Forest Plans May be More Meaningful after Sixth Circuit Decision

Are Forest Service Land Management Plans themselves a final decision about the location of activities such as snowmobiling and hunting, or are they merely guidance for when decisions are really made at a project level or subsequent travel management decision? 

That question has been central to controversies about new Forest Service planning rules that were developed in 2005 and 2008, and relevant to the team now writing a new planning rule.  The 2005/2008 planning rules were based on the concept that plans are merely aspirational and not inherently enforceable, citing the 1998 Supreme Court Ohio Forestry decision on timber harvest projections in the Wayne Forest Plan.  The Forest Service used the Supreme Court decision in its logic for the 2005 rule, explaining that plans do not need to be accompanied by an Environmental Impact Statement, because no specific decisions are being made and because environmental documentation will be completed as timber projects are proposed.  It also led to the idea that the planning process itself could be simpler, because forest plans don’t make site-specific decisions.

A Sixth Circuit decision on Wednesday could lead to a different view of the nature of a Forest Plan.  The decision on the Huron-Manistee Forest Plan ruled against the Forest Service in favor of Kurt Jay Meister, an attorney representing himself.  The Court ruled that Forest Plans under the existing 1982 rule (under 2000 rule transition provisions) make meaningful recreation decisions.  Citing inadequacies in the analysis of the noise impacts of snowmobiling and hunting on semi-primitive recreational experiences,  the Forest Service has been given 90 days to correct the deficiencies of the Huron-Manistee Plan.

The Sixth Circuit Court noted the difference between recreational activities in a Forest Plan and timber activities mentioned in the earlier Supreme Court decision:

But the (Supreme) Court observed that the Plan itself “does not give anyone a legal right to cut trees, nor does it abolish anyone’s legal authority to object to trees being cut.”  To the contrary, additional agency action – namely, issuance of a site-specific permit – was required before anyone could engage in the logging that the Sierra Club said would harm its interests.  Thus, the Court held, the plan had not yet “inflict[ed] significant practical harm upon the interests that the Sierra Club advance[d].  Hence the case was not ripe.  Meister’s case is different.  Unlike logging, the activities about which Meister complains – gun hunting and snowmobile use – do not require further action by the Service before they can occur.  To the contrary, they have in fact occurred ever since the Plan’s issuance, with the resultant harms that Meister now alleges.  Thus, the Plan itself has harmed him in concrete ways.  His claims are ripe.”

Regarding travel management, the Circuit said that the 1982 regulations “imposed the bulk of its obligations at the (forest) planning stage; and one such obligation, as we read the regulation, is to determine whether certain clases of areas and trails ought to be altogether off-limits to off-road vehicle use.  Meister says that one such class are trails that the Service itself admits are “in or near” semiprimitive nonmotorized areas. That claim is properly presented at the Plan level.”

Regarding hunting, the court rejected a Forest Service argument that it is solely controlled by the State.  Instead, the court said that both the Federal Land Policy and Management Act, and Forest Service directives allow the Forest Service to limit hunting when it is inconsistent with direction in forest plans such as the establishment of semi-primitive non-motorized areas.

This case underscores how the 1982 planning rule is continually being interpreted by the courts.  In the development of the new planning rule, it will be important to clearly spell out what analysis will be expected in the forest planning process.  Elsewhere on this blog, there have been discussions about the importance of addressing recreation in the planning process, and how recreation isn’t being taken seriously.  However, the planning process needs to be simplified and must be more concise.  The National Forest Management Act (NFMA) does not require the planning rule to direct zoning of recreational uses in a Forest Plan.  If recreation is addressed in the new planning rule, hopefully the requirements will be clearly laid out and are achievable.

7 thoughts on “Forest Plans May be More Meaningful after Sixth Circuit Decision”

  1. Like this case, the Supreme Court’s Ohio Forestry decision also originated in the Sixth Circuit. The Court’s decision in Ohio Forestry presciently noted:

    “[t]he Solicitor General agreed that if the Sierra Club’s claim was ‘that [the] plan was allowing motorcycles into a bird-watching area or something that like, that would be immediately justiciable.'”

    But because the Sierra Club challenged only logging-related decisions, which use the two-step planning process, the Supreme Court dismissed the Sierra Club’s complaint as unripe.

    Here, in contrast, the pro se plaintiff challenged forest plan decisions that allow snowmobiling and hunting into dispersed, non-motorized recreation areas — decisions that are effective upon plan approval; just like the motorcycles into bird-watching areas that the Supreme Court said would be ripe for review.

    I can’t see the government appealing this decision, or, if it does, the Supreme Court accepting review. This decision was written carefully to avoid the embarrassment of a second reversal (the Sixth Circuit’s Ohio Forestry decision was reversed by a unanimous Court in a decision written by Justice Breyer, its most liberal member).

    The Forest Service has long regarded the national forests as an unregulated commons when it comes to noncommercial recreation uses. Thus, the Forest Service doesn’t think its forest plans allow hunters access to national forests; the plans simply acknowledge the status quo ante. Similarly, no special-use permits are required to fish, hunt, camp, or hike on the national forests, nor to drive on system roads.

    The NFMA rules, however, require comprehensive planning for all resources. Having made its all-resources planning bed, the Forest Service is now having to sleep in it.

  2. Sigh..I find this confusing. If hunters are there and have always been there, how is it a forest plan decision? If the previous plan did “decide” it, doesn’t throwing out this plan simply mean to go back to the status quo?

  3. I am sympathetic to Sharon’s confusion. Here’s what the Sixth Circuit says:

    Unlike logging, the activities about which Meister complains–gun hunting and snowmobile use–do not require further action by the Service before they can occur. To the contrary, they have in fact occurred ever since the Plan’s issuance, with the resultant harms that Meister now alleges. Thus, the Plan itself has harmed him in concrete ways. His claims are ripe.

    What the court doesn’t say is that gun hunting and snowmobiling occurred before the Plan’s issuance, too. Did the Plan make any change in hunting or snowmobiling? I don’t know. I haven’t read the Plan or its predecessor(s). But I suspect the Plan did not authorize hunting or snowmobiling in lands not previously permitted for those uses.

    This case is a good example of bad facts making bad law. The Forest Service’s heavy thumb-on-the-scale favoring well-entrenched snowmobiling and hunting interests was so conspicuous that the court felt compelled to correct the imbalance. That the Forest Service was only planning reflexively may explain its thoughtless behavior, but not excuse it.

  4. Thanks, Andy. I understand that people (including judges) might not like the decisions the FS makes, but my view is that “two wrongs don’t make a right.”

    I have to say it seems a little strange to single out “gun hunting and snowmobiling” (other than the litigation was aimed at those two things). Should dispersed campers and hikers begin to worry? or should the FS begin to worry that Forest Plans need to address all ongoing uses (analyze each trail, etc.)?

  5. Lots to think about here (as a policy professor, planning nerd, hunter, and Nordic skier), so hopefully we can broaden this thread over the next few weeks and consider the case from numerous perspectives.

    But one thing to consider is the USFS regulation that forest plans identify “the recreational preferences of user groups and the settings needed to provide quality recreation opportunities.”

    This leads to different approaches to demand/supply analyses of recreation. Based on my reading of the case, the agency’s analysis consisted of one problematic email taken out of context.

    The case raises questions about how the USFS determines such recreational demand. And that leads into trickier questions related to meeting versus creating recreational demand. The agency, for example, can count people using a particular ski trail on any given day—but not counted are those (displaced) folks that no longer visit the site because of the adjacent snowmobile route and its attendant noise.

    John is right: if the 2010/11 planning regulations continue to call for such analysis of recreational supply/demand, then the agency should be forced to take its analytical requirements seriously. (good news for our recreation management professors).

    But even more important than this is the question of whether we want management decisions based on such a demand/supply principle. Where might this sort of customer demand/agency supply language lead us in the future? Taken to its logical extreme…yikes. How can such zoning determinations be informed by such analyses, but not driven by them?

  6. Martin is right – this does raise some very interesting questions.

    That Professor Stynes is cited by the USFS is telling. He is a great researcher and his work is very well regarded. While formally as a group quite prominent, Stynes is one of a decreasing number of recreation economists. Much of his work has been in the estimation of recreation demand and very much located in the demand for locations.

    For example, economists would measure various proxies for a particular location – such as how far people would drive to visit the location and how much the adjacent land was worth on the real estate market.

    Then, as indicated in the judgment, attention moved to the recreation opportunities provided by the location. Economists then started asking how much people would be willing to pay to have those opportunities, or would be willing to forgo those opportunities. ROS is designed to link the conditions of the site (degree of naturalness, crowdedness, and surveillance, for instance) to opportunities.

    Now, many economists are interested in the choices that visitors make between competing conditions. That is, how much naturalness would you trade to have lower levels of crowdedness). In doing so, economists can put a dollar value on the conditions of the site and, thus, managers can provide the conditions that are most valued.

    What I find quite stunning is that this economic approach might ignore some very basic inventory data. Doesn’t it seem surprising that all managers don’t have accurate and precise accounting of who is recreating on their forest, what they are doing, why they are there, and what visitor preferences for the forest are? This is the bread-and-butter of recreation research and perhaps the judgment could be interpreted such that NVUM (National Visitor Use Monitoring) isn’t sufficient. Preparation of a forest plan seems like a great opportunity to bring the forest-specific data up-to-date.

    But, think about this statement for a bit: It is not enough, therefore, for the Service merely to identify the supply of lands on which an activity can occur. It must instead identify the supply of lands on which participants in that activity are afforded a “QUALITY recreation opportunity”. (Page 9)

    This is a bit like suggesting our forests shouldn’t be managed for the lowest-common-denominator (such as McDonalds would be for restaurants, the same bland food options available everywhere), in favor of preserving the unique and resource-dependent opportunities that can’t be gotten elsewhere. This is more supply management than it is demand management, isn’t it?

  7. I was recently informed about this issue by fellow outdoor enthusiasts. Am I reading correctly that Mr. Meister has no interest or claim about damages that occur as a result of hunting and snowmobiling, but rather, doesn’t like the noise or other “dislikes” created by these activities? And somehow, after lots of budget (re: our tax dollars) was spent dealing with his claims, we’re supposed to ignore that actual damages that will occur as a result of the changes he’s requesting? Like the economical impact of losing lodging, food & beverage, fuel station, sporting good stores, etc., etc. revenu for the businesses on the way to and those near the Huron-Manistee NF? Glad to see that a self-serving, “I’ve got enough money to sue the government so I can sequester public land for my own personal use”, knucklehead thinks eliminating access for thousands of citizens is better use of our land. Sorry that for a few months a year Mr. Meister can’t share public land. Unbelievable.


Leave a Comment