Federal Judge Strikes Down 2005 NFMA Planning Rule Dave

On Friday, Judge Phyllis J. Hamilton, United States District Court for the Northern District of California, surprised some in the Forest Service, enjoining the 2005 National Forest Management Act [NFMA] Rule. Here is the 60-page Order [PDF].

Others like me were not surprised, but rather had long felt that the both the Forest Service and the Department of Agriculture had mis-interpreted key court decisions to grant themselves broader powers to exclude matters, particularly "programmatic" matters, from National Environmental Policy Act [NEPA] and Endangered Species Act [ESA] compliance procedures. This Court has now set about to clear up this mis-conception.

In addition to (or in conjunciton with) specific NEPA and ESA compliance measures, the Court found that the Department had violated the Administrative Procedures Act [APA] in failing to "provide notice sufficient to fairly apprise interested persons of the subjects and issues before the agency."

In particular the Court found that both the "categorical exclusion" from developing an Environmental Impact Statement for forest plans and the related-via-the-2005-Rule need to develop an Environmental Management System [EMS] were well beyond the bounds established by the principle, established in case law that "a final rule must be a logical outgrowth of [a] proposed rule."

In its APA violation, the Court focused specifically on language used by the Department that the 2005 Rule "embodies a paradigm shift in land management planning." The Court in "Analysis" says,

The relevant law is clear the an agency cannot promulgate without notice and comment a final rule the constitutes a "paradigm shift" form the proposed rule for which there was notice and comment.

There is much to talk about in the 60 page order, talk that will keep the Forest Service abuzz for some time. Still, I found nothing to be surprised over. I've been talking about this prospect for quite some time with colleages. See, e.g.:

• Time To Kill Forest Plan EIS Categorical Exclusion? (2/2/2007)
• A Simpler Way (11/3/2006)
• Forest Service '2005 Planning Rule' Now in Court (11/2/2006)
• Jeremiah was a Bullfrog Forest Planner (9/15/2006)
• EMS to the NEPA Rescue (7/18/2006)
• The Curious Case of Forest Planning and the EMS (4/21/2005)