This is usually Jon’s round-up territory but I thought it was so interesting it deserved a post of its own, plus it’s my old stomping grounds. Thanks to a friend of The Smokey Wire, it came via a Law 360 article.
Law360 (August 7, 2023, 8:27 PM EDT) — An Oregon federal judge has thrown out environmentalists’ lawsuit attempting to block commercial lumbering in a national forest, ruling regulators properly determined the timber thinning projects were exempt from stringent environmental review.
The U.S. Forest Service correctly approved logging almost 30,000 acres in the Fremont-Winema National Forest over three projects aimed at improving wildlife habitat and timber stands, U.S. District Judge Michael J. McShane said in a Friday order granting the service’s motion for summary judgment. In the same ruling, Judge McShane turned down a summary judgment counter from the groups, Oregon Wild and Wildearth Guardians, ruling they hadn’t shown the USFS granted unlawful exclusions from environmental review for logging and waited too long to challenge the exclusion category itself.
The environmental groups sued last year, alleging the forest service used categorical exclusion six to create a loophole that let logging companies bypass impact analysis of the South Warner, Bear Wallow and Baby Bear projects in the national forest. The exclusion may also be invalid since it has now been used to approve big, commercial logging projects without considering their environmental consequences, the groups alleged.
But Judge McShane, in his Friday ruling, said the exclusion’s language permits commercial logging and has no limit on the size of timbering projects. Instead, it bars herbicide use and restricts road building, the judge added. The forest service explained how thinning the forest would improve habitat for birds, turtles and deer, cut back overcrowded conifer trees and reduce the risk of insect infestation, Judge McShane said.
The USFS, therefore “reasonably determined that thinning to improve wildlife habitat and favorable timber stand conditions” fell within the scope of the exclusion, the judge ruled.
Turning to the groups’ challenge to the exclusion itself, Judge McShane said opponents had missed the six-year deadline to get the 1992 rule overthrown. Conservation groups were not entitled to an exception from that deadline, the judge added.
Oregon Wild and WildEarth Guardians argued that the forest service never determined commercial logging had no significant impacts when it approved the thinning exclusion, a violation of the National Environmental Policy Act.
But in order to receive an exemption for the case under the Ninth Circuit’s decision 1991 decision in Wind River Mining Corp. v. United States , opponents had to make a substantive challenge that the forest service lacked legal authority to make the exclusions, Judge McShane said.
“The problem in plaintiff’s argument is that NEPA is a procedural statute,” the judge said. “NEPA directs agencies to create categorical exclusions and requires certain procedures for doing so. It does not dictate specific substantive results.”
The USFS declined to comment Monday. A representative for the environmental groups did nots represented by Natalie K. Wight and Sean E. Martin of the U.S. Attorney’s Office for the District of Oregon. The environmental groups are represented by Oliver J.H. Stiefel, Erin E. Hogan-Freemole and Meriel L. Darzen of Crag Law Center.
So that’s the legal side. I’m finding out more about the projects themselves. Interestingly the South Warner Project seems to be linked to MOG at least in the minds of some.
The South Warner Project includes commercial logging of large, old trees under the guise of “timber stand and wildlife habitat improvement,” said John Persell, Staff Attorney at Oregon Wild. “It is yet another example of why a national rule protecting mature and old-growth forest stands is needed to address the climate and biodiversity crises.”
As a former NEPA practitioner, I wouldn’t have rolled the dice on Category 6, but if you’re going to roll the dice, you should go big, like 30K acres.
Unfortunate decision.
Love it! Don’t stop now; it’s time the Forests get to managing their charge, putting timber stands back into some semblance of protection from insects, fire and past mismanagement.
I think it is important to look at marking prescriptions and other stand documents before passing judgement on intent. If it says “Overstory Removal” or “Sanitation”, I’d be suspicious.
Just because you ‘pluck’ out a “large” (depending on definition) old (suppressed) tree, that doesn’t mean it puts our climate at risk. Also, this idea of splitting hairs in determining what is old growth is ridiculous. If it is a 46″ dbh pine that is 140 years old, you don’t cut it because it isn’t quite “old growth” yet. In fact, those are the superior genetics you want to keep in the stand. Diameter limits have their problems, but it is easier to implement, and less controversial.
Another indication that the administration will produce a rule very soon setting aside most if not all MOG stands. Several writing such as this or trying to establish a need to do so to give the administration cover. Suggest you read Dr. Franklins new book on the development of the NE Forest Plan. And the conclusion of what is needed in the future.
Almost all vegetation management activities will benefit some wildlife species at the expense of others. For example, converting closed canopy old forest to open canopy old forest will result in wildlife winners and losers. Shoot, converting a forest to shrubland would have many winners and many losers. Timber stand improvement could also encompasses a broad suite of activities, including overstory removal and shelterwood harvest, depending on how the treatment is framed. As a result, there are not many contemporary vegetation management projects that one couldn’t fit under CE 6 and there appears to be no limit to project size.
To the extent that all forests no matter their condition or makeup contain a wildlife community, nearly all of these type of projects should qualify for this CE. minimizing risk to public lands from destructive wildfires, a purpose and need for nearly all vegetation treatments these days, should
logically be considered wildlife habitat improvement. Even if it is debatable to what extent the risk is actually reduced. Yes fires are beneficial to wildlife in many cases, but one critters benefit is another’s harm as this comment correctly states. What government rules don’t say is just as important as what they do say.
I agree with your concern about “rolling the dice” on this one, and I think it is a good candidate for reversal by the 9th Circuit. It was easy for the court to say that the literal application of a category saying nothing about size limits means that the CE DOES apply. However, this is a place where size matters (to environmental effects), and the court dodged the more serious question of whether the CE SHOULD apply to large-scale logging by invoking the statute of limitations.
There, saying that “NEPA is a procedural statute” does not get at the real issue presented by the 9th Circuit precedent the judge cites, which is whether the regulation is outside the authority of the agency. In this case, establishment of a categorial exclusion that allows projects to have significant effects without preparing an EIS would exceed the Forest Service’s statutory authority under NEPA, and therefore challenges should not be limited by the date the illegal regulation was adopted.
In fact the 9th Circuit cites the D.C. Circuit for this underlying principle: “with administrative rules of continuing application, rather than one-time adjudicative orders, ‘limiting the right of review of the underlying rule would effectively deny many parties ultimately affected by a rule an opportunity to question its validity.’” Plaintiffs should not have been expected to foresee years ago that the Forest Service would misuse the CE in this way.
I do agree that this feels like an ‘end run’ around NEPA. Similar to what James Watt was doing, back in his day. This also seems like yet another example of doing the collaboration, but not reaching consensus, and going on to compromise, anyway. Plaintiffs don’t like compromises they didn’t sign on to.
Regardless of how the 9th Circuit Court is perceived today (yes, they have ‘evolved’), I hope they will simply hear the evidence and follow the laws. I wouldn’t assume that politics would actually be at work in Appeals Court, for this case.
Additionally, Congress isn’t very good at writing laws, are they?
It’s about time the agency won a “process” lawsuit. And it may be temporary if the 9th takes it up. If National Forest are going to be sustained somehow someway there must be and end to the “process” legal night mate. It’s been the elephant in the room for almost a 1/2 century and I don’t see any end.