A bit of confusion still clouds the air around the Bitterroot National Forest’s latest efforts at involving the public in its forest management decisions. Under the National Environmental Policy Act (NEPA), the Forest Service is required to involve the public in its decision making process. The usual process has begun with what is called a “pre-scoping” meeting at which the public is familiarized with the project under consideration. From there it moves into a “scoping” period where proposed activities and alternatives are scrutinized, and their potential environmental impacts are considered. A preferred alternative is identified by the agency and, following public comment, a decision is made. The draft decision gets further review and objections are addressed before the decision is finalized.
But this time, on the Bitterroot Front Project, things are starting off on a different foot. Bitterroot National Forest Supervisor Matt Anderson has added a new “pre-pre-scoping” stage to the process, not part of the traditional process in which a set of options is presented to the public for review and analysis.
Anderson said he felt that the usual public process was not giving people the time they needed to fully digest the proposals and meaningfully participate in the process. It left some members of the public feeling like they were getting a pre-packaged deal.
The new approach is meant to get the public involved prior to coming up with any specific actions being planned for any specific location. Anderson likened the usual approach to the way a contractor might bring in some blueprints for a home and work with the customer on getting to some final design. He said, “In this case we are asking, where do you want the house and what kind of house do you want. Maybe you want a yurt instead of a regular house.”
Anderson said when he came here it was not with any preconceived notions. “When I landed here,” he said, “I had no direction ideas. But when I talked to the folks in the community about the forest and its needs, the fire risks and forest health, everything pointed to the Bitterroot Front.” He said there was lot of concern expressed about the Westside canyons and the potential for fires to come roaring out onto the mountain face where many homes are situated in the Wildland Urban Interface.
“How do you address this when you start?” he said, “and how do you treat on a scale that will make some difference.” Anderson said the answer was to look at a landscape scale project and involve the public from the very beginning, “at the foundational stages.”
It’s an approach that Anderson helped pioneer during his tenure on the Tongass National Forest in Alaska before coming to the Bitterroot. The new approach is not without a few drawbacks of its own, however. It left many members of the public, groomed to participate in the usual NEPA process, feeling baffled. They were being shown a 150,000-acre project area stretching from Darby to Lolo across the face of the mountains without any specific actions proposed in any particular place and asked to comment on it.
“There is confusion,” said Anderson. “It’s hard for the public to get involved. We are asking ‘What do you want to see? What’s your vision?’” He said the agency was “starting at the foundational level, not any particular location.” He said it was important to get to those particulars but the way there was to first describe the “desired future condition that we want and then look at the various ways we can achieve it.”
He said, “We will get there eventually. It’s just really important not to get too far ahead with the staff.” He said that because of this, there is some confusion on the part of the staff as well.
Todd McKay, Information Officer on the forest, said, “Maybe we should have called it the Bitterroot Front Analysis Area instead of a Project Area.”
“There is confusion, but when we ask the questions, we get to hear people’s concerns,” said Anderson. “The process seems confusing, but we are learning a lot. We are getting a lot of good information. It’s a different process.”
“We are absorbing all this,” said Anderson, “Everybody’s idea of a healthy forest is a little different. Just from a scientific perspective we have 100 years of research, but it doesn’t always jive with what the public thinks is a healthy stand. But the public is pivotal.”
He said the changes that were made in the Gold Butterfly Project concerning Old Growth was a good example of how the process can lead to a good melding of the recommendations based on scientific analysis and what the public wants to see.
In response to the notion that the huge project is being driven by timber targets and not health prescriptions, Anderson said that the Regional Office had set some timber targets for different areas of the region, but that those targets were not driving the analysis.
“This project has nothing to do with meeting any target,” said Anderson. “It’s trying to look at a landscape that needs treatment for a lot of resources and set up a long term sustainable approach to get there.”
“Once you know what you want on the landscape, the desired future condition, then you look at your toolbox for how to get there. Commercial harvest is just one of the tools in the box,” he said.
He insists that the NEPA process will be followed with the same chance for public comment and involvement on every specific project that is proposed in the area.
However, some of the work that Anderson shepherded through on the Tongass has already landed in court. In late 2016, the Forest Service initiated environmental planning for the Prince of Wales Landscape Level Analysis Project (“Project”). The Project is a large landscape-scale NEPA analysis that will result in a decision whether or not to authorize integrated resource management activities on Prince of Wales Island over the next 15 years.
A U.S. District Court judge has recently granted a preliminary injunction to halt any implementation of the Twin Mountain Timber Sale authorized in the Prince of Wales Landscape Level Analysis Project Record of Decision. The Forest Service was further enjoined from opening any bids or awarding any contracts for the Twin Mountain Timber Sale until further order of that court.
It states in the injunction, “Viewing the project area as a whole, each alternative considered in the EIS described the conditions being targeted for treatments and what conditions cannot be exceeded in the area, or placed limits on the intensity of specific locations in the alternative selected in the [Record of Decision]. The Forest Service has termed this approach ‘condition-based analysis’.”
In the implementation plan accompanying the EIS, the Forest Service clarified that there would be “no need for additional NEPA analysis” under this framework. Instead the Project requires that the Forest Service engage in a pre-determined, nine-step implementation process before taking any specific action in the project area.
The plaintiffs in the case, the Southeast Alaska Conservation Council, et al, assert that “the Project EIS, with its condition-based analysis, does not contain enough site-specific information or analysis to comply with NEPA.”
They point to the case of City of Tenakee Springs v. Block. On appeal the Ninth Circuit “rejected the trial court’s conclusion that the Forest Service had discretion to determine the specificity of its environmental review.” Instead it held that “although the agency does have discretion to define the scope of its actions, such discretion does not allow the agency to determine the specificity required by NEPA.” The Circuit explained that “where there are large scale plans for regional development, NEPA requires both a programmatic and a site-specific EIS.”
The Circuit then ordered the entry of a preliminary injunction, in part due to its conclusion that the plaintiffs had raised serious questions about the merits of their NEPA claim. It explained that the challenged EIS did not “give any indication of its overall plan for timber harvesting” in the project area and that “it is impossible to determine where and when harvesting will occur on the 750,000 acres of land.” The Circuit held that the EIS was inadequate, reasoning that the location and timing of logging would affect “the locating, routing, construction techniques, and other aspects of the road or even the need for its construction.”
“Here, Plaintiffs argue that the Project EIS is similarly deficient and that by engaging in condition-based analysis, the Forest Service impermissibly limited the specificity of its environmental review. The EIS identified which areas within the roughly 1.8 million-acre project could potentially be harvested over the project’s 15-year period, but expressly left site-specific determinations for the future.”
The Forest Service contended that the EIS does provide specificity required by NEPA because it identifies potential areas of harvest within the project area. It cites Stein v. Barton in which the district court concluded that an EIS need not provide “exact timetables and locations on the ground for planned harvesting activities within each harvest unit.” The EIS in that case, however, “contained comprehensive, detailed quantitative and qualitative descriptions of the logging and roading plans for each harvest unit.”
In another case, Wildearth Guardians v. Conner, the 10th Circuit Court found that using a “worst case scenario” where the maximum treatment possible in each area was examined and assuming, if approved, that any lesser applications of treatment would also meet the requirements of NEPA, was alright for an Environmental Assessment, but not an EIS.
“An EA is meant to determine whether an action will have a significant impact on the environment, such that an EIS is necessary. In contrast, an EIS must compare the environmental impacts of different alternatives, not just determine whether environmental impacts will occur,” it states in the injunction.
Based on the foregoing, the Court found that “plaintiffs have shown that there are at least serious questions going to the merits of its NEPA claim.”
Anderson said that he did not want to address the ongoing litigation in Alaska.
“The Tongass is so different than the Bitterroot,” said Anderson. “There is not much similarity. I’m not trying to replicate that process here. It was a conditioned-based process up there. It’s like comparing apples to oranges.” In reference to conditioned-based projects, he said, “One difference with this project is that some of that will be pre-decision and some of that will be in implementation. We are trying to shift some of the workload to the implementation stage.”
He said they have a slew of options, from traditional NEPA, to programmatic NEPA to condition-based NEPA “and we are trying to figure it out.”
Asked about the fact that the current Forest Plan describes a desired future condition for the Bitterroot Front that involves returning it to primarily a Ponderosa pine habitat with little understory, Anderson said that is in the current plan, but that the plan is about 30 years old. He said a lot has changed in that time on the ground. There have been lots of fires and areas where no fires have occurred, and the fuel load has gotten extremely high. He said current conditions need to be assessed and they were currently compiling all the maps and other information they need to get an accurate picture of what is on the ground today in the project area.
“We are right now just trying to get more input, more often, from the public and be sure that the public is involved in the project from the beginning and throughout the life of it,” said Anderson. “I want the community at large to really own this decision.”
Information Officer Todd McKay said, “I hope your article could clear up one confusion. We are not planning on a 150,000-acre clearcut.”