Agency attempts to bend court order to halt minor projects, but is knocked back
A recent court case temporarily prevented the public from cutting Christmas trees, picking mushrooms, or gathering firewood in national forests — or so the U.S. Forest Service wanted you to believe. This fall, the agency suspended nearly 1,500 routine activities, saying that a recent court ruling forced it to allow time for the public to comment on — and appeal — just about any action. The ruling resulted from a lawsuit brought by Earth Island Institute and other conservation groups, which charged that the Forest Service had been illegally permitting projects without opportunity for public input.
But suspending minor activities was not the point of the lawsuit, according to the plaintiffs’ lead attorney, Matt Kenna of the Western Environmental Law Center. He says that the Forest Service went far beyond the intent of the court order in applying it to activities like bike races and the cutting of the Capitol holiday tree.
Andy Stahl, executive director of Forest Service Employees for Environmental Ethics, says that the agency was trying to stage a train wreck to get Congress to clean up the mess. In this case, "the mess" is the 1992 Forest Service Decision Making and Appeals Reform Act, which requires the agency to complete an appeals process (public notice and opportunity for comment and appeal) for projects implemented under national forest management plans.
When the Forest Service began implementing the appeals act, it used "categorical exclusions" to exempt environmentally benign projects from public input. However, over time, the agency added activities with larger impacts to the exclusion list. "The Forest Service was eviscerating the 1992 appeals law," Stahl says.
A settlement in 2000 put the exclusion list in check. But in 2003, the Bush administration modified the appeals process to implement the Healthy Forest Initiative. One new regulation allowed all categorically excluded activities to sail through without the appeals process; other rules expanded the size of projects that can be excluded.
Since that time, the agency has inappropriately exempted thousands of projects from the appeals process, says Kenna. Examples include the Shaw Lake salvage timber sale in Colorado, which could produce up to 400 truckloads of timber, plus oil and gas development and the construction of off-highway vehicle routes, Kenna says.
On July 7, U.S. District Judge James K. Singleton Jr. agreed with Kenna and Earth Island, and struck down the 2003 rule circumventing the appeals process. The Forest Service first applied the order to forests in eastern California, where the court case began, but on Sept. 20, the judge clarified that his order was meant to apply nationwide.
The agency then suspended a broad array of activities pending the appeals process, which can take up to 135 days. According to Forest Service documents, projects put on hold or cancelled included the following: 169 recreation projects; 98 watershed and wildlife habitat projects; about 110 outfitter and guide permits for hunting, fishing, and horseback riding; National Guard training; Boy and Girl Scout meetings; family reunions; and over 175 permits for road easements.
The court order had stated that "environmentally insignificant projects" were still exempt from the appeals process; it provided the examples of maintaining Forest Service buildings and mowing ranger station lawns. However, the Forest Service took the order literally, exempting nothing beyond those two examples. "The judge did not give the Forest Service latitude to choose what sort of categorical exclusion will be suspended," said Dan Jiron, an agency spokesman.
Mark Rey, the former timber lobbyist who now oversees the Forest Service, took every opportunity to drive home one of his favorite points: environmental lawsuits are throwing a wrench into daily operations on the national forests. "Probably the lesson here is that when you use litigation, you have to use it selectively — if you want to avoid these kinds of broader consequences," said Rey, undersecretary of the U.S. Department of Agriculture.
On Oct. 12, the Department of Justice, which represents the Forest Service in the case, filed a motion to allow the agency to return to its previous workings while it appeals the ruling. The environmentalist plaintiffs responded with an emergency motion, asking the court to clarify that the order was not intended to affect minor activities.
On Oct. 19, the judge confirmed that the Forest Service had blown the order out of proportion and that minor projects are not subject to the appeals process.
"We are relieved that Judge Singleton provided a necessary clarification to his earlier orders," Rey stated in a response. Nonetheless, the Forest Service plans to appeal the rulings so that all categorical exclusions may slide through without public involvement.