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The Supreme Court declined today to accept an appeal of a 9th Circuit ruling in a case questioning how much scientific review is necessary for logging projects in national forests.
The high court rejected a request for a writ of certiorari by a group of Montana counties, school districts, the timber industry and the Bush administration asking for a hearing on a ruling they say imposes new scientific and procedural requirements on the Forest Service.
Critics of the 9th U.S. Circuit Court of Appeals' ruling in Mineral County, et al., v. Ecology Center, Inc., argued it expands what the Forest Service must do before it makes a decision under the National Environmental Policy Act, Administrative Procedures Act or the National Forest Management Act.
But Thomas Woodbury, attorney for Missoula, Mont.-based Forest Defense, representing the Ecology Center, said last week he would be surprised if the Supreme Court accepted the case because the 9th Circuit added no new procedural or substantive requirements on the Forest Service other than those already present in NEPA and NFMA.
The Ecology Center — now the WildWest Institute — challenged the 2002 Lolo National Forest salvage logging project in federal court. A Montana district judge sided with the Forest Service, but a three-judge panel of the 9th Circuit disagreed, voting 2-1 to grant summary judgement to the environmentalists.
The 9th Circuit panel said forest managers had scant evidence to prove their claim that thinning and salvage logging in old-growth forests would benefit wildlife. Rather, the majority said, it is unclear whether the proposed logging would benefit old-growth dependent species like the northern goshawk and pileated woodpecker.
The court also said the Forest Service should have conducted soil tests in the actual proposed logging areas to determine if soil quality would be affected, indicating that the forest's method of testing similar soil types in other non-logging areas was not enough.
Opponents said the ruling added requirements to NEPA and other environmental laws that are not in the statutes.
"In the context of the NEPA, what the court did was say before the Forest Service could proceed with the project to thin these trees to reduce the fire hazard, they needed to have absolute knowledge on how the project would affect certain wildlife species," said Scott Horngren, a Portland, Ore.-based attorney representing the intervenors. "You would have to wait half a century to see what happens to these trees and the wildlife in these trees to have certainty on how to act."
The Justice Department filed a brief supporting the intervenors' petition, arguing the 9th Circuit opinion could lead to a new standard for forest management cases under the Administrative Procedure Act. "The 9th Circuit impermissibly second-guessed scientific judgments of a federal agency that were amply supported by the administrative record and departed from the standards this court has held to be applicable to agency factual and scientific judgments under the APA," DOJ wrote Greenwire, Jan. 3).
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