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Judge decides pivotal Framework forestry case

Delaine Fragnoli
Managing Editor

    Following up on a tentative ruling he made at the beginning of October, a federal judge has determined, after years of litigation, which forest management rules should be in play on national forests in the Sierra Nevada.
    Not only did he deny injunction requests from environmental groups and the state of California to stop certain timber projects, but he also ordered projects in process or already evaluated and approved by the Forest Service to proceed. The decision affects approximately 75 projects throughout the mountain range.
    The decision, issued Nov. 4, addresses the long-standing question of which set of rules—the 2001 Sierra Nevada Framework or the revised 2004 Framework—should govern forest management in the 11 national forests in the Sierra Nevada.
    District Court Judge Morrison England ruled that although there were some procedural deficiencies, which he called “relatively minor,” in the Bush-era 2004 Framework, they did not mean the Forest Service should revert to the Clinton-era 2001 rules.
    Plaintiffs had asked the court to set aside the 2004 plan, reinstate the 2001 plan and stop projects approved under the 2004 rules.
    Instead, England ordered the Forest Service to address the procedural deficiencies through a new supplemental environmental impact process, to be completed by May 2010.  
    England also ordered the agency to look more closely at project alternatives, including a noncommercial funding alternative, for all new fuel-reduction projects. Plaintiff Sierra Forest Legacy has questioned the Forest Service’s ability to make appropriate management decisions when faced with the profit motive of commercial timber receipts.
    At the heart of the framework dispute are differences in timber practices, specifically the size of trees that can be logged and the amount of canopy cover that must be retained.
    The 2001 framework established more rigorous standards, generally prohibiting the removal of trees over 12 inches in diameter or logging that would reduce canopy cover by more than 10 percent in certain areas—both measures aimed at protecting old-growth species like the spotted owl.
    In other areas, the 2001 document prohibited the logging of trees over 20 inches in diameter. Only in certain zones could trees as large as 30 inches be taken.
    Subsequent Forest Service review of the 2001 Framework regulations concluded that they thwarted fuel-reduction goals and interfered with the agency’s responsibilities under the Herger-Feinstein Quincy Library Group Forest Recovery Act.
    The multiple fuel-reduction approaches permitted under the 2004 revision allow for removal of more trees in the 20- to 30-inch range and greater reduction of canopy cover.
    The difference in the tree size has a crucial influence on the economics of a project. The 20- to 30-inch trees are what generate income to help pay for the fuel-reduction work. That balance is a key element of the Herger Feinstein Quincy Library Group legislation.
    England noted in this latest opinion, “Only the 2004 Framework would fully implement the QLG Pilot Project and allow achievement of that experiment in forest management, mandated by Congress, which aims to support local economies.”
    England argued the public interest was better served by the “wide array of multiple-use benefits under the 2004 Framework, instead of the short-term preservation emphasized in the 2001 Framework.”
    England stayed his decision for 30 days to give the parties one last chance to come to a voluntary agreement before his order went into effect.
    Responses to the decision highlighted the disparate views of the interested parties.
    A spokeswoman said the Plumas National Forest was “encouraged” by the decision.
    Craig Thomas of Sierra Forest Legacy, one of the plaintiffs, said he was “not particularly depressed” by the decision. “I knew he (England) would rule this way.”
    Historically, England has more often sided with the Forest Service, while the Ninth Circuit Court of Appeals has more often found in SFL’s favor.
    Thomas said the latest decision addressed just one issue, the modeling used by the Forest Service in its environmental review for the 2004 framework. He said his group has eight other claims that the appellate court has not heard, and he would welcome a full court review of those. (A three-judge panel of the court heard earlier appeals.)
    Thomas said his group had not decided yet whether it would appeal the decision. “We’re just starting to grapple with it.”
    He was not particularly optimistic something could be worked out in the next 30 days when the same parties have been in litigation with one another for years.
    Thomas also questioned whether the Forest Service could get the new supplemental EIS done by the May deadline.
    John Sheehan of the Quincy Library Group had exactly the opposite response. He said it would be “an easy task” for the agency to meet the deadline. “I could give you the financial analysis right now.”
    He shared Thomas’s ambivalence about the 30-day stay. “We’ve had months of facilitated negotiations that didn’t result in collaboration.”
    Sheehan said he anticipated an appeal by SFL. He noted the group’s attorney indicated at the Oct. 1 hearing that the group would likely appeal.
    As far as SFL having additional claims that the appeals court has not heard, Sheehan said, “I don’t think any of the spaghetti they’ve thrown against the wall has stuck.”

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