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home : news : news June 28, 2016

12/4/2012 4:41:00 AM
Industry: Obama's new forest rule violates federal law
Guthrie: Timber harvesting, ecological sustainability are not mutually exclusive

Richard Moore
Investigative Reporter

It’s been seven months since the Obama administration formally released a new planning rule for the nation’s national forests, but an industry lawsuit to stop it is finally getting to the deliberative stages, and the outcome could have far-reaching effects on a variety of interests. 

The U.S. Forest Service published the rule this past April. The lawsuit was filed Aug. 13 by the Federal Forest Resource Council, Public Lands Council, National Cattlemen’s Beef Association, the American Sheep Industry Association, Minnesota Timber Producers Association, the California Forestry Association and others.

Specifically, the groups say the rule violates the National Forest Management Act, the Multiple-Use, Sustained-Yield Act of 1960 and the Administrative Procedures Act.

Under the National Forest Management Act, the groups contend, the Forest Service is required to promulgate regulations following principles laid out in the multiple-use law, which establishes a process for developing and revising land management plans, guidelines and standards. Individual forests follow the direction of the planning rule and develop specific management plans. 


Fundamental flaws

But the court petitioners say the new rule is flawed in fundamental ways.

For one thing, they say, the planning rule requires the Forest Service to “maintain a viable population of each species of conservation concern within the plan area.” But, says Public Lands Council executive director Dustin Van Liew, “viable population” is an ill-defined term that does not appear in the management act or, for that matter, in any other statute. 

And that, he says, opens the door to litigation by radical special interest groups. Van Liew also said the rule effectively turns Forest Service guidelines into legally enforceable standards, throwing away what he called hard-fought victories that established guidelines as discretionary rather than mandatory and tying the hands of land managers unnecessarily.

“It is clear the USFS did not consider input from farmers and ranchers when creating and approving this new rule,” Van Liew said when the lawsuit was filed. “This isn’t a surprise at all. Just look at this administration’s track record. From the EPA to USFS, they refuse to venture off the city sidewalks of Washington, D.C., to get a glimpse of reality from the farm and ranch community.”

Van Liew said it was unfortunate that industry had to resort to legal action. 

“This is something that could have been avoided if the agency had been responsive to our specific comments about the rule’s pervasive legal overreach,” he said.

The plaintiffs say the new rule’s focus is on ecosystem services, sustainability, preservation, carbon storage and “spiritual values” rather than on multiple uses, an emphasis they say is a deviation from federal statutes governing management of national forests. Both the management act and the multiple-use law require active land management for multiple uses, they contend, including livestock grazing, timber management and recreation.

“This is the latest in a series of failed attempts by the Forest Service to write a planning rule consistent with congressional intent and the National Forest Management Act in 1976,” Tom Partin, president of the American Forest Resource Council, said. “Especially in the area of ‘species viability’ the statutory direction is to manage our national forests for multiple use, sustained yield and a diversity of species habitats, not to manage exclusively towards benefiting one or two species at the cost of all else.”

Managing the forests for multiple uses is critically important for ranchers and livestock producers who have been public-lands stewards for generations, Van Liew said. Ranching operations across the West rely on access to public lands, he said, and such operations provide an economic base for rural economies while maintaining wildlife habitat and diversity and preserving vast areas of open space.

Caroline Lobdell, counsel for the livestock associations and executive director of the Western Resources Legal Center, observed that the Forest Service undertook failed attempts in 2000, 2005 and 2008 to replace the 1982 planning rule.

“The Forest Service has a long history of getting it wrong in the forest planning rule arena,” she said, adding that a rule requiring forest plans to elevate the “broad term ‘ecosystem services’ to at least the same status as the multiple uses established by Congress – uses like outdoor recreation, range and timber – simply cannot be reconciled with the productive purposes for which our national forests were established.” 

In addition, Partin said the rule discards the professional experience of foresters for more esoteric science.

“We are disappointed that the rule abandons the Forest Service’s hard fought legal victories which held that judges are to defer to the professional expertise of the local forest managers experienced with local conditions,” he said. “It is frustrating that the rule undermines local on-the-ground knowledge by imposing a new ‘best science’ requirement over which no one, not even scientists, can ever agree.”

Environmentalists see the situation differently and extoll the virtues of the planning rule. 

Saying industry is attempting to discard balance and limit the role of science in public-lands management, the Western Environmental Law Center, on behalf of Klamath Siskiyou Wildlands Center and Oregon Wild, filed a motion in September to intervene in the case.

The groups say the purpose of the industry lawsuit is to prevent the Forest Service from using “best available science” and ecosystem management tools to guide decisions affecting national forests, and to prohibit the agency from maintaining “viable populations” of wildlife, among other legal claims. Their petition is aimed to ensure the use of sound science in decisions affecting the public’s air and water, and children’s natural heritage, they contend.

“These industry groups have a scary vision for our national forest,” Joseph Vaile, program director for the Klamath Siskiyou Wildlands Center, an Oregon-based conservation organization, said. “Never before have we seen extraction industries so clearly state that they oppose the use of science on our national forests. Through this suit these groups hope the keys to our national forests are handed over to private industry so they can be turned into private tree-farms for their own benefit.” 

Doug Heiken, conservation and restoration coordinator for Oregon Wild,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             said the lawsuit amounted to an argument for crony capitalism, while Pete Frost, attorney for the conservation groups, said the lawsuit, if successful, could effectively ban conservation biology as a basis to help craft management of national forests.  

“It is a throwback to when only logging, grazing, and mining mattered,”   Heiken said.


The claims

The multiple-use and management laws are at the heart of the industries’ claims, as is congressional intent.

For example, the complaint observes, Congress first described the purposes of the national forests in the 1897 Organic Administration Act, stating: “No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States .…”

The multiple use act went further, the complaint continued.

“In MUSYA, ... Congress further stated that ‘[i]t is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes,’ and directed the Secretary of Agriculture ‘to develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom,’” the complaint states.

In the management act, the complaint continued, Congress required the secretary of Agriculture to “assure” that national forest plans “provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple-Use Sustained-Yield Act of 1960, and, in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 

The first claim alleges a violation of the Organic Administration Act. That law, the complaint asserts, directs that national forests are to be “as far as practicable controlled and administered” for only two purposes – to conserve water flows and to furnish a continuous supply of timber for the American people – and not for aesthetic, environmental, recreational, or wildlife-preservation purposes. 

The new rule flies in the face of that directive, the complaint asserts.

“Contrary to the OAA, the Planning Rule establishes achievement of ‘ecological sustainability’ the primary purpose of every national forest,” the complaint states. “The Planning Rule ... creates an unprecedented new requirement that every forest plan ‘must provide for social, economic, and ecological sustainability.’ The section prescribes detailed provisions that establish ‘ecological sustainability’ as the overriding objective of national forest management, while relegating ‘social and economic sustainability’ to an inferior and insignificant position.”

On the same grounds, the complaint alleges in its second and third claims, the overriding objective of ecological sustainability violates the multiple-use act and the management act.

The fourth claim charges that the rule  employs an unlawful mandate to provide “ecosystem services.”

“The Planning Rule establishes an entirely new category of national forest uses and purposes – ‘ecosystem services,’” the complaint states. “Drawing from a recent United Nations-sponsored report, the Planning Rule defines this new term to include such diverse components as long term storage of carbon, climate regulation, disease regulation, pollination, seed dispersal, and educational, aesthetic, spiritual and cultural heritage values. ... The Planning Rule directs that national forests ‘must provide for ecosystem services and multiple uses.’ ... The plan must also include ‘standards and guidelines, for integrated resource management to provide for ecosystem services and multiple uses in the plan area.’” 

All of that is beyond the mandate and purposes defined in the OAA, the complaint states. What’s more, it violates the management act as well.

“By requiring that forest plans must provide ‘ecosystem services’ as well as multiple uses, the planning rule introduces new resource uses and management requirements not specified in NFMA, preventing management of the national forests for the multiple uses required by NFMA,” the complaint contends.


Guthrie testifies

Northwoods forester Steve Guthrie has also vocally criticized the rule. Representing the Nicolet Hardwoods Corporation, the Lakes States Lumber Association, and the Hardwood Federation, Guthrie testified before a subcommittee of the U.S. House Agriculture Committee about the rule in May 2011, when the rule was still in proposal form.

While some modifications were made to the final rule after Guthrie testified, they were more to clarify agency intent than to modify the substance of the proposed rule, and Guthrie’s concerns, and those of the plaintiffs in the lawsuit, remain intact.

In his testimony, Guthrie said his professional experience on Nicolet’s lands and on more than 250,000 acres of other industrial forest had taught him that intensive timber harvesting and ecological sustainability were not mutually exclusive.

“To the contrary, over 53,000 acres of these same forestlands have been maintained in such excellent condition that they have attracted conservation easements through the Federal Forest Legacy Program and the Wisconsin Stewardship Fund,” Guthrie said.

However, he continued, the planning rule sought to downsize the role of timber harvesting on national forests.

“Unfortunately, the Proposed Rule under consideration today seeks to take the National Forest System further down the road where timber harvesting takes a back seat to landscape concerns, forest restoration, and nearly every current scientific concern except timber,” he said.

Guthrie pointed to a sentence in the proposed rule that called for less prescriptive descriptions of timber harvests, sale schedules, and management practices to provide “greater flexibility for units to develop more adaptive plans capable of responding to uncertain vegetation management and restoration needs.”

That particular language was removed from the final rule published last April, but the language surrounding that sentence was left intact, and it underscored Guthrie’s point, in particular the increased emphasis on nontimber factors, including global warming.

“A greater emphasis on sustainability  and ecosystem integrity in plan components is expected to facilitate restoration responses triggered by new information regarding environmental, social, and economic risks and stressors, including climate change and changes in demand for goods and services,” the final rule reads.

Not only that, but the sentence following the removed sentence to which Guthrie referred was left in the final rule,  albeit slightly reworded, and, as Guthrie pointed out, it outlines the new plan’s direction away from timber management.

“Slight cost increases for science support may occur under the final rule due in part to more prescriptive wording to use the best available scientific information during the planning process to inform the planning process, plan components, and other plan content, including the monitoring program,” the final rule reads. 

Guthrie noted the irony of it.

“So while pursuing the latest scientific information on climate change, forest restoration, or the latest vogue in ecology, the Forest Service proposes to be less prescriptive regarding this most fundamental scientific fact: Every forest has an annual growth and mortality rate,” he said. “By keeping a healthy balance between growth and annual harvest (the purpose of the ASQ, or Allowable Sale Quantity) the mortality rate is minimized. Shamefully, today many of our National Forests have a higher rate of mortality than harvest.”

The Chequamegon‐Nicolet in Wisconsin has 251MMBF of annual growth, 122MMBF of annual mortality, and only 72MMBF of annual harvest, he noted.

“This is an extravagant waste of a precious renewable resource,” Guthrie said.

As the groups in the lawsuit did, Guthrie talked about the viable species requirement.

“With agency budgets declining, this proposed Rule actually imposes a number of costly processes and procedures on the Forest Service: a new planning layer of assessments, more monitoring, and the almost impossible requirement to demonstrate that a forest plan will ‘maintain viable populations of species,’” Guthrie testified. 

Guthrie also pointed out that much of the assessment and monitoring in the rule is geared toward climate change.

“Isn’t it ironic that carbon sequestration is most effective in younger thrifty stands of trees, but the Forest Service is continuing to manage older and older stands of decadent trees through lack of harvest?” he asked. “These older trees actually give off net emissions of CO2 into the atmosphere. In contrast, a University of Wisconsin study found that sustainably-managed northern hardwood forests are sequestering 1.5 tons per acre per year of CO2, while returning oxygen to the atmosphere and making a significant contribution to the economy.”

Guthrie points to monitoring language in the rule as further evidence of a tack away from timber management. The final rule reads: “Monitoring under the final rule focuses to a greater extent on ecosystems, habitat diversity, and smaller numbers of species to monitor with the intent that tracking of species diversity and habitat sustainability will be more cost-effective and reflective of unit-specific capabilities.”

Again, Guthrie asked, where is any emphasis given to meeting timber outputs, monitoring timber mortality, or assessing the economic impacts of under‐harvesting the ASQ?

To the contrary, he said, the Forest Service throws up its hands when it comes to measuring such factors. The rule states: “Due to the programmatic nature of this rule, it is not feasible to assess distributional impacts (for example, changes in jobs, income, or other measures for social and economic conditions across demographics or economic sectors) in detail.”

That, Guthrie said, was a brush off.

“In other words, don’t bother the Agency with the burden of assessing the negative economic impacts of under harvesting, because they will be too busy accomplishing the following objective from the same section: ‘The proposed rule is more prescriptive about considering and facilitating restoration of damaged resources as well as improving resource capacity to withstand environmental risks and stressors....’”

But given the current high unemployment rate in the country, Guthrie testified, it is very important to assess the value of available forest resources and the number of jobs those resources can provide.

“A recent analysis by the Minnesota DNR found that $1 of timber value produced $41.60 of value‐added economic activity,” he said. “By one rule of thumb, every 20,000 board feet of timber harvested provides enough raw material to support one job in the forest products industry. At those rates, the Chequamegon‐Nicolet’s unharvested ASQ of 60MMBF could produce $18 million of additional timber revenue, $748.8 million of value-added economic activity, and 3,000 additional jobs every year.”

Neglecting that kind of value doesn’t make sense, Guthrie concluded.

“Whatever happened to common sense where the physical needs of society and the wise use of our natural resources were given at least equal importance with our desire to maintain a healthy environment?” he asked. “Again, in my experience the two are not mutually exclusive. We must find a way to strike a balance in this proposed rule that will accomplish both. The future of our National Forests and the health of our country depend on it.”

Richard Moore may be reached at richardmoore.gov@gmail.com.

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