SAN FRANCISCO (CN) – Dealing a blow to environmentalists fighting commercial logging on 2,000 acres of protected land in Northern California, the Ninth Circuit on Monday upheld a ruling denying an injunction against the project.
The Karuk Tribe and four conservation groups sued the U.S. Forest Service and National Marine Fisheries Service in March.
They said the Klamath National Forest’s Westside Fire Recovery Project, to remove fire-scorched trees and prevent wildfires, threatens endangered species and actually increases the risk of forest fires and landslides.
U.S. District Judge Maxine Chesney refused in April to enjoin the project, finding the plaintiffs were unlikely to succeed in their claim that the logging violated federal law.
After hearing oral arguments on Nov. 15, a panel of Ninth Circuit judges upheld Chesney’s ruling.
In an unpublished ruling Monday, the panel found that plans to preserve some dead trees, or snags, that are beneficial to endangered coho salmon and Northern spotted owls’ habitats met federal requirements.
After reading the panel’s 3-page ruling, plaintiffs’ attorney Susan Jane Brown said it appeared the circuit judges misunderstood some key facts.
Brown had argued that the Westside Recovery Project would clear more dead trees than the two-thirds of snags slated for removal in the precedential Oregon Nat. Res. Council Fund v. Brong ruling of 2007.
In Brong, the Ninth Circuit affirmed an injunction to prevent clear-cutting of dead trees in a protected Oregon forest.
“The court said that in Westside there was not widespread clear-cutting like in the Brong case,” Brown said. “That is factually inaccurate. More than 80 percent of the harvest units will have no snags retained, so that is a functional clear-cut.”
But the panel noted in its ruling that the motives of the two projects were relevant to the analysis.
“Here, the Forest Service’s motives are to prevent danger of future fires, not economic gain, and the government has gone to pains to avoid the risks of large-scale clear-cutting envisioned in Brong,” the panel wrote.
Brown also argued that the National Marine Fisheries Service relied on the impact of “unfunded, speculative and uncertain” restoration efforts that may not occur, when it concluded that the project would not jeopardize endangered species.
Brown said it will cost more than $30 million to replant trees and remove smaller pieces of wood and brush that contribute most to the spread of wildfires, but the Forest Service expects to make only $800,000 from timber sales through the project.
“There’s a pretty big delta there, and the agency has never indicated how they plan to pay for any of that work,” Brown said, using “delta” in its mathematical sense, as a variable.
The panel found the Fisheries Service “did not rely significantly, if at all” on the planned mitigation measures when it reached its no-jeopardy conclusion.
The panel consisted of Ninth Circuit Judges Mary Schroeder, Stephen Reinhardt and John Owens.
Brown said her clients are considering seeking an en banc rehearing. To get that rehearing, a majority of Ninth Circuit judges would have to vote in favor of the request.
Without a rehearing, Brown said, the case will go back to district court, probably to be argued on the merits in a motion for summary judgment.
The Westside Recovery Project, which was approved in February and started in the spring, authorized commercial logging of fire-scorched trees on 5,570 acres of national forest land.
In 2014, wildfires burned 162,580 acres of the 1.7 million-acre Klamath National Forest.
The fight over clear-cutting in Klamath National Forest comes as two other tribes also filed lawsuits against the federal government this year, claiming its management of waterways has allowed a deadly parasite to infect more than 90 percent of endangered juvenile coho and Chinook salmon.
Brown is with the Western Environmental Law Center in Portland, Ore.
Dan Blessing, natural resource officer for the Klamath National Forest, did not immediately return a phone call seeking comment Monday on the ruling and on how the government plans to fund the Westside Recovery Project’s restoration measures.