Failing to See the Forest for the Trees: Standing to Challenge National Forest Management Plans
By Paul A. Garrahan
INTRODUCTION
The management of our country's national forests is a highly contentious matter. Environmentalists want to preserve the forests for recreational, aesthetic, scientific, and other purposes. Resource development interests, primarily the timber and oil and gas industries, and the localities whose economies they drive, want to expand the levels of resources they may take from the forests. In response to these multiple demands, the United States Forest Service (“the Forest Service” or “the Service” or “the agency”) manages the forests for “multiple use.” But, of course, the Service cannot satisfy all of the people all of the time.
The structure of national forest planning is regulated by the National Forest Management Act of 1976 (NFMA), and its implementing regulations. In accordance with the NFMA, the Forest Service develops a Land and Resource Management Plan (LRMP) for each national forest. LRMPs are highly detailed documents which provide for how an individual forest will be managed over a ten to fifteen year period. For example, the plans determine the approximate amount of timber harvesting, road and trail construction, grazing, mineral development, and wildlife habitat improvements that will occur over the course of the plan period. The Service then implements the plans through individual, site-specific projects.
Because the plans determine what development may occur far into the future, their content is often a subject of dispute among the multiple interests that wish to use the forests. These disputes are often confined to the administrative level, but they sometimes end up in court. The Forest Service has responded to plan challenges by asserting that plaintiffs bringing such claims lack standing to sue and that their claims are not yet ripe for review. The Service reasons that the plaintiffs could not have been injured prior to implementation of the plans via site-specific projects because a plan itself has no definite results. That is, a plan simply lays out general information and results in no on-the-ground impacts.
Four United States Courts of Appeals have addressed this issue but have not reached a uniform result. The Seventh and Ninth Circuits have held that plaintiffs do have standing to challenge LRMPs, that their claims are ripe, and, therefore, that forest plan challenges are justiciable. The Eleventh and Eighth Circuits, on the other hand, have held that plan challenges are not justiciable.
This Note concludes that challenges to national forest plans are justiciable under both the standing and ripeness doctrines. Part II provides some of the historical background of national forest planning, describes the specific requirements of the NFMA and its implementing regulations, and discusses some of the different types of procedural and substantive claims that may be brought pursuant to the statute. Part III discusses the Supreme Court's standing and ripeness jurisprudence and analyzes which of these doctrines may be the more appropriate analytical approach in the forest plan context. Part IV describes the specific issues at stake in forest plan challenges and outlines the reasoning of the Courts of Appeals that have decided this issue. Finally, Part V sets out three arguments in support of the conclusion that forest plan challenges are justiciable.
The management of our country's national forests is a highly contentious matter. Environmentalists want to preserve the forests for recreational, aesthetic, scientific, and other purposes. Resource development interests, primarily the timber and oil and gas industries, and the localities whose economies they drive, want to expand the levels of resources they may take from the forests. In response to these multiple demands, the United States Forest Service (“the Forest Service” or “the Service” or “the agency”) manages the forests for “multiple use.” But, of course, the Service cannot satisfy all of the people all of the time.
The structure of national forest planning is regulated by the National Forest Management Act of 1976 (NFMA), and its implementing regulations. In accordance with the NFMA, the Forest Service develops a Land and Resource Management Plan (LRMP) for each national forest. LRMPs are highly detailed documents which provide for how an individual forest will be managed over a ten to fifteen year period. For example, the plans determine the approximate amount of timber harvesting, road and trail construction, grazing, mineral development, and wildlife habitat improvements that will occur over the course of the plan period. The Service then implements the plans through individual, site-specific projects.
Because the plans determine what development may occur far into the future, their content is often a subject of dispute among the multiple interests that wish to use the forests. These disputes are often confined to the administrative level, but they sometimes end up in court. The Forest Service has responded to plan challenges by asserting that plaintiffs bringing such claims lack standing to sue and that their claims are not yet ripe for review. The Service reasons that the plaintiffs could not have been injured prior to implementation of the plans via site-specific projects because a plan itself has no definite results. That is, a plan simply lays out general information and results in no on-the-ground impacts.
Four United States Courts of Appeals have addressed this issue but have not reached a uniform result. The Seventh and Ninth Circuits have held that plaintiffs do have standing to challenge LRMPs, that their claims are ripe, and, therefore, that forest plan challenges are justiciable. The Eleventh and Eighth Circuits, on the other hand, have held that plan challenges are not justiciable.
This Note concludes that challenges to national forest plans are justiciable under both the standing and ripeness doctrines. Part II provides some of the historical background of national forest planning, describes the specific requirements of the NFMA and its implementing regulations, and discusses some of the different types of procedural and substantive claims that may be brought pursuant to the statute. Part III discusses the Supreme Court's standing and ripeness jurisprudence and analyzes which of these doctrines may be the more appropriate analytical approach in the forest plan context. Part IV describes the specific issues at stake in forest plan challenges and outlines the reasoning of the Courts of Appeals that have decided this issue. Finally, Part V sets out three arguments in support of the conclusion that forest plan challenges are justiciable.