SEATTLE (CN) - Federal land managers and environmentalists never culled public input for a deal over species survey requirements, a timber company told the 9th Circuit.
Environmentalists had sued federal agencies in 2008, challenging the elimination of the "survey and manage" standard under the Northwest Forest Plan. A holdover from the Clinton administration, the Northwest Forest Plan resolved litigation over the spotted owl while regulating management of federal lands in Washington, Oregon and California.
Agencies removed the survey and manage requirement in 2004, but a federal judge set that decision aside in 2005 after finding violations of the National Environmental Policy Act (NEPA). Further analysis led the agencies to again remove the survey requirement in 2007.
It ignores the compromise of the Northwest Forest Plan to conclude that the survey-and-manage rules impede timber production, U.S. District Judge John Coughenour said.
"It would be impossible to achieve conservation goals without some decrease in logging, just as it would be impossible to achieve output goals without some negative consequences for conservation," he wrote. "The fact that there is less harvest than predicted is not a reason to throw out an entire category of conservation guidelines and standards."
Coughenour refused to issue an injunction and ordered the parties to settle.
They eventually struck a deal that lets federal land managers continue to survey and manage for rare species, as well as some additional species, while certain lands are newly exempted.
D.R. Johnson Lumber Co. intervened to challenge the 2011 settlement, saying that amendments to the Northwest Forest Plan must include a public comment period.
Arguing before the three-judge panel on Tuesday, the lumber company called the survey-and-manage requirements a "costly albatross."
D.R. Johnson's attorney, Scott Horngren, said the company has been unable to complete a timber sale because of the settlement. If the changes were required to go through public comments, the sale could be "carved out" of the survey requirements, he said.
"We're not saying you can't settle the case," Horngren said.
Judge Alex Kozinski asked Horngren if there was anywhere in the plan that says managers can't "do more."
Horngren replied that the addition of new species for management changes the Northwest Forest Plan as much as it would to remove species. Any amendment to the plan must legally include public input, he said.
On behalf of the Forest Service, the Bureau of Land Management, and the Fish and Wildlife Service, Justice Department attorney John Smeltzer said that the settlement agreement presents "no conflict" with the existing Northwest Forest Plan.
Kozinski said the court is not authorized to write regulations and asked Smeltzer what makes the settlement different from a new regulation.
Smeltzer said that federal courts have the discretion to remedy NEPA violations.
"'Survey and manage' was struck down, but the court is putting it back," Smeltzer said. "It doesn't have to reinstate it in its entirety."
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