Conservation groups sue Forest Service for evading analysis and disclosure of commercial thinning projects’ environmental impacts

There have been plenty of discussions and debates about the U.S. Forest Service’s use of categorical exclusions—an agency regulation exempting certain projects from the usual NEPA public disclosure and appeal requirements—on this blog since its inception. Therefore this press release about a new legal challenge may be of interest to folks. -mk

MEDFORD, OREGON—Today, conservation organizations WildEarth Guardians and Oregon Wild filed a lawsuit challenging the U.S. Forest Service’s misuse of an agency regulation to evade its obligation to analyze and disclose the environmental impacts of three projects on the Fremont-Winema National Forest in southcentral Oregon. The organizations allege the Forest Service violated the National Environmental Policy Act (NEPA) when it failed to analyze the impacts of commercial thinning across thousands of acres of national forest as part of the South Warner, Bear Wallow, and Baby Bear logging projects. The organizations are represented by Crag Law Center.

To duck its obligation to analyze the impacts of the projects’ extensive commercial logging, the Forest Service relied on a categorical exclusion—an agency regulation exempting certain projects from the usual NEPA public disclosure and appeal requirements. CEs are reserved for small, low-impact, routine activities like replacing a culvert or rebuilding a section of trail. Here, the Forest Service relied on CE-6, a categorical exclusion for “timber stand and wildlife habitat improvement” activities, such as thinning or brush control to improve growth or to reduce fire hazard, and prescribed burning. Though the agency adopted CE-6 in 1992, until 2018 it had never used the categorical exclusion to bypass environmental analyses for projects that included commercial logging.

“The Forest Service is misleading the public as to what these projects entail. Commercial thinning is logging—trees with marketable value are cut and removed from the forest to be sold on the market—which requires heavy equipment and roads that can disturb soils, cause erosion into streams, destroy or degrade habitat, and release stored carbon,” said Chris Krupp of WildEarth Guardians. “Over the past few years the Forest Service has taken to re-labeling logging projects as timber stand or habitat improvement projects with a commercial thinning component, in order to avoid having to analyze, and inform the public about, the impacts of public lands logging that the law requires.”

The three projects being challenged indicate the agency’s intention to increasingly rely on CE-6, regardless of the scale and scope of commercial thinning employed. The South Warner project authorizes 16,000 acres of commercial thinning (25 square miles), Bear Wallow 10,000 acres (15+ square miles), and Baby Bear 3,000 acres (4+ square miles).

”Logging our National Forests has complex effects on the environment, and should be carefully planned. For 50 years Congress has required federal agencies to disclose environmental impacts and involve the public in decision-making that affects the environment. The Forest Service cannot unilaterally carve out a giant loophole to avoid this important public process.” said Doug Heiken of Oregon Wild.

The lawsuit further alleges the Forest Service has never determined that commercial thinning—much less commercial thinning of the scale and scope authorized by the three projects here—does not cause significant environmental impacts. Such a determination is necessary if projects that include commercial thinning are to be categorically excluded from NEPA’s mandate to disclose the environmental impacts of an agency proposal through either an assessment or more comprehensive impact statement.

“Categorical exclusions basically represent a bargain between the Forest Service and the public,” said Oliver Stiefel of Crag Law Center. “Before adopting a new CE, the Forest Service must prove that the environmental impacts of a set of activities will be insignificant. In exchange, when the Forest Service later proposes a project that fits within the CE, it may dispense with the detailed analysis and disclosure of environmental impacts otherwise required. The Forest Service here hasn’t lived up to its end of the bargain—relying on a CE for 29,000 acres of logging is unprecedented.”

A copy of the complaint is available here:

20 thoughts on “Conservation groups sue Forest Service for evading analysis and disclosure of commercial thinning projects’ environmental impacts”

  1. This goes to the root of the chronic abuse of federal land managers making planning decisions based on the keep the logging going domga rather than following actual science and laws.

    After 50 years their obstinate never-change-anything attitude no matter how many times they lose in court we need to admit that they’re a failed agency that needs to be disbanded.

    Back in the 70’s & 80’s they depended on congress to adjudicate for them by passing legislation that cancels all their losses in the courtroom. And even though they can’t do that anymore, they still stick to that same playbook.

    At this point we need to accept that they will never change and disband BLM and USFS and give all these lands to USF&W to manage. There’s simply no meaningful alternative as long as the log at all costs dogma never ends.

    • Thank You, ‘Chicken Little’. I am perfectly happy, ethics-wise, at the forestry work I, personally, have done in our National Forests. Yes, I have made some mistakes along the way, but not on purpose, or for any other reason. If I don’t think a tree should be cut, I merely walk on by, without spraying blue paint.

      • Your happiness is irrelevant and your mistakes aren’t excused just because they were “not on purpose.” The fact is that we passed environmental laws that have to be followed. Telling us a story about how you can save trees by not marking them if you don’t think it should be cut doesn’t qualify as following the laws, it qualifies as being dismissive of the laws and acting like it’s nothing more than a matter of personal opinion. Forest management is NOT supposed to be based on your feelings and opinions Larry, but on rules and laws!!!

        • Making up stuff, still, I see. I am confident and secure in my forestry ‘legacy’, which you know absolutely NOTHING about. BTW, my “personal opinion” using (or not using) blue paint was usually binding and final, leaving ‘my mark’ upon the forests. THAT will be there, long after we both are dead, and I am amused that you fret and worry about what is now my less-recent history. Sure, go ahead and visit the Forests I have worked in. Tell us about that one tree I shouldn’t have marked. Be sure to provide GPS coordinates in the proper mapping format.

          • “…which you know absolutely NOTHING about” is the most common retort forest destroyers like yourself have said to me over several decades.

            Despite my efforts to constantly study how environmental laws are applied or not applied; constantly studying how all the branches of the sciences are advancing; constantly documenting the deforestation globally that’s proven our forests are not being sustained but permanently destroyed at scale; it always comes back to cowardly folks like yourself resorting to their last refuge of claiming that not you, but us enviros are the only ones who know NOTHING.

            And then y’all object every time you’re dragged into court again because we’ve found your planning processes to be illegal. Maybe you should ask your attorney to tell the judge that they don’t know anything about forestry too? See how that goes for you?

            • If you had better reading comprehension, you’d understand that I was talking about MY work. My personal integrity insists that I follow rules, laws and policies, whether I agree with them, or not. I prefer full transparency, because I’ve never had anything to hide. If you have actual evidence, bring it into the light. It is one thing to tell your donors about ‘misdeeds’. It is another different thing to tell the courts about it.

  2. Here is how this racket works, who pays, and who benefits (and guess why they are going before a federal judge in order to make even more money):

    Wildlife Org. Attys Seek $1.2M Fees In Marbled Murrelet Fight
    By Faith Williams · Listen to article

    Law360 (July 12, 2022, 5:42 PM EDT) — Counsel who represented two Oregon wildlife organizations in a suit seeking to stop a timber company from cutting down trees in the habitat of a threatened seabird on Tuesday asked a federal judge to award them $1.2 million in attorney fees.

    According to the motion filed in Oregon federal court, Cascadia Wildlands, the Center for Biological Diversity and the Audubon Society of Portland accumulated about $1.2 million in costs and fees based on detailed records from seven attorneys over an eight-year period.

    However, the attorneys asked the court not to make a decision on the motion at this time, as the parties are continuing settlement discussions.

    In June, U.S. District Judge Ann Aiken ruled in favor of the wildlife organizations, saying Scott Timber Co.’s “Benson Snake” logging operation would harm the marbled murrelet, a threatened species since 1992, and would constitute an unlawful “take.” The organizations’ lead counsel, Daniel Kruse of Kruse & Saint Marie Attorneys at Law, has an hourly rate of $485.

    Supporting counsel Charles Tebbutt of the Law Offices of Charles M. Tebbutt PC has an hourly rate of $650, while Daniel Snyder and Parker Jones of the same office have hourly rates of $425 and $250, respectively.

    Meanwhile, Nicholas Cady, Cascadia Wildlands in-house counsel, receives $425 an hour. Tanya Sanerib of the Center for Biological Diversity’s hourly rate is $500, and Brian Segee of the same office receives $515 an hour.

    The motion says the organizations’ attorneys spent around 2,600 hours on the case including submitting required paperwork, preparing for trial and successfully litigating the case.

    Judge Aiken said in his ruling the plaintiffs are entitled to reasonable attorney fees and costs.

    According to the motion, the court is to adjust hourly rates based on inflation, which would increase each hourly rate by $50 to $100. Environmental litigation has also been recognized in Oregon federal court as a practice that requires specific knowledge, justifying increased rates.

    Kruse has 16 years of experience as an environmental litigator and specific experience in suits pertaining to the conservation of marbled murrelets, the motion said.

    Counsel for the environmental groups did not immediately respond to requests for comment.

    Scott Timber Co. is represented by Dominic M. Carollo of Yockim Carollo LLP.

    The case is Cascadia Wildlands et al. v. Scott Timber Co. et al., case number 6:16-cv-01710, in the U.S. District Court for the District of Oregon.

    –Editing by Philip Shea.

    [Here is what I have written on the topic:

    • You know who also refers to the court system of the United States as a “racket” that is only in to it for greedy self gain Bob?

      Maybe tune into the Jan6th congressional hearings and learn about your friends who supported Trump and how they sought to overthrow the entire “racket” of the Constitution of the United States for personal gain?

      As in it takes an extreme level of degenerate thinking and self loathing to view the rule of law in the courts as a “racket” and then project all you personal financial ambitions on your enemies who are more interested in law & order than personal financial gain. So sick of the toxic mindset of you and all your Trumphumper friends!

      • Deane: Please stop. You are only embarrassing yourself with your unrelenting name calling and stupid assertions. “Better to remain silent and be thought a fool . . .”

        • Thanks Bob, you just inspired me to speak up way more often not less!

          The legacy of retired USFS and BLM employees is way more embarassing and shameful than anything I could ever do or say and I will speak out against all the wrongdoing y’all have done to our public lands till my last breath!

          I WILL NEVER BE SILENT!!!!

          • I don’t want you to be silent, Deane, but I do wish you would adapt to the tenor of the dialogue of this community.. which is more about specific things, and less about calling people names.

    • I’m not sure what your point is – that lawyers shouldn’t get paid too much? I wish I had had the pleasure of receiving attorney fees, but maybe someone who has can explain how they come up with these rates – I assume basically “the market” for similar talent, but does this include overhead, and how much do they get paid if they lose? (Your link didn’t work.)

    • The marbled murrelet case generated unusually high attorney fees because it was a rare ESA “take” case that required a trail to determine the facts. Fiscal conservatives will be happy to know that the vast majority of federal environmental cases are “record review” cases litigated under the Administrative Procedures Act, which generate far more modest attorney fees because no trial is required. The judge is just reviewing the record the agency had before it when it made its final decision, AND the courts are required to defer to the agency unless they acted arbitrarily and capriciously – a pretty high bar.

  3. Pick a lane, Republicans.

    According to Dave Mertz there haven’t been any litigators to sue the Forest Service allowing Republicans to infiltrate management of the Black Hills National Forest so thank an environmental lawyer today.

    • 100% agree Larry!!! We need a new cabinet level position know as Department of Repatriation & Reparations to make right all the land theft and forest destruction not just on public lands, but on private lands too. The tribes need to get their land back in a way that doesn’t force them to destroy it via a Hobson’s choice.

      • The timber industry want the tribes to take over our Federal lands. This is because they know tribes will do more logging then the Federal land managers can do at the moment. I don’t see the environmental corporations suing the tribes. I don’t even know if they can.

        • That’s because in the past the deals to give land back to the tribes were designed in a way that the tribes financially had no choice but to keep the logging going. aka:'s_choice This method, used more often in Canada than the US, is a way of circumventing protections, not enhancing them.

          Repatriation under the guise of forced liquidation of resources isn’t a valid form of repatriation and regrowing these landscapes back to their original character when they belonged to the tribes rather than ruining them to keep up with modern times has to happen for it to be a valid form of repatriation.

  4. The complaint includes an extensive history of Forest Service categorical exclusions that apply to vegetation management. In addition to, “Though the agency adopted CE-6 in 1992, until 2018 it had never used the categorical exclusion to bypass environmental analyses for projects that included commercial logging,” other categorical exclusions that have been used for commercial logging all have limits on acres based on the analysis that went into establishing the CE. The FS position now seems to be that there are no limits to the amount of commercial thinning that could occur without having significant impacts. That doesn’t sound like a winner.

    Maybe we’ll also get some more clarity about the role of “commercial” in environmental effects. What I get from this is that commercial trees are bigger and are handled differently, and require more disruptive methods to remove them.

    • Hi Jon, to clarify… When I was monitoring all timber sales on Willamette National Forest in the late 1990’s Categorical Exclusions (CE) were used often for roadside salvage that included the commercial sale of logs.

      In much the same way as they used an EA instead of a more thorough EIS, they were always trying to push the envelope of CEs. They did this not just administratively, but also by lobbying for legislation to expand what was allowed under CEs and EAs.

      But I’ll agree they were far less bold than they are now. Back then they were just happy to no longer have their entire logging program shut down by Judge Dwyer anymore. More to the point, when you propose tens of thousands of acres of logging as nothing more that CE roadside salvage, you’re well on your way to getting the entirety of your logging program shut down again.


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