The unfulfilled promise of an end to timber dominance on the Tongass: forest service implementation of the Tongass Timber Reform Act.

• Author: Daugherty, Steven A.

1. INTRODUCTION 1574 II. BACKGROUND OF TONGASS MANAGEMENT 1581 A. Characteristics of the Tongass Landbase 1581 B. The Economy of Southeast Alaska 1583 C. The Wake of ANILCA 1585 III. FOREST MANAGEMENT REFORMS OF THE TTRA 1588 A. Market Demand, Multiple Use, and Sustained Yield 1589 B. Identification of Unsuitable Lands 1590 C. Fishery Protection 1591 D. Implementation of Forest Management Reforms 1592 1. Seeking to Meet Market Demand 1593 2. Shrinking Buffers and BMP Failures 1601 IV. CONTRACT MODIFICATIONS OF THE TTRA 1606 A. Attempted Reform Through Unilateral Contract Modifications 1607 B. Implementation of the Unilateral Changes 1608 1. Consistency with Independent Timber Sale Procedures 1609 2. Disproportionate Harvesting of Old- Growth 1610 3. Assurance of Harvest Within Three Years 1614 4. Forest Service Selection of Harvest Units 1615 5. Provisions for Rejection of Timber 1616 6. Counting of Utility Logs Against Contract Volume 1617 7. Purchaser Road Credits 1619 8. Price Consistency with Independent Sales 1620 9. Economic Criteria Consistent with Independent Sales 1621 C. Effects of Forest Service Implementation 1622 V. FISH, WILDLIFE, WILDERNESS, AND LUD II: EFFECTS OF TTRA ADDITIONS 1624 VI. CONCLUSION 1626 I. INTRODUCTION

   With nearly seventeen million acres, the Tongass is the nation's largest national forest.(1) It consists of rugged mountains, over a thousand islands, and nearly 11,000 miles of shoreline.(2) With 10.4 million acres of land which would qualify to be designated as wilderness,(3) the Tongass is also the most breathtaking and pristine national forest.(4) Its rich rainforest ecosystem(5) supports a diversity of wildlife and fish,(6) which provide resources to support southeast Alaska's valuable commercial salmon fishery,(7) a growing tourism industry,(8) and a traditional subsistence lifestyle in its many small communities.(9)

   Unfortunately, the Tongass is also known as the nation's most mismanaged national forest.(10) Even though timber production on the Tongass has been economically unsound and environmentally destructive,(11) the Tongass historically has been managed on a "timber first" basis,(12) driven primarily by several long-term logging contracts(13) and, in the recent past, by measures protecting the timber industry that were included in the Alaska National Interest Lands Conservation Act of 1980 (ANILCA).(14) The Forest Service has frequently been criticized for ignoring costs, dismissing negative impacts of timber operations on other resources and activities, and attempting to perpetuate the "fantasy that no matter how much of the Tongass is harvested--no adverse impacts whatsoever occur for fisheries, recreation or subsistence."(15) In 1990, Congress responded to these imbalances in the management of the nation's largest national forest by enacting the Tongass Timber Reform Act (TTRA).(16)

   The TTRA calls for substantial changes in forest management in the Tongass,(17) provides additional protection of some forest land through protective land use designations,(18) and requires unilateral contract modifications to reduce the competitive advantage of the long-term contract holders and to bring the long-term contracts into compliance with environmental laws and regulations.(19) The TTRA also requires the Forest Service to conduct numerous studies and to prepare reports that assess the effects of the TTRA on forest management and recommend further measures to improve the management of the Tongass.(20) In addition, the General Accounting Office (GAO) must audit the Forest Service's implementation of the TTRA's contract modification requirements.(21)

   The TTRA culminated years of intense congressional concern over the management of the Tongass,(22) and is a compromise measure between the House and the Senate. The House sought to eliminate mandated harvest levels, cancel the long-term Tongass timber contracts, designate more wilderness, increase fisheries protection, and apply all the requirements of the National Forest Management Act (NFMA)(23) to the Tongass.(24) The Senate, while supporting the goal of improved forest management and the ned of timber dominance, wanted to enact less extensive reforms to minimize harms to local logging economies in southeast Alaska.(25) During the legislative process, many members of Congress expressed concern that some of the compromise measures might be inadequate to protect the scenic qualities and fish and wildlife populations of the Tongass.(26) The House based its support of the final compromise language on its intention to monitor the implementation of the TTRA to make sure the Act achieves its goals.(27) However, because Congress was anxious to put the troublesome Tongass issue behind it,(28) Representative Miller, the manager of the bill in the House of Representatives and one of the chief proponents of more extensive change, stated that Congress did not intend to revisit the issue "provided that the spirit and the intent of this legislation is carried out."(29)

   Now, over three years after Congress enacted the TTRA, this article examines the question of whether, and to what extent, the spirit and intent of the TTRA has been carried out. Early indications are that the Forest Service has not only completely failed to embrace the spirit of the TTRA,(30) but also has fallen short of the express requirements of the Act.(31) Further, the Forest Service has proposed increases in the Tongass timber harvest even though forest supervisors believe current harvests are already above sustainable yield levels(32) and the Tongass appears to be losing more money than ever before.(33) This article explores the implementation of the TTRA by presenting the major provisions of the TTRA, discussing the pre-TTRA problems behind each provision, and exploring changes in Forest Service actions, attitudes, procedures, and objectives in the wake of the TTRA.

   Part II of this article presents a short background summary of the geography and economy of southeast Alaska and the historical actions of Congress and the Forest Service which created the demand for the TTRA. Part III explores the forest management provisions of Title I of the TTRA and the Forest Service's response to the TTRA's multiple-use mandate. Part IV discusses the unilateral contract modifications required by Title III of the TTRA and the Forest Service's interpretation and implementation of these modifications. Part V provides an overview of the additional protection afforded to the fish and wildlife of the Tongass as a result of the wilderness and Land Use Designation II (LUD II)(34) designations made in Title II of the TTRA. Part VI concludes by recommending that Congress revisit the issue of Tongass management and, in order to achieve the goals of the TTRA, enact further legislation more closely resembling that originally proposed by the House of Representatives.

2. BACKGROUND OF TONGASS MANAGEMENT

   The Tongass has many unique geographical and physical characteristics; management of the forest has been shaped by those characteristics as well as by Forest Service and congressional efforts to build a timber economy in southeast Alaska. Current issues surrounding the management of the Tongass are largely shaped by the physical and economic setting in which they occur, the historical actions which have shaped the economy of the region, and the management problems which created the demand for the TTRA.

   1. Characteristics of the Tongass Landbase

      President Theodore Roosevelt created the Tongass National Forest (Tongass) by presidential proclamation in 1907.(35) It encompasses the majority of southeast Alaska,(36) an area approximately 500 miles long and 120 miles wide that is recognizable on a map as Alaska's "panhandle."(37) Precipitation in the Tongass is extremely high with some areas avergaing as much as 222 inches of precipitation per year.(38) and contains rugged mountains, numerous islands, several glaciers, thousands of miles of shoreline, and the northern extension of the temperate coastal rainforest of the Pacific Northwest.(39)

      Although the Tongass encompasses nearly seventeen million acres, only fifty-nine percent of it (approximately ten million acres) is forested land.(40) Of this forested land, the Forest Service classifies just 5.7 million acres, or approximately thirty-four percent of the total forest, as "productive forest."(41) The Forest Service classifies eighty-seven percent (8,641,000 acres) of the forested land of the Tongass as "old-growth,"(42) but forty-one percent of the old-growth--over 3.5 million acres--is considered unproductive.(43) The high-volume stands of old-growth, which are the most biologically important and commercially attractive, make up only eleven percent of 5.05 million acres of productive old-growth, which is only about three percent of the Tongass's total acreage.(44) Between 1954 and 1990,(45) intensive harvesting of high-volume old-growth resulted in a thirty-nine percent reduction in high volume old-growth stands(46) without significantly affecting lower volume old-growth stands.(47) About seven percent of the total productive old-growth of the Tongass was harvested between 1954 and 1990,(48) consisting almost entirely of high volume old-growth.

   2. The Economy of Southeast Alaska

      The Forest Service began plans to develop a pulp-based timber industry in southeast Alaska in 1910, but it took over forty years for the agency to create a timber economy in the region.(49) During the 1940s, the gold mining and salmon fishing economies of southeast Alaska collapsed. At the same time, World War II and the start of the Cold War increased the strategic importance of populating Alaska.(50) In response to increased pressure to develop the economy of the region,(51) Congress passed the Tongass Timber Act of 1947,(52) authorizing the Forest Service to enter into timber sale contracts, despite aboriginal claims to the land.(53) These factors, combined with a...