SOS Forests

Ninth Circuit Court Okays Thinning Project

As California suffers under a fire bust of historic proportion, the San Francisco-based 9th Circuit Court has decided that thinning forests to prevent catastrophic fire storms in constitutional after all.

In a landmark turn of the worm, yesterday the 9th Court overturned itself and denied a motion by enviro-litigious plaintiffs the Lands Council and the Wild West Institute that would have enjoined the Mission Brush Project, a selective logging of 3,829 acres of forest in the Idaho Panhandle National Forest.

The Court en banc (Alex Kozinski, Chief Judge, Pamela Ann Rymer, Andrew J. Kleinfeld, Michael Daly Hawkins, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Marsha S. Berzon, Richard R. Clifton, Milan D. Smith, Jr., and N. Randy Smith) reversed an earlier decision by a three-judge panel of the same court.

The opinion written by Judge Milan D. Smith, Jr. contained some pithy remarks. The entire Decision is [here]. We extract some of the more important statements:

We took this case en banc to clarify some of our environmental jurisprudence with respect to our review of the actions of the United States Forest Service. …

Boundary County, City of Bonners Ferry, City of Moyie Springs, Everhart Logging, Inc., and Regehr Logging, Inc. (collectively, Intervenors) intervened on behalf of the Forest Service. The district court denied Lands Council’s motion for a preliminary injunction. A three-judge panel of this court reversed the district court’s decision and remanded for entry of a preliminary injunction in Lands Council v. McNair, 494 F.3d 771 (9th Cir. 2007). We vacate that decision and affirm the district court. …

The Mission Brush Area (or Project Area) encompasses approximately 31,350 acres and is located in the northeastern portion of the Bonners Ferry Ranger District. Approximately 16,550 acres of the Project Area are National Forest System lands, which are home to a variety of species (or their habitats), including the northern gray wolf, Canada lynx, grizzly bear, black-backed woodpecker, flammulated owl, fisher, western toad, pileated woodpecker, and the white-tailed deer. The Project Area is also home to old-growth trees.

The current structure and composition of the forest in the Project Area differs significantly from the forest’s historic composition. While the Project Area previously consisted of relatively open ponderosa pine and Douglas-fir stands, today it is crowded with stands of shade-tolerant, younger Douglas-firs and other mid-to late-successional species. The suppression of naturally occurring fires, past logging practices, and disease are primarily responsible for this shift in forest composition.

The increased density of trees has proven deleterious to the old-growth trees and the Project Area’s ecology. First, old-growth trees need relatively open conditions to survive and maintain their growth rates. Second, the increased density is causing a decline in the health and vigor of all trees because they must compete for moisture, sunlight, and nutrients, and the densely clustered trees are less tolerant of insects and disease. Third, dense, dry forests are at risk for large, stand-replacing fires, due to the build-up of fuels. Lastly, wildlife species that prefer a relatively open forest composition with more old-growth trees have suffered a decline in habitat.

The Forest Service proposed the Project, in part, to restore the forest to its historic composition, which, in the Forest Service’s assessment, is more likely to be sustainable over time. But this is not the Project’s only objective. According to the Supplemental Final Environmental Impact Statement (SFEIS) that the Forest Service issued in April 2006, the overall “objectives of the project are to begin restoring forest health and wildlife habitat, improv[e] water quality and overall aquatic habitat by reducing sediment and the risk of sediment reaching streams, and provid[e] recreation opportunities that meet the varied desires of the public and the agency while reducing negative effects to the ecosystem.” …

The USFS proposed to restore the forest to its historic composition which consisted of relatively open ponderosa pine and Douglas-fir stands. At SOS Forests we refer to such treatments as restoration forestry and have been among those recommending such for a long time. The purpose is to save old growth (and indeed to save all forest values) from the ravages of catastrophic fire.

Previously the 9th Circuit Court has pooh-poohed restoration forestry, not only in this case but in many others including the Plumas Decision last May [here]. The Lands Council and the Wild West Institute have repeatedly sued to halt forest thinning projects and they thought they would ride the wave again in this case. Indeed, they did manage to wrest a victorious injunction from the three-judge panel, but then the eleven-judges en banc quashed that with vigor.

The eleven judges took exception to the scattershot arguments of the Plaintiffs:

We note, however, that Lands Council’s position as to why a preliminary injunction is necessary has been a constantly moving target. To illustrate, in its opening brief before the district court, Lands Council argued that the Forest Service had violated the NFMA by failing to ensure habitat for old-growth species and viable populations of management indicator species. The only species Lands Council mentioned by name in its motion before the district court were the pileated woodpecker, black-backed woodpecker, grizzly bear, Canada lynx, and gray wolf; in its reply brief before the district court, Lands Council also mentioned the northern goshawk, the fisher, and the western toad.

In its opening brief on appeal, however, Lands Council changed the group of species about which it expressed concern, and argued that the Project will adversely affect the flammulated owl as well as the northern goshawk, the fisher, and the pileated woodpecker. …

In essence, Lands Council asks this court to act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying Forest Plan, and orders the agency to explain every possible scientific uncertainty. As we will explain, this is not a proper role for a federal appellate court. But Lands Council’s arguments illustrate how, in recent years, our environmental jurisprudence has, at times, shifted away from the appropriate standard of review and could be read to suggest that this court should play such a role. …

We need not resolve Lands Council’s eleventh hour suggestion that [Section] 219.19 [implementing the National Forest Management Act] is applicable because the SFEIS and ROD incorporated that regulation. Lands Council has not claimed that the Forest Service violated any specific regulation regarding wildlife viability. In fact, Lands Council’s brief does not cite any regulations to support its argument that the Forest Service violated the NFMA or NEPA. Moreover, the species that Lands Council focuses on, the flammulated owl, is not an MIS [management indicator species] under § 219.19. …

Rather than remand the case back to the District Court and have the USFS do more and more studies as the 9th Court did in the Plumas Decision, this time the Court said enough is enough. The arguments of the Plaintiffs had no merit. Just citing a bunch of laws, and doing so nonspecifically and without justification, is not satisfactory. Furthermore, abandoning our national forests is not what the law requires:

Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands. Indeed, since Congress’ early regulation of the national forests, it has never been the case that “the national forests were . . . to be ’set aside for non-use.’” … For example, in the Organic Administration Act of June 4, 1897, passed less than a decade after Congress began regulating the national forests, Congress identified two purposes for which it would reserve a national forest at that time: “[to] secur[e] favorable conditions of water flows, and to furnish a continuous supply of timber.” Id. at 707-08 (quoting 16 U.S.C. § 475 (1976)).

Congress’ current vision of national forest uses, a broader view than Congress articulated in 1897, is expressed in the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. §§ 528-31, which states that “[i]t is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” Id. § 528. The NFMA references 16 U.S.C. §§ 528-531 and requires that plans developed for units of the National Forest System “provide for multiple use and sustained yield of the products and services obtained therefrom . . . and [must] include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness[.]“

How about that! The 9th Circuit Court cited the Organic Act and the Multiple-Use Sustained Yield Act! For the first time in a long time a federal court has acknowledged that the USFS has a mission, and that their mission is spelled out in law. We need no longer grasp at what the mission might be. We can refer to the law. Some might think that is a plain and common sense thing which has been taken for granted in previous decisions, but actually it is a return to first principles. Instead of creating new law from the bench, the 9th Circuit has held that the law as written prevails.

The 9th Circuit Court also overturned itself regarding other prior decisions:

Lands Council argues that the Forest Service violated the NFMA because it has not demonstrated the reliability of the scientific methodology underlying its analysis of the effect of the Project’s proposed treatment on the flammulated owl and its habitat. Relying primarily on Ecology Center, Lands Council specifically contends that the Forest Service erred by not verifying its prediction regarding the effect of treatment on old-growth species’ habitat with observation or on-the-ground analysis. We disagree, and hereby overrule Ecology Center. …

In Ecology Center, we relied on Lands Council I when we grafted onto our jurisprudence a broad rule that, in effect, requires the Forest Service to always “demonstrate the reliability of its scientific methodology” or the hypotheses underlying the Service’s methodology with “on the ground analysis.” See Ecology Ctr., 430 F.3d at 1064 (quoting Lands Council I, 379 F.3d at 752). …

In Ecology Center, we applied an on-the-ground analysis requirement to our review of the Lolo National Forest Post Burn Project, in which the Forest Service proposed logging in old-growth forest and post-fire habitats. 430 F.3d at 1060. We held that in order to comply with the NFMA, the Forest Service was required to conduct on-the-ground analysis to verify its soil quality analysis and to establish the reliability of its hypothesis that “treating old-growth forest is beneficial to dependent species.” Id. at 1064, 1070-71. …

We made three key errors in Ecology Center. First, we read the holding of Lands Council I too broadly. Second, we created a requirement not found in any relevant statute or regulation. And, third, we defied well-established law concerning the deference we owe to agencies and their methodological choices. Today, we correct those errors. …

The Forest Service is at liberty, of course, to use on-the-ground analysis if it deems it appropriate or necessary, but it is not required to do so. As Judge McKeown explained in her dissent in Ecology Center, “there is no legal basis to conclude that the NFMA requires an on-site analysis where there is a reasonable scientific basis to uphold the legitimacy of modeling. NFMA does not impose this substantive requirement, and it cannot be derived from the procedural parameters of NEPA.” …

Ecology Center illustrates the consequences of failing to grant appropriate deference to an agency. In Ecology Center, we rejected reports establishing that soil analysis was conducted in the project area as “too few and of poor quality.” See 430 F.3d at 1073 (McKeown, J., dissenting). We stated, “[t]he record provides little information that enables us to assess the reliability or significance of these reports; for example, we do not know the qualifications of the person conducting the field review, the methodology utilized, or whether the field observations confirmed or contradicted the Service’s estimates.” Id. at 1070 (majority opinion). Essentially, we assessed the quality and detail of on-site analysis and made “fine-grained judgments of its worth.” Id. at 1077 (McKeown, J., dissenting). It is not our proper role to conduct such an assessment.

Instead, our proper role is simply to ensure that the Forest Service made no clear error of judgment” that would render its action “arbitrary and capricious.”

This new decision is not an open door that allows the USFS to do whatever it wants. When the USFS makes clear errors of judgment and acts in an arbitrary and capricious manner, their actions are still subject to judicial review. For example, the widespread application of WFU (wildland fire use) is based on no studies of any kind, no public input, and is performed arbitrarily and in a capricious manner by USFS officials at the spur of the moment. That kind of thing is still actionable, and legal actions against the USFS for their WFU program are likely in the near future. The Court was crystal clear about that:

We hold that when the Forest Service provides a full and fair discussion of environmental impacts and its EIS includes these necessary components, the Forest Service has taken the requisite “hard look.”

Since no EIS has ever been written for WFU, the USFS has perforce never taken a “hard look” or provided a full and fair discussion regarding the environmental impacts of WFU. When a WFU case comes before the 9th Court, the USFS will not have a leg to stand on.

We reaffirm, however, that the Forest Service must acknowledge and respond to comments by outside parties that raise significant scientific uncertainties and reasonably support that such uncertainties exist. This requirement comports with NEPA’s regulations, as well as with interpretations of NEPA offered by the Supreme Court and other circuits. See, e.g., 40 C.F.R. § 1500.1(b) (providing that the agency “must insure that environmental information is available to public officials and citizens” and this “information must be of high quality” as “[a]ccurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA”) …

The Lands Council introduced in evidence two papers that they purported claimed that thinning in old growth was controversial and fraught with uncertainty. That strategy backfired because the papers said the opposite:

Instead, on the whole, the papers Lands Council cites actually lend support to the Project’s proposed treatment of old-growth habitat.

Though Pfister states that “producing ‘old-growth habitats’ through active management is an untested hypothesis,” he approves of active management in certain circumstances that apply to the Project Area. See R.D. Pfister et al., Contract Review of Old-Growth Management on School Trust Lands: Supplemental Biodiversity Guidance 8/02/00, at 11. Pfister states that “initial restoration cutting treatments appear necessary to restore old-growth stands historically sustained by relatively frequent low- to mixed-intensity fire.” Id. at 15. As explained, the Project Area was historically sustained by such fires. Also relevant to the Project Area, Pfister recommends restoration cutting to “reduce unsustainable post-settlement density increases in [old-growth] pine/fir stands.” Id. …

The Lands Council also tried to insert more obfuscation about restoration forestry, but to no avail:

Lands Council also contends, more generally, that the Forest Service did not cite adequate evidence that the Project will improve the habitat of old-growth species and did not adequately examine adverse impacts from logging within old-growth stands. We disagree.

In the SFEIS, the Forest Service discussed how the treatment proposed as a part of the Project would maintain dry-forest, old-growth stands and cited literature explaining that such treatment improves tree vigor and resistance to insects and disease. The Forest Service also modeled the treatment proposed in the different alternatives it considered, which demonstrated that the Project provided the greatest reduction in the risk of stand-replacing fires, thereby benefitting old-growth habitat.

Also, Lands Council claims to have submitted a comment stating that the Forest Service did not cite “any evidence that its managing for old growth habitat strategy will improve old growth species habitat over the short-term or long-term.” The Forest Service responded, again with citations to literature, by stating that the Project’s proposed treatment would return the Project Area to old-growth and, in turn, improve tree vigor.

Finally, the 9th Court recognized that environmental impact so NOT doing the project are significant:

In Lands Council’s view, the environmental injuries are the loss of trees and risk to the flammulated owl; the other injuries cited by the Forest Service and Intervenors are economic losses—particularly the loss of jobs and harm to the local economy—and the risks from no action, including catastrophic fire, insect infestation, and disease.

Catastrophic fire is visiting California today. In the absence of actions to reduce fuels and restore forests to their historical conditions, those fires are far more destructive than they might otherwise be. The 9th Circuit Court has finally recognized and understood that active management outcomes are better for wildlife, old growth, and other forest values than no action outcomes.

That is a big step forward. Let us hope that the momentum in favor of restoration forestry continues.