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Bush admin seeks reversal of USFS planning rule injunction |
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The Bush administration is asking a federal judge in San Francisco to
repeal her nationwide injunction against its forest planning rule, or
limit the injunction to Northern California.
The administration is arguing that Judge Phyllis Hamilton of the U.S.
District Court for the Northern District of California misread the
Forest Service's actions in drafting the 2005 planning rule in regards
to the Endangered Species Act and use of categorical exclusions under
the National Environmental Policy Act.
"The holdings are based on clear errors of fact and law," the
Justice Department says in a brief filed with Hamilton. "These errors
form the underpinnings of the analysis, without which defendants
believe the court's conclusions would be different."
In March, Hamilton enjoined the Forest Service rule that
governs how 155 national forests and 20 national grasslands develop
their individual forest plans, documents that govern activities from
timber harvests to recreation and protecting endangered plants and
animals.
The state of California and 19 environmental groups argued the
administration removed environmental protections without providing for
proper public comment or considering the effect on endangered species
(E&ENews PM, March 30).
Hamilton should also limit her ruling to the Northern District
of California, DOJ argues, "based on the doctrine of non-acquiescence
and the United States' unique interest in obtaining judicial
consideration of the important issues raised in this case in different
districts and circuits."
Defenders of Wildlife attorney Mike Leahy said DOJ has a
difficult case. "They frame it as 'please clarify your scope because
people might see it as being applied nationwide,' when presumably she
intended it to be applied nationwide," Leahy said. Previous nationwide
injunctions on Forest Service policies, including various versions of
the Roadless Rule and on the use of categorical exclusions for timber
cuts have been upheld.
A hearing is tentatively scheduled for May 23.
Moving ahead?
While attempting to reverse or limit Hamilton's ruling, the
Forest Service plans to take additional public comment on the 2005
planning rule, conduct new environmental analysis and address ESA
concerns raised by Hamilton, according to a memo from Deputy Chief Joel
Holtrop.
No timeline has been set to address Hamilton's objections to the planning rule, an agency spokesman said.
Due to Hamilton's order, forest managers may not issue proposed
plans or final plans under the 2005 rule, but forests such as Alaska's
Tongass National Forest that were using the Reagan-era regulations may
proceed.
"We do want you to maintain the collaborative relationships
you have built and there are many forest and grasslands planning
activities and analyses that are in accordance with the National Forest
Management Act and independent of the planning rule in effect," Holtrop
wrote.
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.
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. In Colorado, the Forest Service on Monday suspended a
public comment period on the Grand Mesa, Uncompahgre and Gunnision
National Forests plan due to the uncertainty over the 2005 regulation.
In her March ruling, Hamilton declined to say whether the
Forest Service's planning rule is lawful. Instead, Hamilton ruled the
agency violated the Administrative Procedure Act, NEPA and ESA when it
drafted, revised and published the rule.
DOJ argues the Forest Service properly documented the effect
of the planning rule on endangered species, issuing a "no effect"
determination and that Hamilton based her NEPA analysis on a
"fundamental misunderstanding."
For ESA, 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.
On NEPA, 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.
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Last Updated ( Wednesday, 31 October 2007 )
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