Reading this opinion makes me want to give a shout-out to the Deschutes for doing some excellent comprehensive NEPA work on their project.
No matter the height of the bar, with sufficient documentation the FS can leap it. The question is whether investment in documentation at that level is the best use of taxpayers funds.
Here’s an AP story.
What was interesting to me about this one is the mention of the judges’ origin
The majority opinion was written by Justice Milan Smith, the brother of former U.S. Sen. Gordon Smith, R-Ore., and an appointee of President George W. Bush, whose administration tried and failed to scrap the Northwest Forest Plan in order to allow more logging…
Smith had harsh words for the dissent written by Judge Richard Paez, a President Bill Clinton appointee, calling his position “extreme,” and noting that the entire court had decided in 2008 to give deference to the Forest Service on science matters.
Interestingly, the third judge Richard Tallman was also appointed by Clinton (albeit he was an R). I just think that it is interesting that the author of the article chose to bring up the political affiliations of the judges, but only two of three.
And the decision here.
Here’s one of my favorite quotes. But the whole opinion is worth a read. I was impressed by the fact that despite the the NW Forest Plan explicitly allowed this treatment, it required this level of judgment to see the allowed activity come to pass.
Our highest deference is owed to the Forest Service’s technical
analyses and judgments within its area of expertise,
Lands Council, 537 F.3d at 993; nonetheless, our dissenting
colleague would have us halt the Forest Service’s Project
because he does not like the Forest Service’s approach to
solving the problems addressed. We went en banc to foreclose
precisely this type of second-guessing of the Forest Service.
See id. at 988 (noting that “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” “act as a panel of scientists that instructs the Forest
Service” how to perform its expert duties). The Forest Service
thoroughly considered various reasonable approaches to “protect
and enhance conditions” of the LRSs, NWFP S. & G. at
C-11, and offered a plan that does not “run[ ] counter to the
evidence before the agency or is so implausible that it could
be not ascribed to a difference in view or the product of
agency expertise,” Earth Island Inst. v. U.S. Forest Serv., 442
F.3d 1147, 1156 (9th Cir. 2006), abrogated on other grounds
11568 LEAGUE OF WILDERNESS v. ALLEN
by Winter v. Natural Re. Def. Council, Inc, 129 S. Ct. 365
(2008). Far from conflicting with the protection of LSRs,
carefully controlled logging is a tool expressly authorized by
the NWFP for long-term LSR maintenance.
On the other hand, here is what the Sierra Club website says about the same project:
Five Buttes Timber Sale
Five Buttes Logging SurveyFive Buttes Logging Survey, Oct 07
Photo by Marilyn Miller Our initial September 2008 legal victory stopping this large old growth timber sale is being contested during 2009 by a USFS appeal to the Ninth Circuit Court, so we are again in court to protect this area from severe logging harms. Our legal victory has been essential in helping protect Deschutes National Forest spotted owl Late Successional Reserve (LSR) habitat. The timber sale is currently under court-injunction stopping the sale and logging of the remaining five timber sales. For more pictures of destruction caused by logging the first Bass Sale tract of this timber sale, see the Five Buttes Photos page. Visit the Forest Service Five Buttes Project page for the FS documents related to this project.
Volunteer efforts achieving this legal victory have thus far protected old growth ponderosa pine as well as spotted owl mixed conifer old growth forests. Volunteer efforts in 2009 are needed to ensure our legal victory is not overturned and the area logged. Before our legal win, logging devastated one-sixth of the area forests, with the felling and removal of 200 to 400 year old ponderosa pine trees – that had survived centuries of recurrent fires – under the shameful pretense of “fire risk reduction”. The case has set important precedents that help our ongoing efforts to prevent harmful logging in several other area timber sales also.
Many many thanks to our wonderful team of attorneys, and to all the volunteers, staff, and allies who have helped achieve the initial victory – for the wildlife and natural forests. May we again prevail during this 2009 agency legal appeal! See the joint conservation organizations Five Buttes Press Release for a summary of this victory. The Court’s Summary Judgment Opinion provides the details of the decision. The Five Buttes legal appeal is available on the Comments and Appeals page. (3-09-09)
It’s not really about the documentation, is it?