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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 17-007

General Memorandum 17-007
Tribes Can Benefit from Expedited Process for Amending Land Management Plans Under the Forest Service's New Final Rule

On December 15, 2016, the U.S. Forest Service, Department of Agriculture, published a final rule revising the regulations governing amendments to land management plans for the National Forest System. 81 Fed. Reg. 90723. This final rule, which adopts revisions proposed on October 12, 2016, will be useful for tribes who wish to see their priorities better reflected in forest land management plans. See our General Memorandum 16-063 (Oct. 20, 2016). The final rule may be found here: https://www.gpo.gov/fdsys/pkg/FR-2016-12-15/pdf/2016-30191.pdf.

Many National Forest System lands are adjacent to tribal lands; encompass parts of sacred landscapes and sacred sites; and contain culturally-important plants and other natural resources. In addition, overgrown federal forests can pose a fire risk to adjacent tribal forests. The Forest Service has a statutory duty under the National Forest Management Act of 1976, 16 U.S.C. § 1604, 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). The purpose of the final rule is to make it easier for the Forest Service to make relatively minor amendments to these land management plans, without going through the cumbersome process of fully revising the plan, which can take years and requires the preparation of an environmental impact statement (EIS). One reason this final rule is important is that all of the plans now in effect were adopted before the Forest Service regulations required consultation with tribes in the development of land management plans. By promulgating a final rule which expedites the process for amending plans, the Forest Service has given tribes an opportunity to shape land management plans in ways that take their priorities into account.

Background. As discussed in the preamble to the final rule, 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 governing land management plans. 77 Fed. Reg. 21161 (36 C.F.R. part 219). The 2012 rule includes provisions for outreach to, and consultation with, Indian tribes and Alaska Native corporations, including a requirement that, as part of tribal participation and consultation, the responsible Forest Service official "shall request information about native knowledge, land ethics, cultural issues, and sacred and culturally significant sites." 36 C.F.R. § 219.4.

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 in which the Forest Service may "amend" a plan at any time in order to keep it current. The rule distinguishes between "amendment" of a plan and "revision." A plan revision, required by statute at least once every 15 years, is a comprehensive process that, in effect, creates a new plan. 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.

Changes Made by the Final Rule. A plan amendment does not create a new plan, but, rather, leaves the underlying plan in effect except to the extent changed by the amendment. The regulatory changes made by the December 2016 final rule are intended 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. 36 C.F.R. §§ 219.8-219.11. The December 2016 final rule provides that, in a plan amendment, the responsible official "must determine which substantive requirements within §§ 219.8 through 219.11 of the 2012 rule are directly related to the plan direction being added, modified or removed by the amendment, and apply those requirements to the amendment." (Emphasis added.) Substantive requirements that are not directly related need not be addressed. In contrast, a new plan or plan revision must bring the plan into compliance with every requirement within §§ 219.8 through 219.11. As explained in the preamble, the final rule adopts the basic approach that had been set out in the proposed rule, although a number of minor changes in wording were made in response to comments to clarify various points.

How This Helps Tribes. As noted in our General Memorandum 16-063, the changes in the rules to expedite the adoption of plan amendments can work to the benefit of tribes. For example, a tribe may seek to obtain trees, portions of trees, and forest products from National Forest System land for traditional and cultural purposes, as authorized by section 8105 of the law commonly known as the "2008 Farm Bill" (Food, Conservation, and Energy Act of 2008, PL 110-246 (25 U.S.C. § 3055)) and the recently issued final rule implementing that law. 81 Fed. Reg. 65891 (to be codified at 36 C.F.R. § 223.15). In such a case, if the tribe's interests were 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, without having to wait years for a plan revision.

Please let us know if we may provide additional information or assistance requesting a plan amendment under the revised Forest Service planning rule.

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

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


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