Forest Planning: Bound for the Courts Again

Kenneth L. Rosenbaum

Editors' Summary: Public lands interest groups expect widespread litigation in the late 1980s over the 125 national forest land and resources management plans due under the National Forest Management Act (NFMA). This Comment speculates on the issues that will surface in the coming litigation, focusing on three controversial parts of the NFMA: § 6(k), dealing with designation of lands unsuitable for timber management; § 13, dealing with departures from sustained-yield management for timber; and § 6(g)(3)(B), dealing with preservation of forest diversity.

[14 ELR 10195]

Congress enacted the National Forest Management Act (NFMA)¹ in 1976 "to get the practice of forestry out of the courts."² Ironically, the NFMA has sown the seeds for a forest of litigation in the late 1980s. In 1985, land and resources management plans for 125 units of the National Forest System come due under the Act.³ To date, the Forest Service has released final environmental impact statements (EISs) for five plans.⁴ Environmental groups and others have appealed all five to the Chief of the Forest Service. The Forest Service has withdrawn one plan to correct clerical errors in the timber harvest calculations;⁵ the Chief has remanded one plan for supplementation;⁶ the other three have had oral hearings and await the Chief's decision.

If these appeals are any indication, the Forest Service is in for a long process of administrative reexamination of its plans. Many of the issues raised on appeal will deal with matters clearly committed to agency discretion: choice of timber models, prediction of recreation demand, and other expert findings of fact. Some challenges, though, will raise matters of law, and many of these will move on to the courts.

The land and resources management plans will raise issues under many statutes. There will be rich opportunity for National Environmental Policy Act (NEPA)⁷ litigation. In the past, the Forest Service has been known to unduly limit the range of alternatives considered in planning, effectively favoring marketable resources like timber and grazing over nonmarketable ones like wilderness and wildlife.⁸ Forest Service regulations now expressly call for consideration of a full range of alternative management schemes.⁹ Interest groups could well contest the agency's compliance with this regulation in the plans. Also, since planning will involve dealing with unpredictable events such as reforestation failures or changes in resource demands, the plans may require worst case analyses.¹⁰ Since the breadth of the worst case requirement is only now becoming apparent¹¹ and since the plans already are far along, many are likely to lack needed worst case studies.

[14 ELR 10196]

Besides the NEPA issues, challenges to the plans will lie under other statutes. Many of the forests are home to creatures protected under the Endangered Species Act,¹² and any actions affecting protected species will get close scrutiny by environmentalists. Also, the forests contain historic and cultural resources protected under the National Historic Preservation Act.¹³ One has only to look at past national forest planning litigation to get an idea of some of the issues that may be raised.¹⁴

But it is more difficult to predict whether legal questions will arise out of the NFMA itself. As explained below, when Congress passed the Act, it was trying to limit intrusion of judicial review into forest management. Nonetheless, the Act does require the Forest Service to adhere to specified procedures and substantive standards. This Comment examines the nature of the NFMA's constraints on the Forest Service discretion in the context of three provisions in the Act that the legislative history and early administrative challenges indicate will be controversial.

The NMFA's Background

In 1973, a district court in West Virginia ruled that the Organic Act of 1897¹⁵ forbade the Forest Service to clearcut trees in the Monongahela National Forest.¹⁶ Specifically, the court held that only "dead, matured, or large growth trees" could be cut, and each tree to be cut had to be individually marked. The district court's decision soon was affirmed by the Fourth Circuit¹⁷ and followed by a district court in Alaska.¹⁸

For the Forest Service and the timber industry, these rulings precipitated a crisis. Besides making clear-cutting impossible, the court-ordered constraints prevented the use of thinning and other vegetation management techniques and made any sort of timber sale difficult. With the agency's practical ability to arrange timber sales crippled, the projected harvest from affected forests dropped sharply.¹⁹

Congress responded to the court rulings with the NFMA. Th Act was born of compromise and reflects a Congress of at least two minds. The Monongahela situation seemed to convince Congress that it was unwise to tie the hands of the Forest Service with legislation.²⁰ In particular, national legislation could not prescribe specific management practices; these decisions had to be made locally. However, at least some in Congress were afraid that with too few standards, the Forest Service could be steered by interest groups into poor policy choices.²¹

The basic approach Congress took in the NFMA was to give the Forest Service broad substantive discretion, but to bind the agency to a deliberate, public decision process. Two years before, in the Forest and Rangeland Renewable Resources Planning Act (RPA),²² Congress established the beginnings of a national planning process for the national forests. The RPA called for periodic national assessment of the resources of the national forests and the demand for these resources,²³ and for periodic establishment of national objectives and output goals.²⁴ The RPA called for planning at the "local" national forest level, but did not impose many constraints on the process.²⁵

The NFMA fleshed out the planning process outlined in the RPA. The NFMA calls for periodic unit plans for each national forest — plans addressing local, site-specific concerns, including timber harvest programs, methods for site preparation and harvesting, and land use designations;²⁶ all reflecting the goals in the national plan²⁷ and the policy directive of the Multiple-Use Sustained-Yield [14 ELR 10197] Act (MUSYA).²⁸ The NFMA lays down the procedural standards for the local planning process, including standards for developing regulations to guide the process,²⁹ and standards for public participation.³⁰ Scattered among the broad procedural prescriptions of the NFMA are more specific, quasi-substantive passages aimed at particular management policies that troubled factions in Congress. These passages are drawing the most scrutiny from potential litigants. Three of these controversial provisions dealing with timber harvest on "unsuitable" lands, departures from sustained yield, and preservation of forest diversity are examined below.

Unsuitable Lands

NFMA § 6(k) requires each local plan to designate which lands are suitable for timber management "considering economic, physical, and other pertinent factors."³¹ But § 6(k) on its face leaves many questions unanswered about the decision process for identifying these lands. What economic factors should the Forest Service assess? How should the agency weight them? Should the Forest Service do the § 6(k) designation first, letting it determine maximum timber output from a forest area, or should timber output goals shape the § 6(k) designation?

Environmental groups are taking a close look at § 6(k) implementation because the section offers a mechanism for increasing the acreage of national forests managed primarily for wildlife, wilderness, watershed, and other non-timber uses. The Forest Service conducts commercial timber operations on many sites where the Service's costs of production are greater than its dollar returns.³² This situation is particularly common in the Rocky Mountain forests. Some environmentalists argue that § 6(k)'s economic test bars management of such lands for timber production.

The original version of the NFMA passed by the Senate, S. 3091, precluded harvests on economically unsuitable lands. It required the Forest Service to estimate its own costs and returns from timber production and allowed harvesting as a management goal only on lands where returns exceeded costs.³³ The legislative history suggested that the law required a rather straightforward analysis of the economic implications of timber management for the Forest Service and a straightforward application of that analysis.³⁴ The agency would have no discretion to manage economically unsuitable lands for commercial timber production.

The House version of the bill required the agency to develop data on its costs and returns, but did not require that the data be employed in management decisions. The Forest Service would have broad discretion to manage economically unsuitable lands for timber.³⁵

The conference committee drafted § 6(k), a compromise between the two positions, but where it struck the balance is unclear. The section requires the Forest Service to "identify lands … not suited to timber production, considering physical, economic, and other pertinent factors to the extent feasible, as determined by the Secretary."³⁶ The committee declined to specify exactly what other factors might be pertinent to identifying these unsuitable lands, but in its report suggested some examples: "advances in logging techniques, improved genetic stock, or improved knowledge about the relationship between the resource components of the general land area."³⁷

From the conference language and report, one might conclude that § 6(k) requires the agency to conduct a formal inventory of lands for suitability for timber production, applying only economic, physical, and closely related factors. However, some of the statements made on the floor in considering the conference bill suggest that the provision allows the Forest Service far more discretion in identifying unsuitable lands. Representative Foley criticized the rejected Senate version as "difficult to administrater,"³⁸ implying that the conference version imposed less onerous procedural constraints. Representative Symms declared that the conferees gave detailed consideration to the marginal lands provision and decided that "it would be unwise to impose rigid and inflexible economic or other constraints to be applied to all national forest lands."³⁹ He said the conferees intended the Forest Service to take into account "impacts on local dependent economies,"⁴⁰ a sort of economic analysis much beyond the dollars-in, dollars-out test contemplated in the Senate. Senator Randolph angrily characterized the compromise language as so broad as to be "virtually meaningless."⁴¹

The Forest Service has leaned heavily on this floor language in interpreting § 6(k).⁴² It currently reads the law to allow it to consider multiple-use factors in deciding whether land is suitable, and to balance some factors while using others as separate, sine qua non tests of suitability. The designation process currently employed by the Forest Service in the unit plans can be summarized in three steps.⁴³ First, the agency eliminates from consideration all lands that biologically cannot support a productive forest; physically are impractical to harvest; or legally have been withdrawn from timber production, administratively [14 ELR 10198] or by Congress. Second, the agency calculates its costs and returns from timber production on the remaining lands. Finally, the agency then takes the timber goal, set for the forest in a regional plan, which in turn had its timber goal set in the RPA national plan, and assigns enough lands to timber production as are necessary to meet the goal, choosing preferentially those lands with higher returns and those lands not needed to meet other multiple-use goals such as recreation or watershed protection.⁴⁴ In choosing, the Forest Service also considers the effect of the choice on the stability of local timber-dependent communities. Thus, the designation process is integrated into the general planning process, and the § 6(k) designation is an end product of the plan. On some forests, high timber goals require using lands where the agency's costs exceed returns.

The extent of the Forest Service's discretion under § 6(k) has already been questioned in the pending administrative appeals.⁴⁵ Appellants have argued that although Congress intended multiple-use considerations to guide implementation of the NFMA,⁴⁶ statutory construction principles argue against using multiple-use factors to determining suitability. First, the factors are of a different class from the economic and physical factors listed in the section and the conference report. Second, Congress expressly provided for consideration of multiple-use values after the suitability designation, in an exception in § 6(k) allowing timber harvest on unsuitable lands to protect such values. On another aspect of the issue, appellants argue that nothing in the Act or its history suggests that the Forest Service may treat economic suitability differently from the way it treats physical suitability in designating unsuitable lands. In fact, there is floor language that, contrary to the language relied on by the Forest Service, suggests that the economic test the agency uses should be as absolute as the physical test.⁴⁷ It is an abuse of discretion for the Forest Service to make physical practicability an absolute, one-shot test while making economic impact a "soft" factor, weighted more than once in the decision process in the form of prices, output goals, and community stability. Further, appellants interpret § 6(k) to require that the suitability determination be prologue rather than conclusion in the plan; that suitability should determine output, not vice versa. In NFMA § 6(g)(2),⁴⁸ which orders the Forest Service to establish guidelines for parts of the planning process, Congress grouped suitability designations in the same subsection as resource inventories and identification of special conditions and hazards, activities that establish the basic constraints within which the forester must work. Finally, appellants contend that § 6(k) is basically a remedial section, aimed at the problem of non-cost-effective timber production. The Forest Service's implementation fails to serve this remedial aim.

Still, the Forest Service position is strong. Besides the floor language, the government can point to the broad discretion apparently granted the agency by the language of § 6(k) itself: "factors … as determined by the Secretary." The Forest Service also may rely on past court interpretations of the MUSYA that held that where Congress does not specify the weight to be given various objectives, the Forest Service is free to weigh them as it deems fit, within the bounds of reason.⁴⁹ The question is a close one, but the deferential stance of Congress in passing the NFMA seems to tip the balance in favor of the agency.

Departures

NFMA § 13 commits the Forest Service to manage its lands to produce a perpetual, non-declining "sustained yield" of timber.⁵⁰ However, the section allows the Forest Service to depart from this committed level if necessary to meet multiple-use objectives. Observers inside and outside the Forest Service are considering how much discretion § 13 gives the agency, and how the agency will use it.

From its founding, the Forest Service has been wedded to the concept of managing the forests to provide an unending supply of renewable resources. Indeed, the Forest Service and the institution of government forestry in the United States owe their establishment to backlash against the "cut-out and get-out" practices prevalent on private lands around 1900 (and, some say, still today).⁵¹ Gifford Pinchot and the other founders of American forestry believed in holding harvests to levels that the forests could sustain forever, so avoiding "timber famines" and guaranteeing the stability of timber-dependent communities.⁵² Their credo has been formalized in law: notably in the MUSYA⁵³ and, as described above, in the NFMA. In planning, the Forest Service projects timber yields [14 ELR 10199] decades into he future to ensure that sustained yield at the present harvest level is possible.

Strict adherence to sustained yield has notable consequences in forests with many stands of very old trees, such as some of the national forests in the Pacific Northwest. Very old trees grow slowly — in fact, with natural death and decay, the amount of timber recoverable from "old growth" stands may actually decrease with time. A manager out to maximize growth on the forest would cut the old growth to replace it with fast growing young trees. However, old growth represents a tremendous volume of timber. If the old growth were harvested quickly, there would be a terrific surge in the supply of timber — a surge that the forest could not sustain indefinitely. Thus, the sustained-yield constraint prevents the Forest Service from rapidly cutting old growth, a practice common on industry lands. Since old growth is first-quality watershed land, essential for certain species of wildlife, and often quite scenic, environmentalists support sustained-yield management as a brake on the loss of old growth.

The original Senate version of the NFMA endorsed the sustained-yield limits on timber removal; however, it gave the agency discretion to depart from sustained yield in any one year so long as the average harvest over a decade was within the sustained-yield limit.⁵⁴ The House version had no sustained-yield restriction.⁵⁵ The conference committee apparently sought a middle ground between the constraints of the Senate and the unfettered House bill.⁵⁶ They adopted the Senate Provision but amended it to give the Forest Service the discretion to depart from the sustained-yield limit "in order to meet overall multiple-use objectives."⁵⁷ The conference report explains that the reasons for departing from sustained yield may include "the desirability of improving the age-class distribution."⁵⁸ For optimal timber production under sustained yield, a forest should have equal acreage of trees in each age class, up to the age for optimal harvest. This means no old growth. Of course, for proper age-class distribution, the old growth would have to be cut gradually, over many years, and other multiple-use goals militate for saving some old growth for wildlife, watershed, and recreation, but Congress has given the Forest Service an untested and tempting avenue for reducing old growth acreage on western forests.

There is no question that the Forest Service has the discretion to depart from sustained yield; the question is, what are the bounds of that discretion? The bounds in part depend on the meaning of the exception in § 13 to meet "multiple-use objectives." Thephrase "multiple use" refers to the objectives for national forest management set out in the MUSYA.⁵⁹ MUYSA defines the goals of forest management in two ways.It lists a set of "purposes" of forest management. There are "outdoor recreation, range, timber, watershed, wildlife, and fish."⁶⁰ If these are the multiple-use objectives Congress had in mind, the Forest Service would have to justify and departure in rather concrete resource management terms, i.e., that it would further the production of resources on a forest. However, MUSYA also has an express definition of multiple use: "[t]he management of all the various resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people …."⁶¹ Under this abstract definition, a departure could be justified in much more general terms, e.g., that it aided the local economy. The Forest Service § 13 regulations rely on the latter definition of multiple use.⁶²

The Forest Service's interpretation of "multiple-use objectives" has not yet been challenged in a plan appeal because the agency has not yet proposed final plans for any departures.⁶³ The old-growth Pacific Northwest forests, where departures are most likely, will not have final plans before 1985. When they do, the issue will probably be sent through administrative appeals and on to the courts. There the courts will have a ticklish problem. Though the Forest Service's interpretation is plausible on its face, it all but allows the departure exception to swallow the sustained-yield rule. There is no evidence that Congress was trying to toss out an established administrative policy. In fact, some floor language suggests that Congress expected departures to be rare.⁶⁴ The agency's interpretation of § 13 admits of almost no restraints on departures; because of Congress' apparent intent that sustained yield remain the rule, a court could find the Forest Service interpretation, on its face or as applied, contrary to the statute.

Diversity

NFMA § 6(g)(3)(B) directs the Forest Service to promulgate regulations to "provide for diversity of plant and [14 ELR 10200] animal communities … and … where appropriate, to the degree practicable … to preserve the diversity of tree species."⁶⁵ The Forest Service regulations permit reductions in diversity "only where needed to meet overall multiple-use objectives."⁶⁶ "Diversity" is a broad concept, and the statute and regulations do little to narrow it. Many forest management activities reduce diversity. The Forest Service may be surprised to discover in court one day how many practices require findings of necessity under its regulations. That day will not come soon, however, since none of the plans completed to date raise diversity issues.

One forestry practice in particular inspired Congress to include § 6(g)(3)(B) in the NFMA: the conversion of southern and eastern deciduous forests, some of the most diverse temperate forests in the world, to pine monocultures.⁶⁷ The Senate had these conversions in mind when it drafted a section of the NFMA calling for preserving the diversity of plant and animal communities.⁶⁸ The House amendment required the Forest Service to preserve the diversity of tree species.⁶⁹ These provisions merged in conference to form § 6(g)(3)(B). The conference committee did not fashion the section to apply just to conversions of eastern hardwoods to pine. It was careful to prescribe policy, not practice, and to lay down guidelines applicable nationwide.⁷⁰ It phrased the evil to be avoided in broad terms: loss of diversity of plant and animal communities and tree species.

Diversity means many things to an ecologist or a forester.⁷¹ It includes biochemical diversity — the variety of biochemical processes found in a community — and genetic diversity — the variety of genotypes present. On other levels, there are species-variety diversity — how many different species are present in a community; species-equitability diversity — the extent to which there is an equal balance among the different species in a community; and community-pattern diversity — how many different communities there are in a forest and how they are arranged. In the many sorts of diversity there is some common ground. All losses of diversity are linked to common forest evils: they make the forest more prone to large-scale impacts from outside disturbances like storms, insects, or diseases; poorer at conserving essential nutrients and maintaining its capacity for productivity; and less a store of various resources for man.⁷² The question presented by § 6(g)(3)(B) is whether Congress really intended to legislate against these broad evils.

Many forest management practices affect diversity in the broad sense. Genetic-improvement programs tend to reduce the genetic diversity of stands of trees. In fact, any sort of three planting program is likely to reduce the genetic diversity of the forest, since the seed sources for the nursery seldom reflect the whole forest gene pool. Herbicide use preferentially eliminates unwanted species, lowering diversity. So does manual site preparation⁷³ or release.⁷⁴ Clear-cutting a deciduous forest may encourage regeneration of pines in some locations, increasing the diversity of the forest, but lowering local diversity. In fact, such a harvest plan is a "type conversion," requiring special findings under the Forest Service regulations.⁷⁵ Clear-cutting old growth may destroy animal habitat, lowering diversity — or in an area with much old growth, it may increase animal diversity. Even fire suppression may lead to less diverse communities.

None of these activities are prohibited by § 6(g)(3)(B) or the Forest Service regulations. But arguably all require a finding of necessity under the regulations before they may be included in a forest plan. The Forest Service may argue that it intended its regulations to refer to one specific notion of diversity, i.e., the number of species within each community, but there is no support for that argument in either the regulations or the statute. Congress may have had a single problem in mind, but as it did with all sections of the NFMA it stated the remedy in general terms to cover forest management nationwide. And while a court may be inclined to let the agency have the last word on a substantive decision, it is likely to be less deferential to Forest Service attempts to depart from the procedural requirements spelled out in its regulations.⁷⁶

Conclusion

The National Forest Management Act grants the Forest Service broad discretion in substantive decisionmaking, but is not without standards to fetter that discretion. As an early commentator observed:

[T]he Forest Service will continue to exercise a good deal of discretion in making management decisions. Indeed, Congress intended this result. Congress was attempting to establish only the broad policy direction ….

The nature of the considerations involved … make some degree of discretion inevitable. The final result [of the NFMA] though, should be to expand the reviewability of Forest Service management decisions at least some incremental amount.⁷⁷ [14 ELR 10201] These observations still ring true. Independent environmental statutes like NEPA will continue to be the primary avenue for challenges to Forest Service management practices. The NFMA, which provides the Forest Service with broad substantive discretion, as in applying the unsuitability criterion, and, perhaps, the sustained-yield departure standard, will be at most a secondary road for environmentalist challenges. But, like any complex natural resource law, the NFMA imposes procedural requirements so numerous and diverse that even the implementing agency may not recognize their significance. They are there for litigators to find, and the courts. And find them they will, for under our administrative system, neglected procedural requirements, such as the one that may lurk in the diversity laws, are the interest groups' leverage points.⁷⁸

1. Pub. L. No. 94-588, 90 Stat. 2949, amnding the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA) and codified with that Act and others at 16 U.S.C. §§ 1600-1614, ELR STAT. 41435.

2. Statement of Sen. Humphrey in the floor debate on the conference version of the bill, 122 CONG. REC. 33835 (1976).

3. NFMA § 6(c), 16 U.S.C. § 1604(c), ELR STAT. 41436.

4. The Santa Fe National Forest (NF) (appealed by Save the Jemez, The Wilderness Society, New Mexico Coalition for Clean Air and Water, Inc., Jemez Pueblo, Five Sandoval Indian Pueblos, Inc., All Indian Pueblo Council, and the State of New Mexico); the Black Hills NF (appealed by the National Wildlife Federation and the South Dakota Wildlife Federation); the Routt NF (appealed by Troublesome RARE III, Colorado Open Space Council, Northwest Rivers Alliance, National Audubon Society, and Service Creek Protection Association); the San Juan NF (appealed by Natural Resources Defense Council, Inc., Public Lands Institute, The Wilderness Society, National Audubon Society, Colorado Open Space Council, Colorado Wildlife Federation, Colorado Mountain Club, and the San Juan Audubon Society); and the Grand Mesa, Uncompaghre, and Gunnison NFs (appealed by the first seven parties in the San Juan appeal plus High Country Citizen Alliance, Western Slope Energy Research Center, and the Audubon Society of Western Colorado).

5. The Santa Fe NF plan.

6. The Black Hills NF plan, by decision of the Chief, April 1; 1984.

7. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

8. See, e.g., California v. Block, 690 F.2d 753, 13 ELR 20092 (9th Cir. 1982) (the Forest Service's second roadless area revew and evaluation (RARE II) violated NEPA by failing to consider reasonable range of alternatives).

9. 36 C.F.R. § 219.12(f). See also Forest Service Manual § 1951, ELR REG. 46060-64.

10. See the Council on Environmental Quality's NEPA regulations, 40 C.F.R. § 1502.22, ELR REG. 46023. See generally, Comment, CEQ's "Worst Case Analysis" Rule for EISs: "Reasonable" Speculation or Crystal Ball Inquiry?, 13 ELR 10069 (1983).

11. A recent case well illustrates the application of worst case analysis to forest planning. See National Wildlife Federation v. United States Forest Service, 14 ELR 20349 (D. Or. Apr. 3, 1984).

12. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

13. 16 U.S.C. §§ 470-470w-6, ELR STAT. 42435. Appellants contested the Forest Service's compliance with this Act in the aborted Santa Fe NF plan.

14. See, e.g., Oregon Environmental Council v. Kunzman, 714 F.2d 901, 13 ELR 20901 (9th Cir. 1983) (NEPA, Federal Insecticide, Fungicide, and Rodenticide Act issues); National Wildlife Federation v. United States Forest Service, 14 ELR 20349 (D. Or. Apr. 3, 1984) (NEPA, NFMA, Multiple-Use Sustained-Yield Act (MUSYA) issues); Northwest Indian Cemetery Protection Association v. Peterson, 565 F. Supp. 586, 13 ELR 20793 (N.D. Cal. 1983) (First Amendment, NEPA, Wilderness Act, Federal Water Pollution Control Act, Indian reserved water and fishing rights, Indian Religious Freedom Act, National Historic Preservation Act issues).

15. The Organic Act was codified at 16 U.S.C. §§ 473-483, 511. NFMA partially repealed the Organic Act.

16. West Virginia Division of the Izaak Walton League v. Butz, 367 F. Supp. 422, 3 ELR 20895 (N.D. W. Va. 1973) (granting summary judgment), 4 ELR 20128 (N.D. W. Va. Dec. 21, 1973) (issuing injunction), affirmed, 522 F.2d 945, 5 ELR 20573 (4th Cir. 1975).

17. West Virginia Division of the Izaak Walton League v. Butz, 522 F.2d 945, 5 ELR 20573 (4th Cir. 1975).

18. Zieski v. Butz, 406 F. Supp. 258, 6 ELR 20129 (D. Alaska 1975).

19. The Forest Service estimated that under the above decisions, harvests on eastern forests would drop to 10 percent of previous levels, and western harvests would drop to 50 percent of previous levels. See S. REP. NO. 893, 94th Cong., 2d Sess. 9, 48-53, reprinted in 1976 U.S. CODE CONG. & AD. NEWS. 6662, 6670, 6706-12 [hereinafter cited as Senate Report].

20. "Detailed prescriptive language was specifically avoided, since it was recognized that it would be impossible to write into law detailed requirements which would fit the tremendously varied forest and rangeland conditions that exist on the national forests." 122 CONG. REC. 34229 (1976) (remarks of Rep. Symms on the Land Management Planning Guideline in the Act). "[I]t was decided in would be unwise to legislate national prescriptions …." Senate Report, supra 19, at 26, reprint at 6685.

21. E.g., Senator Randolph introduced a much more prescriptive bill,S. 2926. See the legislative history cited supra in note 19. Sen. Randolph said of the final version of the Act:

The Congress has not adequately addressed a needed remedy to respond to the impact of the Monongahela decision. Instead, this legislation will be the subject of intense litigation. We provided the Forest Service with the Complete authority to harvest timber in any manner it desires with little or no protection for soil, nutrients, aesthetics, wildlife, watershed protection, or slope condition. We have relegated the multiple-use concept to a secondary position while placing timber harvest on a pedestal.

Citizens will demand a redress in the courts and in the Congress and their collective appeal will eventually be heard

People own the national forest lands and have had too little impact with the Congress on the management of these lands.

122 CONG. REC. 33838 (1976).

22. Pub. L. No. 93-378, 88 Stat. 476, codified with the NFMA and other Acts in 16 U.S.C. §§ 1600-1614, ELR STAT. 41435.

23. See RPA § 3, 16 U.S.C. § 1601, ELR STAT. 41435.

24. See RPA § 4, 16 U.S.C. § 1602, ELR STAT. 41436.

25. RPA § 6(a), 16 U.S.C. § 1604(a), ELR STAT. 41436.

26. NFMA § 6, 16 U.S.C. § 1604, ELR STAT. 41436-38.

27. See 36 C.F.R. § 219.4(b). The Forest Service divides the national goals among the nine Forest Service regions; each region further divides the goals among its forests.

28. 16 U.S.C. §§ 528-531, ELR STAT. 41406.

29. See NFMA § 6(g) & (h), 16 U.S.C. § 1604(g) & (h), ELR STAT. 41437.

30. See NFMA § 6(d), 16 U.S.C. § 1604(d), ELR STAT. 41436.

31. NFMA § 6(k), 16 U.S.C. § 1604(k), ELR STAT. 41437.

32. See NATURAL RESOURCES DEFENSE COUNCIL, INC., GIVING AWAY THE NATIONAL FORESTS (1980).

33. S. 3091, 94th Cong., 2d Sess., sec. 5 amending § 6(d)(6)(H)(iii).

34. See Senate Report, supra note 19, at 15, 38, reprint at 6675, 6697.

35. See S. REP. NO. 905, 94th Cong., 2d Sess. 28-29, reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6721, 6730-31 [hereinafter cited as Conference Report].

36. 16 U.S.C. § 1604(k), ELR STAT. 41437.

37. Conference Report, supra note 35, at 28, reprint at 6730.

38. 122 CONG. REC. 34227 (1976). Rep. Foley was floor manager of the conference bill in the House, and head of the House delegation in the conference committee.

39. 122 CONG. REC. 34228 (1976). Rep. Symms was a member of the conference committee.

40. Id.

41. Id. at 33838. See supra note 21.

42. Forest Service Response to Appellants' Statement of Reasons in Support of Appeal, Appeal No. 943 (San Juan NF Land and Resources Management Plan), ch. II (Jan. 23, 1984).

The Forest Service's interpretation of § 6(k) is embodied in its regulations, 36 C.F.R. § 219.14, promulgated in 1982. A previous interpretation of the subsection, 36 C.F.R. § 219.12, promulgated in 1979, takes a similar view of the agency's powers and duties.

43. From 36 C.F.R. § 219.14; see also Forest Service Manual §§ 2415-2415.23; Forest Service Response, supra note 42, ch. II.

44. Lands identified as "unsuitable" for timber management include those eliminated in step 1, those necessary to meet planning goals for other uses, and those left over after step 3.

45. In the San Juan NF and Grand Mesa, Uncompaghre, and Gunnison NF appeals. See supra note 4.

46. See NFMA §§ 2(3), 6(e)(1), 16 U.S.C. §§ 1600(3), 1604(e)(1), ELR STAT. 41435, 41436.

47. E.g., "The bill also fully protects the environment by putting limits … on the use of … commercially unproductive land for timber." 122 CONG. REC. 34231 (1976) (remarks of Rep. Baucus); "The conference report retains the Senate'sprohibition on managing an area for timber production on marginal lands if the cost of management exceeds the sale price of the timber that is proposed to be harvested." Id. at 33958 (remarks of Sen. Nelson after passage of the bill).

48. 16 U.S.C. § 1604(g)(2), ELR STAT. 41437.

49. Sierra Club v. Hardin, 325 F. Supp. 99, 1 ELR 20161 (D. Alaska 1971), remanded sub nom. Sierra Club v. Butz, 3 ELR 20292 (9th Cir. Mar. 16, 1973). On remand, the Ninth Circuit found it unnecessary to rule on the agency's weighing of factors, but noted that where Congress specifies no weights, the agency's weighing at the very least must be informed and rational.

50. 16 U.S.C. § 1611, ELR STAT. 41439.

51. See generally Senate Report, supra note 19, at 7-8, reprint at 6667-68. For a perspective on attitudes about government management of resources in the early days of the Forest Service, see Z. GREY, THE YOUNG FORESTER (1910). See also M. CLAWSON, FORESTS FOR WHOM AND FOR WHAT? 79 (1975); B. J. PARRY, H. VAUX, N. DENNIS, THE EVOLUTION OF U.S. FOREST SERVICE SUSTAINED YIELD POLICY (1982) (Research Paper No. 1, Center For Natural Resource Studies).

52. See S. DANA, FORESTRY AND COMMUNITY DEVELOPMENT (1918) (U.S. Dep't of Agriculture Bulletin No. 638).

53. MUSYA §§ 2, 4(b), 16 U.S.C. §§ 529, 531(b), ELR STAT. 41406. See also 16 U.S.C. §§ 583-583i, a little-used 1944 law allowing private landowners to pool their holdings with the Forest Service to form sustained-yield units, with timber from the units preferentially sold to the pooling private parties. The purpose was to promote stable timber-based economies. To the author's knowledge, only one such unit has ever been formed.

54. See Senate Report, supra note 19, at 26, reprint at 6685-86.

55. See Conference Report, supra note 35, at 32, reprint at 6734.

56. See id. at 32-33, reprint at 6734-35.

57. NFMA § 13(a), 16 U.S.C. § 1611(a), ELR STAT. 41439.

58. Conference Report, supra note 35, at 33, reprint at 6735.

59. Id.

60. MUSYA § 1, 16 U.S.C. § 528, ELR STAT. 41406.

61. MUSYA § 4(a), 16 U.S.C. § 531(a), ELR STAT. 41406.

62. The Forest Service's interpretation of its power to schedule departures is set out in 36 C.F.R. § 219.16(3). The Forest Service believes a departure is justified when it (1) is necessary to meet the national RPA resource output goals; (2) can further future sustained-yield management by improving age-class distribution or avoiding mortality losses; (3) is necessary to avoid substantial economic impact to local communities; or (4) better serves overall multiple-use objectives. (Reason three, though seemingly not supported by the plain language of the statute, has some support in the legislative history. See 122 CONG. REC. 33836-38 (1976) (remarks of Sens. Hatfield and Humphrey)).

When the regulations were proposed, commenters critized the interpretation of § 13 as too broad. In its response, the Forest Service said "[t]here is no limitation in NFMA on the reasons for departures, … provided that any such departure 'must be consistent with multiple-use management objectives ….'" The agency went on to explain that this meant multiple use in the broad sense. 44 Fed. Reg. 53931-32 (1979).

63. Actually, appellant's expert forester in the aborted Santa Fe NF appeal, RandalO'Toole, accused the Forest Service of planning to depart from sustained yield, but attempting to hide the departure in its bookkeeping and so avoid the formal procedures § 13 requires. The challenged book keeping was a switch from board-foot measure to cubic-foot. Both measures estimate tree volume. Relative to board-feet, the cubic-foot measure overstates the volume of small trees. The Forest Service's cubic-foot computer models predicted no decline in future timber harvests even though the agency would be harvesting smaller trees. O'Toole claimed that a board-foot model would show output falling from present levels over the years. Santa Fe NF plan appeal, Appellants' Statement of Reasons, Affadavit of Randal O'Toole, at 13.

64. E.g., 122 CONG. REC. 33838-39 (1976) (remarks of Sen. Metcalf).

65. 16 U.S.C. § 1604(g)(3)(B), ELR STAT. 41437.

66. 36 C.F.R. § 219.27(g).

67. See Senate Report, supra note 19, at 36, reprint at 6695.

68. Id.

69. See Conference Report, supra note 35, at 26-27, reprint at 6728-29.

70. As one supporter of the Act noted:

I think the conference committee has met the essential objectives for good forest management legislation. We have a bill designed to cover a broad range of forest conditions and management practices. Yet, this is accomplished without the Congress tying the hands of the Forest Service. Invariably, it seems to me, Congress finds itself prescribing rules and regulations as if everybody and everything were the same; as if every situation needed the same treatment. Instead, here we have a bill that mandates planning for each ForestSystem unit on an individual basis. It is a recognition that no two forests are alike, and that prescriptive legislation is more often a handicap than a help to forest management professionals.

122 CONG. REC. 33838 (1976) (remarks of Sen. Packwood).

71. See H. ODUM, SYSTEMS ECOLOGY 343-46 (1983); E. ODUM, FUNDAMENTALS OF ECOLOGY 148-57, 252 (3d ed. 1971).

72. See E. ODUM, FUNDAMENTALS, supra note 71, at 252 for a chart showing the correlation between high diversity and other characteristics of an ecosystem.

73. Manual site preparation involves physically removing unwanted species and tilling the soil to prepare the site for regeneration.

74. Release involves removal of undesired plants to free the desired species from competition.

75. 36 C.F.R. § 219.27(g).

76. See, e.g. the rationale and result in National Wildlife Federation v. United States Forest Service, 14 ELR 20349 (D. Or. Apr. 3, 1984) where the court barely examined the Forest Service's substantive findings under MUSYA and NFMA, but gave the agency's NEPA procedures careful scrutiny.

77. STANFORD ENVIRONMENTAL LAW SOCIETY, NATIONAL FOREST RESOURCE MANAGEMENT 119 (1978).

78. The reader seeking more background on NFMA planning should examine two excellent citizen guides to the forest planning process: THE WILDERNESS SOCIETY, SIERRA CLUB, NATIONAL AUDUBON SOCIETY, NATURAL RESOURCES DEFENSE COUNCIL, INC., AND NATIONAL WILDLIFE FEDERATION, NATIONAL FOREST PLANNING (2d ed. 1983); STANFORD ENVIRONMENTAL LAW SOCIETY, supra note 77. Professor Wilkinson of the University of Oregon is preparing a major analysis of the NFMA, to be published in the fall of 1984 in the Oregon Law Review.