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FORESTS: Judge forbids Forest Service from using 2005 planning regs

Dan Berman, E&ENews PM senior reporter -- Friday, March 30, 2007

A federal judge in San Francisco stopped the Forest Service today from using its highly touted 2005 planning rule that governs how management plans are developed for 193 million acres of national forests.

Judge Phyllis Hamilton of the U.S. District Court for the Northern District of California sided with 19 environmental groups and the state of California, who argued the Bush administration removed environmental protections without providing for proper public comment or considering the effect on endangered species.

Hamilton's ruling is the second time in seven months a San Francisco federal judge has rewritten the Bush administration's forest policy. Last September, Magistrate Judge Elizabeth Laporte reinstated the Clinton-era roadless rule, placing about 50 million acres of national forest off-limits to roadbuilding, logging and other development.

"It's a tremendous victory for wildlife and natural resources," said Mike Leahy, attorney for Defenders of Wildlife. "The court basically told the Bush administration you can't get rid of substantive wildlife and resource protections without environmental impacts, and you can't make major changes in forest policy without getting public comment."

At issue is the rule that governs how the 155 national forests and 20 national grasslands develop their individual forest plans, the document that governs activities from timber harvests to recreation and protecting endangered plants and animals.

The Forest Service and timber industry say the 2005 rule properly focuses attention at the project level, but critics say plans developed under the 2005 rule would make it more difficult to challenge individual projects, because the new plans have no enforceable standards such as specific limits on logging or watershed protections.

Hamilton's decision means the Forest Service must stop developing new forest plans under the 2005 rule, said Western Environmental Law Center attorney Pete Frost. But it would not stop actual on-the-ground activities. "In terms of day-to-day management, the Forest Service should just continue under its existing forest plans," he said.

At least 39 forests and grasslands have begun to revise or draft forest plans under the 2005 rule. Only one new plan -- for the Cimarron and Comanche National Grasslands in Kansas and Colorado -- has been completed. According to a press release touting the finished document for Cimarron and Comanche earlier this month, the 2005 planning rule "established a dynamic process to account for changing conditions, and emphasized science and public involvement."

Chris West, vice president of the American Forest Resource Council, which intervened on behalf of the Forest Service, decried today's ruling. "Once again, a San Francisco judge is requiring a federal agency to waste the taxpayers' money conducting meaningless procedural analyses instead of having foresters and biologists studying the actual impacts of land management projects," West said.

"The Forest Service should probably change its slogan from 'Caring for the land and serving people' to 'Caring for the process and serving the bureaucracy,'" West added. "But then again, a federal judge would probably order a time consuming analysis of that too."

In a statement, Forest Service spokeswoman Allison Stewart said, "The federal government is carefully reviewing today's decision from the federal district court in the Northern District of California." The Forest Service added that Hamilton's decision contradicts recent rulings from the 10th U.S. Circuit Court of Appeals and the Middle District of Alabama.

Rule implementation violated procedure

As in Laporte's roadless decision last year, Hamilton declined to say whether the Forest Service's planning rule is lawful. Instead, Hamilton ruled the agency violated the Administrative Procedure Act, National Environmental Policy Act and Endangered Species Act when it drafted, revised and published the rule. The Forest Service is enjoined from using the 2005 rule until it has "fully complied" with those laws.

For the Endangered Species Act, the plaintiffs charged the Forest Service failed to consult with the Fish and Wildlife Service and National Marine Fisheries Service in particular -- on what the rule would mean for wildlife in national forests.

The 2005 planning rule removed a requirement to manage forests to ensure "viable populations" of at-risk species in national forests in forest plans and required managers to develop plans more broadly and put social and economic considerations on par with ecological sustainability.

For the National Environmental Policy Act, Hamilton ruled the Forest Service improperly applied a categorical exclusion to the planning rule and therefore failed to adequately consider the environmental effects of the rule change.

The Forest Service argued the 2005 rule was "strategic and aspirational in nature and generally will not include decisions with on-the-ground effects that can be meaningfully evaluated." Therefore, it did not issue an environmental assessment or environmental impact statement for the planning rule.

Hamilton also sided with the environmentalists' Administrative Procedure Act argument, that the Forest Service violated the law by adding Environmental Management System (EMS) protocols in the final version that never appeared in the 2002 draft. Since the program was inserted after the comment period on the draft rule ended, the public never had a chance to review and comment, the plaintiffs argued.

Ironically, many of the plaintiff groups who challenged the 2005 rule also challenged an attempt in 2000 by the Clinton administration to revise the planning rule, even though the Clinton rule was endorsed by many environmentalists and opposed by the timber industry. The Clinton rule placed ecological sustainability above social and economic concerns while also strengthening wildlife protections and opportunities for public input, changes timber groups adamantly opposed.

But that rule was suspended by the Bush administration in early 2001 and never implemented. Despite the emphasis on ecological sustainability, the Clinton rule would have replaced language mandating clear and enforceable standards for wildlife and watersheds in national forests, making it more difficult for environmentalists to challenge the Forest Service in court, its critics said.

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