A Walk Through the THP Process

On Tuesday, March 2, 1999, RRRAULians and others testified for 4 hours before a science panel of the Watershed Protection and Restoration Council on the subject of defiencies in the Forest Practice Rules and CDF politicies, as these defiencies respect the viability of California's salmon population. Here are Helen Libeu's written comments:

Att. #1, Science Panel: A WALK THROUGH THE THP PROCESS
2/28/99 with comments, derisive and otherwise, from H. Libeu

When you finish this blast, you may think the system was devised by a committee composed of Rube Goldberg, a millionaire with no consciousness of costs to himself or others, and a sadomasochist. That's because it grew like Topsy, added to over the years by pushes from courts, the public and others. This concerns only the standard THP, not the Modified THP, or NTMP`s nor the exempt documents.

See FP Act, PRC 4578 (in back of the FP rule book) Then go on to FP rules, various, including on the submission and acceptance of THPs, the Director's review (CDF) and the composition/duties of the interdisciplinary review teams. In my comments, I do not imply that the potentials for adverse impacts on fisheries (or otherwise) always actually materialize, or even the majority of the time for all, though some are commonly seen.

PREPARATION. The THP must be "prepared by an RPF." Actually, a computer is now a big player here. Example: THPs now sometimes contain the following statement by the RPF under his certifications: " If this is a Modified THP, I also certify that..." A Modified THP is a specialized version to be used ONLY under 100 acres, but these certifications are used on THPs WAY over 100. So much for 4582.5, THP to be applicable to a specific property. Just a small example to show that RPFs fix their programs broad enough to be widely applicable to widely varying THPs -- which makes it difficult to conform to the site-specific nature SUPPOSED to control THPs There are MORE important problems of pervasive boilerplate throughout THPs, serious mistakes the state has to correct initially or on Pre Harvest Inspection (PHI).

The biggest problem here, however, is that the RPF generally is responsible ONLY for the paperwork and normally for attending the PHI, responding to questions from the state, and for accepting or not, 'requirements' from the state for corrections and something called mitigations, subject to the submitter's concurrence if necessary. Typically, after that, on non-industnial lands the RPF is through, and the actual operation is turned over to the logger. If there is a problem with the THP in operation, the RPF can say HE had nothing to do with how it was implemented-, the logger can say HE was just following the THP. The plan submitter can say HE isn't an RPF or a logger, and didn't supervise (may be a corporation).

SUBMISSION. The Act says the THP shall be filed by a person who owns, leases or OTHERWISE CONTROLS OR OPERATES ON ALL OR ANY PORTION of ANY timberland, AND WHO PLANS TO HARVEST THE TIMBER THEREON. And that is a big problem according to some: the landowner may not even KNOW a THP has been submitted on his land-, he does not have to approve-, the RPF merely has to notify him. In one recent THP, one ten acre owner never responded to anyone, may not even know his land has been logged. Since the timber rights may have been bought by someone, possibly the logger, with only a one-shot interest in recouping his investment --if he MADE any investment. I think (and I am not alone) that the long-term interest of the land is more likely to be a consideration for the landowner. Hence I believe that ALL THPs should be submitted by the landowner. No guarantee that landowners will be more interested in fisheries conditions, but at the very least, the overall condition of the timber stand and the timberland, in which they may be more interested is a large factor in the fostering of good conditions for fisheries. See below.

FRAGMENTED RESPONSIBILITY. And, landowner submission would improve the existing DIFFUSED RESPONSIBILITY, which in fact now makes it hard to hold ANYONE accountable, with the logger most often getting it in the neck if there is a goof -- if ANYONE does. Even absent any goofs, the LAND owner is responsible for some items -- erosion facilities, AND for meeting stocking, both items which he may have had no role in covering in the THP. -The Regional Water Board DOES join the landowner when issuing various penalties, but CDF does not. Etc.. I believe the LAND owner and the RPF should both be TIED TO THE THP, CRADLE TO GRAVE, as originally proposed in the FP Act drafts, and compromised away.

PUBLIC NOTICE OF THP SUBMISSION. The appellate court has ruled (Friends of the Old Trees, v. CDF et al) that the review team meetings are equivalent to a full public hearing. So how does the public even KNOW about those "full public hearings " -- the Review Team meetings? The short answer: they usually don't. The first sign that something is hovering is the Downstream Water Users' Notice, in a newspaper, buried with legalese etc., and sometimes in a paper not likely to be read in the area (ex: Ukiah paper for Sonoma County). IF some weird person who likes to read legal notices SEES such a notice, and can interpret it, he may know what to do about it. Otherwise, someone who subscribes to the CDF mailed lists of THPs submitted may recognize a THP as being in an area of interest, or otherwise something he should check into. The public cannot ask to be notified of submissions in , a certain watershed or other area; you have to subscribe to lists for the whole damn territory. Few do, we depend on masochists who will read through all the lists and recognize something that WE may be interested in.

Otherwise, if you think a THP is hovering, you have to start bugging the VERY accommodating support staff at Region: "is there anything in Sonoma County from RPF Blank?" I've asked CDF to post on a web site. No dice, yet.

If someone alerts you that THP # 123 in Sonoma County is in, then you call CDF to find out how much it costs, and ask for a mailed copy (expensive -- 12 1/2 cents per page, with some over 200 pages -- one was recently 700 pages), so you copy it at a public copy store and mail it to others.

Also, one public notice must be posted where the public is likely to see it, a description which allows for some fudging This is improving). Then, some zealots may think they're helping by tearing down the notice!

GOVERNMENT REVIEW. STATE: Region's support staff mails the notices of submission within two days, makes and distributes NINE COPIES to reviewing agencies. If the THP is rejected for filing, they have to notify everyone, and make nine MORE copies when resubmitted.

THE THP then goes to the Bastille (my term), where CDF staff FORESTERS "screen" it -- check the work of the private forester (RPF) who 'prepared" the THP. Until last fall, they were required to use a checklist from the California Licensed Foresters' Association (CLFA), whereby if something was filled in on a line of the THP, the screeners could not reject the THP on grounds connected with the CONTENT of the words filled in, however unsatisfactory (Exceptions had to be pretty gross). These omissions or gross inadequacies were called " Fatal Flaws" or " Above the Line" flaws. Having located one or more such items -- typically mechanical errors like missing something in the notice posting -- the screeners could then add items which they felt were actually more important, usually, than the mechanical Fatal Flaws. Then, they could return the THPs to be redone. This pernicious system was required because Ross Johnson signed a directive to the CDF to do so. He has just been appointed chief Deputy CDF Director for Forest Management.

Last fall, in part from a noisy complaint from a forestry activist (modesty forbids), the Director let it be known that CDF was free to use its discretion in the use of the CLFA list, but repeal of the directive was not something anyone has so far been brave enough to do. This leads to varying interpretations; repeal should happen, and fast.

So now we are up to the stage in which a screener checks the THP. In some cases, the THP is rejected --" Not accepted for filing." At one time, nearly 40% were rejected, I don't know the current figure. "Filing" does not mean submission to CDF; but rather acceptance by the Review Team for further processing. At that point, the time clock starts running, and the short time limits require CDF to ask the RPF to agree to extend the statutory time limits, on nearly all THPs.

In Sonoma County in the last several years, consulting foresters working for non-industrial landowners have been incurring not one, but REPEATED rejections. Some rejection letters have listed FIFTY questions to be settled before resubmission. One RPF has had his THPs returned FOUR TIMES each; in one of the letters, CDF asked the RPF to please, answer questions asked in the last letter returning the plan. One commonly found omission with fisheries relevance: ---- FP rules say "No tractor logging on slopes over 65%, or 50%--65% and lead without sufficient flattening to intercept sediment, to a watercourse. But this kind of operation, like almost everything else forbidden, can be done if the RPF explains and justifies. When the RPF doesn't bother to explain, AT ALL, that's an omission, maybe even a " Fatal Flaw." But the statement can be monotonous boilerplate generalization, without even an ESTIMATE to back it up. This would NOT be a flaw, though nowadays, recently, CDF does sometimes question the assertion. This is important for fisheries, since erosion from roads and landings is typically such a prime cause of sedimentation in watercourses. Enclosed is a rejection letter, THP 1-98-283 SON.
(See "The Epiphany")

Note: Libeu's First Law of Physics for the THP Review process says: " For every rule, there is an equal and opposite exception." And there are exceptions, exemptions, alternatives and in-lieu practices. Sadly, most of these exceptions, which typically require explanation and justification, are swallowed whole by CDF, when they are boilerplate based on assertions unsupported by objective data, measurements or even tailor-made generalizations.

Let us assume the THP FINALLY gets through screening. Even if never actually returned, it will have a number of questions from the screeners, to be answered by the preparing RPF by PHI time, or on PHI, and for the state agencies on PHI. These and the THP then go to the First Review (in Santa Rosa). IN THEORY, the Regional Board staff, and Fish and Game, maybe others, send in questions or attend; Regional Bd. staff does sometimes send in e mails, which of course the public does not see. Since Jan. 1, 1998 (ninety -EIGHT), there has been NO DFG person doing First Reviews for Coast Cascade -- (and almost NO Second or PHI either).

THIS IS VERY IMPORTANT FOR FISHERIES. At First Review, the other agencies can supply questions for the PHI team to check on, can provide info from DFG files or the rep's own knowledge, on the watercourses in the area, etc. In recent years, CDF has had to do most of the inspections alone; and it is not going back out on PHI, so there is this ONE chance for DFG to raise questions and get them answered.

Note: if there are watercourse alterations which require a 1603 DFG form, a sort of nondiscretionary permit, typically that aspect will NOT be covered during the THP review process. After lengthy court battles, DFG has admitted this IS a discretionary process, and after more than four years, is finally working on SOMETHING.

First review is also a time for the public to provide questions based on its own knowledge neighbors may well know more about the watercourses than anyone including sometimes the owner, who may be absentee, or an LLC in another state. Examples abound.

Typically, the RPF does NOT attend First Review (nor Second Review either). The public however, is able to get to know the THP as it is finally accepted, to begin locating information, raising issues BEFORE it is too late: again, CDF is not going to go back out there, short of massive demonstrations of PHI failure.

But AHA!! How do the neighbors in Del Norte, or Humboldt, or even Mendocino and Santa Cruz, get to ATTEND, or even to KNOW when the Review meeting is to be held? (The stock announcement that there IS such a meeting also gives a fictitious date for first possible approval-the shortest legal possible date, assuming nothing is wrong, no returns, no delayed THPs, etc. etc. Since this date is often a day two away, this discourages many from even GETTING the THP. If the list of THP submissions is mailed two days after receipt, to Del Norte, whose residents have to call and write Santa Rosa for the THP by mail, First Review will probably be OVER before they can send questions by mail -- and traveling to S. R, is unlikely.

Just two weeks ago I discovered that Santa Cruz CDF was telling the public that they could not see a THP or get a copy until it had BEEN THROUGH First Review. I coped with THAT one temporarily, and Region is checking to get its own processes consistent. The managers here are well aware of the importance of first Review, of getting questions in early. The rationale CDF gave for centralizing First Review was -- for consistency. Experience in Sonoma County shows many benefits to starting public participation at least by first Review. But these benefits are confined to Sonoma, a very small county in forestry matters.

PHI. After making it through first Review -- accepted for filing -- the THP goes to a unit under the Ranger arm of CDF -- NOT under the forest practice staff; the unit chiefs are typically NOT RPFs. CDF is accompanied by the RPF, and any other state agency which has staff available (very seldom in last year and more-, almost never for DFG). Then CDF and others write up inspection reports. THESE flesh out the THP, so that a better picture of the stand and watercourse conditions, etc., emerges. The Division of Mines and Geology may have sent a rep. These inspection reports also include recommendations for "mitigation's," which are corrections, or changes to prevent problems the THP would produce without those mitigations.

Experience shows that when DFG or Regional Board staff go on PHI, watercourse classifications are more likely to be upgraded. Since this results in more protections for watercourses, this is important for fisheries. But many, many other and serious changes are recommended. Wildlife biologists have been typically involved in the few times when late successional stands are detected. A famous example was the Mendocino Russell Brook THP, where the RPF had indicated no such stands, and OF did not notice , DFG subsequently did establish the existence of actual old growth stands, along with CDF's own staff biologist, Brad Valentine. Note: this case was the result of public participation; citizens took pictures and otherwise forced the state to face the issue. A similar occurrence happened in Sonoma County, the public trespassed, took pictures, DFG went on its only Sonoma county PHI in 1998, with Valentine, and recommended murrelet surveys on stands of old growth.

WHY DOES CDF NOT ABORT INSPECTIONS WHEN FACTS ARE SERIOUSLY MISSTATED? They can show you written policies which authorize this -- but they very, very seldom do. Instead, they patiently figure out what the RPF SHOULD have done, and explain this in the Inspection report, so he can THEN do what his training and responsibilities supposedly both enabled and required him to do. See below on " PLAN FIXING." Recent example in Sonoma County: an RPF submitted a plan with over 100 acres of selection, all in one block. This method requires that the land show both a basal area of 75 square feet per acre average, AND the presence of 8 eighteen-inch conifers PER ACRE, not average, AFTER logging. In that THP, such conditions were not even there BEFORE logging, in much of the area. This was a serious and very FUNDAMENTAL flaw in the foundation of the whole THP, requiring many months of consultations, and eventually resulting in an entirely new THP. What conclusion can you draw from this? Did the RPF simply not understand so basic and simple a matter as the requirements of this common silviculture method, selection? Or? Or?? Whatever the reason, I do believe that RPFs don't worry too much about such errors because they know CDF and the state agencies will not embarrass them by stomping off inspections and rejecting the THPs out of hand. Nor will the BOF rules ALLOW them to flatly deny the things right away, which would make a cleaner and quicker process, save everyone a lot of time, including the owner.

The DMG is particularly effective in redesigning the roads and drainage structures, going into great detail; they have been known to recommend that the owner retain his own geologist, when there is a particularly dangerous area and DMG itself does not want to either approve or redesign. Unfortunately, DMG does not go on all PHIs, and in fact when it does, it often exhibits its engineering bias -- almost everything can be 'mitigated.' But, DMG is vital in correcting road problems and such.

Note: DMG's recommendations are often expensive. It was so active in recommending changes that CDF's top forestry Deputy Director, Craig Anthony, decided for this or some other reason that DMG should NOT GO INTO THE FIELD. He explained that he could so, too, order another state agency around, because the funds for DMG came to CDF -- NOT DMG. A member of the public (again, modesty forbids) quietly got the State Senator from this district to fix THAT wagon; DMG now controls its own budget and operations.

SECOND REVIEW. After all reports are in, the Second Review is held, this time in the CDF office for the THP, not at "Region." Sometimes, the informative inspection reports are not available to the public, or even the other agencies, UNTIL the meeting. This makes participation difficult-reading through many pages while trying to listen and talk at the same time.

The Team -- typically just the CDF Review Team chair, but NOT the CDF inspector for the THP then lists all the recommendations from the reports, plus any others that might be added at the meeting (usually when another agency attends, or the public), and the THP is recommended for approval with the " following..(i.e., those recommendations)." CDF`s Review Chair has expressed the philosophy that if the Unit RPF who inspected did or did not recommend X, he cannot ignore that recommendation, or only in extreme cases. If other agencies attend, they agree to the recommendation also; if not, they can " non-concur." See next paragraph. The form letter from the Review Team goes to the RPF to agree or argue with the recommendations. If he obtains a change, it is supposed to be cleared with any other agency that had been part of the original approval- with- recs, but often is NOT. The THP may thus undergo some changes after Second Review-, the THP in fact, remains fluid until the approval signature is stamped on; I have wondered if this is REALLY a process equivalent to a CEQA EIR. After Second Review, the public is not notified of anything, has to either call and bug CDF, or we just wait until we get an Official Response -- which of course tells us the thing has been approved.

Summary: if a THP once makes it through to being filed, it is on a greased track to approval, with the time clock pushing the process to some extent. If the PHI finds problems, CDF just fixes them as noted above. Other agencies, IF active in the THP, or the public, can impact the process to some extent, especially if they enter the process early. But interrupting the process is very difficult, hence litigation is perceived as a last resort for the public.

Non-concurring; appeals. The other agencies have five days for this. In some agencies, these must be approved by higher management, and often the time does not permit. If they do non -concur, CDF does not HAVE to follow their recs, just has to respond. The new Region management, I think, WILL honor the other agencies positions. The other agencies may also appeal via the HEADS of their agencies-- but only IF they have been on the PHI-, the State Water Board , which does not review THPs, has to appeal for the Regional Boards, and I believe has never made such an appeal. DFG only once-- withdrawn after the RPF agreed to changes.

PLAN FIXING ... The recommendations at Team meetings result in changes to the THP, which also occur from agreements made on PHI. These changes can be both major and multiple. So the state and the public have been explaining to the private RPF what is wrong, what he needs to add or change, beginning with the screeners, the First Review and the PHI, and finally Second Review. This is plan fixing, abominated by the public as a waste of tax paid time and a reflection on the sorry state of RPFs' attention to, and understanding of, what they need to know and do. It also means, when there are extensive revisions submitted to the RPF for his agreement, that CDF is actually "preparing" part of the THP, and then reviewing its own work. A recent and gross example is THP 98-218. The final set of changes the RPF proposed made the new version have so little in common with the original that CDF remarked there was nothing in common except the THP number-, and they required withdrawal. So much for the Act's requirement that the RPF 'prepare' the THP. CDF's hands are somewhat tied in this charade by rules made by Board of Forestry which considered CDF's job to 'help' the RPFs ; they cannot just return a THP and simply say," Read the rules and submit something which complies with them, if you can't figure it out, get help." But CDF has to hold the RPFs hands, on tax paid time; and there is no fee for submitting a THP.

This sorry state of affairs will continue until those rules are changed; RPFs have by now been 'trained' by this diet of plan fixing to turn in SOMETHING, knowing CDF and the other agencies will help them do it over. And, probably the one best way to improve the quality of THPs is to adopt a filing FEE, nonrefundable if the thing has to be returned because of RPF errors.

OFFICIAL RESPONSES (ORs). If the RPF and CDF agree, all THPs then go back to Region -- to the Bastille, where another group of foresters write these ORs, required by various laws and court decisions. In theory, they are part of the 'feedback loop,' instructing the public, answering any serious concerns raised by the public. In actuality, no single thing infuriates many members of the public more than ORs. They are full of boilerplate or simply do not answer the major questions, or give responses we consider stupid.

This section of the Bastille is called the Environmental Review Section. (There wasn't any environmental review before?). Jay Halcomb and I had an interesting conversation with two of its members, in which one said with great pride that his section was the first place, and time, that ALL the elements of the THP review came together, that there was chance to go into all the things that had not been taken care of !!!!Actually, its purpose is a CYA operation: providing something for a court in case of litigation. This is the spoken position of the Forest Practice bosses, not just mine; they have told us not to take them seriously. We don't. SOMEBODY should.

When the OR writers think they have indeed answered all the questions, then they forward it to the chief of Forest Practice for Region. That person has many other duties and has to travel a great deal. In theory, if that person concurs that all public questions have been answered sufficiently to protect CDF in litigation, the THP is approved. In practice, in the past few months, some THPs have been returned to the review process for further study, and last week FOUR were threatened with denial, resulting in their being withdrawn.

Note: official stats from CDF typically show about 1 THP denial per year. But there is no category for " Withdrawn under threat of denial." The rules require CDF to give the RPF that chance, and also requires CDF to explain to the RPF what he has to do to make the thing satisfactory (they have ALREADY done so in a number of ways).

POST APPROVAL. 1. Litigation. Anyone wishing to sue on a THP has 30 days from approval in which to do it. Hence concerned neighbors or others typically have lined up an attorney and some money ahead of time. They have also tried to get expert testimony into the record, difficult when no access is permitted to the land, and many professionals are unacquainted with the whole process; the record, however, is vital: since the Friends of the Old Trees decision, NO live testimony is permitted. Since the judges are required to give great weight to the state, the cards are stacked against the plaintiffs; however, many such suits are won. For many years, nearly ALL were won, but the public has gradually educated CDF in how to review THPs. The 30 days is often a race between court action and the chain saw, since logging may start immediately.

2. Post-approval inspections. CDF in theory, and by law, does at least 4 inspections: PHI, completion inspection, and two in between. During operations, CDF may find violations of the rules or the THP; if so, they may or may not, write up a notice of violation. Truly severe cases may garner a citation (to court, if DA will take it). Violations typically result in a piece of paper in the THP file. Period. If action is taken it will typically be against the logger. THESE INSPECTIONS ARE FOR COMPLIANCE WITH THE THP AND RULES, WHICH IS NOT FOR EFFECTIVENESS IN ACHIEVING THE INTENT OF THE RULES OR THP, AND IS NOT MONITORING OR ADAPTIVE MANAGEMENT.

3. Life of the THP. THPs have a three- year life initially, but can be extended one year, twice, if work has been started but not completed, or if the RPF submits an amendment extending the date. These are treated a minor amendments, hence no public notification or review.

4. After logging. When logging is completed, OR at the end of the THP life (which may be two years after logging), the RPF sends in a completion report, which CDF has six months to review. Stocking requirements must be met on completion of harvest for uneven aged management plans, such as selection method, but most methods allow five more years. There are specific rules about assessing stocking, and they are a laugh. These reports do not require an RPF -- even though the 'guaranteed' restocking was one of the great talking points of the FP Act. The owner or his agent -- who often IS the RPF -- may request a waiver of actual sampling procedures; or, CDF may just eyeball the area.

If sampling IS done, the protocol says that for point count sampling, there have to be MORE than five contiguous unstocked plots before the determination of non-stocked status can be made, again there is an exception. (Simplified version).

Along with the underlying ridiculousness of point count stocking standards when used for anything other than classic clearcutting, and other factors, this all means that the famous "toughest rules in the nation" allow for the gradual decline of the forest cover, both as to size and age, and area covered with canopy. Why does this concern fisheries? Because a diverse forest, with trees of some size and age, and with some areas at least of closed canopy, means better overall conditions for wildlife, and even for fisheries: such conditions help with unstable areas, with erosion, micro-climate, and food supply, among other things.

5. Meeting stocking: Responsibility of LANDOWNER.

6. Erosion controls: Responsibility of LANDOWNER. One year at first; CDF can extend up to three -- but only if the maintenance after the one year shows something more is needed. Important for fisheries: CDF ought to be able to set three years from the beginning -- conditions usually make it obvious, and longer than 3 years. Is CDF likely to devote staff to returning to a closed THP just to check on the erosion control period?

7. REENTRY. Except in areas with special rules, such as Southern sub-district, where ten years is the shortest time for reentry, there is no time limit for submitting another THP on any area. And whole watersheds may be nearly completely logged within a few years, occasionally more than 100 % in a few years. THIS IS IMPORTANT FOR FISHERIES.

FEDERAL. In the last couple of years, CDF has routinely sent all THPs to NMFS, and then routinely says NMFS has not objected to them. NMFS has insufficient staff to review them, so does a triage -- does only a few, when brought to their attention, and tries to get the SYSTEM fixed, as when they submitting rules analyses -- which CDF then summarily rejected, in toto.

Their entry into the picture as POTENTIAL player, however, HAS resulted in various changes in THP review, and in the adoption of that non-rule--the Coho considerations, now proposed for a conversion to a regular actual rule. And NMFS is of course active in broader venues, such as questions of water diversion from coho and steelhead waters.

The US Fish and Wildlife Service is not regularly involved in THP review, but on occasion does enter when someone requests a consultation. That request generally comes from a member of the public, not normally from the RPF, who may or may not know when an area is one that should receive attention from expert in ESA species and their habitats. In Mendocino and Sonoma counties, this problem is exacerbated by the STATE Fish and Game agency, which is generally either absent or even considered by the public as an obstruction..

Helen Libeu