The Great Experiment That Failed? Evaluating the Role of a "Committee of Scientists" as a Tool for Managing and Protecting Our Public Lands

Pasko, Brian Scott, Environmental Law

One thing is certain: forestry officials will never again practice their profession without public involvement and support. If they fail to recognize the need for public acceptance of all they do on both public and private lands, they will I continue to wear a black hat, a far cry from a half century ago. (1)

William E. Towell Retired forester and former head of the American Forestry Association

Perhaps part of forestry's fundamental failing of the last three decades has been to remain too enamored of a scientific/rational view of forestry at the expense of a social/political perspective. (2)

Steven E. Daniels Assistant Professor of forest policy at Oregon State University

I. INTRODUCTION

Tall trees, beautiful mountain vistas, cascading waterfalls, wild and elusive fauna, and economic prosperity--all are visions and ideas conjured by the existence of our nation's lands. These public places provide a rugged backdrop for the mythology that shrouds America's colorful history: the western cowboy, hard working forester, and even those who sought their fortune in gold on the frontier. Today, public lands remain important cultural and economic components of this country. (3) They take many forms and are managed by a patchwork of government agencies. (4) These places serve as spiritual sanctuaries, hunting and subsistence grounds, wildlife refuges, grazing and ranching lands, recreational and aesthetic paradises, watershed preservation districts, and mining and timber harvesting headquarters. (5) This wide assortment of uses and the value systems they reflect often come into conflict, and such friction has turned our public lands into political and literal battlegrounds--filled with blood, sweat, and tears. (6)

This discord affects more than the individuals who assert their rights to use and possess public property; it also adversely affects the land reserves. The health of America's public lands declined substantially during the second half of the twentieth century. (7) Today, overgrazing continues to introduce harmful invasive-exotic plants, (8) clear-cutting of old-growth forests threatens endangered animals, (9) single species replantings on harvested areas decrease biodiversity, (10) and ongoing decades of fire suppression create dangerous conditions for both humans and wildlife. (11) Additionally, existing uses of the country's public lands may add to the demise of the global ecosystem; forest fragmentation, caused by extensive road building and cutting, allegedly contributes to what is presently the greatest mass extinction event in our planet's history since the disappearance of the dinosaurs. (12)

The agencies that oversee America's public lands are in the midst of a management crisis. In particular, the United States Forest Service (Forest Service) struggles to appease the demands of a citizenry that increasingly calls for more recreational areas and wildlife habitat preservation, while concurrently trying to carry forth its mission to harvest forest resources. (13) On its face, the Forest Service seems to be losing this battle. During the late 1980s, increased knowledge of the aforementioned ecological conditions and the declining health of the federal government's property shed doubt on the management and expressed purposes of public lands, and paved the way for significant decreases in timber harvests on our national forests. (14) For instance, in 1987 the Forest Service reported a record timber sale of 12.7 billion board feet. (15) Less than a decade later, sales had plummeted to a mere 2.9 billion board feet--largely due to public concern over the preservation of endangered species and their habitats. (16) The current economic, cultural, and ecological crises that these areas face are cause to reconsider current management strategies. (17)

All the same, this is not a new dilemma. For over a century, Congress has wrestled with various methods of managing the public lands. (18) However, in the late 1970s the legislature settled on two primary statutes that attempt to accomplish this end: the Federal Land Policy and Management Act (FLPMA) (19) and the National Forest Management Act of 1976 (NFMA). (20) These laws, in addition to more than 200 other statutes, apply to lands controlled by the Forest Service and the Bureau of Land Management (BLM) (21) which oversee the bulk of the property owned by the United States Government. (22) Both FLPMA and NFMA authorize their respective agencies to promulgate regulations regarding the management of public lands that fall under their jurisdiction. (23)

With NFMA, however, Congress undertook a great experiment. This statute required the Forest Service to establish a "Committee of Scientists" to advise and critique the agency in the adoption of planning and management regulations that concern the National Forest System. (24) NFMA also authorizes the creation of future Committees of Scientists, as deemed necessary by the Secretary of Agriculture, to review and revise existing regulations. (25)

The Forest Service convened the original Committee of Scientists in April 1977, and the Committee took an active role in developing the Forest Service regulations. (26) The result was a highly specific, complex set of rules that ultimately led to massive controversy and legal gridlock. (27) Thus, in 1997 the Secretary of Agriculture established a second Committee of Scientists to address the difficulties that arose from the original regulations. (28) This new Committee was charged to provide ideas for improving the planning and management process that governs the various uses of the national forests. (29) In November 2000, the Forest Service promulgated new regulations that reflect the second Committee's efforts. (30) These new rules are considerably less detailed and offer much more discretion to forest managers. (31) As a result, the rules may exceed the authority that NFMA provides to the Forest Service and will likely result in more litigation. (32) Shortly after the election of President Bush and the subsequent appointment of Ann Veneman as his Secretary of Agriculture, however, the Forest Service issued an interim final rule to extend the adoption of the November 9, 2000 regulations for one year. (33) Some environmental organizations allege that by placing the November regulations on hold, President Bush's administration seeks to eliminate the NFMA requirements to maintain species viability and to exempt forest plans from the consultation requirements of the Endangered Species Act. (34) Such groups insist that the decision not to implement the November 9, 2000 regulations is arbitrary and capricious because the regulations were developed in cooperation with a Committee of nationally known scientists and after expending considerable resources. (35) Only time will tell whether the Bush administration will respect and consider the input of scientists in determining the future of public lands management.

This Comment examines the apparent failure of the two Committees of Scientists to develop a strong system for national forest planning and management. Part II discusses the history of American forest management, the creation of NFMA, and explores the congressional intent behind the Committee of Scientists. Part III examines the work of the original Committee and the outcomes it achieved. Part IV explores the changing attitude toward the role of public lands caused by scientific advancement, increased recreational interest, and the environmental movement. This change in public opinion led to the creation of a new style of forest management, formation of the second Committee of Scientists, and the adoption of new planning regulations for the national forests that are discussed in Part V. This Comment concludes that future committees of scientists are likely to be ineffective unless policy makers respect the proper role of science in forming forest policy. It suggests that Congress should permanently establish a series of small committees to review the routine decision making efforts of public land managers and argues that Congress must take adequate steps to redefine the purposes of public lands before successful management of these lands can be accomplished.

II. THE HISTORY OF FOREST MANAGEMENT

National forest management began in the late 1800s. Even at this early stage in the nation's history, harvesters were distressed over depleting timber supplies and forest quality. (36) This concern led to the passage of the Creative Act of 1891, (37) which authorized the president to set aside forested tracts of government land as timber reserves. (38) However, the Creative Act did not establish a regulatory scheme for managing these federal lands. Consequently, in 1897, Congress passed the Organic Administration Act of 1897 (Organic Act), (39) which established national forests for the purpose of "securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States." (40) Over a century later, the Organic Act remains as the foundation for establishing and managing our national forests.

The General Land Office in the Department of the Interior briefly administered the national forests. (41) In 1898, Gifford Pinchot became the Chief of the Department of Agriculture's Division of Forestry and set the stage for American forest policy as it stands today. (42) In 1905, Pinchot convinced Congress to adopt the Transfer Act, (43) which gave jurisdiction over the national forests to the Department of Agriculture. (44) Two years later, he further persuaded Congress to create the Forest Service, and Pinchot became the first Chief Forester. (45) Pinchot promoted an active form of management and held a utilitarian view of the national forests that sought to maximize the production of timber commodities. (46) An advocate of planning on both private and federal lands, he required plans for all national forest timber sales to ensure that harvesters did not overcut the reserves. (47) When Pinchot left the Forest Service in 1909, scientific planning had become a fundamental component of forest service ideology. (48)

A. The Clear-Cutting Dilemma

Following from Pinchot's lead, during the first half of the twentieth century, Forest Service planning efforts sought to protect watersheds, engage in responsible timber harvest, and provide for recreation. (49) During the 1930s the words "forestry" and "conservation" were nearly synonymous. (50) William Towell, former head of the American Forestry Association, recalls, "[a]s a young forester in those Depression years I wore a white hat. Very few people understood forestry, but most respected the forester." (51) More recently, however, public attitudes toward the Forest Service have diminished. (52)

Before the 1950s, Forest Service management was relatively uncomplicated because the varying uses of the national forests rarely came into conflict. (53) After World War II, however, preservationists who sought to protect sections of the national forests for uses other than timber harvest called into question Forest Service management policies. (54) This movement led to the passage of the Multiple-Use, Sustained-Yield Act of 1960 (MUSYA), (55) which supplemented the purposes for national forests, as established by the Organic Act, to include the preservation of non-commodity resources. (56)

Nevertheless, the increased demand for timber that resulted from World War II led the Forest Service and the timber industry to experiment with a new method of increasing timber production: (57) clear-cutting emerged as an "essential tool" for meeting harvesting goals. (58) Due to its environmental and aesthetic consequences, the increased use of this management practice raised an uproar throughout the country beginning in the 1960s, and all but ruined the credibility of the Forest Service. (59) During the late 1960s and early 1970s, the West Virginia legislature adopted several resolutions calling for the investigation of timber harvesting practices in the Monongahela National Forest, and Senator Jennings Randolph of West Virginia requested a clear-cutting moratorium within his state's national forests. (60) Likewise, in Montana, Senator Lee Metcalf responded to public outcry and asked Professor Arnold Bolle of the University of Montana to commission a study on clear-cutting in the Bitterroot National Forest. (61) The study criticized the Forest Service for its "overriding concern with timber production" (62) and general lack of concern for aesthetic and non-timber values. Further, the study challenged the Forest Service's compliance with MUSYA. (63) This report and the sentiments that led to it set the stage for eight days of oversight hearings regarding the practices of the Forest Service, the first of which centered around "the abuse of clear-cutting as a management tool." (64)

While Congress held hearings in Washington D.C., however, citizens opted to take matters into their own hands. Some environmentalists convinced the newly formed Council on Environmental Quality (65) to prepare was on President Nixon's desk and ready to be signed, but he dropped the initiative after the timber industry discovered its existence. (67)

Having failed with the executive branch, citizen groups turned to the judiciary. In 1975, the West Virginia Division of the Izaak Walton League of America and other conservation organizations convinced the Fourth Circuit Court of Appeals that clear-cutting was illegal. (68) The court upheld an injunction against three proposed timber sales in the Monongahela National Forest, finding that under the Organic Act, trees must reach physiological maturity, not economic maturity, to be harvested. (69) This ruling effectively prohibited clear-cutting and significantly restricted other techniques used by the Forest Service to harvest timber. (70)

The Monongahela case, however, was only the tip of the iceberg. Less than a month after that decision, the federal District Court of Alaska issued a similar injunction, also based on the provisions of the Organic Act, and stated that it was up to Congress, not the courts, to decide whether clear-cutting was an appropriate tool for national forest management. (71) The situation that citizens had tried to take into their own hands had rebounded squarely back into Congress's court--setting a controversial stage for the passage of NFMA.

B. Passage of the National Forest Management Act

"The National Forest Management Act of 1976 was born of conflict." (72) The statute was triggered as a response to the fervid controversy over clear-cutting, but the underlying issue it sought to resolve was, in fact, the desire to completely overhaul the Forest Service's planning procedures. (73) The result was an odd mix of compromises. The law expressly authorized increased harvests and future clear-cutting, (74) but also set guidelines for preserving ecological and aesthetic values and promoting the diversity of plant and animal communities. (75)

During the 1970s, many Americans expressed great dissatisfaction with the Forest Service's response to public input. (76) As a result, Congress designed NFMA to restrict the agency's discretion over land and resource management. (77) The Act established a formalized planning process by requiring the creation of land and resource management plans (LRMPs). (78) Moreover, these plans must involve the public (79) and be produced by an interdisciplinary team that makes decisions based on inventories of forest resources. (80)

Nevertheless, Congress believed that even the LRMP requirement left the Forest Service with too much authority to govern the planning process and determine its outcome. (81) Experience had shown that the Forest Service was hesitant to incorporate non-timber oriented values into its management ideology, (82) and Congress recognized the need to base forest management decisions on sound science. (83) However, Congress lacked the ability to specify detailed requirements in NFMA due to political constraints; (84) as a result, Congress sought an alternative method of holding the Forest Service accountable as the agency went about the process of promulgating regulations under NFMA. (85)

C. Establishing a Committee of Scientists

Senator Lee Metcalf suggested the establishment of a Committee of Scientists to reduce the concern over "the ability and willingness of the Forest Service to draft the comprehensive regulations envisioned by NFMA."(86) Congress adopted Senator Metcalf's idea in response to the perceived public distrust of the Forest Service and as a method by which to limit the authority delegated to the agency.(87) The Committee would ensure that the agency implemented NFMA in a way consistent with congressional intent(88) and based key management decisions on scientific fact, not political and economic coercion.(89) Senator Metcalf envisioned that a group of "wise men" from outside the Forest Service would provide a means to evaluate the agency's proposed regulations. (90) Congress agreed that a body of scientists would encourage the inclusion of a somewhat different perspective to the regulations--especially given the Forest Service's prior unwillingness to "incorporate science into management in a serious way." (91)

The final language of NFMA established the Committee of Scientists' mission:

 
   In carrying out the [development of NFMA regulations], the Secretary of 
   Agriculture shall appoint a committee of scientists who are not officers or 
   employees of the Forest Service. The committee shall provide scientific and 
   technical advice and counsel on proposed guidelines and procedures to 
   assure that an effective interdisciplinary approach is proposed and 
   adopted. The committee shall terminate upon promulgation of the regulation, 
   but the Secretary may from time to time, appoint similar committees when 
   considering revisions to the regulations. The views of the committees shall 
   be included in the public information supplied when the regulations are 
   proposed for adoption. (92) 

Congress took strides to be as detailed as possible in establishing how the NFMA regulations would be promulgated, but such specificity was reined in by the need to produce an act that was passable. (93) NFMA required the establishment of the initial Committee of Scientists, but left the establishment of future Committees to the discretion of the Secretary of Agriculture. (94) While the text of the statute expressly charged the Committee to provide "advice and counsel" to the Forest Service and assure an "effective interdisciplinary approach" in developing the NFMA regulations, Congress failed to adequately define these terms and thus the actual role that the original Committee was to play in drafting the regulations was not well understood. (95) The original Committee was the first of its kind--a true experiment that took on an unexpected life of its own. (96) Regardless of what Congress actually intended, the committee members eventually played a substantial role in drafting and critiquing a complex planning process where no uniform systematic process had existed before. (97) Looking down nearly twenty-five years after Congress's proverbial leap of faith, the question that remains is whether the legislature's goals were fulfilled. Part III of this Comment argues that they were not.

III. GETTING AN INCH AND TAKING A MILE: THE COMMITTEE OF SCIENTISTS

The composition of the Committee was left solely to the discretion of the Secretary of Agriculture, (98) and individuals and interest groups "deluged" the Forest Service with requests to appoint certain …

Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Article title: The Great Experiment That Failed? Evaluating the Role of a "Committee of Scientists" as a Tool for Managing and Protecting Our Public Lands. Contributors: Pasko, Brian Scott - Author. Journal title: Environmental Law. Volume: 32. Issue: 2 Publication date: Spring 2002. Page number: 509+. © 1999 Lewis & Clark Northwestern School of Law. COPYRIGHT 2002 Gale Group.

This material is protected by copyright and, with the exception of fair use, may not be further copied, distributed or transmitted in any form or by any means.