September 01, 2015

Planning Rule Challenged: No Timber Group Standing

Erin Flannery Keith

On April 28, 2015, the U.S. District Court for the District of Columbia ruled that a group of timber and ranching interests lacked standing to challenge the U.S. Forest Service’s (Forest Service) 2012 Planning Rule because they did not allege that the rule, a framework meant to guide future forest and rangeland management decisions, caused an imminent, cognizable, redressable injury. See Federal Forest Resource Coalition v. Vilsack, No. 12-1333 (D.D.C. Apr. 28, 2015). After nearly forty years of uncertainty due to courts invalidating planning rules and the Forest Service relying on a rule based on 1982 science and policy, this case upholds a rule that can modernize forest management.

The Forest Service balances multiple statutory mandates with competing stakeholder interests. At the national forest system’s inception, the Forest Service Organic Administration Act (OAA) of 1897 provided two goals: “to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows” and “to furnish a continuous supply of timber for the use and necessities of citizens of the United States.” 16 U.S.C. § 475 (2013).

The Multiple Use-Sustained Yield Act of 1960 (MUSYA) stated five equally weighted national forest purposes: outdoor recreation; range; timber; watershed; and wildlife and fish purposes. 16 U.S.C. § 528 (2013). The MUYSA defined “sustained yield” as “the achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” Id. at § 531.

The National Forest Management Act of 1976 (16 U.S.C. § 1604(a) (NFMA) further detailed the Forest Service’s structure for balancing timber production with protecting wildlife, ecosystems, and recreation. The NFMA requires the Forest Service to promulgate a planning rule that provides a blueprint for each national forest’s management and outlines how the Forest Service should implement each site-specific forest project. The Forest Service adopted their latest planning rule in April 2012. See National Forest System Land Management Planning, 77 Fed. Reg. 21,162 (Apr. 9, 2012), 36 C.F.R. § 219 (2014) (2012 Planning Rule). Forest Service planning rules are not strangers to litigation and controversy. All five planning rules since the NFMA’s 1976 passage have been controversial with both timber industry and environmental advocates. After finding implementing the 1979 Planning Rule proved unduly burdensome, the Forest Service promulgated another planning rule in 1982. To update that rule’s scientific underpinnings, the Forest Service promulgated a planning rule in 2000 but withdrew it after it was challenged in two federal courts. The Forest Service issued a new rule in 2005 and updated it in 2008, but federal courts invalidated the rule in 2008 because of National Environmental Policy Act (NEPA) and Endangered Species Act (ESA) deficiencies. The Forest Service returned to implementing the 1982 rule while developing the 2012 rule.

All planning rules have shared the same basic structure, based on the NFMA. First, the Forest Service promulgates the overall planning rule. Second, based on the latest planning rule’s policies and priorities, Forest Service Regions and Districts develop forest plans for routinely managing each national forest unit. Finally, Forest Service Districts make project-level decisions to authorize specific management or extraction projects. Once the Forest Service decides to authorize a project pursuant to these three planning stages, the agency’s decision is subject to judicial review pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–706 (2013).

Like the planning rules before it, the 2012 rule sets out the framework for forest plan and site-specific project components and procedures, but does not itself establish any forest plans or authorize any site-specific projects. The rule is meant to be flexible according to geographic area: each forest plan is to “reflect the unit’s expected rules and contributions to the local area, region, and Nation, and the roles for which the plan area is best suited.” 36 C.F.R. § 219.2(b).

The 2012 Planning Rule requires using “the best available scientific information to inform the planning process.” Id. at § 219.3. When assessing, developing, or revising a forest plan, the Forest Service must “consider and evaluate existing and possible future conditions and trends of the plan area, and assess the sustainability of social, economic, and ecological systems within the plan area, in the context of the broader landscape.” Id. at § 219.5(a)(1). In the preamble, the Forest Service is clear that “the Rule contains a strong emphasis on protecting and enhancing water resources, restoring land and water ecosystems, and providing ecological conditions to support the diversity of plant and animal communities, while providing for ecosystem services and multiple uses.” 77 Fed. Reg. at 21,163. The rule bears this out. The plans must include components, including standards or guidelines, to maintain or restore the ecological integrity of ecosystems and watersheds, to protect plant and animal community diversity, to promote integrated natural resource management or multiple uses, protect ecosystem services, and to manage timber harvests in accordance with the NFMA. See 36 C.F.R. §§ 219.8, 219.9, 219.10, and 219.11.

The plaintiffs, a coalition of recreational organizations, timber companies, and rangeland and grazing interests, filed their complaint in August 2012. The complaint alleged that the Forest Service’s 2012 Planning Rule violated the OAA, MUYSA, and NFMA and therefore injured the plaintiffs by prioritizing species management and ecosystem protection over timber and rangeland production.

The plaintiffs argued that the rule established a new “mandate to provide ecosystem services” and that the rule also violated the NFMA by not making “the requirement to maintain viable populations of plant and animal species contingent upon the ‘overall multiple-use objectives’ specified by the statute.” Vilsack, slip op. at 14. The plaintiffs claimed that the rule’s requirement for the Forest Service to use the best available scientific information when making planning decisions was an “unlawful limitation on the types of information that can be considered in devising a land management plan,” saying that the requirement contradicts the NFMA’s directive that the Forest Service should base decisions on economics in addition to physical and biological science. Id. The plaintiffs also claimed that the rule unlawfully limited timber harvesting and rangeland available for grazing, and because of the size and scope of the plaintiffs’ various membership groups, individual members were certain to suffer economic and environmental injuries.

Applying the standards in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1994), the court analyzed whether the plaintiffs had alleged a concrete, actual or imminent injury with a causal connection to the defendant’s conduct and that a favorable decision is likely to remedy. The court emphatically found that the 2012 Planning Rule had not yet caused the plaintiffs any concrete losses. The plaintiffs fell on the first prong of the organizational standing test. An organization must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). “It is simply not enough for Plaintiffs to say that, by virtue of their size and membership, their constituent organizations use all of the national forests, and therefore are affected by any regulation pertaining to those forests.” Vilsack, slip op. at 37.

The court found that the 2012 Planning Rule did not, by itself, reduce the amount of forest land available for commercial timber and grazing use or necessarily lead to overgrown and unmanaged forests giving rise to wildfires and insect infestations. Id. at 26. The court disagreed with the plaintiffs’ contention that the rule would cause the plaintiffs to suffer imminent economic or environmental injury because the 2012 Planning Rule, by its nature, is a rule on how to plan. It does not establish forest-specific management plans, prescribe or prohibit certain quantities of timber harvests, or mandate that certain lands be taken out of timber production. The rule authorizes but does not mandate or actualize the kind of injury that the plaintiffs allege. The court also disagreed with the plaintiffs’ claims that the 2012 Planning Rule unlawfully prioritized ecology and species preservation above industrial uses. “The mere fact that that the 2012 Planning Rule requires ‘ecological sustainability’ does not solve Plaintiffs’ lack of imminence or causation problems because, as Defendants point out, Plaintiffs err in assuming that forest uses are mutually exclusive; that, for example, ecological sustainability and timber harvest cannot be achieved in the same location.” Id. at 31.

The court carefully distinguished this case from cases in which forest industry groups have successfully alleged standing and injury in cases challenging Forest Service forest plans and site-specific project authorizations. For example, in Mountain States Legal Foundation v. Glickman, 92 F.3d 1228 (D.C. Cir. 1996), timber associations challenged the Forest Service’s choice of a forest plan alternative that called for a lower level of timber harvesting than other alternative forest plans that had been considered under an environmental impact statement (EIS). The D.C. Circuit found that the timber groups had standing because the plan caused them a cognizable and imminent economic injury: limiting the amount of timber the companies could harvest and sell. However, when forest plans do not specifically designate a harvest level or other specific projects, they may also not be ripe for review. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 728 (1998). The 2012 Planning Rule “says nothing about the level of harvesting for any particular national forest.Vilsack, slip op. at 32 (emphasis in original).

To successfully challenge an agency’s planning regulation, a plaintiff must point to a specific project that was authorized pursuant to the regulation and be injured by that specific project. In Summers v. Earth Island Institute, 555 U.S. 488, 495–96 (2009), environmental groups challenged a Forest Service regulation that exempted certain kinds of timber sales from public notice and comment. The Supreme Court found that the environmental plaintiffs did not have standing to challenge this general planning regulation because they could not point to “any particular timber sale or other project . . . that will impede a specific and concrete” interest. Id. at 495. The 2012 Planning Rule had not yet influenced any forest plans or project authorizations, so the timber industry plaintiffs were not injured. “Plaintiffs do not have standing to challenge the 2012 Planning Rule unless and until they have been—or certainly will be—harmed by a specific land management action, that was made pursuant to a land management plan, which was (in turn) developed pursuant to the 2012 Planning Rule.” Vilsack, slip op. at 37.

Now that the 2012 Planning Rule has withstood its first challenge, forest industry and environmental groups will likely closely watch how its policies influence the Forest Service as it writes forest plans and project authorizations. Future suits could test how the rule’s policies on protecting ecological diversity and the new “best available scientific information” requirement influence real management decisions. Suits would need to allege actual imminent injuries flowing from the Forest Service’s on-the-ground implementation of the 2012 Planning Rule: either that the rule’s new methods resulted in forest plans or project authorizations that did not adequately protect species and ecosystems, or that really did lead to decreased timber and grazing income. This case is a strong reminder to industrial and environmental groups that a case is not ripe where agencies have merely promulgated planning or framework regulations but have not made final permitting or authorization decisions that directly harm the plaintiffs.

Erin Flannery Keith

Ms. Keith works in the Office of Wastewater Management at the U.S. Environmental Protection Agency and is a member of the editorial board of Natural Resources and Environment. The views expressed here are those of the author only and do not necessarily reflect those of the United States or U.S. EPA.