Laserfiche WebLink
April 11, 2008 <br />Page 6 <br />landscape conditions, the use of the conditions of pre- European settlement as a <br />reference was not realistic for many environments. For this reason, the <br />Department has eliminated the use of this terminology from the final [2000] rule. <br />65 Fed. Reg. 67543 (November 9, 2000). <br />Accordingly, any SJPLC reliance by on the HRV is without legal authority and contrary to the <br />Department of Agriculture's specific recognition that it is an inappropriate concept on which to <br />base Forest Planning. Moreover, because the 2000 Rule, itself was withdrawn on January 5, <br />2005, neither its modified Expected Range of Variation concept, nor its general emphasis on <br />ecological sustainability can underpin the regulatory methodologies for the Draft Plan. See 70 <br />Fed. Reg 1022 (January 5, 2005). Reliance by the SJPLC on a withdrawn or a judicially <br />nullified rule is without legal authority. Improper reliance by the SJPLC "upon factors which <br />Congress has not intended it to consider," subjects its actions to judicial reversal as arbitrary and <br />capricious. Motor Vehicle Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). <br />B. The HRV Concept Is Not Tailored to Manage Aquatic Ecosystems. Not only is <br />the utilization of the HRV vision as the basis for habitat standards and guidelines in the Draft <br />Plan legally unauthorized, the science cited by the SJPLC makes clear that the HRV concept is <br />properly used only to design silvicultural regimes to mimic natural forest disturbance events, not <br />to limit water development or other multiple uses of National Forests. The Draft Plan cites <br />Principles of Ecological Forestry for the proposition that "native species evolved under HRV <br />conditions, and thus maintaining a full range of similar conditions offers the best assurance <br />against losses of biodiversity." Draft Plan at 17. The cited literature, however, contains no <br />reference to maintaining aquatic habitats, limiting water diversions, maintaining free flowing <br />streams as "reference conditions" or utilizing the HRV concept to inform water management in <br />forest ecosystems. Rather, the HRV concept is designed solely for the exploration of alternative <br />silvicultural regimes and the impacts of such silvicultural practices as age structure, harvest <br />timing, and regeneration methods. See generally, Roberts S. Seymour and Malcolm L. Hunter, <br />Principles of Ecological Forestry, in Maintaining Biodiversity in Forest Ecosystems (Malcolm <br />L. Hunter ed., 1999), attached as Exhibit "A ". Expanding the HRV concept to issues for which it <br />was never intended to be used is improper. <br />C. The Draft Plan Fails to Comply with the 1982 Rule. By utilizing major concepts <br />from the repealed 2000 Rule and concepts deliberately eliminated from that Rule, the SJPLC <br />fails to comply with the 1982 Rule which governs the preparation of the Draft Plan. The Draft <br />Plan, for example, requires that, for all populations of vertebrate aquatic species, streamflow in <br />each stream reach "should be sufficient to maintain, for each life stage of each target species, a <br />minimum of 50% of the Weighted Usable Area that would occur under natural flow conditions. <br />Draft Plan at 252. Section 219.27(a)(5) of the 1982 Rule, however, requires that in establishing <br />aquatic habitat requirements, a forest plan must only: <br />[p]rovide for adequate fish and wildlife habitat to maintain viable populations of <br />existing native vertebrate species and provide that habitat for species chosen <br />