TO: SFFC Supporters
FR: Sam Hitt
DT: June 15 2020
RE: Appeals Court rules in favor of the Forest Service
In a disappointing but not unexpected decision, the 10th Circuit Court of Appeals ruled on June
12 that the Forest Service acted legally in approving the Hyde Park and Pacheco Canyon
projects. The opinion written by Chief Judge Tymkovich found Forest Service did not have to do
an in-depth environmental review when it proposed clearing and burning nearly 4000 acres of
mostly roadless wilderness-quality forests above Santa Fe.
The good news is that a September injunction issued by a Federal District Court Judge in
Arizona continues to halt the nearly 2000 acre Hyde Park project for failure to provide adequate
safeguards for the endangered Mexican spotted owl population. Most of the Hyde Park project is
owl restricted habitat. The Forest Service has also suspended all burning during the pandemic
including burns planned for Hyde Park, Pacheco Canyon and the Santa Fe Municipal Watershed.
The court rejected our argument that an “extraordinary circumstances” review was required by
the National Environmental Policy Act (NEPA) for these and other expedited projects. The
position adopted by this court runs counter to other appeal court rulings and even the Forest
Service’s own interpretation. In 2014 immediately after Congress attached a controversial
amendment to the Healthy Forest Restoration Act (HFRA), the Forest Service reassured the
public it would proceed with priority clearing and burning projects in roadless forests only after
doing an extraordinary circumstances review.
In a similar case in California, the 9th Circuit Court of Appeals assumed that an extraordinary
circumstances review was required. However, the court here rejected this evidence saying that
the amended HFRA didn’t explicitly state such a review was required for these types of projects.
Legal justification for their ruling was found, in part, by citing a law review article by the late
Supreme Court Judge Antonin Scalia.
More troubling was the court’s view of NEPA’s requirement to analyze cumulative impacts.
These are the effects to wildlife habitat, old growth and roadless forests of multiple slash and
burn projects envisioned over vast areas. The Forest Service here and elsewhere avoids
acknowledging a host of devastating impacts that become evident over time by limiting its
analysis to isolated segments of the larger plan.
The court determined there was not a coherent plan with potentially significant cumulative
impacts despite clear evidence that Hyde Park and Pacheco Canyon were the first of many
similar actions planned for the forests above Santa Fe. Unfortunately, the massive Santa Fe
Mountains Forest Resiliency Project in this area was proposed after the case was filed.
In addition, the court found that the Forest Service would likely maintain and enhance old
growth despite acknowledging that up to 30 percent of the larger trees may succumb to deliberate
burning which occurs as often as once a decade. As to the Forest Service’s obvious failure to set
aside the required 20 percent of the area for old growth, the court reasoned that old growth could
still be set aside in the larger 100,000 acre landscape (the scoping letter for the Santa Fe
Mountains project doesn’t mention old growth set asides and I’m not aware of any old growth set
asides on the Santa Fe National Forest). In making its ruling the court ignored evidence in the
record showing a preference by the agency for younger forests.
Lastly, the court dismissed impacts to Northern Goshawk and Abert’s Squirrel populations, both
sensitive species requiring dense forest habitat. The commonly used Forest Service assumption
that the adverse impacts of removing 90 percent of the ponderosa pine over 9 inches in diameter
would be offset by increased future tree growth was accepted uncritically.
In addition to Wild Watershed, plaintiffs included Dr. Ann McCampbell, Jan Boyer and the Multi
Chemical Sensitivities Taskforce. A hearty thanks to all for their many years of determined
advocacy and to our dedicated attorney Tom Woodbury.
As we have since 2005, we will continue to advocate Wilderness protection for these roadless
forests and raise public awareness to on-going Forest Service mismanagement.
Preserving Southwestern forests and wildlife