BRC Comments on New Forest Planning Rule_02.16.10

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Comments on New Forest Planning Rule


Forest Service Planning NOI

C/O Bear West Company
172 E 500 S
Bountiful, UT 84010
Fax: 801-397-1605

SENT VIA U.S. AND ELECTRONIC MAIL                         February 16, 2010

RE: New Forest System Land Management Planning Rule

Dear Planning Team,

A.  Introduction

Please accept these comments to the Notice of Intent entitled National Forest System Land Management Planning (74 Fed.Reg. 67165-67169 (Dec. 18, 2009)) (the "NOI").  These comments are submitted on behalf of the BlueRibbon Coalition, Inc. and the Colorado Off-Highway Vehicle Coalition, as well as its numerous participating individual and organizational members.  Individual and/or organizational members of any of these organizations may submit their own appeal(s) from the Decision.  This appeal and any such appeals must be independently evaluated and the agency must comply with applicable review procedures for all such appeals. 

The BlueRibbon Coalition is an Idaho non-profit corporation with over 10,000 individual, business, and organizational members, representing approximately 600,000 individuals nationwide.  BlueRibbon Coalition members use motorized and non-motorized means, including off-highway vehicles, snowmobiles, horses, mountain bikes, and hiking, to access state and federally-managed lands thought the United States, including those throughout the National Forest System. The BlueRibbon Coalition has a longstanding interest in the protection of the values and natural resources found on these lands, which it advances (1) by regularly working with land managers to provide recreation opportunities, preserve resources, and promote cooperation between public land visitors; (2) by communicating with administrative officials, elected officials, policymakers, the media and the public, consistent with its non-profit status; and (3) by protecting and advancing its members' interests in the courtroom in specific matters implicating public lands access issues.

B.  Summary

We are concerned that the NOI strays far from the core purpose for revisiting the agency's planning regulations.  In fact, the NOI threatens to create new, undefined goals and criteria which will exacerbate, not resolve, the planning gridlock accelerating through the agency.  It is sadly ironic that the agency remains mired in a decades-long effort to promulgate valid rules intended to make more streamlined the content of Forest Plans and more efficient the process by which they are created.  At the risk of belaboring the obvious, it should not take a Forest 10, 8 or even 5 years to revise Forest Plans, which are supposedly obsolete in 10 years.  The NOI does not attempt to borrow from the best ideas of prior efforts, but instead threatens a new vision fraught with uncertainty.

We urge the Forest Service to steer this effort back to its necessary focus- (1) to fill the current regulatory void; and (2) to redouble proper focus on the primary goals of efficiency and expediency in the Forest planning process.

C. Background

The National Forests were originally set aside to provide a continuous supply of timber and for the protection of water sources for local communities and agricultural needs.  Later, through the adoption of the Multiple-Use Sustained Yield Act of 1960, Congress determined that the forests should be "administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes," which purposes were declared to be "supplemental to, but not in derogation of" the original purposes. (16 U.S.C. §528) 

The Forest Service is required to "use a systematic interdisciplinary approach to achieve integrated consideration of physical, biological, economic, and other sciences" in its land and resource plans.  The Forest Service must assure that the plans "provide for multiple use and sustained yield of the products and services obtained there from 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 plans must "determine forest management systems, harvesting levels [of timber] and procedures" based upon all of the uses mentioned above, the definitions of multiple use and sustained yield as laid out in the law, and the availability of lands and their suitability for resource management.  (16 U.S.C. §1604(b) and (e))

The regulations of the Forest Service have defined fundamental principles of planning for the Forest Service's natural resources.  (36 C.F.R. §219.3)

Land management planning is an adaptive management process that includes social, economic, and ecological evaluation; plan development, plan amendment, and plan revision; and monitoring.  The overall aim of planning is to produce responsible land management for the National Forest System based on useful and current information and guidance.  Land management planning guides the Forest Service in fulfilling its responsibilities for stewardship of the National Forest System to best meet the needs of the American people. (36 C.F.R. §219.3(a))

The Forest Service is also required, as part of the development and interpretation of information for plans, to consider and incorporate the concept and conditions of sustainability.  "Sustainability...has three interrelated and interdependent elements: social, economic, and ecological."  (36 C.F.R. §219.10)

The overall goal of the social and economic elements of sustainability is to contribute to sustaining social and economic systems within the planning area.  To understand the social and economic contributions that National Forest System lands presently make, and may make in the future, the [Forest Service] must evaluate relevant economic and social conditions and trends as appropriate during plan development...  (36 C.F.R. §219.10 (a))

Important to interpreting this guidance is a proper understanding of the multi-layered nature of forest planning.  There are at least three tiers to this process, which have been described as "existing at the national, regional and local levels."  Citizens for Better Forestry v. U.S. Dept. of Agric., 632 F.Supp.2d 968, 970 (N.D. Cal. 2009).  The third, project-level of this hierarchy is that which most directly has concrete impacts on specific sites and forest resources, and must necessarily contain adequate site-specific analysis to disclose the range of proposed options and justify the agency's chosen course of action.  For the planning process to be even moderately efficient, it is therefore necessary that each level removed from the project level must be more general, less detailed, and less voluminous so that it may be completed more quickly and without inappropriately diverting human, financial and other resources to the planning effort.

D. The Planning Regulations must be efficient and yield timely results

The NOI threatens an excessively broad and unnecessarily complex planning framework.  Indeed, a framework more unwieldy than that presented by the 1998/2000 regulations or either of the approaches rejected by the Citizens for Better Forestry courts.  The planning process must function and advance the agency's mission which requires that management activity actually affect and conserve Forest System resources.  We fear we are poised on the brink of creating a fatuously self-indulgent planning process even further removed from the ground.

Our planning vision should advance the interests of a broad individual and ideological spectrum.  Put differently, it is not tilted toward allocating resources toward one form of use or another.  Those decisions are properly made in project level analysis, or at least in the generation of each Forest Plan.  There is only one special interest class that benefits from planning gridlock. The ideological extremists, who seek to disown the unavoidable impacts that humans have on the environment.  We are often perceived to be (albeit inaccurately) playing a role in an allocation debate such as "Wilderness" vs. "multiple-use", but in the current process the debate should be between "use" vs. "ideological preservation."  Planning regulations that prevent timely completion of any plans serve only the perspective of those who would have minimal, if any, on-the-ground human use of the Forest System.

We reach out to truly-interested officials, agency employees, organizations and individuals to stand up in this process for active and continuing use of the Forest System.  Whatever our differences, we face a common foe who would seize this point in our bureaucratic "evolution" to transform the visions of Pinchot, Roosevelt, and Leopold into a Forest System that excludes meaningful use.  The core vision is valid, only its implementation need be improved.  We need incremental change to existing planning frameworks, not a dramatic new vision that only threatens continuing judicial skepticism.

E. The importance the USFS has in providing a diverse range of recreation experiences for a wide range of visiting public should be emphasized in the planning regulations

In the materials we reviewed regarding the planning rule revision we noted that the agency may be operating on the assumption that recreation opportunity is being lost because lands are being degraded or used in an unsustainable way.  Such a rationale is often cited to support limitations on recreational use and for more land being "protected," or otherwise made off limits for recreation.

However, this assumption is not consistent with the facts, at least for USFS-managed lands. The agency's own planning activities results in much more loss of recreation opportunity than any other factor. The overriding reason for loss of recreation opportunities is the yearly additions of the primitive recreation classifications, the thousands of miles of roads and trails that were closed via the agency's travel management rule, and the many miles and areas closed via other site-specific planning.

1. A diverse range of recreational activities should be identified as one of the key "Ecosystem Services" that Land Use Plans should address.

According to the National Survey on Recreation and the Environment, the popularity and importance to USFS visitors of off-highway vehicle and snowmobile recreation has drastically increased in recent years. Ditto for mountain bike and equestrian use. Conversely, the amount of USFS lands available for motorized, mountain bike and, on some Forests, even equestrian trails, have been reduced via legislation, implementation of Forest Plans and site-specific recreation plans. Therefore, there is a need to emphasize a diverse range of recreation in the planning regulations

2. Please identify the need to emphasize a diverse range of trail-based recreation as a formal planning issue and develop at least one alternative where the planning regulations identify motorized and non- motorized recreation as a key ecosystem service and provides direction to enhance and expand opportunities for these popular activities.

3. Loss of recreation opportunity must be properly analyzed in the DEIS/EIS and addressed in the final planning regulations.

4. All of the Alternatives should reflect, and at least one Alternative should enhance the importance given to recreation in the agency's multiple use sustained yield (MUSY) mandate contained in NFMA.

F. The socio-political and economic importance of multiple use sustained yield (MUSY) must be reflected in the planning regulations,

1.All Alternatives should include a complete analysis of the history of the MUSY Act and its socio-political importance to states with large areas of federally managed lands.

2. The issue of "cumulative loss of multiple use sustained yield management" should be identified as a formal planning issue and brought forward for analysis.

Each year more and more USFS lands are removed from multiple use management. Past planning activities and litigation have significantly expanded preservation oriented management and significantly reduced areas available for multiple use. The reduction of MUSY lands has been identified by many states and counties as a key problem affecting the health and economic well-being of local communities.

MUSY is extremely important to states with large areas of federally managed lands. There is a reason Congress embedded MUSY in the NFMA; it is because management of federal lands directly impacts the lives and livelihoods of nearby residents.

3. At lease one alternative should include planning direction to enhance multiple use sustained yield management.

Both the Forest Service and the BLM are required to manage the lands under their jurisdiction pursuant to the principles of "multiple use" and "sustained yield."  These terms have been defined within the provisions of FLPMA for the BLM and within the provisions of the Multiple-Use Sustained Yield Act of 1960 for the Forest Service.  Both definitions are lengthy and worthy of a detailed narrative of the history and the importance of MUSY in the DEIS.

The new planning rule should re-emphasize that MUSY management is to be considered in the context of the best combination of land uses that meet the present and future needs of the nation with respect to "recreation, range, timber, minerals, watershed, wildlife and fish, and natural, scenic, scientific, and historical values."  The term "sustained yield" is defined to mean the achievement of "a high level annual or regular periodic output of the various renewable resources of the public lands consistent with multiple use."  (43 U.S.C. §1702(h).  See also 16 U.S.C. §531 (b))

G. The agency's stated focus on "Restoration" must be defined and carefully considered

1. It is vital that the agency clearly define what it means by restoration. The agency must also disclose the effects of this new focus on how the agency will develop and revise land use plans.

2. Restoration, or any other agency initiated planning focus must not override the MUSY mandate.

The stated focus on restoration in the Notice of Intent is of great concern to BRC's members. Restoration is not listed as a multiple-use objective in either MUSYA or the NFMA.  Other NFMA provisions confirm that MUSY is to be the overriding directive for the management of National Forests. The agency must not substitute its MUSY mandate with any other focus or initiative, including restoration.

H. Planning regulations should focus on procedures for developing, amending and revising land management plans, not on policy

1. The agency should reevaluate the "Substantive Principles" and remove any that do not specifically address procedures for developing, amending and revising land management plans.

The NOI states that this new rule will "consist of procedures for developing, amending, and revising land management plans" and it lists several "principles" that could be used in the development of a new planning rule. Note that none of the "Substantive Principles" have anything to do with procedures for developing land management plans, and only one of the "Process Principles" directly address the planning process.

The agency says its existing planning regulations are costly, complex, and procedurally burdensome. We believe this is because the previous regulations attempted to address policy instead of planning procedures. Congress sets the policies for management of federal lands, and administrative agencies must act within those legislative limits. The new planning regulations should focus exclusively on planning procedures, not policy direction.

2. Planning regulations should avoid setting management direction.

The new planning regulations should stress that Congress prohibited national level planning, specifically noting that  "there is not to be a national land management prescription" in the NFMA or implementing rule due to the wide range of biological and socio-economic conditions in the national forests. (S. Rep. No. 94-893, at 26 and 35, reprinted in 1976 U.S.C.C.A.N. 6685, 6694.)

3. Regulations should clearly state that Forest Plans should be limited to:

1. Establishment of forest multiple-use goals and objectives, 36 CFR 219.11(b);
2. Establishment of forest-wide management requirements (standards and guidelines) to fulfill the requirements of 16 USC 1604 applying to future activities (resource integration requirements, 36 CFR 219.13 to 219.27);
3. Establishment of management areas and management area direction (management area prescriptions) applying to future activities in that management area (resource integration and minimum specific management requirements), 36 CFR 219.11(c);
4. Designation of suitable timber land (16 USC 1604(k) and 36 CFR 219.14) and establishment of allowable timber sale quantity (16 USC 1611 and 36 CFR 219.16);
5. Non-wilderness allocations or wilderness recommendations where 36 CFR 219.17 applies; and
6. Establishment of monitoring and evaluation requirements, 36 CFR 219.11(d).

4. The planning directives should ensure that planning guidance is based on the 10 key legislative mandates from Congress:

  • Forest Service Organic Administration Act (Act of June 4, 1897) (16 U.S.C. §§ 1. 473-478, 479-482 and 551, June 4, 1897, as amended 1905, 1911, 1925, 1962, 1964, 1968, and 1976).
  • Multiple-Use Sustained Yield Act of 1960 (Act of June 12, 1960) (P.L. 86-517; 2. 16 U.S.C. §§ 528-531).
  • National Forest Management Act of 1976 (Act of October 22, 1976) (P.L. 94- 3. 588; 16 U.S.C. §§ 1600-1614, August 17, 1974, as amended 1976, 1978, 1980, 1981, 1983, 1985, 1988 and 1990).
  • Cooperative Forestry Assistance Act of 1978 (Act of July 1, 1978) (P.L. 95-313; 16 4. U.S.C. §§ 2101-2111, July 1, 1978, as amended 1990, 1991, 1992, 1996 and 2008).
  • Forest and Rangeland Renewable Resources Research Act of 1978 (Act of June 5. 30, 1978) (P.L. 95-307, as amended by P.L. 100-521, Forest Ecosystems and Atmospheric Pollution Research Act of 1988, Section 3 (c), and as amended by P.L. 101-624, Food Agriculture
  • Food Conservation and Energy Act of 2008 (Farm Bill) (P.L. 110-234) (Title VIII - Forestry and Title IX - Energy)
  • Foreign Operation Appropriations Act of 1978 (Act of November 5, 1990) 7. (P.L. 101-513, 104 Stat. 2070; 16 §§ U.S.C. 4501 note, 4501, 4502, 4503, 4503a to 4503d, 4504, 4505, 1641, 1643, 2101, 2109).
  • National Environmental Policy Act (Act of January 1, 1970) (P.L. 91-190; 8. 42 U.S.C. §§ 4321-4347).
  • Endangered Species Act (Act of December 28, 1973) (16 USC 1531-36, 1538- 9. 40).

I . There is a need to streamline the planning and appeal process

We agree with the agency's assessment that current regulations are costly, complex, and procedurally burdensome. There is a need to reduce the agency's costs and delays associated with administrative appeals. However, many of the "Substantive Principles" are likely to exacerbate this problem. It seems reasonable to ask: are we repeating our past mistakes?

It was interesting to learn that even back in the 1970s there was a concern that professional foresters, not the federal courts, should manage National Forests. It was surprising to learn that Senator Hubert Humphrey submitted a report to Congress stating that the NFMA is "designed to get the practice of forestry out of the courts and back to the forests."  122 Cong. Rec. 33835 (Sept. 30, 1976).  It is unfortunate that the courts are still managing much of our Forests.

1. The new rule should attempt to streamline the planning and appeal process. The analysis should disclose NFMA's legislative intent in this regard, and perhaps seek clarification from Congress regarding what level of environmental analysis is appropriate for both programmatic and site specific planning.

2. The issue of cost and complexity of planning should be brought forward for analysis and incorporated as a formal planning issue.

3. At least one alternative should be formulated that streamlines and simplifies the planning process.

4. The agency may also wish to ask Congress to clarify its intent on both policy and requirements for environmental analysis.

J. There is a need to clarify the distinction between programmatic and site-specific planning as well as what level of environmental analysis is required for both

The proper relationship between Forest Planning and project planning is a topic of frequent discussion.  In the past, the agency asserted the "programmatic" or "general" nature of Forest Plans. However, recently completed Forest Plans blur the line, viewing subsequent site-specific processes as mere reiteration or "implementation" of the Forest Plan decisions. In addition, the agency seems to suffer from a multiple and often redundant requirements for environmental analysis.

Although not perfect, we supported much of the (attempted) flexibility contained in the 2008 planning rule.

1.All alternatives should clarify the distinction between programmatic and site specific planning and at least attempt to describe what level of environmental analysis is required in each.

2. We support Forest Plans that are strategic as opposed to prescriptive.

3. The new rule should address only forest plan-level issues in Part 219, and leave project-level considerations to the Forest Service Directive System. See 67 Fed. Reg. 72773-75, 72791.

K. Comment regarding state and local government coordination during the Forest Planning process

1. New planning regulations should support and enhance close coordination with state and local governments

All of the alternatives should include direction to involve local governments in the planning process. Local governments, because they are elected by those who are most directly effected by the agency's land use planning, often adopt plans, programs and policies to directly influence federal natural resource and land planning efforts. Current planning regulations require the agency to coordinate "with the land and resource management planning processes of State and local governments." (16 U.S.C. §1604(a))  Current regulations state that "the Responsible [Forest Service] Official must provide opportunities for the coordination of Forest Service planning efforts...with those of other resource management agencies." Current regulations also provide that "the Responsible Official should seek assistance, where appropriate, from other state and local help address management issues or opportunities." (36 C.F.R. 219.9) In addition, the agency is required to "discuss any inconsistency" between the proposed plan's provision and "any approved State or local plan and laws."  Further, if any inconsistencies exist, the plan must "describe the extent to which the [Forest Service] would reconcile its proposed action with the plan or law." (40 C.F.R. §1506.2(d))

Recently, the Council on Environmental Quality (CEQ) has supported an invitation to state and local governments to become a quasi-cooperating agency in the preparation of federal land and natural resource management plans and associated EISs.  The invitation to become a cooperating agency is not based on the fact that state or local government are entities that may be affected by the outcome of the process.  Instead, cooperating agency status is specifically based upon state or local government's position as professionals having jurisdiction by law in the planning area or professionals holding special expertise in an issue that will be addressed in the analysis or decision (memo from James Connaughton, Chairman of the CEQ). 

Of course, this quasi-cooperating agency status does not relieve the federal agency of the responsibility as the decision-maker, and does not guarantee a decision that the cooperating agency may necessarily favor.  Cooperating agency status does allow the cooperators to participate in the scoping process, the inventory of data and analysis of current situation process, the preparation of alternatives, the impact analysis, and in the preparation of the draft and final EISs.  This existing guidance should be incorporated in the new planning rule.

L. It is unwise to "proactively address climate change" in the planning regulations.

1. Please remove climate change as a "Substantive Principle"

The agency's own Climate Change Considerations in Project Level NEPA Analysis (January 13, 2009) states that the effects of climate change are unknown, will vary regionally and will range the gamut from increased droughts to increased flooding. The document states: "It is not currently feasible to quantify the indirect effects of individual or multiple projects on global climate change and therefore determining significant effects of those projects or project alternatives on global climate change cannot be made at any scale."  it also states; "Complete quantifiable information about project effects on global climate change is not currently possible and is not essential to a reasoned choice among alternatives." The only thing that is certain is the climate will change from its current and/or its historical condition.

Effects of climate change are unknown. Impacts to the climate from human activities occurring on the forest, as well as the impacts of climate change on the forest cannot be made at any scale. Please remove this issue from consideration as a "Substantive Principle."

In addition, incorporating "climate change" into planning will be redundant. For example, the NOI says
Responsible officials will also need flexibility to be able to adjust plan objectives and requirements where there are circumstances outside of agency control: For example, where increasing water temperatures resulting from climate change make it impossible to maintain a sensitive fish species in its native habitat. However, such "flexibility" is already embedded in land use planning, and specific management prescriptions, standards and guidelines already address important issues such as "increasing water temperature." Indeed, existing Forest Plans contain very specific guidance regarding the monitoring of and management for sensitive habitats, including aquatic habitat.

2. The agency's planning regulations should discourage utilizing data provided by the Intergovernmental Panel on Climate Change (IPCC)

Current planning directs planners to draw on existing "synthesis and assessments" prepared by the IPCC. As recent media reports indicate, this data contains information that was not properly "peer reviewed" and some countries have even expressed a "vote of no confidence" in IPCC's data.  Given the issue of climate change is controversial, and could conceivably affect a wide range of agency planning activities, the new planning regulations should require independent verification of any data from the IPCC.

3. Should the agency ignore our request and include direction to include climate change as a Substantive Principle, the agency should include an alternative that attempts to sequestrate carbon via aggressive vegetation management.

As noted above, climate science is too "young" to be effectively incorporated into the planning regulations at this time. However, should the agency attempt to do so, we recommend an alternative that directs aggressive approach to terrestrial carbon sequestration. 

The "sink" of carbon sequestration in forests and wood products may help to offset sources of carbon dioxide to the atmosphere, such as deforestation, forest fires, and fossil fuel emissions. Aggressive forest health practices can increase the ability of forests to sequester atmospheric carbon while enhancing other ecosystem services, such as improving soil and water quality by avoiding "fatal" wildfires, insect and disease.

Planting new trees and improving forest health through thinning and prescribed burning are some of the ways to increase forest carbon in the long run. Harvesting and regenerating forests can also result in net carbon sequestration in wood products and new forest growth. If the agency insists on incorporating climate change concerns into its planning rule, these activities should be emphasized in at least one alternative

M. We strongly oppose the "all-lands" approach. Please remove this from consideration as a "Substantive Principle."

1. The USFS lacks jurisdiction over state and private forests. It should not waste valuable resources attempting to plan for lands outside its jurisdiction

The agency has this exactly 180 degrees backward. Instead of trying to force adjacent landowners to abide by the agency's wishes, it should be mindful not to let the deteriorating condition of its own forest to result in damage to adjacent lands.

2. The "rationale" for the "all-lands" approach lacks the proper perspective

On August 14, 2009, USDA Secretary Vilsack outlined his vision for the future of our nation's forests.
( ) As part of his rationale for the "all-lands" approach, the Secretary made this statement: "The Forest Service estimates that over 40 million acres of private forest could be lost to development and fragmentation over the coming three to four decades."

The agency's estimate may or may not be accurate. What cannot be denied, however, is that the Secretary's statement is completely out of context. While some private lands are developed, tens of thousands of acres are permanently protected each year. According to the Trust for Public Lands, many millions of acres of private lands have been "saved" from development. 

3. If loss of habitat to development or fragmentation is discussed in the analysis, it must include a accurate accounting of the lands that have been protected.

The analysis should incorporate a full accounting of the lands that have been conserved, lands added to the federal estate, lands added to state and local estates, and lands that have otherwise been removed from development (e.g. conservation easements).

N. The agency should develop an alternative that emphasizes a more aggressive approach to achieving the historic range of variability outside Roadless Areas and Wilderness

No one can deny that a very large percent of the agency's forests are unhealthy. There is agreement that moving to a historic range of variability, at least in as much as we understand it, is probably wise. However, the only tool available to manipulate those variables in designated Wilderness and Inventoried Roadless Areas (IRAs) is prescribed fire.

This will be a big problem for the new focus on Restoration. Unlike what the general public believes, IRAs include lands that are highly modified, and not just by decades of fire suppression. Many have been commercially logged in the past and these "plantations" are susceptible to unnatural wildfire, insect and disease. The agency's current Roadless area management severely restrict any attempt to restore these lands to the historic range of variability.

Therefore, it is logical to develop an alternative that emphasizes a more aggressive approach to achieving the historic range of variability outside IRAs and Wideness. This should include commercial logging where appropriate, which achieves the agency's mandates for community health and prosperity, and also protects against so-called "fatal fires," insect and disease outbreak.

O. Comment about the distinction between restoration and "adequate protection of roadless areas."

On August 14, 2009, USDA Secretary Vilsack outlined his vision for the future of our nation's forests.
( ) In that vision, the Secretary stated: Our shared vision begins with restoration. Restoration means managing forest lands first and foremost to protect our water resources, while making our forests more resilient to climate change.  The Secretary also stated: "An integral part of our shared vision must be adequate protection of roadless areas. President Obama was quite clear during the campaign in emphasizing his support for protecting roadless areas."

There is an inherent conflict with the Secretary's desire for restoration and the intent to provide "adequate protection" of IRAs.

The boundaries of IRAs are determined via the agency's mandate to determine which, if any, of its lands it will recommend to Congress be designated as Wilderness. The single most important criteria is the presence or absence of a certain type of road. That's why they call them Roadless Areas, after all.

IRA boundaries are not, as the general public is often told, the last remaining pristine areas in our National Forests. Many IRAs include lands that are highly modified, and not just by decades of fire suppression. Many have been commercially logged in the past and these "plantations" are now in a highly unnatural state and extremely susceptible to unnatural wildfire, insect and disease. The agency's current Roadless area management, which is purportedly focused on "adequate protection," severely restricts any attempt to restore these lands to the historic range of variability. Except for a very few exceptions, the only tool available is prescribed fire.

This situation begs the question; what is the agency's definition of protection? If by protection we mean moving the lands to a state that mirrors the natural ecosystem function then there is a conflict with his policy for protecting IRAs.

The agency should clarify the distinction between restoration and "adequate protection of roadless areas."

P. The environmental analysis should provide accurate information on water quality and related infrastructure

We were interested to view the large amount of information on the agency's website devoted to water quality. We agree that USFS lands are an irreplaceable source of water resources and protection of water quality should be a priority. However, our "on the ground" experience with several projects over the years have taught us that water quality for human consumption is much more about big technology than forest management.

One of our object lessons in this regard is the "Hayman Fire" on the Pike National Forest in Colorado. A large number of OHV enthusiasts were volunteers in mitigation efforts after that devastating fire, and subsequent rainstorms. Our members saw for themselves how wildfire can destroy water quality for wildlife and fisheries. What was interesting and surprising to our members, is that the human population, which shares the same water sources, was not impacted by same significant drop in water quality. Why? Because water is treated before it is made available for human consumption.

Our intent is not to diminish the importance of protecting watersheds. To the contrary. Our request here is that the agency disclose water quality for human use and consumption in the proper context.

Q. The environmental analysis should include accurate disclosure and detailed discussion of the social and economic impacts of the proposed rule.

1. The environmental analysis should include accurate disclosure and detailed discussion of the social and economic impacts of the proposed rule.

2. The analysis should include a detailed analysis in the DEIS of how the proposed rulemakings for planning, roadless area protection, and long-term road management policy, fit together so the American people can asses impacts, compare and contrast alternatives and develop informed comments.

3. The analysis should include a Regulatory Flexibility assessment of the proposed rules that discloses the potential impact on small business.

R. Special attention should be given to providing clear definitions of all key terms in the agency's planning documents and the DEIS, FEIS and ROD.

In our review of materials regarding the planning rule provided on the USFS website we came across two definitions of restoration:

A Definition of "Restoration"
FSM 2020 defines Ecological Restoration as "the process of assisting the recovery of resilience and adaptive capacity of ecosystems that have been degraded, damaged, or destroyed. Restoration focuses on establishing the composition, structure, pattern, and ecological processes necessary to make terrestrial and aquatic ecosystems sustainable, resilient, and healthy under current and future conditions."
The new policy broadens the definition of ecological restoration beyond the traditional approach of reestablishing specific past resource conditions, such as those defined by historical range of variation. Because restoration objectives reflect diverse public values, ecological restoration is based upon collaboration.


Restoration means managing forest lands first and foremost to protect our water resources, while making our forests more resilient to climate change. ( )

This demonstrates the need for the agency to provide clear definitions of all key terms throughout the rulemaking process.

S. The agency should review and consider revising the Purpose and Need statement for this important rulemaking.

BRC strongly encourages the agency to revise its Purpose and Need statement to focus on the addressing previous planning regulations that were costly, complex, and procedurally burdensome.

The NOI articulates the Purpose and Need as:

The Agency now has an urgent need to establish a planning rule that protects, reconnects, and restores national forests and grasslands for the benefit of human communities and natural resources. A new planning rule must be responsive to the challenges of climate change; the need for forest restoration and conservation, watershed protection, and wildlife conservation; and the sustainable use of public lands to support vibrant communities. It must be clear, efficient, and effective, and must meet requirements under the NFMA, as well as allow the Agency to meet its obligations under the MUSYA, the ESA, and the Wilderness Act, as well as other legal requirements. It also must provide for a transparent, collaborative process that allows for effective public participation. A new rule should also be within the Agency's capability to implement on all NFS units.

After admitting that the agency's 1982 planning rule was "very complex; had significant costs, was lengthy, and was cumbersome for public input," and its 2000 planning rule was "costly, complex, and procedurally burdensome" it is very disappointing then to read a Purpose and Need statement with so many undefined terms and potentially conflicting management focus.

For example, what does "reconnect" mean in this context? How can a planning rule be "responsive to the challenges of climate change" when the agency's own directives (Considering Climate Change in Land Management and Project Planning) admit that effects of climate change are largely unknown? How can any planning rule be "clear, efficient and effective" when it uses undefined terms like "reconnect" and desires to be "responsive" to effects it admits are unknown?

T. Answers to questions posed in the NOI:

Substantive Principles for a New Rule

1. Land management plans could address the need for restoration and conservation to enhance the resilience of ecosystems to a variety of threats.

Specific questions we would like the public to address include:
•  What do you see as the biggest threats to forest and grassland health and ecosystem resiliency?

The agency's own avoidance of hard questions, wishful thinking regarding the effectiveness and acceptability of prescribed fire, misinterpretation of technical and scientific information, and complete disregard of the legal requirement for timber production and other human benefit objectives.

The following is from the Petition for Writ of Mandate and for Preliminary and Permanent Injunction in Quincy Library Group v USFS:

On April 22, 1998, twenty-five government employees, all but one from the U.S. Forest Service [USFS], met in Sonora, California as the Sierran Province Assessment and Monitoring [SPAM] Team. They were working on pieces of their "Ecosystem Conceptual Model," a theoretical construct of how literally all the pieces fit together and interact to form the entire Sierra Nevada ecosystem, from geological processes of soil formation from bedrock and the effect of climate change on photosynthetic capture of solar energy, right down to the effects of roads and landings on the capture of solar energy.

This model of ecosystem function developed by the SPAM team became the philosophical and theoretical basis of the management concept embodied in the Framework and SNFPA EIS. The essence of that concept was this: (1) The pre-European-settlement forests were shaped largely by fire - both lightning- and Indian-ignited fire -- that were frequent, widespread, and generally of low intensity; (2) Settlers wiped out Indian-ignited fire, and later residents logged, built roads, and suppressed most of the lightning- and human-ignited fires; (3) Modern forests are thus highly unnatural, but pre-settlement "natural" forests will be restored if we just stop logging, close roads, and re-introduce frequent low-intensity fire - prescribed fire. In other words, it will fix itself if we just stop doing the wrong things.

That concept is appealing to well-meaning idealists, and the Forest Service would find it relatively easy to implement. Unfortunately, that concept is also badly mistaken. The awkward facts are that: (1) modern forests have structures and compositions radically different from historic natural forests; (2) large human populations now occupy forests and/or depend on them for essential commodities and functions, ranging from timber and water to recreation and safety; and (3) both law and regulation provide for human uses that did not exist in the pre-settlement forests. In order to accommodate these awkward facts, the Forest Service must be pro-active in restoring our forests to structures and compositions that are both natural and sustainable, with full regard for both ecological and human necessities.

Unfortunately, the SNFPA administrative record is replete with avoidance of the hard questions, neglect of the re-structuring requirement, wishful thinking regarding the effectiveness and acceptability of prescribed fire, misinterpretation of technical and scientific information, and complete disregard of the legal requirement for timber production and other human benefit objectives. The result is largely a management plan of overlapping vetoes, not a program capable of restoring and sustaining the Sierra Nevada national forests.

•  How do you define restoration? What is your concept of restoration? How can the planning rule foster restoration of NFS lands?

The fact that the agency is asking respondents to a rulemaking to offer their definition of a key planning term is a clear indication that it is straying from congressionally mandated planning guidance.  All of the policy mandates in NFMA, MUSY, ESA and others are clearly defined with terms that have a long and well established regulatory definition. Adding a undefined policy focus to the planning regulations will not meet the purpose and need or solve the problem of planning being costly, complex, and procedurally burdensome.

•  What kinds of conservation efforts can enhance ecosystem resiliency and prevent degradation?

See Quincy Library answer in Section T.

2. Plans could proactively address climate change through monitoring, mitigation and adaptation, and could allow flexibility to adapt to changing conditions and incorporate new information.

Please see comments in section L.

Specific questions we would like the public to address include:

•  How can the planning rule be proactive and innovative in addressing the need for climate change adaptation and mitigation?

It cannot.

•  What kinds of data, research, and monitoring could assist land management planners to incorporate climate change adaptation considerations into plans?

Data from the IPCC can no longer be considered accurate. Any IPCC data should be independently verified.

•  How should the planning rule address uncertainty? How do other public and private entities recognize and incorporate uncertainty in their planning efforts?

No planning process can or should address uncertainty. The agency does not have jurisdiction over other public and private entities and it should not waste valuable resources planning for issues outside of its jurisdiction.

•  How can a new planning rule appropriately build in the flexibility land managers will need to adapt to changing science, information or conditions? What mechanisms should be used to incorporate new data? Do you know of any successful adaptive management regimes that can inform our process?

CAUTION! Please consider this sort of direction carefully. Remember that the previous regulations were costly, complex, and procedurally burdensome. "Building in flexibility" to adapt to changing science, information and conditions seems like a recipe for never ending ongoing planning, with little, if any, implementation.

•  How should plans anticipate and address changing conditions or impacts outside of agency control? How can external factors be incorporated or recognized in plan guidance and requirements?

It cannot and should not attempt to address anything outside of its control. The agency should focus on planning regulations that implement the policy Congress articulated in the NFMA.

3. Land management plans could emphasize maintenance and restoration of watershed health, and could protect and enhance America's water resources.

Over our decades of involvement in national forest planning projects, we have seen the "let it burn" policy result in habitat and watershed degradation. If the agency insists on emphasizing watershed health in its plans, at least one Alternative should be formulated that takes an active management approach by aggressively suppressing non-prescribed wildfire and using all available management tools, including vegetative treatments (logging) to restore forest land to the historic range of variability. 

Specific questions we would like the public to address include:

•  Should a new planning rule include standards to address watershed health? If so, what might those look like? Should the Agency be held accountable only for actions and problems on its NFS lands or take into account water availability and quality factors that are outside of the Agency's control?

No comment at this time

•  What planning or management guidance could the Agency incorporate in the rule to protect and enhance water resources?

No comment at this time.

•  One way to approach planning for an NFS unit is to think about the future of the planning area through the context of its watersheds. Do you see benefits and/or drawbacks to a rule requiring land management planning on a watershed basis?

Although we have seen watersheds that are quite large, most watershed "polygons" on USFS lands are quite small. Some ranger districts may have hundreds of separate individual watersheds. Land Use Planning on a watershed basis results in plans that are complicated and costly and often results in impracticable and unworkable management prescriptions.

•  Do you see benefits or drawbacks to a rule requiring adherence to regionally specific Best Management Practices?

No comment at this time

4. Plans could provide for the diversity of species and wildlife habitat.

Specific questions we would like the public to address include:

•  How should the new rule provide for diversity?

No comment at this time

•  How should the planning rule guide protection of at-risk species of animals and plants and their habitat?

No comment at this time

•  How can the new planning rule account for variables outside of Agency control, including those impacts that are the result of climate change?

No comment at this time

•  Should species diversity provisions in planning look beyond the individual unit to a watershed or landscape scale, and if so, what is a practical and workable way to incorporate a broader perspective?

•  How could wildlife habitat monitoring be addressed in a planning rule?

No comment at this time

5. Plans could foster sustainable NFS lands and their contribution to vibrant rural economies.

Specific questions we would like the public to address include:

•  How can the planning rule reflect the interdependency of social, economic, and ecological systems in a way that supports sustainable management of national forests and grasslands?

No comment at this time

•  How can the Agency recognize and incorporate provisions in the planning rule for managing lands for the sustainable delivery of ecosystem services?

No comment at this time

•  How can plans guide units of the NFS in achieving natural resource conservation and restoration goals in a way that is compatible with providing a set of opportunities for goods and services to support vibrant rural and national economies?

Land management planning is one way the USFS complies with requirements under such laws as the National Forest Management Act of 1976 (NFMA), the Multiple-Use Sustained-Yield Act of 1960 (MUSYA) as well as laws like the Endangered Species Act (ESA) and the Wilderness Act of 1964.

Sadly, planning regulations can also be used to dilute the requirements under NFMA and MUSYA and expand the requirements of other laws, such as the ESA and the Wilderness Act.

By including such nebulous guidance as, "restoration and conservation to enhance the resilience of ecosystems to a variety of threats" and "proactively address climate change through monitoring, mitigation and adaptation, and could allow flexibility to adapt to changing conditions and incorporate new information," the proposed emphasis will further shift the agency away from multiple use management.

The agency's proposed action, as currently presented, is likely to do nothing to address the analysis paralysis problem. Current regulations provide multiple levels of seemingly never-ending environmental analysis. The result is a series of one-way procedural gates for litigious environmental groups. We often describe the situation by saying the environmental groups have executed a corporate takeover of the US Forest Service.

The agency has several problems with its planning. But the key problem is that the agency assumes it has the authority to change the policy that was established in Congress. The agency is attempting this via their planning regulations, which are supposed to be all about the procedures for revising land management plans, not the policy those plans will implement. As a result, the planning rules are unworkable. Plans take years to complete, are unbelievably expensive, totally unresponsive to public input and often include conflicting management guidance. By the time all the levels of environmental analysis are completed on a project, it's time for a new land use plan. Sadly, this new proposal will likely make things worse.

Process Principles for a New Rule

1. Land management planning could involve effective and pro-active collaboration with the public.

Specific questions we would like the public to address include:

•  How could the Agency foster collaborative efforts? What kinds of participation, forums for collaboration, and methods of providing input have you found most engaging?

See comment in section K.

Also, the agency should consider using existing Advisory Committees, Existing RACs, including the Roadless RAC.

•  What should the rule require to ensure a planning process that is both efficient and transparent while allowing for full public collaboration and participation within a reasonable timeframe?

Forest Plans should be programmatic and limited to aspirational or general management, thereby requiring only minimal environmental analysis.

•  What kinds of information, methods, and analyses should the Agency provide to the public during the planning process to aid understanding of the possible consequences of a proposed rule and alternatives?

The complete definitions found in NFMA and the regulations, with all of the mandatory steps outlined in law and regulations clearly laid out, explained and carefully documented. This supplementary material will make it easy to track the agency's mandatory requirements back to their legislative and regulatory roots without having to guess what terms apply to what requirements.

The agency should quote the actual language of the law or regulations. This would provide greater understanding of, and hopefully compliance with, the agency's specific statutory and regulatory requirements.

Include a comprehensive index so that users could be guided to all of the references on an issue or requirement. This should be relatively easy using a word search process covering all statutory, regulatory, and manual and handbook material.  Special note should be made of all the statutory and regulatory "shall" language.

It would be helpful to include a complete definition of multiple use as it is set forth in law and regulations.  Some stakeholders seem to often be selective in quoting only part of the definition or of just referring to it with the assumption that everyone has the same definition in mind.  This is obviously not the case, especially since it has been quoted selectively by many to promote their own agendas.  Clearly setting forth the legislative and regulatory definition would be very helpful in having everyone operating from the same assumptions.

•  What kind of administrative review process should be offered to the public in the planning rule? Should there be a pre-decisional objection or a post-decisional appeal process?

We agree that there seems to be a need to reduce the costs and delays associated with administrative appeals. We generally support the pre-decisional objection process that was implemented in the 2008 rule.

2. Plans could incorporate an ''all-lands'' approach by considering the relationship between NFS lands and neighboring lands.

Please see comments in section M.

Specific questions we would like the public to address include:

•  How should the planning rule account for the relationship of NFS lands to surrounding landscapes?

Please see comments in section M.
•  What other planning and assessment efforts or processes at the national, state or local level should the Agency look at that could inform an ''all-lands'' approach?

Please see comments in section M.

3. Plans could be based on the latest planning science and principles to achieve the best decisions possible.

No comment at this time.

Specific questions we would like the public to address include:

•  How can the planning rule support the creation of a shared vision for each planning area through the planning process?

No comment at this time.

•  Local and regional differences will have an impact on desired conditions and on the successful creation and implementation of a shared vision for any given planning area. Given that different areas will have different needs, should the planning rule allow a choice of planning processes? How could the planning rule create different process choices, and how could they be presented in the rule? What kinds of provisions would need to be included to guide and evaluate a process choice?

Generally, we support locally based decision making process, but agency has to commit to supporting locally generated plan, else the whole thing goes awry.

•  Much discussion has been centered on how land management plans should be viewed; are they strategic documents that lay the foundation for specific future actions to help meet unit goals? Or, should land management plans also make project or activity decisions?  Based on your response to the question above, what is the range of options for fully complying with NEPA during land management plan development, amendment, or revision?

No Comment at this time.

•  Should the new planning rule require standards and guidelines that are required for all plans?

•  How can the agency analyze and describe the environmental effects of a planning rule in the environmental impact statement?

A word about standards...[From the American Forest & Paper Association (AF&PA)]
NFMA sets forth the requirements for development and maintenance of land management plans and directs the Secretary of Agriculture to incorporate the "standards and guidelines" into plans.  It does not, however, specify that any particular standards must be included or the form in which the regulations must provide guidelines.  The 1982 rule and the 2000 rule varied in their approaches to using and defining these terms.  AF&PA agreed with the description of guidelines in the 2007 proposed rule (§219.7(2)(iii)) as providing "information and guidance for project and activity decision making to help achieve desired conditions and objectives."  AF&PA further agreed with the approach taken in the 2007 proposed rule to not include the term "standards" as a required plan component, better reflecting the strategic nature of plans.  The final 2008 rule included at §219.7 (a)(3) that a plan "may" include standards which we do not support without further guidance provided in the Directives as to how that should be determined.

However, since NFMA (§1604(g)(3)) specifies that the regulations must provide for resource management guidelines, in our opinion proposed section 219.12(b) of the 2007 rule appropriately required the Chief to include the actual guidelines in the Forest Service Directives System with the necessary public participation.  The final 2008 rule had similar direction at §219.12.

U. Conclusion

Thank you for carefully considering these comments. If you have any questions or require clarification please contact us at any time.

Brian Hawthorne       
Public Lands Policy Director
BlueRibbon Coalition   
(208) 237-1008 ext 102