portland independent media center  
images audio video
promoted newswire article reporting oregon & cascadia

forest defense | save the biscuit

Major Legal Victory for Cascadia's Forests!

Big news just in on the forest front, so good to hear in the face of everything of late!

A major lawsuit regarding Spotted Owl habitat was victorius today on appeal in the federal 9th circuit court (just below the Supreme Court). The U.S. Fish and Wildlife Service's (USFWS) narrow interpretation of the Endangered Species Act's (ESA) protections for habitat critical to threatened and endangered fish and wildlife was overturned!

The judge found that that logging Spotted Owl "critical habitat" in Oregon and Washington constituted "destruction or adverse modification" of habitat, an activity prohibited by the ESA. The Forest Service and USFWS had said that only the "Late Successional Reserves" (LSRs) set up by Clinton Administration were necessary for protection for the Owl. The judge rejected this, stating that ALL recognized owl habitat must be protected.
Northern Spotted Owl
Northern Spotted Owl
From The Pacific Environmental Advocacy Center's press release ( http://www.lclark.edu/org/peac/)

In a ruling with broad implications for improving habitat conservation of endangered and threatened species throughout the West, the Ninth Circuit Court of Appeals today overturned U.S. Fish and Wildlife Service's longstanding narrow interpretation of the Endangered Species Act's protections for critical habitat.

The case, Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, raised questions about whether FWS was adequately protecting the designated "critical habitat" of northern spotted owls. Appellants challenged FWS' finding that timber harvest in thousands of acres of the owls' critical habitat in Oregon and Washington did not constitute "destruction or adverse modification" of that habitat. The court threw out this conclusion, ruling that the agency had ignored the importance of critical habitat for recovery of the owls.

"[T]he ESA was written not merely to forestall the extinction of species..., but to allow a species to recover to the point where it may be delisted," Judge Gould wrote in the unanimous opinion for the three judge panel. "If FWS follows its own regulation, then it is obligated to be indifferent to, if not to ignore, the recovery goal of critical habitat," the court's opinion continued. "This cannot be right," it concluded.

------------------------
Analysis of potential implications:

- All timber sales in spotted owl critical habitat have strong legal ground for cancellation or "back-to-the-drawing board" revisions.
- This applies to many (even most?) timber sales under the Northwest
Forest Plan. Most old growth timber sales contain designated spotted owl habitat.
- Batwings (see  link to portland.indymedia.org) which is up for logging at any time can probably be challenged under the lawsuit.
- Super evil logging projects like the Biscuit, Timbered Rock, B&B Salvage, and Five Buttes sales falls under these designations in large part.
- I'm not a lawyer, but I feel comfortable saying this could be considered the biggest legal victory for Cascadia's westside forests since the initial spotted owl lawsuit! (1992?)
- Beware! Timber companies with contracts to log may attempt emergency, last-ditch logging operations. Politicians could throw out congressional riders, etc. as the timber companies and the forest service tries to get away with whatever they can quickly before the results of the lawsuit unfold!

You can read the Judge's decision online:
 http://www.lclark.edu/org/peac/objects/GP_OPINION.pdf

----------------------------------------------
exerpts:

CRITICAL HABITAT

"The agency's controlling regulation on critical habitat
thus offends the ESA because the ESA was enacted not
merely to forestall the extinction of species (i.e., promote a
species survival), but to allow a species to recover to the point
where it may be delisted. See 16 U.S.C. 1532(3) (defining
conservation as all methods that can be employed to "bring
any endangered species or threatened species to the point at
which the measures provided pursuant to this [Act] are no
longer necessary"); Sierra Club, 245 F.3d at 438."

"The critical habitat analysis is therefore irredeemably
flawed."

"LSRs cannot stand in for critical habitat within the
meaning of the ESA. ... Compliance with the NFP, as important as it is,
does not in itself generate the same protection for habitat as
Section 7 compliance."

"If the FWS wants to change the boundaries of the critical
habitat, it might do so if permitted by law after notice and
comment procedures."

"We conclude that the jeopardy analysis conducted by
the FWS in the six BiOps at issue in this case was permissible
and within the agency's discretion. We affirm the district
court's grant of summary judgment to the agency in this
respect. However, we conclude that the critical habitat analysis
in the six BiOps was fatally flawed because it relied on an
unlawful regulatory definition of "adverse modification" and
it impermissibly substituted LSRs for critical habitat. Neither
of these errors was harmless. We reverse the judgment of the
district court and we remand, directing the district court to
grant summary judgment to the Petitioners on the critical habitat
inquiry."

Yep! 06.Aug.2004 19:10

Rebecca

Fuckin A!!!! It's about time!

Rejoice but don't relax - The battle's far from won! 06.Aug.2004 21:22

Me

They won't take this lying down! The logging interests - and all other industries regulated by similarly motivated public interest legislation - will go to the mat fighting this one. If this sort of "dangerous", "activist" interpretation is allowed to stand, the effects will be felt across the board. Powerful interests have labored too long and hard to make themselves "bulletproof" by slowly but surely subverting by legislative means ALL the Acts that were intended to protect the public interest. Virtually every regulatory agency in America has over the last twenty five years or so been thoroughly undermined with revisions to their internal regulations and changes to the U.S. Code that render impossible the original mandate of safeguarding and protecting natural resources, public welfare, etc. If the 9th Circuit's ruling becomes the model in American jurisprudence, not a single "regulated" industry will be "safe". The Court's ruling is a tremendous symbolic victory to be sure, but bear in mind that most of the courts in the U.S. regard the Ninth Judicial Circuit as a maverick entity, and hold its rulings in something approaching contempt. This case will surely go to the Supremes, not to mention becoming a heated political issue (remember the "Hungry? Eat an environmentalist!" rhetoric?). Best dig in and prepare for a long haul!

Ah! So it seems that 'Cascadia' may indeed be rising after all... 07.Aug.2004 05:38

King Amdo.

...and not just my penis!

Blessed be,

King Amdo, Lord ov da Wildwood.

Re: Me's comment 09.Aug.2004 12:57

skeptical

I don't know....The Supreme Court hears like 80 cases per year. They are getting old and lazy. I would be really surprised if this case were one of the 80 that the Supreme Court put on their list to hear. More likely, I think, is that the Fish and Wildlife Service will do a few quick changes to their "critical habitat" analysis and call it good. Then Environmental groups will have to bring them BACK to court to challenge their surely inadequate changes.

I definitely agree that the battle has just begun.

Does anyone have any ideas on how the Fish and Wildlife Service will comply with this ruling and what impact that will have on timber sales in the NW?

Also, the posting says that this ruling will affect the Biscuit....though I'm not sure that that is true..... Since the Biscuit is a salvage sale, isn't it exempt from environmental laws? (Salvage logging = lawless logging).

Thanks for any answers to my questions!

Destructive Forest Corporations respond: Anti-Forest "Rider" up for vote 17.Nov.2004 14:10

repost

Super Bad Anti-Forest "Rider" up for vote as soon as Friday!

From the open publishing newswire: A truly, truly horrific legislative "rider" has been attached to the US Senate's appropriation bill (the money they use to fund the government bureaucracy). The bill would immediately invalidate all lawsuits that have thus far stopped Southern Oregon's Biscuit timber sale (the largest logging project in the history of US public lands, see  http://o2collective.org/ for more info), including the lawsuits on the 12.5 SQUARE MILES of pristine, untouched roadless areas. In essence it would make the complete logging of all of the Biscuit timber sale the law and 100% unstopable by legal means.

Furthermore it would reverse the major environmental victory of this year, the court ruling that found that the Forest Service had failed to protect Spotted Owls by frequently allowing logging in owl's "critical habitat" (see  http://portland.indymedia.org/en/2004/08/294184.shtml) [this article, above]

Lastly, it would legislate the so called "no surprises" rule, which essentially offers a warranty to property owners who take part in the conservation plans, guaranteeing that once they commit to a plan, no new scientific data can affect their ability to build (see  http://forests.org/articles/reader.asp...). [that is absolutely foolish.]

If you're the Senator calling type please do so ASAP!

more information here:
 http://portland.indymedia.org/en/2004/11/303675.shtml