FORESTS:

Judge tosses Bush-era management regulations

A federal judge sided with environmentalists yesterday and threw out Bush-era Forest Service regulations that govern management plans for national forests.

Judge Claudia Wilken of the U.S. District Court for the Northern District of California ruled that the service failed to analyze the effects of removing requirements guaranteeing viable wildlife populations. The planning rule determines how 155 national forests and 20 national grasslands develop individual forest plans, governing activities from timber harvests to recreation and protecting endangered plants and animals.

Wilken's decision marks the third time a court has rejected revisions of the regulations over the past decade.

"We hope it's the last gasp of the Forest Service under the Bush administration and that we can now move forward with the Obama administration and try to come up with rules that will actually protect the forests," said Marc Fink, attorney for Center for Biological Diversity and one of the attorneys representing the plaintiffs in the case.

Conservation groups hope the Forest Service will reinstate the 1982 rule while coming up with new regulations, Fink said. Forest Service spokesman Joe Walsh said the decision is under review. "The review will help them decide what direction to go in," he added.

Wilken said the 2008 rule violated both the National Environmental Policy Act (NEPA) and the Endangered Species Act. The environmental impact statement prepared by the Forest Service for the 2008 rule, she wrote, "does not actually analyze the environmental effects of implementing the Rule."

Although the environmental impact statement "repetitively insists" that the rule will have no effect on the environment because it merely sets out the process for developing land resource management plans, Wilken noted that argument was rejected twice before by courts and that she rejects it, too.

For example, she wrote, the 2008 rule does not require that plans "insure" the viability of vertebrate species, as the 1982 rule did, or even provide a "high likelihood" of viability, as a 2000 revision did. Instead, the 2008 rule states a goal of providing a framework to contribute to sustaining ecological systems.

"Although the [environmental impact statement] discusses the differences between the various standards, it fails to acknowledge the effect of eliminating the viability requirement," Wilken wrote. "Because the [statement] does not evaluate the environmental impacts of the 2008 Rule, it does not comply with NEPA's requirements."

The Forest Service had cited the Supreme Court's recent Summers v. Earth Island Institute decision that advocacy groups cannot challenge federal regulations on public lands unless they can prove they are themselves directly threatened by the proposed rules. But Wilken said that decision does not bear on yesterday's case. The overarching nature of the planning rule makes it impossible to link the procedural arguments of this case to any particular site-specific project, she said.

"The present case involves a challenge, not to the substance of any particular regulation, but to the Forest Service's failure to follow proper procedures when promulgating the 2008 Rule," the judge wrote.

In 2007, a federal judge in San Francisco stopped the Forest Service from using a planning rule put in place in 2005, siding with 19 environmental groups and the state of California, which argued that the Bush administration removed environmental protections without providing for proper public comment or considering the effect on endangered species.

Several environmental groups 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. That rule was suspended by the Bush administration in early 2001 and never implemented, but the court case continued in part. The 9th U.S. Circuit Court of Appeals ruled in favor of the environmental groups and remanded the case for further proceedings.

The groups in yesterday's case are Citizens for Better Forestry, Environmental Protection Information Center, Center for Biological Diversity, Wild West Institute, Gifford Pinchot Task Force, Idaho Sporting Congress, Friends of the Clearwater, Utah Environmental Congress, Cascadia Wildlands Project, Klamath Siskiyou Wildlands Center, Wild South, the Lands Council, Forest Service Employees for Environmental Ethics, Oregon Wild and WildEarth Guardians. A separate lawsuit by Defenders of Wildlife, Sierra Club, the Wilderness Society, and Vermont Natural Resources Council challenging the same rule was consolidated with the case.

An official with industry group American Forest Resource Council said they are reviewing the decision and could not yet comment.

Click here to read the judge's decision.

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