Condition-based management (CBM) is a management approach that the U.S. Forest Service has increasingly used to authorize timber harvests purportedly to increase flexibility, discretion, and efficiency in project planning, analysis, and implementation. The agency believes it needs this flexible approach because sometimes conditions on the ground can change more quickly than decisions can be implemented. In practice, however, CBM operates to circumvent the National Environmental Policy Act (NEPA) review framework by postponing site-specific analysis until the Forest Service implements the project, which effectively excludes the public from site-specific decisions, reduces transparency, and removes incentives for the agency to avoid harming localized resources. The practice should be curtailed by the Biden administration.
NEPA requires federal agencies including the Forest Service to provide the public with “notice and an opportunity to be heard” in the analysis of “specific area[s] in which logging will take place and the harvesting methods to be used.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 729–30 (1998). Site-specific public involvement can significantly improve projects because the agency may be unaware of harmful impacts or resource concerns until the public flags them during the environmental analysis process. Nationally, the Forest Service drops about one out of every five acres it proposes for timber harvest based on information or concerns presented during the NEPA process, often due to public comments regarding site-specific information. Public Lands Advocacy Coalition, Comments on Proposed Rule, National Environmental Policy Act (NEPA) Compliance (June 13, 2019) (analyzing 68 projects that relied on environmental assessments).
The Forest Service appears to be abandoning the site-specific analysis model in favor of CBM. CBM projects use an overarching set of “goal variables”—predetermined management criteria that guide implementation—that Forest Service staff apply to on-the-ground natural resource “conditions” encountered during the course of project implementation, a period that can span years or even decades: essentially, when the Forest Service finds X resource condition on the ground, it applies Y timber harvest prescription. However, basic information regarding the project’s details—such as unit location, timing, roadbuilding, harvesting methods, and site-specific environmental effects—is not provided at the time the Forest Service conducts its NEPA environmental review (when the public can weigh in), nor when it gives its final approval to a project (when the public can seek administrative review). Instead, site-level disclosures are made after NEPA environmental and administrative review is complete, depriving the public of opportunities to comment and influence the decision based on localized conditions.
While CBM is not a new management tool, the Forest Service has employed it for over a decade and it was used sparingly during the Obama administration. However, its use accelerated during the Trump administration and shows no sign of slowing. To date, dozens of Forest Service projects across the country have used CBM. See, e.g., Red Pine Thinning Project, Ottawa National Forest; Medicine Bow Landscape Vegetation Analysis, Medicine Bow-Routt National Forest; Sage Hen Integrated Restoration Project, Boise National Forest.
As the Forest Service’s use of CBM continues, questions remain about its legality. Public-lands advocates argue that CBM violates NEPA’s mandate that agencies take a hard look at the consequences of their actions before a project commences. This “look before you leap” approach was the primary purpose of NEPA and remains the statute’s greatest strength. NEPA works by requiring an agency to consider alternatives and publicly vet its analysis whenever its proposal may have “significant” environmental consequences, 42 U.S.C. § 4332(2)(C), or implicates “unresolved conflicts” about how the agency should best accomplish its objective. Id. at § 4332(2)(E). However, CBM allows the Forest Service to circumvent the effects analysis process when exercising discretion about where and how to log decisions that often may have “significant” environmental consequences.
Only two federal cases have addressed CBM’s legality. In WildEarth Guardians v. Connor, 920 F.3d 1245 (10th Cir. 2019), the Tenth Circuit approved a CBM approach for a logging project in southern Colorado in Canada lynx habitat. The environmental assessment utilized CBM and analyzed three different alternatives, one of which was a worst-case scenario. For the worst-case scenario, the Forest Service assumed that the entire lynx habitat in the project area would be clear-cut. The Forest Service “took the conservative approach” because it “did not know precisely” where it would log in the lynx habitat areas. WildEarth Guardians, 920 F.3d at 1255. Based on this conservative approach, coupled with a comprehensive, region-wide lynx management agreement and its associated environmental impact statement, the court agreed with the Forest Service that its future site-specific choices were “not material” to the effects on lynx—i.e., that no matter where logging occurred, “there would not be a negative effect on the lynx.” Id. at 1258–59.
However, a second case addressing CBM found that site-specific analysis was needed to satisfy NEPA’s “hard-look” standard. In Southeast Alaska Conservation Council v. U.S. Forest Service, 443 F. Supp. 3d 995 (D. Ak. 2020), the court held that the Forest Service’s Prince of Wales Landscape Level Analysis Project—a 15-year logging project on Prince of Wales Island in the Tongass National Forest—violated NEPA. The project would have authorized the logging of more than 40,000 acres, including nearly 24,000 acres of old growth, along with 643 miles of new and temporary road construction, but it “d[id] not include a determination—or even an estimate—of when and where the harvest activities or road construction . . . w[ould] actually occur.” Id. at 1009. The court found that this analysis was not “specific enough” without information about harvest locations, methods, and localized impacts. Id. at 1009–10. The court further held that a worst-case analysis could not save the project, because site-specific differences were consequential. Id. at 1013.
The Forest Service’s widespread use of CBM also creates compliance challenges under the Endangered Species Act (ESA). Section 7(a)(2) of the ESA requires federal agencies to consult with the Fish and Wildlife Service and/or National Marine Fisheries Service whenever a proposed action “may affect” listed species or destroy or adversely modify its critical habitat to ensure that the action is “not likely to jeopardize” these species. 16 U.S.C. § 1536. CBM conflicts with that statutory requirement because it does not allow agencies to properly determine whether an action “may affect” or is “likely to jeopardize” a listed species when the consulting agencies do not know the specifics of when or where the action will be implemented, or what the site-specific impacts of the action may be.
For some projects, the Forest Service has tried to avoid this tension by conducting section 7 consultation prior to each phase of a CBM project, but this approach has run headlong into the general rule against segmenting project consultation duties under the ESA. See, e.g., Conner v. Burford, 848 F.2d 1441, 1457 (9th Cir. 1988). With few exceptions, section 7 consultation must cover the overall effects of the entire project at the initial stage before the project can commence. Thus, regardless of whether agencies choose to consult up front or to consult in stages, the Forest Service is likely to face significant legal hurdles when its CBM project “may affect” listed species.
CBM is not only legally dubious, but also unnecessary. The Forest Service already has NEPA-compliant methods to deal with situations that require a nimble response to the needs of a dynamic landscape. In these cases, the Forest Service can complete a single “programmatic” analysis to which future site-specific decisions will be tiered. This programmatic approach allows the Forest Service to speed the consideration and implementation of site-specific, step-down proposals. Unlike CBM, this approach allows for public review of site-specific decision-making and administrative review of those decisions.
Surveying the regulatory horizon, the future of CBM in the Forest Service system is uncertain. The national forests face a host of complex challenges including climate-related crises, insect and forest pestilence, protecting and restoring biodiversity, and wildfire management. These challenges are made worse by budget and staff restrictions. Without adequate funding, the Forest Service must rely on imperfect tools like commercial logging, which can cause more harm than good in the wrong places.
But this is not the time to shortchange the most consequential decisions that the agency must make: determining where and how to act. During the final two years of the Trump administration, the Forest Service attempted to explicitly codify CBM provisions in revisions to its NEPA regulations, although those provisions were dropped from the final rule. Simultaneously, other federal land-management agencies like the Bureau of Land Management have started to use CBM analogues in their NEPA-related planning documents. Although it is still early, the Biden administration’s newly appointed Council on Environmental Quality team has yet to weigh in on CBM. If use of CBM continues in a manner that undermines public participation and NEPA’s “hard look” standard, some of our riskiest land management projects may not receive proper environmental oversight.
