Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 1 of 38
`
`Oliver J. H. Stiefel, OSB # 135436
`(503) 227-2212 ½ oliver@crag.org
`Erin E. Hogan-Freemole, OSB # 212850
`(503) 234-0788 ½ erin@crag.org
`Meriel L. Darzen, OSB # 113645
`(503) 525-2725 ½ meriel@crag.org
`CRAG LAW CENTER
`3141 E. Burnside St.
`Portland, Oregon 97214
`Fax: (503) 296-5454
`
`
`Attorneys for Plaintiffs
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF OREGON
`
`MEDFORD DIVISION
`
`Case No. 1:22-cv-01007
`
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`(5 U.S.C. § 706(2))
`
`(Environmental Matters –
`National Environmental Policy Act and
`Administrative Procedure Act)
`
`
`
`OREGON WILD, an Oregon nonprofit
`corporation; and WILDEARTH
`GUARDIANS, a New Mexico nonprofit
`corporation;
`
`
`Plaintiffs,
`
`v.
`
`UNITED STATES FOREST SERVICE,
`MICHAEL RAMSEY, in his official
`capacity as Lakeview Ranger District Ranger;
`JEANNETTE WILSON, in her official
`capacity as Silver Lake Ranger District
`Ranger; RANDY MOORE, in his official
`capacity as Chief of the U.S. Forest Service;
`and THOMAS VILSACK, in his official
`capacity as Secretary of Agriculture,
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 2 of 38
`
`Agency
`APA
`CE
`CE-6
`CEQ
`Defendants
`EA
`EIS
`Forest
`Forest Service
`Girdling
`
`Impact or Effect
`
`Logging
`
`NEPA
`Plaintiffs
`Projects
`
`GLOSSARY OF TERMS
`
`United States Forest Service
`Administrative Procedure Act
`Categorical Exclusion
`36 C.F.R. § 220.6(e)(6)
`Council on Environmental Quality
`All named Defendants
`Environmental Assessment
`Environmental Impact Statement
`Fremont-Winema National Forest
`United States Forest Service
`A method of killing trees without cutting them down. This
`method is often used to create “snags,” which are standing,
`dead trees that provide important habitat for a variety of
`wildlife.
`Used synonymously to describe ecological, aesthetic, historic,
`cultural, economic, social, or health consequences of an
`action, whether direct, indirect, or cumulative. “Direct”
`effects are caused by an action and occur at the same time and
`place. “Indirect” effects are caused by an action and are later
`in time or farther removed in distance. “Cumulative” effects
`result from the incremental effect of an action when added to
`other past, present, and reasonably foreseeable future actions.
`Any silvicultural method employed for the purpose of cutting
`down trees. Logging can be accomplished through
`commercial or noncommercial means, and can involve a
`variety of techniques including “thinning,” “clearcutting,” etc.
`Logging operations can involve felling trees, skidding felled
`trees to landings, building and maintaining roads, hauling logs
`on roads, and other associated activities.
`National Environmental Policy Act
`All named Plaintiffs
`South Warner, Baby Bear, Bear Wallow
`
`
`
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—1
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`
`
`
`
`
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 3 of 38
`
`NATURE OF ACTION
`
`1.
`
`Plaintiffs Oregon Wild and WildEarth Guardians (collectively, “Wild”) bring this
`
`challenge under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–706, to the final
`
`administrative actions of the United States Forest Service, Michael Ramsey, Jeanette Wilson,
`
`Randy Moore, and Thomas Vilsack (collectively, “Forest Service,” “agency,” or “Defendants”).
`
`2.
`
`In approving the South Warner Project, the Bear Wallow Project, and the Baby
`
`Bear Project (collectively, the “Projects”) on the Fremont-Winema National Forest (“Forest”),
`
`Defendants acted arbitrarily, capriciously, and contrary to the National Environmental Policy Act
`
`(“NEPA”), 42 U.S.C. §§ 4321–4370h. Wild also brings an as-applied challenge under NEPA to
`
`the categorical exclusion (“CE”) under which each of the Projects was approved.
`
`3.
`
`The Projects all authorize “commercial thinning,” a type of logging whereby
`
`merchantable trees are cut and removed from the forest for their commercial value. In total, the
`
`Projects authorize commercial thinning on up to 29,000 acres, or about 45 square miles.
`
`For the large-scale commercial logging operations authorized by the Projects, the Forest Service
`
`did not prepare an Environmental Impact Statement (“EIS”), or even a less intensive
`
`Environmental Assessment (“EA”) to review the Projects’ environmental effects pursuant to
`
`NEPA. Instead, the agency approved all three Projects pursuant to a CE.
`
`4.
`
`CEs apply to categories of small, low-impact, and routine actions that the Forest
`
`Service has determined—in notice and comment rulemaking—pose no significant environmental
`
`effects either individually or cumulatively, and therefore require no further analysis under an EIS
`
`or EA. The agency approved the Projects pursuant to a CE applicable to “timber stand and/or
`
`wildlife habitat improvement” activities. 36 C.F.R. § 220.6(e)(6) (“CE-6”). Wild challenges the
`
`Forest Service’s reliance on CE-6 to authorize the Projects’ commercial logging operations.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—2
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 4 of 38
`
`5.
`
`First, CE-6 is inapplicable to the Projects. The Forest Service failed to articulate a
`
`rational explanation as to why CE-6 permits projects of the type and scale of the Projects, each of
`
`which involve thousands of acres of commercial logging operations. The Forest Service was
`
`required to prepare EISs or EAs, which would force the agency to take the required “hard look”
`
`at—and publicly disclose—the Projects’ environmental impacts, consider alternatives, solicit
`
`informed public comments, and fulfill the agency’s other obligations under NEPA.
`
`6.
`
`Second, in the alternative, if CE-6 does permit the Forest Service to approve the
`
`Projects’ commercial logging operations, then CE-6 itself violates NEPA and its implementing
`
`regulations, 40 C.F.R. §§ 1500–1508 (2019). As applied to commercial logging operations like
`
`those authorized by the Projects, the Forest Service acted arbitrarily, capriciously, and in excess
`
`of its authority in promulgating CE-6 because the agency never made the required findings that
`
`commercial logging operations cause no individually or cumulatively significant environmental
`
`effects. Moreover, an interpretation of “no cumulatively or individually significant effect” as
`
`permitting commercial logging operations on thousands of acres—with no upper limit—flatly
`
`contradicts the language and purpose of NEPA and its implementing regulations, and is
`
`inconsistent with the Forest Service’s CE regulatory regime—in which the agency has
`
`promulgated CEs specifically for commercial logging purposes, all with acreage caps.
`
`7.
`
`Wild respectfully requests that this Court vacate the Projects’ approvals of
`
`commercial logging operations, declare such operations beyond the scope of CE-6, and remand
`
`to the Forest Service for preparation of EISs or EAs containing full and fair analyses of the
`
`Projects’ environmental impacts. In the alternative, if the Projects do fall within the scope of CE-
`
`6, Wild respectfully requests that this Court hold unlawful and set aside CE-6 as applied to
`
`commercial logging operations.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—3
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 5 of 38
`
`8.
`
`If necessary, Wild intends to seek narrowly tailored injunctive relief during the
`
`pendency of this litigation to protect sensitive species and their habitats and other resources that
`
`are adversely affected by commercial logging operations.
`
`9.
`
`Should it prevail, Wild will seek attorneys’ fees and costs pursuant to the Equal
`
`Access to Justice Act, 28 U.S.C. § 2412, and/or any other applicable authorities.
`
`JURISDICTION AND VENUE
`
`10.
`
`This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 because
`
`Wild’s claims present a federal question, and 28 U.S.C. § 1346 because the United States is a
`
`defendant. A present, actual, and justiciable controversy exists between the parties. The
`
`requested relief for a declaratory judgment is proper under 28 U.S.C. § 2201, and the requested
`
`injunctive relief is proper under 28 U.S.C. § 2202.
`
`11. Wild has exhausted its administrative remedies by submitting scoping comments.
`
`The challenged agency action is subject to this Court’s review under 5 U.S.C. §§ 702, 704, and
`
`706. Defendants have waived sovereign immunity in this action pursuant to 5 U.S.C. § 702.
`
`12.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because the Project
`
`areas are located within this District. Defendants maintain an office in this District. Plaintiffs
`
`Oregon Wild and WildEarth Guardians maintain offices in this District.
`
`13.
`
`This case is properly filed in the Medford Division pursuant to Local Rule 3-2
`
`because a substantial part of the Project area, and Defendants’ offices where the decisions were
`
`signed, are located in Lake County. A substantial part of the events or omissions giving rise to
`
`this claim occurred, and the property that is subject to this action is situated in Lake and Klamath
`
`Counties.
`
`///
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—4
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 6 of 38
`
`Plaintiffs
`
`PARTIES
`
`14.
`
`Plaintiff OREGON WILD is a nonprofit corporation with approximately 20,000
`
`members and supporters throughout the state of Oregon and the Pacific Northwest. Oregon Wild
`
`is headquartered in Portland, Oregon and maintains field offices in Bend, Eugene, and
`
`Enterprise, Oregon. Oregon Wild’s mission is to protect and restore Oregon’s wildlands,
`
`wildlife, and waters as an enduring legacy. Oregon Wild’s wilderness, old-growth forest, and
`
`clean rivers/watersheds programs protect pristine drinking water, unparalleled recreation
`
`opportunities, and vital fish and wildlife habitat across Oregon.
`
`15.
`
`Plaintiff WILDEARTH GUARDIANS is a nonprofit organization dedicated to
`
`protecting and restoring the wildlife, wild places, wild rivers, and health of the American West.
`
`WildEarth Guardians has 7,990 members and more than 187,000 supporters across the western
`
`states and maintains an office in Portland, Oregon.
`
`16.
`
`Plaintiffs and their members, supporters, and staff regularly visit and enjoy the
`
`Forest, including the Project areas, and intend to do so again in the near future. Members,
`
`supporters, and staff appreciate the aesthetics of the Forest, including its waters and wildlife, and
`
`use the area to engage in recreational, professional, scientific, and spiritual activities such as
`
`hunting, hiking, camping, fishing, photography, watershed research, and wildlife observation.
`
`17.
`
`Plaintiffs have organizational interests in the proper and lawful management of
`
`the Forest. Plaintiffs and their members, supporters, and staff have actively participated in the
`
`Projects’ administrative processes.
`
`18.
`
`Plaintiffs and their members, supporters, and staff would sustain injury to their
`
`aesthetic, educational, recreational, professional, spiritual, and scientific interests if the Projects
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—5
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 7 of 38
`
`proceed as authorized. Plaintiffs and their members, supporters, and staff have concrete plans to
`
`return to the proposed Project areas. Unless this Court grants the requested relief, Plaintiffs and
`
`their members, supporters, and staff will be adversely and irreparably harmed by the Projects.
`
`19.
`
`Plaintiffs and their members, supporters, and staff would sustain injury to
`
`aesthetic, educational, recreational, professional, spiritual, and scientific interests if the Forest
`
`Service is permitted to authorize commercial logging operations under CE-6. Unless this Court
`
`grants the requested relief, Plaintiffs and their members, supporters, and staff will be adversely
`
`and irreparably harmed by the application of CE-6 to commercial logging operations.
`
`Defendants
`
`20.
`
`Defendant the UNITED STATES FOREST SERVICE is an agency within the
`
`United States Department of Agriculture entrusted with the management of our national forests.
`
`The Forest Service is headquartered in Washington, D.C., and it has nine regions across the
`
`country. The national forests of Oregon are in Region 6. All or a significant portion of the
`
`actions and omissions alleged in this Complaint occurred in Region 6.
`
`21.
`
`Defendant MICHAEL RAMSEY is the District Ranger for the Lakeview Ranger
`
`District of the Forest, where all or a significant portion of the South Warner Project activities
`
`would occur. Mr. Ramsey is the responsible official for the South Warner Project, and he signed
`
`the Decision Memorandum, constituting the final administrative action. As District Ranger, Mr.
`
`Ramsey has the responsibility to ensure that all projects on the Lakeview Ranger District are
`
`consistent with applicable laws and regulations. Wild brings this action against Mr. Ramsey in
`
`his official capacity.
`
`22.
`
`Defendant JEANNETTE WILSON is the District Ranger for the Silver Lake
`
`Ranger District of the Forest, where all or a significant portion of the Bear Wallow and Baby
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—6
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 8 of 38
`
`Bear Project activities would occur. Ms. Wilson is the Responsible Official for the Bear Wallow
`
`and Baby Bear Projects, and she signed the Decision Memoranda, constituting the final
`
`administrative actions. As District Ranger, Ms. Wilson has the responsibility to ensure that all
`
`projects on the Silver Lake Ranger District are consistent with applicable laws and regulations.
`
`Wild brings this action against Ms. Wilson in her official capacity.
`
`23.
`
`Defendant RANDY MOORE is the Chief of the Forest Service. Under a
`
`predecessor Chief, the Forest Service promulgated the CE challenged in this case. As Chief, Mr.
`
`Moore has the responsibility to ensure that all regulations promulgated by the Forest Service are
`
`consistent with applicable laws and regulations. Wild brings this action against Mr. Moore in his
`
`official capacity.
`
`24.
`
`Defendant THOMAS VILSACK is the Secretary of Agriculture. Under a
`
`predecessor Secretary, the Forest Service promulgated the CE challenged in this case. As
`
`Secretary, Mr. Vilsack has the responsibility to ensure that all regulations promulgated by all
`
`Agriculture Department agencies, including the Forest Service, are consistent with applicable
`
`laws and regulations. Wild brings this action against Mr. Vilsack in his official capacity.
`
`National Environmental Policy Act
`
`LEGAL BACKGROUND
`
`25.
`
`Congress enacted NEPA to “declare a national policy which will encourage
`
`productive and enjoyable harmony between man and his environment; to promote efforts which
`
`will prevent or eliminate damage to the environment and biosphere and stimulate the health and
`
`welfare of man; [and] to enrich the understanding of the ecological systems and natural resources
`
`important to the Nation.” 42 U.S.C. § 4321.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—7
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 9 of 38
`
`26.
`
`To achieve these aims, NEPA and its implementing regulations set forth
`
`procedures designed to (1) ensure that federal agencies take a “hard look” at the environmental
`
`consequences of their proposed actions, and (2) foster meaningful public participation.
`
`27.
`
`NEPA requires all agencies of the federal government to prepare a “detailed
`
`statement” for all “major federal actions significantly affecting the quality of the human
`
`environment.” 42 U.S.C. § 4332(2)(C). Commonly known as the Environmental Impact
`
`Statement or EIS, the detailed statement must describe, inter alia, the adverse environmental
`
`impact of the proposed action and alternatives to the proposed action. Id.
`
`28.
`
`The Council on Environmental Quality (“CEQ”) promulgated regulations
`
`implementing NEPA. 42 U.S.C. § 4342 (establishing CEQ); 40 C.F.R. §§ 1500–1508 (2019)
`
`(CEQ’s NEPA regulations). CEQ modified the NEPA regulations by final rule on July 16, 2020,
`
`40 C.F.R. §§ 1500–1508 (2021), but has since rescinded portions of the 2020 modifications,
`
`effective May 20, 2022. 87 Fed. Reg. 23,453 (April 20, 2022).
`
`29.
`
`CEQ regulations direct federal agencies to identify in their NEPA procedures
`
`certain categories of actions that normally do not require an EIS or an EA, which is a concise
`
`public document which briefly provides sufficient evidence and analysis for determining whether
`
`to prepare an EIS or a finding of no significant impact. 40 C.F.R. § 1507.3(b)(1)(iii) (2019); id.
`
`§ 1508.9(a)(1) (2019). These categories of actions are called CEs, which are “category[ies] of
`
`actions which do not individually or cumulatively have a significant effect on the human
`
`environment and which have been found to have no such effect by a federal agency in
`
`implementation of these regulations.” 40 C.F.R. § 1508.4 (2019)
`
`30.
`
`The Forest Service promulgated a series of regulatory CEs, including CE-6, in
`
`1992. See 57 Fed. Reg. 43,180 (Sept. 18, 1992) (establishing categories); 73 Fed. Reg. 43,084
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—8
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 10 of 38
`
`(July 24, 2008) (placing established categories under Forest Service NEPA regulations at 36
`
`C.F.R. Part 220).
`
`31.
`
`CE-6 encompasses “timber stand and/or wildlife habitat improvement activities
`
`that do not include the use of herbicides or do not require more than 1 mile of low standard road
`
`construction.” 36 C.F.R. § 220.6(e)(6).
`
`32.
`
`Other Forest Service CEs apply specifically to logging projects and expressly
`
`contemplate an acreage-limited commercial component, including 36 C.F.R. § 220.6(e)(12),
`
`(14), and (25).
`
`33.
`
`36 C.F.R. § 220.6(a) provides that the Forest Service shall categorically exclude a
`
`proposed action from further analysis and documentation in an EIS or EA “only if there are no
`
`extraordinary circumstances related to the proposed action” and if it is within a category
`
`established by the Secretary or Chief.
`
`34.
`
`In addition to the regulatory CE’s, Congress has established CEs for Forest
`
`Service projects implementing restoration treatments to address insects and disease, hazardous
`
`fuels reduction, and restoration of mule deer and sage grouse habitat. See 16 U.S.C. § 691. These
`
`statutory CEs are subject to a series of qualifications and limitations, such as a cap on project
`
`size (between 3,000 and 4,500 acres) and development through a collaborative process.
`
`Administrative Procedure Act
`
`35.
`
`The APA confers a right of judicial review on any person adversely affected by
`
`agency action within the meaning of a relevant statute. 5 U.S.C. § 702. Agency action made
`
`reviewable by statute and final agency action for which there is no other adequate remedy in
`
`court are subject to judicial review. 5 U.S.C. § 704.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—9
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 11 of 38
`
`36.
`
`Upon review under the APA, a court shall hold unlawful and set aside agency
`
`action, findings, and conclusions found to be: Arbitrary, capricious, an abuse of discretion, or
`
`otherwise not in accordance with law; in excess of statutory jurisdiction, authority, or limitations,
`
`or short of statutory right; or without observance of procedure required by law. 5 U.S.C.
`
`§ 706(2)(A), (C), (D).
`
`Logging Operations
`
`FACTUAL BACKGROUND
`
`37.
`
`As compared to noncommercial activities like prescribed burning and
`
`precommercial thinning, commercial logging operations cause more significant environmental
`
`impacts.
`
`38.
`
`For example, commercial logging ordinarily targets larger trees. Such trees have
`
`higher commercial value than smaller trees, but when left in the forest provide invaluable
`
`ecosystem benefits including storing carbon and providing habitat for birds and other wildlife.
`
`39.
`
`To facilitate commercial logging, the Forest Service (and/or timber sale
`
`contractors) conducts associated activities such as using heavy equipment to create and utilize
`
`landings (where logs and equipment are placed and temporarily stored) and skid trails (the routes
`
`where logs are dragged to landings), as well as roadwork and log hauling on primitive roads.
`
`40.
`
`Combined, these commercial logging operations can cause significant
`
`environmental effects, including disturbing soils, causing erosion into streams, destroying or
`
`degrading wildlife habitat, releasing stored carbon, modifying fire behavior, spreading invasive
`
`weeds, degrading scenery, interfering with recreation, and more.
`
`41.
`
`In contrast, noncommercial activities often are carried out using hand tools and do
`
`not involve the creation and utilization of log landings and skid trails, thereby creating fewer
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—10
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 12 of 38
`
`impacts like noise disturbance and soil compaction. Even where heavy equipment is used to fell
`
`trees for noncommercial purposes, the logs are left in the forest and thus continue to provide
`
`habitat and other values.
`
`42.
`
`Forest Service projects often are developed to achieve multiple purposes. For
`
`example, a project designed with the primary purpose of “timber stand improvement” also may
`
`further the purposes of providing wood products to local mills and securing timber sale receipts
`
`to fund other Forest Service activities like restoration. The Forest Service often labels such latter
`
`purposes as “incidental” to a project’s primary purpose, but in practice, these purposes can
`
`dictate the scope of a project and influence its environmental impacts.
`
`43. When commercial logging operations are involved, a project inherently will have
`
`more significant environmental impacts, regardless of the project’s primary purpose.
`
`CE-6 and the Forest Service’s Logging-Related CEs
`
`1991/1992 Rulemaking
`
`44.
`
`On April 29, 1991, the Forest Service issued a Notice of proposed revisions to its
`
`NEPA policies and procedures. 56 Fed. Reg. 19,718 (Apr. 29, 1991). The proposed revisions
`
`included new and expanded direction for excluding certain categories of action from
`
`documentation in an EA or EIS.
`
`45.
`
`As relevant here, the Forest Service sought to replace an existing CE for “low-
`
`impact silvicultural activities,” which included a variety of activities such as harvest, salvage,
`
`thinning, planting, and site preparation that were limited in size and duration.
`
`46.
`
`Regarding the previous CE for low-impact silvicultural activities, environmental
`
`organizations had petitioned the Forest Service to: (a) Amend the CE to describe specific and
`
`objectively identifiable categories of actions to be excluded from environmental documentation;
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—11
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 13 of 38
`
`(b) prohibit the categorical exclusion of timber sales involving more than 25 thousand board feet1
`
`or more than one acre; and (c) immediately stay the CE’s application to timber sales of more
`
`than 25 thousand board feet or more than one acre until final agency action on the petition.
`
`47.
`
`In response, the Forest Service issued an interim directive to limit timber salvage,
`
`thinning, and harvesting to less than 100 thousand board feet or less or to areas of less than 10
`
`acres. 54 Fed. Reg. 9073 (March 3, 1989). The Forest Service intended this interim directive to
`
`guide timber harvests on national forest land until more comprehensive revisions could be made
`
`to the agency’s NEPA procedures.
`
`48.
`
`The proposed rule expanded the previous CE and divided it into four separate
`
`categories: Proposals to harvest or salvage timber which remove one million board feet or less of
`
`merchantable wood products, require one mile or less of new road construction, and assure
`
`regeneration of harvested or salvaged areas, where required (“proposal 1”); proposals to thin
`
`merchantable timber from overstocked stands which require one mile or less of new road
`
`construction (“proposal 2”); proposals to artificially regenerate areas to native tree species,
`
`including needed site preparation not involving the use of pesticides (“proposal 3”); and
`
`proposals to improve vegetation or timber conditions using approved silvicultural or habitat
`
`management techniques, not including the use of herbicides, which have little potential for soil
`
`movement, loss of soil productivity, water and air quality degradation, or impact on sensitive
`
`resource values (“proposal 4”).
`
`
`1 One board foot is 12”x12”x1” (144 cubic inches). One million board feet is equivalent
`to roughly 200 logging trucks’ worth of timber.
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—12
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 14 of 38
`
`49.
`
`The Forest Service explained that proposal 1 (related to timber harvest or salvage)
`
`was intended to address the petition for rulemaking concerning the previous CE for low-impact
`
`silvicultural activities.
`
`50.
`
`In response to the petition’s first two requests, the Forest Service identified its
`
`proposed rules’ intent as making the categories more specific and objectively identifiable. The
`
`agency also stated that the suggestion to limit categorically excluded timber sales to 25 thousand
`
`board feet or one acre was unreasonably conservative and had not been adopted.
`
`51.
`
`Instead, proposal 1 would apply to proposals to harvest or salvage timber which
`
`remove one million board feet or less of merchantable wood products, require one mile or less of
`
`new road construction, assure regeneration of harvested or salvaged areas where required, and
`
`are consistent with Forest land and resource management plans. The Forest Service asserted that
`
`these activities have little potential for soil movement, loss of soil productivity, water and air
`
`degradation, or impact on sensitive resource values. The Forest Service further stated that the
`
`agency had prepared hundreds of EAs for projects with these characteristics and always found
`
`them to have no significant environmental effects.
`
`52.
`
`On September 18, 1992 the Forest Service announced its adoption of the final
`
`revised NEPA rules, modified to reflect public comment on the proposal. 57 Fed. Reg. 43,180
`
`(Sept. 18, 1992). The agency noted that the revisions to its CE rules had generated the greatest
`
`number of comments.
`
`53.
`
`In response to a comment regarding the use of the term, “routine,” the Forest
`
`Service stated that its intent was that only routine actions with no extraordinary circumstances
`
`should be within the categories for exclusion. Accordingly, the final rule removed the term
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—13
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 15 of 38
`
`“routine” from each category and examples and instead placed it as a criterion applicable to all
`
`categorically excluded actions.
`
`54.
`
`Based on input from the public, the Forest Service reduced the scope of proposal
`
`1. The agency stated that in consideration of a wide divergence of views and concern of several
`
`respondents regarding the visual effects of logging, it had reduced the size of timber harvests of
`
`live trees suitable for this category to 250,000 board feet or less of merchantable wood products.
`
`55.
`
`In the final rule, the Forest Service stated that it had reorganized the categories for
`
`low-impact silvicultural activities to improve clarity. Specifically, proposals 1 (timber harvest or
`
`salvage) and 2 (thinning of merchantable timber) were subsumed into a single category. The
`
`agency did not provide any explanation or analysis regarding the reorganization.
`
`56.
`
`57.
`
`The final rule adopted three categories of low-impact silvicultural activities.
`
`CE-4 applies to: Timber harvest which removes 250,000 board feet or less of
`
`merchantable wood products or salvage which removes 1,000,000 board feet or less of
`
`merchantable wood products; which requires one mile or less of low standard road construction;
`
`and assures regeneration of harvested or salvaged areas, where required. Examples include, but
`
`are not limited to:
`
`a.
`
`b.
`
`c.
`
`Harvesting 60,000 board feet of merchantable timber from 100
`acres, including the construction of one-half mile of additional roads.
`
`Salvaging an estimated volume of 750,000 board feet of merchantable
`wood products timber from dead or dying trees, including the construction
`of one mile of access road from an area that is generally flat with good
`drainage.
`
`Thinning (FSM 2431 and 2470.5) an estimated 200,000 board feet of
`timber from over-stocked timber stands, which requires construction of
`one-quarter mile of additional access road.2
`
`
`
`2 “FSM” is the Forest Service Manual.
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—14
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 16 of 38
`
`58.
`
`CE-5 applies to: Regeneration of an area to native tree species, including site
`
`preparation which does not involve the use of herbicides or result in vegetation type conversion.
`
`Examples include but are not limited to:
`
`a.
`
`
`b.
`
`Planting seedlings of superior trees in a progeny test site to evaluate
`genetic worth.
`
`Planting trees or mechanical seed dispersal of native tree species following
`a fire, flood, or landslide.
`
`
`CE-6 applies to: Timber stand and/or wildlife habitat improvement activities
`
`59.
`
`which do not include the use of herbicides or do not require more than one mile of low standard
`
`road construction. Examples include, but are not limited to:
`
`a.
`
`b.
`
`c.
`
`d.
`
`Heartwood Decision
`
`Girdling trees to create snags.
`
`Thinning or brush control to improve growth or to reduce fire hazard
`including the opening of an existing road to a dense timber stand.
`
`Prescribed burning to control understory hardwoods in stands of southern
`pine.
`
`Prescribed burning to reduce natural fuel build-up and improve plant
`vigor.
`
`
`60.
`
`On September 28, 1999, a district judge held unlawful and set aside CE-4.
`
`Heartwood, Inc. v. U.S. Forest Serv., 73 F. Supp. 2d 962 (S.D. Ill. 1999).
`
`61.
`
`The court found that the Forest Service had failed to provide any rationale for
`
`why this magnitude of timber sales (250,000 board feet for live-tree harvest and 1,000,000 board
`
`feet for salvage) would not have a significant effect on the environment. The court also found
`
`that the Forest Service had failed to adequately explain or provide support for its position that
`
`timber harvests of this magnitude would not have cumulatively significant effects on the
`
`environment.
`
`COMPLAINT FOR DECLARATORY & INJUNCTIVE RELIEF—15
`
`
`
`Crag Law Center
`3141 E Burnside St.
`Portland, OR 97214
`Tel. (503) 227-2212
`
`

`

`Case 1:22-cv-01007-MC Document 1 Filed 07/12/22 Page 17 of 38
`
`62.
`
`The court issued a nationwide injunction barring the Forest Service from applying
`
`CE-4.
`
`63.
`
`There was no similar challenge to CE-6, which remained in effect.3
`
`2003 Rulemaking in response to Heartwood
`
`64.
`
`On January 8, 2003, in response to Heartwood, the Forest Service gave