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Species viability on national forests preserved!

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felicep | Jul 15, 2009 03:10 PM

Yet another attempt by the Bush Administration to change federal regulations in order to accelerate logging on the national forests has apparently gone down in flames. On the last day of June a federal judge in Oakland overturned regulations the Bush Administration crafted in order to gut a provision of the National Forest Management Act. That provision requires that the Forest Service protect fish and wildlife on the national forests. The Bush Administration sought to maintain habitat but not to monitor whether that habitat was effectively protecting fish and wildlife.

Regulations implementing the “viability provision” of the 1976 Act have been used by forest activists to stop numerous timber sales and other commercial developments in national forests around the country.  It is unlikely that the Obama Administration will appeal the district court ruling.

The lawsuit was led by Citizens for Better Forestry – a small forest protection organization based in the village of Peanut in Trinity County, California. Co-plaintiffs include the 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. The environmental groups were represented by attorney Pete Frost of the Western Environmental Law Center.

The decision marks the third time a federal court has rejected revisions of the species viability regulations over the past decade. While the Bush Administration gets points for trying hard, the judge admonished government lawyers for repeating the same arguments that were twice rejected previously by the courts. 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.

The list of plaintiffs in this case tells a story in itself. All plaintiffs are grassroots forest activist organizations. In the past national and grassroots environmental groups coordinated forest strategy and often collaborated on national-impact lawsuits of this type. But that collaboration waned during the Clinton Administration when most large national environmental groups went along with Clinton Administration rule changes which grassroots forest protection groups believed weakened protection for fish and wildlife on the national forests. These days national and grassroots forest protection organizations rarely collaborate – a development this blogger believes has weakened the public forest protection movement.

Fate of the Viability Regs Still Unclear
Jul 16, 2009 10:29 AM
It is still up in air what will happen to the viability regs. The judge gave the Forest Circus the discretion to decide whether to implement the 1982 regs (protective) or the 2000 regs (shoddy). Hopefully they will do the right thing and reinstate the 82 regs until they get their act together. Otherwise, more litigation is sure to follow.
National forest fish & wildlife viability regulations
Felice Pace
Felice Pace
Jul 17, 2009 12:03 PM
I've just received an update from Attorney Pete Frost at WELC. He says that USDA (the agency in which the Forest Service resides) told WELC yesterday that it has reverted to the 2000 rule and its subsequent transition provisions. The plaintiffs, however, favor the 1982 regulations which they believe faithfully fulfill the commitment to fish and wildlife Congress made in passing the national Forest Management Act. Plaintiffs are considering their options - including possibly returning to court to restore the wildlife protections provided by the 1982 rule.

Meanwhile some of the national environmental organizations appear to favor a new rulemaking process; something the lead plaintiff - Citizens for Better Forestry - thinks would be a mistake.
NFMA and viability
Sharon Friedman
Sharon Friedman
Jul 18, 2009 06:14 PM
I searched for the word "viability" in NFMA and did not find it. Did I search wrong? Or is it a creature of the 1982 regulations?

Felice's writeup above says "On the last day of June a federal judge in Oakland overturned regulations the Bush Administration crafted in order to gut a provision of the National Forest Management Act." This is confusing.
legislation and regulations clarification
Felice Pace
Felice Pace
Jul 20, 2009 05:10 PM
I acknowledge that this topic is confusing. Some of that goes with the territory. For example, the National Forest Management Act (NFMA) amends and incorporates by reference two other prior laws and (as is the case with many federal laws) requires that the implementing agency (Forest Service) develop and promulgate regulations which implement the law.

The "viability regulations" are intended to implement the following section of NFMA:

   "(g) As soon as practicable, but not later than two years after enactment of this subsection, the Secretary shall in accordance with the procedures set forth in section 553 of title 5, United States Code, promulgate regulations, under the principles of the Multiple-Use, Sustained-Yield Act of 1960, that set out the process for the development and revision of the land management plans, and the guidelines and standards prescribed by this subsection. The regulations shall include, but not be limited to-
…….."(3) specifying guidelines for land management plans developed to achieve the goals of the Program which-
"(A) insure consideration of the economic and environmental aspects of various systems of renewable resource management, including the related systems of silviculture and protection of forest resources, to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish;
"(B) provide for diversity of plant and animal communities based on the suitability and capability of the specific land area in order to meet overall multiple-use objectives, and within the multiple-use objectives of a land management plan adopted pursuant to this section, provide, where appropriate, to the degree practicable, for steps to be taken to preserve the diversity of tree species similar to that existing in the region controlled by the plan;
"(C) insure research on and (based on continuous monitoring and assessment in the field evaluation of the effects of each management system to the end that it will not produce substantial and permanent impairment of the productivity of the land;"

So the Forest Service is required to promulgate regulations which
     1. Protect wildlife,
     2. Assure that wildlife are given consideration equal to other resources, and
     3. "Provide for diversity of plant and animal communities" based on the capacity/suitability of the land to provide habitat for plants and animals.

It is #3 above which is most closely related to the "viability regulations."

The litigation concerned whether or not the regulations promulgated by the Bush Administration faithfully accomplished what Congress intended in terms of species viability and providing for wildlife and fish; the court agreed with environmental plaintiffs that the Bush regulations do not do what Congress intended. The government can now choose whether or not to revert to the 2000 regulations or the 1983 regulations or the Obama Administration can decide to develop new regulations.


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