20 Dec 2009, 11:35pm
Federal forest policy Politics and politicians
by admin

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.

21 Dec 2009, 9:03am
by Tim B.

Just my opinion, but as a field-based NEPA practitioner with 29 years of experience, I would say that anybody seriously considering an environmental analysis covering all the various types of restoration activities that might need to happen on a landscape 50,000 acres or larger has their head very far up their ass.

Much too wide a scope; a broad purpose and need statement will generate large numbers of proposed actions, which will generate a huge number of environmental issues to address. All this would create a number of likely very complicated alternatives, and it would be difficult to determine what an adequate range of alternatives might be.

From an appeals and litigation standpoint, if a large number of activities are included in a landscape level NEPA analysis and decision, said decision and everything in it would all be vulnerable to challenge by any crank who did not like just one of the proposed actions. Given the size and complexity of such an analysis, that person could likely convince a Regional Appeals Reviewing Oficer or a judge that an inadaquate range of alternatives was addressed or some pet issue was missed. And the document would be so cumbersone a judge could be likely to throw the whole thing out because he couldn’t understand it - and he’d be right.

It would be much better to do a programmatic overview of such a watershed, like a watershed analysis to develop the rationale for implementation of whatever restorations actions, then do a set of some nice, neat, narrowly focused and short environmental assessments that would be much more bullet proof appeal and litigation wise.

Our congresspersons could help us out a lot if they would quit writing these complicated, prescriptive (why employ foresters and all other manner of specialists if some dudes in D.C. are deciding what can and can’t happen?) Region-specific bills and work on simplifying and clarifying the ones on the books that have been problematic for years. I also find it interesting that as far as I know, these guys never talk with/to the folks on the ground that really know what may and may not work.

21 Dec 2009, 9:29am
by Mike


I just submitted an official objection to the RR-SNF’s proposal to inflict Let It Burn forest-wide. They proposed an indeterminate number of actions (unfought wildfires) at indeterminate dates in the future — with no alternatives and no EIS.

I guess that makes me the crank. Let’s see if I can convince the Region Appeals Officer (the Regional Forester) that there might be a better way to approach forest stewardship.

21 Dec 2009, 9:42am
by Larry H.

I do appreciate your comments, Tim, and I can see how that could help to monkeywrench any particular project. The Forest Service has be trying very hard to include a great many differing treatments into one project, so that those non-commercial tasks can be paid for with the money from logs.

We have already seen how a Democratic “bait and switch” tactic can work for preservationists. They are quite willing to trade designated wilderness for the potential to manage other forests that don’t qualify for wilderness designation. The switch happens when mandates for the project include switching or ignoring NEPA laws, along with other rules, policies and, even eco-sins, as judged by eco-groups, greedy for eco-winnings in court. Once the wilderness designations are passed, they can never be taken back. The courts, however, certainly CAN take back “illegal forest projects”.

22 Dec 2009, 12:31pm
by Forrest Grump

The practice of NEPA only becomes workable in the “can’t prove a negative” field of environmental, um, er, SCIENCE if the laws are re-written to allow such landscape planning. Even overview EIS’s or EA’s will get nailed by omissions on the “hard look” clause. The framework needs to be comprehensively rewritten…in the next Presidency.

22 Dec 2009, 12:32pm
by Forrest Grump

Oh, and yes…

Merry Christmas, Mike and everyone else…and a prosperous, safe and happy New Year.

22 Mar 2010, 12:25pm
by gb

Jon Tester is a socialist in step with Barack Obama and the other socialists who have lied to the American people to take office but now go against the will of the people.

Here in Montana, Tester and his cronies are hosting public meetings about his wilderness bill at health clubs around Montana, among other places.

Given the subject, the location is ironic: AS IF the topic of Tester’s wilderness legislation is something healthy—the back-to-nature feel of it, all fresh and clean and natural—so let’s all discuss it near those healthy people exercising away on their treadmills, the oblivious glow of exertion in their eyes.

The health club location is ironic because of the SICKNESS Jon Tester is trying to divert our attention from: THE JON TESTER HEALTHCARE PORTA-POTTY BILL, [snipped for excessive metaphor]

JON TESTER and fellow Montana Socialist MAX BAUCUS are screwing the voters over with their healthcare fiasco, and now the voters are supposed to forget all about their healthcare vote against Montana kids and focus on Tester’s grand Montana Wilderness legislation, like we are too stupid to see Jon Tester’s bait-and-switch, like this pretty white “wilderness” horse is going to carry him away to safety in the Montana backcountry, save his sold-out soul from defeat in the next election.

Yeah, JON, you sold out our kids, and Montanans are so stupid they will divert their senses from the stinking healthcare Porta-Potty you are tipping over in the laps of our children’s future.

Metaphorically, it is as though you are sticking a hunting knife in our backs and telling us to ignore it and go exercise on a treadmill, like we won’t feel anything is wrong as you drain our blood away.

You think you can get reelected in the next election by puffing out a bunch of Montana Wilderness smoke?

You want to cloud our eyes and fog our minds with your diversion Wilderness Bill, like we are supposed to forget about the fatal stab you are giving our children’s future?


We are going to put YOU and the idiots who work for you out of work and send you straight to the unemployment lines where you are sending our children. We are going to take YOUR PAYCHECKS away because we don’t want to give you our tax money to stab us in the back and dump your bait and switch bile on our kids anymore.

Yeah, Jon, we’ll look the other way–at your grand, healthy, back-to-nature WILDERNESS BULL and forget about the Porta-Potty mess you are dumping all over us, the knife you are sticking in our backs. You bet.

During your Furer Obama’s “healthcare summit,” I noticed Nancy Pelosi say:

“We have to pass this or Medicare/Medicaid will go broke.”

So Jon the Socialist, you are taking our money NOW to pay a debt for something that happened long ago. You want my kids’ money to fund a system and services that already took place.

So you are reforming nothing with your “healthcare reform.”

You are stealing our money to pay for your crap legislation. You aren’t from Montana. You sold us out. You are big sky garbage.



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