Judicial deference and its potential effect on agency science and natural resource management

Graduation date: 2015Access restricted to the OSU Community, at author's request, from Dec. 12, 2014 - June 12, 2015The USDA Forest Services' actions have come under greater scrutiny by a public that has become increasingly concerned with the legality of their actions. Often, challenges involve the quality of science used in the decision-making. Congress has mandated that the agency use the "best available science" in its decision making in various relevant environmental statutes and rules, like NEPA, ESA, NFMA, and its 2012 Forest Planning Rule. A question remains of how the judiciary will evaluate the use of science by the agency to analyze the impacts of its actions. The judiciary has developed various precedence to determine the appropriate level of deference, authorized by the APA§706, granted to the agency when determining the legality of these actions. An agency may be granted deference, or a yield judgment by the court, when analyzing its compliance with a rule or statute it administers. There are various types of deference that can be applied during the review of an agency action based on the type of action and the root of the claim, these include Chevron, Skidmore, Auer, and no deference. The judiciary has applied these precedence's that granted this deference to the Forest Service's actions inconsistently. Deference was high in the 1980s, but fell through the 1990s, and finally reaching an ultimate low in 2007. It is hypothesized that Lands Council v. McNair, 2008 (Lands Council III), a case focused on a project aimed at restoring the natural composition of the forest through various silvicultural techniques, has established Stare Decisis in that it returned a decision that established the judicial policy of agency review toward a standard of high deference. Through a case analysis of the methods of USDA Forest Service science and the reasoning of its use by the agency of 45 cases in the United States Court of Appeals for the Ninth Circuit, we have examined the importance of Lands Council III. This is seen in the realignment of the appellate and district court after the Lands Council III decision and the acceptance of the 2012 Forest Planning Rule, requiring a higher level of "best available science" towards a high level of deference to the USDA Forest Service. This is in regard to the science used to satisfy the requirements of the relevant environmental statutes and rules. The previous inconsistencies in review over time of the USDA Forest Service in the appellate court, and from the district court to the appellate court, have resulted in a lapse in the nexus of the law and science to allow for effective natural resource management and policy. The future policy implications after the result of Lands Council III and the 2012 Forest Planning Rule and the various levels of deference granted to the agency by the court are many, and can have varying affects on the way we produce science and manage our natural resources