Forest Planning Without Knowing the Mission

The definition of multiple-use management provides no guarantees.

In 1972 two brothers with cattle grazing permits within the Prescott National Forest in Arizona had a gripe with the Forest Service.   One brother’s permit had been reduced from 517 to 250 head, and the next year the other brother’s permit was reduced from 158 to 50.  The numbers had been reduced to protect the watershed from overgrazing, but Thomas and David Perkins questioned if these drastic reductions constituted a revocation of their grazing permit.  So they took the Forest Service to court. In 1977, the District Court sided with the Forest Service, but the brothers appealed to the Ninth Circuit.

When the case made it the appeals court, the Perkins’ attorney tried a new argument.  They asserted that the 1960 Multiple-Use Sustained-Yield Act (MUSYA) established a mandate to allow multiple-uses such as livestock grazing.   MUSYA is perhaps the only statement from Congress about the purpose of managing National Forests and Grasslands.  The Organic Act established timber and water flows as dominant uses, and the agency was built on Gifford Pinchot’s philosophy of the greatest good for the greatest number of people in the long run, but it wasn’t until the MUSYA that the idea of multiple-use was codified.  The MUSYA said that forests were to be managed for recreation, range, timber, watershed, wildlife and fish, in addition to minerals and wilderness.  Renewable resources were to be managed to best meet the needs of the American people, without impairing the productivity of the land, and maintained at a high level in perpetuity.

The appeals court rejected the Perkins’ argument that the MUSYA established a mandate for use.   The Court wrote:

These sections of MUSYA contain the most general clauses and phrases. For example, the agency is “directed” in section 529 to administer the national forests “for multiple use and sustained yield of the several products and services obtained therefrom,” with “due consideration (to) be given to the relative values of the various resources in particular areas.” This language, partially defined in section 531 in such terms as “that (which) will best meet the needs of the American people” and “making the most judicious use of the land”, can hardly be considered concrete limits upon agency discretion. Rather, it is language which “breathe(s) discretion at every pore.”  What appellants really seem to be saying when they rely on the multiple-use legislation is that they do not agree with the Secretary on how best to administer the forest land on which their cattle graze. While this disagreement is understandable, the courts are not at liberty to break the tie by choosing one theory of range management as superior to another.”

The Perkins brothers’ case became one of the leading cases in the Ninth Circuit about the judicial standard of review.  Courts would limit their review to determining whether factual findings as to range conditions and carrying capacity are arbitrary and capricious.  The review was so narrow that very few challenges to multiple use decisions could meet it, semantically or practically. Plaintiffs could satisfy their burden of proof only by demonstrating that there was “virtually no evidence in the record to support the agency’s methodology in gathering and evaluating the data.”  A court would not choose among competing expert views.  The case also meant that MUSYA placed no real limits on the Forest Service, and that it was up to the agency to interpret the principles.

The discretion in MUSYA carried over into the National Forest Management Act (NFMA), which used MUSYA as a primary objective of Forest Planning.  Another Ninth Circuit decision observed that forest planning is inherently discretionary given NFMA’s broad authorizing language.  When the Prescott Forest Plan was completed, the Ninth Circuit refused to second guess the findings about suitable grazing lands.

Since MUSYA and NFMA were broadly discretionary,  Congress essentially left the work to the Department of Agriculture and the Forest Service to define a mission.  In the 1990s, the Forest Service developed its present mission statement: to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.   Multiple-use management is relegated to the fine print.

Then, regulations issued by the Department became important in shaping the mission.  In the preamble to the 2001 roadless rule (p. 3252), the Perkins brothers case was used to explain that the Secretary’s discretion under MUSYA and NFMA allowed roadless areas.   Essentially, the preamble explained that the roadless rule itself was an NFMA rule.

In the  2000 planning rule,  the Secretary translated multiple-use management into the concept of sustainability.   The rule said that the first priority is to maintain or restore ecological sustainability and that it is essential that today’s uses do not impair the functioning of ecological processes.  In an appendix to the 1999 Committee of Scientist report for that rule, one of the scientists, Roger Sedjo, said this was a change to the Forest Service mission.  He noted that sustainability of a forest is fundamentally different than the sustainable production of multiple outputs.  Sedjo later wrote that the search for a new mission is being frustrated by a lack of clear consensus.

The 2005/2008 planning rule didn’t directly address this concern.  It acknowledged the MUSYA, saying ecological, economic and social sustainability were all equal, but focused instead on the mechanics of planning for a “desired condition.”  The weakness of this approach was that the rule never required planning teams to identify why those conditions were desired.   In practice, many planning teams using this rule overcame this weakness through a collaborative exploration of what each forest was about, through identification of the “roles and contributions” and the “niche” of each forest.  But these statements were not to be considered official “plan components” and would not be binding.  The plan had to focus on desired conditions, and all other plan components needed to be linked to those conditions.  But participants typically didn’t want to talk about desired conditions, they wanted to talk about uses.

Now we have begun work on a new planning rule.  The Federal Register notice discusses concerns like restoration, ecosystem resilience, and forest health.  The split in public opinion is again showing up in the formal scoping comments.  If this rule follows the pattern, it may be about more than planning – it may be about the Forest Service.

3 thoughts on “Forest Planning Without Knowing the Mission”

  1. Today is for skiing. But I thought I’d at least add my two cents worth here. This is how I addressed the “Mission Thing” earlier:

    The US Forest Service for the 21st Century: Who are We? (1996) (Identifying the notion of “niche”)

    My 2nd epistle to the Committee of Scientists: mission, science, planning challenges (1998) (again touching on niche)

    Maybe the FS will finally address the issue of niche formally. Or maybe not. Today, though, is for skiing.

  2. John, thanks for this history lesson. It really helped. Many of us would like to contribute to this rule being something useful and able to be implemented, but it is very hard to understand the context, the goal, and the decision space. You’ve made that fairly accessible.

  3. John,

    This is such an important point you raise. So obvious, maybe, that folks sometimes forget how planning processes become a problematic venue for conflict resolution, and this happens because of the central questions not addressed in MUSYA or NFMA.

    I call it the “whack-a-mole” principal in my book:

    “At this point, many conflicts about public lands are irrepressible. Though the means by which they are governed often exacerbate them, many of these conflicts are based on competing values, visions, and interests. Therefore, changes in political institutions and decision making processes may simply shift conflicts from one venue to another. I call it the “whack-a-mole” principle because of its similarity to the game in which one tries to “whack” a mole, only to find it reappearing in yet another unpredictable hole. Similarly, suppressing conflict in one venue will likely result in its emergence somewhere else. The alternatives outlined below thus address how changes in governance may likely redirect, rather than resolve, conflicts about public lands.” (The Governance of Western Public Lands)

    And how great is that line, “breathes discretion at every pore.” Great stuff. Let’s not also forget another nail in the coffin: Sierra Club v. Hardin (1971), a classic example of how far the multiple use concept can be bent by the USFS and the level of deferential review used by the courts. I pulled this background from my book too:

    “In 1958, only 6/10ths of 1 percent of commercial forest lands in the Tongass National Forest were reserved from logging, and the 1964 Multiple Use Management Guide for the Alaska Region planned on taking care of the rest: “About 95% of the commercial forest land of Southeastern Alaska is occupied by over-mature stands of hemlock, spruce and cedar [and] these decadent stands should be removed by clear-cutting methods as soon as possible to make way for new stands of fast growing second growth timber.” The total sale would encompass more than 99 percent of the commercial forest lands in the Tongass, but the court still deferred to the agency’s “due consideration:” “While the material undoubtedly shows the overwhelming commitment of the Tongass National Forest to timber harvest objectives in preference to other multiple use values, Congress has given no indication as to the weight to be assigned each value and it must be assumed that the decision as to the proper mix of uses within any particular area is left to the sound discretion and expertise of the Forest Service.”

    So there we have it: multiple use being used to defend an 8.7 billion board foot timber sale AND the protection of 59 million acres of roadless.

    Your post also brought to mind the classic responses to the multiple use problem. Since the 1960s, calls have been made to replace the multiple use paradigm with some sort of dominant use arrangement, such as legislatively zoning some lands for protection and others for commodity production. (See e.g., PUBLIC LAND LAW REVIEW COMMISSION, ONE THIRD OF THE NATION’S LAND (1970), at 3, 48 (recommending a dominant use approach to public lands management). See also the collective work of Marion Clawson, including The Concept of Multiple Use, 8 ENVTL. L. 281 (1978); and FORESTS FOR WHOM & FOR WHAT? (1975)).

    Seems to me that the dominant use idea continues to float around, like in some of these place-based bills and agreements we’ve been discussing lately. Several essentially designate lands for more particularized uses and values. But unlike some of the top-down reform proposals of the past, the place-based approach seeks to do the same thing from the bottom-up. Both approaches seek to do via legislation what has historically been done via forest planning.


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