Court halts logging in Plumas forest
Sacramento Bee
May 14th, 2008
Denny Walsh and Matt Weiser
In a resounding repudiation of the Bush administration's approach to national forest management, the highest court in nine Western states on Wednesday ruled that selling large trees to finance fire protection efforts without any consideration of reasonable alternatives is not a viable policy.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ordered a halt to three major logging projects in the Plumas National Forest until an environmental impact assessment conforms to a Clinton administration forest management plan. The first of the three projects was set to begin June 1.
Judge John T. Noonan Jr. wrote the opinion and also a concurrence that says the U.S. Forest Service has an inherent conflict of interest when it sells trees to supplement its budget.
"The Forest Service introduces its bias at the stage of making the forest plan, while case law prohibits bias only at the stage of awarding (logging) contracts," Noonan wrote. "The financial incentive of the Forest Service in implementing the forest plan is as operative, as tangible, and as troublesome as it would be if ... the agency was the paid accomplice of the loggers."
A 2001 management plan for the 11.5 million acres of national forest in the Sierra Nevada -- called a "framework" -- was approved in the waning days of the Clinton administration. But it was never implemented by the Bush administration, which replaced it in 2004 with a revised version. Among other differences, the revision increased logging by five times, allowed bigger trees to be felled, and limited safeguards for forests, water, soil and wildlife throughout the 11 national forests in the Sierra. Ostensibly, this was all in the interest of wildfire prevention.
In January 2005, a who's who of private environmental protection organizations filed a lawsuit in Sacramento federal court challenging the second framework. They claim it runs afoul of federal law by failing to protect habitat of the California Spotted Owl and two small carnivores, the Pacific Fisher and American Marten. They also claim it was adopted without adequate disclosure of its impact and with no attention to reasonable alternatives.
The claims have never been resolved. U. S. District Judge Morrison C. England Jr., a Bush appointee, has had the parties' cross motions for summary judgment under submission for almost two years.
The challenge to the three logging projects in the northern reaches of the high Sierra is part of that larger suit. California Attorney General Jerry Brown filed a brief with the appellate court in support of the environmental groups.
The Forest Service's reasoning is simple: sell trees to loggers; use the money to clear areas of potential fire fuel. A secondary benefit: what the loggers cut can be potential fuel. With one sale, a fire hazard can be removed and the agency paid so it can remove more fuel.
"Two for one always has an attractive ring," but alternatives delineated in the 2001 framework are not part of the equation, and they must be, the circuit panel ruled.
"We're going to have to roll up our sleeves here and analyze and evaluate the effects of this decision," said Janice Gauthier, Forest Service spokeswoman at its Vallejo regional office.
"The court was pretty clear this aggressive logging proposed by the Bush administration is not legal and a bad idea for a lot of reasons," said Craig Thomas, executive director of Sierra Forest Legacy, one of the plaintiffs. He said the Bush plan's projects will have to be re-evaluated.
"First of all, there is the (Forest Service's) own budget," the appellate panel noted. "Is every one of its activities so necessary and so tightly allocated that no money could be shifted? We do not know the answer because this alternative has not been explored.
"If the USFS does not have enough, why should not Congress be asked to give it more? Surely the avoidance of catastrophic fire in the national forests must rate a high priority among the needs of the nation."
England abused his discretion in concluding the Forest Service complied with the National Environmental Policy Act's requirement to "rigorously explore and objectively evaluate all reasonable alternatives," the panel declared.
The possibility the logging will irreparably damage the owl by reducing its habitat cannot simply be dismissed by the Forest Service, it added.
The question, it says, is whether the service's choice of funding, rather than fire reduction itself, outweighs the state's preservation interests.
Citing a 2007 U.S. Supreme Court opinion, the circuit judges concluded "it does not, given that 'special solicitude' should be afforded California's stake in its natural resources."
In the hard-hitting concurrence, Noonan wrote, "The bribery of a congressman is a crime. It would not make a difference if the bribe came from a trade association on behalf of a whole industry.
"In the instant case the decision makers are influenced by monetary reward to their agency. Independently of the grounds set out in my opinion for the court, I would hold this defect in the process to vitiate entirely the ultimate decisions."