“It's a landmark case,” said Agriculture Undersecretary Mark Rey, who oversees the U.S. Forest Service.
Tom Woodbury, an attorney for the Missoula-based Wild West Institute, one of two environmental groups involved in the lawsuit, disagreed.
In the unanimous ruling, an 11-judge panel of the 9th U.S. Circuit Court of Appeals said federal judges shouldn't act as scientists when deciding disputed timber projects and that greater deference should be given to agencies planning the cuts.
The decision - which covers most national forest land in the West - was hailed by logging advocates and lamented by conservation groups.
The ruling's fallout could be seen over the next several months, as it is applied to dozens of lawsuits put on hold in recent years until the issue was resolved, including six projects on the Lolo National Forest.
The ruling overturned decisions by a three-judge 9th Circuit panel that stopped timber sales in Idaho in 2007 and the Lolo forest in 2005.
Logging advocates and environmentalists agree the 2005 decision on the Lolo Post-Burn Project held agencies to unreasonably strict scientific standards for logging projects. New “ground-truthing” standards required agencies to explain in exact certainty all ecological impacts from proposed logging projects.
Now, that landscape has changed.
“On the one hand, last week's ruling clearly changes the law” by overturning the 2005 decision “that tried to set a hard-and-fast standard for the Forest Service, but that was really out of step with existing law,” said Niel Lawrence, senior attorney and director of the forestry project at the Natural Resources Defense Council. “On the other hand, in overruling that case, this opinion relies on ordinary, ho-hum standards of agency review that are pretty unexceptional.”
Rey said the new ruling sets more reasonable standards rather than reinstating benchmarks that existed before the 2005 ruling.
“People who want to challenge agency decisions will continue to do so, and time will tell whether they fail because of this narrower standard,” he said.
Woodbury, of the Wild West Institute, said the ruling may have little significance because it involved a preliminary injunction rather than a full case, which is still being pursued in U.S. District Court.
He said the ruling likely will be appealed to another 9th Circuit appeals panel within the required 45-day period. The ruling's potential fallout was uncertain because it was made “en banc,” by a panel of judges that included fewer than half of the court's 28 judges, he said.
By Woodbury's accounting, the ruling would exempt federal agencies from public scrutiny if they weren't forced to prove their decisions were based on verifiable science rather than bureaucratic decision-making.
“When you allow a federal agency to determine whether it's complying with law is how you end up with chaos,” Woodbury said.
Debbie Austin, supervisor of the Lolo National Forest, said timber in the Lolo post-burn area has lost its value, but an analysis will be completed on whether stream restoration, road work and other improvements in the original project will occur. The forest had planned to log about 4,600 acres of timber burned during the fire season of 2000.
“I'm happy with the ruling, but I think it's a little too early to tell what this means on the ground,” Austin said. “We're moving forward in a positive and less controversial way in terms of finding common ground” with environmental groups.
Julia Riber, litigation coordinator for the Forest Service's Northern Region, said the region has six cases pending before the 9th Circuit Court involving timber cutting, grazing and travel management plans.
Riber said last week's ruling gives agencies greater deference, but that their decisions must still be supported by good science and meet federal environmental laws.
“This ruling basically gives us more confidence and a clear road map on what we need to do to meet the law,” she said.
Julia Altemus, a natural resource specialist with the Montana Logging Association, said the decision will clear the way for appropriate timber harvesting.
The 2005 ruling “put the bar so high, but what other industry had to live up to that kind of standard?” she said. “The Forest Service tried to bulletproof every project, but you can't do it. Now they can go back to a more reasoned approached and use sound science.”
Dan Rohlf, an environmental attorney and executive director of the Portland, Ore.-based Pacific Environmental Advocacy Center, said the new ruling favors logging on public lands without subjecting agency findings to peer review, a common practice among scientists.
Rohlf also said the ruling's fallout could swing in environmentalists' favor if a green-minded president were to pressure the Forest Service to reduce logging.
In that scenario, federal judges deciding lawsuits brought by timber companies would have to give deference to agencies that want to leave trees standing rather than to cut them down.
“In being very deferential to federal agencies, what the courts do is to give them a tremendous amount of leeway to make decisions supported by what the agency itself has determined as sound science and a policy risk that's worth taking,” he said. “This ruling isn't pro-logging or anti-logging. It just insulates federal agencies from more scrutiny.”
Tim Preso, a staff attorney at Earthjustice, said the ruling reaffirms the basic principles of rational, common-sense science that federal laws have long required. He dismissed logging advocates' description of the ruling as significant.
“As long as the Forest Service operates rationally and doesn't ignore important factors, there's no problem,” he said.
Despite the predictions about what the ruling will mean, some people still had questions.
“It leaves a lot of uncertainty about how judges can evaluate the cases without stepping on the Forest Service's toes,” said Lawrence, of the NRDC.
Joe Brooke, an owner of Prentice Lumber in Missoula, said he was uncertain what to make of the ruling.
“It seems like a big deal, but maybe not,” he said.
|
 |
 |
Add your comment now! Write your comment in the form below.
(Email address is for verification only. If you'd like to email a story, look for the link above)