WILDLIFE DIVERSITY AND NATIONAL FOREST MANAGEMENT: A GOAL OR OBSTACLE FOR THE U.S. FOREST SERVICE?

• Jurisdiction: United States

Endangered Species and Other Wildlife (Oct 2019)
CHAPTER 12B
WILDLIFE DIVERSITY AND NATIONAL FOREST MANAGEMENT: A GOAL OR OBSTACLE FOR THE U.S. FOREST SERVICE?
Martin Nie
Professor, Natural Resources Policy
Director, Bolle Center for People and Forests
W.A. Franke College of Forestry and Conservation, University of Montana
Missoula, MT

[Page 12B-1]

MARTIN NIE is Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests in the W.A. Franke College of Forestry and Conservation at the University of Montana. As appointed by the Secretary of Agriculture, Nie served from 2014-2018 on the U.S. Forest Service's National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule and in 2010 was part of the Forest Service's National Science Panel focused on the development of the planning rule. Nie is author of multiple articles focused on federal public lands and wildlife conservation and is recent co-author of "Making Forest Planning Great Again? Early Implementation of the Forest Service's 2012 Planning Rule (Natural Resources & Environment 33, no. 3, 2019) and "The Forest Service's 2012 Planning Rule and Its Implementation: Federal Advisory Committee Member Perspectives (Journal of Forestry 117, no. 1, 2019).

Martin Nie is Professor of Natural Resources Policy and Director of the Bolle Center for People and Forests in the W.A. Franke College of Forestry and Conservation at the University of Montana. As appointed by the U.S. Secretary of Agriculture, Nie served as the "science community" representative on the U.S. Forest Service's National Advisory Committee focused on implementation of the 2012 Planning Rule (2014-2018). In 2010, he was part of the USFS's National Science Panel focused on the development of this Rule. Nie's most recent work focused on wildlife and national forest management includes: Susan Jane Brown & Martin Nie, "Making Forest Planning Great Again? Early Implementation of the Forest Service's 2012 National Forest Planning Rule," Natural Resources & Environment 33 (Winter 2019), 3-8; and Nie et al., "Fish and Wildlife Management on Federal Lands: Debunking State Supremacy," Environmental Law 47, no. 4 (2017), 797-932.

I. Introduction

Cliché as it may sound, the U.S. Forest Service (USFS) is at a crossroads regarding the conservation of biological diversity on National Forest System (NFS) lands. National Forests across the country are at various stages of revising decades-old forest plans using a new and potentially paradigm-shifting 2012 Planning Rule. Wildlife diversity, couched in the broader context of ecological integrity, is at the core of this Rule and some of the most high-profile national forests and wildlife issues in the nation will be impacted as a result, from the management of grizzly bears and sage grouse to the revision of the Northwest Forest Plan. The latter, focused on forest management and the viability of the Northern Spotted Owl, provides a benchmark and point for reflection. More than 25 years ago, in another paradigm shifting moment, a district court in Washington made clear "the Forest Service's duty to protect wildlife" and that this duty "requires planning for the entire biological community--not for one species alone."¹

Since this decision in 1992, the NFS has become only more crucial to the conservation of the nation's fish and wildlife. The most recent comprehensive assessment focused on the distribution of ESA-status species, and those species defined by NatureServe as imperiled, shows that national forests are particularly important refuges for fish and wildlife.² Lands managed by the USFS and Department of Defense stand out in terms of supporting the greatest number of species with status under the Endangered Species Act (ESA). Both agencies harbor about 23 percent of species with ESA-status (at least 355 species for each agency), followed by the

[Page 12B-2]

National Park Service (NPS) (19 percent), the U.S. Fish and Wildlife Service (USFWS) (18 percent) and the Bureau of Land Management (BLM) (16 percent).³ The USFS also harbors the most NatureServe-defined imperiled species, approximately 27 percent of the total (at least 821 species).⁴

To put these percentages in context, consider the importance of National Forest lands to fish and wildlife more broadly:

The 193 million acres of the National Forest System support much of North America's wildlife heritage, including: habitat for 430 federally listed threatened and endangered species, six proposed species, and 60 candidate species, with over 16 million acres and 22,000 miles of streams designated as critical habitat for endangered species; approximately 80% of the elk, mountain goat, and bighorn sheep habitat in the lower 48 States; nearly 28 million acres of wild turkey habitat; approximately 70% of the Nation's remaining old growth forests; over 5 million acres of waterfowl habitat; habitat for more than 250 species of migratory birds; habitat for more than 3,500 rare species; some of the best remaining habitat for grizzly bear, lynx, and many reptile, amphibian and rare plant species; over two million acres of lake and reservoir habitat; and over two hundred thousand miles of fish-bearing streams and rivers. ⁵

The issues and political pressures impacting wildlife conservation have become more varied and acute since Judge Dwyer's decision in 1992 and passage of the agency's governing statutes in 1897, 1960 and 1976. These core laws and related regulations, as they pertain to fish and wildlife on the National Forests, are reviewed in Part II.⁶ This includes a more detailed review of the wildlife provisions found in the 2012 NFS Land Management Planning Rule [hereinafter 2012 Planning Rule]. These laws and regulations make clear that the USFS has an obligation, and not just the discretion, to conserve biological diversity on National Forest System lands. But as shown below, these statutes provide some discretion to the USFS in how it strikes a balance between wildlife conservation and providing for other multiple uses.

[Page 12B-3]

This legal context provides the USFS some room to view: (1) wildlife conservation as a primary institutional purpose and goal of the agency, or (2) as a meddlesome obstacle to achieving "active forest management" and the delivery of "real" multiple uses like timber, livestock grazing, minerals, and energy development. This distinction is not always so stark but it does provide a sense of the two paths at the crossroads for the USFS. Part III briefly explores each direction, with a focus on how the agency implements the powerful wildlife provisions provided in the 2012 Planning Rule.

II. Legal Framework

Before proceeding, it is important to dispel the common myth that "the states manage wildlife and federal agencies only manage wildlife habitat." This manta is commonly invoked by state and federal agencies and it is particularly pronounced in the context of national forest management. The mythmaking endures partly because of the USFS's traditional deference to the states in regulating hunting, fishing and trapping on national forests. But wildlife management goes well beyond setting harvest levels and methods. In any case, and as explained in a comprehensive review of fish and wildlife management authority on federal lands, "The mantra is wrong from a legal standpoint, limited from a biological one, and problematically simplifies the complexity of wildlife-habitat relationships."⁷ It also "invariably leads to fragmented approaches to wildlife conservation and unproductive battles over agency turf, and it often leads to an abdication of federal responsibility over wildlife."⁸

The laws reviewed below rest on the U.S. Constitution's Property Clause, which provides the USFS vast authority to manage its lands and the wildlife thereon. The Supreme Court has repeatedly observed that this power is "without limitations"⁹ and can extend to managing wildlife on federal lands. As stated in Kleppe v. New Mexico (1976), "the 'complete power' that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there."¹⁰ Of course, the states also manage wildlife on federal lands, but as made clear in Kleppe, "those powers exist only 'in so far as [their] exercise may be not incompatible with, or restrained by, the rights conveyed to the Federal government by the Constitution."¹¹

Three core statutes are reviewed below: the 1897 Organic Act, the Multiple Use Sustained Yield Act (MUSYA) of 1960, and the National Forest Management Act (NFMA) of 1976. Administrative discretion is a core theme running through the development and implementation of these laws. The storyline begins with the discretionary nature of the Organic Act, which is followed by Congress providing a mild course correction for the USFS in MUSYA, and then providing more prescription and enforceable mandates in NFMA.

Not reviewed here, but part of the administrative discretion narrative, are several other environmental and public land laws that intersect with national forest management. A progression of statutes--such as the Wilderness Act of 1964, the Wild and Scenic Rivers Act of

[Page 12B-4]

1968, the National Environmental Policy Act of 1970, the Endangered Species Act of 1973, and several others--narrowed the USFS's scope of discretion over the years, both substantively and procedurally, with significant impacts for fish and wildlife management and habitat.

1. The 1897 Organic Act

The Forest Service's 1897 "Organic Act" authorizes the establishment of national forests. It states in part that "[n]o national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States."¹² The law also authorizes the...