Legal Deficiencies in New National Forest Management Plans
Prepared by WildLaw. www.wildlaw.org . Copyright 2004 by WildLaw.
Contact: Ray Vaughan, Executive Director
WildLaw
8116 Old Federal Road , Suite C
Montgomery , Alabama 36117
(334) 396-4729
Figure 1 : Wild places, such as Sougahoagdee Falls in the Bankhead National Forest in Alabama , will not be protected under these new plans. Photo by Ray Vaughan.
Summary
In January 2004, the U.S. Forest Service released new revised management plans for five sets of National Forests in the Southern Appalachian region. These five sets of National Forests in the Southern Appalachians are the National Forests in Alabama , the Chattahoochee and Oconee National Forests in Georgia , the Sumter National Forest in South Carolina , the Jefferson National Forest in Virginia , and the Cherokee National Forest in Tennessee . Despite good language in the plans about performing valid restoration work and giving proper care to the forests, the details of these plans show that the plans are not designed to manage the public forests of the South in a sustainable manner.
These new plans fail to provide these public forests with the protections and proper management that the vast majority of Americans (including Southerners) want for these lands. Further, the plans and their development violated a number of federal laws, including the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), and the Administrative Procedures Act (APA). The purpose of this white paper is to highlight the legal failings and shortcomings of the new plans in the hopes that exposure of these problems to the public, media and elected officials will persuade the Forest Service to correct these problems before litigation is necessary.
The main legal problems with the new plans include:
• lack of roadless area protections and new wilderness recommendations,
• lack of consideration for new Wild and Scenic River Corridors,
• lack of protections for old growth,
• increased logging targets and goals unrelated to valid restoration,
• using restoration language but allowing old-style logging and not requiring true restoration,
• extremely bad economic data and lack of economic justification for proposed management,
• unscientific use of prescribed fire in many areas and ignoring their own data on it,
• near total lack of protections and surveying and monitoring requirements for wildlife, especially rare species and management indicator species,
• lack of adequate protection for riparian areas and habitat, and
• failure to comply with NEPA on many levels, but primarily on failing to consider alternatives that offered more protection.
These five plans cover more than 3.2 million acres, but more worrisome is the fact that these plans will be the prototypes and models for new management plans for millions of acres of other southern National Forests in the years ahead. Other National Forests that are now or will be preparing new management plans in the next few years include the Daniel Boone in Kentucky, the six National Forests in Mississippi, the Nantahala, Pisgah and Uwharrie in North Carolina, the Ozark-St. Francis and Ouachita in Arkansas, the Monongahela in West Virginia, and the Land Between the Lakes National Recreation Area in Kentucky. If the new plans just released are not made better and in compliance in the law, then these other plans that follow behind them are destined to make the same errors.
1. Wilderness and Roadless Areas
Despite admitting that the public demand for wilderness and wilderness recreation will grow significantly in the South in the next few decades, the Forest Service did not make meaningful recommendations for new additional wilderness areas.
Citizen alternatives and suggestions for new wilderness areas were summarily rejected without the analysis required by NEPA. Areas were rejected from possible protection based on speculation about whether there were or were not roads in the area and without field study to determine what the areas actually were like.
The popular Roadless Rule was not adequately discussed and there is no documentation on how the Plans will comply with it. For example, in Alabama , the Forest Service claims that 97% of all roadless areas are in prescriptions that protect their roadless characteristics. In reality 91% of roadless areas do NOT comply with the Roadless Rule, because the prescriptions the roadless areas are put into allow temporary roads and /or logging and salvage. The prescriptions roadless areas are in allow “vegetation management” which could include logging. This shows that their claims do not meet reality and do not comply with the Rule.
For all the Forests except the Cherokee in Tennessee , the vast majority of roadless areas will not be protected according to the Roadless Rule. The following chart was prepared by Hugh Irwin of the Southern Appalachian Forest Coalition to show how much of the roadless areas acreage could be sacrificed under these new plans.
Plan Prescriptions Allowing Road Building and Logging
Roadless Allocations in new Southern Appalachian Forest Plans
Forest Inventoried Roadless acreage Acres in Rx less protective than Rule % Not Protected
Alabama 12,437 11,298 91.0%
Chattahoochee 63,661 55,198 86.71%
Cherokee 84,715 26,213 30.94%
Jefferson 152,310 120,983 79.43%
Sumter 6,139 5,308.6 86.48%
• Wild and Scenic Rivers
Analysis for proposed rivers (such as the Brushy Fork in the Bankhead National Forest in Alabama ) as Wild and Scenic is nonexistent. Appendix D in the FEIS for Alabama ’s National Forests covers Wild and Scenic River review, and it is all of three pages long. No breakdown of the analysis process is given. There is no evidence that the team working on that issue ever even went out to look at the streams in question. This lack of information and analysis has serious legal problems. Any supporting data or studies expressly relied upon in an EIS must be “available and accessible” to the public. California v. Block , 690 F.2d 753, 765 (9 th Cir. 1982) (quoting Trout Unlimited, Inc. v. Morton , 509 F.2d 1276, 1284 (9th Cir. 1974)).
Figure 2 : Collier Canyon in the Bankhead is part of the proposed Brushy Fork Wild and Scenic River system, but it will not be protected by the Forest Service, because they decided without any analysis that it is not wild or scenic. Photo by Ray Vaughan.
• Old Growth
The Plans have few protections whatsoever for any of the remaining old growth forests on these lands. The Alabama plan has NO protections for old growth. Only the Jefferson in Virginia actually mapped its old growth network, as required by law and regulations. With so little old growth left in the South (less than 8,000 acres in Alabama ’s National Forests), we cannot afford to lose any of it.
Not having standards to protect old growth is a clear violation of NEPA and NFMA because the law requires surveys and maps showing existing old growth prior to making Plan decisions. This is also a violation of the guidance given by the regional office of the Forest Service. Not having surveyed for and mapped existing old growth prior to making these Plan decisions are both NEPA and NFMA violations and violations of the guidance on mapping the network of old growth patches.
• Logging and Restoration
While the Plans have good language about how they will focus on scientifically valid restoration work, and the Alabama Plan does focus on this extensively, the devil is in the details. All the Plans still allow for large-scale commercial logging, even in old growth and roadless areas. Some of the Plans, like the Sumter , have logging sale targets that are much higher than the historic logging levels of the past ten years.
The Summary for the Final Alabama Plan directly states, “Some of the best silvicultural sites that are currently accessible could be managed to provide a supply of high-quality sawtimber.” We and the public through the media are being told by the agency that these Plans end the commercial extractive purposes on the forests and focuses them on restoration. The above statement in the Summary is directly contrary to that restoration message and goal.
Comments that timber harvesting should be limited to scientifically valid restoration and forest health purposes and not allowed just for its own sake, as suggested in the Summary, were not responded to. The Response to Comments only stated:
“ 7-138. Public Concern: The Forest Service should only conduct timber harvest as incidental to actions for habitat restoration and forest health.
“Response: The revised Plan permits the use of various tools and site-specific analyses will determine which methods are appropriate for a particular project. Timber harvest is one of the tools available.” (AL FEIS Appendix J, at J-180.)
• Bad Economics
The plans do not comply with NFMA and NEPA requirements to identify and consider economic issues and impacts. Further, there is no consideration of alternatives related to what little economics impacts discussion there is. As shown by the comments of Dr. Robin Gottfried, Professor of Economics at the University of the South (comments to which the agency never adequately responded to), the economics analysis in the plans is totally inadequate. Moreover, the wilderness supply and demand analysis is so inadequate as to be meaningless and is a clear violation of NEPA and NFMA.
The plans do not present a rigorous economic analysis of the various alternatives provided in the document. First, the Forest Service is unclear as to how it derives the mix of goods and services (outputs) produced by each alternative. Therefore, the credibility of the figures presented in the text is suspect.
Second, the methodologies used for valuation of these outputs are not discussed at all. This is a critical and crucial flaw. For instance, there is no discussion of demand and supply for wilderness or other recreation, let alone how the prices used in the net present values are obtained. Accordingly, the public and the decision-maker have no way of assessing the validity of the estimates because we cannot know how they were obtained.
Third, trends in inflation-adjusted prices of outputs need to be taken into account. They are not.
Fourth, the economic impact analysis is too vague as it stands to be economically meaningful.
Fifth, there is a serious flaw in logic concerning the timber program. On one hand the Forest Service says that reducing timber production on the Forests will cause no loss in timber, jobs, or income to the economy and will increase outputs of other outputs, such as recreation, that are more difficult for the private sector to provide. Yet, the Forest Service includes timber production as an element in several alternatives. Given this statement, the economically rational conclusion is that it would be socially efficient to eliminate timber production on the Forests entirely and to increase the noncommodity outputs.
Sixth, the analysis fails to discuss the weights placed on nonpriced goods and services produced by the Forests and, as such, fails to inform the reader how Alternative I came to be the preferred alternative. There is no discussion as to how this was determined.
Finally, the analysis as it stands is neither a financial analysis nor an economic analysis. It is a mixture of both and, as such, cannot be interpreted in a meaningful way.
• Unscientific use of Prescribed Fire and Forcing too Much Early Successional Habitat
As part of the comments submitted on the draft plans, numerous organizations led by the Southern Appalachian Forest Coalition (SAFC) submitted detailed and extensive information from the Forest Service’s own files showing that the amount of early successional habitat and low-level fire in most of these forests was historically much less than what the new plans propose. In the new plans, the agency is emphasizing early successional habitat and large amounts of prescribed burning in order to maximize timber production and to receive funds under the Bush Administration’s “Healthy” Forests Initiative that rewards the maximized use of prescribed fire, whether it is need or not.
The agency summarily rejected this information from Quentin Bass, one of its own employees, without ever providing any analysis on why it was rejecting it. The Response to Comments in each plan spends just over two pages rejecting this information.
• The response was a canned response in that it talked about how ruffed grouse need dense early successional habitat. Ruffed Grouse are not found in Alabama ’s National Forests, but the agency used that excuse anyway for rejecting the materials submitted by Mr. Bass on the Alabama plan.
• The Forest Service rejected this material from its own files, because it was not peer-reviewed. “Unlike the scientific literature used and cited during planning, the specialist’s analysis has not been through the rigorous process of peer review, critique, and publication in mainstream scientific journals.” Yet, elsewhere, the Forest Service defended its use of non-peer-reviewed information when questioned about the adequacy of their viability analysis for wildlife. “Although formal peer review of completed viability evaluations were [sic] not conducted, elements of external review and adjustment were incorporated throughout the viability evaluation process.” The agency tries to have it both ways, which is not only illogical but also illegal under the standards of the Administrative Procedures Act.
• Lack of Monitoring for Wildlife
The new plans eliminate any required monitoring or surveying for wildlife, including rare species. Instead, the new plans will monitor “habitat” alone and may survey for various wildlife species, but only if the Forest Service feels like it. There are no requirements to actually survey for and protect wildlife that could be adversely impacted by logging, mining, and oil and gas drilling. A prime example is the new Alabama plan does not have any monitoring for aquatic species, despite Alabama ’s having the most diverse aquatic ecosystems in the world and the agency’s admission that logging and other management activities have sometimes serious adverse impacts to aquatic species. NFMA requires that wildlife species that represent the impacts of management be surveyed for regularly on each forest, and most of the agency’s own experts (such as their biologists and botanists) recommended that MORE monitoring for wildlife and rare plants be done. That expert advice was summarily ignored in the new plans.
• NEPA Violations
The object of NEPA is to require federal agencies to consider environmental values when making decisions and the initial responsibility of the federal agency is to determine the extent of the environmental impact. Hill v. Boy , 144 F.3d 1446, 1449 (11th Cir. 1998) Section 102(2) of NEPA, 42 U.S.C. § 4332(2)(C), contains a Congressional mandate that federal agencies consider the environmental impact, and potential alternatives, for every proposed “major Federal action significantly affecting the quality of the human environment.” It is an “action-forcing” provision designed to prevent agencies from acting on incomplete information and to “ensure that important effects will not be overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.” United States Corps of Eng’rs , 295 F.3d at 1214 (quoting Robertson , 490 U.S. at 349).
These Plans contain numerous fatal NEPA violations:
• Adding new materials to the Final Plan . The Agency inserted significant new things in the Final Plans that were not in the Draft Plans, thus frustrating public notice and comment on those things. The prime example of this problem is the extensive new oil and gas drilling and coal mining provisions added to the Final Alabama Plan that were not in the Draft and thus never reviewed by the public. NEPA has two primary goals. The first goal is to ensure that a government agency carefully gathers and evaluates relevant information about the potential impact of a proposed agency action on the environment. Southern Utah Wilderness Alliance v. Norton , 301 F.3d 1217, 1237 (10th Cir. 2002) (citing Robertson v. Methow Valley Citizens Council , 490 U.S. 332, 349, 109 S. Ct. 1835, 104 L.Ed.2d 351 (1989)); see also 40 C.F.R. § 1500.1(b). The second goal is to ensure “that the agency will inform the public that it has indeed considered environmental concerns in its decisionmaking process” thereby guaranteeing that public is involved in and aware of agency processes. Committee to Preserve Boomer Park v. Dept. of Transportation , 4 F.3d 1543, 1554 (10th Cir. 1993) (citing Baltimore Gas & Elec. Co. v. NRDC , 462 U.S. 87, 97, 103 S. Ct. 2246, 2252 (1983)); see also 40 C.F.R. §§ 1500.1(b); 1500.2(d); 1506.6.
• Lack of Cumulative Impacts Analysis . For many impacts to the environment that will occur due to these Plans, the Plans do not identify and analyze the cumulative impacts, as required by NEPA. NEPA regulations require that the Forest Service “integrate the NEPA process with other planning at the earliest possible time. . .” 40 C.F.R. § 1501.2. Many courts have recognized this means cumulative impacts analysis cannot be deferred. The Ninth Circuit held in Neighbors of Cuddy Mountain v. U.S.F.S. , 137 F.3d 1372 (9th Cir. 1998), that the Forest Service cannot “defer consideration of cumulative impacts to a future date. ‘NEPA requires consideration of the potential impact of an action before the action takes place.’” 137 F.3d at 1380 (quoting City of Tenakee Springs v. Clough , 915 F.2d at 1308, 1313 (9th Cir. 1990); see also Kern v. Oregon Natural Resources Council , 284 F.3d 1062, 1075 (9th Cir. 2002) (not appropriate to defer consideration of cumulative impacts when meaningful consideration can be given now). No cumulative impacts analysis is in the FEIS for the approved oil and gas exploration, drilling and production on the Conecuh. No cumulative impacts analysis for approval of coal mining in the Bankhead was ever done.
• Failure to Consider Reasonable Alternatives. NEPA requires agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(E); 40 CFR § 1508.9(b). The regulations and cases set high standards for an agency's consideration of alternatives in a NEPA document and define the range of alternatives that must be considered. In this case, the Forest Service violated NEPA by failing to “[r]igorously explore and objectively evaluate all reasonable alternatives” to the proposed action. 40 CFR § 1502.14(a) (emphasis added)._ See City of Tenakee Springs v. Clough , 915 F.2d 1308, 1310 (9th Cir. 1990). Alternatives that the agency did not consider include the maximum wilderness protection and Mountain Treasures alternative suggested by citizen organization, Alternative C (the custodial alternative that would have let Nature lead the management of the forests), alternative that opened less of the forests to oil and gas drilling and mining, and alternatives that provided more old growth protection.
• Failure to Consider Direct and Indirect Effects and Impacts .
• i. Bankhead coal mining approved without ANY analysis of impacts.
• ii. No impacts analysis is in the FEIS for the approved oil and gas exploration, drilling and production in the Conecuh and other forests.
• Failure to consider materials submitted or information :
• iii. Quentin Bass material.
• iv. Site-specific information on Brushy Fork and Mayfield Creek.
• v. Information on Brushy Fork W&SR.
• Failure to respond to comments . The vast majority of the thousands of people who commented on these new plans asked that these valuable public lands be given grater protection. For each forest, the people asking for more protection were significant, and for each forest plan, those comments were ignored by the agency.
• vi. For the Cherokee NF, 77% of comments asked for more protection.
• vii. For the Jefferson NF, 82% of comments asked for more protection.
• viii. For the Chattahoochee-Oconee NFs, 78% of comments asked for more protection.
• ix. For the Sumter NF , 73% of comments asked for more protection.
• x. For the NFs in Alabama , 78% of comments asked for more protection.
• Failure to utilize agency expertise
• xi. Standards and other requirements drafted by NF staff rejected with no explanations. (old growth standards, monitoring for PETS, etc.)
• xii. Did not include open Longleaf areas with grassy understory as “early successional habitat” despite their experts saying it should be included. Thus, they overstate the need for logging to create “early successional habitat” when mature Longleaf stands also create that habitat.
• xiii. Quentin Bass and his material.
• Failure to explain decisions
• xiv. Lack of standards (old growth, etc.)
• xv. Inclusion of standards with no explanation (oil/gas/mining)
• xvi. Rejections of staff experts’ suggestions.
Conclusion
Unless these plans are drastically changed, they will not give these irreplaceable Southern public lands the protections they need and which Americans want for them. Not only do the plans fail to provide for adequate protection for wild places, wildlife, water and recreation, but they were also adopted in an illegal fashion that made a mockery of the public participation process. These plans are as legally lacking as they are scientifically and biologically deficient. Considering the years and millions of dollars devoted to these new plans and these forests, the American public has ample right to be outraged at the lack of legal compliance and the failure of management competence reflected in these new management plans.
Our public forests are being sacrificed, and the public agency in charge of those lands broke the law in order to make those sacrifices.
Thank you.
Fore more information, contact Ray Vaughan at WildLaw or Jackie Dobrinska of SAFC, at 828-252-9223, www.safc.org .