Lawsuit initiated over U.S. Forest Service rule

Aug 17, 2012

History is repeating itself on the topic of public lands management. Echoing three attempts in the past 12 years, the U.S. Forest Service (USFS) is facing legal challenges for attempting to update its forest planning rules. Unlike the past, however, ranching groups, rather than environmentalists, are taking it to task over the newest planning rule.

Monday, Aug. 13, several land and ranching organizations, including the National Cattlemen’s Beef Association (NCBA) and the Public Lands Council (PLC), filed a lawsuit against the USFS, challenging its latest forest planning rule. The groups—together with numerous others—claim the new planning rule violates several management and multi-use acts of the past.

Officially known as 36 CFR Part 219, the new rule was finalized and issued by Agriculture Secretary Tom Vilsack in late March, and took effect in early May. The new planning rule is intended to replace the 1982 rule procedures currently in use and “provides a new framework to be used for all individual management plans for 155 national forests and grasslands across the country,” according to the USFS statement.

The current lawsuit being brought by NCBA and PLC contends the new planning rule violates prior regulations regarding land use. They take particular issue with the new planning rule’s requirement that USFS “maintain a viable population of each species of conservation concern within the plan area.”

Dustin Van Liew—PLC executive director and NC- BA director of Federal Lands—claims the “viable population” phrase is illdefined, vague, not part of any preceding regulations such as the National Forest Management Act (NFMA) or the Multiple-Use Sustained-Yield Act of 1960, and that it “opens the door to even more litigation by radical special interest groups.”

While it is accurate that NFMA contains no discussion of “viable populations” or their maintenance, the topic is addressed extensively in the 1982 forest planning rule. The 1982 rules are the most recent complete set of comprehensive forest plans as subsequent attempts to alter, amend, or replace them have been largely unsuccessful due to litigation by environmental groups. Some elements of the 2000 planning rule survived, but the 1982 rules form the structure on which all subsequent planning rules have been based.

Other complaints made against the new planning rule include the rule effectively makes mandatory what has for a long time been discretionary in the realm of public lands management; it does not respect long-standing multiple-use requirements; and it ignores the needs of ranchers, recreationalists, and those industries dependent on public lands.

“It is clear the USFS did not consider input from farmers and ranchers when creating and approving this new rule. This isn’t a surprise at all. Just look at this administration’s track record. From the [Environmental Protection Agency] to USFS, they refuse to venture off the city sidewalks of Washington, D.C., to get a glimpse of reality from the farm and ranch community,” said Van Liew. “We find it unfortunate that our industry must resort to legal action against the USFS. This is something that could have been avoided if the agency had been responsive to our specific comments about the rule’s pervasive legal overreach.”

According to the new planning rule’s official language:

“The planning rule is designed to ensure that plans provide for the sustainability of ecosystems and resources; meet the need for forest restoration and conservation, watershed protection, and species diversity and conservation; and assist the Agency in providing a sustainable flow of benefits, services, and uses of [National Forest Service] lands that provide jobs and contribute to the economic and social sustainability of communities.”

Other emphasized goals as stated in the planning rule itself revolve around enhancing water resources, restoring land and water ecosystems, and preserving habitats for wildlife and plants. The new planning rule specifically demands new management plans are informed by “public input and the best available scientific information.”

Despite frequent reference to multiple use considerations, NCBA and PLC see the language of the new planning rule as focusing on ecosystem services, sustainability, preservation and even “spiritual values” over multiple use policies required in earlier management regulations. Such motivations and focus are counter to the existing laws and the intention behind the creation of the public lands system.

Caroline Lobdell, counsel for the livestock associations and executive director of the Western Resources Legal Center, explained that a rule requiring forest plans to elevate the “broad term ‘ecosystem services’ to at least the same status as the multiple uses established by Congress—uses like outdoor recreation, range and timber—simply cannot be reconciled with the productive purposes for which our national forests were established.”

Van Liew said he is confident that an in-depth review of the forest planning rule will show that the regulation is a clear violation of law.

The issue has, of course, attracted the attention of environmental groups, though none are currently involved. Taylor McKinnon, public lands campaigns director at the Center for Biological Diversity (CBD), condemned those filing the lawsuit as being concerned only with profits rather than the wellbeing of wildlife and habitats. The group is displeased with the new plan as well, but still opposes the motivations of the lawsuit.

CBD’s dispute with the new plan claims it strips away many protections for wildlife, and water quality and habitat preservation seen in earlier forest planning rules.

Historically, environmental groups like CBD have challenged the attempted revisions on the grounds they weakened longstanding protections for biological diversity on national forests in favor of ranching, timber and other resource interests. The group contends NCBA and PLC’s litigation of the newest version differs from environmental opposition to past revisions in that it “directly challenges the substance of the new rule, for including common sense requirements regarding sound science and sustainability.”

The text of the new plan can be accessed in full online by visiting detail/planningrule/home/. The full text of the lawsuit can be found via the case identification of 1:12-cv- 01333 filed in the District of Columbia. — Kerry Halladay, WLJ Editor