In addition to requesting that the Clinton era rules be re-instituted we should also be removing the corporate shills, appointed by the industry-friendly Bush administration, whose sole purpose has been to dismantle and sell our forests, national parks, and other national treasures to the highest bidders (or lobbyists).

A petition to Hon. Collin C. Peterson, Chairman, House Committee on Agriculture, House of Representatives, U.S. Congress to investigate and remove Mark Rey has been posted at:

http://www.thepetitionsite.com/takeaction/479649167

I encourage all those who read this to visit this site and sign the petition.

While reasonable people can disagree about some aspects of the different elements of the 2005 Planning Rule, I think it’s important to move directly to those more nuanced arguments and remove consideration of statements made here that are easily refutable- by simply looking up and reading the regulation itself.

1. Public involvement is required (read the regulation, available on the internet by searching on "planning regulation Forest Service") section 219.9. There is more public comment required than under the previous regulations. You can also find on the site a link to the forest and grassland examples of public involvement they are doing. At this point in time, some forests are doing public meetings and some are in their 90 day required public comment period.

2. Under the new rule, each forest does evaluate its roadless areas. The directives show how each evaluation is done. In fact, some forests are finding more roadless acres in their new inventories than in previous inventories.

3. The new rule requires a monitoring and evaluation program also (there is an entire section on it (219.6)), and it is required that the public be involved in its development (see 219.9 a) which was previously not the case.

4. This is true, there are guidelines and not standards. The difference is more complex and easily worth more nuanced discussion. The documentation for deviating from a standard or guideline seems to be approximately equivalent, but this could certainly be further discussed and debated.

5. The question is really how the species viability in the old rule compare to the species diversity provisions and ecological sustainability provisions in the new rule. Again, this is more complex than easily conveyed in a few paragraphs.

Whatever its strengths and limitations, this rule was developed by the Forest Service- by career public servants with experience in planning - not by Mark Rey. That is certainly not to say that everyone in the FS agrees with it. I don’t know exactly how to refute this knowledge claim except by personal experience. So it is simply incorrect to state that the 05 rule has none of those five provisions and that it was authored by Mark Rey.

In addition, it does not “prioritize economic and social sustainability, rather than ecological sustainability.” The regulation states “Sustainability, for any unit of the
National Forest System, has three interrelated and interdependent elements: social, economic, and ecological.” This definition follows the concept of sustainable development as used internationally; for example, in the 2005 United Nations World Summit Outcome Document, which refers to the "interdependent and mutually reinforcing pillars" of sustainable development as economic development, social development, and environmental protection (see entry for sustainability in Wikipedia).

Based on my experience, I would argue that the best thing for the environment would be to let these plans go forward under the 2005 rule, so that the actual protections that the public are telling us they want (in our plan collaboration and public involvement) could be implemented as quickly as possible. The new plans are usually more protective and certainly more up-to-date than the old plans, many of which date from the 80’s.This requires additional work to support the record on the development of the rule, as required by the court order, but the FS can meet those legal requirements.

Ahhh, but Ann, it would make to much sense to allow people actually living in an area to have input intoFS management, especially those who are working in them every day. The idea is to let a bunch of liberal lawyers in NYC make all of the decisions whether they even know what a lodgepole is or not.

As someone who has spent a great deal of time working on and reviewing Forest Plans, I think commenter "Ann FSplanner," one of the apparent authors of the 2005 Rule, seems a bit desperate in trying to blunt some of the article's valid criticisms (i.e. Mark Rey did not "author" this complex and detailed rule. However Ann, you can't say the 2005 Rule doesn't follow Mark Rey's philosophy and it's Mark's Rule in substance). Ann's comment does point out some key errors in the article, but her comment also contains errors of fact and omission.

Public involvement: Sure, as Ann point out, the 2005 Rule requires public input or feedback. But involvement is not equivalent to accountability. The public's ability to challenge the soundness of USFS decisions is dramatically reduced under the 2005 Rule.

Standards vs. guidelines: Ann: It is flat wrong to imply that unenforceable guidelines are "approximately equivalent" to Standards. The legal difference between enforceable Standards (old 1982 Rule and 2000 Rule) and un-enforceable "guidelines" (new 2005 Rule) means:
- less accountability to the public - Decision making based on professional judgment and guidelines leaves nothing for the public to challenge - no accountability.
- far less assurance of environmental resource sustainability
- more "flexibility" for the Forest managers - who get most of their pressure from economic and recreational interests.

Standards are one of the only tools that responsible forest managers had to require environmental resource protection and thereby withstand the un-ending political and economic pressures for more outputs, more amenities, more...

Monitoring: The 2005 rule includes some required monitoring. However, since the Rule was issued some Forests in the West have virtually stopped monitoring on a landscape level the health and trends of watersheds, wildlife populations, water quality, etc. because it is all but unnecessary in Forest Plan decisions under the 2005 rule.

With the 2005 Rule, we have returned to a more primitive time when "best professional judgment" has largely replaced environmental monitoring, and where "feedback" from local user groups has more influence than actual data regarding resource conditions. How nice and easy for the USFS decision makers not to be so limited by facts.

Perhaps the 2005 Rule is widely accepted by Forest Planners and Forest Deciders who tired of having their decisions successfully challenged with the use of monitoring data and scientific information. Perhaps. However, many Forest Service staff ARE concerned with the lack of accountability under the 2005 Rule and the lack of ability to protect the resources that Congress has charged them with sustaining. Most USFS resource professionals I've spoken with lament the loss of resource protection Standards, and lament the greatly reduced reliance on field data and science in Forest decision making. Importantly, our Forests not only provide lumber and recreational opportunity (both valid uses), they provide the water we drink, the water that sustains our food crops, and the bulk of remaining forested and alpine wildlife habitat in the continental United States. These resources belong to us all. I argue that both the old 1982 planning Rule and the 2000 Dombeck (Clinton) Rule provided far more effective tools and requirements for protecting and sustaining air, water and wildlife resources while providing for multiple uses if the Forests.

FS planner Ann comments that "Whatever its strengths and limitations, this [NFMA planning] rule was developed by the Forest Service- by career public servants with experience in planning - not by Mark Rey." On the other hand, in the April 2 issue of High Country News, Lolo national forest staff officer Andy Kulla writes that "the agencies don't make this stuff [NFMA planning rule] up or go to work every day and say 'I wonder what I'm going to do today?' They do what the people you and all your readers elect to office tell them to do."

One of the stunning developments under the Rey-era forest plans is dropping enforceable standards for "aspirational goals."
Use any dictionary you like, this switch created so much wriggle room in forest plans as to make them essentially meaningless. No forest would be hauled into court for violating its own standards. Instead, forest officials could fall back on the all-encompassing excuse of "adaptive management" and say conditions had changed so management changed.
I can understand FS complaints about analysis paralysis and getting hauled into court at every turn. Yet if forest officials followed their own (pre-Rey) forest plans, without kow-towing to political pressure, they wouldn't get hauled into court by conservation groups so frequently. Indeed, the best defense against ANY lawsuit, from resource extractors or Earthjustice, is to set up a scientifically defensible forest plan and then follow it -- none of this loosey-goosey aspirational stuff. The biggest problems come from not original laws passed by Congress, but the neverending stream of exceptions sought by Congress, for this mine, that rancher or this energy company.

The Bush Administration knew that the new forest planning rules were illegal. Their plan was to issue the new planning rules knowing they would be shot down by the US Court system. At this point the Bush Administration would go to Congress to seek help. Everything was going according to plan until last November when the American people said they had enough of the GOP's "Leadership" and the House and Senate turned blue. It's also interesting to note that the Bush's new forest planning rules closely resemble a timber industry wish list. Come on...are you really surprised? Read more here: http://www.nativeforest.org/pdf/wishlist.pdf

Phil, on the contrary, I am not “desperate”; I am, in fact, delighted to have a chance to participate in civil discourse at a deeper level than that of the partisan verbal slugfests so unfortunately common in today’s blogging.

As to your points. I said that Mr. Artley’s statement that the rule was “drawn up by Mark Rey” was untrue. Your counterargument was that while Mark Rey did not author it, it is “Mark’s rule in substance”. You seem to be accepting my statement correcting Mr. Artley’s point. I do know that the people in the FS worked on it and their concepts and ideas were behind it. If Mark Rey agreed or not with all the provisions and to what extent, is simply unknown. Someone in the Department agreed -enough to sign off on it- is all we have evidence to show at this point.

Again, Mr. Artley stated that the 2005 Rule doesn’t have an EIS with public involvement. Usually when people talk about public involvement they mean involving the public to arrive at a decision in a plan. You seem to be interpreting that term to mean something different to quote you “involvement is not equal to accountability.” I am in complete agreement with you that they are not equivalent. Nevertheless, that is not what Mr. Artley said. So it seems that you are again agreeing with my point but reorienting the statement to accountability.

If then, we are to go with your line of thinking, and compare on the basis of “accountability” we might break that down into several components. First is accountable for using the guidance in the plan in developing projects, and second is accountability for following through on what is in the project level document to what is implemented on the ground. To quote you, “ability to challenge the soundness of USFS decisions is dramatically reduced under the 2005 Rule.” OK. So first, plans are developed collaboratively and people have the 90 day comment period (longer than previous rules) to comment. Then they have the objection period (BLM also uses objections on plans). Then there are opportunities to appeal and litigate the plan as well as each project that takes place when the plan is in place (oil and gas leasing decisions, travel management decisions, fuels treatment projects, timber sales). So where exactly does that “dramatic reduction” occur?

“Less accountability to the public - Decision making based on professional judgment and guidelines leaves nothing for the public to challenge - no accountability.” No, the public still has plenty of things to challenge –the courts are rife with NEPA and ESA claims. What I meant by equivalent is that, practically speaking, when we do a NEPA document like for trails or fuels treatments, we can deviate from standards now, using a “site-specific plan amendment”. Under the new rule, we would have to do exactly the same thing- describe in a NEPA document, with full public disclosure, why exactly we had chosen to deviate from the guidelines in the plan. And the public would get a chance to weigh in. So either way, to deviate from a standard or a guideline, we have to explain why and have it hold up in court- that’s what I meant by “equivalent.”

I don’t know if you can make those broad statements about forest managers going against guidelines and desired conditions in 05 plans when they plan future projects without any experience of what they actually would do. If a project is required to be consistent with a plan, as required in the “plan consistency” section of new plans, wouldn’t that be open to litigation also?

I don’t feel “unending pressures for more of those commodities.” I feel that a lot of our communities and groups are trying to achieve a balance of uses while protecting the environment- some are on each end- both no people anywhere and development everywhere, but most people are somewhere in the middle.

You also stated “since the Rule was issued some Forests in the West have virtually stopped monitoring on a landscape level the health and trends of watersheds, wildlife populations, water quality, etc. because it is all but unnecessary in Forest Plan decisions under the 2005 rule.” So there appear to be two claims you are making. The first is that “some forests in the West have virtually stopped the monitoring on the landscape level the health and trends of watersheds..”. Do you have any evidence to support this claim?

The second is that stopping is related to the 05 Rule. Since all the forests are under the 82 rule, and none are actually completed an 05 plan, this does not seem logical. More information on this would definitely be required before I could comment.

Your two next paragraphs both assume that the above claims are valid, plus that the 05 rule somehow relies less on scientific information. Yet the 05 rule has specific science requirements in section 219.11 that are far more stringent than the 82 rule. And the addition of EMS to the 05 Rule was specifically to help with accountability on the ground for environmental protection and for ensuring that monitoring is carried out. So one could argue that in terms of monitoring and science, the 05 rule is substantially better than the 82 and (this is worthy of more discussion) the 2000. In fact, independent external reviews of on-the-ground actions as required in the EMS is far more "accountability" than simply legal accountability for project planning using plan level standards. I am hoping that you would agree with one of my FS colleagues that "appeals and litigation should not be the primary quality assurance mechanism for FS actions." We are all concerned ultimately with what happens on the ground with regard to the environment, are we not?

Which leads to my question, if standards and EIS’s were added to the 05, would the 82 still be better in your eyes? And why, if there are more stringent provisions for collaboration, monitoring and science?

Andy, I believe my colleague from the Lolo was probably quoted out of context. In fact, as you know, there are probably thousands (at least) of bureaucrats in DC in a variety of agencies experiencing the thrill of regulation writing at this very minute.

Ann: Yes, I was actually agreeing with many of your points; but I also feel you were ignoring some of the weaknesses in the 2005 Rule. I am very hopeful that in USFS Region 1 (Missoula) and elsewhere, Plans are being written with environmental protection and accountability in the forefront. I know that some Forests in that Region will make their Plans and decisions as solid as the Rules will allow. That won't be the case everywhere.

I am not interested in seeing the USFS tied up in litigation. But the reality is that the threat of litigation has improved USFS decision making, has improved USFS's interaction with the public, and has improved resource protection in decisions. Without accountability for resource protection, the USFS tends to revert to 1960's style "professional judgment" where the government decision maker "knows" what's best. Resource expertise and monitoring data get sidelined. The dependable fallability of a governement official's best professional judgment is a big part of the reason that Congress imposed NEPA and other requirements on Federal Decisions.

You point out that all decisions are accountable to be consistent with the Forest Plan. I say "so what?" When the Plan doesn't require anything more than moving the Forest toward fuzzy desired future conditions - which are often specifically designed to justify management actions - and the Plan has mere "guidelines" for resource protection, then any decision that complies with remaining Federal and State Law will be A-OK. I don't believe we'll see many decisions successfully challenged and overturned for lack of alignment with the Forest Plan. Will I be surprised?

Environmental Management Systems (EMSs) don't inherently guarantee results or resource protection. EMSs could be well written, results oriented and very protective, or they could be very weak and process oriented. The USFS does not have the resources to write EMSs that cover the full range of issues in the Plan let alone implement those EMSs. That's why USFS EMSs are being done on limited issues that cover only a portion of the scope of the Plans. Ann: I know that you know the difference between the ideal of EMS, and the reality of EMS within the limited-budget world of the USFS. To paraphrase one Forest Planner, "EMSs will bury the USFS, or the USFS will bury EMSs."

Standards are enforceable. Guidelines provide un-enforceable guidance. To pretend they are legally equivalent is disingenuous. The only way a Forest will be vulnerable for ignoring a guideline is if they do so arbitrarily or capriciously - essentially they'd have to lie about why they weren't following the guideline. C'mon, you're really stretching with this one Ann. There is no way to positively spin the loss of enforceable Standards.

While the 2005 Rules may, as you say, have more stringent requirements for science and monitoring, at least in some cases the Rules also appear to have LESS stringent requirements for science and monitoring. Since this website apparently does not limit the length of our comments, I'll tell you a little story: A planner on one of the Utah Forests sat comfortably in his chair with his hands atop his head and calmly explained to me why having monitoring data for watershed and wildlife health are not needed under the new Rules in order to write and implement a Forest Plan. So, without knowing the current health of that Forest's watersheds and streams, and without knowing the location, status and trends of sensitive wildlife (formerly known as indicator species) on the Forest, that Planner was setting desired future conditions, forest management direction and recreational use patterns for those same watersheds. That planner was openly giddy about the increased flexibility for future Forest decisions due to lack of Standards. He did politely invite me to "provide feedback" if I disagreed. I did.

And now... the rest of the story: That Planner was among the team that helped you design and write the 2005 Rules (I'll bet you know his name). He has been promoted to Washington to work on implementing the Planning Rules. no kidding

Ann: Yes, I was actually agreeing with many of your points; but I also feel you were ignoring some of the weaknesses in the 2005 Rule.

I am not interested in seeing the USFS tied up in litigation. But the reality is that the threat of litigation has improved USFS decision making, has improved USFS's interaction with the public, and has improved resource protection in decisions. Without accountability for resource protection, the USFS tends to revert to 1960's style "professional judgment" where the government decision maker "knows" what's best. Resource expertise and monitoring data get sidelined. The reliable fallability of a governement official's best professional judgment is a big part of the reason that Congress imposed NEPA and other requirements on Federal Decisions.

You point out that all decisions are accountable to be consistent with the Forest Plan. I say "so what?" When the Plan doesn't require anything more than moving the Forest toward fuzzy desired future conditions - which are often specifically designed to justify management actions - and the Plan has mere "guidelines" for resource protection, then any decision that complies with remaining Federal and State Law will be A-OK. I don't believe we'll see many decisions successfully challenged and overturned for lack of alignment with the Forest Plan. Will I be surprised?

Environmental Management Systems (EMSs) don't inherently guarantee results or resource protection. EMSs could be well written, results oriented and very protective, or they could be very weak and process oriented. The USFS does not have the resources to write EMSs that cover the full range of issues in the Plan let alone implement those EMSs. That's why USFS EMSs are being done on limited issues that cover only a portion of the scope of the Plans. Ann: I know that you know the difference between the ideal of EMS, and the reality of EMS within the limited-budget world of the USFS. To paraphrase one Forest Planner, "EMSs will bury the USFS, or the USFS will bury EMSs."

Standards are enforceable. Guidelines provide un-enforceable guidance. To pretend they are legally equivalent is disingenuous. The only way a Forest will be vulnerable for ignoring a guideline is if they do so arbitrarily or capriciously - essentially they'd have to lie about why they weren't following the guideline. C'mon, you're really stretching with this one Ann. There is no way to positively spin the loss of enforceable Standards.

Ann,

Here's the full letter Mr. Kulla wrote to HCN so that everyone can judge the quote's context:

While I know you need to take a little literary license to keep the controversy alive and sell papers, you went way over the edge and into fiction with your article “The end of ‘analysis paralysis’?” You state five times in this article that under the new planning regulations “Forest plans would no longer be required to go through NEPA analysis.” This is patently false.

Under the new planning regulations, revised forest plans don’t have to have an Environmental Impact Statement (EIS) and review numerous alternatives, but they still go through NEPA analysis. Revised forest plans would be categorically excluded from analysis in either an Environmental Assessment or EIS, but they still have to have a Decision Memo, which is NEPA analysis. The current NEPA for revised forest plans includes extensive collaboration and public involvement to develop the proposed plan, an ecological sustainability analysis, an evaluation of Inventoried Roadless Areas for wilderness potential, a timber suitability analysis, and a timber economics analysis, to name a few.

Remember, the agencies don’t make this stuff up or go to work every day and say, “I wonder what I’m going to do today?” They do what the people you and all your readers elect to office tell them to do.

Andy Kulla
Florence, Montana

Phil, I’m sorry if I sounded like I’m not a fan of standards. I personally like standards.

What I was saying about standards is that changing from standards to guidelines is not necessarily as bad as it has been painted, and I don’t think the arguments for why it’s so bad are completely clear. In fact, this is the deepest discussion of this topic I have seen. So let’s do a thought experiment. Forest A has a standard (“Prohibit new disturbances such as construction, drilling, new recreation facilities, logging, or other concentrated intense activities during the months of June and July to protect a bird species”).

Forest B has a guideline (“Generally, avoid new disturbances such as construction, drilling, new recreation facilities, logging, or other concentrated intense activities during the months of June and July to protect the same bird species).” Due to global warming, the time the birds are in the area are now May and June. On forest A’s projects they have found that they want to drill in July because the birds are gone, but they can’t due to the plan standard. So when they do NEPA on the project, they include a site-specific plan amendment, explaining the rationale for not following the standard, including documentation of their knowledge of where the species is in July- not on the site. On Forest B’s project, they also explain why they are not following the guideline in the project NEPA document, based on the same rationale.

If you disagree with the decision not to follow the standard on this project, what would be the legal standard for your challenging the project on forest A, given that the forest included a site specific plan amendment on the project, and the forest did public involvement on the project and the amendment as per NFMA? And is that different from the APA claim for Forest B’s project?

I suspect, based on the path of direction received through the years, that the FS probably got rid of standards in the 05 rule not to become unaccountable but because they were told they couldn’t have them and use a CE (which was desirable in order to simplify and streamline planning). If that were true, perhaps groups that are really up in arms about standards could ask the FS for standards and EIS’s back and then promise not to litigate the rest of the rule, and we could all go on about our mutual business dealing with issues related to specific plans and projects (e.g, not enough wilderness, no oil and gas leasing in that watershed, etc,).

Individual planners are not necessarily aficionados of EMS or monitoring and, in fact, I have also run into some of the same lack of enthusiasm that you perceived. On the other hand, resource specialists and the public seem to be very enthusiastic about monitoring (as am I) and many resource specialists are enthused about EMS (“I spend a lot of time writing what they should do on projects in NEPA documents, and finally I feel like I know it’s being done the way I wrote.”) I think what’s key is what goes in the plan in terms of monitoring (usually not determined solely by planners), how wisely the decisions are made about what information is important and at what scale, and whether it gets done in reality. Again, I don’t know of anything specific in 05 that makes 05 plans less accountable for monitoring than the 82 or 00, but someone reading this may be able to enlighten me. As I’m sure you know, the issue of selecting the “right” monitoring, and accountability for monitoring has been extant, and of concern long, before the 05 rule was a glint in someone’s eye.

Andy,

I agree with every sentence in the first two paragraphs of Mr. Kulla’s letter. I think the problem is that it is not clear what this sentence “Remember, the agencies don’t make this stuff up or go to work every day and say, “I wonder what I’m going to do today?”” is relating to; plan writing or rulemaking, or the compromise results of those activities, or something else entirely.

In my experience, regulation writing exercises are initiated by (1) agencies who want to improve on the way things work, or the case law developed or want to tweak statutes to make them more user-friendly ( the Constitution in action), (2) outside groups who want to improve things in their worldview, or (3) members of the Administration who want to improve things in their worldview. Sometimes there is a high correlation between groups in (2) being friends of (3) so it is hard to tell the difference. However, this effort (Planning Rule 05) is a case of plain old number 1.