This week, in a 3-0 opinion, the Ninth Circuit Court of Appeals ruled that the Forest Service’s use of a deer habitat suitability model was “arbitrary and capricious” because key numbers in the model were altered without any rational explanation. The case is a testament to the persistence of Greenpeace’s Larry Edwards, a Sitka resident, the advocacy skills of co-plaintiff Cascadia Wildlands Project (one of my favorite grassroots outfits for its combination of smarts and passion) and their legal counsel’s (Chris Winter of Crag Law Center) talents.
It is the back story that it is especially poignant to me.
That story begins six years ago, when Tongass wildlife biologist Glen Ith emailed me aerial photographs taken by an Alaska Department of Fish and Game employee. The photos showed on-going logging road construction to access the Overlook project area. Overlook was an old-growth forest timber sale that is prime winter range habitat for Sitka black tail deer. What caught Glen’s eye was that the Forest Service had not yet completed the Overlook NEPA analysis, but had already started building the roads. Turns out that there were several million dollars that Senator Ted Stevens (R-AK) had earmarked for Tongass road work; money that if not spent by fiscal year’s end would be lost to the Forest Service, and incur Stevens’ displeasure. Overlook’s NEPA documents were behind schedule, but that didn’t stop the road engineers from moving forward. [NB: The conspiracy to spend the money was broader than the engineers alone, including district and forest-level planning staff, line officers, and contracting officials.]
Glen and FSEEE filed suit, challenging the Overlook and Traitors Cove (another site of illegal “advance” work) road building. It was the first-ever environmental lawsuit by a Forest Service employee. We won. The Forest Service retaliated, suspended Glen from work, and eliminated his job. Several days thereafter, Glen passed away from sudden heart failure.
Early on in our roads litigation, Glen told me that the Tongass was using irrational numbers in its deer habitat capability model. He wanted to cure the errors. We agreed the on-going roads case wasn’t the place to do so, primarily because the issue was not ripe as the timber sale environmental reviews were not complete. Glen said he would try to work internally to fix the modeling problem, but he wasn’t confident he would be successful. He believed the errors were intentionally designed to allow the Forest Service to defend logging high-value old-growth forest habitat.
Glen assiduously documented the problems with the deer habitat model; documents that Greenpeace’s Larry Edwards later found in the administrative records. Glen also administratively appealed the Scott Peak sale on these grounds.
Larry Edwards dedicated this week’s court victory to Glen’s memory.