Report From the Public Land Law Conference

Two Defenders staff members are attending the Public Land Law Conference at the University of Montana Law School this week.  The theme this year is “Strengthening our Roots: Forest Law and Policy in a Changing World.”  The conference is covering subjects including the new forest planning regulations, climate change law and forests, forests in the media, and collaboration.

Professor Charles Wilkinson delivered the keynote for the conference, providing his assessment of the current state of the Forest Service.  His presentation covered most of the subjects of the conference, but he focused in on one very timely issue: species diversity in the new Forest Service forest planning rule

Professor Wilkinson started with the history of the species diversity mandate.  The incorporation of species diversity requirements into Forest Service regulations was a historic moment, no previous law had provided for species diversity, not even the Endangered Species Act.  The current proposed regulations, however, contain no species diversity requirements. Instead of Management Indicator Species, which have been used to monitor biodiversity since the 1980s, the new rule would require each forest to determine Species of Conservation Concern (species that are stressed, but don’t necessarily tell us about species diversity more broadly) and Focal Species (species that are monitored but are not necessarily linked to broader species diversity).

According to Wilkinson, refusal to adopt a modern and scientifically supported species diversity plan is the biggest problem with the proposed new rule.  This lack of species diversity mandates is exacerbated in the proposed rule for two reasons.  First, science need only be “taken into account,” a phrasing that Prof. Wilkinson compared to “taking into account” the grizzly in the corner.  Second, most decisions will be made at forest level with broad discretion, meaning that there will be little court review of these plans.  This is all the result of the Forest Service trying to stay clear of litigation, encouraged by lawyers that seek to make plans “bullet proof.”

Professor Wilkinson’s keynote is especially relevant now, as the Forest Service is set to release a finalized version of the planning rule later this year.

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Addie Haughey is the Federal Lands Associate for Defenders of Wildlife. Addie works within Defenders’ Federal Lands Program in Washington, DC to advocate for wildlife on our National Forests and on other public lands.

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