Court: No logging of burned forest - Panel slams feds for not considering owl's plight

By David Kravets, Associated Press
The Daily Camera

December 12, 2003

SAN FRANCISCO — A federal appeals court ruled Thursday that forest ravaged by fire in 2001 near Lake Tahoe cannot be logged despite government fears of renewed fire danger.

A three-judge panel of the 9th U.S. Circuit Court of Appeals faulted federal forest officials for approving the cutting plan without adequately considering the plight of the California spotted owl and other environmental concerns.

The U.S. Forest Service, allowing the salvage project of 1,700 acres, said the burned area was so ravaged that the habitat did not require protection because it was no longer attractive to owls. Environmental group Earth Island Institute sued to block the project alleging, among other things, there were owls still in the area.

"Essentially, the government argues that because it reasonably determined the entire area to be unsuitable for owl habitat, it could treat the temporary presence of owls as an aberration," Judge Sidney Thomas wrote for the 2-1 majority that overturned the government's position.

The institute also accused the Forest Service of targeting large, living trees for cutting in the El Dorado National Forest under the guise of a salvage project to remove trees killed by wildfire. Judge Thomas, in sending the lawsuit back to a federal judge, said there was a credible dispute on whether trees marked for cutting were dead.

The Forest Service said hundreds of trees targeted for cutting are dead and must be removed. A failure to do so could add to disease and potentially fuel new fires.

"Our concern in general, as dead trees fall haphazardly across the forest, there will be a campfire effect, as brush and new growth comes up underneath, a fire that starts in that jewel bed on the forest floor will create a large fire," said Matt Mathes, a Forest Service spokesman.

He wouldn't say whether the government would appeal, but said that burned trees lose their value quickly.

"They're out there degrading," he said. "After a while, they lose their commercial value."

The salvage operation is in Placer County, about 20 miles west of Lake Tahoe and south of Interstate 80 along the Upper Middle Fork of the American River.

Earth Island attorney Rachel Marie Fazio said such salvage projects actually increase fire danger because loggers remove the trees, but leave behind tons of limbs and other debris from the trees.

"That's the fire hazard. It's not the big trees," she said.

In dissent, Judge Richard Clifton said the majority "fails to explain why preservation of a burned-out forest and postponement of rehabilitation plans serves the public interest."

The case is Earth Island Institute v. U.S. Forest Service, 02-16999.