Subject: FW: SW Biodiversity Alert #17

Subject: SW Biodiversity Alert #17

* ************* Southwest Biodiversity Alert #17 *****************
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*            southwest center for biological diversity           *
*                      ksuckling@sw-center.org                   *
*             http://www.envirolink.org/orgs/sw-center           *
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JUDGE REJECTS BIOLOGICAL OPINION ON FOREST PLANS:
  - SW LOGGING INJUNCTION MY BE EXTENDED THROUGH LIFE OF SALVAGE
RIDER
  - CONTEMPT CHARGES AGAINST JACK WARD THOMAS THREATENED
  - PRECEDENT AGAINST "CONDITIONAL" BIOLOGICAL OPINIONS ESTABLISHED

Logging in the Southwest's 11 National Forests and the Navajo
Reservation has been injoined since August, 1995, when Federal Court
Judge Carl Muecke ruled that the Forest Service and the Bureau of
Indian Affairs must re-consult with the Fish and Wildlife Service on
the effects of their forest plans on the threatened Mexican spotted
owl and its critical habitat.  Logging will comence when the Fish
and Wildlife Service issues a Biological Opinion.

The Forest Service desperately attempted to subvert the consultation
because a Biological Opinion on the Forest Plans will definately be
a jeopardy.  The Forest Plans, after all, were the main the reason
the owl was listed in the first place.  As happened following the
Pacific Rivers salmon injunction in the Northern Rockies, the Fish
and Wildlife Service attempted to rescue the Forest Service by
issuing a "conditional jeopardy" opinion stating that the Forest
Plans would constitute jeopardy if they were implemented, but will
not, if the Forest Service implements certain conservation
recommendations.

In response to a motion filed by Earthlaw on behalf of an
environmental coalition, Judge Muecke not only struck down
the conditional B.O., he lambasted the Forest Service and threatened
to hold Forest Service Chief Jack Ward Thomas in contempt of court. 
Muecke's name of Jack Ward Thomas as an individual is an indication
of his frustration with the regional Forest Service consistently plotting
to violate his court orders and the ESA.

Since the Fish & Wildlife Service will have to re-do the Biological
Opinion, it is likely that the logging injuction will be extended
through the summer.  The Logging Without Laws Rider expires
September 30th.  Thus far the injunction has prevented salvage
timber sales under the rider in the Southwest.

Highlights of the Muecke's order:

"Plaintiffs reply that they remain concerned that the government
will continue to attempt to circumvent the requirements of the ESA,
orders of the Court and parties' stipulations...The court agrees
that experience in these consolidated cases shows that in the
absence of strict order from the Court on how to proceed, the
defendants will not comply with the clear requirements of the ESA
and orders of this court."

"The Court clarifies that the proposed April 2, 1996 "biological
opinion"...fails to make the jeopardy/no jeopardy determinations;
doesnot contain reasonably and prudent alternatives or a finding
that no such alternatives are available, and it does not contain an
incidental take statement. The Court further clarifies that it will
not consider fomal consultation to be complete so that the
stipulated ban on timber activies can be lifted until the FWS issues
a biological opinion that complies with the requirements of the
ESA..."

"The Court is at a loss to understand why the USFS would not carry
out its duties set forth in the law, orders of this Court and
stipulations of the parties when failure to carry out those duties
could result in contempt...The Court will hold Mr. Thomas
responsible for the USFS if it fails to carry out its duties under
the ESA, regulations, stipulations of the parties and orders of the
Court."