Calif. logging venture is next Supreme Court environment showdown

McClatchy NewspapersAugust 22, 2008 

WASHINGTON — A stalled Sierra Nevada salvage-logging venture is sparking the Supreme Court's next major environmental showdown.

What began as a 238-acre Sequoia National Forest timber sale has drawn in big players on all sides. The fight, pitting California officials against the Bush administration, will determine how easy it will be to challenge future forest decisions nationwide.

"It's . . . whether or not the public has a right to be involved," Jim Bensman, an Illinois-based environmentalist who's involved in the case, said Friday. "The number one priority for the Bush administration, aside from logging, has been to reduce public accountability."

Attorneys are preparing for their Oct. 8 oral arguments. The case sounds acutely technical, as many key environmental disputes often do. The proposed timber sale itself, which got the ball rolling five years ago, has long since been canceled.

But there's a reason that farmers, home builders, law professors and others are still weighing in: The winner could hold the key to the courthouse door.

"The United States seeks . . . to shield from judicial review certain rules that bar the public from participation in federal management decisions affecting national forests," California Attorney General Edmund G. Brown, Jr. complained in a legal filing.

One key question is standing, which means who gets to sue. Another is ripeness, which means when suits can proceed. The answers to both will have consequences for public land well beyond the Sierra Nevada.

The Sequoia National Forest encompasses the Giant Sequoia National Monument. In both areas, environmentalists worry about the public being improperly shut out of Forest Service logging decisions. The worries aren't always justified.

Recently, the Agriculture Department's Office of Inspector General rejected environmentalists' complaints and concluded that the Forest Service had followed applicable rules governing a 2004 tree-removal project at the Giant Sequoia National Monument.

The sequoia monument project that investigators reviewed involved roughly 200 trees. The proposed Burnt Ridge salvage project that incited the Supreme Court case, on the other hand, would have involved 1.6 million board feet.

Despite the size difference, the two projects raised related legal issues. The same rules that the Forest Service followed in removing hazardous trees from the Giant Sequoia Giant Monument have been challenged in the Supreme Court case known as Summers v. Earth Island Institute.

Summers is Priscilla Summers, a district ranger within the Sequoia National Forest. The Earth Island Institute was joined in the lawsuit by other environmental groups including Heartwood, for which Bensman serves as forest watch coordinator.

The environmentalists are challenging Forest Service rules enacted in 2003 that excluded small timber sales, of fewer than 250 acres, from public notice and environmental review requirements. In September 2003, the Forest Service approved the 238-acre Burnt Ridge timber sale and exempted it from the review rules that govern larger timber sales.

Environmentalists claimed that Bensman's ability to enjoy national forests would be hurt if he couldn't appeal Forest Service logging decisions. A trial judge agreed, even though Bensman said he'd never been to the Sequoia forest.

"Bensman's preclusion from participation in the appeals process may yield diminished recreational enjoyment of the national forests," the San Francisco-based 9th U.S. Circuit Court of Appeals subsequently said.

The Forest Service settled the Burnt Ridge issue out of court. The Bush administration says this means that the legal challenge should be dropped as moot.

The administration further wants courts to confine themselves to "site-specific" complaints rather than striking down entire agency rules. This reasoning would cut the number of successful lawsuits, as it would limit the ability of remote individuals such as Bensman to claim they'd been harmed.

"Because environmental injuries and hardships become imminent only to the extent an environment-disturbing project is proposed . . . factual challenges to rules based on theories of environmental damage are seldom justifiable," the California Forestry Association and other groups declared.

The Bush administration further argues that the federal judge erred in using the Burnt Ridge case to block Forest Service rules nationwide.

McClatchy Newspapers 2008

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