Groups urge court to scrap Forest Service logging ‘loophole’
Monique Merrill
PORTLAND, Ore. (CN) — A dispute over three logging projects in south-central Oregon has raised questions about the legality of a longtime U.S. Forest Service authorization rule, with conservation groups on Monday asking a federal judge to vacate it.
“The government gave itself a giant loophole to get out of [National Environmental Policy Act analysis] for any timber project,” argued Erin Hogan-Freemole, attorney with WildEarth Guardians. “We’re just getting larger and larger timber sales with no analysis whatsoever.
A trio of conservation groups — Oregon Wild, WildEarth Guardians and GO Alliance — sued the Forest Service in 2022, accusing it of failing to determine whether applying categorical exclusion six, an exemption meant for small, low-impact activities intended to reduce fire hazard, to approve three large-scale commercial thinning projects would have no significant impact.
U.S. District Judge Michael McShane, a Barack Obama appointee, originally found the claim to be time-barred, but the Ninth Circuit disagreed and sent the challenge back to the lower court.
The three projects at issue involve the commercial thinning and prescribed burning of 29,000 acres within the Fremont-Winema National Forest in southern Oregon, a dry region of the state that is prone to wildfires. In 2021, for example, the forest experienced one of the largest wildfires in Oregon’s history that burned over 413,000 acres.
The Forest Service does not have to prepare an environmental impact statement or environmental assessment for projects approved under categorical exclusion six. The conservation groups say the Forest Service has used it to bypass the more stringent project approval requirements under federal environmental law, like the National Environmental Policy Act.
For a project to qualify for categorical exclusion six, it must not involve the use of herbicides, nor require more than one mile of low-standard road construction, apply to timber stand and/or wildlife habitat improvement activities, such as thinning trees and prescribed burning, and not involve extraordinary circumstances.
According to the conservation groups, the primary issue is whether the Forest Service had the authority to promulgate such a broad rule in the first place, back in 1992. Another issue is the lack of records kept for projects approved under the exclusion.
McShane questioned the Forest Service about the limitations of the categorical exclusion.
“The type of project is important,” responded Sean Martin with the U.S. Attorney’s Office. He explained that a project must qualify for the categorical exclusion, and the categorical exclusion cannot be used to authorize unlimited mega projects.
Martin argued that adding a logging acreage limit onto the exclusion or vacating it altogether could disrupt important projects already underway.
“Is it really a good outcome to throw this all into chaos at this point in time?” Martin questioned, referring to the need to manage forest fire concerns.
McShane, in turn, asked the conservation groups about the threat of wildfires, noting it is largely agreed that thinning is generally considered a necessary tool to manage the threat.
“Why would we have an acreage limitation on forest restoration when we have a massive federal forest that has gone unrestored?” McShane asked.
The conservation groups argued it is intended to be used for small, low-impact projects, unlike the three in dispute in the case. The groups acknowledged the Forest Service may be correct to conclude that thinning should be done but maintained that they still need to show how they arrived at that position.
The impact could be good overall, but that’s not the same as finding there will be no significant impact, Hogan-Freemole argued.
“There are a lot of ways you could limit [categorical exclusion six] but still accomplish restoration goals,” Hogan-Freemole said.
For instance, even the road limitation that allows the Forest Service to build just one mile of new road to carry out projects approved under categorical exclusion six doesn’t necessarily narrow the scale.
McShane had questioned whether that would necessarily limit the scale of a project.
“Maybe I don’t know enough about logging, but if there’s no road to trees, it seems you can’t pull them out of the forest,” McShane remarked.
But the conservationists noted the limitation applies only to new roads and freely allows the agency to repair or reconstruct disused roads.
“The Forest Service has roads pretty much everywhere,” Hogan-Freemole said.
When it produced categorical exclusion six over three decades ago, the Forest Service never found that commercial logging and the associated activities didn’t significantly affect the environment and therefore lacked the authority to promulgate it, the conservationist argued.
The groups requested McShane vacate the rule and declare it unlawful as applied to commercial logging — a remedy that the judge noted would essentially have the same effect as a nationwide injunction.
The Forest Service, however, cautioned McShane. Martin argued the court may be “put on thin ice” if it vacates or enforces an acreage limit of the rule.
“Don’t throw the baby out with the bathwater, don’t vacate,” Martin appealed.
McShane did not indicate when he would rule and said he would take the time necessary to consider his decision.
“Depending on whose brief I’m reading, I keep moving back and forth,” McShane said.