Federal Court Upholds Key Healthy Forests Provision

Published June 1, 2005

The U.S. Forest Service was not required to seek public comment and conduct an environmental review prior to approving the logging of 245 acres of beetle-infested forest in the Lolo National Forest, ruled the U.S. District Court of the District of Montana in an April 8 decision.

In so ruling, the court approved one of the cornerstones of the Bush administration’s Healthy Forests Initiative, the “categorical exclusions” exemption.

Categorical Exclusion Challenged

Under the Healthy Forests Initiative, the Forest Service is not required to undertake normal public comment and environmental review procedures in approving the logging of less than 250 acres of timber in dead or dying forests if such logging can be accomplished without building more than one-half mile of temporary roads. Only “extraordinary circumstances,” according to the initiative, would require the Forest Service to abide by normal comment-and-review procedures for such a small tract of land.

Following an initial sale of Lolo timber in May 2004, a pair of environmental activist groups successfully obtained a restraining order forbidding any more logging of the beetle-infested timber until a federal judge could hear arguments regarding the logging activities.

Exclusion Properly Applied

In the April 8 decision, Judge Donald Molloy determined there was little likelihood the activist groups could show the logging plan is unlawful. The groups had argued the Forest Service had arbitrarily and capriciously selected the site for logging, especially considering it was lynx habitat.

Molloy, however, noted that logging of dead and dying timber was consistent with the Forest Service’s overall Lolo National Forest Plan. “It does not appear from the current record that the Forest Service acted arbitrarily and capriciously [in] bringing the Camp Salvage Project into compliance” with applicable forest management directives, Molloy wrote.

Timely Timber Salvage Protected

Chris West, vice president of the American Forest Resource Council, called the decision a “big ruling” that affirms one of “the cornerstones of the president’s Healthy Forests Initiative.

“What [Molloy] said is that the categorical exclusion is a tool that can be used,” explained West for the April 15 issue of The Missoulian. “And it can be done quickly before the value of timber is lost.”

“We were trying to question their ability to do these categorical exclusions so widely,” countered Michael Garrity, executive director of the plaintiff Alliance for the Wild Rockies, quoted in the Missoulian article. “Simply put, we believed this was an inappropriate use of the categorical exclusion authority.”

The Lolo National Forest lawsuit was limited to whether the Forest Service acted arbitrarily and capriciously in applying the categorical exemption to lynx habitat, and it did not challenge the validity of categorical exclusions themselves. Other activist groups are currently challenging the overall categorical exclusion rule in an Indiana federal court.

James M. Taylor ([email protected]) is managing editor of Environment & Climate News.