Place-Based National Forest Legislation and Agreements: Common Characteristics and Policy Recommendations
| Date | 01 March 2011 |
| Author |
3-2011 NEWS & ANALYSIS 41 ELR 10229
Place-Based
National Forest
Legislation and
Agreements:
Common
Characteristics
and Policy
Recommendations
by Martin Nie
Martin Nie is Professor of Natural Resources
Policy in the College of Forestry and Conservation
at the University of Montana.
roughout the country, divergent interests are collab-
orating about how they would like particular national
forests to be managed. Some of these initiatives are
seeking place-based legislation as a way to secure such
agreements, while others use an assortment of dier-
ent approaches and memoranda of understanding.
What is most remarkable about these initiatives is the
similarities they share, from a widespread frustration
with the status quo to the search for more certainty in
forest management.
This Art icle analyzes “place-based,” or national
forest-specif ic, legislation and the use of forma l-
ized agreements as a way to manage national
forests. Unlike organic or umbrell a legislation cover-
ing all national forests, place-based legislation cod ifies
additional forest-specif ic prescriptions a nd mana ge-
ment direction.
ere is increasing political interest and controversy
surrounding such legislation. As discussed below, the
most prominent and wide-reaching examples are con-
gressional bills introduced by Sens. Jon Tester (D-Mont.)
and Ron Wyden (D-Or.) in the 111th Congress.1 ese
bills have received widespread attention, much of it due
to their provisions related to mandated timber harvests on
selected forests in Montana and Oregon.2 roughout the
West, divergent interests are negotiating how they would
like particular forests to be managed. Many of these pro-
posals include provisions related to protected lands, eco-
nomic development, timber harvesting, forest restoration,
and funding mechanisms, among others. But unlike more
typical collaborative eorts, some groups are seeking cod-
ication of their agreements, while others have formalized
their agreements by using memoranda of understanding
(MOUs) with the U.S. Forest Service (USFS).
Place-based legislation is not without precedent.3 Site-
specic legislation has been used on the national for-
ests since at least 1904 with the Bu ll Run Trespass Act
applicable to the Mount Hood National Forest.4 Other
1. Forest Jobs and Recreation Act of 2009, S. 1470, 111th Cong. (2009).
For more about the bill, see Sen. Jon Tester, Legislation, http://tester.sen-
ate.gov/Legislation/foresthome.cfm (last visited Jan. 21, 2011) and Oregon
Eastside Forests Restoration, Old Growth Protection, and Jobs Act, S. 2895,
111th Cong. (2009).
2. Noelle Straub,
Country, N.Y. T (Dec. 14, 2009); Leslie Kaufman,
, N.Y. T, (Dec. 17, 2009); Phil Taylor, Revised
, L
L (July 10, 2010); and Jason Plautz, Wyden’s Ore. Management Bill
, L L (Mar. 11, 2010).
3. Martin Nie & Michael Fiebig, Managing the National Forests rough
Place-Based Legislation, 37 E L.Q. 1 (2010) (situating the approach
in its historical and governing context).
4. Presidential Proclamation No. 28, 27 Stat. 1027 (President Benjamin Har-
rison, 1892). Grazing and trespass were prevented by the Bull Run Tres-
pass Act of 1904. 18 U.S.C. §1862 (1976). e area provides the city of
Portland, Oregon, its main source of domestic water; and when USFS
management of the area threatened this supply, Congress intervened with
legislation. Donald H. Blanchard, Clearcutting the Bull Run Watershed:
, 8 E. L.
569 (1977-1978) (reviewing the history preceding passage of the Bull Run
Act). e Bull Run Act provides various types of watershed protections for
the unit. Pub. L. No. 95-200, 91 Stat. 1425 (1977). Subsequent legislation
has expanded the area and types of protection in response to USFS man-
agement, and it is currently managed in cooperation and partnership with
the Portland Water Bureau. Pub. L. No. 104-208, 110 Stat. 3009-541
Place-Based National Forest Legislation and Agreements, is available
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
41 ELR 10230 ENVIRONMENTAL LAW REPORTER 3-2011
ness or protected areas, is what is dierent and so signi-
cant about the new plac e-based proposals.
Place-based agreements are similar to proposed legisla-
tion insofar as they pertain to site-specic direction apply-
ing to one particular place or unit of the National Forest
System (NFS). In the selected cases analyzed below, vari-
ous groups found agreement on forest management issues
and formalized such agreements by entering into MOUs
with the USFS. ese agreements share several common
characteristics with pending place-based forest bills, and
they oer an alternative to legislation.
e Article shows that there are four central provisions
and dening characteristics of selected place-based bills
and agreements: (1)frustration with the status quo and the
desire for change; (2)the search for more certainty in forest
management; (3)landscape-scale restoration and its rela-
tionship to rura l communities; and (4)conict resolution
and the desire for more public participation in national
forest management. Several cross-cutting issues are dis-
cussed in this context.
Also included within this framework are related policy
recommendations for consideration by the USFS, law-
makers, and others. As explained shortly, many of the
problems facing place-based initiatives are systemic in
nature. ey involve issues per taining to public lands
law and governance, the National Environmental Policy
Act (NEPA),
9
planning, funding, and an assortment of
other challenges of national scale and signica nce. It is
beyond the purview of the A rticle to oer recommenda-
tions on these matters. My recommendations are more
modest. ey focus on politically feasible policy changes
and responses that can be made in the immediate future,
while emphasizing a few preexisting mechanisms and
framework s that could be used to do so.
My analysis leads to the conclusion that the U.S.
Congress and the USFS should oppose forest-specic
(non-wilderness) legislation until a number of funda-
mental and systemic concerns are addressed, including
how such laws would t into the preexisting statutory
framework and how they would be nanced. Most of the
challenges faced by the selected cases a re systemic, not
place-based. Questions presented by such things as land-
scape-level restorat ion a nd NEPA, stewardship contract-
ing, and funding, a mong others, deserve a national-level
response—not a series of ad hoc legislative remedies and
site-specic exemptions.
is is not to say, however, that the status quo is su-
cient, just that there are real dangers in codifying manage-
ment, especially timber harvest mandates, on particular
national forests. e approach practically begs for future
congressional abuse. Nevertheless, the search for more
certainty in forest management—however feasible—is
understood and appreciated. But there are other ways of
enhancing certainty besides legislating timber supply and
other management prescriptions. First, there are steward-
ship contracts that can provide as much or more certainty
9. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.
place-based laws have been enacted thereafter, includ-
ing the Alaska National Interest Lands Conservation Act
(ANILCA) and the Tongass Timber Reform Act,5 the
Herger-Feinstein Quincy Library Group Forest Recov-
ery Act,6 a nd the Valles Caldera National Preserve and
Trust created in 2000.7 Site-specic wilderness and pro-
tected areas legislation serve as other examples of how
the approach has been used in the past.8 What is dif-
ferent about the new legislative proposals is the direc-
tion provided in how to mana ge lands n ot designated as
wilderness or a specia l management area. e scope and
specicity of management direction, unrelated to wilder-
(1996) (prohibiting the cutting of trees in parts of the unit, with special
exceptions); Pub. L. No. 107-30, 115 Stat. 210 (2001) (protecting the Little
Sandy River as part of the Bull Run). H.R. 427, H.R. 434, and H.R.
451: Hearing Before the House Comm. on Resources, 107th Cong. (Apr.
25, 2001) (reviewing USFS management of the area and why permanent
protection is desired by bill proponents).
5. ANILCA required the U.S. Congress to provide at least $40,000,000 an-
nually, so that the Tongass could meet its mandate of supplying at least 450
million board feet of timber for sale each year. Pub. L. No. 96-487, §705(d).
ANILCA’s controversial timber-supply mandate was replaced with language
requiring the Tongass to seek to meet market demand for Tongass timber.
Subject to appropriations, other applicable law, and the require-
ments of [the NFMA], ... the Secretary shall to the extent consis-
tent with providing for the multiple use and sustained yield of all
renewable forest resources, seek to provide a supply of timber from
the Tongass National Forest which (1)meets the annual market
demand for timber from such forest and (2)meets the market de-
mand from such forest for each planning cycle.
Tongass Timber Reform Act, Pub. L. No. 101-626, §101 (1990) (amending
16 U.S.C. §539d(a)).
6. Pub. L. No. 105-277, div. A, §101(e), tit. IV, §401, 112 Stat. 2681-305
(105th Cong., 1998). notes 53-60 and accompanying text.
7. Pub. L. No. 106-248; 114 Stat. 598; 16 U.S.C. §698v. In 2000, Congress
acquired the privately owned Baca Ranch in northern New Mexico. Instead
of simply buying the property and transferring its management to the USFS
or the National Park Service, Congress found “an experimental management
regime should be provided by the establishment of a Trust capable of using
new methods of public land management that may prove cost-eective and
environmentally sensitive.” 16 U.S.C. §698v-2(a)(12). Congress directed
the Trust to operate the holding as a working ranch, providing multiple
use and sustained yield management. 16 U.S.C. §698v(b). A nine-member
board of trustees, which includes a USFS ocial, manages the Preserve. is
case is also signicant because the law aims to pull the Valles Caldera out
of the traditional federal lands funding stream by “allowing and providing
for the ranch to eventually become nancially self-sustaining.” 16 U.S.C.
§698v-2(a)(8).
8. While federal wilderness areas are generally managed in accordance with the
Wilderness Act, place-specic wilderness laws typically contain an assort-
ment of special management provisions and exemptions that are applicable
to one unit. 16 U.S.C. §§1131-1136 (2006). Protected land laws provide
additional examples of place-based, or unit-level legislation. Consider, for
example, USFS-managed national monuments like Admiralty (Presidential
Proclamation No. 4611, 43 Fed. Reg. 57009, 57131 (Dec. 1, 1978)), Giant
Sequoia (Presidential Proclamation No. 7295. 65 Fed. Reg. 24095 (Apr.
25, 2000)), and the Santa Rosa-San Jacinto Mountains (16 U.S.C. §431
(2006)). For a comprehensive listing of “special recreation and conservation
overlays,” see G C C ., F P L
R L 946-47 (2007). Included in the listing for National
Forest System lands are special management areas, e.g., Greer Spring, Mis-
souri, 16 U.S.C. §539h (2006), recreation management areas, e.g., Fossil
Ridge, Colorado, 16 U.S.C. §539i, protection areas, e.g., Bowen Gulch,
Colorado, 16 U.S.C. §539j (2006), scenic areas, e.g., Columbia River
Gorge, Oregon-Washington, 16 U.S.C. §§544-544m (2006), scenic re-
search areas, e.g., Opal Creek, Oregon, 16 U.S.C. §545b (2006), national
scenic areas, e.g., Mount Pleasant, Virginia, 16 U.S.C. §545 (2006), nation-
al forest scenic areas, e.g., Mono Basin, California, 16 U.S.C. §543 (2006),
and national preserves, e.g., Valles Caldera, New Mexico, 16 U.S.C. §698v
(2006).
Copyright © 2011 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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