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Forest Service wins Moonlight fire salvage logging case

Delaine Fragnoli
Managing Editor

A federal judge has ruled decisively in favor of the Plumas National Forest in a legal dispute over how the agency handled post-fire logging in the wake of the 2007 Moonlight Fire, which burned 66,000 acres.

In a decision dated March 28, U.S. District Judge Morrison C. England Jr. found for the forest on every point. He said the PNF had taken the requisite “hard look” at scientific data and had “directly and deliberately” responded to alternative scientific opinions. It is not the court’s role to referee a “battle of the experts,” England wrote, and cited recent higher-court decisions that direct the court to defer to the agency’s expertise.

“What the plaintiffs were trying to do is set a very high bar, to make it difficult for us to do post-fire work,” said Nancy Francine, ecosystems staff officer for the Plumas National Forest.

“The thoroughness of our environmental review was validated,” Francine said. “We can see the kinds of things judges like to see in a NEPA (National Environmental Policy Act) document.

“As we move into fire season, it’s helpful to know that the court said we did a good job in managing this huge post-fire environment,” Francine said.

Environmental group Earth Island Institute filed suit in 2009 challenging the forest’s environmental analysis for the Moonlight-Wheeler Fire Recovery and Restoration Project and asking for an injunction to stop proposed work.

Much of EII’s suit revolved around the forest’s analysis of black-backed woodpecker habitat. The bird prefers post-fire ecosystems, nesting in burned trees and feeding on insects that attack fire-killed or weakened trees. The Forest Service currently considers the bird a “sensitive” species.

EII argued the Plumas National Forest violated NEPA by failing to ensure the scientific integrity of its analysis of the project’s impact on the black-backed woodpecker; failing to meaningfully respond to dissenting scientific opinion regarding the woodpecker, failing to take a hard look at the impacts of the project; and failing to prepare a supplemental environmental impact statement in light of new information concerning the woodpecker.

EII also argued the Forest Service violated the National Forest Management Act by failing to ensure the viability of the woodpecker by failing to determine the necessary quantity and quality of habitat necessary for the bird’s survival.

England ruled that EII failed to show the agency reached its decisions “arbitrarily or capriciously.”

The ruling will have no appreciable effect on the ground in Plumas County. That’s because all of the contracted work associated with the project has already been completed, according to Francine. “Nothing was curtailed because there was never an injunction.”

Not for lack of trying. When the district court denied a motion for an injunction in August 2009, EII appealed to the Ninth Circuit, which, in a split 2-1 decision, also denied the motion. EII could appeal the latest ruling to the Ninth Circuit, too. “We’ll know by end of May,” Francine said.

This ruling will likely not be the last word on the black-backed woodpecker. A petition from EII and The Center for Biological Diversity to list the bird as an endangered species under the California Endangered Species Act is pending before the California Fish and Game Commission. The California Department of Fish and Game is currently soliciting public comment. A decision by the commission could affect future salvage logging on private timberlands in the state.

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