Given the central role that the viability provision of the 1982 Planning Rule played in the litigation over the Northwest Forest Plan, and in forest management litigation more broadly, it is understandable that attempts to modify it have met with judicial challenges.
In 2000, after concluding that the 1982 Rule no longer reflected contemporary scientific or technical knowledge and created a process that was complex, costly and cumbersome, the Clinton administration promulgated a revision to the planning regulations that set forth new processes for evaluating, and standards to be applied in maintaining, both ecosystem and species diversity. See 36 CFR 219.20 at 65 FR 67568 (Nov. 9, 2000). The 2000 Rule was challenged by both environmental groups and the timber industry in a series of cases defended by NRS attorneys. See Citizens for Better Forestry v. U.S. Forest Service, 341 F.3d 961 (9th Cir. 2003); Am. Forest and Paper Ass’n v. Veneman, No. 1:01-cv-00871-K (D.D.C. filed April 23, 2001). Ultimately the litigation was mooted by the USDA’s determination to develop a new rule. 67 Fed. Reg. 72,770, 72,771 (Dec. 6, 2002).
The USDA issued a new planning rule in 2005 and a revised version in 2008, but both efforts became mired in litigation and were judicially invalidated for failure to comply with the procedural obligations of the National Environmental Policy Act and the Endangered Species Act. See Citizens for Better Forestry v. U.S. Dep’t of Agric., 481 F. Supp. 2d 1059 (N.D. Cal. 2007); Citizens for Better Forestry v. U.S. Dep’t of Argic., 632 F. Supp. 968 (N.D. Cal. 2009).
In 2012, after a three-year process of development, the USDA issued a new Planning Rule. 77 Fed. Reg. 21,162 (April 9, 2012). The 2012 Rule applies to Forest-level planning but does not apply to site-specific project level planning. The 2012 Rule replaces the viability provisions of the 1982 Rule with a more scientifically based approach that focuses on maintaining and restoring the integrity of ecosystems in each Forest Plan area. The 2012 Rule also reflects contemporary ecology, explicitly including concepts of ecological integrity and ecosystem services in the planning process. The 2012 Rule is, unsurprisingly, the target of litigation. A coalition of industry and forest use groups have challenged the Rule, alleging it is contrary to the Forest Service’s statutory mandate to manage the National Forest System for multiple uses, including the provision of timber. See Federal Forest Resource Coalition v. Vilsack, Civ. No. 12-1333-KBJ (D.D.C. filed Aug. 13, 2012). This latest round of litigation continues, and places NRS lawyers at the forefront of modern natural resources litigation.
Given the equivocal language of the National Forest Management Act (“NFMA”), whether the statute will operate as a substantive constraint on the discretion of the Forest Service to allocate uses which adversely affect the viability of the natural resources depends almost entirely on the language of the NFMA implementing regulations. And, whatever the outcome of the litigation over the 2012 Planning Rule, future litigation will continue to determine the moving boundary between discretion and constraint inherent in NFMA.