What steps should be taken to ensure that the National Forest Service manages the national forests in ways that promote sustainable use of the lands and resources they contain for the benefit of present and future generations of Americans?
What must be done to prevent the Forest Service from adopting policies and procedures that promote timber harvesting and other extractive uses at the expense of competing uses such as low-impact recreation, wildlife protection, and resource preservation?
The National Forest Service, an agency within the United States Department of Agriculture, is responsible for managing the National Forest System (NFS). The 192 million acres of national forests and grasslands that make up the NFS cover about eight percent of the surface area of the United States. In 1891, Congress authorized the President to reserve portions of the public lands covered with timber or undergrowth, whether of commercial value or not, so as to preclude uses inconsistent with the decision to set aside forest reserves as storehouses for timber and water resources.
The lands within the NFS include a wide variety of ecosystems, such as tropical rainforests, deserts, alpine meadows, and arctic tundra, which together support nearly a third of all species listed as endangered or threatened under the Endangered Species Act. (For a CPR perspective discussing the importance of protecting endangered species, see CPR Perspective: Protecting Endangered Species.)
For the first two-thirds of the 20th century, the laws governing management of the NFS were vague and general, leaving the Forest Service to exercise broad discretion to determine how to manage the national forests. Until the end of World War II, the Forest Service served as a protective custodian of the national forests and the resources they contained. But by the mid-1940s, even though recreational use of the national forests had skyrocketed, timber production became the agency’s highest management priority. Moreover, the Forest Service preferred timber-cutting techniques that yielded the most timber, including clearcutting, extensive use of herbicides, and monocultural reforesting. Unfortunately, these techniques also tended to be the most environmentally destructive.
In 1960, Congress reacted to the Forest Service’s emphasis on timber production by refining and then restricting the agency’s management discretion. The Multiple-Use, Sustained-Yield Act of 1960 (MUSYA) dictated that the national forests be administered to promote a variety of uses, including outdoor recreation, grazing, watershed protection, and fish and wildlife protection. The Forest Service nevertheless continued its post-war emphasis on timber production, and the courts refused to intervene. Congressional inquiries condemned the agency’s excessive focus on maximizing timber production and urged consideration of whether clearcutting resulted in unacceptable environmental impacts. Congress responded by adopting the National Forest Management Act of 1976 (NFMA), which significantly reined in Forest Service discretion.
The NFMA continues to govern management of the national forests today. It declares a policy of managing the national forests to secure the maximum benefits of multiple-use, sustained-yield management, and imposes both procedural and substantive constraints on Forest Service management. The statute requires the Forest Service to solicit public participation in the development of the land management plans that govern use of particular NFS units. It also requires that the agency ensure that these plans are prepared in accordance with the National Environmental Policy Act (NEPA), the law that requires the preparation of environmental impact statements for major federal actions significantly affecting the quality of the environment. The NFMA also limits agency discretion by restricting the use of clearcutting and other even-aged management harvesting techniques in order to minimize the adverse environmental effects of timber harvesting. The statute directs the Forest Service to provide for diversity of plant and animal communities in order to meet multiple-use objectives.
What People are Fighting About
Congress enacted the NFMA to ensure a balance among competing uses of national forest resources. Yet, the agency retains considerable discretion in choosing which uses to promote both in the NFS as a whole and in individual units of the system. Various presidential administrations have taken widely divergent approaches to the exercise of that discretion. First, the extent to which the Forest Service has committed itself to protection of healthy forest ecosystems and sustainable land and resource use has varied widely over time. Second, the Forest Service’s commitment to providing opportunities for meaningful public participation in the decisions that govern NFS management has waxed and waned. Third, the Forest Service has taken inconsistent positions on the degree to which it will delegate the authority to resolve important policy questions concerning resource use to state and local governments.
Sustainable Uses. The debate over the appropriate mix of uses in the national forests has played out in the process used to adopt and revise the land use plans that govern management of individual NFS units. At times, Forest Service regulations have emphasized the promotion of ecological sustainability as the overriding goal of national forest management and the protection of species diversity. At other times, political and economic pressures have prompted a return to the Forest Service’s pre-NFMA, skewed emphasis on timber harvesting, resource extraction, and consumptive uses. The Forest Service’s shifting approach to the management of roadless areas in the NFS provides another example of how the agency’s policies can support or undercut ecosystem health and biological diversity. At times, the Forest Service has virtually banned timber harvesting and road construction in these undisturbed areas, while at others it has taken the position that roadless areas typically should be governed by the same land use plans that govern other, more developed areas of the NFS, unless a state successfully petitions the Secretary of Agriculture for more protective standards.
Public Participation. Likewise, the agency’s willingness to invite and give serious consideration to public input on forest management issues has been inconsistent. Beginning in 2001, the Forest Service created significant obstacles to effective public input, including a narrowing of the range of decisions subject to administrative appeal. The agency moved in this direction despite the Appeals Reform Act of 1992, in which Congress sought to require meaningful opportunities for public input.
The Forest Service’s efforts early this century to carve out an increasingly broad range of decisions that would be exempt from NEPA analysis has also served to reduce opportunities for public participation (as well as the chances that adequate consideration would be given to the effects of resource management decisions on ecosystem health and sustainable resource use). In particular, the Forest Service adopted a broad categorical exclusion from NEPA procedures for land and resource management plan adoptions and revisions, in apparent contravention of the NFMA’s decree that “plans [be] prepared in accordance with” NEPA, and of the requirements and policies of NEPA itself. That approach deviated from nearly 30 years of Forest Service practice beginning with the adoption of the NFMA. At times, Congress has acquiesced in these efforts to exclude the public from having a say in how the nation’s public forest resources are used. The Healthy Forests Restoration Act of 2003, Pub. L. No. 108-148, 117 Stat. 1887, for example, exempted from the NEPA evaluation process certain agency decisions concerning forest management.
Delegation of Authority to the States. Finally, the Forest Service has at times guarded its responsibility to make land and resource management decisions that serve the interests of the nation as a whole. At other times, however, it has enhanced the role of state and local governments in determining the fate of national forest resources, despite the likelihood that these levels of government will favor parochial economic interests in lieu of the larger national interest in maximizing the long-term value of national forest resources. The version of the agency’s roadless area management policy adopted in 2005 illustrates the agency’s willingness to forfeit control over at least some aspects of the fate of NFS lands and resources.
A Progressive Perspective
Over the years, to a greater or lesser extent, Forest Service initiatives have placed the achievement of the congressionally mandated goals of multiple use and sustained yield in jeopardy. These initiatives tend to promote a narrow range of private economic interests in the use of national forest resources, largely free of public scrutiny or accountability. This short-sighted focus is likely to be counterproductive, even using a crude dollars and cents yardstick. It is certain to sacrifice less easily quantified resource protection values enshrined in applicable legislation.
It is important to restore and maintain a decisionmaking process capable of achieving the NFMA’s goals. Any bias created by Forest Service rules and policies in favor of short-term extractive use must be eliminated. (For discussion of the destructive effects of another agency’s bias in favor of allowing grazing on public lands that contain essential wildlife habitat, world-famous scenery, and outstanding recreational opportunities, see CPR Perspective: The Trade-off Myth of Livestock Grazing on Public Lands.) Instead, the Forest Service should strive to achieve balanced, multiple-use management that recognizes the importance not only of consumptive and extractive uses, but also of protecting and promoting preservation of forest resources to safeguard their availability for future generations. This protection is more important now than ever, as the processes of climate change are poised to create unparalleled stresses on NFS resources. The healthier the forests are, and the more diverse the resources they contain, the greater will be their capacity to absorb and respond to these stresses without fundamental loss of the ability of the national forests to serve the varied purposes for which they have been set aside.
What’s at Stake?
Preservation of the incalculable value our NFS lands have to both present and future generations of Americans for a wide variety of uses, from resource extraction to recreation to resource preservation. Whether the Forest Service will squander this rich stock of resources or act as stewards for future generations, as Congress has directed.
It is also essential that the Forest Service make resource management decisions on the basis of the best information available and that it be held accountable for the decisions it makes. These goals are best achieved if the laws that govern Forest Service decisionmaking process allow public access to the information being considered by the agency and afford interested persons meaningful opportunities for input and participation. These opportunities should include the ability to submit written comments, participate in public hearings, pursue administrative appeals, and, unless there is an adequate substitute, seek judicial review of agency decisions based on a record that enables judges to scrutinize the agency’s decision for rationality and compliance with applicable statutory requirements.
In addition, it is vital that Forest Service management decisions, including the adoption and revision of land use plans, be subject to the full panoply of NEPA assessment procedures. Congress enacted NEPA to force agencies to consider the possible adverse effects of proposed actions before committing to them. Absent legal compulsion, these agencies have every incentive to downplay if not ignore these environmental effects. This description fits the pre-NFMA Forest Service very well. It flies in the face of both NEPA and the NFMA (which explicitly requires the application of NEPA to planning decisions) to carve out significant exemptions from NEPA responsibilities for Forest Service management decisions.
Although solicitation of input from affected state, tribal, and local interests is both appropriate and highly desirable, the agency should not delegate to those interests the authority to make or unduly influence decisions concerning the fate of NFS resources. These interests are unlikely to have the national perspective needed to make decisions that best suit the owners of the national forests, the American public. It is sometimes the case, for example, that local governments are particularly prone to capture by industries important to the local economy.
Robert L. Glicksman, Sustainable Federal Land Management: Protecting Ecological Integrity and Preserving Environmental Principal, 44 Tulsa L.J. 147 (2008)
Robert L. Glicksman, Ecosystem Resilience to Disruptions Linked to Global Climate Change: An Adaptive Approach to Federal Land Management, 87 Neb. L. Rev. 833 (2009)
Robert L. Glicksman, Bridging Data Gaps through Modeling and Evaluation of Surrogates: Use of the Best Available Science to Protect Biological Diversity Under the National Forest Management Act, 83 Ind. L.J. 465 (2008)
Robert L. Glicksman, Traveling in Opposite Directions: Roadless Area Management under the Clinton and Bush Administrations, 34 Envtl. L. 1143 (2004)
Sandra Zellmer, A Preservation Paradox: Political Prestidigitation and an Enduring Resource of Wildness, 34 Envtl. L. 1015 (2004)
Alyson Flournoy, et al., Regulations in Name Only: How the Bush Administration’s National Forest Planning Rule Frees the Forest Service from Mandatory Standards and Accountability (CPR White Paper June 2005), available at www.progressivereform.org/articles/Forests_508.pdf
Robert L. Glicksman & George Cameron Coggins, Wilderness in Context, 76 Denv. L. Rev. 383 (1999).