SOS Forests

Harris Sherman on Jon Tester’s Forest Bill

Thursday afternoon testimony was taken by the Senate Subcommittee on Public Lands and Forests concerning S. 1470, the (Montana) Forest Jobs and Recreation Act of 2009, a bill proposed by Montana Democrat, Sen. Jon Tester. One of those testifying was Harris Sherman, Undersecretary of Agriculture for Natural Resources and Environment, Department of Agriculture.

There were others who testified, including Commissioner Mike McGinley representing the Beaverhead County Commissioners. His testimony [here] is excellent. Other testimonies are available at the Subcommittee website [here].

We have discussed Tester’s bait-and-switch wilderness bill previously [here, here, here]. In many respects it is similar to Ron Wyden’s bill for Eastern Oregon forests [here].

After the holidays we will examine both of these toxic-to-forests bills in greater detail. But for now we want to highlight certain arguments raised by Harris Sherman that apply to both. Mr. Sherman’s language of choice is Labyrinthine Bureaucratese, so we will translate the gist of what he said into plain English.

The first of Mr. Sherman’s complaints, and they are complaints despite his diplomacy toward the Senators, was:

While the Department supports the concepts of the legislation, we have concerns regarding components of Title I, including the highly prescriptive provisions related to the National Environmental Policy Act and the specificity regarding levels of treatment and outputs. The prescriptive language would limit the discretion of land management professionals to select landscape projects based on broader criteria, such as the condition of forest resources and community needs and capacity.

That means the projects specified in the bill will not pass muster with NEPA. Just because Congress orders a forest treatment in such-and-such a place at such-and-such a time, it doesn’t mean that NEPA is suspended. All federal projects that significantly impact the environment must undergo a NEPA process. That process must consider alternatives and choose the best one. If the outcome is foreordained, the NEPA process will be tainted. And therefore actionable under NEPA. And therefore the treatments will be enjoined by the courts and never happen, and the USFS cannot do anything about that.

Mr. Sherman also testified:

Further, S. 1470 directs the Secretary to place priority use of existing resources on portions of these three national forests. This establishes a potentially harmful precedent because it may lead to multiple site specific legislative efforts transferring much needed resources from other units of the National Forest System where priority work must also be accomplished.

S. 1470 in particular includes levels of mechanical treatment that are likely unachievable and perhaps unsustainable. The levels of mechanical treatment called for in the bill far exceed historic treatment levels on these forests, and would require an enormous shift in resources from other forests in Montana and other states to accomplish the treatment levels specified in the bill.

In fact, Tester’s bill (and Wyden’s bill) force the USFS to undertake actions that have not been planned or vetted by USFS personnel, and which will interfere and draw funding away from projects that have been proposed, designed, and analyzed for NEPA compliance. Fewer treatments will occur on fewer acres than now, because time and money will be spent evaluating Tester’s projects, which are doomed to NEPA failure. Hence even less forest stewardship will be implemented regionally than the paltry amount currently planned and implemented.

Mr. Sherman also testified:

Further, the bill would create unrealistic expectations on the part of communities and forest products stakeholders that the agency would accomplish the quantity of mechanical treatments required. If we were unable to meet the requirements of the bill, there could be profound impacts upon local, rural economies and on the credibility of the agency.

Tester’s duplicitous bill has been presented as “requiring” the Beaverhead-Deerlodge and Kootenai NF’s to harvest 100,000 acres over the next ten years. That’s a trade-off of 10 acres of wilderness for each acre of alleged harvest. However, the language in the bill is so convoluted and filled with poison pills that not one acre will ever be harvested, if Tester’s bill passes.

When the promised logging does not happen, and there is little or no chance that even a small fraction of the promised acres will be harvested, then the USFS will be held to blame, even though it will not really be their fault.

That will widen the divide between the agency and the local community, already a problematical situation due to extreme local anger over Let It Burn, Un-Transportation planning, grizzly bears, and numerous other affronts and usurpations. The USFS finds it difficult to host a public meeting these days in any rural Western community because local people with legitimate gripes tend to yell at the low-level employees who are forced to attend, and then somebody calls the sheriff and chaos reigns.

Mr. Sherman also testified:

The bill also contains provisions which are duplicative of existing authorities. These provisions could be problematic because they could lead to confusion during implementation.

As we have pointed out, both Tester’s bill and Wyden’s bill borrow language directly out of the Forest Landscape Restoration Act of 2009 [here]. Then they twist that language with new definitions, new limitations, and new requirements. We’ll do a clause-by-clause analysis after the holidays, and all the bastardizations will brought to light.

When Congress mixes and matches laws, and overlaps them, and invests them with contrary language, and fails to consider older laws (even laws just 6 months old) when passing new ones, they turn the legislative process into a farce. The legal code becomes a situational and elusive, depending on which law is passed this week and which one next. The Law of the Land becomes a moving target, a flavor-of-the-month.

And when laws conflict, as they do in spades in the case of Tester’s and Wyden’s bills, the whole can of worms gets dumped on the courts for their decision-of-the-month. A cacophony of bluster, billows of hot air, and reams of writs are the only products — actual on-the-ground stewardship is paralyzed.

Mr. Sherman also testified:

Lastly, the bill sets direction for how the agency must meet the requirements of the National Environmental Policy Act (NEPA). This provision, subsection 102(b)(6), raises new challenges for effective planning, analysis and implementation of restoration projects by requiring analysis of large areas, without the opportunity to tier to site- or project-specific analyses, thereby requiring analysis for all permitting and approval actions at a landscape scale.

By prescribing how NEPA should be accomplished, the bill complicates of the agency’s approach to NEPA implementation and could result in greater controversy as the agency determines how to harmonize the requirements of the bill, the requirements of NEPA, CEQ regulations implementing NEPA, and the Forest Service’s own regulations.

The established USFS approach to NEPA is to apply that process to specific treatments at specific locations. The USFS prefers to write general guidelines for entire National Forests to follow, and then prepare unique Environmental Impact Statements for each individual project. To a great extent, that “tiered” approach is built into USFS regulations and has been tested by NEPA law. The “whole landscape” approach is new, different, and untested.

The Forest Landscape Restoration Act of 2009 calls for treatment design and implementation on landscapes of 50,000 acres and up. In most of the West, areas of that size are individual watersheds. Planning for a watershed should be comprehensive, and the USFS is going to have to learn how to implement NEPA on a watershed scale.

But Tester’s bill, like Wyden’s, calls for immediate treatments on disparate and unconnected hundreds of thousands of acres. The extension of NEPA procedures from a couple of thousand acres to an entire watershed is a big enough leap in practice for the USFS — the leap that Tester’s and Wyden’s bills ask for is too large a defile for the agency to jump.

These and many other technical issues bedevil Tester’s and Wyden’s bills. Undersecretary Sherman, despite trying as hard as he could to be solicitous to his Democrat Party sponsors, could not ignore the glaring pitfalls.

More on this topic later, after the Season of Good Will.