K.I.S.S. in Rule Form, Part 6
No NFMA provision has transformed (and bedeviled) national forest management more than the law’s mandate to “provide for diversity of plant and animal communities based on the suitability and capability of the specific land area.” 16 U.S.C. § 1604(g)(3)(B). The consensus view of the federal courts (citations upon request) is that NFMA’s diversity language is a substantive limit on the Forest Service’s discretion – procedural analysis and models alone are insufficient to meet the law.
In its 1982 (and original 1979) rules, the Forest Service met the diversity mandate by requiring that plans ensure the viability of animal species, which is accomplished by identifying and protecting management indicator species. This approach to meeting the diversity requirement was never challenged in court. Those courts that have commented upon the viability/management indicator species approach have done so favorably. Regulatory efforts to eliminate the viability/MIS rule were defeated in 1982 (by Congressional pressure) and in 2000, 2005, and 2008 (in the courts).
It is with this history in mind that I suggest the following diversity rule language. This provision relies upon the 1979/1982 rules, but with fewer words and more discretion in the methodologies individual national forests can use to meet the law’s substantive mandate.
36 CFR 219.7: Plant and Animal Community Diversity
(a) Plan revisions and the vegetation management and timber harvest program shall ensure habitat sufficient to support viable populations of existing native and desired non-native species in the planning area. Methodologies for assessing and ensuring species viability shall consider and be appropriate to 1) the scope and scale of the plan revision and program decisions made; 2) the ecology of the plan area; and, 3) the biology of the species.
(b) Plan revisions and the vegetation management and timber harvest program shall, to the degree practicable, preserve the diversity of tree species similar to that existing in the plan region.