Forests: Law, Conflict and
Sustainability
By Peter Berck
University of California,
Berkeley
(c) 1998, 2010 by Peter Berck
1
Goals
• This is the story of shifting goals and the effect
they have on multiple use planning.
• Planning history in PNW
• Politics and Planning
2
Multiple Use is Unavoidable in Forests
• Water quantity insensitive to management
– but quality can be affected by management
• Recreationalists can’t be excluded
– but can be encouraged with facilities
• Wildlife lives there anyway
– but clearcuts favor big game.
3
Multiple Use: Which Use Shall Be
Master
• American Politics drives multiple use
management in the forests of the West.
• There are three distinct political and
management regimes: Pre, During, and Post
Owl
4
Postwar and Pre-Owl
• Political agreement on timber
• Informal tools--discretion
5
Planning: Old Style
• Planner
– professional forester
– knowledge of resource
• Owner
– preferences over uses
– supplies capital
• Planning job
– determine preferences
– determine budget
– find best plan among
feasible plans
– easily amenable to
programming
formulation, but there
was no need to do so!
6
The Catch
• The catch was that there needed to be an
owner. A close substitute would be wide
consensus on the appropriate goals and a
political willingness to let the planner
determine the goals within that consensus.
• Before ~1970, management of the Forests was
not so contentious.
7
Multiple Use Sustained Yield Act of
1960
• Multiple Uses
–
–
–
–
–
–
recreation
range
timber
watershed
wildlife
fish
• No one use is to
predominate
• “High level annual …
output
• without impairment of
the productivity of the
land”
• (later wilderness is
added)
8
Agency Freedom
• The USFS had ample latitude to operate
forests as it wished under MUSY of 1960.
• The act codified what USFS was doing anyway.
• The Agency was trusted and political
consensus was pretty high.
• This was easy because there were substantial
areas untouched by cutting.
9
Old Stated Objectives
• Community Stability:
JOBS
– coincident with mill
profits
• Supply of Fiber (that’s
wood)
• Recreation
– Game and Fish
– Scenic Drives
– Hiking
• Went together:
– More wood is more jobs
is
– more open forest
– is more game
10
Wilderness Act (1964)
• FS had designated wilderness on its own and
was now constrained by law on those areas.
• Forced to study additional lands for inclusion.
• Large single purpose reserves went against
the Multiple Use grain.
• The Planner would not decide which lands to
reserve
11
Politics and Formalized Planning
• Oddly played out through acts thought to
innocuous or planning acts
– National Environmental Policy Act
– Endangered Species Act
– Resource Planning Act
12
NEPA
– Before a major federal action can be taken, the
agency must
• Get public comment on issues to be considered
• Make a plan (Environmental Impact Statement) and
several alternative plans
• Get public comment on the plans
• Choose a preferred alternative
– This was not thought to be radical legislation.
13
Resource Planning Act (‘74)
•
•
•
•
Resource assessment at the National level
Targets for Regions and Forests
Plans to meet those targets
This act was a way for the FS to get long term
agreement by Congress on goals and for the
Industry to get a clear mandate to produce
wood.
14
RPA Didn’t work
• Environmentalists wanted more wildland than
the FS was planning for.
• Monongahela Decision: Resurrected language
in 100 year old law that made it necessary to
consider each tree before cutting.
• Clear need for new legislation
15
National Forest Management Act
(1976)
– Political compromise
– Non-declining flow
• meant to preserve oldgrowth
• would only delay cut out
– CMAI
• meant to put teeth into sustained yield
• ecologically meaningless: trees still too small
16
Endangered Species Act
– Can’t take animal, even on private land
– Take includes remove habitat
– Must list habitat to be protected
– Leads to legal question: when does regulation
become confiscation of property?
• Current answer is when no economic use possible
17
Taking vs. Police Power
• May regulate land use (no factories in the
Berkeley hills.
• What about a zoning for open space?
– probably meets “no economic use”
– especially if right to exclude others is gone
– even temporary denial is a taking
• Can’t use law for other purpose:
– you can’t have a building permit unless you give
the county the area around the stream
18
Participation
• RPA
– Interdisciplinary Teams (Regs. Restored
supervisors power)
– Public comment
– Full written disclosure to public
• ESA
– Public right to sue to protect animals
• Public could see and could sue
19
Formal Planning
• Under NFMA and RPA, formal planning for
multiple use was carried out by linear
programming.
• The basic idea was to maximize present value
of timber, subject to CMAI, non-declining flow,
and other constraints.
• The Spotted Owl became the most celebrated
constraint
20
Traditional Problems with Planning
• Find the Cut
– Plans were not spatial
– Foresters still had to
designate specific
parcels to be cut
– Hard to see cumulative
effect of decisions
because of mapping
technology
• The problem (Hrubes)
– The cuttable land base
was much smaller than
the planned land base
because of streams,
Indian burial grounds,
needed habitat, etc.
– Difference only
discovered when
“finding the cut”
21
Allowable Cut Effect
• To get nondeclining
flow
– cut oldgrowth now
– plan to cut unprofitable
trees later
– When later comes, make
new plan and don’t cut
remote trees
– Thus cut declines under
non-declining constraint.
• Industry likes this. They
get more wood
• Environmentalists hate
this. They see
oldgrowth cut down
sooner.
• It is an example of “no
commitment”
22
Forest Plans Took Forever
• Not innocent: Old plans used while waiting.
– Once it was clear that the plans would call for less
timber, industry and Republican administration
did not want plans to be final
– Environmentalists obliged by obstructing plans for
their goals.
– (graphic on how much plans did to cut)
23
Spotted owl habitat
Goshawk habitat
Visual retention
Partial Visual ret.
Bald eagle habitat
Semi-primitive
WILD AND SCENIC RIVER
RECREATION AREA
Minimal management
Private Land
Timber emphasis
24
Owl Lead-up
• FS released draft EIS on owl in August of 1986,
5% cut reduction
• Final EIS April 1988, little less than 5% ASQ
reduction
• But, this wasn’t enough to comply with the
law to protect the Owl, which wasn’t even yet
officially “threatened”
http://www.sweet-home.or.us/forest/owl/index.html
Injunction
• March, 1989. Order restraining the FS from
offering 139 planned sales.
• Yaffee (Wisdom of the Spotted Owl) takes this
as the pivotal action
– There was a FS owl plan before this
• Point at which the Owl became primary
26
Listing of the Owl
• June 1989, proposed listing of Owl as
threatened in Fed. Register
• June 1990 listed, but no critical habitat
27
Congress in the Act
• No stranger control
– Non-sustainable ASQ as
far back as Carter
– 1984 Bailout
• Because of inflation,
companies bid too much
for timber; Congress
released them from their
contracts withou full
penalties.
• Hatfield-Adams
• 1989. Prescribed the sale
for (fiscal)‘89-’90
• 9.6 billion bd ft
• streamlined appeals--SEIS
not subject to judicial
• no temp restrain or
prelim injunct on fisc ‘90
timber sales
• deadlines for judicial
review; special masters
28
Interagency Scientific Committee
– Future Chief Thomas, a biologist and others
– April 4 1990
– Reduce harvest levels in owl area by 30-40%
29
Listing of Habitat May ‘91
• Fish and Wildlife complies with ESA (finally)
– Takes ISC report and enshrines it in law
– critical habitat 11.6 million acres
– of which 3 million were private
• Small administration counterattack
– 1992 G_d Squad exempts small number of sales
for BLM
30
FEMAT: Option 9
– “ecosystem management plan,” holistic, adaptive
– Option 9 is response to summit in april ‘93
• Timber: year 1, 2 b bdf; then 1.7 b bdf then decline to
near 1 billion in the long run so it averaged to 1.2 b bdf
over 10 years.
• About 90% reduction from the all time highs
– adaptive management
• local communities and agencies
– still protects owls
31
Presidents Forest Plan
– Is Option 9
• Less timber
• More attention to “ecosystem”
• Replaces the planner: Jack Ward Thomas
– and then Mike Dombeck
32
Congress Sets Cut Directly (again)
– Salvage Rider (good for two years)
• Response to destructive fires
• Response to declining cut
– Under the logging provision, the U.S. Forest
Service is directed to double the cutting of dead
and dying trees in national forests over the next
18 months. The agency would be virtually
unhindered by the Endangered Species Act and
other laws protecting wildlife, and timber sales
would be exempt from court challenge. (Bee,
JULY 27, 1995)
33
Murrelets
• The marbled murrelet was listed as
threatened on October 1, 1992
• It nests in older redwood trees.
• Various species of trout and salmon are also
listed as endangered.
• Endangered species also live on private land.
34
The Murrelet lives in
the valuable timber. ESA
prohibits cutting. A Deal
for Headwaters in the
the works.
Map Copyright © 1998 California Resources Agency. All rights
reserved.
Headwaters Deal
• US and State to buy Headwaters for $250 m
(fed) + $130 m (state)
• Agree to Habitat Conservation Plan for rest of
PL’s holdings.
• Does the HCP enable of hinder PL?
– Headwaters sold for less than market
– Environmentalist complaint about Salmon habitat
continues
36
Stakeholder Processes
– Get the interested parties into room
– Bargaining in shadow of the law
• ESA
• Political power
– Clausowitz: War is the continuation of politics by
other means
– Republicans and Environmentalists ascendant at
same time
37
Quincy Library Group
– Locals (Jobs/Timber/Fire) try to get Congress to
accept their view over
– National Conservation Organizations
(Animals/Oldgrowth)
– in planning for N. Sierra Forests
– Big Issue is condition: Locals want thinning to
reduce fire risk
– Is an “adaptive management” experiment
38
Making Sense of the Record
• Explain the outcome with Political Economy
• Find the implications for Planning
39
New Emphasis on Stock
• Agency and Administration
• Protect Wildlife per se (stock): owls and Fish
• Fire (stock): reduce hazard for wood and for
communities
• Create “healthy,” “natural,” or “diverse” forest
(stock)
– get back to pre-european conditions
40
Counterpoint
•
•
•
•
Republican and Congressional
JOBS (flow)
Timber (flow)
But, Jobs makes much better politics than
timber.
41