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.
