Circling on the Diversity Rotary

A while back, I obtained a copy of Wilkinson and Anderson’s book ” Land and Resource Planning in the National Forests” (1987) from the library. It had to go back today, which caused me to write about stuckness, rather than any conclusions.

So I’ll describe where I keep circling, and a possible exit off the rotary.

The rotary. In this post, Andy quoted Judge Dwyer:

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.

Reading and rereading that part of the Wilkinson and Anderson book, I couldn’t get there from here. John tells me Judge Dwyer actually quoted the book. However, I don’t necessarily see that, with all due respect to both Judge Dwyer and the Ninth Circuit.

I was stuck. Finally I saw a footnote on page 170- a quote from Chief Max Peterson.

“If one thought emerges from reading this diversity paragraph over and over again, is that it is not very specific , and therefore leaves much room for judgment. The law does not provide detailed direction ; certainly it contains no definition of diversity, nor an indication of how much diversity is required,, it does not say that whatever diversity is there now must be kept . With proper justification, and to meet multiple use objectives, diversity could be altered or even reduced.”

That is exactly the conclusion I came to. It is interesting that these points of view could be so different- and one became enshrined in law and not the other.

Here’s another quote from the book from page 173:

To summarize, section 6(g)(3)(B) has three complementary meanings in the context of timber planning. First it is a general mandate to bring timber production into balance with wildlife and ecological values. Second it limits the use of forest conversion to cases where the conversion can be justified by its benefit to non-timber resources. Third, it prohibits monoculture. These three elements, when taken together, require the Forest Service to look at the forest as an ecological whole an to ensure that, over time, the forest is not converted to a tree farm.”

This suggests some kind of balance between timber production and other values. Is this different from “to treat the wildlife resource as a controlling, co-equal factor in forest management and, in particular, as a substantive limitation on timber production?” It seems to me that balance and “controlling co-equal” are a bit different. Anyway, my meditation on these concepts and rereading this section reminded me of how much the world was different then; of how, as Andy says, it was really all about timber. It is so unlike the world of today. I wonder if NFMA itself has value anymore or it was ultimately a creature of its time. Should it be put gently to rest?

A possible exit from the rotary.. what can we do pragmatically?

Like Max (as I recall, the first Chief who was an engineer), I am ultimately pragmatic. People, and more importantly regulatory agencies, seem to like standards. If the 2005 Rule experience proved anything, it proved that. One of my colleagues told me that in his view the utility of forest plan standards is that interdisciplinary teams don’t have to re-open all the same issues for every project. This does seems useful; but I have to wonder if this couldn’t be more flexible..say a GIS layer of what standards apply and they are developed across forests- so that the old plans don’t have old-fangled standards and newer ones newer-fangled standards, and none of them kept up-to-date with current information. We have a Watershed Conservation Practice Handbook that attempts to deal with that, but some people miss the legal NFMA hook.

10 thoughts on “Circling on the Diversity Rotary”

  1. okay, Sharon, you have now opened the door to the whole delimna. It took me 2 weeks to figure out what NFMA had to say about forest planning and it was all about timber production. So out of date! However, today, we can’t even breathe that sustainable timber production is a valid use of public land. Timber only as a by-product of restoration. So this pendulum is way off again. So if both NFMA and the Multiple Use Act, and probably the organic act are passe’, what the heck are we doing re-arranging deck chairs on the planning rule?

  2. For a great number of people NFMA is all about species viability. That is perhaps the biggest reason that every attempt to change the 1982 rule has failed. It’s why wildlife advocates have looked for procedural flaws(like inadequate NEPA) to stop each rulemaking attempt to weaken the standard. The species viability provision has not just influenced timber projects. It has been used to influence oil and gas projects, livestock grazing, and even ski area expansions. The relationship between diversity and viability is really a pretty simple concept – you can’t have a diverse group of species unless you can be sure that each species can persist. I explained some of this thinking in my response to Sharon’s earlier post.

    I think the issue that Sharon is pointing out is why viability became a priority over other multiple use values. Part of the reason is the way the 1982 rule was written – viability was grouped with other requirements as a minimum “management requirement.” But viability has always been hard to prove. There is much unknown even about species that are well-studied. In light of uncertainty, we often proceed cautiously. Also, society may value species over other multiple-uses, and courts probably reflect those values.

    One other thought – except for a few high profile cases, the Forest Service doesn’t seem to lose many court cases on viability. There is a lot of species expertise in the agency (although some would argue it has been costly to develop.) I think the related issue about monitoring of management indicator species has been more of a problem.

  3. To Sharon who says “I wonder if NFMA itself has value anymore or it was ultimately a creature of its time. Should it be put gently to rest?” Indeed it should. But there is no gentle means of doing so.

    To John who says “except for a few high profile cases, the Forest Service doesn’t seem to lose many court cases on viability.” But those few losses sure are doozies. They are the reason the viability rule will not go quietly into the night.

    To Lynn who wonders “what the heck are we doing re-arranging deck chairs on the planning rule?” See response to Sharon above. And perhaps in their thoughtful rearrangement we can make the chairs more accommodating.

  4. Perhaps a gentle means of putting it to rest is to 1) as you suggest, return it to its original timber-y intent through the new regulations, 2) plan to do other useful things such as adaptive governance (but perhaps not enshrine them in regulation?) , and 3) find some currently meaningful approach (statute or regulation not tied to NFMA) that meets the needs of people who like the viability regulation, but is also informed by practitioners and our current understanding of climate change. Once this structure (21st century diversity) is in place, NFMA could possibly be removed without much controversy. Without the aspect of “protecting diversity,” NFMA would be more easily recognized as the dinosaur that it is.

    Unlike John, I think you can have diverse species without every species continuing to exist. Diversity is a number- which we will never know- across species of invertebrates, bacteria, etc., as well as “wildlife” and plants. There is no “correct” number; there is more and less, and we will never know its one “true” value; nor is there a scientific way to weigh a plant or insect or an animal species so that we could come up with one overall measure of species diversity. Different scientists have taken different approaches, as if overall diversity needs to be measured.

    The idea was probably something simple like “we should try to keep all species that currently exist.” That is a great, simple idea.

    However, “how hard should we try?” “How many species of which kinds of organisms should we try to save?” “How do we know when an activity of the FS or someone else on national forest lands is significant to the existence of a given species or whether its decline is caused by climate change or something else?”

    Those are very hard questions to answer. And the science seems to tell us that one species really can’t speak for another; as convenient as it might be for us to think so, so what do we do?

    And BLM does not have a viability regulation, so is there empirical evidence that supports that they have let more species decline than the FS? Has all that litigation accomplished the goals of protecting more species?

    I cleaned out my office today and found an old document reviewing MIS monitoring litigation (of which there has been, apparently, a lot) and found many cases about habitat versus population, project population monitoring vs. larger scale, habitat versus models, picking species, etc. Given that this was originally about timber management, a person has to wonder “is there a more direct path between the desire to maintain species and the multitude of case law we currently have?”. Perhaps if we found something we could agree on that was more direct and practical, we could get rid of NFMA.

    I do remember at one SAF Convention (Winston Salem) we had a “Hot Topic” session on NFMA. As I recall (others can help here), it was the FS folks who didn’t want to open it up for change; they were afraid we might get something worse.

    It might be worth trying to build something better in terms of species. Then perhaps people would be willing to let go of NFMA; we could have our adaptive governance approach and life could go on in a way that reflects the issues and concerns of today.

  5. True – perhaps diversity could have been solely handled through some sort of species richness criteria, but that was rejected by the original Committee of Scientists, which was the NFMA vehicle to address this issue and others. As you know, subsequent Committees are not required by NFMA for rule updates, but the only time another one was convened (in 1999) the concept of viability was not only endorsed but expanded to include nonvertebrates and plants. An argument could be made that the die has been cast on the current rulemaking process with the decision not to convene a COS but to substitute a two-day “science forum” seeded with a substantial number of Forest Service scientists. It will be an uphill battle to explain to the general public why it’s a good idea to drop the viability requirement without appearing to be politically motivated. Because of the history, NFMA is now one of the most important laws about species, and changes to viability would be the headline about this new rule.

    Except for a few high profile cases, courts have given the Forest Service deference in how viability is addressed. See for instance the Chequamegon Nicolet case in the 7th circuit (Sierra Club v Marita). Even the 9th circuit’s review of the Seattle Audubon spotted owl case said that viability is not an absolute certainty of species survival. In practice, viability is addressed by planners through an approach not entirely different than the two-stage ecosystem/species analysis in the 2008 rule. There are reasonable approaches that can be implemented, including the process developed by NCEAS for the Forest Service in 2001. There are also emerging approaches for addressing climate change, a topic for another post.

  6. Sharon,

    I’m certainly one of these people that believe we need clear, workable, enforceable standards in forest management. I think such standards actually facilitate adaptive management and collaboration, two things we discuss a lot here.

    But before saying anything else, can you please explain why the viability standard is a problem–just to make sure I understand your perspective. In other words, what does the FS want to do but can’t do, or can’t do fast enough, because of this standard? Or how does viability pose an obstacle to various issues identified in the planning rule NOI (e.g., restoration, resilience, water flows, collaboration, etc.).

    And one of the reasons I’ve pushed for a National Forest Law Review Commission is because of the interconnections between Organic Act/MUYSA/NFMA and other laws. Consider, for example, how NFMA’s diversity mandate relates to the ESA.

  7. These are great questions, Martin. It’s not so much that I think the provision is bad, but I think it could be improved, given what we are looking at today and in the future.
    First, I would go back to the concept and make sure that we are all clear on that. I don’t know what the original concept was for sure so could use some help. Perhaps it was “the FS should try to maintain the current species composition and diversity.”
    This sounds like a fairly simple thing, as John says, look at the lists of species, select some, develop an (I would say) all lands strategy with State and private partners and develop standards for particular kinds of projects, as well as a some kind of species-wide interagency monitoring plan. I would make it for all federal land management agencies including the Park Service and Fish and Wildlife Service. I would also have multiparty reviews of a sample of projects to see if the standards were applied correctly, if they seemed to be effective, and what could be learned.
    One way would be to have a joint pot of earmarked money per state and have the state and feds jointly work out how many species to watch out for versus how intensively they’re monitored.
    When I look at the case law, and the discussions of project versus plan level monitoring, and think of the opportunity costs of that legal and FS personnel energy (what else the same people could be doing- environmental groups procuring easements for migration corridors, FS lawyers going after water rights, etc.), I have to think that there is a better, more cost-effective, and more direct way to get from the desire for protection to the project on the ground.

    If the viability regulation was designed to stop a charging elephant (as it appears the timber industry may have been), it may not be designed the best way to go after today’s scurrying mice (travel management, a couple fuels treatment projects, grazing). In fact, since we have all those going on right now, exactly what is the current viability regulation protecting us from?

    • But diversity/viability has been pretty central in making decisions related to those scurrying mice (e.g., lynx, wolverine, grizzly bears and snowmobiles/travel management; all the bird cases related to fuel treatment projects, etc.).

      It also seems like some synergies between ESA and viability–might we actually spend more on ESA listings and litigation if viability provision was absent?

      I’m also curious about the advancements that have supposedly taken place regarding population viability analyses since the last COS. I’ve read a few letters RE: NOI that say substantial advancements have taken place (e.g., genetic sampling, etc.), so that using a focal species approach isn’t as problematic from an implementation standpoint as it once was.

      • My understanding is that lynx and grizzly are related to ESA, not sure about birds. My point about the elephants and the mice had to do with the size of the environmental impact. The idea that we were substantially changing vegetation and habitat (like reducing old growth) was the result of intensive timber management. Nowadays, I would argue, a couple of hundred acres per year plus a travel management decision, plus a pipeline, is unlikely to affect the viability of a species. A species that is very localized, perhaps, but those can be avoided in project planning. But these are interesting questions and I will add more when my computer is working again.

  8. A simple biologist’s point of view

    1) We are interested in protecting diversity of species.
    2) So we pick a sample of species, focal, guilds, MIS, species of interest and concern, whatever.
    · The choice is not a strictly scientific choice, it is a value choice- which species are most important to measure and why. The key is that we can’t measure everything and so someone has to pick a sample, based on something. Some people would like to measure everything. Some people want to measure their favorites. Different disciplines think different species are important. But it would be good to settle on some species for whatever reason and commit to a monitoring plan. The question is political, who decides? A national panel? Local people? State and federal collaborative groups?
    3) Then people need to develop a strategy to protect that species. The strategy is composed of things to do (e.g. improve habitat) and things to NOT do (stay out of calving habitat during the season).
    4) People need to monitor and see whether the strategy works, and then change the strategy if it doesn’t. This would involve samples of project implementation (both improving conditions and controlling negative impacts) and effectiveness, as well as broader population samples.
    To me, it makes sense to do this species by species, perhaps state by state (since states have fish and wildlife departments) and not forest by forest. This makes sense to do at a broader scale and with an all lands approach. The concept would be that the standards could be legally enforceable, because people like them and regulatory agencies like them, but wouldn’t be loaded with current, very complex and confusing case law. It would be simple.. FS (State, Park Service, and others) you agreed to do these things.. did you do them, did it work, how is the species doing?
    This overall approach might be better for species conservation than our current viability regulation, because you would consciously examine whether the standards were implemented on the land and how they worked; across different landscapes throughout the species range. Right now once the standard has been determined, it applies to FS only, and that’s it until the next plan revision.

    Also, I think somewhere behind all this is the idea that the agency won’t do protective things without legal requirements. Then we should examine all the agency incentives because there has to be cheaper ways to improve and audit performance than an army of lawyers. Because FS employees are generally excited about strategizing with collaborators, doing things, and checking, and changing and improving; and want to do the right thing for the land and the people. I think there are accountability mechanisms that we could all explore and agree on that would be better, and more cost-effective, than the legal system. We explored this a bit with EMS in the 2005 Rule, but there are many possible ways of going about it, which could be interesting to discuss further..


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