Jim Porter: Sierra Nevada forest plan ruled defective
TRUCKEE, Calif. andamp;#8212; andamp;#8220;The national forests of the Sierra Nevada Mountains (andamp;#8216;the Sierrasandamp;#8217;) are home to a rich array of fauna, including at least 61 species of fish and 35 species of amphibians.andamp;#8221; With that statement, the federal Ninth Circuit Court of Appeals begins its Opinion striking down part of a President Bush-era plan to allow additional logging, grazing and road building in a 400-mile stretch of the Sierra Nevada forests, interestingly called andamp;#8220;Sierrasandamp;#8221; in the case. I thought andamp;#8220;Sierraandamp;#8221; was proper.Clinton/Bush Forest PlansIn the last year of President Clintonandamp;#8217;s term, the U.S. Forest Service adopted what was called the Sierra Nevada Forest Plan following preparation of an environmental impact statement (EIS).Of the 11 national forests in California, which include the Lake Tahoe Basin Management Plan, 11.5 million acres is managed by the Forest Service under the Sierra Nevada Forest Plan. In 2001, in the waning days of Clintonandamp;#8217;s term, a forest management plan was finalized in an effort to ensure andamp;#8220;the ecological sustainability of the entire Sierra Nevada ecosystem and communities that depend on it.andamp;#8221;After President Bush took office he appointed a new chief of the Forest Service. Shortly afterward, in 2004, a revised Sierra Nevada Forest Plan was adopted.Revised 2004 Sierra Nevada Forest PlanThe difference between the 2001 Clinton Sierra Nevada Forest Plan and the amended 2004 Bush Plan was the focus of the Court of Appealsandamp;#8217; decision.The amended Plan called for an additional 4.9 billion board feet of timber to be logged over two decades, a 250 percent increase over the 2001 Plan. The new Plan added 90 miles of new road construction and increased acreage for grazing and reduced grazing restrictions. The amended Plan also relied more on timber cutting than prescribed burns for wildfire protection.USFS Sued andamp;#8212; FishA group called Pacific Rivers Council sued the Forest Service claiming the 2004 Sierra Nevada Forest Plan failed to take a andamp;#8220;hard lookandamp;#8221; at the Planandamp;#8217;s impact on fish and amphibians in violation of the National Environmental Protection Act (NEPA). The three-judge appellate panel first determined that Pacific Rivers had andamp;#8220;standingandamp;#8221; to challenge the Forest Plan because its members actively recreate in the Sierra Nevada and the Plan would affect them.In a lengthy Opinion, the Court came down against the Forest Service writing, andamp;#8220;The Forest Service provided no analysis (on impacts to fish) despite the fact that the 2004 (Plan) allows much more logging, burning, road construction, and grazing than the 2001 (Plan).andamp;#8221;FrogsThe Court then addressed whether the 2004 EIS adequately analyzed impacts of the Bush-era Plan on amphibians, specifically six species in the Sierra Nevada: the California Red-legged Frog, the Foothill Yellow-legged Frog, the Mountain Yellow-legged Frog, the Northern Leopard Frog, the Cascades Frog and the Yosemite Toad. Cutting to the chase, the Court found the environmental analysis adequate as to amphibians. In sum, before the 2004 Sierra Nevada Forest Plan may be approved, the Forest Service must do a more thorough analysis of the Planandamp;#8217;s impacts on individual species of fish. And once it does, the agency will probably be sued again. DissentJudge Smith dissented from the majority opinion, suggesting the judges had imposed their own views in the Opinion rather than giving discretion to the Forest Service as the law requires.Judge Smith wrote that the Sierra Nevada Forest Plan is based on what is called a programmatic (general) EIS which requires less detailed analysis than a site-specific (project) EIS andamp;#8212; arguing that a more in-depth analysis of impacts of the Plan on fish and amphibians would be done when logging or other projects come forward in specific watersheds in the Plan area. Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governorandamp;#8217;s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election law and the Political Reform Act. He may be reached at firstname.lastname@example.org or at the firmandamp;#8217;s website http://www.portersimon.com
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