Monday, September 17, 2012

"We Despise Entitlements and Taxes!...Er...Unless They Support Our Business" - Musings on the Opposition to the New Forest Service Planning Rule

Forest Service Planning Rule
Recently I commented on timber, ranching, and off-road recreation groups' recent challenge (which you can read here) to the Forest Service's new planning rule (which you can read here). Ultimately the debate is about whether the new planning rule can require stronger consideration of ecosystem services, habitat protection, and other environmental objectives during the planning process for operations on federal forest lands. I thought I would provide a bit further explanation of my thoughts here.

As Jim Salzman, James Rasband, and Mark Squillace so eloquently point out in their natural resources law book on the subject, the history of the Forest Service’s primary focus on consumptive use of forest products is deep. Gifford Pinchot, the first head of the Forest Service, actually opposed the creation of national parks because he believed that forests should not be considered recreation or ecological preserves. Yet as long ago as 1960 the Multiple Use and Sustained Yield Act expanded the purposes of national forest management beyond timber extraction to include, at least on paper, "outdoor recreation, range, timber, watershed, and wildlife and fish purposes." All of these uses were to be treated co-equal and managed on balance with the other uses, even though as a practical matter this mandate did not really change the long-standing focus on extraction. In addition, the National Forest Management Act itself gives the Forest Service a great deal of discretion in the planning process, requiring it to use an interdisciplinary approach and to integrate understandings of physical, biological, and economic sciences in order to “insure consideration of the economic and environmental aspects of various systems of renewable resource management,” and to “provide for diversity of plant and animal communities based upon the suitability and capability of the specific land area in order to meet overall multiple use objectives.” The agency was further directed by Congress to appoint a committee of scientists to provide advice on how to achieve these management objectives, which it clearly did in crafting the current rule.

In this way, the new planning rule does not seem extraordinary. In fact, since the 1960’s the Forest Service has continually had to answer to challenges that it was not following statutory multiple use requirements because it continued to elevate extraction over other uses - in other words, the Forest Service has had to consistently answer to challenges that it has consistently not done what it now seeks to do. So if anything the court challenge may be construed as challenging the shift from traditional practice notwithstanding statutory mandates, rather than a valid challenge to the text of the statutes at issue.

This gives rise to a solid argument that the new rule actually corrects an imbalance in the past, whereby “multiple use” language that should have been aimed at protection of ecosystem services, habitat protection, etc. was basically ignored, and these values were excluded from the planning process. These services are critical not only to the ecological health of a forest, but the long-term economic well-being of both the timber industry as well as the public with access to and living adjacent to national forests. As I have blogged about previously, these services are worth a great deal from both an ecological and economic perspective, and include watershed protection (protecting both the quantity and quality of water available), soil stabilization and erosion control, air quality (such as reducing particulate matter and other pollutants), climate regulation and carbon sequestration, biological diversity, recreation and tourism, and even non-timber commercial products, such as medicines or food (such as salmon in the Pacific Northwest), only to name a few services.

Beyond the law and policy aspects of the rule and its challenge, I cannot help but consider the curious position of some sectors, traditionally associated with vocal opposition to increased taxes and "government handouts" or entitlements, who seem to embrace so readily the misuse of tax dollars and the receipt of their own entitlements. These forests are everyone's forests - we all pay taxes to maintain our national forests. Those with economic interests in and directly adjacent to national forests seem to ignore that fact when they assert a monopoly on the goods and services provided by national forests. Perhaps I and other citizens would like habitat protection to be part of the planning process because I would like for that habitat or wildlife to exist the next time I go visit a national forest for which I am paying.

Similarly, it is fascinating to watch these groups so stringently assert rights to entitlements to which they have become accustomed, and apparently dependent upon as a form of corporate welfare. Their economic operations and recreational pursuits are dependent upon lands and resources provided by the government, and are directly subsidized by citizens' taxes. At the first sign of those entitlements being taken away, these groups cry foul, much like those European citizens in opposition to the austerity measures taken by governments whose political philosophy would likely not match up with large blocks of those currently opposing the rule.

Regardless of my interest in these political aspects of the situation, ultimately I think there are good arguments that the new planning rule, while potentially seen as a dramatic shift from traditional practice and the institutional inertia of the Forest Service, is not a dramatic shift from the text of forest management statutes – and indeed seems to be shifting more closely to the requirements contemplated by the text of those statutes.

- Blake Hudson 

http://lawprofessors.typepad.com/environmental_law/2012/09/we-despise-entitlements-and-taxeserunless-they-prop-up-our-business-musings-on-the-opposition-to-the.html

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