The Mouse that Roared: How the National Forest Management Act Diversity of Species Provision is Changing Public Timber Harvesting

Abstract

I. INTRODUCTION best laid schemes o' mice an' men .... (1) When the poet Robert Bums wrote this now-famous line, he obviously had not considered the natural resource/land use plans for the national forests developed pursuant to the National Forest Management Act of 1976 (NFMA).(2) These plans dictate the uses, often competing and seemingly incompatible, to which the national forests may be put, such as commercial timber harvesting and wildlife protection. In passing the NFMA, Congress included a well-intentioned provision, 16 U.S.C. [sections] 1604(g)(3)(B), which sought to protect the diversity of plant and animal life in the forests,(3) yet did not specify the means of doing so. Part I of this article introduces the main issues involving the diversity of species provision, while Part II provides an overview of the NFMA in general and the diversity provision in particular, addressing the case law and regulations which interpret it. Part III analyzes the case law specifically interpreting the diversity of species provision, and Part IV provides a conclusion. This article focuses on diversity(4) cases from 1991 through 1996, a six-year period that ushered in a remarkable series of decisions addressing [sections] 1604(g)(3)(B). Although several details of note remain to be resolved, the jurisprudence concerning this provision has apparently settled, with the Ninth Circuit in one camp and an other circuits in the other. Only now, after this six-year period, has the importance of the NFMA diversity requirement become clear. Although we cannot know exactly how far Congress wanted to extend diversity protection, this article will show that Congress has nonetheless provided a goal which the forest planners must reach. However, the means by which to maintain diversity in the forests have become increasingly clear, much to the chagrin of the timber industry and the United States Forest Service (USFS).(5) First, late-successional (old growth) forests must be preserved in order to meet the diversity mandate; second, controversial clearcutting harvest methods may stiff be used, but only where they protect diversity and are economically efficient (i.e. the benefits outweigh the costs). The courts have shown that these means are indeed necessary for preserving diversity. The judicial system has specified the measures that the USFS must take to protect diversity, developing a standard that affords more protection to plants and wildlife than the back against the wall absolute limits(6) that trigger when a species is listed under the Endangered Species Act (ESA).(7) Although the USFS has drawn frequent criticism for apparently favoring timber sales over other resource uses, in all fairness, the agency usually has attempted to protect wildlife and plant diversity (the most prominent exception being in the northern spotted owl litigation). The main points of contention are a matter of degree (i.e. whether more must be done to protect diversity, specifically by preserving old growth forests) and over the continued reliance on clearcutting as a primary cutting method. II. OVERVIEW With the passage of the NFMA, Congress sought to reduce the unbridled discretion which the Forest Service historically had possessed in managing national forests.(8) The chief instrument Congress decided to use to guide the USFS was the Land Resource Management Plan (LRMP), a comprehensive document the Forest Service develops for each national forest in the nation.(9) The LRMPs bind the Service to a specific schedule of how to utilize the forest over a ten-to-fifteen-year period. These plans are taken seriously by the Service, because they strictly bind its actions in a particular national forest.(10) For the Forest Service to act in a way that significantly departs from the plan, it must follow a formal amendment process.(11) The NFMA is a remarkable statute in all that it seeks to achieve and in its consideration of several other touchstone environmental laws. …