Appeals Court on Sierra Nevada Amendments

Thanks to Matthew Koehler for this one..

FORESTS: Split appeals court orders new environmental study of Sierra Nevada plan

Lawrence Hurley, E&E reporter Published: Friday, February 3, 2012

A federal appeals court today found flaws in a U.S. Forest Service environmental review concerning a management plan for national forests in the Sierra Nevada.

The three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals, splitting 2-1, concluded that the service’s 2004 environmental impact statement had failed to properly analyze how a proposed forest plan would affect fish as required under the National Environmental Policy Act (NEPA).

In dissent, Judge N. Randy Smith said the majority had departed significantly from the circuit’s NEPA precedent.

The court rejected a second claim made by the Pacific Rivers Council that the government had not adequately addressed the impacts on amphibians.

The litigation focuses on an environmental impact statement that suggested changes to a 2001 plan, approved by the Clinton administration in its final weeks, that applied to the nearly 11.5 million acres of national forests in the Sierra Nevada.

The Clinton-era plan was the result of an effort during the 1990s to address certain environmental issues that had arisen, including long-term concerns about sustainability.

When President George W. Bush came into office in 2001, the Forest Service ordered a re-evaluation of the plan.

The 2004 environmental impact statement, which allowed for an increase in logging, was issued over objections from Forest Service staff, who raised questions about the effects on fish. Among other things, the new plan allowed for more construction of logging roads.

Writing for the majority, Judge William Fletcher — a Clinton appointee — said that the agency had failed to give a “hard look” at the environmental impacts on fish that is required by NEPA.

The 2001 study included a 64-page analysis of the impacts on each species of fish, Fletcher noted. In contrast, the 2004 statement “contains no analysis whatsoever of environmental consequences of the 2004 framework for individual species of fish.”

That was despite the fact that the new plan allowed for significantly more timber harvesting “much of it conducted nearer streams,” Fletcher wrote.

The court had no such problem with what Fletcher called the “extensive analysis” of amphibians.

Smith, who was appointed by Bush in 2007, accused the majority of making “fundamental errors” in its analysis by not showing enough deference to the agency and by disregarding circuit precedent stating that an agency’s NEPA analysis is not arbitrary and capricious under the Administrative Procedure Act if it is “performed before a critical commitment of resources occurs.”

The majority also failed to take into account that the 2004 analysis did not need to be as detailed as a site-specific environmental impact statement that is required for individual projects.

The ruling is an “inappropriate and substantial shift in our NEPA jurisprudence,” Smith wrote.

Holly Doremus, an environmental law professor at the University of California, Berkeley, School of Law, said that in her view, Fletcher had the better of the argument.

“I don’t think Smith has it right,” Doremus said. “As Fletcher writes, it has long been the rule that agencies must evaluate the environmental consequences of their actions when it is reasonably possible to do so.”

Click snf to read the ruling.

Note the claims are about NEPA; it might be interesting to compare the level of analysis desired in this programmatic EIS to that in the 2001 Roadless Rule EIS, based on the 10th Circuit Appeals decision on that national level programmatic EIS. If anyone wants to do that, please send what you find and I’ll post.

15 thoughts on “Appeals Court on Sierra Nevada Amendments”

  1. So, what this means is that more mills will close, or be dismantled. Logging levels will return to 1/30th of their former levels and massive acreages will have 20″ diameter limits. Some WUI areas, the diameter limits will be 12 inches, resulting in abandoning essential fire safety projects. Also, the original analysis was fraught with misconceptions, incomplete assessments and ample rhetoric by detailers from other Regions. Local Forests labeled the Plan as a “trainwreck”, and experienced timber workers were lost forever. I had to move to Idaho to get a temporary job, which were eliminated on my home Forest.

    Just for comparison, the timber cut will be reduced to 2.2 million on my old Ranger District. During the bark beetle infestation of the early 90’s, we cut 90 million board feet in the first and second years on the same District. The next two years, we cut another 120 million board feet. We had 100 temporary timber people, 30 archeologists, 20 wildlife biologists and 12 botanists to pave the way to remove the dead trees. Certainly, capping harvests at 2.2 million isn’t a sustainable practice. With the lack of a winter this year, we’ll probably be looking at a return of high levels of bark beetles again. Last winter we had a high level of broken tree tops, which gave a bump to bark beetle populations.

    Back then, foresters were talking about letting it all come crashing down, so the public could see the results of scientific ignorance. Obviously, the preservationists and the Ninth Circuit Court feel that cutting trees with an average diameter of 14.5 inches is too much logging. That thinning projects don’t enhance water quality and don’t protect forests from pests and firestorms. One could say that “the Forest Service didn’t take hard look at the impacts of reduced thinning projects”, as well, in the original plan. Any amount of decrease in water quality and fish habitat, due to the changes in the SNF, would be miniscule in comparison to SPI’s thousands of clearcuts, throughout the Sierra Nevada.

    This truly is a “trainwreck”, and the preservationists can’t look away. The La Times article is filling up with idiotic comments as I type.

  2. Thinking further about this, if the Amendment is flawed, then the original Plan is also flawed, with the cumulative effects of eliminating timber sales “not properly analyzed”. Did they not analyze the probability of mills closing on wildlife, fisheries, water quality, forest health, cultural resources, etc, etc, etc, etc, etc, etc?!? So, I’m wondering if we can’t challenge that analysis within the original plan. If they can litigate against a 10 year old plan, why can’t we litigate against the flaws of a 12 year old plan, reverting back to the previous 90’s era plans within the Sierra Nevada National Forests?

    Oh, and another issue is that the Modoc and the Lassen National Forests aren’t a part of the Sierra Nevada mountain range. So, we can make new plans for those Forests, as well, dropping them from the SNF, altogether.

  3. Being alone with my thoughts for much of the day, driving for a few hours, I’ve been able to sort out some likely scenarios with this. First of all, if the diameter limits are retained for next summer, the Sierra Forest Products mill in southern California will close and liquidate their business. They have been on the edge of solvency for many years now, especially due to fuel prices. They have been a progressive family mill, and the Duysens were good people, as far as mill managers go. They never insulted me when things didn’t go their way. They remembered my name and greeted me kindly in every contact. And they had excellent loggers, who knew the Timber Sale Contract backwards and forwards. They will land on their feet but, many options for the Forest Service will be lost.

    Sierra Pacific Industries, one of America’s largest land owners, will do just fine on their own lands. With diameter limits capped at 20″, they have PLENTY of their own trees in that size class they could cut with little in the way of restrictions and mandates from the Forest Service. They will choose to not bid on Forest Service projects with the new diameter limits. Having a monopoly on milling Federal timber, in some areas, allows them some form of economic wiggle room. They have shown the desire to not bid on Federal projects if the terms don’t meet their bottom line. When this happens, the taxpayers lose AND the forests lose. SPI deals from a position of power right now, despite the slow economy. They can and have shuttered mills, waiting for the upturn to come. They also have a multitude of options to sell prime chunks of their lands to developers, which could be quite profitable. SPI has weaned themselves off of Federal timber, for now, and is currently in a different strategy for success.

    So, it’s looking like it, indeed, will be a “trainwreck” of epic proportions for Sierra Nevada Forests. We cannot assume that the plaintiff would be willing to keep the diameter limits in the Bush Amendment, in ANY conversation. We should be assuming the worst. No timber sales means no timber staffs. Gone. Bye-bye. Adios. See ya. It already happened before, at the end of the Clinton Administration. There were no temporaries and no marking crew for that field season.

    So, yeah, the Ninth Circuit Court is really “sticking it to the Man”. The man with a below water mortgage on a rural cabin. The woman needing a summer job to make it through the next winter. The mother who now has to sign up for food stamps to feed her family. The family whose breadwinner doesn’t get health insurance, retirement benefits, is limited to working less than 6 months each year, is subject to the whims of political partisanship, and is now out of a temporary wage-earning position.

    Reminds of a new take on an old joke. What is the difference between a large pizza and a temporary Forest Service timber employee? ……. A large pizza can feed a family of four!

  4. More of Judge Smith’s response …

    Writing in dissent, Judge N.R. Smith argued that the majority’s opinion “amounts to an inappropriate and substantial shift in our NEPA jurisprudence,” as it hold the Forest Service to a higher standard than is necessary at the present stage.”

    “Under NEPA regulations on tiering and Ninth Circuit precedent, a programmatic EIS requires less detailed analysis than a site-specific EIS,” he wrote. “Therefore, agencies are allowed to defer in-depth analysis until site-specific projects have been identified. Furthermore, agencies are given wide latitude in the tiering methodology they choose to implement, so long as the programmatic EIS allows for informed decision-making. As a result, courts owe a high level of deference to the methodological choices of the agency.”

    Indeed, much of the required protections for the listed Yellow-legged frogs also apply to all the other amphibians throughout the areas. Also of note is that the Plaintiff is based in Oregon (where Californians are despised), and the SNF is obviously in California. What will the plaintiff require for remedy? They claim they don’t want to shut anything down but, I’m not going to believe that. The process is already in motion, shelving all projects which don’t conform with the new diameter limits. In the past, the Ninth Circuit has given complete power to the plaintiffs to select their own form of compromise. A blank check. We’ll see what their intentions are in their “ransom demands”.

  5. Larry/Foto: Chad Hanson and John Muir Project are beyond reproach. You can try and tear ’em down all you want, but it really won’t matter. Dr. Hanson would absolutely pummel you in a debate about forest law, forest ecology and fire science.

    • Well, it is looking like he will achieve his quest for Federal snaglands to be the norm. His irrational focus on needing more and more and more and more snags on public lands is almost accomplished. His desire for the elimination of timber sales is his real goal, and the black-backed woodpecker is his tool, utilizing the loophole of MIS “fuzziness”, and his pals in the Ninth Circuit court. Remember, Hanson is the one who sued and won to stop dead tree harvest along roads. “Beyond reproach” doesn’t apply to this guy. Even the Sierra Club distances themselves from him!!

      I’m going to pay a visit to my local Ranger Districts, which have the funds to do those special CFLR projects. I suspect that their plans will need to be radically-altered to fit the new diameter limits. I don’t doubt that they will find other ways to spend the $$$, though.

    • Also, if the “doctor” designed a “study” to look for live cambium on dead trees, why would he direct his field goobers to sample at a non-standard spot a few feet above the ground?? The funny thing was that they didn’t find ANY live cambium on the many hundreds of trees they poorly sampled. SCIENCE!!!!! (???)

      Even a humble practitioner like me knows that if the cambium at ground level is dead, then everything above that dead cambium is “brain dead”. So, either he was looking for live cambium where he was likely to find it, knowing full well that was the wrong place to sample, or he was ignorant of basic tree physiology.

  6. I found an interesting tidbit in Judge Smith’s dissent. If the Forest Service had provided a “ …roadmap, explaining where and when deferred issues raised by the public and/or regulatory agencies will be addressed”, I wonder just what the Forest Service would have served up? In writing the majority opinion it looked like the judges believed the the agency intended to jump from their very broad LRMP to site specific projects. It seems to me that something in between would have been warranted. No matter. The agency did not provide such a “roadmap.” Here’s the tidbit:

    As the majority observes, it is true that the CEQ’s Task
    Force has expressed concern that the use of a tiering structure
    can result in a “shell game” regarding “when and where
    deferred issues will be addressed.” Maj. Op. 1027-28 (citing
    The Nepa Task Force, Modernizing Nepa Implementation 39
    (2003), available at
    But the majority ignores that, in the same
    paragraph discussing this potential “shell game,” the Task
    Force recommends that the CEQ address the problem by cre-
    ating requirements whereby programmatic documents would
    “provide a roadmap, explaining where and when deferred
    issues raised by the public and/or regulatory agencies will be
    addressed.” This potential regulatory solution of requiring a
    simple roadmap for programmatic analysis is markedly differ-
    ent than the majority’s approach of imposing a novel and
    unclear judicial requirement, destroying an agency’s method-
    ological flexibility and requiring whatever analysis the major-
    ity thinks is “reasonably possible” to be performed “as soon
    as it can reasonably be done.” [p. 1050]

    • Dave- I shouldn’t have thought that a roadmap was necessary as my understanding that the SNF was a plan amendment and it is commonly known how plan decisions relate to project decisions.

      Am I misunderstanding something about this decision?

      • From what I read, the Judges (in the majority opinion) viewed it as a plan revision. Yep, here it is:

        The 2004 Framework is not, in itself, an LRMP; rather, it is an amendment to an LRMP. Some amendments to LRMPs may be so insignificant that they do not require preparation of an EIS. But the 2004 Framework is a fundamental revision of the Sierra Nevada Forest Plan. [p. 1020]

        Also, ‘common knowledge’ of “how plan decisions relate to project decisions” may not hold, particularly when dealing with a programmatic plan for eleven national forests. Many years ago I handed out copies of a law article on CEQ tiering by Peter Hapke (then with OGC) arguing that if a forest plan represented a trunk of a tree and project decisions represented the upper, leafy branches of a tree, then there was likely something that would reside between the two. I’ve always thought that the FS was skating on thin ice trying to tier projects directly from forest plans. So this decision, if it holds up to potential Supreme Court review, may get people to begin rethinking ‘common knowledge.’

  7. I tend to think that protections were built into the site-specific project documents. We’ve been dealing with the yellow-legged frog for quite a while, now. Protections for intermittant and perennial streams drive how both unit and project boundaries are drawn and actually laid out, on the ground. It is far easier to exclude streamcourses, than to try and work around them. Sometimes units get split into 2 or 3 aggregates, due to streams.

    I also tend to think that deferring has another benefit in helping to “fix the goalposts”. It would certainly help if the Forest Service had a “blueprint” to follow, which would satisfy the Ninth Circuit every time. Apparently, that approach didn’t work, in this situation. It appears that timber sales will drop to levels never before seen, once existing contracts close. The logic says that SPI won’t buy 10-19″ dbh trees from the Forest Service. They need the sprinkling of 20-29″ dbh trees to keep their handful of regional big log mills from closing. For the past 10 years, thinning projects have been a success, without impacting the issues that environmentalists care about. There have been several attempts over the years to repeal the SNF Amendment.

    Can anyone guess what the remedy will be? How about a recommendation of what SHOULD happen? The stakes are higher than they have ever been, and people should be aware of what the possible and probable consequences are. I’m sure the same could be said for the Planning Rule, as well. I’m hoping for “transparent discretion”, based on the “best available science”.

  8. If you do not defer, how can you address all the issues that occur from Alturas, to Grass Valley, to Lake Tahoe, to Mariposa, to Lake Isabella? How can you possibly “properly analyze” all of that, in a single Plan? Not that I know much about how these plans are produced but, I wonder if anything in the original plan was also deferred.

  9. In case you wondered if Pacific Rivers was sincere in saying “We don’t want to shut anything down…”, here is what they previously said they want to do.

    They clearly want to go with the fatally-flawed original plan, and that means the probable collapse of the timber sale program in the Sierra Nevada, Lassen and Modoc areas. We’re done, stick a fork, errr, bayonet in us. We’re toast!

  10. So, moving along, how will the Forest Service in Region 5 move forward without the timber industry?!? There is NO chance that SPI will bid on Federal projects that have the new diameter limits. And, in those areas where the diameter limits are 12″ dbh, they will have to be excluded from any Stewardship Plans, due to economics.

    We HAVE to accept this reality, at least for a few years. How long will it take for anything new to come in and “amend” the original SNF?. Will Region 5 divert the timber dollars to Service Contracts? Would anyone bid on those Service Contracts? Certainly, Pacific Rivers will continue to seek control of all salvage logging policy, as well. I think salvage logging will end, joined at the hip to the SNF. Watch as the “trainwreck” unfolds! Marvel at how far the ripples go!


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