CPR Perspective: National Forest Management

The United States Forest Service, an agency within the federal Department of Agriculture, is responsible for managing the National Forest System (NFS). The NFS is comprised of national forests and grasslands that make up about 192 million of the approximately 700 million acres of land owned by the federal government, or about eight percent of the surface area of the United States. In response to the concerns of late 19th century progressives that the nation’s timber supply was being wasted as settlement of the nation proceeded, Congress authorized the President in 1891 to reserve portions of the public lands covered with timber or undergrowth, whether it was of commercial value or not, thereby precluding uses inconsistent with the purposes of the reservation. Led by Theodore Roosevelt, ensuing Presidents used this authority to set aside millions of acres.

In 1897, Congress stated a mission for the management of these “forest reserves” in a law that became known as the Organic Act of 1897. The statute directed that these reserves, renamed the national forests, be managed “for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber” for the use of the citizens of the United States. 16 U.S.C. § 475. The lands that currently comprise the NFS include a wide variety of ecosystems, such as tropical rainforests, deserts, alpine meadows, and arctic tundra, which together support nearly a third of all species listed as endangered or threatened under the Endangered Species Act.

For the first two-thirds of the 20th century, the laws that governed management of the NFS were vague and general. As a result, the Forest Service had extremely broad discretion to determine how to manage the national forests. In its earliest days, under the leadership of Gifford Pinchot, the agency recognized the legitimacy of multiple uses of the forests as it sought to ensure a sustained yield of forest products and resources. Indeed, at the urging of ecological pioneers such as Aldo Leopold, the Forest Service administratively designated the first official wilderness area in the Gila National Forest in 1924. Until the end of World War II, the Forest Service served as a protective custodian of the national forests and the resources they contained, rather than as an active timber production manager.

By the mid-1940s, however, private timber stocks had been greatly diminished. As demand for timber grew in the post-war boom economy and the thriving market for new homes, the attitudes and practices of Forest Service personnel shifted, and timber production became the agency’s highest management priority, even though recreational use of the national forests skyrocketed during the same period. The Forest Service preferred timber-cutting techniques that yielded the most timber, including clearcutting, extensive use of herbicides, and monocultural reforesting. Unfortunately, these same techniques tended to be the most environmentally destructive ones.

Congress reacted to the Forest Service’s emphasis on timber production by refining and then restricting the agency’s management discretion. The Multiple-Use, Sustained-Yield Act of 1960 (MUSYA) confirmed congressional policy that the national forests be administered to promote a variety of uses, including not only timber, but also outdoor recreation, range, watershed, and fish and wildlife protection. 16 U.S.C. § 528. The MUSYA directed the Forest Service to manage the resources under its jurisdiction “so that they are utilized in the combination that will best meet the needs of the American people, making the most judicious use of the land.” It explicitly recognized that some land should be used for less than all of its resources, and it required “harmonious and coordinated management of the various resources” in a manner that would not impair the productivity of the land, and that would not necessarily result in the combination of uses that would yield the greatest dollar return. 16 U.S.C. § 1631(a).

Despite the adoption of the MUSYA, the Forest Service continued its post-war emphasis on timber production. The courts interpreted the MUSYA as a law that “breath[ed] discretion at every pore.” Perkins v. Bergland, 608 F.2d 803, 806 (9th Cir. 1979). As a result, they refused for the most part to use the law as a basis for invalidating environmentally destructive resource management choices. Increasing concern over those choices prompted congressional investigations and hearings, the upshot of which was a report (the Bolle Report) that condemned the agency’s excessive focus on maximizing timber production, to the virtual exclusion of other values. During the Senate Committee hearings held in 1971, a Wyoming Senator described clearcutting as “a shocking desecration that has to be seen to be believed.” The Committee ultimately urged Congress to determine whether clearcutting resulted in unacceptable environmental impacts and complied with existing laws governing management of the national forests.

At about the same time, two federal courts declared clearcutting to be a violation of the Organic Act of 1897. Congress responded to these events by adopting the National Forest Management Act of 1976 (NFMA). That law, which significantly reined in Forest Service discretion, continues to govern management of the national forests today. The NFMA declares a policy of management of the national forests in a manner that secures the maximum benefits of multiple-use, sustained-yield management. The NFMA requires the Forest Service to adopt land and resource management plans for each unit of the NFS and then to conform particular management actions, such as timber sales, to the provisions of the applicable plan.

The NFMA imposes both procedural and substantive constraints on Forest Service management of the national forests. The statute requires the Forest Service to “provide for public participation in the development, review, and revision of land management plans,” including holding public meetings or providing similar opportunities for input that “foster public participation.” 16 U.S.C. § 1604(d). The statute requires that the agency establish procedures to ensure that land and resource management plans are prepared in accordance with the National Environmental Policy Act (NEPA), the law that requires the preparation of environmental impact statements for major federal actions significantly affecting the quality of the human environment. Id. § 1604(g)(1). The NFMA directs the Forest Service to “use a systematic, interdisciplinary approach” to forest planning that achieves “integrated consideration of physical, biological, economic, and other sciences.” Id. § 1604(b). Finally, the NFMA provides substantive limitations on agency discretion, including limitations on the use of even-aged management harvesting techniques (such as clearcutting). These restraints are designed to minimize the adverse environmental effects of timber harvesting authorized by land use plans. The statute also directs the Forest Service to provide for diversity of plant and animal communities in order to meet multiple-use objectives. Id. § 1604(g)(3).

Congress enacted the NFMA to foster a balance among the many competing uses of national forest resources. Despite the procedural constraints and substantive requirements that the NFMA imposes on the Forest Service, the agency retains considerable discretion in choosing which uses to promote both in the NFS as a whole and in individual units of the System. The Clinton and George W. Bush Administrations have taken widely divergent approaches to the exercise of that discretion. The Clinton Administration adopted ecological sustainability as the overriding goal of national forest management and committed itself to pursue that goal in a variety of contexts, including the land and resource planning process created by the NFMA. Forest Service priorities have shifted dramatically under the Bush Administration, as the agency has reverted to the skewed emphasis on timber harvesting, resource extraction, and consumptive uses that the NFMA was designed to eliminate.

The shift in Forest Service management that has occurred under the Bush Administration has three principal components. First, the Administration has de-emphasized ecological sustainability and adopted in its place a vision of national forest management that is more heavily weighted toward short-term economic productivity, narrowly defined. Second, the Bush Administration has sought to enhance the role of state and local governments in determining the fate of national forest resources, despite the likelihood that these levels of government will favor parochial economic interests in lieu of the larger national interest in maximizing the long-term value of national forest resources. Third, although it has touted its commitment to enhanced public participation in the decisionmaking process, the Forest Service since 2001 has actually created significant obstacles to effective public input.

Manifestations of these policy differences between the two Administrations have been pervasive and have provoked controversy. This Perspective will focus on three examples of the consequences of these policy shifts — revision of the land and resource management planning process, management of roadless areas within the NFS, and the application of NEPA to decisionmaking under the NFMA.

The first context in which shifts in forest management policy have occurred relates to the land use planning process mandated by the Act. In 2000, the Clinton Administration adopted the first large-scale revision to the process of adopting and revising land and resource management plans under the NFMA since 1982. The Clinton Administration’s regulations firmly established ecological sustainability as the first priority for national forest management. The regulations defined ecological sustainability to mean the “maintenance or restoration of the composition, structure, and processes of ecosystems, including the diversity of plant and animal communities and the productive capacity of ecological systems.” The regulations required the Forest Service to incorporate social and economic analyses of proposed plan decisions in a manner consistent with ecological sustainability. They also limited timber harvesting to ensure that harvests would occur only if they were justified by the resulting ecological, social, or economic benefits. The Clinton rules built in multiple safeguards to prevent uses with long-term destructive consequences for national forest resources, such as requiring that agency decisionmakers conduct monitoring to identify threats to ecological sustainability. Finally, the Clinton rules enhanced public participation in the planning process by requiring collaboration with interested entities, public availability of planning information, and frequent opportunities for public input.

Just four years later, the Bush Administration revoked the Clinton rules and adopted a new set of planning regulations, characterizing them as “a paradigm shift in land management planning.” Despite the Administration’s claims that the new approach would provide healthier forests for future generations, emphasize science and public involvement, and improve accountability, progressives have charged that the new approach represented a dramatic, backwards step toward unaccountable decisionmaking geared more toward the promotion of private interests such as timber harvesting than toward the protection of the ecological integrity of the national forests. The 2005 rules de-emphasize ecological sustainability, shifting the focus of Forest Service planning away from the protection of non-use and difficult-to-quantify values such as resource preservation and toward short-term extractive use. These rules eliminate many of the safeguards against environmentally destructive timber harvesting built into the Clinton era rules, such as requirements that the agency create buffer zones to prevent harvesting in ecologically sensitive areas. They omit provisions designed to protect biological diversity, such as those requiring that the agency monitor the effects of its decisions on management indicator species. They establish in lieu of these safeguards a series of vague prescriptions for national forest management that restore much of the unbounded discretion that Congress sought to restrict when it adopted the NFMA. Finally, the Bush rules dramatically reduce opportunities for public participation in the land use planning process by, for example, restricting the ability of interested members of the public to object to planning decisions.

The second area in which the Clinton and Bush visions of the NFS have clashed dramatically concerns management of the roadless areas of the national forests. Shortly before leaving office, the Clinton Administration undertook the most important conservation initiative since at least the adoption of the Alaska National Interest Lands Conservation Act of 1980, by adopting new rules to govern management of roadless areas within the national forests. The stated goal of the rules was “to provide lasting protection” for roadless areas within the context of multiple-use management, so that the values of these areas would be preserved for present and future generations. With very limited exceptions, the Clinton roadless rule prohibited road construction and timber harvesting in roadless areas of the national forests based on the conclusion that these activities pose the greatest threat to long-term loss of roadless area values and characteristics. The rule was designed to protect watershed health and prevent fragmentation of important wildlife habitat. The Forest Service maintained that the roadless rule was consistent with Congress’s recognition that, under a multiple-use, sustained-yield approach, some areas of the national forests would be used for less than all available resources.

During its first week in office, the Bush Administration put a hold on the Clinton roadless rule, which had not yet gone into effect. In 2005, the Forest Service replaced the Clinton rule with a new and dramatically different version of the roadless rule. Instead of prohibiting or severely restricting road construction and timber harvesting in roadless areas, the new rule provided a limited window of opportunity for the governors of states with national forests that contain roadless areas to petition the Secretary of Agriculture for the imposition of management restrictions on those areas. Absent the filing of a state petition, or the Secretary’s approval of a state petition, roadless area management is governed on a case-by-case basis through the land use planning process. The rule provides no standards whatsoever for the Secretary’s review of a state Governor’s petition. The Secretary therefore has unconstrained discretion to approve or reject a state’s proposed management restrictions on activities within roadless areas. The Bush roadless rule places greater emphasis on protecting forest resources from natural disasters than from human-induced environmental degradation and appears to be more concerned with the need to protect private property located within or adjacent to the national forests than with the need to preserve natural resources within the forests to ensure their availability to future generations.

The third area that reflects the competing visions of national forest management of the Clinton and Bush Administration relates to the role of NEPA in the implementation of the NFMA. NEPA requires that federal agencies prepare an environmental impact statement that assesses the potential adverse consequences of proposed major federal actions that would significantly affect the quality of the human environment, as well as consider alternatives to proposed actions that may achieve the desired result with less adverse environmental implications. During the Clinton Administration, the Forest Service took the position that NEPA applies to the preparation of land and resource management plans, as the NFMA clearly provides.

The Bush Administration, however, has sought to avoid the NEPA evaluation process for a wide variety of Forest Service decisions. The Administration, for example, supported the Healthy Forests Restoration Act of 2003, Pub. L. No. 108-148, 117 Stat. 1887. This law exempts entirely from the NEPA evaluation process certain agency decisions concerning forest management and limits the number of alternatives that agencies must consider in connection with other projects, such as “hazardous fuel reduction projects.” Earlier, the Forest Service absolved itself of the responsibility of preparing an EIS for some transportation-related activities proposed for roadless areas. Perhaps most significantly, the Forest Service has announced its intention to adopt a categorical exclusion from NEPA procedures for land and resource management plan adoptions and revisions, in apparent contravention of the NFMA’s decree that “plans [be] prepared in accordance with” NEPA. 16 U.S.C. § 1604(g)(1). This new approach deviates from nearly thirty years of Forest Service practice since the adoption of the NFMA. Under it, NEPA analysis will no longer be performed at the planning level, but only when the Forest Service considers specific projects in the process of implementing a plan that it has already adopted.

Congress initially granted the Forest Service broad discretion in administering the NFS. In time, it became obvious that the Forest Service allowed consumptive uses such as timber harvesting and mineral extraction to predominate over potentially competing uses such as wildlife protection, minimal-impact recreational use, and scenic preservation. The result of this skewing of Forest Service priorities was a growing threat to the long-term viability of national forest ecosystems and to the sustainability of non-consumptive use of forest resources. This shifting emphasis also threatened to sacrifice the interests of future generations to short-term, private economic interests.

Congress responded by enacting statutes such as the MUSYA, NEPA, and, ultimately, the NFMA. Its goals in doing so were to (1) restore an appropriate balance among available multiple uses, (2) establish specific standards to guide the discretion of the Forest Service in adhering to that balanced approach and to hold the agency accountable, (3) require the Forest Service to take into account the possible adverse consequences for forest ecosystems of proposed actions so that environmental values would not be given short shrift, and (4) mandate that the Forest Service provide ample opportunities for public participation so that those who have the greatest stake in the management of the national forests — the American public — are able to play a significant role in determining their fate.

Recent Forest Service initiatives have placed the achievement of each of these goals in dire jeopardy. The Forest Service has restored consumptive uses to a predominant role in the hierarchy of competing multiple uses, abolished standards for forest management that were designed to ensure agency compliance with the NFMA, exempted a variety of agency management actions from the NEPA environmental assessment process, and created obstacles to public participation in national forest management decisions. In combination, these initiatives have largely replicated the situation that existed prior to the adoption of the NFMA — a decisionmaking process in which a narrow range of private economic interests has a significant role in dictating the use of national forest resources, largely free of public scrutiny or accountability. This short-sighted focus is likely to be counterproductive even using a crude dollars and cents yardstick. It is certain to sacrifice less easily quantified resource protection values enshrined in applicable legislation.

CPR believes that it is important to halt this backwards slide toward capture of the Forest Service by timber and other consumptive interests and to restore a decisionmaking process capable of achieving the goals Congress set forth in the NFMA. The most important substantive change that needs to take place is the removal of the pervasive bias reflected in Forest Service policies in favor of short-term extractive use which has resulted in decisions that deviate from both the letter and the spirit of the NFMA. In its place, CPR supports a restoration of the emphasis reflected in Clinton Administration management decisions such as the 2000 planning regulations and the 2001 roadless rule. These initiatives sought to achieve balanced, multiple-use management that recognizes the importance not only of consumptive and extractive uses, but also of protecting and promoting preservation of forest resources and uses with minimal impacts, such as non-motorized recreation. Such a shift in emphasis is necessary to safeguard national forest resources so that they remain available for future generations.

Once that balance has been restored as an overarching goal of NFS management, the agency needs to restore some of the specific management standards eliminated in Bush Administration initiatives such as the 2004 roadless area management rule and the 2005 planning rules. Specific management standards should be adopted to govern decisions such as which areas should be made available for timber harvesting, how much timber should be cut, what harvesting techniques may be used, and what criteria the Secretary of Agriculture will use in reviewing state petitions to establish restrictions on the use of roadless areas. Without such standards, it is just as difficult for those adversely affected by Forest Service management decisions to secure meaningful judicial review of those decisions as it was before the adoption of the NFMA. The result is an unaccountable agency, free to sacrifice the public interest to the narrow, private interests of favored agency constituencies such as the timber industry. The 2005 planning rules have skewed that process toward uses with the greatest potential to harm the ecological integrity of the national forests, largely eliminated specific standards that might have served as mechanisms for holding the Forest Service accountable for complying with the dictates of the NFMA, and minimized opportunities for public input that might present information and arguments that support restricting activities such as road construction and timber harvesting in roadless areas.

The “compromise” reflected in the 2004 roadless area management rule similarly creates a process that will tend to be unduly responsive to parochial and powerful economic interests. Although solicitation of input from affected state, tribal, and local interests is not only appropriate but highly desirable, the agency should not delegate to those interests the authority to make or unduly influence decisions concerning the fate of NFS resources. These interests are unlikely to have the national perspective needed to make decisions that are in the best interests of the owners of the national forests, the American public. It is sometimes the case, for example, that local governments are particularly prone to capture by industries important to the local economy.

By authorizing only state Governors to petition for the establishment of management restrictions in specific roadless areas, the rule limits the likelihood that such petitions will be filed. State Governors may be unwilling to risk incurring the wrath of powerful economic interests such as the timber industry by petitioning for such restrictions. Even if they are, the Secretary of Agriculture retains the unbridled discretion to reject a state petition, with no standards whatsoever to govern these decisions. In either event — whether a state Governor fails to submit a petition or the Secretary denies such a petition — the default rule is a failure to specifically protect roadless areas.

It is also vital that Forest Service management decisions, including the adoption and revision of land and resource management plans, be subject to the full panoply of NEPA assessment procedures. Congress enacted NEPA as a means of forcing agencies whose missions were primarily developmental to consider the possible adverse effects of proposed actions before committing agency resources to them. History had shown that, absent legal compulsion, these agencies have every incentive to downplay if not completely ignore the environmental effects of their actions. This description fits the pre-NFMA Forest Service very well. Fairly or not, the Forest Service was viewed by many as little more than a “tree farm,” committed to maximizing timber output, regardless of its impact on ecological integrity and resource sustainability. The Forest Service, in short, was exactly the kind of agency for which NEPA was created. It flies in the face of both NEPA and the NFMA (which explicitly requires the application of NEPA to planning decisions) to carve out significant exemptions from NEPA responsibilities for Forest Service management decisions.

Finally, CPR supports the creation of a process that allows public access to the information being considered by the agency throughout the decisionmaking process and that affords interested members of the public meaningful opportunities for input and participation. At a minimum, these opportunities should include the ability to submit written comments, to participate in public hearings, to pursue administrative appeals, and, unless there is an adequate substitute, to seek judicial review of agency decisions based on a record that enables judges to scrutinize the agency’s decision for rationality and compliance with applicable statutory requirements.

For further discussion of the need for a balanced approach to national forest management that places appropriate emphasis on sustained yield of forest resources and the protection of non-use values such as wilderness preservation, see

• Robert L. Glicksman, Traveling in Opposite Directions: Roadless Area Management under the Clinton and Bush Administrations, 34 Envtl. L. 1143 (2004)
• Sandra Zellmer, A Preservation Paradox: Political Prestidigitation and an Enduring Resource of Wildness, 34 Envtl. L. 1015 (2004)
• Alyson Flournoy, et al., Regulations in Name Only: How the Bush Administration’s National Forest Planning Rule Frees the Forest Service from Mandatory Standards and Accountability (CPR White Paper June 2005), available at www.progressivereform.org/articles/Forests_508.pdf
• Robert L. Glicksman, Bridging Data Gaps through Modeling and Evaluation of Surrogates: Use of the Best Available Science to Protect Biological Diversity Under the National Forest Management Act (forthcoming); Robert L. Glicksman & George Cameron Coggins, Wilderness in Context, 76 Denv. L. Rev. 383 (1999).