National Forest Management
The U.S. Forest Service in the Department of Agriculture manages our national forests in compliance with federal laws, presidential and agency policy directives (including the agency's own rules), and legal precedents created by court cases. The principal federal laws directing management of the national forests are:
- Transfer Act of 1905;
- Multiple Use-Sustained Yield Act of 1960;
- Forest and Rangeland Renewable Resources Planning Act of 1974; and
- National Forest Management Act of 1976.
The General Land Law Revision Act of 1891 gave the president authority to "set aside and reserve...any part of the public lands wholly or partly covered with timber or undergrowth, whether of commercial value or not," but did not explicitly authorize the use or development of resources on the reserved lands. That year, President Benjamin Harrison created the Yellowstone Park Forest Reserve, and in 1897, President Grover Cleveland added 13 additional reserves. Congress subsequently enacted the Organic Administration Act of 1897 authorizing the Secretary of the Interior to administer the reserved forest lands and opening them to regulated use. The Transfer Act of 1905 transferred administration of the forest reserves to the Department of Agriculture under the Bureau of Forestry, which became the Forest Service. The forest reserves were subsequently renamed national forests.
Fifty-five years later, the Multiple Use-Sustained Yield Act of 1960 (MUSYA) authorized the Forest Service to manage national forest system lands for additional purposes, and required the Forest Service to manage for multiple use and sustained yield of the products and services of the forests. The Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) required the Forest Service to periodically assess the renewable resources of the forests and to develop national-level plans to manage and develop them. Finally, the National Forest Management Act of 1976 (NFMA) reiterated the basic charges of MUSYA and amended the RPA to require the Forest Service to develop management plans for each national forest. NFMA also set standards and procedures for timber harvesting and sales.
In addition to the federal statutes that provide the overall framework for national forest management, the Forest Service develops its own set of national policies and management practices. For example, in November 2009, Chief Tidwell announced that climate change would force dramatic changes in agency practices, especially regarding water resources. Accordingly, he directed Forest Service regions and experiment stations to prepare "National Landscape Conservation Action Plans" to guide day-to-day response to climate change. The agency subsequently issued a "National Road Map for Responding to Climate Change" (July 2010), which outlines three types of actions Forest Service managers must take in response to projected impacts: (1) assessing risks, vulnerabilities, policies and knowledge gaps; (2) engaging employees and external partners; and (3) management actions, including adaptation and mitigation.
Today, the U.S. Forest Service manages national forests for a wide variety of both complementary and competing uses. The Organic Administration Act of 1897 allowed the President to establish forest reserves (national forests) for very limited purposes:
- To improve and protect the forest within their boundaries;
- To secure favorable conditions of water flows; and
- To furnish a continuous supply of timber.
In 1960, the Multiple Use-Sustained Yield Act (MUSYA) recognized additional appropriate purposes of the national forests—outdoor recreation, range, watershed, and wildlife and fish—and required that the Forest Service manage national forest system lands for these multiple uses. In 1976 the National Forest Management Act (NFMA) re-emphasized the importance of managing for all of these uses and also added wilderness to the list.
The U.S. Forest Service, an agency within the Department of Agriculture, manages all national forests and grasslands throughout the country. The Under-Secretary of Agriculture for Natural Resources and Environment, a political appointee, oversees the Forest Service. The Forest Service's hierarchy begins at the national level with Chief of the Forest Service and the Washington Office staff. Throughout the country, there are nine Forest Service regions, numbered one through 10 (Region 7 was eliminated). A regional forester, who reports to the Chief of the Forest Service, heads each region. Within each region are a number of forests; each forest is divided into several ranger districts. Each forest has a forest supervisor, who coordinates activities within the ranger districts, and reports to the regional forester. Ranger districts are staffed by district rangers and a variety of scientists, enforcement officers, and administrative personnel. There are 600 ranger districts within the national forest system.
In addition to the national forest system, the Forest Service operates through three other major divisions: State and Private Forestry, Research and Development, and International Forestry.
National forests encompass 191 million acres (77.3 million hectares) of land, which is an area equivalent in size to the state of Texas. There are 155 national forests and 20 national grasslands within the system. The Forest Service manages surface resources, including trees and timber, minerals, and fish and wildlife within these forests, for multiple uses. Because of the high value of the forests, in both economic and aesthetic terms, management of the forests is highly controversial.
The Forest Service manages the national forests and grasslands for multiple use and sustained yield of the products and services obtained from them, as required by the Multiple Use-Sustained Yield Act (MUSYA). According to MUSYA, to manage a forest for "multiple use" means that all the renewable surface resources of the forests are used in a combination that will best meet the needs of the American people. Obviously, this can be interpreted in many different ways, and the Forest Service has a significant amount of discretion. But it is at least clear from both the law and court decisions that every part of a national forest does not have to be used or managed for every purpose in order to meet this requirement. To manage for a "sustained yield" means that the Forest Service has to maintain a high annual or periodic output of the various renewable resources of the national forests. The agency has to maintain this forever, without damaging the productivity of the land.
The State and Private Forestry (S&PF) division of the Forest Service is the federal leader in providing technical and financial assistance to landowners, collaborative groups, and resource managers to help sustain the nation's forests and protect communities and the environment from wildland fires. S&PF programs bring forest management assistance and expertise to a variety of landowners, including small-woodlot owners, tribes and states, through non-regulatory partnerships. The S&PF staff plays a key role, along with others within the Forest Service and the Department of the Interior, in implementing the National Fire Plan to manage the impacts of wildland fires on communities and the environment.
For more information on State and Private Forestry's Cooperative Forestry programs, see www.fs.fed.us/spf/coop/programs.
For information on the Forest Service’s open-space conservation strategy and implications for communities near the national forests, go to Open-Space Conservation
Ecology and Economics"
Research and Development
The Forest Service is the largest forestry research organization in the world. Forest Service Research and Development (R&D) scientists carry out basic and applied research to study biological, physical, and social sciences related to very diverse forests and rangelands. Forest Service research promotes ecologically sound management of these vast natural resources. Forest Service R&D teams also serve the nation's private forest landowners, and investigate new ways to process and recycle wood into products. The R&D organization within the Forest Service also manages the Forest Inventory Analysis (FIA) program, which reports on forest health, area, composition, products, and ownership. The FIA also completes renewable resource planning assessments every 10 years, with data updates every five years. The most recent of these assessments was completed in 2000.
The timber program has changed significantly over time, particularly in terms of the volume of timber sold and harvested and in methods of timber harvesting. The first reservation of lands for national forests, allowed by the General Revision Act of 1891, was prompted by large-scale, uncontrolled liquidation of federally owned timber by lumber companies in the upper-Midwest. After the Organic Act of 1897 authorized regulated use of forest reserves (national forests) and until World War II, management focused primarily on watershed protection, forest restoration, and wildfire prevention and suppression. Since there were abundant supplies of private timber, very little logging occurred of national forests during this period. Post-World War II, however, the housing boom created a huge demand for timber, and the increased demand for timber from national forests led to more widespread use of commodity-oriented harvesting techniques, such as clearcutting. Sales of timber from national forests peaked at around 12 billion board-feet per year in the early 1970s, and again in the late 1980s, and then declined significantly.
The National Forest Management Act (NFMA) made significant changes to the timber program. NFMA allows the Forest Service to sell timber on national forest lands to private entities, but requires that the agency take certain steps and precautions to maintain a sustainable harvest yield while promoting the forests' multiple other uses as well. NFMA requires that the Forest Service:
- Sell timber at no less than its appraised value;
- Advertise all sales, unless extraordinary conditions exist or the appraised value is less than $10,000;
- Provide a prospectus with detailed information to prospective buyers;
- Ensure "open and fair competition" in the bidding process and eliminate collusive bidding practices; and
- Promote orderly harvesting (usually requiring harvesting within a three-to five-year period).
NFMA also changed the timber program with requirements that the agency provide for diversity of plant and animal communities, and limit even-aged management of timber (i.e., clearcutting) to specific circumstances. NFMA reiterated the requirement for multiple-use, sustained yield management of national forest system lands.
Unfortunately, reforestation needs have been increasing in spite of declining timber harvests because of the growing acreage of lands affected by natural disturbances, such as wildland fires, insect infestation, and diseases, coupled with inadequate funding sources to address those needs. Ironically, the acreage needing attention is growing in part because high density planting practices, used in the past to replace harvested trees, have resulted in needs for thinning treatments today.
The Pinchot Institute offers a variety of publications related to forests, forest policy, and stewardship contracting as an important means of achieving forest management goals.
Torches or spot fires can be ignited by sparks from crowning trees two or more miles away.
The National Fire Plan is a plan developed jointly by the Department of Agriculture and Department of the Interior to respond to severe wildland fires, reduce their impacts on communities, and assure sufficient fire fighting capabilities for the future. The National Fire Plan includes five key components:
- Firefighting Resources addresses preparedness for fire seasons, including personnel, training, equipment, and facilities;
- Rehabilitation and Restoration addresses long-term restoration within the burned areas;
- Hazardous Fuel Reduction provides for development and implementation of projects to reduce the risk of fire in the wildland/urban interface;
- Community Assistance encompasses working with communities on reducing fire risk, involving the public in NEPA for hazardous fuels reduction projects, creating jobs in restoration and fuels reduction, providing defensible space information, assisting volunteer and rural firefighters, and implementing economic action programs;
- Accountability provides for open communication with affected communities and the general public concerning planning, implementation, evaluation and reporting carried out under the Fire Plan, as well as transparent accounting for expenditure of funds appropriated to implement the Fire Plan.
Nationally, the Forest Service manages approximately 300,000 miles of National Forest System roads open to motor vehicle use and about 133,000 miles of trails. In addition to this managed system of roads and trails, many National Forests contain user-created roads and trails—estimated at tens of thousands of miles. These routes are concentrated in areas where crosscountry travel by motor vehicles has been allowed.
The Scenic Byways Program encourages the public to take leisure trips on paved National Forest roads.
The Backcountry Recreation Roads Pilot Program encourages the public to embark on pleasure excursions on unpaved scenic national forest roads.
A Travel Management Rule, published in November 2005 directs all 155 national forests and 20 grasslands to publish maps detailing the allowed use based on type of vehicle and time of year. The process of designating routes will include public participation, appropriate site-specific environmental analysis, and decisions at the local level. The Forest Service will evaluate user-created roads and trails along with its own existing routes for inclusion in the official system.
Until the 2005 rule, off-highway vehicle users were allowed to ride in an area unless there was a sign prohibiting them from doing so. The new rule said that they can ride only where the maps say they can.
The Forest Service applies these evaluation criteria for designating roads and trails:
Once the designations are made and published, the rule prohibits motor vehicle use off the designated and published system. Until that happens, existing travel management policies, restrictions, and orders remain in effect. Under this rule, the Forest Service will retain authority for making temporary, emergency closures for short-term protection of resources and public health and safety.
For more information, see the Forest Service Travel Management and OHV Program web page. For examples of issues arising in the new travel plans, see also "Oregon's national forests and those in other states will see limits to where ATVs can ride," Portland Oregonian, 7/12/09; "Gallatin National Forest must revisit travel plan," Bozeman Daily Chronicle, 9/29/09; and "Badger-Two Medicine lawsuit spurs debate," Great Falls Tribune, 10/14/09.
In late July 2009, the General Accountability Office (GAO) issued a report examining trends and issues related to off-highway vehicle use of federal lands and recommending that the Forest Service and BLM improve their planning to deal with these issues.
In the early 2000s, the Forest Service identified a little over 58 million acres of National Forest System lands as "inventoried roadless areas," originally identified by the Forest Service's RARE II (wilderness review) process and existing forest plan inventories. Under the Clinton administration, these areas were to be protected and remain roadless except for specified exceptions.
In the last days of the Clinton Administration (January 2001), the U.S. Forest Service adopted the Roadless Area Conservation Rule (Roadless Rule) to prohibit road construction, road reconstruction, and timber harvesting in inventoried roadless areas in national forests. The Forest Service adopted the nation-wide rule arguing that these activities are most likely to change and fragment landscapes and result in immediate, long-term loss of roadless area values in the 58.5 million acres affected.
The rule prohibits road construction and road reconstruction, EXCEPT:
- To protect human health or safety from imminent dangers,
- For certain federal highway projects,
- For mineral developments, and
- For resource protection or restoration.
The rule prohibits timber harvesting for commodity purposes, but allows small diameter timber harvest if it would:
- Improve certain roadless area characteristics
- Improve threatened or endangered species habitat
- Reduce the risks of uncharacteristic wildfires.
The roadless rule was immediately controversial—in part due to disagreements over the quality and extent of public participation in the original rulemaking process. After years of wrangling, the Bush Administration finalized a State Petitioning Rule in May 2005 as a substitute for the Roadless Rule. The State Petitioning Rule gave Governors 18 months to submit a petition to the USDA to create state-specific regulations for management of all or part of the inventoried roadless areas within their states. With the help of an advisory committee, the USDA was to make all final decisions regarding the proposed rules.
Some states submitted petitions; others states sued the federal government to reinstate the Clinton Roadless Rule; some states did both. Colorado is the most recent state with a Forest Service-approved roadless plan, which the Forest Service approved in a final rule and record of decision in July 2012. This plan protects 4.2 million acres, while allowing limited road construction to support mining, ski areas, and other activities--and these exceptions raised concerns among environmental and recreational interests.
In fall 2006, just before the deadline for petition submission, a federal court set aside the Bush State Petitioning Rule and reinstated the Clinton Roadless Rule. This ruling was upheld by the Ninth Circuit on Aug. 5, 2009 in the case California v. U.S. Dept. of Agriculture. See "Court restores 'roadless rule' in national forests," LA Times, 8/6/09. (Click here for full text of the 9th Circuit decision.) See also "Jurisdiction at the heart of 'roadless rule' battle," Denver Post, 3/11/10. A three-judge panel of the Tenth Circuit Court of Appeals also upheld the original roadless rule in an opinion issued October 21, 2011, in response to a challenge originally brought by the State of Wyoming. See "Federal court upholds roadless rule protecting nearly 50 million acres of forest," Washington Post, 10/21/11; "Ruling backs Forest Service in limiting roads in the wild," New York Times, 10/21/11. In early December 2011, Wyoming petitioned the appellate court for a rehearing, which was denied in February 2012; in May 2012, Wyoming appealed this ruling to the U.S. Supreme Court, and in June 2012 the American Forest Council, the BlueRibbon Coalition, and the California Association of 4-Wheel Drive filed amicus curiae (friend of the court) briefs in support of Wyoming's position.
In May 2009, the Obama Administration took the first steps toward administratively reinstating the Clinton Administration's roadless area policy. Secretary of Agriculture Tom Vilsack issued a directive giving him authority to review all proposed projects in 49 million acres of roadless areas for the next year and removing authority from the Under Secretary of Agriculture and the Forest Service chief to make final decisions regarding projects in roadless areas. The directive expired on May 28, 2010, but Secretary Vilsack extended it twice. And, in May 2010, Sec. Vilsack announced his intention to allow 14 projects involving road construction in roadless areas, which he explained as necessary for claimants to gain access to legitimate hardrock mineral claims pursuant to the Mining Law of 1872. See "Western mines win 'roadless' exemptions," Denver Post, 5/14/10.
In November 2011, Sen. Maria Cantwell (D-Wash.) introduced a bill that would codify the original roadless rule.
Many of these issues are playing out most intensely in Alaska, where the Bush Administration in 2003 exempted the 16.8 million-acre Tongass National Forest from the 2001 Clinton administrative rule. Shortly after issuing the 2009 directive described above, Secretary Vilsack approved a timber sale in a roadless area in Alaska's Tongass National Forest. The Orion North sale would allow Pacific Log and Lumber to construct approximately two miles of roads to harvest about 3.8 million board feet of timber from 381 acres on Revillagigedo Island, adjacent to Misty Fjords National Monument.
Here is a summary of recent events concerning the roadless rule's application in the Tongass National Forest:
- In March 2011, a federal judge ruled that the Forest Service improperly excluded the Tongass National Forest from the roadless rule's prohibition on road construction and timber harvesting.
- In June 2011 the court officially reinstated the roadless rule and vacated the exemption.
- In August 2011, in an unpublished opinion, the Ninth Circuit reversed that decision, ruling that the Forest Service failed adequately to explain its approval of the timber projects under NFMA; the appellate court concluded that it was premature to rule on the NEPA issue.
In June 2011, the state of Alaska filed a new lawsuit in federal district court, claiming that the roadless rule violates several statutes, including the Wilderness Act, the Alaska National Interest Lands Act. The state argued that ANILCA gives Congress the exclusive right to determine which additional lands will be withdrawn from multiple use for resource protection. In March 2013, the judge in that case ruled that Alaska filed its action too late, and dismissed the lawsuit.
For more information, see:
- Controversies: Public Participation in Roadless Area Management
- "Wild at Heart"
- "Quietly Paving Paradise"
- "Backcountry Borderlands--Safeguarding Sportsmen's Interests Across State Lines" (Theadore Roosevelt Conservation Partnership)
For a recent story exploring the litigation that originated in Wyoming, see "Roadless-less: A semi-retired judge tears apart the historic campaign to protect unroaded forests," Missoula Indpendent, 11/12/09 (and note that the Wyoming decision was reversed by the Tenth Circuit in October 2011).
For the text of the new rule and many other documents associated with its development, see the Forest Service Roadless Area Conservation web site. See also the nonpartisan reports issued by the Congressional Research Service:
- The National Forest System Roadless Areas Initiative (2001)
- National Forest System Roadless Area Initiatives (2011)
Increasingly, special or non-timber forest products are being harvested from the forests. These include such products as firewood, mushrooms, honey, pine boughs, Christmas trees, edible berries, posts and poles, and more. The Forest Service is currently working on new regulations for managing special forest products and forest botanical products. In late 1999, Congress authorized a pilot program of charges and fees for harvest of forest botanical products. In October 2007, the Forest Service proposed regulations for sustainable harvest, product sales, and fee collection.
For a copy of the 1999 legislation, as amended in 2004, click here.
For a copy of the Forest Service proposed rule for sustainable harvest of special forest products, click here.
Since 1908 the federal government has paid the states between one-quarter and one-half of the revenues received from National Forest System lands, with the payments to be used (primarily for schools and road maintenance) by the counties in which those federal lands are located. The steep decline in federal timber sales since the late 1980s thus decreased those local governments' revenues as well. In response, Congress passed the "Secure Schools" Act in 2000 to stabilize payments to counties to "make additional investments in, and create additional employment opportunities through projects that improve the maintenance of existing infrastructure, implement stewardship objectives that enhance forest ecosystems, and restore and improve land health and water quality."
The 2000 statute expired in 2007, but was renewed until 2008, and then 2011. At a congressional hearing in September 2011, House Republicans pushed for expanded commercial uses of the national forests to generate the necessary funds. Others proposed deriving school funds from national forests by turning over some lands for state foresters to manage through a community trust. See "Land board likes plan to boost rural Idaho. But will it fly?" Idaho Statesman, 8/17/11. For an economic analysis of the Republicans' proposal to increase timber harvest to boost school funds, see this report by Headwaters Economics, dated 9/21/11. In October 2011, a bipartisan group presented an alternative proposal to extend county payments for five years, using an offset provision to provide the funding. The source of the offset is not stated.
For more information on the Act see Carol Daly, Secure Rural Schools and Community Self Determination Act: Titles II and III.
“Certification is a market-based, non-regulatory forest conservation tool designed to recognize and promote environmentally-responsible forestry and sustainability of forest resources. The certification process involves an evaluation of management planning and forestry practices by a third-party according to an agreed-upon set of standards. Certification standards address social and economic welfare as well as environmental protection. The Forest Stewardship Council (FSC) and the Sustainable Forestry Initiative (SFI) are two of the main standards operating in North America for larger ownerships. The American Tree Farm System (ATFS) is the largest certification system for small private landowners. Green Tag, a program of the National Woodland Owners Association, also offers certification for small private landowners.” (Pinchot Institute for Conservation)
The Forest Service is currently considering whether to use a third party certification process to evaluate National Forest System lands.
For more information on a recent Pinchot Institute for Conservation study on certification of national forest lands, see the Pinchot website
Increasing attention is being focused on the value of natural processes occurring in national forests. Accordingly, on Dec. 18, 2008, Agriculture Secretary Ed Schafer announced the intention to establish a new USDA Office of Ecosystem Services and Markets and the creation of a federal government-wide Conservation and Land Management Environmental Services Board to assist the Secretary of Agriculture in the development of new technical guidelines and science-based methods to assess environmental service benefits which will in turn promote markets for ecosystem services including carbon trading to mitigate climate change.
In August 2010, the Forest Service released a report on the impact of development on private forests' ability to provide ecosystem services. "The Private Forests, Public Benefits report shows that now, more than ever, we need to take an 'all lands' approach to managing our nation's forests, whether they are national forests or under the stewardship of state or private entities," Agriculture Secretary Tom Vilsack said upon the report's release.
The Forest and Rangeland Renewable Resources Planning Act (RPA) of 1974 was the first federal statute to require forest planning. The RPA directed the Secretary of Agriculture to prepare a resource assessment every 10 years, a resource program plan every five years, and an annual report to evaluate how well its activities achieved the objectives of its program. For more information on resource assessments, see Renewable Resource Assessments.
NFMA went beyond the requirements of the RPA to require planning for individual national forests and grasslands—units of the national forest system—through preparation of Land and Resource Management Plans (resource management plans). Resource management plans provide guidance and direction to the agency for all resource management activities on the unit.
Under NFMA, the Forest Service must prepare the plan using an interdisciplinary team and public participation. In addition, the Forest Service must comply with the National Environmental Policy Act(NEPA) in the development, review, and revision of resource management plans. Permits, contracts, plans, and other instruments used in managing national forest system lands—like timber sale contracts, grazing permits and mine reclamation plans—must be consistent with the resource management plan.
In practice, though the preparation of resource management plans is a lengthy and detailed process, the plan is often imprecise and controversial. Because management areas are usually large, the Forest Service may lack complete knowledge of existing resources such as minerals and wildlife. Details of the forest terrain, such as fragile soil conditions, that might constrain certain development, may not be known until the plan is implemented. Even with complete knowledge of resources, the valuation of certain uses of the forest, such as protection of water quality, recreation or wildlife habitat, is difficult and often contentious.
Resource management plans must:
- Establish forest-wide multiple-use goals and objectives;
- Establish forest-wide management requirements—called standards and guidelines;
- Designate lands suitable for specific outputs—such as timber, livestock grazing, and oil and gas development;
- Recommend special designations—such as wilderness and wild and scenic rivers—to Congress;
- Provide for diversity of plant and animal communities;
- Consider economic and environmental aspects of resource management;
- Permit increases in harvesting levels only if conditions allow;
- Allow timber harvesting only where soil, slope, and watershed conditions would not be irreversibly damaged, and streams, wetlands and other important resources are protected;
- Allow clearcutting under limited conditions and only when it is the optimum method of harvesting; and
- Provide for monitoring and evaluation of management in order to preserve the productivity of the land.
While NFMA requires preparation of plans for all units of the National Forest system, the agency's regulations—found at 36 CFR, part 219—provide the detail of how those plans are prepared, reviewed and implemented. NFMA requires that the Forest Service develop these regulations with the assistance of a committee of scientists and is quite specific in what must be included in the regulations, and therefore, in resource management plans.
- Regulations adopted in 1982 directed the agency's planning efforts for about 15 years. In 1997, the Secretary of Agriculture convened a new interdisciplinary committee of scientists to review and evaluate the Forest Service's planning process and to identify changes that might be needed in the planning regulations. The agency, under the Clinton administration, published a proposed rule in October 1999; the rule became final and effective in November 2000.
- In 2001, the Bush administration criticized the new rules for a lack of clarity regarding many of the requirements, a lack of flexibility, and a lack of recognition of the limits of agency budgets and personnel. The administration announced that the Forest Service was not prepared to implement them as scheduled and extended the date by which the agency had to start using the 2000 rules.
- The Secretary of Agriculture did not convene a new committee of scientists to revise the regulations, but published new proposed regulations in the Federal Register in December 2002. The Forest Service accepted comments on the proposed regulations until April 2003 and published a the 2005 rule in January 2005.
- In March 2007, a ruling of the U.S. District Court for the Northern District of California put the 2005 Bush planning regulations on hold after determining that the Forest Service violated the Administrative Procedure Act, National Environmental Policy Act and Endangered Species Act when it drafted, revised and published the rule. The court enjoined the Forest Service from using the 2005 rule until it has "fully complied" with those laws.
- In April 2007, the Forest Service indicated its intention to pursue that compliance in order to reinstate the 2005 rule, but to implement the 2000 rules in the interim.
- In July 2007, environmental groups sued to force the Forest Service to revert to the 1982 rule instead.
- In August 2007, the Forest Service published a new proposed rule that mirrored the 2005 rule and a draft environmental impact statement (EIS).
- In April 2008, the Forest Service published a final rule and record of decision on the 2008 planning rules. Environmental groups immediately sued to prohibit their implementation.
- In December 2008, the Forest Service published a technical amendment to clarify appeal procedures during the planning rule transition period.
- In June 2009, a District Court Judge ruled that the 2008 Forest Service rule failed to evaluate the environmental impacts of the rule. But U.S. District Court Judge Claudia Wilken for the Northern District of California, who threw out the Bush rule, said she does not know what rule should guide forests now. She left it to the Obama administration to choose between a 2000 Clinton administration rule and a 1982 Reagan administration rule. See "Judge tosses Bush-era management regulations," Greenwire, 7/1/09.
- On December 18, 2009, the Forest Service issued a final rule reinstating the National Forest System Land and Resource Management Planning Rule of November 9, 2000.
- In February 2011, the Forest Service issued its new draft planning rule, which will undergo environmental review and public comment before adoption.
- In January 2012, the Forest Service announced release of its final EIS on the planning rule.
For text of all the rules and other relevant documents, see the Forest Service planning website.
The Forest Service Planning Rule has been contentious and often in flux. The discussion highlights the key events in the planning rules recent revisions and the important features of the 2012 planning rule.
In the previous go-round, on April 21, 2008, the Forest Service published a new planning rule and justified changes made from the 1982 rule, the Clinton administration's 2000 rule, and its own 2005 rule that had been enjoined (put on hold) by a federal court. According to the agency, the 2008 rule would strengthen the role of science in planning, strengthen collaborative relationships with the public and other governmental entities, and reaffirm the principle of sustainable management. The rule was also intended to streamline and improve the planning process by increasing adaptability to changes in social, economic, and environmental conditions.
The 2008 rule was invalidated in a federal court decision issued on June 30, 2009. In August 2009, Agriculture Secretary Tom Vilsack said the Obama administration would not appeal the judge's ruling and would instead initiate a new planning process aimed at integrating all the administration's priorities, from wildlife conservation to economic concerns to collaboration with stakeholders. Secretary Vilsack announced the start of the new rule drafting on December 16, 2009, noting that the new rule would take into account issues such as climate change and water quality protection.
The Forest Service announced the following "substantive principles" to guide development of the new planning rule:
- Land management plans could address the need for restoration and conservation to enhance the resilience of ecosystems to a variety of threats.
- Plans could proactively address climate change through monitoring, mitigation and adaptation, and could allow flexibility to adapt to changing conditions and incorporate new information.
- Land management plans could emphasize maintenance and restoration of watershed health, and could protect and enhance America's water resources.
- Plans could provide for the diversity of species and wildlife habitat.
- Plans could foster sustainable NFS lands and their contribution to vibrant rural economies.
The agency also announced these "process principles":
- Land management planning could involve effective and pro-active collaboration with the public.
- Plans could incorporate an "all-lands" approach by considering the relationship between NFS lands and neighboring lands.
- Plans could be based on the latest planning science and principles to achieve the best decisions possible.
The Forest Service released the draft final planning rule in the form of a preferred alternative in a final environmental impact statement in Feburary 2012. The proposed rule, accompanied by an environmental impact statement, incorporates early public participation, pre-decisional administrative review, and provisions aimed at maintaining or restoring ecosystem and watershed health and resilience, protecting key ecosystem elements, and providing for plant and animal diversity. The agency issued its final rule and record of decision in March 2012, and published the rule in the Federal Register on April 9, 2012.
This rule will be implemented first in an assessment of resources in three national forests in California, which will then inform preparation of individual plans for the three forests using the new planning rule as a guide.
For information on the new rule, see:
- The Forest Service's official planning rule website.
- A New Century of Forest Planning, an independent blog on the planning rule
- "National forests plan would expand local discretion over wildlife management," Washington Post, 2/11/11
- "New national forest rule to focus on restoration of damaged ecosystems," Denver Post, 3/9/12
- "New Forest Service planning rule highlights the tension between flexibility and accountability," Legal Planet, 3/27/12
While the proposed draft rule was under public review and comment, the Forest Service quietly consulted with a group of scientists, who in late April 2011 released a 112-page report essentially agreeing with the agency's approach so far. A summary of the review process and a link to the report is available here. Some user groups, upset at not knowing that the scientific review process was underway, sent Assistant Secretary Harris a letter on April 22, 2011 requesting that the planning rule comment deadline be extended beyond May 16 to allow a response to the findings in this report. This remained the comment deadline, however, and the agency garnered more than 300,000 comments to sort through before finalizing the rule by the end of the year.
In November 2011, the Forest Service announced that it would convene an advisory committee to help oversee implementation of the new planning rule, and in June 2012, the agency announced the names of the 21 people selected to serve. Click here for the Forest Service press release about the committee membership, and here for a story focused on representatives drawn from the Northern Rockies. The advisory committee's website contains updates on its meetings and activities.
The sections below compare the major features of the 2008 and 2012 planning rules.
The 2008 rule was intended to make planning documents more strategic and less prescriptive in nature. It directed that plans would contain five or six components, which set forth broad policies to help guide future decisions on the ground. The plans were not intended to represent agency commitments or include final decisions that approve projects or activities.
2012 Planning Rule: The rule maintains the agency's strategic emphasis, stating that a forest plan provides a framework for integrated resource management and for guiding project and activity decision making in the national forest or grassland management unit. As in 2008, the Forest Service states that plans do not commit the agency to any action or authorize any projects or activities.
The 2012 rule sets out a multi-step framework for the forest planning process, with interdisciplinary teams performing the following tasks:
- Assessment (Sec. 219.6);
- Developing, amending, or revising a plan, including preparation of an Environmental Impact Statement or appropriate NEPA documentation (Secs. 219.7 and 219.13); and
- Monitoring (Sec. 219.2)
These three steps may overlap, and are intended to promote a responsive, adaptive planning process, explicitly responding to such uncertainties as climate change.
Under the new rule, the plan itself must include the following components:
- Desired conditions, "in terms that are specific enough to allow progress toward their achievement to be determined, but do not include completion dates";
- Objectives, expressed in "concise, measurable, and time-specific" terms," and taking into account budget constraints;
- Standards, expressed as mandatory constraints on projects and activities and linked to desired conditions, mitigating undesirable effects, and meeting legal obligations;
- Guidelines that are less binding than standards, allowing for departures if the intent of the guidelines is met; and
- Suitability of lands for various multiple uses based on desired conditions expressed in the plan; every plan must identify those lands that are not suitable for timber production.
In addition, the 2012 rule authorizes the inclusion of goals, defined as "broad statements of intent, other than desired conditions, usually related to process or interaction with the public"; they do not include completion dates.
Forest Service Directives:
The Forest Service Handbook (FSH) is the principal source of specialized guidance and instruction for carrying out the policies, objectives, and responsibilities contained in the FSM.
As described above, the Forest Service has tried to make its planning process less prescriptive and more strategic. While the agency has eliminated most procedural and technical details from the rule, it provides more detail through its Forest Service Directive System—the Forest Service Manual (FSM) and the Forest Service Handbook (FSH).
By placing most of the planning process detail in these guidance documents, the Forest Service gave itself even more flexibility in how it develops resource management plans. The FSM and FSH are internal guidance documents rather than rules and are not generally enforceable—in most cases an agency cannot be compelled to follow its own directives.
The planning directives include guidance on:
- Adaptive Planning Process;
- Public Participation and Collaboration;
- Science and Sustainability;
- Forest Vegetation Resource Planning;
- Wilderness and Wild and Scenic River Evaluation; and the
- Objection Process.
The directives and other information on the planning rules are available on the Forest Service web site.
The 2008 rule required that the Forest Service "take into account" the best available science, but they did not require that Forest Service decisions be consistent with this science. Under the 2008 rule, science can be a significant source of information for the agency, but just one aspect of decision making. When making decisions, the agency will consider public input, competing use demands, budget projections, and many other factors as well as science.
2012 Planning Rule: The new rule requires that "responsible official shall use the best available scientific information to inform the planning process," describing this as "the most accurate, reliable, and relevant" information available during the assessment process.
Under the 2008 rule, the Forest Service viewed sustainability as a single objective with interdependent economic, social and ecological elements. This is in contrast to the 2000 rule that recognized all three components, but emphasized ecological sustainability. Under the 2008 rule, the overall goal of the economic and social elements of sustainability was to contribute to sustaining social and economic systems within the plan area. The overall goal of the ecological element was to help sustain native ecological systems by supporting diversity of native plants and animals.
2012 Planning Rule: The new rule (Sec. 219.8) requires that each forest plan "provide for social, economic, and ecological sustainability," and provides more detailed guidance for what each of these components must address.
NFMA requires that land management plans provide for diversity of plant and animal communities in order to meet overall multiple-use objectives. According to NFMA, diversity is based on the suitability and capability of the specific land area. The interpretation of this requirement has always been controversial.
The original rule adopted under the NFMA in 1982 required the agency's forest plans to "insure" the viability of vertebrate species. Rule revisions in 2000 loosened this standard to require plans to provide a "high likelihood" of viability. The 2008 rule stated a goal of providing a framework to contribute to sustaining ecological systems, with no viability mandate at all. Conservation groups successfully challenged this rule, and a federal district court ruled on June 30, 2009 that the agency violated both the National Environmental Policy Act (NEPA) and the Endangered Species Act by issuing an environmental impact statement that "does not actually analyze the environmental effects of implementing the Rule."
2012 Planning Rule: The new rule (Sec. 219.9) directs forests to assess and "provide for" the viability of plant and animal communities, "within Forest Service authority and consistent with the inherent capability of the plan area." The rule does not mandate management for "viable populations." According to Forest Service officials, this is intended to allow flexibility for local conditions, and to reduce unnecessary complexity in forest planning. Environmentalists criticize the new rule as weak for this reason. Some user groups, on the other hand, object to the inclusion of invertebrates in the assessment process.
This component of the rule is expected to generate continued controversy and possibly more litigation. For example, the California Forestry Association said this in comments on the draft rule in 2011: "In the proposed Rule, the Agency opens the viability 'can-of-worms' up to all six Taxonomic Kingdoms including invertebrates, which the Agency publically (sic) admits knows little about. There is every reason to expect this one change (Section 219.9 of the proposed Rule) will easily lead to another $1 billion of new expenditures and decades of new litigation."
Projects and activities must be consistent with the applicable plan. If an existing or proposed National Forest system use, project, or activity is not consistent with the applicable plan, the Forest Service can:
- Modify the project or activity to make it consistent with the applicable plan components;
- Reject the proposal or terminate the project or activity, subject to valid existing rights; or
- Amend the plan contemporaneously with the approval of a project or activity so that it will be consistent with the plan as amended.
Such a project-specific plan amendment may be limited to apply only to the project or activity. When the Forest Service makes a contemporaneous plan amendment, it does not have to follow the typical rules for public notification or predecisional review.
For more detail on project-specific amendments, see Process Essentials: Public Participation in Forest Planning.
The 2008 rule required the plan to describe the area monitoring program, but the rule itself provided very little detail on monitoring requirements. The Forest Service could unilaterally change or update the monitoring plan at any time. And, since the Forest Service considered changes and updates to be "administrative corrections," the agency did not engage the public in changing the monitoring plan as it must for plan amendments or revisions.
2012 Planning Rule: The new rule (Sec. 219.12) requires that a monitoring program be included in the forest plan, and provides a more detailed listing of the conditions it must assess:
- Watershed conditions;
- Ecological conditions, including both terrestrial and aquatic;
- Focal species;
- Ecological conditions required to recover listed species and maintain viable populations of species of conservation concern;
- Visitor use and satisfaction;
- Conditions related to climate change;
- Progress toward meeting plan objectives, including multiple uses; and
- Effect of management systems related to productivity of land.
|What is an EMS?
An environmental management system is a set of processes and practices that enable an entity to reduce its environmental impacts and increase its operating efficiency. A typical EMS includes an environmental policy; looks at the environmental impact of products, activities and services; sets environmental objectives; meets legal and regulatory requirements; provides training to employees; and provides oversight and auditing procedures.
The Forest Service uses environmental management systems (EMSs) to systematically identify and manage environmental conditions and obligations in order to improve the agency's performance and environmental protection. The EMS will not, however, replace any legal obligations that the agency has under NFMA, MUSYA, NEPA, or any other statute. Each EMS will:
- Identify and prioritize environmental conditions;
- Set objectives in light of Congressional, agency, and public goals;
- Document procedures and practices to achieve those objectives; and
- Monitor and measure environmental conditions to track performance and verify that objectives are being met.
By systematically collecting and updating information about environmental conditions and practices (for example, through monitoring, measurement, research, and public input), the EMS is intended to provide a foundation for effective adaptive management, plan amendments, and changing specific project or work practices. The Forest Service expects that the EMS will significantly improve the public's ability to effectively participate in the land management process.
|How Good is the EMS?
Find out with the ISO 14001 Environmental Management System Self-Assessment Checklist.
Neither the 2008 or 2012 rule required each national forest, grassland, prairie, or other comparable administrative unit to develop and implement an EMS. The Forest Service implements a national EMS applicable to all administrative units of the Forest Service. Implementation of the EMS will be governed by Forest Service directives (in the USFS handbook and manual) that provide national guidance, instructions, objectives, policies and responsibilities leading to conformance with the international consensus standard, ISO 14001. The 2008 rules also give the Forest Service flexibility to determine the appropriate scope and environmental aspects of an EMS as well as whether a multi-unit, regional or national level EMS adequately addresses locally identified concerns.
For details on the EMS process see the Forest Service EMS web page.
For help in understanding the relationship between EMS and NEPA, see CEQ's Proposed EMS Guide.
Public participation is an integral part of planning for management of the national forest system. NFMA specifically requires that the Forest Service provide for public participation in the development, review, and revision of land management plans. Most of the details on how the Forest Service is to engage the public in the planning process have traditionally been found in Forest Service regulations. The planning rule provides strong statements of support for public participation, but many of the particulars — in the form of non-binding guidance — are found in agency directives (the FSM and the FSH).
In the preamble to its 2008 planning rule, the Forest Service compared and contrasted public participation of the new rule to that of the original 1982 rule, the Clinton administration’s 2000 rule and its 2005 rule. The agency noted that the major difference in public participation between the 1982 and 2000 rules, on one hand, and both its 2005 and 2008 rules, is whether public participation occurs inside or outside the NEPA process. The agency argued, however, that public involvement requirements of the 2008 rule exceed those required for an EIS under NEPA. Under the 2008 rule, Forest Service was required to provide opportunities for the public, federal, state, and local agencies, and Tribal governments to collaborate and participate openly and meaningfully in the planning process.
Specifically, as part of plan development, plan amendment, and plan revision, the 2008 rule required the agency to involve the public in developing and updating a comprehensive evaluation report, establishing the components of a plan, and designing the monitoring program. The agency has discretion to determine the methods and timing of public involvement opportunities, but, at a minimum, must notify the public when it initiates plan development, plan revision, or a plan amendment and provide a 90-day comment period and a 30-day objection period. The agency must also provide public notice when it approves one of these planning documents. These public involvement requirements apply even if a land management plan decision is categorically excluded from further analysis and documentation in an EA or EIS.
2012 Planning Rule: The new rule (Sec. 219.4) maintains a similar focus and calls for public participation at all stages of plan development and implementation processes. It urges agency officials to be proactive in engaging diverse participants, specifically including Tribal representatives, youth, minorities, and private landowners.
Predecisional Objections Replaced Appeals
Both the 2008 and 2012 rules include a predecisional objection process to replace the appeals process. This objection process is intended to complement the public participation process because, ideally, objectors and the Forest Service can collaboratively work through concerns before the agency approves a plan. The process reflected in the planning rule is based on that currently in use for hazardous fuels reductions under the Healthy Forest Restoration Act. (See Healthy Forests Restoration Act, Controversies: Appeals and Litigation.)
Some of the early responses to the 2012 rule focused its requirement that an individual or organization may only file an objection if they "submitted substantive formal comments" during the planning process. See, for example, "U.S. Forest Service streamlines appeal process; critics object," Missoulian, 1/29/12.
Since 1982, the public has participated in forest planning through the National Environmental Policy Act (NEPA) process. NFMA requires that the Forest Service comply with NEPA in its planning process, but NFMA does not specify what that compliance means. Under NEPA, environmental impact statements are required for "major federal actions that could significantly affect the human environment."
- Under the 1982 planning rule, the Forest Service prepared an Environmental Impact Statement (EIS) to disclose the impacts of resource management plans, revisions, or significant amendments.
- The 2000 rule also required documentation of a plan or plan revision in an EIS. The responsible official—typically the forest supervisor—had discretion under the 2000 rule to determine whether an EIS would be necessary for a plan amendment.
- Under the 2005 rule, the Forest Service created a categorical exclusion to eliminate NEPA evaluation of nearly all resource management plans, revisions, or amendments.
- The 2008 rule anticipated use of this categorical exclusion for resource management plans, but the rule did not mention the exclusion. Rather, the rule (36 CFR 219.4) stated that approvals of plans, amendments and revisions will be done in accord with the Forest Service NEPA procedures (which include categorical exclusions.)
In the preamble to the 2008 rule, the Forest Service acknowledged that adoption of a plan is a final federal action, but emphasized that it is not generally a “major Federal action significantly affecting the human environment” that requires an EIS. Plans developed under the rule would typically not be analyzed in an EIS because they would not usually approve projects and activities, or command anyone to refrain from undertaking projects and activities, or grant, withhold, or modify contracts, permits, or other formal legal instruments. Rather, the agency will wait and analyze the environmental effects of projects and activities under NEPA once they are proposed. NOTE: This reasoning was rejected by a federal district court judge in a June 30, 2009 ruling invalidating the 2008 rule.
Administrative review of Forest Service "decisions" has evolved recently to include both formal appeal of final agency decisions and formal "predecisional review" procedures. Although the 2008 rule were struck down in federal court, Congress
provided in a rider to the FY 2012 spending bill (Sec. 428 of Division E
of P.L. 112-74) that agency resolve objections through predicisional
processes similar to those currently in use for hazardous fuels
reductions under the Healthy Forest Restoration Act. For a summary of these rules, go to Healthy Forests Restoration Act, Controversies: Appeals and Litigation.
For many years, the regulations for appealing all Land and Resource Management Plans (resource management plans) — decisions to adopt, revise, or amend them — were found at 36 CFR 217 (the part 217 appeals regulations). These regulations are still the rules for appealing plan decisions being revised or amended under the 1982 planning regulations. Resource management plans, amendments and revisions developed under the 2008 rules can not be appealed. Instead, the Forest Service adopted a predecisional review and objection process, found at 36 CFR 219.13 (the part 219 appeals regulations).
The Forest Service approves and carries out many projects and activities in the course of implementing its management plans. These are as varied as timber sales, thinning projects, wildlife or watershed enhancement projects, and construction of trails and other recreation facilities. The project or activity must be documented in a Record of Decision (ROD) or Decision Notice (DN) following preparation of a NEPA document—an environmental assessment (EA), environmental impact statement (EIS), or a decision memo (DM). Anyone dissatisfied with a Forest Service decision made in conjunction with one of these projects or activities can object to it according to the procedures of the part 215 appeals regulations, found at 36 CFR 215.
The part 215 rules have two main purposes:
- They provide a process by which the Forest Service notifies the public of proposed actions for projects and activities implementing a land and resource management plan. The Forest Service must give this notice and provide an opportunity for comment before it makes a decision to undertake the activity.
- They also set out an appeal process for those dissatisfied with the Forest Service decision. The rules identify the decisions that may be appealed, who may appeal those decisions, the responsibilities of the participants in an appeal, and the procedures that apply for the prompt disposition of the appeal. The Forest Service revised the Part 215 appeal process in 2003, and currently the process differs for projects that were advertised for comments ("noticed") before or after June 3, 2003.
Rules in Flux
Another court found invalid a provision of the 2003 revision of the Part 215 rule that allowed only those that had substantively commented on a project in the applicable NEPA document to appeal a decision (see The Wilderness Society v. Rey, CV 03-119-M-DWM, April 2006).
Congress provided in a rider to the FY 2012 spending bill (Sec. 428 of
Under the part 215 rules, certain project and activity decisions are not subject to appeal. These include "decisions" that are not technically decisions, for example:
- Determination that a "new decision" is not needed after preparing a supplemental EIS or revision of an EA cannot be appealed;
- Preliminary findings made during the planning process on a project or activity cannot be appealed;
- Subsequent implementation actions that result from a project decision which was subject to appeal cannot themselves be appealed; and
- Forest Service recommendations to other federal agencies and concurrences (statements of agreement) with other federal agencies cannot be appealed.In addition, Forest Service decisions on projects and activities are safe from appeal if the Forest Service received no negative comments on them during the comment period. And the Forest Service still need not provide for notice, comment or appeals of minor or short term activities approved under a management plan.
Predecisional review and objections to decisions to approve, revise, or amend a resource management plan developed under the 2008 planning rules
Appeal of project-specific amendments to resource management plans
Forest Service Management
"Predecisional review" for hazardous fuel reduction projects authorized by the Healthy Forests Restoration Act of 2003
Occupancy and Use
Hazardous fuels reduction projects are a special type of project or activity implementing a resource management plan. The Forest Service has special predecisional review procedures for these projects—part 218 rules—required by the Healthy Forests Restoration Act of 2003.
For a summary of these rules, go to Healthy Forests Restoration Act, Controversies: Appeals and Litigation.
The Forest Service approves—and denies—many requests to occupy or use national forest system lands. The part 251 appeal regulations are used to appeal decisions related to many different kinds of permits and uses, including:
- Mining plans of operations and other mineral uses;
- Grazing and other livestock uses;
- Archaeological excavation permits;
- Access to and use of private inholding within the boundaries of national forests; and
- Temporary use of lands.
The part 251 appeals regulations list a variety of decisions that cannot be appealed under these rules. Examples include certain commercial activities and contracts, personnel actions, and the forest planning process—all of which have alternative processes for appeal specified in particular, applicable laws.
The Forest Service proposed new and relocated use and occupancy appeal regulations in October 2011.
The Forest and Rangeland Renewable Resources Planning Act (RPA) requires the Forest Service to develop and update Renewable Resource Assessments (assessments) every 10 years. The agency develops these assessments with public involvement and in consultation with interested government agencies. The assessments must include:
- Analysis of present and anticipated uses, demand for, and supply of the renewable resources;
- Inventory of present and potential renewable resources; and
- Evaluation of opportunities for improving their yield and direct and indirect returns to the federal government.
The assessment must describe:
- Forest Service programs and responsibilities in research, cooperative programs and management of the National Forest System;
- Their interrelationships; and
- The relationship of these programs and responsibilities to public and private activities.
It must also include a discussion of important policy considerations, laws, regulations, and other factors expected to influence and affect significantly the use, ownership, and management of forest, range, and other associated lands.
The Forest Service Manual (section 1912) describes internal Forest Service responsibilities and timetables for preparing the assessments, geographic boundaries for assessments, underlying assumptions for analysis of data, and content of the documents. The Forest Inventory Analysis (FIA) group of the Research and Development (R&D) division of the Forest Service performs the assessments. The 2000 resource assessment and other documents can be found on the Forest Service Web site.
In addition to developing renewable resource assessments, the Forest Service must develop and revise its renewable resource program for the protection, management, and development of the National Forest System every five years. The program must include:
- Inventory of specific needs and opportunities for both public and private program investments;
- Specific identification of program outputs, results anticipated, and benefits associated with investments;
- Discussion of program priorities; and
- Detailed study of personnel requirements to implement and monitor existing and ongoing programs.
Since the passage of the National Forest Management Act (NFMA) in 1976, the Forest Service must include program recommendations in the resource program which, among other things:
- Address multiple-use and sustained-yield management;
- Explain opportunities for private landowners;
- Recognize the fundamental need to protect and improve the quality of soil, water, and air resources; and
- Develop national goals.
The Forest Service Manual (Section 1913) provides guidance to Forest Service staff on data collection, development of national goals, and formulation and evaluation of alternatives. The Chief implements the program by assigning objectives and targets and issuing policy direction for use in planning and budgeting.
The agency's 2012 Resource Planning Act assessment (Future of America's Forests and Rangelands) offers a sobering view of forest conditions in coming decades, focused particularly on challenges of climate and land-use pattern changes.
The National Environmental Policy Act (NEPA) requires agencies to prepare an environmental impact statement (EIS) for proposed actions that may have a significant effect on the human environment. The Forest Service, as well as other agencies, can identify categories of actions that would have no individual or cumulatively significant effect. After doing so, the agency can take one of these "categorically excluded" actions and implement a project in this category without evaluating the impacts in either an EIS or an environmental assessment. Over the past decade, the Forest Service has created a number of CEs
for vegetative management, and they have been subject to litigation ever
A series of federal court decisions have limited the agency's ability to avoid full environmental review through CEs.
Most importantly, on March 29, 2012, Federal District Court Judge
Lawerence O'Neill ruled that a 2003 Forest Service regulation exempting
certain "minor activities" from environmental documentation violated the
1992 Appeals Reform Act. The judge issued an injunction requiring
public notice and the right to appeal all Forest Service decisions,
effectively eliminating the agency's use of CEs. The agency is deciding whether to appeal this decision.
On July 29, 2003, the Forest Service published a final rule in the Federal Register that categorically excludes certain small timber sales from NEPA analysis. The rule creates exclusions for three categories of small timber sales:
- Harvest of live trees on not more than 70 acres;
- Salvage of dead/dying trees on not more than 250 acres; and
- Removal of any trees necessary to control insect and disease infestations on not more than 250 acres.
All of these exemptions are limited to projects involving no more than one-half mile of temporary road construction.
The purpose of the live tree harvest exemption is to expedite low-impact silvicultural treatments through timber harvest. Examples of projects that could be implemented under this category include thinning of overly dense stands of trees to improve the health and vigor of the remaining trees, and removing individual trees for forest products or fuel wood. The salvage exclusion allows salvage harvest in areas where trees have been severely damaged by forces such as fire, wind, ice, insects, or disease, and still have some economic value as a forest product. The insect and disease exemption allows the agency to cut trees to control insects and disease before they spread to adjacent healthy trees.
Western Republicans would like to expand the exclusions to expedite large salvage logging operations like the 518 million board feet salvage proposed on the 500,000 acre Biscuit Fire in Oregon.
- Proponents say salvage logging will restore the land more quickly and help pay for the restoration work.
- Opponents contend that salvage logging rarely contributes to the recovery process and severely damages old growth reserves.
In reviewing a challenge to this rule as applied to a specific project in California's Sequoia National Forest, the U.S. Supreme Court ruled that environmental groups or individuals can challenge regulations in court only if they can show that they will be directly harmed by specific actions resulting from the regulations, but rejected the Bush administration's argument that would have limited standing to bring a type of challenge in which plaintiffs argue a statute is in all circumstances unconstitutional.
The Forest Service and the Bureau of Land Management (BLM) created two categorical exclusions related to fire in 2003. One is for hazardous fuels reduction activities; the other for rehabilitation activities for lands and infrastructure impacted by fires or fire suppression. These CEs are intended to facilitate the treatment of hazardous fuels and rehabilitation of areas in order to reduce risks to communities and the environment caused by severe fires.
Activities carried out under the rehabilitation categorical exemption(FSH1909.15 section 31.2) will take place only after a wildfire and must be completed within three years following a wildland fire. These activities cannot exceed 4,200 acres, use herbicides or pesticides, nor include the construction of new permanent roads or other infrastructure.
|Sierra Club v. Bosworth
The 9th Circuit Court of Appeals found that the Forest Service did not adequately analyze the impacts of the hazardous fuels CE and called for a nationwide injunction. The appeals court returned the case to the trial court to determine which on-going projects, approved after the lawsuit was filed in October 2004, might be completed under the CE.
The hazardous fuels reduction category CE was almost immediately contested by conservation groups who won their challange of the CE in December, 2007 (see side box). While the Forest Service can no longer use this CE for new projects, we describe it here beause the agency used it to approve certain projects now being implemented. Furthermore, the Forest Service may try to reissue the CE by curing the deficiencies identified by the court — by reevaluating the significance of the CE and its potential cummulative impacts.
The hazardous fules category was to be applied only to activities identified through a collaborative framework and conducted in wildland-urban interface areas or in certain fire-prone areas outside the wildland-urban interface. Several restrictions applied to the hazardous fuels reduction activities that use the exemptions. Exempted projects could not:
- Be conducted in wilderness areas or where they would impair the suitability of wilderness study areas for preservation for wilderness;
- Include the use of herbicides or pesticides;
- Involve the construction of new permanent roads or other infrastructure;
- Include sales of vegetative material that do not have hazardous fuels reduction as their primary purpose;
- Exceed 1,000 acres for mechanical hazardous fuels reduction activities; or
- Exceed 4,500 acres for hazardous fuels reduction activities using fire.
For background information and text of the small timber sale and fire CEs, see www.fs.fed.us/emc/nepa/index.htm.
For further information on CEs for forest planning, see Process Essentials: Public Participation in Forest Planning, No Public Participation through the NEPA Process or Controversies in the NEPA section.
A GAO report on the Use of Categorical Exclusions in Vegetation Management is available for download at www.gao.gov.
There is more than one way, time and place to "do" public participation in land and resource management. Controversy over roadless area management illustrates the requirements of public participation in the rule making process.
The Forest Service created both the Clinton Roadless Rule and the State Petitioning Rule using the formal rule making process laid out in the Administrative Procedures Act. This process requires a minimal amount of public participation in the form of notice to the public and opportunity for comment by the public on the proposed rule. For a typical rule making, the APA (5 USC § 553) requires the agency to give notice to the public in the Federal Register:
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject there to are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.
Except when notice or hearing is required by statute, this subsection does not apply:
(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.
After notice, the APA also mandates that the agency provide the public an opportunity to comment:
(C) After notice required by this section [5 USC § 553], the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection.
Beyond the "notice and comment" opportunities of a formal rule making, development of the Clinton Roadless Rule incorporated the full public participation process of a National Environmental Policy Act (NEPA) analysis. Although some think the comment periods on draft roadless documents were too short and that the Forest Service gave insufficient information to the public to make informed comments, nonetheless, the process produced a four volume Environmental Impact Statement (EIS). This NEPA analysis evaluated alternatives for roadless area management. The agency's preferred alternative laid out the parameters for roadless area protection nationwide.
In contrast, the State Petitioning Rule created a process for developing roadless area management on a state-by-state basis. The rule anticipated, but did not require, public participation in these state processes. The rule required only that the Governor document whatever public participation process was used to develop recommendations. State petitions had to include:
A description of any public involvement efforts undertaken by the petitioner during development of the petition, including efforts to engage Tribal and local governments, and persons with expertise in fish and wildlife biology, fish and wildlife management, forest management, outdoor recreation, and other important disciplines. . .
The State Petitioning Rule also anticipated that the Forest Service would eventually adopt state-by-state rules with the public participation required by a full APA notice and comment rule making process and that NEPA analysis would be done - on an as-needed basis -for these individual state rule makings.
With these public participation processes anticipated in the future, the agency declined to prepare an EIS on the new rule. The Forest Service argued that the new rule is "merely procedural in nature and scope" and, as such, has no direct, indirect or cumulative effect on the environment. The Forest Service also cited its categorical exclusion to exempt "rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instruction" from NEPA analysis. Consequently, the Forest Service decided that the rule did not require preparation of an EIS or an environmental assessment. In justifying the NEPA exemption, the agency also explained that, in any case, the agency had already analyzed any potential impacts. The EIS for the Roadless Rule, mentioned above, analyzed the "no action" alternative—essentially the "pre-Roadless Rule" world in which management of existing roadless areas was simply guided by existing land management plans. Since the State Petitioning Rule is essentially this "no action" situation, the agency reasoned that any impacts of the rule had already been disclosed and discussed. Furthermore, if Governors eventually petitioned to establish state-specific management, the Forest Service would fully consider the environmental effects of those plans in cooperation with the state and in compliance with NEPA.
In September 2006 a federal judge ruled that the Bush administration had the right to overturn the Roadless Rule, but it found that the administration violated NEPA by failing to conduct an environmental analysis, and violated the Endangered Species Act by failing to consult with the Fish and Wildlife Service when it removed the Clinton roadless protections. This ruling reinstated the Roadless Rule and its protections. In November 2006, the court extended its ruling to block controversial oil and gas and road projects approved while roadless area protections were removed.
To date, all of the public participation regarding roadless management has been in:
- Creating general prescriptions for Forest Service management of roadless areas (under the Clinton Roadless Rule),
- Creating a process for developing state-specific prescriptions (in the State- Petitioning Rule), and in
- Developing state petitions.
The public can anticipate some additional opportunity to participate in management under the Clinton rule through on going NEPA requirements. For example, application of some of the exceptions to logging and road building prohibitions in the rule may trigger NEPA analysis tiered from the full EIS. The Clinton Roadless Rule does not, however, prescribe any particular public participation in the day-to-day management of roadless areas.
One can only speculate whether state-specific rules that might still be developed by states and the Forest Service would invite public comment or more robust collaborative resource management opportunities in the management of roadless areas.
- January 1998, Forest Service Chief Mike Dombeck proposed to temporarily suspend road construction and reconstruction in most inventoried roadless areas and other adjacent unroaded areas;
- February 1999, Forest Service issued an interim rule suspending road construction and reconstruction in certain inventoried roadless areas for 18 months;
- October 1999, President Clinton directed the Forest Service to develop regulations that would provide appropriate long-term protection for currently inventoried roadless areas; Forest Service starts the rulemaking and EIS processes;
- May 2000, Forest Service published a proposed rule in the Federal Register and made the draft EIS available to the public for comment;
- The comment period on the DEIS closed in July and the final EIS was available in November 2000;
- January 12, 2001, Forest Service published the final rule to become effective in 60 days; groups immediately sued in Idaho, Wyoming and elsewhere to suspend the rule;
- March 2001, the new Bush administration delayed implementation of the rule until May;
- May 2001, a federal court judge in Idaho suspended the rule saying the rulemaking process lacked public participation; the Bush administration did not appeal the ruling; The preliminary injunction decision was reversed by the U.S. Court of Appeals for the Ninth Circuit;
- July 10, 2001, the Forest Service published an advance notice of proposed rulemaking seeking public comment concerning how best to proceed with long-term conservation and management of inventoried roadless areas;
- December 2001, an interim rule allowed Forest Service Chief Dale Bosworth to personally approve timber sales in roadless areas (no sales were approved when the rule expired in June 2003);
- May 2002, Forest Service provided a 1,200-page summary of public comment on changing the rule (available on the Forest Service's Roadless Rule web page);
- June-July 2002, bills introduced in House and Senate to change the agency roadless rule into statutory law;
- December 2002, 9th Circuit Court of Appeals reinstated the rule overturning part of the Idaho court decision; a request for review by the whole court put it on hold again until April 2003 when the 9th circuit rejected this request;
- June 2003, Roadless Area Conservation Act of 2003 introduced in the Senate;
- June 10, 2003, in a settlement agreement in the State of Alaska v. USDA litigation, the Department of Agriculture agreed to propose an amendment to the roadless rule to temporarily withdraw the Tongass National Forest in Alaska from its provisions;
- June 2003, Bush administration announced it would invite Western governors to seek exemptions from the rule;
- July 14, 2003, a Federal court in Wyoming struck down the rule, nationwide, saying that it constituted an attempt to administratively designate 58.5 million acres as wilderness and only Congress can designate wilderness; conservationists appealed and the Bush administration is fighting the appeal;
- September 2003, the Bush administration decided to propose a new roadless rule, rather than to continue with rule revisions it proposed in June;
- December 2003, Bush administration temporarily exempts Alaska's Tongass National Forest from the roadless rule, allowing logging in more than 300,000 acres of that forest;
- July 16, 2004, the Bush administration proposed to replace the Clinton administration's national roadless area protection rule with state specific roadless management plans that must be designed and requested by state Governors;
- May 13, 2005, the Bush administration published a final rule establishing a petition process for state-specific management of inventoried roadless areas in the National Forest system.
- September 8, 2005, the Forest Service established a Roadless Area Conservation National Advisory Committee to provide advice and recommendations to the Secretary of Agriculture to implement the new rule.
- May 2006, New Mexico was the first western state to file a petition to protect all of its inventoried roadless areas, but the state also joined a suit to invalidate the Bush administration's rule.
- September and October, 2006, a Federal court in California reinstated the Clinton Roadless Area Conservation Rule. An Oregon timber company, currently logging in roadless areas, immediately appealed the decision.
- November 30, 2006, The court blocks many oil and gas and road projects approved while roadless area protections were removed.
- October 19, 2007, Wyoming again asks a Federal court to invalidate the Clinton roadless rule and reinstate the Bush administration rule.
- December 20, 2007, the Forest Service issues the first draft plan and Draft Environmental Impact Statement based on a state petition submitted by Former Governor Jim Risch of Idaho under the APA.
- August 13, 2008, U.S. District Court Judge Clarence Brimmer tosses out the Clinton rule and effectively upholds the Bush rule.
- October 16, 2008, the Forest Service issues a final rule for the State of Idaho.
- January 16, 2009, environmentalists file suit against the Forest Service, claiming that it improperly approved Idaho's roadless plan.
- July, 2009, coalition of hunting and fishing groups ask Agriculture Secretary Tom Vilsack to intervene in Colorado's roadless rulemaking process so that stakeholders can "take time to further address and attempt to fix the proposed rule's many problems."
- August 5, 2009, Ninth Circuit Court of Appeals throws out the 2005 Bush roadless rule, saying the rule "had the effect of permanently repealing uniform, nationwide, substantive protections that were afforded to inventoried roadless areas" in national forests. Decision does not affect pending case in Tenth Circuit, which is considering lower court's decision invalidating Clinton's 2001 rule. The Obama administration filed an appeal in that case on Aug. 13, 2009, and Chief Vilsack announced the next day that his agency would defend the 2001 rule or develop a new one if necessary.
- On October 1, 2009, S. 1738 was introduced, aimed at codifying the 2001 rule.
- Ore. Gov. Kulongoski requests that the Obama administration clarify its intentions to back the 2001 rule.
- In April 2010, Colorado submits its final plan for roadless protection to the Forest Service.
- In July 2010, conservation groups Trout Unlmited and the Idaho Conservation League came out in support of Idaho's roadless rule.
- In January 2011, Federal District Court Judge Winmill (Idaho) upholds Idaho's roadless plan, rejecting environmental groups' argument that the Forest Service violated the Endangered Species Act in approving the state plan; Judge Winmill upheld the rule again in January 2012 against a challenge by environmental groups.
To cut or not to cut—that is the question professional foresters, the timber industry, conservationists, and the Congress are debating regarding trees affected by western wildfires and insect infestations. The current controversy includes:
- Federal court action permitting salvage on the 500,000 acres of the 2002 Biscuit Fire in Oregon; resulting in the first roadless timber area to be soldsince the Bush administration repealed the 2001 Roadless Rule;
- Proposed legislation, including House Bill 4200 (the Forest Emergency Recovery and Research Act), which would provide broad exemptions from NEPA and the Endangered Species Act for future salvage sales; and
- Academic studies out of Oregon State University that suggest that salvage cutting and planting after fires might do more damage than good.
The controversial predecessor of these judicial, legislative and academic debates is the infamous salvage timber rider—a special provision for conducting salvage timber sales slipped into an emergency appropriation bill following the 1995 Oklahoma City federal building bombing. The rider allowed the Secretaries of the Interior and Agriculture to expedite timber sales to facilitate the removal of disease- or insect-infested trees, dead, damaged, or down trees, or trees affected by fire or imminently susceptible to fire or insect attack, including the removal of associated healthy trees.
The controversial law authorized 18 months of sales with wide discretion given to the Secretaries to approve sales with limited environmental analysis, without opportunity for administrative appeals, and subject to limited judicial review. The authorized sale area included Northern Spotted Owl habitat otherwise protected under Option 9 of the Northwest Forest Plan, but excluded certain wilderness areas, wilderness study areas and roadless areas, as well as Federal lands where timber harvesting was already prohibited by statute.
In 2001-2, the Western Governors Association (WGA), the Secretaries of Agriculture and the Interior and others adopted the 10-Year Strategy and an implementation plan (together "the Strategy") to reduce the risk of wildland fire to communities and the environment. The Strategy established a collaborative framework for local, state, tribal and federal governments, along with non-governmental interests, to accomplish four goals:
- Improve Fire Prevention and Suppression;
- Reduce Hazardous Fuels;
- Restore Fire-Adapted Ecosystems; and,
- Promote Community Assistance.
In a recent evaluation of Strategy implementation, the Forest Health Advisory Committee of the WGA (FHAC) announced that about 75 percent of the action items agreed to were completed or in their final stages. The FHAC identified a number of themes for future implementation; two deal with collaboration:
- More information sharing and monitoring of accomplishments and forest conditions is needed to improve transparency, and
- Improved collaboration is needed at all levels of government and in all appropriate Strategy activities.
According to the FHAC report, the collaborative framework is not being used consistently at the local, state and national level.
- Local: Most collaboration is occurring locally when effective leaders emerges from within participating parties.
- State and Regional: Collaboration on project prioritization and implementation is improving, but seems to be somewhat exclusive ("by invitation only") and frequently is not broadly inclusive.
- National: The Wildland Fire Leadership Council (WFLC) is the primary mechanism for national-level collaboration under the Strategy. While WFLC functions effectively for coordination among government entities, it does not provide for meaningful participation by nonfederal stakeholders and tends to pre-determine outcomes prior to its meetings.
- Federal Programs: New directives related to the Healthy Forests Initiative (HFI) and the Healthy Forests Restoration Act (HFRA) have made certain collaborative efforts more complicated.
FHAC identified several priorities for improving wildfire-related collaboration:
- Establish measures of success for each level of the Strategy's collaborative framework;
- Report on projects and highlight successful collaborative efforts;
- Develop and deliver workshops on how to successfully and consistently collaborate at local and state/regional levels;
- Establish a mechanism for more meaningful non-governmental stakeholder involvement in the WFLC;
- Seek federal, state, tribal and local resources to develop Community Wildfire Protection Plans and provide for their implementation;
- Facilitate the development of web-based analytical tools that make GIS data and related mapping and modeling information available to local communities for wildfire protection planning;
- Improve the National Fire Plan Operations and Reporting System; and
- Develop incentives for agencies and landowners to plan forest health treatments across administrative boundaries and focus on innovative, landscape approaches.
Collaboration revives Smooth Juniper timber sale
The Gifford Pinchot Collaborative Working Group proposed changing the controversial timber sale from a primarily extractive cut to a thinning project. The project will change a thick Douglas Fir monoculture into a more complex, natural forest. The change
- reduces volume from 8 million board feet (mmbf) to 5.2 mmbf;
- eliminates all logging in roadless areas and old-growth stands;
- includes innovative thinning operations to make the forest function more like an older forest supporting rare and endangered wildlife; and,
- removes unneeded roads after logging to avoid harming threatened salmon runs.
Click here to read more about the Smooth Juniper sale.
Almost by definition, collaboration involves struggle. While each collaborative has its unique problems, many share the struggle of getting or keeping all essential stakeholders at the table. (See Forming the Group in the Collaboration Handbook). Without the right participants, the group may lack the essential resources (land, money, authority or personnel) to accomplish their goals or the group may be thwarted during plan implementation if a disgruntled stakeholder appeals a proposed project. Examples of groups struggling with membership are:
- Partners for Grassland Stewardship: The absence of two grazing associations, major stakeholders in the Dakota Prairie Grasslands, has limited the scope of decisions and the effectiveness of the PGS's consensus approach. The grazing associations fear that the group's plan to use a private ranch in conjunction with Forest Service grazing allotments as a grassbank will help destroy the area's ranching economy.
- Valle Grande Grassbank: The Conservation Fund and its partners has struggled with non-member opponents from both the ranching and environmental community using political pressure and administrative appeals to thwart the collaborative project in New Mexico.
The Henry's Fork Watershed Council provides a different take on a similar problem. The Council provides a forum and a process for consensus building among various stakeholders, including local, state and federal agencies, farmers and ranchers, environmentalists, and recreationists. The council is jointly chaired by the Henry's Fork Foundation and the Freemont Madison Irrigation District. While representation from diverse interests in good, some Council members admit that they have a tendency towards conflict avoidance—fearing to risk success by airing really difficult issues.
The Forest Service Handbook provides direction to Forest Service staff organizing and running public participation activities for planning. The handbook charges staff to:
- Build relationships and trust, upfront, and throughout the planning process;
- Learn and build capacity and skills for collaborative work, both inside and outside the agency;
- Make the planning process open as early as possible and throughout the process;
- Facilitate agreement early on roles, authorities, and processes;
- Emphasize and share leadership; and,
- Focus on learning and sharing information as widely as possible.
The handbook recognizes that the public can participate in many ways. Collaboration can involve focus groups, field trips, workshops, forums, open houses, and one-on-one meetings. The handbook recommends that staff use collaboration "iteratively" to develop common understanding, common goals, and common agreements.
Forest Service regulations require the agency to involve the public in developing and updating comprehensive evaluation reports, establishing components of the plan, and designing the monitoring program. The special role of collaboration is to help to:
- Develop distinctive roles and contributions of the planning unit;
- Identify desired conditions, which can represent stakeholders' social, economic, and ecological preferences;
- Develop management strategies to achieve desired conditions; and,
- Set program priorities.
If there is disagreement?
The handbook recognizes that completely collaborative processes may not be effective in every situation. In those situations, the agency should proceed with a decision on the plan or activity. Staff may also use collaboration to resolve objections. The Forest Service and the public can seek reasonable solutions to conflicting views before a plan, plan amendment, or plan revision is adopted. While the agency must promptly render a decision on an objection, there is no set time limit, so parties can focus on joint problem solving to resolve issues, not on hurrying a decision to meet an artificial deadline.
Illustrating the potential for an unlikely coalition, loggers and wilderness advocates in Montana devised their own alternative in a forest planning process. Their alternative proposed to use stewardship contracts on a large scale. Click here to view the Partnership's web site, which includes a discussion of the process by which they brought this idea to the Forest Service planning process and subsequently worked with Mont. Sen. Jon Tester to introduce legislation (The Forest Jobs and Recreation Act of 2009) including this and two other proposals developed through community-based collaboration.
The Partnership generated a great deal of controversy, including opposition from both ends of the ideological spectrum. For background on the various partnerships that led to the 2010 legislative proposal (including the Beaverhead-Deerlodge Partnership), see "Seeds of wilderness bills rooted in timber wars," Missoulian, 8/3/09. For a summary of the divergent viewpoints aired at congressional hearings, see "Sen. Tester's Plan for Wilderness, Logging Roils Big Sky Country," New York Times, 12/14/09. In early 2013, Montana State Rep. Kerry White (R-Bozeman) introduced a non-binding measure (H.J.R. 8) to express opposition to the Forest Jobs and Recreation Act; see news story here about the testimony this provoked at a committee hearing in January 2013.
The bill remained on the table, in various legislative proposals, through the conclusion of the 112th Congress, but was never enacted. It was reintroduced at the start of the 113th Congress as S. 37.
Recent reports proposing new policies for national forest management:
but may be purchased for $5 from the
Center for the Rocky Mountain West,
University of Montana, Missoula, MT
New information will be added as the Congress takes action.
For a complete list of forestry-related public laws and House and Senate bills, see American Forests’ Legislation Tracker.
National Forest Management Act of 1976 (NFMA)
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Multiple Use-Sustained Yield Act of 1960
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Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA), as amended through 1996
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USDA Forest Service
General Forest Service Information
The Forest Service web site includes links to information on awide variety of topics and programs.
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Planning Policies and Processes
The Forest Service Web site provides a wealth of information on the planning process.
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The site also provides a downloadable version of The Partners in Planning Guide: A Guide to How You Can Contribute to National Forest Planning (this guide applies only to plans developed under the 1982 regulations)
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This Forest Service web site provides basic information on the Forest Service appeals processes and links to additional documents on appeals and litigation.
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Categorical Exclusions from NEPA
The Forest Service NEPA web page provides information on fire program and small timber categorical exclusions.
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Roadless Area Conservation
This Forest Service web page provides current information on the roadless rule, maps, a searchable state-based database, and an extensive library of documents (click on "Documents") including the roadless rule and the EIS.
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