law and biodiversity in the temperate forest · rules to regulate forestry “work rules” and...

Law and Biodiversity in Law and Biodiversity in The Temperate ForestThe Temperate Forest

Australia and North AmericaAustralia and North AmericaMarch 7, 2007March 7, 2007

Professor Federico Professor Federico CheeverCheeverUniversity of Denver Sturm College of University of Denver Sturm College of

LawLaw

I. Why Temperate (and I. Why Temperate (and Boreal) Forests?Boreal) Forests?

Global Forest Resources Assessment www.fao.org/DOCREP/004/Y1997E/y1997e24.jpg

Coastal Forest, Oregon

Old Growth Blue Gum, Tasmania

Pine Plantation, ACT

II. A. Forests and Public II. A. Forests and Public Ownership:Ownership:

Why?Why?

http://www.fs.fed.us/land/staff/lar/nfsmap.htm

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/

1.History1.History

http://www.verderers.org.uk/home.htm

http://www.newforestnpa.gov.uk/

http://www.fs.fed.us/r5/angeles/images/forest_vicinity_map.gif

2. Multiple Use2. Multiple Use

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/usfscoll/policy/Agency_Organization/NF_System/Wilson_Letter.html

NSW Forestry Act 1916The 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 . . .

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)

"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

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.

• 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.

3. Time, Value and 3. Time, Value and MoneyMoney

II.B. Forests and Public II.B. Forests and Public Ownership:Ownership:Why Not?Why Not?

1. Immunity from “Market 1. Immunity from “Market Forces”Forces”

and and 2. “Agency Capture”2. “Agency Capture”

“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)

“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)

II.C. Timber Planning II.C. Timber Planning and Forest Planningand Forest Planning

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)

Hayden District, Medicine Bow National Forest Plan, Wyoming

http://www.daffa.gov.au/rfa/regions/map

III. Legislative Strategies to III. Legislative Strategies to Constrain Agency ConductConstrain Agency Conduct

A. Strategy 1: Legislative A. Strategy 1: Legislative Rules to Regulate ForestryRules to Regulate Forestry

““Work Rules” and Legislative Work Rules” and Legislative Competence: The Case of “Clear Competence: The Case of “Clear

Cutting”Cutting”

Colonial Land ClaimsColonial Land Claims

[T]he 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).

[T]he 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)

Olympic National Forest, Washington State

B. Strategy 2: Legislative B. Strategy 2: Legislative Rules to Require Rules to Require

Environmental Impact Environmental Impact AnalysisAnalysis

““Consider the Consequences”Consider the Consequences”

B.1 Judicial CompetenceB.1 Judicial Competence

“[N]o 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. . . . .[T]heApplicant 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)

"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

“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)

B.2 “The Plan” and “The B.2 “The Plan” and “The Ground”Ground”

In the U.S. . . .In the U.S. . . .

[T]he 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)

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. [T]o 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)

Meanwhile, in TasmaniaMeanwhile, in Tasmania. . . .. . . .

Actions with significant impact on listed threatened species or endangered community prohibited without approval . . .

A person must not take an action that:

(a) has or will have a significant impact on a listed threatened species included in the endangered category; or

(b) is likely to have a significant impact on a listed threatened species included in the endangered category.Section 18(3) of the EPBC Act

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)

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)

C. Strategy 3: Requiring C. Strategy 3: Requiring ReservesReserves

““The The MaginotMaginot Line”Line”

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.”

National Wilderness Preservation System http://www.wilderness.net/images/NWPS/mapFull.jpg

National Forest System Roadless Areas 2006

http://www.wilderness.org/OurIssues/Roadless/AtRisk/index.cfm

http://www.daffa.gov.au/__data/assets/pdf_file/50297/nsw_rfa_edenmap.pdf

http://www.daffa.gov.au/__data/assets/image/50679/tas_raa_rfa_colmap2.gif

U.S. Department of The Interior

Lodgepole Pine,Yellowstone 2004

Lodgepole Pine, Yellowstone 2004

Rocky Mountain Pika (Ochotona princeps)

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 . . .

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.”

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 State’s obligation is satisfied, not through the actual protection of species...but through the employment of the CAR reserve system.’


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.’


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 State’s 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.

D. Strategy 4: Independent D. Strategy 4: Independent Statutory MandatesStatutory Mandates

““The Ten Commandments”The Ten Commandments”

§ 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. . . .

§ 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); . . .

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.

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.

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 . . . .


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.


www.jeffrichphoto.com/images/Birds/

http://www.fseee.org/forestmag/ivot/sp05ot.jpg

http://www.srs.fs.usda.gov/sustain/report/

http://www.mtmultipleuse.org/fire/smokey_bear_poster.htm

Montanans for Multiple Use

Forest Service Employees for Environmental Ethics

Public Forestry, Legislatures and Public Forestry, Legislatures and BiodiversityBiodiversity

Public Ownership Public Ownership ---- WhyWhy –– History, Multiple History, Multiple Use, Money and TimeUse, Money and TimePublic Ownership Public Ownership –– Why NotWhy Not –– Market Market Immunity, Agency Capture, Forest IdeologyImmunity, Agency Capture, Forest IdeologyConstraining Strategy 1Constraining Strategy 1 ---- Legislative Rules to Legislative Rules to Regulate ForestryRegulate ForestryConstraining Strategy 2Constraining Strategy 2 ---- Legislative Rules to Legislative Rules to Require Environmental Impact AnalysisRequire Environmental Impact AnalysisConstraining Strategy 3Constraining Strategy 3 ---- Requiring ReservesRequiring ReservesConstraining Strategy 4Constraining Strategy 4 ---- Independent Independent Statutory MandatesStatutory Mandates

law and biodiversity in the temperate forest · rules to regulate forestry “work rules” and...

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