Wednesday, October 4, 2023
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Logging Foes Tell 9th Circ. to Think of the Owl

SAN FRANCISCO (CN) - A government-approved plan to log the burned site of a devastating California wildfire went before the 9th Circuit on Monday.

The Rim Fire - which burned for more than two months over 257,000 acres in the fall of 2013 - erupted from a hunter's illegal fire in the Stanislaus National Forest. It was the third largest wildfire in California's history, and it was the largest on record in the Sierra Nevada mountain range.

The U.S. Forest Service's Rim Fire Recovery Project says it has fire prevention in mind with a plan to remove dead and hazardous trees from the burned area.

But the Center for Biological Diversity contends that the project ignores potential harm to the area's California spotted owl population, in violation of the National Environmental Policy Act.

With a federal judge having shot down that group's bid to enjoin all logging within 1.5 km of the area's 39 occupied owl territories, the nonprofit pushed the 9th Circuit to reverse Monday at a hearing in San Francisco.

Citing a study that says the area's owls forage for food primarily in the most severely burned territory, Center for Biological Diversity attorney Justin Augustine told the court's three-judge panel that the Forest Service failed to analyze and divulge that particular effect of logging the post-fire landscape.

"The Forest Service needs to come up with an analysis that actually accounts for the owls' foraging habits," Augustine said. "How can you protect them when they can't get the food they need to survive?"

Augustine used a simple analogy to hammer home his point that the project would force the owls to find food far away from their habitat.

"When you live in San Francisco, you don't drive to the grocery store in Sacramento," he said.

Augustine revisited that theme at rebuttal. "You could not survive in your bedroom alone," he said. "You need a kitchen. You need a grocery store."

Judge Richard Clifton meanwhile seemed uninterested in crediting the study Augustine cited.

"One study isn't science," Clifton said.

David Gunter, the Justice Department attorney arguing for the Forest Service, made a similar point. "We don't believe these studies carry the weight that the plaintiffs believe they do," he said.

Gunter also emphasized that an "environmentally beneficial" logging project like the one at issue "requires tradeoffs."

"The Forest Service has already determined that the greatest risk to the area is another fire, which the project is designed to prevent," he said.

Augustine said that the Forest Service needs to at least inform the public about the potentially harmful impact of the logging project, but Gunter said that the project is in the public interest.

It is supported by "a broad spectrum of stakeholders" and an injunction against it would "do more harm than good," the government attorney said.

The attorney for the environmentalists pushed meanwhile for a more careful analysis of how side effects to the own might play out, noting that the species has declined in recent years and may be on its way to becoming endangered.

Scott Horngren, a staff attorney for the American Forest Resource Council, argued for Tuolumne County, which intervened in the case as the home of the Stanislaus National Forest.

Buttressing Gunter's points about the project's ability to also improve soil and watershed recovery, Horngren said that the project's environmental benefits "tip the balance sharply" in its favor.

"The county believes it's in the public interest to take steps to prevent another major fire," he said. "Leaving the forests as they are will make another fire much more difficult to control."

Another fire would also wipe out the area's just-recovering vegetation, Horngren said.

Telling the court that the issue is time-sensitive, Horngren said a buyer is interested in the timber the project would produce but would likely back out as the timber depreciates in value. In that case, he said, the county would have to pay a contractor to remove the trees, at a much greater expense.

"We're running smack up against the practicalities here," Horngren said.

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