In an unpublished memorandum, the Ninth Circuit Court of Appeals affirmed a district court’s determination that the U.S. Forest Service did not act arbitrarily and capriciously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.

Challenge to review and approval of three commercial logging operations in the Fremont-Winema National Forest under a categorical exclusion from National Environmental Policy Act review.

Oregon Wild v. U.S. Forest Service

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Ninth Circuit Partially Remanded Challenge to Application of Categorical Exclusion to Commercial Logging Projects

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Ninth Circuit Partially Remanded Challenge to Application of Categorical Exclusion to Commercial Logging Projects

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