(CN) – An environmental group struggled to convince a panel of 9th Circuit judges to halt a proposed tree thinning plan designed to reduce fire risk in Montana’s Lewis and Clark National Forest.
Native Ecosystems Council filed suit in 2010, claiming the Ettien Ridge Fuels Reduction Project would destroy elk habitat and disturb nesting goshawks and said the Forest Service violated the Administrative Procedure Act, the National Forest Management Act and the National Environmental Policy Act by finding the project would have no significant impact. The final plan covers around 800 acres and calls for prescribed burning, slashing and mechanical thinning.
U.S. District Court Judge Donald Molloy refused to stop the project and denied the Council’s claim for summary judgment, finding the Forest Service properly reviewed and approved the project. In his opinion, Molloy also faulted the Council for “conjuring new claims and arguments on summary judgment, forcing the opposing parties to continuously adjust to the moving target.”
At an appellate hearing this week, John Meyer, representing Native Ecosystems Council, was grilled by Judge Andrew Kleinfeld, who called the plan a “tiny forest project.”
Kleinfeld said he was concerned that residents of the nearest village, which is three miles away, would face fire danger if the trees weren’t thinned. He asked Meyer if he thought the village was “expendable.”
Meyer replied that the Council didn’t want “anyone to be hurt,” but claimed that government research shows the best way to protect homes from fire is to clear the area within 100 feet of the home.
“What about the old people?” Kleinfeld asked. “How can they lift a chainsaw?”
Kleinfeld proposed several different examples of why property owners may not clear brush from around their home, prompting an exasperated Meyers to say, “We will have to agree to disagree, Judge.”
Kleinfeld said the judges have to consider the public interest when deciding on an injunction.
Judge Milan Smith said the Council listed many objections to the project in its brief but asked Meyer to focus on just one during the hearing.
“Give me your best shot.”
Meyer said the plan’s failure to comply with goshawk monitoring was the best reason to overturn the lower court’s decision.
He argued that the Forest Service is required to look at how forest management affects an “indicator species” like the Goshawk, which is an indicator of the overall health of the forest.
“The government isn’t looking at their own data,” Meyers said.
Mark Smith, representing the Forest Service, called the goshawk a “red herring.”
Smith said that the project will keep the canopy forest cover, but clear the understory, making it easier for goshawks to see prey.
“This project is actually going to benefit goshawks,” Smith said.