(CN) — A Ninth Circuit panel heard from both sides Monday in a fight over what are supposed to be temporary roads for a logging project in a Washington state national forest.
Attorneys for the U.S. Forest Service and North Cascades Conservation Council made their cases for and against the roads, which could be in use for decades.
“The roads not only destroy habitat, but they have a huge impact on fish,” North Cascades attorney David Bricklin told the three-judge panel. “Because sediment flows off those roads into creeks and kills fish. And so, the Forest Service has a plan that they’ve adopted, it says we’re not going to create any more roads. Net impact of these projects has to be zero. And the problem here is that they are allowing these so-called temporary roads to persist for decades or even longer.”
North Cascades sued the Forest Service in September 2020 for issuing a final decision notice and a finding of no significant impact approving the South Fork Stillaguamish Vegetation Project, a commercial thinning-logging project within Mt. Baker-Snoqualmie National Forest in Washington state.
Court records citing Forest Service notices state that the project thins areas of the forest with high tree densities, little diversity of understory and limited stand structure in canopy height — a direct result of the extensive logging seen in the 1940s through the early 1980s.
The Forest Service approved between 2,000 to 3,300 acres of commercial thinning and 1,060 acres of noncommercial thinning. By doing so, the agency said thinning would promote old-growth upland and riparian forest characteristics and increase habitat diversity, even creating desired habitats for species such as the northern spotted owl and the marbled murrelet.
The Forest Service also said the project would improve recreational areas within the forest, mainly the trail systems.
North Cascades disagreed, saying the approval failed to comply with the Endangered Species Act, the National Environmental Policy Act and the National Forest and Management Act.
According to North Cascades in its complaint, the project — ongoing for the last two years — causes irreparable damage to the forest’s ecosystem through the loss of wildlife habitat from tree thinning and 30 miles of new roads, the latter of which “will remain in place for an indefinite period.”
U.S. District Judge David Estudillo did not agree and granted summary judgment in favor of the Forest Service in 2022, adopting the report and recommendation from U.S. Magistrate Judge Brian Tsuchida.
According to Tsuchida’s report, the Forest Service’s approval was not arbitrary and capricious because the agency complied with its obligations for the 1994 Northwest Forest Plan for Key Watersheds regarding the “no net increase” of roads standard and explained its road maintenance level changes before and after the project. Additionally, Tsuchida did not find the project harmful to species like the pleated woodpecker or Puget Oregonian snail, and the agency considered a reasonable range of alternatives under the National Environmental Policy Act.
On appeal, North Cascades argues nothing within the Forest Service’s contracts with intervenors Skagit Log and Construction, Hampton Tree Farms and Hampton Lumber Mills guaranteed that roads would be closed at the end of its use. As such, the Forest Service violated the 1994 Northwest Forest Plan because there will be a net increase in road mileage within the project area for as long as 20 years.
“The Forest Service argues that a net increase for up to two decades does not violate the prohibition because the increase is not forever,” North Cascades said in its appellate brief. “That reading is incorrect because it ignores the environmental harms associated with two decades of road construction and operation — the very harms the prohibition was intended to prevent.”
Senior U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, asked Bricklin if it would make a difference if the Forest Service guaranteed that, upon the end of a subcontractor’s use of a road, it would be closed.
Bricklin answered, “Yes, that would be a huge concession.”
However, when Assistant U.S. Attorney Brian Kipnis gave his word that “every single mile of temporary road created for this project will be decommissioned,” the panel began voicing their doubts over how temporary a road could be and the lack of information over where the roads would be and how often they would be used.
“I haven’t heard a number as to what’s too long,” said U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee. “I don’t think anybody’s arguing now that one season is too long, but is five years too long? I don’t know.”
Kipnis said the “too long” notion is not built into the standard and that the Forest Service only needs to apply the “no net increase” standard.
“It doesn’t say temporary roads can’t be on the landscape for too long,” Kipnis said.
VanDyke said that was exactly North Cascades’ point.
After hearing arguments from intervenor attorney Sara Ghafouri — who insisted that contractors closed roads after each subproject — the judge panel began to wonder whether their understanding of the Forest Service’s road plan was based on speculation rather than a solid plan.
“If we’re speculating, do we overturn a government plan based on my speculation about how this might happen or what do we do if we don’t know?” VanDyke asked Bricklin on rebuttal.
Bricklin said the government had not fully analyzed an important issue.
“The government has to, when it says were going to allow these roads temporarily, but we don’t really know what temporary means, whether they’re going to be closed in a year or two or a decade or two,” Bricklin said. “It’s the governments obligation to understand what it is authorizing. We don’t get a chance to come back five years from now and argue again.”
He added: “This is our chance, and the government had the obligation at this stage in the proceedings when it issued its decision to have figured this out.”
With that, Fletcher, VanDyke and Senior U.S. Circuit Judge Richard Paez, a Clinton appointee, adjourned the hearing with no indication of how they may lean.
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