Alanna Madden

PORTLAND (CN) — Attorneys for two conservation groups and the U.S. Forest Service met in Eugene’s federal court on Thursday on claims that the service illegally authorized three commercial logging projects without an environmental impact analysis.

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 Fremont-Winema National Forest experienced one of the largest wildfires in Oregon’s history that burned over 413,000 acres.

But according to a lawsuit filed by Oregon Wild and WildEarth Guardians last year, large-scale projects like these require the service to review the projects’ environmental impacts under the National Environmental Policy Act  — a law enacted in 1970 to encourage environmentalism and ensure federal oversight.

Within the groups’ complaint, they explain that the service authorized the projects via a categorical exclusion under that very act, a type of exemption for timber and wildlife habitat improvement that allows the service to bypass analysis and public input for small, low-impact activities to improve growth or reduce fire hazard.

In court, WildEarth attorney Erin Hogan reiterated that the scope of the projects is too vast not to require an environmental analysis and, even if the exemption applied, it would violate the National Environmental Policy Act itself.

“The Forest Service knew very well that using CE-6 for commercial logging would run into NEPA issues,” Hogan said in Thursday’s hearing for summary judgment. In a later rebuttal, the attorney added that by allowing the service to use the exemption as it has since 2018, the service would “authorize limitless forest thinning.”

In response, assistant U.S. attorney Sean Martin argued that the groups are missing the point of the projects, which is to reduce tree overcrowding and prevent fire, insect infestation and disease.

“We want to get ahead of the wildfire,” Martin said, later adding that because the National Environmental Procedure Act is a procedural statute, the plaintiffs cannot assert to have a substantiative claim. Martin also argued that because the act’s regulations around thinning began in 1992, the plaintiffs’ claims are time-barred — suggesting that they take their second claim to D.C. to change the law if they have an issue with commercial thinning.

“However you slice it, it’s time barred,” Martin said.

U.S. District Judge Michael J. McShane noted that it seems the service is using the categorical exclusion now more than ever, particularly after Hogan explained how the agency does not internally track its use of the exemption.

Even so, McShane also said that he would be surprised if the service didn’t address the risk of wildfires and that the plaintiffs are facing an uphill battle in the face of last year’s decision in Mountain Communities for Fire Safety v. Elliot — a similar case in which the Ninth Circuit held that the same categorical exclusion at issue “allows for the thinning of larger commercially viable trees, and is not limited to thinning small saplings.”

Before adjourning the court, McShane said the matter made for a “tough case” and that he would issue an order within the next few weeks.

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