Monday, August 8, 2005
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Ninth Circuit Rejects Forest Service Plan for Logging in Alaska
By KENNETH OFGANG, Staff Writer/Appellate Courts
A forest management plan for the Tongass National Forest, which would allowed harvesting of more than 200 million board feet of timber in the next decade, is seriously flawed and must be reconsidered, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The panel agreed with environmental groups that the Forest Service’s admitted error in calculating demand for Tongass timber renders the plan, and the supporting economic impact statement, invalid. In doing so, it rejected arguments by the service that the error was inconsequential.
The court sent the case back to Senior U.S. District Judge James K. Singleton to consider a remedy. Intervenors, the state of Alaska and the forest products industry, had argued that even if the error was not harmless, timber sales should not be enjoined because the economic harm resulting from an injunction would outweigh the environmental benefits.
The state intervened, Gov. Frank Murkowski said at the time, because “We do development right in Alaska.” The Republican chief executive said he would “continue to stand up to these outside special interest groups who believe that we can’t grow our economy and protect our environment,” a belief he called “simply wrong.”
‘Unspoiked and Intact’
The Tongass, Judge Ronald Gould noted for the appellate panel, “is the nation’s largest national forest, and the largest unspoiled and intact temperate rainforest in the world, containing almost seventeen million acres and occupying about seven percent of Alaska’s area.” It was created in 1907 by President Theodore Roosevelt, whom Gould noted was an advocate of wildlife conservation.
The judge pointed out that under the National Forest Management Act, the Forest Service must develop “land and resource management plans” for the Tongass and other forests. The goal, Gould explained, is to find an appropriate balance among economic, recreational, and environmental uses.
All plans must be revised at least every 15 years. At issue in the case ruled on Friday is a revision that the service first proposed in 1997.
While the revision was being considered, Congress passed the Tongass Timber Reform Act, which requires the service, subject to the NFMA, to “seek to provide a supply of timber from the Tongass National Forest which (1) meets the annual market demand for timber from such forest and (2) meets the market demand from such forest for each planning cycle.”
In preparing the 1997 revision, the service hired two economists, David Brooks and Richard Haynes, to determine the market demand for Tongass timber. They estimated that, depending on certain variables such as Alaskan timber’s share of the Japanese market and the competitiveness of the industry, that demand for Tongass timber would range from 68 million to 154 million board feet per year.
The service, however, erroneously interpreted the Brooks-Haynes study. Assuming that the estimate applied only to sawlogs—the portion of the tree whose size and quality is suitable for production of dimension lumber—the service estimated that total demand at between 130 million and 296 million board feet per year, or nearly double the Brooks-Haynes figures.
The service, required to choose among various alternative plans in the environmental impact study, chose one that would allow logging within 3.9 million acres, including 2.4 million acres of currently roadless area, with an “allowable sale quantity” of up to 267 million board feet of timber per year for 10 years.
‘Not Significant’
Rejecting challenges to the plan by the Natural Resources Defense Council, Southeast Alaska Conservation Council, the Sierra Club, the National Audubon Society, the Wilderness Society, and the Center for Biological Diversity, Singleton said the erroneous market demand report “was not significant to the planning process” and that the service had adequately considered alternatives to the plan that was finally approved.
But Gould, writing for the Court of Appeals, noted that under the Ninth Circuit’s case law interpreting the NFMA and the National Environmental Policy Act, the government bears a heavy burden in claiming that an error in the planning process is harmless.
“The Forest Service has not met its burden,” the judge wrote.
“Common sense, as well as the record, tells us that the Forest Service’s assessment of market demand was important for its determination...of how much timber is allowed to be cut,” Gould wrote.
He continued:
“Given the competing goals to be accommodated under NFMA, it is clear that trees are not to be cut nor forests leveled for no purpose. If market demand exists for timber, the need for timber harvest may outweigh the competing goals for environmental preservation and recreational use. But if the demand for timber was mistakenly exaggerated, it follows that the timber harvest goal may have been given precedence over the competing environmental and recreational goals without justification sufficient to support the agency’s balancing of these goals.”
Earthjustice, the environmental law firm that represented the plaintiff, issued a statement calling the ruling “a victory for all Americans because it will give people a chance to see our biggest and most wild national forest in its natural state.”
The case is Natural Resources Defense Council v. United States Forest Service, 04-35868.
Copyright 2005, Metropolitan News Company