Managing the national forests through place-based legislation

Ecology Law Quarterly

Volumn 37, Issue 1, 2010, Pages 1-52

  Nie, Martin ^a   Fiebig, Michael ^a  

^a UNIVERSITY OF MONTANA   (United States)

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EID: 77951493838     PISSN: 00461121     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (385)

1. We use the popular but imprecise term " place-based" and the overly-bureaucratic term " unit-level" interchangeably in this Article. Both refer to laws that are specific to one particular federal land unit or national forest, in contrast to system-wide laws and organic legislation.
2. Thirteen in-depth interviews were conducted in 2008. Interviews were tape-recorded and transcribed. Participants were granted confidentiality, so their identities are not revealed and interviews are not cited. Questions pertaining to the BDP in particular, and place-based legislation in general, were asked of all participants. The initial round of formal interviews was followed by several additional inquiries and conversations with those involved in place-based forests proposals throughout the West.
3. See generally U.S. FOREST SERV., SELECTED LAWS AFFECTING FOREST SERVICE ACTIVITIES (2004) [hereinafter SELECTED LAWS] (providing an 810-page listing of these legal authorities).
4. U.S. FOREST SERV., THE PROCESS PREDICAMENT: HOW STATUTORY, REGULATORY, AND ADMINISTRATIVE FACTORS AFFECT NATIONAL FOREST MANAGEMENT 21 (2002).
5. See, e.g., Management Challenges on Montana's National Forests, Oversight Field Hearing Before the H. Comm. on Resources, 108th Cong. (2003) (containing several related complaints).
6. -16 U.S.C. § 1600 (2006).
7. Undeveloped lands must be evaluated for recommended wilderness designation during the plan revision process. 36 C.F.R. § 219.27 (2009).
8. A lot of planning conflict and litigation concerns the degree of specificity required in plans and how and if this binds agencies. That is, whether plans provide nothing but " motherhood generalities" or instead meaningful " blueprints for future resource allocations and protection."
9. See George Cameron Coggins, The Developing Law of Land Use Planning on the Federal Lands, 61 U. COLO. L. REV. 307, 309 (1999). Coggins saw the potential problem early on: " [T]he greater danger is that the agency will promulgate plans so general as to be meaningless as limitations on or guidelines for subsequent management decisions." Id. Commodity interests have also sought some certainty and guarantees in forest plans.
10. See, e.g. Wind River Multiple-Use Advocates v. Espy, 835 F. Supp. 1362 (D. Wyo. 1993) (finding that Resource Planning Act " objectives" related to Average Annual Allowable Sale Quantity are tentative and non-mandatory).
11. COMM. OF SCIENTISTS, U.S. DEP'T OF AGRIC., SUSTAINING THE PEOPLE'S LANDS: RECOMMENDATIONS FOR STEWARDSHIP OF THE NATIONAL FORESTS AND GRASSLANDS INTO THE NEXT CENTURY 169-173 (1999) (reviewing discrepancies in planning and the Congressional budgeting process).
12. See, e.g., CHARLES F. WILKINSON & H. MICHAEL ANDERSON, LAND AND RESOURCE PLANNING IN THE NATIONAL FORESTS 74-75 (1987).
13. -16 U.S.C § 1604(i) (2006).
14. For a more elaborate explanation, see Citizens for Better Forestry v. U.S. Dep't of Agric, 341 F.3d 961 (9th Cir. 2003).
15. Ohio Forestry Ass'n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
16. Id. at 733.
17. See id. at 738-739
18. See id. at 734.
19. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004).
20. Id. at 71.
21. Id. at 55.
22. -43 U.S.C. § 1782(c) (2006).
23. Norton, 542 U.S. at 67.
24. Id. at 72.
25. See id. at 71.
26. See 70 Fed. Reg. 1023 (Jan. 5, 2005).
27. The 2008 planning regulations were necessitated by a decision holding the 2005 planning regulations in violation of the APA, NEPA, and ESA. Citizens for Better Forestry v. U.S. Dep't Agric., 481 F. Supp. 2d 1089 (N.D. Cal. 2007);
28. compare 73 Fed. Reg. 21,468 (Apr. 21, 2008), with 70 Fed. Reg. 1023 (Jan. 5, 2005) (describing more adaptive and less prescriptive approaches to planning).
29. See Michael C. Blumm & Sherry L. Bosse, Norton v. SUWA and the Unraveling of Federal Public Land Planning, 18 DUKE ENVTL. L. & POL'Y F. 105 (2007) (reviewing SUWA's effect on litigation in the federal courts).
30. Montana Wilderness Study Act of 1977, Pub. L. No.95-150, 91 Stat. 1243 (1977). Nearly a million acres of USFS inventoried roadless lands in Montana are congressionally designated wilderness study areas having various management prescriptions. See id.
31. Id. § 2(a).
32. Id. § 3(a).
33. Veneman v. Mont. Wilderness Ass'n, 542 U.S. 917 (2004), vacating Mont.
34. Wilderness Ass'n v. U.S. Forest Serv., 314 F.3d 1146 (9th Cir. 2003). This was followed by a negotiated settlement to a Montana Wilderness Association lawsuit in 2007.
35. U.S. FOREST SERV., BEAVERHEAD-DEERLODGE NATIONAL FOREST: LAND AND RESOURCE MANAGEMENT PLAN, CORRECTED FINAL ENVIRONMENTAL IMPACT STATEMENT 428 (2008) [hereinafter BDNF REVISED PLAN]. The settlement requires the BDNF to manage the Sapphire and West Pioneer Wilderness Study Acts in accordance with applicable laws and policies pending completion of site-specific travel management plans in 2009. Id.
36. See generally Blumm & Bosse, supra note 25.
37. Wilderness.net, U.S. National Wilderness Preservation System Map, http://www.wilderness.net/index.cfm?fuse=NWPS (last visited Oct. 7, 2008).
38. Lee Metcalf Wilderness and Management Act of 1983, Pub. L. No.98-140, 97 Stat. 901 (1983).
39. Roadless Home Page, http://roadless.fs.fed.us (last visited Oct. 8, 2008) (roadless rules and related court decisions; for a map of inventoried roadless area in Montana, click on 2001 Roadless Rule, Maps, State Maps, Montana).
40. See, e.g., Northern Rockies Ecosystem Protection Act (NREPA), H.R. 1975, 110th Cong. (2007).
41. For an analysis of this schism and its implications for wilderness, see related essays by Bill Schneider, available at NewWest.net, The Natural Allies Chronology, http://www.newwest.net/main/article/the-natural-allies-chronology (last visited Oct 8, 2008).
42. See Travel Management; Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264, 68,265 (Nov. 9, 2005) (showing increases in motorized vehicle use on national forests).
43. See BDNF REVISED PLAN, supra note 29, at C-5. The BDNF's revised plan fails to recommend a number of qualifying roadless areas with very high " wilderness capability" scores for wilderness designation, reasoning that the areas are politically contentious, used for motorized recreation, or possess resource extraction potential.
44. See U.S. FOREST SERV., BEAVERHEAD-DEERLODGE NATIONAL FOREST: LAND AND RESOURCES MANAGEMENT PLAN: FOREST PLAN C-5 (2009) [hereinafter BDNF FOREST PLAN].
45. See John C. Adams & Stephen F. McCool, Finite Recreation Opportunities: The Forest Service, the Bureau of Land Management, and Off-Road Vehicle Management, 49 NAT. RESOURCES J. (forthcoming 2010) (showing why ORV interests are now the most potent obstacle to wilderness designation). The result, say these authors, " is that agency allocations for roadless areas frequently determine future wilderness designation." Id. Historic use arguments have also been used with some success to defeat various wilderness additions in Montana and Idaho. Id. And following the Supreme Court's SUWA decision, it is now more difficult to enforce the non-impairment of areas that are wilderness-eligible.
46. See Norton v. S. Utah. Wilderness Alliance, 542 U.S. 55 (2004). According to the USFS, there are lands within Inventoried Roadless Areas, recommended wilderness areas, and Montana wilderness study areas where forest plans have not prohibited motorized wheeled cross-country travel yearlong. This amounts to roughly 3.4 million acres of inventoried roadless areas, 169,000 acres of Forest Plan Recommended Wilderness Areas, and 430,000 acres of Montana wilderness study areas.
47. See U.S. BUREAU OF LAND MANAGEMENT, U.S. DEPT. OF INTERIOR & U.S. FOREST SERV., U.S. DEPT. OF AGRICULTURE, OFF-HIGHWAY VEHICLE FINAL ENVIRONMENTAL IMPACT STATEMENT AND PROPOSED PLAN AMENDMENT FOR MONTANA, NORTH DAKOTA, AND PORTIONS OF SOUTH DAKOTA 35, available at http://www.fs.fed.us/r1/dakotaprairie/ projects/ohv-tri-state-feis-1-01.pdf.
48. See BDNF REVISED PLAN, supra note 29, at C-5.
49. For background and case studies in collaboration, see the Red Lodge Clearinghouse, http://www.rlch.org (last visited Dec. 27, 2009).
50. See, e.g., Mark Rey, A New Chapter in the History of American Conservation, in CHALLENGES FACING THE U.S. FOREST SERVICE 22-25 (Daniel Kemmis, ed. 2008) (saying that a fortunate trend in collaborative conservation is evolving into a fourth chapter in the history of American conservation);
51. Dale Bosworth & Hutch Brown, After the Timber Wars: Community-Based Stewardship, 105 J. FORESTRY 271 (2007) (" The future of national forest management lies in Community-based stewardship" ).
52. A " collaborative and participatory approach to land management planning" is also required in the 2008 planning regulations. National Forest System Land Management Planning, 73 Fed. Reg. 21,468, 21,508 (Apr. 21, 2008).
53. See, e.g., Mitch Friedman, A Marshall Plan for the U.S. Forest Service, in CHALLENGES FACING THE U.S. FOREST SERVICE 26-29 (Daniel Kemmis ed. 2008) (making the case for community-based collaborative restoration);
54. Mitch Friedman, The Forest Service is Dead;
55. Long Live the Forest Service!, GRIST.ORG, Feb. 28, 2006, http://www.grist.org/article/friedmanl/ (last visited Dec. 27, 2009);
56. Ray Vaughan, A Modest Proposal for the U.S. Forest Service (Short Version), in Management by Exclusion: The Forest Service Use of Categorical Exclusions from NEPA: Oversight Hearing Before House Comm. on Natural Resources, 110th Cong. 86 (2007) (" The seemingly endless days of conflict and trench warfare among competing concerns wear down parties while the needs of the forests are sidelined." );
57. see also U.S. Forest Serv., Roadless Area Conservation National Advisory Committee, http://fs.usda.gov/Internet/FSE-DOCUMENTS/fsm8-036217.pdf (last visited Jan. 16, 2009).
58. Support for devolution was most apparent when state and local interests advocated commodity production on federal lands. See Robert L. Fischman & Angela M. King, Savings Clauses and Trends in Natural Resources Federalism, 32 WM. & MARY ENVTL. L. & POL'Y REV. 129 (2007) (reviewing the prevalence of cooperative federal-state arrangements in public land law).
59. See generally Robert B. Keiter, Breaking Faith With Nature: The Bush Administration and Public Land Policy, 27 J. LAND, RESOURCES, & ENVTL. L. 197, 249 (stating that for the Bush Administration " devolution represents a convenient means to an end and not a core principle" ).
60. Special Areas; Roadless Area Conservation, 66 Fed. Reg. 3,244 (Jan. 12, 2001).
61. Special Areas; State Petitions for Inventoried Roadless Area Management, 70 Fed. Reg. 25,654 (May 13, 2005).
62. Special Areas; State Petitions for Inventoried Roadless Area Management, 69 Fed. Reg. 42,636, 42,638 (July 16, 2004). Though critics argue that the petitions process was a clever way to either undermine or eviscerate the 2001 rule, its supporters counter that it helped fix the errors inherent in that rule (e.g., inaccurate maps) and helped build local support for roadless area protection.
63. See, e.g., Martin Nie, Interview with Mark Rey, HEADWATERS NEWS, Apr. 22, 2009, http://www.headwatersnews.org/p.Rey042209.html (addressing this debate and stating the intentions in promulgating the state petitions rule).
64. Special Areas; Roadless Area Conservation; Applicability to the National Forests in Idaho, 73 Fed. Reg. 61,456 (Oct. 16, 2008).
65. See, e.g., Complaint for Declaratory and Injunctive Relief, Jayne v. Rey (D. Idaho 2009) (4:09-cv-00015-BLW), available at http://newsroom.law360.com/ articlefiles/83679-Idaho%20Roadless%20Rule.pdf.
66. See infra notes 236-237 and accompanying text.
67. For related stories and guides see, e.g., Red Lodge Clearinghouse: Collaboration Handbook, http://rich.org/content/view/261/49/ (last visited Dec. 27, 2009);
68. Cooperative Conservation homepage, http://cooperativeconservation.gov/ (last visited Jan. 16, 2010).
69. -16 U.S.C. §§ 473-482, 551 (2006).
70. Id. § 528.
71. Id. § 1600.
72. Organic Administration Act of 1897, Act of June 4, 1897, ch. 2, 30 Stat. 11, 34-36 (1897) (codified as amended at 16 U.S.C. § 475 (2000)).
73. What Congress intended by the USFS Organic Act has been open to some interpretation throughout the years. See United States v. New Mexico, 438 U.S. 696, 719-725 (1978) (Powell, J., dissenting in part) (highlighting Congressional intent, as embodied within the USFS Organic Act, to protect more than simply water flows and timber supplies).
74. -16 U.S.C. § 528 (2006).
75. Id.
76. See Special Areas, Roadless Area Conservation, 66 Fed. Reg. 3244, 3246 (Jan. 12, 2001).
77. See Sierra Club v. Hardin, 325 F. Supp. 99, 122-124 (D. Alaska 1971).
78. See WILKINSON & ANDERSON, supra, note 10, at 139-51;
79. Martin Nie, The Bitterroot Controversy, in FORESTS AND FORESTRY IN THE AMERICAS: AN ENCYCLOPEDIA, http://www.encyclopediaofforestry.org/index.php? title==Currentissues01 (last visited Dec. 27, 2009).
80. -16 U.S.C. §§ 1600-1614 (2006).
81. Id. § 1604(e).
82. Id. § 1604(g)(3)(B).
83. The 1982 rule provided that " [f]ish and wildlife habitat shall be managed to maintain viable populations of existing native and desired non-native vertebrate species in the planning area." 36 C.F.R. § 219.19 (1982).
84. See Complaint, Am. Forest & Paper Ass'n v. Veneman, No.1:01-cv-00871-GK (D.D.C. 2001) (2000 forest planning regulations),
85. Citizens for Better Forestry v. U.S. Dep't of Agric., 481 F. Supp. 2d 1059, 1070, 1080, 1090 (N.D. Cal. 2007) (ruling the 2005 regulations are in violation of the APA, NEPA, and ESA);
86. Complaint of Petitioner, Defenders of Wildlife v. Schafer (N.D. Cal. 2008) (No. C08-02326) (challenge to 2008 regulations).
87. See. e.g., MARTIN NIE, THE GOVERNANCE OF WESTERN PUBLIC LANDS: MAPPING ITS PRESENT AND FUTURE (2009) (examining these shifts in political venue).
88. For a revealing look at how differently members of the Ninth Circuit Court of Appeals view National Forest management, see Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007) (part of a trilogy of cases where the Ninth Circuit wrestles with questions pertaining to scientific uncertainty, administrative discretion, judicial oversight, and their impacts on forest management and timber-dependent communities).
89. See, e.g., U.S. GOV'T ACCOUNTABILITY OFFICE, FOREST SERVICE DECISION-MAKING: A FRAMEWORK FOR IMPROVING PERFORMANCE (GAO/RCED-97-71) 5 1997 (" Strengthening accountability for performance within the Forest Service and improving the efficiency and effectiveness of its decision-making is contingent on establishing long-term strategic goals that are based on clearly defined mission priorities. However, agreement does not exist on the agency's long-term strategic goals. This lack of agreement is the result of a more fundamental disagreement, both inside and outside the Forest Service, over which uses the agency is to emphasize under its broad multiple-use and sustained yield mandate and how best to ensure the long-term sustainability of these uses." ).
90. See, e.g., id.
91. See SELECTED LAWS, supra note 3 (providing an 810 page listing of these legal authorities).
92. See U.S. Forest Service, Threatened, Endangered & Sensitive Species, http://www.fs.fed.us/biology/tes/ (providing a listing of such species on national forest lands) (last visited Dec 28, 2009).
93. See, e.g., Water Rights Compact State of Montana United States of America, Department of Agriculture, Forest Service, MONT. CODE ANN. § 85-20-1401 (2009), available at http://data.opi.mt.gov/bills/mca/85/20/85-20- 1401.htm.
94. See, e.g., Martin Nie, The Use of Co-Management and Protected Land Use Designations to Protect Tribal Cultural Resources and Reserved Treaty Rights on Federal Lands, 48 NAT. RESOURCES J. 585 (2008) (reviewing cases of reserved treaty rights on federal forests and rangelands).
95. See Regional Ecosystem Offices, Northwest Forest Plan (NWFP) Overview, http://www.reo.gov/general/aboutNWFP.htm (last visited Jan. 16, 2010).
96. -16 U.S.C. § 1 (2006).
97. Id.
98. -16 U.S.C. § 161.
99. Id. § 21 (2006).
100. Units in the National Park system are subject to the 1916 Organic Act to the extent that it does not conflict with provisions specifically applicable to them. 16 U.S.C. § 1c(b).
101. Professor Robert Fischman has extensively analyzed the relationship between organic and establishment legislation in the context of national parks, and more extensively, the national wildlife refuge system. See Robert L. Fischman, The Problem of Statutory Detail in National Park Establishment Legislation and Its Relationship to Pollution Control Law, 74 DENVER U. L. REV. 779 (1997).
102. See id. (reviewing the types of provisions found in Park establishment legislation).
103. -16 U.S.C. § 668dd (2006).
104. Id. § 668dd(a).
105. Id. § 668dd(a)(4)(d).
106. Pub L. No.105-57, 111 Stat. 1252 (codified at 16 U.S.C. § 668dd).
107. Id. see generally ROBERT FISCHMAN, THE NATIONAL WILDLIFE REFUGES: COORDINATING A CONSERVATION SYSTEM THROUGH LAW (2003).
108. Robert L. Fischman, The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation, 29 ECOLOGY L.Q. 457, 618 (2002).
109. Id. at 462.
110. See generally Martin Nie, Governing the Tongass: National Forest Conflict and Political Decision Making, 36 ENVTL. L. 385 (2006).
111. Alaska National Interest Lands Conservation Act, Pub. L. No.96-487, tit. VII, § 705(a), 94 Stat. 2371, 2420 (1980).
112. The TTRA directs the Secretary to manage " in perpetuity" lands designated in Tongass Forest Plans as Land Use Designation II (LUD II). Pub. L. No.101-626, § 201, 104 Stat. 4426, 4429 (1990). These congressionally protected " LUD II" lands are generally to be managed in a roadless state to retain their wildland character. See S. REP. No. 101-261, at 15 (1990).
113. " Subject to appropriations, other applicable law, and the requirements of [NFMA],... the Secretary shall, to the extent consistent with providing for the multiple use and sustained yield of all renewable forest resources, seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle." Tongass Timber Reform Act, Pub. L. No.101-626 §101 (1990) (amending 16 U.S.C. § 539d(a)).
114. See, e.g., Natural Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797 (9th Cir. 2005).
115. See Alaska Wilderness Recreation & Tourism Ass'n v. Morrison, 67 F.3d 723, 731 (9th Cir. 1995).
116. Id.
117. See U.S. FOREST SERV., TONGASS LAND AND RESOURCE MANAGEMENT PLAN FINAL ENVIRONMENTAL IMPACT STATEMENT, PLAN AMENDMENT: RECORD OF DECISION 17-18 (2008) (explaining the TTRA market mandate in terms of providing for an integrated forest products industry in southeast Alaska).
118. See id. at APPENDIX L, VOL.3, 127-130 (summarizing and responding to divergent interpretations of the TTRA's market demand provision).
119. Id.
120. Pub. L. No.105-277, div. A, sec. 101(e), tit. IV, § 401, 112 Stat. 2681-3305 (1998) (codified at 16 U.S.C. § 2104 (2006)) [hereinafter Herger-Feinstein Act].
121. Id. For history and background, see Quincy Library Group, http://www.qlg.org/ (last visited Jan. 14, 2009).
122. Herger-Feinstein Act, supra note 100, § 401(b)(2), 112 Stat. 2681-3305
123. Id. § 401, 112 Stat. 2861-3305
124. Id. § 401(c)(3), 112 Stat 2681-3306
125. The Sierra Nevada Forest Plan is available at U.S. Forest Serv., Sierra Nevada Forest Plan Amendment, http://www.fs.fed.us/r5/snfpa/ (last visited Jan. 29, 2010).
126. See, e.g., Dave Owen, Prescriptive Laws, Uncertain Science and Political Stories: Forest Management in the Sierra Nevada, 29 ECOLOGY L. Q. 747 (2002) (analyzing the problems created by the different management schemes for the same forests).
127. See, e.g., id.
128. See Jane Braxton Little, A Quiet Victory in Quincy, HIGH COUNTRY NEWS, Nov. 9, 1998, available at http://www.hcn.org/issues/142/4591.
129. See Keiter, supra note 43, at 229-233 (reviewing this mismatch and the resulting litigation).
130. See U.S. FOREST SERV., STATUS REPORT TO CONGRESS F.Y. 2006: HERGER FEINSTEIN QUINCY LIBRARY GROUP FOREST RECOVERY ACT PILOT PROJECT (2007), available at http://www.fs.fed.us/r5/hfqlg/monitoring/report-to-congress/2006/ fy06-report-to-congress-web-final.pdf (stating that fluctuating budgets, appeals and litigation have affected accomplishment targets);
131. Quincy Library Group, Appeal and Litigation Summary, http://www.qlg.org/ pub/act/appeals.htm (last visited Jan. 16, 2010) (stating that " the NEPA activist's strategy of filing appeals and law suits continues to prevent the strategic implementation of hazardous fuel reduction and forest restoration projects in the eight county area of the Herger Feinstein Quincy Library Group pilot project" ).
132. Ctr. For Biological Diversity v. Rey, 526 F.3d 1228 (9th Cir. 2009).
133. Laws notwithstanding, in many respects Congressional appropriations really determine how a particular national forest is managed. As former USFS Chief Jack Ward Thomas puts it, " Funding is the fuel that drives most land management activities." Jack Ward Thomas, Stability and Predictability in Federal Forest Management: Some Thoughts from the Chief, 17 PUB. LAND & RESOURCES L. REV. 9, 11 (1996).
134. For a look at how the appropriations process was used to govern the Tongass National Forest, see Nie, supra note 89, at 445-449
135. See Pub. L. No.108-447, div. E, tit. III, sec. 339, 118 Stat 3039, 3103 (2005);
136. see also LINDA LUTHER, CONG. RESARCH SERV., PUB. NO. RL33267, THE NATIONAL ENVIRONMENTAL POLICY ACT: STREAMLINING NEPA 19 (2006).
137. Emergency Supplemental Appropriations for Additional Disaster Assistance, for Anti-Terrorism Initiatives, for Assistance in the Recovery from the Tragedy that Occurred at Oklahoma City, and Rescissions Act Pub. L. No.104-19, tit. II, sec. 2001, 109 Stat. 194, 240-47 (1995).
138. Proclamation No. 4611, 43 Fed. Reg. 57,009, 57,131 (Dec. 1, 1978).
139. Proclamation No. 7295, 65 Fed. Reg. 24,095 (Apr. 25, 2000).
140. Pub. L. No.106-351, 114 Stat. 1362 (2000).
141. For a comprehensive listing of " special recreation and conservation overlays," see GEORGE CAMERON COGGINS et al., FEDERAL PUBLIC LAND AND RESOURCES LAW 946-47 (2007). Included in the listing for National Forest lands are special management areas (such as Greer Spring, Missouri, 16 U.S.C. § 539h (2006)), recreation management areas (such as Fossil Ridge, Colorado, 16 U.S.C. § 539i (2006)), protection areas (such as Bowen Gulch, Colorado, 16 U.S.C. § 539j (2006)), scenic areas (such as Columbia River Gorge, Oregon-Washington, 16 U.S.C. § 544-544m (2006)), scenic research areas (such as Opal Creek, Oregon, 16 U.S.C. § 545b (2006)), national scenic areas (such as Mount Pleasant, Virginia, 16 U.S.C. § 545 (2006)), national forest scenic areas (such as Mono Basin, California, 16 U.S.C. § 543 (2006)), and national preserves (such as Valles Caldera, New Mexico, 16 U.S.C. § 698v (2006)).
142. Proclamation No. 28, 27 Stat. 1027 (1892). Grazing and trespass was prevented by the Bull Run Trespass Act of 1904. 58 Pub. L. No. 206, 33 Stat 526. The area provides the city of Portland, Oregon, its main source of domestic water, and when USFS management of the area threatened this supply, Congress intervened with legislation.
143. See Donald H. Blanchard, Clearcutting the Bull Run Watershed: A Standard of Reasonableness in Forest Service Decision-Making, 8 ENVTL. L. 569, 580-84 (1977-1978) (reviewing the history preceding passage of the Bull Run Act). The Bull Run Watershed Management Act provides various types of watershed protections for the unit Pub. L. No. 95-200, 91 Stat. 1425 (1977) (codified at 16 U.S.C. 482b (2006)). Subsequent legislation has expanded the area and types of protection in response to USFS management, and it is currently managed in cooperation and partnership with the Portland Water Bureau. See Pub. L. No. 104-208, 110 Stat. 3001 (1996) (codified at 16 U.S.C. 482b (2006)) (prohibiting the cutting of trees in parts of the unit with special exceptions); Pub. L. No. 107-30, 115 Stat. 210 (2001) (protecting the Little Sandy River as part of the Bull Run);
144. see also H.R. 427, H.R. 434, and H.R. 451: Hearing Before the House Comm. on Resources, 107th Cong. 47-56 (Apr. 25, 2001) (reviewing USFS management of the area and why permanent protection is desired by bill proponents).
145. Pub. L. No.106-506, 114 Stat. 2351 (2000). To this end, the law authorizes spending $300 million over ten years to restore Lake Tahoe, though Congress has not appropriated nearly that sum in subsequent years. The disparity between what was authorized and what is appropriated by Congress resulted in proposals to provide a more guaranteed stream of funding.
146. See Allison A. Freeman, Congress Looks to Guarantee Restoration Funds, LAND LETTER (Sept. 4, 2003) (on file with authors).
147. Pub. L. No.88-577, 78 Stat 890 (1964); 16 U.S.C. § 1131-1136 (2006).
148. See ROSS W. GORTE, CONG. RESEARCH SERV., PUB. No.98-848 ENR, WILDERNESS LAWS: PROHIBITED AND PERMITTED USES 1998;
149. NATURAL RESOURCES LAW CTR, SPECIAL USE PROVISIONS IN WILDERNESS LEGISLATION 2004, available at http://www.colorado.edu/law/centers/nrlc/ projects/wilderness/SpecialUseProvisions. For a more critical examination,
150. see GEORGE NICKAS & KEVIN PROESCHOLDT, KEEPING THE WILD IN WILDERNESS: MINIMIZING NON-CONFORMING USES IN THE NATIONAL WILDERNESS PRESERVATION SYSTEM (2005), available at http://www.wildernesswatch.org/pdf/ Special%20Provisions.pdf.
151. Pub. L. No.95-150, 91 Stat. 1243 (1977); see supra notes 26-28 and accompanying text.
152. For extensive analysis of alternative designations, see NATURAL RESOURCES LAW CTR., PROTECTIVE DESIGNATIONS ON FEDERAL LANDS: CASE STUDIES OF NATIONAL CONSERVATION AREAS, NATIONAL MONUMENTS, NATIONAL PARKS, NATIONAL RECREATION AREAS, AND WILDERNESS AREAS 2 (2004). The Center concludes that areas with various non-wildemess designations " were unquestionably better off than if they had been managed under the default principle of multiple use." Id. The move from a multiple use mandate to a more dominate use mandate, says the Center, " can allow the managing agency to focus on the special resources of concern in the area." Id. at 16.
153. Id.
154. Montana wilderness bills introduced in 1984, 1986, and 1987 included wilderness, national recreation, and special management area designations for selected lands. See S. 2850, 98th Cong. (1984), S. 2790, 99th Cong. (1986), and H.R. 2090, 100th Cong. (1987);
155. S. 1478, 100th Cong. (1987).
156. Pub. L. No.98-140, 97 Stat. 901 (1983). Subsequent management of the Cabin Creek Area has been controversial, with debate centered on how to meet the Act's purpose of preserving the Area and its wildlife while providing compatible historic recreational (motorized) use.
157. See Faye B. McKnight, The Use of " Special Management Areas" as Alternatives to Wilderness Designations or Multiple Use Management of Federal Public Lands, 8 PUB. LAND L. REV. 61 (1987) (using the Cabin Creek case to examine the strengths and weaknesses of alternative protected land designations).
158. See NATURAL RESOURCES LAW CTR., supra note 125, at 16-17.
159. Wilderness politics often centers on the " release" of non-designated lands to multiple use management and whether or not such lands might be considered for wilderness designation in subsequent forest plans. Conservationists favor a " soft release" whereby non-designated lands would get another look in future planning processes. Others prefer " hard release" language that permanently disqualifies an area from future wilderness consideration.
160. See generally ROSS W. GORTE, WILDERNESS LEGISLATION: HISTORY OF RELEASE LANGUAGE, 1979-1992, CRS REPORT FOR CONGRESS, 93-280 ENR 1993 (explaining the history, use, and questionable relevance of release language in new wilderness legislation).
161. Pub. L. No.106-399, § 101, 114 Stat. 1655, 1658 (2000) (codified at 16 U.S.C. § 460nnn-11 (2006)).
162. Id. §§ 101, 201, 114 Stat. at 1658.
163. -16 U.S.C. § 460nnn-51 (2006).
164. JANINE BLAELOCH & KATIE FITE, QUID PRO QUO WILDERNESS: A NEW THREAT TO PUBLIC LANDS 1 (2005), available at http://www.westernlands.org/quid-pro-quo. pdf.
165. See, e.g., Clark County Conservation of Public Land and Natural Resources Act of 2002, Pub. L. No.107-282, 16 Stat. 1994 (2002) (codified at 16 U.S.C. § 460qqq (2006)); Lincoln County Conservation, Recreation, and Development Act of 2004, Pub. L. No. 108-424, 118 Stat. 2403 (2004) (codified at 16 U.S.C. § 1241 (2006)); White Pine County Conservation, Recreation, and Development Act of 2006, Pub. L. No. 109-432, tit. III, § 301, 120 Stat. 2922, 3028 (2006) (codified at 16 U.S.C. § 1241 (2006)); Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, tit. I, subtit. O, 123 Stat. 991 (2009).
166. See, e.g., Central Idaho Economic Development and Recreation Act H.R. 222, 110th Cong. (2007).
167. Pub. L. No. 106-248; 114 Stat. 598 (2000) (codified at 16 U.S.C. § 698v (2006)).
168. U.S. GOV'T ACCOUNTABILITY OFFICE, PUB. NO. GAO-06-98, CALDERA TRUST HAS MADE SOME PROGRESS, BUT NEEDS TO DO MORE TO MEET STATUTORY GOALS 1 (2005).
169. -16 U.S.C. § 698v(a)(12) (2006).
170. Id. § 698v-5(a).
171. Id. § 698v(b).
172. Id. §698v(a)(8). Of course, to " allow and provide" for financial self-sufficiency is different than requiring it and progress on this front has been mixed. See generally GOV'T ACCOUNTABILITY OFFICE, supra note 138.
173. Blackfood Clearwater Stewardship Project http://www.blackfootclearwater. org/ (last visited Jan. 21, 2009).
174. BLACKFOOT CLEARWATER LANDSCAPE STEWARDSHIP PROJECT, PROJECT DESCRIPTION 1 (2007) (on file with authors).
175. Id. at 1-2.
176. Id. at 3.
177. Id.
178. Id. at 2.
179. See DRAFT FOR DISCUSSION, THREE RIVERS CHALLENGE COOPERATIVE STEWARDSHIP, RESTORATION, RECREATION AND CONSERVATION ACT OF 2009 (2009), available at http://www.threeriverschallenge.com/3RC%20legislation-Nov%202008.pdf [hereinafter THREE RIVERS CHALLENGE];
180. see also Rick Bass, Yaak Forest Group Champions Sustainable Local Economy, NEW WEST, Jan. 19, 2009, available at http://www.newwest.net/topic/ article/yaak-forest-group-champions-sustainable-local-economy/C41/L41/.
181. See generally THREE RIVERS CHALLENGE, supra note 149.
182. Id. it 1.
183. See generally id.
184. See Press Release, Clearwater Basin Collaborative Announced (May 29, 2008), available at http://crapo.senate.gov/media/newsreleases/release -full.cfm?id=298110.
185. In the interest of full disclosure, Martin Nie is a Board member of the Great Burn Study Group that is represented on the Collaborative. Reports, timelines, and minutes of the Clearwater Basin Collaborative are on file with Martin Nie.
186. See Northeast Washington Forestry Coalition, http://www. newforestrycoalition.org/ (last visited Jan. 21, 2009).
187. This group seeks to resolve conflict by providing guidance and recommendations regarding how the Colville ought to be managed, but does so mostly through existing planning processes. At one point however, the group sought "authorities to establish restoration and responsible forestry zones, designate new wilderness, and provide funding to pay for new recreation facilities including trails, community wildfire protection and forest restoration." NW. WASH FOREST COALITION, BLUEPRINT FOR THE COLVILLE NATIONAL FOREST: FREQUENTLY ASKED QUESTIONS (2008) (on file with authors).
188. A working group of the "Tongass Futures Roundtable" introduced concept legislation for discussion in 2009. Among the draft provisions include the designation of conservation areas, a community stewardship forest a federal working forest and the transfer of selected federal lands to private ownership. TONGASS FUTURES ROUNDTABLE, CONCEPT FOR DISUCSSION (2009) (draft on file with authors).
189. For background on the Tongass Futures Roundtable, see Tongass Futures Roundtable, http://www.tongassfutures.net/ (last visited Jan. 21, 2009).
190. BDNF REVISED Plan, supra note 29, at 2. The Beaverhead and Deerlodge National Forests were merged into one administrative unit in 1996.
191. Examination of the Forest Plan Revision Process in Region 1, Hearing Before the S. Comm. on Appropriations, 109th Cong. (2005) (statement of John Gatchell).
192. See PETER N. ZIMMERMAN & ERIK J. TOMASIK, U.S. FOREST SERVICE, NORTHERN REGION, NEPA APPEALS AND LITIGATION (2008) (on file with authors).
193. These include the Native Ecosystems Council, the Ecology Center, and the Alliance for the Wild Rockies.
194. U.S. FOREST SERV., BEAVERHEAD-DEERLODGE NATIONAL FOREST: LAND AND RESOURCE MANAGEMENT PLAN, CORRECTED FINAL ENVIRONMENTAL IMPACT STATEMENT 293 (2009), available at http://fs.usda.gov/Internet/FSE-DOCUMENTS/stelprdb5052782. pdf.
195. Id. at 277.
196. BDNF REVISED PLAN, supra note 29, at 428.
197. See Mont Wilderness Ass'n v. U.S. Forest Serv., 146 F. Supp. 2d 1118, 1121 (2001).
198. As the Montana District Court summarized the situation, "[T]he controversy at hand questions what it means to 'maintain' these areas-in-limbo. Did Congress intend to keep the land and its use as it was in 1977? Or did Congress intend to preserve the potential of the land without major concern for its use while it was studied?" Mont. Wilderness Ass 'n., 146 F. Supp. 2d. 1118, 1122 (2001).
199. See supra note 29 (reviewing this case in light of the Supreme Court's SUWA decision).
200. The factors most responsible for the industry's demise is a perennial debate in Montana. On one side are those quick to blame the USFS, mostly because of diminished supply. See, e.g., CHARLES E. KEEGAN & TODD A. MORGAN, UNIV. OF MONTANA, BUREAU OF BUSINESS AND ECONOMIC RESEARCH, MONTANA'S TIMBER AND FOREST PRODUCTS INDUSTRY SITUATION 2004 (2005)
201. (report prepared for Montana's congressional delegation). On the other side are those who see international market trends as being most significant. See, e.g., Bosworth & Brown, supra note 41, at 272 (reviewing studies showing how highly productive plantation forests in the U.S. and abroad "have erased the postwar need for large-scale timber supplies from national forest land").
202. Bosworth & Brown, supra note 41, at 272.
203. Imports of softwood timber from British Columbia have challenged several mills in Montana whom have subsequently applied for Trade Adjustment Assistance, as provided in the Trade Act of 1974. 19 U.S.C. § 2273 (2006). A listing of petition determinations in Montana, which include several timber mills is available at U.S. Dep't of Labor, Trade Adjustment Assistance, http://www.doleta.gov/tradeact/taa/taa-search.cfm (search by state) (last visited Jan. 27, 2009).
204. In its determination of eligibility, the Department of Labor found that in many of these cases an increased reliance on import purchases among the mills' declining customers and that such imports contributed significantly to decline in sales. See Sun Mountain Lumber, Inc., Trade Adjustment Assistance Case No.64233 (2008), available at http://www.doleta.gov/tradeact/taa/ taadecisions/taadecision.cfm?taw=64233.
205. See, e.g., Examination of the Forest Plan Revision Process in Region 1, supra note 158, at 12, 15, 30 (statements of Charles Keegan, Sherman Anderson, and Mike Hillis);
206. Management Challenges on Montana's National Forests, Oversight Field Hearing Before the Comm. on Resources, 108th Cong. 22-23 (2003) (statement of Sherman Anderson).
207. See, e.g., Examination of the Forest Plan Revision Process in Region 1, supra note 158, at 12, 15, 30 (statements of Charles Keegan, Sherman Anderson, and Mike Hillis).
208. Id.
209. U.S. FOREST SERV., FOREST PLAN: BEAVERHEAD NATIONAL FOREST 1 (1986);
210. U.S. FOREST SERV., FOREST PLAN: DEERLODGE NATIONAL FOREST (1987). In 1986, BDNF was still two separate forests (the Beaverhead National Forest and the Deerlodge National Forest), such that two forest plans were initially created.
211. See 36 C.F.R. §§ 219.35, 219.10(g) (1982);
212. U.S. FOREST SERV., RECORD OF DECISION FOR THE FINAL ENVIRONMENTAL IMPACT STATEMENT AND REVISED LAND AND RESOURCE MANAGEMENT PLAN, BEAVERHEAD-DEERLODGE NATIONAL FOREST (2009), available at http://fs.usda.gov/Internet/FSE-DOCUMENTS/ stelprdb5052838.pdf.
213. Examination of the Forest Plan Revision Process in Region 1, supra note 158, at 16 (statement of Sherman Anderson).
214. Id. at 20 (statement of John Gatchell).
215. For more information about BDP members, see Beaverhead-Deerlodge Partnership: Montanans Working Together, http://www.bhdlpartnership.org/ (last visited Jan. 14, 2010).
216. ECOSYSTEM RESEARCH GROUP, PARTNERSHIP STRATEGY FOR THE BEAVERHEAD-DEERLODGE NATIONAL FOREST 1 (2006) [hereinafter PARTNERSHIP STRATEGY].
217. See BDNF REVISED PLAN, supra note 29 (providing an overview and analysis of these alternatives).
218. Beaverhead-Deerlodge Conservation, Restoration and Stewardship Act of 2007 (Proposed Bill) (2007) (on file with authors).
219. See supra notes 289-300 and accompanying text.
220. See id.
221. Beaverhead-Deerlodge Conservation, Restoration and Stewardship Act of 2007 (Revised Proposed Bill), tit. II, § 201 (2007) [hereinafter BDP Proposed Bill].
222. See supra note 127.
223. BDNF REVISED PLAN, supra note 29, at 284.
224. Pub. L. No.88-577, 78 Stat 890 (codified at 16 U.S.C. §§ 1131-1136 (2006)).
225. See, e.g., John C. Russell, A SOCIAL ANALYSIS TO FINALIZE THE BEAVERHEAD-DEERLODGE NATIONAL FOREST PLAN (2006), available at http://www.fs.fed.us/rl/b-d/forest-plan/soc-assess/social-analysis120906.pdf (analyzing the mixed reactions to the BDP proposal).
226. See supra notes 26-28 and accompanying text;
227. see also Bill Schneider, The Beaverhead-Deerlodge Partnership: Right Idea, Wrong Bill, NEW WEST, Nov. 28, 2008, available at http://www.newwest.net/ topic/article/me-beaverhead-deerlodge-partnership-right-idea-wrong-bill/C41/L41/ (questioning the decision to sacrifice portions of the West Pioneers and Sapphire Wilderness Study Areas in order to reach compromise).
228. See, e.g., George Wuerthner, The Problems with the Beaverhead Deerlodge Partnership (Nov. 20, 2007), http://www.bhdlpartnership.org/PDFs/Critics- Wuerthner-Document-11-20-07.pdf (last visited Jan. 22, 2009).
229. PARTNERSHIP STRATEGY, supra note 177, at 5.
230. Id. at 1.
231. -16 U.S.C. §1604(k) (2006).
232. BDP Proposed Bill, supra note 182.
233. Id. § 3 (emphasis added).
234. Id.
235. Id. § 3.
236. Id. tit. I, § 101(d).
237. BDNF REVISED PLAN, supra note 29, at 443. This does not include the 1,614,000 acres designated as unsuitable lands but where timber harvest is allowed in order to meet other resource objectives. Id. at 444.
238. BDP Proposed Bill, supra note 182, tit I, § 102.
239. PARTNERSHIP STRATEGY, supra note 177, at 12.
240. BDP Proposed Bill, supra note 182, § 3.
241. Id. § 102.
242. Id. § 103.
243. Pub L. No.105-277, § 347, 112 Stat. 2681-298 (1998). This authority was initially implemented on a pilot basis, but Congress extended and expanded the authority in 2003. Pub. L. No. 108-7, div. F, tit. III, § 323, 117 Stat. 11, 275 (2003). For more background see Stewardship End Result Contracting, 68 Fed. Reg. 38,285, 38,286 (June 27, 2003).
244. -16 U.S.C. § 2104(d) note (2006).
245. Id.
246. Id.
247. See U.S. GOV'T ACCOUNTABILITY OFFICE, PUB. NO. GAO-09-23, FEDERAL LAND MANAGEMENT: USE OF STEWARDSHIP CONTRACTING IS INCREASING, BUT AGENCIES COULD BENEFIT FROM BETTER DATA AND CONTRACTING SERVICE 10 (2008) [hereinafter GAO STEWARDSHIP CONTRACTING].
248. See id. at 5.
249. PARTNERSHIP STRATEGY, supra note 177, at 5.
250. For extensive coverage, perspectives, and a chronology, see Bill Schneider, Montana's Wilderness Drought, a Chronology, NEW WEST, July 16, 2009, available at http://www.newwest.net/topic/article/montanas-wilderness-drought-a- chronology/C41/L41/.
251. See, e.g., Letter from Beaverhead County Commissioners to Beaverhead Deerlodge Partnership Members, May 1, 2006 (on file with authors);
252. Madison County Board of Commissioners, Madison County Speaks Out on the Partnership Strategy (July 19, 2006) (on file with authors);
253. see also Russell, supra note 186, at 11.
254. U.S. Forest Serv., USFS Northern Region Non-Monetary Litigation, 1985-Present (on file with authors);
255. U.S. Forest Serv., Beaverhead-Deerlodge National Forest: All Appeals, All Types (2008) (on file with authors).
256. For in-depth treatment of this paradox, see the collective work of Robert B. Keiter, including KEEPING FAITH WITH NATURE: ECOSYSTEMS, DEMOCRACY, AND AMERICA'S PUBLIC LANDS (2003).
257. See, e.g., PUBLIC LAND LAW REVIEW COMMISSION, ONE THIRD OF THE NATION'S LAND 3, 48 (1970), available at http://hdl.handle.net/1957/11183 (recommending a dominant use approach to public lands management);
258. see also the collective work of Marion Clawson, including The Concept of Multiple Use Forestry, 8 ENVTL. L. 281 (1978)
259. and FORESTS FOR WHOM AND FOR WHAT? (1975).
260. -16 U.S.C. § 698v-3 (2006) (establishing a multiple use sustained yield purpose of the Preserve).
261. See April Reese, Cash-Strapped Valles Caldera Preserve Seeks New Revenue Amid Calls for Federal Takeover, LAND LETTER, Mar. 19, 2009, available at http://www.eenews.net/Landletter/2009/03/19/5/;
262. April Reese, Program in Valles Caldera National Preserve Comes Under Fire, LAND LETTER, Dec. 8, 2005, available at http://original.rich.org/news/12- 08-05-valles.html;
263. April Reese, Valles Caldera "Experiment" Lacking in Public Input, Critics Say, LAND LETTER, Dec. 14, 2006.
264. See 42 U.S.C. §§ 4321-4347 (2006); 16 U.S.C. §§ 1600-1614 (2006); 16 U.S.C. §§ 1531-1544 (2006).
265. See. e.g., Earth Island Inst v. U.S. Forest Serv., 351 F.3d 1291 (9th Cir. 2003);
266. Envtl. Prot Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1008 (9th Cir. 2006) (rejecting NEPA, NFMA, and ESA claims against a fuel reduction project);
267. Sierra Nevada Forest Prot Campaign v. U.S. Forest Serv., No.Civ. S042023MCEGGH, 2005 WL 1366507, at *1 (E.D. Cal. May 26, 2005), aff'd, 166 F. App'x 923 (9th Cir. 2006) (rejecting a NEPA cumulative effects challenge to a fuel reduction project);
268. Sierra Nevada Forest Prot Campaign v. Tippin, No. CIVS06-00351, 2006 WL 2583036, at *1-2, 21 (E.D. Cal. Sept 6, 2006) (finding NEPA and NFMA violations related to the protection of the California Spotted Owl);
269. see also Keiter, supra note 43, at 229-233 (analyzing these cases and others).
270. See Fischman, supra note 80 (analyzing the problems associated with the trend of increased congressional involvement in national park management).
271. Long favored by scholars and scientists, the rhetoric of adaptive management is now embraced by the USFS, on paper at least. See, e.g., 73 Fed Reg. 21,468 (Apr. 21, 2008) (stating that land management plans are strategic in nature and "one stage in an adaptive cycle of planning"). Monitoring is a key part of any adaptive approach to forest management. Until monitoring becomes required and funded, we are suspicious of agency promises of adaptive management.
272. See generally THOMAS H. DELUCA, GREGORY H. APLET, & Bo WILMER, THE WILDERNESS SOCIETY, THE UNKNOWN TRAJECTORY OF FOREST RESTORATION: A CALL FOR ECOSYSTEM MONITORING 5 (Science & Policy Brief, Dec. 2008), available at http://wilderness.org/files/Ecosystem-Monitoring-Brief.pdf ("Federal land management has generally exhibited a chronic omission of feedbacks in dictating future management approaches.");
273. U.S. GOV'T ACCOUNTABILITY OFFICE, PUB. NO. GAO-06-670, WILDLAND FIRE REHABILITATION AND RESTORATION: FOREST SERVICE AND BLM COULD BENEFIT FROM IMPROVED INFORMATION ON STATUS OF NEEDED WORK (2006) (reviewing the lack of monitoring in fire rehabilitation and restoration projects).
274. See, e.g., Con H. Schallau & Richard M. Alston, The Commitment to Community Stability: A Policy or Shibboleth, 17 ENVTL. L. 429 (1987). They note that "[p]ublic land legislation contains a general theme of concern for the economic stability of communities. However, there is little explicit statutory direction on how large a role community stability concerns should play in Forest Service decisions." Id. at 460 (internal citation omitted). They go on to say that "[c]onfusion about community stability stems from the fact that although Congress frequently reaffirms its desire to achieve community stability, it has not provided any operational guidelines for doing so." Id. at 479.
275. See also REPORT OF THE SOCIETY OF AMERICAN FORESTERS NATIONAL TASK FORCE ON COMMUNITY STABILITY 13 (1989) (on file with authors) (noting that "the agency's community stability policy is permissive rather than prescriptive."); James P. Perry, Community Stability: Is There a Statutory Solution? in Community Stability in Forest-Based Economics, Proceedings of a Conference in Portland, Oregon, November 16-18, at 32 (Dennis C. Le Master & John H. Beuter, eds. 1987) (noting that "Congress has not, in any legislation which applies generally to all National Forest System lands, provided any direction that requires the agencies to meet a community stability requirement");
276. Sarah F. Bates, Public Lands Communities: In Search of a Community of Values, 14 PUB. LAND L. REV. 81 (1993) (tracing the concept's lineage and debate).
277. The short-lived Sustained Yield Forest Management Act of 1944, Pub. L. No.78-273, 58 Stat. 132, provided the most explicit statutory recognition of community stability. The Act established sustained yield forest management units and aimed to "promote the stability of forest industries, of employment, of communities, and of taxable forest wealth, through continuous supplies of timber." Id. Termination of the program began in 1953.
278. See Bates, supra note 221, at 93-94.
279. For former USFS Chief Jack Ward Thomas, "[g]iven the myriad of interacting variables, it is time for concerned citizens and leaders to accept the reality that the dream of a stable timber supply from public lands is an illusion." Thomas, supra note 112, at 14.
280. See, e.g., SAMUEL T. DANA & SALLY FAIRFAX, FOREST AND RANGE POLICY: ITS DEVELOPMENT IN THE UNITED STATES 332 (2d ed. 1980).
281. Consider, for example, conflict over BLM management of O&C grant lands, governed under the Oregon and California Lands Act of 1937, 43 U.S.C. §§ 1181a-1181j (2006). Unlike other federal land laws and regulations, the O&C Act includes specific but contested language pertaining to community stability. Classified lands shall be managed ... for permanent forest production, and the timber thereon shall be sold, cut and removed in conformity with die principal [sic] of sustained yield for the purpose of providing a permanent source of timber supply, protecting watersheds, regulating stream flow, and contributing to the economic stability of local communities and industries, and providing recreational facilties [sic]. 43 U.S.C. § 1181a. Once sustained yield is determined, the Act also requires timber from O&C lands to be sold annually at "not less than one-half billion feet board measure, or not less than the annual sustained yield capacity when the same has been determined and declared ... or so much thereof as can be sold at reasonable prices on a normal market." Id. Associated regulations state that sustained-yield units contain enough land "to provide, insofar as practicable, a permanent source of raw materials to support local communities and industries, giving due consideration to established forest products operations." 43 C.F.R. § 5040.1 (2009). Whether or not the O&C Act is a multiple or dominant use statute has received a lot of debate. The Courts have also wrestled with the Act's provisions and how they were meant to be prioritized. Though timber shall be supplied, O&C lands are also subject to NEPA, the ESA, and other environmental statutes, thus setting up multiple conflicts over their management. See, e.g., Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174 (9th Cir. 1990) (interpreting the O&C Act as a dominant use statute that limits the ability of the BLM to manage for non-timber purposes).
282. But see Deborah Scott & Susan Jane M. Brown, The Oregon and California Lands Act: Revisiting the Concept of "Dominant Use, " 21 J. ENVTL. L. & LITIG. 259, 311-14 (2006) (challenging the dominant use interpretation of the O&C Act and putting forth a broader conception of community stability).
283. The Alaska National Interest Lands Conservation Act (ANILCA) required Congress to provide at least $40 million annually so that the Tongass could meet its mandate of supplying at least 450 million board feet of timber for sale each year. See Alaska National Interest Lands Conservation Act Pub. L. No.96-487, § 705(a), 94 Stat. 2371, 2420 (1980) (codified at 16 U.S.C. 539(d) (2006)). This timber supply mandate ran roughshod over other values and legal obligations. See Nie, supra note 89, at 400-03. As discussed above, ANILCA's controversial timber supply mandate was replaced with language requiring the Tongass to seek to meet market demand for Tongass timber.
284. See supra notes 91-99 and accompanying text.
285. See, e.g., Montana Forest Restoration, Restoring Montana's Forests: A New Approach, http://www.montanarestoration.org (last visited Jan. 28, 2009) (detailing a collaborative approach used to screen and implement restoration projects).
286. Related ideas and proposals have become more detailed because of the 2009 federal economic stimulus package. See also RURAL VOICES FOR CONSERVATION COALITION, ECONOMIC STIMULUS PROPOSAL: The FIRST STEPS TOWARDS BUILDING A RURAL GREEN ECONOMY (2009), available at http://www.sustainablenorthwest.org/ resources/RuralGreenEconomyInitiative.pdf (showing linkages between forest restoration and community development).
287. See John D. Leshy, Contemporary Politics of Wilderness Preservation, 25 J. LAND RESOURCES & ENVTL. L. 1 (2005) (placing wilderness politics and strategy in this context).
288. See 16 U.S.C. §§ 1131-1136 (2006);
289. see also Wilderness.net Wilderness Law Library, http://www.wilderness. net/index.cfm?fuse=NWPS&sec=pubLawlib (last visited Jan. 16, 2010) (providing a comprehensive database of individual wilderness laws).
290. Chairman of the House Committee on Natural Resources, Rep. Nick Rahall (D. WV), called for cleaner wilderness legislation in 2005: "Wilderness designations should not be the result of a quid pro quo. They should rise or fall on their own merits .... We all understand that compromise is part of the legislative process, yet at the same time, I would submit that wilderness is not for sale. Simply put I believe we should not seek the lowest common denominator when it comes to wilderness and saddle a wilderness designation with exceptions, exclusions and exemptions." Greg Stahl, CIEDRA Begins Legislative Journey, IDAHO MOUNTAIN EXPRESS, Oct. 28, 2005, available at http://www.mtexpress.com/index2.php?ID=2005106024.
291. See, e.g., DOUG SCOTT, THE ENDURING WILDERNESS (2004) (reviewing the compromises and accommodations that helped secure passage of the Wilderness Act and subsequent wilderness laws).
292. Montana Representative Denny Rehberg is willing to discuss wilderness but strongly believes that "the only way any piece of legislation is going to be successful is through a consensus-building process that starts at the local level." Rob Chaney, Wilderness Proposals, Debates Cropping Up, MlSSOULIAN, Feb. 23, 2009, at A1, A7, available at http://www.missoulian.com/news/local/ article-cc122255-4669-5687-9ed0-5e52769f7699.html. And a spokesperson for Montana Senator Max Baucus said that any wilderness proposal must "have the support of the local community, boost economic development and jobs, and be a local initiative that includes input from all the interested parties." Id.
293. For a discussion of this issue by wilderness champion and former Montana Representative Pat Williams, see Bill Schneider, Pat Williams on Wilderness and the Beaverhead-Deerlodge Partnership, NEW WEST, Dec. 13, 2008, available at http://www.newwest.net/topic/article/pat-williams-on-willerness-the-beaverhead- deerlodge-partnership/C41/L41/ (recommending a larger and more inclusive Montana wilderness bill than provided in the singular BDP bill).
294. The Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, 123 Stat. 991 (2009) includes several straightforward traditional wilderness designations.
295. See, e.g., id. at Subtitle A (Wild Monongahela Wilderness), and Subtitle G (Sabinoso Wilderness).
296. See Natural Resources Law Center, supra note 123 (documenting special use provisions and precedents in wilderness law).
297. See 66 Fed. Reg. 3244, 3252 (Jan. 12, 2001) (explaining how the 2001 rule fits with existing laws and policies);
298. -70 Fed. Reg. 25,654 (May 13, 2005).
299. See supra note 38 and accompanying text (reviewing the amount of roadless lands open to motorized use).
300. See, e.g., NIE, supra note 66 (evaluating various options in public lands law reform);
301. Robert B. Keiter, Public Lands and Law Reform: Putting Theory, Policy, and Practice in Perspective, 2005 UTAH L. REV. 1127 (2005) (analyzing several reform proposals, including place-based and "hybrid" models).
302. See, e.g., ELIZABETH BEAVER et al., NATURAL RES. LAW CTR., SEEING THE FOREST SERVICE FOR THE TREES: A SURVEY OF PROPOSALS FOR CHANGING NATIONAL FOREST POLICY (2000).
303. SCOTT, supra note 231, at 120-21;
304. see also DENNIS ROTH, PUB. NO. FS 391, THE WILDERNESS MOVEMENT AND THE NATIONAL FORESTS: 1964-1980, 4 (1984) (discussing the principle of "comity" in Congressional wilderness politics).
305. S. 433, 108th Cong. (2003).
306. Other controversial pilot projects were advanced in Idaho by a Federal Lands Task Force that sought increased active management of the National Forests. See FED. LANDS TASK FORCE WORKING GROUP, BREAKING THE GRIDLOCK: FEDERAL LAND PILOT PROJECTS IN IDAHO (2000).
307. Clearwater Basin Project Act;
308. Arapaho and Roosevelt National Forests Land Exchange Act;
309. and Highlands Conservation Act: Hearing on S .433, S. 1280
310. and H.R. 1964 Before the Subcomm. on Public Lands and Forests of the S. Comm. on Energy and Natural Resources, 108th Cong. (2004) [hereinafter Clearwater Basin Project Act Hearings].
311. S. 433, 108th Cong. § 3 (2003).
312. S. 433, § 4(f).
313. S. 433, § 4(f)(3).
314. Pub. L. No.107-206, § 706, 116 Stat 820, 864 (2002).
315. Id. § 706(j), 116 Stat. at 868-869
316. See Clearwater Basin Project Act Hearings, supra note 243.
317. This coalition represented members from almost every Western state. See April Reese, Daschle Fuels Exemption Fires up Western Republicans, LAND LETTER, Aug. 1, 2002;
318. Brian Stempeck, Western Senators Pledge to Expedite Fuels Treatment Projects, GREENWIRE, Aug. 2, 2002.
319. See Reese, supra note 249; Stempeck, supra note 249.
320. Part of this problem is due to the USFS having to transfer money from other agency programs to pay for fire management costs. See U.S. GOV'T ACCOUNTABILITY OFFICE, PUB. NO. GAO-04-612, WILDFIRE SUPPRESSION: FUNDING TRANSFERS CAUSE PROJECT CANCELLATIONS AND DELAYS, STRAINED RELATIONSHIPS, AND MANAGEMENT DISRUPTIONS (2004).
321. In 2007, for example, wildland fire-related appropriations represented over 40 percent of the agency's total appropriations. See U.S. GOV'T ACCOUNTABILITY OFFICE, PUB. NO. GAO-09-443T, FOREST SERVICE, EMERGING ISSUES HIGHLIGHT THE NEED TO ADDRESS PERSISTENT MANAGEMENT CHALLENGES 2 (2009);
322. see also ROSS GORTE, CONG. RESEARCH SERV., PUB. NO. RL 33990, WILDFIRE FUNDING (2008) (providing an overview of these issues). Another problem is the USFS's line item budget structure that lacks a comprehensive restoration line item.
323. Lodgepole pine accounts for 46 percent of the forested area, or 1.26 million acres, of the BDNF. BDNF REVISED PLAN, supra note 29, at 452.
324. Though used in a different context the GAO makes a distinction between tools and programs. "Both agencies [the USFS and BLM] generally consider stewardship contracting to be a tool, rather than a program, because it has no associated budget or official accomplishment targets. Instead, the agencies must use existing appropriations to plan and administer their stewardship contracting activities." GAO STEWARDSHIP CONTRACTING, supra note 207, at 14.
325. Take, for example, the K-V Trust Fund (established by the Knutson-Vandenberg Act of 1930 (16 U.S.C. §§ 576-576b (2006)). It helps pay for reforestation costs and some overhead expenses and has been criticized for creating incentives to offer uneconomical timber sales. More recent criticism has been directed at the agency's Salvage Sale Fund (created by NFMA, 16 U.S.C. § 472a(h) (2006)) which allows the USFS to retain money from salvage sales, and to spend it with some discretion, rather than return it to the Federal Treasury. The Ninth Circuit noted the agency's "substantial financial interest" in harvesting timber as part of this program while questioning the agency's decision making in post-fire logging analyses and disputes. Earth Island v. U.S. Forest Serv., 442 F.3d 1147 (9th Cir. 2006);
326. Earth Island v. Forest Serv., 351 F.3d 1291 (9th Cir. 2003).
327. Interim guidelines for stewardship contracting made clear that "[d]eriving revenue from the sale of any by-products or other materials designated for removal from these stewardship projects will be a secondary objective to the restoration goals." Stewardship End Result Contracting, 68 Fed. Reg. 38,285, 38,286 (June 27, 2003).
328. How retained receipts are spent by the USFS is unknown because the agency does not track subsequent expenditures. GAO STEWARDSHIP CONTRACTING 2008, supra note 207, at 20.
329. Pub. L. No.105-277, Div. A., § 101(e) title IV, § 401(3), 112 Stat. 2681-3305 (1998).
330. NEPA requires agencies to "[r]igorously explore and objectively evaluate all reasonable alternatives" to a proposed plan that has significant environmental effects. 40 C.F.R. § 1502.14(a) (2009).
331. Sierra Forest Legacy v. Rey, 526 F.3d 1228 (9th Cir. 2008). In a concurring opinion, Judge John T. Noonan continues to explore possible conflicts of interest apparent in the USFS's approach to funding fuel reduction objectives. 526 F.3d at 1234 (Noonan, J., concurring).
332. Sierra Forest Legacy, 526 F.3d at 1228, 1232 (majority opinion).
333. Id. at 1233.
334. GAO STEWARDSHIP CONTRACTING 2008, supra note 253, at 49.
335. Id. at 50.
336. Id.
337. Cf. U.S. Forest Serv., Historical Budget Information, http://www.fs.fed.us/aboutus/budget/(last visited Jan. 16, 2010) (listing budget documents back to FY2004).
338. See, e.g., RURAL VOICES FOR CONSERVATION COALITION, 2010 APPROPRIATIONS ISSUE PAPER (2009), available at http://www.sustainablenorthwest.org/resources/ rvcc-issue-papers/2009IssuePapers/2009ipapprops.
339. SEE V. ALARIC SAMPLE & TERENCE J. TIPPLE, PLNCHOT INSTITUTE FOR CONSERVATION, IMPROVING PERFORMANCE AND ACCOUNTABILITY AT THE FOREST SERVICE: OVERCOMING THE POLITICS OF THE BUDGETARY PROCESS AND IMPROVING BUDGET EXECUTION, DISCUSSION PAPER 99-101 (1999) (draft report on file with authors) (exploring the possibility of replacing the fragmented programmatically-based budget structure of the USFS with one based on budget line items representing national forests).
340. For related analyses see Fischman, supra note 80, at 803-06;
341. Keiter, supra note 238, at 1127, 1209.
342. Omnibus Public Land Management Act of 2009, Pub. L. No. 111-11, tit. IV, 123 Stat. 991 (2009).
343. Id. § 4001.
344. Id. § 4003(b).
345. Id.
346. Id. § 4003(f).
347. Id. §§ 4003(g)-(h).
348. See, e.g., Collaborative Ecological Restoration, Hearing on S. 2593 Before the S. Comm. on Energy and Natural Resources, 110th Cong. (2008).
349. -16 U.S.C. § 7301 (2006).
350. The proposal was made by a group of individuals representing different perspectives whom met several times at the University of Montana's Lubrecht Experimental Forest. For more on the proposal and its process see Daniel Kemmis, Re-examining the Governing Framework of the Public Lands, 75 U. COLO. L.R. 1127, 1129 (2004).
351. See also Community-Based Land Management and Charter Forests, Hearing Before the Subcomm. on Forests and Forest Health of the H. Comm. on Resources, 107th Cong. 7-11 (2002) (statement of former Congressman Pat Williams) (providing an outline of the Region 7 proposal);
352. Daniel Kemmis, Region 7: An Innovative Approach to Planning on or Near Public Lands, LAND USE L. & ZONING DIGEST (2003), at 3.
353. Region 7 of the USFS was split into Regions 8 and 9 and thus basically disappeared.
354. Community-Based Land Management and Charter Forests, Hearing Before the Subcomm. on Forests and Forest Health of the H. Comm. on Resources, 107th Cong. 8 (2002) (statement of Jay O'Laughlin, Director, Idaho Forest Wildlife and Range Policy Analysis Group).
355. Id. at 8-11.
356. Still relevant is the critique that NFMA's forest planning mandate was a "solution to a non-existent problem." Former Forestry Professor and Dean Richard Behan argues that the Bitterroot and Monongahela controversies-two cases that catalyzed passage of NFMA-were essentially place-based conflicts that had little to do with planning. These conflicts, he says, could have been solved without elaborate and questionable planning requirements. See Richard W. Behan, The RPA/NFMA: Solution to a Nonexistent Problem, 88 J. FORESTRY 20 (1990).
357. For an elaboration see RICHARD BEHAN, PLUNDERED PROMISE: CAPITALISM, POLITICS, AND THE FATE OF THE FEDERAL LANDS (2001).
358. See Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004);
359. Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998).
360. The Gifford Pinchot National Forest for example, chose a collaboratively written alternative to a proposed timber sale in 2005. See Natalie M. Henry, Nearly Scrapped, Controversial Timber Sale Finds Support of Coalition, LAND LETTER, Mar. 31, 2005, available at http://www.eenews.net/Landletter/2005/03/31/ archive/4?terms=nearly+scrapped.
361. U.S. FISH & WILDLIFE SERV., DEP'T OF THE INTERIOR, GRIZZLY BEAR RECOVERY IN THE BITTERROOT ECOSYSTEM: FINAL ENVIRONMENTAL IMPACT STATEMENT 2-5, 2-11, 2-17 (2000), available at http://www.fws.gov/mountain-prairie/species/ mammals/grizzly/FEIS2000/index.htm.
362. See, e.g., Sarah Van de Wetering, Bitterroot Grizzly Bear Reintroduction: Management by Citizen Committee?, in ACROSS THE GREAT DIVIDE: EXPLORATIONS IN COLLABORATIVE CONSERVATION AND THE AMERICAN WEST 151-159 (Philip Brick, Donald Snow, & Sarah Van de Wetering eds., 2001).
363. -16 U.S.C. §§ 473-482, 551 (2006); 16 U.S.C. §1600 (2006).
364. -16 U.S.C. § 539d (2006); 16 U.S.C. § 2104 (2006).
365. See Nie, supra note 66, at 214-15, 254-255 (reviewing the potential of place-based land laws to deal with political allocation conflicts to comparison to other problematic methods of conflict resolution).
366. Forest Jobs and Recreation Act of 2009, S. 1470, 111th Cong. (2009).
367. For more about the bill, see Sen. Jon Tester, Legislation, http://tester.senate.gov/Legislation/foresthome.cfm (last visited Dec. 29, 2009).
368. See supra Part II
369. See supra notes 149-152 and accompanying text.
370. See supra notes 143-148 and accompanying text.
371. See, e.g., Martin Nie, Place-based Forest Law: Questions, Opportunities Presented by Montana Sen. Jon Tester's Forest Jobs and Recreation Act, HEADWATERS NEWS, Sept. 24, 2009, http://www.headwatersnews.org/p. ForestJobsAct092809.html (last visited Jan. 15, 2009). New West Network provides the most complete coverage of the debate, with a comprehensive chronology and a series of opinion pieces.
372. See Schneider, supra note210;
373. see also Ray Ring, Taking Control of the Machine, HIGH COUNTRY NEWS, July 20, 2009.
374. For more on opposition to Senator Tester's bill, see The Last Best Place Wildlands Campaign, A Clear Look at the "Forest Jobs and Recreation Act," S. 1740, http://testerloggingbilltruths.wordpress.com/ (last visited Jan. 29, 2010).
375. See supra Part II.b.
376. Forest Jobs and Recreation Act of 2009, S. 1470, 111th Cong. tit. II (2009).
377. Id. § 102(b)(2)(D).
378. Id. §§ 102(a)(2), (b)(8).
379. See id. § 102.
380. Id. § 105.
381. Id. § 106.
382. Public Lands and Forests Subcommittee, Hearing to Receive Testimony on S. 1470, S. 1719, S. 1787, H.R. 762 and H.R. 934, 110th Cong. (2009), available at http://energy.senate.gov/public/index.cfm?FuseAction=Hearings. Hearing&Hearing-ID=506d4038-9383-540e-6697-6db84663f270 (webcast).
383. Id. (statements of Sherman Anderson and Tim Baker).
384. See id. (statement of Sherman Anderson).
385. S. 2895, 111th Cong. (2009).