U.S. Can Support Enviros in Oregon Dispute

WASHINGTON (CN) - The Department of the Interior has not tried to evade federal court orders in a dispute over land-management plans for Oregon terrain that is home to the northern spotted owl, a federal judge in Washington D.C. has ruled.

In the waning days of the Bush administration, the Interior Department adopted revisions to land-use management plans for 2.5 million acres in western Oregon inhabited by the owl, a designated threatened species. Compared to previous versions, the Western Oregon Plan Revisions allowed greater timber harvests on the Bureau of Land Management property.

The department determined that it did not need to consult with the Fish and Wildlife Service about the potential impact of the plan on the northern spotted owl because the revisions "would have no impact on listed species or critical habitat."

As environmental groups challenged the action in court, President Barack Obama's newly instated secretary of the interior, Ken Salazar, said his predecessor's finding of "no impact" was a legal error, and he withdrew the revisions without a public notice or comment period.

A group of timber companies and logging unions, led by Douglas Timber Operators, in turn sued the secretary, saying the plan withdrawal violated the Federal Land Policy and Management Act.

A federal judge in Washington agreed and reinstated the revised plans, considering only whether Salazar abused his authority in withdrawing the plan without formal proceedings. The court did not look at whether it was erroneous for the previous administration to approve the revisions without making consultations under the Endangered Species Act.

A conservation group, the Pacific Rivers Council, then filed suit in Oregon over the reinstated plans, taking up the Interior Department's Endangered Species Act claims.

Salazar and the Bureau of Land Management told the court that reinstatement of the plans had been obligated by the Washington decision and that they still believed the revisions were adopted in legal error.

The logging interests cried foul in Washington, saying the government should withdraw its response to the Pacific Rivers Council (PRC) action. "Plaintiffs contend that 'Interior is trying to accomplish precisely the result that this court rejected ... simply by rephrasing the secretary's unlawful 'withdrawal' announcement ... as a 'do not contest' response to PRC's claim in Oregon," U.S. District Judge John Bates summarized (ellipses in original).

Bates disagreed with these claims, however, reminding the loggers that he had not considered the Endangered Species Act question in his previous order.

Taking the legal position that the original decisions were issued in error is not the same thing either as relying on the vacated withdrawal or acting to subvert the court's intention in its order, he added.

"Court filings do not constitute agency action in the same sense as decisions that the agency is charged by statute to make," the Dec. 23 decision states. "That the agency thinks that the ROD [record of decision to adopt the revised plans] is improper and has told the court as much in the Oregon case, citing the withdrawal as explanation, is not the same as making land management decisions on the basis of the withdrawal decision. And nothing in this court's prior decision precludes the Department from adopting that legal position."

Though the government must abide by the order to reinstate the revised plans, it need not fight the Pacific Rivers Council case under Bates' latest decision.

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