August 19, 2005. In a case WildLaw brought on behalf
of the Utah Environmental Congress, the 10th Circuit Court of Appeals in Denver
struck down another Utah National Forest project on the management indicator
species (MIS) issue. Key to this case is that the 10th Circuit blew off the 2000
"transitional" rule and the 2004 "interpretive" rule the Forest Service had
manufactured to justify not protecting wildlife when logging. The Court then
held that since the project was decided under the 1982 National Forest
Management Act (NFMA) regulations, the requirements of the 1982 regulations apply.
This ruling is important for National Forests all
over the nation, as the agency has been using its "interpretive" rule as an
excuse everywhere not to comply with wildlife monitoring requirements. Also,
every logging project in the nation is still being decided under the 1982 NFMA
regulations, and this case helps us make sure the agency does not try to wiggle
out of the requirements of those rules until such time as new forest management
plans are adopted under the new 2005 NFMA rules, none of which will happen for a
year or two.
The Court held:
"In a Rule 28(j) letter filed one week before oral
argument, the Forest Service informed us of the Department’s publication of an
interpretative rule in September 2004. 69 Fed. Reg. 58,055 (Sept. 29, 2004); see
also Fed. R. App. P. 28(j). The interpretative rule explained that the 2000
regulations rendered the 1982 rule inoperative for project-specific decisions
made after November 9, 2000. The interpretative rule clarified that, during the
transition period between November 2000 and promulgation of a final rule, the
Forest Service should use the “best available science” under § 219.35(a) for
project decisions. 69 Fed. Reg. at 58,056. New rules replaced the 2000 planning
regulations in January 2005. See 70 Fed. Reg. 1023 (Jan. 5, 2005).
"We conclude, however, that the transition
provisions of the 2000 regulations do not apply to the Project’s authorization,
and we review Forest Service obligations under the 1982 rule instead."
The opinion of the Court is available
here.
Congratulations to Steve Novak of our North
Carolina office who did the vast bulk of brief writing and presented the oral
arguments to the 10th Circuit.
|
