How to Influence Federal Land Management: A guide to law and policy

Background Information (For this information in video form, watch Bark staff attorney, Brenna Bell, give a "Forest Policy Crash Course" training)

Federal agencies, U.S. Forest Service and Bureau of Land Management, manage federal public lands and the forests on those lands:

  • National Forests managed by the US Forest Service (USFS), which is housed in the US Department of Agriculture
  • Bureau of Land Management (BLM) land is maily in the interior west, but there is a small but significant portion of BLM-managed forest land in Oregon.  The BLM is housed in the US Department of Interior
  • 53% of state of Oregon is federally managed public land:
    • BLM: 15.7 million acres
    • Forest Service: 15.6 million acres
    • Approx 28 million acres of forest in OR.
    • 60% of Oregon forests is on federally managed land

Decision makingRuss Plaeger Restoration Coordinator

  • These agencies are directed by law to balance multiple forest uses such as recreation, wildlife, ecological values, and economic interests.
  • Heavy corporate influence in various levels of government regarding the management direction of public lands often leads to prioritization of commerical resource extraction and other harmful practices.

NEPA: National Environmental Policy Act of 1970 - Gives the public a way into federal decision-making about environmental issues

  • Passed under Richard Nixon (!) in a political background of the public becoming outraged because of serious environmental disasters and degradation.
  • Before deciding on "major federal actions" that "significantly impact the environment", federal actors must take “hard look” at environmental consequences, consider alternatives, and consider public input. 
  • The NEPA process only works when people get involved- it is one of our most democratic laws in the current legal system. There is a reason that industry and corporate interests keep trying to dismantle NEPA- it makes for a more informed and involved public, and it is a useful tool for stopping some projects.

For the purposes of brevity and relevance to the work Bark does, we will just refer to the FS as the relevant agency in most of this document. However, public forests and wildlands may be managed by a variety of federal agencies besides the FS such as the BLM, Oregon Department of Fish and Wildlife, National Park Service, and others.

General NEPA public comment process

  • Public agencies are legally required to consider public opinion (though not required to change the project to address the opinions)
  • Agencies must announce project plans, and ensure that planning processes allow for public participation
  • To stay up-to-date on FS plans, call the office of the National Forest(s) you are interested in and ask to receive updates/be on their mailing list for their “Schedule of Proposed Actions (SOPA)”
  • The FS SOPAs are also posted online on that National Forest’s website.

Scoping letter

  • The FS is required to send out a scoping letter to stakeholders and interested parties, which describes a broad overview of the project they want to do. For example, if the FS is planning a timber sale, the scoping letter will include the stated “purpose and need” of the project, a rough description and map of the general area, and a general description of their planned project.
  • After the scoping letter is published by the FS, the public has a 30 day period in which to write comments (i.e., their concerns, opinions, suggestions, etc) about the project.

Environmental Assessment (EA) or Environmental Impact Statement (EIS)

  • The next step is for the FS to publish a EA or EIS. An EA is published for less controversial projects that are considered by the FS to be unlikely to affect the environment (or so they say!).
  • The public typically has 30 days to comment on an EA, and 45 days for an EIS.
  • “Significant” impacts are considered based on broad context
  • Types of impacts the FS analyzed are direct (such as removal of trees), indirect (such as erosion due to removal of trees), and cumulative (the project, in combination with other actions and projects, add up to having a significant impact over time).

Pre-decisional objection

  • BEFORE you know what the FS is going to decide, you have to object to the drat decision if you want reserve your right to litigate on the project, or at least try to negotiate with the FS about changing the project.
    • Until 2014, this step was called an “appeal”, and came AFTER the FS decision.
  • Negotiation/resolution- the pre-decisional objection can be followed by negotiations, i.e., possible changes to the project by the FS so that they can try to get you to not sue them.

Decision Notice and final EA or EIS

  • Usually includes a “finding of no significant impact” (FONSI) determination by the FS for projects with EAs. Will include a record of decision or “ROD” for projects with EISs. The FS will also republish EA or EIS, but with any changes they have made included.

Possible litigation

  • Must participate in each part of the process for legal standing
  • Must include specific issues/objections early in comment process for that issue to have legal standing

Other laws and regulations guide policy, too, not just NEPA:

Laws and regulations work in concert. If laws are in conflict:

  • Federal Laws trump state laws
  • State laws trump local laws
  • Other discrepancies, conflicts in laws, and fuzzy areas get worked out in court, and set “legal precedents”

Chain of Command

  1. President
  2. Secretary of Agriculture
  3. Chief of United States Forest Service
  4. Regional Supervisor
  5. Forest Supervisor
  6. District Ranger

Chain of Legality

  1. Legislation – Congress
  2. Court Rulings – the legal record of litigation and decisions
  3. Rules and Regulations – administrative detailing of legislation – Department of Agriculture – published in the Federal Register

Procedural Guidelines (non-binding but relevant) http://www.fs.fed.us/im/directives/dughtml/overview.html

  1. Forest Service Manual – FSM (The Forest Service Manual contains legal authorities, objectives, policies, responsibilities, instructions, and guidance needed on a continuing basis by Forest Service line officers and primary staff in more than one unit to plan and execute assigned programs and activities.) http://www.fs.fed.us/im/directives/dughtml/fsm.html
  2. Forest Service Handbook – FSH (The principal source of specialized guidance and instruction for carrying out the direction issued in the FSM.) http://www.fs.fed.us/im/directives/dughtml/fsh_1.html
  3. USFS Directives (Legal authorities, responsibilities, delegations, and general instructions and directions to plan and execute programs). http://www.fs.fed.us/im/directives/weekly_issuances

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Special thanks to Blue Mountains Biodiversity Project and the Heartwood Forest Council for sharing much of this information with us, and for granting us permission to use it.