The Forest Planning Rule may survive a court challenge after all.

Just Like Its Predecessors, 2012 Forest Planning Rule Challenged in Court

Opponents argue the Obama administration's Planning Rule takes ecological sustainability too far, mostly because it puts ecological sustainability as the top priority for forest management plans.

Our public lands are an incredible intergenerational gift to the American people. Beginning with Yellowstone National Park and the Forest Reserves in the 19th century, our federal government has assumed the role of protector and manager for nearly one-third of our nation's land. The unresolved, century-long debate over whether public lands should be managed for commodities or aesthetic/ecological values erupted again this summer over management of 191 million acres of National Forests. In March 2012, the Obama administration joined its predecessors and promulgated its own Forest Planning Rule under the National Forest Management Act (NFMA). These regulations establish standards for the management plans that govern all National Forests. The Planning Rule has become a political football for the last 30 years, framing the larger debate over public lands management.

The Forest Planning Rule may survive a court challenge after all.The Planning Rule determines how and where the Forest Service will permit certain activities such as logging, grazing, and oil and gas development. This will be the Forest Service's fourth attempt to promulgate NFMA regulations. All previous attempts to revise the 1982 Forest Planning Rule have been stricken by federal courts. The Obama Planning Rule appears to move the Forest Service on a permanent path toward prioritizing ecological sustainability over traditional commodity production. The question remains whether this Planning Rule can effectively institutionalize that shift.

Thus, a complaint filed in early August 2012 against the Forest Service and the Secretary of Agriculture challenging the 2012 Forest Planning Rule was not a surprise to anyone. This year however, it is timber, livestock, and off-road industry groups and trade associations who are challenging the newest regulations. These groups wear the mantle of advocating traditional commodity production dominance on federal lands. They argue that the Obama administration's Planning Rule takes ecological sustainability too far, mostly because it puts ecological sustainability as the top priority for forest management plans. Their concern with the 2012 Planning Rule is summarized in one statement from their lead counsel: "... the national forests were not to be set aside for non-use."

Industry's complaint raises several issues with the 2012 Planning Rule. First, the parties claim that the Obama administration's new regulations violate the Organic Administration Act of 1897 (OAA). The OAA states that management of national forests should only "conserve water flows and furnish a continuous supply of timber to the American people." The new Planning Rule, however, has its main goal as "ecological sustainability" for every national forest. The plaintiffs allege that the new Planning Rule "relegates 'social and economic sustainability' to an inferior and insignificant position" compared to the goal of ecological sustainability and thus violates the OAA. The complaint also states that by making "ecological sustainability" the focus of revised forest plans, the Obama administration has overridden the multiple use objectives of forest plans established by NFMA and the Multiple-Use Sustained-Yield Act of 1960.

Industry also takes issue with the 2012 Planning Rule's requirement that forest plans provide both "ecosystem services and multiple uses." Instead, they want to turn back the clock to the 1960s-era Multiple-Use Sustained-Yield Act days, when timber production dominated the agency. Finally, the plaintiffs disapprove of the 2012 Forest Planning Rule requirement that "planning and management decisions be based on the 'best available scientific information,'" preferring instead that forest managers base decisions on commercial data. Apparently science-based management is not proper for the 21st century problems of complex ecosystems and climate change.

To be fair, some conservation groups are not completely satisfied, either. While some such as The Nature Conservancy do support the 2012 Planning Rule, others are waiting to see how it is implemented before considering legal action. The 2012 rule does relax the stringent requirements of the 1982 Planning Rule for species viability, a legal tool that has provided considerable ammunition in legal challenges to logging projects across the country for three decades.

Will the traditional commodity users of public lands -- agriculture, mining, and logging -- succeed in overturning the 2012 Planning Rule? Will the "Lords of Yesterday," Professor Charles Wilkinson's apt description of these interests, be successful in reasserting strong influence over public land management? These questions will be answered once again in the coming months. Our bet is that the 2012 Planning Rule will be sustained, marking a real paradigm shift in ecological sustainability as the basis for public land management.

About the Authors

Jack Tuholske is a visiting professor at the Vermont Law School.

Molly Armus is a student attending the Vermont Law School.