Jun 20: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-17565.Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that, “This court’s opinion filed on February 3, 2012, and reported at 668 F.3d 609 (9th Cir. 2012), is withdrawn, and is replaced by the attached Opinion and Dissent. . . The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote onwhether to rehear the matter en banc. . . The petition for rehearing and the petition for rehearing en banc, filed on April 18, 2012, are denied.”
According to the Appeals Court, Plaintiff-Appellant Pacific Rivers Council (Pacific Rivers) brought suit in Federal district court challenging the 2004 Framework for the Sierra Nevada Mountains (the Sierras) as inconsistent with the National Environmental Protection Act (NEPA) and the Administrative Procedure Act (APA). The Appeals Court said, “The gravamen of Pacific Rivers’ complaint is that the 2004 EIS does not sufficiently analyze the environmental consequences of the 2004 Framework for fish and amphibians.” On cross-motions for summary judgment, the district court granted summary judgment to the Forest Service.The Appeals Court rules, “Pacific Rivers timely appealed the grant of summary judgment. For the reasons that follow, we conclude that the Forest Service’s analysis of fish in the 2004 EIS does not comply with NEPA. However, we conclude that the Forest Service’s analysis of amphibians does comply with NEPA. We therefore reverse in part, affirm in part, and remand to the district court.”In a lengthy dissenting opinion, one Justice concludes, “. . .the majority makes two fundamental errors: First, it reinvents the arbitrary and capricious standard of review, transforming it from an appropriately deferential standard to one freely allowing courts to substitute their judgments for that of the agency. . . Second, the majority ignores the tiering framework created by NEPA. Because the majority ignores such framework, it fails to differentiate between a site-specific environmental impact statement (EIS) and a programmatic EIS that focuses on high-level policy decisions. . .”
It appears that an impossibly comprehensive study of the entire Sierra Nevada “watershed” will not be required for the amended Sierra Nevada Framework plan. If the Forest Service loses this case, it would have to limit the harvest of trees within thinning projects to 12″ dbh in some areas, and to 20″ dbh in the rest of the Sierra Nevada. This decision means that the Forest Service has followed NEPA law since the amendment has been in force. If the Pacific Rivers Council had prevailed, we would be seeing a complete failure of the Forest Service’s timber management program throughout the Sierra Nevada. Sierra Pacific Industries has plenty of their own lands, stocked with plenty of trees in the 12″-20″ dbh size. There would be no need for SPI to bid on the thinning projects that would be offered by the Forest Service under the old diameter limits. The small amount of harvested trees between 20″ and 29.9″ dbh are what pays for the biomass removal needed for true restoration. When thinning projects reduce wildfire threats, and actual wildfire impacts, water quality and fish habitats are improved.