Three forest restoration projects in southeast Oregon were properly exempted from environmental review despite including 29,000 acres of commercial thinning, according to a federal judge.

U.S. District Judge Michael McShane has rejected claims by environmental advocates who argued the treatments were too large-scale to be “categorically excluded” from environmental studies.

“Each of the projects aim to improve timber stands and/or wildlife habitat by means of thinning and prescribed burning,” McShane said.

Federal agencies are allowed to exempt certain activities from such analysis under the National Environmental Policy Act as long as they don’t significantly affect the environment.

In this case, the U.S. Forest Service exempted the South Warner, Bear Wallow and Baby Bear projects in the Fremont-Winema National Forest under “categorical exclusion-6,” or CE-6, which applies to improving habitat and timber stands without herbicides or extensive road-building.

Groups file lawsuit

The Oregon Wild and Wildearth Guardians nonprofits filed a lawsuit against the three projects last year, arguing they exceeded the forest treatments allowed under that exemption.

To bolster their case, the plaintiffs cited a legal precedent in which the Forest Service was prohibited from removing hazardous trees from up to 200 feet along hundred of miles of roads, since the plan went beyond the categorical exclusion’s scope.

However, the judge said that case involved “different limiting criteria” because “under no reasonable interpretation” would such extensive tree removal qualify as road repair and maintenance.

“The project there included activities that were too far removed from those activities permitted under the categorical exclusion at issue,” McShane said. “In contrast, it is apparent that the activities involved in the projects here fall squarely within those permitted by CE-6.”

No NEPA violation

The judge said the Forest Service didn’t violate NEPA by exempting the three projects under CE-6, which has no limit on acreage for qualifying treatments.

“The Forest Service explained how the overpopulation and encroachment of conifer trees negatively impacts the growth of other more desirable tree species as well as various wildlife habitats,” McShane said, “The Forest Service found that all three projects would promote improved timber stand conditions, reduce risk of insect infestation and disease, and reduce fuel loads.”

The judge also determined the environmental plaintiffs were “time-barred” from challenging the legality of the categorical exclusion itself, which was created by the Forest Service more than 30 years ago.

Erin Hogan, an attorney who argued on behalf of the environmental groups, said they’re disappointed with the ruling and are considering their options, including the possibility of an appeal.

“This case presents an important issue — whether the Forest Service effectively has a blank check to log thousands of acres of public forestland without full environmental review, so long as the agency simply labels a project ‘restoration,’” she said in an email. “It also raises questions about the availability of judicial review — whether an agency can shield its improper actions from scrutiny by ‘backdating’ them to previous unlawful decisions.”

The American Forest Resource Council, a timber industry group, said the ruling has again validated that the categorical exclusion allows commercial harvest to reduce wildfire risks.

“The Forest Service can move forward using this policy tool with more confidence, to do more work on the ground, improve the health of forests and wildlife habitat, and protect nearby communities,” said Nick Smith, AFRC’s public affairs director, in an email.

Last year, the 9th U.S. Circuit Court of Appeals decided that 600 acres of commercial thinning in a California national forest had properly been exempted from environmental review under CE-6.

The environmental plaintiffs said that decision didn’t preclude their claims because the three Oregon projects spanned tens of thousands of acres, dwarfing the amount of forestland in the California case.

However, the judge has dismissed that argument, ruling that the 9th Circuit’s precedent also applies to these much larger forest treatments.

“Plaintiffs point to nothing in CE-6’s text that would suggest activities under this exclusion are limited by number of acres,” he said.

Judge: Environmentalists face ‘uphill battle’ against 29,000-acre thinning projects