Survey & Manage Settlement Rescinded-our forests

On April 25, the Ninth Circuit
Court of Appeals invalidated a settlement agreement between the Forest
Service, BLM, and the Northwest’s major environmental groups involving the survey and manage
program of the Northwest Forest Plan which required surveys and restrictive harvest buffers forprotection of
hundreds of fungi, lichens, bryophytes, mollusks, amphibians, arthropods, and the red tree
vole. The settlement agreement was entered into following two years of closed door negotiations after
the District Court in Washington held that the agencies’ EIS to eliminate survey and manage violated the
National Environmental Policy Act (NEPA). The settlement agreement required greater survey effort
for some species and highly restrictive
canopy closure and tree retention limits before relief from certain
survey and manage restrictions is allowed. DR Johnson Lumber Company, the intervenor in the case,
argued that the settlement agreement was invalid because it changes the terms of the Northwest Forest
Plan without following the required public participation and forest plan amendment procedures of the
National Forest Management Act, the Federal Land Policy and Management Act, and
NEPA. The Ninth
Circuit agreed.
The ruling does not do away with survey and manage and its application will continue to constrain
timber harvest. However, the ruling means the environmentalists cannot reach a sweetheart deal with
the Obama Administration through a settlement to change the terms of the Northwest Forest Plan. If the
agencies cannot change the Northwest Forest Plan through a settlement agreement, then the ruling will
support a claim that the agencies by themselves cannot change the terms of the plan by, for example,
simply abandoning regeneration harvest and essentially adopting a thinning only approach to forest
management without amending the plan.
The court left open the question of whether survey and manage violates the O & C Act and cannot be
applied to the O & C lands because the court concluded the issue was not properly raised in the
challenge to the consent decree.
/Scott Horngren

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