Judge: USFS’s approval of old-growth tree logging in Oregon likely illegal

Alanna Madden

(CN) — Oregon environmentalists scored another win in federal court on Thursday after a magistrate judge declined to throw out a lawsuit challenging a logging project in the Fremont-Winema National Forest.

The U.S. Forest Service, which approved the project, sought to dismiss the case, arguing that environmentalists had failed to state a valid claim. U.S. Magistrate Judge Mark D. Clarke disagreed, calling the Forest Service's legal arguments "unavailing."

Located in southeastern Oregon, the Fremont-Winema National Forest is one of six Pacific Northwest forests with large, old-growth trees that were once protected by the Forest Service’s “Eastside Screens” rules.

Those rules — a set of protective standards from 1994 that shielded large trees from timber sales for 25 years — were amended in 2020 during the final weeks of the Trump administration. The change upended the Forest Service's criteria for tree protection, replacing its old 21-foot standard with one that allowed timber sales for trees up to 30 feet in diameter.

In January 2021 — just days before former president Donald Trump left office — the Forest Service issued a final environmental assessment on that updated rule, declaring there would be "no significant impact" from the change.

That final assessment included additional analysis of environmental impacts — analysis that was not included in the preliminary assessment. Blue Mountains Biodiversity Project, an environmental nonprofit, argued it did not have an opportunity to review and comment on the additional analysis as is standard with federal rule changes. The Forest Service countered that the changes were not subject to objection or administrative review because James Hubbard, under secretary for Natural Resources and Environment at the agency, had signed off on them.

The controversy ballooned after the Forest Service approved the South Warner Habitat Restoration Project, a logging project in Fremont-Winema and the first such project made possible by the new rules.

Proponents, including the U.S. Department of Agriculture, say the project will improve "forest resilience," for example by reducing the impacts from wildfires. Critics, including Blue Mountains, say it will lead to the loss of trees that should be protected.

Blue Mountains sued over the plan, arguing the Forest Service had failed to provide an adequate explanation or objection process for its new rules in violation of the National Forest Management Act and the Administrative Procedure Act.

The agency should not have approved the project at all, Blue Mountains argued, and should have instead kept its original Eastside Screens rules.

In its complaint from last year, Blue Mountains called the rule changes "illegal."

The changes did not conform with federal requirements, and "large arboreal elders" threatened by the project were "in fact still protected," the group said in court filings.

In response, the Forest Service filed a motion to dismiss, arguing that Blue Mountains had not stated a valid claim. On Thursday, though, Clarke recommended denying that motion, giving at least a small win to environmentalists.

In his decision, Clarke found that the Forest Service was improperly conflating agency proposals, which do not require a public review process, which official agency decisions, which do.

The judge was also not convinced by the agency's reliance on Wild Virginia v. Forest Service, a Fourth Circuit ruling from last year that also dealt with public-comment requirements. That case involved a proposal by a private company to build a pipeline through a national forest, whereas this case dealt with a proposal from within the agency.

That ruling has "no bearing on the facts of this case,” Clarke wrote. A signature from an under secretary on an agency decision notice does not exempt the agency from the normal public review process, he added.

Clarke's recommendations are now in the hands of U.S. District Judge Ann Aiken, a Clinton appointee and the main judge on this case. If neither party objects within the next 14 days, Aiken will likely rule on those recommendations in the coming weeks.

Blue Mountains and the U.S. Forest Service did not immediately respond to requests for comment.