Landmark Decision Made In CA Forestry Case

On Oct. 16,  Judge Morrison C. England of the U.S. District Court, Eastern District of California issued a written judgment denying the injunctions demanded by the Plaintiffs, a coalition of environmental groups led by Sierra Forest Legacy, formerly known as Sierra Nevada Forest Protection Campaign. Others in the (losing) coalition are the Center For Biological Diversity, the Natural Resources Defense Council, the Sierra Club, and the Wilderness Society.

The victorious defendants were Mark Rey, in his official capacity as Under Secretary of Agriculture, Dale Bosworth, in his official capacity as Chief of the United States Forest Service on the date of filing, Jack Blackwell, in his official capacity as Regional Forester, Region 5, US Forest Service, and James M. Pena, in his official capacity as Forest Supervisor, Plumas National Forest. For a report from the Plumas County News, see (here).

The Plaintiffs sought to have the court enjoin three forest thinning projects initiated through the efforts of the Quincy Library Group. The QLG (website here) is a local citizen group with a steering group of about 30 members, formed in Quincy, CA in 1994. The QLG has been the most successful of any local group in the Nation at influencing the stewardship of the federal land in their landscape, about 2.5 million acres that encompasses most of the watershed of the Feather River. For a partial history (through 1998) of the Quincy Library Group, see (here).

In 2004, Regional Forester Jack Blackwell signed a new Record of Decision (ROD) for the Sierra Nevada Forest Plan Amendment providing authority to USFS managers to implement pilot thinning projects called for in the 1998 Herger-Feinstein Quincy Library Group Forest Recovery Act.

Since then the construction of over thirty lineal miles of DFPZ’s (Defensible Fuel Profile Zones: areas approximately ¼ to ½ mile wide where fuel loadings are reduced, usually along roads) have saved hundreds of thousands of acres of Sierra forest from catastrophic fire.

The Plaintiffs sought a preliminary injunction on grounds that the Slapjack, Basin and Empire Projects risked irreparable harm to old forest habitat and imperiled wildlife including California spotted owls, Pacific fishers and American martens. However, no fishers or martens have been seen within 200 miles of any of the project areas during the last 40 years.

The Projects are forest thinnings in the Wildland-Urban Interface, that most dangerous of fire zones. The Empire Project will treat 2,500 acres immediately adjacent to five communities at risk: Quincy, Massack, Greenhorn, Keddie and Butterfly Valley. The 35,00 acre Slapjack Project is near the communities of Brownsville, Challenge, Clipper Mills, Dobbins, Feather Fall, Forbestown, and Strawberry Valley, which collectively are home to between 5,000 and 7,0000 people. The Basin Project is 1,300 acres of similar selective thinning.

Judge England rejected the arguments of the Plantiffs, refused to grant an injunction, and wrote an excellent, landmark decision (for the entire document see here, 160KB): Some excerpts:

The USFWS study opined that the vegetation management treatments envisioned by the HFQLG Act (which include the three projects presently at issue) would not adversely affect the owl, and stated unequivocally 1) that catastrophic wildfire appears to be the greatest potential threat to the owl, with fuel-reduction treatments being necessary to reduce that threat; and 2) that the contemplated treatments will not threaten the continued existence of the owl…

Any impact on either the Pacific Fisher or the American Marten by the site specific plans is even more attenuated than potential effects regarding the owl. While Plaintiffs appear to argue that logging would increase fragmentation and create barriers to the movement of these forest carnivores, the simple fact is that neither species appears to be present within the project areas. No marten sightings have ever been reported 10 within any of the three project locations; in fact, marten generally prefer habitat at higher elevations than the lands at issue here. In addition, no scientifically validated sightings of fisher within 200 miles of any of the projects has occurred within the last 40 years…

In sum, then, available data shows that habitat effects upon owls are minimal, with the vast majority of habitat being unaffected by the projects in question and with the owl comprising a stable population in any event. Protections affecting potential forest carnivore habitat are also largely unaffected by the projects even though virtually no individual carnivore specimens have been detected…

Plaintiffs’ key concern is that the 2004 Framework, and the specific projects currently at issue in this request for preliminary injunction, may decrease canopy cover within DFPZs to 40 percent as opposed to the 50 percent levels envisioned by its 2001 predecessor, which disallowed any logging of trees in excess of twenty inches in diameter, whereas the 2004 Framework allows trees up to thirty inches to be taken in some instances…

The Forest Service argues that the logging of larger diameter trees is necessary both to reduce fire risk (either directly through construction of DFPZs or indirectly through the promotion of more fire-resilient forest species requiring more sunlight and less shady undergrowth) and to permit the economic viability of vegetation management efforts.

Plaintiffs, on the other hand, argue that economic considerations cannot supplant the public interest in protecting the environment. They contend that the loss of potential habitat alone constitutes an irreparable injury justifying the cessation of any project activities by way of a preliminary injunction.

The fire danger in the Plumas National Forest remains clear despite the respective validity of these two opposing viewpoints. This summer’s Antelope Fire burned 23,000 acres, impacted six owl PACs and completely burned three. Observation following the Antelope Fire showed that fire activity slowed and moderated when reaching a DFPZ…

DFPZs have hence been proven effective in reducing fire intensity, controlling fire spread, and protecting ecological resources like habitat. In addition, the Moonlight Fire, which has only recently been contained, has burned 65,000 acres and impacted at least 21 owl PACs and HRCAs on over 21,000 acres. The blaze has threatened 2500 homes and came within six miles of town of Taylorsville and within eight miles of the nearest treatment unit contemplated by the Empire Project.

Fire protection through vegetation management in these areas is therefore important both from the standpoint of wildlife and humans. For wildlife, unchecked wildfire may completely destroy habitat. For humans, both lives and property are at stake.

Both the Slapjack and Empire Projects squarely address that risk…

As indicated above, the projects at issue impact relatively little owl habitat, and virtually no fishers or martens have been observed within any of the targeted areas. Nonetheless the projects preserve core owl habitat, as well as habitat connectivity for the forest carnivores should they return to the Northern Sierra. With respect to the owl, which is the only species realistically present in the project areas at issue in this Motion, there is no solid evidence of population impact within the Plumas National Forest, where the owl appears to be thriving. Even if individual birds could be affected by selective logging, that does not amount to irreparable harm since irreparable harm in this context depends on a demonstrable impact to the species as a whole. 

On the evidence of the evidence before it, the Court believes that a greater danger of irreparable harm exists in not vigorously addressing the over-forested conditions that are present within the Plumas National Forest. This danger is not speculative but very real, as evidenced by the large wildfires that ravaged the Plumas this very summer. As discussed above, the 2007 Antelope and Moonlight fire together burned some 88,000 acres and either impacted or destroyed at least 27 owl PACS and HRCAs. In sum, according to Nancy Francine, the Plumas National Forest Ecosystem Staff Officer, during 2007 to date there have been almost 628 fires impacting some 123,000 acres of Forest Service land in Northern California…

The long-term benefit of preventing stand replacing fires which completely destroy habitat is preferable over any short term benefits derived from retaining dense forest structure preferred by old growth species…

Courts can and should take account of the short and long terms effects of both action and inaction. Wildwest Inst. v. Bull, 472 F.3d 587, 592 (9th Cir. 2006). As already indicated, the 2006 USFWS study concluded that catastrophic wildfire is a far greater risk to spotted owl viability than any short-term effects of fuel management activities on owl habitat, which is minimal in comparison to overall habitat area remaining available.

Similarly, the greatest concern for forest carnivores is the danger of further habitat fragmentation due to large, stand-replacing fires like those that are likely to result if over-forested conditions are ignored…

As indicated above, the imminent danger of catastrophic wildfire which has completely destroyed large swaths of old forest habitat this very year must be balanced against the immediate risk or eliminating some suitable habitat in the short term.

With respect to the three projects at issue, this balancing does not tip in Plaintiffs’ favor, let alone strongly favor Plaintiffs as required under the “alternative” test for granting a preliminary injunction where serious questions on the merits have been raised. This conclusion is even more compelling when the human component of not addressing overloaded forest conditions is considered. As indicated above, fires in the area at issue during the Summer of 2007 threatened numerous homes and entire communities…

The congressionally mandated HFQLG Act directs that fire suppression measures, including DFPZs, group selection, and individual logging, be implemented to mitigate these risks. Observation following recent fires appear to indicate that DFPZs are useful in reducing fire speed and intensity…

While Plaintiffs argue that any fuel reduction projects must be modified to reduce the logging of larger diameter trees, the number of such large trees appears to be minimal. As noted above, only 6 percent of group selection for the Basin Project involves trees more than 24 inches in diameter…

Important too is the fact that without the inclusion of larger diameter trees the proposed logging efforts would not be commercially viable and the important fuel reduction purposes they serve could not be undertaken by the Forest Service…

Significant too is the fact that the HFQLG Act further directs that the economic stability of local communities be considered. The NFMA directs the Forest Service to develop a land and resource management plan for each unit of the system to provide for multiple uses and sustained yield of various forest resources, including timber and wildlife…

Not only are there economic benefits to logging in this area, but halting further logging may also weaken the local infrastructure necessary for vegetation management activities in the future…

While the Court realizes that avoiding irreparable environmental injury outweighs mere economic concerns (Lands Council v. McNair, 494 F.3d 771, 780 (9th Cir. 2007), here economic considerations are not the decisive factor but instead, when considered in conjunction with the irreparable harm associated with taking no action, simply tip the scales further in favor of not granting the requested injunctive relief. In this case the risk of catastrophic, stand-replacing fire is both proven and palpable, and goes beyond the circumstances confronted by the McNair court, which examined a project designed to ameliorate general tree stand health and vigor decline by attempting to return the forest towards “historic conditions”. Id. at 774-75. The overwhelming fire risk involved here goes beyond any “speculative harm” rejected as inadequate by McNair…

Here, the public interest in accomplishing the fuel management envisioned by the Slapjack, Basin and Empire projects, which are designed to both immediately reduce fire risk and promote the long-term development of more fire-resilient forests, together with the public interest in providing protection and economic stability to local communities, outweigh any short-term impact to the owl, fisher and marten as discussed above.

CONCLUSION

For all the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction is hereby DENIED.

IT IS SO ORDERED.
Dated: October 15, 2007
_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE
Case 2:05-cv-00205-MCE-GGH Document 235 Filed 10/16/2007