6 days ago
Lessons in Forest Service regs await nominee
The Trump administration's nominee to oversee the Forest Service may soon be faced with navigating the agency's environmental regulations from both sides: as an affected property owner and as the boss of the employees enforcing them.
Mike Boren, the Trump administration's pick for undersecretary for natural resources and environment, will likely have to work through the Forest Service's environmental procedures to resolve a disagreement about a geothermal stream that one of his ranches in Idaho tapped for heating purposes, if he's confirmed by the Senate.
That's the assessment of current and former Forest Service employees who described the rules to POLITICO's E&E News, granted anonymity because they're not authorized to speak with reporters or still work with the agency in other capacities.
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The stream diversion is the latest in a series of dust-ups Boren has had with the Forest Service over land use, which isn't uncommon where large landowners in the West coexist with vast stretches of federal land. As much as two-thirds of land in Idaho is federal property, Sen. Jim Risch (R-Idaho) told the Senate Agriculture, Nutrition and Forestry Committee at Boren's nomination hearing Tuesday.
Boren's situation became unusual, however, when President Donald Trump in January nominated him to a post that solely oversees the Forest Service. Boren's wealth also attracts attention, as he's a founder of a billion-dollar tech company.
The water issue involves the West Pass Ranch, a Boren family property adjacent to the Sawtooth National Forest, which includes the Sawtooth National Recreation Area.
The agency warned the ranch about a water diversion from a nearby geothermal stream on national forest system land, with a line running to the ranch property. A Forest Service law enforcement employee noticed it on a routine visit this spring, according to an employee closely familiar with the details. The Forest Service and USDA haven't responded to messages seeking comment on the specifics.
The ranch has water rights and a water permit from the Idaho Department of Water Resources for a diversion, but current and former Forest Service employees said that they've seen no indication of an additional permit the Forest Service would typically require.
These employees, as well as other people closely familiar with land use regulations involving national forests, said the agency can issue permits after the fact in such situations, possibly through a routine categorical exclusion from the National Environmental Policy Act and some public notice.
The Forest Service would conduct a pared-back NEPA review to ensure that endangered species, for instance, aren't harmed, as well as to determine whether the land is of any cultural significance to local tribes, they said.
'A landowner can't just go onto national forest land and start digging things up,' said Ed Cannady, a retired backcountry manager on the Sawtooth who worked for the Forest Service for 31 years. He retired in 2019.
While Cannady said he couldn't speak to the specifics of Boren's situation, he said the requirement to follow both federal and state permitting laws is clear. Water rights entitle property owners to 'reasonable access' to federal land, he said.
The Idaho Department of Water Resources in 2023 approved a water permit for a groundwater diversion at the West Pass Ranch, according to records at the state agency.
That permit, which is based on the ranch's decades-long water rights, also noted in the records, comes with several conditions including to monitor and report the volume of water taken.
The permit describes the proposed work, including that the ranch 'shall install or construct a straight length of conduit or ditch suitable for installation of a device for measuring the entire flow of water being diverted in connection with this right.'
A sign for the Ketchum Ranger Station stands in the Sawtooth National Forest. | Patrick T. Fallon/AFP via Getty Images
'A license to run roughshod'?
Boren, at his nomination hearing Tuesday, didn't address the specifics of the work that's caused disagreements. But he suggested that a heavy-handed approach at the Forest Service is to blame and that he favors negotiations that satisfy both sides when land-related disagreements arise with the agency.
He also said he'd follow the advice of USDA ethics lawyers in determining whether he should recuse himself from Forest Service matters involving his or his family's property.
The federal government, representing the public, has property rights just like private landowners, said Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, an Oregon environmental group.
'The only reason that water rights have any meaning on federal lands at all is because Congress has passed laws giving them meaning,' Stahl said in an email. 'But for those federal laws, the state's water rights scheme would be meaningless on federal lands.'
He added, 'Federal laws respecting water rights do not give the holders of those rights a license to run roughshod over federal lands. Water rights holders have to obey the Forest Service's rules when it comes to using their conveyance rights, e.g., they have to get a special-use permit.'
Cannady, the retired backcountry manager, said his greater concern is preserving the Sawtooth Valley's vast undeveloped stretches and its endangered species, which would rest in part on how Boren oversees the agency, if confirmed.
Four federally protected fish populate the area, Cannady said, including chinook and sockeye salmon that swim hundreds of miles from the ocean to spawn — some of the longest stretches on Earth for salmon. Along the way, they travel through public and private land, including on the river that runs through Boren family property, he said.
Many areas of the Sawtooth, including on the Sawtooth National Recreation Area administered by the Forest Service, are covered by easements that occupy or cross private property.
Cannady said Boren is known locally to dislike easements, which have been at the root of some of his disagreements over the years, as with other property owners around national forests.
The nominee also doesn't have much patience for public criticism, according to several people in the area.
After residents complained publicly about a grassy airstrip he built on one of his ranches, he sued them for defamation. That case has bounced between courts, most recently awaiting resolution in an Idaho district court.
Cannady said he worries Boren, in a position of public authority, may 'do great harm' to the Sawtooth if regulations are loosened or not enforced — and that he's a little reluctant to speak out about the nominee.
'Knowing his M.O., he might sue my ass because he's got billions of dollars, and I don't,' Cannady said.
Contact this reporter on Signal at hellmarcman.49.
