Wayne Forest Plan Overturned

The Sixth Circuit Court of Appeals has just issued a remarkable opinion on the Sierra Club's appeal of the forest plan for the Wayne National Forest. The Wayne plan was intriguing because it designated close to 90 percent of the national forest to a timber-emphasis prescription--more than any other forest plan in the Eastern Region.

The Sierra Club and an Ohio group called the Citizens Council on Conservation and Environmental Control unsuccessfully appealed the plan and then took it to court. But the district court ruled that the plan was adequate under the National Forest Management Act.

On appeal, however, the Sixth Circuit took a very different view. An opinion written by Judge Bryce Martin ruled that the plan was "biased" and "arbitrary" and ordered that the plan be redone.

The court was particularly impressed by the fact that so much of the forest was allocated not just to timber cutting but to clearcutting. NFMA, noted the court, allows clearcutting only when "consistent with the protection of soil, watershed, fish, wildlife, recreation, and aesthetic resources, and the regeneration of the timber resource." The court interpreted this to mean that clearcutting would "be used only in exceptional circumstances. Yet, the defendents would utilize even-aged management logging as if it were the statutory rule."

The court also noted that the decision to use so much clearcutting was based on a biased plan. As an example, the court cited agency claims that timber cutting would increase recreation values. But "Most recreation does not require timber havesting, however. . . . in fact, recreation like fishing and hiking is harmed by clearcutting."

Courts normally give agencies "the benefit of the presumption of good faith." But the majority opinion in this case challenged that view. Forest planning is not a "neutral process," said the court, but "a political process replete with opportunities for the intrusion of bias and abuse."

Moreover, the court noted that the Forest Service has an incentive to be biased. "The Forest Service budgeting process, which allows the Forest Service to keep a percentage of the funds it realizes from timber sales, provides an incentive for the Forest Service to sell timber below cost or at a loss. Also, to maximize its budget, the Fores Service uses expensive timber management and reforestation techniques, such as clearcutting. . . . Consequently, decisions may be made, not because they are in the best interest of the American people but because they benefit the Forest Service's fiscal interest."

The court went on to say that "Each of these biases undermines even the facial neutrality of the National Forest Management Act. Even when there may be more valuable uses for the land, the above biases and constraints cause the Forest Service to manage primarily to maximize timber outputs."

Of the three-member panel that heard the case, one dissented from this view of a biased agency. While agreeing that the plan was illegal, and not disagreeing that the agency was biased, Judge Alice Batchelder wrote that "Our speculation about the motives and biases of the Forest Service, even if accurate, is unnecessary, and therefore, ought not to be voiced in this opinion."

Long before this case reached the circuit court, both Judges Martin and Batchelder (but not the third judge on this panel) attended environmental law conferences for judges sponsored by the Foundation for Research on Economics and the Environment (FREE). I had the privilege of speaking at these conferences about the incentives facing national forest managers. I know that my presentations made a particular impression on Judge Martin, who cited my book, Reforming the Forest Service, in his opinion on the Wayne Forest.

Fred Gittes, the attorney on this case, deserves a lot of credit for persuading the panel in both written and oral argument that the plan was inadequate. But the background information that I was able to provide Judge Martin at the FREE conference may have tipped the balance. After all, if judges presume that the Forest Service acts in good faith, then they are likely to dismiss accusations of bias on the part of plaintiffs.

Judge Batchelder obviously did not think it necessary to challenge the presumption of an unbiased Forest Service to agree that the plan was inadequate. But knowing of those biases may have helped persuade her that the agency might be predisposed to writing inept plans.

Environmentalists in other circuits, most of which haven't been so ready to dismiss Forest Service claims of objectivity, should take some time outside the courtroom educating the general public about why the Forest Service would have an incentive to endorse timber cutting even when other resources are more valuable.

Electronic Drummer | Public Lands | Subsidies Anonymous