CDFW and CAL FIRE Urge Obstruction of Public Records Act: “Don’t Create Documents,” Urge Agencies
Note: For the past year, EPIC has filed and reviewed numerous Public Records Act requests with the California Department of Fish and Wildlife (CDFW) and the California Department of Forestry and Fire Protection (CAL FIRE) to understand recurring issues in timber harvest plans (THPs). Over thousands of documents, we have discovered alarming issues that place California’s native wildlife and ecosystems at risk. This is the first in a series of posts documenting our findings.
Here’s the backstory: The year was 2020 and things were going poorly. The relationship between the California Department of Forestry and Fire Protection (CAL FIRE), the state agency charged with reviewing timber harvest plans (THPs), and the California Department of Fish and Wildlife (CDFW), the state agency tasked with providing advice and recommendations to CAL FIRE concerning impacts to wildlife from logging, had deteriorated. The issues were large and structural, and at their root concerned the degree to which CAL FIRE was obligated to consider the opinions of wildlife experts at CDFW.
In an attempt to figure out a better working relationship, the agencies compiled a “case study” of how they could work together better. The document identified “disagreements” between the agencies as a recurring issue. In comments on this case study, a CDFW supervisor wrote to remind of an unwritten rule within the agency: “When staff persons have concerns about a plan (e.g. surveys), it may be best to start conversations at the staff-level with a phone call or in-person meeting. This would prevent positions or disagreements stated in email and becoming part of the public record, especially if we can easily clear-up an issue verbally.” (emphasis added) In other words, the CDFW supervisor was specifically admonishing his staff not to share their concerns in a manner that could be discovered by the public.
In response to a recommendation to “increase transparency” by sharing determinations and decisions made, a chief within CAL FIRE had this to say: “Disagree. Harvesting plan review….is not, nor should it be, subject to exclusive insular discussions between agency partisans. This is not helpful to the regulated public. It may well be helpful to the litigious public and I have no interest in helping that element of the public.” (As a side note: it is disappointing but unsurprising that CAL FIRE would describe CDFW employees as “agency partisans.”)
CAL FIRE and CDFW top brass later appeared to figure out how to hide and resolve disagreements without creating a public record. In 2021, CDFW and CAL FIRE signed a joint memorandum of understanding called the “Communication Protocol for Outstanding Species Concerns.” The protocol, on its face, was “to ensure consistency in the resolution of outstanding questions and concerns related to biological data and species protection measures.” In practice, however, the protocol allows for both agencies to paper over disagreements out of sight of the public record and the public’s watchful eye.
Per the protocol, when an inter-agency disagreement exists—such as whether surveys for northern spotted owl were adequately completed—staffers are supposed to raise the issue to their supervisor. Supervisors from CDFW and CAL FIRE are then to meet to discuss the issue, and if the disagreement persists, then it is elevated to higher levels within both agencies. From our review of public records, the communications protocol has been used by CAL FIRE and supervisors at CDFW to hide areas of public controversy in a way that generally benefits the “regulated public.”
In numerous emails unearthed by EPIC, CAL FIRE staffers have used the communications protocol to silence CDFW concerns about wildlife. How this appears in the public record is that a CDFW employee will report to their supervisor that they received a call from CAL FIRE that the forester has disagreed with the opinion of CDFW or objected to a question raised by CDFW. This “disagreement” then triggers the communications protocol. Within CDFW, employees are directed to maintain the “chain of command” and to voice their disagreements with CAL FIRE to their supervisor. The supervisor then is supposed to articulate the agency’s position to an equivalent supervisor at CAL FIRE. In numerous instances, however, it appears that CDFW supervisors either don't adequately understand the disagreement or fail to give their agency’s position a sufficient defense.
In one timber harvest plan (THP), EPIC found that CDFW staffers recommended that the agency issue a statement of “non-concurrence,” a rarely-invoked situation where CDFW officially disagrees on record with the determination made by CAL FIRE. In this case, CDFW staffers believed that the THP would have significant impacts to northern spotted owls, including potential violations of the Endangered Species Act. From all indications, it appears that CDFW supervisors failed to sufficiently voice their concerns and the THP was approved without note.
By using this new protocol, CAL FIRE and CDFW intentionally left the public in the dark about important and substantial disagreements. In the THP where CDFW staff urged supervisors to issue a statement of non-concurrence, the public would have had a difficult time discerning that anything was amiss because the record, maintained by CAL FIRE, contained no discussion of the disagreement. EPIC was only ever able to discover this disagreement by filing a Public Records Act request and sifting through hundreds of emails. That request yielded documents after the THP was approved by CAL FIRE, the trees were cut, and owls were harmed.
The Forest Practice Act envisions a system with robust engagement by sister agencies to help avoid environmental impacts, and provides specific opportunities for engagement by resource agencies like CDFW. But by silencing disagreement and relegating it to off-the-record discussions, CAL FIRE and CDFW have effectively neutered the process. EPIC calls on CDFW and CAL FIRE to rescind the 2021 communications protocol and return to letting their respective staffs discuss environmental concerns publicly. Sunshine is the best disinfectant, and CAL FIRE and CDFW shouldn’t be making decisions in the shadows.