Public Process & Federal Land Management: A guide to law and policy
Two federal agencies, the U.S. Forest Service and Bureau of Land Management, manage federal public lands and the forests on those lands. (For this same information in video form, watch “Forest Policy Crash Course“)
- 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 mainly 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 the state of Oregon is federally managed public land:
- BLM: 15.7 million acres
- Forest Service: 15.6 million acres
- 60% of Oregon’s forests are on federally managed land
NEPA: National Environmental Policy Act of 1970 (Makes federal decision-making about environmental issues more transparent)
- Passed under Richard Nixon in the political background of a public movement because of serious environmental disasters and degradation.
- Before approving “major federal actions” that “significantly impact the environment”, federal actors must take “hard look” at environmental consequences & consider alternatives. They must make this information public and consider the public’s 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 improving 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. Note: There is a small amount of BLM-managed O&C Land within the boundaries of Mt. Hood National Forest, and nearly all adjacent BLM land near Mt. Hood is O&C. These forests have special management status (read an in depth history here) which makes them especially challenging to manage.
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.
- 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.
- The federal government is continually expanding the categories of projects excluded from NEPA analysis because they are “known to not have a significant impact on the environment.” When NEPA was first written, the example for categorically excluded projects was fixing the ranger station roof; now it’s post-fire logging on up to 3,000 acres (recently increased from 250 acres).
- However, the government cannot use a categorical exemption if there is the presence of “extra-ordinary circumstances” which make this project they have deemed incapable of significantly impacting the environment more significant. Some examples include presence of threatened or endangered species, scientific controversy and cumulative impacts.
- When a project is categorically excluded from NEPA analysis, the agency does not need to have any public process or disclose any impacts. The agency can decide to do so but is not required by law.
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 projects that are considered by the FS to be unlikely to have a significant impact on the quality of the human environment.
- The public typically has 30 days to comment on an EA, and 45 days for an EIS.
- “Significant” impacts are considered based on “context & intensity” as explained by 40 CFR §1508.27
- Bark uses information gathered by our groundtruthers to raise questions about proposed projects, and whether they follow the agency law, regulation and policy.
- BEFORE the Forest Service makes its final decision, you can object to the draft decision to negotiate with the FS about changing the project and/or reserve your right to litigate on the project.
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.
- 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:
- Endangered Species Act (ESA)
- Clean Water Act (CWA)
- National Forest Management Act
- Healthy Forests Restoration Act (HFRA)
- And many more…
Also, Management Plans:
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
- Secretary of Agriculture
- Chief of United States Forest Service
- Regional Supervisor
- Forest Supervisor
- District Ranger
Chain of Legality
- Legislation – Congress
- Court Rulings – the legal record of litigation and decisions
- Rules and Regulations – administrative detailing of legislation – Department of Agriculture – published in the Federal Register
Procedural Guidelines (non-binding but relevant)
- 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.
- Forest Service Handbook (FSH) The principal source of specialized guidance and instruction for carrying out the direction issued in the FSM.
- USFS Directives Legal authorities, responsibilities, delegations, and general instructions and directions to plan and execute programs.