Guest Contributor
Emma T. Suárez

PACIFIC LEGAL FOUNDATION
Ninth Circuit Torches Sensible Fire Prevention
Radical environmentalism from the bench...
[Emma T. Suárez] 4/1//04

Two years ago, the devastating Star Fire swept through the El Dorado and Tahoe National Forests in Northern California. Over a harrowing 23 days, flames consumed 17,000 acres of habitat for the California spotted owl. Now some federal judges have stepped forward—to finish off what the fire didn’t destroy.

In December, a panel of the Ninth Circuit Court of Appeals blocked a forest recovery plan designed to head off the next out-of-control blaze by clearing trees that were scorched in the last one.

The U.S. Forest Service plan had given the go-ahead for private logging of charred timber across just more than 1,700—or roughly 10 percent—of the blackened acres. The reason: Forest managers don’t want to be confronted with “Star Fire – the Sequel.”

“Our concern in general (is that), as dead trees fall haphazardly across the forest, there will be a campfire effect, (and) as brush and new growth comes up underneath, a fire that starts in that fuel bed on the forest floor will create a large fire,” Forest Service spokesman Matt Mathes told the Associated Press.

But there’s a species of self-described environmentalists who act as if they never met a forest fire they didn’t like, and one such group sued to stop the tree-clearing.

Although a federal district judge sided with the Forest Service, the enviros got their way before the Ninth Circuit—in a ruling that puts common sense to the torch. The judge writing for the 2-1 majority cited, among other issues, the continued “presence of owls” in the area as a possible reason to bar logging.

But how does it help owls or any other species if the forest, or what’s left of it, is allowed to remain a tinderbox? Burned trees serve as wildfire fuel, and wildfires kill owls, scorch their habitat and incinerate the small rodents that owls love to eat.

On the other hand, quick removal of dead trees and reforestation of the area increases the species’ chances of long-term survival.

Reforestation is at the heart of the plan that the court panned. A number of “salvage” timber sales would have been permitted, with proceeds going for rehabilitation of seared hillsides. These sales are called “salvage” because they literally “save” dead or dying trees by putting them to use as lumber for homes.

But this only works if the trees are removed before decaying beyond any commercial value—so the appellate court’s decree, if not soon overturned, could send the recovery plan up in smoke.

The most-telling phrase in the court’s decision came from the dissenter, Judge Richard Clifton. He said the majority “fails to explain why preservation of a burned-out forest and postponement of rehabilitation plans serves the public interest.”

Indeed. The decision is a reminder why Congress was wise to enact President Bush’s Healthy Forests Restoration Act recently. Healthy Forests is premised on the belief that the public interest is not served when essential forest health projects are subjected to never-ending litigation.

In future assessment of projects to thin forests and reduce buildup of dead wood, courts will be required to consider the long-term risks that delay would pose for communities and the environment. The new law is a recognition that taxpayers and nature-lovers are tired of seeing the nation’s natural resources put in danger because myopic environmentalists prefer to stop the cutting of one tree even if it means letting whole forests burn.

Unfortunately, Healthy Forests came too late to protect the Star Fire restoration plan from agenda-driven legal attack. But the full Ninth Circuit can and should review the panel’s wrongheaded ruling, which could also affect other pending restoration projects put in place before Healthy Forests became law.

And other courts considering similar efforts by green groups to smother fire-prevention projects should weigh carefully the risks to our environment and communities of letting these radicals win.

This commentary first ppeared in the Eureka Reporter.

Emma T. Suárez is an attorney with Pacific Legal Foundation.