Lawyers for the agency told the U.S. 9th Circuit Court of Appeals in a new filing they don’t believe the woodpecker will be harmed by the logging set to begin this week at the Angora fire site where 3,000 acres of national forest and 250 homes burned in 2007.
But they said that contrary to claims by environmentalists’ seeking an emergency injunction, the Forest Service has no legal mandate to insure the viability of the bird’s population within the 147,000-acre forest known as the Lake Tahoe Basin Management Unit (LTBMU).
In the papers filed in the San Francisco court late Friday, the agency said U.S. District Court Judge Garland Burrell Jr. made it clear he agreed with that interpretation in his July 13 ruling in Sacramento denying the injunction sought by the Earth Island Institute’s John Muir Project and the Center for Biological Diversity.
“The district court correctly found that the LTBMU Plan does not require the specific viability analysis for the woodpecker as a condition of proceeding with the project,” the agency’s filing says.
“Even if there were any ambiguity as to whether the LTBMU Plan imposed substantive project-level viability requirements regarding black-backed woodpeckers, the court must defer to the Forest Service’s reasonable interpretation that the plan does not,” it adds.
The conservationists are hopeful the federal appeals court will rule on the request for an emergency order before the Forest Service intends to start the logging near South Lake Tahoe this week, perhaps as early as Tuesday.
They argue that USFS rules adopted in 1982 under the National Forest Management Act long have been interpreted to require the agency to maintain robust enough populations of every species found on a particular forest to make sure they don’t go extinct.
“This is a very radical, extreme position for the Forest Service to take,” said Chad Hanson, executive director of the John Muir Project based in Cedar Ridge, Calif.
“They are basically saying their forest plans do not require them to prevent these species from going extinct — in fact, that the plans don’t stop them from driving these species to extinction,” he told The Associated Press.
Hanson said that position is even more troubling given the fact the agency designated the black-backed woodpecker in 2007 as the lone “management indicator species” representative of all wildlife specifically dependent on habitat found in severely burned forests in the Sierra. The bird is not listed under the U.S. Endangered Species Act, but Hanson has petitioned California for a state listing.
The so-called “viability requirement” was at the heart of a landmark decision 20 years ago involving the agency’s most famous indicator species — the Pacific Northwest’s northern spotted owl.
U.S. District Court Judge William Dwyer in Seattle granted an injunction sought by the National Audubon Society in 1991 halting logging of old-growth forests until the agency could show the harvests wouldn’t threaten the owl’s survival.
The Forest Service argues in its new filing the regulatory scheme changed in 2000 when the agency amended NFMA regulations so that such requirements apply “only to the extent they were incorporated” specifically into individual, updated forest management plans.
The Forest Service says the $3 million logging project aimed at removing both live and burned trees from an area about the size of more than 1,000 football fields is necessary to help reduce the risk of another catastrophic fire like the one that destroyed the 250 homes four years.
The agency says about 1,400 acres of black-backed woodpecker habitat will be left intact, enough to support between 16 and 24 pairs. Opponents of the logging say that’s not nearly enough to keep the species from going locally extinct.
Hanson cites part of the LTBMU’s management plan first adopted in 1988 that states the “primary purpose” of the standards and guidelines for wildlife management is “to perpetuate viable populations of wildlife species native to the area.”
The region-wide Sierra Nevada Forest Plan Amendment adopted under the Clinton administration in 2004 repeats the agency’s intention to “provide the fish and wildlife habitat and other ecological conditions necessary to maintain well-distributed viable populations of vertebrate species.”
In another amendment adopted in 2007, the lawsuit said the Forest Service “explicitly, unequivocally and repeatedly stated that the amendment did not modify or eliminate the existing viability requirements in the forest-wide forest plans in the Sierra Nevada.”