Oregon Forest Plan Heads the Way of the Dinosaur

PORTLAND, Ore. (CN) - The Bureau of Land Management can dump a forestry-management plan conceived during the administration of President George W. Bush, a federal judge ruled.

Timber groups had intervened after U.S. Magistrate Judge Dennis Hubel found that the BLM failed to properly consult the U.S. Fish and Wildlife Service on how the Western Oregon Plan Revision for managing forests would affect n endangered and threatened species. Hubel urged the U.S. District Court for the District of Oregon to vacate and remand the rules to the BLM.

The original suit, filed under a provision of the Endangered Species Act, claimed that BLM had failed in its duty under Section 7 of the ESA to consult with the two agencies responsible for protecting endangered species, the National Marine Fisheries Services and U.S. Fish and Wildlife Service.

Though Hubel sided with the environmental groups, he held that, on the basis of the Supreme Court's decision in Bennet v. Spear, that the Administrative Procedures Act was the proper avenue for the case.

The environmental groups objected only to this finding, joined by the BLM and the intervening timber interests agreed. They said Hubel's finding ignored more immediate 9th Circuit precedent in Western Watersheds Project v. Kraayenbrink, which held that the citizen-suit provision of the Endangered Species Act provides for failure-to-consult claims.

Noting that all parties on both sides challenged Hubel on this point; U.S. District Anna Brown said that Bennet was not applicable because it "was based not on a failure to consult under Section 7 but on a challenge to the adequacy of the product of that consultation (a biological opinion) by the Fish and Wildlife Service."

She modified Hubel's report to specify that the cause of action fell under the ESA.

The timber interests also objected with positions that the BLM had not advanced, arguing, for example, that that the magistrate failed to defer to the agency's expertise.

Brown agreed with the magistrate's finding that the original "no effect" determination could "not survive even rational scrutiny" on the record presented which indicated that the plan would affect millions of acres of land and hundreds of special status species.

Given the vast potential impact of the rules, deference is not warranted because deference could condone a "clear error of judgment" on the part of the bureau, Brown said, citing 9th Circuit precendent.

The timber groups also sided with environmental groups in challenging the cause of law under which the magistrate's order was rendered.

The BLM had concluded without consultation that the Western Oregon Plan Revision would have "no effect" on endangered species like salmon.

They also said the entire administrative record had to be considered under the ESA.

Brown disagreed, noting that the timber groups failed to specify what information should have been included. Both the ESA and the APA require only that judges pay heed to the portions of the record cited by parties to the litigation, the decision states.

The timber interests also argued that Hubel erred in urging the District Court to vacate and remand the plan, because an injunction is the only remedy to a Section 7 violation under the citizen-suit provision of the ESA.

Brown backed Hubel's own conclusion that this objection ignored a section of the citizen-suit provision that preserved the right of courts to use remedies greater than an injunction. This is possible when an agency action was unlawful as here, Brown said, noting that the BLM has even admitted error.

The BLM itself pointed out that practical application of the timber group's argument would mean that federal courts could not remand agency actions for further administrative procedures, a common enforcement mechanism for citizen suits.

Brown said the practical effect was the same: reversion to the previous BLM forest-management plan.

Having dismissed the intervener's arguments, Brown followed granted the environmental groups' motion for summary judgment to vacate and remand the plan. She gave the litigants until April 6 to file a joint statement with Hubel identifying any further proceedings needed to conclude the case.

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