In July 2022, WildEarth Guardians and our ally Oregon Wild sued the Forest Service in federal court in Oregon. Our suit challenges three decisions to implement what the agency describes as wildlife habitat and timber stand improvement projects but actually include up to 29,000 acres (45 square miles) of commercial logging on the Fremont-Winema National Forest in south central Oregon.
The Forest Service approved these three projects without preparing either an environmental assessment (EA) or environmental impact statement (EIS). Typically, the Forest Service drafts one of these documents to analyze the environmental impacts of logging projects, and then shares its analysis with the public for participation and input. This public process is a cornerstone of proper, democratic and public management of public lands. In this case, the Forest Service claims that, because the purpose of these projects is to improve wildlife habitat and/or timber stands, it can bypass the typical environmental analysis despite the projects’ sizable commercial logging component. That view misinterprets the applicability of categorical exclusions (CEs).
What is a “categorical exclusion”?
The Forest Service (and other federal agencies) can exclude certain categories of actions from the National Environmental Policy Act’s (NEPA) requirement to analyze the impacts of proposed actions with either an EA or an EIS. But, agencies can only do this after formally finding that a category of activities has only insignificant environmental effects, individually and cumulatively. Over the years, the Forest Service has instituted categorical exclusions (CEs) for a range of activities from closing an area of a forest during extreme fire danger to replanting trees after a fire or flood. The rationale for CEs is that they save the agencies from spending time and other resources analyzing projects without significant impacts.
CE-6, the CE the Forest Service cited for the three Fremont-Winema projects, was instituted in 1992 to permit the Forest Service to quickly approve activities to improve timber stands or wildlife habitat without the use of herbicides or constructing more than one mile of new road, such as prescribed burning and tree thinning. For many years, the Forest Service limited its use of CE-6 to habitat and timber stand improvement projects that cut only small trees with no commercial value (i.e., noncommercial thinning). When stand or habitat improvement projects included a commercial thinning component, the agency would prepare an EA or EIS. Alternatively, if the proposed commercial thinning component was not substantial, the Forest Service would cite a different CE that specifically addressed limited-acreage commercial harvest. This made sense—noncommercial thinning has a much lighter impact on the land, wildlife and water, and the other CEs were instituted specifically for limited commercial logging projects. The historical record also shows that when the agency drafted and finalized CEs in the late 80s and early 90s, it intended CE-6 to apply only to non-commercial thinning.
This changed under the Trump administration. In late 2018, the former President issued an executive order instructing the Forest Service to use “all applicable categorical exclusions set forth in law or regulation for fire management, restoration, and other management projects in forests, rangelands, and other Federal lands when implementing the requirements of the National Environmental Policy Act.” Trump’s motivation was clear: complete more logging projects and do it more quickly by relying on the truncated process for analyzing and approving projects via CEs. Shortly thereafter, the Forest Service began relying on CE-6 for stand and habitat improvement projects with substantial commercial thinning components.
WildEarth Guardians and others took notice of the agency’s new and improper use of CE-6. In 2018, three conservation groups in California challenged the Forest Service’s reliance on CE-6 to approve a 1200-acre timber stand improvement project that included 600 acres of commercial thinning. The use of CE-6 for that project was ultimately approved in 2022 by the Ninth Circuit Court of Appeals in Mountain Communities for Fire Safety v. Elliott, a divided opinion that focused on the size of the trees that were permissible to cut under CE-6, rather than the size of the project approved under CE-6. The dissenting judge on the Ninth Circuit panel warned that the decision could lead to the Forest Service using CE-6 to approve timber stand and wildlife habitat improvement projects that included vast acreages of commercial logging.
In December 2021, a few months prior to the Mountain Communities decision, the Fremont-Winema National Forest approved the South Warner Project, relying on CE-6 to approve a 69,000 acre timber stand and wildlife habitat improvement project with up to 16,000 acres (25 square miles) of commercial logging without an EA or EIS. In May 2022, the Fremont-Winema approved the Baby Bear and Bear Wallow Projects, two more timber stand and wildlife habitat improvement projects. The two projects shared a boundary and included a total of 13,000 more acres (more than 20 square miles) of commercial logging . The Forest Service again used CE-6 to avoid the typical NEPA environmental analysis for commercial logging projects.
Two months later, Guardians and Oregon Wild, represented by Crag Law Center, filed our complaint in Oregon federal court claiming:
- The Forest Service violated NEPA in using CE-6 for the three projects because they include large-scale commercial logging; and
- In the alternative, if CE-6 does permit large-scale commercial logging projects, then CE-6 itself violates NEPA because the Forest Service never determined that commercial logging operations cause no individually or cumulatively significant environmental effects.
UPDATE AUGUST 30, 2023
A little more than a year after our filing the complaint, the U.S. District Court for the District of Oregon issued a decision in favor of the Forest Service. On our claim that the agency’s use of CE-6 for the three challenged projects violated NEPA because they included large-scale commercial thinning, the court found that the agency’s use of the CE was reasonable, given that the CE’s text contains no acreage limit on such thinning. Regarding our claim that CE-6 itself violates NEPA, the court held that the claim was barred by the passage of time because the agency’s final rule implementing the CE was made in 1992, so our claim was filed well past the 6-year statute of limitations. Although we argued that a Ninth Circuit exception to the statute of limitations is applicable to the case, the court found otherwise, ruling that the exception is inapplicable to statutes, such as NEPA, that dictate processes and procedures in decision making rather than any substantive requirements.
We continue to strongly believe in the merits of both claims and are appealing the decision to the Ninth Circuit Court of Appeals.
As Guardians and Oregon Wild move forward in our legal challenge to the use of CE-6 to greenlight commercial logging without environmental analysis or public participation, we will continue to stand up for the public’s right to be informed and have a say in how federal agencies manage our public lands. Our suit fights to ensure the Forest Service puts public participation and science-driven management ahead of timber industry profit.
