Judge Fed Up With Fight Over Eucalyptus | Courthouse News Service
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Judge Fed Up With Fight Over Eucalyptus

SAN FRANCISCO (CN) - The Federal Emergency Management Agency clashed with environmental groups Thursday at a hearing on plans to reduce wildfire risk in the Oakland-Berkeley hills, prompting an exasperated federal magistrate to order them to submit statements on how to resolve the case.

U.S. Magistrate Judge Laurel Beeler asked for the statements in light of a settlement of a companion case this month that FEMA says mooted the current lawsuit.

In this case, the Sierra Club and SprawlDef, an environmental defense fund, sued FEMA in May 2015. They claimed FEMA used an undefined "unified methodology" in endorsing a final environmental impact statement for fire prevention in the East Bay Hills, where 25 people died in a 1991 Oakland firestorm.

They claimed FEMA failed to compare and consider options: thinning the highly flammable eucalyptus trees or removing and replacing them with native plants.

FEMA adopted the thinning strategy, but the environmental groups want the eucalyptus replaced with native plants that are easier to manage during a fire. They claim that FEMA ignored the U.S. Fish and Wildlife Service opinion that removing the eucalyptus would be better.

Calling the amended complaint "confusing" several times Thursday, Beeler declined to rule on FEMA's motion to dismiss until she considers the parties' statements, which she told them to file within seven days. But Beeler said she would rule on the motion to dismiss.

Despite the plaintiffs' murky complaint and a murky and contentious hearing in which little was clarified, Beeler indicated she could rule for FEMA.

"It seemed to me for much of the case, with the government's basic analysis, it looked like a lot of it was moot," Beeler said.

In settling the companion case, Hills Conservation Network v. Federal Emergency Management Agency, FEMA withdrew grants for the University of California Berkeley and the City of Oakland to clear cut and chip 50,000 eucalyptus trees in the East Bay Hills and spread the wood chips up to 2 feet deep.

In terminating the grants, FEMA also withdrew the portion of its Record of Decision related to the UC Berkeley and Oakland projects, which used the unified methodology the plaintiffs have challenged.

Department of Justice attorney Cynthia Huber told Beeler on Thursday that because FEMA withdrew that portion of the decision, the groups' case is moot.

"Nothing survives," Huber said.

The environmentalists' attorney Kelly Smith disagreed. He said FEMA's decision continues to rely on an environmental impact statement that refers to the unified methodology, and FEMA could still use it to award funding to UC Berkeley and Oakland.

"Nothing stops them from resubmitting the grants," Kelly said. "Whatever happens with this EIS, they're going to be relying on that both for UC and Oakland."

Huber, however, said that FEMA won't authorize funding to the university or the city until it undertakes additional National Environmental Policy Act procedures to evaluate the projects, which could include a new environmental impact statement.

"So it's just flat wrong to say the agency could rely on the EIS and circumvent everything," Huber said.

Complicating matters Thursday, UC Berkeley moved to intervene, saying it has an interest in preserving the environmental impact statement. The school also challenges the termination of its grant under the Hills Conservation settlement as "improper."

As a result of the settlement, the university's fire management projects in the hills above the school are on hold until it prepares an environmental impact report.

In opposition, FEMA asked that the school not be allowed to intervene, saying it no longer has a federal interest in the case.

"The university is arguing they need be in the case because they want to help defend it, but that is not a basis for participation as a party," Huber told the judge.

Eucalyptus trees are explosively flammable in wildfires because of their high oil content. The California government encouraged the planting of millions of the Australian-native trees in the late 1800s, assuring the state that they were excellent sources of wood for furniture and railroad ties. Actually, because the wood cracks as it dries, eucalyptus is useless for those things.

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