CHAPTER 4 FEDERAL LAND-USE PLANNING AND ITS IMPACT ON RESOURCE MANAGEMENT DECISIONS
| Jurisdiction | United States |
(Nov 1997)
FEDERAL LAND-USE PLANNING AND ITS IMPACT ON RESOURCE MANAGEMENT DECISIONS
Ballard Spahr Andrews & Ingersoll
Denver, Colorado
TABLE OF CONTENTS
I. INTRODUCTION
II. ORIGINS OF FEDERAL LAND USE PLANNING
A. Early Efforts to Coordinate Resource Management Decisions
B. Multiple Use and the Evolution of Interdisciplinary Resource Management on the Federal Lands
III. CONGRESSIONAL RECOGNITION OF FEDERAL LAND USE PLANNING
A. The National Forests
B. BLM Lands
IV. THE SUBSTANTIVE NATURE OF FEDERAL LAND USE PLANS
A. The Geographic Scope of RMPs and LRMPs
B. The Multiple-Use Mandate
C. What Do LRMPs and RMPs Decide?
1. Plans Make Only Zoning/Suitability Decisions
2. Consistency Requirements
3. The Problem of Creeping Restrictions and Multi-Level Reviews
D. Substantive Requirements for National Forest System Plans
1. General Requirements
2. Timber Harvesting Guidelines and Restrictions
3. Biodiversity Requirements
4. Mineral Leasing Decisions
5. Roadless Areas and Wilderness Management
E. Substantive Requirements for Bureau of Land Management Plans
V. THE FEDERAL LAND USE PLANNING PROCESS
A. The Planning Cycles and Status of Agency Planning Efforts
B. The Public Process
1. BLM Lands
2. National Forest System Lands
C. The Need For Compliance With Other Federal Environmental Statutes
1. The National Environmental Policy Act
2. The Endangered Species Act
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VI. CHALLENGING FEDERAL LAND USE PLANS
A. Administrative Challenges
1. BLM RMPs
2. Forest Service LRMPs
B. Judicial Review
1. Exhaustion of Administrative Remedies
2. Standing
a. Injury-in-Fact
b. Traceability
c. Redressability
d. The Zone-of-Interests Test
3. Ripeness
VII. THE TREND TOWARD REGIONAL OR ECOSYSTEM-BASED PLANNING
A. Ecosystem Management and Expanded Planning Efforts
B. Defining the Boundaries of Agency Authority
C. Examples of Regional Planning
1. The Greater Yellowstone Ecosystem
2. The Spotted Owl and the Forest Ecosystem Management Assessment Team
3. The Interior Columbia Basin Ecosystem Management Project
VIII. CONCLUSION
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I. INTRODUCTION
Congress has directed that the bulk of our federal lands — the national forests1 and Bureau of Land Management ("BLM") lands — be managed for multiple uses and sustained yield. Under the multiple-use doctrine, the United States Forest Service ("Forest Service") and BLM have extremely broad discretion to determine the appropriate balance of resource uses and preservation.
Since 1976, pursuant to the National Forest Management Act ("NFMA") and the Federal Land Policy and Management Act ("FLPMA"), Congress has required that the Forest Service and the BLM make their multiple-use management decisions pursuant to interdisciplinary land use plans prepared by the agencies. Both NFMA and FLPMA direct the land management agencies to consider public input and sound science when preparing their land use plans. These plans generally serve to limit the broad discretion that the Forest Service and BLM otherwise possess under their multiple-use mandates by providing various management guidelines and standards that future resource management decisions must comply with. These guidelines and standards may create judicially enforceable requirements which limit the options for future utilization of public land resources for many years. The party who sits on the sidelines during the planning process, only to find that their desired project is inconsistent with the governing plan, risks substantial delays and possible prohibitions in obtaining the necessary approvals from the federal land managers.
The BLM and Forest Service are currently in the process of completing and revising the first generation of plans that were mandated by NFMA and FLPMA. Moreover, the federal land management agencies are increasingly turning to broader planning efforts to further incorporate the notions of ecosystem management. The federal land-use plans currently being prepared or revised are likely to significantly impact public land resource management decisions over the next decade.
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Numerous judicial decisions giving substantial deference to Forest Service and BLM planning decisions demonstrate that public land users cannot count on the courts to monitor the resource allocations made in federal land use plan. Consequently, it is essential that all parties with an interest in the use or protection of public land resources participate in the planning process to ensure that the governing land use plans are not skewed to favor only a few proactive interest groups.
In order to provide a platform for effectively evaluating and participating in these ongoing planning efforts and for influencing the planning decisions that will guide future federal land management, this paper will provide a general overview of the federal land use planning process. The paper will begin with a brief summary of the historical origins of planning on the federal lands to provide a backdrop for interpreting the current planning landscape. The statutory and regulatory mandates that govern Forest Service and BLM planning efforts will then be examined in detail. The substantive requirements for Forest Service and BLM plans will be summarized, focusing on the types of decisions that the agencies make in these plans and how those decisions affect on the ground management decisions. The procedural requirements for adopting and revising federal land use plans will then be discussed to provide an understanding of the opportunities for participating in the process and a basis for evaluating the adequacy of agency decisions adopting or revising land use plans. Potential administrative and judicial opportunities for challenging defective plans will then be summarized. Finally, the paper will briefly explore the ways in which federal land managers are increasingly expanding the scope of their planning efforts, beyond current statutory mandates, in an effort to implement an ecosystem-based approach to federal land management planning.
II. ORIGINS OF FEDERAL LAND USE PLANNING
A. Early Efforts to Coordinate Resource Management Decisions
Forest Service land use planning efforts date back to the early years of this Century, when the Service was in the hands of Gifford Pinchot, and single resource plans were prepared to administer timber sales and grazing permits.2 The Forest Service began planning for recreation uses after World War I.3 In 1933, the Forest Service completed an extensive study of the national forests at the request of Senator Royal Copeland of New York.4 The Copeland Report called for a national plan for managing the national forests that would provide for controlled timber harvesting, fire and disease protection, watershed protection, grazing,
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recreation and wildlife management; however, it had little immediate impact on forest management approaches.5
The BLM was created in 1946 when the functions of the Department of the Interior's Grazing Service and General Land Office were consolidated into a single agency.6 However, other than the Taylor Grazing Act of 1934,7 the agency had little statutory land management guidance, and the agency dedicated most of its efforts toward implementing various federal land disposal laws and managing grazing districts.8 It would be decades before the BLM took a significant stab at long-term interdisciplinary resource management planning.
B. Multiple Use and the Evolution of Interdisciplinary Resource Management on the Federal Lands
Following World War II, with increasing pressures for competing national forest uses, the Forest Service began to take a more integrated approach to planning in order to reduce conflicts between competing national forest demands.9 After the passage of the Multiple-Use Sustained-Yield Act ("MUSYA") in 1960,10 the Forest Service attempted to implement its new multiple-use mandate and incorporate wildlife and recreation into its resource planning efforts by preparing multiple-use management guidelines and plans at the national, regional, and local levels.11 In the late 1960s, the Forest Service began to utilize zoning at the forest district level in order to coordinate resource uses on the ground.12
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Around the same time, in response to the Classification and Multiple Use Act of 196413 , the BLM began implementing a limited planning scheme.14 These early plans, called Management Framework Plans or MFPs, were not based on a true interdisciplinary approach, but were an initial attempt by BLM to balance completing resource uses.15 Many of these MFPs are still in place where BLM has yet to complete a FLPMA plan.16
III. CONGRESSIONAL RECOGNITION OF FEDERAL LAND USE PLANNING
Despite early administrative efforts at resource management planning, Congress acted in 1974 and 1976 to require more comprehensive, long-term planning on the national forests and BLM lands.
A. The National Forests
The Rangeland Renewable Resources Planning Act of 1974 ("RPA")17 requires the Secretary of Agriculture to prepare periodic national level inventories of renewable surface resources within the National Forest System, predictions of renewable surface resource demand, and a program establishing resource production levels on National Forest System lands.18 Moreover, RPA requires the Secretary of Agriculture to prepare forest land and resource management plans ("LRMPs").19 Although the RPA was initially silent as to the contents and format of LRMPs, Congress provided additional guidance two years later in NFMA.
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A primary impetus for NFMA was Congress' desire to reverse judicial decisions, which severely limited timber harvesting on the national forests.20 However, NFMA also established numerous procedural and substantive requirements designed to protect and...
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