The National Forest Management Act (NFMA) planning regulations contained one regulatory requirement that provided a handle for plaintiffs to bring about the most far-reaching change in forest policy since World War II. That was the “viability regulation” and it anchored the challenge to the Forest Service’s management of the old-growth forests of the Pacific Northwest, involving legions of Natural Resources Section (NRS) and other Environment and Natural Resources Division (ENRD) attorneys, and culminating in the successful defense of President Clinton’s Northwest Forest Plan, which a former Assistant Attorney General has characterized as “a milestone in the Division’s history.”
NFMA’s Diversity Requirement
NFMA required the Forest Service to develop the planning regulations in consultation with a committee of independent scientists. 16 U.S.C. 1604(h). What NFMA gave them to work with on biological diversity was vague and equivocal, and subjected diversity to a subsidiary role in multiple use planning. The regulations were directed to specify guidelines which would:
provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan.
16 U.S.C. 1604(g)(3)(B).
The regulations implementing the general direction of this statute were hardly more specific. See 36 CFR 219.26; 36 CFR 219.27(a); 36 CFR 219.27 (g) (all at 47 F.R. 43037, Sept. 30, 1982). They permitted the Forest Service to rely on “species diversity,” see 36 CFR 219.3 (47 F.R. 43037, Sept. 30, 1982), pursuant to which the creation of diverse habitats through timber harvest, including the open areas created by clearcutting, could be considered beneficial. Litigation which sought the abandonment of this approach in favor of consideration of the entire forest as a species refuge was unsuccessful when it focused its challenge on these provisions, with the Court deferring to the agency’s expertise. See Sierra Club v. Marita, 46 F.3d 606, 619-623 (7th Cir. 1995).
The Viability Regulation
But one of the regulations with which the scientists fleshed out the diversity requirement focused specifically on the potential for “eradication of species” cited by the Fifth Circuit. See Espy, 38 F.3d at 800; see also Marita, 464 F.3d at 621. The “viability regulation” required that [f]ish and wildlife habitat Â… 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 at 47 F.R. 43037, Sept. 30, 1982. A viable population was defined as “one which has the estimated numbers and distribution of reproductive individuals to insure its continued existence is well distributed in the planning area.” Id. To insure viability, habitat was required to support “a minimum number of reproductive individuals” and be distributed to permit interaction. Id.
Since not every species could be monitored, the Forest Service was to select “management indicator species” whose population trends would be monitored to observe the effects of management activity-induced habitat changes on the species group. Id.
The Conditions for Controversy
The National Forests of the Pacific Northwest contain, albeit a small remnant of what they originally held, the last remaining pre-settlement “old growth” forests in the lower 48. Old growth is home to habitat specialists among species, and one of these species, the northern spotted owl, was designated by the Forest Service as a management indicator species for this habitat. The area’s streams are utilized by imperiled salmon runs. Preserving the old growth forests became the focal effort of environmental and recreational interests.
On the other side, the percentage of timber harvested from federal as opposed to state and private lands is comparatively large in this region, creating historic dependency in the local economy on its availability. Old growth timber is particularly suitable for the manufacture of veneers, and many mills were machined up for this product. The stage was set for major conflict.
Seattle Audubon Society v. Evans
The teeth that the viability regulation provided plaintiffs was most strikingly instanced in Seattle Audubon Society v. Evans, 1991 WL 180099 (W.D. Wash. 1991), one of the long series of spotted owl cases adjudicated by the Honorable William L. Dwyer.1 At this juncture in the ongoing controversy, the spotted owl had been listed as a “threatened” species under the Endangered Species Act (ESA), and the Forest Service had taken the position that compliance with the ESA relieved its duties to plan for the “viability” of the owl under the NFMA regulations. Judge Dwyer disagreed:
The duty to maintain viable populations of existing vertebrate species requires planning for the entire biological community-not for one species alone. It is distinct from the duty, under the ESA, to save a listed species from extinction.
Id., Slip Opinion, p. 6.
The Forest Service was enjoined from further timber sales in spotted owl habitat in Regions 6 (Washington and Oregon) and 5 (effectively, Northern California) until standards and guidelines ensuring the owl’s viability were in place. Seattle Audubon Society v. Evans, 771 F. Supp. 1081, 1096 ( W.D. Wash. 1991). The Court of Appeals affirmed. Seattle Audubon Society v. Evans, 952 F. 2d 297 (9th Cir. 1991).
The scientific reference for Judge Dwyer’s view that viability required planning for the entire biological community stemmed from analysis produced by the Federal Government itself in the May 1990 Report of the Interagency Scientific Committee for the Conservation of the Northern Spotted Owl. The “ISC Report” adopted the viewpoint of “island biogeography” that spotted owl survival required large blocks of habitat and corridors for dispersal as opposed to buffer zones around isolated pairs, which was the existing Forest Service strategy.
Seattle Audubon Society v. Moseley
In response to Judge Dwyer’s order in Evans, the Forest Service adopted the ISC Report strategy. Plaintiffs challenged again alleging both that the ISC strategy would not support the owl’s viability, and that the Environmental Impact Statement issued by the Forest Service had failed to make adequate disclosure of its scientific uncertainty as required by the National Environmental Policy Act (NEPA). Seattle Audubon Society v. Moseley, 798 F. Supp. 1473 (W.D. Wash. 1992). While the Court expressly stated it was ruling on the NEPA claims only, it managed to address the scope of the viability regulation in that context, effectively ruling that the viability regulation’s requirement of planning for the entire biological community could not be satisfied where the NEPA document disclosed that other non-indicator species were imperiled by the proposed strategy. Id. at 1483.
Following a hearing on injunctive relief, the Forest Service challenged this ruling, urging that the viability regulation was satisfied by a showing that the needs of the indicator species were addressed, and that in any event, the reported adverse impacts on other species were those of a scientific panel, and not its own. The Court reaffirmed its ruling, and in addressing the latter point, made clear that if the low survival rates for non-indicator species had been the Forest Service’s own, “summary judgment under NFMA would be entered now.” Seattle Audubon Society v. Moseley, 798 F. Supp. 1484, 1490 (W.D. Wash. 1992). The Court again enjoined timber sales in spotted owl habitat until revised standards and guidelines in compliance with NFMA and NEPA were in place. Id. at 1493-94.
For the first time, the environmental groups had been able, through their focus on the viability regulation, to give teeth to the view that NFMA’s diversity provisions created a “substantive limitation” on commercial timber harvesting.
The Court’s injunction, together with a NEPA-related injunction issued against the Bureau of Land Management for those forests it managed in Oregon and Northern California, placed over 24 million acres of the publicly owned forest land of the Pacific Northwest, the vast majority of it Forest Service lands, off limits to commercial timber harvesting.2 The Government was faced all over again with a Monongahela–style crisis. The reduction in timber supply, particularly to the public-land-dependent industry and communities of the Northwest, was intolerable. And yet resuscitating timber harvest had to be consistent with the clear mandate of the Courts to the Forest Service to provide science-based protection for the viability of vertebrate species under NFMA, as well as with the recovery strategies for those species listed under the Endangered Species Act.
The Northwest Forest Plan
The Administration responded with a strategy which embraced in its totality the viability regulation as interpreted by the Ninth Circuit, dividing the National Forests and the BLM forested lands into reserves from which all harvesting except thinning necessary to maintain old growth characteristics would be excluded, and the remaining lands, called “matrix,” where, subject to stringent environmental protections, timber harvest could go forward. The reserves protected from timber harvest eighty percent of the late successional old growth (“LSOG”) forest. Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 1305 (W.D. Wash. 1994) (Dwyer, J.), aff’d, 80 F. 3d 1401 (9th Cir. 1996). From the matrix, it was projected that an annual harvest of 1 billion board feet could be obtained, substantially less than historic pre-injunction levels. Id. at 1305-6. Panels of experts were engaged to assess the impacts of the alternatives on the viability of over 1000 plant and animal species, including invertebrates not covered by the viability regulation. Id. at 1303. Not only did the combined agencies examine the viability of invertebrates, they effectively applied the principle to the BLM lands, where no similar regulatory mandate existed.3 The assessment team found that the selected alternative would provide an 80% or better likelihood of providing habitat supporting viable populations of all vertebrate species except three idiosyncratic salamander species. Id. at 1316.
Seattle Audubon Society v. Lyons
Both the timber industry and the environmental groups filed suit to stop the Northwest Forest Plan (NFP). The timber industry challenged the viability regulation itself, effectively arguing that to interpret it as establishing a floor for species survival ignored its statutory subjection to multiple use allocation. Id. at 1315. The Court held that NFMA’s command to issue regulations gave the viability regulation legislative effect “entitled to more than mere deference or weight,” and that in all events, the companion regulations on diversity made “clear that planning for species diversity occurs with multiple use principles in mind.” Id. at 1316, 1315.
The environmental plaintiffs by contrast challenged the application of the viability regulation, mounting a complex and sophisticated attack on the methodology used to assess viability. While it agreed with plaintiffs that the viability regulation required the agencies to look to species populations and not “merely to habitat for hypothetical populations,” the Court nevertheless found that the NFP’s habitat-focused assessment “adequately considered” populations. Id. at 1316. On appeal, certain of the environmental plaintiffs argued that the viability regulation required the Government to select an alternative which the panels had assessed had a higher likelihood of sustaining viability for particular species. The Court would not allow the interpretation of the viability regulation to be pushed this far, stating that “the selection of an alternative with a higher likelihood of viability would preclude any multiple use compromises contrary to the overall mandate of NFMA.” Seattle Audubon Society v. Moseley, 80 F.3d 1401, 1404 (9th Cir. 1996).
The Government prevailed on all issues in its defense of the NFP. At the end of the day in the Ninth Circuit, on the question of whether NFMA imposed “substantive limitations” on timber harvest, what could be said is that the viability regulation was such a “substantive limitation,” and required the Forest Service to make a reasonable and scientifically based projection of species survival in the affected ecosystem. However, it was equally clear that the Forest Service retained discretion to provide for timber harvest, even if its projections of the effects on species stopped short of that absolute certainty of species survival which the language of the regulation arguably required.
1 This article’s focus on the viability regulation is only part of the litigation history concerning the spotted owl and the Northwest’s old growth forests, which involved Endangered Species Act litigation, National Environmental Policy Act (NEPA) litigation, and litigation arising from Congress’ attempt to legislate a solution to the controversy. The litigation involved not only the nineteen National Forests containing spotted owl habitat but also forested lands managed by the Bureau of Land Management. For a concise summary of that litigation through the year 1992, prepared from the perspective of a principal plaintiff litigator, see Sher, Travels with Strix: The Spotted Owl’s Journey through the Federal Courts, 14 Pub. Land. L. Rev. 41 (1993).
2 Portland Audubon Society v. Lujan, 795 F. Supp. 1489 (D. Or. 1992), aff’d, 998 F.2d 705 (9th Cir. 1993).
3 The Court held that the agencies had discretion to use the criterion in protecting the long term health and sustainability of the BLM forests in accordance with the Federal Land Policy and Management Act, the Oregon and California Lands Act, and the Endangered Species Act. Id. at 1316.