The Salvage Timber Sales Law: A Serious Threat to Public Lands Management

Tara L. Mueller

Ms. Mueller is a staff attorney at the Natural Heritage Institute—a non-profit, public interest, natural resources law and consulting firm in San Francisco. Her practice focuses on endangered species, timber, water, wetlands, environmental quality, and land use law. She is the author of the Guide to Federal and California Endangered Species Laws, published by the Planning and Conservation League Foundation in Sacramento in 1994 and supplemented in 1995. The author thanks Ms. Kristen Boyles, Attorney, Sierra Club Legal Defense Fund, for her review of and comments on this Dialogue.

[26 ELR 10065]

Despite the recent furor over the environmental damage threatened by the Republican-dominated 104th Congress, the so-called salvage logging bill—a rider on a budget-rescissions bill¹—so far is one of the few changes to environmental protection programs actually signed into law. One should not assume, however, that the logging rider's ability to survive a Presidential veto means that it is an innocuous compromise. To the contrary, if this law (coined the "logging without laws" bill by many environmentalists) is any indication of things to come, it should alarm all but the most hardcore antienvironmental advocates. As National Audubon Society Vice President Brock Evans has put it: "The rule of law is gone in all the Nation's public forests."² In addition to the substantial environmental damage being wrought, the law will cost U.S. taxpayers an estimated $ 500 million to 1 billion, including millions for new road construction.³

Just a few months old, the new law already has forced the federal government to release salvage timber sales contracts affecting hundreds of acres of public lands nationwide. The bill may seriously undermine implementation of President Clinton's hard-won "Option 9" Pacific Northwest Forest Plan,⁴ recently upheld by a federal district court.⁵ Moreover, congressional proponents of the logging bill are keeping the pressure on the federal government to continue to release timber sales at a rapid pace. Members of Congress have formed a Congressional Task Force on Salvage Timber and Forest Health that is closely monitoring federal agencies' compliance with Pub. L. No. 104-19. The Task Force already has held one hearing in Washington, D.C. and several field hearings.

What follows is a summary and analysis of some of the bill's key provisions.

The "Salvage" Logging Law: What's Really Going on Here?

Pub. L. No. 104-19 applies during the so-called emergency period—from July 27, 1995 to September 30, 1997⁶—and requires the Secretaries of Agriculture and the Interior (Secretaries) to "prepare, advertise, offer and award" salvage timber sales contracts for lands under the jurisdiction of the U.S. Forest Service and the Bureau of Land Management (BLM), with certain limited exceptions.⁷ "Salvage timber sale" is defined very broadly in the bill as:

a timber sale for which an important reason for entry includes the removal of disease- or insect-infested trees, dead, damaged, or down trees, or trees imminently susceptible to fire or insect attack. Such term also includes the removal of associated trees or trees lacking the characteristics of a healthy and viable ecosystem for the purpose of ecosystem improvement or rehabilitation, except that any such sale must include an identifiable salvage component of trees described in the first sentence.⁸

[26 ELR 10066]

Although the supposed rationale for the salvage timber sales law is the improvement of forest health through removal of dead, dying, diseased, and other damaged trees,⁹ the broad definition of "salvage timber sale" allows timber operators to remove healthy trees, including old growth, for at least three reasons. First, logging of "salvage" timber need only be an "important" reason for entry, but not the only or even the primary reason. Second, literally every tree in a forest can theoretically qualify as "imminently susceptible to fire or insect attack." Third, the term "associated" trees is not defined and can readily be construed to mean live, healthy trees surrounding dead or damaged trees. So long as a sale includes some "identifiable" salvage component (which again need not necessarily be a primary component of the sale), these "associated" green trees can be removed.

The significance of this broad and vague definition of "salvage timber sale" and the severity of the statute's environmental impact become apparent upon examining the other provisions of the law. The statute requires the Secretaries to award salvage timber sales contracts notwithstanding any other provision of law, or any judicial decision, injunction, or restraining order issued prior to the statute's enactment.¹⁰ Thus, the law's provisions appear to take precedence over the President's Northwest Forest Plan, and require salvage logging contracts to be awarded even if they conflict with the plan's logging restrictions and habitat preservation requirements.¹¹ The Clinton Administration is now faced with the choice of either implementing the Northwest Forest Plan, and risking violation of the new logging law, or implementing the logging law and forgoing the benefits of the plan.

Further, the preparation, advertisement, offer, award, and operation of any salvage timber sale or Option 9 timber sale are deemed to satisfy the requirements of all applicable federal environmental laws,¹² including the Endangered Species Act (ESA),¹³ the Clean Water Act,¹⁴ the National Environmental Policy Act (NEPA),¹⁵ the National Forest Management Act,¹⁶ and the Federal Land Policy and Management Act.¹⁷ In lieu of compliance with these laws, sales contracts are subject to a truncated and ill-defined form of environmental review. The Secretaries must prepare a combined environmental assessment and biological assessment for each timber sale.¹⁸ The depth of analysis in these documents is left entirely to the Secretaries' discretion.¹⁹ The law does not specify whether the Secretaries or other federal agencies retain their authority and/or duties to impose conditions of approval on the timber sales to protect environmental values. This ambiguity and the statute's vague environmental review requirements, together with the "deemed compliance" provision,²⁰ raise a number of questions about how the logging law relates to other environmental laws.

For example, the logging law leaves open the question of how the ESA's § 7 consultation process applies to a salvage timber sale, if at all.²¹ On the one hand, because the logging law states that mere preparation of a biological assessment is deemed compliance with the ESA, ESA requirements will have little or no substantive effect on a timber sale. This is because the preparation of a biological assessment by a federal agency in and of itself has no action-forcing legal effect. Like an environmental assessment under NEPA, it is simply an informational document to assist federal agencies in determining whether further environmental analysis is required.²² A biological assessment is only the first step in an integrated process designed to insure that federal agencies carry out their duties to insure that their actions will not jeopardize the continued existence of endangered and threatened species, and will not destroy or adversely modify designated critical habitat. Thus, if the logging law is interpreted to prohibit further action beyond preparation of a biological assessment, the assessment will be an exercise in futility.

On the other hand, the statute does allow the Secretaries to determine how extensive a biological assessment can be [26 ELR 10067] and does not explicitly prohibit them from imposing mitigation measures on timber sales. Thus, the Secretaries could theoretically bind themselves to consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) and require biological assessments to include the substantive components of a biological opinion. Of course, even this more expansive reading of the logging law is inferior to the ESA in terms of environmental protection. This reading of the law would leave it within the Secretaries' sole discretion to impose species conservation measures on a salvage timber sale, whereas the ESA requires the Secretaries to impose such measures. In fact, two district courts have upheld the Forest Service's decisions to award salvage timber sales that included little or no species protection provisions, despite evidence that the sales could harm the species in question.²³

In any event, a broad reading of the law's environmental review requirements is either called into doubt or limited by other provisions of the statute that appear to elevate salvage timber sales over all other public land management goals.²⁴ The statute directs the Secretaries to achieve, "to the maximum extent feasible," a salvage timber sale volume above currently projected levels "to reduce the backlogged volume of salvage timber."²⁵ Timber sales contracts must be awarded on an expedited basis using the procedures in the bill.²⁶ Sales must be awarded even if their costs to the federal government are likely to exceed the revenues derived.²⁷ Further, other planned (nonsalvage) timber sales may not be reduced on account of increased salvage timber sales.²⁸ The statute also prohibits the Secretaries from requiring or permitting any administrative action, including a revision of or amendment to their land management plans and policies, to address the site-specific or cumulative effects of salvage timber sales.²⁹ Moreover, the Secretaries may not use salvage timber sales as the basis for limiting other "multiple use activities" on public lands.³⁰

Further, the law exempts salvage timber sales from administrative review and appeal requirements and severely restricts the availability of judicial review.³¹ An action challenging a salvage timber sale must be filed within 15 days of the initial advertisement of the sale.³² In addition, because salvage timber sales are deemed to comply with all applicable federal environmental laws, challenges to such sales generally will have to be brought, if at all, under the Administrative Procedure Act (APA) alone,³³ on the grounds that the Forest Service or the BLM acted arbitrarily and capriciously in approving a timber sale. Under the APA's arbitrary and capricious standard, plaintiffs will be limited to allegations that the federal agencies ignored scientific evidence concerning the effects of a sale, approved a sale of green trees masquerading as a "salvage" sale, or similar types of claims. Thus far, however, the courts have rejected even these narrow claims.³⁴

Finally, perhaps the most egregious provision of the statute is the already infamous subdivision k, which requires the Secretaries to release, and permit to be completed, all timber sales contracts offered or awarded prior to the statute's enactment "in any unit of the National Forest System or district of the Bureau of Land Management subject to section 318 of Public Law 101-121."³⁵ Section 318 was a rider on the Department of the Interior Appropriations Bill for fiscal year 1990. It required the Forest Service to offer for sale, during fiscal years 1989 and 1990, an aggregate level of 7.7 billion board feet of "net merchantable timber," i.e., green trees, not salvage timber, from all national forest lands in Oregon and Washington.³⁶ It further required the BLM to offer for sale, in fiscal years 1989 and 1990, an aggregate level of 1.9 billion board feet of timber in BLM districts in western Oregon.³⁷ The law established a specialized procedure for offer and award of contracts pertaining to lands on which the northern spotted owl resided.³⁸

The Clinton Administration interprets the phrase "subject to section 318" as referring only to § 318 timber sales contracts that remain subject to that section, i.e., contracts that were offered and never awarded or awarded and never completed under § 318. In a lawsuit filed by the timber industry, however, a federal district judge in Oregon rejected this interpretation and held that the phrase "subject to section 318" simply defines the geographic area subject to the provisions of § 2001(k)—i.e., the entire states of Oregon and Washington.³⁹ The court ruled that § 2001(k) was not intended simply to release timber sales contracts that were unawarded or uncompleted under Pub. L. No. 101-121, § 318, but that it was intended to release all unawarded and uncompleted timber sales contracts in Oregon and Washington that were advertised at any time prior to enactment of § 2001(k) on July 27, 1995. Although the scope of this [26 ELR 10068] ruling is unclear, the language of the order could be broadly interpreted to suggest that sales dating as far back as the turn of the century should be released.⁴⁰

Many of the sales now released by the ruling in the Northwest Forest Resources Council case were enjoined by federal district courts and the Ninth Circuit for violating federal environmental laws, particularly the ESA.⁴¹ Others were withdrawn by the Forest Service or the BLM due to the sales' potentially devastating environmental impacts on public lands. Section 2001(k) requires these so-called § 318 sales to be awarded with no change in originally advertised terms, volumes, and bid prices.⁴² This is significant because in many cases, the originally advertised terms were subsequently modified by the Forest Service or the BLM to comply with federal environmental laws. Furthermore, many of the original sales were advertised at scandalously low prices.⁴³ Finally, because the logging law makes awards of § 318 sales mandatory notwithstanding any other provision of law, one court has held that they are not subject to judicial review.⁴⁴

The ruling in Northwest Forest Resource Council is currently on an expedited appeal, but the Ninth Circuit has refused to grant a stay pending appeal. By the time this Dialogue goes to press, the chain saws will have already done their damage.

The irony of the logging law is that its devastation of the public timberlands of the Pacific Northwest may be contrary to the timber industry's overall long-term interests, since it will place more of the burden for conserving endangered and threatened species on private landowners and states. In February 1995, the FWS published a sweeping proposed rule regarding incidental "take" of the northern spotted owl, pursuant to ESA § 4(d).⁴⁵ This provision allows the FWS or the NMFS to issue rules they deem "necessary and advisable" for the "conservation" of threatened species.⁴⁶ The proposed rule would apply in California and Washington,⁴⁷ and would eliminate or significantly limit incidental take restrictions under the ESA for the northern spotted owl for timber harvest activities on many nonfederal lands.

The proposed § 4(d) rule is premised on the assumption that since the public lands protected under the Northwest Forest Plan will provide the primary habitat necessary for recovery of the northern spotted owl, "it is no longer essential to the conservation of the spotted owl to continue to prohibit the incidental take of the owl on all non-Federal land located within [the owl's] range."⁴⁸ It will be extremely difficult if not impossible, however, for the Clinton Administration to defend this basic assumption underlying the proposed rule in light of the devastating effects the logging law has had and will continue to have on public lands in the Northwest.

Lands adversely affected by the logging law include many public lands on which timber harvesting is otherwise prohibited or restricted by the Northwest Forest Plan. The effect will be exacerbated in Washington, which is subject to the salvage logging and § 2001(d) Option 9 green tree sales provisions, as well as the § 2001(k) green tree sales provision. As a result, the FWS is conducting an intra-agency § 7 consultation and environmental analysis of the proposed § 4(d) rule, which will include an evaluation of how the logging law will alter the biological baseline for the Northwest Forest Plan. In the meantime, Rep. Elizabeth Furse (D-Or.) has introduced a bill to repeal the logging law.⁴⁹

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Conclusion

Seeing why the salvage logging legislation has been dubbed the "logging without laws" bill is not difficult. We must hope that this law is not merely the harbinger of worse yet to come. And although this statute will only be in effect through fiscal year 1997 (unless it is extended), this is sufficient time to do extensive damage to our nation's public lands.

1. Pub. L. No. 104-19, § 2001 (1995). Interestingly, President Clinton vetoed this bill once, but then signed it on July 27, 1995 after reportedly receiving assurances from Sen. Mark Hatfield (R-Or.) that the salvage logging bill gave the Administration "complete discretion" to implement the law "according to [its] best judgment." Kathie Durbin, The "Timber Salvage" Scam, AMICUS J., Fall 1995, at 30-31. As demonstrated by the analysis below, however, this is simply untrue.

2. Mr. Evans was quoted in the October 26, 1995 edition of ESA TODAY—an online service produced by the Endangered Species Coalition.

3. Patricia Byrnes, Wilderness Watch, WILDERNESS, Summer 1995, at 5.

4. See Bureau of Land Management, Department of the Interior, and Forest Service, Department of Agriculture, Final Supplemental Environmental Impact Statement on Management of Habitat for Late-Successional and Old-Growth Forest Related Species Within the Range of the Northern Spotted Owl (Feb. 1994); Bureau of Land Management, Department of the Interior, and Forest Service, Department of Agriculture, Record of Decision for Amendments to the Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl (Apr. 1994).

5. Seattle Audubon Society v. Lyons, 871 F. Supp. 1291, 25 ELR 20711 (W.D. Wash. 1994). That decision is currently on appeal. The Northwest Forest Plan establishes a 11.5 million-acre system of late-successional forest and riparian reserves and withdrawn areas on federal lands, within which timber harvesting is largely prohibited. In addition, the Forest Plan provides for approximately 5.5 million acres of so-called Adaptive Management Areas and Matrix lands, on which harvesting is permitted subject to certain conditions and specified environmental requirements. FWS, Proposed Special Rule for the Conservation of the Northern Spotted Owl on Non-Federal Lands, 60 Fed. Reg. 9484, 9497-98 (Feb. 17, 1995) (to be codified at 50 C.F.R. Part 17) [hereinafter Proposed Special Rule].

6. Pub. L. No. 104-19, § 2001(b)(1) (application during emergency period); id. § 2001(a)(2) (duration of emergency period).

7. These exceptions include: (1) areas within the National Wilderness Preservation System; (2) any federally owned roadless area designated by the Forest Service or the BLM for wilderness study in the most recent applicable land and resource management plan; and (3) any area on federal lands on which timber harvesting is absolutely prohibited by statute. Id. § 2001(g). Federal lands subject to the President's "Option 9" forest plan, however, are covered by the bill's provisions, id. § 2001(d), as are all roadless areas not designated as wilderness or wilderness study areas.

8. Id. § 2001(a)(3).

9. The validity of this underlying assumption has been called into question by a number of scientists. Many scientists believe that removal of dead, dying, and otherwise damaged trees actually harms the forest ecosystem by removing wildlife habitat, soil nutrients, etc. and increasing soil erosion. Durbin, supra note 1. Further, the actual language of the bill calls into question the sincerity of the sponsors' publicly professed intent to improve forest health, as most of the bill's provisions actually undermine this stated rationale. Id.

10. Pub. L. No. 104-19, §§ 2001(b)(1), (c)(9).

11. See Oregon Natural Resources Council v. Thomas, No. 95-6272-HO, slip op. at 4-6 (D. Or. Dec. 5, 1995). In addition, the bill requires any timber sales authorized under Option 9 (which include green tree sales) to be awarded on an expedited basis. These provisions apply notwithstanding any other provision of law or prior judicial order pertaining to Option 9. Id. § 2001(d). In a recent case involving a challenge to four Option 9 timber sales, a district court held that this provision precludes any judicial review of the offer, award, and operation of Option 9 timber sales. Oregon Natural Resources Council, slip op. at 6.

12. Pub. L. No. 104-19, § 2001(i); Oregon Natural Resources Council, slip op. at 7.

13. Endangered Species Act, 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

14. Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

15. National Environmental Policy Act, 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2 et seq.

16. National Forest Management Act, 16 U.S.C. §§ 1600-1687, ELR STAT. NFMA §§ 2-16.

17. Federal Land Policy and Management Act, 43 U.S.C. §§ 1701-1784, ELR STAT. FLPMA §§ 102 et seq.

18. Pub. L. No. 104-19, § 2000(c)(1)(A), (B).

19. Id. § 2001(c)(1)(C); Idaho Conserv. League v. Thomas, No. 95-425-EJL, slip op. at 11 (D. Idaho Dec. 11, 1995).

20. Pub. L. No. 104-19, § 2001(i).

21. See 16 U.S.C. § 1536; 50 C.F.R. §§ 402 et seq. (1995).

22. Under § 7, if the biological assessment concludes that the proposed federal agency action may jeopardize a listed species or adversely modify its critical habitat, the federal agency must consult with the National Marine Fisheries Service (NMFS)—for most marine and anadromous fish species—and/or the U.S. Fish and Wildlife Service (FWS)—for all other species. 16 U.S.C. § 1536(c), ELR STAT. ESA § 7(c). The NMFS or the FWS then must prepare a biological opinion recommending alternatives to the project and/or mitigation measures to ensure no jeopardy to listed species or adverse modification of critical habitat. Id. § 1536(b), ELR STAT. ESA § 7(b). While the federal agency may choose to implement its own alternative and is not necessarily required to comply with one of the NMFS' and the FWS' recommended alternatives, the agency must always comply with its § 7 duties. Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th Cir. 1988). Thus, whatever alternative the federal agency chooses to implement, its action cannot adversely affect listed species or their habitat unless the agency receives an exemption from the cabinet-level Endangered Species Committee (an extremely rare occurrence). 16 U.S.C. §§ 1536(a)(2), (e), ELR STAT. ESA § 7(a)(2), (e).

23. Idaho Conserv. League v. Thomas, No. 95-425-EJL, slip op. at 18-19 (D. Idaho Dec. 11, 1995); Kentucky Heartwood, Inc. v. U.S. Forest Service, No. 95-225, 1995 LEXIS 17737, slip op. at 6-7 (E.D. Ky. Nov. 27, 1995).

24. Idaho Conserv. League, slip op. at 10-11.

25. Pub. L. No. 104-19, § 2001(b)(1); see also id. § 2001(c)(4). Further, sales being prepared as of the date of the bill's enactment are subject to its provisions. Id. § 2001(b)(3). The Secretaries must report to Congress on their progress in implementing the bill on August 30, 1995, and every six months thereafter, through fiscal year 1997. Id. § 2001(c)(2).

26. Id. § 2001(c).

27. Id. § 2001(c)(6).

28. Id. § 2001(c)(7).

29. Id. § 2001(1); Idaho Conserv. League v. Thomas, No. 95-425-EJL, slip op. at 20 n.5 (D. Idaho Dec. 11, 1995).

30. Pub. L. No. 104-19, § 2001(1).

31. Id. § 2001(e).

32. Id. § 2001(f)(1).

33. 5 U.S.C. § 706, available in ELR STAT. ADMIN. PROC.

34. See Idaho Conserv. League v. Thomas, No. 95-425-EJL, (D. Idaho Dec. 11, 1995) (rejecting claims that the Forest Service's decision to award a sale was arbitrary and capricious); Kentucky Heartwood, Inc. v. U.S. Forest Service, No. 95-225 (E.D. Ky. Nov. 27, 1995) (same).

In one recent case, a district court granted the defendant-intervenors' motion for summary judgment because "the APA precludes review when 'agency action is committed to agency discretion by law'" and § 2001(d) & (i) "bar environmental challenges to Option 9 sales, thereby giving the agency complete discretion, insofar as environmental laws are concerned …." Oregon Natural Resources Council v. Thomas, No. 95-6272-HO, slip op. at 8 (D. Or. Dec. 5, 1995). The court also ruled that "absent an independent, reviewable body of substantive [environmental] law, the APA does not provide reviewable subject matter." Id.

35. Pub. L. No. 104-19, § 2001(k)(1) (emphasis added).

36. Id. 101-121, § 318(a)(1) (1989).

37. Id. § 318(a)(2).

38. Id. § 318(b)-(k).

39. Northwest Forest Resources Council v. Glickman, No. 95-6244-HO (D. Or. Sept. 13, 1995).

40. However, because no particular sales were the subject of the complaint, the judge did not order that specific individual sales be released. Nevertheless, several days after the court issued its ruling the timber industry filed a motion to hold the Forest Service in contempt of court for failing to release all sales subject to § 318. The Forest Service responded to these heavy-handed tactics by agreeing to a district court injunction ordering release of all timber sales offered or awarded in Washington and Oregon between October 1, 1990 and July 27, 1995. The injunction was entered on October 17, 1995.

41. In one of the old cases, Seattle Audubon Society v. Thomas, No. C89-160WD (W.D. Wash. 1989), environmental groups have returned to court to ask it to enforce the prior injunctions and court orders notwithstanding the logging law.

42. Pub. L. No. 104-19, § 2001(k)(1). This section applies unless an endangered or threatened bird species is "known to be nesting" within the acreage that is the subject of the sale. Id. § 2001(k)(2). Congressional proponents of the bill are strongly urging the Administration to interpret this provision narrowly as requiring "actual direct evidence of active nesting" (such as actual nests or eggshells) at the time the sale is advertised. See Tom Kenworthy, Timber Sales Deal Rekindles Furor; Clinton's Acceptance of Harvest Jeopardizes Northwest Forest Plan, WASH. POST, Aug. 29, 1995, at A01. This interpretation would conflict with a standard scientific protocol used to identify the presence of the threatened marbled murrelet, an elusive seabird whose nests are almost impossible to find. Marbled Murrelet v. Pacific Lumber Co., 880 F. Supp. 1343, 1351, 25 ELR 21301, 21304 (N.D. Cal. 1995). This protocol involves observing the birds' flying behavior above and through the forest canopy in order to determine the probability of murrelets nesting within a particular stand. Id. The timber industry has filed two lawsuits to force a court ruling on the proper interpretation of the "known to be nesting" language. See Northwest Forest Resource Council v. Glickman, No. 95-6244-HO (D. Or. 1995); Scott Timber Co. v. Glickman, No. 95-6267-HO (D. Or. 1995). Which method is used to determine murrelet occupancy is a crucial question: By the end of 1994, only 73 actual nests had been discovered throughout the Pacific Northwest, whereas hundreds of potentially occupied nests had been identified using the established scientific protocol. Kenworthy, supra.

43. See Logging Without Laws Rider: Lawlessness Fuels the Industry's Greed at the Expense of Our Nation's Forests (Testimony of Patti Goldman, Sierra Club Legal Defense Fund, Before the Task Force on Salvage Timber and Forest Health) (1995).

44. See note 34, supra.

45. The ESA prohibits "take" of endangered species. 16 U.S.C. § 1539(a)(1)(B), ELR STAT. ESA § 10(a)(1)(B). "Take" is defined as to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Id. § 1532(19), ELR STAT. ESA § 3(19). Section 4(d) of the ESA allows the FWS and the NMFS to extend this take prohibition to all threatened species by regulation, which the FWS has done. Id. § 1533(d), ELR STAT. ESA § 4(d); 50 C.F.R. § 17.31 (1995); Sweet Home Chapter of Communities for a Greater Or. v. Babbitt, 1 F.3d 1, 6-8, 23 ELR 21151, 21153-54 (D.C. Cir. 1993), modified, 17 F.3d 1463, 24 ELR 20680 (D.C. Cir. 1994), rev'd on other grounds, 115 S. Ct. 2407, 25 ELR 21194 (1995). Once a "threatened species take prohibition" is adopted, incidental take of individual members of the threatened species may be authorized consistent with the requirements of § 4(d). Sierra Club v. Clark, 755 F.2d 608, 613, 15 ELR 20391, 20392 (8th Cir. 1985); Christy v. Hodel, 857 F.2d 1324, 1336, 18 ELR 21430, 21436 (9th Cir. 1988).

46. 16 U.S.C. § 1533(d), ELR STAT. ESA § 4(d).

47. The FWS decided not to include the state of Oregon within the rule's geographic scope in light of the state's efforts to fashion its own special rule termed the "Oregon Alternative." Until the Oregon Alternative is developed and approved by the FWS, the basic take prohibition of § 9 will apply in that state. Proposed Special Rule, supra note 5, 9489-90.

48. Id. at 9499.

49. H.R. 2745, 104th Cong., 1st Sess. (1995).