We’ve been having an interesting discussion about the Fre-Wi’s use of Category 6, which has expanded into other areas. Many thanks to John Persell, who engaged with us and reminds me how much I miss learning from, and strategizing with, my OGC colleagues when I was with the FS. Here’s a link to his comments directly.
Yes, this case took a long time from when it was first filed until this decision on Tuesday. That included a trip up to the Ninth Circuit and back to the district court on remand. The AFRC press release you link to does not appear to acknowledge that remand. On remand, Judge McShane finally reached the merits of plaintiffs’ claim:
When the Forest Service promulgated CE-6, did it provide findings that supported a “no significant impacts” determination for commercial logging of unlimited acreage?
Judge McShane examined the record and determined the agency had not done so, and thus invalidated this particular CE’s use, including for the three logging projects on the Fremont-Winema National Forest.
John explains why it took so long. That is very helpful to understand. And if no one could find the record supporting the category, that would be a problem. That’s one of the reasons folks (when I was in NEPA) were cautious to use it. Without reading the FS arguments (are they available somewhere?) it’s hard to tell what the record for the category was or wasn’t.
Regarding the Trump Administration’s role here, during the most recent round of briefing the Forest Service argued it needed CE-6 to implement Executive Order 14225 (Immediate Expansion of American Timber Production). That EO, of course, directed the Forest Service to identify any and all ways “to fully exploit our domestic timber supply” by avoiding NEPA and ESA “burdens.”
I want to stress that the Forest Service does not choose its litigators, which are provided by the Department of Justice and do not necessarily reflect the views of anyone in the FS. It’s a bit of a silo wherein DOJ and the FS have separate missions and goals, with separate bosses, albeit always in the same Admin.
Now I am the least litigation-oriented person imaginable, but I would not be making the argument in a 9th Circuit courtroom that something was necessary for a Trump Admin agenda item. I can only imagine that there is some context for the DOJ attorney’s comments that we might be missing. We could check, if we knew where those briefings were filed.
As to “what verbiage” our groups would be seeking regarding logging projects of this scale, it’s important to recognize that a brief scoping notice and a brief CE decision memo do not provide the same consideration and disclosure of impacts and project features as an environmental assessment or environmental impact statement.
I agree that the public needs to see the proposal in more detail to comment. This would be the “draft EA”. On the other hand, I’ve seen EAs and CE analysis of about the same length and depth of analysis. And there’s one more tweak.. if the public can see and comment without litigation being possible.. as in CBM (condition based management).
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That’s why I’d like to open up submissions of “favorite EA”… we could bring individual EAs up for discussion. The presenter would give their views on what they like about it- think about criteria like conciseness, readability, visuals, and looking at all the right things in the right depth -and see where we agree. So please submit yours.. and I will take a look at some in the interim. During the Process Predicament period, we had an internal FS competition and gave out NEPA awards to units. I can’t really do that in terms of financial awards to the team, but maybe someone with better funding sources will help out.
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In addition, commercial logging inherently has greater impacts on environmental values like habitat and soils than non-commercial treatments, which involve less heavy equipment, less use of roads, and generally lighter-touch prescriptions.
I’m not sure that’s always true, depending on where you are. Here in Colorado, for example, I see private folks doing fuel treatments using the same kinds of equipment even when they can’t sell their trees. They need to remove larger trees and there aren’t many alternatives. If the ground is flat enough, people bring in harvesting equipment and pile the logs along the road, whether they are sold to sawmills, given away as firewood, or chipped.
I’m a fan of the Bear Wallow Design Criteria document. I like how it has columns for objective, design features, locations and justification. Most of the justifications point to the Forest Plan, where the design criteria were no doubt already analyzed in the EIS.
So we feel full NEPA analysis through an EA or EIS is warranted for commercial logging projects of this scale due to their potential for significant impacts.
The Bear Wallow DM says that commercial thinning “could take place on up to 10,000 acres.” Interesting that in this letter on FOFA from Megafire Action.
The State of California has requested that Congress “Expand US Forest Service Categorical Exclusion authority from 3,000 to 10,000 acres for fire-prone areas in the western US.” 3 This request was borne out of the success California had with the 2016 Water Infrastructure Improvements for the Nation Act, which created a 10,000 acre CE for fuels reduction projects in the Lake Tahoe Basin. This enabled more land to be treated faster, helping to maintain forest health, create defensible space, and protect communities.
I don’t know that FOFA won’t be/has been changed or passed, but at the time, Megafire Action said:
Under FOFA, forest management projects receiving up to a 10,000 acre CE must first be identified by a fireshed assessment. FOFA mandates that fireshed assessments comply with applicable forest plans which are developed with community input, incorporate the best available science and traditional ecological knowledge from Indian Tribes, and allow for local government participation in their formulation. These added guardrails ensure that CEs will not be used for projects that harm our forests.
So our friends in Congress are discussing almost this very question.. what kind of sideboards to put on a larger CE.
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Last, Judge McShane’s ruling does not affect any existing contracts related to these projects: “Existing contracts regarding the sale of commercially thinned timber from the Projects are not affected by this Order.” We only know of a few small GNA contracts related to these projects.
FWIW I put in a request to the FS (the Fre-Wi folks have been extremely helpful) to find out how much work had been done and contracts awarded on the three projects.
Having made good use of the CE #6 during my career as a project leader implementing thousands of acres of smallwood commercial timber harvests, I believe putting limits on treatment acres or volumes is purely political and uncalled for. The requirement that there be no “extraordinary circumstances” is the only sideboard that is necessary. For example, you could have a situation where cutting a single tree could have an extraordinary circumstance such as having an eagle nest in it and on the other end of the spectrum you could propose to remove hazard trees along established roadsides covering thousands of miles and acres and have no extraordinary circumstances.
The court rejected the argument that “extraordinary circumstances is the only sideboard that is necessary.”
“But the Forest Service cannot promulgate a CE that applies to projects of unknown impact anticipating the safety valve of extraordinary circumstances review to justify the CE on a project-by-project basis after the fact.9 See Safari Club Int’l v. Haaland, 31 F.4th 1157, 1179 (9th Cir. 2022) (“By definition, CEs are categories of actions that have been predetermined not to involve significant environmental impacts[.]” (quoting Nat’l Tr. for Historic Pres. v. Dole, 828 F.2d 776, 781 (D.C. Cir. 1987))); Bosworth, 510 F.3d at 1028 (“As the Sierra Club points out, if assessing the cumulative impacts of the Fuels CE as a whole is impractical, then use of the categorical exclusion mechanism was improper.”). As such, the comprehensiveness or procedural compliance of the Forest Service’s approval of the Projects is not dispositive of the validity of CE-6.”
There also need to be sideboards on creating a CE “loophole.” The fact that “you could propose to remove hazard trees along established roadsides covering thousands of miles and acres and have no extraordinary circumstances” (that may have a significant effect) is different than a CE saying that all such proposals do not have a significant effect unless there are extraordinary circumstances. NEPA requires proper establishment of a CE before you can change this “default.”
Courts, especially the 9th circuit, has a long history of making uninformed, biased and politically motivated bad decisions. CE6 gives the example of “thinning or brush control to improve growth or reduce fire hazard including opening of an existing road to a dense timber stand”, note that it does not say “to accomplish precommercial thinning of a young plantation”. CE6 has been used for decades to precommercially thin hundreds of thousands of acres of plantations and to conduct prescribed fires to accomplish wildlife habitat improvement and fuels reduction objectives. I don’t hear any outcries from environmental/preservationist groups about the possible cumulative or significant effects from these other actions even though some could argue they could and have had (i.e. escaped rx fires for instance) more negative impacts on the environment than commercially harvesting commercially valuable forest products. Setting acreage and/or volume limits is purely political and arbitrary. The actual potential effects on the environment is what matters.
Sharon said: “I’ve seen EAs and CE analysis of about the same length and depth of analysis.”
This does not make the CE equivalent to an EA.
Remember that CEs are also exempt from obejction, which is an important opportunity for the public to engage and negotiate a better outcome.
EAs should also consider multiple action alternatives that weigh and balance trade-offs in different ways, but that NEPA principle is sadly often neglected these days.
Hmm. I’ve been looking at real-life objections and often it’s not the public so much as interest groups. Everyone wants a seat at the table.. so everyone “objects” so they can get a seat at the table. So the same groups are at the table to field the same positions as in the comments. At least that’s what I’ve seen.
“not the public so much as interest groups”
That’s a distinction I don’t understand.
Wait til I have some examples.
“I’ve seen EAs and CE analysis of about the same length and depth of analysis.”
That may be true, but the focus of the analysis for a CE should be fitting the category and extraordinary circumstances rather than considering all environmental impacts like an EA or EIS would.
Megafire Action: “FOFA mandates that fireshed assessments comply with applicable forest plans”
DECISIONS have to comply with forest plans (not assessments, unless a plan imposes requirements for assessments – which would be unusual outside of provisions for specific kinds of assessments like watershed analysis). And if these are decisions rather than assessments, then of course NEPA would be required.
That particular requirement of FOFA is talking about an assessment to see if an area should be entitled to specific elements of FOFA. To obviate the need for yet another NEPA layer, the bill states that for that specific assessment.
Referring to the former CE (e)6 as CE-6 irks me because CE (d)6 also existed in the now rescinded (interim rescinded?) 36 CFR 220.6. The new name for the CE is USDA-30d-USFS.
A. I totally get that. I have trouble with the new regs because I can’t find the legislative CEs.. maybe that’s my problem. And of course, the numbers are confusing. Perhaps it makes more sense to just give them names and stick with those?
Do you know of a simple listing that is current with both the Admin and Legislative CEs? I think it would be a great public service to have one available. Then we could post it and give them (or at least the vegetation ones) names.
This tool might be helpful:
https://ce.permitting.innovation.gov/
I can also email you a spreadsheet on Monday if you would like, with other agencies CEs being adopted it’s hard for everyone to keep track.
That would be great! thanks.