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9th Circuit Axes NW Forest Plan Settlement

(CN) - The 9th Circuit on Thursday uprooted a settlement between conservationists and government agencies over a plan to manage logging of old-growth forests in the Pacific Northwest.

A three-judge panel in Seattle called the settlement "improper" because it allows the agencies "effectively to promulgate a permanent and substantial amendment" to an agency rule without following the correct procedures.

Logging company D.R. Johnson Lumber had asked the court to overturn approval of a deal struck to end litigation over the government's plan for managing 24.5 million acres of federal land between San Francisco and the Canadian border. The forest plan was intended as "a truce between conservationists and logging concerns," according to the ruling.

The plan requires the BLM, the U.S. Forest Service and the U.S. Fish and Wildlife Service to, among other things, assess the impact of logging on about 400 rare but ecologically crucial species, including fungi, lichen, mollusks and the northern spotted owl.

This required the agencies to survey forests for those species and restrict logging in certain habitat.

Finding the process costly and cumbersome, the agencies tried to eliminate this so-called "survey-and-manage" requirement twice - first in 2004 and again in 2007.

Conservation Northwest and a slew of other conservation groups sued in 2008, claiming the agencies' decision to nix the survey-and-manage rule violated federal environmental law.

U.S. District Judge John Coughenour acknowledged that it violated the National Environmental Policy Act and ordered the parties to settle.

They eventually struck a deal whereby federal land managers would keep surveying for and managing rare species while certain lands were newly exempt.

The logging company intervened to challenge the district court's approval of this agreement. It argued that the settlement modified agency rules without following statutorily mandated procedures, such as offering a public comment period.

The 9th Circuit agreed, saying it is "indisputable" that the agencies would have had to go through formal procedures had they tried to implement the settlement's changes on their own.

"The decree includes changes to species classifications and establishes new exemptions from pre-disturbance surveys; it does 'nothing short of amend' survey and manage," Judge A. Wallace Tashima wrote, citing a 2006 9th Circuit decision.

The logging company also argued that some of the timberland in the Northwest Forest Plan is governed by the Oregon and California Revested Lands Act of 1937 instead of the consent decree.

Judge Tashima said D.R. Johnson waived the issue by failing to properly raise it.

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