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No Harm to Marbled Murrelet From Logging

Marbled Murrelet
Marbled Murrelet

Panel found that environmentalists’ argument was flawed regarding the Marbled Murrelet.

Courthouse News – December 31, 2014

SAN FRANCISCO (CN) – Environmentalists didn’t make their case that California forestry officials overlooked a tiny endangered seabird when they approved a private, noncommercial logging project in Mendocino County, a state appeals court ruled Tuesday.

Center for Biological Diversity and local environmentalist groups challenged the California Department of Forestry and Fire Protection – known as Cal Fire – over its approval of a timber management plan that authorized logging on 615 privately held acres in Mendocino County.
The environmentalists claimed that the project – which will thin mostly second-growth redwood and Douglas fir – would destroy habitat for the marbled murrelet, an endangered seabird that nests in old-growth forests from Santa Cruz to Alaska.

Lack of both Marbled Murrelets and their Habitat

An inspection of the core site found no marbled murrelets, and only seven of the old-growth trees favored by the birds. Additionally, the property’s location near a residential area and local airport led foresters to believe that the seabirds wouldn’t likely choose the area as a nesting spot anyway.

Despite this, Cal Fire and the Department of Fish and Wildlife modified the permit to retain 30 out of 67 large-diameter trees to support wildlife. Cal Fire added other mitigation measures, including the replacement of fallen or dead trees in a 2-to-1 ratio and a prohibition of group harvesting within the project boundaries.

“Environmental” Obstructionism

The environmentalists sued, asking a trial court to set aside Cal Fire’s approval of the project and to find that DFW had violated its legal and public-trust obligations by giving its consent. A Mendocino County judge denied the environmentalists’ petition in its entirety in 2013.

After issuing a stay to halt the project while it considered the case, a panel of the First Appellate Court ruled Tuesday that both Cal Fire and DFW followed California Environmental Quality Act and forestry procedures in approving the project.

Lawsuit Without Merit

Specifically, the appeals court rejected the environmentalists’ claim that the agencies didn’t address that cumulative effects of the logging project would “eliminate the last remnant late seral forest in the entire 4,628-acre Doty Creek watershed” – and marbled murrelet habitat.

“All elements required, including biological resources and habitat, are analyzed and considered in the plan,” Judge Terence Bruiniers wrote for the three-judge panel. “In evaluating cumulative impacts, the plan utilizes a biological assessment area encompassing approximately 10,711 acres within a 1.3-mile radius of the plan area. The plan discloses that the area is within the known range of the murrelet, and identified the murrelet as a threatened species known or suspected to be in the assessment area. It identified the murrelet’s habitat requirements, and two preharvest inspection reports identified functional murrelet habitat in the area. The plan specifically identifies 14 trees with habitat elements suitable for the murrelet.”

Fundamental Disagreement with Fact

The problem with the environmentalists’ argument is that no murrelets live in the plan zone, the panel said – noting that the plan retains the old-growth forests and also requires DFW to monitor for murrelet sightings during logging.

Furthermore, DFW addressed its concerns over keeping a “functional nesting habitat” for the seabird – which Cal Fire’s revised permit includes, the court said.

As to whether the agencies should have officially considered a no-logging alternative as a mitigation measure, the appeals court said that CEQA doesn’t require them to consider every alternative in an environmental impact report.

“Petitioners’ challenges to the plan’s adequacy ultimately arise from fundamental disagreement with the conclusions reached by Cal Fire in its approval of the plan,” Bruiniers wrote. “Petitioners envision intensive logging within and around the area resulting from the plan, with a consequent total and catastrophic loss of viable murrelet habitat. Cal Fire concludes that, with appropriate mitigation measures, the selective and limited timber harvesting permitted in and around the area will have no significant impact on an existing marginal but viable habitat, which will be preserved without significant adverse impact on wildlife, including the murrelet.

“The burden is on petitioners to ‘affirmatively show there was no substantial evidence in the record to support Cal Fire’s findings,'” Bruiniers continued, citing California Native Plant Society v. City of Rancho Cordova. “We are limited to a determination of whether substantial evidence supports Cal Fire’s determination. It does.”

Wrong Agency Named

Center for Biological Diversity also had no business suing DFW, which is only a consulting agency on the project and not the lead, according to the panel.”The evidence is that DFW fulfilled its responsibilities, and petitioners make no challenge to the substantive comments or recommendations made by DFW,” Bruiniers wrote. “What petitioners seek to challenge is DFW’s decision not to actively oppose action for which another agency is ultimately responsible. That decision appears to be quintessentially an exercise of agency judgment and discretion, and anything but ‘ministerial,’ ‘clear’ or ‘mandatory.’ Petitioners have failed to show otherwise. Thus, mandamus is not an available remedy in this context.”

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