Oregon Wild v. U.S. Forest Service

In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed a district court’s determination that the U.S. Forest Service did not act arbitrarily and capriciously when it approved three commercial logging operations in the Fremont-Winema National Forest under a categorical exclusion from National Environmental Policy Act (NEPA) review. However, the Ninth Circuit vacated the district court’s ruling that a claim that the application of the categorical exclusion violated NEPA itself was time-barred. The Ninth Circuit directed the district court to apply the Supreme Court’s recent decision in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, which the Ninth Circuit said likely abrogated Ninth Circuit precedent holding that challenges to procedural violations in adoption of a regulation or agency action must be brought within six years of the agency rulemaking. The categorical exclusion under which the Forest Service approved the three projects was adopted in 1992. Environmental groups alleged that if the three projects—which included 16,000, 10,000, and 3,000 acres of commercial logging—qualified for categorical exclusion, the categorical exclusion violated NEPA and its implementing regulations. The plaintiffs alleged that projects that involve commercial logging operations inherently result in more significant environmental effects, including release of stored carbon.

On remand from the Ninth Circuit Court of Appeals, the federal district court for the District of Oregon ruled that the U.S. Forest Service’s 1992 promulgation of a categorical exclusion from National Environmental Policy Act (NEPA) review for projects that allowed unlimited commercial thinning was arbitrary and capricious. The court found that the record did not show that the Forest Service considered the impact of thinning at any scale and that the court therefore could not conclude that the Forest Service engaged in reasoned decision-making regarding the environmental impacts authorized by the categorical exclusion. The court rejected the federal government’s threshold argument that the statute of limitations barred the challenge, as well as arguments that the plaintiffs’ claims were barred by laches, that the plaintiffs lacked standing, and that the plaintiffs waived their challenge to the categorical exclusion’s validity by failing to raise it during the administrative process. The court concluded that setting aside the categorical exclusion as to all future Forest Service actions as well as the project approvals challenged in this proceeding was the appropriate remedy. The plaintiffs’ original allegations included that projects that involve commercial logging operations inherently result in more significant environmental effects, including release of stored carbon.