04/28 - Lawsuits stall forest thinning - East Valley Tribune: News

04/28 - Lawsuits stall forest thinning

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Posted: Sunday, April 27, 2003 11:19 pm | Updated: 1:39 pm, Thu Oct 6, 2011.

Kate Klein knew the forest was ready to explode last June.

For five years, the supervisor of the Black Mesa Ranger District in the Apache-Sitgreaves National Forests had pushed a plan to thin out the overgrown stands of trees on the western side of the forest in hopes of curtailing the threat of a wildfire.

But after two years of planning and public hearings, the project was blocked, first by an appeal and then a lawsuit brought by a Tucson environmental group. Those legal maneuvers had dragged on for almost three years by June 2002.

Knowing that time was running out, Klein pushed the higher-ups in the U.S. Forest Service to get the case moving again. Klein and her staff worked long into the weekend on paperwork she hoped would break the legal logjam. Three days later, the first smoke from the Rodeo-Chediski fire was spotted far south on the Fort Apache Indian Reservation. By the time the fire was finished, it had wiped out 90 percent of the land that Klein and her team were trying to protect.

“It was heartbreaking for all of us,” Klein said. “I think we probably went through all the classic stages of grieving. There was frustration. There was anger.

“I hope people remember back to when the fire occurred, and right after the fire, some of the statements that came from environmental groups that they don't file lawsuits and they don't try to stop projects. They do file lawsuits, and they do appeal decisions on a regular basis.”

A four-month Tribune examination of court records and Forest Service documents reveals that in the past decade almost every major forest-thinning project in Arizona has been blocked by a near-constant chain of lawsuits brought by environmental groups. When successful, the lawsuits have halted any action on forest-thinning projects that would reduce fire danger.

When unsuccessful, they still tie up forest-thinning efforts for years.

Today, almost all forested land in the state remains primed for catastrophic wildfire, primarily because the forests have grown too thick, experts from both the Forest Service and environmental groups agree.

The shutdown began in the mid-1990s when a federal judge in Phoenix blocked any forest-thinning activity on every Southwestern forest with an injunction in a case brought by the Tucson-based Center for Biological Diversity. Since then, there has been a rolling series of lawsuits aimed at stopping proposed tree-thinning treatments. That pattern of litigation continues today.

Critics say environmentalists have used the courts to make themselves the de facto managers of the forests. Win or lose, a lawsuit can delay a thinning project for years, often to the point that the original plan becomes unfeasible because of changing conditions on the ground, said Pat Jackson, appeals and litigation officer for the Forest Service's Southwestern region, which includes Arizona.

“The bottom line is these people don't want the action to go on the ground,” Jackson said. “You've created a situation where there is unlimited opportunity to challenge things successfully, at least to the extent that you can delay it for two, three, four years.

“What these environmental groups have developed into is a group of people who exercise their power and control in the federal courtroom by procedural claims strategically taken to block actions that they don't like.”

Environmentalists insist they are not to blame for the conditions that led to the Rodeo-Chediski fire. They say the blame should be shouldered by the Forest Service and other federal land management agencies that try to use thinning efforts to shield large-scale logging projects that will do little to reduce wildfire risks.

When the agencies propose fuel reduction around communities, and use treatments such as controlled burning and cutting only small trees, they typically are not challenged, said Brian Segee of the Center for Biological Diversity, the primary litigant in cases involving the Apache-Sitgreaves National Forests. Lawsuits and appeals come when the agencies propose cutting large trees deep in the woods with plans that do little to reduce fire danger, but are geared largely to benefit timber companies, he said.

“The ability of the Forest Service and the politicians within Arizona to turn the Rodeo-Chediski fire into a poster child of how environmentalism had run amok was really an incredible coup and was based upon fundamental mistruths,” Segee said. “From our perspective, Rodeo-Chediski is not a legacy of lack of management. Rodeo-Chediski is a legacy of mismanagement.”

Despite the fears of Segee and other environmentalists, the logging industry was virtually wiped out by the court edicts of the 1990s. Only two non-Indian commercial sawmills remain in Arizona.

GRIDLOCK BY DECREE

Appeals and lawsuits are two parts of the same problem, according to Jackson and other Forest Service officials.

Either can be filed by a group or an individual who objects to actions proposed at the local forest level. Local foresters' decisions can be appealed to the Forest Service's regional forester in New Mexico. Appeals typically can be resolved in a few months, Jackson said.

Once the appeals process is exhausted, anyone challenging the agency's plans can file a lawsuit in federal court. That can stop action on the ground for years, Jackson said.

Since 1994, Arizona forests have been entangled in seven lawsuits that have brought large-scale thinning to a virtual standstill, according to court records and agency documents. That is only the lawsuits that target tree cutting by the Forest Service and does not include litigation on other issues such as grazing, or against other agencies such as the Bureau of Land Management or the Park Service.

During that same period, 39 tree-thinning projects proposed by the Forest Service in Arizona have been challenged in administrative appeals, according to agency records. Of those appeals, the regional forester has upheld the proposals drawn up at the local level in 26 cases and reversed the local decision in four, according to agency records. Six appeals were withdrawn either by the appellant or the agency, and three were dismissed.

Arizona is not unique. Last July a Forest Service study found that 48 percent of the thinning projects proposed in national forests nationwide are challenged in appeals. In addition, 6 percent of those decisions are challenged in court, according to the report, based on figures from the 2001 and 2002 fiscal years.

The agency also concluded that lawsuits and appeals have created such a complex system of forest management that it is virtually impossible to get meaningful thinning done on a large scale. Ever-changing court decisions lead to excessive analysis by the agency, wasting about $100 million per year strictly on defensive paperwork, according to Forest Service reports. The added documentation does nothing to improve the agency's decisions, but is necessary to guard against projects being scrapped by the courts because of some procedural error, the reports found.

The courtroom is so readily available that there is little incentive for environmental groups to participate in the planning process, according to the Forest Service.

The Forest Service report issued last July was initially ridiculed by environmental groups. After it was issued, they continued to cite a 2001 study by the General Accounting Office, the investigative arm of Congress, which found that about 1 percent of the thinning projects on national forests were appealed and none was challenged in court.

The GAO disavowed the findings of that report in a July 2002 letter to Congress. A major flaw with the 2001 study was it only looked at appeals filed in the year studied, and did not examine whether the project had been delayed in prior years through appeals, according to a letter from Barry Hill, director of natural resources and environment for the GAO.

CHAIN OF LITIGATION

There is perhaps no better example of what the unending chain of lawsuits and appeals have brought than the “Baca Ecosystem Management Area” of the Apache- Sitgreaves, the area that Klein watched burn after five years of planning and delay.

In 1994, Center for Biological Diversity co-founder Robin Silver, an emergency room physician, sued to force the U.S. Fish and Wildlife Service to designate critical habitat for the Mexican spotted owl as required by the Endangered Species Act. A year earlier, Silver had successfully pushed to have the owl listed as a threatened or endangered species.

Federal Judge Carl Muecke sided with Silver and ordered the wildlife agency to designate habitat for the owl. Though plans were proposed, Muecke found them unacceptable and in August 1995 issued an injunction, blocking any type of forest cutting in every national forest throughout the Southwestern region, which includes Arizona, New Mexico and parts of west Texas and Oklahoma.

Muecke's order did not even allow individuals to obtain permits to cut firewood or Christmas trees. It remained in place for 16 months. In December 1996, two months after Muecke recused himself from the case, Judge Roger Strand lifted the injunction.

By then the timber industry in Arizona had been wiped out, costing rural counties hundreds of jobs and eliminating the only mechanism the Forest Service had to thin overgrown forests on a large scale, said Lewis Tenney, a former Navajo County supervisor who at the time was a co-owner of Precision Pine, which ran a sawmill in Heber.

Since Mueke's injunction was lifted in December 1996, there has been a series of other lawsuits brought by environmental groups which, successful or not, have stopped most aggressive forest-thinning projects in Arizona.

The result has been a steep escalation in the buildup of fuels in the forest, according to Ric Frost, a researcher at New Mexico State University. In the first five years after Muecke's order, about 1.8 billion board feet of excess timber accumulated in Arizona forests, according to Frost, who has run computer analyses on the buildup of fuels in Southwestern forests. A board foot is a piece of wood a foot long, a foot wide and an inch thick.

Notable lawsuits include:

• Forest Guardians v. Thomas. The case was filed in October 1996, two months before the Silver case was resolved, by the Center for Biological Diversity and the New Mexico-based Forest Guardians. In June 1996, the Forest Service amended its long-range plans for the 11 forests in the Southwest region to provide new guidelines to protect the Mexican spotted owl. The agency applied the new guidelines only to new projects, not contracts that had been approved under old forest plans.

The environmentalists argued the plans should be retroactive, and asked the judge for an injunction, which was not granted. After the judge ruled in favor of the Forest Service, the environmental groups appealed to the 9th U.S. Circuit Court of Appeals, which did issue an injunction pending review of the case. That injunction remained in place for six months, until December 1997 when the appeals court sided with the Forest Service.

• Center for Biological Diversity v. Boswirth. The center again challenged the Forest Service's regionwide plans with a lawsuit filed in September 2000. This time, the plaintiffs alleged the agency had not properly considered all of the scientific information available on the foraging needs of the northern goshawk.

The center asked for, but did not get, an order from the judge blocking all timber sales on forests in the region. Last year, Judge Robert Broomfield ruled in favor of the Forest Service. The center has appealed to the 9th Circuit court, which has not rendered a decision.

• Center for Biological Diversity v. Bedell, filed in May 2000. Once the Forest Service had gotten the courts to sign off on its forest plans, which are broad documents akin to a city's general plan, specific site plans for the Baca Ecosystem Management Area were developed.

Klein said planning for the Baca began shortly after the injunction in the Thomas case was lifted. Commercial timber cutting was confined to 964 acres, under the plan. Thinning smaller trees, brush removal and controlled fires were planned on other parts of the 28,000-acre planning area, according to court documents.

The Baca plan was approved by John Bedell, supervisor of the Apache-Sitgreaves, in September 1999. The center appealed unsuccessfully, then sued in May 2000, claiming the Forest Service had not followed the procedural requirements of a litany of environmental laws in devising the plan. The case was still in litigation when the Rodeo-Chediski hit. It was dropped after the fire through an agreement between the center and the Forest Service.

• Forest Conservation Council v. U.S. Forest Service. In the wake of the Rodeo-Chediski fire, the Forest Service developed a plan to hold a commercial timber sale to remove dead trees along roads, utility corridors and campgrounds. It sought to use a “categorical exclusion,” a mechanism in the law that allows the agency to use an expedited planning process in emergencies. Use of the exclusion shields proposals from appeals, but they can still be challenged in court.

The council's lawsuit, filed in January 2003, contends the size and scope of the project is inappropriate for a categorical exclusion. It also alleges the Forest Service violated provisions of two federal laws requiring detailed environmental assessments and studies of potential archaeological sites when it does a salvage timber sale.

Jackson said he was not surprised by the lawsuit, even though all the trees that would be cut are dead.

“They think salvaging those dead trees is mugging a burn victim,” Jackson said of environmentalists.

Steve Sugarman, a board member of the Forest Conservation Council and the lawyer who filed the suit, said there is ample scientific evidence that leaving burned timber standing and on the ground is beneficial to wildlife and ultimately aids regrowth of the forests. Salvage logging brings more destruction to the land as logging trucks disrupt damaged soil while removing fallen trees that can stabilize the ground, he said.

“Even the Forest Service's own scientists have concluded that post-fire logging is ill-advised and dangerous,” Sugarman said, citing an agency report on post-fire logging released in January 2000.

That report, however, does not conclude post-fire logging is destructive. It is largely a review of published literature that draws no conclusions, other than to note that the issue has not been adequately researched.

PAPERWORK CLAIMS

Most of the suits brought in Arizona do not claim actual harm will be done by the Forest Service's proposals, Jackson said. Rather they are based on procedural issues — missed deadlines, incorrect paperwork or whether there was sufficient study, he said.

The early cases attacked regional forest plans because that is a means of blocking action throughout the Southwest, Jackson said. The injunctions issued by Muecke and the 9th Circuit court in the Silver and Thomas cases closed down any tree cutting in every forest in Arizona and New Mexico. That is more effective for those challenging the Forest Service than attacking specific projects, Jackson said.

But forest plans are just broad concepts that do not authorize any action on the ground, Jackson said. Nothing can go forward until specific project plans are approved after they go through separate environmental planning and public hearings, he said.

“You could take all the forest plans in this region and roll them all into a club and hit a listed species, and that's the only way you are going to affect them,” Jackson said.

In the Baca case, the Forest Service agreed to a stipulated agreement to avoid a court injunction, Jackson said. That agreement between the agency and the center, reached in September 2000, allowed some thinning to proceed on 306 acres near Forest Lakes. But it stated no tree larger than 6 inches could be cut, and that the center had to give its approval before any other “ground disturbing activity” could be taken.

A subsequent agreement released an additional 1,000 acres under similar conditions. Klein said no attempt was made to thin that area because it became clear from the initial project that meaningful reduction of fuels could not be achieved with the conditions imposed.

In the latest lawsuit, the Forest Service also agreed it would not proceed with any salvage timber sale without first notifying the Forest Conservation Council, which asked the judge to issue an injunction anyway.

FIRES “SPECULATIVE”

In weighing whether to issue an injunction, judges consider potential harm to the government against the prospect that the plaintiffs’ claims will be rendered moot if the agency proceeds with its plans, Jackson said.

The fire argument has not been successful in persuading judges not to issue injunctions, he said.

“The fire argument doesn't carry much weight because it's so speculative,” Jackson said. Segee of the Center for Biological Diversity said it is simplistic to blame environmental groups and the lawsuits they have brought for the destructiveness of the Rodeo-Chediski fire. Until the center and other organizations began challenging Forest Service plans in the mid-1990s, the agency's projects were geared toward sustaining timber companies, not reducing fire danger, he said.

Overgrowth of the forest resulted from a century of fire suppression, a policy largely geared toward protecting lumber for timber companies, Segee said. What the lawsuits did was force a fundamental change in the way the Forest Service approaches projects, Segee said. Because of the litigation, federal land managers are forced to seriously consider environmental impacts when they plan a project, he said.

“It's just incredible for our critics to look at a year-and-a-half injunction and say that has created these fires, like all these trees grew up in the last five years,” Segee said.

But Klein sees things differently. While the Baca case was in litigation, the center had the power to control what happened on the land, she said. The conditions imposed by the center were unrealistic and as a result, meaningful thinning that might have lessened the destructiveness of the Rodeo-Chediski fire could not be done, she said.

“They definitely had veto power on what we proposed,” Klein said. “I guess it's frustrating because we manage for all the people. We don't just manage the forests for the Center for Biological Diversity. We have a mailing list that has hundreds of people in communities all across this country. I believe we have as much obligation to them as we do to a group that has a lot of power and money, and can file lawsuits.”

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