Printer Friendly

The legal status of Land and Resource Management Plans for the national forests: paying the price for statutory ambiguity.

I. Introduction

The National Forest Management Act (NFMA)(1) directs the United States Forest Service Forest Service) to prepare land and resource management plans (LRMPs) to guide the maintenance and use of resources within the national forests.(2) Once adopted, these plans serve as blueprints that control management decisions for up to fifteen years.(3) An important unresolved issue concerning LRMPs is their "essence" or legal status; that is, whether LRMPs are merely programmatic documents with no impact until implemented as site-specific projects, or represent meaningful and concrete decisions that predetermine future activities.(4) The significance of this distinction is that LRMPs are only subject to judicial review and section 7 consultation under the Endangered Species Act (ESA),(5) if they constitute meaningful and concrete decisions.

Since NFMA's enactment in 1976, various entities have seized on the ambiguity in the legal status of LRMPs, and characterized them in a manner that furthers their individual agendas. Similarly, courts have varied in their views of the legal significance of LRMPs. As a result, uncertainty currently exists in numerous aspects of the forest planning process. For instance, the relationship of LRMPs to annual resource outputs, such as timber and grazing permits, has been subject to opposing interpretations.(6) The Forest Service has consistently taken the position that resource output designations in LRMPs are not hard and fast numbers and do not control resource decisions.(7) Rather, the Forest Service maintains that output decisions are made only at the site-specific level. Court approval of this position has serious consequences for both environmental and industry groups, who view the resource output designations in the LRMPs as indications of how much timber the Forest Service will sell and how much land it will allot to cattle grazing. These groups seek accurate and predictable accounts of future outputs to plan their businesses or litigation activities.

Most significantly, the ambiguous legal status of LRMPs affects the standing of plaintiffs to, sue the Forest Service over aspects of LRMPs. The Forest Service argues that because LRMPs are programmatic in nature, they do not have on-the-ground consequences and thus cannot cause injury for standing purposes and cannot be ripe for review.(8) Under the Forest Service position, citizen plaintiffs may only challenge Forest Service decisiomaking when a site-specific project occurs, and this challenge is limited to the particular project at hand. Thus, under this position, an organization cannot use the judicial process to ensure that the Forest Service follows NFMA's mandates and numerous other environmental laws in creating LRMPs. By contrast, environmental and industry plaintiffs have argued that because LRMPs make decisions that powerfully affect the environment, they should be open to legal challenge by citizen plaintiffs.(9) The United States Courts of Appeal in various circuits have split on this issue, with the Eighth Circuit adopting the Forest Service position,(10) and the Seventh(11) and Ninth Circuits(12) allowing standing to challenge LRMPs.

Ambiguity in the legal status of LRMPs also causes confusion concerning the Forest Service's responsibilities in the section 7 consultation process under the ESA.(13) Specifically, it is unclear at what stage in the forest planning process the Forest Service must consult with the appropriate expert agency about possible adverse effects on endangered or threatened species.(14) The answer to this question hinges on whether courts consider LRMPs to be "agency actions" that trigger section 7 consultation under the ESA.(15) Once again, the Forest Service and citizen plaintiffs have adopted varying interpretations of the significance of LRMPs in the section 7 process.

This Chapter analyzes the opposing interpretations of the legal status of LRMPs. Part R provides an historical overview of land and resource planning in the national forests and the development of NFMA. Part III describes current forest planning procedures under NFMA, concentrating on the relationship between LRMPs and site-specific decisionmaking. Part IV discusses the controversy over LRMP significance and outlines the competing interpretations. Part V analyzes relevant cases from the Seventh, Eighth, and Ninth Circuits, and discusses the interplay between the competing views on the legal status of LRMPs. Part VI concludes that because LRMPs represent meaningful and concrete decisions that significantly predetermine future forest uses, they should be open to challenge by citizen plaintiffs and should constitute agency actions" under the ESA.

II. Background

Congress's approach to forest planning evolved over the last century from pure deference to the Forest Service to close control of the agency through NFMA's detailed substantive and procedural mandates.(16) This more recent emphasis on close control suggests that Congress intended for LRMPs, which comprise a primary part of the NFMA planning process, to set forth concrete and reviewable decisions rather than merely a programmatic planning framework without legal effect. If LRMPs do not meaningfully incorporate the standards mandated by NFMA, then forest planning is relegated to an ad hoc site-specific process. However, as discussed below, the lawmakers who created NFMA disagreed over the degree of specificity that the management guidelines in LRMPs should contain.(17) The current ambiguity in the legal significance of LRMPS is largely a result of the compromise struck by Congress.

A. Early Forest Planning

In 1891, Congress passed the Creative Act,(18) which authorized the President to set aside public lands as forest reserves.(19) The creation of these reserves was motivated by the fear that excessive logging was damaging watersheds and future timber supplies.(20) However, the Creative Act alone was unsuccessful because it lacked an affirmative regulatory program to provide for federal management and control of these reserves.(21)

The Organic Administration Act of 1897 (Organic, Act)(22) outlined the purposes for which the President could create the reserves and provided for their protection and management.(23) The Organic Act specified that forest reserves existed only to "improve and protect" the forest, secure favorable water flows, and furnish a continuous supply of timber.(24) The Act provided the Forest Service with much discretion to develop its own management direction,(25) and served as the basis for forest policy until Congress passed the Multiple-Use Sustained-Yield Act of 1960 (MUSYA).(26)

B. The Multiple-Use Sustained-Yield Act of 1960

During the early part of the twentieth century, few disputes arose over the use of the national forests.(27) However, following World War II, as timber demand increased, various interest groups began advocating their preferred forest USES.(28) The timber industry urged increased cutting rates.(29) Conservationists and recreationists pushed for legislation to prohibit further harvesting of the forests.(30) Congress responded to these pressures by mandating the multiple-use approach in MUSYA.(31) Under this policy, the Forest Service developed district and regional Multiple-use Planning Guides.(32) Following these guides, local planners zoned the forests and created District Multiple-Use Management Plans, which suggested how to organize multiple resource uses in each zone.(33) This process was the first systematic planning effort by the Forest Service to resolve conflicting use problems, and Congress used many of its aspects in the subsequent NFMA planning process.(34)

MUSYA uses very broad language to phrase its multiple-use and sustained-yield objectives and therefore does not provide any real legal standard by which to measure Forest Service compliance with these objectives.(35) Therefore, while MUSYA is still important today for the overall direction it provides in managing the national forests, it has little value as a legal tool for resolving conflicts between user groups.(36)

C. Congressionally Mandated Planning

The Organic Act generally left forest planning policy to the judgment of the Forest Service. MUSYA continued the tradition of congressional deference, but tempered this with the limitation that the Forest Service give due consideration to all resources.(37) By the mid-1970s, however, the mood of Congress had shifted. In 1970, the Bolle Report(38) triggered national concern over Forest Service management practices.(39) It led to the 1972 Church Senate hearings, which focused on the Forest Service's over-emphasis on timber production and the increasing public concern over clearcutting practices.(40)

Congress first acted on its concern over Forest Service management practices with the Forest and Rangeland Renewable Resources Planning Act of 1974 (RPA).(41) The RPA instilled centralized planning for the Forest Service at the national level,(42) but failed to stop public concern over clearcutting.(43)

In 1975, one year after Congress enacted the RPA, the Fourth Circiut ruled in West Virginia Division of the Izaak Walton League of America v. Butz (Monongahela)(44) that the Organic Act prohibited clearcutting as a timber harvesting method.(45) Under pressure from the Forest Service and timber interests, Congress responded to this ruling by enacting NFMA.(46) Conceptually, NFMA consists of two parts: one substantive, the other procedural.(47) Substantively, the Act imposes extensive limitations on timber harvesting(48) by allowing clearcutting but limiting its use to situations in which it is the "optimum method" for harvesting.(49) NFMA also reaffirms the multiple-use and sustained-yield concepts of MUSYA.(50) Other substantive provisions include an exclusion of "unsuitable lands" from harvest,(51) a requirement that the Forest Service build roads in a cost-effective manner,(52) and a biological diversity requirement.(53) Procedurally, NFMA significantly changed the relationship between the Forest Service, Congress, and the judiciary by greatly expanding the RPA's forest planning guidelines and consequently decreasing deference to the Forest Service.(54)

On one hand, NFMA represents the culmination of a continual decline in deference historically given to the Forest Service. It is a direct result of congressional concern over Forest Service clearcutting practices and the dominance of timber production in violation of MUSYA's multiple-use provisions.(55) Consequently, NFMA mandates a number of procedural steps to ensure careful forest planning. For example, the Forest Service must involve the public in LRMP planning.(56) The procedural mandates of NFMA require careful planning on a larger scale than merely at the site-specific level. This suggests that Congress intended LRMPs to represent meaningful constraints and decisions, rather than a broad planning framework that fails to predetermine future decisions.

However, another major reason for the enactment of NFMA was a congressional desire to reverse the clearcutting ban set forth in Monongahela.(57) This demonstrates the competing interests involved in NFMA's creation. Indeed, the varying interpretations of the legal significance of LRMPs today is largely because NFMA was the result of significant congressional compromise over the degree of specificity the management guidelines in LRMPs should contain.(58) This compromise is best demonstrated by comparing the two Senate bills that resulted in NFMA.

Senator Jennings Randolph (D-W. Va.) proposed a bill advocating the "prescriptive" approach.(59) This approach required the Forest Service, in the creation of LRMPs, to meet detailed standards and procedures set by Congress that were legally enforceable.(60) Senator Randolph reasoned that the Forest Service had repeatedly mismanaged the national forests,(61) and thus, Congress should no longer leave the responsibility of preserving the productivity of the forests to the Forest Service's discretion.(62)

By contrast, Senator Hubert H. Humphrey (D-Minn.) placed much faith in the Forest Service's management expertise.(63) He proposed a bill that would give the Forest Service broad policy guidelines that would provide agency managers with flexibility to make decisions based on local conditions.(64) The Humphrey bill eventually passed, revised in large part with sections from the Randolph bill.(65) Compromise was essential to NFMA'S enactment.(66) But the price of legislative compromise can be ambiguity in statutory provisions. Although Congress designed. NFMA to restrict the deference historically given to the Forest Service in its management practices, the ambiguity leaves it unclear how much so. As a result, when a Forest Service employee, an enviromuentalist, and a timber industry employee read NFMA, each is likely reading a different act.(67)

III. NFMA Planning Mechanisms

Familiarity with the elaborate procedural mandates of NFMA and the role LRMPs play within those mandates is necessary to understand the debate over the legal status of LRMPs. This is because the LRMP represents only one level of a multilevel forest planning process. Thus, the legal status of LRMPs is dependent on the relationship of LRMPs to the other levels of forest planning. This part outlines the various levels of Forest Service planning and describes the processes set forth in NFMA and the associated Forest Service regulations for developing, adopting, and revising LRMPs.

A. Planning Levels and Relationships

Forest Service regulations promulgated in 1979 provide the general procedures and requirements for forest planning.(68) Planning occurs at four administrative levels: national, regional, forest, and project.(69) Among these levels, the regulations require a continuous flow of information and management direction.(70)

Nationally, the RPA requires the Forest Service periodically to prepare three planning documents: (1) a Renewable Resource Assessment every ten years,(71) (2) a Renewable Resource Program Report for Congress every five years,(72) and (3) an Annual Report evaluating Forest Service activities in light of the objectives proposed in the Renewable Resource Program Report.(73) In addition, the RPA mandates that the President submit two items to Congress: (1) a Statement of Policy every five years to frame budget requests for Forest Service activities(74) and (2) an explanation accompanying each budget that does not request enough funds to achieve the objectives of the Statement of Policy.(75)

At the regional level, each Regional Forester(76) Must develop a regional guide(77) and an accompanying Environmental Impact Statement (EIS).(78) The guide establishes regional standards and displays tentative resource objectives from the RPA Program for each forest.(79) The Forest Service Chief must approve each regional guide.(80)

At the forest level, the Forest Supervisor must develop an LRMP and an EIS for each administrative unit of the National Forest System (usually about one to two million acres)(81) The Regional Forester must approve each LRMP.(82) Subsequent site-specific activities at the project-level directly implement the LRMPS.(83) The entire planning process is "iterative" such that "information from the forest level flows up to the national level where in turn information in the RPA Program flows back to the forest level."(84) In addition, planning becomes increasingly specific as it progresses from the national to the project-level.(85)

B. LRMPs and Project-level Decisionmaking

The heart of the controversy regarding the legal status of LRMPs involves the relationship between the LRMP decisionmaking process and site-specific level decisionmaking. Planning at the forest level involves a two-stage approach: development of LRMPs and LRMP implementation through site-specific projects. During the initial stage, the Forest Supervisor appoints and then supervises an interdisciplinary team to help create a plan and coordinate public participation.(86) The team prepares criteria to guide the planning process(87) and collect data.(88) The team then formulates(89) and evaluates(90) a range of alternative management scenarios according to procedures under the National Environmental Policy Act (NEPA)(91) and eventually recommends an alternative to the Forest Supervisor.(92) The Forest Service must make the draft EIS and proposed LRMP available for public comment for at least three months.(93) Upon approval of the final EIS and proposed LRMP, the Regional Forester prepares a public Record of Decision (ROD) explaning her reasoning.(94) At this point, the LRMP becomes subject to administrative appeal to the Forest Service Chief.(95)

The final LRMP is a large document that divides a forest into management areas.(96) Each management area consists of standards and guidelines that govern permissible activities for that area.(97) For example, one area may have timber harvesting and road development as the dominant use, while in another the Forest Service may forbid timber harvesting to allow for wildlife needs. Direct implementation of the LRMP occurs when the Forest Service proposes individual site-specific projects, such as timber sales, camping permits, grazing leases, rights-of-way, and special land use permits.(98) These projects, as well as all outstanding and subsequent permits, contracts, licenses, and other land uses, must be consistent with the LRMP.(99) Thus, much like a zoning ordinance, the LRMP allows or prohibits various uses and establishes standards and guidelines for the regulation of future resource use.(100) This consistency requirement plays a central role in the debate over the legal status of LRMPs because, to the extent an LRMP allows or prohibits uses, it makes important decisions that predetermine the future.(101)

IV. THE CONTROVERSY

Overall, NFMA's substantive and procedural provisions improved the forest planning process tremendously. In many national forests, clearcutting has declined, creating more balance between competing multiple uses.(102) The LRMP process, in particular, has limited the deference historically given to Forest Service management practices by allowing the public to play a role in forest planning and establishing formal planning procedures to ensure consistency in forest management.

Differing treatments of the legal status of LRMPs, however, have hindered the above successes. Because NFMA's procedural requirements remain ambiguous as to how explicit the Forest Service must be in its forestwide planning process, and to what extent LRMPs affect future action, the Forest Service and various interest groups have adopted opposing positions on the nature of LRMPs in accordance with their respective agendas. The result is utter confusion as to the role LRMPs play in the forest planning process.

A. The Forest Service Position

The Forest Service has consistently taken the position that LRMPs have relatively little legal significance because they do not contain mandatory decisions that courts can enforce. The Service argues that LRMPs do not have on-the-ground consequences and do not irretrievably commit resources.(103) In other words, neither LRMPs nor the EISs that accompany them attempt to identify, evaluate, and decide every individual project that is permissible during the ten- or fifteen-year periods of the plans. The Forest Service views LRMPs as a "`gateway' for future decisions rather than an accumulation of all the site-specific decisions needed to manage a forest for the decade of the [LRMP]."(104)

Various administrative appeal decisions reflect the Forest Service's position. For example, in the Routt LRMP Appeal filed by the Rocky Mountain Oil and Gas Association, the Forest Service Chief ruled that lands that the Forest Service designated as unavailable for oil and gas leasing in the LRMP could be redesignated at the site-specific level.(105) Similarly, in the Pike and San Isabel LRMP, the Forest Service Chief affirmed the possibility of a ski area designation in the LRMP, but stated that this was not the final decision on whether a ski area could be developed.(106) These decisions demonstrate the Forest Service's view that the LRMP does not contain mandatory decisions that the courts can enforce.

B. The Environmental/Industry Group Position

Environmental and industry plaintiffs, on the other hand, argue that LRMPs contain decisions with powerful environmental consequences.(107) Under this view, LRMPs have the potential to injure citizen plaintiffs for the purposes of standing and, consequently, LRMPs should be subject to judicial review. In addition, the environmental/industry group position is significantly less deferential to the Forest Service because the courts would have the power to block Forest Service decisions at the LRMP stage of the planning process if the LRMP violates NFMA or any other environmental statute.

V. The Judiciary's Analysis of LRMP Significance

Despite the competing views on the legal significance of LRMPs, until recently very few cases had reached the courts. There are two reasons for this. First, NFMA allowed management of the national forests to continue under pre-NFMA planning documents until the Forest Service developed the LRMPs.(108) Congress explicitly prohibited agency appeals and judicial review of pre-NFMA plans "on the sole basis that the plan in its entirety is outdated."(109) Second, LRMP challengers must exhaust all administrative appeals before a court will allow judicial review.(110) Those courts that have grappled with the legal significance of LRMPs have done so in a variety of legal contexts. In the following discussion, each context is addressed separately to demonstrate the unique problems raised by the legal nature of LRMPs in each area of the law.

A. Commodity Output Decisions in the LRMP

Ambiguity in the legal significance of LRMPs has raised issues of how LRMPs relate to annual forest resource outputs. One such resource output is the allowable timber sale quantity (ASQ). The ASQ is the quantity of timber that may be sold during the time period specified in the LRMP.(111) The Forest Service has consistently argued that ASQs are not inflexible numbers and, as such, do not dictate timber harvesting decisions.(112) However, both industry groups and environmentalists rely heavily on the ASQ "as an indication of how much timber will be sold."(113) The timber industry relies on ASQs to plan future harvesting activities, and environmentalist use them to monitor forest planning by the Forest Service. Thus, the extent to which ASQs control resource decisions at the project-level has been a central part of LRMP litigation.

In Resources Ltd. v. Robertson, the Ninth Circuit made clear its position that the Forest Service must carefully calculate ASQs by stating that ASQs cannot "be drawn out of a hat."(114) The plaintiffs challenged the adequacy of the Flathead National Forest LRMP and its accompanying EIS, arguing that the Forest Service violated NEPA, NFMA, and the ESA.(115) The Forest Service argued that the ASQ would not jeopardize species listed under the ESA because the ASQ merely indicated a maximum harvest. Thus, the Forest Service stressed that when it made site-specific decisions, it could cancel various planned sales if they would endanger species.(116) In response, the Ninth Circuit held that the purpose of LRMPs is to provide long-term direction, and accurate determination of the ASQ is critical in providing this direction.(117) Accuracy is also needed, the court found, to aid both the Forest Service and private parties in planning their operations.(118)

The cattle industry raised similar concerns regarding grazing levels that, like ASQs, are specified in LRMPs.(119) These grazing levels are represented by Animal Unit Months (AUMs).(120) In Nevada Land Action Ass'n v. United States Forest Service, plaintiffs (a citizens' organization of ranchers holding permits to use the forest for livestock grazing) challenged the Toiyabe National Forest LRMP on the ground that it failed to disclose the eventual reduction in grazing.(121) When the Forest Service adopted the LRMP in 1986, the AUMs were similar to pre-plan levels.(122) However, the LRMP proclaimed the competing goals of maintaining current grazing levels and improving the condition of the rangeland, and left open the possibility of reduced grazing in the future.(123) The Ninth Circuit, one day before deciding Resources Ltd., held that the Forest Service was not bound to provide grazing levels equal to those projected in the LRMP when the plan suggested that the Forest Service could reduce those levels to meet other LRMP goals.(124) Thus, read together, Nevada Land Action Ass'n and Resources Ltd. suggest that as long as resource outputs analyzed in LRMPS are projected "accurately," the Ninth Circuit will uphold subsequent decreases from those projections if the LRMPs provide that the Forest Service may reduce the outputs.(125)

Nevada Land Action Assn's holding that private parties cannot force the Forest Service, to meet commodity output levels established in the LRMP arguably takes some steam out of the Ninth Circuit's rationale in Resources Ltd. that meaningful ASQs would provide forest users with an idea of the commodity outputs they could expect. If the Forest Service cannot be forced to meet ASQs, forest users cannot necessarily expect ASQs to come to fruition and, thus, cannot truly rely on ASQs. However, even if the Forest Service can decrease commodity outputs at the site-specific level, an attempt at an accurate determination at the LRMP stage must still be required to keep the planning process from becoming pointless. Thus, the Ninth, Circuit's rationale in Resources Ltd. should be viewed as sound despite Nevada Land Action Ass'n.

In sum, ambiguity in the meaning of commodity output decisions in the LRMP both reflects and is exasperated by the current uncertainty in the legal status of LRMPs. If LRMPs have no significant influence over subsequent site-specific projects, the Forest Service could set arbitrary levels for commodity outputs because these numbers would essentially be irrelevant. Allowing the Forest Service to do this would emphasize the pointlessness of the forest planning process at every level other than the site-specific level. The Ninth Circuit in Resources Ltd. appropriately sought to avoid such a result by making accuracy in commodity output decisions not merely a choice, but a necessity. This analysis by the judiciary - stressing the meaningful and decisive nature of LRMPs-serves to strengthen the forest planning process and, thus, should continue to be employed by the courts.

B. Standing and the Imminence Requirement

Nowhere does the question of the legal status of LRMPs have a greater impact than in the area of standing to sue.[126] To prove constitutional standing, a plaintiff must first suffer an injury-in-fact, which is an invasion of a legally protected interest that is 1) concrete and particularized and 2) actual or imminent, not conjectural or hypothetical.(127) Second, the injury must be fairly traceable to the defendant's conduct.(128) Third, the injury must be redressable by the court.(129) An interest in the proper administration of the laws is not sufficiently "concrete" for standing.(130) Thus, a plaintiff who seeks review of an LRMP must show that he will suffer personal harm as a result of the plan.(131)

The most controversial standing requirement with regard to the legal status of LRMPs is the imminent injury requirement, which received a strict interpretation by the Supreme Court in Lujan v. Defenders of Wildlife. (132) In Defenders of Wildlife, the Court held that two of the plaintiff's members who worked with certain endangered species in Egypt and Sri Lanka could not suffer "actual or imminent" harm when neither had an exact date set for a return trip to these countries to view the species.(133) The Court reasoned that the mere profession of an intent to return someday did not rise to the level of imminence that constitutional standing requires.(134) In the case of challenges to LRMPs, the varying rulings on standing by the courts are the result of interplay between two concepts: the legal nature of LRMPs and the imminence requirement of the injury-in-fact component of standing.

1. Forest Service Arguments

Keeping true to its position that LRMPs serve merely as a gateway for future decisionmaking, the Forest Service has repeatedly argued that LRMPs do not predetermine future activities, but merely allow for the possibility of development in the future.(135) The Forest Service reasons that LRMPs do not dictate that any site-specific action must occur.(136) Instead, several events must transpire before the site-specific action is allowed: 1) the action must be proposed and found to be consistent with the LRMP, 2) the action is then subjected to NEPA and NFMA analysis and public comment, and finally 3) the Forest Service must adopt the action.(137) In addition, whether projects actually occur under the LRMP also depends on extrinsic factors, such as the price of timber.(138) Finally, the ultimate decisions regarding some actions, such as wilderness designation, lie in the hands of Congress and not the Forest Service.(139) Thus, because LRMPs do not predetermine the future, the Forest Service argues that any purported injury from an LRMP is too speculative for standing purposes.(140)

The Forest Service asserts that the Defenders of Wildlife interpretation of the imminence requirement supports its position. LRMps are broad conceptual plans without action and, in the absence of action, no imminent injury can occur.(141) Therefore, the Forest Service reasons that to show standing, alleging an injury to a cognizable interest is not enough; the injury must also be actually occurring or "certainly impending" to constitute injury-in-fact.(142)

One possible motivation for these arguments is clear. Under the Forest Service interpretation, citizen plaintiffs may challenge Forest Service decisionmaking only when a site-specific project occurs, with the challenge limited to the project itself. Therefore, no organization may sue to ensure that the Forest Service follows NFMA's mandates in the creation of LRMPs, because only the consistency of specific projects with LRMPs can be litigated and not the validity of LRMPs themselves. Requiring environmental organizations to challenge each site-specific project, rather than the LRMP for an entire forest, forces them to go through the appeals and judicial processes numerous times to affect forest planning for a single forest. This is a nearly impossible task for environmental groups with limited resources, thereby subjecting the Forest Service to less scrutiny and fewer litigation hassles regarding its forest planning efforts.

2. The Judiciary's Response - A Split in the Circuits

a. The Ninth Circuit Grants Standing

The Ninth Circuit was the first court of appeals to consider whether citizen plaintiffs should have standing to challenge LRMPs. It historically has interpreted standing requirements liberally(143) and has continued this tradition with regard to LRMPs. The Ninth Circuit first addressed this issue four months before the Defenders of Wildlife decision in Idaho Conservation League v. Mumma.(144) There, the Idaho Conservation League (ICL) challenged the Flathead National Forest EIS, which recommended against wilderness designations in forty-three of the forty-seven roadless areas of the Idaho Panhandle National Forest.(145) The Ninth Circuit defined the standing issue as whether the alleged procedural failure in the EIS created a risk that environmental impact would be overlooked.(146) The court, holding against the Forest Service, stated that the fact the injury was "threatened" rather than "actual" did not defeat the claim.(147) Instead, it found that the LRMP represented an important decision and played some, if not a critical part in subsequent Forest Service decisions.(148) In addition, the court noted that if plaintiffs could challenge Forest Service planning only at the site-specific development stage, then "the underlying programmatic authorization would forever escape review. To the extent that the plan pre-determines the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge."(149)

The Idaho Conservation League court relied, at least in part, on a "procedural injury theory,"(150) because the ICL did not clearly allege a separate concrete interest beyond the procedural failure in the EIS.(151) Consequently, this aspect of its holding may be suspect following Defenders of Wildlife.(152) However, over a year later, the Ninth Circuit employed its determination that LRMPs do in fact predetermine the future in Resources Ltd. v. Robertson.(153)

In Resources Ltd., the plaintiffs challenged the adequacy of the Flathead National Forest LRMP and its accompanying EIS, arguing that the Forest Service violated NEPA, NFM, and the ESA.(154) In particular, the plaintiffs alleged that the EIS was inadequate and that implementation of the LRMP would jeopardize the survival of some ESA-listed species.(155) Thus, unlike Idaho Conservation League, the plaintiffs in Resources Ltd. clearly alleged a concrete and legally cognizable interest beyond the procedural injury (the plaintiffs would be harmed by the endangerment of the listed species).

The Forest Service argued that the Defenders of Wildlife imminence requirement undermined Idaho Conservation League's determination that LRMPs can cause direct harm.(156) The Ninth Circuit responded by pointing out that its decisions in Seattle Audubon Society v. Espy(157) and Portland Audubon Society v. Babbit(158) affirmed the continuing validity of Idaho Conservation League.(159) Thus, the Ninth Circuit repeated its position that LRMPs predetermine the future and therefore can provide imminent injury to citizen plaintiffs.

The Forest Service next argued that the plaintiffs had not been specific enough in their affidavits because they were "unable to point to the precise area of the park where their injury [would] occur."(160) In actuality, the plaintiffs filed numerous affidavits from members of their organizations that stated that the members visited and used the Flathead National Forest on a regular basis, and that their use and enjoyment would be inhibited by the adoption of the LRMP.(161) The Ninth Circuit stated that it had never imposed the specificity the Forest Service requested.(162) Similarly, the court had already rejected an argument that the injury was "conjectural or hypothetical," because there may be "as yet unknown intervening circumstances."(163)

The Ninth Circuit has taken the position that to the extent LRMPs predetermine the future, the Defenders of Wildlife's imminence requirement is met and some sort of actual injury can exist. This argument stems from an interpretation of the legal status of LRMPs directly opposite that of the Forest Service - that LRMPs are not merely plans without action, but instead constitute meaningful and concrete decisions that directly impact the environment. As such, the Ninth Circuit rejects the idea that LRMPs should forever escape judicial review.

b. The Eighth Circuit Sides With the Forest Service

The Eighth Circuit was the next circuit to consider whether LRMPs can impose imminent harm to citizen plaintiffs. hi Sierra Club v. Robertson 164 the Eighth Circuit created a split in the circuits by holding that citizen plaintiffs could not be inured by an LRMP, but only by site-specific action.(165) The plaintiffs in Sierra Club v. Robertson sought judicial review of the Ouachita National Forest LRMP, making several claims that it violated both NFMA and NEPA.(166) The court adopted a view of LRMPs essentially opposite that of the Ninth Circuit. Stating that "[a]ssertions of potential future injury do not satisfy the injury-in-fact test,"(167) it held that an LRMP is a general planning tool and its adoption does not effectuate any on-the-ground environmental changes.(168) Thus, the LRMP does not dictate that any site-specific action must occur and cannot provide the basis for standing.(169)

The Eighth Circuit acknowledged the Ninth Circuit's decisions on the same issue. The court hinted that Idaho Conservation League, despite the Ninth Circuit's continued reliance upon it, was no longer viable in light of the subsequent Supreme Court decision in Defenders of Wildlife.(170) In addition, the Eighth Circuit did not believe that a "concrete and particularized" injury was in fact alleged in any of the Ninth Circuit cases.(171)

The Eighth Circuit's analysis suffers from a number of weaknesses. First, its contention that LRMPs do not effectuate any on-the-ground environmental changes overlooks the role the consistency requirement(172) plays in the forest planning process. An LRMP necessarily determines the future to some extent when it establishes standards and guidelines with which all site-specific projects must be consistent. The Eighth Circuit held that an LRMP does not dictate that any particular site-specific action causing injury must occur.(173) However, the consistency requirement severely weakens this contention. Like zoning requirements, LRMPs allow particular projects and necessarily preclude others.(174)

The Eighth Circuit's position also underestimates the effect LRMP decisions have on citizen plaintiffs. If an LRMP designates an area as suitable timberland, the future is determined in the sense that the Forest Service is not forbidding timber harvesting. If a plaintiff would be injured by the depletion of certain endangered species within the area, then a decision not to forbid harvesting has caused a "certainly impending" injury under Defenders of Wildlife. Thus, the failure to prohibit an injury from occurring in the LRMP equals an injury in itself. Similarly, if a plaintiff seeks a wilderness designation to preserve a particularly remote and scenic hiking area and an LRMP rejects wilderness status and allows for future road building, then imminent injury to the plaintiff is clear. It is simply a matter of time until the area loses its wilderness value. The LRMP has made the overall future of this area obvious in rejecting wilderness designation. Arguably, the plaintiff could wait and challenge each site-specific project infringing on wilderness values, but the plaintiff's real complaint is not merely with the actual destruction of the forest ecosystem; it is also with the overall decision not to protect the area. Thus, not just the site-specific projects under an LRMP, but also the actual decisions made in an LRMP can impose clear and meaningful injuries to citizen plaintiffs under Defenders of Wildlife.

Finally, the Eighth Circuit's position ignores the congressional intent behind NFMA. Congress's intention to reign in the historical deference given to the Forest Service and to provide procedural and substantive guidelines for forest planning suggests a clear intention that LRMPs comprise meaningful decisions that necessarily determine how the forests are managed.(175) LRMPs represent an essential stage in the forest planning process. Only if these documents are not to be used can the court determine that they will not lead to citizen injury. Moreover, if LRMPs constitute only broad and standardless decisions, then forest planning is relegated to ad hoc decisions made on a site-specific level. The Eighth Circuit's holding that LRMPs do not determine the future and that, consequently, citizen plaintiffs have no standing to challenge LRMPs undermines Congress's intent to force the Forest Service to engage in meaningful planning.

c. The Seventh Circuit Tips the Scale

In the most recent appellate decision addressing the LRMP standing issue, Sierra Club v. Marita,(176) the Seventh Circuit held that citizen plaintiffs had standing to challenge LRMPs for the Nicolet and Chequamegon National Forests in northern Wisconsin. The Sierra Club alleged that the Forest Service's failure to employ the science of conservation biology in the forest planning process led the Forest Service to violate several statutes and regulation's requiring diversity in the national forests.(177) The Seventh Circuit rejected the Forest Service's contention that LRMPs cannot cause imminent injury, tipping the scale among the circuits in favor of citizen plaintiffs challenging LRMPs. The court stressed that NFMA's consistency provision(178) requires that certain projects be undertaken and that LRMPs clearly indicate what the effects of these projects may be.(179) The court relied on the Supreme Court's statement in Pennsylvania v. West Virginia(180) that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.(181) Significantly, the Supreme Court first created the "certainly impending" language in this case.(182) The Seventh Circuit's approach directly counters the Eighth Circuit's position in Sierra Club v. Robertson that "assertions of potential future injury do not satisfy the injury in fact test."(183) The Supreme Court acknowledged that assertions of potential future injury can satisfy the injury-in-fact test, as long as the injury is actual or imminent.(184) Because LRMPs require certain projects, the LRMPS can cause imminent injury.

The Seventh Circuit also introduced a novel argument in favor of granting citizen plaintiffs standing to challenge LRMPs when a procedural injury is involved. The court pointed to footnote 7 of the Defenders of Wildlife decision in which the majority stated that a plaintiff clearly has standing when there is a concrete injury underlying the procedural defect "even if the plan were not implemented immediately."(185) In Marita, neither party disputed that the Sierra Club's interest in this case - the use and enjoyment of the Chequamegon and Nicolet Forests - was concrete and legally cognizable.(186) The impact of this footnote should become extremely important in future challenges regarding NEPA and the EISs that accompany LRMPs. If taken at face value, the footnote suggests that when alleging procedural injury from an LRMP EIS, a citizen plaintiff with a concrete interest need not satisfy the imminence requirement at all. The Seventh Circuit supported its position by noting that if the Sierra Club had to wait until the project stage to address general procedural injuries regarding a broad issue such as biological diversity, implementation of the LRMP might have progressed too far to allow for proper redress.(187)

The Seventh Circuit distinguished Marita from Sierra Club v. Robertson by noting that the Marita plaintiffs challenged the LRMP per se, with no reference to the particularities of any proposed site-specific action that would give rise to an injury.(188) This distinction suggests that future citizen plaintiffs wishing to challenge LRMPs will have a greater chance of establishing standing by stressing that the injury is a result of the LRMP itself, not a later site-specific action - a strategy not always employed by plaintiffs in the past.

The Seventh Circuit distinguished Defenders of Wildlife in another important way. The court stressed that the Supreme Court's refusal to grant standing in Defenders of Wildlife hinged on the speculative nature of the plaintiffs' interests: these interests would not necessarily materialize because the plaintiffs had no certain plans to regularly visit the endangered species in the foreign places.(189) In Marita, however, it was only a matter of time before implementation of the management plans in the LRMP would affect the Sierra Club members' interests.(190) Again, this position has enormous consequences if accepted by the other circuits. It suggests that "imminence" does not require immediacy, but only inevitability. In the future, the Forest Service may argue that this interpretation of "imminence" is not supported by Defenders of WiLdlife. The majority in Defenders of Wildlife stated in footnote two that if "soon" return visits to the foreign countries meant "in this lifetime," this would be insufficient for standing purposes.(191) However, later in that same footnote, the Supreme Court specified that a high degree of immediacy was required only when the plaintiff alleges an injury at some indefinite future time and the acts necessary to make the injury happen are at least partly within the plaintiffs own control - a situation not applicable in Marita.(192) The Eighth Circuit in Sierra Club v. Robertson quoted the "high degree of immediacy" language from footnote two of Defenders of Wildlife without including the context in which the statement was made, further weakening its position.

The Marita decision indicates a trend away from the Eighth Circuit's restrictive interpretation of both the imminence requirement of the injury-in-fact component of standing and the legal significance of LRMPs. Both the Ninth and Seventh Circuits have made it clear that assertions of potential future injury can satisfy the imminence requirement. This contention is supported by early Supreme Court standing jurisprudence(193) and footnotes two and seven of the Defenders of Wildlife opinion. However, by recognizing that LRMPs predetermine the future by making meaningful and concrete decisions, the Ninth and Seventh Circuits found more than a threatened injury. This analysis obviates the need for plaintiffs to argue that potential future injury can be imminent, because to the extent LRMPs predetermine the future, present actual injury exists. The Ninth and Seventh Circuits' interpretation ensures that the Forest Service will continue to be held accountable for LRMP decisionmaking.

C. Ripeness

Ripeness(194) is closely related to standing,(195) and the Forest Service has continually repackaged its standing position to produce a ripeness issue. The underlying rationale of the ripeness doctrine is to prevent the judiciary from "entangling [itself] in abstract disagreements over administrative policies" through avoidance of premature adjudication.(196 The Forest Service maintains that, because an LRMP is a programmatic document that lacks any specific action, disputes over forest planning are not ripe for review until a site-specific action occurs.(197) The Forest Service has relied principally on Lujan v. National Wildlife Federation, which held that a general category of actions and decisions by the Bureau of Land Management was too vast to be considered an agency action under the Administrative Procedure Act (APA)(198) and, thus, was not ripe for review.(199)

Predictably, both the Ninth and Seventh Circuits have held that the Forest Service's ripeness argument fails for the same reason its standing argument fails: plaintiffs "need not wait to challenge a specific project when their grievance is with an overall plan."(200) Additionally, challenges to LRMPs can be ripe for review because, to the extent LRMPs predetermine the future, a failure by the Forest Service to follow the mandates of NFMA or any other environmental statute in developing an LRMP can represent a concrete injury that undermines any future challenges by plaintiffs. The Eighth Circuit did not separately address ripeness in Sierra Club v. Robertson, but the court's position that LRMPs do not predetermine the future indicates that it would be likely to side with the Forest Service on this issue.

D. The Ongoing Nature of LRMPs

Ambiguity as to the legal significance of LRMPs has also led to uncertainty surrounding the Forest Service's consultation responsibilities under section 7 of the ESA.(201) The central issue is at which planning stage the Forest Service must consult with the appropriate expert agency about possible adverse effects on threatened or endangered species - the LRMP or the site-specific level. The answer to this question hinges on whether an LRMP can be considered "agency action" under the ESA.(202) Once again, varying interpretations of the importance of LRMPs have generated opposing arguments between the Forest Service and citizen plaintiffs. Specifically, the Forest Service has maintained that "the best way to address forest management following ... salmon listings [is] to leave the LRMPs unchanged and, instead, conduct consultations on a site and activity specific basis.(203)

The Ninth Circuit grappled with t% issue in Pacific Rivers Council v. Thomas.(204) Pacific Rivers Council involved LRMPs for the Wallowa-Whitman and Umatilla National Forests in Oregon. The Forest Service finalized and approved the plans in 1990.(205) Two years later, in April 1992, the National Marine Fisheries Service (NMFS) listed the Snake River chinook salmon as a threatened species under the ESA.(206) Section 7 of the ESA requires agencies to ensure that any agency action is not likely to jeopardize. the continued existence of a threatened species.(207) Thus, if a biological assessment(208) determines that an action "may affect" a listed species, section 7 mandates that the action agency undergo a formal consultation process with the U.S. Fish and Wildlife Service or NMFS.(209) To avert further harm to the species during the consultation stage, the action agency may not make any irreversible or irretrievable commitment of resources" during this period.(210)

The regulations broadly define "agency action" to include "all activities or programs of any kind."(211) In Pacific Rivers Council, the Forest Service argued that, because it adopted the LRMPs before NMFS listed the chinook salmon, the LRMPs were not agency actions requiring section 7 consultation.(212) In other words, the LRMPs [were] not ongoing agency action[s] throughout their duration, but only when they were adopted in 1990 or if they are revised or amended in the future."(213) The Ninth Circuit, adhering to the view that LRMPs are important decisions that predetermine the future, disagreed with the Forest Service's argument. The court reasoned that because the Forest Service implements every site-specific project according to the LRMPs, the LRMPs have an ongoing and long-lasting effect after adoption and thus represent an ongoing agency action.(214) The fact that the Forest Service adopted the LRMPs before the listing of the Snake River chinook was irrelevant.(215)

The Forest Service further maintained in Pacific Rivers Council that LRMPs are not agency actions because LRMPs are merely programmatic documents that do not mandate any actions.(216) Instead, the Forest Service argued that only the site-specific activities authorized by the LRMPs are agency actions within the meaning of the ESA.(217) Although in line with the Forest Service's normal position that LRMPs are broad programmatic documents with no on-the-ground effects, the Forest Service's argument is faulty for several reasons. First, courts have already determined that LRMPs strongly influence various actions, because once they are adopted, all actions must be consistent with the LRMPs.(218) Second, this position contradicts the Forest Service's first argument in Pacific Rivers Council that LRMPs are in fact agency actions under the ESA, but only at the point of adoption or revision. Although the Ninth Circuit did not address this contradiction, it calls into question the Forest Service's true position on whether LRMPs are agency actions under the ESA.

Inconsistency in rationalizing its position on the legal status of LRMPs is not atypical for the Forest Service. For example, in forest planning regulations proposed in 1991,(219) the Forest Service stated that one major goal of the new regulations was to emphasize the "ongoing nature of forest planning and project decisionmaking."(220) The new regulations "would stress that forest planning is a continuous process dependent on periodic monitoring and evaluation, keeping [LRMPs] current and updated through amendment or revision, and maintaining ongoing and meaningful communication with the public and other governments.(221) This highlights lights an inconsistency in the Forest Service's position. In the proposed regulations, the Forest Service argues that the nature of the forest planning process is ongoing. Yet, in Pacific Rivers Council, it insists that the LRMP is not an ongoing process, but only an agency action at the points of adoption, revision, or amendment.

A large reason for the Forest Service's inconsistency regarding the legal status of LRMPs may be that it has potentially conflicting interests in the forest planning process. On one hand, it is in the agency's interest to avoid judicial scrutiny when possible. Litigation is expensive, time-consuming, and can delay agency actions. Further, to the extent the Forest Service can confine citizen challenges to site-specific projects, the Forest Service can shape LRMPs as it sees fit, without citizen or court intrusion. Thus, in the standing context, the Forest Service argues that LRMPs are broad programmatic documents that do not predetermine the future.(222) On the other hand, the Forest Service has some interest in a strong planning process so that it does not have to continually revisit planning decisions and environmental analyses at the site-specific level. Quite possibly, once the Forest Service adopts a final LRMP and EIS, any site-specific action could survive scrutiny on the basis of consistency with the plan. In other words, LRMPs have the potential to serve almost as a license for the Forest Service to conduct any site-specific action, as long as the action is consistent with the LRMP.(223)

The Forest Service found itself in just such a catch-22 in Pacific Rivers Council. On one hand, it was in the agency's interest to argue that LRMPs are merely programmatic documents that do not mandate any action. This argument strengthens the Forest Service's position that, unlike site-specific actions, LRMPs are not agency actions under the ESA. On the other hand, it was also in the Forest Service's interest to argue that LRMPs are strong planning documents at the point of adoption. This aids its position that LRMPs are not ongoing agency actions throughout their duration. The stronger and more accurate the planning document, the more likely agency action truly occurs only at the point of adoption and not later in the life of the LRMP.

Pacific Rivers Council demonstrates the significant impact that ambiguity in the legal status of LRMPs continues to have on the forest planning process. The Forest Service cannot make any irreversible or irretrievable commitment of resources during the consultation process, such as timber cutting or road building.(224) Thus, when it is unclear at what level biological consultations must occur, those parties who need predictability in the forest planning process suffer because unexpected delays may arise with court-mandated consultations. This has severe econonmic and emotional impacts on communities near forests who depend on the timber industry for their livelihoods. The current ambiguity in the legal status of LRMPs only fuels the frustrations of these local communities and other parties interested in the forest planning process.

VI. Conclusion

The legal nature of LRMPs, despite the judiciary's recent attention, remains a controversial aspect of the forest planning process. Controversy, though, is an inevitable result of ambiguous legislation. Ambiguity in NFMA's procedural provisions has opened the door to a broad array of competing interpretations of the LRMP's legal significance.

The current split in the circuits regarding the standing issue both highlights and adds to the confusion. Although the circuits differ on the restrictive nature of the imminence requirement, the split is driven by diametrically opposed interpretations of the legal status of LRMPs. However, upon an indepth analysis, the Forest Service-Eighth Circuit position breaks down. Its greatest weakness is that it acknowledges the consistency requirement present in NFMA, but at the same time maintains that LRMPs do not predetermine the future. Such a position lacks logical strength. If the site-specific actions must be consistent with the LRMP, then the LRMP necessarily determines the future to some extent. The Ninth and Seventh Circuits recognize the weakness of the Forest Service's position, appropriately finding that LRMPs do determine the future.

Beyond the illogic of the Forest Service-Eighth Circuit position, it is contrary to the legislative intent behind NFMA. Congress's concern over Forest Service clearcutting practices and timber production dominance, coupled with the explicit inclusion of substantive directives, suggests that LRMPs should set forth meaningful constraints and decisions rather than merely provide a broad planning framework that in no way determines the future.

Most importantly, however, the Eighth Circuit-Forest Service position weakens the forest planning process. By shielding LRMPs from judicial review, it provides less incentive for accuracy and thoroughness in LRMP creation. Although under the Eighth Circuit's interpretation the Forest Service may still be held accountable for its actions at the site-specific level, this does not ensure that the planning aspect of forest management will not deteriorate. The main goal behind the procedural provisions of NFMA was to improve the planning aspect of the Forest Service. Thus, LRMP review is essential to NFMA's success.

Likewise, the Forest Service's position in Pacific Rivers Council v. Thomas that section 7 consultations under the ESA need not occur until the site-specific level is disturbing. The purpose of section 7 consultations is to ensure that agency actions do not jeopardize the existence of threatened or endangered species. Waiting until each site-specific action to perform these consultations is simply inconsistent with NFMA's call for careful forest planning, which inherently requires making these types of decisions before the actual site-specific project is at hand. In addition, failing to categorize LRMPs as "agency actions" under the ESA only serves to weaken their role as forest planning tools and, therefore, benefits no one concerned with the current and future role of the nation's forests.

The need for clarification of the legal nature of LRMPs by either Congress or the U.S. Supreme Court is evident. Regardless of which position is stronger, or the true legislative intent behind NFMA, as long as the legal status of LRMPs remains ambiguous among the circuits, all those affected by the forest planning process will suffer the frustration and delays associated with litigation over this ambiguous area of the law. (1) 16 U.S.C. [subsections] 1600-1614 (1988 & Supp. V 1993). (2) Id. [sections] 1604 (1988); Sierra Club v. Marita, 46 F.3d 606, 608 (7th Cir. 1995). (3) 16 U.S.C. [sections] 1604(i) (1988); National Forest System Land and Resource Management Planning, 36 C.F.R. [sections] 219.10(e), (g) (1994); Jack Tuholske & Beth Brennan, The National Forest Management Act: Judicial Interpretation of a Substantive Environmental Statute, 15 Pub. Land L. Rev. 53, 96 (1994). (4) Tuholske & Brennan, supra note 3, at 96. The Forest Service recently acknowledged the ambiguous nature of LRMPs in proposed revisions of the current regulations governing forest planning when it stated, "the existing [regulations are] not explicit regarding the nature of forest plan decisions, resulting in some confusion by both the public and employees over the years." 60 Fed. Reg. 18,886, 18,900 (1995) (to be codified at 36 C.F.R. pts. 215, 217, 219) (proposed Apr. 13, 1995). (5) 16 U.S.C. [subsections] 1531-1544 (1988 & Supp. V 1993). (6) See Resources Ltd. v. Robertson, 8 F.3d 1394, 1398-400 (9th Cir. 1993) (timber sales); Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 717-18 (9th Cir. 1993) (grazing permits). (7) See Resources Ltd., 8 F.3d at 1399; Nevada Land Action Ass'n, 8 F.3d at 718. (8) See, e.g., Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995); Sierra Club v. Robertson, 28 F.3d 753, 757 8th Cir. 1994); Resources Ltd., 8 F.3d at 1397-98; Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir. 1992). (9) See, e.g., Marita, 46 F.3d at 610; Sierra Club v. Robertson, 28 F.3d at 757-60; Resources Ltd., 8 F.3d at 1397-98; Nevada Land Action Assn, 8 F.3d at 715; Idaho Conservation League, 956 F.2d at 1513. (10) Sierra Club v. Robertson, 28 F.3d at 757-60. (11) Marita, 46 F.3d at 611. (12) Resources Ltd., 8 F.3d at 1397-98; Idaho Conservation League, 956 F.2d at 1513-19. (13) 16 U.S.C. $S 1536(a)(2) (1988 & Supp. V 1993). The ESA requires that federal agencies, upon the advise of the Secretaries of Interior, Commerce, and Agriculture that listed species may be present in the area of a proposed agency action, conduct a biological assessment "for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." Id. [sections] 1536(C)(1) (1998). (14) See, e.g., Roberta Ulrich, Salmon fight Goes to High Court, The Oregonian, Feb. 4, 1995, at B1 (discussing Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995), and the controversy associated with section 7 consultation in the forest planning process). (15) Pacific Rivers Council, 30 F.3d at 1053-56. (16) The author's intent here is not to give an extensive overview of the history of forest management and planning, but rather to familiarize the reader with the atmosphere in which Congress enacted NFMA. For a more in-depth analysis of the history of forest management and planning, see generally Charles F. Wilkinson & H. Michael Anderson, Land and Resource Source PLanning in the National Forests (1987). (17) Id. at 70; see infra part II.C. (18) Act of Mar. 3, 1891, ch. 561, 26 Stat. 1095 (repealed 1976). (19) Id. at 1103. (20) Wilkinson & ANDERSON, supra note 16, at 17-18. (21) Id. at 18. (22) Act of June 4, 1897, ch. 2, 30 Stat. 34, 36 codified as amended at 16 U.S.C. [subsections] 473-482, 551 (1988 & Supp. V 1993) (repealed in part 1976)). (23) 16 U.S.C. [sections] 475 (1988); Wilkinson & Anderson, supra note 16, at 18. (24) 16 U.S.C. [sections] 475 (1988). (25) Tuholske & Brennan, supra note 3, at 57. (26) Pub. L. No. 86-517, 74 Stat. 215 codified at 16 U.S.C. [subsections] 528-531 (1988 & Supp. V 1993)). (27) Benjamin W. Hahn et al., National Forest Resource Management: A Handbook for Public Input and Review 8 (1978). One reason for the lack of dispute over the nation's forests was the relatively small demand placed on them. For example, timber harvesting was limited during the Great Depression to raise and stabilize private timber market prices. Dennis C. Le Master, Decade of Change 3 (1984). In addition, demand for noncommodity resources such as wildlife and outdoor recreation was essentially nonexistent. Id. (28) Le Master, Supra note 27, at 4. (29) Wilkinson & Anderson, Supra note 16, at 29. In the 1950s, officials of the timber industry questioned the legal basis of using the national forests for recreation, since only two uses were set out in the Organic Act: water and timber. 16 U.S.C. [sections] 475 (1988); Le Master, supra note 27, at 4. Although the Forest Service viewed its authority under the Organic Act as expansive, administrative direction cannot conflict with statutory direction. Le Muter, supra note 27, at 4. Forest Service officials thus felt a threat from the timber industry over the Forest Service's sustained-yield policy, which was not the result of any statutory requirement, but existed solely due to the education of foresters and a perceived "timber famine." Id. at 4-5. (30) Wilkinson & Anderson, supra note 16, at 29. (31) The multiple-use approach expanded the purposes of the national forests to include outdoor recreation, range, timber, watershed, and wildlife and fish." 16 U.S.C. [sections] 528 (1988). Congress placed each resource on equal statutory footing, as is represented by the listing of the resources in alphabetical order. George C. Coggins et al., Federal Public Land and Resources Law 622 (3d ed. 1993). (32) Wilkinson & Anderson, Supra note 16, at 31-32. The guides designated various zones, generally defined the zones, and stated broad management guidelines. Id. (33) Id. (34) Id. at 31. (35) Le Master, supra note 27, at 7. MUSYA requires only that the Forest Service give due consideration ... to the relative values of the various resources" of the forest lands. 16 U.S.C. [sections] 529 (1988 & Supp. V 1993). (36) Le Master, supra note 27, at 7. (37) Wilkinson & Anderson, Supra note 16, at 69. When Congress enacted MUSYA, Senator Hubert H. Humphrey (D-Minn.), one of NFMA's main sponsors, stated that Forest Service management of forest resources served as an important safeguard and was essential to ensure environmentally sound forest management. 122 Cong. Rec. 5619 (Mar. 5, 1976) (remarks of Sen. Humphrey). (38) The Bore Report was written by a faculty committee from the University of Montana, headed by Dr. Arnold Bolle, the then-Dean of the Forestry School. Arnold W. Bolle, The Bitterroot Revisited: A University Re-view of the Forest Service, 10 Pub. Land L Rev. 1, 15 (1989). Senator Lee Metcalf (D-Mont.) requested the report in order to investigate timber harvest practices in the Bitterroot National Forest. Id. The report mainly criticized the Forest Service's emphasis on timber production and its reliance on clearcutting. Id. at 9-10. (39) Tuholske & Brennan, supra note 3, at 62. (40) Id. at 62-64. The late Senator Frank Church (D-Idaho) led these hearings, which resulted in the Church Guidelines. These guidelines contained various limitations on timber harvesting practices and , although never enacted by Congress, led to many of NFMA's substantive provisions. Id. (41) Pub. L. No. 93-378, [sections] 2, 88 Stat. 476 (codified as amended at 16 U.S.C. [subsections] 1600-1614 (1988)). (42) See infra part III.A. (43) Tuholske & Brennan, supra note 3, at 64. (44) 522 F.2d 945 (4th Cir. 1975). (45) Id. at 949-50. The Organic Act authorized the Forest Service to sell "dead, matured, or large growth[s] of trees" that were "marked and designed" before sale. Act of June 4,1897, ch. 2, 30 Stat. 35 (repealed 1976). The Monongahela court, relying on legislative history, determined that trees must be physiological mature and that each tree must be marked with a blaze before being harvested. Monongahela, 522 F.2d at 949. The court commented that if the Organic Act, as interpreted, no longer served the public interest in regulating the forests, then "the appropriate forum to resolve this complex and controversial issue is not the courts but the Congress." Id. at 955. (46) Pub. L. No. 94-588, [sections] 2, 90 Stat. 2949 (codified as amended at 16 U.S.C. [sections] 1600-1614 (1988 & Supp. 1993)). (47) Tuholske & Brennan, supra note 3, at 65. (48) See 16 U.S.C. [sections] 1611 (1988). (49) Id. [sections] 1604(g(3)(F)(i) (1988). The Senate Agriculture and Forestry Committee determined "optimum method" to mean "the most favorable or conducive to reaching the specified goals of the [LRMP]. this is , therefore, broader concept than 'silviculturally essential' or 'desirable' - terms considered and rejected by the Committee." S. Rep. No. 893, 94th Cong., 2d Sess. 39 (1976), reprinted in 1976 U.S.C.C.A.N. 6662, 6698. (50) 16 U.S.C. [sections] 1604(e)(1)(1988). (51) Id. [sections] 1604(g)(3)(E); Tuholske & Brennan, supra note 3, at 66. (52) 16 U.S.C. [sections] 1608(a); Tuholske & Brennan, supra note 3, at 66. (53) 16 U.S.C. [sections] 1604(g)(3)(B); Tuholske & Brennan, supra note 3, at 66. (54) Wilkinson & Anderson, supra note 16, at 43. (55) See supra notes 37-43 and accompanying text. (56) 16 U.S.C. $S 1604(d) (1988); 36 C.F.R. $S 219.10(b) (1994). (57) See supra note 45 and accompanying text. (58) Wilkinson & Anderson, supra note,16, at 70. (59) S. 2926, 94th Cong., 2d sess., $S 2 (1976); Le Master, Supra note 27, at 58. A citizens' committee wrote this bill, under the direction of Senator Randolph. Le Master, Supra note 27, at 63. The committee included Dr. Arnold Bolle, counsel for the Sierra Club Legal Defense Fund and private attorney who represented the plaintiffs in Monongahela. Id. (60) Le Master, supra note 27, at 58-59. (61) Id. at 58-59. (62) When introducing S. 2926, Senator Randolph stated: I believe ... we must set standards and procedures that will insure the preservation and productivity of our forests. We should not leave to the discretion of the Secretary of Agriculture, this responsibility. Bureaucrats and technocrats already rule and regulate too much.... It is our duty to set the standards, outline the procedures, to put curbs on [the Secretary's] discretion, to make goals clear and to make prohibitions certain. We must address the problems, set the policy, build the framework. The Secretary's task then will be to execute our [congressional] instruction. 122 Cong. Rec. 2222 (Feb. 4, 1976), quoted in LE MASTER, supra note 27, at 59. (63) Wilkinson & Anderson, supra note 16, at 70., (64) S. 3091, 94th Cong., 2d sess., [sections] 3 (1976); Wilkinson & Anderson, supra note 16, at 70. The legislative affairs staff of the Forest Service initially wrote Senator Humphrey's bill, then Robert E. Wolf of the Environment and Natural Resource Division of the Congressional Research Service modified it before it was introduced to the Senate. Le Master, Supra note 27, at 35, 60-61. Interestingly, the Humphrey bin received support from the Forest Service, timber interests, and numerous conservation organizations. Id. at 67. (65) Wilkinson & Anderson, Supra note 16, at 69-71. For an excellent discussion of the legislative history behind NFMA's enactment and the competing views of the Randolph and Humphrey bills, see Le Master, supra note 27, at 55-83. (66) See generally Le Master, Supra note 27, at 58-79. (67) Le Master, supra note 27, at 79. John Hall of the National Forest Products Association stated during a symposium in Denver, Colorado in November 1976: Several people have commented that [NFMA] sets the stage for forest management for the next 75 years. I must add that it also sets the stage for litigation and judicial involvement in forest management decisions for the next 10 years at least. I caution you when the chief of the Forest Service, the Sierra Club's Washington, D.C. representative, and I say that the 1976 Act is generally a reasonable and workable statute-and we have each made such statements - each of us may be reading a different act. Id. (quoting John Hall). (68) NFMA required the Secretary of Agriculture to promulgate regulations for Forest Service planning, modeled on guidelines stated in the Act. 16 U.S.C. [sections] 1604(g) (1988). A committee of scientists, appointed by the Secretary of Agriculture, provided advice on regulatory development. Id. [sections] 1604(h) (1988). The Forest Service recently came out with a proposed rule to update the current land and resource management planning regulations. 60 Fed. Reg. 18,886 (1995) (to be codified at 36 C.F.R. pts. 215, 217, 219) (proposed Apr. 13, 1995). (69) National Forest System Land and Resource Management Planning, 36 C.F.R. [sections] 219.4(a) (1994). (70) Id. (71) The assessment must analyze the supply and demand for renewable resources, inventory these resources, and describe current and proposed Forest Service programs. 16 U.S.C. [sections] 1601(a) (1988). (72) The program reports on expected national forest outputs, budget needs, and management recommendations. Id. [sections] 1602 (1988 & Supp. V 1993). (73) 16 U.S.C.[sections] 1606(c) (1988). (74) Id. [sections] 1606(a). (75) Id. [sections] 1606(b). (76) Each Regional Forester directs one of four national forest regions. Sierra Club v. Marita, 46 F.3d 606, 609 (7th Cir. 1995). (77) However, in a proposed revision of the regulations for forest planning, the Forest Service recently stated its intention to discontinue regional guides. 60 Fed. Reg. 18,886, 18,898 (1995) (to be codified at 36 C.F.R. pts. 215, 217, 219) (proposed Apr. 13, 1995). It.reasoned that agency experience has shown that regional guides are no longer the most efficient means for providing regional direction. Id. (78) 36 C.F.R. [sections] 219.4(b)(2) (1994). The National Environmental Policy Act (NEPA) directs all federal agencies proposing "major Federal actions significantly affecting the quality of the human environment" to prepare an EIS. 42 U.S.C. [sections] 4332(2)(C) (1988). An EIS must contain "alternatives to the proposed federal action," [sections] 4332(2)(C)(iii) (1988), the possible environmental effects of the action, [sections] 4332(2)(C)(i) (1988), and allow for public comment. Council on Environmental Quality, 40 C.F.R. [sections] 1503.1(a)(4) (1994). (79) 36 C.F.R. [sections] 219.4(b)(2) (1994). (80) Appeal of Regional Guides and National Forest Land and Resource Management Plans, 36 C.F.R. [sections] 217.1(a) (1994). (81) 36 C.F.R. [subsections] 219.4(b)(3) (1994). The Forest Service regulations state that "[t]o the extent feasible, a single process shall be used to meet planning and NEPA [EIS] requirements." Id.[subsections] 219.12(a). (82) See infra part III.B (discussing LRMP analysis). (83) A project-level EIS may or may not be necessary, depending on whether the various activities were adequately analyzed in the LRMP EIS. Sierra Club v. United States Forest Serv., 46 F.3d 835, 837 (8th Cir. 1995). (84) 36 C.F.R. [subsections] 219.4(a)(3) (1994). (85) Id. Since the enactment of NFMA, much debate has centered around whether Congress intended local LRMPs to meet the resource output goals of the RPA Program. Wilkinson & Anderson, Supra note 16, at 77. There are three general theories on the issue: the "top-down" theory argues that Congress did not intend to allow LRMPs to frustrate achievement of national needs, the "bottom-up" theory maintains that NFMA mandates decentralized control over local land use decisions, and the third theory most closely characterizes the Forest Service's position stated in the regulations ("`iterative'exchange of information"). Id. For an in-depth analysis of the relationship between local and national planning, see id. at 76-90. (86) 36 C.F.R. [subsections] 219.10(a)(2) (1994); Sierra Club v. Marita, 46 F.3d 606, 609 (7th Cir. 1995). (87) 36 C.F.R. [subsections] 219.12(c). (88) Id. [sections] 219.12(d). (89) Id. [sections] 219.12(f). (90) Id. [sections] 219.12(h). (91) 42 U.S.C. [subsections] 4321-4370d (1988 & Supp. V 1993). (92) 36 C.F.R. [sections] 219.12(i). (93) Id. [sections] 219.10(b). (94) Id. [sections] 219.10(c)(1); Sierra Club v. Marita, 46 F.3d 606, 609 (7th Cir. 1995). (95) 36 C.F.R. [sections] 217.3(a). (96) Tuholske & Brennan, supra note 3, at 65. Id.; 36 C.F.R. [sections] 219.13-.27. (97) Id.; 36 C.F.R. [subsections] 219.13-27. (98) Wilkinson & Anderson, supra note 16, at 12. (99) 16 U.S.C. [sections] 1604(i) (1988); 36 C.F.R. [sections] 219.10(e). (100) Donald C. Baur Et Al., Natural Resources Law Handbook 185 (1991). (101) If a proposed site-specific project is inconsistent with the LRMP, the Forest Supervisor may amend the LRMF. 36 C.F.R.[sections] 219.10(f). If the change resulting from the amendment is significant, the Forest Supervisor follows the same procedures required for plan development and approval. Id. If the change is not significant, the Forest Supervisor may implement the amendment following public notification and satisfactory completion of NEPA procedures. Id. (102) Tuholske & Brennan, supra note 3, at 130. (103) National Forest System Land and Resource Management Planning, 56 Fed. Reg. 6508, 6518 (Feb. 15, 1991) (advance notice of proposed rulemaking). (104) Id. at 6516. The Forest Service recently reiterated this position in a proposed revision of the forest planning regulations. 60 Fed. Reg. 18,886, 18,898 (1995) (to be codified at 36 C.F.R. pts. 215, 217, 219) (proposed Apr. 13, 1995) ("The proposed rule would make clear that it is at the project-level that the authorization is made to conduct resource activities, not at the forest plan level."). To further clarify the distinction between the LRMP stage of decisionmaking and the project-level stage, the Forest Service also proposes to eliminate the option to make project decisions in the LRMP. Currently, project decisions can be made in the LRMP as long as they are identified in the Record of Decision (ROD) and disclosed in associated NEPA documents. Id. at 18,899. The Forest Service stated that this option has rarely been used in the past and only serves to further the confusing nature of LRMPS. Id. (105) 60 Fed. Reg. 18,886, 18,898 (1995) (to be codified at 36 C.F.R. pts. 215, 217, 219) proposed Apr. 13, 1995) (Appeal No. 1004, May 25, 1984). (106) Id. (Appeal No. 1130, Feb. 13, 1986). (107) Tuholske & Brennan, supra note 3, at 97; see also Sierra Club v. Robertson, 28 F.3d 753, 757-60 (8th Cir. 1994) (regarding challenge to proposed timber sales in the Ovachita National Forest); Resources Ltd. v. Robertson, 8 F.3d 1394, 1397-98 (9th Cir. 1993) (concerning challenge to logging plans under the Flathead National Forest LRMP and forest-wide EIS); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1513 (9th Cir. 1992) (concerning challenge to Forest Service decision to recommend wilderness designations for only 4 of 47 roadless areas). (108) 16 U.S.C. [sections] 1604(c) (1988). (109) 16 U.S.C. [sections] 1604 (Supp. V 1993). As a result, cases could not be brought until after the first generation of plans were complete. Although NFMA became law in 1976, the first plans were finished in the mid-1980s, and plans are still not completed for a few forests. Congress did not, however, restrict challenges to site-specific projects carried out under the existing plans. Id. (110) Since the enactment of NFMA, the appeals process has generated an extensive amount of work for the Forest Service. See, e.g., Tuholske & Brennan, supra note 3, at 96 n.316 (citing examples of how the appeals process created a mini-industry for interest groups). (111) 36 C.F.R. [sections] 219.3 (1994). (112) See Resources Ltd. v. Robertson, 8 F.3d 1394, 1399 (9th Cir. 1993); Tuholske & Brennan, supra note 3, at 97. (113) Tuholske & Brennan, supra note 3, at 97. (114) Resources Ltd., 8 F.3d at 1399. (115) Id. at 1396. (116) Id. (117) Id. at 1400. (118) Id. Because the Forest Service's own studies raised questions about ASQ effects on the grizzly bear, the court found the ASQ to be arbitrary and capricious. Id. (119) Tuholske & Brennan, supra note 3, at 98. (120) AUMs are defined as the amount eaten by a mature cow or the equivalent in one month (about 1,000 pounds). Nevada Land Action Ass'n v. United States Forest Serv., 8 F.3d 713, 717 n.4 (9th Cir. 1993). (121) Id. at 718. (122) Id. at 715. (123) Id. (124) Id.; Tuholske & Brennan, supra note 3, at 98-99. Specifically, the court determined that the Forest Service acted rationally in projecting that grazing levels would not significantly decrease under the LRMP. In doing so, the court confirmed that AUM projections based on professional estimates by experienced personnel familiar with land and range management standards are sufficient. Nevada Land Action Ass'n, 8 F.3d at 718. (125) In Resources Ltd., the court observed that ASQs by definition are a maximum and thus timber sales can be reduced. Resources Ltd. v. Robertson, 8 F.3d 1394, 1399 (9th Cir. 1993) (referencing 36 C.F.R. [sections] 219.3 (1994), which describes an ASQ as "the quantity of timber that may be sold from the area of suitable land covered by the forest plan" (emphasis added)). In Nevada Land Action Ass'n, the LRMP indicated that AUMs could be reduced in the future. Nevada Land Action Ass'n, 8 F.3d at 718. (126) Standing is a constitutional requirement under the Article III "case or controversy" requirement that determines whether a court has subject matter jurisdiction to hear a given case. U.S. Const. art. III, [sections] 2, cl. 1; see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992). For an overview of standing analysis, see Glen O. Robinson Et AL., The Administrative Process 207 (3d ed. 1986); see also Antonin Scalia, The Doctrine of Standing as an Essential Element of the Separation of Powers, 17 Suffolk U. L Rev. 881, 881-82 (1983). For an overview of environmental standing, see Martha Colhoun & Timothy S. Hamill, Comment, Environmental Standing in the Ninth Circuit: Wading Through the Quagmire, 15 Pub. Land L. Rev. 249 (1994); see also Michael A. Perino, Comment, Justice Scalia: Standing, Environmental Law, and the Supreme Court, 15 B.C. Envtl. Aff. L. Rev. 135, 149 (1987). (127) Defenders of Wildlife, 504 U.S. at 560. (128) Id. at 560-61 (129) Id. at 561. (130) Id. at 581 (Kennedy, J., concurring). (131) The U.S. Supreme Court has acknowledged that injury is not confined to economic injury, but includes aesthetic and environmental harm. Sierra Club v. Morton, 405 U.S. 727, 734 (1972) ("Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process."). (132) 504 U.S. 555 (1992). (133) Id. at 562-8. Justice Scalia stated that the "actual or imminent" component is to "insure that the alleged injury is not too speculative for Article III purposes." Id. at 564 n.2. (134) Id. at 564 n.2. (135) See, eg., Sierra Club v. Marita, 46 F.3d. 606, 611 (7th Cir. 1995); Sierra Club v. Robertson, 28 F.3d 753, 757 (8th Cir. 1994); Resources Ltd. v. Robertson, 8 F.3d 1394, 1397-98 (9th Cir. 1993); Idaho Conservation League v. Mumma, 956 F.2d 1508, 1515 (9th Cir. 1992). (136) Marita, 46 F.3d at 611. (137) Idaho Conservation League, 956 F.2d at 1515; Sierra Club v. Robertson, 28 F.3d at 758. (138) Idaho Conservation League, 956 F.2d at 1515. (139) Id. (140) Id. (141) Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995). (142) See Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994) (adopting "certainly impending" language) (citing Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). (143) See Colhoun & Hamill, supra note 126, at 251 n. 10 (citing Pacific Legal Found. v. Watt, 703 F.2d 576 (9th Cir. 1983) ("imposing a relatively low [standing] threshold with respect to environmental litigation in general and the Endangered Species Act in particular")); see generally George K. Pash, Note, NEPA: As Procedure it Stands, As Procedure it Falls: Standing and Substantive Review in Idaho Conservation League v. Mumma, 29 Willamette L. Rev. 365 (1993). (144) 956 F.2d 1508 (9th Cir. 1992). (145) Id. at 1510. (146) Id. at 1514. (147) Id. at 1515. The court further stated that numerous cases have ruled that a possible chain of third-party responses to agency action was enough for standing. Id. (citing Wilderness Soc'y v. Griles, 824 F.2d 4, 12, 18 (D.C. Cir. 1987)). (148) Id. at 1516. (149) Id. (150) In Defenders of Wildlife, the Supreme Court held that a procedural injury alone will not confer standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 572-73 (1992). Rather, a separate, concrete interest of the plaintiff must be harmed. Id. at 578; see also Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 810-11 (11th Cir. 1993), cert. denied, 114 S. Ct. 683 (1994) (holding that, like the procedural injuries asserted in Defenders of Wildlife, injuries asserted by plaintiffs to their rights to participation, information, and informed decisionmaking under NEPA, the ESA, and NFMA were generalized grievances that do not state an Article III controversy). (151) Idaho Conservation League v. Mumma, 956 F.2d 1508, 1514 (9th dir. 1992). (152) See Defenders of Wildlife, 504 U.S. at 572-73. (153) 8 F.3d 1394 (9th Cir. 1993). (154) Id. at 1396. (155) These included the grizzly bear, gray wolf, bald eagle, and peregrine falcon. Id. Plaintiffs filed a 12-count complaint alleging that the Forest Service failed to: use the best scientific and commercial data available pursuant to the ESA, obtain and consider a comprehensive biological opinion detailing how the implementation of the LRMP would not affect threatened and endangered species, submit an EIS that adequately considered various issues affecting water quality and fisheries, demonstrate that clearcutting is the optimum timber harvest in the LRMP, describe the timber sale program in appropriate written materials, include an alternative in the EIS featuring selection management as a method of timber harvest in more than one-fifth of the proposed timber sales under the LRMP, and place reasonable constraints on the FORPLAN computer program used to determine various output levels for resource uses. Resources Ltd. v. Robertson, 789 F. Supp. 1529, 1531-32 (D. Mont. 1991), aff'd in part, rev'd in part, 8 F.3d 1394 (9th Cir. 1993). (156) Resources Ltd., 8 F.3d at 1397. (157) 998 F.2d 699 (9th Cir. 1993). In considering whether the Seattle Audubon Society had standing to challenge the Final EIS and Record of Decision (ROD) adopting the Interagency Scientific Committee's Report as the Forest Service's spotted owl management plan, the Ninth Circuit reaffirmed its Idaho Conservation League analysis when it stated that speculation that logging might not occur because of yet unknown intervening circumstances is irrelevant to standing. Thus, the fact that the injury might possibly not occur does not, by itself, defeat a standing claim. Id. at 702. (158) 998 F.2d 705 (9th Cir. 1993). In considering the Secretary of the Interior's decision not to supplement timber management plans with new information, the Ninth Circuit rejected the Forest Service's argument that Defenders of Wildlife "establish[ed] a new, stricter burden on plaintiffs to establish with specificity an injury-in-fact caused by a challenged government action." Id. at 707. (159) Resources Ltd., 8 F.3d at 1398. (160) Id. (161) Id. (162) Id. (citing Seattle Audubon Soc'y, 998 F.2d at 702-03, and Idaho Conservation League v. Mumma, 956 F.2d 1508, 1516-17 (9th Cir. 1992)). (163) Id. (citing Seattle Audubon Soc'y, 998 F.2d at 703, and Idaho Conservation League, 956 F.2d at 1515). (164) 28 F.3d 753 (8th Cir. 1994). (165) Id. at 760. (166) Id. at 756. (167) Id. at 758. (168) Id. (169) Id. (170) Id. at 759-60. (171) Id. at 760. (172) See supra part III.B. (173) Sierra Club v. Robertson, 28 F.3d at 758. (174) Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995). (175) See supra part II.C. (176) 46 F.3d 606 (7th Cir. 1995). (177) Id. at 610. (178) 16 U.S.C. [sections] 1604(i) (1988); 36 C.F.R. [sections] 219.10(e) (1994). (179) Marita, 46 F.3d at 612. (180) 262 U.S. 553, aff'd, 263 U.S. 350 (1923). (181) Marita, 46 F.3d at 612 (quoting Pennsylvania, 262 U.S. at 593). (182) Pennsylvania, 262 U.S. at 593. (183) Sierra Club v. Robertson, 28 F.3d 753, 758 (8th Cir. 1994). (184) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); Marita, 46 F.3d at 613. (185) Marita, 46 F.3d at 612 (citing Defenders of Wildlife, 504 U.S. at 572-73 n.7). Footnote seven in Defenders of Wildlife states: There is much truth to the assertion that "procedural rights" are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all the normal standards for redressability and immediacy. Thus, under our case law, one living adjacent to the site for proposed construction of a federally licensed dam has standing to challenge the licensing agency's failure to prepare an [EIS], even though he cannot establish with any certainty that the Statement will cause the license to be withheld or altered, and even though the dam will not be completed for many years. (That is why we do not rely, in the present case, upon the Government's argument that, even if the other agencies were obliged to consult with the Secretary, they might not have followed his advice.) What respondents' "procedural rights" argument seeks, however, is quite different from this: standing for persons who have no concrete interests affected - persons who live (and propose to live) at the other end of the country from the dam. Defenders of Wildlife, 504 U.S. at 572-73 n.7. (186) Marita 46 F.3d at 611. (187) Id. at 612. (188) Id. at 611-12. (189) Id. at 612-13. (190) Id. at 613. (191) Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 n.2 (1992). (192) Id. Footnote two in Defenders of Wildlife states: The dissent acknowledges the settled requirement that the injury complained of be, if not actual, then at least imminent - but it contends that respondents could get past summary judgment because "a reasonable finder of fact could conclude ... that ... Kelly or Skilbred will soon return to the project sites." This analysis suffers either from a factual or from a legal defect, depending on what the "soon" is supposed to mean. If "soon" refers to the standard mandated by our precedents - that the injury be "imminent" - we are at a loss to see how, as a factual matter, the standard can be met by respondents' mere profession of an intent, some day, to return. But if, as we suspect, "soon" means nothing more than "in this lifetime," then the dissent has undertaken quite a departure from our precedents. Although "imminence" is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes - that the injury is "certainly impending." It has been stretched beyond the breaking point when, as here, the plaintiff alleges only an injury at some indefinite future time, and the acts necessary to make the injury happen are at least partly within the plaintiffs own control. In such circumstances we have insisted that the injury proceed with a high degree of immediacy, so as to reduce the possibility of deciding a case in which no injury would have occurred at all. There is no substance to the dissent's suggestion that imminence is demanded only when the alleged harm depends upon "the affirmative actions of third parties beyond a plaintiff s control." Our cases mention third-party-caused contingency, naturally enough; but they also mention the plaintiff s failure to show that he will soon expose himself to the injury. And there is certainly no reason in principle to demand evidence that third persons will take the action exposing the plaintiff to harm, while presuming that the plaintiff himself will do so. Our insistence upon these established requirements of standing does not mean that we would, as the dissent contends, "demand ... detailed descriptions" of damages, such as a "nightly schedule of attempted activities" from plaintiffs alleging loss of consortium. That case and the others posited by the dissent all involve actual harm; the existence of standing is clear, though the precise extent of harm remains to be determined at trial. Where there is no actual harm, however, its imminence (though not its precise extent) must be established. Id. citations omitted; ellipses in original). (193) Pennsylvania v. West Virginia, 262 U.S. 553, 593 (1923), a d, 263 U.S. 350 (1923). (194) Ripeness also arises from the Article Ell "case or controversy" requirement. U.S. Const. art. III, [sections] 2, chi. 1. Ripeness concerns whether the harm asserted has matured sufficiently to warrant judicial intervention." Warth v. Seldin, 422 U.S. 490, 499 n. 10 (1975). (195) The Supreme Court has acknowledged that standing "bears close affinity to questions of ripeness." Warth, 422 U.S. at 499 n.10; see also Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Cm. L. Rev. 153, 172 (1987) ("In measuring whether the litigant has asserted an injury that is real and concrete rather than speculative and hypothetical, the ripeness inquiry merges almost completely with standing analysis."). (196) Sierra Club v. Marita, 46 F.3d 606, 614 (7th Cir. 1995) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148-49 (1967)). (197) See, e.g., Idaho Conservation League v. Mumma, 956 F.2d 1508, 1518-19 (9th Cir. 1992). (198) 5 U.S.C. [subsection] 551-559, 701-706 (1988 & Supp. V 1993). (199) Lujan v. National Wildlife Fed'n, 497 U.S. 871, 893 (1990). (200) Resources Ltd. v. Robertson, 8 F.3d 1394, 1398 (9th Cir. 1993) (citing Idaho Conservation League, 956 F.2d at 1519); Marita, 46 F.3d at 614; Portland Audubon Soc'y v. Babbit, 998 F.2d 705, 708 (9th Cir. 1993). (201) Section 7 of the ESA requires agencies to "insure that any action authorized, funded, or carried out by such agency ... is not likely to jeopardize the continued existence of any endangered species or threatened species." 16 U.S.C. [sections] 1536(a)(2) (1988). (202) The regulations broadly define agency "action" to include "all activities or programs of any kind," including "actions intended to conserve listed species or their habitat ... [and) actions directly or indirectly causing modifications to the land, water or air." Interagency Cooperation - Endangered Species Act of 1973, As Amended, 50 C.F.R. [sections] 402.02 (1994). (203) Pacific Rivers Council v. Robertson, 854 F. Supp. 713, 718 (D. Or. 1993), aff'd in part, rev'd in part sub nom. Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995). (204) 30 F.3d 1050 (9th Cir. 1994), cert. denied, 115 S. Ct. 1793 (1995). (205) Id. at 1052. (206) Id.; Endangered and Threatened Species; Threatened Status for Snake River Spring Summer Chinook Salmon, Threatened Status for Snake River Fall Chinook Salmon, 57 Fed. Reg. 14,653, 14,653-54 (Apr. 22, 1992). (207) 16 U.S.C. [sections] 1536(a)(2) (1988 & Supp. V 1993); see also 50 C.F.R. [sections] 402.14(a). (208) The Endangered Species Act requires that each federal agency shall, upon the advice of the Secretary of Interior, Commerce, or Agriculture that listed species may be present in the area of a proposed agency action, conduct a biological assessment for the purpose of identifying any endangered species or threatened species which is likely to be affected by such action." 16 U.S.C. [sections] 1536(c)(1) (1988 & Supp. V 1993). (209) Id. [sections] 1536(a)(2). (210) Id. [sections] 1536(d). (211) 50 C.F.R. [sections] 402.02. Examples include, but are not limited to: "(a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations; (c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid, or (d) actions directly or indirectly causing modifications to the land, water, or air." Id. Throughout the opinion, the Ninth Circuit repeatedly stressed that Congress intended to enact a broad definition of "agency action" in the ESA. Pacific Rivers Council v. Robertson, 30 F.3d 1050, 1054 (9th Cir. 1994). (212) Pacific Rivers Council, 30 F.3d at 1051. (213) Id. at 1053. (214) Id. The court noted that LRMPs "may affect" the protected salmon because they "set forth criteria for harvesting resources within the salmon's habitat." Id. at 1055. For example, the Wallowa-Whitman LRMP allocates approximately 60,000 acres to the "management area" surrounding the spawning grounds of the salmon. Id. This allocation, created before the salmon were listed as threatened, sets guidelines for grazing, road building, and logging activities within the plan's boundaries. Id. (215) Id. at 1056. (216) Id. at 1055. (217) Id. (218) See, e.g., Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995) ("The plans clearly require certain projects to be undertaken and indicate what their effects may be."). (219) National Forest System Land and Resource Management Planning, 56 Fed. Reg. 6508, 6516 (Feb. 15, 1991) (notice of proposed rulemaking). (220) Id. (221) Id. (222) See supra part V.B.1. (223) 16. U.S.C. [sections] 1604(i) (1988); 36 C.F.R. [sections] 219.10(e) (1994). (224) However, a later district court ruling allowed cattle grazing to continue during the consultation process. Pacific Rivers Council v. Thomas, No. 92-1322-MA (D. Or. Oct. 20, 1994); see also Rob Eure, Judge Removes Ban on Grazing in Two Eastern Oregon Forests, The Oregonian, Oct. 21, 1994, at C11.
COPYRIGHT 1995 Lewis & Clark Northwestern School of Law
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1995, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:LRMPs
Author:Hogan, John P.
Publication:Environmental Law
Date:Jun 22, 1995
Words:15471
Previous Article:1994 Ninth Circuit Environmental Review.
Next Article:Alaska Sport Fishing Association v. Exxon Corporation highlights the need to take a hard look at the doctrine of parens patriae when applied in...
Topics:


Related Articles
A hoot for the future; the spotted owl may answer a loaded question: is sustainable management possible in Northwest forests?
Toward sustainable old growth.
Act spurs controversy beyond New Hampshire.
Federal forests.
Managing change by changing management.
Updating the old-growth wars.
War games and multiple use: is it mission impossible to train combat troops and manage natural resources on the same forested acres?
The Quincy Library group.
Eliminating the National Forest Management Act's diversity requirement as a substantive standard.
The great experiment that failed? Evaluating the role of a "committee of scientists" as a tool for managing and protecting our public lands.

Terms of use | Privacy policy | Copyright © 2020 Farlex, Inc. | Feedback | For webmasters