Bitterroot National Forest (BNF) officials have assumed that they’ll be going to court to defend the largest post-fire recovery plan in Forest Service history against an environmentalist challenge, so in a preemptive maneuver they’ve washed their hands of it and sent the plan off to Washington, D.C. for approval by the Bush administration.
Specifically, they want Undersecretary of Agriculture Mark Rey, a Bush administration appointee with authority over the USDA Forest Service, to sign off on the massive plan—known as the Burned Area Recovery Environmental Impact Statement (EIS)—thus eliminating the 90-day public appeal process that normally precedes a final decision at the local level. Rey has until Dec. 10 to act on the request and sign off on the plan himself, effectively bypassing the public review process. At least one prominent environmentalist thinks Rey is too politically shrewd to take the heat for such a controversial proposal not of his own making. But if Rey approves the request the BNF will likely find itself embroiled in several lawsuits.
Environmentalists, already stunned by the sheer magnitude of the 181 million board-foot timber sale offered by BNF Supervisor Rodd Richardson, and by what they call a poorly researched and scientifically flawed analysis, are angry at this blatant attempt to circumvent the public process. They charge the BNF with misleading the public about the necessity of logging 46,000 acres of burned and damaged land by relying on scientific studies that cannot be verified. They also say that BNF officials are being disingenuous when they accuse environmentalists of having already notified the agency of their intent to sue.
The fact is, environmentalists weren’t caught unaware. Already, seven environmental groups have banded together in opposition to the BNF plan and will likely sue the agency on two issues: the allegedly flawed scientific analysis and the end-run around the legal process.
Friends of the Bitterroot, Native Forest Network, Alliance for the Wild Rockies, American Wildlands, the Ecology Center, the Wilderness Society and the Sierra Club have all retained the Western Environmental Law Center in Eugene, Ore. to represent them in what may be two separate or one combined lawsuit.
Spike Thompson, the BNF’s point man on the Burned Area Recovery EIS, says the decision to ask for a bypass of the appeal process just made sense. “The reason we looked at going this route is that most people who are involved in this process understand that it will have to be resolved in court and that’s really the issue there,” he says.
Fifteen months of work, 18 public meetings and more than 4,000 comments went into crafting the final report, which includes what the BNF describes as “forest restoration” but what one environmentalist calls “industrial-scale logging.”
Friends of the Bitterroot had attempted to steer the direction of the proposal by coming up with their own logging plan, which they say would have guaranteed local jobs while protecting the fragile soils of the burned areas. FOB’s proposal called for a number of smaller timber sales of less than 1 million board feet, offered for sale weeks apart to encourage local bidding and discourage out-of-area bidders. That proposal was rejected.
Environmentalists are further angered because throwing out the appeals process violates the intent of Congress and has no precedent in law. Although BNF officials could not immediately cite federal law allowing the elimination of the appeals process, they did offer what they say were precedent-setting cases.
According to Dixie Dies, BNF public affairs officer, decisions on several national forest projects throughout the country have been made without an appeals process. For example, there was no appeals process on either the Tongass (Alaska) national forest plan or the Clinton administration’s spotted owl plan for the Pacific Northwest. In Montana, she says, a similar precedent was set by former Lewis and Clark National Forest Supervisor Gloria Flora, who bypassed the appeals period when she banned oil and gas drilling on the Rocky Mountain Front for 20 years. Likewise, the Yellowstone Bison Management Plan was implemented without going through an appeals process.
“The Secretary of Agriculture can do whatever she wants,” says Dies. “And there’s a [federal rule] that exists [to back up those decisions.]”
But Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, a Eugene-based public interest group, says those cases cannot be compared to the BNF salvage sale because the first two were not project-specific, which automatically triggers an appeals process. In fact, the gas and oil drilling ban was later appealed and sustained, and the bison management plan was developed not by the Forest Service but by the National Park Service, which does not have an appeals process.
“They can’t find precedent because it doesn’t exist,” says Stahl. “The [BNF sale] is completely precedent setting and, arguably, illegal.”
Ironically, Congress passed the Appeals Reform Act in 1992 in response to a Clinton administration proposal to eliminate the appeals process in Forest Service proposals.
Over the years, says Stahl, the process has served the Forest Service well by allowing the public to negotiate changes directly with the agency rather than going into federal court, which can be a time-consuming and very costly process and can result in decisions neither anticipated nor welcomed by either party.
“Is this what Congress intended?” Stahl asks. “The answer is no, it’s not. Congress never anticipated that the undersecretary of Agriculture would take over on-the-ground management.”
Stahl says Forest Service Chief Dale Bosworth is trying to take himself and the BNF off the hook by persuading Rey to be the decision-maker. “[Bosworth] should not pass the buck to you to avoid his responsibility to make the tough calls for which he is paid,” Stahl wrote in a recent letter to Rey.
“I guess in the appeals process there’s an opportunity there for some give and take and a chance to come to some agreement before going into litigation, which is very costly,” says Jim Miller, president of the Friends of the Bitterroot. “The outcome of a court battle,” he adds, “doesn’t always reflect the best interests of the public.”
Still, Thompson says the BNF went to extraordinary lengths to accommodate environmental concerns. “We had tremendous public participation in this process. We had something in the range of 18 or 19 [public] meetings,” he says. The BNF spent about $1 million preparing the EIS, the public comment period was extended, environmentalists’ recommendations were incorporated into the final document, and Thompson met twice with representatives of environmental groups in an effort to find common ground. “I think we have done an outstanding job in understanding their viewpoint,” he argues.
Despite such efforts, Thompson says it’s inevitable this plan will wind up in court. “I’m positive of it,” he says. “We have a letter from them that said that.”
Not so, says Friends of the Bitterroot executive director Larry Campbell. Several environmentalist groups did send a letter to the BNF announcing their intention to sue the agency in federal court, but not based on the overall proposal. Rather, the group was ready to sue over the agency’s request to Chief Bosworth to issue an emergency exemption on 5,000 acres of land the agency wants logged immediately. Bosworth has said that he will not act on the emergency exemption request while Rey’s decision is pending. “When we sent that letter to [the Forest Service] it dealt only with the logging portion of the emergency exemption,“ says Campbell. “It had nothing to do with the overall proposal.”
Campbell now believes the environmentalists’ hand has been forced, saying, “It looks like it’s the only option we’re left with.” Adds Stahl: “I don’t think [the BNF] has a chance. The downside by being sneaky is they’re going to give the environmentalists the best shot in court.”
Understandably, both Campbell and Miller now fear a heightened level of animosity coming their way in the community. But as they point out, Friends of the Bitterroot has stopped only one timber sale in the Bitterroot Valley and two in the Beaverhead-Deerlodge National Forest through litigation in the group’s 14-year existence, with only three or four other sales stopped in the appeals process.
“We really only appeal a small fraction of the sales,” says Campbell. “People try to portray us as out to stop all timber sales. The vast majority we do not appeal.”
The irony of the BNF‘s attempts to skirt the appeals issue, says Native Forest Network’s Matthew Koehler, is that westerners often complain about a lack of local control over public lands, and now the locals themselves have turned to Washington, D.C. for final decision-making. “This is no longer Rodd Richardson’s decision.
This is the Bush administration’s decision,” Koehler says. And if Rey gives the plan the green light, he argues, it sets a dangerous precedent for the future of public land management. “This is the way the Bush administration is going to manage public lands.”
Environmentalists are sponsoring a march and rally on Friday, Dec. 7 at 11:30 a.m. in Caras Park. The march begins at noon and ends at the Forest Service Regional Office at Pattee and Pine streets.