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There is increasing interest in resolving multiple-use conflicts through place-based (national forest-specific) legislation. Throughout the West, divergent interests are negotiating how they would like particular forests to be managed. Many of these proposals include provisions related to wilderness designation, economic development, forest restoration and funding mechanisms, among others. But unlike more typical collaborative efforts, some groups are seeking codification of their agreements. Numerous factors have precipitated this interest in going to Washington in search of legislation, including perceptions of agency gridlock, unresolved roadless and wilderness issues, and the disarray that now characterizes forest planning. Nowhere is the place-based approach more apparent than in Montana.

Tester Forest Bill: Questions and Opportunities

There is increasing interest in resolving multiple-use conflicts through place-based (national forest-specific) legislation. Throughout the West, divergent interests are negotiating how they would like particular forests to be managed. Many of these proposals include provisions related to wilderness designation, economic development, forest restoration and funding mechanisms, among others. But unlike more typical collaborative efforts, some groups are seeking codification of their agreements.

Numerous factors have precipitated this interest in going to Washington in search of legislation, including perceptions of agency gridlock, unresolved roadless and wilderness issues, and the disarray that now characterizes forest planning.

Nowhere is the place-based approach more apparent than in Montana. In July 2009, Montana U.S. Sen. Jon Tester introduced Senate Bill 1470, the “Forest Jobs and Recreation Act (FJRA).” If enacted, it would direct management on three national forests in Montana; the Beaverhead-Deerlodge, and parts of the Lolo and Kootenai. This approach is a significant departure from the status quo and it raises several questions and opportunities that are addressed below.

Background
Before proceeding with the questions, some background is necessary. Prior to the FJRA’s introduction, three separate groups of interests negotiated proposals for how they would like individual national forests to be managed. These groups included the controversial “Beaverhead-Deerlodge Partnership” dealing with the largest national forest in Montana , the smaller-sized “Three Rivers Challenge” focused on part of the Kootenai, and the relatively modest “Blackfoot-Clearwater Landscape Stewardship Project” centered on part of the Lolo. Tester modified some of these agreements and then lumped them together into one multi-faceted bill.

There are four provisions of the FJRA that I wish to emphasize: the designation of wilderness and special management areas, a timber supply provision, forest restoration goals, and the use of stewardship contracting.

First, it seeks to designate roughly 677,000 acres of wilderness and 336,000 acres of special management areas on three national forests. The latter designation is designed to protect some places from resource use while allowing and enhancing some types of motorized recreation.

In exchange for these designations, the bill mandates that 70,000 acres on the Beaverhead-Deerlodge and 30,000 acres on the Kootenai are to be “mechanically treated” by the USFS over the next ten years. Priorities and sideboards are set for where these projects can happen, so they will most likely be funneled into the roaded frontcountry.

Non-timber related restoration goals are also set in the bill, though compared to the treatment mandate, they are not quantified nor prescribed in as much detail. Nor is there any guarantee that the restoration work will be done once the mechanical treatments are accomplished. Also worked into the legislation is possible funding for a biomass project for a timber mill in the Seeley-Swan Valley.

The bill relies heavily upon the use of stewardship contracting to achieve its treatments and restoration work. This authority allows the USFS to trade its goods (timber) for services to be rendered by a private contractor, such as restoration work like replacing culverts or rolling up roads.

While Tester’s bill has garnered national attention, there are place-based initiatives happening on other national forests, including the Lewis and Clark, Colville, Clearwater and Nez Perce, Fremont-Winema, Tongass, and federal forests in Arizona, among others. Each initiative is different in significant ways. But all are searching for more durable, bottom-up, and pro-active solutions to national forest management. Some negotiations, like that on Idaho’s Clearwater and Nez Perce, may result in proposed legislation. But others, including arrangements on the Colville and Fremont-Winema, aren’t based on forest specific laws but instead operate through formalized agreements and protocols with the USFS .

Questions

Senator Tester’s bill is a bold and constructive response to a dysfunctional status quo. It advances the debate over national forest management in significant ways-putting all the big issues and conflicts squarely on the table, right where they belong. In doing so, his bill has generated a vigorous debate while shaking up traditional political alliances.

A congressional hearing focused on the Senator’s bill is supposedly in the works. Congressional hearings can be a mixed bag, of course; being either a terrible oxymoron or constructive inquiry. I hope the former will hold true, and that some tough questions will be answered by proponents and opponents of the bill. Laid out below are some of the most important. They go beyond the FJRA, with the assumption that if enacted, similar place-based forest laws are forthcoming.

1. Would a proliferation of place-based forest laws disunify the relatively consistent mission and mandate of the USFS ?

If replicated more broadly, the place-based approach to forest management could further disaggregate the national forest system. Law-by-law, the national forests could be governed by forest-specific mandates, not unlike the unit-specific “enabling” laws governing the national parks and wildlife refuges. A relatively consistent mission and mandate applicable to the national forests would be replaced by more site-specific prescriptive laws detailing how particular forests must be managed. This might be good for some forests, but what effect would it have on the national forest system on-the-whole?

2. Will the FJRA conflict with preexisting agency mandates, environmental laws, and planning requirements?

Forest-specific laws already on the books, like the Tongass Timber Reform Act and the Herger-Feinstein (Quincy Library) Act, have engendered more conflict than consensus partly because of how these laws sometimes fail to fit into the preexisting legal/planning framework. In these and other cases the USFS is forced to walk a statutory minefield with legal grenades thrown from all directions. One way or another, the agency gets sued for either complying with existing environmental laws or for ostensibly subordinating the new place-based one. A quick study of these cases informs us that the answer to forest management might not be another law placed on top of myriad others but rather an untangling or clarification of the existing legal framework.

Complying with the National Environmental Protection Act is one big unanswered question in the FJRA. The bill requires the USFS to satisfy its NEPA duties within one year. But without additional support it’s hard to fathom the agency meeting this deadline, given that it takes the USFS about three years to complete an EIS. When it comes to meeting NEPA obligations, the USFS needs more funding, leadership, and institutional support, not more law.

3. Will it work and how will it be paid for?

One purpose of the FJRA is to generate a more predictable flow of wood products for local mills, thus the bill’s timber harvest mandate. The probability of achieving community stability through forest management has been debated ad nauseum. Alas, most agree that there are simply too many uncontrollable impediments to achieving this objective, like fluctuating housing starts, cheap Canadian imports, vacillating court decisions, swings in agency budgets, and so on. But realism aside, the FJRA is to be admired for its focus on sustainable forests and communities, and for understanding the benefits of having a functional timber industry in Montana.

Before proceeding with a forest-specific law with a harvest mandate, lawmakers should consider some alternative ways to achieve greater predictability. This includes an innovative effort on the Colville National Forest to provide a steadier, sustainable, and less contested stream of timber for local mills, with accompanying restoration objectives. In this case, a collaborative group works with the agency to achieve its objectives via formalized agreement and a mutually agreed upon decision making protocol. Before proceeding with a legislated timber mandate, however modest it might be, it makes sense to learn from this and other initiatives and possibly adapt them elsewhere.

The FJRA would be primarily implemented and paid for by using stewardship contracting. This tool’s popularity stems partially from the highly uncertain congressional appropriations process, a process that chronically underfunds the USFS and its non-fire related responsibilities and needed restoration work.

But on the Beaverhead-Deerlodge, there are serious questions as to whether there is enough economic value in this lodgepole pine-dominant forest to pay for the restoration work. As a safety valve, the FJRA authorizes spending additional money to meet its purposes, but there is no guarantee that such funds will be appropriated, or if so, they wouldn’t come from another part of the agency’s budget.

The question, then, is what happens if such envisioned funds don’t materialize? Will money be siphoned from other national forests in order to satisfy the mandates of the FJRA? Consider, for example, the White Mountain stewardship project in Arizona. The Government Accountability Office (GAO) found that this project incurred greater costs than expected and such costs have “taken a substantial toll on the forest’s other programs.” Furthermore, some other fuel-reduction projects were not completed because their funding sources were being “monopolized” by the White Mountain project. Other national forests in the region also paid a price to service the terms of this contract, and “[a]s the region has redirected funds toward the White Mountain project, these other forests have become resentful of the disproportionate amount of funding the project has received.”

The place-based law approach could move the national forests closer to a Park Service model, where state congressional delegations sometimes treat parks like their own fiefdoms, exercising inordinate control over a unit via committee and purse strings. And at the risk of getting ahead of myself, the approach brings to the fore other budget-related questions. Will senior congressional delegations be more successful in securing funding for place-based laws in their states? Will it create a system of “haves” and “have nots” in the national forest system? And perhaps most important, would these budgetary situations benefit the national forest system as-a-whole?

4. What precedent will be set if the FJRA is enacted?

Congress has a history of deferring to state congressional delegations in wilderness politics. So, for example, if one delegation defers to Montana’s in passing the FJRA, Montana’s delegation will be asked to play by the same rules when a different wilderness bill is being considered. And those proposals may not be as carefully crafted as Senator Tester’s bill.

Take, for example, the “Clearwater Basin Project Bill” considered in 2004. This “charter forest” idea was adamantly opposed by conservationists because it provided an undue amount of influence to local interests to set forest management priorities, schedules, and agendas; while providing deadlines for required environmental analysis. This “pilot project” was defeated, but the dynamics could be different in the future if place-based legislation becomes more widely accepted.

Potential for abuse is even more acute if individual forest bills contain special privileges and exemptions that are not available elsewhere. Recall, for instance, the effort by former Senator Tom Daschle (D-South Dakota) to exempt some fuel-reduction projects on the Black Hills National Forest from NEPA analysis, appeals, and lawsuits. His legitimate reasons notwithstanding, this “special treatment” became political fodder as other Congress members asked why the Black Hills should get exemptions not offered elsewhere. This was followed by several copycat legislative proposals seeking the same sorts of exemptions for other national forests. The lesson, from this case and others, is that subsequent efforts in codifying place-based agreements could have a dangerous snowball effect.
Also legitimate is the fear that if passed, the RJVA creates a precedent and possible expectation that future wilderness bills must be packaged with economic development provisions (among other nonconforming uses within wilderness areas) if they are to be politically feasible. And special provisions are often replicated in wilderness law. Once used, provisions related to such matters as water rights and buffer areas are regularly stamped onto future wilderness bills as a matter of course. To be sure, compromise is inherent in the Wilderness Act, and all sorts of special exemptions and political deals are written into wilderness laws with some regularity. But trading wilderness for a timber harvest mandate is a different beast altogether. The real question here is not whether it is reasonable to require two national forests to mechanically treat 100,000 acres over the next ten years; but rather what those numbers will look like in other states if all of a sudden harvest mandates are politically palatable.

5. Why not experiment in more serious fashion?

The FJRA includes a vague reference to “adaptive management,” and thus an implicit acknowledgement that there are uncertainties inherent in the bill. In this vein, the bill sets up a monitoring program whereby the USFS will report to Congress on the progress made in (1) meeting the bill’s timber supply mandate, (2) the cost-effectiveness of the restoration projects, and (3) whether or not the legislation has reduced conflict as measured by administrative appeals and litigation. Not included on the list are specific ecological (non-timber related) monitoring requirements.

This is a good start. But given the importance of this legislation, and the impact it could have on other place-based proposals, why not approach matters in a more deliberately experimental fashion? This could be accomplished in different ways but the principles would be the same: let’s proceed cautiously, try different approaches in different places, carefully monitor the results, and go from there.

These experiments could be housed within a more structured experimental framework, with appropriate legal sideboards and oversight. Such a legislatively-created framework is one way of ensuring that future place-based proposals don’t become used as a backdoor way of undermining environmental law and devolving federal lands to self-selected stakeholders.

If such a framework is not used, another option is to make the purpose of experimentation more central to the FJRA itself. This could be done by beefing-up the bill’s monitoring and evaluation requirements, to include other ecological and policy/process considerations. Changes could be made to the legislation to ensure that its ecological restoration goals are achieved in tandem with its forest treatment mandate.

Let’s experiment, for example, with a reciprocal or staged stewardship contracting approach whereby future timber projects cannot proceed until certain restoration objectives are met; and once met, future timber is released in a sort of tit-for-tat sequence. This might be a way to alleviate widespread concerns that restoration will take a back seat to the bill’s more clearly articulated timber supply mandate. Another idea is to carve out some space in the bill to experiment with different ways of improving the forest planning/NEPA process. Why not try different approaches to its implementation and learn lessons from that experience? In doing so, the FJRA could teach valuable lessons that might be tried elsewhere, and the USFS could be brought into the process as partners, rather than subjects.

With a more deliberately experimental design, the Senator’s bill could inform a larger system-wide look at national forest law and management. All sorts of ways in which to reform national forest management have been proposed in the past, and most of those proposals focus on systemic measures imposed on all national forests from the top-down. Rarer are proposals seeking to learn lessons from the bottom-up, and the FJRA offers such an opportunity. So do the other place-based initiatives referenced above. All of these efforts are admirable in their goals to secure broader-based solutions and conservation strategies. If lawmakers ever revisit national forest law they should first study how place-based groups have approached things.

The above questions are not driven by politics. Nor are they asked with the purpose of trying to defeat the Senator’s bill or to criticize his courageous entry into Montana wilderness politics. They are meant instead to get the public thinking about the big picture and how the parts are going to fit or not fit together. The stakes are high. If the FJRA becomes law, place-based proposals throughout the West will take a big step forward. The FJRA would be the first one out of the gate, setting precedent for others, and this is reason enough why it must be scrutinized so carefully.

Martin Nie is professor of natural resource policy in the College of Forestry and Conservation at the University of Montana. His most recent book is The Governance of Western Public Lands: Mapping its Present and Future (paperback 2009). This article originally appeared on Headwaters News.

The questions asked in this essay draw from a forthcoming co-authored Article on the subject of place-based forest law, to be published by the Ecology Law Quarterly (vol. 37, no. 1: 2010). A version of that Article is available on his website.

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7 comments

  1. I was on the panel with Professor Nie last week. Far from trashing the bill (koehler spin) he characterized it as “bold and constructive” –while raising several constructive suggestions for accomplishing needed reform. Here is what Professor Nie said:

    “Senator Tester’s bill is a bold and constructive response to a dysfunctional status quo. It advances the debate over national forest management in significant ways-putting all the big issues and conflicts squarely on the table, right where they belong. In doing so, his bill has generated a vigorous debate while shaking up traditional political alliances.”

  2. John, Thanks for offering your “spin.” But I’m curious, where oh where have I claimed that Dr. Martin Nie is “trashing” the bill? Seems pretty clear that you’re just making that up John.

    All I have done is shared information with the public about the questions, concerns and opportunities contained in Tester’s logging bill from one of the nation’s leading public lands policy experts. I didn’t offer any of my own perspective in the post. Seems like some of you folks just hate information and the light of day, John.

    And for the record, the Nie quote you put in your comment (I assume designed to somehow discredit me) is clearly posted above in Dr. Nie’s article that I’ve shared with NewWest.net readers. Again, I haven’t changed anything…so I’m not sure what you point is.

    But since we have your attention, John, will you (as one of the leaders of the Beaverhead Partnership strategy and strongest supporters of Tester’s bill) take the opportunity here in a public forum to make a serious attempt to answer or address the serious public lands policy concerns and questions raised by Dr. Martin Nie in his article?

    You see, the basic concerns and questions raised by Dr. Nie have been shared with you and your partners since about 2006, but for some reason you guys just keep thinking you can ignore these serious questions. Thanks…we look forward to your responses.

  3. If they loved the bill in Troy (Lincoln County) they’ll eat it up in the rest of the state. Turn federal lands over to the locals who’ll see to it they get turned over to capitalist locusts.
    Back to clearcuts before you can say Jon Tester is an environmentalist..!

  4. Dr. Nei,

    Thanks for your thoughtful comments. I have questions too. First, I am curious what this “shaking up traditional political alliances” is really all about. From my limited experience the collaborators have always shared similar views, and political inclinations. For example, MWA, TWS, NWF and TU have rarely, if ever litigated an individual timber sale because it threatened wildlife habitat, spawning beds, or water quality. So, if “gridlock” is somehow contributing to a “dysfunctional status quo,” pray tell, how do these particular groups, however reformulated or repackaged, change the status quo? Of all the various “environmental” groups in Montana, these few have enjoyed a most cozy relationship with lumbermen for decades. I see this more as a continuation of the status quo. I remember vividly the Lolo-Kootenai Accord(s), the Paint-Emery Timber Sale on the Flathead NF, and the Burns-Baucus Bill. These groups have always supported logging 99% of the “suitable timber base,” leaving only uncontested rocks and ice for hikers and Clark’s Nutcrackers for wilderness designation. Where you and others see “a significant departure from the status quo,” I see same old, same old. I hope whatever debate is permitted will include a thorough examination of the current condition of the fish and wildlife habitat and water quality, and an honest assessment, beneath the rhetoric, of who the players are based upon past performance, what will remain of our public lands if they succeed.

  5. This legislative approach is not quite “place-based.” It is deal-making by special interests. Other groups and persons from the same “place” were excluded and deals were made in secrecy. This is not my idea of a good way to formulate new policy.

  6. Tester Lied olg growth dies

  7. Nice article! Points up that we may be able to demand what we were promised: Change!
    Bio-energy, for instance, is a new industry which has promise of thinning out fire hazard and would certainly be Change! The economics of it would be new with promise of jobs and products not yet dreamed of, and would be Change. Hopefully without all that evil-capitalism, but with real capitalism with a future! Thank you, Courtney!