Litigation Stalls Forest Health Projects

Nov 15, 2005

WASHINGTON, D.C. – House Committee on Agriculture Chairman Bob Goodlatte chaired a hearing to review recent litigation on Forest Service firefighting and forest health efforts. In September, a California district court ruled in the Earth Island Institute v. Ruthenbeck case that projects proposed by the Forest Service under Categorical Exclusions (CE) were subject to the notice, comment, and appeal provisions of the Appeals Reform Act of 1992.

“Today’s hearing has cast a spotlight once again on the complexity of the maze of laws governing the Forest Service. …Public involvement, including the right to challenge forest management decisions, is intended to improve forest management decisions, not stymie them until they are meaningless. At this point, the courts will continue to hear this case, even though the fire that led to the present dispute burned out almost six years ago,” said Chairman Goodlatte.

The Earth Island decision will impact to roughly 800 projects on over 1.2 million acres of Forest Service land. The ruling applies to timber sales, prescribed burning, forest health, off-highway vehicles, and mineral development projects.

“Even with the narrowed ruling, the Forest Service believes that almost 600,000 acres of fuels treatments will be delayed at least through the winter, including almost 33,000 acres on the George Washington – Thomas Jefferson National Forest in Virginia. In all likelihood, these projects won’t be undertaken until the spring,” said Chairman Goodlatte. “Twenty two salvage logging projects will also be delayed, reducing the value of the already dead timber by at least 50 percent and denying badly needed economic activity to rural areas.”

The Appeals Reform Act (ARA) requires that projects implementing National Forest plans be subject to notice, comment, and appeal. In developing the regulations to implement that ARA, the Forest Service has held that projects without significant environmental impacts need not be subject to the provisions of the Appeals Reform Act. Accordingly, projects with no significant environmental impacts can be conducted using Categorical Exclusions under the National Environmental Policy Act (NEPA). Projects conducted under a CE cannot deviate from a forest plan and cannot be carried out in a wilderness area, threatened or endangered species habitat, or wetlands.

The Chairman also noted that today’s hearing was the result of overlapping and conflicting mandates. If the Earth Island decision is correct, it would require public notice and comment on the development of forest plans, timber sales, litigation over both forest plans and projects and other minor projects which would further complicate the planning process and delay critical projects.

“The Forest Service is the only Federal land management agency with a statutorily required administrative appeals process. It also prepares more National Environmental Policy Act (NEPA) documentation that any other Federal agency. Even after extensive documentation and public involvement, the Forest Service is still routinely sued by environmental advocacy groups. The question in my mind is: at what point have we lost sight of environmental results because of our excessive attention to bureaucratic process?” said the Chairman.

In October, Chairman Goodlatte and Rep. Richard Pombo introduced H.R. 4091 to address the issues the associated with Earth Island ruling. This legislation clarifies that projects conducted under Categorical Exclusions are not subject to the Appeals Reform Act. H.R. 4091 has been referred to the House Committee on Agriculture.

The Committee heard from two panels of witnesses including U.S. Department of Agriculture Natural Resources and Environment Under Secretary Mark Rey as well as academic and industry representatives. The Committee will continue to monitor this issue closely.

Witness testimony is available on the Committee website, and a full transcript of the hearing will be available on the Committee website 4-6 weeks following the hearing.


Panel I
The Honorable Mark Rey, Under Secretary, Natural Resources and Environment, United States Department of Agriculture, Washington, D.C.

Panel II
Dr. Michael Mortimer, Professor of Forest Law and Policy, Virginia Tech, Blacksburg, Virginia, on behalf of the Society of American Foresters

Mr. John B. Hofmann, Director, Natural Resources, Regional Council of Rural Counties, Sacramento, California

Mr. Tim O'Hara, Vice President, Minnesota Forest Industries, Duluth, Minnesota, on behalf of the American Forest & Paper Association

Mr. M. Brad Robinson, President, Gunnison Energy Corporation, Denver, Colorado