USDA releases final planning rule for forests that reflects few changesWritten by Christy Martinez
However, multiple use groups, including public lands grazing, disagree, based on the fact that there was no substantive change in the final rule from the preferred alternative that was released and on which the U.S. Forest Service took comments earlier in 2012.
“We’ve all weighed in from the very beginning – from the time they first wrote the draft rule in early 2011 we submitted our comments and worked to weigh in with our concerns,” says Public Lands Council Executive Director Dustin Van Liew.
“It’s now a final rule, and it didn’t change much from what the draft showed,” says Rick Krause of the American Farm Bureau Federation. “Most of the concerns that were out there still remain.”
Management for wildlife
Van Liew says one of his group’s primary concerns are the provisions for “viability of wildlife species.”
“Through the preferred alternative and the final rule, they continue to rely on the viability of wildlife species as a way to require management on the forests,” he explains. “We’re still very concerned about that because of the litigation it’s brought and the process that it entails. Under statute, we don’t even believe they have the authority to manage for wildlife species, or what they call ‘species of conservation concern.’ That should be left to states.”
Wyoming Stock Growers Association Executive Vice President Jim Magagna agrees, saying the most significant and hardest to deal with will be the issue of providing for all species, in that “species viability” has been expanded from strictly vertebrates to all plants and animals.
“That seems to be inconsistent with the fundamental concept of multiple use that’s supposed to drive forest management, and also to some degree an infringement on the authority of the states, who have the responsibility to deal with wildlife species,” says Magagna.
Van Liew says a perfect example of viability provisions are those that public land grazers have operated under for the last 30 years regarding domestic sheep grazing and the big horn sheep.
“The big horn sheep issue has been dealt with through a rider in the last omnibus appropriations act, which bars any removal of domestic livestock for big horn sheep, but that shows how a non-protected species can have an effect on grazing and other multiple uses,” he says.
Van Liew points out another concern, the requirement to maintain wilderness characteristics.
“This rule includes the requirement to maintain wilderness characteristics where they’re found to exist, which we believe is de facto wilderness,” he states. “If they’re managing it as wilderness, the same restrictions will exist for multiple use that exist under wilderness designations, and under statute only Congress has that authority.”
Van Liew says the Forest Service has been given a lot of deference in court rulings to allow the agency’s opinion to carry weight through guidance, but this final rule takes it a step farther, making guidance a mandatory requirement under all forest plans.
“That reduces their flexibly and requires the implementation of guidance that’s often developed outside of public purview,” says Van Liew. “There’s no opportunity for public comment in that process.”
Problems for practical planning
Magagna adds that another of his concerns is the concept of environmental sustainability.
“That’s such a broad, philosophical thing, and how it will be applied in any given forest process, we don’t know,” he says. “If you take broad concepts like ‘environmental sustainability’ and ‘climate change’ that are not definable, it poses huge problems for practical planning.”
Magagna adds that those concepts also make it easier for forest plans to be challenged by the environmental community.
Along those same lines, Krause says the final rule seems to deemphasize the multiple use concept.
“It creates ecosystem restoration as the guiding principle, which is not a bad thing, but everything has to be brought together,” says Krause. “We can’t say, ‘We’ll do this at the expense of that.’ We think it goes a little far and deemphasizes grazing, timber and other multiple uses.”
Krause mentions another concern – the requirement that decisions be made on the basis of the best science, but he says the rule leaves it up to each plan to choose which science they think is the best.
“It gives the head of the forest a lot of discretion on which science will be used,” he states.
There are eight forests across the West where the final rule will be first implemented when it goes into effect 30 days after being published in the Federal Register.
“I haven’t seen it posted yet, so we see the beginning of May as the earliest the new rule could begin to be implemented,” says Van Liew.
PLC is working on Capitol Hill to see if there’s an ability to protect some of public lands grazers’ interests through the appropriations process, but he says we’ve yet to see the full impact.
“We will have the opportunity to see how this final rule works elsewhere first,” says Magagna. “It will be critical to be involved in local plan development, but we’ll be at a disadvantage because it will be driven by this rule. We can not afford not to continue to look at ways to intervene in the rule through litigation or Congressional action.”
“The agency claims it will make their job more efficient, and the appropriators on Capitol Hill will be interested to see if those efficiencies are there,” says Van Liew.
NEPA requirements for trailing, crossing permits still uncertain
Original rider language in late 2011 allowed flexibility for livestock producers crossing BLM land, saying that they did not need to go through National Environmental Policy Act (NEPA) analysis to get their trailing and crossing permits.
“Unfortunately, after the fact we found out the Solicitor was not interpreting the language to be sufficient for agencies to not have to do NEPA,” says Public Lands Council Executive Director Dustin Van Liew of later developments. “We understand that now the BLM is in the process of finalizing guidance to the field on how to proceed, which we understand will be with some level of NEPA for trailing and crossing permits.”
Meanwhile, Van Liew says PLC has not seen any disruption on the ground from ranchers’ perspectives.
“We’re working with Chairman Simpson and the Appropriations Committee to clarify the Congressional intent. It remains a concern, but until we see the final guidance, we’re not sure what the impact will be,” he notes, adding that the BLM has been reaching out to the permittees they know will trail on and cross BLM land, and some preemptive work has been completed ahead of the release of the guidance.
“It’s hard to say what that guidance will be, but I hope from the industry perspective that the agencies would provide flexibility, being that this is a new requirement,” says Van Liew.