Forest Resources Committee Report

Federal Cases

A. Forest Management Litigation

In Mountain Communities for Fire Safety v. Elliot, the Ninth Circuit Court of Appeals affirmed the Los Padres National Forest’s Cuddy Valley Forest Health/Fuels Reduction Project (Project). The 1,200-acre Project includes up to 601 acres of commercial logging to thin overcrowded timber stands. When approving the Project, the United States Forest Service (USFS) applied the categorical exclusion for timber stand improvement activities under 36 C.F.R. § 220.6(e)(6) (CE-6), which allows an agency to skip an EA or EIS if the agency’s project is for “timber stand improvement activities” and does not have “extraordinary circumstances” that would warrant further analysis. The Ninth Circuit held that USFS was not arbitrary and capricious in relying on CE-6 in part because CE-6 unambiguously allows for commercial thinning that is for “timber stand improvement” and adheres to CE-6’s other restrictions. The court reasoned that the regulation’s plain language does not limit thinning based on tree age or size, and when CE-6 was adopted the contemporaneous use of “timber stand improvement” did not exclude commercial tree thinning. Additionally, the Court held USFS analyzed the appropriate factors and determined the Project did not present any “extraordinary circumstance” that would warrant further analysis under the National Environmental Policy Act (NEPA). Finally, the Ninth Circuit rejected Plaintiff-Appellants’ argument that the Project violated the National Forest Management Act (NFMA) by failing to comply with the Los Padres Forest Plan’s aesthetic management standards because USFS correctly concluded that it will retain a High Scenic Integrity Level if it authorized no road construction and preserved larger trees, even if it also allows commercial thinning.

In Los Padres ForestWatch v. U.S. Forest Service, the Ninth Circuit issued a mixed ruling in a challenge to the Tecuya Ridge Shaded Fuelbreak Project (Project), vacating the district court’s summary judgment order and remanding to USFS to substantiate its determination that 21-inch trees are generally small diameter trees in the Project area. The Project seeks to thin vegetation and create a shaded fuelbreak in the Los Padres National Forest that will decrease severe fire risk. The USFS approved the Project under the CE-6 exception and an exception to the Roadless Area Conservation Rule (Roadless Rule), which applies because sixty-six percent of the Project area overlaps with the Antimony Inventoried Roadless Area. The Ninth Circuit agreed that the Project fell within CE-6 but remanded on whether the Project satisfied the exception to the Roadless Rule. Under the Roadless Rule, the proposed timber harvest activities are prohibited unless USFS determines that “[t]he cutting, sale, or removal of generally small diameter timber is needed” to “reduce the risk of uncharacteristic wildfire effects” and “will maintain or improve one or more of the roadless area characteristics as defined in § 294.11.”.” The Ninth Circuit held that USFS acted arbitrarily and capriciously when it determined that trees with up to 21-inch diameter at breast height (DBH) qualify as “generally small diameter timber” because USFS failed to articulate any explanation for this conclusion.

In American Forest Resource Council v. United States , the D.C. Circuit Court of Appeals held oral argument on seven consolidated cases relating to the management of Bureau of Land Management (BLM) lands under the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act). The consolidated appeals fall into three categories: (1) the American Forest Resource Council’s (AFRC) and the Association of O&C Counties’ (AOCC) separate challenges to President Obama’s 48,000-acre expansion of the Cascade Siskiyou National Monument, which was authorized under the Antiquities Act and precludes sustained-yield timber production on approximately 35,000 acres of O&C timberlands; (2) AFRC et al.’s and AOCC’s separate challenges to the BLM’s 2016 Western Oregon Resource Management Plans (2016 RMPs), which placed O&C lands into reserves that precluded sustained-yield timber production; and (3) Starfire Lumber Co. et al.’s challenge to the BLM’s failure to sell or offer for sale “not less than the annual sustained-yield capacity” under the 1995 RMPs for Northwestern & Coastal Oregon and Southwestern Oregon, as required by the O&C Act. In 2019, the district court axed the 2016 RMPs and the expansion of the national monument, asserting that the O&C Act does not allow RMPs that prohibit the selling, cutting and removing of timber in conformity with the principle of sustained yield. On appeal, the United States-Appellant asked the D.C. Circuit to reinstate the logging restrictions and reverse the D.C. District Court’s “deeply flawed” interpretation of the O&C Act. The United States asserts that the O&C Act does not require forest production wherever and whenever possible but instead allows the Secretary of the Interior to decide how to pursue those goals. Further, the United States argues that the O&C Act can be harmonized with the ESA and Clean Water Act, as balancing conservation efforts with timber production is necessary to meet the O&C Act’s goals of applying “sustained-yield principles to timber production for a permanent timber supply[.]”

In Greater Hells Canyon Council v. Wilkes, Plaintiffs challenged USFS’s amendment to its “Revised Continuation of Interim Management Direction Establishing Riparian, Ecosystem and Wildlife Standards for Timber Sales,” (Eastside Screens). The Eastside Screens set interim management standards for six national forests in eastern Oregon and southwest Washington and prohibited the removal of trees 21-inch DBH or larger. In 2021, USFS reassessed the Eastside Screens and its size limitations and adopted the “Old Tree and Large Tree Guidelines,” (Eastside Screens Amendment). The amendment set tree removal diameter limits at 21- to 30-inches DBH, depending on the tree species and growth potential. It also established an age limit for removed trees of 150 years. In their amended complaint, plaintiffs allege that USFS (1) wrongly treated the Eastside Screens Amendment as “insignificant” (thus they did not prepare an EIS under NEPA); (2) failed to conduct a pre-decisional administrative objection resolution process under 36 C.F.R. § 219; (3) failed to take a “hard look” at the direct, indirect, and cumulative impacts of the Amendment; (4) failed to follow the required procedures for a significant change to a forest plan; and (5) failed to prepare a Biological Assessment and undergo ESA Section 7 consultation with the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service. Summary judgment briefing on the merits will occur over the next few months, and oral argument is scheduled for April 2023.

In Monroe County Board of Commissioners v. U.S. Forest Service, the U.S. District Court for the Southern District of Indiana issued a mixed ruling on a challenge to the Hoosier National Forest’s Houston South Vegetation Management and Restoration Project (Project). The Project proposes clearcutting, logging and prescribed burns to “move the landscape toward desired conditions.” Plaintiffs, board of commissioners for Indiana county and environmental groups, challenged the Project and alleged that USFS violated NEPA by failing to consider any “mid-range alternatives” (such as less road construction, less impact on existing trails, or reducing or restricting certain activities) and failing to take a hard look at the potential effects of the Project activities on the nearby Lake Monroe. Plaintiffs also alleged that USFS and USFWS violated the ESA by failing to reinitiate consultation on the Indiana bat when “new information” about White Nose Syndrome, a disease that affects hibernating bats, became available. The district court rejected Plaintiffs’ ESA claims, finding that the “new information” relied on by Plaintiffs was a study produced by the same biologist who approved the Project. Thus, the court determined that there was no evidence in the record suggesting that the biologist ignored their own findings about the bat while “greenlighting” the Project. The court found USFS considered a reasonable range of alternatives. The court, however, found for plaintiffs on the other NEPA claim and directed USFS to analyze potential impacts on Lake Monroe. Plaintiffs appealed to the Seventh Circuit.

In Oregon Wild v. U.S. Forest Service, nonprofit plaintiffs, Oregon Wild and WildEarth Guardians, sued USFS for approving the South Warner Project, the Bear Wallow Project, and the Baby Bear Project (Projects) in the Fremont-Winema National Forest in Oregon. The Projects authorize commercial thinning on 29,000 acres of national forest land. Instead of preparing an EIS or EA, USFS approved the Projects via CE-6. Plaintiffs allege that USFS’s approvals under CE-6 were arbitrary and capricious. According to Plaintiffs, CE-6 does not permit the scope and scale of logging operations approved by the Projects and should be used only for non-commercial projects. Plaintiffs also challenge CE-6 as violating NEPA, even if USFS used it appropriately. The parties are expected to file cross motions for summary judgment in early 2023.

In Alliance for the Wild Rockies v. Munoz, nonprofit plaintiffs, Alliance for the Wild Rockies and Native Ecosystems Council, alleged that USFS violated the Administrative Procedure Act (APA) and NEPA when it approved a plan to reduce wildfire risks by removing timber and using a prescribed burn in an Inventoried Roadless Area in Montana. The USFS approved the Elk Smith Project in the Helena-Lewis and Clark National Forest in order to remedy damage done by the 1988 Canyon Creek Fire. Plaintiffs allege that the Project violated the Roadless Rule, arguing that the proposed timber cutting did not qualify for one of the timber cutting exceptions under 36 C.F.R. § 294.13. Under those exceptions, timber cutting would be allowed if (1) the removal of small diameter timber will maintain the roadless area characteristic and is needed to improve threatened or endangered species habitat or maintain or restore ecosystem composition; or (2) the cutting, sale, or removal of timber is incidental to the implementation of a management activity. In 2022, the Montana District Court granted USFS’s motion for summary judgment, finding the definition of “incidental” in the Roadless Rule exception allowed the proposed timber cutting because it was incidental or secondary to the controlled burn planned in the Elk Smith Project.

Throughout 2022, Earth Island Institute, joined largely by other nonprofit plaintiffs, sued USFS, among other agencies, for approving multiple logging projects across California. Target projects are located in the Inyo National Forest (USFS), Yosemite National Park (Muldoon), Los Padres National Forest (Los Padres), and Tuolumne County, the site of the Rim Fire (Nash). In each, Earth Island brought NEPA, APA, and NFMA challenges. The projects shared a common goal of thinning forests and removing biofuels to avoid high intensity forest fires. Defendants’ motion for summary judgment in USFS was granted, Earth Island’s motion for preliminary injunction in Muldoon was denied, the complaint in Los Padres is pending, and the court granted Defendants’ motions for summary judgment in Nash.

B. Endangered Species Act Litigation

In Cascadia Wildlands v. Scott Timber Co., the Eugene Division of the United States District Court of Oregon granted Plaintiffs’ request to preliminary enjoin Defendants’ logging operations due to the operations’ alleged effect on the marbled murrelet—a small, seabird that nests in mature and old-growth coniferous forests. The Ninth Circuit upheld three of the four factors and remanded to the District Court to determine whether it was likely that the marbled murrelet inhabited the area in question. On remand, the parties agreed to expedited trial schedule rather than additional preliminary injunction proceedings and the court held a five-day trial to determine whether the marbled murrelet occupies the proposed area and, if so, whether Defendants’ implementation of the logging operations would result in a taking of the murrelet in violation of the ESA. After considering extensive evidence and testimony regarding the behavior of the murrelet and surveys detecting the murrelets presence in the area of the logging operation, the District Court concluded the marbled murrelet occupies the challenged area. As a result, Defendants’ logging operation would harm and harass the murrelet under the ESA, and a permanent injunction was warranted.

In contrast, in Friends of Gualala River v. Gualala Redwood Timber, the United States District Court for the Northern District of California declined to block a logging project in an old-growth redwood forest because no definitive threat of future harm emerged against the California Red-Legged Frog or the Coho and Steelhead Salmon. There was little evidence of the endangered species in the area, the logging activity was not likely to injure the species’ habitat, and multiple California agencies reviewed and approved the logging project. Furthermore, the logging plan placed buffer zones where no logging can occur within thirty feet of the species’ habitats.

C. Clean Water

On October 11, 2022, the group Forest Service Employees for Environmental Ethics filed a lawsuit against the USFS, alleging that USFS discharges retardant pollutants into navigable waterways without an appropriate National Pollutant Discharge Elimination System (NPDES) permit. According to the suit, USFS has dropped more than 760,000 gallons of fire retardant directly onto streams and other waterways between 2012 and 2019. The suit alleges that when fire retardant enters a waterway, lethal and sublethal effects occur on aquatic organisms. And retardant use is only increasing as the frequency of wildfires increases. The USFS has a determination from the EPA that a NPDES permit is not necessary for aerial delivery of fire retardant so long as the retardant is not discharged within a “300-ft buffer zone on either side of any surface water.” But the lawsuit claims that “the factual basis for the letter – ‘operators [] are not discharging into waters of the US’ – is simply not true.”

II. Federal Policy

A. The Inflation Reduction Act

The Inflation Reduction Act of 2022 (IRA) provides significant investment in forest ecosystem management and restoration, as well as reduction of wildfire risk. The new law includes nearly $5 billion in funding for forest management, planning and restoration on both private and public lands—$2.15 billion in funding for management of federal forests and $2.75 billion in grants and financial assistance for management of private and state forestland. The federal funding will support environmental review, facilitate hazardous fuels reduction and vegetation management, and protect old-growth and mature forests. The state funding includes $700 million for states and $1.5 billion to support USFS’s Urban and Community Forestry Program, a forestry assistance program for state and private forestland, which provides technical and financial support for planning, education and to increase tree cover to combat climate change impacts, such as extreme heat, in typically underserved areas. Other grant programs funded by the IRA for management of private and state forestland target participation in forest carbon markets as well as the development of innovative wood products to support sustainable forest management.

B. Executive Order on Strengthening the Nation’s Forests

On April 22, 2022, President Biden signed Executive Order (EO) 14072 on Strengthening the Nation’s Forests, Communities, and Local Economies. EO 14072 outlines a three-pronged approach to accomplish its stated goals, including efforts to conserve forestland in the United States, stop international deforestation, and increase resilience to the impacts of climate change with nature-based solutions. For conservation, the EO calls for an inventory of federal old-growth and mature forests, development of federal reforestation targets, and implementation of wildfire mitigation and other “climate-smart” strategies to address threats to the Nation’s forests. It includes commitments to stop international deforestation and restore natural forest ecosystems primarily in the Amazon, Congo Basin, and Southeast Asia to mitigate greenhouse gas emissions. New and existing trade agreements will also be used to combat deforestation. Finally, EO 14072 encourages agencies to seek “nature-based solutions” to improve the resilience of communities in the face of climate change impacts, factor in the value of ecosystem services and natural assets, and employ locally sourced conservation solutions.

C. Forest Service Wildfire Implementation

In January 2022, USFS launched a 10-year strategy and implementation plan to address the current wildfire and forest health crisis (the Confronting the Wildfire Crisis strategy), recognizing that healthy forest ecosystems are a vital component of climate change mitigation and adaptation. The Confronting the Wildfire Crisis strategy calls for USFS and other partners to implement thinning, prescribed burns, pruning, and other fuel reduction and forest health treatments on up to 20 million acres of National Forest System lands and 30 million acres of other types of public and private land. The agency is also prioritizing post-fire recovery and reforestation to restore forest ecosystems. USFS will partner with other organizations in order to most effectively accomplish wildfire management goals. Funding for initial actions will be provided, in part, by the 2021 Infrastructure Investment and Jobs Act (Bipartisan Infrastructure Law) and the IRA. However, significant additional funding and manpower are needed to carry out the full strategy.

III. State Cases

In 2022, the County of Linn v. Oregon saga came to an end as the Oregon Court of Appeals overturned the trial court’s $1.1 billion verdict. As described in our 2019 and 2020 reports, County of Linn involved a claim by Oregon counties for damages associated with the states’ failure to maximize timber harvests on state forests pursuant to the Oregon Forest Acquisition Act of 1941. Critical to the $1.1 billion verdict, the trial court determined that the state of Oregon owed a contractual duty to the counties to maximize revenue on state forest lands. The state appealed, and the court of appeals reversed, holding that, based on legislative intent, context, history, and text of the Forest Acquisition Act, there was no “clear and unmistakable” intent to create a statutory contract between the state and the counties because the Forest Acquisition Act and the greatest permanent value obligation lacked “unambiguously promissory” language. The Oregon Supreme Court declined to hear the case.

In Conservation Northwest v. Commissioner of Public Lands, Plaintiffs challenged the Washington State Department of Natural Resources’ (DNR) land management strategies under the Washington Constitution article XVI, section 1 that “all the public lands granted to the state are held in trust for all the people.” Plaintiff contends that DNR is seeking to maximize timber sales over conservation and climate change mitigation efforts that would better serve “all the people” and protect marbled murrelet habitat in the process. The Washington Supreme Court affirmed a ruling for DNR, holding that DNR may exercise its discretion to generate revenue from timber harvests. Further, DNR has a duty to “use reasonable care and skill to make the trust property productive.” Plaintiff failed to show that DNR acted unconstitutionally in exercising its statutory authority and acted in a way that was “arbitrary, capricious, or performed without legal authorization.”

State Policy

A. Private Forest Accord (Oregon)

In February 2022 Private Forest Accord participants—conservation and fishery groups, timber companies, and the Oregon Small Woodlands Association—presented a detailed Private Forest Accord Report to the Legislature, along with draft legislative concepts. In March 2022, the Oregon Legislature passed Senate Bills 1501 and 1502 and House Bill (HB) 4055 based on those recommendations. Senate Bill (SB) 1501 adopts updates to the Forest Practices Act, including updating and increasing stream buffers; expanding riparian buffers for aquatic habitat protection; setting standards for forest road design and maintenance; retaining trees for improved slope stability; expanding monitoring programs; investing in mitigation costs; and creating a new stakeholder committee that will develop an Adaptive Management Program to advise the Board of Forestry on future rule changes and to ensure that the goals of the Habitat Conservation Plan are met. SB 1502 creates a tax credit program to compensate small forest landowners who agree to exclude harvest within the proposed expanded stream buffer zone. HB 4055 established future funding under the state’s Forest Products Harvest Tax. The Board of Forestry approved and finalized the proposed rules in October 2022, some of which were set to apply in November 2022 and others of which were set to apply in 2023-2024.

B. California Wildfires Laws (California)

California implemented a variety of laws and regulations aimed at wildfire mitigation and prevention. First, California SB 332 (effective January 2022) adds legal protections for those who manage prescribed burns. The law increases the required showing for prescribed burn users from simple to gross negligence before they can be liable for paying fire suppression costs. Second, California Department of Insurance implemented a requirement for premium discounts for home- and business-owners who implement wildfire mitigation and safety measures such as upgraded fire resistant roofs and windows and clearing combustible vegetation, under the state’s Safer from Wildfires framework. The regulation will require all insurance companies to submit new rates that incorporate the wildfire safety standards and establish a process for releasing wildfire risk determinations to residents and businesses. Insurers must also provide consumers with their property’s wildfire risk score and create a right to appeal that score. Third, the Attorney General outlined best practices and measures for municipalities implementing new development projects that address wildfire ignition and emergency access and evacuation, including: increase housing density and consolidate project design; consider the fire history of the area, topography and wind patterns; avoid steep slopes and rugged terrain; weigh proximity to existing roads to increase accessibility for firefighters; require developers to upgrade building materials and techniques to increase construction resistance to fire.

C. Expansion of Use Value Appraisal Program (Vermont)

Vermont expanded its Use Value Appraisal (Current Use) Program, which allows properties actively used for forestry and agriculture to be taxed at lower rates than for commercial or residential uses. To qualify, property owners must actively harvest trees from their properties. The bill creates a new subcategory of Current Use called “reserve forestland” that would qualify for the lower tax rates if the owner’s goal is to attain old forest values and functions. The legislation builds on the Ecologically Significant Treatment Area (ESTA) category of Current Use. Beginning in July 2023, the state will allow parcels that have significant and sensitive conditions such as wetlands or steep slopes to be enrolled and managed as old forests that do not need to be harvested. Approximately 159,000 additional acres would qualify for the new category.