U.S. District Court Upholds Use of Insect, Disease ‘CE’ to Expedite Forest Health Project on Tahoe National Forest

A forest health project on California’s Tahoe National Forest can proceed after a U.S. District Court judge ruled the U.S. Forest Service appropriately used a special categorical exclusion (CE) under the National Environmental Policy Act (NEPA) to expedite the removal of timber.  The case is the first to challenge the use of this CE that was authorized under the 2014 Farm Bill to address insect infestations and disease on national forests.

The Sunny South project will treat 2,700 acres that have been heavily damaged by drought and bark beetle infestation, threatening the health of the forest, wildlife including California spotted owls, and recreational use near the Sugar Pine reservoir.  The project also protects local water supply from the risks posed by the forest’s unhealthy condition.

The American Forest Resource Council (AFRC) intervened in the case on behalf of its member Sierra Pacific Industries, which purchased the Sunny South project.  The timber will support employment at mills in Lincoln and Oroville, California.

The insect and disease CE enables the Forest Service to authorize projects that treat up to 3,000 acres in designated areas without preparing lengthy paperwork such as an environmental assessment or environmental impact statement.  The provision also authorizes the Chief of the Forest Service to designate additional eligible areas for treatment.  Congress enacted this authority in 2014 out of concern that existing management tools were not adequate to respond to the deepening health crisis in our National Forests.

The Sunny South project is located in a Chief-designated area, yet the plaintiffs alleged that an entirely separate NEPA process was required for the designation.  AFRC argued an adverse ruling would have undermined the usefulness of the 2014 Farm Bill provision, entangling current and future projects in unnecessary, expensive, and time-consuming paperwork.

Judge Vince Chhabria of the U.S. District Court in San Francisco agreed, determining the designation of a threatened landscape under the Farm Bill does not require its own NEPA process.

Judge Chhabria ruled the designation does not authorize any activity or identify a concrete proposal, so it is not subject to the more lengthy NEPA process.  Second, he determined that requiring NEPA for such a designation would undermine the congressional intent of the Farm Bill, which is to accelerate needed treatments on at-risk federally-owned forest lands.

“This decision recognizes, as Congress did when passing the Farm Bill, that active management is urgently needed to address the forest health crisis,” said AFRC General Counsel Lawson Fite. “We applaud Region 5 of the Forest Service for leading the way in designating areas that need treatment and in using this valuable tool to accelerate the pace and scale of restoration. With forest health continuing to decline throughout the West, this decision strengthens a very useful tool in the agency’s toolbox.”