Our sedimentation boxes runneth over: public lands soil law as the missing link in holistic natural resource protection.

• Author: Lacy, Peter M.

Soil is a critical component of nearly every ecosystem in the world, sustaining life in a variety of ways--from production of biomass to filtering, buffering, and transforming water and nutrients. While there are dozens of federal environmental laws protecting and addressing a wide range of natural resources and issues of environmental quality, there is a significant gap in the protection of the soil resource. Despite the critical importance of maintaining healthy and sustaining soils, conservation of the soil resource on public lands is generally relegated to a diminished land management priority. Countless activities, including livestock grazing, recreation, road building, logging, and mining, degrade soils on public lands. This Comment examines the roots of soil law in the United States and the handful of soil-related provisions buried in various public land and natural resource laws, finding that the lack of a public lands soil law leaves the soil resource under-protected and exposed to significant harm. To remedy this regulatory gap, this Comment sketches the framework for a positive public lands soil protection law. This Comment concludes that because soils are critically important building blocks for nearly every ecosystem on earth, a holistic approach to naturaI resources protection requires that soils be protected to avoid undermining much of the legal protection afforded to other natural resources.

The soil continuum-discontinuum on the planet Earth is an open system. It is not to be studied in isolation.(1)

The cowman who cleans his range of wolves does not realize that he is taking over the wolfs job of trimming the herd to fit the range. He has not learned to think like a mountain. Hence we have dustbowls, and rivers washing the future into the sea.(2)

1. INTRODUCTION

   In August and September of 1996, the largest wildfire in the recorded history of the Umatilla National Forest raged over almost 51,000 acres of eastern Oregon's Blue Mountains. The fire reduced stream shade and large woody debris along 141 miles of streams, exposed soils to erosion, deposited sediment into waterways, killed fish, and destroyed fish and wildlife habitat.(3) When the United States Forest Service decided to conduct a salvage timber sale on several thousand acres of burned forest, a coalition of environmental groups sued the agency, claiming the Forest Service was required to prepare an environmental impact statement before the sale could proceed.(4) Sixty-five percent of the acres offered in the sale contained soils with high erosion potential, and tractors would skid logs over about one-fifth of those acres.(5) The Ninth Circuit Court of Appeals agreed with the plaintiffs that the Forest Service had violated the National Environmental Policy Act (NEPA) by performing an inadequate environmental analysis of the proposed sales before concluding that no significant environmental impacts existed.(6) The court noted that the Forest Service provided "no documentation of the estimated sediment that would result from the logging and accompanying roadbuilding or the impacts of increased sediment on fisheries habitat. The Forest Service's only attempt to measure sedimentation failed when its data collection box overloaded with sediment."(7)

   This is but one example in which conservation of the soil resource in federal public lands management has been relegated to some lesser priority. In fact, humans have been significantly altering the ecosystems they live in, including the soil component, for as long as they have been more than hunters and gatherers. For example, geoarchaeologists working in the lowlands of Guatemala, Belize, and Mexico have suggested that the Maya's 7agricultural intensification and landscape restructuring led directly to that civilization's collapse around 900 A.D.(8) Referring to the Maya Collapse as "one of the most enduring [problems] in all of archaeology," researchers documented severe environmental degradation of the soil resource by examining buried soils in the region.(9) Much of the research suggests that intensive agricultural practices, such as creation of raised fields, terraces, gardens, and various silvicultural management systems, combined with climatic changes over time to drastically alter the hydrology and chemistry of the soils.(10) This contributed to significant erosion and soil nutrient depletion, eventually leaving the land incapable of supporting the population.(11)

   The lessons of the Maya and other ancient populations should not be lost on modern-day civilizations. Soil erosion is a serious problem in the United States today. Agriculture is the leading national cause of soil erosion, with cropland erosion totaling 1.9 billion tons in 1997.(12) Sedimentation in the Mississippi River has created the infamous 11,000 square mile hypoxic "dead zone" in the Gulf of Mexico as a result of the 331 million tons of soil that flow into the Gulf each year.(13) Although farms have the dubious distinction of leading the way in soil erosion, significant soil erosion and degradation problems also occur on federal public lands, primarily in the West.(14)

   Dozens of federal laws protect natural resources and environmental quality. These laws cover a wide range of resources and land use activities.(15) including forests,(16) grasslands,(17) plant and animal species,(18) water,(19) minerals,(20) and air.(21) In addition, a host of environmental laws target toxic and polluting substances introduced into the environment by humans.(22) Yet despite scattered provisions in a few statutes focused on other resources.(23) there is a significant gap in the protection of the soil resource. For a variety of reasons--perhaps because the soil resource is less glamorous than endangered species, less conspicuous than toxically polluted waters or clearcut forests, or less politically divisive than "cowburnt"(24) rangelands--it has never received the same degree of political or grassroots attention as other natural resources and land uses.

   In fact, soils have only received considerable attention from Congress in the private lands agricultural context--and even there only in a hands-off, "anti-law" fashion, motivated by a desire to improve soil (that is, crop) productivity.(25) This study, however, focuses on soils in the public lands context, leaving aside agricultural and urban soil issues which have been discussed at some length.(26) Countless activities, including livestock grazing, recreation, road building, logging, mining, and irrigation degrade soils on public lands. Because there are no laws that directly address and protect soils on the public lands, consideration of soils in land use planning is usually only in the form of vaguely conceived or discretionary guidelines and monitoring requirements. This is a major gap in the effort to provide ecosystem-level protection for natural resources.

   The rise of an "ecosystem approach" in environmental and natural resources law is one of the most significant aspects of the continuing evolution of this area of law and policy. One writer has observed,

   [A] fundamental change [is] occurring in the field of environmental protection, from a narrow focus on individual sources of harm to a more holistic focus on entire ecosystems, including the multiple human sources of harm within ecosystems, and the complex social context of laws, political boundaries, and economic institutions in which those sources exist.(27) As federal agencies focus increasingly on addressing environmental protection from a holistic perspective under the current regime of environmental laws, a significant gap remains in the federal statutory scheme: protection of soils as a discrete and important natural resource. Because soils are essential building blocks at the core of nearly every ecosystem on earth, and because soils are critical to the health of so many other natural resources--including, at the broadest level, water, air, and vegetation--they should be protected at least at the same level as other natural resources. Federal soil law is woefully inadequate as it currently stands. It is a missing link in the effort to protect the natural world at a meaningful and effective ecosystem level.

   This Comment examines the gap with respect to soil conservation and protection in current federal public land and resources law. Part II briefly examines the role of soils as integral components of ecosystems and the comprehensive importance of soil functions in human life. Part III traces the roots of current soil law, from the establishment of the Soil Survey and the agriculturally oriented soil laws on the books to the handful of soil-related provisions buried in various public land and natural resources laws. This analysis concludes that the lack of a public lands soil law leaves the soil resource under-protected and exposed to significant harm and emasculates the environmental protections afforded to other natural resources. Part IV details the essential elements of a public lands soil protection law, including the scope of such a law, the use of scientific knowledge already in place, administration of the law, and necessary and effective provisions of the law. The Comment concludes that because soils are critically important building blocks for nearly every ecosystem on earth, a holistic approach to natural resources protection requires that this resource be safe-guarded to avoid undermining much of the legal protection that has been afforded other natural resources.

2. SOIL AS AN ECOSYSTEM COMPONENT

   1. Defining Soil and Its Place tn Human Existence

      Soils are critical components to nearly every ecosystem in the world(28)--they are essential ecosystem building blocks at the confluence of the atmosphere, hydrosphere, biosphere, pedosphere, and lithosphere.(29) Simply put, soil is "a natural body of mineral and organic matter that changes, or has changed, in response to climate and organisms."(30) The...