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Recent Appellate Decision: Earth Island Inst. v. Carlton, 09-16914, 2010 WL 4399138 (9th Cir. Nov. 8, 2010)

Posted by nationalforestlawblog on November 30, 2010 at 6:02 PM

In this case an environmental group appealed the district court’s denial of a preliminary injunction over its challenge to a project to conduct post-wildfire logging in the Plumas National Forest. The plaintiff argued that the project would destroy a significant portion of extremely scarce snag forest habitat that was important to black-backed woodpecker, a management indicator species (MIS) for Sierra Nevada area, thus threatening its ability to survive. The group argued that the Forest Service violated the NFMA by failing to ensure the viability of the woodpecker within the project area. In ruling for the agency, the Ninth Circuit noted that the Plumas Forest Plan, amended in 2004 and 2007 based upon the 1982 Planning Rule that was partially superceded by the 2000 Rule, only required the Forest Service to ensure the distribution of species at the Sierra Nevada scale. The court also rejected the plaintiff’s arguments that 36 C.F.R. § 219.19 required species viability, because “only the aspects of § 219.19 in the 1982 planning rule related to selecting MIS (§ 219.19(a)(1)) and monitoring during forest plan implementation (§ 219.19(a)(6)) apply. Other aspects of § 219.19 are related to forest plan development or revision and do not apply.” Citing The Lands Council v. McNair, 537 F.3d 981, 989 (9th Cir. 2008(emphasis in original).

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