Lake Tahoe Forest Plan Minded the Woodpecker

(CN) - The needs of the black-backed woodpecker factored into agency approval for a forest-thinning project near Lake Tahoe that is now nearly complete, the 9th Circuit ruled.

Read Courthouse News' Environmental Law Review.

The Forest Service designed the thinning project to remove downed trees and snags from about 1,411 acres of federal land damaged by the Angora fire in 2007. It said the project was necessary for public safety and overall forest health.

Officials identified 12 "wildlife snag zones" within more than 3,000 acres of burned area to provide preferred habitat for the black-backed woodpecker.

But Earth Island Institute and the Center for Biological Diversity said that the agency allowed an unacceptable taking of the woodpecker's tree-snag habitat, in violation of several environmental laws.

Among other demands, the groups wanted the Forest Service to provide more habitat for the woodpecker by ignoring dead trees or snags larger than 16 inches in diameter.

U.S. District Judge Garland Burrell granted summary judgement to the Forest Service in Sacramento. He also denied the groups' move to stop the project pending appeal, as did the 9th Circuit.

The agency announced this week that the project is almost done.

"The Forest Service has completed mechanical and hand thinning of trees on approximately 1,441 acres in the Angora Fire area - primarily removing burned trees for fuels reduction, as well as some green trees to improve forest health," it said in a statement. "The Forest Service left approximately 1,168 acres of the fire area untreated for species such as the black-backed woodpecker that use burned forests as habitat. Wildlife 'leave islands,' downed trees and snags ensure that these habitat types remain even within treated areas."

The federal appeals court in San Francisco unanimously approved the project on Thursday, finding that the agency followed the law of forest, namely the Lake Tahoe Forest Plan, in approving the thinning project.

"The Lake Tahoe Forest Plan did not require the Forest Service to demonstrate at the project level that the Angora Fire Restoration Project would maintain viable population levels of management indicator species, including the black-backed woodpecker," Judge N. Randy Smith wrote for the three-judge panel.

The panel also rejected the plaintiffs' claims that the agency violated federal law by failing to take a "hard look" at the project before going forward, and that it ignored dissenting scientific opinions and alternatives, among other things.

"Before implementing the Angora Project, the Forest Service prepared an EA [Environmental Assessment] and solicited public comment on the EA," the ruling states. "The EA discussed the impact of the Angora Project on various species, including black-backed woodpeckers. The EA also responded to some concerns raised in the comments and assessed a 'no-action' alternative and the preferred alternative that the Forest Service determined would best reduce fuel loads and the severity of future fires. The Forest Service also briefly considered an option submitted by Earth Island Institute that would limit removal of standing dead trees (snags) to those greater than 16 inches in diameter. However, the Forest Service dismissed this alternative, because the agency concluded that this alternative would not effectively accomplish the Forest Service's goals." (Parenthesis in original; brackets added.)

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