9th Circuit OKs Logging Project in Alaska’s Tongass Park

(CN) – The U.S. Forest Service gave proper approval to logging and road construction in southeast Alaska’s Tongass National Forest, a Ninth Circuit panel ruled Tuesday.

The legal dispute centers around logging on Prince of Wales Island, which contains old-growth rainforest and is the largest in the archipelago.

In an attempt to boost the region’s economy, the Forest Service approved logging on more than 6,000 acres of the island and construction of more than 80 miles of roads.

A number of environmental groups challenged the project, which they say threatens the habitat of the rare Alexander Archipelago wolf.

That wolf, originally believed to be a distinct subspecies of the gray wolf, resides in southeast Alaska, isolated by water and mountains.

Because of its unique habitat, the Alexander Archipelago wolf is more sensitive to disturbances like logging, environmentalists say.

The wolf preys on Sitka black-tailed deer, and advocates say a decrease in deer population caused by logging will in turn harm the wolf population. While the wolf is not currently listed as an endangered species, there are ongoing efforts by conservation groups for government protection.

When adopting the logging plan, called Big Thorne, the Forest Service addressed the wolf and deer populations. It encouraged the agency to provide enough habitat that could support 18 deer per square mile, and guidelines on road density.

A number of environmental groups sued, and the actions were consolidated in Alaska’s federal court. The court found for all the government defendants in 2015.

“It is clear that the plaintiffs desire the 2008 forest plan to include an explicit value for the minimum deer-habitat capability necessary to support viability of wolf populations, as well as a numerical value for road density,” U.S. District Judge Ralph Beistline wrote in 2015. “However, plaintiffs have not pointed to any specific statutory requirement for such an explicit minimum threshold, nor does this court find there to be any.”

The environmentalists appealed to the Ninth Circuit, which on Tuesday upheld the decision to allow the logging.

Agreeing with Beistline’s reasoning, Circuit Judge Alex Kozinski noted the logging plan required the Forest Service to maintain deer habitat “when possible.”

“This is an aspiration, not an obligation,” Kozinski wrote, agreeing with the lower court that the plan gave the agency the discretion and flexibility it needed for the logging, and did not violate the National Forest Management Act.

“The service met its legal obligations, and plaintiffs’ remaining challenges to the forest plan – a potpourri of contentions that the service misinterpreted one thing or failed to consider another – amount to the sort of quibbling that can’t overcome our deferential standard of review,” Kozinski wrote.

“Depending on the circumstances, lumber might be more important than wolves.  And even when wolves are more important than lumber, it might be better to build fewer roads rather than allow for more deer. Courts are not well-equipped to police the substance of these judgments.”

In a sharp dissent, Circuit Judge Ronald Gould disagreed with the majority’s analysis of the National Forest Management Act.

“The majority poses the issue as a choice between wolves and jobs, but it is not so simple as that,” Gould wrote.

The judge took issue with the majority’s parsing of the terms “viable” versus “sustainable” as it related to wolf populations.

“The agency is not obligated to provide a sustainable wolf population, but it must ensure viable wolf populations consistent with its substantive obligation under [forest management rules],” Gould wrote.

Noting the populations of wolves and deer depend on each other, Gould argued the logging plan does not adequately account for deer habitat.

“The record is too sparse for definitive conclusion, and what evidence exists in the record shows drastically decreasing wolf population over the past decades and a project that diminishes deer habitat capability, further threatening the wolves,” Gould wrote.

A Justice Department representative said the agency is pleased with the court’s decision.

Buck Lindekugel, attorney with the Southeast Alaska Conservation Council, said the organization was reviewing the “disappointing decision” and that there is no longer room for large-scale timber projects in Tongass National Forest.

“In fact, there is broad agreement across the region that it is time to end soon this kind of logging on the Tongass,” Lindekugel said in an email. “Our economic prosperity depends on vibrant, healthy old-growth forests to support the economic drivers of our region – world-class fishing, hunting, recreation and tourism.”

The battle over logging and land management in Tongass is ongoing.

Earlier this year, Rep. Don Young of Alaska introduced a bill to allow states to acquire up to 2 million acres of federal land for timber production. Critics like Lindekugel say it would harm the economic benefits the state enjoys from outdoor recreation.

And last year, the U.S. Supreme Court declined to hear an appeal by Alaska challenging the 2001 Roadless Area Conservation Rule, which protects parts of Tongass from road development.

 

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