A MILLION ACRES OR ZERO?
Debate Rages Over Roadless Lands in Tester’s Wilderness Bill
It's amazing how some people can look at yellow and see red while others see green.
By Bill Schneider, 8-11-09
Back in 2006, Democrat Jon Tester vowed many times during his hard-fought campaign with Republican Conrad Burns to protect roadless lands, but his current critics claim that the junior senator’s controversial bill, S. 1470, the Forest Jobs and Recreation Act, gives up more than a million acres of roadless country, mostly in the Beaverhead-Deerlodge National Forest (BDNF), to future timber management.
It might be unintentional and there might be plenty of time to change course, but the bill’s critics insist that as the legislation is currently written, it would trump the National Roadless Rule and congressionally designate that million acres of wild land as officially available for logging.
Tester’s bill includes, as does most if not all such legislation, a map to illustrate what legalese cannot. Here lies the main point of contention.
“The map shows that most of the three national forests and/or ranger districts covered by the legislation fall into a category (marked yellow on the map) titled suitable or open to timber harvesting.,” says Gary MacFarlane, a board member of the Alliance for the Wild Rockies. “If that map is not changed or refined and it becomes part of the legislation, then the roadless rule wouldn’t likely apply, by my rough eyeball estimate, to nearly one million roadless acres mainly on the Beaverhead-Deerlodge, though it appears some roadless land on the Kootenai and Lolo national forests will also fall into suitable or open to timber harvest category.”
Click here to see review the map.
“In other words, if the map remains part of the legislation,” Macfarlane explains, “it would congressionally ‘designate,’ in a manner of speaking, the yellow areas as suitable and/or open to timber harvest and such a designation could presumably overrule any administrative action such as the roadless rule.”
“They (Tester’s staff) might be telling different people different things,” suggests AWR executive director Michael Garrity, “but if the map is part of the bill then it opens the roadless land up for logging. There is no way they can get 7000 acres a year cut (in the BDNF) if they don’t go into roadless.”
I had a long conference call with Tester’s staff this afternoon to discuss these allegations, and they consider it all a “misperception.”
It is true, according to Tester’s office, that around 1.9 million acres of the BDNF are colored yellow on the map, of which 904,058 are considered Inventoried Roadless Areas. Under any circumstances, however, only a maximum of 70,000 acres can devoted to any type of timber management, and most if not all of that will be stewardship logging. When that limit is reached, the legislation expires and mandates no additional timber harvest.
When the bill sunsets, these lands included revert to the today’s status quo, which means the roadless lands will still be roadless. “Nothing in the bill releases these lands,” Tester’s staff insists.
And all of that 70,000 acres of the BDNF that’s actually logged will, according to Tester’s office, “come out of the other million acres,” not 904,058 acres of roadless lands.
Ditto for the Three Rivers Ranger District of Kootenai National Forest where 400,100 acres would be considered suitable for timber harvest (i.e. “in yellow"), and of that total, 201,400 is roadless land, roughly 50 percent as with the BDNF, but required timber cutting (30,000 acres total) comes from already-roaded timberland.
But S. 1470 doesn’t desigante any roadless lands in the Seeley Lake Ranger District of the Lolo National Forest for timber harvest.
The bill also requires the Forest Service follow strict priorities when deciding which lands go into timber management--mainly lands that have already been harvested and now have marketable second growth; lands with a high density of roads, some of which may be restored and closed after logging; lands that have been adversely affected by earlier development are in need of restoration; or lands that have been affected by bugs or forest fire.
These priorites obviously restrict any timber management to already-developed landscapes and keeps it out of any roadless areas, Tester’s office insists, which means S. 1470 wouldn’t impact any roadless lands.
FOOTNOTE: For a chronology of four years of NewWest.Net’s extensive coverage of this issue, click here.
[End of article]Well, Tester's office insists this and Tester's office insists that; but, the fact is that the map pretty clearly shows the apparent release of a lot of roadless. Look, all this confusion and all of these questions, about what is or isn't in the bill, pretty clearly suggest that this bill was ghostwritten by outsiders to enable a freshman politician make a big splash, rather than actually being written by a veteran legislator, and the whole mess is now being left to the inexperienced office of that freshman politician to explain how it got this way. This is not any way to craft national legislation. If we're going to debate a bad piece of legislation, then it ought to at least be written well enough to be clear about what is being debated. If he can't do that, then Tester should have stayed on the farm.
Not to mention Tim Border's very good point from another posting. Tester's bill, undoubtedly ghostwritten by timber mill operators, mandates "7000 acres of timber harvest a year in a forest that even its own foresters state is excessive, but more than that by subsidizing the mills with public owned timber the private landowners who are battling the loss of their own forest will be paid pennies on the dollar due to the market being saturated with public logs..." Seems to me like a recipe for creating artificially subsidized public competition for private wood lots. Now, why would a bunch of timber mill operators want a subsidized market for logs, saturate with public logs, a market in which they would get to pay the rock-bottom minimum for incoming logs and then be able to artificially pump the market with predatorily low lumber prices and still make a high profit?
But, I digress; let's go through it one more time. Tallies vary; but, there are "about" 5 or 6 million acres of candidate Wilderness in Montana, primarily in the form of WSAs and other roadless areas. Right now, all of these areas are under Vilsack's direct control and may or may not be touched in the foreseeable future, especially since Vilsack has recently gone out of his way to make it clear that he wants a single national resolution to the roadless question and not piecemeal crap like this Tester bill. This Tester proposal protects a bit more than 10% of that 5 or 6 million acres while releasing two WSAs and probably a lot more roadless than we expect. I understand that this is supposed to be a compromise, with both sides giving a bit; but, protecting 10% of the areas that should be protected still leaves those of us on the conservation side a long way from our goal and opening a "collaborative compromise" relationship with a 90/10 split seems, well, just a bit of a condescending insult. I might have been more inclined to be more positive about a 70/30 split, but a 90/10 split seems screwed, er, skewed. What happens to that other 90%, that other maybe 4 million or more acres? Will it be another 25 years before the conservation side gets any more of it protected? Are we supposed to be happy with a 10% bone to gnaw on? If this is Tester's big push to break the wilderness logjam, why propose only a 10% solution, especially if you truly intend to see more than 10% protected later anyway? In fact, this charade of a conservation bill only protects a bit more than 600,000 of Montana's roadless acres; Colorado is working to protect over 4 million; and that's frigging Colorado! If this is going to be Tester's new model for a new collaborative beginning, why did the collaboration stop at only a 10% offering to the conservation side? What the hell kind of conservationist is this moron, especially when he can't even craft a clear bill? What faith can we have that this kind of a lopsided beginning is only the beginning and that we should be happy with this start, especially when this moron can't even craft a clear bill?
As I have said before, I worry that the passage of this bill might be used as a political ploy to poison the well for further Wilderness protection. I can hear it now, "Tester gave them some wilderness; but, the enviros are never satisfied." I've heard that before.
Again, essentially all of the roadless in Montana is under Vilsack's control right now and there aren't any big cracks in that armor, at least not right now. I don't see any reason to panic, at least not yet; but, I fear that this bill could be exactly the kind of political ploy that could open that first crack in roadless protection. Why get spooked and chance it for a 10% proposal that, as far as I'm concerned, is rather insulting.
Speaking of getting spooked into taking the bait on a bad deal, lot's of people seem desperate to convince the conservation side that NREPA is dead, will never be anything but dead, that we need to cut a deal while we can, and that we're so hard up that even a 10% charity share is the best we're ever going to get. I've played that game myself before; it's nasty and I, for one, won't fall for it. Frankly, this crock reminds me of how the NWF and GYC and other collaborators let CUT screw the conservation movement out of, what was the final total, $ millions for a thirty year lease on twenty or thirty AUs worth of bison range that CUT is making sure the bison never get to use anyway. Now, we have to put up with this moron who can't even craft a clear bill?
"Roadless" that HAPPENS to have been found SUITABLE FOR TIMBER MANAGEMENT. That means suitable for forestry that might prevent seeing the good stuff chewed down or burnt.
And Mike, whichever of you is real, you guys won't be satisfied until the last "roadless" acres are either chewed down or burnt; nor will you be satisfied until the last mile of road is obliterated, and every one of THOSE acres subsequently chewed down or burnt.
Gosh al mighty. No wonder Pew won't fund you, you won't shut up when you've got a "good thing" going.
the draft legislation says that projects must be:
(b), consistent with laws (including regulations) and forest plans and appropriate to forest types.
The Roadless Area Conservation Rule is a regulation and from what I can tell the legislation specifies that projects must be consistent with this rule that conserves roadless areas. Am I missing something?
No, Backcountry, you have it right.
The only legal change in this thing is a requirement for implementation of a program and substitution of acres litigated off the table. So you love it, right?
Skinner is entitled to his opinion, like anybody else. But at a minimum, there appears to be ambiguity and room for conflicting versions of how some provisions in the proposed bill would shake out. Tester's office might be doing their best to respond to questions in good faith, but ultimately agencies and courts will look to the language of the bill -- not the opinion of some staffer as expressed to some journalist.
Some of the legal rules, or canons of construction, for interpreting statutory intent are relevant here:
(1) First, courts look to the plain language of the statute. If that doesn't settle the issue, they look deeper. Here, the statute doesn't seem to be entirely clear and subject to a single interpretation.
(2) Courts are to give effect to all words and provisions in a statute -- based on the (arguably) reasonable assumption that Congress included them for a reason. Applied here, why label a bunch of roadless lands yellow, as open to logging, if its not Tester's (and the drafters') intent that logging would be allowed? Change the bill, including the maps, to ensure that the intent is clear. Problem solved.
(3) Specific provisions generally prevail and control over more general provisions. In other words, a general statement that projects must be "consistent with laws (including regulations). . ." could be trumped by a specific map or provision designating certain areas open for logging -- even if inconsistent with the roadless rule. On top of that, the fate of the roadless rule is by no means certain and the ongoing legal morass could open a bill passed in 2009 to all sorts of differing interpretations depending on one's point of view, and what happens next on roadless litigation and policy. So, again, why not be specific and explicit about what's intended?
(4) Repeals by implication are disfavored. This one could play out in any number of ways, but leans in the same direction about being explicit as to intent, unless the actual intent is to muddy the waters.
Online primer on canons of construction:
http://www.answers.com/topic/canons-of-construction
Thanks, Bill, for continuing to sort it out.
Comment By Beargrass, 8-13-09skinner
fires and beetles have nothing to do with roadless designation.
Fires burn worse in logged areas, beetles are a result of milder winters.
stop suckling from the blue ribbon teat
One more corporate tool elected by the out-of-workers from Montana.
Comment By Gary Macfarlane, 8-13-09Thanks Bill for running the story about the problematic map included with Senator Tester’s legislation. A lot of people have opinions about what the legislation and map mean, myself included, and those opinions are wildly divergent. That, in itself, is a massive problem. The intent is not clear. That is just one reason this is an awful piece of legislation.
What is certain is if the legislation passes as is (map included) and there is a legal controversy, the ones making the decisions on legislative intent won’t be Senator Tester’s staff, me, Bill Schneider, or likely anybody else who has posted on Newwest. The federal courts will decide.
What really bugs me is the prospect that this top-down, backroom dealing could end up being attached as a rider to some appropriations bill, and thus become law without ever being subjected to a single public or committee hearing. If Tester is so proud of this boondoggle, why isn't he holding public hearings around the state right now, during recess, to find out what all the people who were EXCLUDED from the eco-timber private club think about it, and to clear up some of these ambiguities???
Let's see, who was the last Montana legislator to release a bunch of illegal logging in the Kootenai by the non-public legislative rider process... Oh yeah, Conrad Burns! Whatever happened to that guy?
When will the media quit acting like sheep and get the hard facts to the people who want a fair and honest debate. Protecting Tester is not the media's job. Get the truth and print it.
Comment By Todd, 8-16-09Interestingtly enough this $500,000 special deal for enviro hikers is one of the "welfare programs" that they bellyache about benefitting ranchers.
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