21st Century Problems- Hazard Tree Removal

Interesting headline…couldn’t find a link to the project easily, so no photo.

Judge Protects Forest From Forest Service
By SONYA ANGELICA DIEHN

SAN JOSE (CN) – A federal judge granted a preliminary injunction to protect imperiled species on the remaining 600 miles of a $1 million roadside-clearing project in Central California’s Los Padres National Forest. U.S. District Judge Lucy H. Koh granted Los Padres Forestwatch’s requests to protect the National Forest from the U.S. Forest Service.
Judge Koh found that the Forest Service’s failure to seek input from the public or other agencies “flies in the face” of environmental laws designed to ensure an open process.
The project involves removing trees and vegetation along 750 miles of forest roads in the Los Padres National Forest, to reduce fire risks and other potential hazards.
Judge Koh found that the Forest Service had failed to seek public input and consult other agencies over its plan, despite its own biologists’ findings that it could affect threatened and endangered species such as the Smith’s blue butterfly and seacliff buckwheat.
The nonprofit environmental group says the forest hosts 26 species protected under the Endangered Species Act.
After an internal process, the Forest Service in 2009 issued a categorical exclusion exempting the project from environmental review.
The Forest Service accepted a $1.1 million proposal for the clearing a year ago.
A Forest Service biologist had recommended measures to protect imperiled species, which Los Padres Forestwatch later demanded in its lawsuit.
These included a biologist being present to review planned clearing areas for the presence of imperiled species, and avoiding clearing along rivers or streams, and during nesting or breeding seasons.
Koh ordered the Forest Service to do so, in issuing a limited injunction allowing the project to proceed. The Forest Service also must provide weekly progress reports to the environmental group.
The conditions apply to the remaining 585 miles of the project.

10 thoughts on “21st Century Problems- Hazard Tree Removal”

  1. The project involves removing trees and vegetation along 750 miles of forest roads in the Los Padres National Forest, to reduce fire risks and other potential hazards.

    Judge Koh found that the Forest Service had failed to seek public input and consult other agencies over its plan, despite its own biologists’ findings that it could affect threatened and endangered species….

    After an internal process, the Forest Service in 2009 issued a categorical exclusion exempting the project from environmental review.

    In 2005 I wrote a somewhat cynical little post titled Why Not Categorically Exclude Everything? It began:

    With the continued spate of exclusions from law, some of us are now wondering why the legislature, hand in hand with administrative agencies and the administration, doesn’t just go for the whole enchilada. Why not just write a blanket provision saying, “Henceforth all federal ‘good projects on the ground’ will be exempt from NEPA, NFMA, ESA, the National Historic Preservation Act, ….”

    The Forest Service is finally getting just deserts, IMO.

    Reply
    • Since my past experience involves development of a couple of CE’s, I’d like to clarify that development and use of a CE is not the same thing as “being exempt from NEPA.” Approval has to be granted from CEQ based on a record and data of past activities and environmental effects. This can be difficult to achieve and the CEQ folks ask many hard questions, I can speak from experience.

      This is the section of the CEQ NEPA regulations here and here:

      (b) Agency procedures shall comply with these regulations except where compliance would be inconsistent with statutory requirements and shall include:

      1. Those procedures required by Secs. 1501.2(d), 1502.9(c)(3), 1505.1, 1506.6(e), and 1508.4.

      2. Specific criteria for and identification of those typical classes of action:

      (i) Which normally do require environmental impact statements.

      (ii) Which normally do not require either an environmental impact statement or an environmental assessment (categorical exclusions (Sec. 1508.4)).

      (iii) Which normally require environmental assessments but not necessarily environmental impact statements.

      And the definition..

      Sec. 1508.4 Categorical exclusion.

      “Categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (Sec. 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. An agency may decide in its procedures or otherwise, to prepare environmental assessments for the reasons stated in Sec. 1508.9 even though it is not required to do so. Any procedures under this section shall provide for extraordinary circumstances in which a normally excluded action may have a significant environmental effect.

      Are you arguing that no CE’s should exist?
      That there shouldn’t be one that includes roadside tree clearing?
      That this specific project shouldn’t have used one because …?
      That the scoping (is that an “internal process”?) was inadequate?

      Like I said, it’s hard for me to tell because I couldn’t find the project online.
      Note: Need to head to work, so further impassioned defense of CEs will wait until this evening.

      Reply
      • I argue that the Forest Service has routinely abused Categorical Exclusion authority. This case is, in my opinion, just the latest in a long line of abuses. Yes, this project shouldn’t have used a categorical exclusion, since the scope is wide and internal biologists raised “red flags.” At least that is what the judge seems to have found. What’s the harm in following NEPA? Yes, I know the the FS believes that following NEPA law is cumbersome and time-consuming. But I fault the FS for botching the process. I do not fault NEPA or CEQ. From my earliest days with the FS, OGC attorneys have advised the FS on ways to comply with the law without 300-1000 page documents and months and months, sometimes years and years of “process gridlock.”

        Reply
  2. Is no one horrified that people would sue to preserve dead and unstable trees along public roads?

    I’ll bet it is Chad Hanson and his eco-lawyer wife who sued and convinced a judge that roads with only certain levels of maintenance are worthy of being made safe. On the Power Fire salvage project, it was determined that only “roads maintained for regular automobile use” are worthy of being made safe. The decision also allowed the Forest Service to cut trees larger than 40″ dbh, but those trees must be left in place along the road. Also, Hanson got the Judge to give him the ultimate approval of the marking of hazard trees before felling, as only completely dead trees were allowed to be cut.

    Yes, I have seen some Ranger Districts aggressively marking large, old trees along roads as “hazards”. It is pretty easy to justify marking an old roadside tree, as there is almost always rot in those old roadbuilding scars. Region 6 has a hazard tree certification program, and I would advise other Regions to do the same. In one day, a co-worker and myself marked $50,000 worth of old growth pine, because in the contract was a provision that trees with a certain size “catface”, or bigger, had to be cut if they weren’t leaning away from the road. I hated to mark ALL of those trees, and used my discretion to “save” a few of them I was sure wouldn’t hit the road.

    Reply
  3. The remedy to the lawsuit could be closing all roads within the project area due to safety concerns. They don’t need a CE to do that! When the trees stop falling, then they can get in there and start opening roads. The government shouldn’t take on the liabilty for injury or death. Any stretch of road that has hazardous trees that cannot be cut, due to ESA concers. should be closed until “nature” makes it safe. If a hazard tree falls on an endangered plant, that plant is killed, whether a chainsaw was used, or not. At least when a chainsaw is used, the tree can be directionally felled, having less impacts on the plants.

    Reply
  4. Dave- you said “I argue that the Forest Service has routinely abused Categorical Exclusion authority.” Again, I don’t know if you mean that people abused the authority by developing categories, or using them. I have seen people being overly careful, perhaps, and not using them, as well as using them when they shouldn’t. I doubt whether any of us has a picture of whether, across the country, one behavior is more prevalent than the other.

    It is a bit confusing because CE’s are in the CEQ NEPA regs and CEQ has lawyers. The people who review the development of categories are NEPA lawyers. Meanwhile, judges, and even our own legal counsel seem to prefer that we not use them. It seems a bit like a legal Catch-22.

    The rhetoric is as you just said “What’s the harm in following NEPA? Yes, I know the the FS believes that following NEPA law is cumbersome and time-consuming.”
    But doesn’t CEQ determine the right way among us feds to follow NEPA law, because they wrote the regs and review all regs?

    CE’s ARE NEPA! Here’s a link to the November update on developing and using CE’s by CEQ.

    Reply
    • Sharon,

      I think that NEPA Cat. Ex. abuse runs the gamut, both in establishing categories and abusing categories once established. It began, likely, in the early days of FS forest planning, when the agency wanted to do what I call “once and for all NEPA”, wrapping all into the forest plan so that they could get on with “good projects on the ground.” This was the Reagan era with John Crowell, Chief Legal Counsel for Louisiana Pacific, serving as Under Secretary of Ag. The era when the Dept. of Ag wanted to triple FS “allowable cut” from the all-time high of 11 Billion Board Feet/yr. to 33 BBF./yr.

      Much of that effort failed in the courts, so a next step came under Bush/Cheney and the Mark Rey/Dave Tenny regime, with the so-called Healthy Forest Reform Act (HFRA). Rey and Tenny sought in various ways beyond HFRA to exclude everything, including forest plans, from NEPA scrutiny. They tried through Congress and through Administrative action.

      I am working on finding better source-references from my allegations, likely a law review article or two, and will develop a “post” on this matter.

      Update: Here is a little 2007 HFRA critique by Phillip Kannan (pdf), that might serve as a partial backdrop for upcoming post.
      See also, The Healthy Forests Initiative: Unhealthy Policy Choices in Forest and Fire Management, Jesse B. Davis, Environmental Law 34(4), 2004

      Reply
      • I also sometimes would shake my head when the Forest Service tried to use a CE to do things that should have went through “regular NEPA”. I’d think to myself, “Does the Forest Service REALLY think this is going to get past the courts?!?!?” Just because the Forest Service “snuck” things through in the past, that doesn’t mean such things will be overlooked today.

        If HFRA is so bad, why is it still in effect today, after 8 years of usage? Where is the “giveaway to the timber industry”? Is there a better alternative for getting essential work done on the ground? What are the specific evils of the current HFRA?

        Reply
  5. I am curious why the judge (or if you have seen a judge) order an EA or EIS since she asserted the CE to be inadequate??

    Reply
    • Erin- here’s the link to the judge’s decision.

      Two things I picked up… this project is “within 10 feet” (!) from each side of the road, and while the FS did not consult beforehand, they did successfully before the case came to court.

      My solution- do a national or regional or state programmatic EIS for roadside hazard tree removal.. with safety clauses for conditions where operations or ground surveys are unsafe for employees or contractors. Up to 1 or 2 tree lengths. Have some kind of certification, if necessary, as Foto alludes to above.

      Reply

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