Mt. Hood (lack of) science loses in 9th Circuit

The way courts approach scientific controversy is a common thread on this blog.  We happen to have a perfect example from the Ninth Circuit Court of Appeals (link to the opinion included) last week.  And it happens to involve the science of “variable density thinning” to reduce wildfire threats, another popular topic here.

The Project is the Crystal Clear Restoration Project on the Mt.  Hood National Forest.  The stated primary purpose of the Project is to reduce the risk of wildfires and promote safe fire-suppression activities.  It would use “variable density thinning” to address wildfire concerns, where selected trees of all sizes would be removed.  According to the plaintiffs, it  would encompass nearly 12,000 acres and include almost 3000 acres of logging of mature and old-growth forests along with plans to build or re-open 36 miles of roads.  The court held that an EIS was required because of scientific controversy about the effects of variable density thinning on what plaintiffs characterized as “mature, moist forest.”  The court also found that the Forest failed to show that cumulative effects would not be significant.

In both cases, the court found that the Forest “did not engage” with the information provided by the plaintiffs after, “The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who spent four years on the case.  Failing to engage is a common reason for the Forest Service failing to win in court, especially when under pressure to meet “timber volume targets imposed by President Donald Trump’s administration.”

The EA stated that the Project would assertedly make the treated areas “more resilient to perturbations such as . . . largescale high-intensity fire occurrence because of the reductions in total stand density.”  Plaintiffs had provided “substantial expert opinion” that disputed that outcome.  As plaintiffs point out in their victory notice, here is how the court viewed it:

“Oregon Wild pointed out in its EA comments that “[f]uel treatments have a modest effect on fire behavior, and could even make fire worse instead of better.” It averred that removing mature trees is especially likely to have a net negative effect on fire suppression. Importantly, the organization pointed to expert studies and research reviews that support this assertion

Oregon Wild also pointed out in its EA comments that fuel reduction does not necessarily suppress fire. Indeed, it asserted that “[s]ome fuel can actually help reduce fire, such as deciduous hardwoods that act as heat sinks (under some conditions), and dense canopy fuels that keep the forest cool and moist and help suppress the growth of surface and ladder fuels . . . .” Oregon Wild cited more than ten expert sources supporting this view.”

Even the fuels report by the Forest Service acknowledged the possibility of increased fire severity. The court held (emphasis added):

“In its responses to these comments and in its finding of no significant impact, the USFS reiterated its conclusions about vegetation management but did not engage with the substantial body of research cited by Appellants. Failing to meaningfully consider contrary sources in the EA weighs against a finding that the agency met NEPA’s “hard look” requirement as to the decision not to prepare an EIS. This dispute is of substantial consequence because variable density thinning is planned in the entire Project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life.”

The opinion is short and worth reading as a good example of how not to approach NEPA effects analysis (i.e. “let’s make this fit into an EA instead of an EIS”).  The court cited 9th Circuit precedent for this requirement: “To demonstrate a substantial dispute, appellants must show that “evidence from numerous experts” undermines the agency’s conclusions.” The court is not choosing the science; only faulting the Forest Service for ignoring conflicting views that it found rose to a level of scientific controversy.  Under NEPA, evidence of scientific controversy requires an EIS to fully explore how the use of that science may be important to determining environmental impacts.

18 thoughts on “Mt. Hood (lack of) science loses in 9th Circuit”

  1. This reminds me of the desire to “shorten and focus” EA’s by CEQ and others. If BARK brings up a great deal of complicated research (and all TSW readers know that fuel treatment research can be complex) then it needs to be “engaged meaningfully” surely, something that will take some pages.

    I think it’s really hard to analyze court cases when we only hear one side. For example here Courthouse News only spoke with the plaintiffs. Clearly, in any dispute, there are at least two sides. Where can we get the FS/DOJ side? They aren’t allowed to give their point of view during litigation, and seldom talk after the litigation is done. It’s the Cone of Silence.

    I guess we could read the DOJ briefs, but those don’t seem to be as accessible as, say, objection responses. Maybe the law folks here can help us out about how to access those.

    It seems like 100 years ago when I worked in R&D, (but was probably only the 90’s), we were asked to help forests write up differing research and points of view and explain how they thought about this and why they picked the approach they did, so I have some experience. But whether it’s a page, or two, or ten, to show that their opinions were “adequately considered” it is still in the eye of the beholder (judges).

    And if scientists (experts) disagreeing means you have to do an EIS, it’s hard to imagine any project that doesn’t involve some degree of that. To me, it would make more sense just to ask the Forest to go back and write more stuff, address specifically all of BARK’s concerns, and talk about all the different research they mentioned and why they think they are relevant or not, and other research. If it’s about thirty page of explanation (which I can imagine), then that seems to me to be the best approach, perhaps with another comment period.

  2. The Courthouse News article is highly biased – they include extensive quotes from the plaintiffs and from the court’s memo, but none from proponents of the project.

    I am familiar with the Crystal Clear Restoration Project (CCR), which is a half-hour drive from my home. It was the main topic of discussion in my Current Issues in Forest Resources class at Mt. Mt. Hood Community College in 2019 and 2020. In each term I invited three folks familiar with the project: Brenna Bell, the attorney for Bark, one of the plaintiffs and the environmental group mentioned in the Courthouse News article; Sara Ghafouri, staff attorney for the American Forest Resource Council, which supports the project on behalf of its fores-products industry members; and Whitney Olsker, a silviculturist with the Mt. Hood National Forest who helped plan the project. (I’m grateful to all three for speaking to mey students.) Each had an hour in separate class sessions to make their cases to the students. A large portion of the final exam was the students’ analysis of the three presentations.

    My personal opinion is that, as a forester, this is incredibly frustrating. CCR is a well-designed project with several positive outcomes. The 208-page EA (25 are references) describes the project activities and intended outcomes very well. Roughly two-thirds of the treated areas are plantations in need of thinning or areas where thinning from below will focus “on leaving the most vigorous, healthiest trees, and favoring shade-intolerant, more fire-tolerant species,” according to the EA. In the remaining one-third, mostly dry mixed conifer stands, overstocked after decades of fire exclusion, variable-density thinning would reduce stocking and create small openings – similar to historic conditions. Bark and other groups frequently say the USFS is “logging mature and old-growth forests” – yes, in them, not of them — thinning! Old-growth logs have no market value, as there are no mills that can handle them in the area. Most of the project units have diameter limits than preclude cutting most large trees. Some large trees may be removed nonetheless, as part of variable-density thinning – and the logs left as downed woody material.

    My view is that this is a good project that was (so far) derailed by groups who prefer zero logging and by a court that bought their arguments about “vague” science and dubious assertions about scientific controversy about the effects of variable density thinning – treatments of a type espoused by none other than Jerry Franklin and Norm Johnson.

    Watch the 9th Circuit hearing here:

    The EA, etc., is here:

    • Steve,
      Thank you for this info. As Sharon pointed out, it can be very hard to get both sides of the story. — One of the reasons I read this blog!

      • The strong majority of the 20 students in the class (half forestry, half wildlife majors) said that they support the CCR project. A majority also said the USFS silviculturist made the most compelling presentation; a handful of students said Barks’ attorney made the most compelling argument.

        Here’s one of the better responses on the final exam. I disagree about the student’s call for an EIS, but that did not affect the student’s score — all well-thought-out responses were acceptable. The EA was among the required reading, as were court briefs from Bark and AFRC.

        1. What is your opinion of the Crystal Clear Restoration Project (CCR) on the Mt. Hood National Forest? Should the US Forest Service proceed with its proposed actions, make significant revisions to the project plan, or abandon the project? Explain.

        I believe the CCR on Mt. Hood National Forest should proceed as planned. The proposed actions of thinning to reduce fire severity, thinning to increase forage for wildlife, and some regeneration harvests to meet demand for timber seem to all be worthwhile endeavors. The team of people (foresters, ecologists, fire behavior scientists and more) working on the project seem to be well-informed and well-intentioned in their assessment of and recommendations for the proposed action.

        I can understand some peoples visceral reaction to an enormous timber harvesting operation on lands that are cherished by people from all walks of life. I think if the public were more fully and carefully involved from the very earliest stages of planning, there would be far less trouble with misunderstandings and subsequent legal actions. There should be absolute transparency and efforts from the USFS to help lay-people understand the details and importance of big projects such as the CCR.

        In my opinion, the goals of the CCR project are admirable and much-needed. I agree that much of the harvest needs to happen for very good reasons such as wildland firefighter safety, fire severity reduction and wildlife habitat restoration. My only objection is with the USFS’s approach to planning and implementing the project in a hurried and harsh sort of fashion. It probably would have been worth fulfilling an Environmental Impact Statement (EIS) with all the backlash they have faced at this point.

        • In cases I’ve experienced, people do an EA, go to court, do an EIS, then litigants have more verbiage to look for potential points to litigate.

          Still, going to court early (after EA) has an advantage of giving FS folks an opportunity to beef up sections that the court points to being problems. At the same time, there are more comments and citations, which would also need to be addressed, and may not be addressed “correctly” in an opinion by the court. It’s a bit like “bring me a rock”, “no not that rock”, but that aspect is seldom covered in communications with the public because of the Cone of Silence.

          And so it goes…

          • The way it actually should work is people do an EA, they get comments suggesting a need for an EIS, they do an EIS and then are less likely to go to court and more likely to win if they do. The two “significance” issues they lost on here don’t exist if there is an EIS. They could still have a problem if they didn’t “engage” with the conflicting scientific views, but they have an opportunity to address this during the administrative objection and avoid going to court. And this is true for any potential rocks plaintiffs might want pick up. When the FS dismisses an issue in an objection, they are saying they’re not afraid of that rock (sometimes even when their attorneys say they should be)

            • The USFS did “engage” with Bark, one of the litigants. This is from Bark’s web site:

              “In 2017, Bark was able to convince the Forest Service to reduce the sale area from 13, 271 to 12,069 acres in order to protect valuable spotted owl habitat. Then, after Bark submitted our pre-decisional objection on this project in 2018, the Forest Service proposed some changes to the project addressing a few parts of our objection. Among other changes, Bark has sucessfully advocated for a total of 1,531 acres dropped from this sale. The FS said they believe these changes should “partially resolve” some of our concerns, and issued a Final Decision in 2018. Despite these modest changes to the project, Bark’s key legal concerns – focused around logging mature and old growth forest in spotted owl critical habitat – remained.”

              Note the “logging mature and old growth forest.” I think Bark was able to convince the court that the USFS was going to cut vast areas of old-growth trees, but the goal of the project is thinning from below to make them more resilient to wildfire.

            • My experience with 1. projects some people have ideological objections to and 2. projects that some people have patience with going to court…

              is that it’s the FS is more likely to win if they do an EIS… if people as above don’t like the project they will keep going back to court with EIS’s, doing more, supplements and so on…
              EIS’s can be so long (to make sure they explain everything), that the new version will always have something that is not quite right if successfully persuaded by the plaintiffs to the court.

  3. Thanks, Steve. I dug into it some and thought about it a little more. From the EA response to public comments:

    Plaintiffs: “The agency must address opposing viewpoints regarding the manifold values of retaining more canopy to retain cooler temperatures and moisture.”

    FS response: “In variable density thinning, selected trees of all sizes, including saplings (i.e., 3-inches or less in diameter), would be removed. The focus would be on leaving the most vigorous, healthiest trees and favoring shade intolerant species. Thinning from below focuses on the removal of the smallest trees first, but must retain some young trees of desired species if stands are to retain a healthy age structure (Perry et al. 2004). Overall, the average stand diameters would be
    maintained or increased (Lindh and Muir 2004).”

    I wouldn’t call that “engaging” on the point raised by plaintiffs. It’s more like a boilerplate description of what they are doing (at best, only inferring that they won’t cut many big trees). However, I did see responses to other comments that cited literature in support of thinning, though maybe not regarding large trees on moist sites. One response references analysis in the EA that shows some fire risk parameters being reduced, but also “A reduction in fuels is similarly represented for all treatment types, with the greatest reduction in the dry plant community of about 55% reduced CBD, and only a 6% drop in the moist plant community.” That seems to support plaintiffs’ concerns about ineffectiveness in moist communities.

    So they may have “engaged” more than the court seemed to recognize, but maybe I (and the court) overemphasized this point. The more fatal flaw was that the FS failed to recognize that there was enough of a scientific dispute to trigger an EIS. As the court said,“ Appellants thus have shown a substantial dispute about the effect of variable density thinning on fire suppression.” I suppose the Forest could have dodged that by discrediting the science they didn’t agree with, but if it’s a credible scientific dispute that is important to the decision, NEPA requires that discussion in an EIS.

    Sharon, judicial opinions will often summarize the arguments made by both sides. This one didn’t really do that, but let the EA speak for itself (which is what needs to happen in an administrative record case).

    • I’d disagree that the Forest Service failed to recognize that there was enough of a scientific dispute to trigger an EIS…I think there are always scientific disputes, and it seems kind of random how judges to dig into them and determine what is “enough” to trigger an EIS. We are more or less experts,and have discussed the science behind fuel treatments for 10 years… based on that, every fuels treatment project would require an EIS.

  4. I would be curious who the “numerous experts” are and whether they would oppose this specific project, or if they oppose the science used to support this project.

      • It’s not “random” that the court dug into this; plaintiffs told the court where to dig (after the FS declined to).

        Maybe the surest way the FS could have avoided this issue would have been to ask an outside expert to review how they applied their science. But that would be unusual, and normally we have no idea what they would think. In this situation, when the agency is confronted with what appears to be conflicting science, they need to explain (to the public) why that science is not relevant to this project or why plaintiffs interpretation of how it is applied is wrong. If they do that courts will do defer to the agency interpretation. If they don’t do that they lose.

        • I think it may well be kind of random. If someone raised the issue of whether fuel treatments work, and say the judge happened to have experience with fuel treatments in her community, she might have taken a more questioning approach to the plaintiff’s claims.

          And in my experience, the courts don’t always defer to agency interpretation. That’s why it may seem random. Because it’s a slippery slope.. judges are supposed to defer, but not in cases where the explanation doesn’t meet what they would like to see. Which varies by case and judge.

          • They don’t defer when the FS interpretation is arbitrary. And yes there’s somewhat of a sliding scale there that could lead to inconsistent opinions, but it is supposed to be limited by precedents. (Here you had three judges who all agreed.)

  5. I find it difficult to believe that the FS would be harvesting large amounts of old growth timber. Especially that close to Portland, or anywhere in Western Oregon really. Usually it is a don’t touch tree, even if is laying down along the road.
    The only exception l know of is fire killed hazard tree removal.


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