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The 9th Circuit Court of Appeals has called the Lolo National Forest's efforts to log in areas burned by the fires of 2000 "arbitrary and capricious" and reversed a lower court's ruling in favor of the agency.

The San Francisco-based court likened the U.S. Forest Service's efforts to thin old-growth stands for forest health without knowing for sure how those efforts would impact wildlife to pharmaceutical companies marketing drugs without ensuring they are safe and effective.

But one justice, in a written dissent, said the court went too far in its decision, insisting it had "crossed the line from reviewer to decision maker."

At issue is a longstanding battle over what should happen to a portion of the 74,000 acres burned on the Lolo National Forest in August and September of 2000.

The Forest Service initially proposed to log about 4,600 acres in and around the burned area. In support of that proposal, the agency developed a 1,900-page environmental impact statement that included 150 maps and about 20,000 pages of background information.

The Ecology Center of Missoula sued to stop the 35.2 million board foot timber sale, saying the agency had inadequately considered impacts of post-fire salvage logging on soils, old-growth trees and two species of woodpeckers.

District Judge Donald Molloy ruled in favor of the Lolo forest in 2003.

In his ruling, Molloy conceded the Ecology Center and the Forest Service didn't agree on the relative benefits or harm of salvage logging, but said he was "not in a position to settle scientific disputes."

When the opinions of experts conflict, Molloy said, "the court defers to the expertise of the agency. While the court need not forgive a 'clear error of judgment,' neither may the court substitute its own judgment for that of the Forest Service."

The 9th Circuit's majority opinion, written by Justice Betty Binns Fletcher, found the agency's decision to log "arbitrary and capricious" and challenged the science used by the Forest Service in its decision.

For instance, the agency cited a number of studies indicating that thinning old-growth stands overgrown following decades of fire suppression would improve the health of the desirable old-growth trees.

The Ecology Center challenged that premise, saying the thinning removes or alters other essential elements in old-growth habitat and disturbs birds currently nesting or foraging in the area.

"While Ecology Center does not offer proof that the proposed treatment causes the harm it fears, the Service does not offer proof that the proposed treatment benefits - or at least does not harm - old growth-dependent species," Fletcher wrote.

Fletcher said the Forest Service has to demonstrate the reliability of its scientific methodology. The agency's conclusion that treating old-growth forest is beneficial to wildlife "is predicated on an unverified hypothesis," she said.

"Just as it would be arbitrary and capricious for a pharmaceutical company to market a drug to the general population without first conducting a clinical trial to verify that the drug is safe and effective, it is arbitrary and capricious for the Forest Service to irreversibly 'treat' more and more old-growth forest without first determining that such treatment is safe and effective for dependent species," said Fletcher.

Justice Margaret McKeown, in a written dissent, said the court went too far in its decision to overturn the lower court.

While the 9th Circuit plays a critical role in the review process, McKeown said this time the decision crossed the line from administrative review to decision making. She chastised the majority view, saying the court shouldn't be in the business of deciding which Forest Service report was reliable or pass judgment on an employee's field notes.

"Apparently, we no longer simply determine whether the Forest Service's methodology involves a 'hard look' through the use of 'hard data,' but now are called upon to make fine-grained judgments of its worth," she wrote.

"This view is contrary to the basic principle that we reverse agency decisions only if they are arbitrary and capricious. This standard of review does not direct us to literally dig in the dirt (or soil, as it were), get our fingernails dirty and flyspeck the agency's analysis."

In this case, inaction or delay threatens the very species that the Ecology Center seeks to protect, said McKeown.

"The status quo is anything but stable," she wrote. "The Forest Service presents uncontested evidence that the failure to treat old-growth areas risks the very harms feared by the Ecology Center."

Sharon Sweeney, Lolo National Forest public affairs officer, said the agency was disappointed in the decision and at this point isn't sure how it will affect other watershed restoration work tied to the project.

Sweeney said it's been difficult for the Forest Service to keep up with the requirements of the court.

"The bar continues to rise," she said Friday. "It's a concern as the court continues to get more involved in deciding what an EIS should look like."

The Ecology Center's Jeff Juel expects that the 9th Circuit's decision might influence ongoing cases in Montana regarding post-fire logging.

The Forest Service needs to do a better job monitoring after it logs an area, said Juel. Too often, it receives funding to do the logging, but none for the subsequent monitoring, he said.

"The Lolo's not alone," said Juel. "This has been happening all through the Rocky Mountains … the old paradigm is still driving the process. Industry continues to influence Congress."

The Ecology Center will work with the Forest Service to improve the health of the forests through "real restoration projects" like the Upper Lolo Creek Watershed project, said Juel.

"But the Forest Service also needs to understand that at the same time we remain committed to making sure that the management of our national forests is based on sound science and that our nation's laws are followed," he said.

Reporter Perry Backus can be reached at 523-5259 or at pbackus@missoulian.com.

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