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February 15, 2007

If a Tree Dies…

If a tree dies in the forest, someone will notice — particularly if there are many trees dying at once. Commercial foresters will notice, since they tend to have an aversion to dead and dying timber (including what they used to call 'decadent old growth'). Wildlife biologists will notice since they too track 'dead and dying', but view such much more an opportunity than a threat (e.g. habitat for 'cavity nesters'). Ecologists will notice while looking at cycles of 'insect and disease' and 'fire', among other disturbance regimes at work in the process of stand and forest-replacement. Recreation enthusiasts will notice since they like their forests to be 'park like' for the most part. And the general public will notice, when driving through the forest, and will likely side with the recreationists. Finally, the courts will notice in the ongoing and inevitable court battles that well-up over public lands and public purposes. So this story begins.


On August 5, 2005 the "School Fire" burned about 51,000 acres in southeastern Washington, with 28,000 acres located the Umatilla National Forest. The US Forest Service subsequently studied the situation and released a Final Environmental Impact Statement on July 10, 2006. A subsequent Record of Decision (August 14, 2006) allowed logging in portions of two uninventoried roadless areas. {Whether or not relevent in the current case, remember that at that time the Clinton-era Roadless Rule (now reinstated [Earthjustice Press Release]) had been replaced with the Bush-era Roadless Rule (called the "State's Petition Rule" — which has now been "set aside" when the Clinton Roadless Rule was reinstated)}.

The School Fire Record of Decision authorized immediate logging in three areas, based in part on the prediction that "a delay would result in a potential loss of value of $1,547,000 to the Federal Government." One day later the Forest Service was sued by environmental groups. A district court denied plaintiffs' motion, and the issue was appealed to the Ninth Circuit. On February 12, 2007 the United States Court of Appeals for the Ninth Circuit overturned the lower court's decision [PDF].

'At Issue'

Contrary to some popular opinion, courts aren't prone to second-guess professional theory/practice/method. Instead they usually rule on 'procedure' rather than 'substance'. In this particular case, 'at issue' was the fact that the Forest Service had decreed in policy ("Eastside Screens" for the Cascades) that it would "Maintain all … live trees [greater-than or equal to] 21" dbh … within stands proposed for harvest activities."

Reveral (in part) and 'Remand with Instructions'

[US Appeals Court, Ninth Circuit (Judges Graber, Paez and Bea)] …We therefore reverse the district court's denial of a preliminary injunction on the NFMA claim and remand with instructions to grant immediately a preliminary injunction to prohibit the logging of any "live tree" [greater than or equal to] 21" diameter at breast height that currently exists in the sales areas…i.e., any tree of the requisite size that is not yet dead. In accord with the "conservative definition" of a "live tree" given by the Forest Service's own expert, no tree of the requisite size with green needles shall be harvested. …

In overturning the lower court, the Ninth Circuit said:

… We apply the common meaning of the term "live trees" because neither the NFMA [National Forest Management Act of 1976] nor the applicable Forest Plan defines the term [as a "technical term understood by foresters"]. … Foresters very well may consider dying trees suitable for logging, but on this record we cannot conclude that they consider dying trees not "live." Indeed, the Forest Service's own expert testified that some "live trees" had been designated for removal … applying the common meaning of "live trees" to include trees that were not dead but that, in his opinion, had a low likelihood of ling-term survival.

The Ninth Circuit Court concluded:

…"the district court made a clear error of law, and Plaintiffs have established a very strong likelihood of success on the merits of their NFMA claim. Additionally, the resulting injury—logging of old-growth trees—is a permanent environmental injury."
Adding, by way of advice:
The Forest Service is free, of course, to amend the Eastside Screens to allow logging of old-growth dying trees…. Until and unless it does so, there is no basis to adopt its proposed definition.

Posted by Dave on February 15, 2007 at 11:03 AM | Permalink


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