Court Blocks Sierra Logging Project

A federal appeals court blocked a large logging project Thursday in the Sierra Nevada, siding with environmentalists who argued that the U.S. Forest Service had overestimated the number of dead trees that needed to be cut after a 2001 forest fire.

The federal government had sold logging rights to a private company to clear dead trees from the 17,000 acres that burned west of Lake Tahoe in the Star fire. But the John Muir Project, an environmental group that monitors such salvage contracts in California, said the Forest Service had overestimated the destruction, allowing more logging than would have been allowed under the state’s comprehensive forest plan.

The U.S. 9th Circuit Court of Appeals in San Francisco ruled 2 to 1 in favor of the Muir Project and reaffirmed an order blocking the contract that it issued last year.

The judges found that the John Muir Project had demonstrated a reasonable probability of success that the Forest Service had misstated the conditions in the El Dorado National Forest in creating the preconditions for a salvage sale of timber after a major fire.

A key question in the case is just what constitutes a dead tree. The Muir Project asserted that the Forest Service, in an effort to expand a salvage project, approved the removal of live trees. The Forest Service sharply disagreed.

The case arose in the aftermath of an August 2001 wildfire that began on private land and swept through the El Dorado National Forest and Tahoe National Forest for 23 days.

Subsequently, Forest Service personnel developed a restoration plan that spawned two ongoing federal lawsuits.

In this case, the Muir Project challenged the conclusions of the Forest Service that logging large trees would reduce the potential for damage from future fires.

The Muir Project contended that the relevant scientific studies focus solely on smaller trees, while the few studies discussing larger trees concluded that they should not be logged.

Muir Project attorney Rachel Fazio also asserted that the Forest Service deliberately used scientifically questionable mortality standards to overestimate the level of tree destruction in the project area, which is about 20 miles west of Lake Tahoe and south of Interstate 80 along the Upper Middle Fork of the American River.

The Muir Project, affiliated with the Earth Island Institute of San Francisco, also contended that scientific literature overwhelmingly suggested that a large percentage of trees categorized as dead by a Forest Service biologist would survive.

The Forest Service countered that the project would salvage dead timber that was still standing.

In addition, Assistant U.S. Atty. Edmund Brennan, representing the agency, said the project would restore burned soil and reduce wood fuels.

U.S. District Judge Morrison England Jr., an appointee of President George W. Bush, rebuffed the Muir Project’s request to halt the logging.

Emergency Stay

In November 2002, the 9th Circuit issued an emergency stay, halting logging of any trees “which have any percentage of green foliage and/or crown remaining,” while a full appeal was considered.

The appellate majority ruled that England had failed to consider “the broader public interest in the preservation of the forest and its resources” when making his ruling.

Judge Sidney R. Thomas, joined by Judge John T. Noonan, a President Reagan appointee, ruled that England had applied the wrong legal standards in assessing whether the plaintiffs were entitled to a preliminary injunction.

They also ruled that Judge England had erred in permitting the Forest Service to annul a protected zone for spotted owls on the grounds that the area was no longer habitable for the birds.

In a concurring opinion, Noonan questioned whether the Forest Service had a serious conflict of interest “because of its financial interest in the sale” of the timber.

“In deciding whether or not a sale should be made, the Forest Service determines the legal rights of a private corporation and the legal rights of those seeking to enforce the statutes protecting the environment. The Forest supervisor and the Regional forester making this determination are not judges in a black gown sitting on a bench, but as surely as such traditional figures they are applying law to resolve a legal controversy,” Noonan wrote.

‘Further Investigation’

He said the Forest Service is dependent for some of its budget on timber sales and from them derives “many millions of dollars” a year.

“Any governmental agency would put a premium on an operation that gives it a perpetual revolving fund not dependent” on a congressional appropriation, Noonan wrote. “Further investigation of the budgetary process of the forest and the impartiality of the service appears appropriate,” when the case goes back to Judge England, Noonan added.

Judge Richard R. Clifton, a George W. Bush appointee, dissented. He said that England had used the correct legal standard and that the plaintiffs had failed to show the likelihood of irreparable harm if the injunction was not granted.

Muir Project attorney Fazio praised the ruling, saying that she was particularly pleased about Noonan’s concurrence. The organization has long expressed concern about the Forest Service’s decision-making in reviewing proposed logging projects such as this one.

The decision was criticized by Justice Department lawyer Brennan and David Dun, the attorney for Sierra Pacific Industries, which had been awarded the logging contract. Both attorneys said England’s rulings had been correct. They also said that Congress had decades ago created the program that the Forest Service operates and that no one had found any evidence that it was run improperly.

Brennan said the government has not decided yet whether it will ask the 9th Circuit to review the decision with a larger panel of judges.