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Forest suit back to appeals court

Published on October 15, 2010 3:01AM

Last changed on November 12, 2010 11:20AM

Thinning, controlled burn in violation of laws, conservation groups say


Capital Press

A lawsuit over the thinning of old-growth forest that resulted in a landmark legal decision has again landed before the 9th U.S. Circuit Court of Appeals.

The controversy centers on a U.S. Forest Service project that involves thinning, controlled burns and road construction on thousands of acres in Idaho's Panhandle National Forests.

Conservation groups claimed the project was approved in violation of environmental laws, and asked a federal judge for an injunction to stop thinning operations from commencing.

A federal judge's denial of the injunction request was appealed to the 9th Circuit, ultimately resulting in a precedent-setting 2008 opinion, Lands Council v. McNair, that limited the appellate court's power over federal forest management strategies.

A panel of 11 judges acknowledged that the 9th Circuit had in the past overstepped its authority by rebuking the Forest Service's environmental analysis of forestry projects.

According to the ruling, it's not proper for the 9th Circuit to "act as a panel of scientists that instructs the Forest Service how to validate its hypotheses regarding wildlife viability, chooses among scientific studies in determining whether the Forest Service has complied with the underlying forest plan and orders the agency to explain every possible scientific uncertainty."

That 9th Circuit upheld the legal decision not to halt the project, but the underlying case continued to be litigated in an Idaho federal court until last year, when a judge found the Forest Service had followed environmental laws.

The Lands Council has appealed that ruling to the 9th Circuit, arguing that the agency has failed to demonstrate its compliance with those laws -- even under the less stringent standard set by the appellate court's decision.

"They're asking you to defer to unsupported contentions," said Tom Woodbury, an attorney for the environmental group, during oral arguments in the case.

Woodbury said the agency hasn't justified its methodology for evaluating the project. The court's decision doesn't allow the Forest Service to declare its satisfaction with an environmental analysis without explaining why, he said.

The Lands Council believes removal of brush and smaller trees from old growth stands will degrade the forest's capacity to sustain wildlife, Woodbury said.

"An old-growth stand with old-growth trees and no undergrowth is a park," he said. "That's not old-growth habitat. That's not what species rely on."

Brian Toth, an attorney for the Forest Service, said the project is necessary to reduce the potential for catastrophic fire, which would destroy or injure the old growth trees themselves.

The environmental plaintiffs have basically repackaged the same arguments against the project in different legal language, but haven't offered any new rationale against the thinning operations, he said. "Nothing has really changed here."


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