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Ruling to halt old growth reserve logging is upheld
By By Jeff Barnard,
AP Environmental Writer
Jul 25, 2007
GRANTS
PASS - Bush administration efforts to boost salvage logging after
wildfires suffered a loss Tuesday when a federal appeals court upheld a
ruling that had stopped harvest of burned trees in an old growth forest
reserve on federal lands in Southern Oregon.
The 2-1 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge Ann Aiken in Eugene that stopped the U.S. Bureau of Land Management from logging 23.4 million board feet of timber from 961 acres burned by the Timbered Rock fire outside Medford in 2002.
The appeals court found that BLM's plan to harvest dead and dying trees violated its own management plans and a mandate to maintain and preserve old growth forest ecosystems, including trees killed by fire, under the Northwest Forest Plan, which was adopted in 1994 to protect habitat for northern spotted owls, salmon, and other species.
The Northwest Forest Plan cut timber production by more than 80 percent on federal lands in Washington, Oregon and California. In an agreement to settle lawsuits brought by the timber industry, the Bush administration has been trying to boost timber production under the plan, but court rulings have stymied many of the efforts.
George Sexton, conservation director for the Klamath-Siskiyou Wildlands Center, one of the conservation groups that won the injunction stopping the salvage logging, said BLM's project was part of a pattern of efforts to cut corners politically, legally and ecologically to promote logging in old growth forests.
However, the appeals court ruling “resets the bar for post-fire logging in old growth reserves back to what the authors of the Northwest Forest Plan intended, particularly for BLM lands,” he added.
The court also found that BLM violated the National Environmental Policy Act by failing to adequately analyze the cumulative environmental damage from scraping 33 miles of fire line and dropping 40,000 gallons of chemical retardant on the area to put out the fire, and the harvest of 6,000 acres of dead trees on private timberlands owned by Boise Corp.
The Northwest Forest Plan “clearly states that salvaging should be minimal, that environmental concerns ought to take priority over potential commercial benefits, and that large (dead trees) should be retained so as to ensure the development and preservation of (old growth) habitat,” Judge Dorothy W. Nelson wrote for the majority.
BLM Oregon spokeswoman Jody Weil said the agency had not reviewed the ruling and could not immediately comment.
Attorney Scott W. Horngren, who represented timber industry interveners in the case, noted that a different U.S. District Court judge and a different three-judge panel of the 9th Circuit had upheld a very similar plan by the U.S. Forest Service for salvage logging on the 2002 Biscuit fire.
“They are second-guessing agency actions and rolling up their sleeves and, as the dissent says, becoming the foresters,” Horngren said of the appeals court.
Horngren said the U.S. Supreme Court has ruled in the past that courts should defer to the judgment of government agencies when it comes to scientific questions about management.
“There is one telling quote from the Supreme Court involving (the National Environmental Policy Act) from the '70s that says when you are at the frontiers of science, that's when court deference should be at its maximum to the agency,” Horngren said. “This, in our view, certainly doesn't work with that Supreme Court decision.”
Horngren noted that the salvage logging would have covered less than 10 percent of the 12,000 acres burned by the Timbered Rock fire.
He added that the ruling incorrectly cited a previous 9th Circuit ruling that had been overturned by the U.S. Supreme Court, which may prompt a review by the full 9th Circuit.
The 2-1 ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a ruling by U.S. District Judge Ann Aiken in Eugene that stopped the U.S. Bureau of Land Management from logging 23.4 million board feet of timber from 961 acres burned by the Timbered Rock fire outside Medford in 2002.
The appeals court found that BLM's plan to harvest dead and dying trees violated its own management plans and a mandate to maintain and preserve old growth forest ecosystems, including trees killed by fire, under the Northwest Forest Plan, which was adopted in 1994 to protect habitat for northern spotted owls, salmon, and other species.
The Northwest Forest Plan cut timber production by more than 80 percent on federal lands in Washington, Oregon and California. In an agreement to settle lawsuits brought by the timber industry, the Bush administration has been trying to boost timber production under the plan, but court rulings have stymied many of the efforts.
George Sexton, conservation director for the Klamath-Siskiyou Wildlands Center, one of the conservation groups that won the injunction stopping the salvage logging, said BLM's project was part of a pattern of efforts to cut corners politically, legally and ecologically to promote logging in old growth forests.
However, the appeals court ruling “resets the bar for post-fire logging in old growth reserves back to what the authors of the Northwest Forest Plan intended, particularly for BLM lands,” he added.
The court also found that BLM violated the National Environmental Policy Act by failing to adequately analyze the cumulative environmental damage from scraping 33 miles of fire line and dropping 40,000 gallons of chemical retardant on the area to put out the fire, and the harvest of 6,000 acres of dead trees on private timberlands owned by Boise Corp.
The Northwest Forest Plan “clearly states that salvaging should be minimal, that environmental concerns ought to take priority over potential commercial benefits, and that large (dead trees) should be retained so as to ensure the development and preservation of (old growth) habitat,” Judge Dorothy W. Nelson wrote for the majority.
BLM Oregon spokeswoman Jody Weil said the agency had not reviewed the ruling and could not immediately comment.
Attorney Scott W. Horngren, who represented timber industry interveners in the case, noted that a different U.S. District Court judge and a different three-judge panel of the 9th Circuit had upheld a very similar plan by the U.S. Forest Service for salvage logging on the 2002 Biscuit fire.
“They are second-guessing agency actions and rolling up their sleeves and, as the dissent says, becoming the foresters,” Horngren said of the appeals court.
Horngren said the U.S. Supreme Court has ruled in the past that courts should defer to the judgment of government agencies when it comes to scientific questions about management.
“There is one telling quote from the Supreme Court involving (the National Environmental Policy Act) from the '70s that says when you are at the frontiers of science, that's when court deference should be at its maximum to the agency,” Horngren said. “This, in our view, certainly doesn't work with that Supreme Court decision.”
Horngren noted that the salvage logging would have covered less than 10 percent of the 12,000 acres burned by the Timbered Rock fire.
He added that the ruling incorrectly cited a previous 9th Circuit ruling that had been overturned by the U.S. Supreme Court, which may prompt a review by the full 9th Circuit.