The great experiment that failed? Evaluating the role of a "committee of scientists" as a tool for managing and protecting our public lands.

• Author: Pasko, Brian Scott

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

1. 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.

2. 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...