81 



(2) NFMA also requires that the agency develop plaimiiig guidelines which 'provide for diversity of plant and 

 mimal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use 

 objectives . . . ' a prx>visioa which has been interpreted in regulations to require: '[f)ish and wildlife habitat shall be 

 managed to iniiinhlin viable populadons of existing native and desired non-native vertebrate species in the plannmg area.' 

 36 CFR V 219.19. The agency has acknowledged its general duty to maintain a level of biodiversity "at least as great 

 as that which would be expected in a natural forest" where "appropriate" and "practicable", but has not derveloped a 

 policy which requires the use of those indicator species most sensitive to land management activities on a regional basis. 

 36 CFR V 219.27(g). Nor has die agency failed to adequately distinguish between species and populations (stocks) in 

 determining its viable populadons requirements. Litigahon is currently underway which could result in judicial 

 clarification of the scope of the Forest Service's duties. 



The agency has also generally utilizes individual habitat criteria such as water tanperatures to evaluate the health of 

 streams. These criteria are woefully inadequate. As previously stated, the health of a stream is determined by the 

 combination of a multitude of factors. 



(3) The BLM's primary management statute, the Federal Lands PoUcy and Management Act, directs the BLM to 

 "take any action necessary to prevent unnecessary or undue degradation of the [pubUc] lands,' but (here is no statutory 

 definiboa of unnecessary and undue degradation, and it is left entirely up to the agency to determine what actions are 

 'necessary." Rather, the BLM may, but is not required, to protect biologically significant 'areas of critical 

 environmental concern' in developing and revising land use plans. To date, this mechanism has not been widely used to 

 protect critical rivenne habitat. 



(4) Both agencies are subject to 'multiple-use, sustained-yield principles,' which require that listed resources, 

 including watershed and fish habitat, to be managed for long-term productivity. These principles give be agencies clear 

 authonly to reject economic optimally as the primarily decision making critericm. These principles do not, however, 

 provide any hard constraints on land managers, and require diat agencies merely give 'due consideration' to the various 

 competing uses. 



(5) The Clean Water Act requires the maintenance and preservation of the biological integrity of the nation's waters, 

 but, to date, the Act has failed to prevent the massive landslides and stream sedimentation associated widi logging in 

 unstable watersheds — despite the use of 'Best Management Practices.* 



A Word On Enforceability: We do not overlook die fact that each of the agencies has developed guidance of various 

 kinds which applies to the management of rivers and riparian areas. However, except for those few forests or districts 

 with specific riparian management language in their land management plans, most riparian management guidelines which 

 do exist appear as text m agency manuals and handbooks, provisions or technical guides, none of which is binding on the 

 agency or legally oiforceable by affected parties. 



For example, the Willamette National Forest has promulgated a technical guide entitled 'Riparian Management Guide." 

 This is generally acknowledged to contain the most contemporary, scientifically defensible riparian protection standards 

 in the Forest Service. However, this document does not itself contain any directives which are binding on the agency. 

 Rather, it is an informally promulgated document, not subject to the notice and comment procedures of the 

 Administrative Procedures Act, and not, therefore, enforceable against the agency in a court of law. See e.g. Lumber 

 Prod. & Indust. Workers Log Scalers Local 2058 v. United States, 580 F. Supp. 279 (1984) (forest service manual 

 provisions not binding because not promulgated by Secretary of Agriculture under a specific statutory provision and APA 

 procedures): United States v. Fifty-three Eclectus Parrots, 685 F. 2d 1131 (1982) (agency pronouncement must be 

 legislative m nature to have the force and effect of law, and be promulgated under a 'specific statutory grant of 

 authonty' m conformance with Congressionally imposed procedural requirements). 



Consistency: Not only do the BLM and the Forest Service have different riparian poUcies, die agencies are not 

 internally consistent. For example, internal reviews in Forest Service Region 6 reported disparate standards and 

 guidelines among forest plans for fishery resource protection, concluding that none of the plans reviewed ensure the 

 continued viability of sahnonid populations. (Heller et. al., 1991). As one investigator discovered, 'planning criteria, 

 indicators for measuring resource values, modeling assumptions, and analytic procedures varied substantially among 

 forests, such that direct quantitative comparisons between plans are of only limited value.' (Frissell, 1992). Likewise, 

 standards and guidelines for npanan management varied considerably anKmg forests: the Willamette (Oregon) and 



