Given the discussion about acreages in the Fix our Forests Act (I’ll continue the series; when I agreed to look at it I didn’t realize that it was the Mother of All Forest Bills), I thought this was weirdly timely, serendipitous, synchronistic or whatever..from AFRC yesterday.
Shout-out to the Fremont-Winema (who has a person answering the phone), the Region and WO, OGC and DOJ, for swinging for the stands! And it looks like, for the Bear Wallow Project, the Oregon Department of Forestry, and a contract NEPA firm that deserves a shout-out as well.
I remember our view during my time period in NEPA was “don’t have too many acres as someone will litigate and we will lose the CE.” So it took some courage and good work all the way along to carry it through. And of course, some luck (it’s a crapshoot, as my colleague JR used to say).
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For those of a political science bent, it is interesting that a policy that the Biden Admin apparently did not support in Congress (as to larger acreages) was supported by DOJ in defending the FS. I would guess the Admin didn’t have to appeal the lower court ruling, but did? I wonder how all that worked between various parts of the Admin. Was the appeal horse out of the barn? Did DOJ not ask for permission from whomever??? If anyone knows, please email me. We are all curious about how our government works.
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Today the American Forest Resource Council (AFRC) announced a significant legal victory in the U.S. Court of Appeals for the Ninth Circuit concerning three critical forest management projects—Baby Bear, Bear Wallow, and South Warner—on the Fremont-Winema National Forest.
The Ninth Circuit upheld the U.S. Forest Service’s use of the timber stand and/or wildlife habitat categorical exclusion (CE-6) under the National Environmental Policy Act (NEPA), rejecting the claims made by Oregon Wild and WildEarth Guardians that CE-6 has an implied acreage limitation.
The plaintiffs challenged the projects, which cover a total area ranging from 3,000 to 16,000 acres of commercial thinning, on the grounds that the Forest Service had misused CE-6. They argued that the categorical exclusion should not apply to “large-scale” projects like these.
However, the Ninth Circuit ruled that CE-6 contains no acreage limitation, affirming that the Forest Service appropriately applied CE-6 to improve forest stand conditions and wildlife habitat, in compliance with both federal law and NEPA regulations.
AFRC participated in the litigation as amicus, both at the district court and appellate levels.
“The Court reaffirmed that CE-6 can be used for projects of this scale, ensuring that vital forest management efforts can proceed without the unnecessary delays of extended environmental reviews. This ruling allows these projects to continue their important work in maintaining healthy forests and reducing the risk of catastrophic wildfires,” said AFRC General Counsel Sara Ghafouri.
The Court’s decision also follows precedent from the Mountain Communities for Fire Safety v. U.S. Forest Service case, which upheld CE-6 as applicable for timber stand improvements, reinforcing that commercial thinning and other forest health projects can be expedited under this exclusion.
The Baby Bear, Bear Wallow, and South Warner projects are essential to improving forest resilience and wildlife habitat across the Fremont-Winema National Forest. They allow for commercial thinning without herbicide use and with minimal road construction, all within the legal framework of CE-6. The ruling ensures that these projects will not face additional legal obstacles, paving the way for sustainable forest management practices to continue without delay.
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For those interested, here is some background on the Bear Wallow Project from the Oregon Department of Forestry.
The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.
Here’s how folks worked together and the history of the stands, it appears to be a GNA project.
CASE STUDY: The FFR Program and Bear Wallow Project Area The Bear Wallow Timber Stand and Wildlife Habitat Improvement Project is a forest restoration project on the Fremont Winema National Forest, just south of La Pine, Oregon, bordering the Gilchrist State Forest. Developed as a collaboration between the Fremont Winema National Forest, Oregon Department of Forestry, and the Klamath-Lake Forest Health Partnership, this project serves as an interesting example of the FFR Program’s use of the Good Neighbor Authority (GNA) to accelerate the pace and scale of restoration on federal forest lands.
During the 2019-2021 Oregon State Biennium, FFR Program involvement in Bear Wallow began with a Planning Assistance Categorical Exclusion (PACE) grant to invest $100,000 in contract NEPA planning in the Sugarpine project area. This resulted in two commercial restoration projects generating over $2.7M in revenue. The state then used this funding to accomplish additional non-commercial restoration within these project areas and to complete surveys and planning for two additional NEPA project areas: Bear Wallow and Sun Pass.
The Bear Wallow project comprises about 17,000 acres of National Forest, approximately 40 percent of which is former Industrial Timber lands, some of which were heavily logged prior to Forest Service acquisition from Shevlin-Hixon Lumber Company in 1943. Fire suppression and the lack of other active management has resulted in dense mixed conifer encroachment (mainly lodgepole pine), raising fire hazard and creating competition with more desirable species, such as ponderosa pine and aspen.
The project intends to improve habitat for wildlife and increase wildfire resilience by thinning less-desirable trees. The restoration prescriptions on the Bear Wallow Project will create openings by removing lodgepole pine and white fir from within 30 feet of mature ponderosa pines and 100 to 200 feet from aspen stands. The prescriptions will retain all trees 21 inches or greater in diameter those within a 75 feet buffer of streams.Conifer infill began soon after the historical logging of ponderosa pine in the Bear Wallow project area. As a result, many of the trees that require thinning are of commercially desirable size. Through the use of the GNA, the ODF’s FFR Program plans to advertise and administer commercial thinning projects within the project area. Recent FFR Program GNA commercial projects have been purchased by local businesses such as Gilchrist Forest Products LLC, which produce building materials from ponderosa and lodgepole pine. Revenue from these commercial sales will be directed toward additional restoration needs within the project area and potentially elsewhere on the Fremont Winema National Forest.
This looks like the bid request for the NEPA contract, apparently contracted through the State.
I have asked the Forest for a photo of the forest conditions described in the ODF writeup, so stay tuned on that.
I remember when Categorical Exclusions for green timber sales were limited to 250 mbf. Now, they may be unlimited. Shame on those who celebrate this catastrophic loss of public accountability and informed decision-making.
Note: the court remanded part of the case because the administrative process supporting the stand maintenance CE clearly did not anticipate unlimited commercial logging, or make a finding that such projects have no significant effect.
The point of Cat 6 is that it is about the purpose. Commercial logging is a tool to achieve that purpose. There is still “public accountability” in terms of comments and CEs are regularly litigated. So, what exactly is missing that you would like to see in this documentation that you would find in an EA?
https://www.fs.usda.gov/project/fremont-winema/?project=61167
Well, it’s interesting that AFRC doesn’t mention the second claim in this case for which the decision was reversed and remanded to the district court. That one doesn’t fault the Forest, but challenges the adoption of this CE as violating NEPA if it has no acreage limitation. The district court had held that this claim was barred by the statute of limitations, but the 9th Circuit reversed that decision (based on the recent Supreme Court opinion in the Corner Post case). So the district court will have to consider the merits of that claim, and this case may be far from over ….
Here’s our discussion of the district court opinion: https://forestpolicypub.com/2023/08/08/forest-service-wins-fremont-winema-national-forest-with-ce-6/
Two things.. it seems to me that in many cases, limitations are due to extraordinary circumstances, not acreage per se. Cat 5 doesn’t have acreage limitations for (reforestation) veg management, and there are a variety of others without acreage limitations. Should be interesting to watch.
I would expect there to be a significant amount of projects that are really a ‘hybrid’. In some kinds of projects, a timber sale is embedded into a fuels project, to deal with removed pieces that are of ‘commercial size’ (often 10.0 inches dbh, 10.5 feet long to a 7 inch top diameter… dimensions for a ‘minimum piece’). Sometimes the commercial value of those small merchantable trees will help offset the costs of doing the non-commercial fuels work.
The plaintiff’s claim of “unlimited logging” is apparently ‘unpalatable’ to even the Ninth Circuit Court.