Milepost 0 on the NFMA Diversity Provision Trail

I’d like to revisit, at a deliberate and meditative speed, the path that led from diversity in NFMA to viability and the sustainability provisions in the different planning rules. My experience is that it has been mostly the domain of wildlife biologists and lawyers, and perhaps a discussion that 1) brings the rest of us up to speed on where we’ve been and why, and 2) asks us where we want to go, may be illuminating. Particularly if we consider a broader range of views from different scientific disciplines and practitioners, and consider the context of management in the 21st century, including climate change.

Some people think that this is the most important piece of the planning rule. Others think there are plenty of procedural and substantive protections for species without this. Perhaps we will end up in a previously explored place at the end of the journey, but perhaps not.

Based on this piece by the Department of Justice:

“In conclusion, given the vague and equivocal language of the National Forest Management Act (NFMA), whether the statute will operate as a substantive constraint on the discretion of the Forest Service to allocate uses which adversely affect the viability of the wildlife resource, depends almost entirely on the language of the NFMA implementing regulations, as the exercise with the viability regulation shows. Whether the Forest Service utilizes the 1982 or the 2000 regulations in future planning to deal with diversity and its viability component, future litigation will continue to determine the moving boundary between discretion and constraint inherent in NFMA.”

First question, what do we think the writers of NFMA meant by “diversity of plant and animal communities, and what was the context?” For those of us who don’t have time to read an extensive legislative history, what is a short synopsis and some key papers and concepts? Is there consensus on this in within and among our communities (of discipline and of practice)?

Here’s what DOJ says (here):

NFMA�s Diversity Requirement

NFMA required the Forest Service to develop the planning regulations in consultation with a committee of independent scientists. 16 U.S.C. 1604(h). What NFMA gave them to work with on biological diversity was vague and equivocal, and subjected diversity to a subsidiary role in multiple use planning. The regulations were directed to specify guidelines which would:

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.

16 U.S.C. 1604(g)(3)(B).

Back to keeping it simple, it seems to me that the easiest way to deal with this legal requirement would be to require an analysis for each plan of the existing diversity, and possible threats and show that “based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives” the plan provided for a diversity of plant and animal communities.

Second Question: What do you think is the simplest (KISS) approach to translate the NFMA diversity requirement to a planning rule?

5 thoughts on “Milepost 0 on the NFMA Diversity Provision Trail”

  1. The viability provision shows up in the very first version of the rule in 1979, so I scanned for the topic in the final original committee of scientists report and the EIS that was published with the rule in the Federal Register on September 17, 1979. What I found was that the focus at the time was on preserving species diversity, and I couldn’t find any mention of the viability clause in the 1979 COS supplemental report, the EIS, or even the comments on the EIS. Clearly the viability clause was intended to be read in the context of the other species diversity clauses of the regulations.

    But it’s apparent that the original COS was struggling with the species diversity requirement:
    “Diversity continues to be one of the most difficult issues with which these regulations must deal. We analyzed the issue in our report and stressed that, in our opinion, Congress used the term diversity to refer to biological variety rather than any of the quantitative expressions now found in the biological literature. Accordingly, we supported a straightforward definition of the term, such as that found in the second draft and helped develop a treatment of diversity that insured it would be considered throughout the planning process rather than as one isolated step in the process.” Federal Register, 9/17/79, Vol. 44, No. 181, p. 53974

    The committee goes on to say:
    “The argument against including references to species and abundance in the treatment of diversity is that no references to these dimensions of the diversity problem appear in NFMA or its legislative history. If this were as far as the matter went, it could be resolved by omitting them from the definition. However, in assessing the diversity of plant and animal communities the Forest Service must deal with both numbers and kinds of species. It is simply not possible to assess diversity without knowing what kinds of species compose the different communities in a region and the numbers of each that are present for the simple reason that kinds and numbers are the biological ways that diversity is measured. On the other hand, controlling the maximum numbers and general distribution of say, deer and bear, may be absolutely necessary in multiple use management. The problem is a true administrative “Catch-22”, and it seems to us the Forest Service can do little other than it has done in phrasing its regulatory response to Congress’ direction. Federal Register, 9/17/79, Vol. 44, No. 181, p. 53975

    As many of you know, the original COS was retained when the rule was rewritten in 1982, in part to battle the regulatory reforms of the Reagan administration at that time. In the preamble to the 1982 rule, there is a mention that the wildlife biologist on the original COS, Dr. William Webb, retired from State University of New York, worked with the Forest Service to rewrite the fish and wildlife provisions, but retained the 1979 concepts of viability and management indicator species. (Federal Register, 9/30/82, Vol, 47, No. 190, p. 43034). Otherwise, there is no mention in the preamble of the 1982 regs of the viability provision.

    • Bill Webb was likely influenced by the then-nascent discipline of conservation biology. In particular, Webb appeared to be familiar with early efforts in quantitative population biology aimed at designing nature reserves and establishing “minimum” viable population sizes. In 1980, Michael Soule (acknowledged founder of the conservation biology discipline) and Bruce Wilcox published “Conservation Biology: An Evolutionary-Ecological Perspective,” which proposed that conservationists develop defensible criteria for establishing minimal population sizes to protect against species extinction.

      The northern spotted owl was the Forest Service’s first attempt to do so. That case answers the Justice Department’s question (quoted above in “Milepost 0”) regarding whether NFMA’s statutory language imposes “a substantive constraint on the Forest Service’s discretion,” or is such substance self-imposed by the FS in the 1979/1982 regulations. 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.

  2. Rather than spending a bunch of time trying to backtrack to how ‘viability’ came into the 1982 Regulation, maybe we ought to spend time looking at the law:

    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.

    That is not a difficult standard to meet. In short the “to the degree practicable … preserve the diversity of tree species similar to that existing in the region ….” is about all the law requires. Still, as Andy Stahl noted in earlier comments on this and another a post the courts have added more meat to the bare-bones of the Law, building in part on the 1982 NFMA Regulation:

    The 9th circuit court has said that species viability is a necessary component of NFMA’s diversity requirement, i.e., plant and animal communities that lose a species are less diverse. There is no reason to think that Congress meant the diversity requirement to apply to non-timbering actions, e.g., campgrounds, mining, livestock grazing, ski areas, etc.

    Let’s not quibble right now as to whether the Courts were keeping to Andy’s narrower point re: timbering, but rather assume that they might have been looking more broadly. If the Forest Service, in consort with other governmental agencies, and with some partners (e.g. The Nature Conservancy and The Ecological Society of America, and ???) wanted to look at species viability considerations broadly and more narrowly for, say, threatened and endangered species alongside other ecological considerations including biological diversity, I think that the task is manageable as long as it is done in proper contexts — which are not the stuff of traditional RPA/NFMA planning.

    In true adaptive management fashion, we ought to look here at how the Forest Service and others need to work (and or already are working) to evaluate “diversity” alongside other ecological considerations that derive from various laws outside RPA/NFMA. Once such evaluations are up and running (mostly at scales much larger than any forest plan) then forests ought to be in relatively good stead to write up “contribution” statements as they periodically evaluate their own program and/or land management objectives. So, being retired and “out of the loop” here are a couple of questions: Who is doing such work? How much more emphasis ought to be placed on such as part of meeting the spirit and intent of RPA/NFMA, again at scales mostly broader than any administrative unit of the national forest system.

    If the heavy lifting were done in forums other than forest planning, and by other than forest-level personnel the task facing forest managers at the forest and/or district scale is to see how what they are doing and/or not doing affects the larger domains (ecosystems) that they operate in.

    As Allen, Tainter, and Hoekstra point out in Supply Side Sustainability, natural resource managers need to look down a scale for contribution, but look up a scale [or more] for both context AND management. If management (whether it be of ecosystem components or social systems components) can be effected at higher scales, then that proves to be a better place to work out the nuts and bolts of management desires, and to begin to comply to laws like NEPA and ESA. Still, as I mentioned before, forest-level managers would have the “contribution” question to deal with as part of NFMA plans.

    This notion is in keeping with the Clinton-era Committee of Scientists recommendations that forest plans be compendiums of all decisions large and small that affect an administrative unit. As such “forest plans” are adaptive management information systems, periodically updated as parts are monitored and evaluated. What is left for, e.g. formal “forest plan revisions” once every 10 to 15 years is that stuff this blog conversation is supposed to ferret out.

    I am still of the opinion that there is little to be done in formal “forest plan revision” if the Forest Service and other land and resource management agencies learn to practice adaptive management. A first step is to study AM as effectively as, say The Nature Conservancy has done or the Resilience Alliance has done. A second step is to study law and regulation (and revise and repeal as needed) to make AM work.

  3. Lots to think about here. And all this history and background is great.

    But do any of you have any thoughts as to how we might implement a more adaptive approach to planning—while maintaining necessary standards and accountability mechanisms, like that provided by the viability regulation? Seems like a thread running through the post and its comments. How can we balance this tension?

    This is conjecture, but my hunch is that some groups who opposed the 2005/08 planning regulations and its adaptive management focus did so because of the simultaneous removal of accountability measures, like viability. It’s not that all these groups are inherently suspicious of adaptive planning, but they have some reservations about giving the agency carte blanche discretion in the name of adaptive management.

    I’d love to hear ideas as to how we can have it all: the best of adaptive planning, and necessary political accountability.

    I’m particularly interested in how “triggers and thresholds” (as they pertain to wildlife and other things) might be incorporated into an adaptive planning framework.


  4. Martin,

    My main objective in participating in these discussions is to suggest that adaptive management, if practiced thoughtfully and “in good faith” (i.e. practiced so as not to evade law and public accountability writ larger), will give us a chance to move forward from gridlock.

    But the Forest Service has for far too long invested in Planning (capital P planning, not scenario planning/AM that I advocate for) as the answer to adaptive management challenges and legal challenges. As Henry Mintzberg suggests in his book the Rise and Fall of Strategic Planning, such planning, so-called “strategic planning” is an oxymoron.

    Mintzberg believes in strategic thinking and agile management that will adjust and adapt as conditions change. But he abhors strategic planning. Until Forest Service managers and practitioners are able to understand why Mintzberg is so strident, they will forever fall into the trap of Planning. Here is Mintzberg’s “short take” preview of the book: It is testament to the lack of leadership and managerial awareness in the Forest Service that thoughtful discussions on either management or leadership are largely absent in FS culture.

    Here’s a little 1994 note from Tom Peters [pdf] about Mintzberg’s book that includes this:

    … Mintzberg observes it’s not just that planning doesn’t work. It’s downright dangerous.

    PS.. When wandering around the Resilience Alliance’s website the other day, I stumbled into what they call Adaptive co-Management — where collaboration is even more center stage, if that were possible, than other versions of adaptive management. Take a look.

    Finally, I might as well include a link to my 1992 comments on adaptive management that went out on my first attempt at blogging, Eco-Watch: Adaptive Ecosystem Management


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