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We all saw the indirect effect of the rulings from the 9th Circuit Court of Appeals decision, in a suit brought against the USFS by various environmental groups. Due to the vagueness of the both court's initial rulings as well as the plaintiffs original suit, plus the later ruling by the court that this was retroactive over most of the summer time, the USFS moved to suspend pretty much all permits. They did not see clear guidelines as to what was, and was not, allowed to bypass the full public review and appeals process. It is pretty obvious that while clarification was badly needed, this move was also a partly political move to force quick clarification by the courts, by making this a political as well as a legal issue.
The USFS then asked the court for a stay pending appeal (to the Supreme Court, I think) of the original ruling, which then forced the environmentalists to come to the court to move against this request for stay, in order to retain some of their earlier victory. It also forced them to deal with the issue of clarification; they formally requested this of the judge.
The judge issued clarification on what is and what is not subject to the full public review and appeals process; he also decided to not yet rule on the USFS request for a stay pending appeal. The judge gave until Nov 10th for the USFS to further file on their request for a stay, and until Nov 23 for the plaintiffs to further reply. So, stay tuned for round 4.
The clarification issued by the judge fell back to 1993/2000 rules, with the following items explicitly subject to the full public review and appeals process. This is text directly from the latest court order:
-Start of text from court order-
The Court intended that the regulations replaced by the now-severed 2003 regulations be reinstated. The relevant rules previously in force are the 1993 rule, and the 2000 supplemental rules. Under the 1993 rule, categorically excluded timber sales are subject to notice, comment, and appeal. 58 Fed. Reg. 58,904 (Nov. 4, 1993). The other categorically excluded activities subject to notice, comment, and appeal under these rules are:
(1) Projects involving the use of prescribed burning;
(2) Projects involving the creation or maintenance of wildlife openings;
(3) The designation of travel routes for off-highway vehicle (OHV) use which is not
conducted through the travel management planning process as part of the forest planning
process;
(4) The construction of new OHV routes and facilities intended to support OHV use;
(5) The upgrading, widening, or modification of OHV routes to increase either the levels or
types of use by OHVs (but not projects performed for the maintenance of existing routes);
(6) The issuance or reissuance of special use permits for OHV activities conducted on areas, trails, or roads that are not designated for such activities;
(7) Projects in which the cutting of trees for thinning or wildlife purposes occurs over an
area greater than 5 contiguous acres;
(8) Gathering geophysical data using shorthole, vibroseis, or surface charge;
(9) Trenching to obtain evidence of mineralization;
(10) Clearing vegetation for sight paths from areas used for mineral, energy, or geophysical investigation or support facilities for such activities.
65 Fed. Reg. 61,302 (Oct. 17, 2000). Thus, the Forest Service need not suspend actions not contemplated in the old rules, such as ?[a]pproval, modification, or continuation of minor, shortterm (one year or less) special uses of National Forest System lands, such as for state-licensed outfitters or guides, or approving gathering forest products for personal use. "
-End of text from court order-
(Opinion: Item 6) on the list seems to me to be the one area where opponents of rallies could try to stop our permits. I think this really has no basis because I beleive that item was really intended to prevent backdoor permitting of OHV's.)
Finally, after all this legal research, I now reward myself with a bit of an editorial pause: I have been visiting various web and blog sites while all this has been transpring. The environmental law sites and related sites are pretty amazing to read, and it's discouraging to know that folks can be so one-sided. They consistently claim another victory in their fight in this latest order; the only thing they gained IMO was to get their carcasses back out of the negative public glare after they got politically out-maneuvered. A political process for fair resolution of forest use is NOT what they want; they want to keep this purely inside the legal process so that they can spend their multi-million dollar legal funds fighting where the rest of us cannot afford to go. It's tyrranny by a minority by perversion of the good intents behind the rule of law. (OK, sorry for the editorial rant and rave: I don't like ANY group having undue or unearned control in our society.)
Regards, and hope this was useful,
Mark B.
The USFS then asked the court for a stay pending appeal (to the Supreme Court, I think) of the original ruling, which then forced the environmentalists to come to the court to move against this request for stay, in order to retain some of their earlier victory. It also forced them to deal with the issue of clarification; they formally requested this of the judge.
The judge issued clarification on what is and what is not subject to the full public review and appeals process; he also decided to not yet rule on the USFS request for a stay pending appeal. The judge gave until Nov 10th for the USFS to further file on their request for a stay, and until Nov 23 for the plaintiffs to further reply. So, stay tuned for round 4.
The clarification issued by the judge fell back to 1993/2000 rules, with the following items explicitly subject to the full public review and appeals process. This is text directly from the latest court order:
-Start of text from court order-
The Court intended that the regulations replaced by the now-severed 2003 regulations be reinstated. The relevant rules previously in force are the 1993 rule, and the 2000 supplemental rules. Under the 1993 rule, categorically excluded timber sales are subject to notice, comment, and appeal. 58 Fed. Reg. 58,904 (Nov. 4, 1993). The other categorically excluded activities subject to notice, comment, and appeal under these rules are:
(1) Projects involving the use of prescribed burning;
(2) Projects involving the creation or maintenance of wildlife openings;
(3) The designation of travel routes for off-highway vehicle (OHV) use which is not
conducted through the travel management planning process as part of the forest planning
process;
(4) The construction of new OHV routes and facilities intended to support OHV use;
(5) The upgrading, widening, or modification of OHV routes to increase either the levels or
types of use by OHVs (but not projects performed for the maintenance of existing routes);
(6) The issuance or reissuance of special use permits for OHV activities conducted on areas, trails, or roads that are not designated for such activities;
(7) Projects in which the cutting of trees for thinning or wildlife purposes occurs over an
area greater than 5 contiguous acres;
(8) Gathering geophysical data using shorthole, vibroseis, or surface charge;
(9) Trenching to obtain evidence of mineralization;
(10) Clearing vegetation for sight paths from areas used for mineral, energy, or geophysical investigation or support facilities for such activities.
65 Fed. Reg. 61,302 (Oct. 17, 2000). Thus, the Forest Service need not suspend actions not contemplated in the old rules, such as ?[a]pproval, modification, or continuation of minor, shortterm (one year or less) special uses of National Forest System lands, such as for state-licensed outfitters or guides, or approving gathering forest products for personal use. "
-End of text from court order-
(Opinion: Item 6) on the list seems to me to be the one area where opponents of rallies could try to stop our permits. I think this really has no basis because I beleive that item was really intended to prevent backdoor permitting of OHV's.)
Finally, after all this legal research, I now reward myself with a bit of an editorial pause: I have been visiting various web and blog sites while all this has been transpring. The environmental law sites and related sites are pretty amazing to read, and it's discouraging to know that folks can be so one-sided. They consistently claim another victory in their fight in this latest order; the only thing they gained IMO was to get their carcasses back out of the negative public glare after they got politically out-maneuvered. A political process for fair resolution of forest use is NOT what they want; they want to keep this purely inside the legal process so that they can spend their multi-million dollar legal funds fighting where the rest of us cannot afford to go. It's tyrranny by a minority by perversion of the good intents behind the rule of law. (OK, sorry for the editorial rant and rave: I don't like ANY group having undue or unearned control in our society.)
Regards, and hope this was useful,
Mark B.