SAN FRANCISCO (CN) — Eight months after a federal judge green-lighted a roadside logging project to remove fire-damaged trees on 7,000 acres in Mendocino National Forest, the Ninth Circuit on Monday reversed that decision and issued a preliminary injunction to stop it.
The majority of a three-judge Ninth Circuit panel found the U.S. Forest Service should have studied the potential impact of logging on the environment first, rejecting arguments that the project fell within an exemption under the National Environmental Policy Act for roadside repair and maintenance.
“We’re very glad that the court saw that the Forest Service has been abusing this categorical exclusion and has just gone too far with that,” said attorney Matt Kenna, of Public Interest Environmental Law in Durango, Colorado, who represents a conservation group fighting against the project.
Kenna’s client, Environmental Protection Information Center, sued the Forest Service in October 2019 to block the logging plan. The project aims to remove trees damaged by the 2018 Ranch Fire, the largest wildfire in California history that burned 410,000 acres, including 288,000 acres in Mendocino National Forest.
Forest officials found that charging private logging companies for the right to cut down trees from which they could earn profits was the best way to get the job accomplished. Mendocino National Forest supervisor Ann Carlson said it was “highly unlikely” Congress would provide sufficient funding for the project, which was estimated to cost about $5.5 million.
In December 2019, U.S. District Judge Edward Chen denied the request for an injunction, finding the center failed to demonstrate it would suffer irreparable harm if the project moved forward.
The center argues the project goes beyond mere road maintenance because it would remove all trees of a certain height with a 50% or greater chance of dying within 200 feet of the center road line, including 100-foot trees that are 150 feet from the road. The center also argued that an environmental study would help ensure alternatives would be considered that might help preserve habitat for the endangered spotted owl.
In a 16-page opinion issued Monday, the Ninth Circuit panel’s majority concluded that many trees authorized for logging by project have little to no chance of falling on the road.
“The project does not target only trees that pose an immediate danger to travelers,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the majority.
The majority also found potential harm to the environment would be irreparable and that the public interest would be served by “requiring the Forest Service to comply with the law.”
U.S. District Judge Benjamin Settle, a George W. Bush appointee sitting by designation from the Western District of Washington, joined Fletcher’s opinion.
In a dissent, U.S. Circuit Judge Kenneth Lee vociferously disagreed with his colleagues. The Donald Trump appointee said the panel should have deferred to the Forest Service’s expertise in determining which trees pose a threat to the road. The agency maintains that decayed trees can sling limbs and branches when they fall or strike other trees on their way down, potentially flinging debris into the road.
“While we may question whether the Forest Service’s use of a 1.5 tree height modifier reflects the most accurate or efficient criterion, it is not arbitrary or capricious and we must defer to the agency’s expertise in this area,” Lee wrote.
A Forest Service biologist also found the project was unlikely to negatively affect spotted owl habitat.
While the majority found the public interest would be best served by protecting the environment, Lee noted that the Forest Service said it would need to close roads and recreation areas on a long-term basis if the project was stopped.
“Certainly, the public has a strong interest in enjoying trips to Mendocino National Forest,” Lee wrote. “The public also has an interest in protecting taxpayers’ money through sound management by the Forest Service. I do not believe the majority’s opinion adequately considers these countervailing concerns.”
Kenna, the center’s attorney, disagreed with Lee’s opinion that the court should defer to the agency’s judgment. He said the Forest Service “picked an arbitrary number” when it decided to clear all trees deemed hazardous within 200 feet of the road. Many of those trees are located downhill from the road and aren’t likely to fall near it, he said.
Although this opinion addressed a preliminary injunction motion and not the merits of the case, Kenna said a finding that his client is likely to succeed on the merits means the Forest Service can no longer invoke the “categorical exclusion” to avoid preparing environmental impact studies before starting logging projects.
“There’s so much they have to consider without blindly going forward without getting public input,” Kenna said.
As of May, the Forest Service reported the logging project was already a third of the way complete, according to Kenna. When asked about the current status of the project and for general comment, Mendocino National Forest spokeswoman Sandra “Punky” Moore referred all questions to the Department of Justice, which declined to comment.
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