Milepost 2: Through the fog from “tree species diversity” to “the wildlife resource”

As I said in the first post, species diversity and viability are some of the most difficult pieces of a new planning rule, and so my plan is to listen to others responses, ruminate (figuratively, no GHG’s involved) for a week and post something new each week until we develop an understanding of who thinks what and why. This is long for a blog post, but John, Andy and Martin raised many interesting ideas.

First, thanks for the feedback from John, Andy and Martin. This has helped me get from the actual statutory language:

“provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan.”

to some of the ideas we talk about today from the 82 regs.

If I read this in plain English, especially going back in time to how we used those terms in the mid-70’s, I see “plant and animal communities” as being communities in the simplest sense, for example, at the Shaw Nature Reserve.
They have these kinds of plant communities: woodland, bottomland forest, prairie.
Or this example, pinyon juniper, sagebrush, salt desert shrub. , .

If we read it this way it makes more sense, as we would not want to get rid of different plant communities; among other reasons, because different kinds of animals live in different plant communities. We would want to keep all the different plant (and animal) communities (with the caveat “based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives”) The next clause clearly says to preserve the diversity of tree species, with these additional clauses “within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to…” (my italics).

These seem to be important statements in the statute that acknowledge that tree species diversity is not an overarching goal regardless of context, but rather resides within the context of practicality, overall multiple use objectives and appropriateness. It does not directly require preservation of the diversity of tree species, even then, but rather for “steps to be taken.”

In plain English, that would say “try to keep all the communities, and try to keep all the tree species, within a given context.” It seems to me if the legislators meant “keep all the animal species’ they had the opportunity to say “for steps to be taken to preserve the diversity of tree and other plant and animal species similar…”

Plant communities can have individual species go in and out, depending on the climate, predators, diseases and stochastic factors, but a prairie remains a prairie. Through time and changes in climate, where the prairies or bottomlands are found on a landscape can change. It is far easier to retain some prairie habitat on a landscape than to retain all species in all communities, and it is also easier and less expensive to monitor.

Another odd thing, to me, about this transition from dealing with communities to species in NFMA is that ESA was passed in 1973, just prior to NFMA.

“Nothing is more priceless and more worthy of preservation than the rich array of animal life with which our country has been blessed.”; -President Nixon, upon signing the Endangered Species Act…

Isn’t this law about species diversity? So why would we need another law to be interpreted for one agency to do the same thing or more.. if more, why one agency only?

Back to Andy’s quote:

“Here’s what Judge Dwyer had to say on the subject:
When the [NFMA's diversity] section is read in light of the historical context and overall purposes of the NFMA, as well as the legislative history of the section, it is evident that section 6(g)(3)(B) requires Forest Service planners to treat the wildlife resource as a controlling, co-equal factor in forest management and, in particular, as a substantive limitation on timber production.

The Ninth Circuit sustained Judge Dwyer on appeal. In sum, the FS may not adopt a forest plan that fails to assure any species’ viability. As Aldo Leopold cautioned, you’ve got save all the pieces.”

Somehow, we are reading 6(g)(3)(B) differently. For one thing, I see nothing about wildlife per se but rather plant and animal communities. Then wouldn’t rare plants be equally a “controlling coequal factor in forest management.” Given the parsing of NFMA as described above, I still can’t get there (Judge Dwyer’s interpretation) from the actual language of the statute.

And when Aldo Leopold talked about “saving all the pieces”, I think he meant “try to save all the pieces” not “you must.” Because you can’t. No one can. Neither can forest plans “assure species viability.” They can try to make conditions that foster species viability, but they can’t assure it.

Leopold’s lucid and inspirational writing obscures the realities that every time an organism dies “all the pieces” (genetically speaking) are not saved. And Leopold lived before current scientific information on the dynamic nature of species, populations, and ecosystems.

In my view, somehow we have to incorporate the dynamic nature of populations, species, communities and ecosystems into our regulations. The Forest Service can’t make the American chestnut come back throughout its range in the next 50 years (we can do some, but..). The Forest Service can’t afford to keep species from expanding into areas where they haven’t been, with associated wildlife impacts, due to climate change or drought. We can do some things about some things (e.g., invasive species) but putting something in a regulation that is patently unachievable (even if we fenced the national forests and kept all people and uses out) is questionable, in my view.

With climate change, one approach would be to focus on the basics air, water quality and soils, and accept that vegetation and species are going to shift. This harkens back to NFMA sec. 5 c.

If you haven’t read it lately, I recommend taking another look at Botkin’s 1990 book “Discordant Harmonies” which talks about dynamics and also about climate change.

Finally Martin, you raise a good point about accountability. My questions are:

1) “is legal accountability the only kind that counts- what other mechanisms can we imagine?” Is the best NFMA regulation one that bristles with legal hooks? The much-maligned EMS in the 2005 Rule was designed to have transparent on-the-ground reality-based accountability, a la adaptive management. That didn’t work, but one can imagine other forms of accountability than legal accountability.

Fred Norbury, one of the architects of the 2005 Rule was heard saying more than once “Appeals and litigation are the Forest Service method of quality control of decisions.” I think he was suggesting there might be less expensive, more effective methods. Additionally, and problematically, in my view, appeals and litigation are generally about documentation (you didn’t analyze this) and not directly about impacts (you shouldn’t do this).

2) Why aren’t the environmental laws that work for the other federal agencies (including the sister multiple-use agency BLM) “enough” for the Forest Service? Especially given that the “timber wars” are over.

3) If we have to have a tighter reg than everyone else, and it has to have legal hooks, could we imagine one more sensitive to climate change and faithful to the plain English interpretation of NFMA? Like “protect plant and animal species diversity to the extent practicable, given the multiple use mandate and changing environmental conditions”?

2 Comments

  1. Sharon,

    I agree that NFMA does not require the FS to do anything that ameliorates the effects climate change, meteorite impacts, sunspots, or nuclear war have on national forest species. But just because the law doesn’t require the FS to do the impossible does not mean that the law’s diversity language is without meaning.

    As I’ve argued in KISS I and II, and as Judge Dwyer understood, NFMA’s meaning is clear: The FS cannot log in a manner that threatens to extirpate a species. The FS cannot, through its logging, make a forest community less diverse by causing a species to disappear from that community. “Provide for diversity of plant and animal communities” means within-community richness of species. A community is less diverse when it loses one of its species. There is no evidence that Congress was concerned about the number or extant of natural ecosystems per se, e.g., the acres of grassland prairie or oak savannah in a region or national forest.

    The Endangered Species Act provides additional support that Congress viewed the protection of individual species as worthwhile on its own merits. In addition, however, Congress also recognized that individual species are “a means” to protect “ecosystems upon which endangered species and threatened species” depend. Thus the ESA mimics the management indicator species concept used in the 1979/1982 NFMA regulations.

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