Diversity and species conservation

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.

One of the reasons I gently encouraged Martin to co-administer this blog was for us to have discussion among practitioners, the public, interest groups, scientists, academics at natural resource schools and environment schools, and lawyers and academics at law schools.

The incident that led directly to the inception of this blog was a discussion on the 05 Rule in our office in Golden, Colorado. We invited Fred Cheever and Mark Squillace and their students from University of Denver Law and University of Colorado Law. Fred Norbury from the Washington Office of the Forest Service was live on video, telling us the story of his conception of the 05 Rule and the reasons behind it and answering questions. Our Regional Forester was there with his cowboy boots up on a table, sharing and questioning, and I and some folks from my staff. For me, it was just about as much fun as you can have at work, without being out of doors. At the end of the discussion, Mark said something along the lines of “I can agree with you to some extent on the problem, but I just don’t agree with you on the solution.” Which triggered in my mind..of course.. next time, let’s all work together on defining the problems and proposing solutions. It also made me want to open up this practitioner – academic dialogue to others who don’t happen to be located conveniently to FS offices where people like to discuss and debate these kinds of things.

There are many interesting cultural differences that I hope we explore among scientists, FS employees, interested publics and lawyers. Since we are on the NFMA trail, though, I’ll start with a couple. The first is accessibility of information to those outside the community. Fortunately, our local library is part of Prospector, a service by which you can order books across Colorado. So I could obtain “Land and Resource Planning in the National Forests” by Wilkinson and Anderson (which I’ll take up next week) through them.
But many of the papers in journals are not accessible to the public. For example. Let’s pick a paper.. I ran across this one.
“Eliminating the National Forest Management Act’s diversity requirement as a substantive standard.” by Julie A. Weis
Unfortunately it requires a subscription to read the whole thing.. I could probably get access, somehow, but not as easily as clicking a key. Then, of course, practitioners don’t necessarily have time to read entire papers. That’s why I appreciate when people on this blog summarize, or just say what they think are key points and how they apply to the discussion at hand.

The last point I’ll make in this entry is that the attitude toward what constitutes the rationale for a knowledge claim seems different, at least between scientists and lawyers. For example, the author states “Recently, however, the Forest Service proposed a rule change for land and resource management planning that would allow the agency unbridled discretion in managing the national forests.” As a scientist, I would not perceive that statement to be accurate, since there appear to be plenty of bridles, not the least of which are the statutes ESA, NEPA and CWA. It seems to have sacrificed precision for polemics. The difference in style of writing may cause us to consider the implications of possible underlying differences among scientists’, practitioners’, and lawyers’ epistemic models.

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”?

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?