Appellate Court ruling affects controlled burns in Tahoe

Court stricter on fire control
Environmental OK needed to clear brush near urban areas.
By Denny Walsh - dwalsh@sacbee.com
Published 12:00 am PST Thursday, December 6, 2007
Story appeared in MAIN NEWS section, Page A1


In a decision that affects all national forests, a federal appellate court ruled Wednesday that the U.S. Forest Service cannot cut brush and use controlled burns to reduce the risk of wildfires in and near urban areas unless it first performs a detailed assessment of the environmental impact.

The ruling, which reversed a 2005 decision by U.S. District Judge Garland E. Burrell Jr. of Sacramento, comes after a devastating fire season that included the destruction of more than 250 homes in the South Lake Tahoe area and a series of Southern California firestorms that displaced hundreds of thousands of residents.

Environmentalists hailed the ruling, saying it halts part of the Bush administration's "Healthy Forests" initiative and what they see as unchecked logging in national forests.

But even one of the federal judges who concurred with the ruling questioned whether the net result would be years of delay before real efforts can be made to protect residents near national forests from wildland fires.

The decision requires Burrell to issue an injunction against the Forest Service that will apply to all 155 national forests and 20 national grasslands halting much of the efforts to use controlled burns and brush clearing to prevent future wildfires.

Wednesday's ruling does not directly address issues that surfaced in the aftermath of the Angora fire in South Lake Tahoe, where property owners argue they are hampered by regional restrictions about what they can do to create "defensible space" around their homes.

But concerns in the Tahoe basin are similar to those in other fire-prone national forests that abut urban-style developments.

Forest-thinning projects were credited with reducing the intensity of the Angora fire, and local officials expect accelerated efforts for more such projects as a result. But wide criticism has shadowed other fire-prevention plans proposed under the Bush administration for the national forests within California.

The 30-page opinion Wednesday from a three-judge panel of the 9th U.S. Circuit Court of Appeals specified the injunction be limited to fuel-reduction projects approved after the Sierra Club's lawsuit challenging the program was filed in October 2004.

The panel left it up to Burrell to decide which post-lawsuit projects to exempt from the injunction "because they are at or near completion."

The fuel-reduction plan, adopted by the Forest Service in 2003 to reduce the risk of catastrophic wildfires by restoring forest health, called for about 1.25 million acres to be annually cut and burned to create a buffer zone between developed areas and forestland.

Cutting and disposing of combustible vegetation could be used on parcels of 1,000 acres or less and controlled burns on parcels of 4,500 acres or less.

For these projects, the Forest Service established an exemption – called a categorical exclusion, or "Fuels CE" – from the requirements of the National Environmental Policy Act, or NEPA.

The exclusion meant that an environmental impact statement normally prepared for "major ... actions significantly affecting the quality of the human environment" did not have to be done.

It was the exclusion that galvanized the Sierra Club, which claims exempting the fuel-reduction program is invalid because the program fits the definition of an action that impacts the environment and must be accompanied by such an environmental impact report.

Wednesday's ruling said "the Forest Service's decision makers made a clear error of judgment."

"We're reviewing the opinion, and we've made no determination on our next step," said Andrew Ames, a U.S. Department of Justice spokesman.

The government's options are to seek review by an enlarged 9th Circuit panel or petition the U.S. Supreme Court for review.

The Sierra Club was pleased with the ruling.

"This victory is a blow to the Bush administration's cynical 'Healthy Forests' initiative," said Eric Huber, a senior Sierra Club attorney.

He added that it "will help ensure that vast swaths of our national forests are not logged without environmental reviews under the guise of forest management or fuel suppression."

Craig Thomas, executive director of Sierra Forest Legacy, a co-plaintiff in the suit, said that since the rule was adopted, California has seen "the gross abuse of discretion and ramp up of logging with limited environmental review that we feared."

But others questioned how much environmental study is needed for lands near urban areas.

John Pickett, Tahoe basin coordinator for the Nevada Fire Safe Council and a member of special fire commission appointed in the wake of the Angora fire in South Lake Tahoe, said environmental concerns on forestland adjacent to urban areas are limited because the forest has already been compromised by urbanization.

"If you're out in the backcountry, it should be to a higher standard," Pickett said. "If someone is out there doing bad forestry, nail them to the wall.

"But when you're in the wildland-urban interface, it does not require a NEPA process. You've already permitted the community. You've already made your bet."

The panel issuing the opinion comprised Circuit Judges David R. Thompson, Andrew J. Kleinfeld and Sidney R. Thomas.

The Forest Service was at fault in failing to consider how controversial its plan proved to be, the opinion says.

It says the "comments of several federal and state agencies submitted in response to the Fuel CE raised substantial questions as to whether the project would cause significant environmental harm and expressed serious concerns about the uncertain risk, size, nature, and effects of actions under the CE."