Law and Biodiversity in The Temperate Forest

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Law and Biodiversity in The Temperate Forest

• Australia and North America
• March 7, 2007
• Professor Federico Cheever
• University of Denver Sturm College of Law

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I. Why Temperate (and Boreal) Forests?
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Global Forest Resources Assessment
www.fao.org/DOCREP/004/Y1997E/y1997e24.jpg
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Global Forest Resources Assessment
www.fao.org/DOCREP/004/Y1997E/y1997e24.jpg
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Coastal Forest, Oregon
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Old Growth Blue Gum, Tasmania
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Pine Plantation, ACT
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II. A. Forests and Public OwnershipWhy?
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http//www.fs.fed.us/land/staff/lar/nfsmap.htm
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Tasmania has about 2.9 million hectares of native
forest, which covers 43 per cent of the State's
total land area and makes up 2 per cent of
Australia's total forest area. About 31 per cent
is public forests, including timber production,
40 per cent is in public conservation reserves
and the remaining 29 per cent is privately owned.
www.affa.gov.au/
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1.History
http//www.verderers.org.uk/home.htm
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http//www.newforestnpa.gov.uk/
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http//www.fs.fed.us/r5/angeles/images/forest_vici
nity_map.gif
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2. Multiple Use
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On February 1, 1905, President Theodore Roosevelt
signed the act (33 Stat. 628) which transferred
the management of the Forest Reserves from the
Department of the Interior to the Department of
Agriculture. That same day, Secretary of
Agriculture James Wilson sent a letter of
direction to Gifford Pinchot, Chief Forester in
the Bureau of Forestry, concerning the management
of the reserves. It is generally believed that
Pinchot wrote the letter for Wilson's
signature. http//www.foresthistory.org/Research/u
sfscoll/policy/Agency_Organization/NF_System/Wilso
n_Letter.html
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NSW Forestry Act 1916 The objects of the
commission shall be (a)  to conserve and utilise
the timber on Crown-timber lands. . . to the best
advantage of the State, (b)  to provide adequate
supplies of timber from Crown-timber lands. . . ,
(c)  to preserve and improve . . . the soil
resources and water catchment capabilities of
Crown-timber lands. . . , (d)  to encourage the
use of timber derived from trees grown in the
State, (e)  . . . (i)  to promote and encourage
their use as a recreation, and (ii)  to conserve
birds and animals thereon . . .
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Multiple Use-Sustained Yield Act 1960 It is the
policy of the Congress that the national forests
are established and shall be administered for
outdoor recreation, range, timber, watershed, and
wildlife and fish purposes. . . . 16 U.S.C. 528
(1960)
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"Multiple use" means 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. . . that some land will be
used for less than all of the resources and
harmonious and coordinated management of the
various resources, . . . without impairment of
the productivity of the land . . . and not
necessarily the combination of uses that will
give the greatest dollar return or the greatest
unit output. 16 U.S.C. 531
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1992 National Forest Policy Statement
Australia The State Governments agree that,
to achieve their vision for the forest estate and
to ensure that the community obtains a balanced
return from all forest uses, eleven broad
national goals must be pursued. These goals
should be pursued within a regionally based
planning framework that integrates environmental
and commercial objectives so that, as far as
possible, provision is made for all forest
values.
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Conservation. Wood production and industry
development. Integrated and coordinated
decision making and management. Private
native forests. Plantations. Water supply
and catchment management. Tourism and other
economic and social opportunities.
Employment, workforce education and training.
Public awareness, education and involvement.
Research and development. International
responsibilities.
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3. Time, Value and Money
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II.B. Forests and Public OwnershipWhy Not?
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1. Immunity from Market Forcesand 2. Agency
Capture
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Productivity, we learned time and again, means
maximum physical production of sawlogs. Much
timberland has been harvested ostensibly to get
it into production. The idea this scraggy stand
of overmature timber could and does provide other
values was alien and absent from the thinking of
most of the professional foresters we encountered
. . . . Arnold Bolle et al., A University View
of The Forest Service (1970)
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Forest problems did not come about because of
greed, incompetence, or poor science . . . . the
troubled history of land management has its roots
not in ignorance but an American vision of the
proper human relationship to nature. Americans
shaped the western landscapes according to a
complex set of ideals about what a perfect forest
ought to look like and what people's role in
shaping a perfect forest ought to be. Landscape
changes were the result of human attempts to
manage, perfect and simplify the forests to
transform what one Forester called in 1915 "the
general riot of natural forests" . . . into a
regulated, productive, sustained yield forest.
Nancy Langston, Forest Dreams, Forest Nightmares
5 (1995)
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II.C. Timber Planning and Forest Planning
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30 State forest in Tasmania is classified as
within one of three primary zones production,
conditional or protection. 31 State forest
within the Production Zone is available for wood
production. These areas include planned coupes.
Areas within the Conditional Zone are usually
small and considered to raise operational
problems making harvesting or regeneration
difficult. The Protection Zone consists of land
from which wood production is excluded . . . . 32
Areas of State forest given a coupe designation
are areas which Forestry Tasmania plans to
harvest in the future. . . . Brown v. Forestry
Tasmania (December 19, 2006)
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Hayden District, Medicine Bow National Forest
Plan, Wyoming
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http//www.daffa.gov.au/rfa/regions/map
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III. Legislative Strategies to Constrain Agency
Conduct
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A. Strategy 1 Legislative Rules to Regulate
Forestry

• Work Rules and Legislative Competence The Case
  of Clear Cutting

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Colonial Land Claims
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The Secretary of the Interior Secretary of
Agriculture after 1905 . . . may cause to be
designated and appraised so much of the dead,
mature, or large growth of trees found upon such
forest reservations . . . and may sell the same
for no less than the appraised value . . . such
timber, before being sold, shall be marked and
designated and shall be cut and removed under the
supervision of some person appointed for that
purpose . . . 30 Stat 11, 34-35 (1897).
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The Secretary shall promulgate regulations.
The regulations shall . . . (F) insure that
clearcutting, seed tree cutting, shelterwood
cutting, and other cuts designed to regenerate an
even aged stand of timber will be used as a
cutting method on National Forest System lands
only where-- (i) for clearcutting, it is
determined to be the optimum method . . . to meet
the objectives and requirements of the relevant
land management plan . . . 16 U.S.C. 1604(g)(3)
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Olympic National Forest, Washington State
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B. Strategy 2 Legislative Rules to Require
Environmental Impact Analysis

• Consider the Consequences

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B.1 Judicial Competence
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No case was cited (and I know of none) in
which it has been held that a decision taken in
purported obedience to the requirements of ss.112
and 113 is invalid on account of a deficiency in
the content of the relevant environmental impact
statement. . . . .The Applicant has cited many
U.S.A. decisions on the National Environmental
Policy Act 1969 where administrative decisions
have been successfully impugned on account of
various failures or deficiencies in environmental
impact statements. However those cases have not
been applied locally . . . . Jarasius v.
Forestry Commission of New South Wales, (19th
December 1989)
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"The fact that the environmental impact
statement does not cover every topic and explore
every avenue advocated by experts does not
necessarily invalidate it or require a finding
that it does not substantially comply with the
statute and the regulations. In matters of
scientific assessment it must be doubtful whether
an envrionmental impact statement, as a matter of
practical reality, would ever address every
aspect of the problem. There will be always some
expert prepared to deny adequacy of treatment to
it and to point to its shortcomings or
deficiencies." Prineas v. Forestry Commission of
New South Wales (1983) 49 LGRA 402
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The obligation to state feasible alternatives
is, at highest, an obligation to discuss what the
proponent believes may be considered feasible
alternatives. An issue can arise as to the bona
fides of the belief, but apart from this, the
E.I.S. does not fail to comply . . . if
particular alternatives conjured up by the
opponents of the project have been ignored."
Prineas (1983)
Common sense also teaches us that the detailed
statement of alternatives cannot be found
wanting simply because the agency failed to
include every alternative device and thought
conceivable to the mind of man. Vermont Yankee
Nuclear Power Corp v. NRDC, 435 U.S. 519, 550
(1978)
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B.2 The Plan and The Ground
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In the U.S. . . .
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The Secretary shall . . . promulgate
regulations . . . The regulations shall include,
but not be limited to-- specifying procedures to
insure that land management plans are prepared in
accordance with the National Environmental Policy
Act of 1969 . . . Including . . . direction on
when and for what plans an environmental impact
statement required under section 102(2)(C) of
that Act . . . shall be prepared . . . . 16
U.S.C. 1604(g)(3)
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A final decision on a proposed action is viewed
as causing effects on the resources . . . . when
effects may occur without additional action by
the agency . . . . For projects and activities,
the final decision point is typically the
decision to approve the project or activity . . .
. For example, there would normally be a
"cause-effect relationship" between the decision
to approve a timber sale and the direct,
indirect, and cumulative effects on the
environment of the timber sale project. However,
for land management plans . . . a cause-effect
relationship of this nature typically does not
exist. To establish a "cause-effect
relationship" . . . it is not sufficient to find
that one or more plan components increase or
decrease the likelihood of effects from future
actions . . . . Rather, it is necessary to
conclude that a plan component by itself, without
further analysis and decision-making by the
agency, will either allow otherwise disallowed,
or prohibit otherwise unprohibited, actions. . .
. 75 Fed. Reg. 75481 (December 15, 2006)
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Meanwhile, in Tasmania. . . .
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• Actions with significant impact on listed
  threatened species or endangered community
  prohibited without approval . . .
• A person must not take an action that
• has or will have a significant impact on a
  listed threatened species included in the
  endangered category or
• is likely to have a significant impact on a
  listed threatened species included in the
  endangered category.
• Section 18(3) of the EPBC Act

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Things that are not actions . . . a decision by
a government body to grant a governmental
authorisation (however described) for another
person to take an action is not an action . .
. EPBCA s 524(2)
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53 . . . Here, there is no attack on a Forest
Practices Plan, but on the work which is planned
to take place under a Forest Practices
Plan. Brown v. Forestry Tasmania (December 19,
2006)
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C. Strategy 3 Requiring Reserves

• The Maginot Line

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1131(C) A wilderness, in contrast with those
areas where man and his own works dominate the
landscape, is hereby recognized as an area where
the earth and its community of life are
untrammeled by man, where man himself is a
visitor who does not remain.
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National Wilderness Preservation System
http//www.wilderness.net/images/NWPS/mapFull.jpg
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National Forest System Roadless Areas 2006
http//www.wilderness.org/OurIssues/Roadless/AtRis
k/index.cfm
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http//www.daffa.gov.au/__data/assets/pdf_file/502
97/nsw_rfa_edenmap.pdf
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http//www.daffa.gov.au/__data/assets/image/50679/
tas_raa_rfa_colmap2.gif
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U.S. Department of The Interior
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Lodgepole Pine, Yellowstone 2004
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Lodgepole Pine, Yellowstone 2004
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Rocky Mountain Pika (Ochotona princeps)
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RFA Act Section 4 "RFA" or Regional Forest
Agreement means an agreement that is in force
between the Commonwealth and a State in respect
of a region or regions, being an agreement that
satisfies all the following conditions . . . (b)
the agreement provides for a comprehensive,
adequate and representative reserve system (c)
the agreement provides for the ecologically
sustainable management and use of forested areas
in the region or regions . . .
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EPBC Act Section 38 Part 3 including Section
18 does not apply to an RFA forestry operation
that is undertaken in accordance with an RFA.
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228 The State of Tasmania submits it is wholly
inapt to construe clause 68 as simply imposing an
unqualified obligation to ensure the protection
of species. The States obligation is satisfied,
not through the actual protection of
species...but through the employment of the CAR
reserve system. Brown v. Forestry Tasmania
(December 19, 2006)
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231 The Commonwealth also contends in
circumstances where it is non-controversial that
significant tracts of habitat for the three
threatened species currently before the Court are
made available in CAR reserves, the Court can
safely conclude that the species are protected
"through" the CAR reserves. Brown v. Forestry
Tasmania (December 19, 2006)
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240 An agreement to protect means exactly what
it says. It is not an agreement to attempt to
protect, or to consider the possibility of
protecting, a threatened species. It is a word
found in a document which provides an alternative
method of delivering the objects of the EPBC Act
in a forestry context. . . . 241 The method for
achieving that protection is through the CAR
Reserve System or by applying relevant management
prescriptions. Does that mean the States
obligations are satisfied if, in fact, the CAR
Reserve System or relevant management
prescriptions do not protect the relevant
species? I do not think so. If the CAR Reserve
System does not deliver protection to the
species, the agreement to protect is empty . . .
. Id.
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D. Strategy 4 Independent Statutory Mandates

• The Ten Commandments

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1536. Interagency cooperation(a) Federal
agency actions and consultation . . . . (2) Each
Federal agency shall, in consultation with and
with the assistance of the Secretary, insure that
any action authorized, funded, or carried out by
such agency (hereinafter in this section referred
to as an "agency action") is not likely to
jeopardize the continued existence of any
endangered species or threatened species. . . .
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1538. Prohibited acts(a) Generally(1) Except
as provided in sections 1535(g)(2) and 1539 of
this title, with respect to any endangered
species of fish or wildlife . . it is unlawful
for any person subject to the jurisdiction of the
United States to--. . . . (B) take any such
species within the United States or the
territorial sea of the United States(C) take
any such species upon the high seas(D) possess,
sell, deliver, carry, transport, or ship, by any
means whatsoever, any such species taken in
violation of subparagraphs (B) and (C) . . .
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SECTION 3
(19) The term "take" means to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such
conduct.
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50 C.F.R. 17.3 Harm in the definition of "take"
in the Act means an act which actually kills or
injures wildlife. Such act may include
significant habitat modification or degradation
where it actually kills or injures wildlife by
significantly impairing essential behavioral
patterns, including breeding, feeding or
sheltering.
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220 The applicant submits that, to meet the
objects of the EPBC Act, the RFA must provide
real, practical protection to threatened species
and facilitate their recovery to appropriate and
sustainable population levels. 221 Otherwise,
the applicant contends, the EPBC Act will fail to
implement the international obligations on which
it is founded. Accordingly, he contends, the RFA
must be interpreted as a method of securing the
aims of the EPBC Act which, in turn, implement
international obligations . . . . Brown v.
Forestry Tasmania (December 19, 2006)
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264 Protection is not delivered if one merely
assists a species to survive. Protection is only
effective if it not only helps a species to
survive, but aids in its recovery to a level at
which it may no longer be considered to be
threatened. Whatever protection may be provided
to the parrot by the CAR Reserve System is
minimal, as the evidence discloses that only a
small part of the parrot population is likely to
use the CAR reserves which are too small to be of
any real assistance to the parrot. Brown v.
Forestry Tasmania (December 19, 2006)
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www.jeffrichphoto.com/images/Birds/
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http//www.fseee.org/forestmag/ivot/sp05ot.jpg
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http//www.srs.fs.usda.gov/sustain/report/
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http//www.srs.fs.usda.gov/sustain/report/
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http//www.mtmultipleuse.org/fire/smokey_bear_post
er.htm
Montanans for Multiple Use
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Forest Service Employees for Environmental Ethics
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Public Forestry, Legislatures and Biodiversity

• Public Ownership -- Why History, Multiple Use,
  Money and Time
• Public Ownership Why Not Market Immunity,
  Agency Capture, Forest Ideology
• Constraining Strategy 1 -- Legislative Rules to
  Regulate Forestry
• Constraining Strategy 2 -- Legislative Rules to
  Require Environmental Impact Analysis
• Constraining Strategy 3 -- Requiring Reserves
• Constraining Strategy 4 -- Independent Statutory
  Mandates