Federal Judge Rules DOI Cannot Withdraw Regulations Without Due Process
Secretary of the Interior Ken Salazar unilaterally, and without prior process, withdrew the Western Oregon Plan Revisions and the 2008 Northern Spotted Owl Recovery Plan in July [here, here].
In a related case, a Federal judge ruled last week that the Department of the Interior may not bypass statutory procedures for repealing an agency rule. Withdrawing a regulation must follow the Administrative Procedures Act (APA). The DOI cannot repeal a rule without public notice and comment:
Judge Won’t Allow Federal Agency to Withdraw Mining Rule
By Rita Cicero, FindLaw, Andrews Publications, Aug. 19, 2009 [here]
A federal judge has denied the Interior Department’s attempt to overturn a Bush administration rule allowing coal mine operators to dump waste and debris into streambeds.
Judge Henry Kennedy of the U.S. District Court for the District of Columbia rejected Interior Secretary Ken Salazar’s request to vacate the regulation, saying such a ruling would wrongly permit the agency to bypass statutory procedures for repealing an agency rule.
Those procedures include requirements that provide for public notice and comment periods before repealing a rule. …
In April, with a new administration in office, the Interior Department announced plans to overturn the rule. Salazar said in a statement that he had directed the Justice Department to ask the District Court to vacate the rule because it was legally defective.
Salazar said the Office of Surface Mining Reclamation and Enforcement erroneously failed to consult with the U.S. Fish and Wildlife Service to evaluate possible effects of the rule on threatened and endangered species.
The defendants sought dismissal, contending that a case or controversy no longer existed between the parties.
However, the National Mining Association argued that the federal government should not be allowed to bypass the Administrative Procedure Act to repeal an agency rule.
Judge Kennedy agreed.
He said granting the federal defendants’ motion would allow them to do what they cannot do under the APA: repeal a rule without public notice and comment. …
Judge Kennedy did not address the NPCA’s underlying challenge to the Bush administration rule.
National Parks Conservation Association v. Salazar et al., No. 09-00115, 2009 WL 2497393 (D.D.C. Aug. 12, 2009). Environmental Litigation Reporter Volume 30, Issue 03 08/19/2009
The same legal requirements apply to Salazar’s scuttling of the Western Oregon Plan Revisions and the 2008 Northern Spotted Owl Recovery Plan.
Those plans were created with full compliance to NEPA, APA, and other applicable federal laws. Years of public involvement, public hearings, and public comments were considered, as well as years of scientific investigation and analysis. The procedures followed in creating the rules were exhaustive, comprehensive, and rigorous in the extreme.
Ken Salazar cannot flush all that effort down the toilet with a slick stroke of a pen. He has to obey the law, too. He is not above the law, and he should know that. After all, he was Attorney General of Colorado and a U.S. Senator prior to his appointment as Obama’s Sec Interior.
We are a nation of laws. When our elected or appointed officials violate those laws, we are all diminished and threatened.
We hope that Attorney General John Kroger [here] will immediately file a suit to challenge Salazar’s cavalier and illegal dismissal of the Western Oregon Plan Revisions and the 2008 Northern Spotted Owl Recovery Plan. We hope that, but do not expect it.
Affected Oregon counties should file that suit on behalf of all Americans. Bring Ken Salazar to justice. Let’s put a stop to illegal activities by government officials, for the common public good.
by Doug fir
It’s funny that the same folks who are squealing about Salazar’s withdrawal of the WOPR, were full of praise when Prez Bush withdrew the Roadless rule (without process).
And these same noisemakers complain about the adverse impacts of fire, but are silent about the adverse impacts of logging.
But Doug, as has been posted and explained here repeatedly [here, for instance], Bush did not withdraw the Clinton Roadless Rule. It was enjoined by the Federal Courts after lawsuits by the states, specifically Wyoming. The 10th Circuit Court found that the Clinton Roadless Rule violated NEPA and disallowed it.
The Bush Justice Dept. defended the Roadless Rule and lost in court. The USFS then came up with the State Petitions procedure to remedy the defects in the Clinton Roadless Rule procedures. The Bush Admin had to obey the Court, and yet they sought a remedy to reinstitute the Roadless Rule in a NEPA-compliant way. And the Bush Admin USFS continued to follow the spirit of the Clinton Roadless Rule regardless.
All that did not stop the enviro lobby from blaming Bush, although he had nothing to do with it, defended Clinton’s Rule, and acted in accordance with it even after the courts rejected it. And rather than embracing the attempt to remedy the defects, the enviro lobby sued to enjoin the remedy.
The POLITICS dictated that a big slanderous slam be perped against Bush. As if he squelched an illegal rule, which he did not, a rule that furthered devastation of forests.
It seems to me that the enviro lobby is more interested in political theater than actually doing anything that might benefit the environment. I could cite a hundred cases where that is true. And that is not only a HUGE HYPOCRISY, it is exactly counter to the putative goals and image the enviro lobby puts forth. They want the public to think they care about forests, when in fact they want to destroy forests and are destroying forests, wildlife habitat, wildlife populations, watersheds, air quality, etc.
It is time to scrape away the political glosses and get to the meat of the question: how do we protect, maintain, and perpetuate America’s priceless heritage forests? I am ready to sit down with anyone and discuss how we might do that. But the enviro lobby will not come to the table, primarily because they don’t really give a hang about forests. They are all about the political theater, and completely disconnected from the reality of forests.
You tell me. When is the enviro lobby going to get real, be honest, stop the lawsuits, and work toward improved stewardship? When is their motive going to change to concern about forests instead of concern about politics?
by bear bait
It is my experience, over 40 years, that logging, from the very first line of planning to log through logging to the rehabbing of the logged land, all is done inside a template of forest practice law that is very public and very restrictive to the private and public lands to be logged, and to the land managers. “Cut and run” hasn’t been an issue for the last forty years or more.
The USFS collected money from each timber sale to rehab roads, to maintain them after the logger put them back to pre-logging conditions. The USFS collected money, called “deposits” to purchase and plant trees on the logged site after the site was prepared to be a thrifty bed in which to plant, and that site prep was another “deposit” for slash disposal. The end result, obtained 90% of the time, was an overplanted, tight, constrictive stand of co-dominant young trees that are in dire need of thinning and release. Those acres are a fire hazard today because they were planted that way, not because fire has been excluded from the forest.
Then the very same people who made all the demands on reforestation decided to use their power to stop all activity — including thinning those stands and removing fuel. We don’t have fires from USFS neglect or poor planning. We have intense fires because the professional litigators of environmental “protection” are dumber than rocks and have doomed the very resource they purport to cherish to conflagration. The baby went out the window with the bath water. And it is darn well time for that can to be tied to their litigating asses. They are the problem. No meaningful logging has been allowed for two decades, and the forested acres in public trust hold more acres of trees, more trees per acre, and more fuel than at anytime since Europeans arrived on the scene.
The environmental litigators are Pogo-esque: They have found the problem, and it is them. Their creation does not work. Their idea of Eden is faulty. Their plan for land management is not working. And at this point in time, there is no way forward. Our forests are doomed to fire, and if we don’t make a huge effort to contain those fires, the issue of forests will be moot in the not too distant future. We won’t have to travel to the moon to experience a moonscape. Our forests will be a moonscape. More wood has been lost, old growth trees, in the last two decades than was logged in those very same forests in their history as public forests. Billions and billions of board feet of timber burned, not salvaged, and lost. And guess what, there is no estimate, no public record, of that loss. The USFS does not keep records of value, resources lost. So my numbers are correct until the Federal land managers develop the numbers. There is now a net gain of timber and timberland and trees on public land. But it is all very young second growth less than 75 years old.
The heritage old growth continues to burn in the roadless and wilderness areas, unabated, because of specific public policy to not fight fires. And with those burns come wasted watersheds with storm even runoff silt laden far beyond that of a clear cut with logging debris to cushion the raindrops. Those burns have lost working topsoil, and shade, and don’t work like a forest. That is because they are NOT forests. They are FORMER forests. A clearcut is prepared and planted, and a growing new forest in a year. A USFS burn is just that a year later. A burn, no vegetation to speak of, and just a place to study to examine, to ponder about, as to its future. Gun-shy and litigation-shy, the USFS does nothing and does it well. Does that make you proud, Doug fir?
So, Doug fir, when you point your finger, it seems to point right back at ya!!! You have found the problem, and it is you!!!
WOW!!!…. I say it again….WOW!!!
Such vitriol. Such anger. Such……TRUTH!
Of all your writings, this one hits so close to home. Being a former Freddie, I can surely verify what bear bait says here is true. Now, I’m not justifying clearcutting, but that is certainly better than catastrophic fires. Oregon clearcuts grow EXTREMELY fast. I cored a leave tree in a Powers area clearcut, and it was 59 years old and a huge 32 inches in diameter!!
Bravo!!
by Doug fir
Mike said: “Bush did not withdraw the Clinton Roadless Rule.” Try googling “roadless rule timeline.” Within hours of taking the oath Bush withdrew the Roadless rule by fiat. No process whatsoever.
On January 20, 2001: George W. Bush was sworn in as the 43rd President. His new White House Chief of Staff, Andrew Card, sent a memo from the White House in late January telling all the Cabinet Secretaries to delay rules and regulations pushed into place by Clinton.
In accordance with President Bush’s Regulatory Review Plan, the roadless policy was delayed an additional 60 calendar days on February 5. This was the result of the so-called Card Memo from White House Chief of Staff Andrew Card.
Yes. Examine the record. Bush put a hold on all the last minute Clinton proclamations. But the hold was temporary. By May 4, 2001 Secretary of Agriculture Ann Veneman promised to allow the roadless rule to go into effect on May 12, 2001.
However, a dozen or so lawsuits had been filed by then. The courts took over. Bush’s Justice Dept. defended the Clinton rule in those lawsuits, just as I said.
Doug wants to make up a mythical vast conspiracy to clearcut the world. He is blowing smoke. The fact is the courts declared the Clinton Roadless Rule invalid and illegal, not Bush.
Obama, on the other hand, has withdrawn the the Western Oregon Plan Revisions and the 2008 Northern Spotted Owl Recovery Plan without court order to do so. Those plans were not made by Presidential proclamation or executive fiat, but were the product of lawful, rigorous, and exhaustive public process. The Owl Recovery Plan, for instance, has been 19 years in the making.
The conspiracy, if there is one, is to burn to the ground the Public Estate. The motivation is to destroy forests, to cripple rural economies, to drive humanity off the land, and to subvert America. The perpetrators are traitors.
About wishing for Oregon Attorney General Kroger to appeal a decision made by a Democratic Presidential appointee: The Old Hooktender told me that I could wish into one hand, and crap into the other, and I was to tell him which one filled up first. Kroger is first and foremost an East Coast elite environmental liberal political hack on a mission. That he chose Oregon in which to land after his US Attorney jobs was his gift to us. I haven’t found any place to return the gift. And I don’t even want any money back.