Milepost 0 on the NFMA Diversity Provision Trail

I’d like to revisit, at a deliberate and meditative speed, the path that led from diversity in NFMA to viability and the sustainability provisions in the different planning rules. My experience is that it has been mostly the domain of wildlife biologists and lawyers, and perhaps a discussion that 1) brings the rest of us up to speed on where we’ve been and why, and 2) asks us where we want to go, may be illuminating. Particularly if we consider a broader range of views from different scientific disciplines and practitioners, and consider the context of management in the 21st century, including climate change.

Some people think that this is the most important piece of the planning rule. Others think there are plenty of procedural and substantive protections for species without this. Perhaps we will end up in a previously explored place at the end of the journey, but perhaps not.

Based on this piece by the Department of Justice:

“In conclusion, given the vague and equivocal language of the National Forest Management Act (NFMA), whether the statute will operate as a substantive constraint on the discretion of the Forest Service to allocate uses which adversely affect the viability of the wildlife resource, depends almost entirely on the language of the NFMA implementing regulations, as the exercise with the viability regulation shows. Whether the Forest Service utilizes the 1982 or the 2000 regulations in future planning to deal with diversity and its viability component, future litigation will continue to determine the moving boundary between discretion and constraint inherent in NFMA.”

First question, what do we think the writers of NFMA meant by “diversity of plant and animal communities, and what was the context?” For those of us who don’t have time to read an extensive legislative history, what is a short synopsis and some key papers and concepts? Is there consensus on this in within and among our communities (of discipline and of practice)?

Here’s what DOJ says (here):

NFMA�s Diversity Requirement

NFMA required the Forest Service to develop the planning regulations in consultation with a committee of independent scientists. 16 U.S.C. 1604(h). What NFMA gave them to work with on biological diversity was vague and equivocal, and subjected diversity to a subsidiary role in multiple use planning. The regulations were directed to specify guidelines which would:

provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan.

16 U.S.C. 1604(g)(3)(B).

Back to keeping it simple, it seems to me that the easiest way to deal with this legal requirement would be to require an analysis for each plan of the existing diversity, and possible threats and show that “based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives” the plan provided for a diversity of plant and animal communities.

Second Question: What do you think is the simplest (KISS) approach to translate the NFMA diversity requirement to a planning rule?