Chapter 4 Forest Planning: Shifting Ecological and Legal Bases for National Forest Management
| Jurisdiction | United States |
MURRAY FELDMAN is a partner with Holland & Hart LLP in Boise. He represents project developers, state and local governments, landowners, and others in NEPA, Endangered Species Act, public lands, and general environmental litigation and administrative matters. He also represents parents under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. Murray co-edited of the 2016 Idaho Book of the Year, Idaho Wilderness Considered. He co-authored "NEPA's Scientific and Information Standards—Taking the Harder Look" in the 2018 RMMLF Journal, and was the Public Lands program chair for the 65th Annual Institute. He was counsel of record for an amicus supporting certiorari in U.S. Forest Service v. Cowpasture River Preservation Association (140 S. Ct. 1837 (2020)), concerning the authority of the Forest Service to grant a Mineral Leasing Act right-of-way beneath the Appalachian National Scenic Trail, for which the Supreme Court ruled in favor of the Forest Service. Murray received his J.D. from the University of California, Berkeley School of Law, his M.S. degree from the University of Idaho College of Natural Resources, and a B.S. from the UC Berkeley College of Natural Resources where he attended the Forestry Summer Program in Plumas County and worked on a timber cruising crew on the Plumas National Forest. He's written and worked on national forest issues for over 30 years, an interest that began in his teens when he first visited the San Gorgonio Wilderness on the San Bernardino National Forest in Southern California with his Scout troop.
ALISON C. HUNTER is a senior associate with Holland & Hart. She counsels clients on environmental, natural resources, project permitting, and workplace health and safety matters. She also represents clients before regulatory agencies and state and federal courts in these areas. Alison represents clients in several industry areas, including mining, manufacturing, forests and public lands, utilities, agribusiness, and energy. Alison is a long-time resident of Idaho, first coming to Idaho as a wrangler at a guest ranch located in the Frank Church Wilderness Area in the Salmon-Challis National Forest. Alison counsels clients on environmental, natural resources, project permitting, and workplace health and safety matters. She also represents clients before regulatory agencies and state and federal courts in these areas.
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I. Introduction and Scope
II. The National Forests and Their Management
A. The National Forest System
B. The National Forest Management Act of 1976
III. NFMA Planning Regulations
A. History and Development of the 1982 Regulations
B. The 2000 Regulations
C. The 2012 NFMA Planning Rules
D. 2016 Revisions to the 2012 Rules
IV. The Pre-Decisional Objection Process for Forest Plan, Revision, and Amendment Actions
A. Part 219 Pre-Decisional Administrative Review Objection Process
B. Participating in the Forest Planning Process and Pre-Decisional Objection Process
V. Judicial Review of Issues and Implementation Under the 2012 Rules
A. Standard of Review
B. Issues Being Addressed in Litigation
C. Some Case Law Examples
VI. Perspectives on the Transition in the Regulations
VII. Conclusion
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I. Introduction and Scope
Ecological succession is the change in the structure of an ecosystem over time, sometimes leading to a self-sustaining climax community for an extended period absent disruptive external forces such as fire, disease, or climate change. Applying this analogy to the legal structure of the National Forest Management Act (NFMA) planning regulations, that structure has changed significantly over time due to the external forces of political, societal, and ecological changes. Under these influences, the national forest planning regulations have shifted since their 1982 inception toward an increased emphasis on restoring and maintaining the ecological integrity of national forest system lands for ecosystem services (such as endangered and threatened species refugia and watershed protection) and other amenity emphases. At the same time, the original congressional goal of moving forest management out of the courts has been severely attenuated—court battles over forest planning and management decisions continue, with the latest iteration of the NFMA planning regulations now being tested in litigation.
This paper summarizes the legal and ecological evolution of the forest planning regulations since NFMA's 1976 passage. It highlights the current set of regulations adopted in 2012 and 2016, and the role those regulations play in the ongoing revision and amendment of the forest plans for each of the 174 units of national forests and grasslands comprising the 193 million acres of the United States national forest system. Additionally, the paper addresses the mechanics of the administrative pre-decisional objection process for challenging forest plan adoption and decisions revision. It also considers some of the practical implications of the planning regulations for the ongoing plan amendment and revision processes, as well as for project and activity permitting under NFMA where the Forest Service's approval of those
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activities must be consistent with the applicable forest plan. Current case law issues are also addressed.
II. The National Forests and Their Management
A. The National Forest System
The United States national forest system contains a wealth of commodity and amenity resources. Sawtimber supplies, recreational opportunities, wilderness areas, wild and scenic rivers, grazing lands, important watersheds, fish and wildlife habitat, and minerals are all found within these federal land reserves. The national forests are managed under a milieu of statutory and regulatory authorities ranging from the Forest Reserve Act of 1891, the 1897 Organic Act, and the 1960 Multiple-Use Sustained Yield Act, to the 1976 National Forest Management Act.1
In the western United States, the national forests were largely designated as reservations from the public domain of federal lands pursuant to the 1891 Forest Reserve Act and 1897 Organic Act. In 1891, Congress authorized the President to "set apart and reserve . . . public land bearing forests . . . as public reservations."2 In the national forest Organic Administration Act of 1897, Congress provided that "[n]o national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber."3
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The roots of the national forest system in the eastern United States trace to the 1911 Weeks Act. That Act authorized the federal acquisition of private forest lands there to be "permanently reserved, held and administered" by the Secretary of Agriculture "as national forest lands."4 From their inception, the national forests, administered by the Secretary of Agriculture following the 1905 Forest Transfer Act, were to be managed for "multiple use," diverse public purposes including commercial activities such as timber harvest, mining, grazing, and energy development.5
In understanding the national forest system, it is helpful to distinguish it from the national park system. Congress established the national park system within the Department of the Interior to preserve, not develop, those federal lands and resources. The Park Service's preservation mission is very different from the Forest Service's utilitarian mission.6 In 1916, Congress provided that the "fundamental purposes of the said parks, monuments, and reservations . . . is to conserve the scenery and the natural and historic objects and the wildlife therein and to provide for the enjoyment of the same . . . unimpaired for the enjoyment of future generations."7 Park lands are to be preserved and, where possible, enjoyed.
B. The National Forest Management Act of 1976
NFMA was enacted in large part in response to public concerns in the 1960s and 1970s over Forest Service land management practices, especially clearcut timber harvesting in
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Montana's Bitterroot National Forest and West Virginia's Monongahela National Forest. In West Virginia Division of the Izaak Walton League v. Butz,8 the court held that the Forest Service could harvest only "dead, matured, or large growth trees" as specified in the Organic Act.9 This decision prevented the use of clearcutting, thinning, and other vegetative management techniques on the national forests. These restrictions imposed a serious constraint on Forest Service timber management programs, especially as environmental plaintiffs moved to apply the precedent in other areas.10 Faced with this timber management "crisis," Congress responded with NFMA. Rather than being mere remedial legislation, NFMA has been described as "a bitterly-contested referendum on Forest Service timber harvesting practices."11
NFMA directs the Forest Service to develop land and resource management plans for each unit of the national forest system. These forest plans provide broad management direction and general planning guidelines for up to 15 years for all of the national forests, and they are designed to provide for coordinated use and sustained yield of all national forest resources. The Forest Service has broad discretion in developing forest plans, subject to its overarching mandate to manage for multiple use and sustained yield. "NFMA embraces concepts of 'multiple use' and 'sustained yield of products and services,' obligating the Forest Service to 'balance competing demands on national forests, including timber harvesting, recreational use, and
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environmental preservation.'"12 The Forest Service has broad discretion in balancing these competing objectives.
The NFMA gives the Forest Service flexibility because the Service has many different...
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