Judge sides with environmental groups in ‘Eastside Screens’ case

I think this story by the Associated Press deserves an award for maximum number of using “Trump-era” in one piece..the headline, the first line,and paragraphs 7, 9 and 14 (the last is a quote).

“We’re looking to create landscapes that withstand and recover more quickly from wildfire, drought and other disturbances,” Ochoco National Forest supervisor Shane Jeffries told Oregon Public Broadcasting at the time. “We’re not looking to take every grand fir and white fir out of the forests.”

The lawsuit, however, said the government’s environmental assessment didn’t adequately address scientific uncertainty surrounding the effectiveness of thinning, especially large trees, for reducing fire risk. The groups said the thinning and logging of large trees can actually increase fire severity.

Rob Klavins, an advocate for Oregon Wild based in the state’s rural Wallowa County, said in a news release that he hopes the Forest Service will take this decision to heart and called on the Biden administration to stop defending the Trump-era rule change.


Here’s a story from the Wallowa County Chieftain, originating with the Capital Press.

Oral arguments in the case were heard on May 1 in U.S. District Court in Pendleton, Ore. Magistrate Judge Andrew Hallman issued his findings and recommendations on Aug. 31, siding with the plaintiffs on three key claims.

First, Hallman agreed that the Forest Service violated the National Environmental Policy Act by failing to issue a full Environmental Impact Statement, or EIS, reviewing potential environmental impacts of the amendment and alternatives.

Second, the agency violated the National Forest Management Act by not holding an objection process after the decision was signed.

Finally, the Forest Service violated the Endangered Species Act by not consulting on how the amendment will impact endangered fish, Hallman ruled.

Hallman recommended the court vacate the Eastside Screens amendment and order the Forest Service to prepare an EIS. Those findings will be forwarded to District Judge Ann Aiken, and defendants will have until Sept. 14 to file objections.

Nick Smith, public affairs director for the AFRC, said the ruling is “just the latest example of how anti-forestry litigants are preventing the Forest Service from implementing proactive forest management projects that reduce the risks of severe wildfire.”

It seems odd to me that the FS wouldn’t have a required objection process and didn’t consult on fish. My sensors tell me there might be more to this story. Hopefully, someone knowledgeable will weigh in.

Also I would think that the list of notable forest scientists who sent the amicus curiae (right language?)letter would have dealt with the scientific controversies adequately. So I wonder if the Judge’s idea was that these scientific issues should have more air time in the EIS? Since it’s Labor Day weekend, I’d like to give a shout out to all those who worked on this and may be dealing with the miasma of “bring me a rock” hood.

17 thoughts on “Judge sides with environmental groups in ‘Eastside Screens’ case”

    • No – It was an EA. The decision stated that at least part of the rationale for an DN/FONSI was that the screens would not have an impact on the outputs of goods and services from the original forest plans by implementing the screens.

      • The language about “outputs of goods and services” was written to demonstrate that the amendment was not a significant change in the plan under NFMA (rather than that the environmental effects were not significant under NEPA). (The 2012 Planning Rule essentially eliminated this distinction.)

        The actual reasoning for NEPA non-significance was their “interim” nature, something like what the court said in this case: “The Eastside Screens were meant to provide a series of short-term management standards to maintain the status of the eastside forests until a thorough environmental impact statement (“EIS”) could be conducted leading to thorough, long-term standards.” (Which is another reason to wonder why they thought they could now develop long-term standards with an EA.)

    • That’s hilarious. The Eastside screens were a product of legal challenges because as always the USFS failed to do an adequate EIS when it comes to logging plans.

      Your argument is kind of like thinking the judges need to do an EIS on the consequences of ruling in favor of environmental groups trying to enforce environmental laws. Always impressed with how Orwellian all of you act when you fail to get court approval to cut the last big trees.

      It’s almost like you think leaving what little remains still standing is some kind of existential threat to the baby tree planet you want to live on.

      Most of all I love that OSU and the industry thought they could prop up professor James Johnson, a former envior and founder of Cascadia Wildlands, to argue that the tiniest of tiny percentage of trees larger than allowed cut diameter need to be logged to “benefit” the ecosystem. Yet again the judge, is like nope, you lose! So funny…

      • Howdy Deane. Why are you OLYecology now?

        Nice lack of comment on the substance of the post, nice comment on your personal bias (which isn’t science). How do you feel about lawyers and not scientists deciding how public lands are managed?

  1. When the amendment NEPA process started, Forest Supervisor Shane Jeffries was going to be the deciding official and there was going to be an objection process. I was surprised to learn when the decision was signed that the Undersecretary signed it and that cut off the ability to have objections – I don’t think that decision to shift the deciding official was widely shared or publicly announced.

    As for fish, protections for fish were part of the original screens and those remained unchanged by the amendment.

    • From the opinion: “Plaintiffs assert that there are certain instances where logging is allowed under PACFISH but limited by the current 21-inch standard, which is why the Service has had to amend the 21-inch standard in riparian areas… When faced with these plausible effects, the Service cannot disregard these effects and solely rely on the overall stronger protection of PACFISH to conclude that the Amendment would not affect aquatic species.”

  2. “So I wonder if the Judge’s idea was that these scientific issues should have more air time in the EIS?” No, Sharon, the Forest Service prevailed on this issue. The court ruled that the FS considered adequately the scientific dispute.

    The court’s EIS ruling was based on the immensity of the FS proposal, which affects millions of acres.

    As for the missing objection process, my question is not why Trump’s officials broke the law (duh), but why the Biden administration defended its predecessor’s law-breaking?

    • Let’s not forget. While characterized as a Trump decision, this is not really a Trump decision. This was pushed by career USFS employees who would have reached the same decision under any other administration.

      • I agree 100% that amending the East-Side Screens is a Forest Service initiative. That being said, I see Trump fingerprints on the last-minute decision to shut-off objections by having a Trump-appointed Undersecretary make the final decision. In addition to being illegal, that bit of silliness may have poisoned the well in court. [I wonder if Trump’s insurrectionist former head of DOJ’s environment division had a cameo behind-the-scenes role? 🤔]

        The FS has a long and tortured track record of NEPA avoidance, so illegally amending a 7-million acre standard with an EA also does not surprise.

        Some political administrations (e.g., Clinton) have understood that the FS benefits from responsible adult supervision. Others, not so much. The current incumbent, especially in USDA, has drunk all too much FS Kool-Aid for my taste.

        At the end of the day, however, doing things the right way is the best way — “Tell the truth, obey the law.” Who said that? 😊

      • While this has been pushed by various parties for a number of years, the “push” in this case to move forward on this NEPA analysis came from above the Forest Service. Prior to that, rescinding the Eastside Screens has been introduced into bills in Congress, etc.

  3. Thanks, everyone, this is very helpful. One more question as to fish
    “Plaintiffs assert that there are certain instances where logging is allowed under PACFISH but limited by the current 21-inch standard, which is why the Service has had to amend the 21-inch standard in riparian areas… “.. I thought the point of fish protection was not allowing logging in riparian areas.

    Finally I am not a fan of doing gigantic not-site specific EISs for what “might could” happen when ultimately each project will also go through NEPA. But that’s just me.

    • From the opinion: “Moreover, the logging of large trees right outside of riparian areas could affect aquatic species. AR 48168 (asserting that “aquatic habitat is vulnerable to loss of large trees in [riparian conservation areas] and from upslope logging.)” – the last three words highlighted by the court. I don’t think anyone has said that adopting the aquatic strategies would result in no adverse impacts from logging on aquatic species.

  4. I wanted to point out one other little nugget in this case. We know the Forest Service wants to maximize their “flexibility” to manage as they see fit, and that was a central purpose of this amendment. Here is what the court says about that:”

    “With a guideline, the project or activity must “comp[ly] with applicable guidelines as set out in the plan” or be “designed in a way that is as effective in achieving the purpose of the applicable guidelines.” 36 C.F.R. § 219.15(d)(3). Thus, the shift from a standard to a non-binding guideline increases the Services’ flexibility by removing the bright-line, 21-inch rule, increasing uncertainty of future large tree management.”

    “The guideline’s purpose is vaguer than the 21-inch rule, merely stating that the Service should “[m]aintain and increase old and late structure forest [and] favor fire tolerant species where appropriate.” AR 34516. This vague language provides more flexible and uncertain management applications than the 21-inch rule by reducing judicial and public oversight of future logging decisions.”

    “Because of this increased flexibility and reduction in future judicial oversight, it becomes more uncertain how this new guideline will be applied across the eastside forests, especially through changes in administration and the variable motivations at play for each logging project. This uncertainty supports the need for an EIS.”

    “Because the guidelines in the Screens Amendment are not mandatory, the Service incorrectly assumed that they will always be followed. Instead, to take the requisite “hard look,” the Service was required to analyze how changing a standard to a guideline would affect the environment instead of incorrectly assuming guidelines are mandatory.”

    This is one of the clearest judicial discussions of how to evaluate the effects of forest plan standards vs guidelines that I’ve seen, and it lays out a simple principle: when the Forest Service demands more flexibility it creates more uncertainty about its effects, and therefore creates the greater the need for the additional scrutiny of an EIS. Here it had to do with a forest plan amendment and suggested a need for “harder looks” at this distinction in forest plan EISs, but also what about condition-based NEPA where the site-specific effects are unknown? (See the discussion of the Bitterroot Face EA.)

    I think the court’s reference to “public and judicial oversight of future logging decisions” is really about accountability, which is something the Forest Service is seeking to avoid when it seeks flexibility.

  5. Andy said: “The court ruled that the FS considered adequately the scientific dispute.”

    Be careful not to read that part of the court’s opinion too broadly.

    Isn’t the issue of scientific controversy addressed by the court is merely one of the factors to be considered in determining “significance” for purposes of making a Finding of No Significant Impact or preparing an EIS?

    NEPA has a separate duty to take a hard look at environmental effects, including a responsibility to consider “responsible opposing viewpoints” (i.e. controversy). In the forthcoming EIS, the Forest Service must still address all the scientific issues related to the environmental effects and trade-offs caused by logging large trees.


Leave a Comment