Plan to Log in Spotted Owl Habitat Examined by Ninth Circuit Panel

PORTLAND, Ore. (CN) — Attorneys sparred over the government’s plan to log trees after wildfire tore through an area designated as critical habitat for spotted owls — leaving behind exactly the type of snags that the threatened birds prefer for nesting and foraging.

The Conservation Congress sued the U.S. Forest Service and U.S. Fish and Wildlife in 2013, after the agencies announced their plan to log a 5,400-acre section of the Shasta-Trinity National Forest that burned in the 2012 Bagley Fire. The wildlife advocacy group said the government hadn’t properly considered the cumulative effect its logging would have on spotted owl habitat, when combined with logging done on private land nearby that also burned in the fire. The group also said the agencies should have issued an environmental impact statement before approving the “emergency” plan, since it would harm a species listed as threatened under the Endangered Species Act.

The Forest Service initially tried to get the lawsuit tossed out, claiming Conservation Congress didn’t appeal the decision administratively before filing its lawsuit. But U.S. District Judge Troy Nunley discarded that claim in 2014 and allowed the suit to proceed.

Lawyers for the group told Courthouse News at the time there was no need to range through a roadless area with the heavy equipment logging requires. The practice is common, despite numerous studies showing that so-called salvage logging after wildfires decreases biodiversity.

But in March 2019, Nunley dismissed the case, finding that government records show that the agencies did consider the cumulative impacts of logging on both public and private lands and took steps to minimize the project’s impact to spotted owls and would effectively change very little of the spotted owl habitat present in the area after the wildfire.

“Defendant Forest Service relied on the opinions of its own experts, and the conclusions reached by those experts are supported by substantial evidence such that they deserve judicial deference,” Nunley wrote.

Conservation Congress appealed, and on Tuesday a three-judge panel of the Ninth Circuit met via videoconference to hear arguments. The hearing was held remotely because of the Covid-19 pandemic.

Arguing on behalf of Conservation Congress, attorney Elisabeth Holmes said the data the government used to formulate its plan was a mess. She said the plan is based on conflicting and inaccurate maps that don’t show which areas of the forest burned or to what degree. And they leave out which parts are still being used by the owls as foraging habitat, Holmes said.

“There is no consistency or coherency in the information the Forest Service provided,” Holmes said. “Not only did they not gather and identify the correct information, what they then chose to analyze was inconsistent with what they proposed.”

Holmes said it’s illegal for the government to base these kinds of decisions on such sloppy information gathering.

But those claims were “entirely backward,” according to U.S. Attorney Philip Scarborough, who defended the Forest Service and Fish & Wildlife at Tuesday’s hearing. Scarborough said the government used aerial mapping technology to show the change in habitat before and after the fire.

He reiterated the government’s claim that the project would have very little effect on spotted owls.

“Five thousand four hundred acres were evaluated, but most don’t have hazard trees on it. Remaining acres just need to be inspected and if there is a hazard tree there, then it needs to be felled to prevent it from falling on the road and causing personal injury, property damage and debt,” Scarborough said.

But U.S. Circuit Judge Paul J. Watford, a Barack Obama appointee, jumped in to say he “could not make sense” of the maps the government had provided.

“And I take it that the maps are the only thing in the record that are going to allow us to verify that in fact the Forest Service took into account the logging on private lands?” Watford asked Scarborough.

Scarborough conceded the maps might not be perfect.

“It is possible, the Forest Service has informed me, that there are some minor discrepancies,” Scarborough said.

U.S. Circuit Judge David Hurwitz, another Obama appointee and Senior U.S. Circuit Judge Mary. M. Schroeder, a Jimmy Carter appointee, rounded out the panel. The judges did not indicate when they would issue a ruling.

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