Forest Resources Committee Report

I. Federal Cases

In Cascadia Wildlands v. Bureau of Land Management, non-profit conservation groups challenged BLM’s promulgation of a Final Rule (Forest Management Decision Protest Process and Timber Sale Administration) that eliminated a 15-day administrative protest process for forest management decisions, including advertised timber sales. Plaintiffs argued that BLM violated the APA by failing to provide a reasoned explanation for its change in policy and failing to respond to public comment and that the Final Rule violates the Federal Land Policy and Management Act (FLPMA) because it does not provide for adequate public participation or objective administrative review of agency decisions. The court granted BLM’s motion for summary judgment, affirming the Final Rule and a challenged timber sale and finding that BLM had adequately responded to public comments in accordance with the APA. The court also found that BLM met the “reasoned analysis” requirement of the APA because (1) BLM demonstrated awareness that it was changing its position from the 1984 Rule; (2) the new policy is permissible under the FLPMA; (3) in responses to public comment, BLM sufficiently explained the Final Rule was a better policy because it encouraged earlier intervention in resource management decisions and would expedite implementation of forest management decisions; and (4) BLM provided good reasons for the Final Rule, including improving administrative efficiencies and more quickly effectuating decisions about wildfire risks and timber sales. The court also held that the Final Rule did not violate the FLPMA because the FLPMA establishes only broad policy directives, not specific obligations of BLM. As a result, the 15-day protest process was not required to ensure adequate participation and objective administrative review under the FLPMA when there were other public participation opportunities available through NEPA and administrative review through the Interior Board of Land Appeals.

In Alliance for the Wild Rockies v. Petrick, the Ninth Circuit Court of Appeals vacated two district court rulings involving an ongoing dispute over the Hanna Flats logging project in the Idaho panhandle (Project). When the U.S. Forest Service (USFS) approved the Project, it invoked a categorical exclusion to NEPA under the Healthy Forest Restoration Act (HFRA) for projects in the wildland-urban interface (“an area within or adjacent to an at-risk community that is identified in a community wildfire protection plan”). The Alliance for the Wild Rockies (Alliance) challenged the Project, arguing that it does not qualify for the exclusion. The district court agreed, finding that the community plan USFS relied on defined wildland-urban interface differently than HFRA. The USFS then issued a supplement to its decision memo explaining the application of the exclusion further, but the district court found it still did not justify the USFS’s action and granted Alliance’s request for preliminary injunction. The USFS appealed both decisions. The Ninth Circuit first held that Alliance provided only vague and generalized objections that were not sufficient notice to the USFS of its concerns and the subject of its complaint. The court thus vacated the first decision and remanded for the district court to consider Alliance’s alternative argument that such comments were not necessary to challenge a project exempted from NEPA analysis by a categorical exclusion. Then, the Ninth Circuit vacated the preliminary injunction, reasoning that the district incorrectly interpreted HFRA. Under HFRA, an area qualifies as a “wildland-urban interface” if it is “within or adjacent to an at-risk community.” A community is “at-risk” if it is “within or adjacent to Federal land.” The district court collapsed these distinct provisions by requiring the project itself to border the at-risk community. Under this interpretation, even if a project fell within a properly defined wildland-urban interface, the project would not be valid unless it also directly borders or abuts an at-risk community. This is not what HFRA requires.

In Los Padres ForestWatch v. U.S. Forest Service, a Central District of California district court reviewed USFS’s approval of the Reyes Peak Forest Health and Fuels Reduction Project (Project). The Project involves “thinning of tree stands, removal of downed material, and prescribed burning to reduce surface/ladder fuels, decrease fire intensity, improve the health of the remaining trees, and improve forest resilience, as well as create a fuel break to provide for firefighter and public safety.” USFS relied on three categorical exclusions for its approval: (1) 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; (2) HFRA, 16 U.S.C. § 6591b (Insect and Disease Infestation); and (3) HFRA, 16 U.S.C. § 6591d (Wildfire Resilience). The court granted USFS’s motion for summary judgment, finding that the Project fell within CE-6 because it allows USFS to thin trees without regard to the size of the trees, even commercially viable trees that reduce the overall fire hazard. Further, the court agreed that USFS appropriately relied on the HFRA categorical exclusions because, among other things, the Project is specifically designed to retain and promote large trees. And the court found no extraordinary circumstances precluding the application of these exclusions. Moreover, USFS’s Decision Memo, which relied on a biological assessment, sufficiently analyzed and clearly articulated why the Project was unlikely to adversely affect the California condor and its critical habitat, as well as other sensitive species. The court also granted summary judgment on plaintiffs’ claims that USFS violated the Roadless Rule and HFRA.

In Los Padres ForestWatch v. U.S. Forest Service, the Ninth Circuit previously issued a mixed ruling in a challenge to the Tecuya Ridge Project (Project), vacating the district court’s summary judgment order and remanding to the USFS to substantiate its determination that 21-inch trees are generally small-diameter trees in the Project area. On remand, the district court for the Central District of California concluded that USFS sufficiently explained its reasoning for classifying trees up to 21-inches diameter at breast height (DBH) as generally small timber by demonstrating that the Project area is overgrown with small-diameter timber; that the focus of the Project is to thin small-diameter timber within the 0-14-inch DBH range; and that a few middle and upper-diameter trees will be thinned to prevent the spread of wildfires, all of which is consistent with the Roadless Rule’s focus on areas that are overgrown with small-diameter trees.

In Knezovich v. United States, the Tenth Circuit assessed whether USFS acted negligently in its response to the Roosevelt Fire in Wyoming. Plaintiffs, victims of the fire, sued under the Federal Tort Claims Act (FTCA). The United States argued that the FTCA’s discretionary function exception applies and precludes plaintiffs from seeking damages from the United States for conduct “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” After assessing a two-step analysis—(1) ”whether the action is a matter of choice for the acting employee”; and (2) ”whether that judgment is of the kind that the discretionary function was designed to shield”—the court concluded that USFS’s decisions were discretionary, noting that the USFS Manual and Initial Decision did not require USFS to suppress the fire in a specific way, or limit USFS’s ability to make a judgment call in its initial response to a fire. The court reasoned that USFS exercised “policy judgment of the sort [that] the exception is meant to protect.”

In Earth Island v. Muldoon, the Ninth Circuit affirmed an Eastern District of California ruling that the National Park Service (NPS) sufficiently evaluated the environmental impacts of two vegetation thinning projects preceding controlled burns in Yosemite National Park. The 2021 Wawona Project and the 2022 Yosemite Valley Project were both approved under the Department of the Interior’s Categorical Exclusion B-1, the so-called “minor-change exclusion,” which includes “changes or amendments to an approved plan when such changes would cause no or only minimal environmental impact,” exempting the projects from most NEPA requirements. Plaintiff claimed that NPS’s approval of the Projects using B-1 was arbitrary and capricious and that there were extraordinary circumstances preventing the agency’s use of a categorical exclusion. The court disagreed, holding that the thinning projects validly fall under B-1 because they are changes to the NPS’s 2004 comprehensive Fire Management Plan that are consistent with the Plan, contributing to the Plan’s primary goals and using its methods with only minor modifications. Further, the court held that the agency supported and explained its conclusion that the modifications would have no or only minimal environmental impacts. The court also found no extraordinary circumstances, rejecting plaintiff’s argument that the Projects were highly controversial because some scientists dispute the efficacy of thinning to reduce the risk of wildfire and found that plaintiffs mischaracterized the Projects and that to the extent a controversy exists, it concerns the Plan.

In Greater Hells Canyon Council v. Wilkes, a district of Oregon magistrate judge issued findings and recommendations in the challenge to the USFS’s “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 included a variety of standards, including the prohibition on removal of trees 21-inch DBH or larger outside of late and old structure stands, i.e. an area where the minimum number of large trees per acre has been reached. The Amendment replaced this standard with a more flexible guideline that requires the retention of trees 150 years old or older but allows for the limited removal of certain trees 21- to 30-inches DBH, depending on the tree species and its growth potential. Environmental groups challenged the decision to approve the amendment as violating the National Forest Management Act (“NFMA”), NEPA, and the ESA. In its findings and recommendations, the court agreed with plaintiffs that the expected effects of the amendment were “significant,” because (1) the “amendment is massive in terms of scope and setting”; (2) there is substantial uncertainty in how USFS will apply the amendment; and (3) plaintiffs “raised plausible concerns that the amendment may result in large tree removal in and around riparian areas,” affecting aquatic species. As a result, the amendment required the preparation of an EIS. The court also found that USFS violated the NFMA by failing to conduct a pre-decisional administrative objection resolution process. And the court found that USFS violated the ESA by failing to undergo section 7 consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service and to address the effects of the amendment on aquatic species through a biological assessment. Objections to the court’s findings and recommendation were filed this fall and together were referred to the district court.

Two cases, State of Alaska v. U.S. Department of Agriculture and Inside Passage Electric Cooperative v. U.S. Department of Agriculture, have been filed in the Alaska District Court challenging the reinstatement of the 2001 Roadless Area Conservation Rule (Roadless Rule), which prohibits timber harvest and road construction in 9.37 million acres of designated Inventoried Roadless Areas (IRAs) in the Tongass National Forest in Southeast Alaska. The 2001 Roadless Rule was rolled back in 2020 but reinstated in 2023. In the first case, the state of Alaska alleges that the Secretary of the Department of Agriculture (DOA) acted without congressional authorization and that the reinstatement of the rule “through executive action” stifles the State’s interest in economic and social development, negatively affects state revenues, and increases state operating costs. The state argues that the DOA made an abrupt policy reversal reinstating the 2001 Roadless Rule and has failed to provide a reasoned explanation for disregarding the facts and circumstances underlying the 2020 rollback of the 2001 rule. The state also alleges the reinstatement violates multiple acts, including the Alaska Statehood Act, Alaska National Interest Lands Conservation Act, Tongass Timber Reform Act, as well as NEPA, NFMA, and the Multiple-Use Sustained-Yield Act. Similarly, in the second lawsuit Inside Passage Electric Cooperative and the Alaska Power Association claim: (1) the Secretary acted without authority; and (2) and the decision to reinstate the Roadless Rule prevents plaintiffs from pursuing hydroelectric and geothermal energy projects aimed at reducing utility costs for local communities because of the Rule’s prohibition on road construction. The two cases have been consolidated, along with a third similar complaint, federal defendants have filed their answers, and briefing on the merits will begin in spring of 2024.

In American Forest Resource Council v. United States, seven consolidated cases were on appeal. In these cases, the D.C. Circuit Court of Appeals reversed the D.C. District Court’s grant of summary judgment and an injunction in favor of the plaintiffs. The Circuit Court held: (1) the expansion of the Cascade-Siskiyou National Monument under the Antiquities Act through Presidential Proclamation 9564, and the BLM 2016 Western Oregon Resource Management Plans (2016 RMPs), did not violate the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act of 1937 (O&C Act); and (2) striking down the injunction compelling the BLM to, in perpetuity, “sell or offer for sale in each future fiscal year no less than the declared annual sustained yield capacity of timber from timberlands on the O&C land.” Notably, the court held that the O&C Act and Antiquities Act are compatible and can be read harmoniously, such that the O&C Act grants the Secretary of the Interior discretion to classify those O&C “timberlands” subject to “permanent forest production,” which are not fixed or defined under the O&C Act. Therefore, the court concluded that the O&C Act allows land to be classified as “timberland or not,” and Proclamation 9564 had reclassified a “modest” 40,000 acres of O&C land “by implication.” The court also held that the Secretary could issue the BLM’s 2016 RMPs under the O&C Act, and the 2016 RMPs “reasonably harmonize” the Secretary’s duties under the O&C Act with their obligations under the ESA and CWA. The parties have filed a petition with the U.S. Supreme Court for a writ of certiorari.

In Murphy Company v. Biden, a divided Ninth Circuit panel affirmed the district court’s decision granting summary judgment in favor of the United States and upheld the 2017 expansion of the Cascade-Siskiyou National Monument in southwestern Oregon and northwestern California under Presidential Proclamation 9564, issued under the Antiquities Act, which added 48,000 acres to the Monument. The Monument’s expansion included 40,000 acres of lands managed pursuant to the O&C Act, which reserved O&C lands for timber production to benefit local communities, effectively ending timber harvest on that previously reserved land. According to plaintiff-appellants, removing those acres from sustained yield timber production was a clear violation of the O&C Act and overstepped presidential authority. The court held that “timber production was not the sole purpose that Congress envisioned for the more than two million acres of O&C Lands” and upheld the district court’s conclusion that the Antiquities Act afforded the President substantial flexibility to modify national monuments. The dissent warned of “a troubling trend of increased judicial deference to presidential uses of the Antiquities Act” that “is unsustainable” and urged a “return to the textual strictures of the Antiquities Act.” Plaintiffs-Appellants petitioned for rehearing en banc, which was denied, and have filed a petition with the U.S. Supreme Court for a writ of certiorari.

In Oregon Wild v. U.S. Forest Service, the Oregon District Court granted summary judgment in favor of USFS, upholding the agency’s application of the “timber stand and/or wildlife habitat improvement” categorical exclusion (CE-6) to the South Warner Project, Bear Wallow Project, and Baby Bear Project (Projects) on the Fremont-Winema National Forest in Oregon. Plaintiffs challenged the agency’s use of CE-6, arguing that no reasonable interpretation of CE-6 would permit 29,000 acres of national forest land, requesting that the court infer and impose an acreage limitation onto CE-6 for commercial harvesting activities. The court declined to do so and found that nothing in the text of CE-6 limits the applicable project acreage. USFS reasonably determined that the projects’ authorized activities were “squarely within those permitted by CE-6,” thinning and prescribed burning to improve wildlife habitat and favorable timber stand conditions. The court also rejected plaintiff’s claim that USFS lacked the authority to promulgate CE-6. Plaintiffs appealed to the Ninth Circuit and have filed their Opening Brief. Defendants’ Answering Brief is due in spring of 2024.

II. Federal Policy

A. USDA Forest Service Proposed Rule for Carbon Capture and Storage Exemption

On November 3, 2023, USFS announced a proposed rule to allow carbon capture and sequestration projects on national forests and grasslands. Currently, 36 CFR § 251.54(e)(1)(ix) prohibits the storage of hazardous substances on USFS lands and sets initial screening criteria for the definition of hazardous substances. The proposed rule would define “carbon capture and storage” “in such a manner as to qualify the carbon dioxide stream for the exclusion from classification as a ‘hazardous waste’ pursuant to the United States Environmental Protection Agency regulations at 40 CFR § 261.4(h).” This would permit USFS to review proposals and applications for carbon capture and storage and to authorize proposed carbon capture and storage on USFS lands, where the agency deems it appropriate. If passed, this rule would support the Biden administration’s goal to reduce greenhouse gas emissions by 50 percent below the 2005 levels by 2030.

B. Updates on Executive Order 14072 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. In April 2023, under this EO, USFS and BLM released the Mature and Old-Growth Forests inventory report identifying more than 32 million acres of old-growth and around 80 million acres of mature forest across 200 types of forests. USDA and DOI also released a joint reforestation report, which includes reforestation targets, assessments, and recommendations for increased capacity for seeds and nurseries. In December 2023, USDA also announced a proposal to amend all 128 forest land management plans to conserve and steward old-growth forest conditions on national forests and grasslands nationwide.

III. State Cases

In James v. PacificCorp, an Oregon jury found utility PacifiCorp grossly negligent in causing a group of Labor Day 2020 fires in class-wide liability findings, and the jury awarded almost $89.9 million—$71.9 million in compensatory damages and $17.9 million in punitive damages—to named plaintiffs representing the class. Following a seven-week trial, the jury concluded that PacifiCorp’s conduct with respect to four fires was reckless and willful, constituted a private and public nuisance, and constituted a trespass, but not an intentional taking that could lead to a finding of inverse condemnation. Key to these findings were plaintiffs’ allegations that PacifiCorp left overgrowing or dying trees near its lines, ignored weather forecasts predicting the severity of the upcoming windstorm, and failed to take preventative action like cutting off power even after it learned fires were beginning to break out. Plaintiffs also alleged that PacifiCorp destroyed evidence by failing to secure and preserve burned equipment and other relevant items, despite policy requiring PacifiCorp to do so. In addition, plaintiffs pointed to PacifiCorp’s decision to mark some areas in its service zone as less important than others, claiming that the utility showed a “‘callous indifference to the 83% of its customers that are in the lesser-consequence areas, who were never told that their power company had chosen not to care about them in the face of a historic windstorm.’” Almost all named plaintiffs were ultimately awarded a full recovery along with $3 to $4.5 million each in noneconomic damages.

In LFF IV Timber Holding LLC v. Heartwood ForestLand Fund IV, LLC, LFF IV Timber Holding Company and Lyme Mountaineer Timberlands II LLC (“Lyme”) allege they were left with a carbon offset credit shortfall after the former property owner, Heartwood Forestland Fund IV, miscalculated the amount of carbon sequestered in more than 97,000 acres of forestland property in West Virginia to secure carbon offset credits from the California Air Resources Board (CARB). Lyme purchased the forestland in a 2017 transaction that Lyme alleges allowed Heartwood to keep its initial credit disbursement but also obliged Heartwood to hold Lyme harmless from losses or other problems arising from Heartwood’s initial carbon capture calculations. During a carbon inventory update, Lyme discovered that carbon stocks were significantly below what was indicated on annual reports, which had been based on Heartwood’s calculations. Lyme claims the sudden shortfall obliged it to purchase additional offset credits, called a reversal, from the CARB at a cost of over $1 million. Lyme seeks to recover these costs under the terms of the 2017 transaction, and it also seeks to recover anticipated additional charges related to the carbon project—such as legal and investigation fees—based on a claim of unjust enrichment. This case has been to the North Carolina Business Court.

In Standing Trees Inc. v. State of Vermont, a Vermont judge dismissed a lawsuit seeking to block the harvesting of trees from state forests and parklands because the environmental group and individual plaintiffs lacked standing. The lawsuit was prompted by Vermont’s Camel Hump State Forest management plan, ”which calls for logging roughly 3,800 acres of forest over the next 15 years.” Plaintiffs asked to block state agencies from authorizing new timber contracts on state lands until new rules considering environmental and climate impacts are adopted. Plaintiffs also alleged that the policies violated a state statute—Vermont’s Global Warming Solutions Act—that requires state agencies to consider global warming and flood resiliency in their decision-making procedures. The court found that plaintiffs lacked constitutional standing because none of the statutes plaintiffs cited provided a private right of action, and plaintiffs lacked a cognizable, non-speculative injury as to any of their claims. At bottom, all the plaintiffs could show was that the agencies might approve a harvest in the Camel Hump State Forest after a robust review process—not that the harvest would definitely be approved, nor that the robust review process would lack the climate considerations about which plaintiffs were concerned.

IV. State Policy

A. Oregon Law Relating to the Prevention of Wildfire in Federal Forest

A new Oregon law instructs the Oregon Department of Forestry to step up its efforts to help USFS manage public forests in Oregon. Senate Bill 872 calls on the Oregon Department of Forestry to “endeavor to further shared stewardship to decrease wildfire risk across Oregon through increased partnership with federal agencies,” with “a focus on protecting lands and rural communities within the wildland-urban interface.” The law enumerates several activities the Department could perform to meet this goal, including: increasing forest thinning, reducing ladder fuels and other hazardous fuel loading, restoring meadowland, increasing biomass utilization, and increasing post-disturbance recovery and restoration activities. The law also instructs the Department to request funding from relevant federal agencies for these activities. In executing its duties under this law, the Department must promote the long-term ecological health of any landscape by implementing broadly accepted scientific principles of forestry.

B. California Wildfire Regulation Update.

In California, regulators are writing new defensible space rules to implement A.B. 3074, a 2020 law that created an “ember-resistant zone” within five feet of a structure, Fire experts say that maintaining a defensible space that lacks or has only limited greenery or other combustible items (such as decorative pieces, attached wooden fencing, etc.) around a structure will significantly reduce the fire risk associated with that structure. Motivated by destructive wildfires in recent years and rapidly rising insurance premiums on California structures, the new rules heighten the already-existing defensible space requirements. Out of concern that an overly aggressive rule that disallowed any vegetation or combustible items within five feet of a structure would frustrate and prompt resistance from the public at large, California regulators are currently weighing where to draw the line, considering items such as parallel fencing, small plants with space between them, green lawns, groundcover, or mature trees that are sufficiently cut back from a building. The new rules were supposed to be finalized in January 2023, but disagreements have led to delays. Once finalized, the new rules will apply to new constructions beginning in 2025 and existing homes in 2026.