ELR Citation: ELR 20145
No(s). 08-1927 (N.D. Cal. Jun 30, 2009)

A district court held that the USDA's 2008 National Forest System land management planning rule violates NEPA and the ESA. Although the USDA prepared an EIS prior to promulgating the 2008 rule, the EIS does not actually analyze the environmental effects of implementing the rule. Instead, the EIS repetitively insists that the rule will have no effect on the environment because it merely sets out the process for developing and revising land resource management plans and is removed from any foreseeable action that might affect the environment. The court has already rejected this reasoning in prior actions challenging earlier versions of the rule. In addition, it is undisputed that the USDA did not submit its biological assessment to the FWS or NMFS for their concurrence. Although the USDA engaged in correspondence with the wildlife agencies before it completed its assessment, the agencies did not issue a written concurrence with the USDA's finding that the 2008 rule would have no effect on endangered species. This is not sufficient to satisfy the ESA's requirements. The court therefore vacated the 2008 rule, enjoined the USDA from further implementing it, and remanded it to the USDA for further proceedings. In the meantime, the USDA must reinstate its 1982 or 2000 regulations.