Ninth Circuit Court Clears Way for Big Thorne Timber ProjectEnvironmental groups disappointed by rulingBy MARY KAUFFMAN
May 24, 2017
The federal appeals court has now cleared the way for logging in the Tongass National Forest, marking a major win for Alaska's timber industry and a significant defeat for environmentalists. Big Thorne is the largest project on the Tongass in over 20 years, and its 8,500 acres of logging will take 148.9 million board feet of timber. Prince of Wales Island, the third largest island in the country, is about the size of Delaware. The Big Thorne sale was designed to be a ten year sale supplying timber at a rate of 15 to 20 million board feet per year. Although the final sale fell well short of the planned volume of timber, the sale is nevertheless one of the biggest federal timber sales from the Tongass in many years. As such, it allows the last remaining mill in Southeast Alaska, Viking, to continue to operate in the near term. However, the timber supply remains at a critically low level and the future of the industry remains in doubt. “In a resource-centered state, we must be able to responsibly develop our resources,” said Alaska Attorney General Jahna Lindemuth. “I’m pleased the Big Thorne Timber Sale can continue to move forward and hope that we will see more sales in the future that properly balance conservation with economic need.” In 2014, the U.S. Forest Service (USFS) authorized the harvest of 148.9 million board-feet of timber over 8,500 acres. Several environmental groups challenged the record of decision for the sale and the 2008 Amendment to the Tongass Land and Resource Management Plan. Most of the allegations related to wolf management in the harvest area, which is a joint function of the State and USFS. U.S. District Court in Alaska ruled in March 2015, the Forest Service complied with the law when it approved the Big Thorne timber sale and upheld the sale and the Forest Service's management plan. Plaintiffs appealed that ruling favoring th United States Forest Service, the State of Alaska, the Alaska Forest Association and many other intervening parties. Tuesday, the Ninth Circuit upheld that Forest Serive did not violate any laws in authorizing Big Thorne. Environmental groups were disappointed with the decision saying the 6,000 acres of clear-cuts will destroy coastal old-growth forest habitat which supports rare and unique species of fish and wildlife, and is a mecca for outdoor recreation, eco-tourism, and commercial fishing. The groups say Prince of Wales Island supports rare and unique species of fish and wildlife, and is a mecca for outdoor recreation, eco-tourism, and commercial fishing. “The majority opinion presented the question before the Forest Service as a binary choice between jobs and wolves,” said Hunter McIntosh of eco-tour operator The Boat Company. “That is a false premise. Thousands of Alaskans rely on jobs in the recreation, tourism, and commercial fishing sectors, jobs that are dependent on intact old-growth ecosystems.” “We are disappointed that the court’s decision tipped to a setback in our effort to save the ecological integrity of Prince of Wales Island,” said Larry Edwards for Greenpeace. “The impacts of the Big Thorne logging combined with those of other intense clearcutting, on-going and over past decades, are huge.” “This is a sad day for ancient old-growth forests,” said Gabriel Scott of Cascadia Wildlands. “Nearly all of the old-growth forests across the country have already been logged, and the Tongass represents our last chance to right the ship.” Plaintiffs filed suit alleging that the 2008 Tongass Forest Plan unlawfully damages the habitat of the indigenous Alexander Archipelago wolf, and that the Forest Service violated the National Forest Management Act (NFMA) by approving either the Big Thorne project or the 2008 Tongass Forest Plan (Forest Plan) under which Big Thorne was authorized. The case was heard before Ninth Circuit Court Judges Alex Kozinski, Diarmuid F. O’Scannlain and Ronald M. Gould on February 3, 2016 in Seattle. The decision was released May 23, 2017. The court’s decision was a 2-1 split. Two judges of the court, a Reagan appointee and a Bush-1 appointee, ruled in favor of the Forest Service, while Judge Ronald Gould, a Clinton appointee, wrote a dissenting opinion. A broad consortium of groups - representing conservation, recreation, and tourism interests - had sued to halt implementation of the logging project in 2014. Bolstered by expert scientific opinions about the precipitous decline of populations of the Alexander Archipelago wolf, an endemic species that relies on the Tongass’ coastal old-growth forests, the groups charged that the Forest Service had not met its legal duty to provide for a “viable” population of wolves. While the majority upheld the Forest Service’s overall Tongass Forest Plan and decision to approve the Big Thorne project, Judge Gould believed that the Forest Service had not adequately explained how it had met its legal duty to maintain viable wolf populations. “The Forest Plan and the Big Thorne Project,” wrote Gould, “do not demonstrate that the [Forest Service] will manage old growth habitat in a manner that insures the viability of the wolf in well distributed populations throughout the Tongass National Forest.” Logging has been on-going in the Big Thorne project since April 2014, while the case worked its way through the courts. The project is intended to be on-going for 10-years. The groups are currently weighing their options for next steps. The majority opinion from the Ninth Circuit Court of Appeals affirmed the Alaska District Court’s summary judgment in favor of the United States in an action alleging that the United States Forest Service violated the National Forest Management Act by approving either the Big Thorne logging project or the 2008 Tongass Forest Plan under which Big Thorne was authorized. Plaintiffs alleged that the 2008 Tongass Forest Plan unlawfully damages the habitat of the indigenous Alexander Archipelago wolf, and that the Forest Service violated its self-imposed obligation under the Plan by failing to ensure the wolf’s sustainability. The court held that the Forest Service Plan’s provision pertaining to sustainability was discretionary. The court held that because the Forest Service was only obligated to consider sustainability “where possible,” there was no law to apply in second-guessing the agency. The court held that it was aware of no authority compelling the agency to set a specific standard or benchmark for protecting the viability of a species that was neither endangered nor threatened. The court noted that the Forest Service’s Record of Decision specifically concluded that the Forest Plan would “sustain viable populations of the Alexander Archipelago wolf,” and the court concluded that Forest Service’s discussion of viability was not arbitrary or capricious. The court further held that the Big Thorne Project was consistent with the Forest Plan. In a concurrently filed memorandum disposition, the court also dismissed plaintiffs’ claims under the National Environmental Policy Act. Judge Ronald M. Gould dissented from the portion of the majority’s discussion of the issues relating to the National Forest Management Act, and concurred in the court’s reasoning concerning the National Environmental Policy Act, as presented in the concurrently filed memorandum disposition. Judge Gould stated that the Forest Plan presently provides no mechanism to ensure wolf population viability, and that the agency’s rationale and reasoning process was too summary and conclusory. Judge Gould would vacate the decision of the Forest Service and remand for further proceedings, which at a minimum would include both a thorough assessment of the viability of the Alexander Archipelago wolf if the project proceeds, and an explanation of its reasoning sufficient to satisfy Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
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