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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 16-063

General Memorandum 16-063
Forest Service Issues Final Rule on Providing Forest Products to Tribes for Cultural Purposes; Proposed Rule on Land Management Planning

On September 26, 2016, the Forest Service, Department of Agriculture, published a final rule on providing forest products to tribes for traditional and cultural purposes. 81 Fed. Reg. 65891. On October 12, the Forest Service published a proposed rule to revise the regulations governing land management planning for the National Forest system. 81 Fed. Reg. 70373. While these two rules are independent of each other, there are some important ways in which they are related. The deadline for filing comments on the proposed rule is November 14, 2016.

The final rule may be found here:

https://www.gpo.gov/fdsys/pkg/FR-2016-09-26/pdf/2016-22929.pdf

The proposed rule may be found here:

https://www.gpo.gov/fdsys/pkg/FR-2016-10-12/pdf/2016-24654.pdf

Forest Products for Traditional and Cultural Purposes Final Rule. The final rule on providing forest products to tribes is based on section 8105 of the Food, Conservation, and Energy Act of 2008 (PL 110-246, commonly known as the "2008 Farm Bill"). Section 8105 (codified at 25 U.S.C. § 3055) provides discretionary statutory authority for the Secretary of Agriculture to provide trees, portions of trees, and forest products from National Forest System land to tribes for traditional and cultural purposes free of charge. The commercial use of such trees, portions of trees, or forest products is prohibited. As explained in the preamble, since 2009, this authority has been implemented through an Interim Directive (ID) to the Forest Service Handbook. The final rule, which will replace the ID, will be codified in 36 C.F.R part 223, "Sale and Disposal of National Forest System Timber, Special Forest Products, and Forest Botanical Products," as a new section 223.15. It will also be integrated into the Forest Service Handbook as FSH 2409.18, chapter 80, section 82.5.

The final rule does not establish much in the way of substantive or procedural requirements for requests from tribes. Such requests "must be directed to the appropriate Forest Service District Ranger(s)' Office from which the items are being requested. Tribal officials are encouraged to explain their requests to the Regional Forester or designated Forest Officer and, if necessary, describe how the request fits a traditional and cultural purpose." (Emphasis added.) The rule incorporates a statutory definition of the term "traditional and cultural purpose," which, "with respect to a definable use, area, or practice, means that the use, area, or practice is identified by an Indian tribe as traditional or cultural because of the long-established significance or ceremonial nature of the use, area, or practice to the Indian tribe." 25 U.S.C. § 3052(9).

In the preamble, in response to a comment that had called for the Forest Service to prioritize the collection of forest products for traditional and cultural purposes over other uses, the Forest Service said that prioritization is outside the scope of this rule and that it determines how to balance competing demands for forest products and land use when revising or amending land management plans using the National Forest System Land Management Planning process (36 CFR part 219).

Land Management Planning for the National Forest System Proposed Rule. The Forest Service has a statutory duty to develop a land management plan for each of the units that comprise the National Forest System (154 national forests, 20 grasslands, and 1 prairie). As discussed in the preamble, all of the plans that are now in effect were adopted pursuant to regulations issued in 1982. On April 9, 2012, the Forest Service issued a revised final rule. 77 Fed. Reg. 21161 (codified at 36 C.F.R. part 219). There are fundamental differences in structure and content between the 2012 rule and the 1982 rule. The 2012 rule reflects 30 years of experience with land management planning, including an emphasis on adaptive management in response to changing conditions and new information. As such, the 2012 rule calls for an iterative approach which allows plans to be "amended" at any time in order to keep them current. The rule distinguishes between "amendment" of a plan and "revision" of a plan (a comprehensive process that is required by statute at least once every 15 years). Of the existing 127 land management plans, 68 are past due for revision, but the Forest Service does not have the resources to conduct all of the revisions at once. (Among other things, revision of a plan requires preparation of an environmental impact statement (EIS). 36 C.F.R. § 219.7(c).)

The purpose of the current proposed rule is to clarify the extent to which the underlying plan must be changed when an amendment is adopted. The 2012 rule includes four subjects that must be addressed in a plan: sustainability; diversity of plant and animal communities; multiple uses; and timber requirements based on the National Forest Management Act of 1976. 36 C.F.R. §§ 219.8-219.11. Briefly, the position taken in the proposed rule is that in a plan amendment the responsible official "must apply the requirements within §§ 219.8 through 219.11 that are directly related to the amendment" and the plan amendment "cannot make changes that are contrary to requirements of the 2012 planning rule." (Emphasis added.) In contrast, a new plan or plan revision "must bring the plan into compliance with every requirement within §§ 219.8 through 219.11." (Emphasis added.)

One way in which the forest products final rule and the planning rule are connected is that if a tribe is interested in forest products for traditional or cultural purposes from a particular area, but the tribe's interests are not accounted for in a management plan, the Forest Service could respond to the tribe's expression of interest in such an area by adopting a plan amendment to accommodate the tribe's request, without having to do a full plan revision.

Please let us know if we may provide additional information or assistance regarding the final rule on forest products for traditional and cultural purposes or assistance preparing comments on the proposed planning rule.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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