Judicial Control of Agency Discretion Under The Multiple Use Act: Article in this Issue

Judicial control of administrative discretion under the Multiple Use Act is the subject of a staff article in this issue by Mr. Durwood Zaelke, Assistant Editor of ELR. The article, which is entitled Controlling Forest Service Discretion Under the Multiple Use Act and appears at 3 ELR 50017, examines the Forest Service's procedures under the Multiple Use-Sustained Yield Act and explores the few judicial attempts to control the agency's discretion. After stating the appropriate standard for judicial review of informal agency decisions, the article discusses the 1970 Dorothy Thomas case and the more recent Tongass Forest litigation. The Ninth Circuit's Tongass Forest decision is given special attention in its reassertion of judicial control over the Forest Service's discretion to weigh the various statutory uses under the Multiple Use-Sustained Yield Act. In addition, Mr. Zaelke suggests that vigorous enforcement of the National Environmental Policy Act by the land-management agencies, though not yet a reality, has the potential for providing much of the environmental protection presently lacking in the agencies' procedures. The article concludes optimistically by stating that together, NEPA and the Ninth Circuit Tongass Forest decision provide a clear mandate for the land agencies to consider the four non-timber uses equally with timber use under the Multiple Use-Sustained Yield Act and to manage the public lands to maximize public benefits.