The Mouse That Roared: How the National Forest Management Act Diversity of Species Provision Is Changing Public Timber Harvesting

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I. INTRODUCTION

"The best laid schemes o' mice an' men .... "(1) When the poet Robert Bums wrote this now-famous line, he obviously had not considered the natural resource/land use plans for the national forests developed pursuant to the National Forest Management Act of 1976 (NFMA).(2) These plans dictate the uses, often competing and seemingly incompatible, to which the national forests may be put, such as commercial timber harvesting and wildlife protection. In passing the NFMA, Congress included a well-intentioned provision, 16 U.S.C. [sections] 1604(g)(3)(B), which sought to protect the diversity of plant and animal life in the forests,(3) yet did not specify the means of doing so.

Part I of this article introduces the main issues involving the diversity of species provision, while Part II provides an overview of the NFMA in general and the diversity provision in particular, addressing the case law and regulations which interpret it. Part III analyzes the case law specifically interpreting the diversity of species provision, and Part IV provides a conclusion.

This article focuses on diversity(4) cases from 1991 through 1996, a six-year period that ushered in a remarkable series of decisions addressing [sections] 1604(g)(3)(B). Although several details of note remain to be resolved, the jurisprudence concerning this provision has apparently settled, with the Ninth Circuit in one camp and an other circuits in the other. Only now, after this six-year period, has the importance of the NFMA diversity requirement become clear.

Although we cannot know exactly how far Congress wanted to extend diversity protection, this article will show that Congress has nonetheless provided a goal which the forest planners must reach. However, the means by which to maintain diversity in the forests have become increasingly clear, much to the chagrin of the timber industry and the United States Forest Service (USFS).(5) First, late-successional (old growth) forests must be preserved in order to meet the diversity mandate; second, controversial clearcutting harvest methods may stiff be used, but only where they protect diversity and are economically efficient (i.e. the benefits outweigh the costs). The courts have shown that these means are indeed necessary for preserving diversity.

The judicial system has specified the measures that the USFS must take to protect diversity, developing a standard that affords more protection to plants and wildlife than the "back against the wall" absolute limits(6) that trigger when a species is listed under the Endangered Species Act (ESA).(7) Although the USFS has drawn frequent criticism for apparently favoring timber sales over other resource uses, in all fairness, the agency usually has attempted to protect wildlife and plant diversity (the most prominent exception being in the northern spotted owl litigation). The main points of contention are a matter of degree (i.e. whether more must be done to protect diversity, specifically by preserving old growth forests) and over the continued reliance on clearcutting as a primary cutting method.

II. OVERVIEW

With the passage of the NFMA, Congress sought to reduce the unbridled discretion which the Forest Service historically had possessed in managing national forests.(8) The chief instrument Congress decided to use to guide the USFS was the Land Resource Management Plan (LRMP), a comprehensive document the Forest Service develops for each national forest in the nation.(9) The LRMPs bind the Service to a specific schedule of how to utilize the forest over a ten-to-fifteen-year period. These plans are taken seriously by the Service, because they strictly bind its actions in a particular national forest.(10) For the Forest Service to act in a way that "significantly" departs from the plan, it must follow a formal amendment process.(11)

The NFMA is a remarkable statute in all that it seeks to achieve and in its consideration of several other touchstone environmental laws. First, the full disclosure procedures of the National Environmental Policy Act (NEPA)(12) are incorporated into the Forest Service's development of land use plans.(13) NEPA requires the preparation of an Environmental Impact Statement (EIS), specifying the alternatives that were available before the Forest Service chose the LRMP. When actually "executing" the plan, a relatively less thorough Environmental Assessment must be made for each timber sale. Additionally, the Clean Water Act(14) is implicitly considered in the general watershed resource provisions of the NFMA, as is the Wilderness Act(15) (relative to conversion of forest lands to wilderness areas), and the Endangered Species Act (relative to plant and animal diversity and management indicator species).

The NFMA also limits the uses to which forest lands may be put. It expressly incorporates the Multiple-Use Sustained-Yield Act of 1960 (MUSYA),(16) which contains a provision critical to the diversity issue, declaring the "policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes."(17) The NFMA expressly endorses MUSYA's recitation of possible uses and adds a sixth use to be considered: wilderness.(18) Now, the Forest Service must manage each of these named resources equally; that is, timber cannot legally take overriding precedence over the other resources,(19) especially, as relevant here, wildlife and fish resources. Thus, the term "multiple use" has been employed to describe the six different purposes national forest lands must serve. In defining "multiple use," the MUSYA specifically addresses the type of balance required of the Forest Service between the different uses given above. They must be:

utilized in the combination that will best meet the needs of the American

people; making the most judicious use of the land for some or all of these

resources ... ; that some land will be used for less than all of the

resources; ... with consideration being given to the relative values of the

various resources, and not necessarily the combination of uses that will

give the greatest dollar return or the greatest unit output.(20)

The above passage becomes critical in the context of diversity, as it reveals Congress' intent to have the national forests managed not just for a "profit" by focusing on economically-quantifiable resources such as timber and range, but also to equally consider difficult-to-value resources such as the watershed and wildlife. Also, 16 U.S.C. [sections] 531 puts the Forest Service on notice that a situation may arise where not every acre of a national forest can be logged (i.e., that some uses in an area of the forest may be precluded to foster the other resources). The NFMA is quiet on how far the Service must go in considering each of the non-quantifiable resources; therefore, the courts have had to delineate more concrete standards.(21) The engine which has propelled the development of these clearer diversity standards has been the NFMA's diversity provision rather than the MUSYA, which is still regarded mostly as a silent partner.(22)

As to the specific diversity requirements of the NFMA, the critical provision commands the USFS to promulgate regulations which will govern land management plans for achieving several goals of the NFMA, among them, to:

provide for diversity of plant and animal communities based on the

suitability and capability of the specific land area in order to meet

overall multiple-use objectives, and within the multiple-use objectives of

a land management plan adopted pursuant to this section, provide, where

appropriate, to the degree practicable, for steps to be taken to preserve

the diversity of tree species similar to that existing in the region

controlled by the plan.(23)

This provision addresses two aspects of diversity. First, the requirement of providing for diversity of "plant and animal communities" can only be relaxed where the land is not suitable, or where one of the other five competing uses must take precedence for that area of the forest. Second, the section addresses diversity of tree species,(24) giving a less stringent standard requiring only the level of diversity that traditionally exists in that area, and allowing for a loosening of that requirement when attainment of it is impracticable. The courts have not interpreted what "practicable" means nor how much discretion the provision actually provides the USFS.

The Forest Service has recognized its responsibility to protect diversity in its regulations. Specifically, the Service requires that, in the planning process, "diversity of plant and animal communities and tree species" be provided for "consistent with the overall multiple-use objectives of the planning area," and requires the agency to maintain a databank of species inventory for the purpose of evaluating diversity.(25) The Service has defined diversity as "[t]he distribution and abundance of different plant and animal communities and species within the area covered by a land and resource management plan."(26) The critical substantive regulatory mandate that directly interprets the NFMA's diversity provision requires that:

[m]anagement prescriptions, where appropriate and to the extent practicable,

shall preserve and enhance the diversity of plant and animal communities

... so that it is at least as great as that which would be expected in a

natural forest and the diversity of tree species similar to that existing

in the planning area. Reductions in diversity of plant and animal

communities and tree species from that which would be expected in a natural

forest, or from that similar to the existing diversity in the planning area,

may be prescribed only where needed to meet overall multiple-use

objectives.(27)

Remarkably, no court has decided whether this regulation is an acceptable interpretation of the NFMA diversity provision, a claim that one might expect of timber-dependent parties. Also, the Forest Service has never sought to change this regulation. Both of these facts strongly suggest that the NFMA diversity provision indeed commands the preservation of existing species diversity and its required habitat.(28) This mandate can only be abridged when another resource use takes precedent for that area of the forest, in keeping with a balance of the six multiple uses. Finally, the Service has acknowledged by its regulations(29) that preserving a sufficient quantum of habitat is a major component of maintaining species (as years of ESA litigation have shown).(30) However, as alluded to earlier,(31) litigation has centered on the degree to which diversity must be protected against competing uses such as timber harvesting.

A. Judicial Interpretation of the NFMA

The path from 1976, when the NFMA was born, to the point where the courts could finally review a national forest plan on its merits has been a long one. Following the Act's command(32) to promulgate numerous regulations, the Forest Service finally had these regulations in place by 1980. Then came the lengthy draft EIS process(33) and development of draft LRMPs for each national forest,(34) taking five to six years for most forests. Following the requisite public comment period,(35) final EISs and LRMPs for most forests were issued by 1989. Although the direction the agency had chosen (within the NFMA's substantive guidelines) had obviously been disclosed with the passage of each final LRMP, the Forest Service formally handed down Records of Decision (ROD) for each final EIS. Each ROD officially declared which alternative plan described in the EIS the agency had selected. Most were issued by 1989.

Only then was the stage set for judicial review of the LRMPs for their substantive compliance with the NFMA diversity provision. Plaintiffs protesting the plans (both environmentalists and timber companies) had to run the gauntlet of legal barriers which might prevent review on the merits, such as exhaustion of administrative remedies and standing.(36) Also, claims were frequently sidetracked by such peripheral issues as the propriety of injunctions, interlocutory appeals of injunctions, and intervenor appeals,(37) which further postponed review of plans on the merits for many of the cases discussed below until 1994.

Review of claims of NFMA violations has been almost exclusively within the domain of the federal circuit and district courts. The Supreme Court has reviewed only one plan, that for the Six Rivers National Forest in California.(38) In this case, the Court examined only the First Amendment rights of adjacent Indian tribes, concerning the Forest Service's planned harvesting of timber in an area of the forest the tribes considered holy.

The Court did not address the standard of review for forest plans, and the lower court examined only the standard for EISs under NEPA.(39) The seminal Rio Grande(40) case(41) was the first to declare the standard of review for LRMPs (and the first to review a final plan on its merits), finding that the Administrative Procedure Act's "arbitrary and capricious" standard(42) for reversing agency action applied.(43) The district court found that, as the NFMA had no specific provision for judicial review, the APA applied by default.(44) To date, no subsequent case has disputed this standard.

Because the Supreme Court has not provided guidance for the lower courts in deciding just how far the USFS must go to "provide for diversity" as required by the NFMA, the rulings of the various circuit courts of appeal and district courts have covered the spectrum, from general deference to the agency as "non-arbitrary action," to rejection of management plans by meticulous judicial review of LRMPs. Most of these cases have arisen in the west (more forests), and, with the exception of Rio Grande, have been decided since 1993.

B. Factors Affecting Diversity Provision Analyses

This section examines the "front lines": the cases which have delineated the reach of the NFMA's diversity provision. Several factors can be discerned from these complex cases (with equally complex procedural histories, as noted above) which affect the reach of [sections] 1604(g)(3)(B). First, the specific agency action …