Last fall, Jim Petersen, the founder and executive director of the Evergreen Foundation, asked me an intriguing question:
How did the Black Hills National Forest in the Rocky Mountain Region manage to sell almost one-half the timber volume sold in the entire Northern Region?
Sylvan Lake South Dakota
Sylvan Lake South Dakota
The Black Hills National Forest (BHNF) lies within the jurisdiction of the Rocky Mountain Region (Region 2), which includes forests and grasslands in South Dakota, Nebraska, Kansas, Wyoming, and Colorado. The Northern Region includes forests and grasslands in the states of Montana, Idaho, and North Dakota.
Historic timber sale records the Forest Service maintains1 reveal the amazing truth. Over the last 10 years (2003-2012) the Black Hills timber staff sold on average 91 million board feet of timber per year while the entire Northern Region has sold an average 217 million board feet over the same period. In other words, the Black Hills is selling about 42% of the timber that the entire Northern Region sells annually.
Before I explain how and why I believe the Black Hills is able to perform so much better than the Northern Region timber staffs, I would like to propose the following question:
Is it fair to compare the timber sale capabilities between one forest and one region?
Let's take a look...
The Northern Region encompasses over 25 million acres. The Black Hills National Forest in the Rocky Mountain Region encompasses about 1.2 million acres, or about 5% of the Northern Regions land base.
Forest Service historical timber sale sold data reveals that for the 10-year period between 1984 and 1993, the Northern Region averaged 792 million board feet of timber sold per year - and even closer to 1 billion board feet prior to 1990.
In the same time frame, the Black Hills National Forest sold 117 million board feet. This means that during this time period the BHNF was selling only about 15% of the volume the Northern Region was selling, rather than the present 42%.
One can now fairly ask, "What has happened to the timber sale program in the Northern Region?" More to the point, "What is going on it the Northern Region that is preventing the timber staff from performing to their full capability?"
The answer is simple and easily seen: The Black Hills National Forest staff does not have to cope with threatened and endangered species and, for this reason alone, does not have the environmentalist appellants and litigants at their throats. But my research also reveals that the answer is more complex than it appears.
So, let's get into the complexities!
Threatened Species, Endangered Species, Sensitive Species, All Kinds of Species
The Endangered Species Act (ESA) requires the Forest Service to assist in recovery of threatened, endangered, and proposed (TEP) species and the ecosystems upon which they depend.
Section 7 of the Act requires that federal agencies insure that actions authorized, funded, or carried out by them are not likely to jeopardize the continued existence of any threatened or endangered (T&E) species, or result in the destruction or adverse modification of their critical habitat.
The Forest Service is required to consult with the U.S. Fish and Wildlife Service (FWS) if a proposed activity may affect individuals or habitat of a listed species. The direction requires the USFS to complete biological assessments to document whether projects would likely have adverse effects on identified habitats or individuals of threatened or endangered species.
There are currently 11 threatened species in the Northern Region: The Canada lynx, Grizzly bear, Piping plover, wolverine (proposed), Snake River basin steelhead, Snake River fall, spring, and summer Chinook, Bull trout, MacFarlane's four o'clock, Spalding'scatchfly, Water howellia, and the Western Prairie fringed orchid.
Additionally, there are six endangered species in the Northern Region: The Woodland caribou, Whooping crane, Black-footed ferret, Interior least tern, Snake River sockeye, and Kootenai River sturgeon.
There are no threatened or endangered species on the Black Hills National Forest, but the US Fish and Wildlife Service just recently listed the Northern long-eared bat as "proposed" threatened.
For clarification, the difference between "endangered" and "threatened" species is defined and explained by the U.S. Fish and Wildlife Service as:
Endangered: Any species that is in danger of extinction throughout all or a significant portion of its range
Threatened: Any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.
All of the protections of the Act are provided to endangered species. Many, but not all, of those protections also are available to threatened species. However, the FWS has the authority to determine which protections should apply to each threatened species; in other words, we can select and fine tune the protections that best meet the species' recovery needs.
Threatened status benefits species and people in two situations: 1. it provides Federal protection before a species reaches the brink of extinction; and 2. in the case of species that were initially listed as endangered, threatened status also allows scaling back Federal protection as they recover and no longer need the maximum protections of the Act.2
The Forest Service Manual directs the Regional Forester to identify sensitive species for each National Forest where species viability may be a concern. The direction requires the Forest Service to manage the habitat of the species listed in the Regional Sensitive Species List to prevent further declines in populations, which could lead to federal listing under the Endangered Species Act.
The following wildlife, fish, and plant species are identified in the February 2011 list of sensitive species for the Northern Region3:
51 wildlife species: American peregrine falcon, Baird's sparrow, Bald eagle, Black-backed woodpecker, Black swift, Blue-gray gnatcatcher, Burrowing owl, Common loon,Flammulated owl, Greater prairie chicken, Greater sage-grouse, Harlequin duck, Loggerhead shrike, Long-billed curlew, Mountain quail, Pygmy nuthatch, Sprague's pipet, Trumpeter swan, White-headed woodpecker, Black-tailed prairie dog, Bighorn sheep, Fisher, Fringedmyotis, Gray wolf, Greater Basin pocket mouse, Long-eared myotis, Northern bog lemming, Pallid bat, Pygmy rabbit, Spotted bat, Townsend's big-eared bat, White-tailed prairie dog, Coeur d'Alene salamander, Great Plains toad, Northern leopard frog, Plains spadefoot, Western toad, Greater short-horned lizard, Milk snake, Ringneck snake, Western hognosesnake, Arogos skipper, Broad-winged skipper, Dakota skipper, Dion skipper, Mulberry wing,Ottow skipper, Powesheik skipper, Regal fritillary, and Tawyn crescent.
9 fish and mollusks species: Pacific lamprey, Northern redbelly dace, Yellowstone cutthroat, Artic grayling, Westslope cutthroat, Interior redband, Snake River spring/summer chinook, Burbot, and Western pearlshell.
110 plant species: Too many to list here.
How Does the Black Hills National Forest Compare?
The BHNF Forest Plan4 reveals 23 wildlife species: Black-tailed prairie dog, River otter, American marten, Swift fox, Townsend's big-eared bat, Fringed myotis, Mountain plover, Grasshopper sparrow, Loggerhead shrike, Black-backed woodpecker, Three-toed woodpecker, Lewis' woodpecker, Flammulated owl, Burrowing owl, Yellow-billed cuckoo, Peregrine falcon, Ferruginous hawk, Northern goshawk, Northern harrier, Northern leopard frog, Black Hills redbelly snake, Regal fritillary, and the Cooper's mountain snail.
5 fish species: Plains minnow, Sturgeon chub, Mountain sucker, Lake chub, and theFinescale dace.
11 sensitive plants
To sum up, when a Northern Region national forest considers any management action it must also consider the impacts of its actions on 17 threatened or endangered wildlife, fish, or plant species. By contrast, the Black Hills National Forest must consider 1 proposed threatened species.
Similarly, Region 1 national forests must consider 170 sensitive wildlife, fish, or plant species. By contrast, the Black Hills National Forest must consider 41 species.
What is the take away message?
You don't need to be a rocket scientist to understand why or how the Black Hills National Forest is running circles around the entire Northern Region. Northern Region forest planners face a daunting task in accounting for all of the threatened, endangered, and sensitive fish, wildlife and plant species in their forests. The fact that the Northern Region has so many more species to consider creates an unfair comparison of just how "easy" it is to sell timber when you don't have to contend with all of these species. Trust me, it is never easy!
When all of these threatened, endangered, and sensitive species are being considered during a typical timber harvest project, what happens is that biologists and botanists have to determine through field surveys or other means whether there is suitable habitat for or the presence of any of the listed species. If and when any species or their habitat is determined to be affected, restrictions are often applied to the project area. These restrictions typically involve a combination of no-harvest buffers, seasonal activity restrictions such as allowing harvest operations only during winter months, or restrictions on logging systems, such as allowing only helicopter logging in order to avoid having to build new roads.
Here's an example of how sensitive species can have an effect on timber harvests:
Until recently the Northern goshawk was considered a sensitive species in the Northern Region, but it has now been downgraded to another category I haven't included in this discussion, which is "Management Indicator Species." Suffice to say that whether a species is listed as "sensitive" or "management indicator," the protection measures are often similar.
The goshawk is still listed as a sensitive species on the Black Hills National Forest. When an active Northern goshawk nest is discovered within a proposed harvest unit in a Northern Region National Forest, a 40-acre "no-harvest" buffer is normally recommended by wildlife biologists to be established around the nest, so 40 acres of trees that may be in need of fuels reduction or restoration treatments can't be completed. Furthermore, seasonal restrictions of any mechanical activities within one-half mile of the nest during the nesting period (April 15 to August 15) are included mitigation. The mechanical activities include not only timber harvests, but also pre-commercial thinning operations using chainsaws to thin young plantations.
Where these types of restrictions apply, it is often uneconomical to include low value trees in thinning and restoration projects because the trees have such little value that no one will buy them. The result is a costly and embarrassing "no-bid" sale. No one in the Forest Service likes to see these after they've run the gauntlet of the National Environmental Protection Act (NEPA). For this reason, many acres that need to fuels reduction and restoration treatments - areas that could provide forest products and jobs for local communities - are dropped from consideration.
The public should also understand that most districts, forests, and regions do not contain lands that are 100 percent suitable for timber management. For example, on the 400,000-acre Bonners Ferry Ranger District on the Idaho Panhandle National Forest, where I worked for 23 years, only about 25 percent (100,000 acres) was deemed suitable. The rest was unavailable for a variety of reasons: slopes too steep to log, erosive or rocky soils, riparian buffer zones, areas allocated for old-growth preservation, roadless areas, and un-forested areas.
I would think that setting aside 75 percent of any ranger district, national forest, or national forest region in de facto no-harvest reserves would provide more than enough habitats for all the other valuable resources, wouldn't you?
The Alliance for The Wild Rockies, The Wild West Institute, The Lands Council, The Native Ecosystems Council, Friends of the Clearwater, Et cetera...
Another reason - maybe the reason - why comparing the Northern Region with the Black Hills National Forest may not be equitable is that the sheer number of species that have to be dealt with in Region 1 makes its national forests huge and easy targets for environmentalists who oppose active forest management.
During fiscal year 2012, there were 140 appeals filed in the Northern Region5. As of August of 2013, 44 more appeals were filed in the Northern Region. Of those, 16 were against projects that included commercial sales of forest products (personal communication with FS). Also as of August 2012, personnel in the R1 regional office told me the appeals/objections were holding up about 225 million board feet of commercial timber sales.
By comparison, the Black Hills National Forest received three appeals (actually objections under the "218" rules) in 2012 and none in 2013.
In referencing the Forest Service Appeals and Litigationwebsite6 I can see that in the Northern Region, the Alliance for the Wild Rockies, The Land's Council, Friends of the Clearwater, and the Native Ecosystems Council seem to like to appeal all projects that involve the commercial sale of forest products. Readers that check out this website will also see other groups and individuals that have made it their agenda to appeal commercial timber sale projects.
In comparison and referencing the same Forest Service website, Friends of the Norbeck, Prairie Hills Audubon Society, and the Biodiversity Conservation Alliance appear to be the only environmental groups that occasionally appeal projects on the Black Hills National Forest.
The Government Accountability Office (GAO) provided data on Forest Service appeals and litigation for the period 2006-2008 for fuel reduction projects, not necessarily including all projects that involve commercial sale of forest products.
Excerpted from the GAO report are the following findings:
In fiscal years 2006 through 2008, the Forest Service issued 1,415 decisions involving fuel reduction activities, covering 10.5 million acres.
Of this total, 1,191 decisions, covering about 9 million acres, were subject to appeal and 217- about 18 percent - were appealed. Another 121 decisions, covering about 1.2 million acres, were subject to objection and 49 - about 40 percent - were objected to. The remaining 103 decisions were exempt from both objection and appeal. Finally, 29 decisions - about 2 percent of all decisions - were litigated, involving about 124,000 acres.
For 54 percent of the appeals filed, the Forest Service allowed the project to proceed without changes; 7 percent required some changes before being implemented; and 8 percent were not allowed to be implemented.
The remaining appeals were generally dismissed for procedural reasons or withdrawn before they could be resolved.
Regarding objections, 37 percent of objections resulted in no change to a final decision; 35 percent resulted in a change to a final decision or additional analysis on the part of the Forest Service; and the remaining 28 percent were set aside from review for procedural reasons or addressed in some other way.
And finally, of the 29 decisions that were litigated, lawsuits on 21 decisions have been resolved, and 8 are ongoing. Of the lawsuits that have been resolved, the parties settled 3 decisions, 8 were decided in favor of the plaintiffs, and 10 were decided in favor of the Forest Service. All appeals and objections were processed within prescribed time frames-generally, within 90 days of a decision (for appeals), or within 60 days of the legal notice of a proposed decision (for objections).
Note that this report found that of the projects involved in this report, 18 percent were appealed, 40 percent were objected to, and "only" about two percent were litigated. Some environmentalists like to use this two percent figure to downplay the significance of their commercial timber sale appeals.
While this may be true on its face, it reminds me of the Forest Service claim that more than 90 percent of all wildfires in the U.S. each year are put out before they become catastrophic. Whether it's a big fire or a big lawsuit, the two percent we are discussing is causing significant damage to the environment, to the ability for the Forest Service to manage timber stands that are suitable for commercial timber harvests and to the economic stability of the communities surrounded by national forests.
Looking at the GAO report again, Tables 7 and 8 show that the top five "serial" appellants (to coin Jim Petersen's phrase) in the Northern Region for the period 2006-2008 includes the Alliance for the Wild Rockies with 35 appeals/objections, the Wild West Institute with 26 appeals/objections, The Land's Council with 25 appeals/objections, Native Ecosystems Council with 13 appeals/objections, and Friends of the Clearwater with 8 appeals/objections. The Northern Region had a total of 187 appeals/objections during this period from the above mentioned and other groups and individuals.
Tables 7 and 8 also provide comparative data for the Rocky Mountain Region, but not the Black Hills National Forest specifically. Even so, the entire region - which includes the BHNF - saw only 44 appeals/objections during the same time frame. The appeals were filed by the following environmental groups: Biodiversity Conservation Alliance, 13 appeals/objections; Colorado Wild, 5 appeals/objections; Prairie Hills Audubon Society, 4 appeals; Western Watersheds Project, 1 appeal; Great Old Broads for Wilderness, 1 objection; Sierra Club, 1 objection; Sinapu, 1 objection; Wilderness Workshop, 1 objection; and, Wild Connections, 1 appeal.
All these appeals, objections, and a small percentage of litigation has a catastrophic affect not just on those projects that have been directly targeted, but more often than not, most if not all projects nationally that are undergoing environmental analysis and the NEPA process. This is especially true for those projects that entail commercial timber harvests. There is a ripple effect on the recommended level of analysis needed to satisfy the latest court case decisions in order to head off the future threat of litigation.
Because appeals and litigation often involve the issues of threatened, endangered, and sensitive species (based on my personal experience for the past 23 years as a project leader and 33 years as a Forest Service employee), you can plainly see that those forests and regions that have more listed species will have a correspondingly higher level of difficulty navigating the appeals/objection/litigation process.
The Ninth Circuit Court of Appeals versus the Eighth and Tenth Circuit Court of Appeals
Another component that adds to the complexity of the difference between the Black Hills National Forest and the Northern Region is which Federal Circuit Court gets to hear the case for litigating Forest Service projects. For the Black Hills National Forest, litigation is handled in the 8th and 10thCircuit Court of Appeals, while litigation for the Northern Region is handled in the Ninth Circuit Court.
It appears to be a widely held public belief and often mentioned in the media that the Ninth Circuit Court of Appeals shows a bias that favors environmental group challenges over federal land management agency projects, while the Eighth and Tenth Circuit Courts typically rule in favor of agency project analysis and decisions. Based on my personal observations of many court cases against Forest Service projects, I would tend to agree with that belief. Even if I lost three fingers on my right hand, I believe I could count on that hand the number of lawsuits filed by environmental groups against the Forest Service in the Ninth Circuit that the court actually ruled in favor of the agency.
So what could be some possible solutions that would enable the Northern and other national forest regions that are in a similar situation to once again actively manage at least a portion of our national forests?
Consider this: We have designated wilderness areas all around the country. Within these wilderness areas, wildfires are intentionally left to burn when they are started by lightning storms. The same is true for many fires that are naturally ignited outside of wilderness areas that are allowed to "let burn" for management objectives such as fuels reduction and wildlife habitat improvement or due to safety concerns for firefighters. It is a conscious decision to allow these fires to burn, yet these decisions are not supported by prior environmental analysis and the NEPA process including the appeals process. No analysis is conducted to disclose the possible effects on threatened, endangered, or sensitive species or their habitat, or on other resources, including clean air.
So why shouldn't Congress also designate areas within National Forests for intensive forest management that is also excluded from ESA, sensitive species, and the NEPA and appeals process? I think the time is way past due to set aside at least 25 percent of each district/forest/regions suitable timber stands to focus solely on sustained-yield timber management. Doing so would also benefit a wide range of species just by default of the forestry practices. Forestry treatments would continually maintain a wide range of age-classes and timber types, which results in a wide range of wildlife habitat. The remaining 75% of National Forest lands could also receive vegetation management treatments, but to achieve other resource objectives, and those areas could still be subjected toNEPA/ESA.
A step in the right direction is currently being moved through Congress. H.R. 1526, the "Restoring Healthy Forests for Healthy Communities Act," recently passed in the House of Representatives, but has stalled in the Senate. I support the efforts of this bill, which includes expanded use of categorical exclusions and appeal bonds, would require the establishment of at least one Forest Reserve Revenue Area on each forest, and would establish demonstration areas in each state that would be managed by state rules. The current legislation does not go as far as I suggested, which would exclude these areas from the NEPA/ESA requirements. I'd recommend that the public contact their Senators and tell them that you support H.R. 1526 and to approve the bill in the Senate.
7 GAO-10-337-FOREST SERVICE March 2010 Information on Appeals, Objections, and Litigation Involving Fuel Reduction Activities, Fiscal Years 2006 through 2008.
Photos courtesy of Black Hills National Forest, Art G., and Cheryl Monks.