(CN) – The 9th Circuit reasserted its position that a federal judge in Sacramento needs to take a harder look at the Forest Service’s approval of three logging projects aimed at raising money for fire prevention in California’s Plumas National Forest.
The government had asked the San Francisco-based appeals court to reconsider its May 2008 ruling in light of the Supreme Court’s opinion in Winter v. Natural Resources Defense Council. The Forest Service argued that the high court’s decision requires the 9th Circuit to consider factors other than the likelihood of success, including irreparable harm, the balance of equities and public interest.
The three-judge panel withdrew its 2008 opinion and replaced it with a ruling that again sided with environmentalists. The court maintained that the Sierra Forest Legacy and others would probably win their case, adding that U.S. District Judge Morrison C. England failed to consider the so-called “non-merits factors” in his refusal to stop the logging projects.
The plaintiffs sought to force the Forest Service to comply with its 2001 forest plan, which barred the logging of trees larger than 20 inches in diameter. But in 2004, the Forest Service approved the Empire, Slapjack and Basin projects, which allowed private parties to cut down trees up to 30 inches in diameter.
Several wildlife species thrive in the larger trees, according to the environment groups. They said the government’s approval of the 2004 plan violated the National Environmental Policy Act (NEPA).
The government argued that it needed the logging leases to cover the costs of fire prevention.
But the 9th Circuit found no direct correlation between the logging contracts and wildfire prevention, as the larger trees would actually make poor fuel for wildfires. The Forest Service simply wanted to cash in on the projects to pay for fire prevention elsewhere, the ruling states.
In its superseding opinion, the 9th Circuit said Judge England erred by not looking at the stricter 2001 standards when he upheld the 2004 plan. Instead, the federal judge considered only one alternative: taking no fire-prevention action.
As a result, the court allowed the environmentalists to proceed on their NEPA claim.
In a concurring opinion, Judge John T. Noonan criticized the Forest Service’s insistence that it needed the logging contracts to fund fire prevention in what he called “fundraising for fuel reduction.”
The agency is “the arm of a nation whose credit, not inexhaustible, is strong enough not to require supplementation by sales of the nation’s timber,” Noonan wrote. “Necessity, in a word, has not been established.”