Group Loses Challenge to|Post-Fire Logging Project

     (CN) – Environmentalists lost their bid to stop the logging of fire-scorched areas of the Plumas National Forest. In a 2-1 ruling, the 9th Circuit said the U.S. Forest Service’s logging plan met all federal requirements, including its assessment of habitat for the black-backed woodpecker.




     The Earth Island Institute challenged the government’s plan to log areas of the Plumas National Forest in the Sierra Nevadas that were burned in the 2007 Moonlight and Wheeler fires.
     The group sought an injunction barring the so-called Moonlight-Wheeler project, which would allow logging on 22 to 27 percent of burned forest. The two fires had burned a total of 88,000 acres of private and National Forest land in the northern Sierra Nevadas, about 78 percent of which is located in the Plumas National Forest.
     A federal judge denied the group’s request for an injunction, ruling that the plan required only an assessment of the habitat for the black-backed woodpecker, an indicator species for the area, which the Forest Service had adequately conducted. The court added that the government had responded sufficiently to environmentalists’ dissenting scientific opinions in the project’s adoption phases.
     On appeal, a 2-1 majority of the 9th Circuit in San Francisco upheld the denial of an injunction.
     “In short, the district court used the correct standard for analyzing Earth Island’s likelihood of success on the merits and did not abuse its discretion in finding that Earth Island failed to show that it was likely to succeed on the merits of its NFMA (National Forest Management Act) claims,” Judge Procter Hug, Jr. wrote. “The court concluded that if the injunction was granted, the public would lose the immediate benefits of the restoration efforts.”
     Dissenting Judge Stephen Reinhardt said the majority’s denial of an injunction, “like the district court’s before it, rests on two fundamental errors.”
     First, he said, the majority erroneously concluded that the Forest Service was not required to ensure species viability in the Plumas National Forest, “despite numerous clear statements to the contrary” in the forest plan.
     Second, the majority and the district court concluded that the guidelines for identifying and marking trees are not enforceable, when they are, Reinhardt said.
     “This erroneous conclusion kept the district court from deciding whether the factual foundation of Earth Island’s allegations regarding violations of the guidelines was sufficiently strong to warrant an injunction,” he wrote.
     He said he would have granted a temporary injunction and remanded the case for reconsideration, “with the understanding that … Earth Island is likely to prevail on its NFMA challenges to the Moonlight-Wheeler project.”

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