America Outdoors Association Comments

Re: Planning Rule, RIN 0596-AC94; 76 FR 8480, Feb. 14, 2011

The following comments are submitted by America Outdoors Association regarding the proposed National Forest System Land Management Planning rules, 36 CFR Part 219, published in the Federal Register on Feb. 14, 2011. We very much appreciate the opportunity to comment and respect the tremendous effort the Forest Service has made in resolving long-standing issues with Forest planning. Our comments are focused primarily on the challenges and consequences presented by the proposed rules.

America Outdoors Association and its affiliated organizations represent more than 900 outfitters operating in 43 states. Many member companies provide outdoor recreation services to the general public in National Forests. Services provided by these small businesses include rafting, fishing, hunting, hiking, cycling, climbing, mountain biking, canoeing, kayaking, interpretive and educational experiences, outdoor skills training and other activities. These services enable diverse populations including adults, youth and others, who do not possess the skills or equipment, to enjoy recreation activities and experience the backcountry in National Forests. Outfitter and guide activities are authorized under Forest plans and special use permits, which must be consistent with those plans.

Most of the small business members of America Outdoors Association provide services to the public that require investments and business models that are years in the making. Many of these recreation-based businesses meet the overall goal of the rule to move all NFS units toward social, economic, and ecological sustainability (3, page 8483 and § 219.8). We do appreciate the inclusion of "sustainable recreational opportunities and uses" as one of the components that must be taken into account when developing Forest plans (219.8). However, recreation and other social and economic objectives are not given the same weight as biodiversity and ecological objectives.

The rules include "social sustainability" as an element of "sustainable recreation." § 219.9. The term "social sustainability" is not defined nor does this new term have any statutory basis. We are deeply concerned that such a term will be defined by the courts to restrict or prohibit traditional recreation on the grounds that such recreation is inconsistent with the values of some groups. Since this term has no legal foundation it should be struck from these rules. The challenges to field staff in navigating the maze of regulations, court decisions, and agency directives are only made worse by the addition of nebulous goals and concepts.

The proposed rule does not adequately support the requirements of the Multiple Use and Sustained Yield Act. The rule sends mixed messages on Forest plan priorities. On page 8491 the rule states: "The requirements for ecological sustainability would require responsible officials to provide plan components to maintain or restore elements of ecological sustainability. The requirements for social sustainability would require plan components to guide the unit's contribution to social and economic sustainability." In other words, a Forest Plan would "require" maintenance or restoration of ecological sustainability but the requirements for a unit's contribution to social and economic sustainability are only a "guide".

Furthermore, there is an indication the Forest Service intends to give significantly higher consideration to ecological sustainability when on page 8491 the rule states: "The distinction between these two sets of requirements recognizes the Agency has more influence over the factors that impact ecological sustainability on NFS lands (ecological diversity, forest health, road system management, etc.) than it does for social and economic sustainability (employment, income, community wellbeing, culture, etc.). National Forest System lands can provide valuable contributions to economic and social sustainability, but that contribution is just one in a broad array of factors that influence the sustainability of social and economic systems."

Forest Service units and the plans they develop have concrete and measurable impacts on local economic conditions but Forests almost never measure the positive economic impacts of recreational activities on local economies. If the Forest Service is truly interested in fulfilling its multiple-use mandate and executing a science-based approach to assessing and monitoring the outcomes of Forest plans, then the economic impacts of recreation activities on local communities should be measured and given equal consideration to the other goals of Forest planning. It is ironic that the Agency believes it can have an impact on ecosystem health and enhance biodiversity, even when the predominant causes of a species' decline are outside the Forest, but discounts its ability to make contributions to sustaining rural economies.

Healthy watersheds and ecosystems are important to the general well-being of surrounding communities. They are necessary to sustain recreation activities. Clearly, the most significant economic outputs today are from the recreation activities supported by National Forests. Therefore, these uses should receive equal standing when setting goals, assessing sustainability, and monitoring plan results.

The list of species that must remain viable and the elevation of "candidate species" to the same level as a threatened or endangered species will increase the time and potentially the level of analyses required to comply with the National Environmental Policy Act when processing permit applications (page 8493 and § 219.12). Under current regulations, the costs for these analyses may be transferred to applicants for permits through cost recovery when the time required to process an application exceeds 50 hours. The increasingly expensive process for issuing recreation permits in the presence of threatened or endangered species is already beyond the economies of scale of many permit holders and applicants. This rule will significantly increase the analyses and costs required to process permits by elevating the status of "candidate species" and requiring "steps to reduce the risks to candidate species from activities on NFS lands". We do not agree that "candidate species" should be given the same protections as "listed" threatened and endangered species although monitoring may be in order. Permit holders, especially small business entities, must be exempted from cost recovery related to these analyses and monitoring.

The Agency should empower planners and field staff to find ways to accommodate recreation. In the alternative, the Agency must acquire and present scientific data that "human induced stressors" are threatening species before curtailing recreation activities.

An expanded list of species linked to the extensive monitoring requirements may impose substantial costs on permit holders or applicants if the Agency attempts to recover those costs through cost recovery. We are aware of the Agency's acute budget restraints and have to question the wisdom of creating costly new monitoring obligations as financial resources shrink. The two possible outcomes are bad for permittees: 1) limited ability to monitor prompts new restrictions on recreation or 2) the costs for the broad new monitoring effort will be presented to permit holders and applicants. The Forest Service should think long and hard about creating an expanded on-the-ground monitoring requirement with biennial reporting requirements in the face of a contracting federal budget. Failure to meet these requirements will likely result in litigation since these are requirements and not guidelines, according to the rule.

Furthermore, the rule appears to expand the list of species subject to analyses beyond vertebrate species to include "native plants and native invertebrates (fungi, aquatic invertebrates, insects, plants and others)". The Forest Service will be forced to apply these new analyses uniformly to all recreation and other activities on National Forests or it will be subject to legal challenges. The expanded focus on "focal species" and "species of concern" and the potential restrictions on recreation activity as a "human induced stressor" (page 8495) or "disturbance regime" has the potential to convert National Forests' mission from a land of multiple uses to one that is focused predominantly on biodiversity which may diminish recreation opportunities over time.

The potential diminution of certain recreation activities is further exacerbated by perpetuation of the 1982 planning rule's requirement "to coordinate with the State in eliminating duplicate recreation opportunities on state and national forests" Section § 219.6 (b)(3). Recently, a Sixth Circuit Court decision (Meister v. USDA Forest Service ) required the Agency to consider closing portions of the Huron-Manistee National Forest to hunting and other recreation activities because these recreation activities can be practiced on nearby state lands. The Forest Service must delete this section of the proposed rule or modify it to underscore the need for planning units to sustain historically important recreational, social and economic activities.

The opportunity to file pre-decisional objections to a proposed Agency action rather than the current post-decisional appeal is a positive step. However, the proposed rule allows only 10 days for a third party to file for participation in discussions to resolve an objection, even though this resolution could alter management actions contained within a planning document that are supported by this third party. Those who object to a proposed Agency action are allowed 30 days to file an objection. Third parties who support the proposed Agency action or wish to participate in the proceedings should be allowed the same 30-day period to file for participation in discussions to resolve the objection. Forest units should be proactive in providing notice to permit holders and others who may be affected by the proposed action, including participation in the processes to resolve objections. Providing a web-based subscription to notifications of plan revisions and amendments will allow interested parties to formally register to receive notices and collaborate as participants.

The Forest Service is underestimating the time and costs required to execute this planning rule. We understand and support the concept of collaboration and appreciate the Agency's efforts in this regard. However, the overall thrust of the rule has the potential to diminish multiple uses and is likely to make it harder to achieve consensus. Some of our members have experience with participation in the development of collaborative management plans. Collaborative Forest-wide management plans will take months to construct with broad participation. While many organizations send paid attorneys and staff to participate, small businesses and permit holders may have a difficult time finding the time to participate fully and will likely be underrepresented.

The Forest Service currently does not have the field staff to accomplish the proposed requirements, which include assessments, monitoring, and deal with frequent plan amendments called for in the rule (§ 219.13). The fact that a mere permit application (page 8488) may kick off a plan amendment means the Forests will be inundated with appeals for plan amendments. We do not believe the Forest Service has a credible strategy for amending plans for such small actions and denying them for others. The Forest Service will need to budget or shift resources to accomplish the collaboration, assessment, science, monitoring, reporting and other components of this planning rule.

We also anticipate that the professional litigators, whose organizations and attorneys benefit from filing lawsuits against the Forest Service, will use the emphasis on biodiversity to elevate more species to the level of "species of concern" or to the list of "focal species". We are concerned that this focus will unnecessarily and negatively impact permitted recreation activities; it is also likely to increase the monitoring and reporting burden at the field level.

Many America Outdoors Association members have had permit applications and renewals delayed by the "analysis paralysis," resulting from elevated NEPA analyses requirements, needs assessments, consultation on endangered species, and other requirements. These problems are most acute in Wilderness areas and on Wild and Scenic Rivers where the designations by regulation often create "extraordinary circumstances" which require higher levels of NEPA analysis. This rule is likely to increase the prevalence of "extraordinary circumstances", thereby increasing the analysis costs for processing permits. Small businesses cannot be expected to absorb those costs and must be exempted from them.

The proposed Wilderness provisions in § 219.10(b)(iv) do not accurately reflect prevailing law or sound policy. When the Forest Service recommends an area for Wilderness designation by Congress, the area is to be managed to maintain its wilderness character. This is not the same as requiring Wilderness management on recreation activities, which the rule implies. In fact, a variety of activities prohibited in designated Wilderness may occur in recommended areas if wilderness character is maintained. The rule impermissibly conflates these two concepts and will impose de facto Wilderness status on recommended lands. Recreation activities with limited or ephemeral effects - fully consistent with maintenance of wilderness character - will be barred by this rule. That must be corrected in the final version. The justification for this concern can be found in the following statement on page 8496: "The Agency believes the requirement in the proposed rule meets the Agency's intent to ensure, in the case of recommended wilderness, that the types and levels of use allowed would maintain wilderness character and would not preclude future designation as wilderness …….". On the one hand the Forest Service seeks to engage youth and other groups in outdoor activities and healthy lifestyles and proposes to support economic sustainability while at the same time proposing to manage for and increase opportunities for solitude (reducing party sizes in the backcountry). This policy increases the barriers to participation in outdoor recreation by diverse populations in organized groups and elevates the costs of management in pursuit of a single-minded goal to manage National Forests as reservoirs for biodiversity.

We have specific concerns about the amendment process (§ 219.13) and the potential for bias in the implementation of those amendments. Permit holders and applicants may only discover that the Forest is planning an amendment that impacts their authorized use or prospective use if they read the newspaper (according to the notice requirements, § 219.16). We suggest that Forests employ technology to enable individuals and groups to sign up online to receive notices of proposed plan revisions and amendments when they become available on the Forests website. During the busy season, when many permit holders are in the backcountry, the 30-day notice by newspaper hardly seems to fulfill the collaboration goals of the rule.

The rule goes too far in allowing the responsible official to make amendments without adequate public input or notice. For example, a monitoring report is sufficient to allow an immediate plan change. According to the rule preamble, in response to a monitoring report, "the responsible official could choose to act quickly to propose an amendment to change that particular plan component, without doing an additional assessment or developing a proposal that goes further than the specific need to change the plan clearly indicated by the monitoring report". While the Forest Service currently has the power to act rapidly to suspend activities to address significant issues or emergencies, allowing plan changes based on one report, which could have errors, without any review is overreaching and inappropriate. The report must be made available for review and comment before plan changes are made unless an emergency or imminent threat to Forest resources is evident. Under those conditions, activities could be suspended until a proposal to amend the plan is considered.

Interested parties should also be provided with information on how they can participate as "objectors" or otherwise support the amendment if they are inclined to do so. The rule proposes outreach to groups whom they choose to designate as underrepresented when revising Forest plans. Yet, the Forest Service does not seem concerned about outreach to existing partners in economically stressed rural areas who are most likely to be directly impacted by revisions to Forest plans. Giving interested parties a web-based opportunity to subscribe to notices will provide them with the opportunity to participate and collaborate on those proposed changes. We strongly object to the proposal to implement any level of plan amendment without notice and comment.

Thank you for the opportunity to submit these comments on behalf of America Outdoors Association and the outfitter and guide community. David Brown, Executive Director