Case 2:21-cv-01033-SU Document 1 Filed 07/12/21 Page 1 of 39
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`Cooper Rodgers, OSB # 194439
`6926 SE Ogden Street
`Portland OR, 97206
`Tel: 818-667-6657
`Email: cooper@bluemountainsbiodiversityproject.org
`
`Tom Buchele, OSB # 081560
`Earthrise Law Center
`Lewis & Clark Law School
`10101 S. Terwilliger Blvd.
`Portland OR 97219-7799
`Tel: 503-768-6736
`Fax: 503-768-6642
`Email: tbuchele@lclark.edu
`
`Attorneys for Plaintiff Blue Mountains
`Biodiversity Project
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`
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`PENDELTON DIVISION
`
`BLUE MOUNTAINS BIODIVERSITY
`PROJECT,
`an Oregon nonprofit corporation,
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` Plaintiff,
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`vs.
`Craig P. Trulock, Forest Supervisor, Malheur
`National Forest, in his official capacity; and
`UNITED STATES FOREST SERVICE, an
`agency of the United States Department of
`Agriculture,
`
`Defendants.
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`Case No.
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`COMPLAINT FOR VACATUR OF
`ILLEGAL AGENCY DECISION,
`INJUNCTIVE AND DECLARATORY
`RELIEF
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`INTRODUCTION
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`1.
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`This is a civil action brought by Plaintiff Blue Mountains Biodiversity Project
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`(“BMBP”) for vacatur of an illegal agency decision, as well as declaratory and injunctive relief
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`under the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 551 et seq.). Plaintiff Blue
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`Mountains Biodiversity Project (BMBP) challenges the Defendant United States Forest Service’s
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`(“USFS”) Decision Notice and Finding of No Significant Impact (“FONSI”) (collectively
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`referred to as the “Decision”), approving the Camp Lick Project (“the Project”) in the Malheur
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`National Forest (“the Malheur” or “MNF”). Defendant Forest Supervisor Craig P. Trulock
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`signed that Decision on May 27, 2020. Defendants USFS and Regional Forester Craig P. Trulock
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`are collectively referred to herein as “defendants” or “Forest Service.” The Decision violates the
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`National Forest Management Act (“NFMA”) and its implementing regulations and violates the
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`National Environmental Policy Act (“NEPA”) and its implementing regulations.
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`2.
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`The Camp Lick Project is located on the Blue Mountain Ranger District within
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`the Malheur National Forest. The planning area is located in Grant County approximately 10
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`miles northeast of the city of John Day, Oregon. According to the Forest Service “The Camp
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`Lick planning area is located in a regionally focused, priority watershed and encompasses
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`approximately 40,000 acres in the Upper Camp Creek, Lower Camp Creek, and Lick Creek
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`subwatersheds that drain into the Middle Fork John Day River.” August 2017 Final
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`Environmental Assessment (“FEA”) at 3. These watersheds are all part of, and will be referred to
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`as, the John Day River Middle Fork Watershed.
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`3.
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`The Camp Lick Project features approximately 12,000 acres of commercial
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`logging. FEA at 36. This includes nearly 10,000 acres of tractor yarding, a process where toppled
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`trees are dragged through the forest by heavy equipment, causing soil compaction and erosion.
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`Id. Also included is l0 miles of “temporary” road construction. Id. Temporary roads are often
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`active for years, and have permanent effects to the soil, including compaction and erosion like
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`tractor yarding does. The tractors and “temporary” roads will be used to log large trees, over 21
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`inches Diameter at Breast Height (DBH), and trees inside protected old growth stands that are
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`generally protected from logging by Forest Plan provisions, often referred to as the Eastside
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`Screens, that prohibit the logging of such large trees and trees within old growth areas. The
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`Camp Lick Project relies on illegal site-specific forest plan amendments to allow the logging of
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`large trees and logging within old growth stands that are below the historical range of variability
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`(HRV).
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`4.
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`BMBP has participated in the Camp Lick Projects administrative process since
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`the beginning. BMBP submitted scoping comments May 28th, 2016 about the scale of the
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`project, the natural values of the project area, and the use of forest plan amendments to log large
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`trees the Forest Service would otherwise not be allowed to log. BMBP commented on the draft
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`Environmental Assessment on March 15th, 2017. When the USFS published the FEA and its
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`draft decision on August 23, 2017, BMBP filed a timely objection on October 10th. Then, the
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`Forest Service did not issue a final decision for more than two years.
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`5.
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`BMBP submitted a Request for Supplemental Environmental Analysis and sent it
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`to the Forest Service in January 2020, asking that significant changes in condition and new
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`information about timber sales be incorporated into a new supplemental analysis. Without
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`acknowledging our request, the Service released a three-page “Supplemental Information
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`Report” stating that the new conditions and new timber sales, namely Ragged Ruby, Austin, and
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`Bark, would not change its analysis of the project’s impacts and issued a Final Decision Notice
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`and FONSI on May 27, 2020.
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`6.
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`On June 1, 2020, BMBP filed a FOIA request, seeking information on the
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`consultation process and the two-year delay. The response BMBP received to that FOIA request
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`disclosed additional ways the underlying NEPA process was arbitrary, capricious, and illegal.
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`7.
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`The Camp Lick Project’s arbitrary, capricious, and illegal administrative process
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`is in part a result of the Forest Service’s continued effort to evade the Eastside Screens. The
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`project in fact seeks to log many large trees that are legally protected by the Eastside Screens.
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`BMBP has been involved in the public process for the Camp Lick Project at every level; we have
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`seen this first-hand.
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`8.
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`The project contains multiple violations of NFMA. These violations include:
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`-Violations of the Eastside Screens; an amendment to the applicable forest plan which
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`prohibit the logging of trees with a Diameter at Breast Height (DBH) of 21 inches or
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`larger and logging in designated old growth forest below its historic range of variability
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`(HRV).
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`-Violations of binding precedent that require Site-Specific amendments to address site
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`specific conditions; specifically, amendments that are intended to negate the Eastside
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`Screens.
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`9.
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`Furthermore, the project violates NEPA by:
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`-Failing to adequately analyze direct effects.
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`-Failing to adequately analyze indirect effects.
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`-Failing to adequately analyze cumulative effects.
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`-Including a failure to use a consistent scale of analysis.
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`-Failing to give a legally sufficient purpose and need statement.
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`-Failing to analyze a suitably broad range of alternatives.
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`-Failing to update the EA with two years’ worth of relevant new information.
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`-Failing to analyze the project with an Environmental Impact Statement, as should have
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`been done given the projects effects, scale, and use of Forest Plan Amendments and as
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`was done recently for similarly sized projects in this same forest.
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`JURISDICTION AND VENUE
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`10.
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`This Court has jurisdiction over this action pursuant to 5 U.S.C. §§ 701-706
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`(APA) and 28 U.S.C. §§ 1331 (federal question), and 2412 (costs and fees). Plaintiff has
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`challenged a final agency action as defined by the Administrative Procedure Act (“APA”), 5
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`U.S.C. § 704. Plaintiff has exhausted all required administrative remedies provided by the USFS.
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`Plaintiff thus seeks judicial review of final administrative actions of the USFS. See 5 U.S.C. §
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`704 (actions reviewable).
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`11.
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`Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391(e) because
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`Defendant Malheur National Forest Regional Forester Craig P. Trulock , who signed the
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`challenged Decision Notice, is headquartered in John Day, Grant Country, Oregon, and the
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`events or omissions giving rise to the claims occurred in Oregon.
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`12.
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`This case is properly filed in Pendleton, Oregon and properly before the
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`Pendleton Division of this District pursuant to Local Rules 3-2 and 3-3 because Craig P. Trulock,
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`the Malheur National Forest Supervisor who signed the challenged Decision Notice, is
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`headquartered in John Day, Grant Country, Oregon.
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`PARTIES
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`13.
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`Plaintiff BLUE MOUNTAINS BIODIVERSITY PROJECT is a non-profit
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`environmental advocacy organization dedicated to the conservation of the natural ecosystems of
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`the Pacific Northwest and the native flora and fauna they harbor. BMBP and its supporters
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`actively participate in governmental decision-making processes on public lands, including
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`national forests, throughout Oregon.
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`14.
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`The mission of BMBP is to protect and restore the biodiversity of the Blue
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`Mountains region of Oregon and Washington and to educate the public about threats to forest
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`ecosystems in Eastern Oregon. In order to further its mission and protect the interests of BMBP’s
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`supporters in preserving the biodiversity of the Pacific Northwest forests, BMBP monitors
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`timber sales and other Forest Service activities in the Malheur, Umatilla, Wallowa-Whitman, and
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`Ochoco National Forests.
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`15.
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`BMBP has an organizational interest in the scientifically sound management of
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`Eastside forests, including the Malheur. The organization’s mission to promote the protection
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`and restoration of Eastside forests depends on the responsible, scientifically sound, and legally
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`sufficient management of the Malheur National Forest by the Forest Service.
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`16.
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`BMBP’s officers, staff, and supporters reside near and/or regularly visit the Camp
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`Lick Project area. BMBP’s officers, staff, and supporters derive recreational, inspirational,
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`religious, scientific, and aesthetic benefit from their activities within the Malheur, including the
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`area in and around the Project Area, and intend to continue to use and enjoy these areas
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`frequently and on an ongoing basis in the near and distant future.
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`17.
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`BMBP has an organizational interest in the proper and lawful management of the
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`Malheur. The aesthetic, recreational, scientific, and religious interests of BMBP’s officers, staff,
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`and supporters have been and will be adversely affected and irreparably injured if Defendants
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`continue to act as alleged herein, and affirmatively implement the decision that Plaintiff
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`challenges. These are actual, concrete injuries caused by Defendants’ failure to comply with
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`mandatory duties under the National Environmental Policy Act and other federal laws. The
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`injuries would be redressed by the relief sought.
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`18.
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`BMBP’s supporter’s hike, camp, bird watch, hunt, view wildlife, photograph
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`scenery and wildlife, field survey and engage in other vocational, educational, scientific
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`observation, and recreational activities within the Malheur, including the Camp Lick Project area
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`and adjacent lands. The organization’s membership is deeply invested in the ecological health of
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`the Camp Lick area individually and as a part of the Malheur Forest and Eastern Oregon forests.
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`The planned timber harvest and “restoration” activities limit and hinder opportunities to partake
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`in these recreational activities. These harms include logging of large trees and adverse effects to
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`water quality affecting wildlife, scenic, and scientific values. The logging of large trees will
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`tangibly affect our supporter’s recreation in the Camp Lick area. Our supporters derive
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`enjoyment and satisfaction from seeing large trees as they hike and camp in their shade. Logging
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`those trees will deny them that experience. Our supporters birdwatch. The removal of large trees
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`and snags (dead standing trees) will eliminate valuable habitat for a variety of birds. Our
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`supporters hunt in the area. Noise and heavy equipment from logging will drive game activity
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`away and damaged habitat will keep game from coming back, harming the interests of our hunter
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`supporters. Our photographer supporters will have less scenic beauty to capture.
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`19.
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`BMBP has participated extensively in administrative actions to protect plaintiffs’
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`interests within the Malheur. BMBP actively participated in the entire administrative process for
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`the Camp Lick Project between 2016 and 2020 and has exhausted any and all available
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`administrative remedies. Reviewable final agency action exists that is subject to this Court’s
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`review under 5 U.S.C. §§ 702 & 704. The injuries of BMBP and its members can be redressed
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`by a formal ruling from this Court which declares Forest Service’s decision, and its underlying
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`FEA, arbitrary and capricious in violation of both the APA and NEPA, vacates the service’s
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`decision and its underlying FEA, and provide any necessary injunctive relief.
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`20.
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`21.
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`BMBP’s physical address is 27803 Williams Lane, Fossil OR 97830.
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`Defendant UNITED STATES FOREST SERVICE is an agency of the United
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`States and is a division of the Department of Agriculture, and is charged with managing the
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`public lands and resources of the Malheur National Forest in accordance and compliance with
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`federal laws and regulations. USFS is an agency within the meaning of the APA, 5 U.S.C. § 551.
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`22.
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`Defendant Craig P. Trulock, Malheur National Forest Supervisor, is the official
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`responsible for deciding the type and extent of management activities in the Camp Lick Project.
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`He signed the final Decision Notice challenged in this case. Defendant Trulock is sued only in
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`his official capacity.
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`STATUTORY OR REGULATORY FRAMEWORK
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`National Environmental Policy Act (42 U.S.C. §§ 4321-4370(h))
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`23.
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`Congress enacted the National Environmental Policy Act (“NEPA”) in 1969,
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`directing all federal agencies to assess the environmental impacts of proposed actions that
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`significantly affect the quality of the human environment. NEPA seeks to “promote efforts which
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`will prevent or eliminate damage to the environment and biosphere and stimulate the health and
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`welfare of man.” 42 U.S.C. § 4321. As such, NEPA obligates agencies to make available to the
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`public high-quality information, including accurate scientific analyses, expert agency comments,
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`and public comments, “before decisions are made and before actions are taken.” 40 C.F.R. §
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`1500.1(b)(2019). NEPA’s public disclosure goals are twofold: (1) to ensure that the agency has
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`carefully and fully contemplated the environmental effects of its action; and (2) to ensure that the
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`public has sufficient information to review, comment on, and challenge (if necessary) the
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`agency’s action. See 42 U.S.C. §§ 4321, 4332.
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`24.
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`The Council on Environmental Quality (“CEQ”) promulgated uniform regulations
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`to implement NEPA that are binding on all federal agencies. Those regulations are found at 40
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`C.F.R. Parts 1500–1508 (2019). The Forest Service developed the Camp Lick Project and
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`conducted all of the Project’s NEPA analysis using, and following the requirements of, the CEQ
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`regulations that existed and were in force up until September of 2020 (the “2019 CEQ
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`regulations”). BMBP also has relied upon and used the 2019 CEQ regulations when commenting
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`and objecting to the relevant project documents.
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`25.
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`The Court may review agency actions taken pursuant to NEPA under the APA. 5
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`U.S.C. §§ 702, 704, 706.
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`26.
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`NEPA requires all federal agencies to prepare a “detailed statement” assessing the
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`environmental impacts of all “major Federal actions significantly affecting the quality of the
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`human environment.” 42 U.S.C. § 4332(C). This statement is known as an Environmental
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`Impact Statement (EIS).
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`27.
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`An Environmental Assessment (EA) can be created to aid the agencies in
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`determining whether or not a proposed activity will significantly affect the quality of the human
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`environment. 40 C.F.R. §§1501.4(b) (2019), 1508.9 (2019). The role of the EA is to determine
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`whether an EIS is needed or if a finding of no significant impact (FONSI) is supported. Id.
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`28.
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`An EA must include an adequate analysis of the environmental impacts of a
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`project, alternatives, and must also include a consideration of the direct, indirect and cumulative
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`impacts of the project and its alternatives resulting from all past, present and reasonably
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`foreseeable future actions. Id. §§ 1508.7 (2019), 1508.8 (2019), 1508.9 (2019), 1508.25(c)
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`(2019). Cumulative impacts are impacts to the environment resulting from the incremental
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`effects of the present action, combined with other past, present and reasonably foreseeable future
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`actions, regardless of what agency or person undertook, undertakes or will undertake those
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`actions. Id. § 1508.7(2019). “Cumulative impacts can result from individually minor but
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`collectively significant actions.” Id.
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`29.
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`To determine the significance of a federal action, CEQ regulations require
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`agencies to look to both the context and the intensity of the action. 40 C.F.R. § 1508.27 (2019).
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`Context refers to the significance of the action in regard to society as a whole, the affected
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`region, the affected interests, and the locality. For site-specific actions, significance usually
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`depends upon the effects in the locale. Both short- and long-term effects are relevant to the
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`action’s context. Id. § 1508.27(a) (2019). The intensity of the action is evaluated based on
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`several factors, including, but not limited to, the degree to which the action affects public health
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`or safety, the degree to which the effects on the quality of the human environment are likely to
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`be highly controversial, and the degree to which the possible effects on the human environment
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`are highly uncertain or involve unknown characteristics. Id. § 1508.27(b) (2019).
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`30.
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`For a federal agency to make a finding of no significant impact, it must present
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`reasons why the action “will not have a significant effect on the human environment and for
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`which an environmental impact statement therefore will not be prepared.” 40 C.F.R. § 1508.13
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`(2019). The FONSI must include the EA “or a summary of it and shall note any other
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`environmental documents related to it.” Id.
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`31.
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`Significant new information requires that the party proposing the project conduct
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`a supplemental analysis under 40 C.F.R. § 1502.9. This requirement applies equally to both
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`Environmental Impact Statements and Environmental Assessments. Idaho Sporting Congress v.
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`Alexander, 222 F.3d 562, 566 (9th Cir. 2000).
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`EA Requirements
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`32.
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`All EAs must include (1) a description of the need for the project, (2) a
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`description of the proposed action and alternative(s), (3) a discussion of the environmental
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`impacts of the proposed actions and alternative(s), and (4) a note of the agencies and persons
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`who were consulted throughout the process. 36 C.F.R. § 220.7(b). Importantly, an EA needs to
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`“provide sufficient evidence and analysis for determining whether to prepare an [EIS] or a
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`[FONSI]”. 40 C.F.R. § 1508.9(a)(1) (2019).
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`33.
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`NEPA requires that all agencies “study, develop, and describe appropriate
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`alternatives to recommend courses of action.” 42 U.S.C. § 4332(2)(E). This requirement
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`“extends to all such proposals, not just . . . [environmental] impact statements.” 40 C.F.R. §
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`1507.2(d) (2019). The EA shall also provide sufficient evidence and analysis of the
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`environmental impacts of the proposed action, as well as the alternative(s). 36 C.F.R. §
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`220.7(b)(3)(i).
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`34.
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`NEPA requires agencies to take a hard look at the environmental consequences in
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`any EA before taking a major action. This includes considering all foreseeable direct and indirect
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`impacts, as well as cumulative impacts.
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`35.
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`After completing an adequate EA, the agency shall prepare either an EIS or a
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`FONSI. An agency must prepare an EIS when it makes a determination that the action has the
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`potential to significantly affect the environment. 36 C.F.R. § 220.6(c). A FONSI will be prepared
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`if the action causes no significant effect to the human environment; but the agency must provide
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`a convincing statement of reasons to explain how the impacts are insignificant. 40 C.F.R. §
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`1508.13 (2019).
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`National Forest Management Act (16 U.S.C. §§ 1600-1614)
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`36.
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`The National Forest Management Act (NFMA), 16 U.S.C. §§ 1600 et seq., is the
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`primary statute governing the administration of national forests. Agency actions taken pursuant
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`to NFMA are reviewable under the APA. 5 U.S.C. §§ 702, 704, 706.
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`37.
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`NFMA requires the Forest Service to develop and implement a land and resource
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`management plan (LRMP or Forest Plan) for each unit of the National Forest System. 16 U.S.C.
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`§1604. Forest Plans guide natural resource management activities forest-wide, setting standards,
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`management area goals and objectives, and monitoring and evaluation requirements. A Forest
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`Plan must provide for multiple uses for the forest, including: recreation, range, timber,
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`watershed, and wildlife and fish purposes. Id. § 528.
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`38.
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`Under NFMA all permits, contracts, and other instruments for the use of National
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`Forest System lands “shall be consistent with the land management plans.” Id. § 1604(i).
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`Therefore, after a Forest Plan is developed, all subsequent agency actions, including site-specific
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`actions, must comply with NFMA and the governing Forest Plan.
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`39.
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`During the 1990s, the Forest Service amended the MNF and every other forest
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`plan in Oregon and Washington east of the Cascade Mountains by adopting the so-called
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`“Eastside Screens.” The Eastside Screens were designed to address the Forests’ deficiency of
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`large trees resulting from decades of over-logging. The Screens prohibit logging in old forests
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`that are below their historical range of variability, and, prohibit logging trees over 21 nches in
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`diameter at breast height (dbh) both inside and outside old forests.
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`40.
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`Forest Plans may be amended at a site-specific level for individual projects. 16
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`U.S.C. § 1604(f)(4). However, site-specific forest plan amendments must have “at least some
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`characteristics unique to a site to support a site-specific amendment.” LOWD/BMBP v.
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`Connaughton, No. 3:12–cv–02271–HZ., 2014 WL 6977611 (D.OR, Dec. 9, 2014) at *30,
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`quoting Lands Council, 529 F.3d.
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`Administrative Procedure Act (5 U.S.C. § 701-706)
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`41.
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`Section 702 of the APA, 5 U.S.C. § 702, provides a private cause of action to any
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`person “suffering legal wrong because of agency action, or adversely affected or aggrieved by
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`agency action within the meaning of a relevant statute.”
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`42.
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`Under section 704 of the APA, 5 U.S.C. § 704, “final agency action” is
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`reviewable. A final agency action is one that marks the consummation of the agency’s decision-
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`making process and one by which rights or obligations have been determined or from which
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`legal consequences flow. Bennett v. Spear, 520 U.S. 154, 177–78 (1997).
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`43.
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`Under section 706 of the APA, 5 U.S.C. § 706, “The reviewing court shall – (1)
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`compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and
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`set aside agency action, findings, and conclusions found to be – (A) arbitrary, capricious, an
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`abuse of discretion, or otherwise not in accordance with law; … [or] (D) without observance of
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`procedure required by law …”
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`44.
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`NEPA and NFMA do not contain specific judicial review provisions, and the
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`Forest Service’s actions governed by those statutes, such as the Camp Lick Vegetation Project
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`Decision Notice, are therefore subject to judicial review under the APA.
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`ADDITIONAL FACTS GIVING RISE TO THE PLAINTIFF’S CAUSE OF ACTION
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`NFMA
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`45.
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`Camp Lick is part of a series of large logging projects, within the Malheur
`
`National Forest and within the watershed of the Middle Fork of the John Day River that use site-
`
`specific plan amendments that, for essentially identical reasons, allow the Forest Service to
`
`evade the protective restrictions of the Eastside Screens and log large and old trees. It should be
`
`noted that the Eastside Screens exist to address a shortage of large trees on the Eastside; this
`
`shortage has not been resolved and continues to this day. Prior to the publication of the Camp
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`Lick FEA in 2017, the Forest Service had made amendments to the Malheur’s Forest Plan
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`allowing the removal of trees over 21 inches DBH for ten individual projects. FEA at 400-402.
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`Recent examples include projects like Big Mosquito and Ragged Ruby. The Big Mosquito
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`Project utilized site specific plan amendments to log large trees and harvest in old growth below
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`HRV, just like Camp Lick. Id. at 402 and 406. Furthermore, these amendments for separate
`
`projects in the same Forest feature remarkably similar justifications: the removal of Grand Fir
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`and the promotion of Ponderosa Pine and Western Larch. Id. The Ragged Ruby Project, still in
`
`scoping at the time the 2017 Camp Lick FEA but since published and decided upon, also utilizes
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`amendments allowing the logging of large trees and logging in old growth below HRV. Id. at
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`404 and 407. The rational for these amendments is once again the removal of Grand Fir and the
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`promotion of Ponderosa Pine. Ragged Ruby ROD at 30. It is remarkable how similar the
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`amendments and given justifications are for Big Mosquito, Ragged Ruby, and Camp Lick. All
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`three projects are even located in the same watershed. There is one notable difference: Ragged
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`Ruby was analyzed through an EIS, not an EA like Camp Lick.
`
`46.
`
`The Forest Service did not stop using these amendments after the Camp Lick EA
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`was finalized in 2017. The USFS continued to propose such site-specific plan amendments
`
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`Case 2:21-cv-01033-SU Document 1 Filed 07/12/21 Page 15 of 39
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`targeting large Grand Fir during the subsequent two years before the USFS issued its final Camp
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`Lick decision. For example, the Austin Project, proposed after the 2017 Camp Lick FEA and
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`currently under analysis by the MNF, is also proposing to use plan amendments to log large trees
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`and log in old growth below HRV. Austin Project Scoping Package at 25 and 26.
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`47.
`
`The web of recent projects and site-specific amendments can be confusing. The
`
`following table shows recent projects in the Malheur, most within the Middle Fork of the John
`
`Day Watershed, most using Forest Plan amendments very similar to those proposed for Camp
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`Lick, and whether they are proposed or completed.
`
`
`
`Project
`
`Approximate
`Beginning of
`Scoping
`
`Date
`Completed
`
`EA
`or
`EIS?
`
`21-inch
`limit
`exception
`
`Logging
`in HRV
`
`Galena
`
`March 2009
`
`Big
`Mosquito
`
`March 2014
`
`September
`2013
`
`September
`2015
`
`EIS No
`
`No
`
`EA
`
`Yes
`
`Yes
`
`Yes
`
`Changes
`to Old
`Growth
`Units
`Yes
`
`May 2016
`
`May 2020 EA
`
`Yes
`
`Yes
`
`Yes
`
`May 2017 EIS No
`
`EIS Yes
`
`No
`
`Yes
`
`Yes
`
`Yes
`
`N/A Yes
`
`Yes
`
`Yes
`
`December
`2020
`
`Under
`Analysis
`
`Camp
`Lick
`
`Magone
`
`Ragged
`Ruby
`
`February
`2015
`March 2017
`
`Austin
`
`July 2019
`
`Table 1.
`
`Watershed Acres of
`Commercial
`Activity
`
`8,363
`
`8,600
`
`12,000
`
`7,135
`
`6,097
`
`28,000
`
`Middle
`Fork John
`Day
`Middle
`Fork John
`Day
`Middle
`Fork John
`Day
`Upper
`John Day
`Middle
`Fork John
`Day
`Middle
`Fork John
`Day
`
`48.
`
`BMBP has nothing against Ponderosa Pine, it is an iconic species of great value to
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`BMBP’s supporters and staff. However, projects like Camp Lick, Big Mosquito, Ragged Ruby,
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`and Austin are not really about promoting Ponderosa Pine or Western Larch. The logging of
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`large trees in projects such as Camp Lick, etc., is primarily driven by economic interests rather
`
`than true forest restoration. As we noted in our objection to the Camp Lick project “Old trees are
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`subject to far more competition stress from young small trees (up to 8-12-14 inches dbh) that are
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`far more numerous due to past logging and fire suppression than large 90 to 150-year-old
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`Douglas-fir and grand fir.” Camp Lick Objection at 8. To reiterate, the Eastside Screens were
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`created to address a dearth of large trees. Removing large Grand Fir and Douglas Fir will
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`contribute to that dearth of large trees. The Forest Service should preserve the large trees it has.
`
`49.
`
`However, there is still more compelling evidence that these amendments do not
`
`seek to address site specific conditions, but are in fact part of a larger pattern, where site specific
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`amendments are used to log large trees. In May of 2020, a few weeks before the Forest Service
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`issued the Camp Lick decision, the Forest Service initiated the public involvement process for
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`amending the Eastside Screens to remove the limits on harvest for trees over 21 inches dbh.
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`Forest Plans Amendment: Forest Management Direction for Large Diameter Trees in Eastern
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`Oregon and Southeastern Washington EA at 6. If the alleged need to remove large trees was site
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`specific, a region wide amendment would not be necessary. The Plan Amendment EA even
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`references the practice, stating “In practice over the past several decades, site specific diameter
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`limits have been applied through prescriptions to meet project goals after Forest Plan
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`amendments to harvest trees over 21 inches diameter have been completed.” Id.
`
`50.
`
`The Forest Service’s site-specific amendments to the Malheur Forest Plan in the
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`Camp Lick DN are illegal. Forest Plans, under NFMA, apply to the forest as a whole, based on
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`documented needs and conditions for the overall health and longevity of the particular forest. 16
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`U.S.C. § 1604(b) and (f). In the FEA, the Forest Service states their intention to use site-specific
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`amendments "to improve the resiliency, processes, and functions of the [Project area].” FEA at 1.
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`The amendments described in the FEA would be exceptions to the Eastside Screens—a rule
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`adopted in forests east of the Cascades prohibiting the Forest Service from authorizing timber
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`companies to harvest trees exceeding 21 inches DBH. Courts have held that site-specific forest
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`plan amendments must have “at least some characteristics unique to a site to support a site-
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`specific amendment.” LOWD/BMBP v. Connaughton, 2014 WL 6977611, at *30, quoting Lands
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`Council, 529 F.3d at 1228. The FEA fails to identify any unique characteristics in the Camp Lick
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`area that justify the two site-specific amendments to the Eastside Screens. The Forest Service
`
`primarily attempts to rationalize the amendment as a means to reduce competition for older
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`ponderosa pine and western larch. FEA at 23. According to the Forest Service, "[t]he
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`combination of timber harvest and fire suppression gradually converted the dry forests from
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`primarily long-lived, early-seral species (ponderosa pine and w