Sierra Nevada Plan’s Fish Effects Face High Court


     WASHINGTON (CN) – The U.S. Supreme Court on Monday agreed to evaluate whether concern for fish merit another look at logging, road-building and livestock grazing plans for the Sierra Nevada.
     Amendments adopted by the U.S. Fish and Wildlife Service in 2004 led to significant changes in fire-suppression techniques on more than 11 million acres of public land in California’s Sierra Nevada 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.
     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 nonprofit 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 the 9th Circuit revived some claims last year, taking issue how the environmental impact statement (EIS) recommended changing the agency’s management plan for 11 national forests.
     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, according to the February 2012 ruling.
     “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 a three-judge 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 San Francisco-based 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.”
     Per its custom, the U.S. Supreme Court did not issue any comment in granting the case a writ of certiorari. It granted Public Lands Council and the National Cattlemen’s Beef Association permission to file a brief as amici curiae.

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