We have been deluged by responses to Barry Wynsma's thoughtful essay on Forest Service leadership - or the lack thereof. Provided here is some feedback on the essay.
Viva La Difference
 Colville foresters exercise a wide range of options across the tribal landscape. Also in the McAllister project area on the Colville Reservation is this 720-acre burn- only treatment near the Cache Creek highway east of Nespelem. |
This unique status extends to Indian land management. Gary Morishima, technical advisor to the Quinault Nation explains. “Indian tribes are sovereign governments with inherent powers to regulate use of the people, lands, and resources within their political jurisdictions. Indian lands are not public lands, nor are they private; they are held in trust by the United States for the beneficial use of Indians. As trustee, the United States has a fiduciary duty to manage Indian lands and resources in the interests of the beneficiary.”
Secretarial Order 3206, entitled “American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act,” signed by the Secretaries of Commerce and Interior and issued June 5, 1997, strongly spells out that fiduciary duty: “Long-standing Congressional and Administrative policies promote tribal self-government, self-sufficiency, and self-determination, recognizing and endorsing the fundamental rights of tribes to set their own priorities and make decisions affecting their resources and distinctive ways of life.” The Act further states (in uncharacteristically explicit wording), “Indian lands are not federal public lands or part of the public domain, and are not subject to federal public land laws.”
Federal mandates that apply to public lands can also affect Indian lands. “However,” adds Morishima, “such mandates actually apply to the Department of Interior. Those mandates are placed on federal agencies and not directly on tribes. Laws such as NAGPRA, (Native American Graves Protection and Repatriation Act), NEPA (National Environmental Policy Act), and NHPA (National Historic Preservation Act) are all laws that were enacted for public land management. Because you have Department of Interior involvement as fiduciary trustees, that sometimes creates a gray area (that) clouds the application of laws like the ESA” by triggering the socalled “federal nexus” of involvement.
Confederated Salish-Kootenai Forestry Department director Jim Durglo explains the nexus concept: “If there is a federaltie, through money oremployees, on trust lands,they have to comply withfederal law, includingNEPA and ESA.” [EndangeredSpecies Act] For Dr. Morishima, the issue is clear — and unassailable. “The primary point is that Indian lands were set aside for the exclusive use and occupancy of Indians, not to be managed for general public benefit. Everyone needs to acknowledge and recognize the fact that Indian tribes do have rights that are different from anybody else, rights that cannot be ignored.” But tribal rights were ignored in the past, even actively skirted, through a wide variety of venues, including the General Allotment Act, which has left a messy legacy of litigation, including Cobell vs. Norton, the $100 billion suit alleging federal mismanagement of Indian trust fund accounts, plus confused patterns of land ownership that make tribal land managers’ lives interesting. However, there is a trend toward honoring and supporting the right of Indians to manage their holdings as they see fit.
In a 1992 essay, “Development of Tribal Timber Resources, the Tribal Perspective,” Seattle tribal law attorney Thomas P. Schlosser wrote that “Federal law on Indian tribal timber has gone through three distinct stages, starting with a broad prohibition on sale, next a restricted ability to sell dead timber, and finally, a restricted ability to sell any timber.”
With the Indian Self-Determination and Education Assistance Act (Public Law 93-638), writes Mr. Schlosser, tribes became able to enter contracts that “generally provide for Indian tribes and organizations to take over and themselves perform services that would otherwise be performed by the United States.”
“We work with the tribes as partners now,” Bureau of Indian Affairs Senior Forester John Vitello tells Evergreen. “When I came on with BIA, it was more of a paternalistic organization. We have transitioned, as the younger generation and the Self-Determination Act evolved together into a partnership mentality. The paternalism has faded out to where our people really enjoy the partnership. Tribal leaders are strong participants. But we make sure the trust is maintained and statutes and regulations are upheld, and everyone understands that.”
Something else that many are beginning to understand is the long history of active Indian land management and its connection to stewardship today. Bob Zybach is a long-time Pacific Northwest forestry professional who now holds a PhD. in Environmental Sciences from Oregon State University. Dr. Zybach’s thesis studied evidence of Indian land management patterns over a 500-year period on the entire Oregon Coast Range and their relationship to catastrophic fire patterns that followed white settlement.
Dr. Zybach found “ten thousand years of prudent management, using available tools. Now we have different tools and different sets of problems, but it’s a continuation of past practices, not some kind of abrupt beginning.”
 The Colville Indian Power and Veneer mill in Omak, Washington. The vapor plume is from CIPV’s biomass cogeneration plant. As with other “cogen” plants around the country, CIPV’s biomass boilers not only help power the mill and bring in power revenue to tribal coffers, but comparatively clean generation gives tribal land managers options when it comes to balancing clean air against the need to have fire in a healthy forest. |
“The politically-correct assumption is that the people that were here ‘before’ weren’t managing the land,” Dr. Zybach explains. “There is overwhelming evidence in Oregon of agrarian societies, fishing societies, hunting and gathering, trading societies, of widely-shared, stable technologies, even well-established evidence of trade patterns extending over two continents and thousands of years. The landscape has been shaped by human activity since Day One.”
Tribal managers take their history seriously. “I have the idea that, through the millennia, Indian people have always been stewards,” says Jim Durglo. “Indian people are a part of that environment, part of the balance between utilization, conservation and preservation. Indians absolutely have a direct stake in the outcome. To be a steward, you have to strike a balance.”
Bobby Brunoe, natural resources manager for the Confederated Warm Springs Tribes adds, “We manage for a sustainable forest for future generations, looking seven generations beyond. It’s very important to our people, because this is where we live and where we’re always going to live. We need to be able to take care of our environment.”
How they are taking care of their environment is what this Evergreen issue is about. But Indian land management, while unique, does not occur in a vacuum. It is part of a larger and more troubling picture of forestry in the West today, a picture that includes dead and dying federal forests, catastrophic wildfires and the widespread litigationrelated loss of wood processing infrastructure, at the very moment when it is needed most. In the aftermath of the disastrous 2002 Rodeo-Chediski Fire, which ripped through thousands of acres of magnificent ponderosa pine owned by northern Arizona’s White Mountain Apache, the tribe had no choice but to sell its prized timber to California-based Sierra Pacific, which railed the trees to two of its California mills for processing. Even more exasperating, there remains such a shortage of loggers in the Southwest that most of the salvage work was done by unemployed loggers imported from Oregon, Washington, Idaho, Montana and Alaska.
Adding insult to injury, the timber base that supported Fort Apache Timber Company’s (FATCO) westside sawmill is gone. As a result, says Paul DeClay, Jr., Forest Manager, Forestry Department, White Mountain Apache Tribe, “We are trying to find jobs for those people, but unemployment is up to about 80% right now.”
The tribe is considering re-tooling the dormant FATCO west side mill to small-diameter processing, says Mr. DeClay, because “we have too many six, eight, and eleven-inch pole stands where we don’t get any growth. We want to sell the wood off the reservation for biomass so we can treat the whole stand, not just the saw timber.”
Outside proposals for oriented-strandboard production and a substantial biomass plant have been presented to the tribal council, but both concepts are contingent on not only a steady supply of small diameter timber plus smaller trees from the adjacent Apache-Sitgreaves National Forest. Mr. DeClay says, “The tribe has no problem with commitment, but you know how it is with the Forest Service, every time they try something they get tied up in appeals and litigation.”
So why aren’t tribes tied up in appeals and litigation even though many projects have a federal nexus that mandates substantial environmental compliance? Why can they perform? “Because we have sovereign status and tribal immunity,” answers CSKT’s Jim Durglo. “We are subject to public opinion and comment, and invite tribal interests to participate. We’ve gotten appealed before, by interest groups like Friends of the [Wild] Swan, that did appeal a timber sale the BIA was proposing (late 1980s). What happened was the Bureau requested them to post a bond to process the appeal. If they lost the appeal, they would lose the bond.”
“One of the reasons they can carry out programs approved by their tribal councils is that the litigation procedures are completely different,” states John Sessions, Distinguished Professor of Forest Engineering at Oregon State University. “For example, outside parties have to post a bond and thereby incur a liability. With the feds, you have no liability.”
“It is essential to understand the sovereign status of tribal governments,” explains Gary Morishima. When tribal governments proposal a major project, the public can participate through hearings, “but the tribal governments will decide. The tribal public has two options for appealing that, one of course being the ballot box, where tribal constituents elect their representatives. There’s also the possibility of legal action IF the tribal government chooses to waive its sovereign immunity, and tribes may or may not decide to do that.”
The only entities allowed to appeal a tribal timber sale are those “directly and adversely affected,” Mr. Morishima says, “not just anyone walking off the street.”
BIA Chief Forester Bill Downes explains further that under the Code of Federal Regulations that governs BIA, appellants must have proof of standing. “They must have an economic stake or show significant adverse impact.” Further, the determination of significance is left to the discretion of the deciding officer.
Of course, tribal members have automatic standing to appeal tribal projects. However, in Downes’ recollection, “administrative appeal of tribal actions by tribal members is very rare,” having recently occurred only on the Navajo reservation. In that case, recalls Gary Morishima, “Environmental groups got hold of a faction of the Navajo tribe that didn’t want to see any timber harvest on the reservation.” The resulting legal action “forced the Navajos to go through a full-blown Environmental Impact Statement process which cost them several million dollars and took several years to complete. In the meantime, their forest enterprise went broke and their forest deteriorated. But that’s the only instance I’m aware of where that’s happened in forestry.” Tribal forestry, that is. When it comes too their land management actions with any sort of federal nexus, it is difficult to find any that have NOT been tied up in litigation and appeals.
Does the different litigation environment matter? Well, a topnotch team of “name” forestry and policy experts (including John Gordon, PhD., Joyce Berry, PhD., Mike Ferruci, MF., Jerry Franklin, PhD., K. Norman Johnson, PhD., Calvin Mukumoto, MBA, David Patton, PhD., John Sessions, PhD., Michael Sterner, M.F., and David Meyers, PhD.) recently prepared “An Assessment of Indian Forests and Forest Management in the United States,” or IFMAT II, for the Intertribal Timber Council.
The IFMAT II report partially focuses on administrative budget issues facing tribal land management and acquisition programs. Tribal forestry has always been funded at a much lower level than national forests. At the time of the first IFMAT effort in 1991, “Indian forestry [including fire] received only about one-third the amount per acre as was invested in the national forests. In 2001, Indian forestry received about two-thirds...”
The change in proportion is, according to IFMAT II’s authors, because of a “large reduction” in USFS forest management funding and a “significant” increase in fire and fuels management funding for tribes — “significant” meaning a 363% jump from $1.80 in 1991 to $6.55 in 2001 per acre. But funds for non-fire forest management actually declined in real terms over those ten years, from $3.29 to $2.83 per acre. From 1991 to 2001, Forest Service harvest level nationwide fell from 10.036 billion board feet to 1.939 billion, an 81 percent decline. Concurrently, tribal harvest nationwide fell from 729.7 million board feet to 605 million, a decline of 17%. Given the decline in USFS harvest in a strong lumber market, one may be surprised to learn that tribal timber receipts declined more than harvest, down 27%, according to IFMAT II’s authors. “Mill closures caused by lack of timber from federal lands have created a problem for some tribes by limiting their market and increasing transport costs.”
 Hustling a load of Colville Indian timber from the Inchelium side of the reservation to the mill in Omak. |
Especially striking is a table on Page 37 of the IFMAT II report, prepared by co-author John Sessions and presented as part of IFMAT II’s discussion of tribal funding levels. Dr. Sessions collected information on total integrated land management budgets per acre (not including fire control) for private, state, Bureau of Land Management, Forest Service, and tribes/BIA in the Pacific Northwest (Oregon and Washington).
Timber production is, after all, the primary means forest managers have for generating revenues to cover management costs. Dividing agency budgets by timber sold for a cost per thousand board feet of harvest can give a very general cost-benefit/profit-and-loss comparison.
Interestingly, Dr. Sessions’ data shows tribal/BIA budget investment in the timber-blessed Northwest matched the U.S. Forest Service’s $18 per acre. On average, tribes harvested a thousand board feet per $92 of budget. Given stumpage prices currently running anywhere from $150 to $300, it appears that Indian timber sales can make money, at least in the Northwest.
For the Forest Service, the same budget/production comparison shows the agency spent $1,296 per thousand feet sold, 14 times more than tribal operations, and roughly four to eight times the market price of timber on the stump. Obviously, the Forest Service is nowhere near covering its costs of management—this before including the budget-busting billions wasted on uncontrolled wildfire.
In a way, Congress has recognized the problem. Many can recall the vociferous opposition of environmentalists to passage of the Healthy Forests Restoration Act. But few, including this writer, ever heard of another federal law that also passed as a result of the 2002 California wildfires: The Tribal Forests Protection Act (TFPA) of 2004, now Public Law 108-278.
Co-sponsored by Californians U.S. Rep. Richard Pombo (R) and U.S. Senator Dianne Feinstein (D), TFPA authorizes “the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Indian tribes meeting certain criteria to carry out projects to protect Indian forest land.” Tribes can request to manage adjacent federal lands that pose a fire or disease risk to Indian holdings, and the agencies must answer requests within 120 days.
This amazing development generated no debate in Congress, passing the House floor on a voice vote, and then passing the Senate by unanimous consent to President Bush’s desk for signature. Congressman Jim Gibbons (R-Nevada) proclaimed: “By passing this legislation, Congress will be sending a strong and clear message to the agencies that tribes need to be an integral part of the thoughtful management of our Federal lands, for the betterment and safety of all.”
Maybe so, but Congress’s real message may be a defacto admission that BLM and especially the Forest Service are not accomplishing “thoughtful management” of the lands entrusted to their care under current law—laws that Congress wrote.
Can Indians do better? Perhaps, depending on politics. TFPA carries none of the exemptions from litigation and appeal that protect tribal projects from spurious interference by non-Indian environmentalists. Will environmentalists sue to stop TFPA projects, or won’t they?
If TFPA projects are implemented on adjacent federal lands, important precedents may be set. If environmentalists sue in order to prevent that possibility, they risk alienating Indians and losing Indian political support. Obstruction may further force Congress’s hand and spur amendments to TFPA that extend tribal protections to all federal forestry projects that have Indian involvement.
Or, it may simply be that TFPA will enable tribes to spread their good example of land management. Several of the folks I spoke with for this article expressed similar remarks about their optimism for the future and desire to set a good example, but BIA’s John Vitello put it best: “The way Indian forests are being managed today is something that I would hope provides an example for the rest of the American public. They will see that you can manage a forest, produce forest products, and still retain all those natural values that people want to see on federal lands. Maybe the process can be mimicked on federal lands with public understanding and support.” We’ll see...hopefully soon.
human need to use natural resources is fundamental to our continued presence on earth."