Eliminating the National Forest Management Act's diversity requirement as a substantive standard.

• Author: Weis, Julie A.

1. 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. However, when reviewing the performance of these duties, and when faced with ecosystem science issues that even ecologists do not fully understand, courts typically defer to the Forest Service's expertise. Adoption of the proposed rule would divest the diversity mandate of substantive meaning.

2. A Short History of Forest Management

   Legal regulation of forest practices in North America predates the birth of the United States.(26) Early forest regulations addressed such topics as fire and the preservation of live oak, a resource needed for ship building.(27) Congressional involvement in forest regulation began in earnest in the latter part of the nineteenth century,(28) and the first proposal to set aside forested lands for preservation appeared in 1872.(29) Increasing support for forest conservation led to the passage of the 1891 Creative Act,(30) which marked the beginning of the national forest system.(31)

   1. Forest Regulations Before 1976

      The Creative Act authorized the President to create national forest reserves by withdrawing forested lands from the public domain.(32) However, the Act failed to provide for regulation of those reserved lands. In 1897 Congress passed the Organic Administration Act (Organic Act),(33) which established standards for managing the forest reserves. Additionally, the Organic Act announced the purposes for which the national forests were established: "to improve and protect [forested lands] ... or [to] ... secur[e] favorable conditions of water flows, and ... a continuous supply of timber ...."(34)

      The Organic Act was the legal foundation for forest management in the United States until 1960 when Congress passed the Multiple-Use Sustained-Yield Act (MUSYA).(35) During that time, public demands on national forests outpaced resource planning efforts.(36) The Forest Service attempted to alleviate the problem by developing land use plans, but the content of those plans was wholly discretionary and extremely variable.(37) Congress acknowledged the problem of competing uses by codifying in MUSYA additional purposes for establishing national forests.

      The purposes listed in MUSYA supplemented those set forth in the Organic Act and included "outdoor recreation, range, timber, watershed, and wildlife and fish."(38) While the Act required the Forest Service to manage national forests for multiple uses,(39) it lacked a substantive standard to guide decision making. The Act simply required that the Forest Service give the various resources "due consideration" when managing national forest lands,(40) a directive that the agency translated into increased management planning efforts.(41) As a result, while MUSYA appropriately recognized the validity of multiple uses for forest resources, its broad language provided no concrete guidelines for resolving land-use disputes among various interest groups.(42) The Act also failed to provide a yardstick by which to measure agency compliance with the goals of the legislation.(43)

      Beginning in the mid-1960s, the public and Congress became increasingly concerned over excessive clearcutting on national forests.(44) These concerns led to the 1970 Bolle Report, which was a critical analysis of the Forest Service's land management practices.(45) The Bolle Report in turn led to the 1971 Senate investigatory hearings on clearcutting, the so-called "Church Hearings."(46) Like the Bolle Report, the Church Hearings criticized the Forest Service's overreliance on clearcutting and overemphasis on timber production.(47) The resulting Church Guidelines, though never enacted,(48) proposed significant limits on timber harvesting, "including the size of clearcuts, a regeneration requirement, and protection for soil and watersheds."(49)

      The last major piece of forest management legislation enacted prior to NFMA was the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA).(50) RPA was an attempt to improve forest management policy by requiring the Forest Service to plan on a nationwide basis.(51) Specifically, RPA required the Forest Service to prepare three types of documents: 1) a Renewable Resource Assessment;(52) 2) a Renewable Resource Program;(53) and 3) an Annual Report.(54) Shortly after RPA's passage, and before its efficacy could be determined, litigation involving the Monongahela National Forest in West Virginia led to the Fourth Circuit's determination that the Organic Act prohibited clearcutting in national forests.(55) Congress responded to that decision by enacting NFMA.(56)

   2. The National Forest Management Act of 1976

      NFMA includes both procedural and substantive provisions.(57) The procedural provisions provide the framework for national forest planning by requiring the development of forest plans for units of the National Forest System.(58) NFMA's substantive provisions(59) include maintaining biological diversity,(60) preserving land productivity,(61) permitting increased timber harvesting under certain conditions,(62) determining suitable lands for timber harvest,(63) and imposing limits on even-aged management.(64) The requirement to maintain biological diversity is potentially the most important of these substantive standards.

      1. NFMA Diversity Mandate

         NFMA requires the Forest Service 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.(65)

         Notably, the statute does not define diversity. In fact, the statute's diversity provision does not clearly reveal "any concrete legal standard[]" for ensuring biological diversity.(66) The fact that the...