Plan’s Minor Fish Error Doesn’t Warrant Vacatur

     SACRAMENTO, Calif. (CN) – The U.S. Forest Service must review how its amended project plan for the Sierra Nevada region will affect individual fish species, a federal judge ruled.
     U.S. District Judge Morrison England refused to vacate the entire plan based on a “relatively minor” error under the National Environmental Policy Act (NEPA).
     The Forest Service’s 2004 Sierra Nevada Forest Plan Amendment, also referred to as the 2004 framework,” amended plans for 11 national forests covering 11.5 million acres in the Sierra Nevada region. It includes plans for more logging, more road construction, and an increase in green- and salvage-timber harvesting in the forests. It also reduced grazing restrictions originally implemented in the 2001 plan.
     Pacific Rivers Council (PRC) challenged the 2004 framework in a lawsuit, claiming the amended plan did not adequately address the impacts to amphibians and individual fish species.
     A federal judge ruled against the council, but a 9th Circuit panel found that the Forest Service failed to adequately address impacts to individual fish species in its environmental impact statement. It then remanded the matter to the District Court for an appropriate remedy.
     The council wanted the court to vacate and enjoin the 2004 framework and all of its projects and reinstate the 2001 framework. This would include prohibiting all logging, burning, road activity and grazing that is not consistent with the 2001 framework.
     “Such draconian relief, however, is unwarranted,” England wrote. “Vacatur of the 2004 Framework would be both unduly disruptive and environmentally harmful, and an indiscriminate injunction against all projects issued under the 2004 framework’s direction is both unnecessary to remedy PRC’s injury and contrary to the public interest.”
     England found that the flaw in the 2004 framework was not a grave one.
     “Vacating the 2004 framework in the face of the Forest Service’s relatively minor NEPA error, however, would have extremely disruptive consequences to both the Forest Service and the general public,” he wrote.
     Defendants have shown that a vacatur would disrupt approximately 146 projects across the Sierra Nevada, according to the ruling.
     “The likely result of vacatur of the 2004 framework is a virtual shut-down of the project development pipeline for the entire region while the Forest Service either reconfigures and reanalyzes 2004 framework projects to make them consistent with the 2001 framework, or suspends work on all significant forest management projects currently being planned,” he wrote.
     The vacatur would also have negative environmental impacts as the 2004 framework is environmentally superior in terms of “reducing the threat of catastrophic wildfire (and the associated adverse impacts to fish), protecting and creating habitat for old forest species like the California spotted owl, and addressing non-fire related threats to forest health, including drought, insect infestation and climate change,” England wrote (parentheses in original).
     England also did not see a major benefit for fish in switching back to the 2001 framework. Because the two frameworks have “nearly identical protective measures for fish, projects issued pursuant to the 2004 Framework are not likely to result in appreciably different impacts to fish from those issued pursuant to the 2001 framework,” he said.
     The council had argued that projects such as logging, road construction and grazing have harmful effects on aquatic systems and fish, but England said these claims “are almost entirely generic and fail to attribute the harms of which they complaint to the 2004 framework itself.”
     Instead of vacating the 2004 framework, England ruled in favor of the Forest Service’s proposed remedy.
     “Defendants urge the court to leave the 2004 framework in place, let project-level decisions move forward and direct the agency to prepare a supplemental EIS addressing the NEPA deficiency identified by the Ninth Circuit; namely, the likely environmental consequences on fish that implementation of the 2004 Framework may pose,” the opinion states, abbreviating environmental impact statement.
     The final supplemental environmental impact statement must be issued by Sept. 30, 2014.

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