The United States Forest Service's response to biodiversity science.

• Author: Corbin, Greg D.

1. INTRODUCTION

   Scientists agree that Earth is experiencing a mass extinction spasm.(1) Entire plant and animal species are disappearing daily; possibly more than seventy species disappear per day in the species-rich tropical forests alone.(2) This rate of extinction is approximately 100,000 times the rate scientists associate with normal "background" evolutionary extinction.(3) And even in the less-species-rich areas of the world the current extinction rate still exceeds background rates.(4) Indeed, the present extinction spasm may surpass all others known in Earth's history, both in magnitude and scope.(5) At the current rate, based on conservative estimates of the total number of species on Earth, an additional five to ten percent of Earth's species will be lost in just thirty years.(6)

   Of the many modern anthropogenic causes of species loss,(7) habitat destruction is the primary culprit threatening species with extinction.(8) One recent study found that habitat destruction is the suspected cause of decline for eighty-five percent of all species in the United States for which data are available.(9) By dissecting habitat destruction into categories, scientists have revealed the effect of specific habitat-altering activities on different kinds of species. For example, ninety-one percent of all fish species listed or proposed for listing under the Endangered Species Act(10) are imperiled from water development projects.(11) Timber extraction provides another compelling example.(12) Through the outright loss of forest habitat, habitat fragmentation, and stream destruction, among other things, timber extraction poses a serious threat to species' survival.(13) But forest managers can minimize the effect of timber extraction on forest dwelling species through management geared toward maintaining a diversity of healthy plant and animal populations (biodiversity).(14) Forest management--the combination of forest practices and other management decisions employed by forest managers--is therefore a crucial element in maintaining forest habitats capable of sustaining forest-dependent species. The United States Forest Service, under the National Forest Management Act (NFMA),(15) is the agency charged with maintaining biodiversity in the national forest system,(16) which covers approximately 191 million acres.(17)

   The Forest Service's mandate to manage for biodiversity has evolved over the years, from virtually no mandate under the Organic Administrative Act of 1897 (Organic Act)(18) and Multiple-Use Sustained-Yield Act of 1960 (MUSYA),(19) to the current directive of NFMA.(20) As the mandate has evolved, the agency's discretion over how it manages biodiversity gradually has diminished. Following WWII, with an increased public demand for forest products, the Forest Service became a major producer of the nation's timber, managing the forests with little regard for species diversity or survival.(21) With Congress's passage of MUSYA, the agency's mandate for the first time included consideration of multiple resources and a variety of uses.(22) Yet, even with that broadened scope, timber production remained the primary agency goal,(23) and the Forest Service managed the national forest system with apparently unassailable discretion.(24) In response to public outcry over the Forest Service's management practices,(25) Congress passed NFMA, setting substantive limits on how the Forest Service manages the national forest system and requiring a detailed process of forest management planning. One of those limits is that in developing Land and Resource Management Plans, commonly referred to as forest plans, the Forest Service must adhere to guidelines designed to maintain biodiversity.(26)

   Congress intended in NFMA to limit the Forest Service's discretion over forest management by requiring the agency to maintain biodiversity in the national forests.(27) However, cognizant that forest management presented complex issues of science beyond the scope of its expertise, Congress did not attempt to define how the Forest Service should fulfill that directive. Rather, it left to the Forest Service and a Committee of Scientists (Committee)--established to "provide scientific and technical advice and counsel on proposed guidelines and procedures to assure that an effective interdisciplinary approach [was] proposed and adopted"(28)--broad discretion to define how the Forest Service would manage for biodiversity. The resulting collaboration between the Forest Service and the Committee produced a number of scientifically-based management prescriptions designed for that purpose: to guide the Forest Service in how it plans and manages for biodiversity.(29) The Committee recognized, however, that the science of biodiversity was evolving.(30) Therefore, it appropriately foresaw an evolutionary process in which scientific progress would further guide how the Forest Service should manage biodiversity.(31) It created this process by using broad scientific concepts to define the agency's duty, concepts whose meaning would evolve and mature as science progressed.(32) The Forest Service adopted the Committee's recommendations and has managed the national forest system under those regulations for the last two decades. At the same time, science has progressed significantly, adding new meaning to the concepts that underpin the regulations.(33) Recently, the Forest Service has proposed to rewrite those regulations, claiming they have become too restrictive on the agency's discretion over forest management, and has proposed to adopt ecosystem management as the dominant management paradigm for national forest planning.(34) To that end, the Secretary of Agriculture has appointed a new Committee of Scientists to advise the Forest Service on this new regulatory program.(35)

   This Comment explores how the Forest Service has responded to biodiversity science, which provides new meaning to the scientific concepts the Forest Service adopted in its implementing regulations. It begins, in Part II, with a brief history of the Forest Service's broad discretion over biodiversity management, the establishment of NFMA's biodiversity mandate, and the regulations the Forest Service adopted to implement that mandate. It explains that Congress directed the Forest Service to seek advice from a Committee of Scientists when crafting NFMA's regulations, and that the current regulations reflect that advice through scientifically based management concepts meant to guide forest planning for biodiversity. Part III details the evolution of the scientific concepts that underpin the regulations, arguing that those concepts have crystallized and now suggest specific means by which the Forest Service should manage for biodiversity. Turning to recent NFMA case law, Part IV demonstrates how the Forest Service, relying on the nature of scientific uncertainty and the highly deferential arbitrary and capricious standard of review, has fought to maintain broad discretion over forest management in the face of an evolving science. Part V examines the Forest Service's proposed new ecosystem management regulations, explaining that a new Committee of Scientists has found them lacking as a means for biodiversity management, and that the proposed regulations jettison two decades of scientific progress in favor of an ill-defined concept, ecosystem management, as a means to maximize the agency's management discretion. Part VI concludes that to heed the Committee of Scientists's advice to manage biodiversity consistent with contemporary scientific understanding, the Forest Service must retain key elements of the current regulations.

2. ESTABLISHING A LEGAL STANDARD FOR BIODIVERSITY

   From its inception in the late 1800s until passage of NFMA in 1976, the Forest Service enjoyed nearly unfettered discretion in managing the national forest system.(36) With NFMA, however, came a new era of diminishing discretion. Indeed, NFMA's statutory mandate and regulatory pro. gram were so extensive, and curtailed Forest Service discretion in so many ways, that many saw it as the agency's new Organic Act.(37) This section illustrates the transformation of the Forest Service's mandate over biodiversity from one of broad discretion to one of diminished discretion.

   1. A History of Discretion

      The Forest Service has long considered biodiversity in one form or another. Early in its history the agency's consideration of biodiversity focused on the wildlife resource and was based on few or no meaningful statutory standards. Congress was silent on the issue of wildlife in the Creative Act of 1891,(38) leaving the Department of Agriculture's Division of Forestry apparently unfettered discretion over the wildlife resource.(39) When the Division of Forestry was elevated to separate agency status six years later, Congress gave the Secretary of Agriculture authority to "make such rules and regulations ... as will insure the objects of such reservations."(40) Whether Congress intended to grant federal authority over wildlife is unclear, because the law did not mention wildlife or define the "objects of such reservations" and, traditionally, states retained authority to regulate wildlife within their borders, even where federal lands were concerned.(41) Without a clear mandate, Forest Service wildlife management policy developed internally until Congress passed the Multiple-Use Sustained-Yield Act.(42) In MUSYA, Congress explicitly stated its policy "that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes."(43) Although MUSYA placed "wildlife and fish" on an equal level with other forest resources,(44) Congress offered no guidance as to how the Forest Service was to balance the often conflicting mandate to manage multiple resources.(45) And indeed, it can be argued that wildlife never actually attained equal consideration under MUSYA.

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