AFRC on Hazard Tree Removal Litigation

An item from the American Forest Resource Council‘s July newsletter. This edition has another entry on the topic, about hazard tree litigation in California.

Hazard Tree Removal Litigated

Last month the California-based Klamath Forest Alliance filed a complaint against the Rogue River-Siskiyou National Forest on a project that aims to remove fire-killed trees posing a danger to roads following the 2020 Slater Fire.

The Slater Fire Safe-Reentry Project proposes to remove hazard trees affecting 146 miles of travel corridors, including the mainline road connecting Cave Junction and Happy Camp. The Forest authorized the proposed actions using a Categorical Exclusion that allows various road maintenance activities. Among other things, the plaintiffs argue that the Forest Service violated the National Environmental Policy Act (NEPA) by failing to prepare an Environmental Assessment (EA) or Environmental Impact Statement (EIS).

The Rogue River-Siskiyou opted to defer consideration of any timber salvage on the Slater Fire and instead focus its planning resources on the Safe-Reentry Project. This decision has become the status quo for most National Forests impacted by severe wildfires as timber salvage, a silvicultural tool, has been deemed too risky due to threat of litigation and the associated delays that render fire-damaged timber useless to local manufacturers. To date, the four western Oregon National Forests, the Mt. Hood, Willamette, Umpqua, and Rogue River-Siskiyou, have only proposed area salvage on 750 acres of the 377,000 acres impacted by last year’s wildfires—that’s less than 0.2% of the burnt acres.

It remains to be seen if special interest groups will also challenge that 0.2%, but it’s clear that resources are being deployed to halt the removal of any fire-damaged trees posing hazards to Forest Service roads. Currently, the mere threat of litigation has resulted in the continued closure of hundreds of miles of Forest Service roads to public access. The Rogue River-Siskiyou has 146 miles of roads closed due to hazard trees related to the Slater Fire, the Mt. Hood has 257 miles of roads closed due to hazard trees related to the Riverside and Lionshead Fires, and the Willamette has 407 miles of roads closed due to hazard trees related to the Holiday Farm, Beachie, and Lionshead Fires.

In total, over 800 miles of Forest Service roads in western Oregon remain closed to public entry due to delays in removing hazard trees created by wildfire. By all reasonable accounts, the Forest Service has three options to address these hazards:

  • Close these 800+ miles of road indefinitely
  • Sell the hazard trees to timber purchasers for manufacturing into wood products
  • Use tax dollars to pay for the hazard trees to be felled and left on site

Given the state of the Slater fire litigation, and the threat of similar lawsuits on the other Forests, option three may be the only path forward. How much money this would cost is uncertain, but the Archie Creek Salvage EA prepared by the Roseburg BLM District estimated that it would cost up to $4 million to fell and leave hazard trees along roads associated with the Archie Creek Fire. This price tag applied across the vast Forest Service road network would be significantly higher. /Andy Geissler

 

29 thoughts on “AFRC on Hazard Tree Removal Litigation”

  1. How difficult is it to do the necessary paperwork to get a roadside hazard tree project set up. Back in the old days (20-30 years ago), we didn’t need to try and weasel a CE past environmentalists. Roads, like streams, have ‘buffer zones’.

    I’ve seen the result of ‘drop em and leave em’. It’s very messy, right there in public view. I’m sure that firewood cutters and roadside arsonists are rejoicing over this idea.

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    • Also interesting in the AFRC newsletter was an example of a judge not giving deference to an agency..
      “However, Judge Fletcher declined to give deference to the Forest Service’s determination in its Region 5 Hazard Tree Guidelines, which recommends removing hazardous trees that are within one and a half tree heights distance from the road. “

      Reply
      • Really, that should be changed to ‘above the road’. There is no need for that distance below the road. Slope also factors into it. It’s really not very lucrative for loggers to get those trees farther above the road. If they are truly hazardous, a Sale Administrator could allow the tree to be felled, and left in place. It is VERY messy felling trees downhill, with significant breakage. Usually these roadside hazard tree projects have costly cleanup requirements, too. On top of that, if the road has been used as a skid trail, the road must be rebuilt back to new function and utility.

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        • I have to disagree. As a forest user, project volunteer, and access advocate, I often have to clear hazard trees that have fallen across roads and trails from the downhill sides of roads. Really it’s quite a common occurance.

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          • I only meant that the extra 50% distance is not needed below the roads. If a tree below the road can reach it, and is likely to fall that direction, it should be cut. As a timber sale administrator, if I can justify that the tree is a hazard, I can have them cut it. If it cannot hit the road, I cannot justify cutting it.

          • I justify by if you are finally getting to harvest the .02 % of what has been killed by the fire and you have the equipment in place, have taken all the risk of buying the sale, then it only makes sense to harvest as much as you can within the parameters of the sale. Even if it one and one half tree heights below the road.

      • That was a point that the dissent makes in the EPIC case, characterizing it as a “paramount issue.” While the majority did discount the idea that there could be relevant effects to roads from trees too short to fall on them, I think the majority mostly believed that THE paramount issue was the agency abusing its discretion to use this categorical exclusion:

        “It allows logging of commercially valuable trees up to 200 feet on either side of the road; allows felling of partially burned trees that have a 50 percent or higher chance of mortality; allows felling of large trees at such distances from the road that their tips will be 50 or more feet from the road even if the tree falls directly toward the road; and allows logging over an area of approximately 4,700 acres. Under no reasonable interpretation of its language does the Project come within the CE for “repair and maintenance” of roads.”

        And the existence of this CE seems to have become a motivating factor for why the FS finds logging next to roads so attractive.

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  2. Ridiculous that environmental groups are fighting tooth and nail to stop logging even dead trees next to roads. Of course it’s clear that their real objective is to achieve precisely the result mentioned here, that the roads stay closed indefinitely. Then 10 years from now in the next travel management process, those roads will all be rated as “unneeded” because they’ve been closed for so long and decomissioned.

    Nothing like a good forest fire to provide an excuse for mass road closures! Here in CO, we’re still fighting “temporary” road closures from the Hayman Fire almost 20 years ago.

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  3. Public safety? Really??

    Here’s my take, published in the Salem Statesman-Journal (behind a paywall) . . .

    Following last year’s fires, the U.S. Forest Service has closed large swathes of our national forests to public entry. Its justification? “Public safety.” According to the Forest Service, burned forests are too dangerous to visit.

    So, how dangerous are a forest’s trees, living or dead, compared to other backcountry risks? Not very. Falling down while hiking, especially on mountains, is the leading cause of backcountry deaths, accounting for about 40% of fatalities. Avalanches (15%), drowning (10%), heart attack (10%) and getting lost (6%) round out the top five. Being hit by a falling tree? 1% — same as deaths by bear attack.

    The Forest Service does not close mountains to climbing or skiing, it does not ban swimming, nor require every visitor to carry a GPS unit to avoid getting lost. The Forest Service does not even kill the bears — thanks Smokey.

    But, after a forest fire, the Forest Service shifts into hyper-safety overdrive, closing burned forests by the hundreds of thousands of acres to all visitors and cutting down as many dead, dying, or maybe-going-to-die-in-five-years trees as it can get its hands on.

    Not even wilderness, which is supposed to be “wild” — not “safe” — gets a pass from the Forest Service’s nanny state. As I write today, Forest Service closures, enforced by criminal prosecution, are in effect for all or portions of the Mark O. Hatfield, Roaring River, Clackamas, Bull of the Woods, Lower White River, Opal Creek, Mt. Jefferson, Red Buttes, Yolla-Bolly Middle-Eel, Siskiyou, Pleasant View Ridge and San Gabriel wilderness areas (partial list only) — all for fires extinguished last year or longer ago.

    What appears to be an irrational fear of trees finds its origins in a very rational bureaucratic incentive.

    The Forest Service makes money when it cuts trees, whether dead or alive. During the logging boom years, before citizen groups enforced environmental laws, the Forest Service made most of its money cutting live trees. When that revenue stream dried up, the Forest Service shifted gears to cutting dead trees. Congress incentivized dead tree cutting by passing a law that lets the Forest Service keep for itself all of the money earned from selling these trees — none gets returned to the U.S. Treasury.

    However, it didn’t take long for environmental groups to point out that dead trees are the most ecologically valuable, especially the large dead trees desired by timber companies. Called “snags” because of their angular profile, dead trees are critical habitat for woodpeckers, squirrels, fishers and bats. Snags shade the forest floor below, protecting new seedlings from sun scald and desiccation.

    The Forest Service needed a trump card to deflect these criticisms of its lucrative salvage logging program. “Public Safety” is the agency’s new raison d’être for logging and the money it brings.

    That logging these dead trees is itself one of America’s most dangerous professions appears lost on the Forest Service. For the time being, until the Forest Service regains its sanity, the public will be locked out of its public lands.

    How crazy is that?

    Reply
    • And yet… the FS and the Park Service clear hazard trees in places where they have no timber value. And any large fire has plenty of snags… no shortage there! I think the difference with the other hazards is that (according to our attorneys as I recall)the FS could be liable for leaving a known hazard in place. At least that’s what I recall from our convos with them on bb killed trees. Which meant for us, roads yes, trails no as I recall (some trails get warning signs).

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      • Taking the last point first . . . About 25 years ago, the Forest Service retained me as an expert witness in a tree fall tort case in Washington State (Moyer v. Washington State, 1997 U.S. App. LEXIS 893). Plaintiff lost due to the Federal Tort Claims Act, which eliminates federal agency liability when exercising a discretionary function. In this case, the Forest Service had chosen protection of old-growth forests as the primary purpose for managing the land through which the Mather Memorial Parkway passed. That policy choice was not without risk to the public. The old-growth tree that fell was alive, but had a native root rot (Phellinus) that had weakened its underground support. The opposing side retained a forester who testified that the only prudent way to manage this state scenic highway was to clearcut 150’ on both sides and plant with grass regularly mowed.

        This Rock Creek Park tree-fall lawsuit, in which the injured plaintiff prevailed, provides a helpful contrast. In footnote 12, the court distinguishes the Moyer case and others relied on by the government: “none of those cases involved, as here, a park in an urban environment, with concomitant safety concerns for heavy commuter or pedestrian traffic; and, second, the specific policies governing the parks at issue – likely due in part to their non-urban location — granted express or otherwise clear discretionary authority for tree management.” The trees the Forest Service wants to log (and AFRC’s members want to buy) are at the opposite end of the spectrum from Rock Creek Park.

        Under the FTCA, liability ONLY attaches when the federal government violates its own mandatory safety rules. Stupid agencies adopt binding internal rules, e.g., manuals and handbooks that direct employees to remove so-called hazardous trees. Smart agencies don’t adopt such rules; they simply remove the trees they want to remove without promising anyone a safe visit. No promise = no liability.

        Under Oregon law (and in many other states, too), private landowners have no liability for recreational injuries or deaths on their land so long as they don’t charge a recreation user fee. The same is true for federal land in Oregon, but only if the FTCA authorizes a liability suit at all, which it doesn’t under most circumstances.

        As to snag numbers . . . ask the woodpeckers if there’s a shortage.

        Park Service tree removal occurs in developed campgrounds and other high-use areas. What AFRC and the Forest Service propose is to log backcountry roads (maintenance Level 2) that receive virtually no use.

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        • More to the point would be the internal regulations regarding road use than conspiracy to salvage log, at least in terms of explaining ongoing closure and the FS disposition to hesitate on reopening. If a ML2 backcountry road is open and identified in a motor vehicle use map, it has to be managed to FSM/FSH standards, even if it is low traffic. There is flexibility with respect to how likely the tree is to cause injury and whether it should simply be monitored or removed, but many line officers can be rather risk averse in the climate following large fires, despite the forest being in an environment in which it is impossible to recognize or mitigate all hazards.

          The only hazard tree tort claims lawsuits I’m familiar with are those involving recreation sites (developed and in at least one case, dispersed) but I have heard of, through the grapevine, roads-related ones though I am not familiar myself.

          Relevant rec site and road regs:

          Rec sites: FSM 2332.11 requires that, “Consistent with preserving the recreation resource, remove trees or tree limbs identified as hazardous at developed recreation sites. Obtain assistance from timber management, forest pest management, and recreation specialists, as necessary.”

          Roads: Forest Supervisors have a responsibility for the safe operation and management of roads and must “…to the extent permitted by funding levels, systematically provide for elimination of identified hazards.” (FSM 7733.04c). Forest Service Handbook direction, (7709.59 Chapter 40, effective 02/05/2009) contains more specialized guidance pertaining to hazard trees. FSH 7709.59_40.3 policy states that:
          1. Safety is the predominant consideration in road operation and maintenance and takes priority over biological or other considerations.
          2. Roadways must be managed for safe passage by road users. This includes management of hazards associated with roadside vegetation, including identification and mitigation of danger trees.
          3. Identification of danger trees must be performed by qualified persons.
          4. When high priority hazards to road users are identified on National Forest System roads and those hazards cannot be immediately mitigated, the roads must be closed.

          FSH 7709.59_41.6 also affirms that “Road maintenance includes removing danger trees that threaten safe use of the transportation system.” In addition, FSH 7709.59_41.7 states that “Roads that are open should have a condition survey at least annually. Roads that have been closed should be checked for obvious hazards prior to being opened. Roads open to travel should be checked following major storms or similar events that could significantly affect their condition, result in changes in their traffic service level, or have created new safety hazards.” This section also states that “Danger tree hazards on roads will be prioritized by high, medium and low categories.”; that “Roads or segments thereof identified as high priority constitute a considerable adverse effect on public safety and thus require prompt action.”;

          That doesn’t answer the question, of course, of whether or not the regs are “smart” or “stupid” – they’re probably a touch too specific and inflexible, in a personal opinion. But it does speak to why it would be managed as such.

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          • Very interesting, and good to know. I would agree that regulation is too inflexible. Especially for ML2 roads, the Forest Service should realize that a good number of users carry the tools necessary to clear downed trees blocking the road (ie. a saw and winch), and plan accordingly. If environmental groups insist on blocking removal of hazard trees along roads, the Forest Service should just open the roads and let users clear any downed trees themselves. 4×4 users are generally pretty self-sufficient and can handle such things just fine.

          • Thanks, Anonymous, and “yes” I’m familiar with the FSM and FSH. None of these sources impose mandatory duties on the Forest Service of the type at issue in the Rock Creek tree fall case. For the reasons explained by the judge in that case, the Forest Service enjoys FTPC immunity on its backcountry roads.

            More to the point is the degree of risk to the public posed by these dead trees. The FS does not even attempt to quantify that risk. Why not? Instead, the FS proposes to turn what is an infinitesimal risk to the public into a substantial risk to tree fallers. The odds that a person happens to be in the kill zone of a tree when it falls down (ALL trees fall down eventually) are exceedingly small. The odds that a faller is in the kill zone of a tree when it is cut down are 100%. That’s why tree falling is one of the nation’s most lethal jobs. In contrast, taking a pleasant walk in the backcountry is one of the safest things one can do, notwithstanding dead trees.

          • I know a parks manager who, when I said it’s very unlikely for a tree to fall on a hiker or camper, said, maybe so, but I once had to tell a family that their loved one was dead because a tree fell on them. Said, I don’t ever want to have to do that again. So he was bullish on hazard tree removals.

          • Yes, tragedy is a part of the human condition.

            However, basing land management decisions on anecdotal, rare, freak events degrades the environment for all park visitors. While acknowledging that people have feelings, I expect public servant resource professionals to make decisions on the basis of facts documented in an administrative record so that the public for whom they work can understand the rational basis for each decision. That’s what is missing from the Forest Service’s post-fire wilderness closures. And also missing from its CE’d post-fire “public safety” logging decisions.

          • Fallen trees can kill people in other ways, like blocking the exit of a remote road spur. Hiking back for 15 miles could be dangerous for some vehicle passengers. We rescued a 60 year old couple who spent the night behind a fallen tree. They were really glad to see our green truck that morning.

          • Thank goodness you were there, Larry. Do you know of any fallen tree cases in which the blockaded road caused visitor deaths?

          • I’m sure there are some, especially in winter time. This couple we found was not prepared for 4000 foot elevation snow in November, driving a late model Chevy Impala on unimproved and rutted roads. They did think they were going to die. (Probably not, but they had all night long to think about it)

        • Andy, if what AFRC says is true “To date, the four western Oregon National Forests, the Mt. Hood, Willamette, Umpqua, and Rogue River-Siskiyou, have only proposed area salvage on 750 acres of the 377,000 acres impacted by last year’s wildfires—that’s less than 0.2% of the burnt acres.” Wouldn’t there be enough snags on the part that’s left? And the paper you linked to says Saab points out, “Post-fire salvage logging operations vary considerably across the western U.S. Some are clearcuts while others are selectively harvested. Consequently,
          there is no way of generalizing the extent of habitat degradation to black-backed, white-headed, or Lewis’s woodpeckers by a typical operation.”
          And if we’re entering into an era of megafires based on climate, then conceivably there will be more snags…

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  4. The Slater fire salvage sale was put up for sale on Tuesday. I don’t know if it sold or not. It was a very expensive sale with many risks.
    After viewing the area once again in makes my heart sink. There are dead trees as far as the eye can see from the ridge top to the creek bottom. To me is utterly ridiculous to protest the removal of roadside hazard trees. I wish they were protesting the destruction of our forests by fire.
    There are so many conflicting actions by, and within the Forest Service after a fire am nor sure anyone really understands what is going on.
    My position is log as much of it as you can. Get the roads, trails and campgrounds open. Replant it. Make plans how to minimize the impact of the next fire.
    And they is no need to worry about legacy snags or woody debris, they are there, as far as the eyes can see.

    Reply
    • The sale went no bid.
      On thing the FS has started to do is use Baer funds to do hazard tree removal. Not the best use of taxpayers funds or resources, in my opinion, but it does get the job done without protests and costly documents.

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  5. I have two objections to what Andy has stated here, although I agree with his safety statistics:

    1) “During the logging boom years, before citizen groups enforced environmental laws, the Forest Service made most of its money cutting live trees.” Although it is true that the FS used to make a majority of its income through logging sales, it must be noted that we had thousands of jobs, good roads, great campgrounds, abundant wildlife and hardly any major fires during that time. Then environmental activists and their legal teams began CREATING environmental laws, NOT “enforcing” them. The Equal Access to Justice Act guaranteed that taxpayers would foot the bill for the successful anti-logging lawsuits that have predictably resulted in the rural poverty, polluted air, massive wildfires, and millions of dead animals that have accompanied the abandonment of our public forests.

    2) “. . . it didn’t take long for environmental groups to point out that dead trees are the most ecologically valuable . . .” Unfortunately, this rapid response from the “environmental groups” is basically stupid rhetoric. What does “ecological value” even mean? “Most valuable” compared to what? A wildflower meadow or huckleberry field? A grove of old-growth? What? Thanks to environmental activists, their legal representatives, and a compliant government, there are now more snags by an incredibly wide margin than have ever existed in the PNW before. There are not enough woodpeckers, bats, or whatever else supposedly benefits by this mess to even occupy a significant fraction of these snags. Plus, the historical record is clear: snags burn. Repeatedly. This has never been good for the animals that can’t fly or swim to deeper water.

    I agree with Bob Sproul’s assessment. This gross mismanagement needs to stop. It’s ugly, dangerous, pollutes the air, wipes out old-growth “preserves” and kills our wildlife. Plus destroys a certain amount of human lives, homes, and businesses. There is no excuse — “ecological” or otherwise — to allow these lands to continue to burn while lawyers make it rich pressing anti-logging lawsuits on behalf of untaxed special interest groups. The excuses and goofy science should have ended long ago, but there appears to be no foreseeable end in sight until all of our public lands have been degraded and abandoned. In my opinion.

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    • 1) Only God creates natural law and only Congress creates statutory law. Environmental activists, like everyone else, can only pray or lobby, respectively.

      2) Are there “more snags by an incredibly wide margin than have ever existed in the PNW before?” “Ever” is a very long time! And I sure don’t see a whole lot of snags on Oregon’s private industrial forest land.

      I am heartened that Bob and I agree that trees are safe. We can all enjoy walks in the woods without chronic anxiety about getting bopped in the head by a falling tree.

      Reply
      • On non-federal lands in Oregon, at least two standing live trees or snags per acre of harvest must be retained, and they must be at least 30 feet tall and 11 inches in diameter.

        Reply

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