APPENDIX 3. Federal legislation and a keystone judicial decision influencing Tongass governance


Multiple Use Sustained Yield Act of 1960 (MUSYA) – formally articulated the mission of USFS to include managing for “outdoor recreation, range, timber, watershed and wildlife and fish purposes.” Yet due to vague language, the mandate of MUSYA has been subject to diverse interpretation and prolonged debate. In the Tongass, for example, MUSYA has been invoked to justify the offering of 8.7 billion board-feet of old-growth timber to single purchaser; and three decades later, the potential designation of 58 million acres of roadless areas as federally-protected wilderness reserves (Nie 2006). This ambiguous mandate provided the basis for legal challenges to forest planning actions (Rasband et al. 2004), and MUSYA became a major challenge for an agency focused on the dominant use of National Forests for timber (Clary 1986).

Wilderness Act of 1964 – required all roadless public lands to be evaluated for potential wilderness designation. The Wilderness Act added another non-timber land use to the multiple-use mandate of the USFS.

Administrative Procedures Act of 1966 (APA) – enacted broad reforms on the bureaucratic procedures of all federal agencies. The legislation required greater transparency in the agency planning process and created the basis for agency decisions to be appealed by public stakeholders and interest groups. As a result, the appeals process became a primary venue of conflict resolution and communication between public groups and the USFS (Nie 2006).

National Environmental Policy Act of 1969 (NEPA) – amended in 1971 and 1973, required all management actions complete a scientific review process to evaluate environmental impacts. Under NEPA, these Environmental Impact Statements (EIS) and Environmental Assessments (EA) have become fertile ground for legal challenges. Since NEPA, more environmental lawsuits have been based on EIS requirements than any other federal statute (Rasband et al. 2004). In the years immediately following NEPA, federal judges typically deferred to the authority and expertise of the USFS. As the prevalence of NEPA-based appeals and litigation grew during the 1970s, this tendency gradually reversed as environmentalists found more favorable venues in the federal judicial system (LeMaster 1984; Nie 2006). The adequacy and accuracy of the science used in the EIS process was often the basis for legal challenges, especially with respect to the practice of clearcutting in National Forests (Clary 1986). In 1972, the U.S. Congress held extensive hearings on clear-cutting, due to growing public opinion opposing the practice (Bliss 2000).

Endangered Species Act of 1973 (ESA) – beset the USFS with additional environmental regulations and created a new venue for environmental litigation on the grounds of protecting biota affected by forest management practices. In conjunction with NEPA, ESA requirements to protect threatened and endangered species greatly complicated timber operations on U.S. National Forests (LeMaster 1984).

Freedom of Information Act of 1974 (FOIA) – made all institutional records publicly available. FOIA opened the planning and decision-making process to greater public and judicial scrutiny.

Sierra Club v Hardin – the first successful legal challenge to a Tongass timber sale, the lawsuit was initially filed in 1965, prior to the passage of NEPA and APA. While the initial ruling was in favor of the USFS, in subsequent proceedings, the plaintiffs used language from MUSYA, and later from NEPA, to delay and eventually block a large timber sale to the US Plywood Champion Company. The plaintiffs included local stakeholders who challenged the construction of a pulp mill in Echo Cove, north of Juneau. Because construction of the mill (as in Ketchikan and Sitka) was requisite for the lease contract, the several years of litigation and local opposition (although it reflected a minority) led to withdrawal of the sale in 1971. Sierra Club v Hardin was among the initial applications of NEPA to block a major federal agency decision, and the first time it was used to block a federal timber sale (Rakestraw 1989; Nie 2006).