Introduction

Statutory standards for managing federal lands have not been adequately implemented by the land management agencies. The result is that environmental values are often severely damaged or completely overlooked. This article examines the principal statutory management concept — multiple use — especially as it is applied by the Forest Service through the Multiple Use Act, and explores the few judicial attempts to control the multiple use concept. After providing a background by discussing the appropriate standard for judicial review of informal administrative decisions, the article examines the 1970 Dorothy Thomas case and the more recent Tongass Forest litigation. The Ninth Circuit's Tongass Forest decision is given special attention because it reasserts judicial control over the Forest Service's discretion to weigh the various statutory uses under the Multiple Use Act. In addition, the article suggests that vigorous enforcement of the National Environmental Policy Act by the land management agencies, although not yet a reality, has the potential for providing much of the environmental protection presently lacking in the agencies' procedures. The article concludes by stating that NEPA and the Ninth Circuit Tongass decision provide a clear mandate for the land agencies to consider the four non-timber uses equally with timber use under the Multiple Use Act and to manage the public lands to maximize public benefits.

I. Multiple Use

With almost a third of the nation's land managed under a "multiple use" system,¹ the need for careful scrutiny of the system is obvious. The need becomes imperative when one considers how little direction is provided by the applicable statutes and how great is the discretion of the agencies which administer the system.

The multiple use statute² lists five uses for which the national forests are to be managed by the Forest Service: outdoor recreation, range management, wildlife and fish improvement, watershed protection and timber production. The Forest Service is to manage these uses in the combination which will "best meet the needs of the American people." The Act defines multiple use as follows:

The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all the resources; and harmonious and coordinated management of the various resources, each with the other, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output, 16 U.S.C. § 531.

However, the Act assigns no priority to one use over another, and the Forest Service has wide discretion to choose the appropriate combination of uses. The Committee Report accompanying the Act states that the basic concept of multiple use is that "each resource shall have equal consideration with the others over the National forest system as a whole … [but] in particular localities, various resource use will be given priority because of particular circumstances."³

Attempting to coordinate these five major uses, the Forest Service has developed a policy⁴ of promoting those uses in a particular area which result in optimum benefits. This policy operates to restrict recreation (or any other use) when it conflicts with another use in a particular locality.⁵

For the Forest Service, the primary unit in multiple use management is the District Multiple Use Plan formulated [3 ELR 50018] at the bottom rung of the bureaucracy⁶ by one of the 800 District Rangers. Using policy directives issued by the Department of Agriculture and technical expertise from regional offices, the District Ranger coordinates the task of plan development. He must produce a harmonious, integrated plan⁷ from subplans prepared on the various multiple uses. However, there is great discretion during this coordinating procedure, and the Forest Service does not always apply the expertise presented in the subplans. In a recent report to Congress, the Government Accounting Office criticized the Forest Service and the Bureau of Land Management for this practice and recommended that additional resource specialists be obtained and their services utilized.⁸ More broadly, the report also suggested that the land management agencies be required to prepare a record for review stating why such expertise was not necessary if not utilized or why it was not available. At present, the management agencies are under no obligation to justify their failure to follow expert advice.

At the regional level the district plans are approved and integrated into the Regional Plan. The informal procedure for preparing the district plan provides limited opportunity for public participation, and what limited opportunity is available to the public is generally utilized by local interests only. The Administrative Procedure Act does not apply.⁹ Advisory boards, predominantly composed of local land users, are sometimes consulted, but their recommendations are not binding. Instead of providing an opportunity for general public participation, these Boards provide local users and commercial interests with a forum for lobbying the District Ranger, who is often their neighbor. Remote interests such as recreational users are often unable to travel the distance necessary to reach the local boards and are thus at a disadvantage. In addition, recreational users are often less organized than commercial interests.¹⁰

The Forest Service's quasi-adjudicatory procedures are as pernicious as the procedures for formulating district multiple use plans. They are designed not to address broad policy issues, but only the narrow question whether a single land use application meets the specifications of the district plan. Because the Act requires neither a formal record nor a hearing, the APA does not apply and adjudication often is summary. Thus remote parties not directly involved in local land use applications have little opportunity to influence Forest Service policy. At the same time, local users are given many informal opportunities to lobby for their particular uses.¹¹

Because of the broad discretion conferred under the Multiple Use Act, courts have been reluctant to intervene in Forest Service decisions.¹² However, a recent Ninth Circuit case suggests this may be changing. The following sections examine the sparse case law.

II. Standard of Review for Multiple Use Decisions

A discussion of judicial control of multiple use decisions must begin with an analysis of the standard of review for informal administrative decisions promulgated by the Supreme Court in Overton Park.¹³ Overton Park established a two-pronged review procedure: (1) did the agency consider factors outside the scope of its authority, and (2) did the agency, after considering all relevant factors, weigh them in a manner which was an abuse of discretion¹⁴? The reference point for determining which factors constitute the scope of agency authority is the particular statute being administered. Any factor which logically and legally promotes the purpose of the statute is probably within the agency's scope of authority. The issue of logical relevancy is discussed by the District of Columbia Circuit in one of the "Three Sisters Bridge" cases.¹⁵ Referring to Rep. Natcher's political pressure on Secretary of Transportation Volpe to build the bridge, the court stated that the decision to proceed would be invalid if based in whole or in part on such an extraneous factor.The court ordered the Secretary to make a new determination strictly on the merits and completely without regard to any "considerations that Congress could not have intended to make relevant." The court found that political pressure was irrelevant to the merits of the Secretary's decision under the applicable [3 ELR 50019] statutes, intimating that only factors of "sound [highway] engineering" were relevant.

The decision in Zabel v. Tabb¹⁶ is also concerned with the selection of factors which lie within an agency's scope of authority. In Zabel the Fifth Circuit stated that the Corps of Engineers' authority to deny dredge and fill permits under the Rivers and Harbors Act of 1899, which speaks of "obstructions to navigation," was legally expanded by the National Environmental Policy Act and the Fish and Wildlife Coordination Act. The court concluded that the Corps was acting within the scope of its authority when it denied a permit substantially for ecological reasons.

Once the reviewing court determines that the agency considered only relevant factors and all relevant factors, the second step of the Overton Park review procedure requires the court to determine whether the agency abused its discretion when it weighed, or balanced, the factors. The abuse of discretion standard does not allow a reviewing court to conduct a trial de novo, but Overton Park nevertheless requires the court to conduct a "searching inquiry" into all of the factors which were before the agency at the time its decision was made. Pursued vigorously, as in the Overton Park and "Three Sisters Bridge" cases, this inquiry can be quite effective.

III. Judicial Review of Multiple Use Decisions

The district court in the Tongass National Forest litigation¹⁷ held that under the Multiple Use Act the Forest Service had complete, unreviewable discretion to assign weights to the five different purposes for which the forests are managed, as long as "some" consideration was given to each purpose. The Ninth Circuit, however, stating that "due consideration" under the Act could not be so easily satisfied, recently granted the Sierra Club leave to petition for a new trial on the basis of new evidence bearing on how much "consideration," or weight, was to be given factors other than timber.¹⁸ In separate litigation in North Carolina, the district court in Dorothy Thomas v. Hardin¹⁹ also held that the Forest Service had complete discretion when weighing the different factors under the Multiple Use Act.The primary concern of the courts in these two litigations is with the second step in the Overton Park review. The issue is to what extent the Forest Service's discretion to weigh the various multiple uses can be controlled.

A. Decisions in the Tongass Forest litigation

In 1965 the Regional Forester for Region 10 of the Forest Service conducted the Service's largest public sale ever, covering more than a million acres of land in Alaska's North Tongass National Forest and involving almost nine billion board-feet of timber. After the first bidder failed to complete the sales contract, the Forest Service awarded the sale to the second and only other bidder, U.S. Plywood-Champion Papers, Inc. No administrative appeal was taken to the Secretary of Agriculture from the execution of the contract, and U.S. Plywood began operations in Alaska. In 1970 the Sierra Club brought an action in the United States district court to enjoin further performance of the conract and to have it set aside in violation of, inter alia, the Multiple Use Act.

Citing Overton Park, the district court stated that the Regional Forester's decision was reviewable to determine whether it was based upon factors irrelevant to the purposes of the statutory scheme, and whether relevant factors had been totally ignored. The district court acknowledged that the Sierra Club had introduced evidence which showed the overwhelming commitment of the Tongass Forest to timber harvest objectives in preference to the other four multiple uses. However, the court held that in its opinion Congress had given no indication of the weight to be assigned to each of the uses, with the result that the decision as to the proper mix of uses within any particular area was solely within the discretion of the Forest Service. Accordingly, evidence was admitted only for the purpose of showing that the Regional Forester failed entirely to consider any of the competing uses or that he considered irrelevant matters.

The Sierra Club argued that the "due" consideration required by the Act could only mean "equal" consideration. The district court, however, rejected this interpretation, holding that without more guidance from Congress, a showing in theadministrative record that "some" consideration was given satisfied the Act. The court quoted a commentator²⁰ who stated that the delegation to the Forest Service contained in the Act is so general, so sweeping and so vague as to represent a turnover of virtually all congressional responsibility.

The district court also premised its holding on the Sierra Club's failure to exhaust its administrative remedies. Stating that the evidence of exclusive timber use should have been presented in an administrative hearing, the court found that the same evidence presented now utterly failed to impeach the Forest Service record by showing that the Regional Forester either lacked actual knowledge or failed to consider the many available reports. Under the shibboleth of administrative regularity, the court concluded that it must presume that the Regional [3 ELR 50020] Forester gave due consideration to the various multiple uses.

The Sierra Club asked the Court of Appeals to remand the case to the district court to enable the filing of a motion for new trial on the grounds of newly discovered evidence. The new evidence was contained in a report made to U.S. Plywood about how the timber harvesting plan could be carried out with due consideration to social values other than the economic yield of timber. The report rejected the basic precepts underlying the original timber contract and recommended that U.S. Plywood explore with the Forest Service the possibility of revising the harvesting plan to protect more adequately other ecological values in the Tongass Forest. Two alternative harvesting plans were suggested and reduced cutting was recommended.

Accepting for the purposes of its order the district court's interpretation that due consideration means "some" consideration, the Ninth Circuit nevertheless cautioned that due consideration required that the uses in question be "informedly and rationally taken into ballance." The court added that this requirement can "hardly be satisfied by a showing of knowledge of the consequences and a decision to ignore them."

The court of appeals found that the report might bear upon the issues of whether the Forest Service had actual knowledge of the ecological consequences of the contract; whether it failed to consider the available evidence; and whether consideration was given to alternatives which, while giving prime consideration to timber harvesting, would still protect the other uses which must be considered.

Further, the Ninth Circuit held that in view of the substantial public dimensions of the harvesting contract and the possibility that administrative review of such new evidence might not be available, the district court should reexamine its ruling which penalized the Sierra Club for failing to exhaust administrative remedies. The case was remanded to the district court to entertain the motion for new trial.

B. Decision in Dorothy Thomas v. Hardin

A district court decision from North Carolina²¹ predating the Tongass Forest litigation also refused to review the question whether the Forest Service improperly weighed the various multiple uses when letting a timber contract on forest lands. In Dorothy Thomas a special task force had been appointed by the Forest Service to make recommendations regarding the various uses of the forest lands. The court believed that the report containing the recommendations showed that the Forest Service had considered the allegedly-overlooked recreational values of the area, as well as the effects of the proposed timber sale upon recreational values and other environmental values.

In Dorothy Thomas the court implied that watershed protection and timber production are the prime purposes for forest management. Quoting the original 1897 forestry statute²² which reserved forest lands for those two purposes, the court then stated that the 1960 Multiple Use Act is only supplemental. Section 528 of the Multiple Use Act declares that the purposes of the Act are "supplemental to, but not in derogation of," the original purposes of the 1897 Act.

IV. Critique of Multiple Use Litigation

The decision by the Ninth Circuit is welcome judicial intervention to control the Forest Service's discretionary weighing of factors under the Multiple Use Act. Despite the court's refusal to overrule expressly the lower court's interpretation of Overton Park, the Ninth Circuit's suggested review was clearly the more thorough, vigorous test prescribed by the Supreme Court. Making clear that mere knowledge of the various assigned weights was insufficient, the court indicated that a new balancing of uses might be necessary to mitigate adverse effects. At minimum, the decision establishes a standard of optimality²³ for multiple use decisions. If enhanced benefits from non-timber factors can be achieved without substantial impairment of the primary timber use, the court says that the Forest Service has to make the necessary accommodations to enhance the other four uses.

A major premise underlying the court's requirement that the Forest Service optimize benefits is the necessity of determining the full costs and benefits of the different uses. Only when the value of outdoor recreation, for example, is adequately quantified, and when all externalities are added to the cost of timber harvesting, can the Forest Service properly determine what mix will provide the greatest economic and social or environmental return. Although there is strong language in the Multiple Use Act for properly valuing all uses, the techniques for quantifying all but timber use either do not exist or are not utilized. As a result, the nation's forests are managed primarily for timber. Another reason for timber's supremacy may be found in the Dorothy Thomas decision which implied that the original purposes in the 1897 forest act of watershed protection and timber production somehow deserve more attention than the other three uses, which are only "supplemental."

However superficially appealing this interpretation of the Multiple Use Act is, it is incorrect. The Committee Report accompanying the Act makes it clear, and the [3 ELR 50021] plain language of the Act states, that all five uses are co-equal. Nevertheless, the Forest Service undoubtedly has favored timber production as a result of the bureaucratic momentum it achieved by being one of the two original purposes.

Determining the full cost and benefits of the various uses is related to the equally troublesome issue of determining the size of the most efficient management unit. By jerrymandering the boundaries of a management unit, different uses can be favored.²⁴

In addition to the more vigorous review, the Ninth Circuit directed the district court to reexamine its holding which penalized the Sierra Club for failure to exhaust administrative remedies. While the court of appeals stated it was motivated by the public importance of the issues, an additional justification for finding that exhaustion was not crucial exists in the informality of the Forest Service's administrative procedures. As the Sierra Club argued in the district court, exhaustion would not have produced a reviewable record because (1) the Secretary of Agriculture was not required to hold a hearing,²⁵ and (2) even if he granted a hearing, discovery was not available.²⁶

While not discussed by the court of appeals, a final issue in the Tongass litigation deserves attention. The issue is what factors are relevant to multiple use decisions. Specifically, did U.S. Plywood's agreement to export the first 15 years' timber production to Japan violate the statutes governing the national forests? The district court thought not, and it rejected the Sierra Club's allegation that the export contract violated the 1897 forest act which limits the purposes for which the forests can be established. However, if the Forest Service had knowledge of the export, and considered it when awarding the timber contract, the court's conclusion would appear to conflict with the rationale of the Three Sisters Bridge case, supra. Exporting timber is legally irrelevant to the overriding statutory purpose for managing the forests, which is to maximize all manner of benefits to the nation, not just income to its timber companies. Even if the Forest Service had no knowledge, the export contract itself might be vulnerable.

Leaving aside the specific export contract, the Forest Service's administrative procedures in general facilitate receipt of too much irrelevant information from local land users, as well as commercial interests. If Rep. Natcher's political pressure on Secretary Volpe was irrelevant, as the D.C. Circuit held, then the lobbying of local land users and commercial interests is at least of limited relevance. The difficulty, however, is that the Forest Service's decentralized administration allows the District Rangers to be lobbied at the bottom of the bureaucracy, while judicial review begins at the top with the Secretary of Agriculture. By the time a decision is reviewed, irrelevant political pressure is difficult to identify. A further problem is that the formulation of multiple use management plans might be regarded as a quasi-legislative function, and the parameters of relevancy would become so broad as to preclude little besides fraud or bribery.

Conclusion

Forest Service discretion under the Multiple Use Act has been abused as a result of the agency's informal procedures and its emphasis on the economic productivity of the national forests. Nevertheless, some commentators have recommended replacing multiple use with the concept of "dominant use" zoning, which would preclude all uses but the dominant one, at least where secondary uses were incompatible. Providing statutory authority for increasing timber production, this proposal would further institutionalize the current abuses. On the other hand, other critics have recommended insulating the District Rangers from local pressures and providing the Forest Service with a more national perspective and more centralized decision-making.

The necessity for the latter proposals, however, has been reduced by the Ninth Circuit's Tongass Forest decision and will be reduced even further when the National Environmental Policy Act is strictly enforced upon the Forest Service. The difficulty in the Tongass litigation at the district court level and the Dorothy Thomas case was that full implementation of NEPA was thwarted by the newness of the Act, by the question of retroactivity, and by judicial inexperience.²⁷ Yet vigorous enforcement in the future will provide much of the formality lacking in existing Forest Service procedures. Quantification of previously unquantified uses will be facilitated, insulation from the pressures of local users and commercial interests will be provided, and opportunities for public participation will be increased.²⁸ An impact statement on the overall forest management plans like that required in NRDC v. Morton²⁹ and the Wallisville Dam-Trinity River case, supra, could clear out a lot of the cobwebs in the Forest Service. Properly comprehensive impact statements on Forest Service policies and projects will ensure that most Forest Service activities are covered by NEPA. However, adjudications on those few issues [3 ELR 50022] which are less than "major federal actions" will not be subject to NEPA's requirements, and legislation requiring more APA-type procedures should be pursued. In conclusion, the future prospect for active judicial participation in preserving the national forests under NEPA and the Multiple Use Act is encouraging.

1. The United States Public Land Law Review Commission, One Third of the Nation's Land 19 (1970). The Forest Service, within the Department of Agriculture, controls 25% of the federal land, while the Bureau of Land Management, within the Interior Department, controls 62%. Id. at 22.

2. The Multiple Use-Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531 (1970) [hereinafter referred to as the Multiple Use Act].

3. Administration of National Forests for Multiple Use and Sustained Yield, Report of the Senate Committee on Agriculture and Forestry, 86th Cong., 2d Sess. 3-4 (May 23, 1960).

4. See, e.g., U.S. Department of Agriculture, Forest Service Manual, §§ 2120-2124 (1971).

5. Multiple use management of lands under the jurisdiction of the Bureau of Land Management followed a similar policy under the Classification and Multiple Use Act of 1964, 43 U.S.C. 1411 et seq. (1970). However, the BLM Act was only temporary and expired in January, 1971. Nonetheless, the BLM continues to utilize the multiple use approach. See 43 C.F.R. § 1725.1 (1972).

6. See M. Frome, The Forest Service 37 (1971). BLM procedures are similar. See M. Clawson, The Bureau of Land Management 55 (1970).

7. U.S. Dept. of Agriculture, Forest Service Manual § 2111.7 (1971).

8. General Accounting Office, Additional Actions Needed to Minimize Adverse Environmental Impacts of Timber Harvesting and Road Construction on Forest Lands (March, 1973).

9. 5 U.S.C. § 553 (1970). Issues regarding public property are exempt from the APA's rulemaking provisions. See Bonfield, Public Participation in Federal Rulemaking Relating to Public Property, Loans, Grants, Benefits, or Contracts, 118 U. Pa. L. Rev. 540 (1970). Recommendation 108 of the Public Land Law Review Commission suggested that congressional action be taken to bring the land management agencies within the rulemaking provisions of the APA. See note 1, supra, at 251.

10. See generally, Comment, Managing Federal Lands: Replacing the Multiple Use System, 82 Yale L.J. 787, 794-95 (1973).

11. Recommendation 109 of the Public Land Law Review Commission suggested restructuring land management procedures to provide: 1) due process; 2) greater third party participation; 3) administrative review of initial decisions; and 4) more expeditious decision-making. See note 1, supra, at 253.

12. To help remedy this reluctance, Recommendation 110 of the PublicLand Law Review Commission suggested that Congress expressly provide for judicial review of land-management decision. See note 1, supra, at 256.

13. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 1 ELR 20110 (U.S. 1971).

14. See Comment at 1 ELR 10035.

15. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231 (1972), 1 ELR 20572 (D.C. Cir. 1971).

16. 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

17. Sierra Club v. Hardin, 325 F. Supp. 99, 1 ELR 20161 (D. Alas. 1971).

18. Sierra Club v. Butz, 3 ELR 20292 (9th Cir. March 16, 1973).

19. Dorothy Thomas Foundation, Inc. v. Hardin, 317 F. Supp. 1072, 3 ELR 20319 (W.D.N.C. 1970).

20. Reich, Bureaucracy and the Forests, The Fund for the Republic, Inc., Center for the Study of Democratic Institutions.

21. See note 19, supra.

22. 16 U.S.C. § 475.

23. When the total yield of benefits can no longer be increased without impairing benefits from individual factors, the management is "pareto-optimum" in economic terms. Optimality in traditional economic terms, however, is not enough. Social and environmental factors must be included, and attention given to what economists call the distributive effects of greater productivity.

24. See, e.g., Sierra Club v. Froehlke (Trinity River-Wallisville Dam), 3 ELR 20248 (S.D. Tex., Feb. 16, 1973) and Comment thereon at 3 ELR 10044 (April, 1973).

25. 36 C.F.R. § 211.28 (c) (1970).

26. 36 C.F.R. § 211.101 (1970).

27. For example, the Tongass Forest district court noted that at the date of decision there were no reported cases construing "major federal action." 1 ELR 20171.

28. See Forest Service NEPA implementation guidelines (July, 1971), 3 ELR 46058.

29. Natural Resources Defense Council v. Morton, 337 F. Supp. 165, 2 ELR 20028 (D.D.C.), 337 F. Supp. 167, 2 ELR 20089 (D.D.C. 1971), motion for summary reversal denied, 458 F.2d 827, 2 ELR 20029 (D.C. Cir.), dismissed as moot, 337 F. Supp. 170, 2 ELR 20071 (D.D.C. 1972).

3 ELR 50017 | Environmental Law Reporter | copyright © 1973 | All rights reserved