Judge rules against farming permits in preserve

A federal judge has struck down permits that allow two farmers to grow corn and soybeans in a federal nature preserve in western Kentucky and Tennessee because the U.S. Forest Service violated it's own rules in handling the agreements. U.S. District Judge Thomas B. Russell said it was "unreasonable" for the Forest Service to delegate it's power to issue special use permits to the National Wild Turkey Federation, who in turn signed contracts allowing two farmers to grow row crops in Land Between the Lakes National Recreation Area. Russell ruled that, under the intricate web of laws governing national forests and lands, special-use permits issued by the Forest Service are required to allow people to put anything in the area that wouldn't naturally grow or live there. "The delegation of such power by the Forest Service constitutes an unlawful delegation of the agency's duty to protect the environment to a private entity," Russell wrote. However, Russell turned away a challenge by the Eugene, Ore.-based Forest Service Employees for Environmental Ethics to the use of pesticides on crops grown in the area, saying the Forest Service has experience with the chemicals and can handle them properly...read more

COMMENT

Here is the pertinent part of the decision:

The Court finds that the regulations promulgated pursuant to the OAA require the special-use permits to be issued for farming LBL property and the permits must be issued by an authorized officer. An authorized officer is expressly defined as an employee of the Forest Service. The Stewardship Agreement clearly sets out that "any NWTF employees and their volunteers shall not be deemed to be Federal employees for any purposes." The Court finds Forest Services' interpretation of the Stewardship as authorizing delegation to the NWTF of the power to issue special-use permits is an unreasonable interpretation of the Stewardship Act as it is in direct violation of the regulations promulgated under the authority of the OAA. The delegation of such power by the Forest Service constitutes unlawful delegation of the agency's duty to protect the environment to a private entity as in National Park & Conservation Ass'n v. Stanton, 54 F. Supp.2d 7 (D.D.C. 1999). While the Forest Service has provided evidence of Congressional authority to enter into stewardship agreements with private entities, the Forest Service has been unable to show affirmative evidence of Congressional authority to delegate so extensively in direct violation of its regulations. United States Telecom Association v. FCC, 359 F.3d 554, 566 (D.C. Cir. 2004)... The Court finds the Forest Service did not violate NEPA by failing to create an EIS; however, the Forest Services' interpretation of the Stewardship Act as authorizing delegation to the NWTF of the power to issue special-use permits is an unreasonable interpretation of the Stewardship Act as it is in direct violation of the regulations promulgated under the authority of the OAA and such delegation constitutes unlawful delegation.