Federal appellate court rejects Forest Service plan for Sierra

A federal appellate court has struck down as unlawful a 2004 management plan for Sierra Nevada national forests formulated by George W. Bush’s administration, saying it lacks a required analysis of how fish will fare under the plan.

A split three-judge panel of the 9th U.S. Circuit Court of Appeals held the Bush plan up next to a plan put in place in the dying days of Bill Clinton’s administration, pointing out that the earlier plan includes an insightful and viable look at how fish will be affected by its provisions.

The Bush administration took office in January 2001 and immediately began work on its revised plan.

Friday’s circuit opinion reverses U.S. District Judge Morrison C. England Jr. of Sacramento, who sided with the U.S. Forest Service in a 2008 ruling in which he rejected a challenge by the Pacific Rivers Council to the 2004 management plan’s lack of impact analysis regarding fish. The council, an advocacy group that champions aquatic life, contends the 2004 plan is inconsistent with the National Environmental Protection Act and the Administrative Procedure Act.

The panel agreed with the council on fish, but found that the 2004 analysis of effects on amphibians, which the council had also challenged, satisfied the requirements of the acts.

Environmental advocates have challenged a number of aspects of the 2004 plan revision in a series of lawsuits before England, who has consistently ruled in favor of the Forest Service.

The 11 national forests of the Sierra Nevada are home to at least 61 species of fish and 35 species of amphibians. The Sierra Nevada Ecosystem Project, a study commissioned by Congress, concluded in 1996 that their environment has been severely degraded. «The aquatic/riparian systems are the most altered and impaired habitats in the Sierra,» the study declared.

In 2001, the Forest Service issued a final environmental impact statement (EIS recommending amendments to the Sierra Nevada Forest Plan that were intended, among other things, to conserve and repair the aquatic and riparian ecosystems. The Clinton administration adopted a modified version of the statement, called the 2001 Framework.

Backed by a new EIS, the Bush administration’s 2004 Framework contains significant changes to the earlier management plan.

Forming the circuit panel majority are Judges Stephen Reinhardt, a liberal appointee of then-President Jimmy Carter, and William A. Fletcher, a liberal appointed by Clinton. Dissenting is Judge N. Randy Smith, a conservative appointed by Bush. England is also a conservative appointed by Bush.

Compared to its predecessor, the 2004 framework allows:

• The harvesting of substantially more timber and bigger trees on more acreage, some near streams and lakes.

• Substantially more construction of new, and reconstruction of existing, logging roads, some near streams.

• Fewer grazing restrictions, some near streams and lakes.

«The 2004 EIS contains no analysis of environmental consequences of these changes on individual fish species in the Sierra,» wrote Fletcher for the majority, contrasting that with more than 100 pages of such analysis in the 2001 EIS. The earlier EIS also included particular environmental risks for individual species of fish.

«There is no explanation in the 2004 EIS of why it was not reasonably possible to provide any analysis whatsoever of environmental consequence for individual species of fish, when an extensive analysis had been provided in the 2001 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.»

By contrast, he wrote, «The 2004 EIS contains an extensive analysis of individual amphibians.»

In his dissent, Smith maintains that his colleagues are guilty of «two fundamental errors. «

First, he wrote, by ruling that the Forest Service must make an analysis «as soon as it was ‘reasonably possible’ to do so,» the majority «disregards our circuit’s long-standing precedent holding that an agency’s timing of analysis required by (NEPA … is not arbitrary and capricious if it is performed before» a commitment to a specific forest project, such as logging or road construction.

«The majority instead creates an unclear rule based on ‘reasonable possibility’ that imposes additional procedures not required by NEPA on the Forest Service. «

Such a rule leaves the agency uncertain as to its legal obligations, invites judicial meddling in the agency’s decision making and invites even more litigation than is already aimed at the agency, Smith declared.

Second, he wrote, «the majority ignores the tiering … created by NEPA.» An EIS created for a framework «focuses on high-level policy decisions (and requires less detailed analysis than a site-specific EIS.»

«Therefore, agencies are allowed to defer in-depth analysis until site specific projects have been identified. «

Courts «owe a high level of deference to the methodological choices of the agency,» Smith wrote.

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Call The Bee’s Denny Walsh, (916 321-1189.

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