The great experiment that failed? Evaluating the role of a "committee of scientists" as a tool for managing and protecting our public lands.
William E. Towell Retired forester and former head of the American Forestry Association
Perhaps part of forestry's fundamental failing of the last three decades has been to remain too enamored of a scientific/rational view of forestry at the expense of a social/political perspective. (2)
Steven E. Daniels Assistant Professor of forest policy at Oregon State University
Tall trees, beautiful mountain vistas, cascading waterfalls, wild and elusive fauna, and economic prosperity--all are visions and ideas conjured by the existence of our nation's lands. These public places provide a rugged backdrop for the mythology that shrouds America's colorful history: the western cowboy, hard working forester, and even those who sought their fortune in gold on the frontier. Today, public lands remain important cultural and economic components of this country. (3) They take many forms and are managed by a patchwork of government agencies. (4) These places serve as spiritual sanctuaries, hunting and subsistence grounds, wildlife refuges, grazing and ranching lands, recreational and aesthetic paradises, watershed preservation districts, and mining and timber harvesting headquarters. (5) This wide assortment of uses and the value systems they reflect often come into conflict, and such friction has turned our public lands into political and literal battlegrounds--filled with blood, sweat, and tears. (6)
This discord affects more than the individuals who assert their rights to use and possess public property; it also adversely affects the land reserves. The health of America's public lands declined substantially during the second half of the twentieth century. (7) Today, overgrazing continues to introduce harmful invasive-exotic plants, (8) clear-cutting of old-growth forests threatens endangered animals, (9) single species replantings on harvested areas decrease biodiversity, (10) and ongoing decades of fire suppression create dangerous conditions for both humans and wildlife. (11) Additionally, existing uses of the country's public lands may add to the demise of the global ecosystem; forest fragmentation, caused by extensive road building and cutting, allegedly contributes to what is presently the greatest mass extinction event in our planet's history since the disappearance of the dinosaurs. (12)
The agencies that oversee America's public lands are in the midst of a management crisis. In particular, the United States Forest Service (Forest Service) struggles to appease the demands of a citizenry that increasingly calls for more recreational areas and wildlife habitat preservation, while concurrently trying to carry forth its mission to harvest forest resources. (13) On its face, the Forest Service seems to be losing this battle. During the late 1980s, increased knowledge of the aforementioned ecological conditions and the declining health of the federal government's property shed doubt on the management and expressed purposes of public lands, and paved the way for significant decreases in timber harvests on our national forests. (14) For instance, in 1987 the Forest Service reported a record timber sale of 12.7 billion board feet. (15) Less than a decade later, sales had plummeted to a mere 2.9 billion board feet--largely due to public concern over the preservation of endangered species and their habitats. (16) The current economic, cultural, and ecological crises that these areas face are cause to reconsider current management strategies. (17)
All the same, this is not a new dilemma. For over a century, Congress has wrestled with various methods of managing the public lands. (18) However, in the late 1970s the legislature settled on two primary statutes that attempt to accomplish this end: the Federal Land Policy and Management Act (FLPMA) (19) and the National Forest Management Act of 1976 (NFMA). (20) These laws, in addition to more than 200 other statutes, apply to lands controlled by the Forest Service and the Bureau of Land Management (BLM) (21) which oversee the bulk of the property owned by the United States Government. (22) Both FLPMA and NFMA authorize their respective agencies to promulgate regulations regarding the management of public lands that fall under their jurisdiction. (23)
With NFMA, however, Congress undertook a great experiment. This statute required the Forest Service to establish a "Committee of Scientists" to advise and critique the agency in the adoption of planning and management regulations that concern the National Forest System. (24) NFMA also authorizes the creation of future Committees of Scientists, as deemed necessary by the Secretary of Agriculture, to review and revise existing regulations. (25)
The Forest Service convened the original Committee of Scientists in April 1977, and the Committee took an active role in developing the Forest Service regulations. (26) The result was a highly specific, complex set of rules that ultimately led to massive controversy and legal gridlock. (27) Thus, in 1997 the Secretary of Agriculture established a second Committee of Scientists to address the difficulties that arose from the original regulations. (28) This new Committee was charged to provide ideas for improving the planning and management process that governs the various uses of the national forests. (29) In November 2000, the Forest Service promulgated new regulations that reflect the second Committee's efforts. (30) These new rules are considerably less detailed and offer much more discretion to forest managers. (31) As a result, the rules may exceed the authority that NFMA provides to the Forest Service and will likely result in more litigation. (32) Shortly after the election of President Bush and the subsequent appointment of Ann Veneman as his Secretary of Agriculture, however, the Forest Service issued an interim final rule to extend the adoption of the November 9, 2000 regulations for one year. (33) Some environmental organizations allege that by placing the November regulations on hold, President Bush's administration seeks to eliminate the NFMA requirements to maintain species viability and to exempt forest plans from the consultation requirements of the Endangered Species Act. (34) Such groups insist that the decision not to implement the November 9, 2000 regulations is arbitrary and capricious because the regulations were developed in cooperation with a Committee of nationally known scientists and after expending considerable resources. (35) Only time will tell whether the Bush administration will respect and consider the input of scientists in determining the future of public lands management.
This Comment examines the apparent failure of the two Committees of Scientists to develop a strong system for national forest planning and management. Part II discusses the history of American forest management, the creation of NFMA, and explores the congressional intent behind the Committee of Scientists. Part III examines the work of the original Committee and the outcomes it achieved. Part IV explores the changing attitude toward the role of public lands caused by scientific advancement, increased recreational interest, and the environmental movement. This change in public opinion led to the creation of a new style of forest management, formation of the second Committee of Scientists, and the adoption of new planning regulations for the national forests that are discussed in Part V. This Comment concludes that future committees of scientists are likely to be ineffective unless policy makers respect the proper role of science in forming forest policy. It suggests that Congress should permanently establish a series of small committees to review the routine decision making efforts of public land managers and argues that Congress must take adequate steps to redefine the purposes of public lands before successful management of these lands can be accomplished.
II. THE HISTORY OF FOREST MANAGEMENT
National forest management began in the late 1800s. Even at this early stage in the nation's history, harvesters were distressed over depleting timber supplies and forest quality. (36) This concern led to the passage of the Creative Act of 1891, (37) which authorized the president to set aside forested tracts of government land as timber reserves. (38) However, the Creative Act did not establish a regulatory scheme for managing these federal lands. Consequently, in 1897, Congress passed the Organic Administration Act of 1897 (Organic Act), (39) which established national forests 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." (40) Over a century later, the Organic Act remains as the foundation for establishing and managing our national forests.
The General Land Office in the Department of the Interior briefly administered the national forests. (41) In 1898, Gifford Pinchot became the Chief of the Department of Agriculture's Division of Forestry and set the stage for American forest policy as it stands today. (42) In 1905, Pinchot convinced Congress to adopt the Transfer Act, (43) which gave jurisdiction over the national forests to the Department of Agriculture. (44) Two years later, he further persuaded Congress to create the Forest Service, and Pinchot became the first Chief Forester. (45) Pinchot promoted an active form of management and held a utilitarian view of the national forests that sought to maximize the production of timber commodities. (46) An advocate of planning on both private and federal lands, he required plans for all national forest timber sales to ensure that harvesters did not overcut the reserves. (47) When Pinchot left the Forest Service in 1909, scientific planning had become a fundamental component of forest service ideology. (48)
A. The Clear-Cutting Dilemma
Following from Pinchot's lead, during the first half of the twentieth century, Forest Service planning efforts sought to protect watersheds, engage in responsible timber harvest, and provide for recreation. (49) During the 1930s the words "forestry" and "conservation" were nearly synonymous. (50) William Towell, former head of the American Forestry Association, recalls, "[a]s a young forester in those Depression years I wore a white hat. Very few people understood forestry, but most respected the forester." (51) More recently, however, public attitudes toward the Forest Service have diminished. (52)
Before the 1950s, Forest Service management was relatively uncomplicated because the varying uses of the national forests rarely came into conflict. (53) After World War II, however, preservationists who sought to protect sections of the national forests for uses other than timber harvest called into question Forest Service management policies. (54) This movement led to the passage of the Multiple-Use, Sustained-Yield Act of 1960 (MUSYA), (55) which supplemented the purposes for national forests, as established by the Organic Act, to include the preservation of non-commodity resources. (56)
Nevertheless, the increased demand for timber that resulted from World War II led the Forest Service and the timber industry to experiment with a new method of increasing timber production: (57) clear-cutting emerged as an "essential tool" for meeting harvesting goals. (58) Due to its environmental and aesthetic consequences, the increased use of this management practice raised an uproar throughout the country beginning in the 1960s, and all but ruined the credibility of the Forest Service. (59) During the late 1960s and early 1970s, the West Virginia legislature adopted several resolutions calling for the investigation of timber harvesting practices in the Monongahela National Forest, and Senator Jennings Randolph of West Virginia requested a clear-cutting moratorium within his state's national forests. (60) Likewise, in Montana, Senator Lee Metcalf responded to public outcry and asked Professor Arnold Bolle of the University of Montana to commission a study on clear-cutting in the Bitterroot National Forest. (61) The study criticized the Forest Service for its "overriding concern with timber production" (62) and general lack of concern for aesthetic and non-timber values. Further, the study challenged the Forest Service's compliance with MUSYA. (63) This report and the sentiments that led to it set the stage for eight days of oversight hearings regarding the practices of the Forest Service, the first of which centered around "the abuse of clear-cutting as a management tool." (64)
While Congress held hearings in Washington D.C., however, citizens opted to take matters into their own hands. Some environmentalists convinced the newly formed Council on Environmental Quality (65) to prepare was on President Nixon's desk and ready to be signed, but he dropped the initiative after the timber industry discovered its existence. (67)
Having failed with the executive branch, citizen groups turned to the judiciary. In 1975, the West Virginia Division of the Izaak Walton League of America and other conservation organizations convinced the Fourth Circuit Court of Appeals that clear-cutting was illegal. (68) The court upheld an injunction against three proposed timber sales in the Monongahela National Forest, finding that under the Organic Act, trees must reach physiological maturity, not economic maturity, to be harvested. (69) This ruling effectively prohibited clear-cutting and significantly restricted other techniques used by the Forest Service to harvest timber. (70)
The Monongahela case, however, was only the tip of the iceberg. Less than a month after that decision, the federal District Court of Alaska issued a similar injunction, also based on the provisions of the Organic Act, and stated that it was up to Congress, not the courts, to decide whether clear-cutting was an appropriate tool for national forest management. (71) The situation that citizens had tried to take into their own hands had rebounded squarely back into Congress's court--setting a controversial stage for the passage of NFMA.
B. Passage of the National Forest Management Act
"The National Forest Management Act of 1976 was born of conflict." (72) The statute was triggered as a response to the fervid controversy over clear-cutting, but the underlying issue it sought to resolve was, in fact, the desire to completely overhaul the Forest Service's planning procedures. (73) The result was an odd mix of compromises. The law expressly authorized increased harvests and future clear-cutting, (74) but also set guidelines for preserving ecological and aesthetic values and promoting the diversity of plant and animal communities. (75)
During the 1970s, many Americans expressed great dissatisfaction with the Forest Service's response to public input. (76) As a result, Congress designed NFMA to restrict the agency's discretion over land and resource management. (77) The Act established a formalized planning process by requiring the creation of land and resource management plans (LRMPs). (78) Moreover, these plans must involve the public (79) and be produced by an interdisciplinary team that makes decisions based on inventories of forest resources. (80)
Nevertheless, Congress believed that even the LRMP requirement left the Forest Service with too much authority to govern the planning process and determine its outcome. (81) Experience had shown that the Forest Service was hesitant to incorporate non-timber oriented values into its management ideology, (82) and Congress recognized the need to base forest management decisions on sound science. (83) However, Congress lacked the ability to specify detailed requirements in NFMA due to political constraints; (84) as a result, Congress sought an alternative method of holding the Forest Service accountable as the agency went about the process of promulgating regulations under NFMA. (85)
C. Establishing a Committee of Scientists
Senator Lee Metcalf suggested the establishment of a Committee of Scientists to reduce the concern over "the ability and willingness of the Forest Service to draft the comprehensive regulations envisioned by NFMA."(86) Congress adopted Senator Metcalf's idea in response to the perceived public distrust of the Forest Service and as a method by which to limit the authority delegated to the agency.(87) The Committee would ensure that the agency implemented NFMA in a way consistent with congressional intent(88) and based key management decisions on scientific fact, not political and economic coercion.(89) Senator Metcalf envisioned that a group of "wise men" from outside the Forest Service would provide a means to evaluate the agency's proposed regulations. (90) Congress agreed that a body of scientists would encourage the inclusion of a somewhat different perspective to the regulations--especially given the Forest Service's prior unwillingness to "incorporate science into management in a serious way." (91)
The final language of NFMA established the Committee of Scientists' mission:
In carrying out the [development of NFMA regulations], the Secretary of Agriculture shall appoint a committee of scientists who are not officers or employees of the Forest Service. The committee shall provide scientific and technical advice and counsel on proposed guidelines and procedures to assure that an effective interdisciplinary approach is proposed and adopted. The committee shall terminate upon promulgation of the regulation, but the Secretary may from time to time, appoint similar committees when considering revisions to the regulations. The views of the committees shall be included in the public information supplied when the regulations are proposed for adoption. (92)
Congress took strides to be as detailed as possible in establishing how the NFMA regulations would be promulgated, but such specificity was reined in by the need to produce an act that was passable. (93) NFMA required the establishment of the initial Committee of Scientists, but left the establishment of future Committees to the discretion of the Secretary of Agriculture. (94) While the text of the statute expressly charged the Committee to provide "advice and counsel" to the Forest Service and assure an "effective interdisciplinary approach" in developing the NFMA regulations, Congress failed to adequately define these terms and thus the actual role that the original Committee was to play in drafting the regulations was not well understood. (95) The original Committee was the first of its kind--a true experiment that took on an unexpected life of its own. (96) Regardless of what Congress actually intended, the committee members eventually played a substantial role in drafting and critiquing a complex planning process where no uniform systematic process had existed before. (97) Looking down nearly twenty-five years after Congress's proverbial leap of faith, the question that remains is whether the legislature's goals were fulfilled. Part III of this Comment argues that they were not.
III. GETTING AN INCH AND TAKING A MILE: THE COMMITTEE OF SCIENTISTS
The composition of the Committee was left solely to the discretion of the Secretary of Agriculture, (98) and individuals and interest groups "deluged" the Forest Service with requests to appoint certain persons to the Committee of Scientists. (99) As a result, the agency requested the advice of the National Academy of Sciences in forming the Committee. (100) The Academy developed and applied criteria to ensure a balanced and competent team, and it recommended thirty-three potential candidates to the Forest Service. (101)
Nevertheless, interest groups met the Academy's role in this process with mixed feelings. To many, it was "never apparent that members were selected for political reasons, rather than for scientific qualifications." (102) However, one scholar pointed out that the Academy "had been under attack since the 1960s as a tool of the establishment and pawn of business interests," and proclaimed that only the most naive would believe that a committee selected by the Academy was balanced, (103) Nevertheless, the Forest Service chose the Academy largely for its prestige, (104) and upon reflection, the initial Committee believed that the Academy's role had brought "a degree of credibility that might not have existed" had the Forest Service alone named the Committee. (105) In the end, the Forest Service chose its final committee from the Academy's list of proposed candidates and in April 1977 selected eight scientists of varying backgrounds. (106)
A. Round One: Academia Meets the Real World
Despite skepticism concerning the selection process, the Committee of Scientists took an active role in policy development--often to the Forest Service's dismay--and perhaps became more involved in the affairs of planning than Congress had originally intended. (107) The group first gathered in May 1977, and met publicly a total of eighteen times during the following two years. (108) The process proved arduous from the start as the scientists and the Forest Service disputed control over setting the Committee's agenda.
The National Academy of Sciences recommended to the Forest Service that the Committee prepare its own agenda and be involved in all aspects of developing LRMPs under section 6 of NFMA. (109) The Forest Service agreed to expand the duties of the Committee in such a way, (110) but the Committee demanded the authority to look beyond section 6 and consider the Act in its entirety. (111) The legislative history of NFMA suggested that the Committee of Scientists was to review the rules in their entirety to assess how well the proposed regulations upheld the intent of Congress as expressed in NFMA. (112) Then Deputy Chief Tom Nelson disapproved of this approach and argued that the Committee should only consider planning procedures, not substantive issues in the regulations. (113) After committee member Dennis Teeguarden threatened to resign over issues that arose from this fundamental difference, the Secretary of Agriculture and the Forest Service Chief stepped in and reduced Nelson's involvement. (114) Thus, the scientists ultimately prevailed in determining the scope of the task they were charged to perform. (115)
Despite this initial success, the weak congressional mandate found in NFMA provided little direction for the Committee to begin working on its own, (116) and a change in presidential administrations caused significant delay, (117) The result was minimal progress toward development of the regulations and much frustration for Committee members during the initial months, (118) Additionally, the Committee found itself reporting more to the Forest Service than the Secretary of Agriculture. (119) In fact, the Committee received a "heavy dose of Forest Service guidance," which threatened the Committee's independence (120) and raised an important dilemma: how to critique the Forest Service's proposals when the Committee relied on the agency to determine what proposals needed to be critiqued. (121) This difficulty was only resolved after the Committee opted to pursue its own mission--it arbitrarily shifted roles and began actively drafting regulations for the agency itself to review. (122)
1. Drafting the NFMA Regulations
Frustrated by delays, the scientists took a more active role in ensuring that regulations were drafted. (123) As a collection of academics and college professors, the Committee members turned to their students for assistance. Two graduate students (who happened to be Forest Service employees on leave) at the University of California, Berkeley produced the first draft of the regulations. (124) Instead of assigning students a term paper, Dennis Teeguarden simply told them to take NFMA and transform the statute into a set of rules. He then presented the best student's paper to the Committee of Scientists as a first draft. (125)
The student work provided sufficient motivation to the Forest Service. By spring 1978, the Committee and agency were actively exchanging drafts, and the Forest Service eventually took over a bulk of the writing. (126) This, however, added to an already difficult process. A constant struggle ensued over the specificity of the regulations. (127) For example, lawyers frustrated the scientists when they made substantive changes to the regulations without justification and continuously returned drafts with "shall" or "will" replaced by "may." (128) Additionally, the scientists proposed specific language only to find it missing from documents at the next day's meeting. (129) The Forest Service explained that the suggestions were against agency policy, but the scientists were left wondering "why" after being provided little or no explanation as to which policies the agency was referring to or why such policies existed. (130) In the Forest Service's defense, however, these situations were likely due, at least in part, to the naivete of the Committee members regarding legal phrases and policy ramifications. (131)
A further problem was that Congress had envisioned an orderly public participation process that could be understood and used by citizens and interest groups. (132) The ultimate goal in drafting the regulations was to agree on a public process for forest planning that was suitable both to the Committee and Forest Service staff--"one that was theoretically sound, yet practical enough to be implemented in national forests" (133) As a result, the Committee spent eight of its first meetings debating the planning process rather than discussing substantive aspects of forest management. (134) In fact, the planning and public participation components of the regulations took up the bulk of the Committee's time, (135) despite the fact that only one of the Committee members, Arthur Cooper, had experience in this area. (136) While section 1604(h)(1) did charge the Committee with reviewing all components of the proposed NFMA regulations, the public participation aspect was a process component--clearly outside the experience of the scientists and, perhaps, an inappropriate use of their expertise. (137) Nevertheless, after nearly a year of debate, the Forest Service issued its first set of proposed regulations for public review on August 31, 1978. (138)
2. Fulfilling Congres's Intent
After the proposed regulations had been drafted and released for review, the Committee of Scientists was finally in a position to critique them. This role was more closely related to what Congress had originally envisioned when enacting NFMA, (139) and the scientists could now use their expertise to the full extent. The planning and public participation components had largely been settled, and the Forest Service specifically asked for advice on the technical aspects of the regulations such as timber harvest scheduling, diversity, wilderness, and silvicultural standards. (140)
In accordance with NFMA, the Committee was to present its recommendations publicly along with the release of the final regulations. (141) The Forest Service had initially intended this joint presentation to happen when the agency released the first set of proposed regulations in August 1978, but the Committee stifled the process. (142) The request came as a surprise to the scientists, and they were unable to meet the Forest Service's goal because the Committee did not anticipate the complexity and detail that such a review would require. (143) Additionally, the Committee had not assessed many of the changes made by the Forest Service to the draft regulations. (144) As a result, the scientists refused to review the regulations that were published in 1978, disappointing the Forest Service and other interest groups. (145)
However, in 1979, when the Committee of Scientists was prepared to publish its final review of the Forest Service regulations, it ultimately placed the second set of proposed regulations in a positive light. The scientists presented their report to the Secretary of Agriculture in February 1979, offering only minor suggested changes. (146) In May 1979, the Forest Service released the final regulations, along with the final report from the Committee of Scientists, in the Federal Register after considering public comment and the Committee of Scientists review, (47) and on September 17, 1979 the agency issued its final regulations, which took effect on October 17, 1979. (148) The Committee again praised the results:
The Second draft is a major improvement upon the first. It not only contains the needed specificity in important areas, but also shows evidence of substantial creative thinking by the Forest Service in revising the original draft. It shows clear evidence that the Forest Service has considered both the public comments on the first draft and the specific recommendations of the Committee of Scientists. (149)
These new rules addressed a variety of issues surrounding forest planning including provisions for appeal and reconsideration of forest plans, monitoring and evaluation programs to ensure diversity in the forests and coordinate Forest Service efforts with activities on adjoining lands, and the relationship of the planning regulations to the National Environmental Policy Act. (150) The struggle to adopt meaningful planning requirements, however, was far from over.
B. Round Two: The Reagan Years
In 1980, soon after the final regulations went into effect, Ronald Reagan was elected to office; this set the stage for the possible dismantling of the NFMA regulations. Many characterized the final regulations as overly specific. (151) In fact, they were extremely detailed--as particularized as procedures normally found in the Forest Service's manual. (152) According to one Committee member, the Forest Service wanted to "take all the teeth" out of the regulations after being pressured by the Committee of Scientists to pass such detailed rules. (153) The onset of a new administration offered them the chance.
Reagan's Secretary of Agriculture, John Crowell, opposed the final rules throughout the drafting process (154) and made the NFMA regulations a high priority when the new administration sought to do away with excessive rule making. (155) At the Task Force's insistence, the Forest Service published a new set of proposed regulations in February 1982, (156) which reduced the length of the original regulations considerably by "restructuring the text," "deleting unnecessary language," altering, adding, and deleting definitions, and by making other changes intended to "streamline" the existing regulations. (157)
The new proposed regulations inspired over 2000 public comments; nearly all claimed the authors had ignored the multiple-use intentions of NFMA. (158) This input caused the administration to extend the comment period and reconvene the Committee of Scientists. (159) The Committee was supposed to terminate after the Forest Service promulgated the original regulations. (160) As a result, the agency did not formally reconvene the members as an official committee, though the public perceived them as such. (161) Fortunately for the Committee of Scientists, the public process that it previously used lent them a great deal of credibility and respect. (162) Because of their stature, the scientists were able to ensure that the regulations were largely reinstated without any significant change to their original form. (163) The final revised regulations were at last published on September 30, 1982 (164) and became effective on November 1, 1982. (165)
C. The Aftermath
The Committee of Scientists played a role that an internal agency committee could not have performed (166) and caused the Forest Service to promulgate regulations that were of a higher technical quality than otherwise would have occurred. (167) Nevertheless, the planning mechanism that they set in place was ineffective. (168) Many of the LRMPs were still incomplete ten years after the final regulations were promulgated. (169) Ironically, the detailed rules were ambiguous and did not provide guidance to the Forest Service in implementing the plans after they had been created. (170) The process developed by the Committee of Scientists ultimately amounted to over fifty percent of the cost of a national forest timber sale (excluding the massive amount of litigation and appeals created by the regulations) and some estimates placed the annual cost of planning under the 1982 regulations at over $225 million. (171) By the early 1990s, it was clear that the planning process had become too costly, too time-consuming, and was unresponsive to public input. (172)
There are a number of theories as to why the Committee's work was ineffective. The first is that the process was never given ample opportunity to work due to a series of problems: the complexity of the process, flawed agency interpretation and implementation of the regulations, and impatience of external pressure groups when the plans were not implemented in their favor. (173)
Perhaps, however, the failure arose from a more fundamental flaw. A second theory is that the process might have been doomed from the start because the Committee overstepped the bounds of Congress's intent and aided the Forest Service in developing a process-oriented program that went well beyond the expertise and capabilities of academics and scientists. (174) The Committee members had no practical, firsthand knowledge of the structure, culture, and limitations of the agency. (175) As a result, the Committee produced a series of rules that made logical sense, but required so much documentation and process that the regulations greatly impeded forest planning and prohibited the Forest Service from effectively managing the forests in accordance with the purposes of its enabling acts. (176)
Others, however, do not blame the Committee of Scientists. A third theory is that the regulatory failure was the fault of the Forest Service because it declined to effectively use the Committee to develop a series of rules that could be implemented on the ground and still meet the demands of the public. For example, Luke Popovich, former vice president for communications at the American Forest Institute, alleges that "the Forest Service persistently exploited the committee's naivete by keeping Committee members away from major policy issues that were not in the agency's interest to discuss and focused instead on the details. (177) One of the Committee's primary contributions to the process was as a sounding wall for public input, (178) and the Committee's final report was a mechanism used by the Forest Service to receive public critique of agency policy. (179) Popovich argues that the Forest Service simply used the Committee of Scientists as a "heat shield" to avoid contentious issues and preserve the status quo. (180) As a result, the Forest Service merely postponed the discussion of these contentious issues, and did not address fundamental flaws in the proposed regulations. As a result, debate ensued in the country's court system after the failed management scheme provided ample documentation upon which citizens could sue the agency for decisions that it had made or failed to make. (181)
A Final theory is that Congress, the Forest Service, the scientists, and the general public simply had unclear and possibly conflicting goals. AS one commentator suggested, the fact that the Forest Service is still not out of the courtroom does not mean that the regulations were flawed. "Rather, it reflects the continuing serious national debate over one of [this nation's] greatest issues of this latter part of our century: the future of our public lands." (182) As Part IV will discuss, the regulations and laws that govern public lands have not kept up with the changing values and opinions held by the American public.
IV. THE PUBLIC OPINION ON PUBLIC LANDS
The statutes and regulations that express the purposes of the nation's lands reflect the public values held when these laws were established. (183) Since the inception of this legislation, increased public awareness of forest management practices (caused by societal trends and expanding scientific knowledge) has dramatically changed the values Americans hold toward the public lands. (184) As a result, the existing statutes that govern the public lands may now be anachronisms. (185)
A. America Goes to the Woods: The Discovery of a National Playground
Congress's sole managerial motivations in passing the Organic and Creative Acts in the late 1800s, were to preserve the nation's timber supply and prevent floods. (186) Preventing the depletion and destruction of forest commodities remained the primary factors that influenced forest policy until the 1960s, when MUSYA reflected the beginning of what has become a national debate over the competing uses for public lands. MUSYA was largely a Forest Service proposal prompted by pressure from a variety of interest groups including ranchers, timber harvesters, the housing industry, preservationists, and competition with the National Park Service over available recreational opportunities. (187)
In fact, increased outdoor recreation has played an especially significant role in changing America's outlook on public lands (188) and reducing the scale of timber harvest in the national forests. (189) Today, the national forests easily provide the largest venue for outdoor recreation in the country. (190) Recreation in the national forests "increased almost six fold between 1955 and 1964," and the growth appears to be a constant, continuing trend. (191) This growth began after World War II, when increased demand for wood products strained the resources on private lands and drove many timber harvesters to the national forests. (192) Roads that were originally built to allow harvesters access to the national forests ultimately led to heightened recreation levels and close proximity between the public and clear-cutting. (193)
The results of road building, however, proved detrimental to the timber industry. The rising popularity of wild places formed the basis for the wilderness movement, (194) which culminated in the passage of the Wilderness Act of 1964 (195) and has removed over 103 million acres of land from the proverbial chopping block. (196) Additionally, as discussed above, the public's exposure to clear-cutting led to an outcry resulting in the harvesting restrictions and diversity requirements adopted under NFMA. (197)
The conflict between outdoor enthusiasts and the timber industry continues to be intense. (198) The Forest Service, in particular, must often balance the interests of recreational users of the forest and the economic stability of communities that depend on logging proceeds. (199) Additionally, even some non-recreators oppose national forest timber harvest in the belief that below-cost timber sales are wasteful and contribute to "corporate welfare." (200) The primary policy goal of the Forest Service is to find a way to satisfy the demands of each interest (201)--such a goal may simply be unobtainable.
B. Islands on Land and Cases of Controversy: New Science Arrives in the Courts
A second element that continues to significantly influence forest policy is science. (202) As one commentator noted, "[M]any Americans with little understanding of science unquestioningly accept both its process and its products." (203) Science has been a part of forest management since the days of Gifford Pinchot, and the connection between science and good decision making continues to be recognized and demanded by Congress. (204)
The scientific advancement that has occurred in the past quarter-century has created an understanding of forest and land management that far surpasses the knowledge that existed when most public lands laws were enacted. (205) In fact, environmental statutes that require highly technical regulations have created a new purpose for modern science. In the past, science was seen simply as the pursuit of knowledge. However, the modern need to provide agencies with the information required to make specific decisions led to the development of a new field known as "regulatory science." (206)
One type of regulatory science is conservation biology--a relatively new applied science designed to meet the needs of forest resource managers and conservationists. (207) This field developed primarily in response to the public's desire to preserve ecosystems, and steps away from traditional notions of science because it incorporates social values with scientific fact. (208)
Conservation biology emerged in America in the mid-1980s, focusing on the connection between species extinction and habitat fragmentation. (209) The field has developed the concept of island biogeography--a hypothesis important to forest planning. (210)
Conservation biology is a regulatory science that promotes the values encompassed by the diversity mandate in NFMA, but until recently the Forest Service has failed to take this form of science into account when developing LRMPs. (211) As a result, in 1995 a group of environmental organizations filed suit to enjoin road construction and timber sales in two national forests. (212) The plaintiffs alleged that the Forest Service produced an inadequate environmental impact statement that failed to properly consider the principles of biodiversity required by NFMA and other environmental statutes. (213) More specifically, the environmentalists in Sierra Club v. Marita argued that the Forest Service failed to use "high quality" science, and thus was arbitrary in its decisions because it drew conclusions that were against the prevailing scientific view. (214)
The case revolved almost entirely around the question of whose science to apply when making agency decisions. The environmentalists argued, and the district court agreed, that the principles of conservation biology represent sound ecological theory. (215) Additionally, the Lake States Resources Alliance, an amicus, argued that the use of the Supreme Court's Daubert (216) test for determining when to admit scientific expert testimony would require a finding that the Forest Service apply conservation biology in its decision making. (217)
Daubert requires district courts to consider a number of factors in determining the admissibility of expert testimony regarding a scientific theory ... including (but not limited to) whether the theory can be or has been tested, whether the theory has been subjected to peer review and publication, the known or potential rate of error in applications of the theory, and the "general acceptance of the theory in the relevant scientific community." (218)
However, the Forest Service argued that the methodology of island biogeography was merely theoretical, noting that "it had been developed as a result of research on actual islands or in the predominantly old-growth forests of the Pacific Northwest and, therefore, did not necessarily lend itself to application in the forests of Wisconsin." (219)
The Seventh Circuit agreed with the Forest Service, deferring to the agency's expertise. The court held that the Forest Service may use its own scientific methodology, so long as it is rational. (220) Even the Committee of Scientists, when drafting the original regulations, declined to specify an exact methodology for determining diversity and relied on an interdisciplinary team of Forest Service professionals to determine how to best manage individual areas. (221) Thus, the Seventh Circuit concluded that "conservation biology is not a necessary element of diversity analysis insofar as the regulations do not dictate that the service analyze diversity in any specific way." (222) While the principles of conservation biology are well grounded, the court found that the Forest Service appropriately determined the science to be uncertain as applied specifically to the Wisconsin forests. (223) Further, the court rejected the application of the Daubert test, stating that "[w]hile such a proposal might assure better documentation of an agency's scientific decisions, we think that forcing an agency to make such a showing as a general rule is intrusive, undeferential, and not required." (224)
The Seventh Circuit's decision in Sierra Club, however, leaves the use of science in developing forest policy in a somewhat precarious situation. The court respected the use of science, but deferred to the Forest Service when determining whose science to apply. The Seventh Circuit remarked that "'new legislation may be necessary' in order to force the Forest Service to adopt conservation biology." (225) This is an uncomfortable position for many forest protection advocates because adequate habitat protection remains at the whim of a land management agency that has historically been reluctant to base management decisions on sound biological science. (226)
Despite the Seventh Circuit's ruling, however, the Forest Service does not have complete discretion to ignore science in the practice of land management. The court in Sierra Club did offer some guidelines, stating that "an agency decision to avoid a science should not escape review merely because a theory is not certain. But ... a general theory ... does not translate into a management tool unless one can apply it to a concrete situation." (227) The Forest Service rejected the use of conservation biology in Sierra Club as inapplicable to the Wisconsin forests. (228) However, the agency has begun to employ conservation biology where it provides solutions to specific problems. For example, the Northwest Forest Plan embraces concepts that exemplify the recent influence of conservation biology principles on forest policy. (229) As one author of that plan stated, "[S]cience is useful when it provides answers. When the science is strong, policy makers tend to respect that." (230)
The courts have not altogether refused to review the Forest Service's use of its own science. In Sierra Club v. Glickman, (231) a Texas district court enjoined timber harvesting until the Forest Service could demonstrate that it was adequately monitoring population data in accordance with the diversity requirement of NFMA. The court held that "[s]ufficient inventorying and monitoring of forest resources is vital to making sound, forest management decisions and ultimately protecting the forest resources from permanent impairment." (232)
In hindsight, however, the courts have not been the focal point in bringing modern science into forest management. Environmental organizations have succumbed to the science-based love affair, and avow conservation biology as a new method for protecting forest resources and ecological values. (233) Such pressure has influenced the Forest Service's use of modern science in recent years. (234) Moreover, the aforementioned changes in the attitudes of the American people and the development of new scientific thinking caused the Forest Service to revive the Committee of Scientists in 1997 and take a blind step forward into uncharted legal territory. (235)
V. IF AT FIRST YOU DON'T SUCCEED: A SECOND COMMITTEE OF SCIENTISTS
Not long after the initial Forest Service regulations were promulgated in 1982, there was widespread agreement that the planning requirements were simply unworkable (236) because "[p]lanning had become too time-consuming and expensive, too unresponsive to public input, and too little used." (237) Additionally, throughout the 1980s, commentators criticized the Forest Service for giving timber sales and other industrial uses a higher priority than the protection of water quality, wildlife conservation, and habitat preservation. (238) Further, the public's use and enjoyment of public lands changed dramatically as it began a recreational pilgrimage to the national forests and the understanding of ecological science advanced during the latter portion of the twentieth century. (239) As a result, the Forest Service sought a new focus and, during the 1990s, adopted an "ecosystem management" approach to forest planning. (240)
The burdensome planning process established in 1982 restricted this new approach, resulting in the Forest Service taking a "fresh look" at the existing management scheme in light of its new techniques. (241) In August 1997, Department of Agriculture Undersecretary for Natural Resources and the Environment, Jim Lyons, declared "[o]ur business on the National Forests is changing. We need a highly credible scientific team to update the planning process to reflect evolving priorities such as recreation, water quality, public involvement, and sustainability." (242) As a result, in December 1997, Agriculture Secretary Dan Glickman announced the Forest Service's second attempt at a Committee of Scientists to transform the forest planning process.
A. A Different Committee of Scientists
The second Committee of Scientists played a more limited role in the planning process than did its predecessor. The second Committee's charge was to provide "scientific and technical advice" that the Forest Service would "consider for incorporation into the revised planning regulations." (243) Unlike the first Committee, these scientists did not take an active role in actually drafting the new regulations and only served to make suggestions to the Forest Service at the agency's discretion. (244) Despite this limited directive, however, the second Committee faced substantial challenges. It had the benefit of critiquing a pre-existing set of regulations, but was impeded by the need to address the cost, public participation, and other difficulties that had become apparent through the attempt to implement the first set of planning rules. (245)
Additionally, the second Committee was nearly double the size of the first, (246) consisting not only of forest scientists and economists but also of years of increasingly contentious public unhappiness with the management of national forests, USDA Forest Service officially adopted ecosystem management as a land management paradigm." Id. Ecosystems are managed for the purpose of producing, restoring, or sustaining certain ecological conditions. Id. "Ecosystem management represents different things to different people." Id. It is a popular concept partly because "there is not enough agreement on the meaning of the concept to hinder its popularity." Id.; see also FOREST SERVICE PRIORITIES, individuals from a range of disciplines including both the natural and social sciences. (247) The second Committee was likely designed to avoid the problems that resulted from the first. Where the original team had little knowledge about the workings of the Forest Service and forest politics, (248) the second included an expert in organizational theory and had the resources of a professional forest planner at its disposal. (249)
Further, while the first Committee was required by congressional mandate, the second resulted from Secretary Glickman's discretion under NFMA. (250) In August 1997, Dan Glickman released a public call for nominations to the second Committee, (251) and in December, he announced the appointment of its thirteen members. (252) While the original Committee was chosen from a list produced by the National Academy of Sciences and based on described set of criteria, Forest Service officials hand-picked members of the second Committee absent any stated guidelines.
Both committees, however, focused a great deal on public participation. The second Committee held nine meetings throughout the country, and each was well attended by Forest Service employees, various government agencies, environmental organizations, and industry groups. (253) Additionally, the second Committee participated in twelve conference calls that were also open to the public, though they enjoyed less participation. (254) Further, the Committee used a technology not available to the first--all of its activities, drafts, meeting minutes, and other documents were made readily available via the internet, including a "public forum" that allowed citizens and interest groups to submit comments directly to the chair of the Committee at their leisure. (255)
While the second Committee sought comments from the general public, it also considered the experience of forest managers. Many Committee members joined Forest Service employees on "field trips" to gain an "understanding of local concerns and on-the-ground conditions." (256) After a series of outdoor adventures, meetings, teleconferences, and workgroups, the second Committee presented its recommendations on the planning process to the Secretary of Agriculture on March 15, 1999, titling its report, "Sustaining the People's Lands." (257)
B. Sustaining the People's Lands
The report of the second Committee of Scientists reflects the public participation that created it and the changing attitudes toward public lands. (258) The Committee presented two dominant themes: ensuring the sustainability of the national forests and involving citizens and interest groups in the decision-making process that surrounds national forest planning. (259) The report made recommendations to the Forest Service on how it could become a more "welcoming agency," increase public participation, and develop better tribal-agency relationships. (260) It also addressed the need for protection of the various non-commodity uses of the national forests such as biodiversity, recreation, and other community benefits. (261) In fact, the Committee viewed these tenets as the foundation upon which the new regulations would be built, proclaiming that "sustainability should be the guiding star for stewardship of the national forests and grasslands." (262) The Forest Service recognized that these notions were in line with the agency's ecosystem management rationale (263) and in October 1999 proposed regulations consistent with the recommendations in the Committee of Scientists' report. (264) On November 9, 2000, the Forest Service adopted planning regulations that made it the agencies' first priority "to provide sustainable flows of uses, values, products, and services" from its lands. (265)
The concept of sustainability is not new in forestry. (266) The idea has always been a component of forest management, but traditionally has been viewed as a method for ensuring the sustained flow of timber, rather than managing a forest ecosystem. (267) According to the Committee of Scientists and the Forest Service, however, sustainability "has importance as a broad social objective, and serves to sustain ecological, economic, and social values." (268) It seeks to protect intangible values, such as "beauty," "wonder," and "naturalness," as well as to sustain economic commodities. (269) Further, the Committee of Scientists and the new regulations suggest a preference for sustaining the ecological values of the national forests, reasoning that economic and social benefits depend on the health of the ecosystem for their sustainability. (270)
Sustainability is not a concrete idea that is based on scientific fact. The concept relies heavily on scientific findings, but ultimately its meaningful application requires a series of value judgments. (271) As a result, the meaning of sustainability is ambiguous at best. (272) The Committee itself admitted that "sustainability is broadly aspirational and can be difficult to define in concrete terms." (273) This concept begs the question, "How exactly will the Forest Service implement sustainability in the planning process?" The November 2000 regulations, suggest that ecological, social, and economic factors must each play a role in forest management. (274) However, according to the Secretary of Agriculture, the regulations place higher priority on forest health, science, and public participation over timber harvest. (275) In fact, the first principal expressed in the November 2000 regulations states that the Forest Service's first planning priority is "to maintain or restore ecological sustainability of national forests and grasslands." (276)
Needless to say, while environmentalists praised the results, some have questioned whether the principles that underlie ecological sustainability violate the Forest Service's mandate under its enabling acts. (277) For instance, the Organic Act and its accompanying court decisions have made clear that the predominant uses for the national forests are for timber management and watershed protection. (278) The new regulations take a decidedly different path, and some suggest the November regulations and Committee recommendations go beyond the Forest Service's mandate under the Organic Act.
For example, one of the members of the second Committee of Scientists admitted that the goals of the report are different from existing statutory legislation. (279) Additionally, Donald Arganbright, chair of the committee of forest policy for the American Society of Foresters, alleges that because the new regulations change the agency's management priorities, they reflect a new mandate for forest management that the Forest Service does not have the authority to present. (280) Further, in October 1999, the General Accounting Office (GAO) released a report suggesting the new Forest Service regulations "overstep the law" because Congress has never expressly accepted ecological sustainability as the Forest Service's highest priority. (281) As Arthur Cooper, the chair of the original Committee of Scientists put it,
It is true that one can weave together all of the statutes that must be satisfied by national forest planning and conclude that collectively they support sustainability as the `guiding star' of management. However, if that `guiding star' violates those statutes specific to the management of the national forests, which interpretation is correct? (282)
In response, the Forest Service contends that the regulations will achieve the goals of the Organic Act and MUSYA because they are considerably less detailed than the original rules. (283) The agency argues that the streamlined regulations provide a high degree of flexibility to forest managers, reduce the time and cost of planning, (284) and reflect new scientific knowledge, the goals of environmental laws that affect the forests, and the changing attitudes of the public toward the management of public lands. (285)
However, the GAO report found that the regulations do not provide clear direction on how to resolve conflicts among competing uses. (286) Further, it is questionable whether the regulations will be more efficient than the old. The new planning process designed to achieve ecological sustainability is also extremely complex, expensive, and likely to consume large amounts of time and resources. (287) Because of the allegations that the Forest Service has defied its authority under its enabling acts, it is possible that the November 2000 regulations will incur as much litigation and legal gridlock as seen in the past. (288) Soon after President Bush took office in January 2001, the Department of Agriculture placed a one-year hold on the November 2000 regulations. (289) Nevertheless, similar claims will likely be made if President Bush's administration uses this delay as an opportunity to adopt future forest planning policies that reflect an opposite perspective, emphasizing economic value and the desire to increase the harvest of forest commodities.
VI. CONCLUSION: THE FUTURE OF SCIENCE IN PUBLIC LANDS POLICY
In 1992, Arthur Cooper reflected on the original Committee of Scientists and its role in implementing the 1982 regulations: "if it is an experiment that is fated never to be repeated, can we learn anything of value from its history?" (290) Five years later Dr. Cooper's wish came true, but it is questionable that the new regulations will fare any better than the last. After two attempts at using a Committee of Scientists to manage public lands, it appears that Senator Metcalfs great experiment has twice failed to meet congressional expectations. The first Committee produced a complex and unworkable system for managing the national forests, while the second Committee allegedly aided the Forest Service in illegally altering the mission that Congress established for the agency under the Organic Act and MUSYA. As a result, it is time to re-evaluate the role that science has been asked to play in developing public lands policy.
A. The Proper Role of Science in Land Management
Debates continue to be waged over the proper role of science in managing the public lands. Some forestry professionals argue that public lands decisions should be based entirely on science because the current planning process is too time consuming and wasteful. (291) Others, however, contend that the notion of relying solely on science is absurd because it is impossible to separate "politics and administration, fact and value, science and religion" when managing the public lands. (292) It is true that science cannot make value judgments; (293) while conservation biology was developed to provide a scientific basis for reaching certain goals, those goals grew out of the fundamentals and ideologies of individuals, not scientific reasoning. (294) However, science should not be removed from the policy-making process altogether because scientific reasoning is a necessary prerequisite to making sound policy decisions.
The Society of American Foresters has articulated the need to distinguish the role of science in policy formation from its role in decision making. (295) The Society argues that decision making "involves the choice of an alternative from among a series of competing alternatives," while policy formation "typically involves a pattern of action, extending over time and involving many decisions." (296) Thus, policy formation is circular: it is a general philosophy that guides decision making, but is also influenced by the body of decisions that were made prior to the formation of policy. Science is an extremely useful tool in the analysis of land management decisions. (297) As a result, science is of the utmost importance to the formation of public lands policy, but should not be the sole basis upon which final policies are produced.
However, science should also not be solely relied on in day-to-day decision making. While science is capable of defining a series of alternatives, it is not capable of choosing between them. (298) Thus, land managers should use science only to form a broad knowledge base. This base allows later policy and decision makers to arrive at strong conclusions by combining scientific and logical reasoning with social values. With regard to public lands management, a Committee of Scientists might be used to provide the necessary information to make sound, local land use decisions. However, general forest policy should never be established through such a committee; that role should be reserved to Congress and its agency delegates.
B. The Failures and Successes of the Committees of Scientists
The initial Committee of Scientists undoubtedly failed in the development of a forest planning process because it played a significant role in developing regulations that were so complex that they were never fully implemented. (299) Perhaps this was because scientists were taken outside their field of expertise and asked to develop policy, rather than to provide the information necessary for sound decision making. When Congress passed NFMA, it saw the Committee of Scientists as a way to address the technical, science-based issues involved in forest management. In reality, the Committee allowed itself to become a venue for fielding the varying interests and values that Americans have toward the national forests. (300)
The Forest Service used the second Committee of Scientists more appropriately than the first because the agency merely asked the scientists to assist in improving the planning process. (301) The second Committee was not as actively involved in policy formation as its predecessor, and the Forest Service simply used the second Committee to review and analyze information for the agency. The individuals on the second Committee represented a range of biological and social sciences, and each member provided the Forest Service with a unique view of forest planning. While never directly stated, the participation of the scientists aided the Forest Service in establishing formal guidelines for a policy that had long been in place--ecosystem management. (302) In the end it was the agency that made the ultimate policy decisions, and the Committee of Scientists simply provided a more sound basis for the agency's reasoning.
Whether the planning efforts of the second Committee will be more successful than its predecessor is yet to be seen. The Committee provided the Forest Service with what it believed to be an ideal management paradigm for the national forests: one where ecological sustainability prevailed over other existing uses. Unfortunately, the Forest Service may have followed the second Committee's advice too closely. While the recommendations of the Committee are rooted in science, they do not necessarily coincide with the broader policy expectations of Congress. (303) The Forest Service ultimately used the scientists' recommendations to justify its management strategy and some say, to alter its own mission. (304) As a result, the regulations are susceptible to attack by those who wish to exploit forest resources at the expense of the Forest Service preservationist goal. Forthcoming litigation by special interests in an attempt to nullify the regulations may prevent determining in the future whether the Forest Service's second use of the Committee of Scientists was successful in developing a stable planning process.
C. A Permanent Role for the Committee of Scientists
The Committees' shortcomings do not mean all was lost or the attempts were worthless. Much was learned from these efforts about engaging science and using public participation in the process of forming policy. The Committees of Scientists served as a venue for public participation, presented a forum where problems and potential solutious could be discussed absent partisan debate, and provided outside review of agency decision making. (305) Other government agencies, as well as the Forest Service, can use this new knowledge when deciding whether scientists and similar committees would be helpful in the development of regulations and policy in the future.
However, science cannot be used effectively if it is only used when convenient for land managers or at the discretion of agency heads. Scientific analysis should be applied continuously in decision making because it is crucial to the development of sound policy. (306) A more appropriate role for a Committee of Scientists is as a series of permanent boards designed to review agency research.
In fact, such an approach was alluded to in the November 2000 planning regulations. These rules allow the establishment of regional science advisory boards to provide technical advice to Regional Foresters and even require that a regional board be available for each forest or grassland. (307) However, the regulations stop short of mandating a constant review and critique of agency-produced science that is used to inform decision making. (308) Small committees of scientists from outside the management agency should play a direct role in critiquing agency studies and assessing the adequacy of monitoring techniques. Such committees would alleviate many of the concerns Congress had in the passage of NFMA by establishing a method for outside review of the information on which agency decisions are based. Additionally, committee reviews could be made available to the public--enabling citizens to test agency decisions in both courts of law and public opinion. This solution would avoid the problems that occurred with the original Committees (where scientists were asked to resolve policy questions outside their expertise) and would aid local management districts in making on the ground decisions.
D. The Need for Congressional Action
There are, however, fundamental flaws that must be addressed before the use of any Committee of Scientists will be successful in the future. Congress, like the American public, has placed too much faith in the idea that science can solve society's most complex problems. (309) While it is clear that the first Committee of Scientists did not succeed in its efforts to develop a sound planning process and it is skeptical whether the second performed any better, the two committees did not fail due to lack of effort or expertise; they failed because Congress refused to answer fundamental questions of policy: scientists were the wrong people for the right job. (310) Without direction from authoritative policy makers, it is understandable why each group of scientists produced complex, unworkable, and potentially illegal results.
Due to changing societal trends and increased scientific knowledge, the purposes of public lands are not widely agreed upon or clearly defined by statute; (311) consequently, the Forest Service and other land management agencies are without a clear mission or purpose in their land management objectives. (312) Congress has traditionally ignored forest policy problems unless some form of political crisis has resulted from the process of public lands management. (313) NFMA was enacted as the result of immense conflict, but the legislature has failed to check up on its progress in the intervening twenty-five years. Congress acted numerous times to address the environmental concerns raised by society, but failed to take the pulse of changing American values toward public lands after enacting the initial land management statutes. As a result, the environmental laws have ultimately "trumped" NFMA. (314) In the past few decades, changes in public values and the increased enforcement of federal environmental laws have created a need to alter the management goals on public lands and give greater consideration to the need to harvest resources in ways that offer ample protection for ecosystems and aesthetic and recreational opportunities. (315) Unless the conflicts between environmental protection, forest management statutes, and public values are resolved, it is unlikely that any form of forest management or planning will ever be made to work--with or without sound science. (316) Congress must establish a clearer framework for public lands policy. (317) Without basic value assumptions to guide decision making, scientists cannot by themselves bring about a successful policy-making process.
Despite misuse and the apparent lack of direction of the second Committee of Scientists, its advice will have a profound effect on the future of public lands management. In drafting its final report, the second Committee of Scientists expressed hope that sustainability might be applied to other public lands, not just in the national forests. (318) The time for such a debate has come and passed. Whether the November 2000 regulations of the Forest Service prove successful or not, the second Committee of Scientists has turned a page in public lands management that will not be turned back. The efforts of the Committee articulate and suggest a new purpose for the people's lands. Perhaps Congress might hear this call to action. Until this happens, however, neither scientists nor agency policy makers will be able to establish a workable framework for protecting these lands because there is no consensus regarding the purposes for which they should be managed.
(1) William E. Towell, The Changing Roles of Professionalism, 36 FOREST & CONSERVATION HIST. 123, 124 (1992).
(2) Steven E. Daniels, Understanding the Committee of Scientists as a Process in Social Learning, 36 FOREST & CONSERVATION HIST. 129, 130 (1992).
(3) See William R. Burch, Jr., The Social Meaning of Forests, in FORESTS IN DEMAND: CONFLICTS AND SOLUTIONS 51-59 (Charles E. Hewett et al. eds., 1982) (discussing the social meanings of forests, including their economic meaning, recreational aspects, and role as seedbeds for social change).
(4) Common forms of American public lands include the national forests (managed by the Forest Service, an agency of the Department of Agriculture), property held by the Bureau of Land Management (an agency of the Department of the Interior), national parks (managed by the National Park Service, an agency of the Department of the Interior), national wildlife refuges (managed by the Fish and Wildlife Service, an agency of the Department of the Interior), lands controlled by the Department of Defense and Department of Energy, and lands protected as National Monuments (established through presidential action under the Antiquities Act of 1906, 16 U.S.C. [section] 431-433 (2000)).
(5) See generally CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS vii-x (1987) (examining a number of uses for the national forests and their implications in forest management).
(6) See, e.g., RIK SCARCE, Eco-WARRIORS: UNDERSTANDING THE RADICAL ENVIRONMENTAL MOVEMENT 173-74 (1990) (discussing the advent of tree-sitting as a method of protesting national forest timber sales and the violence and personal injury that has resulted from such action); Dustin Solberg, An Activist Dies in the Forest, HIGH COUNTRY NEWS, Oct. 12, 1998 (discussing the alleged murder of a twenty-four year old activist who was killed by a felled old-growth redwood tree in the Headwaters Forest), at http://www.hcn.org/database.html.
(7) U.S. DEP'T OF AGRIC., SUSTAINING THE PEOPLE'S LANDS: RECOMMENDATIONS FOR STEWARDSHIP OF THE NATIONAL FORESTS AND GRASSLANDS INTO THE NEXT CENTURY 9 (1999) [hereinafter SUSTAINING THE PEOPLE'S LANDS], available at http://www.fs.fed.us/news/science; PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, SUSTAINABLE AMERICA: A NEW CONSENSUS FOR THE PROSPERITY, OPPORTUNITY AND HEALTHY ENVIRONMENT FOR THE FUTURE ch. 5 (1996) ("Studies by the U.S. Department of the Interior's Bureau of Land Management have shown that the cumulative effects of past activities on public lands have led to serious environmental problems, including degraded aquatic and riparian systems; less productive rangeland conditions; fragmented plant, animal, and fish habitats; and decline in forest health."), available at http://www.whitehouse.gov/PCSD/Publications/index.html.
(8) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 10; see also RICHARD B. PRIMACK, ESSENTIALS OF CONSERVATION BIOLOGY 267-69 (2d ed. 1998). Invasive exotic species often enter an area in the absence of natural predators and therefore may be better suited than native species to take advantage of disturbed conditions. Id. at 267. "Exotic species are considered to be the most serious threat facing the biota of the United States national park system." Id.
(9) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 9; Charles F. Wilkinson, A Case Study in the Intersection of Law and Science: The 1999 Report of the Committee of Scientists, 42 ARIZ. L. REV. 307, 311 (2000).
(10) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 9.
(11) Id. at 9-10; Wilkinson, supra note 9, at 311.
(12) Bruce Wilcox & Dennis Murphy, Conservation Strategy: The Effects of Fragmentation on Extinction, 125 AM. NATURALIST 879, 884 (1985); Dave Foreman, The Wildlands Project and the Rewilding of North America, 76 DENY. U. L. REV. 535, 536-37 (1999) (discussing generally the rise of conservation biology and the relationship between habitat fragmentation and global extinction rates).
(13) See infra notes 194-201 and accompanying text. The primary mission of the Forest Service is to secure favorable water flows and a continuous supply of timber. United States v. New Mexico, 438 U.S. 696, 715 (1978). In 1960, Congress supplemented this mission to include "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." Multiple Use and Sustained Yield Act of 1960, 16 U.S.C. [subsection] 528-531 (2000).
(14) See STEVEN LEWIS YAFFEE, THE WISDOM OF THE SPOTTED OWL: POLICY LESSONS FOR A NEW CENTURY 118-23 (1994) (discussing the decrease in timber harvests that resulted from the spotted owl controversy and the 1989 Timber Summit).
(15) KELSEY ALEXANDER ET AL., FOREST OF DISCORD: OPTIONS FOR GOVERNING OUR NATIONAL FORESTS AND FEDERAL PUBLIC LANDS 63 (Donald W. Floyd ed., 1999). "In the United States the most common measure of lumber volume is the board foot, defined as a piece of wood containing 144 cubic inches. It can most easily be visualized as a board 12 inches square and one inch thick (12" x 12" x 1" = 144 cubic inches). However, any piece of wood containing 144 cubic inches is a board foot (e.g. 3" x 4" x 12"; 2" x 6" x 12"; etc.)." Stephen M. Bratkovich & Randall B. Heiligmann, Measuring Standing Trees Determining Diameter, Merchantable Height, and Volume, at http://www.ohioonline.osu.edu/for-fact/OO35.html (last visited Feb. 4, 2002).
(16) ALEXANDER ET AL., supra note 15, at 64; GEN. ACCOUNTING OFFICE, GAO/RCED-99-166, FOREST SERVICE PRIORITIES: EVOLVING MISSION FAVORS RESOURCE PROTECTION OVER PRODUCTION 11 (1999) [hereinafter FOREST SERVICE PRIORITIES]. During the mid- to late-1990s, U.S. District
Judge William Dwyer enjoined 47 timber sales in Oregon and Northern California when environmentalists alleged that the Forest Service was not properly surveying rare species. Lynda V. Mapes, Settlement Would Clear Logjam Caused by Environmentalists' Lawsuit, SEATTLE TIMES, Nov. 19, 1999, at B1, available at http://archives.seattletimes.nwsource.com/web.
(17) See ALEXANDER ET AL., supra note 15, at 11 ("The conflict of interests and values and rapidly changing conditions suggest that it is time to reconsider our policies for managing the national forests and public lands--policies that are 25 to 100 years old and were implemented under different scientific, social, and political circumstances.").
(18) Examples include the General Revision Act of 1891, 16 U.S.C. [section] 471, repealed by Pub. L. No. 94-579 [section] 704(a), 90 Stat. 2792 (1976); the Organic Act of 1897, 16 U.S.C. [subsection] 473-482, 551 (2000); and the Multiple Use, Sustained Yield Act, 16 U.S.C. [subsection] 528-531 (2000).
(19) 43 U.S.C. [subsection] 1701-1785 (2000).
(20) 16 U.S.C. [subsection] 472a, 521b, 1600, 1611-1614 (2000) (amending Forest and Rangeland Renewable Resources Planning Act of 1974, Pub. L. No. 93-378, 88 Stat 476).
(21) See generally U.S. DEP'T OF AGRIC., THE PRINCIPAL LAWS RELATING TO FOREST SERVICE ACTIVITIES (1983) (listing all laws that apply to the Forest Service's land management practices).
(22) GEN. ACCOUNTING OFFICE, GOA/RECD-99-227, LAND MANAGEMENT: THE FOREST SERVICE'S AND BLM's ORGANIZATIONAL STRUCTURES AND RESPONSIBILITIES 2 (1999) ("Federal agencies manage about 650 million acres of land nationwide. Most of these federally managed acres are under the jurisdiction of two agencies--the Bureau of Land Management, within the Department of Interior, and the Forest Service, within the U.S. Department of Agriculture."), available at http://www.access.gpo.gov/su_docs/aces/aces160.htm. The Forest Service manages 191 million acres. ALEXANDER ET AL., supra note 15, at 63. The BLM manages 264 million acres. Id. at 67.
(23) 43 U.S.C. [section] 1701(a)(11) (2000); 16 U.S.C. [section] 1604(g) (2000).
(24) 16 U.S.C. [section] 1604(h) (2000).
(25) Id. [section] 1604(h)(1).
(26) Steven E. Daniels & Karren Merrill, The Committee of Scientists: A Forgotten Link in
National Forest Planning History, 36 FOREST CONSERVATION & HIST. 108, 110-11 (1992).
(27) Id. at 108.
(28) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at ix.
(30) Rules and Regulations: Department of Agriculture Forest Service, 65 Fed. Reg. 67,514 (Nov. 9, 2000) (to be codified at 36 C.F.R. pts. 217, 219).
(31) Oversight Hearing on National Forest Planning Regulations: Hearing Before the Subcomm. on Forests and Public Land Management of the S. Comm. on Energy and Natural Res., 106th Cong. (Mar. 2, 2000) (testimony of Arthur W. Cooper, Society of American Foresters) [hereinafter Cooper Testimony].
(33) National Forest System Land and Resource Management Planning; Extension of Compliance Deadline, 66 Fed. Reg. 27,552 (May 17, 2001).
(34) Endangered Species Act of 1973, 16 U.S.C. [subsection] 1531-1544 (2000); American Lands, Bush Administration Plans to Undermine Forest Planning, at http://www.americanlands.org/forestweb/craiginf, htm (last visited Feb. 4, 2002).
(35) American Lands, supra note 34 (see July 16, 2001 comments written to Dave Baron, Forest Service Planning Officer).
(36) WILKINSON & ANDERSON, supra note 5, at 17.
(37) Act of March 3, 1891, ch. 561, 26 Stat. 1095 (also referred to as the General Revision Act).
(38) Id. [section] 24, repealed by Pub. L. No. 94-579, [section] 704(a), 90 Stat. 2792 (1976).
(39) Act of June 4, 1897, ch. 2, 30 Stat. 11, 34-36 (codified as amended at 16 U.S.C. [subsection] 473-482, 551 (2000)).
(40) Id. [section] 475.
(41) WILKINSON & ANDERSON, supra note 5, at 18. The General Land Office was established in 1812 in the U.S. Treasury Department and transferred in 1849 to the U.S. Department of the Interior. THE COLUMBIA ENCYCLOPEDIA ONLINE EDITION, at http://www.bartleby.com/65/ge/GeneralL.html. (Feb. 2001). The office was "empowered to survey, manage, and dispose of the public domain, the office administered the preemption acts, homestead laws, and all legislation affecting public lands. After 1900 it was more concerned with conservation of the remaining land. In 1946 it was consolidated with the Grazing Service into the Bureau of Land Management." Id.
(42) PAUL W. HIRT, A CONSPIRACY Or OPTIMISM: MANAGEMENT OF THE NATIONAL FORESTS SINCE WORLD WAR TWO 31 (1994).
(43) Act of Feb. 1, 1905, ch. 288, 33 Stat 628 (codified as amended at 16 U.S.C. [section] 472 (2000)).
(45) HIRT, supra note 42, at 33.
(46) Id. at 34.
(47) WILKINSON & ANDERSON, supra note 5, at 20-21.
(48) Id. at 21.
(49) See generally id. at 24-29 (discussing Forest Service planning efforts during the 1920s to 1960s).
(50) Towell, supra note 1, at 123.
(52) WILKINSON & ANDERSON, supra note 5, at 28.
(54) Id. at 28-29; see also Forest and Rangeland Management: Joint Hearings Before the Subcomm. on Env't, Soil Conservation, and Forestry of the S. Comm. on Agric. and Forestry and the Subcomm. on the Env't and Land Resources of the S. Comm. on Interior and Insular Affairs, 94th Cong. 953 (1976) (discussing the effects of World War II and the resulting increased timber demand on the Forest Service) [hereinafter NFMA Hearings].
(55) 16 U.S.C. [subsection] 528-531 (2000).
(56) MUSYA authorized the Forest Service to consider "outdoor recreation, range, timber, watershed, and wildlife and fish purposes" in managing the national forests, but expressly states that these additional uses would not minimize the initial purposes for which the national forests were established (i.e., timber and watershed protection). Id. [section] 528.
(57) The Forest Service was launched into a "productive era" in 1942 when timber became a critical war material. By 1962, timber production had risen from 4.4 bbf to 9 bbf, and reached an all-time high of 12.1 bbf in 1966. WILKINSON & ANDERSON, supra note 5, at 136-38. The era abruptly came to a close due in large part to public criticism in the late 1960s. Id. at 138.
(58) NFMA Hearings, supra note 54, at 953. Clear-cutting is "the practice of removing the forest cover from designated areas in order to regenerate a relatively homogenous stand of preferred species." SAMUEL TRASK DANA & SALLY K. FAIRFAX, FOREST AND RANGE POLICY 225 (1980).
(59) NFMA Hearings, supra note 54, at 954 (statement of Hon. James McClure (R-Idaho); see also Establish a Comm'n to Investigate Clear-Cutting of Timber on Public Lands: Hearing Before the Subcomm. on Forests of the House Comm. on Agric., 92nd Cong. 5 (1972) (statement of Hon. Gale McGee (D-Wyo.)) ("I have been increasingly concerned about the practices of clear-cutting on our national forests, in particular, and the policies and practices of the U.S. Forest Service in general."); Forest Mgmt. Practices: Hearing Before the Subcomm. on Forests of the House Comm. on Agric., 94th Cong. 130 (1976) (testimony of Michael McCloskey, Executive Director of the Sierra Club) ("[W]e believe that the time has come to put a halt to unbridled discretion in the management of our national forests. There have been too many controversies and too many abuses for the public to accept the supposition that all is well in our national forests."); WILKINSON & ANDERSON, supra note 5, at 139.
(60) WILKINSON & ANDERSON, supra note 5, at 139.
(61) THE UNIVERSITY VIEW OF THE FOREST SERVICE: COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 5. Doc. No. 91-115 (2d sess. 1970); WILKINSON & ANDERSON, supra note 5, at 139.
(62) "Clear-Cutting" Practice on National Timberlands: Hearing Before the S. Subcomm. on Interior and Insular Affairs, 92th Cong. 174 (1971 ).
(64) NFMA Hearings, supra note 54, at 414 (statement of Hon. Frank Church (D-Idaho)).
(65)The Council on Environmental Quality coordinates federal environmental efforts.... The Council's Chair, who is appointed by the President with the advice and consent of the Senate, serves as the principal environmental policy adviser to the President. In addition, CEQ reports annually to the President on the state of the environment ... and acts as a referee when agencies disagree over the adequacy of such assessments. Congress CEQ within the Executive Office of the President as part of the National Environmental Policy Act of 1969.
White House: Council on Environmental Quality, at http://www.whitehouse.gov/ceq/ (last visited Jan. 23, 2001).
(66) Towell, supra note 1, at 124.
(68) West Virginia Div. of Izaak Walton League v. Butz (Monongahela), 522 F.2d 945, 948 (4th Cir. 1975).
(69) Id. at 948.
(70) NFMA Hearings, supra note 54, at 954 (statement of Hon. Frank Church (D-Idaho) quoting Steven P. Quarles, Counsel for the Interior Committee).
(71) Zieske v. Butz, 406 F. Supp 258, 258-59 (D. Alaska 1975) (limiting timber harvest with its decision that, under the Organic Act, trees must be individually marked before they are harvested in the national forests).
(72) Towell, supra note 1, at 123.
(73) Daniels & Merrill, supra note 26, at 108; see also WILKINSON & ANDERSON, supra note 5, at 40 ("The 1976 Act amounted to a bitterly-contested referendum on Forest Service timber
(74) 16 U.S.C. [section] 1604(g)(3)(D), (F) (2000).
(75) Id. [section] 1604(g)(3) (providing for diversity of plant and animal communities and establishing criteria for timber harvest on the national forests).
(76) Daniels & Merrill, supra note 26, at 108.
(77) Greg D. Corbin, The United States Forest Service's Response to Biological Diversity, 29 ENVTL. L. 384, 385 (1999); see also WILKINSON & ANDERSON, supra note 5, at 70 ("During the Senate hearings [a principal sponsor of NFMA legislation] observed that the Forest Service's record had brought into question the extent to which the agency could be trusted to guard and manage public resources.").
(78) 16 U.S.C. [section] 1604(a) (2000). Land management plans are the engines that drive the management activities on national forests for 10 to 15 years and make projections for up to 50 years. GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 695 (Foundation Press 4th ed. 2001). "They are implemented, usually at the ranger district or national forest level, by permits, contracts, and other instruments; examples are timber contracts, camping permits, grazing leases, rights-of-way, and special land use permits." Id.
(79) 16 U.S.C. [section] 1604(d) (2000); S. REP. No. 94-905, at 2 (1976).
(80) Id. [section] 1604(f)(3).
(81) See Arthur W. Cooper, Writing the Regulations: Using Scientists to Link Law and Policy, in CONFERENCE PAPERS: THE NATIONAL FOREST MANAGEMENT ACT IN A CHANGING SOCIETY, 1976-1996, HOW WELL HAS IT WORKED IN THE PAST 20 YEARS? WILL IT WORK IN THE 21st CENTURY? 67, 68 (K. Norman Johnson & Margaret A. Shannon eds., 1998) (discussing the concerns raised during the committee markup of the Senate version of the NFMA).
(82) See Wilkinson, supra note 9, at 307 (Congress was skeptical of the "Forest Service's willingness to incorporate science into management in a serious way."); see also Corbin, supra note 77, at 380 ("Following WWII ... the Forest Service became a major producer of the nation's timber, managing the forests with little regard for species diversity or survival.").
(83) 16 U.S.C. [section] 1604(b) (2000).
(84) See Charles R. Hartgraves, The Development of Regulations for the National Forest System Land and Resource Management Planning, 36 FOREST & CONSERVATION HIST. 125, 125 (1992) ("[M]embers of Congress felt they had carried the policy framework of the law about as far as they could ... and passed a bill that was possible to pass.").
(85) Arthur A. Cooper, Reflections on the Committee of Scientist as a Mechanism for Incorporating Technical Comment into Executive Agency Action: Why Not Try It Again?, 36 FOREST & CONSERVATION HIST. 122, 123 (1992).
(86) Cooper, supra note 81, at 68; see also S. REP. No. 94-905, at 4 (1976) (letter from Senator Lee Metcalf to Forest Service Chief John McGuire). The Committee of Scientists evolved from an amendment to NFMA proposed by Senator Metcalf in the conference committee after differing bills had been passed in both the House and Senate. H.R. CONF. REP. NO. 94-1735, at 25 (1976).
(87) Cooper, supra note 81, at 68; WILKINSON & ANDERSON, supra note 5, at 307.
(88) Daniels, supra note 2, at 129.
(9O) Cooper, supra note 81, at 68; see also Luke Popovich, The "Wise Man" Committee: An Education for the Educators, 76 J. FORESTRY 424 (1978) (discussing how Senator Lee Metcalf dubbed the scientists "the wise man committee").
(91) Wilkinson, supra note 9, at 307; see also Corbin, supra note 77, at 384-89.
(92) 16 U.S.C. [section] 1604(h)(1) (2000) (emphasis added).
(95) daniels & Merrill, supra note 26, at 114 (suggesting that the statute raised a number of questions: Was the Committee "to take an active role in regulation writing or merely provide advice on regulations after the Forest Service wrote them? How binding was the advice and counsel of the Committee? How broadly intended was the effective interdisciplinary approach?").
(96) As one staff member of the Senate Agriculture Committee put it, "I have never seen a situation in any legislation with which I have been associated where Congress put so much stock in what might come in the regulation, or so much hope, and I might add, trust too." Hartgraves, supra note 84, at 125 (quoting James Guiltmier, staff member for the Senate Agriculture Committee).
(97) See infra Part III.A.
(98) See 16 U.S.C. [section] 1604 (h)(1) (2000) (charging Secretary of the Interior with appointing a committee of scientists, limited only in that appointees may not be officers or employees of the Forest Service).
(99) Hartgraves, supra note 84, at 125. Requests came from diverse groups including the National Wildlife Federation, the National Defense Council, the Sierra Club, the Friends of the Earth, the Wildlife Society, the Wilderness Society, Environmental Action, Inc., Iowa State University, the State of Montana Fish and Game Division, the Society for Range Management, and the University of Michigan. Id.
(100) Cooper, supra note 81, at 69. The Forest Service asked the Academy to provide advice in three areas: 1) determining criterion for selecting members, 2) proposing procedural guidelines for the committee, and 3) naming candidates to the committee. Daniels & Merrill, supra note 26, at 110.
(101) Daniels & Merrill, supra note 26, at 110. The Academy established criteria for choosing candidates based on the goals for the committee as a whole and on individual competence. The general goals included an effort to balance diverse backgrounds and specific knowledge, to establish varying demographic characteristics including geographical locations and age differences, and to create a committee of no more than 10 members. Individuals were chosen for aspects including their high scientific competence and knowledge of forests and grasslands, familiarity with public resource management, and lack of conflicts of interest.
(102) Id. at 108.
(103) Alan I. Marcus, The Forest for the Trees, 36 FOREST & CONSERVATION HIST. 120, 120 (1992) (arguing that the committee members were chosen because they could be manipulated to act in the way the government wished them to act. "Its members mistook the appearance of participation in decision-making for decision-making itself. They were co-opted at little or no cost to the federal bureaucracy's forest agenda.").
(104) Daniels & Merrill, supra note 26, at 110, 113.
(105) Cooper, supra note 81, at 122.
(106) The members of the Committee included, 1) Arthur W. Cooper (Chair), Professor of Forestry and Botany, North Carolina State University School of Forest Resources, 2) Thadis Box, Dean and Professor of Range Sciences, Utah State University, College of Natural Resources, 3) R. Rodney Foil, Dean, Mississippi State University School of Forest Resources and Director, Mississippi Agricultural and Forestry Experiment Station, 4) Ronald W. Stark, Graduate Dean and Coordinator of Research and Professor of Forestry and Entomology, University of Idaho, 5) Lucille F. Stickel, Director, United States Fish and Wildlife Service's Patuxent Wildlife Research Center, 6) Earl L. Stone Jr., Professor of Forest Soils, Department of Agronomy, Cornell University, 7) Dennis Teeguarden, Professor of Forestry Economics and Chair of the Department of Forestry and Resource Management, University of California, and 8) William Webb; Professor emeritus of Wildlife Management, New York State College of Environmental Science and Forestry. DENNIS C. LE MASTER, DECADE OF CHANGE: THE REMAKING OF FOREST STATUTORY AUTHORITY DURING THE 1970'S 156 (1980); Daniels & Merrill, sopra note 26, at 109; Final Report of the Conmfittee of Scientists, 44 Fed. Reg. 26,599, 26,599 (May 4, 1979).
(107) Daniels & Merrill, supra note 26, at 110.
(108) LE MASTER, supra note 106, at 157.
(109) Daniels & Merrill, supra note 26, at 110 (listing the suggested "Procedures and Operational Guidelines for the Committee of Scientists, as established by the National Academy of Sciences"). Section 6 of NFMA governs the creation and development of LRMPs, including the public participation process and regulations that are associated with the development of these plans. 16 U.S.C. [section] 1604 (2000).
(110) Daniels & Merrill, supra note 26, at 110.
(111) Id. (Arthur Cooper, Chair of the Committee of Scientists, stated that "Any reasonable reading of NFMA shows that section 6 is closely related to several other sections of the act and that it is therefore impossible for us to deal with section 6 adequately without involving ourselves in the implementation of these other sections.").
(112) WILKINSON & ANDERSON, supra note 5, at 43 n.211.
(113) Id. at 113.
(115) Daniels & Merrill, supra note 26, at 113.
(116) Daniels & Merrill, supra note 26, at 114; see supra note 93 and accompanying text.
(117) Popovich, supra note 90, at 427.
(120) Popovich suggests in a different article that "[t]he committee's 'ndependence' from useful knowledge about public involvement, political decision-making, and the actual give and take between political appointees and bureaucrats made the committee wholly dependent on their agency 'client' for substantive policy advice. 'Independence' was therefore paradoxical. It made the committee captive, not free, from the agency." Luke Popovich, A Committee of Scientists: Justifiably a Forgotten Link, 36 FOREST & CONSERVATION HIST. 121, 121 (1992). However, after a careful review of the historical record of the Forest Service's reaction to the Committee's suggestions, it seems unlikely that the Committee was ever at the mercy of the agency. True, the Forest Service possessed most of the information that the scientists needed to carry out its charge, but this did not strip its independence. Further, with NFMA the Forest Service had been stripped of its complete autonomy to manage its lands. As a result, the Service sought to gain control of the scientists so that the Service could ensure a greater degree of discretion to manage its lands than was found in the final regulations. Despite several tactical moves by the agency, this did not occur. See infra Part III.B.
(121) Popovich, supra note 90, at 427.
(122) Daniels & Merrill, supra note 26, at 114; infra notes 126-131 and accompanying text.
(123) Daniels & Merrill, supra note 26, at 110-11. "Plausible explanations for the administration's delay in proposing regulations are that the Forest Service did not know how to draft them because of the act's sweeping scope, or that it was reluctant to draft them until the ramifications could be fully anticipated--clearly impossible for regulations so substantial." Id. at 110.
(124) Id. at 114.
(126) Id. at 111.
(127) Popovich, supra note 90, at 425 (discussing the frustration the committee scientists faced with the seemingly arbitrary decisions made by Forest Service bureaucrats).
(128) Daniels & Merrill, supra note 26, at 112.
(129) Popovich, supra note 90, at 425.
(131) See id. at 426 ("And the few scientists who belatedly discovered [the significance of their decision] in overall agency policy seemed genuinely astonished to find the political shadow looming so large over what they'd assumed to be a simple economic question.").
(132) 16 U.S.C.[section] 1604(d) (2000).
(133) Hartgraves, supra note 84, at 126.
(134) Id. at 126.
(135) Popovich, supra note 90, at 427.
(137) Id. Regardless, the Committee of Scientists saw it as their role to thoroughly address the process component, stating that "We believe the legislative history of NFMA supports the fact that [the regulations] should be process oriented." Final Report of the Committee of Scientists, 44 Fed Reg. 26,553, 26,599 (May 4, 1979).
(138) National Forest System Land and Resource Management Planning, 43 Fed. Reg. 39,046, 39,046 (Aug. 31, 1978).
(139) Hartgraves, supra note 84, at 126. The Committee of Scientists themselves agreed that they had become more involved in the drafting process than Congress had intended. 44 Fed. Reg. at 26,602. One Committee member stated, "Although such active involvement was perhaps
not envisioned by Congress when it authorized the committee, it turne out to be the only practical way for us to operate." Id.
(140) 44 Fed. Reg at 26,602; Hartgraves, supra note 84, at 126.
(141) 16 U.S.C.[section] 1604(h)(1) (2000).
(142) Daniels & Merrill, supra note 26, at 111.
(145) Hartgraves, supra note 84, at 126.
(146) Daniels & Merrill, supra note 26, at 111.
(147) Final Report of the Committee of Scientists, 44 Fed. Reg. 26,599, 26,599 (May 4, 1979).
(149) National Forest System Land and Resource Management Planning, 44 Fed. Reg. 53,928, 53,967 (Sept. 17, 1979) (codified at 36 C.F.R. pt. 219).
(150) Id. at 53,928-69.
(151) Id. at 53,928.
(152) Id.; Hartgraves, supra note 84, at 127. The Forest Service Manual and Handbooks codify the agency's policy, practice, and procedure and serve as the primary basis for the internal management and control of all programs and the primary source of administrative direction to Forest Service employees. U.S. Forest Serv., Overview of the Forest Service Directive System, at http://www.fs.fed.us/im/directives/dughtml/overview.html (last visited Jan. 23, 2002).
(153) Daniels & Merrill, supra note 26, at 112 (citing a telephone interview with Thadis Box, member of the Committee of Scientists).
(154) Id. at 111. "[W]hen Reagan [was elected], [then Assistant Secretary] Rupert Cutler [left office], and John Crowell was appointed to take his place as the assistant secretary of agriculture. Immediately the Reagan administration decided they didn't like these regulations, and decided, under the direction of the President, to review regulations that they were going to rewrite and streamline." Id. at 112.
(155) National Forest System Land and Resource Management Planning, 47 Fed. Reg. 43,026, 43,026 (Sept. 30, 1982); Daniels & Merrill, supra note 26, at 111. Reagan authorized the Presidential Task Force on Regulatory Relief to review the regulations enacted by President Cartex, placing Vice-President George Bush as its head. Id.
(156) Proposed Rules: Department of Agriculture, 47 Fed. Reg. 7,678, 7,678 (Feb. 22, 1982).
(157) Id. at 7,678-81; Hartgraves, supra note 84, at 127.
(158) National Forest System Land and Resource Management Planing, 47 Fed. Reg. 43,026, 43,027 (Sept. 30, 1982); see also LE MASTER, supra note 106, at 159 (96% of those who commented opposed the changes to the 1982 regulations); Hartgraves, supra note 84, at 127.
(159) LE MASTER, supra note 106, at 159; Daniels & Merrill, supra note 26, at 112. Compare this proposition to the viewpoint of Doug McCleery, President Reagan's Deputy Assistant Secretary of Agriculture:
I thought it was very important for all groups to have a strong sense of the credibility and unbiased, balanced nature of these regulations. So we took a little bit of a risk in reconvening the Committee of Scientists .... I think they were somewhat leery too; they didn't want to be used. And I think when they came out of it, they came to a unanimous conclusion that they had not been ... the changes we made were not all that much different from what we had proposed ... but the process we went through, allowing everyone to comment on them, gave everyone a good feeling about them.
Daniels & Merrill, supra note 26, at 112.
(160) National Forest Management Act of 1976, 16 U.S.C. [section] 1604(h)(1)(2000).
(161) Daniels & Merrill, supra note 26, at 111; 47 Fed. Reg. at 43,026.
(162) Daniels & Merrill, supra note 26, at 114.
(163) LE MASTER, supra note 106, at 159. The major changes between the final 1982 rule and the proposed 1982 rule resulted from the decision to retain much more of the language of the 1979 regulations than originally proposed. 47 Fed. Reg. at 43,036.
The 1982 NFMA regulations cover five major areas of the planning process. First, the regulations describe the content and role of `regional guides,' a level of planning not mentioned in the RPA or NFMA. Second, they establish a ten-step process to develop local plans. Third, they explain how to determine where and how much timber can be harvested. Fourth, they state planning requirements for each resource. Fifth, they state `minimum specific management requirements' for timber harvesting and other activities.
WILKINSON & ANDERSON, supra note 5, at 44.
(164) 47 Fed. Reg. at 43,026.
(165) 36 C.F.R. [section] 219 (2000).
(166) Daniels & Merrill, supra note 26, at 112 (citing the statements of John McGuire, Chief of the Forest Service 1971-1979).
(167) LE MASTER, supra note 106, at 157 (citing interview by Dennis C. Le Master with Charles R. Hartgraves, director, land management planning staff, Forest Service, Washington D.C. (June 29, 1979)).
(168) See Cooper Testimony, supra note 31, at 3 ("The net result has been a planning process that has, to put it charitably, fallen into disfavor and has not met the expectations for it that existed when it was created.").
(169) Popovich, supra note 90, at 121.
(170) Id. The regulations "do not offer the detailed guidance on outputs for every resource in every forest as required by the 1976 law... it is unclear whether (plan revision) is a continuous, interactive process since it is uncertain whether the plans are being implemented." Id.
(172) Wilkinson, supra note 9, at 308.
(173) Cooper Testimony, supra note 31, at 3.
(174) See supra Part III.A.1.
(175) Daniels & Merrill, supra note 26, at 114.
(176) See supra notes 165-72 and accompanying text.
(177) Popovich, supra note 90, at 121.
(178) Cooper, supra note 85, at 122; see also Hartgraves, supra note 84, at 126 ("I personally think that [the Committee] showed a supreme dedication to the public good and this is one of the committee's key contributions.").
(179) See Cooper, supra note 85, at 123. "[I]t was impossible for the Forest Service to ignore the committee's views. They had to be dealt with either in meetings with the committee or in the agency's response to the [c]ommittee's reports in the Federal Register." Id. Arthur Cooper was the chair of the Committee of Scientists from 1977 to 1979.
(180) Popovich, supra note 120, at 121.
(181) See, e.g., Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726 (1998) (challenging the Wayne National Forest plan on grounds that it permitted too much logging and too much clear- cutting).
(182) Hartgraves, supra note 84, at 128.
(183) ALEXANDER ET AL., supra note 15, at 8.
(184) See HIRT, supra note 42, at 292. ("[T]he two factors that previously sustained intensive management solutions--perceptions of abundance and public faith in technologically enhanced forest production--[have] all but disappeared."). Compare 30 CONG. REC. 966 (1897) (quoting Cong. McRae) ("The objects for which the forest reservations should be made are the protection of the forest growth .... They are not parks set aside for non-use, but have been established for economic reasons.") and United States v. New Mexico, 438 U.S. 696, 708, 715 (1978) (holding that "[n]ational forests were not to be reserved for aesthetic, environmental, recreational, or wildlife preservation purposes ... but such purposes could be a reason for the establishment of the forest if there also were one or more of the purposes of improving and protecting the forest, securing favorable conditions of water flows, or to furnish a continuous supply of timber") with CNN/USA Today/Gallup Poll 33 (June 6-7, 2000) (showing that 72% of American adults favor presidential action that severely restricts mining and timber cutting on federal lands), available at http://www.gallup.com/poll/surveys/2000/topline000606/index.asp.
(185) See ALEXANDER ET AL., supra note 15, at 10. "The debate over ecosystem management also suggests that past decisions under the multiple-use paradigm led to levels of commodity production and environmental degradation that now seem less acceptable in light of current public values. The neologism itself, ecosystem management, is perhaps necessary to signal the shift toward greater environmental consideration in decision making about national forests and public lands." Id. For a brief discussion of ecosystem management, see infra notes 227-5 and accompanying text.
(186) Id. at 8.
(187) Id. at 8-9.
(188) See David N. Bengstrom & David P. Fan, Roads on the U.S. National Forests: An Analysis of Public Attitudes, Beliefs, and Values Expressed in the News Media, 31 ENV'T & BEHAVIOR 514, 514 (1999) ("[T]he boom in outdoor recreation activities that often conflicted with timber harvesting, and the rise of the environmental movement in the 1960s resulted in growing opposition to increased road building and logging."); see also Jan G. Laitos & Thomas A. Carr, The Transformation on Public Lands, 26 ECOLOGY L.Q. 140 (1990) (arguing that recreational and preservation uses have become the dominant use on the public lands).
(189) See HIRT, supra note 42, at 277. "National Forests managers often point to `changing public values' or `increasing public pressures' as one of their reasons for reducing timber harvests." Id.
(190) Bob Berwyn, Forest Service Sets New Recreation Agenda, ENVTL. NEWS NETWORK, Oct. 23, 2000, available at http://www.enn.com/news/enn-stories/2000/10/10232000/reeagenda_39319.asp.
(191) DAVID N. COLE, UNITED STATES DEPARTMENT OF AGRICULTURE, WILDERNESS RECREATION
USE TRENDS, 1965 THROUGH 1994, at 3 (1995).
(192) See ALEXANDER ET AL., supra note 15, at 9 ("[I]t was during the postwar period that the national forests changed from timber reserves to major sources of timber for companies whose own holdings had been diminished by the demands of war and the subsequent economic boom.").
(194) RODERICE NASH, WILDERNESS AND THE AMERICAN MIND 316 (3d ed. 1982). "In the 1960s, wilderness benefited from the most intense and widespread questioning of established American values and institutions in the nation's history." Id. at 251.
(195) 16 U.S.C. [subsection] 1131-1136 (2000).
(196) COLE, supra note 191, at 1.
(197) HIRT, supra note 42, at 296-97.
(198) See COLE, supra note 191, at 1 (stating that "recreation use is the root of the growing managemefit challenge").
(199) ALEXANDER ET AL., supra note 15, at 11.
(200) HIRT, supra note 42, at 297.
(202) See Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn't Always Better Policy, 75 WASH. U. L.Q. 1029, 1037 (1997) (discussing the role of science in influencing conservation policy in the United States).
(204) Id. at 1040-41.
(205) ALEXANDER ET AL., supra note 15, at 11.
(206) A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 DUKE ENVTL. L. & POL'Y F. 193, 209 (1996).
(208) PRIMACK, supra note 8, at 19-21. The philosophies of this field are based on the notion that diversity, ecological complexity, and evolution are good, and that extinction is bad. Conservation biologists use scientific fact as a means to reach these value-laden ends. Id.
(209) Tarlock, supra note 206, at 210.
(210) PRIMACK, supra note 8, at 157-72. Island biogeography is a hypothesis that correlates the migration and extinction rates of island species (based on island size and distance from the mainland) with species found in wilderness reserves and roadless areas (based on the size of the reserve and distance from other habitat). Id. For example, larger islands of land that are in close proximity to other reserves are thought to have higher migration rates and lower extinction rates than smaller reserves that are more distant. Id.
(211) Sierra Club v. Marita, 46 F.3d 606, 622-23 (7th Cir. 1995) (holding that the Forest Service deserved deference in its management decisions, even though conservation biology was a well respected science); see also infra text accompanying note 225 (discussing the incorporation of modern science into the Northwest Forest Plan).
(212) Sierra Club, 46 F.3d at 608.
(213) Id. NFMA requires the Forest Service to provide for the diversity of plant and animal species. 16 U.S.C. [section] 1604(g)(3)(B) (2000).
(214) Sierra Club, 46 F.3d at 621.
(216) Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
(217) Sierra Club, 46 F.3d at 622.
(218) Id. at 622 n. 12.
(220) Id. at 621.
(221) Final Report of the Committee of Scientists, 44 Fed. Reg. 26,599, 26,609 (May 4, 1979).
(222) Sierra Club, 46 F.3d at 619.
(223) Id. at 621.
(224) Id. at 622.
(226) See supra notes 82-83 and accompanying text.
(227) Sierra Club, 46 F.3d at 622-23.
(228) Id. at 618.
(229) "The ecosystem approach is changing how forests are being managed." THOMAS TUCHMANN ET AL., THE NORTHWEST FOREST PLAN: A REPORT TO THE PRESIDENT AND CONGRESS 7 (1996); see also id. at 65-140 (discussing various scientific aspects incorporated into the Northwest Forest Plan). The Northwest Forest Plan is a "comprehensive management plan" that governs federal forests in California, Oregon, and Washington, and attempts to "balance the competing interests of environmental protection and timber production." H. MICHAEL ANDERSON, CITIZEN GUIDE TO THE NORTHWEST FOREST PLAN 1 (1994); see also Robert B. Keiter, Conservation Biology and the Law: Assessing the Challenges Ahead, 69 CHI-KENT L. REV. 911, 919-34 (1994) (discussing the foothold that conservation biology has secured in public lands management).
(230) Interview with E. Thomas Tuchmann, past Director, Office of Forestry and Economic Assistance, United States Department of Agriculture, in Portland, Oregon (Oct. 16, 2000).
(231) 974 F. Supp. 905 (E.D. Tex. 1997), vacated on standing grounds by Sierra Club v.
Peterson, 228 F.3d 559 (5th Cir. 2000).
(232) Id. at 912.
(233) See, e.g., The Wildlands Project (a nonprofit organization composed of conservation biologists and citizen conservationists who seek to develop a North American wilderness recovery strategy), at http://www.wild-earth.org (last visited Feb. 4, 2002).
(234) For example, the Forest Service's Northwest Forest Plan incorporates a number of conservation biology related strategies to ensure diversity on public lands. TUCHMAN, supra note 229, at 74-75 (discussing strategies for maintaining biological diversity including species and reserve based conservation and other management techniques). FOREST SERVICE PRIORITIES, supra note 16, at 10 (emphasizing the changes in the Forest Service's mission statement over the past two decades); see infra note 239.
(235) See infra Part V.
(236) Wilkinson, supra note 9, at 308.
(238) Envtl. News Network, U.S. Forest Service Unveils Plan to Cut Bureaucracy (Nov. 10, 2000), available at http://www.wire-stories/2001/11/11102000/reu_usfs_40049.asp.
(239) See supra Part IV.A.
(240) See Michael H. Rauscher, Ecosystem Management Decision Support for Federal Forests in the United States: A Review, 114 FOREST ECOLOGY & MGMT. 173, 174 (1999). "After almost 20 supra note 16, at 2, 10.
(241) U.S. Dep't of Agric., Glickman Requests Nominations for Committee of Scientists (Aug. 15, 1997) [hereinafter News Release #1], available at http://www.usda.gov/news/releases/1997/08/0275.
(242) Id.; see also Committee of Scientists Meeting Notes (Dec. 19, 1997), available at http://www.cof.orst.edu/org/scicomm/010198.htm (quoting Jim Lyons, Undersecretary of the United States Department of Agriculture who said, "New science, new technology, and a reviewed emphasis on seeking greater involvement on the part of the public and other agencies in the planning process warrant a new look at how we go about planning the management of the national forests. This is the Committee's charge.").
(243) Notices, Department of Agriculture, Office of Secretary: Committee of Scientists, 62 Fed. Reg. 43,691-92 (Aug. 15, 1997).
(245) Cooper Testimony, supra note 31, at 1.
(246) The members of the second committee of scientists included Kent Agee, Professor of Forest Ecology, University of Washington; Robert Beschta, Professor of Forest Hydrology, Oregon State University; Virginia Dale, Senior Scientist, Lockheed Martin Energy Research, Oak Ridge National Laboratory; Linda Hardesty, Associate Professor of Natural Resource Science, Washington State University; K. Norman Johnson, Chair of the Committee of Scientists and Professor of Forest Resources, Oregon State University; James Long, Professor of Forest Resources, Utah State University; Larry Nielsen, Director of the School of Forest Resources, Pennsylvania State University; Barry Noon, Associate Professor of Fish and Wildlife Biology, Colorado State University; Roger Sedjo, Director, Forest Economic and Policy Program, Resources for the Future, Washington D.C.; Margaret A. Shannon, Associate Professor of Public Administration, Syracuse University; Ronald Trosper, Director, Native American Forestry Program, Northern Arizona University; Charles Wilkinson, Professor of Law, University of Colorado Law School; and Julia Wondolleck, Assistant Professor of Natural Resources and Environment, University of Michigan. U.S. Dep't of Agric., Glickman Appoints Members to the USDA's Committee of Scientists (Dec. 12, 1997) [hereinafter News Release #2], available at http://www.fs.fed.us/news/19971212_sci.htm; see also SUSTAINING THE PEOPLE'S LANDS, supra note 7, at vi-viii (providing names and photos of committee and staff).
(247) The Committee's expertise included the fields of forest and range ecology, fish and wildlife biology, silviculture, hydrology, sociology, land management planning, and natural resource law. News Release #1, supra note 241.
(248) See supra note 132 and accompanying text (expressing the Committee members' inexperience with legal phrases and policy implications thereof).
(249) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at vii-viii.
(250) National Forest Management Act of 1976, 16 U.S.C. [section] 1604(h)(1) (2000).
(251) Committee of Scientists, 62 Fed. Reg. 43,691 (Aug. 15, 1997).
(252) News Release #2, supra note 246; Committee of Scientists, Notice of Meeting, 62 Fed. Reg. 64,795 (Dec. 16, 1997).
(253) See Committee of Scientists Meetings Notes (listing the attendees at each meeting and their affiliation), available at http://www.cof.orst.edu/org/scicomm/meetings.htm (last visited Feb. 4, 2002). The committee met in Boulder, Colorado; Albuquerque, New Mexico; Missoula, Montana; Boston, Massachusetts; Sacramento, California; Atlanta, Georgia; Seattle, Washington; Denver, Colorado; and Chicago, Illinois. Id.
(255) The "public forum" can be accessed at http://www.cof.orst.edu/org/scicomm/public.htm.
(256) Wilkinson, supra note 9, at 309.
(257) SUSTAINING THE PEOPLE'S LANDS, supra note 7.
(258) Cooper Testimony, supra note 31, at 3.
(259) Wilkinson, supra note 9, at 309.
(260) Id. at 310; SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 63-82, 86-87, 130-136.
(261) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 175.
(262) Id. at xiv. The Committee proposed a statement of purpose to precede the new regulations:
The National Forest System constitutes an extraordinary national legacy created by people of vision and preserved for future generations by diligent and far-sighted public servants and citizens. They are the people's lands, emblems of our democratic traditions. The national forests and grasslands can provide many and diverse benefits to the American people. These include clean air and water, productive soils, biological diversity, goods and services, employment opportunities, community benefits, recreation and naturalness. They also give us tangible qualities such as beauty, inspiration, and wonder. To assure continuation of this array of benefits, sustainability should be the guiding star for stewardship of the national forests and grasslands.
Id. at 175.
(263) See Final Report of the Committee of Scientists: Hearing Before the Subcomm. on Forests and Forest Health of the H. Comm. on Resources, 106th Cong. (Mar. 16, 1999) (testimony of James R. Lyons, Undersec., Natural Res. and Env't, U.S. Dep't. of Agric.) [hereinafter Lyons Testimony], available at 1999 WL 147181 (discussing ecological sustainability as a foundation for forest management).
(264) Wilkinson, supra note 9, at 309; Proposed Rule, 64 Fed. Reg. 54,073 (Oct. 5, 1999).
(265) Rules and Regulations: Department of Agriculture, Forest Service, 65 Fed. Reg. 67,514 (Nov. 9, 2000) (to be codified at 36 C.F.R. pts. 217, 219); 36 C.F.R. [section] 219.19 (2001).
(266) Cooper Testimony, supra note 31, at 3.
(268) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at xiv.
(269) Id. at 175.
(270) Id. at xv-xx; Wilkinson, supra note 9, at 313 ("The Committee clearly expects that the national forests will continue to provide goods and services, but it also believes that an environmental baseline should first be established to ensure that such economic benefits can be provided over time.").
(271) Cooper Testimony, supra note 31, at 3.
(272) In its proposed rule, the Forest Service defined ecological sustainability as "[t]he maintenance or restoration of ecological system composition, structure, and function which are characteristic of a plan area over time and space, including but not limited to ecological processes, biological processes, and the productive capacity of ecological systems." National Forest System Land and Resource Management Planning, Proposed Rule, 64 Fed. Reg. 54,073, 54,110 (proposed Oct. 5, 1999).
(273) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at xiv.
(274) National Forest Service Land and Resource Management Planing, 36 C.F.R. [section] 219.19 (2000).
(275) Michael Milstein, New Forest Rules Stress Resource Sustainability, OREGONIAN, Nov. 10, 2000, at D4.
(276) National Forest Service Land and Resource Management Planning, 36 C.F.R. [section] 219.2 (2000).
(277) John Hughes, Forest Health Top Job, ANCHORAGE DAILY NEWS, Nov. 10, 2000, at B3. Environmentalists have been receptive to the new regulations, but they may be naive in doing so. The sustainable ecosystems approach would create a standardless goal, allowing the agency to determine what constitutes a sustainable ecosystem. Julie A. Weis, Eliminating the National Forest Management Act Diversity Requirement as a Substantive Standard, 27 ENVTL. L. 641,658 (1997). "It would replace substantive standards with wholly discretionary guidelines" and would "essentially eliminate viable court challenges to Forest Service decision making on anything other than procedural grounds." Id. at 661.
(278) See supra Part II (discussing the legislative history and interpretation of the Organic Act).
(279) SUSTAINING THE PEOPLE'S LANDS, supra note 7, at 183 (Committee of Scientist Member Rodger A. Sedjo expressed his concerns about the report in an appendix).
(280) See National Forest Planning: Hearing Before the Subcomm. on Forests and Public Land Mgmt., 106th Cong. (Mar. 2, 2000) (testimony of Donald G. Arganbright). Sustainability presents
philosophy rather than a set of guidelines to aid land managers in the forest planning process. Planning regulations should focns on the process for making decisions, not the philosophy behind them.... We believe the Forest Service has presented one option with this proposal, but we do not believe the Agency has the authority to present new mandates for management. This document is supposed to govern how the Agency plans, not how it wants to change the management priorities of the National Forest System.
(281) Michael Milstein, Forest Service Lacks Direction, Report Says, OREGONIAN, Oct. 22, 2000, at A21; Gen. Accounting Office, GAO/RCED-00-256, Forest Service Proposed Regulations Adequately Address Some, But Not All, Key Elements of Forest Planning 3 (2000) [hereinafter GAO Report].
(282) Cooper Testimony, supra note 31, at 45.
(283) Weis, supra note 277, at 658 (arguing that this discretionary approach would hinder public participation and allow the Forest Service to determine the definition of a sustainable ecosystem and when the agency has met its obligations).
(284) GAO REPORT, supra note 281, at 3.
(285) Lyons Testimony, supra note 263.
(286) GAO REPORT, supra note 281, at 3.
(287) Cooper Testimony, supra note 31, at 45.
(288) See id. at 7 ("Should the Forest Service finally adopt regulations with an emphasis on sustainability ... it would be setting itself up for another 'Monongahela' case."); see also ALEXANDER ET AL., supra note 15, at 55 ("In the past two decades, the Forest Service and the Bureau of Land Management have begun to reinterpret their missions in light of changing judicial interpretation, public values, and new federal environmental laws. This reinterpretation comes without corresponding change in land management values.... In the absence of agreement, the role of the courts has increased.").
(289) National Forest System Land and Resource Management Planning; Extension of Compliance Deadline, 66 Fed. Reg. 27,552 (May 17, 2001).
(290) Cooper, supra note 81, at 67.
(291) Richard Behan, RPA/NFMA--Time to Punt, 79 J. FORESTRY 802, 809 (1981).
(292) ROBERT. H. NELSON, PUBLIC LANDS AND PRIVATE RIGHTS: THE FAILURE OF SCIENTIFIC MANAGEMENT 145 (1995).
(293) See Kelley L. Ross, The "Sin" of Galile, at http://www.friesian.com/mumford.htm (last visited Jan. 23, 2002) (stating that although philosophical objections to a scientific theory "will rarely produce the answer," they can still serve as warnings that the theory is flawed).
(294) See supra note 207 and accompanying text.
(295) ALEXANDER ET AL., supra note 15, at 41.
(296) Id. (quoting JAMES E. ALEXANDER, PUBLIC POLICY-MAKING 7-8 (3d ed. 1984)).
(297) See id. at 44-45 (discussing the need for baseline inventories and emphasizing the value of input from government, academic, and public interest scientists in decision making).
(298) Ross, supra note 293 (stating that scientists could develop more than one theory to explain a phenomena because theories can only be disproven).
(299) See supra notes 166-70 and accompanying text.
(300) See supra note 109 and accompanying text (discussing the public process that the Committee undertook).
(301) See supra note 243 and accompanying text.
(302) See Walter Kuhlmann, Making the Law More Ecocentric: Responding to Leopold and Conservation Biology, 7 DUKE ENVTL. L. & POL'Y. F. 133, 144 (1996) (discussing the early attempts by interested citizens to force the Forest Service to use conservation biology and ecosystem management); see also Rauscher, supra note 240, at 174 (expressing that ecosystem management had been adopted as the management philosophy of the Forest Service beginning as early as 1992).
(303) See supra Part V.
(304) See supra notes 275-78 and accompanying text; see also FOREST SERVICE PRIORITIES, supra note 16, at 1-2 (stating that NFMA and other multiple use laws provide little guidance as to how the Forest Service should resolve conflicts or make choices among competing uses on its lands).
(305) Cooper, supra note 81, at 71-73.
(306) See supra Part VI.A.
(307) 36 C.F.R. [section] 219.25 (2001).
(309) See ROBERT H. NELSON, A BURNING ISSUE: A CASE FOR ABOLISHING THE U.S. FOREST SERVICE 7-10 (2000) (discussing the failure of scientific management of public lands).
(310) See ALEXANDER ET AL., supra note 15, at 52 ("Congress has the constitutional responsibility to set policy for the national forests and public lands and should act decisively to establish clear priorities for their management.").
(311) See supra Part V.
(312) William H. Banzhaf, Comments on the Forest Service Proposal Regarding Land and Resource Management Planning (Feb. 1, 2000), available at http://www.safnet.org/policy/psst/planningregs.htm; FOREST SERVICE PRIORITIES, supra note 16, at 6.
(313) See Cooper, supra note 81, at 77 (describing congressional "tendency to regard passage of a law as the solution to a problem rather than the beginning of the solution of a problem.").
(314) Interview with Jim Giesinger, Executive Vice President of the Oregon Logger's Ass'n, in Portland, Oregon (Nov. 20, 2000); see also ALEXANDER ET AL., supra note 15, at 52 ("These incremental changes have come without a corresponding change in the basic land management statutes.").
(315) See ALEXANDER ET AL., supra note 15, at 52 (discussing the increased attention that environmental laws and court decisions have given to protection of ecological processes).
(316) Cooper testimony, supra note 31, at 45-47 (discussing the conflict between Forest Service statutes and the sustainability theme in proposed regulations); see also S. 1320, 106th Cong. [section] 2(26) (1999) ("Additional Congressional direction for the planning of, and implementation of planning on, the Federal lands is required to ensure that the predictability in Federal land management intended by the Management Acts is achieved.").
(317) One attempt to reform forest policy is currently underway. Congresswoman Cynthia McKinney and Congressman Leach have introduced the National Forest Protection and Restoration Act, H.R. 2789, 105th Cong. (1997). This legislation would stop logging on the national forests, and redirect subsidies into worker retraining, revenue-sharing payments for counties, and grants for development of tree-free paper and construction alternatives. Id.
(318) Wilkinson, supra note 9, at 313.
Member, Envrionmental Law 2000-2001; J.D. and Certificate in Environmental and Natural Resources Law expected May 2002, Northwestern School of Law of Lewis & Clark College; B.S. 1999, Northland College (Environmental Studies, Biology, and Environmental Policy). The author would like to thank Professors Stephen Odell and Michael C. Blumm for their valuable insight and harsh critiques. He also extends his gratitude to Pat Condon, Kim Kelly, and Tom Miller for their frequent reviews, constant assistance, and unquestioned friendship.
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|Date:||Mar 22, 2002|
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