SacBee on Pacific Rivers Appeal

You know, I don’t like to unnecessarily partisanize disputes, but I wonder if this additional information provided by the reporter adds value to the story. Compare this story to the E&E news story here. In that story, the administration that appointed only one of the four involved judges is mentioned.

Federal appellate court rejects Forest Service plan for Sierra

http://www.sacbee.com/2012/02/05/4240045/federal-appellate-court-rejects.html

By Denny Walsh
dwalsh@sacbee.com
Published: Sunday, Feb. 5, 2012 – 12:00 am | Page 1B

A federal appellate court has struck down as unlawful a 2004 management plan for Sierra Nevada national forests formulated by George W. Bush’s administration, saying it lacks a required analysis of how fish will fare under the plan.
A split three-judge panel of the 9th U.S. Circuit Court of Appeals held the Bush plan up next to a plan put in place in the dying days of Bill Clinton’s administration, pointing out that the earlier plan includes an insightful and viable look at how fish will be affected by its provisions.
The Bush administration took office in January 2001 and immediately began work on its revised plan.
Friday’s circuit opinion reverses U.S. District Judge Morrison C. England Jr. of Sacramento, who sided with the U.S. Forest Service in a 2008 ruling in which he rejected a challenge by the Pacific Rivers Council to the 2004 management plan’s lack of impact analysis regarding fish. The council, an advocacy group that champions aquatic life, contends the 2004 plan is inconsistent with the National Environmental Protection Act and the Administrative Procedure Act.
The panel agreed with the council on fish, but found that the 2004 analysis of effects on amphibians, which the council had also challenged, satisfied the requirements of the acts.
Environmental advocates have challenged a number of aspects of the 2004 plan revision in a series of lawsuits before England, who has consistently ruled in favor of the Forest Service.
The 11 national forests of the Sierra Nevada are home to at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded. “The aquatic/riparian systems are the most altered and impaired habitats in the Sierra,” the study declared.
In 2001, the Forest Service issued a final environmental impact statement (EIS) recommending amendments to the Sierra Nevada Forest Plan that were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. The Clinton administration adopted a modified version of the statement, called the 2001 Framework.
Backed by a new EIS, the Bush administration’s 2004 Framework contains significant changes to the earlier management plan.
Forming the circuit panel majority are Judges Stephen Reinhardt, a liberal appointee of then-President Jimmy Carter, and William A. Fletcher, a liberal appointed by Clinton. Dissenting is Judge N. Randy Smith, a conservative appointed by Bush. England is also a conservative appointed by Bush.
Compared to its predecessor, the 2004 framework allows:
• The harvesting of substantially more timber and bigger trees on more acreage, some near streams and lakes.
• Substantially more construction of new, and reconstruction of existing, logging roads, some near streams.
• Fewer grazing restrictions, some near streams and lakes.
“The 2004 EIS contains no analysis of environmental consequences of these changes on individual fish species in the Sierra,” wrote Fletcher for the majority, contrasting that with more than 100 pages of such analysis in the 2001 EIS. The earlier EIS also included particular environmental risks for individual species of fish.
“There is no explanation in the 2004 EIS of why it was not reasonably possible to provide any analysis whatsoever of environmental consequence for individual species of fish, when an extensive analysis had been provided in the 2001 EIS,” Fletcher wrote. “The failure of the 2004 EIS to provide any such analysis is a failure to comply with the ‘hard look’ requirement of NEPA.”
By contrast, he wrote, “The 2004 EIS contains an extensive analysis of individual amphibians.”
In his dissent, Smith maintains that his colleagues are guilty of “two fundamental errors.”
First, he wrote, by ruling that the Forest Service must make an analysis “as soon as it was ‘reasonably possible’ to do so,” the majority “disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by (NEPA) … is not arbitrary and capricious if it is performed before” a commitment to a specific forest project, such as logging or road construction.
“The majority instead creates an unclear rule based on ‘reasonable possibility’ that imposes additional procedures not required by NEPA on the Forest Service.”
Such a rule leaves the agency uncertain as to its legal obligations, invites judicial meddling in the agency’s decision making and invites even more litigation than is already aimed at the agency, Smith declared.
Second, he wrote, “the majority ignores the tiering … created by NEPA.” An EIS created for a framework “focuses on high-level policy decisions (and) requires less detailed analysis than a site-specific EIS.”
“Therefore, agencies are allowed to defer in-depth analysis until site specific projects have been identified.”
Courts “owe a high level of deference to the methodological choices of the agency,” Smith wrote.

8 Comments

  1. The Regional Forester at the time was warned by key staff that this would be the likely outcome of implementing a new Sierra Nevada plan. The punishment for pursuing this sort of “fierce conversation” was reassignment of the troublemaker. I’m not surprised at the court’s decision, just surprised that it took so long.

  2. Of course, there is ZERO mention of any incidences of “damage to riparian areas”, with more than 5 years worth of thinning projects, throughout the Sierra Nevada range. If there were actual damage occurring, you would think it would have been quite easy to get a permanent injunction, until litigation is complete. Below are the volume numbers for one of my old Ranger Districts in the Sierra Nevada.

    An example of the timber volumes under historical “regimes”.

    ASQ’s
    Bush I – 65 million board feet
    Bush Ia – 45 million board feet, due to “New Perspectives” program
    Clinton – 2.2 million board feet
    Bush II – 5.5 million board feet

    Actual volumes
    Salvage volume 1989 – 90 million board feet
    Salvage volume 1990 – 90 million board feet
    Salvage volume 1991 – 55 million board feet
    Salvage volume 1992 – 65 million board feet
    Green timber sold 1989-1993 0.08 million board feet

    These figures are from the same Ranger District.

    Pacific Rivers doesn’t look like they will listen to any deals offered. They almost have everything they want, short of a more restrictive plan. Yes, they have gone on record saying the Clinton plan isn’t as strong as they would like.

    • Jim- I don’t understand, you mean that any new Sierra Plan, no matter how good or reflective of current realities and science (more than something done in 2001) or do you mean this specific 2004 plan?

    • Oops, there is another ASQ in there I forget about

      CASPO guidelines 1993 – 15 million board feet

      Ironically, much of the WUI on this Ranger District is also within “Owl Circles”. The SNF had planned for diameter limits of 12″ dbh in WUI projects. Clearly, these projects will become service contracts, with SPI not getting involved. Within the “Owl Circles”, the nest stands get about 5000 acres of protection, and that squelches projects in the WUI. I hear spotted owls here at home a few times a year.

  3. I mean that the potential litigants knew that the rationale for a new plan was bogus. There really wasn’t any new science and there hadn’t been any genuine efforts to implement it. The new plan was needed to reverse restrictions on logging and grazing that a new Administration did not support.

    • I don’t understand why you would think that the viewpoint of the new administration was “bogus”. It’s very confusing to me because when we sat in the 10th Circuit Appeals hearing for the 2001 Roadless Rule, as in my post here, quoted below (I italicized the relevant sentence):

      Only some topics were relevant to our discussions of the planning rule. One was the degree to which the concerns of the public during commenting need to be taken into account, and to what extent decisions can be predetermined in advance. I think it was Judge Anderson who said ”Presidents are entitled to say let’s do this; that’s why they’re elected.” And there was also some discussion about inclinations, predispositions, predeterminations, and I think I also heard predestination (??).

      One of the points made by the Wyoming attorney was that the analysis in the 2001 was not site-specific enough to be meaningful . I think it was something along the lines of “NEPA does not give you a pass because it’s hard to do the work” quoting a 9th Circuit case on that. Just another illustration of the problems of programmatic EIS s and the question of “how specific does it need to be to allow site specific decisions without site specific analysis.”

      I also heard echoes of our ongoing conversation on local places- how can you know about what is best for a creek and a landscape if you are dealing with millions of acres in a short period of time? But whether good land management decisions for specific units can be made nationally is not fundamentally a legal question.

      There are a couple of cultural differences worthy of note between the courtroom level and the kind of collaboration we work with day to day. The first is that it is more adversarial. People win and they lose. The judge doesn’t say “what can we walk out of here today and live with?”. The second is that people care about trees and fire protection and wildlife, but the discourse is mostly about documents and analyses and relationship to statutes- not what we can agree on to encourage productive and enjoyable harmony between man and his environment (NEPA section 101). When the judge and counsel talk about say, bark beetles, fuel treatments or coal mining, they don’t seem to be clear on the facts (or counsel is intentionally unclear to slide by on their point), and certainly the structure of the process at this point does not allow for further fact-finding (15 minutes per side, in this case).

      Third, is that compared to public comment and even discourse on this blog, only some people are allowed to give their opinions. So, for example, science is filtered through the legal profession, e.g., ” the 2001 rule was based on science.”

      At the end of the day, I was feeling like perhaps this was not the best place for public land conflicts if it could be avoided. The question is whether it could be. I remembered that some states, for divorces, require mediation before they are allowed to go to court.

      I also am thinking that the SNF is a good illustration of more of the problems with settling disputes in court, as opposed to other ways. For example, if this amendment has been in force since 2004 (8 years) do we have any evidence on negative impact to fishes? wouldn’t that be a more productive discussion than what they analyzed or did not analyze in 2004 (or 2001)? I think Foto is on to something here.

      If I were going to design a process, I would propose we get a team instead, composed of people from both “sides” to review relevant information about 1) how many sales there were and where, and the impacts, and 2) what we have learned about the environmental impacts since (actually 2001) that might inform a future effort. This discussion should all be done in a public venue on the internet, so that people actually involved in laying out the sales and cutting them could also participate. At the end of the decision, groups would have to say what they disagree with in the decision, why, and if it can be something that could be monitored so that 10 years down the road we would know what the impacts actually were. Groups that were not clear about their “real” as opposed to “documentation” concerns would not have standing to sue. Then they would go to mediation, with the discussions recorded for future legal cases.

    • Some of the fatal flaws of the original plan were too much dependence on prescribed fires, without the ability to thin those stands to safe levels. Another problem with prescribed fires is the lack of enough burn days when fires would be in prescription. Another flaw was that the timber sale program would be expected to collapse, and very little thinning would get accomplished, due to the high costs of service contracts. Yes, the Amendment was used to bolster timber sales but, if it were strictly motivated by timber volumes and conspiracy theories, wouldn’t the allowable cut be raised higher than from 2.2 million board feet to 5.5 million board feet, on my old Ranger District? Both the timber and fire management shops had serious concerns about the Clinton Plan, which was focused more on “environmental legacy”, rather than scientific, political and economic reality. That is why the Ranger District jettisoned their timber crews in advance of the Clinton “trainwreck”. From 2001 to 2004, work in the woods dropped to a crawl.

      So, it is looking like we will experience that again, and I think it would benefit SPI to go public in announcing that this court decision will close most of their mills, and they will not buy Federal timber until the gridlock is broken. Put it out there, upfront and personal. You can bet that SPI has already been talking to Congressmen, who have a sympathetic ear towards fixing this flawed reality. I wonder if SPI couldn’t litigate the Clinton plan, on its flaws and wildfire impacts on existing laws like the Clean Air and Clean Water Acts. Besides, the rationale for the Clinton plan could also be interpreted as “bogus”, as well, being submitted very late in his Administration. It should be quite easy to find something in there which “wasn’t properly analyzed”.

  4. Sharon says, “…this is a good illustration of the problems with settling disputes in court, as opposed to other ways.” Ok. However despite that fact that courts are slow, and procedurally cumbersome, at least there are results with teeth–government agencies, corporations, other groups, etc. have to pay attention.

    You note “…discussion should all be done in a public venue on the internet, so that people actually involved in laying out the sales and cutting them could also participate. At the end of the decision, groups would have to say what they disagree with in the decision, why, and if it can be something that could be monitored so that 10 years down the road we would know what the impacts actually were.” I agree strongly. That’s why I petitioned the FS to open up internet-based collaborative fora in 2006, 2007, and again last year when they began their very tightly controlled workup of the 2012 planning rule. But they didn’t listen. Mostly they don’t listen best I can tell, and they certainly haven’t warmed to the idea of blogs/wikis/social media.

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