaska Forest Association (AFA) in urging the Forest Service to place more emphasis in the planning rule that forest plans be fully implementable. As AFA noted in its recent comments, the current Tongass plan cannot be fully implemented and Region 10 has acknowledged this and ignored it. As a consequence, the Region has been unable to implement 20 percent of its planned timber sale program.
Diversity of Plant and Animal Communities
The proposed rule would require the Forest Service to “maintain viable populations of species of conservation concern within the planning area.” The term “maintain viable populations” does not occur in NFMA, nor is it required by the law. There is no scientific consensus on what level of population is “viable” or how it is to be “maintained.” Use of these words are likely to increase the number of lawsuits against the Forest Service.
The law requires species diversity, not viability. NFMA does not require “viable populations,” rather it directs the Forest Service to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives and within the multiple-use objectives of the land management plan.” However, the proposed rule treats national forests as biological reserves rather than forests managed for the use and necessities of local communities and Americans in general.
Given there is no consensus on a population level that achieves a “viable” population, the planning rule imposes a legal obligation on the Forest Service that is virtually impossible to meet. Measuring and proving that a forest plan will maintain a viable population is nearly impossible, leaving the agency vulnerable to litigation.
The viability regulation must be eliminated. If not, then the Forest Service must retain the concept that overall multiple use objectives should drive decisions in the forest plan, not maintaining the viability of species, especially those that are not even considered species under the ESA.
The regulation will make the problem worse by expanding the viability requirement beyond vertebrate species to include “native plants and native invertebrates (fungi, aquatic invertebrates, insects, plants, and others).” Such expansion of the viability requirement will sharply increase the cost of compliance and establish a regulatory standard that cannot be achieved. Moreover, in Northwest national forests, there are over 400 invertebrate species for which there is minimum biological knowledge. Many of these species are not even a concern of the ESA. The new regulation will expand litigation over “viability” since the viability requirement can now be expanded to include native plants and invertebrates. In addition, agency costs will skyrocket. For example, a survey and management program costing over $33 million per year was launched to learn more about invertebrate species in the Northwest.
Another troubling aspect of the new regulation is that it creates a new obligation to “conserve” fish and wildlife species that are only candidates for listing under the ESA. This will likely result in an outcry from conservationists that the Forest Service develop recovery-like plans for conservation of candidate species even though under the ESA recovery plans are not required for unlisted species.
Finally, the diversity section must be modified to reduce its cost, to make compliance possible. The Forest Service should draft a regulation that focuses on maintaining the diversity of habitats rather than imposing legal requirements upon itself to identify, survey, and maintain “a viable population” that is not required by NFMA.
Carbon Storage and Climate Change
Both carbon storage and climate change are overemphasized in the planning rule and will likely invite legal challenges. Moreover, the regulations clearly favor retention of existing carbon stocks rather than to promote increase carbon sequestration through active forest management. The argument of leaving mature forests untouched to maximize long-term storage of carbon and disagreement over the validity of carbon accounting assumptions will invite litigation from those interests arguing that the forest plan violates the regulations because it does not maintain all mature forests for long term carbon storage and climate regulation. In contrast, to offset climate change, we can think of nothing more effective than harvesting a sustainable amount of trees on an annual basis.
In our view, the rule establishes monitoring requirements that are too broad and costly, and frankly, unattainable. Requiring monitoring of “measurable changes on the unit related to climate change…” defies common sense requirements for this planning rule. It makes no sense for the Forest Service to evaluate “measurable” changes on a two-year cycle for every national forest when climate is measured over decades and centuries. We do, however, recommend adding requirements to monitor accomplishment of forest plan objectives, as well as progress achieving forest plan “desired conditions.”
The inclusion of climate change language and new requirements for the Forest Service to catalog invertebrates such as insects will overburden an already cash-strapped agency. The carbon and climate change references should be minimized or eliminated as they are not required by NFMA.
Role of Science in Planning
The proposed rule establishes costly, time-consuming procedural requirements to document that the Forest Service considered the best available science. These requirements will slow the planning process to a crawl and create a new legal burden on the agency to prove that it has considered the best available science. This requirement ditches the Forest Service’s hard fought legal victories that established there is no such thing as the “best” or “most accurate” science and will relieve plaintiffs of the burden to prove why the agency decision is flawed. The new requirements will now impose the burden on the agency to prove why its decision is informed by the best science. Moreover, the new requirements undermine the Forest Service multiple-use mandate, which the courts have only recently more explicitly acknowledged. A science-dominated regulation will undermine the agency’s ability to make management decisions based on its discretion in weighing various multiple-use objectives. It will elevate science to the point where it preempts multiple use.
RDC is certainly not opposed to considering science in the planning rule. In fact, sound science plays an important role in the process, but proving what science is “best” will no doubt be time consuming and will ultimately lead to lawsuits. Determining which science is “best” is at the very least very subjective and can be highly politicized, as illustrated in ESA litigation, as well as NFMA and other disputes. By requiring the use of the “best available scientific information” rather than relying on agency expertise and available, relevant science, the planning rule will create a target for additional litigation and controversy. This requirement would likely create additional disputes and lawsuits that will obstruct and delay planning and management activities.
Neither NFMA or NEPA use or require use of the term “best available science” or “best available scientific information.” The Ninth Circuit Court of Appeals has affirmed that these laws do not require a determination that national forest plans or project-level NEPA documents be based on “best” available science or methodology, that disagreements among scientists are routine, and that requiring the Forest Service to resolve or present every such disagreement could impose an unworkable burden.
The planning rule should not require the Forest Service to do more than take into consideration available, relevant scientific information along with other factors in the development, amendment or revision of forest plans, without reference to which information is “best.” RDC urges the Forest Service to delete Section 219.3 or eliminate reference to “best available scientific information” in the proposed rule. The Ninth Circuit finally has recognized, there is no holy grail of the “best” or “most accurate” science. The Forest Service should also do so.
The proposed rule establishes a separate layer of planning called “Assessments,” which will be prepared apart from the Forest Plan and without NEPA analysis. In our opinion, any Forest Plan that relies on “Assessments” is dead on arrival, given the courts have repeatedly rejected the reliance of a plan or project on an earlier prepared assessment or analysis that was not subject to NEPA.
The assessment process also creates a legally enforceable obligation to notify and encourage appropriate scientists to participate in the assessment process. The agency will have violated the regulation if a plaintiff can show that the agency failed to do enough to encourage the participation of “appropriate scientists.”
The Assessments will likely include non-federal scientists to help “inform” the planning team, which will require compliance with the Federal Advisory Committee Act (FACA). Thus, the Forest Service will place the subsequently developed forest plans at risk by requiring a process to develop Assessments with public participation and non-federal scientists that “inform” decisions in the plan without going through the NEPA process or complying with the FACA. We recommend the Assessment section be eliminated from the planning rule entirely. This would eliminate a NEPA and FACA claim that plaintiffs will raise challenging a forest plan’s reliance on Assessments.
Another concern is that plaintiffs will search the planning record to find detailed papers prepared by agency staff and argue that these reports are really “Assessments.” The plaintiffs will then charge the agency with violating the regulation because they were not subject to public comment and scientific participation.
Timber Requirements Based on NFMA
The planning rule should recognize and allow for a timber sale program that meets the needs of the timber industry in each region, including the recognition of the economy of scale needed to sustain the industry. Forest plans should not limit harvest levels by assuming the maximum supply from alternative sources and then adopting a minimum timber sale level needed to make up the difference.
Given each region is unique, the identification of suitable timber stands in the Tongass and other forests should include an economic analysis that ensures selected lands will support an economically-viable timber sale program. Otherwise, some management plans may not be fully implemented, as is the case in Alaska today. Similarly, the planning rule should acknowledge and provide for the needs of other industries, including mining, that create wealth for our nation from national forest lands.
The rule fails to explicitly acknowledge the importance of the “salvage or sanitation harvesting of timber which is substantially damaged by fire, windthrow or other catastrophe, or which are in imminent danger from insect or disease attack” which is emphasized in NFMA statute numerous times. As drafted, the rule illegally abandons or dilutes the consistently clear statutory direction that any standards for suitable lands, size of openings or annual limits on timber removal “shall not preclude the Secretary from salvage or sanitation harvesting of timber which are substantially damaged by fire, windthrow or other catastrophe, or which are in imminent danger from insect or disease attack” 16 U.S.C. 1604(m).
219.11(c) – RDC recommends rewording this paragraph to “Harvest for salvage, sanitation, or public health or safety. Plans shall include direction for timber harvest for salvage, sanitation, or public health or safety objectives.” 219.11(d)(4) – The proposed rule imposes restrictions on timber harvest that exceed the requirements of NFMA.
Standards and Guidelines
The planning rule effectively makes forest plan “guidelines” legally enforceable standards. The rule eliminates the distinction between forest plan guidelines and standards, making guidelines legally enforceable standards that all projects must “comply with.” This revision ignores the Forest Service’s legal victories establishing that guidelines are discretionary, not mandatory, and provide flexibility in management.
Courts on a number of occasions have reviewed the distinction between forest plan standards and guidelines as they are defined under current regulations. The courts have ruled in favor of the agency and have repeatedly dismissed plaintiffs’ arguments that the agency was legally compelled to follow a forest plan guideline. The Forest Service must not throw away these hard-fought legal victories.
Given the fact that each region is unique, there should be no national standard or guideline (one size fits all) imposed on each region. Moreover, standards and guidelines should be adopted only after recognizing the impact they will have on all multiple uses in the forest, including maintaining a viable, economic timber sale program.
Pre-decisional objections process
The use of the pre-decisional objections process is good and is welcomed by RDC. Those who don’t like a draft plan should be required to express their objections before the final plan is released. This would allow the agency to take issues into account and have an opportunity to make appropriate revisions. Under the current appeals process, those who wish to stop a project are not required to participate in finding a solution before the decision is made. The pre-decisional objection process is a superior approach for challenge to a forest plan than the administrative appeals process.
In conclusion, RDC supports the opportunity to grow the forest products industry through the sustainable harvest of forests, rather than simply allowing the industry to die a slow death. The experience from the past two decades has clearly put the industry and thousands of Americans who make their living from the forests in jeopardy. True multiple-use management, one that encourages the responsible development of natural resources, is essential. Otherwise, America will increasingly import forest products and strategic minerals from abroad, where weaker environmental standards may apply. The planning rule should facilitate true multiple-use management encouraging development of these resources, as opposed to hindering such activity.
RDC appreciates the opportunity to comment on the planning rule.
Resource Development Council for Alaska, Inc.