SAN FRANCISCO (CN) — A federal judge pressed a conservation group on Thursday to show how a logging company’s plan to chop down 100-year-old redwood trees in a privately-owned forest in coastal Mendocino County will likely harm the endangered species who reside in there.
“You have to show a likelihood that the species are likely to be harmed, or harassed, or all these other words that are in the Endangered Species Act. I don't know if you've made that showing. Your experts’ theories definitely seem plausible, but they also seem rather speculative,” said U.S. District Judge Vince Chhabria, who will decide whether to issue an injunction preventing Gualala Redwood Timber from moving ahead with a plan to harvest redwoods in an alluvial floodplain that is home to California red-legged frogs, northern spotted owls, Central California Coast Coho salmon and Northern California steelhead. The order would halt the plan temporarily while the case is adjudicated.
Chhabria visited the Little North Fork Floodplain of the Gualala River earlier this week with representatives of the timber company and Friends of Gualala River, a group dedicated to preserving the Gualala River watershed.
The parties have already sparred in federal court over a different logging plan in another part of the Gualala River flood plain.
U.S. District Judge James Donato denied the conservation group an injunction in that case last year, finding the group’s legal challenge to the "Dogwood" timber harvest plan had already been settled in state court when California’s First Appellate District issued a ruling affirming a lower Sonoma County trial court’s decision to greenlight the project in February 2021, following multiple revisions that narrowed its range from 402 to 342 acres.
FOGR had sued the California Department of Forestry and Fire Protection, or Cal Fire, in state court in August 2016, claiming the agency failed to adequately review the project’s environmental impacts.
The group renewed its opposition to the project in 2020 with a lawsuit against the timber company itself, but Donato ruled they were not entitled to a second bite at the apple.
“You went and lost in state court. You can’t restart the clock,” Donato said at a hearing last year, adding that he was "extremely concerned about a United States District Court becoming effectively a court of appeals for decisions that one side or the other doesn’t like at the state level.”
Navtej Dhillon, a lawyer for the timber company, told Courthouse News on Thursday that it has since filed a motion to dismiss the “Dogwood” case as moot, and that logging in the area is currently underway.
Dhillon said the company planned to hold off logging in the “Little North Fork” floodplain until the end of June, as it awaits a decision from Chhabria.
Chhabria seems far more amenable to deciding the Little North Fork case on the merits.
“We have this Endangered Species Act claim here and it was not adjudicated in the prior litigation,” he said Thursday. “I don't owe any deference to the Court of Appeal ruling and certainly not to Judge Donato's ruling, which was not about the merits.”
But he did seem concerned about whether FOGR could show a likelihood of irreparable harm to red-legged frogs and steelhead salmon.
Stuart Gross, an attorney representing the conservationists, said there is already substantial evidence that both species would be killed. Steelhead salmon would be especially affected by the pollution generated by woody debris and sediment from logging operations, Gross said.
"When there is a lot of sediment it irritates the gills of fish, it harms them. When those fish are in the floodplain they are feeding they feed on terrestrial insects, worms — all those sorts of things. If there's lots of sediment they can't see the prey.”
He added, “Floodplains are essential for the lifecycle of salmonids. We’re not talking about logging that's up on a hillside. This is right in the midst of the terrestrial area that salmonids depend on for their survival.”
“The thing I'm still struggling with,” Chhabria said, “is if we look at a world where no logging occurs and the world where the planned logging occurs, it is speculative to say that any one of the species is likely to be harmed by one versus the other. It is plausible, but you haven't proven it.”
Dhillon, the attorney for Gualala Redwood Timber said he agreed that the harm is speculative and that the timber company believes any increased sediment from logging would be of minimal impact. As for the red-legged frogs, he said it isn’t clear that there are many of that species in the Little North Fork site.
“The presence of the frogs are assumed [by the plaintiffs]," he said, adding that frogs prefer wet areas, and the company has already made plans to protect those areas.
“If you look at the map it's a substantial portion of the property where the frog would be protected,” he said.
Gross said the conservation group does not need to show the red-legged frog’s precise location for the court to infer a likelihood of irreparable harm, since it is enough to show that they could be in the area, and that they will probably be killed by fallen logs or crushed under boots and vehicle wheels.
“There's not question they're getting run over,” he said. “We have methods of harvest that when co-located with those frogs, will kill them.”
Chhabria took the arguments under submission, saying he will issue an order promptly.
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