The Public and the Nation's Forests

28 Pages·2015·0.58 MB·English

by  Charles A. Reich

California Law Review
Volume 50|Issue 3 Article 1
August 1962
The Public and the Nation's Forests
Charles A. Reich
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Recommended Citation
Charles A. Reich,The Public and the Nation's Forests, 50 Calif. L. Rev. 381 (1962).
Link to publisher version (DOI)
https://doi.org/10.15779/Z383V0J
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California Law Review
VOL. 50 AUGUST, 1962 No. 3
The Public and the Nation's Forests'
T Charles A. Reich*
HE NATION'S FORESTS are a vast experiment in public ownership. The
people of the United States hold in common a rich and splendid king-
dom of timber, rivers, minerals and mountains-well over two hundred
million acres from New England to Alaska.
Ownership is easy, but effective ownership, including a voice in plan-
ning and management, is difficult to achieve. Managing the forests is no
mere caretaker's job. There are fundamental choices to be made--choices
which pit one portion of the public against another, and which can change
irrevocably the character of the domain as a whole.
Forest land can be managed primarily for the exploitation of its material
resources-its timber crop, grazing lands, minerals, water supply, and
hydroelectric power. Or it can be given over to mass recreation-summer
and winter sports, camping, picnicking, and resorts. Or it can be preserved
for essentially spiritual values-a wilderness retreat from frantic city liv-
ing; a sanctuary for the qualities of man that are "best when least in
company.-'
Today's growing population tears insatiably at the forests. As people
spread into every corner of the land the forests shrink. Armies of mech-
anized campers invade. Dam builders covet choice valleys. Sheep nibble
the high pastures. The power saw turns beauty into board feet. Roads drive
deep wounds into the solitudes.
Management must decide between the competing demands on the for-
ests. When different uses clash, which shall be favored? How are local needs
to be balanced against broader interests? Who is to have the benefit of
the economic resources, and on what terms? How are the conflicting
recreational demands of fishermen, skiers, hunters, motorboat enthusiasts,
and automobile sightseers to be satisfied? If tens of millions of people
cannot be offered solitude, who is to enjoy it? Should the requirements of
the future outweigh the demands of today?
How to make such decisions-and similar ones concerning every area
of public ownership-is a major dilemma for democratic government.
t This article was prepared for a conference on administrative law at the Center for the
Study of Democratic Institutions, Santa Barbara, California.
* Associate Professor of Law, Yale University.
CALIFORNIA LAW REVIEW [Vol. 50:381
Government today has become so vast and complex that often it is impos-
sible for the people, or their elected representatives in Congress, even to
be informed of the issues. Professional bureaucracies grow up to perform
the work of management and planning, and decisions touching the vital
interests of the commonwealth are made in rooms insulated from the voice
of the people.
In large measure, the power to make fundamental policy for the pub"
licly owned forests has fallen to small professional groups. Bitterly contro-
versial decisions-choices between basic values-are made by these groups
with little or no outside check. How this has come about, and whether there
is any way the people can or should assume a voice in determining the
future of their forest heritage, are questions that will be explored herein.
I
CONGRESS DELEGATES ITS RESPONSIBLITIES
In a democracy, laws and policies, including laws governing publicly-
owned resources, must theoretically be made in public by the people's
elected representatives. But in today's overcomplicated world an over-
whelmed Congress has been forced to delegate a large measure of legislative
power to specialized executive and administrative agencies whose officials
are not elected or directly controlled by the people.
When congressional relinquishment of the lawmaking function first
assumed major proportions, in the early days of the New Deal, the Supreme
Court tried to halt the trend. The justices declared that legislative power
as such cannot be delegated and that Congress can permit the executive
agencies to make "regulations" only within the boundaries of carefully
prescribed standards.' But growing government soon broke through this
constitutional retaining wall, and the courts eventually ceased to demand
strict standards for delegation.'
Congress has delegated control over different portions of the nation's
forest land to three not always cooperative executive agencies of the federal
government: The Forest Service in the Department of Agriculture, and
the National Park Service and the Bureau of Land Management in the
Department of the Interior. The Forest Service has the largest share.
It administers all public lands reserved as national forests. The National
Park Service has jurisdicition over areas of special scenic or historic sig-
nificance, including parks, monuments, battlefields, and other reservations.
The Bureau of Land Management controls immense stretches of public
land, much of it treeless, but its holdings include choice timber on the
IPanama Ref. Co. v. Ryan, 293 U.S. 389 (1935).
2E.g., Lichter v. United States, 334 U.S. 742, 785 (1948).
19621 FOREST ADMINISTRATION
west coast and other forests in Alaska. Each of these agencies has been
granted sweeping legislative and policy powers by Congress.
The Forest Service
The basic charter of the Forest Service isa 1960 statute declaring that:
It is the policy of Congress that the national forests are established and
shall be administered for outdoor recreation, range, timber, watershed, and
wildlife and fish purposes .... The Secretary of Agriculture is authorized
and directed to develop and administer the renewable surface resources of
the national forests for multiple use and sustained yield of the several prod-
ucts and services obtained therefrom. In the administration of the national
forests due consideration shall be given to the relative values of the various
resources in particular areas ....3
The two crucial terms used above are defined as follows:
(a) "Multiple use" means: The management of all the various renew-
able surface resources of the national forests so that they are utilized in the
combination that will best meet the needs of the American people; making
the most judicious use of the land for some or all of these resources or
related services over areas large enough to provide sufficient latitude for
periodic adjustments in use to conform to changing needs and conditions;
that some land will be used for less than all of the resources; and harmo.
nious and coordinated management of the various resources, each with the
other, without impairment of the productivity of the land, with consider-
ation being given to the relative values of the various resources, and not
necessarily the combination of uses that will give the greatest dollar return
or the greatest unit output.
(b) "Sustained yield of the several products and services" means the
achievement and maintenance in perpetuity of a high-level annual or regu-
lar periodic output of the various renewable resources of the national forests
without impairment of the productivity of the land.4
Earlier statutes giving the Secretary legislative authority were left
standing as additional sources of power. A few of these will be mentioned
to show the general nature of the standards fixed as "guides" to the Sec-
retary's action. He is authorized, on thirty days' notice, to sell timber in
the national forests "for the purpose of preserving the living and grow-
ing timber and promoting the younger growth.. ." to the extent "com-
patible with the utilization of the forests."5 He can set aside areas for
town sites upon a "satisfactory showing of need therefor."6 He may permit
the use of national forest land for hotels, resorts, facilities, summer homes,
stores, or commercial, industrial or public buildings, provided only that
such use does not "preclude the general public from full enjoyment of the
3 Multiple Use Act §§ 1-2, 74 Stat. 215 (1960), 16 U.S.C. §§ S28-24 (Supp. I1, 1962).
4 74 Stat. 215 (1960), 16 U.S.C. § 531 (Supp. I[, 1962).
G30 Stat. 35 (1897), 16 U.S.C. § 476 (1958).
6 72 Stat. 438 (1958), 16 U.S.C. § 478a (1958).
CALIFORNIA LAW REVIEW [Vol. 50:381
natural, scenic, recreational, and other aspects of the national forests."'
When he finds that lands are "chiefly valuable for agriculture, and . . .
may be occupied for agricultural purposes without injury to such national
forests and... are not needed for public purposes" he may have them
opened to homestead entry "in his discretion."8 He may permit the use
of rights of way for electrical plants, power lines, radio and television,
and communications facilities "upon a finding ... that the same is not
incompatible with the public interest."9 Under a similar standard, he may
grant rights of way for roads and railroads,"0 and for dams, ditches, canals,
and reservoirs."
The National Park Service
The National Park Service in the Interior Department is required to
preserve the special values of its lands; it cannot open them to multiple
use. Nevertheless, the Service can make policy within wide statutory
boundaries. Thus, the Secretary of the Interior is authorized to make
such rules and regulations "as he may deem necessary or proper" for
the use and management of the parks; sell or dispose of timber "where
in his judgment the cutting of such timber is required in order to control
the attacks of insects or diseases or otherwise conserve the scenery" in
any such park; provide "in his discretion" for the destruction of such
animals and plant life "as may be detrimental" to the use of any of the
parks; grant privileges and leases for the use of land for the accommoda-
tion of visitors for periods not exceeding thirty years; grant privileges to
graze livestock "when in his judgment such use is not detrimental" to the
primary purpose for which the park was created; and grant such priv-
ileges, leases, and permits and enter into contracts relating to the same
"without advertising and without securing competitive bids."' In addition,
he may grant rights of way for power and communication facilities if these
are not incompatible with the public interest; 1 build airports in or in close
proximity to the national parks if an airport is necessary to the proper
performance of the Department's functions;'4 build roads, bridges, and
trails;'" and contract for services and accommodations for the public.'"
738 Stat. 1101 (1915), 70 Stat. 708 (1956), 16 U.S.C. § 497 (1958).
834 Stat. 233 (1906), as amended, 16 U.S.C. § 506 (1958).
931 Stat. 790 (1901), 16 U.S.C. § 522 (1958) ; 36 Stat. 1253 (1911), 66 Stat. 95, 96 (1952),
16 U.S.C. § 523 (1958).
1030 Stat. 1233 (1899), 16 U.S.C. § 525 (1958).
1133 Stat. 628 (1905), 16 U.S.C. § 524 (1958).
1239 Stat. 535 (1916), 45 Stat. 235 (1928), 72 Stat. 152 (1958), 16 U.S.C. § 3 (1958).
Is36 Stat. 1253 (1911), 66 Stat. 95 (1952), 16 U.S.C. § 5 (1958).
14 64 Stat. 27 (1950), as amended, 16 U.S.C. § 7a (1958).
1543 Stat. 90 (1924), 16 U.S.C. § 8 (1958).
1646 Stat. 382 (1930), 16 U.S.C. § 17b (1958).
19621 FOREST ADMINISTRATION
The Secretary may also authorize timber sales, grazing, leases of land, and
rights of way in specific parks; for example, in Yosemite Park he may
"sell and permit the removal of such matured or dead or down timber as
he may deem necessary or advisable for the protection or improvement
of the park .... ,17
The Bureau of Land Management
The miscellany of forest lands under the control of the Bureau of
Land Management in the Interior Department is subject to no single
pattern of statutory regulation. The lands revested or reconveyed under
the Oregon and California Railroad and Coos Bay Wagon Road grants-
among the nation's finest forests-are to be managed:
for permanent forest production, and the timber thereon shall be sold, cut,
and removed in conformity with the principle of sustained yield for the
purpose of providing a permanent source of timber supply, protecting
watersheds, regulating stream flow, and contributing to the economic sta-
bility of local communities and industries, and providing recreational
8
facilities.'
Timber in Alaska may be sold by the Secretary of the Interior if necessary
for consumption in Alaska; he may sell "so much thereof as he may deem
proper."'9 In cases not otherwise governed by law, the Secretary may sell
timber on the public lands if the sale "would not be detrimental to the
public interest"; he may also allow public or nonprofit bodies to take
timber "in his discretion."' In addition, he may sell dead, down or dam-
aged timber' and permit some residents to cut timber.l
In general, lands under the jurisdiction of the Secretary of the Interior,
not otherwise reserved, may be disposed of in small units to any govern-
mental body or nonprofit corporation for "public" or "recreational" pur-
poses.3 Small tracts may also be sold or leased to private individuals for
residence, recreation, business or community sites unless this will impair
the use of water for grazing or irrigation.' In addition, various types of
rights of way may be granted.25 Many other statutes bear on these lands;
1737 Stat. 81 (1912), 16 U.S.C. § 54 (1958).
1850 Stat. 874 (1937), 43 U.S.C. § 11Sa (1958).
1930 Stat. 414 (1898), 48 U.S.C. §421 (1958).
20 61 Stat. 681 (1947), 30 U.S.C. § 601 (1958).
237 Stat. 1015 (1913), 44 Stat. 890 (1926), 16 U.S.C. § 614 (1958).
2226 Stat. 1099 (1891), as amended, 16 U.S.C. § 607 (1958).
2344 Stat. 741 (1926), 68 Stat. 173 (1954), 43 U.S.C. § 869 (1958).
2A52 Stat. 609 (1938), 68 Stat. 239 (1954), 43 U.S.C. § 682a (1958).
2555 Stat. 183 (1941), 43 U.S.C. § 931a (1958); 68 Stat. 1146 (1954), 43 U.S.C. § 931c
(1958); 68 Stat. 1146 (1954), 43 U.S.C. § 931d (1958); 26 Stat. 1101 (1891), as amended,
43 U.S.C. § 946 (1958); 31 Stat. 790 (1901), as amended, 43 U.S.C. § 959 (1958); 36 Stat. 1253
(1911), as amended, 43 U.S.C. § 961 (1958).
CALIFORNIA LAW REVIEW [Vol. 5;0:381
they add up to broad general authority for the Bureau of Land Manage-
ment.
The standards used by Congress to delegate authority to plan for the
forests are so general, so sweeping, and so vague, that Congress has actu-
ally turned over virtually all of its responsibilities to the agencies. "Mul-
tiple use" does establish that the forests cannot be used exclusively for
one purpose. But beyond this it is little more than a phrase expressing the
hope that all competing interests can somehow be satisfied, and leaving
the real decisions to others. The "relative values" of various resources are
to be given "due consideration" but Congress has not indicated what those
values are or what action shall be deemed "due consideration." Congress
has directed "harmonious and coordinated management of the various
resources," but it has left the Forest Service to deal with the uncooperative
fact that different uses of resources often clash rather than harmonize.
Most significantly, Congress has told the Forest Service to "best meet the
needs of the American people," but it has left it entirely up to the Service
to determine what those needs are.
This last phrase shows the extent of congressional abandonment of
its lawmaking and policy making power. What is the job of Congress if
not to determine the needs of the people and how they should be met? The
Forest Service has been given authority to decide whether the American
people need the forests more for resources, recreation, wilderness, or dams
and public power. And because Congress has offered no standards or pol-
iies of its own, almost any choice by the Forest Service would be within
its delegated authority. Whether the Service cuts trees, builds dams, puts
up hotels, or leaves the woods undeveloped, it would be hard indeed to hold
the outcome to be legally in conflict with any congressional mandate.
The standards used in legislation concerning the forests under the
Bureau of Land Management, and to a large extent those concerning the
national parks, are equally vague. Standards such as "not incompatible
with the public interest," "extent compatible with the utilization of the
forests," and "satisfactory showing of need therefor" are less policies than
euphemistic phrases of abdication, giving away all real power; they are
like the mumbled "drive carefully" employed by fathers when handing
over the car keys.
The kinds of power granted by Congress are awesome-nothing less
than the power to determine irrevocably the character and use of the
nation's forest heritage. For example, the power to permit timber to be
cut and sold, possessed to some extent by all three agencies, is the power
to make a permanent choice between wilderness and a forest busy with
roads and bulldozers. The authority to permit the construction of perma-
19623 FOREST ADMINISTRATION
nent buildings, specifically granted to the Forest Service and the Park
Service, is sufficient to allow the commercialization of recreation on a resort
basis; parts of Yosemite and Glacier Parks illustrate this.
Since Congress has transferred its functions in connection with the
forests to three executive agencies, it becomes all-important to inquire
about the nature of the process by which these agencies exercise their
power. Are decisions made openly or in private? Are they made after delib-
eration and debate? Does the public have a chance to participate? Is there
any check or review of what is decided? Answers to these questions will
measure the degree to which the people retain control over policy making
for their forests.
II
TIM POLICY MAKING PROCEDUZES IN THE AGENCIES
Elaborate internal procedures have been adopted by the forest agencies
to exercise their management, policy, and planning functions. Decisions are
reviewed and re-reviewed from field offices up to carpeted Washington
chambers in stately administrative progression. Yet with only a few excep-
tions-important but limited-decisions are made wholly within the execu-
tive agencies, without notice to or participation by the public, and without
effective check or review beyond the Secretary of Agriculture or Interior.26
In the Forest Service, procedure begins at a planning stage. National,
regional, and subregional guides are prepared, with the assistance of Forest
Service personnel on all levels.27 These tend to be very general, however.
Specific decisions usually follow an upward route from local Forest Service
officers, who make the proposals, through review at a regional level, to final
approval in Washington. If the decision requires funds, it will also be con-
sidered by budget officials in the Department of Agriculture, by the Budget
Bureau, and ultimately by Congress as part of the appropriation procedure.
Throughout this activity there are outside influences of varying impor-
tance. Local rangers are officially encouraged to participate in local civic
activities, and to discuss the Service's plans on the local level. The Service
26 An excellent general description of policy formation and decision making for the public
lands is found in CLAWSON & HELD, Tm FEDERAL LANDs: TEim USE AD M-ANAGEENT 132-94
(19S7).
271 llustrations of the three types of planning documents are: FOREST SERVICE, U.S. DEP'IT
OF AGRIcuLTURE, DEVELOPMENT PROGRAM FOR THm NATIONAL FORESTS (Misc. Pub. No. 896,
Nov. 1961) ; FOREST SERVICE, U.S. DEP'T OF AGRICULTURE, MANAGEmENT OBJECTIVEs AND POwE-
IES OR TH HIH MOUNTAIN AREAS OP NATIONAL FORESTS OF THE PACIFIC NORTHWEST
RExiox (April 1962); FOREST SERVICE, U.S. DEP'T OF AGRICULTURE, EAST SIERRA SUBREGI N
MuLTLE USE GumE (1961).
CALIFORNIA LAW REVIEW [Vol. 50:381
appoints national and regional advisory councils which consult from time
to time. On every level there are informal contacts with representatives of
organizations, members of Congress, public officials, and interested per-
sons who write in.
Procedures and influences in the National Park Service and the Bureau
of Land Management are not dissimilar, but generally speaking they are
less elaborate. All three agencies make "institutional" decisions-group
decisions in which it is difficult to pinpoint individual responsibility.
In none of the three agencies do the over-all procedures provide an
opportunity for the general public to participate. The agencies maintain
close informal contact with some outside persons and organizations, but
these are not equivalent to the public. No general notice of the pendency of
particular decisions is given and no general opportunity to be heard is
afforded. There is no procedure by which the public can initiate proposals.
The post office is always available but the influence of letters on official
action is uncertain.
In short, there is a wealth of informal influence on the decision making
process, but virtually no formal public rights. The distinction is an impor-
tant one, because the informal "public" is selective; and because formal
expressions of views must be given a degree of consideration and review
that informal expressions cannot expect.
One exception to the practice described above occurs whenever pro-
posed action will interfere with the contractual rights or other legally pro-
tected interests of a particular individual. Then the individual affected
may seek to have the decision reconsidered. The Forest Service has detailed
regulations governing the procedures in such situations.,, The aggrieved
person is permitted to file a written request for reconsideration, and may
present evidence at a hearing, after which the agency renders a final
decision based upon the record made at the hearing. The Bureau of Land
2836 C.F.R. § 211.2 (1960). There are actually two separate procedures. The first-
§ 211.2 (a) (1)-applies to the following persons:
Any person having a contractual relationship with the Forest Service (other than
one relating to the construction, alteration or repair of public buildings or works,
or to the purchase of administrative supplies, equipment, materials or services),
including an application therefor, aggrieved by any administrative action or decision
of an officer of the Forest Service relating thereto ....
This is the class of persons entitled to hearings. A second class of persons, entitled only to file
a written statement and to have a reviewing officer prepare a statement of review and explan-
ation, is described as follows: "Any person aggrieved by any administrative action of an officer
of the Forest Service other than those relating to contractual relationships ...." § 211.2(b).
The key word here is "aggrieved" which in its legal meaning is limited to persons suffering
certain types of "qegal injury." Compare Administrative Procedure Act § 10, 60 Stat. 243 (1946),
5 U.S.C. § 1009 (1958).
19621 FOREST ADMINISTRATION
Management has regulations for hearings on timber management units and
rights of way in its northwest forests."
This special procedure is actually of very narrow effect. It confers no
rights on the general public. Only in rare cases would any person have an
individual legal grievance against the broader management or planning
decisions of the agencies. Cancellation of a contract to sell timber could be
reviewed at the instance of the buyer, but the underlying decision about
the use of the land for lumbering, watershed, or recreation would usually
not touch on any legal rights.
A far more important exception in terms of public participation is the
so-called advisory hearing procedure. When an announced decision pro-
duces a loud enough clamor, the forest agencies have sometimes held advis-
ory public hearings. This procedure is used on an ad hoc basis by the Park
Service; the Forest Service has formally adopted it to assist in the making
of wilderness classification decisions. This procedure, although it applies
to only a tiny proportion of decisions concerning the forests, reveals a
great deal about the underlying problem of public participation in forest
planning. Accordingly, the wilderness hearings will be considered in some
detail.
The Wilderness Advisory Hearings
The Forest Service has recognized the desirability of preserving some
forests in their natural state, by regulations providing for the classification
of sections as wilderness areas or wild areas. Such areas are closed to
lumbering, to roads, and to the more civilized forms of recreational use;
they are to be preserved as much as possible in their primitive condition 0
Wilderness and wild areas may, under Forest Service regulations, be
established, modified, or eliminated by order of the Secretary of Agricul-
ture, in the case of the former, or the Chief of the Forest Service, in the
case of the latter31 According to the regulations, such action may be
preceded by an advisory hearing at which members of the public can
appear and present their views3 Notice of contemplated action must be
given at least 90 days before the effective date33 Then "if there is any
demand for a public hearing" the regional forester is directed to hold one,
29 43 C.Y.R. §§ 115.2-.9, 115.14 (1954).
80 A wilderness or wild area is one in which "there shall be no roads or other provision for
motorized transportation, no commercial timber cutting, and no occupancy under special use
permit for hotels, stores, resorts, summer homes, organization camps, hunting and fishing
lodges, or similar uses .... 1"3 6 C.F.R. § 251.20(a) (1960).
3136 C.F.R. §§ 251.20(a), 251.21 (1960).
3236 C.F.R. § 251.20(c) (1960).
o8I bid.