Land Management and Planning Statutes

This past semester, I took a class on Natural Resource Law, largely on a whim. I loved the class and ended up securing my best grade thusfar in law school. One of the major focuses was management of federal lands, particularly national parks and recreation facilities within national forests. I had some rather strong feelings regarding the planning-statute approach to federal land management, since I felt the statutes were heavily politicized but nonetheless largely devoid of substantive effect. The last question on our final exam enabled me to share my feelings with the professor. She obviously liked what I had to say, so to share it with all of you, I have reprinted my answer to that question. I wrote this passage under time pressure of about twenty minutes, so I have edited it slightly, but only for grammar and syntax.

Comment on the following: Planning statutes are inevitably weak management tools.

Excellent – now comes the part where I get to be exceedingly cynical. I would like to make the argument that all these planning statutes are a perfect opportunity for the fine men and women of Congress to try to be all things to all people without having to make any difficult decisions for which they can be held accountable. They tell the USFS that it must manage for recreation, range, timber, watershed, and wildlife – namely, anything you could possibly use a forest for. Gee, what don’t they have to manage for? There is no guidance provided as to what the priorities should be, so the USFS just gets to prioritize on their own. The only limitation on the agency prioritization is the arbitrary and capricious standard of judicial review. As long as the agency decision seems reasonable, it stands. There is a huge amount of discretion afforded to these agencies, which are accountable to the electorate only indirectly, at best.

Theoretically, if we the people are upset with decisions made by our senators or the president, we can vote them out of office. But what do we do when we disagree with the agencies? Perhaps we can petition our Congressmen to reduce the funding, perhaps we can petition the president to replace his appointees, but the average, ordinary person isn’t going to have much say in the process. On the other hand, special interests can feast on agencies. Those industries that carry much clout in the lobbying circles of Washington, D.C. can get their way with the industries, ensuring steady streams of below-market timber, fishing yields well above what science would dictate, and wilderness areas conveniently drawn around mining lodes. And why can they get away with all this? Because as long as the agency is not arbitrary or capricious, there is no recourse. Nothing in the relevant statute tells the USFS they must sell timber at a certain price, nothing in FLPMA tells the BLM they can only give out a fixed amount of grazing land, nothing in NEPA even tells the agencies that they must act upon the environmental impact statements they are forced to draw up. How can you go to the agency and accuse them of being in violation of their statute when their statute is so broad and watered-down that it doesn’t impose any defined obligations?

At the risk of vitriolic overstatement, planning statutes are the coward’s way out. By passing planning statutes, Congress does not have to make any difficult decisions and then turn around and face the voters. I realize and agree with the rationale that certain scientific decisions must be made by experts, rather than relatively uninformed legislators. But planning statutes let these experts make virtually any decision they want, whether it is truly in the best interests of science or it is in the best interests of the industry groups (or conservation groups, for that matter) sitting beside them and whispering in their ear. Many of these decisions are political decisions and they are being delegated to non-politicians. Furthermore, even the planning statutes that look like they impose strict, defined obligations (such as the ESA) include loopholes and out-clauses (such as the incidental take provision), allowing an agency, in its discretion, to declare that the rules have been otherwise satisfied.

In short, I believe that all these planning statutes afford the relevant agencies with too much discretion and too little accountability. The legislators, who are the people in our government most accountable to the people, have taken a pass on these difficult decisions so that they don’t have to face the consequences. By telling the agencies to make plans, but not how, it is difficult for the will of the people (which is what the political process is theoretically supposed to represent) to be properly carried out. Too many layers of political bureaucracy exist, and too much discretion has been afforded to these different layers with too little oversight, making these planning statutes into inevitably weak management tools.