The legal status of Land and Resource Management Plans for the national forests: paying the price for statutory ambiguity.

• Author: Hogan, John P.
• Position: LRMPs

1. Introduction

   The National Forest Management Act (NFMA)(1) directs the United States Forest Service Forest Service) to prepare land and resource management plans (LRMPs) to guide the maintenance and use of resources within the national forests.(2) Once adopted, these plans serve as blueprints that control management decisions for up to fifteen years.(3) An important unresolved issue concerning LRMPs is their "essence" or legal status; that is, whether LRMPs are merely programmatic documents with no impact until implemented as site-specific projects, or represent meaningful and concrete decisions that predetermine future activities.(4) The significance of this distinction is that LRMPs are only subject to judicial review and section 7 consultation under the Endangered Species Act (ESA),(5) if they constitute meaningful and concrete decisions.

   Since NFMA's enactment in 1976, various entities have seized on the ambiguity in the legal status of LRMPs, and characterized them in a manner that furthers their individual agendas. Similarly, courts have varied in their views of the legal significance of LRMPs. As a result, uncertainty currently exists in numerous aspects of the forest planning process. For instance, the relationship of LRMPs to annual resource outputs, such as timber and grazing permits, has been subject to opposing interpretations.(6) The Forest Service has consistently taken the position that resource output designations in LRMPs are not hard and fast numbers and do not control resource decisions.(7) Rather, the Forest Service maintains that output decisions are made only at the site-specific level. Court approval of this position has serious consequences for both environmental and industry groups, who view the resource output designations in the LRMPs as indications of how much timber the Forest Service will sell and how much land it will allot to cattle grazing. These groups seek accurate and predictable accounts of future outputs to plan their businesses or litigation activities.

   Most significantly, the ambiguous legal status of LRMPs affects the standing of plaintiffs to, sue the Forest Service over aspects of LRMPs. The Forest Service argues that because LRMPs are programmatic in nature, they do not have on-the-ground consequences and thus cannot cause injury for standing purposes and cannot be ripe for review.(8) Under the Forest Service position, citizen plaintiffs may only challenge Forest Service decisiomaking when a site-specific project occurs, and this challenge is limited to the particular project at hand. Thus, under this position, an organization cannot use the judicial process to ensure that the Forest Service follows NFMA's mandates and numerous other environmental laws in creating LRMPs. By contrast, environmental and industry plaintiffs have argued that because LRMPs make decisions that powerfully affect the environment, they should be open to legal challenge by citizen plaintiffs.(9) The United States Courts of Appeal in various circuits have split on this issue, with the Eighth Circuit adopting the Forest Service position,(10) and the Seventh(11) and Ninth Circuits(12) allowing standing to challenge LRMPs.

   Ambiguity in the legal status of LRMPs also causes confusion concerning the Forest Service's responsibilities in the section 7 consultation process under the ESA.(13) Specifically, it is unclear at what stage in the forest planning process the Forest Service must consult with the appropriate expert agency about possible adverse effects on endangered or threatened species.(14) The answer to this question hinges on whether courts consider LRMPs to be "agency actions" that trigger section 7 consultation under the ESA.(15) Once again, the Forest Service and citizen plaintiffs have adopted varying interpretations of the significance of LRMPs in the section 7 process.

   This Chapter analyzes the opposing interpretations of the legal status of LRMPs. Part R provides an historical overview of land and resource planning in the national forests and the development of NFMA. Part III describes current forest planning procedures under NFMA, concentrating on the relationship between LRMPs and site-specific decisionmaking. Part IV discusses the controversy over LRMP significance and outlines the competing interpretations. Part V analyzes relevant cases from the Seventh, Eighth, and Ninth Circuits, and discusses the interplay between the competing views on the legal status of LRMPs. Part VI concludes that because LRMPs represent meaningful and concrete decisions that significantly predetermine future forest uses, they should be open to challenge by citizen plaintiffs and should constitute agency actions" under the ESA.

2. Background

   Congress's approach to forest planning evolved over the last century from pure deference to the Forest Service to close control of the agency through NFMA's detailed substantive and procedural mandates.(16) This more recent emphasis on close control suggests that Congress intended for LRMPs, which comprise a primary part of the NFMA planning process, to set forth concrete and reviewable decisions rather than merely a programmatic planning framework without legal effect. If LRMPs do not meaningfully incorporate the standards mandated by NFMA, then forest planning is relegated to an ad hoc site-specific process. However, as discussed below, the lawmakers who created NFMA disagreed over the degree of specificity that the management guidelines in LRMPs should contain.(17) The current ambiguity in the legal significance of LRMPS is largely a result of the compromise struck by Congress.

   1. Early Forest Planning

      In 1891, Congress passed the Creative Act,(18) which authorized the President to set aside public lands as forest reserves.(19) The creation of these reserves was motivated by the fear that excessive logging was damaging watersheds and future timber supplies.(20) However, the Creative Act alone was unsuccessful because it lacked an affirmative regulatory program to provide for federal management and control of these reserves.(21)

      The Organic Administration Act of 1897 (Organic, Act)(22) outlined the purposes for which the President could create the reserves and provided for their protection and management.(23) The Organic Act specified that forest reserves existed only to "improve and protect" the forest, secure favorable water flows, and furnish a continuous supply of timber.(24) The Act provided the Forest Service with much discretion to develop its own management direction,(25) and served as the basis for forest policy until Congress passed the Multiple-Use Sustained-Yield Act of 1960 (MUSYA).(26)

   2. The Multiple-Use Sustained-Yield Act of 1960

      During the early part of the twentieth century, few disputes arose over the use of the national forests.(27) However, following World War II, as timber demand increased, various interest groups began advocating their preferred forest USES.(28) The timber industry urged increased cutting rates.(29) Conservationists and recreationists pushed for legislation to prohibit further harvesting of the forests.(30) Congress responded to these pressures by mandating the multiple-use approach in MUSYA.(31) Under this policy, the Forest Service developed district and regional Multiple-use Planning Guides.(32) Following these guides, local planners zoned the forests and created District Multiple-Use Management Plans, which suggested how to organize multiple resource uses in each zone.(33) This process was the first systematic planning effort by the Forest Service to resolve conflicting use problems, and Congress used many of its aspects in the subsequent NFMA planning process.(34)

      MUSYA uses very broad language to phrase its multiple-use and sustained-yield objectives and therefore does not provide any real legal standard by which to measure Forest Service compliance with these objectives.(35) Therefore, while MUSYA is still important today for the overall direction it provides in managing the national forests, it has little value as a legal tool for resolving conflicts between user groups.(36)

   3. Congressionally Mandated Planning

      The Organic Act generally left forest planning policy to the judgment of the Forest Service. MUSYA continued the tradition of congressional deference, but tempered this with the limitation that the Forest Service give due consideration to all resources.(37) By the mid-1970s, however, the mood of Congress had shifted. In 1970, the Bolle Report(38) triggered national concern over Forest Service management practices.(39) It led to the 1972 Church Senate hearings, which focused on the Forest Service's over-emphasis on timber production and the increasing public concern over clearcutting practices.(40)

      Congress first acted on its concern over Forest Service management practices with the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA).(41) The RPA instilled centralized planning for the Forest Service at the national level,(42) but failed to stop public concern over clearcutting.(43)

      In 1975, one year after Congress enacted the RPA, the Fourth Circiut ruled in West Virginia Division of the Izaak Walton League of America v. Butz (Monongahela)(44) that the Organic Act prohibited clearcutting as a timber harvesting method.(45) Under pressure from the Forest Service and timber interests, Congress responded to this ruling by enacting NFMA.(46) Conceptually, NFMA consists of two parts: one substantive, the other procedural.(47) Substantively, the Act imposes extensive limitations on timber harvesting(48) by allowing clearcutting but limiting its use to situations in which it is the "optimum method" for harvesting.(49) NFMA also reaffirms the multiple-use and sustained-yield concepts of MUSYA.(50) Other substantive provisions include an exclusion of "unsuitable lands" from harvest,(51) a requirement that the Forest Service build roads in a cost-effective manner,(52) and a biological...