Groups ask court to halt commercial logging in Oregon forest

Monique Merrill

(CN) — Two conservation groups asked a Ninth Circuit Court of Appeals panel to stop three commercial logging projects slated for a south-central Oregon forest, accusing the U.S. Forest Service of exceeding its authority and bypassing environmental regulations in approving the projects.

Oregon Wild and WildEarth Guardians appeared before a three-judge panel on Wednesday to implore the court to prevent the service from commercially thinning 29,000 acres within the Fremont-Winema National Forest in southern Oregon.

The conservation groups argue that the service illegally authorized the projects and bypassed environmental impact analysis by misapplying a categorical exclusion to the National Environmental Policy Act.

“Ruling in favor of the Forest Service here would create an enormous loophole that is fundamentally at odds with NEPA and the CE regulatory regime,” attorney for the conservation groups Oliver Stiefel of the Crag Law Center told the panel.

For a project to qualify for the exclusion, 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.

While the categorical exclusion does not set a specific limit on acreage, the conservation groups argue that the scale of the projects does not fit within any reasonable interpretation of the exclusion.

The groups first challenged the U.S. Forest Service and several of its officers in 2022, when the projects were first approved. A federal judge in Oregon came back in favor of the service, ruling that the exclusion did apply to the projects since they are meant to improve timber stand and wildlife habitat.

On appeal, the groups maintain that the exclusion does not apply to the projects since they involve thousands of acres of commercial logging and argue that if the court finds the exclusion does apply, then it is unlawful as it has been applied.

“I see it as a facial challenge,” U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, said. “You’re saying that CE-6 needs to have an acreage limit.”

Stiefel clarified that the conservation groups aren’t facially challenging the categorical exclusion but are focused on the service’s application of the exclusion. He also told the panel the court does not have to determine an acreage limit within the exclusion to decide the case.

“We have a brand-new, as-applied challenge,” Stiefel said. He also brought up the court’s history of hearing cases that challenged the applications of regulations put into effect as early as the 1970s.

The forest service argued the projects are crucial to the health of the forest and mitigating wildfires, and that nowhere in the text of the categorical exclusion was there a potion limiting acreage.

U.S. District Judge Raner Collins, a Bill Clinton appointee sitting in by appointment from Arizona, asked how the service determines whether a categorical exclusion applies to a project.

“The Forest Service is very meaningfully constricted here in terms of different projects because of those four limits, including timber stand and wildlife habitat,” U.S. attorney Benjamin Richmond said.

He also argued that the groups’ challenge to the categorical exclusion is time-barred since it was promulgated in 1992 and there is a six-year statute of limitations.

U.S. Circuit Judge Kim Wardlaw questioned whether this limit applied to the challenge.

“Why, with respect to independent projects where they have independent injuries they could allege, why not bringing suit in an earlier time for that injury bars a later injury that occurs?” the Bill Clinton appointee asked.

Richmond pointed to the six-year statute of limitations and accused the groups of trying to stop future applications of the categorical exclusion.

“The forest is just under tremendous stress,” Richmond said. “Time and time again, it’s really this type of active management which is so crucial in being able to mitigate the risk of catastrophic wildfire.”

The Fremont-Winema National Forest experienced one of the state’s largest wildfires in 2021, with over 413,000 acres burned.

The projects have yet to be implemented, but two are set to be bid on starting within the next month. The panel did not indicate when it would have a decision.