36 C.F.R. § 219.9

Diversity of plant and animal communities

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This section adopts a complementary ecosystem and species-specific approach to maintaining the diversity of plant and animal communities and the persistence of native species in the plan area. Compliance with the ecosystem requirements of paragraph (a) of this section is intended to provide the ecological conditions to both maintain the diversity of plant and animal communities and support the persistence of most native species in the plan area. Compliance with the requirements of paragraph (b) of this section is intended to provide for additional ecological conditions not otherwise provided by compliance with paragraph (a) of this section for individual species as set forth in paragraph (b) of this section. A plan developed or revised under this part must provide for the diversity of plant and animal communities, within Forest Service authority and consistent with the inherent capability of the plan area, as follows:

(a) Ecosystem plan components. (1) Ecosystem integrity. As required by § 219.8(a), the plan must include plan components, including standards or guidelines, to maintain or restore the ecological integrity of terrestrial and aquatic ecosystems and watersheds in the plan area, including plan components to maintain or restore their structure, function, composition, and connectivity.

(2) Ecosystem diversity. The plan must include plan components, including standards or guidelines, to maintain or restore the diversity of ecosystems and habitat types throughout the plan area. In doing so, the plan must include plan components to maintain or restore:

(i) Key characteristics associated with terrestrial and aquatic ecosystem types;

(ii) Rare aquatic and terrestrial plant and animal communities; and

(iii) The diversity of native tree species similar to that existing in the plan area.

(b) Additional, species-specific plan components. (1) The responsible official shall determine whether or not the plan components required by paragraph (a) of this section provide the ecological conditions necessary to: contribute to the recovery of federally listed threatened and endangered species, conserve proposed and candidate species, and maintain a viable population of each species of conservation concern within the plan area. If the responsible official determines that the plan components required in paragraph (a) are insufficient to provide such ecological conditions, then additional, species-specific plan components, including standards or guidelines, must be included in the plan to provide such ecological conditions in the plan area.

(2) If the responsible official determines that it is beyond the authority of the Forest Service or not within the inherent capability of the plan area to maintain or restore the ecological conditions to maintain a viable population of a species of conservation concern in the plan area, then the responsible official shall:

(i) Document the basis for that determination (§ 219.14(a)); and

(ii) Include plan components, including standards or guidelines, to maintain or restore ecological conditions within the plan area to contribute to maintaining a viable population of the species within its range. In providing such plan components, the responsible official shall coordinate to the extent practicable with other Federal, State, Tribal, and private land managers having management authority over lands relevant to that population.

(c) Species of conservation concern. For purposes of this subpart, a species of conservation concern is a species, other than federally recognized threatened, endangered, proposed, or candidate species, that is known to occur in the plan area and for which the regional forester has determined that the best available scientific information indicates substantial concern about the species' capability to persist over the long-term in the plan area.

[77 FR 21260, Apr. 9, 2012, as amended at 81 FR 90737, Dec. 15, 2016]

Notes of Decisions

Cited in 13 cases, 2001–2017 · leading case: Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009).

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Sierra Forest Legacy v. Rey, 577 F.3d 1015 (9th Cir. 2009). · cites it 2× “Rulemaking by an administrative agency, like legislation by a legislature, seems exempted from scrutiny for conflict of interest.”

Wyoming v. United States Dep't of Agric., 661 F.3d 1209 (10th Cir. 2011). “Therefore, the Forest Service determined that the procedures contemplated in the Roadless Rule should be an explicit part of the plan revision process, and addressed them at [§] 36 CFR 219.9(b)(8) of the final Planning Regulations.”

Colorado Off-High. Veh. Coalition v. United States Forest Serv., 357 F.3d 1130 (10th Cir. 2004). · cites it 2× “36 C.F.R. § 219.9 . These obligatory procedures include proper notice, opportunities for public comment, and preparation of an EIS.”

Kootenai Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001). · cites it 2× “12(a)(2000); superseded by 36 C.F.R. § 219.9 (d)(2001); Forest Service Handbook, Title 1909.”

Se. Alaska Conservation Council v. United States Forest Serv., 857 F.3d 968 (9th Cir. 2017). “” 36 C.F.R. § 219.9 (b). . The dissent’s focus on population changes on Prince of Wales Island, dissent at 979-80, is puzzling for two reasons.”

Sierra Forest Legacy v. Rey, 526 F.3d 1228 (9th Cir. 2008). · cites it 2× “Rulemaking by an administrative agency, like legislation by a legislature, seems exempted from scrutiny for conflict of interest.”

Fed. Forest Resource Coalition v. Vilsack, 100 F. Supp. 3d 21 (D.D.C. 2015). “Plaintiffs claim that 36 C.F.R. § 219.9 — which directs that land management plans must “provide the ecological conditions necessary to: contribute to the recovery of federally listéd threatened and endangered species, conserve proposed and candidate species, and maintain a…”

Idaho Ex Rel. Kempthorne v. United States Forest Serv., 142 F. Supp. 2d 1248 (D. Idaho 2001). · cites it 2× “12(a) (2000); superseded by 36 C.F.R. § 219.9 (d) (2001); Forest Service Handbook, Title 1909.”

Sierra Club v. United States Forest Serv., 593 F. Supp. 2d 1306 (N.D. Ga. 2008). “Until 2005, 36 C.F.R. § 219.9 (d) explicitly required that an environmental impact statement be prepared when a forest plan was revised.”

Seacc v. Usfs (9th Cir. 2017). “” 36 C.F.R. § 219.9 (b). 16 IN RE BIG THORNE PROJECT “sustaining viable” wolf populations, or repeatedly (if obscurely) ponder the forest’s ability to “sustain wolves.”

Sierra Club v. US Forest Serv., 593 F. Supp. 2d 1036 (N.D. Ga. 2008). “[8] Until 2005, 36 C.F.R. § 219.9 (d) explicitly required that an environmental impact statement be prepared when a forest plan was revised.”

Sierra Forest v. Ray Et (9th Cir. 2008). “See 36 CF.R. § 219.9. Forest plans “do not grant, withhold, or modify any contract, permit, or other legal instrument, subject anyone to civil or criminal liability, or create any legal rights.”

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— 36 C.F.R. § 219.9(b)(8) — 1 case

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