Sierra Nevada Plan Left Out Critical Fish Details

(CN) - The U.S. Forest Service neglected to study how increased logging, road-building and livestock grazing in national forests throughout California's Sierra Nevada Mountains would affect fish populations, the 9th Circuit ruled Friday.

The federal appeals court in San Francisco found that an environmental impact statement (EIS) recommending amendments to the agency's management plan for 11 national forests "contains no analysis whatsoever" of the Sierra's more than 60 species of fish.

Amendments adopted in 2004 led to significant changes in fire-suppression techniques on more than 11 million acres of public land in the mountain range, moving away from prescribed burns and concentrating more on logging. The plan increased green- and salvage-timber harvesting in the forests by an additional 4.9 billion board feet. It also tossed many grazing restrictions that were originally adopted in 2001, allowing more commercial and recreational livestock in the forests.

Another provision paved the way for more road construction across the forest than was allowed under the 2001 plan.

The nonprofit Pacific Rivers Council sued the forest service in 2005, claiming that the changes ignored the region's fish and amphibians, whose river and stream habitats were already among the range's most threatened. The Oregon-based group argued that the agency had violated federal law by adopting the 2004 amendments to the forest plan without properly studying the issue.

A federal judge in Sacramento ruled for the Forest Service, but a three-judge panel of 9th Circuit judges revived part of the lawsuit on appeal Friday.

While the agency took the "hard look" required under the National Environmental Policy Act (NEPA), , it failed to do so with the Sierra Nevada's approximately 35 species of amphibians in mind.

"The 2001 EIS contained a 64-page detailed analysis of environmental consequences of the 2001 framework for individual species of fish," Judge William Fletcher wrote for the panel. "In stark contrast to the 2001 EIS, the 2004 EIS contains no analysis whatsoever of environmental consequences of the 2004 framework for individual species of fish."

The panel voted 2-1 to reverse the lower court on the fish issue, and affirmed as to amphibians.

"In light of the extensive analysis of the environmental consequences on individual fish species in the 2001 EIS, and of the extensive analysis of the environmental consequences on individual species of mammals, birds, and amphibians in the 2004 EIS, we conclude, contrary to the Forest Service's contention, that it was 'reasonably possible' to provide some analysis of the environmental consequences on individual fish species in the 2004 EIS," Fletcher wrote. "The failure of the 2004 EIS to provide any such analysis is a failure to comply with the hard look requirement of NEPA."

Writing in dissent, Judge N.R. Smith argued that the majority's opinion "amounts to an inappropriate and substantial shift in our NEPA jurisprudence," as it hold the Forest Service to a higher standard than is necessary at the present stage."

"Under NEPA regulations on tiering and Ninth Circuit precedent, a programmatic EIS requires less detailed analysis than a site-specific EIS," he wrote. "Therefore, agencies are allowed to defer in-depth analysis until site-specific projects have been identified. Furthermore, agencies are given wide latitude in the tiering methodology they choose to implement, so long as the programmatic EIS allows for informed decision-making. As a result, courts owe a high level of deference to the methodological choices of the agency."

Pacific Rivers Foundation Executive Director John Kober told Courthouse News that he had not studied the ruling yet and could not comment.

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