Ninth Circuit Halts Feds’ Tree-Thinning Project Over Its ‘Vague’ Science

Mt. Hood National Forest (Photo courtesy of U.S. National Forest)

(CN) – The United States Forest Service prematurely authorized a tree-thinning project in Mt. Hood National Forest without assessing its environmental impact, the Ninth Circuit ruled Friday.

In 2018, several conservation groups sued the agency over plans to sell timber harvested from about 12,000 acres of public land, including roughly 4,000 acres of old-growth conifers in Mt. Hood National Forest. The Forest Service dubbed it the Crystal Clear Restoration Project, saying the tree-thinning would reduce wildfire risk.

But Cascade Wildlands, Bark, and Oregon Wild argued that mature tree removal may not actually help with fire suppression, pointing to articles from The Open Forest Science Journal and Forest Ecology and Management, as well as other expert sources to support their claims.

“The plaintiffs, especially Bark, got people out into the landscape and spent thousands of hours collecting information about what was going on in the land and gave that information to the Forest Service,” said attorney Brenna Bell, who has spent four years on the case.

Bell said Bark also provided the Forest Service with peer reviewed articles that said logging in mature, moist forest tends to increase the risk of wildfire, but the agency did not consider the contrary science.

She said she found the ruling vindicating.

“They were using the same rhetoric for the dry forest as the wet forest, and that’s comparing apples to oranges,” Bell said. “We have supported some restoration thinning projects and not others depending on whether they are intended to restore the fire regime or get volume out of the forests.”

Bell said timber volume targets imposed by President Donald Trump’s administration have impelled the agency to try to get as much timber as possible out of the national forest system.

“The Forest Service is under a lot of pressure. I feel for them, honestly,” she said.

Finding substantial questions were raised about the project’s effect on local wildlife, a three-judge panel of the Ninth Circuit overturned a court ruling that would have allowed the project to go forward.

“The effects of the project are highly controversial and uncertain, thus mandating the creation of an EIS,” the judges said in an unpublished memo. “The stated primary purpose of the CCR Project is to reduce the risk of wildfires and promote safe fire-suppression activities, but appellants identify scientific evidence showing that variable density thinning will not achieve this purpose.”

The panel, comprised of Circuit Judges Marsha Berzon and Susan Graber, both Bill Clinton appointees, and Fifth Circuit Judge Stephen Higginson, a Barack Obama appointee, refrained from making a judgment call about the effectiveness of forest thinning in preventing fires.

But they said the National Environmental Policy Act requires agencies to consider every important aspect of an issue, and the Forest Service did not consider opposing viewpoints.

“This dispute is of substantial consequence because variable density thinning is planned in the entire project area, and fire management is a crucial issue that has wide-ranging ecological impacts and affects human life,” their memo says.

The court also found the agency’s environmental assessment failed to examine the direct and indirect effects of such a large scale sale of timber, nor the project’s cumulative impact on the environment when considered alongside other timber projects. The court noted that many details in the assessment were lacking, including information about the other projects it considered.

“The section of the EA actually analyzing the cumulative effects on vegetation resources did not refer to any of these other projects.Nor are there any specific factual findings that would allow for informed decision-making,” the court’s memo says.

“The EAs simply concluded that ‘there are no direct or indirect effects that would cumulate from other projects due to the minimal amount of connectivity with past treatments’ and that the project ‘would have a beneficial effect on the stands by moving them toward a more resilient condition that would allow fire to play a vital role in maintaining stand health, composition and structure. These are the kind of conclusory statements, based on ‘vague and uncertain analysis,’ that are insufficient to satisfy NEPA’s requirements.”

In a separate concurrence, Graber said that she agreed that the Forest Service needs to prepare an environmental impact statement. But she added, “I would not reach whether the environmental assessment’s discussion of cumulative impacts also was arbitrary and capricious.”

The judges remanded the case to the district court.

In an email, Oregon Wild hailed the decision as a victory over the administration’s timber targets.

“Under direction from the Trump administration to get the cut up, this massive project would have logged mature and old growth forests, hurt fish and wildlife habitat, and potentially increased the risk of wildfire,” spokesman Arran Robertson said in an email. “We’re glad to see the court smack down the administration’s efforts to put commercial logging ahead of science and the public.”

Bell said she hopes the Forest Service will be more receptive to the help offered by Bark and other groups.

“We hope this timber sale helps reorient the process toward science and community engagement. If nothing else, my hope for this is that it will change agency-wide, or at least locally, and the Forest Service will consider the whole body of science out there as to whether logging benefits the whole ecology.”

The Department of Justice’s Environment and Natural Resources Division, which defended the Forest Service, did not immediately respond to an email seeking comment Friday.

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