Angora Project Appeal Denied

Here’s a photo of a tour from 2008 of the area.

We have discussed the Angora project before on this blog.

Here’s the link to a Sacramento Bee article.

Here’s an excerpt:

In a published opinion issued Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the Lake Tahoe Forest Plan did not require the Forest Service to demonstrate that the Angora project would maintain viable population levels of certain species, including the black-backed woodpecker.
The panel concluded that the Forest Service ensured the scientific integrity of the final environmental assessment, properly responded to dissenting scientific opinion, properly considered proposed alternatives to the environmental assessment, and took the requisite “hard look” at the impacts of the project.
Thus, the panel found, the Forest Service’s analysis of the environmental effects “was not arbitrary and capricious,” as that phrase is defined in federal law.
The opinion was authored by Circuit Judge N. Randy Smith, with the concurrences of Circuit Judges Stephen Reinhardt and Richard R. Clifton.
The Angora fire, determined to be human-caused, destroyed 254 homes and scorched more than 3,100 acres, including approximately 2,700 acres of national forest land.
In 2010, the Forest Service approved the restoration project to “reduce the amount of dead and downed trees” in order “to reduce long-term fuel (accumulation) to reduce future fire severity.”
The thinning project called for the removal of both live and dead trees. Twelve zones were “retained as habitat for a diverse set of species,” including the black-backed woodpecker. Most of the trees “will be hauled … for disposal at … biomass energy facilities.”
The Forest Service was free to proceed with the project once Burrell ruled. Both he and the circuit panel denied the environmentalists’ requests for an injunction halting implementation of the project pending appeal.

We have had numerous posts on this appeal and litigation. You can search on “Angora” in the search box to review the history.

We started with this post which I called “Much Ado about relatively little”. Check the comments out for a conversation between Dave Iverson and me on different aspects of the project and the assertions made.

So here we are, years and hundreds of thousands of dollars later. I wonder about the quantity of taxpayer funds have been spent on the original litigation and the appeal of the original decision, by the unit, the regional office, the OGC and by DOJ? It might be interesting to take a few cases at the beginning of litigation and just keep track of the tasks involved and who gets paid what, just so the public has a better idea of the investments they are making. Hopefully this is the end of the story for this 1411 acre project..

Here are the details as I found several documents ago.. those knowledgeable please let me know if this has changed.

Alternative 2, as modified, includes the following activities:
Fuel removal of standing dead and downed wood and thinning of live trees on
approximately 1,411 acres.
Within the 1,411 acres:
o 6 acres of conifer removal for aspen stand enhancement;
o approximately 77 acres of treatment proposed in wildlife snag zones (39 acres in
SEZ; 38 ac Subdivision);
o 13 acres of conifer removal for meadow restoration/aspen enhancement in the
Gardner Mountain meadow.

A ground-based logging system on up to 964 acres (including 13 acres of Cut-to-Length
mechanical thinning in Gardner Mountain Meadow) located in areas with slopes under
New construction of new roads (up to 7.7 miles) and landings to facilitate fuel removal.
Reconstruction or opening of existing roads, trails, and landings to facilitate fuel removal.
Decommissioning/restoring 1.9 miles of road and 16.7 miles of trail.
Existing and new landings and staging areas would be utilized to facilitate removal of
fuels for ground-based operations.
Reconstruction of 1,200 feet of Angora Creek.
Treatment of the following noxious weeds: bull thistle, field bindweed, St. John‘s wort,
tall whitetop, and oxeye daisy.

5 thoughts on “Angora Project Appeal Denied”

  1. Lemme guess. The infamous three judge panel of the 9th circus must own a summer home in Tahoe.Just another step towards pragmatic moderate enviros becoming more and more sick of the radicals. Now, if the forest service could tell us how much this EIS cost to prepare.

    • Derek,

      I encourage you to do a 30 second google search on the judges before tagging them all as enviros. And why would you call it the 9th circus? Check out the Charter for Compassion to the right. Seems like we just had a conversation on this topic a few weeks ago.

  2. I would urge caution when comparing the acreage of timber sales to the cost of litigation. A relatively small project can have huge impacts outside of the area in question. Example: Groups challenge a forest plan’s methodology for determining elk hiding cover on a 100 acre timber sale. The court determines the methodology is invalid. Result: 100 acre timber sale is enjoined and all future timber sales can no longer rely on the invalidated methodology.

  3. Thanks, John, that’s a good point. But as you know, you are required to challenge forest plan issues on specific projects. So I can see that if you are seeking to change a plan requirement, that you need to go after a timber sale.

    However, not all project appeals challenge forest plan requirements. It appears to this observer that appellants and plaintiffs who fundamentally don’t like a project, throw everything they can think of and see what sticks. So from my perspective, sometimes it’s hard to tell what the issue really is. That’s why I think the objection process is going to make a difference in the quality of the conversation.

    Court seems like an odd place to have a discussion about elk hiding cover methodologies.. it seems pretty technical. The kind of discussion that should take place in full public view, with us all able to hear both sides.

    By the way, I don’t know where you are from, but perhaps they can learn something about increasing elk populations from Colorado.


    Without a doubt, Colorado is Disneyland for elk fanatics. According to Todd Malmsbury, chief of the information agency for the Colorado Division of Wildlife, the state had a post-hunt statewide population of nearly 300,000 animals in 2002. There are so many elk in Colorado that many areas have more elk than state biologists’ long-term objectives call for. This is in a state where a century ago the population was less than 2,000 animals.

    I found this in Outdoor Life here, but couldn’t find the date of the article.
    I couldn’t easily find the current number on the Colorado Parks and Wildlife website.

    • Sharon,

      I can’t speak for everyone, but I can tell you from personal experience that when I litigate a case I don’t throw everything I can think of at the court. I look at an issue and ask myself what the agency’s response is going to be. If I can’t think of anything, I’ll do more research on the issue before deciding whether to include it. The kitchen sink approach doesn’t work very well from a pragmatic stand point. Many law outfits (mine included) take cases on a reduced or no fee basis. We only get paid if we win. With that in mind, I don’t include a bunch of half-baked ideas. And even if you win there is no guarantee you’ll get paid under EAJA because of the “substantial justification” inquiry. I think that might be why something like only 1% of all appeals are litigated. Granted, sometimes our lawsuits include seemingly disparate claims (alternatives, elk hiding cover, goshawk claims). But just because you include unrelated claims doesn’t mean you’re throwing in the kitchen sink. I can see how it might appear that way though.

      I think you raised a good point that not all small site-specific projects challenge forest plans. Thus, the point about the cost of litigation is well-taken. I guess I would counter that in this case, the tiny lawsuit still had big consequences from a legal perspective. Without having read the opinion, the news article you just posted makes it sound like the opinion further fleshes out that the CEQ regs may not apply to EAs. That is a pretty big deal. The government might think it is money well spent.

      Perhaps the courts need to do a better job of posting the briefs and oral arguments on line for the public to view. The arguments are always open to the public. The Ninth Circuit posts audio and sometimes video of arguments. I bet you can find the Earth Island audio pretty easily on the Ninth’s website.


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