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Court rejects conservationists in woodpecker fight

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POSTED September 26, 2012 9:04 p.m.

 

RENO, Nev. (AP) — Rejecting conservationists' bid to defend habitat for a rare woodpecker at Lake Tahoe, a federal appeals court ruled that the U.S. Forest Service is not required to protect animals that aren't covered by the Endangered Species Act.

The decision from a three-judge panel of the 9th Circuit Court of Appeals in San Francisco will allow logging in a disputed area of burned forest, angering environmentalists who say it overturns decades of policy.

The judges upheld an earlier ruling in district court that dismissed a lawsuit against the Forest Service brought by the Earth Island Institute and the Center for Biological Diversity challenging the logging.

The appellate court found the Forest Service had the authority on its own to conclude the blackbacked woodpecker would not be threatened by the project intended to ease future fire threats at the site of the Angora fire that burned 250 homes in 2007 near South Lake Tahoe, Calif.

The environmentalists who lost the appeal said the ruling grants the federal agency a troubling amount of discretion in interpreting its own regulations and badly undermines critical wildlife protections in place under the National Forest Management Act since 1982.

"The protection the Reagan administration put in place to prevent fish and wildlife from being driven to extinction by commercial logging is no longer there," said Chad Hanson, executive director of the John Muir Project, an affiliate of the Earth Island Institute.

"The Obama administration just ripped a big hole in the bottom of the safety net," he said. "There's no protection any more for any wildlife species on national forests unless it is protected under the Endangered Species Act."

The state of California and U.S. Fish and Wildlife Service both are currently considering petitions for listing the woodpecker, which the Forest Service designated in 2007 as an indicator species for the health of all fish and wildlife dependent on post-fire habitat in the Sierra.

Tied up in court since 2010, the bulk of the logging over about 1,500 acres of national forest had been completed before the case made its way to the 9th Circuit earlier this year.

"We are pleased that the 9th Circuit found the agency's environmental analysis to be sound and that the Lake Tahoe Basin Management Unit was able to complete fuels reduction and forest health work in the area while the court deliberated," said Barnie Gyant, deputy regional forester for the Forest Service's Pacific Southwest region.

The court found the "viability rule" was not specifically incorporated into the current plan for the Lake Tahoe Basin Management Unit.

The judges acknowledged the agency had stated in the Tahoe plan that "the Forest Service must manage habitat to, at the least, maintain viable populations of existing and desired nonnative species."

But the court said that language didn't specify that the viability rule itself was in effect and that ultimately it is up to the agency to determine itself whether it has satisfied any such requirement, with few exceptions.

"Because the Forest Service determined that the Angora project would not significantly impact the blackbacked woodpecker's habitat, the Forest Service complied with any project-level viability requirements," said the opinion written by Circuit Judge N. Randy Smith, with the concurrence of Circuit Judges Stephen Reinhardt and Richard R. Clifton.

 

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