9th Circuit Blocks Bush’s Logging & Burning Rule

SAN FRANCISCO (CN) - The 9th Circuit struck down a Bush administration initiative that allows logging and burning projects in national forests without considering their environmental impact.

As part of the president's Healthy Forests Initiative, the U.S. Forest Service and the Department of Agriculture approved a "categorical exclusion" that allowed controlled burning on up to 4,500 acres and forest thinning on up to 1,000 acres.

The governmental initiative was prompted by 123,000 fires in 2000 that burned more than 8.4 million acres - more than twice the 10-year national average.

The Sierra Club and the Sierra Nevada Forest Protection Campaign unsuccessfully sued the agencies, claiming the government ignored relevant factors required for consideration under the National Environmental Policy Act. Because the agencies failed to make a "reasoned decision," plaintiffs argued, the categorical exclusion was arbitrary and capricious.

The circuit panel reversed summary judgment for the defendants, with Judge Thompson writing that the Forest Service's "failure to assess the significance of the exclusion, a broad programmatic action under which in excess of 1.2 million acres will annually be logged and burned, causes irreparable injury." The court remanded with instructions to enjoin the defendants from implementing the exclusion until it considers the environmental impact.

In a concurring opinion, Judge Kleinfeld said he had a hard time believing that "a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious," but that the government made "no serious attempt" to support his intuitive view. See ruling.

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