National Forest System Planning: Legal Considerations

National Forest System Planning: Legal Considerations

December 20, 2021
National Forest System Planning: Legal Considerations
The United States Forest Service (FS) within the
as well as additional guidance. For example, multiple forest
Department of Agriculture administers the National Forest
plans in the northwest incorporate regional standards and
System (NFS) and regulates activities on its 193 million
guidelines for the management of Northern Spotted Owl
acres of land, including 154 national forests. FS undertakes
habitat.
forest planning at the programmatic scale to establish a
strategic framework for forest management, which is then
NFMA sets out procedural requirements for creating or
implemented through various project-scale activities,
amending a forest plan. Key steps include forming an
permits, leases and contracts. This In Focus discusses the
interdisciplinary team to prepare the plan, consulting about
legal framework and decision-making processes for NFS
potential environmental impacts, issuing a draft, and
planning at the programmatic scale, in consultation with
receiving public comments. Forest plans must be updated
federal agencies, state and tribal officials, and other
every 15 years unless exempted by Congress and may be
stakeholders.
amended (pursuant to applicable requirements) at any time.
Project-level decisions, such as commercial timber harvest,
Statutes Pertaining to Forest Planning
must then be consistent with the forest plan in effect.
The Forest and Rangelands Renewable Resources Planning
Act (16 U.S.C. §§ 1601 et seq.), as amended by the
Forest plans also establish different use requirements or
National Forest Management Act (NFMA; 16 U.S.C.
zoning for various parts of the plan’s overall geographic
§ 1604) establishes substantive and procedural requirements
area. Those requirements are evaluated and chosen in part
for NFS planning. The Multiple Use-Sustained Yield Act
based on their suitability for promoting specific plan
(16 U.S.C. §§ 528 et seq.) sets forth the multiple uses for
objectives such as identification of potential roads or
the National Forest System, including outdoor recreation,
roadless areas, species habitat protections, and timber
timber, range, wildlife and fish, watersheds, and wilderness.
production.
Requirements related to forest planning are also found in
the Healthy Forests Restoration Act (HFRA; P.L. 108-148)
FS conducts planning in accordance with the procedural
and Federal Land Policy and Management Act (43 U.S.C.
requirements of the Administrative Procedure Act (APA; 5
§§ 1701 et seq.; requiring agency and tribal coordination).
U.S.C. § 551 et seq.). In addition, the National
Requirements specific to Alaska, which contains more than
Environmental Policy Act (NEPA; 42 U.S.C. §§ 4321 et
10% of NFS land, are found in the Alaska National Interest
seq.) and the Endangered Species Act (ESA; 16 U.S.C. §§
Lands Conservation Act (16 U.S.C. §§ 3101 et seq.). In
1531 et seq.) apply to the planning process and often play a
concert, these authorities set the legal framework in which
substantial role. Unless exempted by a specific federal law,
FS implements the various goals, policies, and processes
if a forest plan or amendment could significantly affect the
that apply to the multiple—and sometimes competing—
environment, NEPA requires FS to consider environmental
uses of NFS lands. FS has implemented these statutes
impacts. This consideration typically requires FS to
through regulations including the planning rule (36 C.F.R.
evaluate alternatives, consult with relevant agencies, allow
part 219)---which following years of litigation now
public comment, and publish a detailed environmental
routinely applies to new plans and amendments---and
impact statement. Under the ESA, FS generally must
guidance documents including FS Manual 1921 and
engage in inter-agency consultations to ensure the action
Handbook 1909.
does not jeopardize listed species or adversely modify
critical habitat.
Programmatic Decision Making
The FS makes land management decisions at both
Forest Planning in the Courts
programmatic and project levels. Programmatic scale
Federal courts have often had the opportunity to consider
decisions are strategic forest management decisions
the interpretation and implementation of federal forest plans
applicable to broad-scale geographic areas such as a forest
and planning processes, particularly in the Ninth and Tenth
unit (for example, an entire National Forest) or at the
Circuits. Lawsuits that challenge only a forest plan decision
landscape- and watershed-scale.
are relatively rare. More commonly, a challenge to a
project-level decision may include plan-scale concerns
A key FS planning document is a 15-year land use
about new information or conditions not initially
framework known as a forest plan. Under NFMA, the forest
contemplated in the underlying plan, which may be more
plan governs the various areas, activities, and projects that
than a decade old.
may take place within a forest unit. Each forest plan
contains a set of objectives related to the desired forest
NFMA does not provide an independent mechanism for
condition as well as binding standards and guidelines that
judicial review, so challenges to forest plans are typically
provide the technical specifications and rules for projects,
brought pursuant to the APA, under which courts consider
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National Forest System Planning: Legal Considerations
whether an agency action is inconsistent with statutory
reduce the risk of uncharacteristic wildfire. For some
authority or is arbitrary, capricious, or an abuse of
specific activities at the project scale, HFRA reduces or
discretion. Under this standard of review, courts have
excludes some NEPA requirements, and courts have
determined that forest planning laws afford considerable
therefore affirmed NEPA exclusions for forest health
discretion to the FS to prioritize specific uses, provided the
projects that remove wildfire fuel (including forest debris
agency follows the appropriate decision-making processes.
and vegetation), preserve old growth forests, and support
For example, a forest plan may identify areas to be
resilience. Courts have been more divided, however, about
managed for recreation, wildlife and fish conservation,
reviewing wildfire risk management planning impacts at the
watershed protection, timber production, or grazing, and
landscape level. In 2020, the Tenth Circuit declined to
courts will typically respect those substantive decisions as
consider forest plan-level impact concerns arising under
long as FS provides a reasoned basis for them. As a result,
multiple HFRA projects categorically excluded from NEPA
much of the litigation related to forest planning under the
in Wild Watershed v Hurlocker, 961 F.3d 1119, while the
APA involves challenges to the planning process, including
Ninth Circuit required a hard look at strategies to reduce
the adequacy of consultations under the ESA or analyses
wildfire risks in Bark v. U.S. Forest Service, 958 F.3d 865.
under NEPA. Courts may set aside decisions where FS did
not follow required procedures for decision-making.
Considerations for Congress
Conservation
Backlogs
Litigants challenging planning decisions may rely on
The FS is legally required to monitor and improve plans,
particular forest plan objectives or guidelines, broader
and to update them at least every 15 years. FS sets a goal of
regional planning efforts that may be incorporated into
completing an updated forest plan process in four years.
forest plans, or applicable laws such as those discussed
According to the FS, as of February 2021, 25 forest plan
above. While reviewing courts generally defer to FS in
updates (more than 20% of forest plans) had not been
choosing between multiple uses, they have scrutinized
finalized within this 15-year period. Staffing, budget, and
whether forest planning and project decisions are consistent
procedural considerations have all been cited as reasons for
with applicable statutes (such as NEPA and the ESA) and
the backlog of outdated plans. Congress regularly provides
have taken all relevant factors into account.
for plan timeline extensions (see, e.g., P.L. 116-6, Div. E,
Title IV, § 407). More permanent solutions may be to
Conservation concerns may be raised as new information
change the timeline legislatively for forest plan updates
becomes available after a forest plan is adopted. For
from 15 years to a longer or indefinite period of time,
example, in Cottonwood Environmental Law Center v. U.S.
increase funding for forest planning, or reduce procedural
Forest Service, 789 F.3d 1075 (9th Cir. 2015), the Ninth
requirements for updates, among others.
Circuit held that the FS must reinitiate ESA Section 7
consultation on an existing forest plan when a new species
Discretion
is listed or critical habitat is designated in the area affected
Given the broad agency discretion that Congress has
by that forest plan. Congress responded with a law that
established to manage the NFS for multiple uses, the courts
exempted the FS from this requirement if certain other
have typically granted substantial deference to the FS in
conditions are met (P.L. 115-141 Div. O, Title II §208), but
balancing those uses in forest plans. Some of the legal
it did not alter the requirements of the ESA for new agency
requirements described above, in particular NEPA and ESA
decisions.
requirements, apply only when an agency makes a
discretionary decision. Some have suggested that the
Resource Extraction and Other Land Uses
persistent delays in forest plan updates could be mitigated
Forest plans also identify areas suitable for resource
by reducing the scope of the FS’s discretion or by reducing
production and extraction, such as timber harvesting,
the types of environmental factors or alternatives the FS
grazing, and mineral exploration and development.
must consider. Others have suggested that such changes
Occasionally, litigants may challenge FS’s decisions about
could restrict the ability of the FS to adapt to local
the long-term impacts from grazing or which areas may be
conditions or to balance multiple uses at a programmatic
suitable for timber production. Consistent with a governing
level.
forest plan, the FS may authorize occupancy and use of
NFS lands for other purposes which are also typically
Additional references: CRS Report R43872, National
litigated at the project level. For example, in U. S. Forest
Forest System Management: Overview, Appropriations,
Service v. Cowpasture River Ass’n, 140 S. Ct. 1837 (2020),
and Issues for Congress; CRS Report R46976, U.S. Forest
the Supreme Court affirmed that FS can grant an easement
Ownership and Management: Background and Issues for
for a pipeline across the Appalachian Trail.
Congress; CRS Report R46504, Forest Service Inventoried
Roadless Areas (IRAs)
Wildfires and Forest Health
At Congress’s direction, a group of federal agencies and
Kristen Hite, Legislative Attorney
states developed a comprehensive strategy for reducing
wildland fire risks. Pursuant to HFRA, the FS incorporates
IF12004
that strategy into its planning to improve forest health and

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National Forest System Planning: Legal Considerations

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