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(2) NFMA also requires that tbe agency develop planning guidelines which "provide for diversity of plant and 

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

 objectives . . . ' a provision which has been mterpreted in regulations to require: "|f)ish and wildlife habitat shall be 

 managed to mamtam viable populations of e:jistmg native and desired non-native vertebrate species in the plannmg area." 

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

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

 pohcy 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 the agency failed to adequately distmguish between species and populations (stocks) m 

 detenninmg its viable populations reqmrements. Litigation is currently underway which could result m judicial 

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



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

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

 combinabon of a multitude of factors. 



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

 "take any action necessary to prevent unnecessary or undue degradation of the [pubhc] lands," but there is no stamtory 

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

 "necessary." Rather, the BLM may, but is not requu-ed, to protect biologically significant "areas of cntical 

 environmental concern" m developmg and revising land use plans. To date, this mechanism has not been widely used to 

 protect cntical nvenne habitat. 



(4) Both agencies are subject to "multiple-use, sustamed-yield principles," which require that Usted resources, 

 includmg watershed and fish habitat, to be managed for long-term productivity. These prmciples give the agencies clear 

 authority to reject economic optimally as the primarily decision makmg cntenon. These principles do not, however, 

 provide any hard constramts on land managers, and require that 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 landshdes and stream sedimentation associated with loggmg m 

 unstable watersheds — despite the use of "Best Management Practices." 



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

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

 with specific nparian management language m their land management plans, most riparian management guidehnes which 

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

 agency or legally enforceable by affected parties. 



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

 This IS generally acknowledged to contam the most contemporary, scientifically defensible npanan protection standards 

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

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

 Admmistrative Procedures Act. and not, therefore, enforceable agamst the agency m a court of law. See e.g. Lumber 

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

 provisions not bindmg because not promulgated by Secretary of Agriculhire under a specific statiitory provision and APA 

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

 legislative in namre to have the force and effect of law, and be promulgated under a "specific stamtory grant of 

 authonty" m conformance with Congressionally imposed procedural requu'ements). 



67-643 0-93-4 



