The 1993 plan to protect old-growth forests and bring a truce to the timber wars in the Pacific Northwest and northern California has hit a new snag. The 9th U.S. Circuit Court of Appeals sided with a logging company to hold it illegal for a federal agency to sidestep rulemaking procedures in order to resolve litigation that permanently amends its regulations.
Because the consent decree in this case allowed the agencies effectively to promulgate permanent amendments to an endangered species management plan without following required procedures, “it was improper,” the opinion states. The case must now go back to the district court in Seattle to reconsider.
The Northwest Forest Plan was intended to resolve lawsuits and political controversy in the1990s over the health of old-growth forests and resolve an environmental battle between loggers and environmentalists. It allowed for long-term protection of the forest by using sustainable timber production, protection of endangered plants and animals by balancing commercial and conservation interests in logging.
It covered 24.5 million acres of federal land between San Francisco and the Canadian border.
Judge Wallace Tashima wrote that “the district court abuses its discretion when it enters a consent decree that permanently and substantially amends an agency rule that would have otherwise been subject to statutory rulemaking procedures.”
The plan called for agencies to survey and manage lands that include commercial logging with roughly 400 little-known, but ecologically crucial species. Agencies were to conduct surveys of species prior to logging, or even disturbing the ground in preparation for logging. By 2001 agencies sought to amend the requirements because of cost and complexity. Conservationists objected and by 2007, agencies opted to eliminate the survey and manage requirement for a second time, bringing on the current lawsuit.
The environmentalists alleged violations of environmental laws. After lengthy negotiations, the agencies and conservationists settled with the consent decree that outlined new management procedures. Logging firm D.R. Johnson intervened on the side of the government and opposed the consent decree arguing it allowed the government to sidestep compliance with public-participation procedures.
Among the options in public proceedings would be for the government to take no action but that position was not heard or considered in the consent decree process, according to the logging firm.
The circuit court agreed and invalidated the consent decree, sending the case back to the trial judge.
Joining Tashima were Chief Judge Alex Kozinski and Judge Milan Smith Jr.
Case: Conservation Northwest v. Sherman, No. 11-35729