Forest Service establishes new timber sale rules

By SHERRY DEVLIN of the Missoulian

7/24/03

Invoking the danger of wildfire and bark beetle attack, the U.S. Forest Service established new rules Wednesday allowing small timber sales to move ahead without the customary level of environmental review or citizen challenge.

And the Agriculture Department undersecretary who oversees the agency urged the U.S. Senate to push ahead with legislation insisting that federal judges balance the short-term impacts of logging against the long-term harm of inaction.

"You cannot uncut a tree, but you also can't unburn a forest," undersecretary Mark Rey told a half-dozen timber-mill owners and the two Republicans in Montana's congressional delegation during a late-afternoon conference call.

"If there is a high risk of a fire occurring, that has to play into a judge's decision," Rey said. "I hope Congress will provide that direction, so judges like Judge (Don) Molloy will consider the potential for long-term harm."

Molloy, a federal district judge in Missoula, has drawn the ire of loggers and conservatives for siding with environmentalists in a number of cases that stopped - or slowed - timber sales on national forests in Montana.

Wednesday's rule-making also was aimed at the federal judiciary, as the Forest Service moved to reinstate a process called "categorical exclusion" that was once widely used, then was set aside by a federal district judge in Illinois.

In the 1999 case, District Judge Phil Gilbert said the Forest Service failed to provide any rationale for its use of categorical exclusions, which are allowed under the National Environmental Policy Act for routine projects that would have insignificant or no effect on the environment.

The agency has since reviewed more than 150 small timber sales nationwide for their environmental effects. None had a significant negative effect on the human environment, so other similar sales would likely have little or no negative effects, Rey said.

The administrative rule sent to the Federal Register for publication at the close of business Wednesday excludes three kinds of activities from further environmental analysis: the cutting of live trees on 70 acres or less, the salvage of dead or dying trees on 250 acres or less, and the commercial or noncommercial logging of trees needed to control insects or disease on 250 acres or less.

In each case, the agency could build no more than one-half mile of temporary roads.

During the 45-minute telephone call, Rey told Montana mill owners the categorical exclusion is important for two reasons: "It responds to a rapidly developing situation both in the West and increasingly on our southern forests which have become infested with bark beetles. And it provides us an opportunity to do a lot of small timber sales relatively quickly, particularly in cases where our regular timber program is suffering from some sort of interruption associated with litigation or appeals."

"The amount of time necessary to do the environmental documentation required for an environmental assessment or environmental impact statement is usually such that by the time we get it done, we are no longer dealing with a spot infestation (of beetles), but in something much more severe and widespread," Rey said.

When it takes effect next week, the rule will be used "aggressively," the undersecretary said. "We will see new sales coming on the market pretty quickly."

"Will it let us get into these places where there are fires burning right now?" asked Rep. Denny Rehberg, R-Mont.

"Yes," came Rey's reply. "There is a lot of impetus within the agency for moving ahead and doing the work we know is necessary. I have no doubt that we have a lot of people waiting out there, ready to start moving as soon as this hits the Federal Register."

Another categorical exclusion published last month has already cut time and costs for timber sales on California's San Bernadino National Forest by 50 percent, Rey said. That forest is infested with bark beetles, the cure for which is removing the dead and dying trees.

Same, too, will the new rule help national forests deal with the increasing danger of wildfire, according to Rey. Instead of writing environmental analyses that fill volumes, foresters will collect public comment, then write a brief decision memo.

Administrative appeals will not be allowed. The only recourse for environmentalists or others who oppose a timber sale will be to file a lawsuit in federal court.

But Rey emphasized that categorical exclusions are allowed by law "for activities that you do on a routine basis, that you do often enough that you can - on the basis of a record of experience - accurately predict the environmental consequences of the activity."

The rule received an immediate endorsement from politicians and timber industry officials on the conference call, all of whom cited the growing number of wildfires in Montana and forecasts that show the state's fire potential at the highest-ever level.

Sen. Max Baucus, D-Mont., was not invited to participate in the call, but issued a written press release endorsing the new rule - which he said he has pushed the Forest Service to adopt for years.

"Now we can put folks to work in the woods, help our small mills, create jobs and protect our communities," Baucus said. He, too, cited the danger of beetle infestations and of wildfire.

"It's unbelievable," Sen. Conrad Burns, R-Mont, said during the conference call. "This thing is reaching a crisis."

Burns said his staff has devoted virtually all its time in recent weeks to the issue of wildfires and forest health. "And we are going to continue because the American people are seeing these fires every night on the TV set, and they don't like what they're seeing. I am getting calls from people in Cincinnati, Ohio, saying this cannot continue."

"We can't lose sight of why we are doing this," Rehberg added. "We have unhealthy forests. They are burning, and we are losing jobs every day."

It is essential, the congressmen said, that the Senate pass the president's Healthy Forests Initiative in the weeks ahead, and include language instructing federal judges to consider the long-term problems associated with the lack of timber cutting in the national forests.

Rey said the hardest issue to resolve in the Senate will be that of judicial review - "the direction to courts."

"As a consequence of 30 years of litigation over commercial timber sales, virtually every plaintiff who challenges a fuel-reduction project presents it as if it were indistinguishable from a commercial timber sale," he said.

"So the judge looks at these fuel-reduction sales from the prospect that since you cannot uncut a tree, a preliminary injunction is almost always justified," Rey continued. "But there are risks and very real consequences to not cutting trees.

"You cannot uncut a tree, but you also can't unburn a forest."

Reporter Sherry Devlin can be reached at 523-5268 or sdevlin@missoulian.com