Judge wrongly second-guessed forest agency, opinion says

By MATEUSZ PERKOWSKI

Capital Press

A federal judge was wrong to have blocked a tree thinning operation in Oregon's Deschutes National Forest, according to the 9th U.S. Circuit Court of Appeals.

In 2008, U.S. District Judge Michael Hogan ruled that the U.S. Forest Service violated environmental laws by allowing logging on about 600 acres of old-growth forest.

The federal appeals court has now overturned that decision, finding that Hogan should not have second-guessed the forest agency's strategy of preserving old-growth stands by reducing wildfire hazards.

"That task goes to the very heart of the Forest Service's expertise," according to the 2-1 majority decision.

The opinion has reinforced the agency's authority to make decisions without undue interference from the courts, said Ann Forest Burns, an attorney and vice president of the American Forest Resource Council, a timber industry group.

"Deference to agency expertise is a very important aspect of this case," she said. "The agency gets to choose which science is the most persuasive."

The 9th Circuit ruling recognizes that harvest operations in "late successional reserves" of older trees are sometimes necessary for the health of the forest, she said.

The Forest Service acknowledged that thinning would temporarily have a negative effect on potential habitat for the spotted owl, a federally-protected threatened species.

However, removing trees would reduce the risk of fire by about 40 percent, according to the agency.

"You can't leave them to burn up and expect the owl to have any habitat left," Forest Burns said. "You can manage spotted owl habitat for the benefit of the owl."

The appellate decision probably won't result in a "frenzy of old growth logging," but it does place too much power in the hands of federal forest managers, said Josh Laughlin, campaign director for Cascadia Wildlands, an environmental group.

"We watched for too many decades what the Forest Service being the expert translates into," he said.

Environmental groups involved in the litigation believe the agency should focus on thinning overstocked stands of young trees, whereas the agency's plan was a "massive logging project cloaked as fire risk reduction," Laughlin said.

"We believe the government way overstepped its bounds by proposing logging in functional spotted owl habitat," he said.

The plan to initiate thinning was prompted by a 2003 fire that burned more than 20,000 acres of the Deschutes National Forest.

The agency's Five Buttes Project called for various fire prevention measures on roughly 160,000 acres of land, including commercial logging on 600 acres of old growth spotted owl habitat.

Several environmental groups challenged the plan in federal court in 2007, resulting in Hogan's injunction against the project the following year.

The judge decided the project violated management objectives of the Northwest Forest Plan and that the federal government hadn't thoroughly analyzed its environmental effects.

The 9th Circuit rejected that reasoning in its Aug. 13 opinion.

"The Forest Service adequately considered the cumulative impact of past, present and foreseeable future actions and sufficiently considered and responded to opposing scientific views," the ruling said.