Tarlock, A. Dan

English

Duke Law Scholarship Repository

BOOK REVIEWTE FOREST SERVICE: A STUDY IN PUBLIC LAND MANAGEMENT. ByGlen 0. Robinson. Johns Hopkins University Press, 1975. Pp. xv,337. $16.95.Reviewed by A. Dan Tarlock*The Forest Service is charged with managing our nation's publictimber resources. To accomplish this, the agency must balance compet-ing demands from industry for increased timber sales, from the recrea-tion industry for more intense development of outdoor recreation areas,and from environmentalists for more wilderness and wildlife protectionareas. This balancing is done through the statutory authority to classifypublic lands under its jurisdiction for various uses and to adopt manage-ment plans.' In this manner the Forest Service determines the alloca-tion of a substantial part of our forest resources. This broad power haslong been acknowledged, but until recently it has not been subjected tocareful legal analysis, let alone judicial scrutiny. Heir to a long andproud tradition stemming from the progressive conservation era, theService is the classic example of the expert management agency. It hasdeveloped a strong concept of non-political resource management in thepublic interest. This professionalism combined with the vagueness ofthe agency's organic legislation has helped to shield the Service fromlegal scrutiny.Today the Forest Service no longer enjoys a broad immunity fromcriticism. In recent years the Service has become embroiled in a seriesof bitter environmental controversies over the use of the lands it man-ages. Decisions to allow ski resorts in scenic areas,' to harvest timber* A.B. 1962, LL.B. 1965, Stanford University. Profe:,sor of Law, Indiana Uni-versity, Bloomington.THE FOLLOWING CITATION WILL BE USED IN THIS REVIEW:G. RoBiNsoN, THm Foansr SERVICE: A STUDY IN PuBnuc LAND MANAGEMENT (1975)[hereinafter cited as FoREST SERVICE].1. Forest Management Act of 1897, 30 Stat. 34-36, as amended 16 U.S.C. §§ 551et seq. (1970).2. Sierra Club v. Morton, 405 U.S. 727 (1972).DUKE LAW JOURNALby clear-cutting, and to study lands for possible inclusion in the wilder-ness system' have all been litigated. Furthermore, the very processes bywhich the Service arrives at its decisions have been seriously ques-tioned. 5Forest Service decision-making depends for its legitimacy on a mixof rational counting procedures which attempt to reduce disparate val-ues to a common denominator so that the costs and benefits of alterna-tive choices can be measured and compared, as well as political proce-dures which attempt to gauge the intensity of value preferences for agiven allocation. Such allocations are generally ad hoe and affectdiffuse rather than discrete classes of winners and losers. For thesereasons much Forest Service decision-making falls outside both of thetraditional administrative law categories-adjudication and rulemaking.The Service plans and manages more than it adjudicates and makesrules. Modem administrative law scholarship is just beginning to rec-ognize the limits of the two traditional categories of administrative func-tions in analyzing the administrative process but no coherent newmodel has emerged.The role the legal system can and should play in Forest Servicedecision-making is not at all clear. The past few years have produced anumber of judicial decisions which attempt to reform the process ofallocating resources by mandating a systematic balancing of the costsand benefits of alternative courses of action.6  If this "new" judicial3. Izaak Walton League of America, Inc. v. Butz, 522 F.2d 945 (4th Cir. 1975).4. Parker v. United States, 448 F.2d 793 (10th Cir. 1971), cert. denied, 405 U.S.989 (1972).5. Environmentalists, for example, advance two criticisms of Forest Service deci-sion-making which, upon further examination, appear to be inconsistent. The first pro-ceeds from Dicey's dictum that the exercise of discretion is inconsistent with the ruleof law. A. DxcEy, L.w oF rsm CoNsvrrUEroN 184 (8th ed. 1927). Clearer congres-sional guidelines, the establishment of more single-use areas, and stricter standards ofjudicial review of agency implementation of its mandate are therefore urged. Note,Managing Federal Lands: Replacing the Multiple Use System, 82 YALE LJ. 787(1973). The second urges the Service to think comprehensively and imaginatively ofways to promote environmental quality, in short to exercise its broad discretion in favorof environmental protection. Reich, The Law of the Planned Society, 75 YALE L.J.1227 (1966). Both these approaches provide little insight into understanding the diffi-cult resource choices that an agency such as the Forest Service must make, for they bothproceed on the unwarranted assumption that environmental considerations should con-sistently be accorded a preference over other national goals. The case for preferentialrecognition of environmental values is that they have been historically ignored in agencydecision-making and thus should be given equal weight alongside the traditional develop-mental approach promoted by the Forest Service. Yet, it should readily be concededthat one cannot, completely substitute environmental values for developmental ones, forthe human costs would be too great.6. See Leventhal, Environmental Decisionmaking and the Role of the Courts, 122U. PA. L. Rnv. 509 (1974).[Vol. 1976:477BOOK REVIEWintervention has not produced a fundamental reordering of priorities, itat least has caused some environmental decisions to be made that wouldnot otherwise have been made, has produced a more explicit identifica-tion of environmental costs, and has created more responsive proceduresfor decision-making. Still, those who would reform Forest Service deci-sion-making need to know a great deal more about the processes ofresource allocation and the available criteria for judging the merits of anallocation than is currently available.Professor Glen 0. Robinson is a lawyer who understands the needfor systematic study of the process of allocation before attempting tosuggest what role law can play in this process. His book, The ForestService: A Study in Public Land Management is a properly modest stepin this direction. The book is not primarily a legal study; rather it is asynthesis of existing scholarship, supplemented by interviews recountingwhat economists, historians and public administrators have had to sayabout the Forest Service. Apparently, they have a great deal to say, andthis book accurately captures it. As a result of Professor Robinson'ssynthesis, some persistent myths are negated and some fresh insightsinto policy questions are presented.For example, the book's careful analysis of the history of the ForestService puts to rest a myth that is becoming widely accepted amongenvironmentalists. Environmentalists argue that the agency has beencaptured by the timber industry, and hence its policies are designed toserve only this interest. It is true, as Professor Robinson suggests, thatthe Forest Service's long attention to timber production may have led toan excessive emphasis on timber production compared to other compet-ing resources, 7 yet there was no need for anyone to capture the agencyfor this to occur. Gifford Pinchot, the founder and guiding spirit of theService, was a practical scientist influenced by German theories ofscientific management; he argued that federal timber management wasnecessary because the federal government could grow this commercialcrop for harvest more efficiently than private industry. Thus, theService is doing exactly what it was set up to do. Mission agencies areincreasingly being tagged with the sin of tunnel vision but too oftenreformers suggest that opening up the agency to more influences insteadof undertaking a basic restructuring of the agency's mission will bringneeded balance. The Forest Service is a welcome contribution to theliterature of administrative reform because it correctly focuses on theneed to assess a particular agency's mission before tinkering withagency procedure.7. FOREST SERVICE 101.Vol. 1976:4771DUKE LAW JOURNALProfessor Robinson is one of a number of younger law professorswho became attracted to the use of economics as a means of analyzingthe merits of government allocation and distribution programs not sub-ject to the discipline of the market. In employing this approach the au-thor turns to a series of case studies which illustrate the application ofthe Service's operating principle of multiple use. Specific use conflictsinvolving timber production, outdoor recreation, wilderness preserva-tion, range use, wildlife protection, and watershed management are use-fully explored. The book's major theme is that forest resources shouldbe allocated by the market or market criteria whenever possible. Al-though there is no constitutional requirement that government be effi-cient, there is a growing consensus that it ought to be unless there isgood reason for subsidizing an activity. Income redistribution is theusual reason for subsidization, and Professor Robinson echoes the con-clusions of many welfare economists that natural resource use policiesare not especially good vehicles for income redistribution. Welfare eco-nomics is thus a powerful and legitimate tool with which to critique gov-ernment allocation programs. As The Forest Service predictably illus-trates, an economic analysis works best when the government programhas roughly the same objectives as an activity carried out by private in-dustry, and the author's chapters on timber harvesting, outdoor recrea-tion, and range management make several positive, if familiar, sugges-tions for policy changes.Allocation of forest resources has always been controversial. Theissue with respect to timber production and range use is the extent towhich private interests should be able to claim rights in public re-sources; the outdoor recreation controversy involves the question whetheravailable space should be allocated administratively or by the market.Applying an economic analysis to these problems, Professor Robinsonsuggests that there is no need for the Forest Service to accelerate timberproduction substantially; our national forests cannot supply all ournation's needs, and excess current production might result in pricingtimber too low. Timber is a scarce resource and a rise in price is "anefficient means of rationing scarce resources and signaling new produc-tion, through new technology or redirection of resources employed inother enterprises."" This is an especially sound suggestion for, al-though not stressed by the author, considerable doubt exists about thecapacity of forest soils to support the continued harvesting and regen-eration of timber over the long run. Western cattle interests have longargued that range use ought to be allocated by permits which resemble8. Id. at 102.[V/ol. 1976:477BOOK REVIEWterm leases and are transferable." The Service has maintained that Tay-lor Act grazing permits are only licenses and has restricted them to localcattle raisers.10 Professor Robinson comes down in favor of firmer en-titlements, transferability, and allocation by auction."' In addition, hehas quite useful things to say about the appropriate fee structure andovergrazing.The debate over outdoor recreation has centered on the govern-ment's unwillingness to allocate use of recreation areas by price ration-ing, for example, user fees. Professor Robinson sees no reason not to dothis, arguing: "[Plutting equity aside, the only thing one can say [foradministrative allocation] is that it rewards the early riser and those whoare fortuitiously close to the site; neither person seems morally moredeserving than the person who expresses the intensity of his interest bythe money he is willing to pay for the privilege."'12 Economists mightquibble with this analysis for rationing by queueing is arguably quiteefficient since it allows people to vote by spending time as well asmoney.' 3 This quibble aside, price rationing seems the best solution tothe persistent overcrowding of fragile federal recreation areas, and theForest Service's analysis of this problem is a model critique of bureau-cratic rigidity.Two brief chapters on wildlife and watershed management are lesssuccessful in applying economic analysis to policy problems since wild-life and water have not traditionally been thought of as "for sale" by thefederal government. Water is a scarce resource in the West. Under thereserved rights doctrine the federal government can perfect water rights,in some instances superiox to state created rights, to support the purpos-es for which public lands were withdrawn from entry.14 However, thefederal government probably cannot capture this water and sell it fornon-federal purposes. Therefore, as the chapter points out,15 there islittle incentive for the Forest Service to increase the yields from federallymanaged watersheds. Generally it is desirable to limit federal waterrights because they interfere with state-based expectations. But, since9. See id. at 209-13; UNnTED STATES PULIC LAND LAw REVIEW COMMISSION, ONETmD OF THE NATION'S Am ch. 6 (1970).10. See FOREST SERVICE 210, 219; Note, Managing Federal Lands, supra note 5,at 790.11. FOREST SERvCE 213-14, 218-21.12. Id. at 144.13. See Nichols, Smolensky & Tideman, Discrimination by Waiting Time in MeritGoods, 61 AM. ECON. REv. 312 (June 1971).14. NATIONAL WATER COMMISSION, WATER POLICIES FOR THE FUTuRE: FINAL RE-PORT TO Tim PRESIDENT AND To THE CONGRESS OF THE UNTED STATES 459-71 (1973)(contains a thorough summary of the reserved rights doctrine and the problems it pre-sents for coordinating state and federal water administration).15. FORST SERvicE ch. IX.Vol. 1976:4771DUKE LAW JOURNALincreased yields will produce water that would not otherwise have beenavailable to those claiming under state law, there is no reason, as Pro-fessor Robinson argues, not to let the federal government capture thisand sell it.The federal government has not thought of selling wildlife fordifferent reasons. Until the Multiple-Use and Sustained Yield Act of196016 wildlife management had no explicit recognition in Forest Serv-ice enabling legislation. Historically the federal government has man-aged wildlife habitat, and the states have administered wildlife conserva-tion laws on the theory that they "owned" the wildlife. ProfessorRobinson lucidly outlines the debate over the limits of federal and statejurisdiction, sketches the case for increased federal control, and reiter-ates the plea for more reliance on user charges to recapture the benefitsof federal expenditures on wildlife management."An extensive chapter is devoted to the problem of wildernesspreservation. It has long been argued that wilderness preservation is anethical issue and thus cannot be debated in economic terms. ProfessorRobinson persuasively demonstrates that any policy of wilderness pres-ervation must at some point take into account the opportunity cost of thedecision to preserve. Unfortunately, however, the chapter contributeslittle beyond this to answering the question of how wilderness preserva-tion decisions should be made. As have many others who have studiedthe difficulty in reconciling spiritual and utilitarian values he can onlyconclude:What this suggests is that it is probably futile to seek consensus on thebroad issues of wilderness preservation. Attention to the general,abstract issues can only exacerbate the conflict among partisans onboth sides of the preservation controversy, and make compromise moredifficult. Instead, the general issues must be broken down into theirsmallest components and each of these examined as individual prob-lems, with, it is hoped, a modest degree of rationality and a minimumamount of moralizing.' sThis is an honest, typically lawyerlike solution to a difficult problem. Itis also an incomplete and unsatisfactory answer. As philosophers suchas John Passmore 9 and legal scholars such as Laurence Tribehave shown, 20 it is possible to apply philosophical, legal and economic16. 16 U.S.C. §§ 528-31 (1970).17. Unfortunately such fees are prohibited under the 1972 Amendments to the Landand Water Conservation Fund Act. Pub. L. No. 92-347, 86 Stat. 459 (July 11, 1972).18. FonsnT SERvicE 189.19. . PASsMORnE, MAN'S RESPONSmarITy FOR NATURE (1974).20. Tribe, Ways Not to Think About Plastic Trees: New Foundations for Environ-mental Law, 83 YALE LJ. 1315 (1974).[V/ol. 1976:477BOOK REVIEWconcepts to the wilderness preservation issue, with rational results, aswell as to suggest an approach to the design of new processes to makethese admittedly difficult decisions.The lawyer reading this book to discover how the discretion of anagency which has a broad grant of authority to manage public resourcescan be controlled will, at first, be disappointed. The book is not, as theauthor admits in the Preface,21 a "Nader study" with neat, if simple,solutions to the perceived problems. Nonetheless, The Forest Service isa successful examination of the substance of Forest Service policy, andcan serve as a model for other legal studies of agency policymaking.Through his analysis of many problems not traditionally consideredwithin the dominion of lawyers, for example, decisions concerningallocation of wilderness areas, Professor Robinson illuminates some ofthe hard choices which the law must confront when it attempts tocontrol the allocation of resources through primarily administrativerather than market processes.21. Fo1RM SERvICE xv.Vol. 1976:4771

The Forest Service: A Study in Public Land Management. By Glen O. Robinson

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The Forest Service: A Study in Public Land Management. By Glen O. Robinson

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