Academic journal article Environmental Law

Eliminating the National Forest Management Act's Diversity Requirement as a Substantive Standard

Academic journal article Environmental Law

Eliminating the National Forest Management Act's Diversity Requirement as a Substantive Standard

Article excerpt

I. Introduction

When Congress passed the National Forest Management Act of 1976 (NFMA),(1) thereby amending the Forest and Rangeland Renewable Resources Planning Act of 1974,(2) many were hopeful that management of the nation's natural resources had entered an era of sustainability.(3) The legislation resulted in part from public opposition to clearcutting on national forest lands.(4) The statue's diversity provision(5) reflected congressional recognition of the importance of biodiversity,(6) an ecological tenet that many people today take for granted.(7)

NFMA required the development of land and resource management plans for the national forests that would "provide for diversity of plant and animal communities."(8) Despite that seemingly clear and decisive language, translating congressional intent regarding biodiversity into specific land management requirements proved problematic.(9) To satisfy the diversity mandate, the United States Forest Service ultimately promulgated implementing regulations requiring the maintenance of plant and animal community diversity.(10) The regulations also required the maintenance of viable vertebrate populations.(11)

The meanings of the terms "biodiversity" and "species viability" are not static, however. Increases in scientific knowledge since the time of regulation drafting have changed those words' definitions.(12) Additionally, a fog of agency discretion regarding the meaning of those terms has obscured the NFMA diversity mandate. To the Forest Service, the diversity provision is but one of its many goals subsumed under the umbrella of multiple-use management.(13) Moreover, courts typically defer to agency expertise on the topic.(14) This line of reasoning culminated recently in the Seventh Circuit's affirmation that NFMA does not require the Forest Service to recognize conservation biology principles in forest management planning.(15)

In Sierra Club v. Marita, environmental groups and conservation biologists unsuccessfully challenged the forest management plans for two Wisconsin National Forests.(16) The plaintiffs alleged that the failure to apply conservation biology principles in developing management plans for those forests violated NFMA's diversity mandate.(17) The court, however, affirmed the lower court's conclusions that NFMA does not dictate a particular method of providing for diversity. Rather, the statute allows the Forest Service to use any rational methodology.(18)

Current NFMA diversity regulations impose potential substantive limitations on agency discretion.(19) Recently, however, the Forest Service proposed a rule change for land and resource management planning that would allow the agency unbridled discretion in managing the national forests.(20) The proposed rule change sensibly espouses the concept of "ecosystem management"(21) and recognizes a goal of "sustainable ecosystems."(22) The revision, however, would allow the Forest Service to define the term "sustainable ecosystem" and also to establish methods for obtaining this goal.(23) The proposed rule contains no "concrete standard regarding ... diversity"(24) and includes an option that would not require the maintenance of viable populations.(25) The resulting rule thus would lack obvious limits on agency actions and would possibly foreclose meaningful public input on ecosystem management.

This Comment explores the substantive biodiversity requirements of NFMA. Part II provides a brief historical overview of forest policy culminating in the development of NFMA. Part III discusses judicial treatment of NFMA challenges to the Forest Service's diversity preservation methods in the national forests, particularly the Seventh Circuit's approach to the diversity mandate in the Marita case. Part IV analyzes the Forest Service's proposed rule change for land and resource management planning and its implications for biological diversity conservation. The Comment concludes in Part V that NFMA and its current regulations impose on the Forest Service substantive duties to provide for diversity. …

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