Four Failed Forest Standards: What We Can Learn from the History of the National Forest Management Act's Substantive Timber Management Provisions

Abstract

In 1897, Congress gave a federal agency -- first the Department of the Interior and, after 1905, the United States Forest Service (Forest Service)-- the power to sell designated and marked,dead, mature or large trees on National Forest land. From the earliest years of Forest Service management, the Forest Service ignored this provision. Only after almost seventy years of management and the advent of widespread clearcutting did a court order the Forest Service to comply with the language of the law. The inertia of decades of illegal management coupled with the logic of industrial forestry led to the prompt repeal of the limiting provision. In 1976, in the National Forest Management Act (NFMA), Congress passed a more self-conscious and detailed series of substantive limitations. As with the 1897 limitations, the 1976 limitations have not provided a legal basis for significantly altering Forest Service timber management practices through judicial intervention. In case after case, environmental groups have endeavored to use these apparently clear and forceful standards to modify Forest Service management and, in almost every case, they have failed.

This is not to say that environmental litigation since 1976 has not affected Forest Service practices. But the laws that have changed Forest Service timber practices forever -- the Endangered Species Act and the Forest Service's own regulation 36 C.F.R. 219.19, most obviously -- are not directly concerned with Forest Service timber management practices. This makes the failure of substantive legal standards plainly intended to modify those practices all the more interesting.