FSEEE: Forest Service Employees for Environmental Ethics

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Fall 2012

- Visionary Management Transformation

- Burning Issues

- New Appeal Process

- Congressional Changes

- Posthumous Range Wars


Andy and Gordon

Visionary Management Transformation

It was a perfect day to begin filming FSEEE’s forest restoration sequel to “Torrents of Change.”

Former deputy chief Jim Furnish and I spent the day on the Siuslaw National Forest, where Jim had been forest supervisor when the devastating winter storm that came to change how the Siuslaw manages logging roads and streams hit in 1996.

We visited a majestic old-growth forest, with trees half-a-dozen feet in diameter that had survived past fires and managed to avoid the logging era, too.

We saw an impressive example of new restoration thinning. A second-growth forest clearcut 30 years ago was thinned to leave the biggest couple of dozen trees per acre, opening up the forest canopy to light. Then the Forest Service planted a diversity of tree species, including hemlock and western redcedar, in the understory.

Today the forest is fast developing a diverse and multi-layered canopy, including alder and elderberry, providing nitrogen for the soil and berries for birds.

Our filming also took us to old roads where the Forest Service had replaced culverts that were too small to withstand storms. It was here that the Siuslaw’s success was most apparent. A recent winter storm had tested the new culverts and reformed road practices, especially the practice of water barring unneeded roads.

Unlike 1996, when the storm had triggered massive landslides and inflicted heavy costs on road infrastructure, the 2011 storm had left barely a ripple upon the landscape. It was evident during our tour that the new road practices were working.

Furnish may now be retired from the Forest Service, but his vision is being sustained in today’s Siuslaw National Forest management. He and FSEEE are delighted to be collaborating again to help bring that vision to national forests across the country.

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Burning Issueswildfire

In 1935, the U.S. Forest Service, beleaguered by the nation’s most prolonged and widespread drought, adopted an “out by 10 a.m.” policy for fighting fires. The new rule not only set off a frenzy of fire suppression, but banned the traditional use of fire for clearing brush, restoring nut-bearing trees and reducing fire hazards. With the Dust Bowl drought in command of the nation’s heartland, the Forest Service could no longer appear to tolerate fire in its forests. The new policy was controversial, especially in the southeastern states where settlers, foresters and wildlife managers had used fire for decades, much as indigenous peoples had for thousands of years.

The Forest Service would not begin to re-embrace fire as a tool to manage vegetation until the relatively damp 1960s. By the mid-1980s, all of the major natural resource agencies had formally endorsed using fire to restore forests.

In May of this year, in a sudden reversal, the Forest Service’s deputy chief for firefighting, Jim Hubbard, issued an internal memo that has virtually banned the use of fire for ecological restoration. Citing a “unique challenge” facing the Forest Service in 2012, Hubbard required prior approval by a Regional Forester for any fire suppression strategy that was used to achieve restoration objectives.

The “unique challenge” Hubbard cited was the prediction of “above normal” fire potential for many areas of the country, and resulting suppression costs which would exceed the 10-year average appropriation.

It does not take a mathematician to realize that in five years out of ten, assuming a normal distribution of costs, the 10-year average appropriation will be exceeded. Likewise, “above normal” simply means more than the half-way point. So, the “unique challenge” is actually a challenge realized, on average, every other year.

And despite the memo’s dire predictions, 2012 appears to be an unexceptional fire year in terms of numbers. At the middle of October, pretty much the end of the fire season, there have been 50,430 wildland fires nationwide, compared to 63,516 fires in 2011, and a ten-year average of 65,839. Although more acres have burned this year—9 million compared to the ten-year average of 6.7 million—similar numbers of acres have burned in recent years (over 9 million in 2006 and 2007).

The lasting effect of this internal memo is that it reinforces firefighting’s supremacy in the Forest Service hierarchy. For more than a hundred years, the Forest Service has enjoyed a blank check from Congress when it comes to the cost of fighting fires. A 1908 law provides that “advances of money under any appropriation for the Forest Service may be made . . . for fighting forest fires in emergency cases.” What’s different this year is the bold announcement, which came in May, before fire season had even gotten underway in most of the nation, that the agency would “make up the difference [in funding] by transferring other available program funds.”

By early September, the deputy chief followed through by suspending all non-emergency Forest Service spending, and re-directing every available dollar to stamping out every fire.

Over the past 100 years, the Forest Service’s fire policy has followed the cycle of major North American droughts. During wet decades, the Forest Service becomes more permissive with fire, even though fire is less effective at clearing excessive damp vegetation. During droughts, the Forest Service tries futilely to clamp down on fire fueled by vegetation that flourished during the wet years.

The one constant during these cycles is the increasing cost of firefighting. Today, more than half of the money the Forest Service spends goes to fighting fire -—the highest level in history. During the past ten years, Forest Service spending on firefighting has substantially outpaced other federal land management agencies. These other agencies, like the Bureau of Land Management, have never enjoyed the firefighting blank check Congress issued the Forest Service in 1908.

Not only is firefighting more expensive than ever, it is also more dangerous. The Forest Service’s increasing reliance on aircraft to fight fire has caused aviation accidents to now account for half of all wildland firefighting fatalities. Two airtankers crashed this year killing six crew members.

As the war against fire escalates, the cost in money and lives will only get higher. Living with fire is easy when the woods are damp. It is when drought grips the nation that we reap what past bad fire policy has sown.

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New Appeal Process

In August, the Forest Service published a draft proposal that will substantially alter the way in which organizations and individuals are able to appeal agency decisions. At the heart of the proposal is the broadening of an objection process that was adopted amidst great controversy during George W. Bush’s administration. At issue is when an objection must be filed and who may file one, and the risk of limiting public input into environmental decisions.

The proposed change comes in response to the 2012 omnibus appropriations package passed by Congress at the end of last year, which included a legislative rider directing the Forest Service to revise the long-standing administrative appeals process. Congress has instructed that the Forest Service must utilize a pre-decisional objection for all proposed actions requiring an environmental analysis or environmental impact statement.

Congress first introduced the objection process, which happens before the final decision is made on a project, in 2003, as part of the Healthy Forests Restoration Act. At the time, it was intended to be used only with post-fire timber harvest and fuel reduction projects.

Unlike the administrative appeals process, in which an appeal is filed after a final decision has been made, the draft proposal requires that objections be filed earlier, while the decision is in draft form. It would also limit objections to those who provide comments during the official period, and allow objections based only on the substance of those comments.

Other changes being considered during the ongoing proposed rulemaking would limit the length of written objections and the methods for providing legal notice to the public of proposed actions.

Congress and the Forest Service believe that this change will result in greater public participation throughout the environmental review process thereby streamlining and expediting agency decision-making. Detractors are concerned that the changes will limit the public’s involvement and oversight of agency decisions, ultimately leading to more litigation.

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Congressional changes

Regardless of who has, by the time you read this, won the White House, Senate or House, the next Congress offers a big shake-up in public lands policy. Gone will be Senate Energy and Natural Resource Chairman Jeff Bingaman (D-NM), who is retiring after 29 years in the Senate, including the last five as committee chairman. The chairmanship will pass to either Democrat Ron Wyden or Republican Lisa Murkowski, depending upon which party has won the majority of Senate seats.

Both prospective new chairs hail from timber states, Oregon and Alaska, respectively. It’s been a dozen years since a timber state senator chaired this critical committee (the last to do so was Murskowski’s father Frank) and a generation since a Democrat did so when Washington’s Scoop Jackson wielded the gavel from 1977 to 1981.

Wyden and Murkowski have each earned a reputation for working across party lines; notoriously so in Wyden’s case as his 2011 Medicare reform dalliance with Republican Vice Presidential candidate Paul Ryan made waves in the presidential election. Although Wyden felt compelled to distance himself from Ryan before the election, damaged egos will heal quickly in 2013.

So what can be expected from a Wyden/Murkowski-led public lands agenda? In a word, lots. The two senators share a commitment to renewing Secure Rural Schools funding for timber-dependent counties. Wyden is the architect of the original SRS bill ten years ago and Murkowski has co-sponsored its as-yet unsuccessful long-term reauthorization. With no one expecting national forest logging levels to return to their pre-1990 levels (12 billion board feet annually compared to 3 billion today), funding local governments formerly dependent upon a share of federal logging revenues will be a top priority.

Senator Wyden played a key role in the Healthy Forest Restoration Act, ensuring that old-growth forests are protected even as the bill streamlined environmental review requirements. Similarly, he has promoted increased logging across 8 million national forest acres designed to meet local mill needs, thin over-grown stands, and protect large, old trees. Wyden was unable to persuade Bingaman to bring his Oregon Eastside Forests Restoration, Old Growth Protection, and Jobs Act (S. 220) to a committee vote. He won’t have any problem doing so if he is chairman next year.

Senator Murkowski has her own top priority. She wants to pass a controversial bill that would transfer portions of the Tongass National Forest to the native-owned Sealaska Corporation. Sealaska was instrumental in funding Murkowski’s historic write-in general election victory after Republican voters in the state’s primary passed over her for a tea party candidate. The debate over which lands Sealaska should receive to settle its native claims is the hottest political potato in southeast Alaska, but has gained little attention outside the state. As with Wyden’s east-side Oregon bill, Murkowski’s Sealaska bill is likely to find more favorable political habitat in the new Congress.
One thing will remain true to form in the next Congress: Only bills with bi-partisan support will have any chance of making it out of the Senate to become law. The difference for public lands is that bi-partisan support may be easier to come by with Wyden and Murkowski in charge.

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Posthumous Range Wars

FSEEE has been monitoring action in ongoing lawsuits over grazing rights in Nevada.

The cases involve the estate of Sagebrush Rebellion activist Wayne Hage, now deceased. Hage laid legal claim to the federal grazing allotments whose base ranch he purchased in the mid 1970s.

This summer, the Federal Circuit Court of Appeals overturned a lower court of claims decision that had found the government took Hage’s property rights and owed him millions. The reversal is a significant victory for the land management agencies.

However, Hage’s son, on behalf of his estate, is challenging a case brought in 2007 by the government to end Hage’s long-standing cattle trespass on federal land. Hage Junior is seeking to defeat the trespass claims against him by expanding his alleged water and ditch rights to include associated grazing rights on federal land. By this theory, Hage can’t be guilty of trespass on property that he already owns.

In addition, the judge hearing the trial, a G.W. Bush appointee, has referred the BLM area manager and the Forest Service district ranger to the U.S. Attorney for criminal prosecution, alleging racketeering and mail fraud. He has held both employees in contempt of court, finding them personally liable for over $30,000 in damages to Hage.

He has enjoined Hage to apply for the grazing permits he held originally in the 1970s and ordered the federal agencies to issue those permits immediately upon application.

FSEEE is continuing to monitor developments in this ongoing legal battle.

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