Land Letter on Planning Rule- TRCP Quotes

Another organization heard from.. TRCP
Here is the link.

Conservationists over the past year have warned the draft rule gives forest supervisors too much discretion to decide which species should be monitored for stronger protections.

Tom Franklin, director of policy and government relations for the Theodore Roosevelt Conservation Partnership, said resource monitoring is key if the Forest Service hopes to successfully implement adaptive management, which is designed to give managers the flexibility to modify projects as resource conditions change on the ground.

“They’re giving tremendous authority to line officers,” he said last June. “It appears the use of best available science is kind of optional in a sense. The line officer will determine when it is appropriate to use it.”

While forest planners are required to use best available science in decisionmaking, such information must only be “taken into account and documented,” rather than given a lead role in planning, the draft rule stated.

Now, why would “best available science” be given the “lead role” in plans?
Whose science, what discipline? Are these folks familiar at all with the field of science and technology studies or the difference between normative and empirical observations? Doesn’t it seem a bit odd not to use the “best scientific information” in determining the ways that the best scientific information should be used in decision-making?

Court tosses Bush-era rule on fire-management consultations

From E&E News:
I haven’t dug into this but sounds interesting. I just wonder about the first sentence “considering the matter for six years”. I also have to wonder about every rule being tied to its President. So the rule that will be done for objections based on the Approps bill will be an “Obama-era rule” ;?

Court tosses Bush-era rule on fire-management consultations

After considering the matter for six years, a federal court yesterday threw out a George W. Bush administration rule that streamlined the consultation required by the Endangered Species Act in the course of preparing fire management plans.

U.S. District Judge Gladys Kessler of the District of Columbia, who apologized in a footnote for taking so long, reversed her own 2006 ruling that had upheld the rule.

She took a second look at the request of environmental groups, including Defenders of Wildlife, which had challenged the 2003 rule in part because of the potential impact on the lynx, which is listed as a threatened species. The groups said Kessler had been too deferential to the Bush administration in upholding the rule.

In yesterday’s ruling, Kessler belatedly agreed with the challengers that the rule, which restricted consultation with U.S. Fish and Wildlife Service biologists, was “arbitrary and capricious” under the Administrative Procedure Act.

At issue was the Bush administration’s initial rationale for the streamlined rule, namely that it would reduce existing delays in enacting fire plans, thereby lessening the prospect of serious fires.

Kessler ruled that this purported justification is “not supported by the evidence in the record.”

More recently, the Fish and Wildlife Service has changed its position. Now it says the new rule merely has the possibility of speeding up the drafting of future fire plans, Kessler noted.

The government had claimed the case was now moot because it has changed its approach, but Kessler rejected that contention.

Eric Glitzenstein, a lawyer at Meyer Glitzenstein & Crystal who represented the environmental groups, said today that “the purported rationale for the rule never made any sense and needlessly placed listed species at risk.”

The Justice Department declined to comment.

Here’s a link to the decision.

SacBee on Pacific Rivers Appeal

You know, I don’t like to unnecessarily partisanize disputes, but I wonder if this additional information provided by the reporter adds value to the story. Compare this story to the E&E news story here. In that story, the administration that appointed only one of the four involved judges is mentioned.

Federal appellate court rejects Forest Service plan for Sierra

http://www.sacbee.com/2012/02/05/4240045/federal-appellate-court-rejects.html

By Denny Walsh
dwalsh@sacbee.com
Published: Sunday, Feb. 5, 2012 – 12:00 am | Page 1B

A federal appellate court has struck down as unlawful a 2004 management plan for Sierra Nevada national forests formulated by George W. Bush’s administration, saying it lacks a required analysis of how fish will fare under the plan.
A split three-judge panel of the 9th U.S. Circuit Court of Appeals held the Bush plan up next to a plan put in place in the dying days of Bill Clinton’s administration, pointing out that the earlier plan includes an insightful and viable look at how fish will be affected by its provisions.
The Bush administration took office in January 2001 and immediately began work on its revised plan.
Friday’s circuit opinion reverses U.S. District Judge Morrison C. England Jr. of Sacramento, who sided with the U.S. Forest Service in a 2008 ruling in which he rejected a challenge by the Pacific Rivers Council to the 2004 management plan’s lack of impact analysis regarding fish. The council, an advocacy group that champions aquatic life, contends the 2004 plan is inconsistent with the National Environmental Protection Act and the Administrative Procedure Act.
The panel agreed with the council on fish, but found that the 2004 analysis of effects on amphibians, which the council had also challenged, satisfied the requirements of the acts.
Environmental advocates have challenged a number of aspects of the 2004 plan revision in a series of lawsuits before England, who has consistently ruled in favor of the Forest Service.
The 11 national forests of the Sierra Nevada are home to at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded. “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra,” the study declared.
In 2001, the Forest Service issued a final environmental impact statement (EIS) recommending amendments to the Sierra Nevada Forest Plan that were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. The Clinton administration adopted a modified version of the statement, called the 2001 Framework.
Backed by a new EIS, the Bush administration’s 2004 Framework contains significant changes to the earlier management plan.
Forming the circuit panel majority are Judges Stephen Reinhardt, a liberal appointee of then-President Jimmy Carter, and William A. Fletcher, a liberal appointed by Clinton. Dissenting is Judge N. Randy Smith, a conservative appointed by Bush. England is also a conservative appointed by Bush.
Compared to its predecessor, the 2004 framework allows:
• The harvesting of substantially more timber and bigger trees on more acreage, some near streams and lakes.
• Substantially more construction of new, and reconstruction of existing, logging roads, some near streams.
• Fewer grazing restrictions, some near streams and lakes.
“The 2004 EIS contains no analysis of environmental consequences of these changes on individual fish species in the Sierra,” wrote Fletcher for the majority, contrasting that with more than 100 pages of such analysis in the 2001 EIS. The earlier EIS also included particular environmental risks for individual species of fish.
“There is no explanation in the 2004 EIS of why it was not reasonably possible to provide any analysis whatsoever of environmental consequence for individual species of fish, when an extensive analysis had been provided in the 2001 EIS,” Fletcher wrote. “The failure of the 2004 EIS to provide any such analysis is a failure to comply with the ‘hard look’ requirement of NEPA.”
By contrast, he wrote, “The 2004 EIS contains an extensive analysis of individual amphibians.”
In his dissent, Smith maintains that his colleagues are guilty of “two fundamental errors.”
First, he wrote, by ruling that the Forest Service must make an analysis “as soon as it was ‘reasonably possible’ to do so,” the majority “disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by (NEPA) … is not arbitrary and capricious if it is performed before” a commitment to a specific forest project, such as logging or road construction.
“The majority instead creates an unclear rule based on ‘reasonable possibility’ that imposes additional procedures not required by NEPA on the Forest Service.”
Such a rule leaves the agency uncertain as to its legal obligations, invites judicial meddling in the agency’s decision making and invites even more litigation than is already aimed at the agency, Smith declared.
Second, he wrote, “the majority ignores the tiering … created by NEPA.” An EIS created for a framework “focuses on high-level policy decisions (and) requires less detailed analysis than a site-specific EIS.”
“Therefore, agencies are allowed to defer in-depth analysis until site specific projects have been identified.”
Courts “owe a high level of deference to the methodological choices of the agency,” Smith wrote.

Defenders of Wildife Positive on Planning Rule- Nevada News Service

Conflicts in Nevada Forests?
Mike Clifford
Nevada News Service

http://www.lahontanvalleynews.com/article/20120206/NEWS/120209922/1087&ParentProfile=1045

LAS VEGAS – Endangered animals, outdoor recreation and mining could peacefully coexist in Nevada’s national forests under new management guidelines proposed by the Obama administration.

The first “forest planning rule” update in 30 years will require use of the best available science and hopefully resolve long-standing conflicts such as those between industry and environmentalists, according to Jeanne Higgins, supervisor of the Humboldt-Toiyabe National Forest, the largest in the lower 48 states.

“Specifically mining and grazing, recreational uses, how we provide habitat for wildlife and how we make sure that we’re providing clean water.”

The new planning rule eventually will apply to 155 national forests and grasslands in 42 states and Puerto Rico. The guidelines are expected to be finalized in about a month.

Peter Nelson, director of Defenders of Wildlife’s federal lands program, says the new planning rule will allow forest managers to focus on the recovery of damaged watersheds and endangered plant and animal species, while also providing for multiple uses which include recreation and logging. He’s optimistic the approach will work.

“The concept of restoration-based forestry is very appealing because it is able to provide multiple values at the same time, including the creation of wildlife habitat with traditional or innovative logging practices. So, that’s something that is doable.”

More than 300,000 public comments were received since the draft rule was released last year. Nelson says it’s a reflection of how Americans view the national forests.

“The national forest system, at almost 200 million acres, is really one of America’s most prized assets. And because it offers so much value to so many people on so many levels, that’s why people are interested in getting involved and fighting for these places. It’s a healthy thing.”

The Forest Service says the new guidelines will give individual forest managers more flexibility to respond to changing conditions, and should speed up the process of developing new forest-management plans.