SAN FRANCISCO (CN) --- A federal judge said Thursday he is unlikely to stop a logging project that opponents say will harm endangered species in a Northern California old-growth redwood forest because the dispute was already resolved in state court.
“You went and lost in state court. You can’t restart the clock,” U.S. District Judge James Donato said, referring to a legal challenge against a plan to chop down redwood trees up to 100 years old in the Gualala River watershed on the border of Sonoma and Mendocino counties north of San Francisco.
Friends of Gualala River (FOGR), a group dedicated to preserving the watershed, sued the California Department of Forestry and Fire Protection, or Cal Fire, in state court in August 2016. FOGR claimed the state agency failed to adequately review the project’s environmental impacts when it approved a plan to harvest 402 acres of old-growth trees near the river.
After three state court lawsuits and multiple revisions that reduced the project’s footprint from 402 to 342 acres, California’s First Appellate District affirmed a lower court’s decision to greenlight the project in February 2021.
Meanwhile, FOGR joined with Center for Biological Diversity in September 2020 to launch a fresh legal challenge against the project in federal court. This time the suit was filed against a private company behind the project, Gualala Redwood Timber LLC. The conservationists claim the tree harvesting plan will threaten four endangered species --- California red-legged frogs, northern spotted owls, Central California Coast Coho salmon and Northern California steelhead.
With plans in motion to start logging this summer, the Center and FOGR asked the court in May to issue a preliminary injunction to block the timber harvesting.
At a hearing on that motion Thursday, Judge Donato accused the plaintiffs of trying to relitigate issues already decided in state court.
“I’m 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,” Donato said.
Plaintiffs’ attorney Stuart Gross argued the Endangered Species Act claims were never litigated in state court. But Donato said those issues were “carefully considered and well discussed” in the state court decisions he reviewed.
“I don’t understand how five years into this, there’s suddenly an emergency ‘drop everything, we need an inunction’ to protect certain endangered species,” the judge said.
Before the appeals court cleared a path for the project this past February, Gross said it was not precisely clear how the logging activities would be conducted. Gualala Redwood Timber lawyer Navtej Dhillon begged to differ. He said the trees selected for harvesting have been known to the plaintiffs since 2018 and have not changed.
Judge Donato questioned why the Endangered Species Act claims were not brought to court earlier, and he accused the conservation groups of strategically waiting until they lost in another forum.
“There’s no reason I can think of as to why that didn’t happen other than gamesmanship,” Donato said.
Gross insisted the Endangered Species Act claims were never properly adjudicated. He said the judge's views about the plaintiffs’ legal strategy are irrelevant to the issue at hand --- whether the logging project will harm endangered creatures, and said only federal agencies like U.S. Fish and Wildlife and the National Marine Fisheries Service can determine if a project will result in an illegal taking of an endangered species.
Dhillon, the timber company’s lawyer, said Cal Fire already applied those federal agencies’ guidelines for protecting threatened species’ critical habitat when it reviewed the project. The state is requiring logging activities only take place in the summer to minimize impacts on endangered red-legged frogs during the wetter winter season, he said.
A survey found no northern spotted owls in the project area, but Gross said that only means the owls were not detected. Northern spotted owls in that area often don't respond to owl calls because they fear being hunted by predator barred owls, he said.
Dhillon added that his client must also follow an erosion control plan approved by a regional water quality board to prevent significant discharges of water and sediment in protected areas.
Gross insisted that Cal Fire and other state authorities are not the appropriate agencies to determine if a project will result in a taking of an endangered species in violation of federal law.
Judge Donato was not persuaded by the argument.
“The agency can conclude there is no evidence such that a consult is necessary,” Donato said. “You don’t have to in every case burden the U.S. government with your projects. That is antithetical to the way that state and federal environmental laws are set up.”
Dhillon said his client won’t start logging before July 21, but waiting longer than that would make it difficult to complete the six-to-eight-week project this year. Donato said he has a busy schedule due to backed-up criminal trials, but he will “see what he can do” about issuing a ruling by July 21.Follow @NicholasIovino
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