Ninth Circuit sends challenge to Forest Service environmental review exclusion back to lower court

(CN) — A Ninth Circuit Court of Appeals panel sided partially with the U.S. Forest Service in a protest to the agency’s approval of three southern Oregon logging projects but allowed a claim challenging an environmental regulation exclusion used to approve the projects to proceed.

At the heart of the dispute is categorical exclusion six, which allows agencies to bypass the National Environmental Policy Act’s environmental review requirement for projects that meet certain conditions. The approved logging projects will see 29,000 acres of the Fremont-Winema National Forest commercially thinned.

In a memorandum published Wednesday — two weeks after the agency, Oregon Wild and WildEarth Guardians argued before the court — the panel found that the exclusion properly applied to the logging projects approved by the Forest Service but also said a claim challenging the exclusion itself was not time-barred and could continue in federal court.

“An agency may avoid preparing an environmental impact statement or an environmental assessment for a proposed project if the proposed project fits within a specific CE,” wrote the panel — composed of U.S. Circuit Judges Kim Wardlaw and Patrick Bumatay, Bill Clinton and Donald Trump appointees, respectively, and U.S. District Judge Raner Collins, a Bill Clinton appointee sitting in by appointment from Arizona.

For a project to qualify for categorical exclusion six, it must not involve the use of herbicides, nor require more than one mile of low-standard road construction, apply to timber stand and/or wildlife habitat improvement activities, such as thinning trees and prescribed burning, and not involve extraordinary circumstances.

Conservation groups argued the Forest Service’s approval of the projects under the exclusion was arbitrary and capricious because the exclusion doesn’t cover large-scale commercial logging operations, but the panel agreed with a lower court that the text of the exclusion “plainly covers the three projects at issue.”

“CE-6 does not limit activities based on scale or acreage,” the panel wrote.

The panel also did not agree with the conservation groups’ argument that an undefined size or acreage limitation should be read into the categorical exclusion.

“Here, Wild does not point to any other provision of the Forest Service regulations that would specifically disqualify the use of CE-6 for projects of this size,” the panel wrote.

The Ninth Circuit panel, however, found that the conservation groups’ second claim that the application of the categorical exclusions to the projects violated the act itself — which a lower court deemed time-barred — could continue under new case law.

The conservation groups claimed that the Forest Service failed to determine whether applying the categorical exclusion to large-scale commercial logging operations would have no significant impact.

In his 2022 opinion, U.S. District Court Judge Michael J. McShane found the claim to be time-barred, holding that since the exception was adopted in 1992, procedural challenges to its application would have accrued since then and exceeded the six-year statute of limitations.

The Ninth Circuit panel sent that challenge back to the lower court, relying on the U.S. Supreme Court’s recent decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which expanded the time frame businesses have to challenge federal government actions.

The conservation groups also appealed the lower court’s denial of its request for judicial notice, but the Ninth Circuit panel found the groups didn’t explain how the three decision memoranda it sought from the Forest Service were relevant to its claims.

Oregon Wild and WildEarth Guardians first challenged the U.S. Forest Service’s approval of three logging projects slated for a south-central Oregon forest in federal court in 2022, accusing the agency of exceeding its authority and violating the Administrative Procedure Act and National Environmental Policy Act by applying the exclusion.

McShane then came back in favor of the service, ruling that categorical exclusion did apply to the projects since they are meant to improve timber stand and wildlife habitats, and time-barring the challenge to the exclusion itself.