Some of the language used by attorney Karen Budd-Falen below may be useful in writing local plans covering the issue of sustainability and ecosystem management on federal land.

To: Nevada Association of County Organizations and Interested Parties

From: Budd-Falen Law Offices, P.C.
           http://www.buddfalen.com/

Karen Budd Falen and Marc Stimpert

Date: January 21, 2000

Re: Comments on Proposed Forest Service Land Use Planning Regulations

    Below please find a copy of the draft comments of this law office regarding the proposed Forest Service land use planning regulations. In our view, these proposed regulations present a significant departure from current statutes, give both procedural and substantive discretion to Forest Service decision makers (discretion which cannot be appealed or otherwise challenged) and advance the concept of "ecological sustainability" above multiple use. If adopted by the Forest Service, these regulations will guide all land use planning on Forest Service, and potentially state and private land nationwide. Although there are a few proposed changes which could be supported, the vast majority of the proposals will put multiple users and local governments at a significant disadvantage in the land use planning process. Thus, because the National Forest Management Act mandates that all uses on the National forest lands be consistent with Forest Service land use plans, we believe that these proposed regulations and their resulting land use plan revisions and amendments will adversely affect livestock grazing, timber production, mining, recreation and other multiple uses in the National forests.

    Because of the potential adverse affect of these proposed planning regulations on multiple use, I would urge all groups, organizations and individuals to comment on these proposed regulations. All comments must be postmarked by February 3, 2000 and sent to:

CAET-USDA
Att. Planning Rule
Forest Service, USDA
200 East Broadway, Room 103
P.O. Box 7669
Missoula, MT 59087

Comments can also be E-Mailed to caet@fs.fed.us or telefaxed to (406) 329-3021.

    A copy of the Forest Service proposed regulations can be found in the Federal Register at Volume 64, number 192, page 54073.

    Please feel free to pass these comments along to all other interested parties and individuals. I urge you to comment on these proposed regulations.

I. GENERAL COMMENTS

     A.     Ecological Sustainability.

    The Proposed Regulations mandate that "ecological sustainability" is the overarching objective for all National forest management. According to the Forest Service ("FS"), ecological sustainability is "the maintenance or restoration of ecological system[s]". See Proposed Regulation sections 219.1, 2, 3, 4, 7, 8, 10, 20, 36. Indeed, nearly every aspect of Forest Service planning envisioned by the Proposed Regulations is subservient to this objective requiring that all National forest lands would be managed to achieve ecological sustainability. Id. Making land use planning contingent solely upon ecological sustainability is a clear violation of the applicable law.

    Under the Organic Act of 1897, 16 U.S.C. § 475, ("Organic Act"), National forests were expressly reserved for two purposes: to maintain favorable conditions for water flows and to ensure a continuous supply of timber. With passage of the Multiple Use and Sustained Yield Act, 16 U.S.C. § 528 et. seq. ("MUSYA"), Congress allowed the Forest Service to manage "renewable surface resources of the national forest for multiple use and sustained yield of the several products and services obtained therefrom." However, while the "multiple use" mandate of MUSYA broadened the purposes for which National forests may be managed, the Act did not further reserve National forests for multiple use purposes. SeeUnited States v. New Mexico, 438 U.S. §§ 696, 706-18 (1978). MUSYA defines "sustained yield of the several products and services" as "the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of various renewable resources of the national forests without impairment of the productivity of the land." 16 U.S.C. § 531(b). Nowhere does MUSYA mention ecological sustainability or authorize it as a dominant use.

    Although the National Forest Management Act ("NFMA") does not define sustained yield or sustainability, NFMA requires forest planning to be consistent with the MUSYA. 16 U.S.C. §§ 1602,1604. Like the MUSYA, NFMA requires the Forest Service to consider environmental and ecological factors in land use planning. However, also, like MUSYA, NFMA does not elevate ecological factors above any other multiple-use nor does it require that National forest land use plans be contingent only upon ecological sustainability considerations.

    The FS Proposed Regulations' attempt to elevate "ecological sustainability" above all other uses is based upon several faulty assumptions. First, the Proposed Regulations wrongly assume that the "sustained yield" mandates of MUSYA and NFMA require "sustainability." Thus, the Proposed Regulations expand the concept of sustained yield significantly beyond what is allowed by the MUSYA and NFMA. As stated above, "sustained yield" under the MUSYA simply means the maintenance of a regular output of several renewable resources. In contrast, section 219.1(b)(3) of the Proposed Regulations define "sustainability" as "meeting the needs of the present generation without compromising the ability of future generations to meet their needs . . . it calls for integrating the management of ecological systems with their social and economic context while acknowledging that management should not compromise the basic functioning of these [ecological] systems." The Proposed Regulations then define "ecological sustainability" as "The maintenance or restoration of ecological system composition, structure, and function . . ." and then mandate that "Planning must be directed toward assuring the ecological sustainability of our watersheds, forests, and rangelands." Id. at Section 219.2(a)(1). Thus, the Proposed Regulations make the maintenance and management of ecological systems the basis for sustained yield management of renewable resources. This is outside the scope of the current statutory authority for the Forest Service. Again, "sustained yield" under MUSYA means that the output of a variety of resources be maintained in perpetuity, and does not require the management of forest pursuant to the concept of "ecological sustainability." The Proposed Regulations are illegal to the extent that the expand the definition of "sustained yield" beyond that required by the MUSYA.

    Second, the Proposed Regulations wrongly assume that all sustainability must be predicated upon ecological sustainability. Section 219.2(a)(1) of the Proposed Regulations states: "Planning must be directed toward assuring the ecological sustainability of our watersheds, forests, and rangelands. The benefits we seek from the national forests and grasslands depend upon the long-term ecological sustainability of the watersheds, forests, and rangelands." Likewise, section 219.20 states: "Achievement of ecological, social, and economic sustainability is the overall goal of the National Forest System land. To achieve sustainability, the first priority for management is the maintenance and restoration of ecological sustainability to provide a sustainable flow of products, services, and other values from these lands . . . ." Thus, the Proposed Regulations assume that sustainability (or sustained yield) of any sort cannot be achieved without first achieving ecological sustainability. Ostensively, this is the reason why the Proposed Regulations base all land use planning upon this concept. However, this assumption is false. While biological diversity undisputably affects certain legitimate uses of National forests, it is not essential to multiple use and sustained yield, as defined by the MUSYA. For example, timber harvest and water flows can be managed on a sustainable yield basis (as required by statute) with little species diversity. On the other hand, some uses, such as recreation, may require a high degree of species diversity (fishing, research, wildlife watching), while recreational uses of the forest require little or no species diversity (rock climbing, skiing). Still others, such as mining, require no species diversity whatsoever. Certainly, ecological sustainability and species diversity are important considerations in forest land use planning, and are often essential to maintaining certain legitimate uses on a sustained basis. However, the assertion that species diversity is absolutely necessary to maintain the sustained yield of multiple goods and services is unsupportable, and cannot justify elevating the primary focus of land use planning to species diversity. In sum, the Proposed Regulations should report and reflect the true nature and role of ecology in multiple use and sustained yield management, not elevate it over the Congressional mandates.

    Third, the Proposed Regulations wrongly assume that ecological sustainability as the primary focus of forest planning best meets the needs of the American people. The MUSYA defines "multiple use" as the management of various renewable resources in a combination which best meets the needs of the American people. 16 U.S.C. § 531(a). Elevation of biological diversity and ecological sustainability to the chief planning factor assumes a priori that such values, in all cases, best meet the needs of the American people; this presumption is in error and must be established on a case by case basis.

    Fourth, in addition to misreading the mandates of the Organic Act, MUSYA, and NFMA, the Forest Service states that the enactment of various other laws, including the National Environmental Policy Act ("NEPA"), the Endangered Species Act ("ESA"), the Clean Air Act ("CAA") and the Clean Water Act ("CWA") "reinforce ecological sustainability as the first priority of National Forest system management." Id. Again, this is incorrect; none of these statutes in any way change the mandates for the management of National forests. See e.g. Platte River Whooping Crane Trust v. Federal Energy Regulatory Commission, 962 F.2d 27, 34 9D.C. Cir. 1992) (holding that the ESA does not mandate that federal agencies violate their statutory authority in protecting listed species). For example, the Forest Service cites the policy statement set forth in the preamble to NEPA as a mandate to manage for ecological sustainability. However, as the courts have made clear, the NEPA is a procedural act only, designed to promote consideration of environmental impacts in federal decision-making, and cannot mandate any substantive result. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989).

    In summary, the Proposed Regulations are built entirely upon a tenuous foundation. They assume that (1) various statutes require that ecological sustainability be the dominant consideration for all management of National forests, (2) sustained yield of various goods and services derived from the forests cannot be achieved without first achieving ecological sustainability, and (3) that ecological sustainability in all cases is the highest and best use of the forests for the American people. To be supportable, these assumptions would require significant legal, scientific, and economic data. As it is, the Forest Service has submitted no such data. These assumptions are false, therefore, the Proposed Regulations are at their core flawed, and should not be adopted as a rule.

    B.    Due Process.

    While ostensively encouraging increased public participation in the planning process, the Proposed Regulations in fact decrease the right to comment and/or and appeal from that called for by applicable law and current Forest Service regulations. Specifically, the Proposed Regulations, while allegedly creating more opportunities for public participation, nearly always grant full discretion to Forest Service authorizing officers regarding how, when, and to what degree such public participation may occur. Thus, specific and mandatory opportunities to participate which are in the current Forest Service regulations are replaced with sweeping, discretionary programs. Furthermore, because the standards for such participation are discretionary, the opportunity for parties to appeal arbitrary and capricious agency actions is nearly foreclosed. See Olenhouse v. Commodity Credit Corporation, 42 F.3d 1506, 1573-5 (10th Cir. 1994). In other words, increased Forest Service discretion creates less guarantee that the due process demanded by the NFMA, the Administrative Procedures Act, and the Constitution of the United States will be satisfied during the planning process.

    There are numerous examples of increased discretion and a decreased guarantee of due process in the Proposed regulations. For example, according to the Proposed Regulations at section 219.4, further consideration of topics of general interest or concern raised by the public are fully discretionary, and the Forest Service denial of further consideration of any topic raised by the public may not be appealed. In another section, "broad based assessments" will be used to identify and develop issues upon which proposed amendments or revisions are based. See section 219.5, However, despite the important role which such assessments will play in land use planning, there is no right to participate in or appeal the development or use of such assessments, nor are there mandatory standards or guidelines for the development of broad based assessments.

    Additionally, according to section 219.6, the scoping process under NEPA is negated by the procedure for proposing an amendment or revision. The elimination of the scoping process eliminates an opportunity for public participation. Additionally, the Proposed Regulations at section 219.8 states that the public participation requirements of NFMA are only triggered by "significant environmental impacts" which warrant an environmental impact statement ("EIS"). Thus, the current regulations call for public participation only upon any significant change in the environment. Significant social, economic, cultural or other changes do not automatically result in a land use plan amendment. In fact, the public participation requirements mandated by NFMA are completely deleted from the Proposed Regulations. See sections 219.8-9,12.

    There is also a very limited appeal process under the new regulations. For example, the Proposed Regulations, sections 219.8-9,32, only allow for "objections" to proposed amendments or revisions. However, a denial of such objections is not subject to Forest Service appeal processes. Therefore, any person suffering an arbitrary and capricious denial of an objection has no ability to create an administrative record upon which to base judicial review. Additionally, under section 219.10, upon amendment or revision of a land use plan, authorized Forest Service officials are given complete discretion regarding the modification of existing permits, licences or other instruments granting the use and occupancy of forest lands right of access. Those modifications are not subject to Forest Service appeal procedures, therefore no administrative record may be created for judicial review. Under section 219.11, an authorized official cannot authorize any site-specific project unless, in his discretion, there is a "reasonable expectation" that adequate funding is available to complete requisite monitoring. Thus, the authorized official is given nearly complete discretion to deny any application for a site-specific project, or else force the applicant to fully fund whatever monitoring such official deems necessary.

    To offset the loss of participation rights, the Proposed Regulations establish a host of "collaborative" processes designed to encourage public participation in planning. See e.g. section 219.12,. However, because this section gives full discretion to authorized officials regarding when, how, and to what extent such processes are allowed, even collaboration is not guaranteed.

    The regulations also limit the participation of local governments. For example, the current regulations guarantee state and local governments a number of specific provisions which ensure that such governments are notified, considered, and may participate in Forest Service planning. However, section 219.14 of the Proposed Regulations replaces these guaranteed protections with a fully discretionary requirement that authorized officials "provide opportunities for involvement." Thus, state and local governments have no guarantee of any level of collaboration or participation.

II.    SECTION BY SECTION COMMENTS

A.  Section 219.2 describes the goals and principals upon which planning must be based. The section often describes the National forests as the "people's lands." Emphasis is placed on the concept that National forests belong to everyone. While these principals are generally true, it should be simultaneously recognized that National forests are often physically interspersed with lands and property rights owned by state and local governments and private individuals. Rights to water, minerals, access, and other valid property rights which are inextricably intertwined with National forests and the management thereof should be acknowledged and considered in all planning. Thus, appropriate language regarding these rights should be added to the guiding principals articulated in this section.

B.    Section 219.2(a)(2)(ii) acknowledges that planning should be based upon science and knowledge from a variety of sources, but completely excludes state and local governments as such sources. "State and local governments" should be added to this section.

C.    Section 219.2(a)(2)(ii-iii) calls for use the "best available scientific evidence" in forest planning. While this is good, any such science upon which land use plans are based must be statistically and scientifically sound and supportable, considering the science community as a whole. In many instances, little or no scientific evidence or statistically insignificant evidence is all the evidence available regarding a particular subject, and should not be used for planning purposes. "Best available scientific evidence" should be defined as that which is statistically significant and scientifically sound, considering the science community as a whole.

D.    Sections 219.2(c)(2)(iv-v) and section 219.20(b)(5) of the Proposed Regulations dictate that planning must be on a "regional, national, and global" scale and use natural and ecologically significant features such as rivers and mountains as boundaries for planning. Likewise, the Proposed Regulations allow for and encourage large scale multi-forest planning through broad-scale assessments, landscape goals, and combined forest plans. See sections 219.3, 219.5, 219.12. While planning at this level may be valuable, it reduces or eliminates the significance of planning and associated impacts on the local and individual level. For example, an EIS which examines the impact of a particular policy on alleged global warming or upon a particular species located throughout North America minimizes or negates the economic, social, or environmental impacts upon local communities or individual stakeholders. The Forest Service has no express statutory authority for making forest planning on this large scale. The Proposed Regulations should expressly state that planning on the forest, local, and individual level be paramount to that on a regional, national, or global scale.

E.    Section 219.4 of the Proposed Regulations provide for "topics of general concern" as a vehicle whereby citizens may propose modifications to forest management practices or land use plans. Under the provisions, the responsible official should consider any suggestion given by a citizen and determine whether or not such "topic" is worthy of further investigation and discussion. The Proposed Regulations then articulate a number of factors which the responsible official should consider. The factors give substantial weight to topics which are related to ecological sustainability and other environmental factors. In contrast, the Proposed Regulations should reflect the multiple use mandates of MUSYA and NFMA and the primary purpose of National forests articulated by the Organic Act. A "topic of by a party which is not related to ecological sustainability must be given equal consideration with one which is. See Comment A.

F.    Section 219.4 gives complete discretion to the authorized Forest Service manager to determine if a topic of general concern warrants further discussion, and provides no appeal rights or mandatory standards for judicial review. The decision to consider or deny a topic of general interest should either be subject to the Forest Service appeal process or immediately be considered a final agency action subject to judicial review. Furthermore, this section should articulate standards which the authorized official must (as opposed to "should") consider rather than providing complete discretion.

G.    Section 219.4(b)(2)(vi) articulates "the potential for disproportionately high or adverse environmental effects upon minority populations" as a desired standard for a topic of general interest. What does this mean? How is a "minority" population defined? How would such a population have a disproportionate environmental effect? Is an "environmental" effect limited to ecological concepts, or can it include social and economic factors? If social and economic aspects of the human environment may be considered, can "minority" populations include social or economic categories of people who are less in number than others? For example, a small community whose economy is primarily dependant upon ranching within the National forest may be a "minority" group, compared with the recreational community or the population at large, and may be disproportionately affected by a management decision. Would such a group's topic of general concern regarding such management decision then be given special consideration? As it now stands, the concept of disproportionate effect on minorities has little meaning. The concept should either be eliminated or defined in detail.

H.    Section 219.4(b)(1)(vi) includes "spiritual values" as a factor which an authorized official must consider when deciding whether to give a topic of general interest further consideration. The Forest Service is prohibited by the establishment clause of the United States Constitution from giving weight to any particular religion over any other, this consideration should be eliminated.

I.    Section 219.5 provides for the development of "broad-scale assessments" and the use of such assessments for planning and management decisions. However, the regulations expressly state that such assessments are not appealable agency decisions, and grant the Forest Service complete discretion regarding the development and use of assessments. Apparently, the regulations assume that the ability to appeal individual Forest Service actions which are based upon broad-scale assessments provides sufficient due process. That is not the case. Under the Proposed Regulations, it is clear that completed assessments, while technically an advisory or informational document, are supposed to be an integral component of land use planning and will be significantly influential in the decision-making process. CompareBennet v. Speer, 520 U.S. 154 (1997) (a biological opinion issued by the Fish and Wildlife Service upon which agency decisions are based, while technically advisory, is practically mandatory, and is thus subject to judicial review). Participating in or appealing a decision which is based upon assumptions in an assessment which was developed absent any required due process does not provide adequate due process for the decision. Furthermore, because the public has no right to participate in the development of an assessment, no record is created which would allow a court to review the assessment upon which a future decision is based. Because the authorized official has complete discretion, the reviewing court must accept as true any and all assumptions and findings in the assessment upon which future decisions are based. See, e.g. Olenhouse v. Commodity Credit Corporation, 42 F.3d 1506, 1573-5 (10th Cir. 1994). Thus, the Forest Service would always be given deference regarding decisions based upon the assessment. Due process demands that the public have the right to participate in the development of broad-scale assessments and appeal them if they are not in accordance with prescribed legal, scientific, or practical principals. The Proposed Regulations should be modified accordingly.

J.    Section 219.6 allows the responsible official to propose a decision to revise or amend a land use plan, and do the required NEPA process, only after and based upon other planning processes detailed in sections 219.4-5, none of which are subject to NEPA. See also sections 219.8-9. This negates the NEPA process, particularly the scoping process. For example, an environmental group submits a topic of general concern proposing the restoration of the ecological condition of old-growth forests prior to European settlement. The authorized individual considers the topic worthy of further investigation, and commissions scientists of his choosing to do a broad-scale assessment of the issue, and the final assessment prescribes restricting timber harvest on vast portions of National forests. The authorized individual then decides to propose a rule based upon the assessment. At this point, the scope of science and policy upon which the proposed decision is based is pre-determined, all without the right of public notice, review, and comment. The scoping process of NEPA which allows the public to participate in deciding the range of alternatives of proposed action has become meaningless. Accordingly, NEPA should apply to various stages of planning prescribed in the Proposed Regulations upon which a proposed decision can be based, or in the alternate, language should be added to section 219.6 which expressly provides that the NEPA scoping process is subject to any and all information and assumptions upon which the proposed decision is based.

K.    Current Forest Service regulations require that, during the notice and comment period for review of a NEPA document associated with a proposed forest plan revision, the Forest Service "shall hold public participation activities as deemed necessary to obtain adequate public input." 36 C.F.R. § 219.10(b). The NFMA demands that the Forest Service "shall publicize and hold public meetings or comparable processes at locations that foster public participation in the review of such plans and revisions." 16 U.S.C. § 1604(d). This mandate has been deleted from the Proposed Regulations, making any public participation activities held by the Forest Service purely discretional. See sections 219.8-9,12. The mandate for such public meetings and activities must be included in the Proposed Regulations.

L.    Section 219.7 of the Proposed Regulations establishes four main parts to a land use plan: 1) desired resource conditions to achieve long-term sustainability; 2) goals, objectives, and guidelines designed to meet such proposed conditions; 3) the designation of forest lands for suitable uses, based upon the above proposed conditions, goals, objectives, and guidelines; and 4) monitoring and evaluation requirements. All goals, objectives, guidelines, and designations must be based upon the desired resource conditions. The Proposed Regulations require ecological sustainability to be predicate to any sustainability. Thus, all components of any land use plan must be consistent with the overarching goal of ecological sustainability. This defeats the multiple use and sustained yield mandates of MUSYA, NFMA, and the Organic Act. Ecological sustainability cannot be the basis for all management mandates contained within a land use plan, but only one of many considerations. See Comment I.

M.    Sections 219.8-9 and 219.32 provide that a proposed amendment or revision to a land use plan may be objected to within 30 days, that the responsible official has discretion whether to accept or reject such objection, and that such decision is the final agency action of the Forest Service. This is inadequate. First, the time to raise an objection should be 90 days. Thirty days is insufficient to provide adequate due process. Second, a decision to reject an objection should be subject to the Forest Service appeal process. Without these additional processes, the administrative record would consist only of the objection and the response; due process cannot be fully satisfied unless a full administrative record can be created for judicial review.

N.    The NFMA requires that whenever a land use plan is amended and such amendment would result in a "significant" change in such plan, the amendment must be subject to the same public participation process provided for by NFMA for revisions of a land use plan. 16 U.S.C. § 1604(f)(4). Current Forest Service regulations reflect this mandate. See 36 C.F.R. §219.10(f). Section 219.8 of the Proposed Regulations modifies this standard by defining a "significant" change which triggers the public participation process as one which would create a "significant environmental effect" requiring preparation of an EIS under NEPA. Thus, unless a proposed amendment has a significant environmental impact, the public participation process would not be used. NFMA requires that any amendment which would result in a significant change in a land use plan, environmental or otherwise, must be subject to the public participation process for revisions. While categorizing all amendments which require an EIS as significant changes is permissible, excluding significant changes which do not require an EIS is not, and is a violation of NFMA.

O.    Section 219.10 provides that, upon the revision or amendment of a land use plan, the authorized official must modify existing rights under permits, contracts or other instruments authorizing use and occupancy of the National forests to reflect the dictates of the revision or amendment. However, the section provides no right of appeal for such revisions, other than an "objection". Any such modification to valid existing rights should be individually eligible to appeal rights via the Forest Service appeal process. This section also allows the authorizing officer to exempt such instruments from revision, provided that "the environmental effects of the authorized use do not prevent the achievement of the desired condition described by the land and resource management plan." This clause is vague and provides no standard for review because it does not define the scope of effects which is sufficient to "prevent" the achievement of desired conditions. Thus, this section should be modified so that the standards upon which the authorized official may base such an exemption are clear.

P.    Section 219.11 requires monitoring associated with any site-specific project. That section should remain in the new planning regulations. However, subsection (c) states: "subject to valid existing rights, a project shall not be authorized unless there is a reasonable expectation that adequate funding will be available to complete any required monitoring and evaluation." This clause gives the authorizing official discretion to deny any site-specific project, based upon the perceived lack of funding for monitoring. Thus, in the case of stakeholders such as ranchers applying for a grazing permit or for permission to fix a fence or water project, affected persons would be forced to completely fund the monitoring or else have the application denied. Furthermore, if such a denial were to occur, the term "reasonable expectation" of "adequate funding" is too discretionary, thus seriously impairing the aggrieved party's ability to appeal an unjust decision. This clause is unacceptable and should be removed from the Proposed Regulations.

Q.    Section 219.11 provides for monitoring and scientific evaluation. Language should be included which requires than any such monitoring and evaluation must be made consistent with and pursuant to the best available scientific information, techniques, and methods, and any conclusions based therefrom must be statistically significant.

R.    Section 219.11(e)(2)(iii-iv) allow for monitoring of species by inferring species status based upon habitat conditions. While species status is often directly related to habitat conditions, a viable population the species must actually be present. The Proposed Regulations should allow species monitoring via habitat conditions only when a viable population has in fact been documented in the area in question.

S.    Section 219.11 makes monitoring for ecological sustainability primary. Monitoring of economic, social, and other factors should be given equal weight.

T.    Section 219.12(a) states that the responsible official has "full discretion to determine how and to what extent to use the collaborative process outlined in Secs. 219.12 through 219.18." The responsible official should not have unfettered discretion. All interested parties should be guaranteed are right to participate in planning. See 16 U.S.C. §1604(d,f).

U.    Section 219.12(b) articulates the "nation's declaration of environmental policy." This alleged nationwide environmental policy is based upon the preamble to NEPA. However, NEPA conveys no statutory authority for management of National forests, or any policy mandates whatsoever. See Comment I. This subsection makes this "policy" the basis for "collaborative efforts to develop or propose landscape goals for ecological units that may be associated with national forest land." Accordingly, the Proposed Regulations should contain language which states than any such "landscape" goals which are developed under a collaborative process are not mandatory. In addition, cooperatively based landscape goals should not be limited to ecological and environmental topics only, but should include any policy or management related to the National forests. Limiting the collaborative process for landscape planning to ecological topics only violates the Organic Act, MUSYA, and NFMA.

V.    Sections 219.14 of the Proposed Regulations requires the authorized official to "provide opportunities for involvement of state and local governments in the planning process." However, section 219.12 allows FS officials to have "full discretion to determine how and to what extent" such opportunities are provided. Unlike the existing regulations, the Proposed Regulations require no set level of coordination and cooperation with state and local governments. In contrast, the existing regulations provide that the Forest Service must 1) provide direct notice of proposed planning to potentially affected state and local governments with similar planning efforts; 2) develop procedures for coordination with such governments and carry out such coordination; 3) analyze such governments' own planning efforts; 4) assess any interrelated impacts and conflicts; 5) consider alternatives to such impacts and conflicts; and 6) actively seek input from such governments to help resolve these and any other management concerns in the planning process. 36 C.F.R. § 219.7(a-e). These detailed procedures and protections of the exiting regulations should not be deleted in any new planning regulations. State and local governments must be guaranteed at least a minimal level of notice and participation.

W.    Section 219.15 provides that the responsible official "must consult and invite American Indian tribes and Alaska Natives to participate throughout the planning process" regarding the concerns and opinions of the tribes. This provision should apply to state and local governments as well and be included in section 219.14.

X.    Section 219.17 requires consideration and coordination with land owners adjacent to and interspersed with National forest land. In recognition of the fact that ownership of real property includes property interests other than fee simple ownership, the word "land" should be replaced with the word "private property." A sentence should then be added which states that private property ownership includes water rights, rights to ingress and egress, mineral rights, and any other interest in real property. In addition, such consideration and coordination should be mandatory rather than discretionary.

Y.    Sections 219.19-20 assume that multiple use and sustained yield of various goods and services cannot be achieved without first achieving ecological sustainability. This assumption is false. See Comment I.

Z.    Section 219.20(a) states "To achieve ecological sustainability, it is necessary to maintain and restore ecosystem integrity." Section 219.36 defines ecosystem integrity as that which "maintains its characteristic diversity of biological and physical components, spacial patterns, structure, and functional processes within its approximate range of historic variability." In turn, historic range of variability is defined as "The limits of change in . . . an ecosystem . . . characteristic of an area before European settlement." Thus, in order to achieve ecological sustainability as the Proposed Regulations define it, the ecological condition of the National forests must be within the range of those found prior to European Settlement. See also section 219.20(a)(3-5); 219.20(b).
 

1.    This standard is illegal and inappropriate under applicable law. First, legitimate multiple use activities such as timber harvest and mining rarely occurred on a large scale prior to European settlement. Thus, to achieve ecological sustainability, such activities must be excluded. This is a violation of the Organic Act, MUSYA, and NFMA.

2.    Second, no statutory authority exists which mandates that ecological conditions of any kind must reflect pre-European settlement conditions.

3.    Third, the assumption that ecological conditions prior to European settlement are better than conditions at any time since then is a purely subjective value judgment, and is not appropriate in forest service planning.

4.    Finally, the scientific evidence which suggests what ecological conditions were like prior to European settlement are highly speculative. Basing all forest planning and management around a range of variability which can never be definitively determined is illusory, arbitrary and capricious and violates the Organic Act, MUSYA, and NFMA. For example, scientific evidence suggests that large ungulates, including wild oxen and more recently bison, have grazed the forests and grasslands of the inter-mountain west for several million years prior to European settlement. Thus, it is valid to assume that widespread grazing by large ungulates is a desired ecological condition which must be restored. However, this desired condition does little to define when and how such a condition must be met. At what point in historic time is the ecology restored? Must the historic grazing condition be met by widespread reintroduction of free ranging bison, or can the land be "restored" by modifying domestic livestock grazing to mimic the grazing patterns of bison or wild oxen? Furthermore, the exception for historic range of variability management provided for in section 219.20(b)(3) does little to remedy these specific problems. Because of the scientific and legal impossibility of objectively defining or achieving a historic ecological benchmark which must be restored, the concepts must be eliminated from the Proposed Regulations.
 

AA. Section 219.20(a)(7) establishes "focal species" and "species at risk" as indicators of ecological integrity. While the population dynamics of such species can be a legitimate indicator of ecological integrity (as defined by the Proposed Regulations), extreme caution must be observed. Very often, the absence or reduction of any particular species is related, if at all, to a limited number of environmental variables, and does not represent the overall environmental condition. The complexity of any ecosystem demands that the use of particular species as indicators of overall environmental conditions be consistent which accepted scientific and statistical methodology. For results to be valid, the appropriate combination of a sufficient number of species, combined with adequate sampling and analysis must be conducted. Accordingly, this section should include language which specifically mandates that the use of "focal" and "sensitive" species as indicators of ecosystem integrity must be consistent with accepted scientific and statistical methodology. Otherwise, the section should be eliminated.

BB.    Section 219.20 requires the FS to identify "demand" species, or species with "high social, cultural, or economic value," and then identify ecological conditions necessary to maintain "desired" levels of these species over time. Identification of "high social, cultural, or economic value" and "desired" levels are subjective and requires an assessment and balancing of public values. For example, a particular species may have a high social value to a particular segment of the population, but a low social value to another. Similarly, a species may have significant economic value for a particular use (redwood trees cut for timber), but have high social value in the context of an entirely different use (redwood trees observed by hikers). Furthermore, these conflicting values may require entirely different "desired" levels Despite these extremely complex and subjective determinations, the Proposed Regulations provide virtually no explanation or guidance regarding how to implement this directive. This extreme discretion is not allowed by the Organic Act, MUSYA, and NFMA, which require that forests be managed for a variety of uses. Accordingly, the concept of "demand" species should either include specific standards for implementation or be eliminated.

CC.    Section 219.20(b) requires all responsible officials to make decisions at all planning levels which "provide for ecosystem integrity." Likewise, land use plans and site-specific decisions "must maintain or restore ecosystem integrity, including species variability." This section clearly and unquestionably requires that all planning, management, and decisions on National forests must be predicated upon ecosystem integrity, ecological sustainability, and the range of ecological conditions found over 500 years ago. Once again, this is illegal, arbitrary, and capricious under applicable law. Accordingly, this section should be deleted.

DD.    Section 219.21 provides for economic and social analysis. However, unlike ecological analysis, the Proposed Regulations do not mandate any particular amount of such analysis. Under applicable law, economic and social considerations are just as important ecological analyses and should be given equal consideration. This is especially true for the social and economic concerns at the state and local level. Consider the following:
 

1.    The Organic Act has long been interpreted as requiring that National forest lands be managed to promote the local economic and social stability of the dependant communities. The first Chief of the Forest Service, Gifford Pinchot wrote: "In the management of each reserve, local questions will be decided upon local grounds . . . . sudden changes in industrial conditions will be avoided by gradual adjustment after due notice . . . . " Forest Service, United States Department of Agriculture, The Use Book (1906 ed.) at 17. The first congressional concerns for the stability of communities dependent on the resources of the National forests arose during debates surrounding passage of the Organic Act. The National Academy of Sciences had criticized past land management practices that allowed companies and individuals to cut excessive quantities of timber without monetary charge. Nevertheless, the debates surrounding the Organic Act centered on protecting the forests from fire and insect damage, ensuring that the forests serve to conserve water resources for the arid West, and managing the forests for economic purposes. S. Rept. No. 105, 10, 19. In fact, after describing the depredations of fire, livestock, and illegal timber cutting, one Senate report concluded:

A study of the forest reserves in relation to the general development of the welfare of the country, shows that the segregations of these great bodies of reserved lands cannot be withdrawn from all occupation and use and that they must be made to perform their part for the economy of the nation. According to a strict interpretation of the rulings of the Department of the Interior, no one has the right to enter a forest reserve, to cut a single tree from its forests, or to examine it rocks in search of valuable minerals. Forty million acres of land are then theoretically shut out from all human occupation or enjoyment. Such a condition of things should not continue, for unless the reserved lands of the public domain are made to contribute to the welfare and prosperity of the country, they should be thrown open to settlement and the whole system of reserved forests be abandoned.

S. Rep. No. 105, 22.

2.    The notion of community stability grew out of Congress' concern for the impacts on local communities. During the passage of the Organic Act, Congressman Safroth echoed this concern:

SAFROTH: The forestry question is not a matter of great concern from a national stand point, because the purposes for which these reservations are set aside are merely local. It is a matter of interest to people in the West only as to whether these reservations are properly established. It is on account of the waters which are to irrigate our agricultural lands that we are interested in forest reservations. . . . . The timber reserves of that region can never be a subject of national concern although they may be of great interest to the people of that particular locality -- the people of Colorado, Utah and other Western communities.

30 Cong. Rec. 984 (1897).

3.    Congress has never changed its concern for local communities. Eleven years following the passage of the Organic Act, Congress passed the Twenty-Five Percent Fund Act, under which 25 percent of the revenues from the national forests are returned to the states. 16 U.S.C. § 500. In 1913, Congress directed that another 10 percent of the National forest revenues be spent on road construction and local road maintenance. 16 U.S.C. § 501. In 1976, Congress amended the Twenty-Five Percent Fund Act to provide that the disbursement to state and local governments would be calculated from gross revenues, rather than stumpage prices. 16 U.S.C. § 500, National Forest Management Act of 1976, Report of Senate Committee of Agriculture and Forestry, S. Rep. 94-893 (May 1976) 1, 22-3.

4.    These examples clearly illustrate that Congress intends National forests to be a driving force in promoting and sustaining state and local communities and governments, both economically and socially. The multiple use and sustained yield of several goods and services mandate of MUSYA and NFMA reinforce this concept. Accordingly, the Proposed Regulations should give more weight to these concerns. Economic and social impact analysis should be mandatory at all levels of forest planning and management.
 

EE.    Sections 219.18, 22-25 and 219.9(a)(2) allow and require independent scientist to review and participate in all aspects of planning, broad-based assessments, local analysis, and monitoring. Scientists may come from within the Forests Service, other federal or state agencies, or the general public, and may hold a variety of important and influential positions. In most cases, the responsible official has nearly complete discretion as to when such scientists are used and who they are. The Proposed Regulations should: 1) provide minimum standards and criteria for qualifications which must be met before a scientist can be deemed an "expert"; 2) provide minimum standards and criteria for determining when a scientist may be deemed "independent"; and 3) provide a minimum amount of public notice and opportunity to object whenever any such scientist is considered for such participation, whether such position is permanent or temporary, full time or part time, voluntary or compensated. Such notice should include the qualifications of the individual, the role which the individual will have in such participation, and the type and duration of the position. Review and participation by independent scientists is a good thing, provided the Proposed Regulations articulate standards which assure that such scientists are in fact qualified and independent, and provide the public the opportunity to review such factors.

FF.    Section 219.27 lists a variety of categories of "special designations" for National forest lands. With regard to wilderness areas, roadless areas, national recreation areas, natural landmarks and monuments, and wild, scenic, and recreational rivers, the Forest Service is only authorized to delineate such areas and report such findings to Congress. Unless and until Congress actually designates such areas under applicable law, such delineations should have no effect on the multiple use and sustained yield mandates for management of National forests. With regard to research and natural areas and scenic by-ways, the Forest Service can designate such areas, however such designation should have no effect on the multiple use and sustained yield mandates for management of National forests. Id. Finally, with regard to critical waterways, geological areas, unroaded areas, botanical areas, and national scenic areas, the Forest Service has no statutory authority to designate and manage such areas. Any such designations can by law have no effect on the multiple use and sustained yield mandates for management of national forests. Accordingly, these "special designations" should be deleted from the Proposed Regulations.

GG.    Current Forest Service regulations define "forest land" as land which is not currently developed for non-forest use. Section 219.28 of the Proposed Regulations define forest land as land not currently identified for non-forest use. Neither the Proposed Regulations nor any statute explains what "identified" means, therefore an authorized office has discretion to "identify" any land as non-forest use. Thus, the Proposed Regulations significantly increase the potential acreage of land on which no timber harvest can occur, based upon the discretion of the forest service. The Proposed regulations should either change the word "identified" to "developed", delete the phrase, or define what "identified" means, provided such definition is consistent with applicable law.

HH.    Section 219.29(a) limits timber harvest to that which is "consistent with the achievement of the desired condition(s) identified in the land and resource management plan(s)." As discussed in Comments I, II.G, U above, since the desired conditions of a land use plan must reflect ecological conditions prior to European settlement, and because little or no wide-spread timber harvest occurred at that time, any land use plan under the Proposed Regulations can allow for very little if any timber harvest. This is inconsistent with an illegal under the Organic Act, MUSYA, and NFMA.

II.    Section 219.32 allows the Forest Service an indefinite amount of time to consider an objection. This would amount to an indefinite stay on a pending decision being granted without considering the merits of such. The Proposed Regulations should set a definite time which the Forest Service must answer objections. In addition, a decision to reject an objection should be subject to the Forest Service appeal process.

JJ.    Section 219.36 contains a definition of "desired non-native species" which describes such species as those which are "not indigenous to an area but which represent a significant, and usually remnant segment of a gene pool." How can a non-indigenous species be a "remnant segment of a gene pool"?