Ninth Circuit considers effects of ‘temporary’ logging roads in national forest

That’s the title of a Courthouse News article. Subtitle: “If forest roads can exist as long as 20 years, are they really temporary?”

“On appeal, North Cascades argues nothing within the Forest Service’s contracts with intervenors Skagit Log and Construction, Hampton Tree Farms and Hampton Lumber Mills guaranteed that roads would be closed at the end of its use. As such, the Forest Service violated the 1994 Northwest Forest Plan because there will be a net increase in road mileage within the project area for as long as 20 years.”

10 thoughts on “Ninth Circuit considers effects of ‘temporary’ logging roads in national forest”

    • I’m happy to learn something new, but I don’t think this statement is correct. NFMA does not include any reference to temporary roads. The source for this “10-year” requirement is likely language in the 1982 planning regulations (36 CFR §219.27 (a) (11)). It’s possible that an individual forest plan has incorporated that language, which would make it applicable on that national forest, but otherwise, the now applicable 2012 Planning Rule does not contain such language.

      I also checked 36 CFR §212.1, which defines “temporary roads,” but is silent on this, and FSM 7700 (2008), the manual for travel planning, which also says nothing. There was this interesting language in a 2001 Federal Register Notice for an earlier version of both this regulation and manual: “The agency recognizes that temporary roads are usually short-term in duration (often less than 1 year) and are required to be managed and tracked with the project or activity in which they are authorized.” Times have changed?

      • Thanks for looking into this, Jon! It appears that the MBS has a 1982 forest plan (1990?) amended by the Northwest Forest Plan. So the 10 year thing could still be on their books.

        • It would literally have to be “in” their plan (and for the MBS, it isn’t). The fact that the plan was based on the old regulatory language isn’t relevant. I say this based on extensive litigation which said the 1982 viability requirement still applies to projects only if the language of the particular plan incorporated that regulatory language.

  1. My take: What’s good for the goose is good for the gander. If the Forest Service can “temporarily” close roads for 20 years without ever having justify it under NEPA, and the BLM can have “temporary” wilderness study areas that have existed for 40 years with no Congressional designation decision likely to ever occur, then the the Forest Service can also build “temporary” roads that are open for decades. Clearly the word “temporary” has no real meaning in federal land management. Or more precisely, it has the exact same meaning commonly attributed to the phrase “limited time” in the copyright clause of the Constitution: forever minus a day.

  2. A couple of interesting things about this.. according to the Magistrate’s report,

    “Plaintiffs filed their complaint on September 3, 2020, over a year after the Forest Service
    issued the DN and FONSI. ”

    If I read this correctly, the previous judge agreed with the FS, and the article is about the appeal. Given that this is 2023 and if the DN was published in May of 2019, then it appears that is is taking four-ish years so far to wend its way through the courts. And this isn’t a fuel treatment project but does seem to be a case of litigation slowing activities down. I’m not saying that in this case it’s bad to slow down, but I am just pointing out that it seems to be a fact that sometimes litigation slows things down.

    “However, when Assistant U.S. Attorney Brian Kipnis gave his word that “every single mile of temporary road created for this project will be decommissioned,” the panel began voicing their doubts over how temporary a road could be and the lack of information over where the roads would be and how often they would be used.”

    Here’s what the DN says about roads:
    Roads for timber operations –
    o Both open and closed roads will be utilized with the use of 57 miles of open
    Forest system roads and reopening 29 miles of closed roads (and closing after
    o Temporary roads will include a mix of approximately 12 miles of non-system
    roads, 15 miles of road prism from previous timber harvest, and 5 miles of new
    temporary road.
    o Overhanging trees along haul routes will be removed (daylighting) as well as
    hazard trees leaning toward the road (see additional daylighting clarification in DN Appendix A – Detailed Description of the Selected Alternative 2B).

    Also these travel management part of the decision.
    “Access and Travel Management of the forest road system: Changes to National Forest
    System roads are summarized in Table 1 and described below. Maintenance levels for
    specific road segments are provided in DN Appendix A. Note: these are the same ML
    determinations analyzed for this alternative in the EA but the summary information for
    total miles has been corrected in this decision and will be noted in errata to the EA.
    Table 1. Summary table of Alternative 2B road maintenance levels (ML) in miles.
    o Decommission approximately 17 miles of currently non-drivable National Forest
    System road.
    o Store an additional 15 miles of road (ML 1) for a total of approximately 60 miles
    in ML1 status.
    o Manage 14 miles in ML2 for high-clearance vehicles with an additional
    approximately 8 miles in ML2A administratively closed status (providing access
    to private land or rock sites).
    o Manage approximately 41 miles as ML 3 (passenger vehicle) with all trailheads
    accessible by ML 3 roads.
    o Retain approximately 5 miles of ML 4 road
    o Convert approximately 1.8 miles (3 road segments) from NFS road to trail.
    o Use and then decommission approximately 23 miles of non-system roads.”

    It sounds like they had a pretty cool technical advisory team for the project, including two Tribes and the Puget Sound Bird Observatory, with the point being to promote old forests…
    “Klamath Bird Observatory has partnered with the Stillaguamish Tribe of Indians, Sauk-Suiattle Indian Tribe, and Puget Sound Bird Observatory to form a technical advisory team which is working side by side with the Regional Forest Service Avian Conservation Program Manager and USDA Forest Service Mt. Baker-Snoqualmie National Forest staff to inform restoration planning. Collectively, this team has integrated focal species needs into planning for the South Fork Stillaguamish Vegetation Project and designed a robust monitoring strategy to measure ecological outcomes.

    This vegetation project is occurring in densely stocked Late Successional Reserves (areas set aside to provide old growth habitat). The Forest has identified ~3000 acres where commercial thinning of trees <80 years of age would be both feasible and beneficial to old growth dependent species within a project area of 65,000 acres. Restoration goals are to promote stand development and characteristics of old forests, e.g. broadleaf plants, structural diversity, standing dead trees, and coarse woody debris on the ground. Thus, thinning is designed to promote tree species diversity, structural complexity, and understory cover at the treatment site and contribute to landscape scale goals for Late Successional Reserve habitat diversity over the long-term."

  3. But without an injunction, the project could still continue during the pendency of the litigation, unless the agency agreed to self-enjoin. So, unless there’s an injunction or the Forest Service agreed to hold off with project implementation, this is NOT a situation where litigation “slowed down” activities.

      • The Courthouse article says the project has been “ongoing for the last two years,” so it is apparently not yet complete. With regard to an issue involving the future use of roads, that issue could still be addressed.


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