Judge Shuts Down Some Timber Sales in American Forests

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WORLDWIDE FOREST/BIODIVERSITY CAMPAIGN NEWS

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10/5/99

OVERVIEW & COMMENTARY

All over the World local forest conservation initiatives are saving

forests or at least slowing down the destruction. Below are details

on a grassroots environment victory, shutting down some 110,000 acres

of logging in U.S. National Forests. Check out the forest

conservation portal at http://forests.org/portals/ for full text

search indexes of the web contents of the best forest conservation

resources available on the Internet, including dozens of local and

regional efforts to stabilize forest cover utilizing many different

approaches. Many new sites have been recently added.

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Title: Judge Buzzcuts Timber Sales on American Forests

Source: Environment News Service, http://www.ens.lycos.com/

Date: October 5, 199

BENTON, Illinois, October 5, 1999 (ENS) - A small grassroots

environmental group has won a court ruling that shuts down timber

sales in an estimated 110,000 acres of U.S. National Forests across

the country. This is the first time a federal judge has issued an

injunction on the entire National Forest system.

Chief Judge J. Phil Gilbert of the Federal District Court for the

Southern District of Illinois ruled September 29 that the U.S. Forest

Service acted illegally in allowing timber sales under a loophole

known as the "categorical exclusion." Timber sales under a given size

were not subject to the provisions of the National Environmental

Policy Act (NEPA).

The case was brought by Heartwood, a Bloomington, Indiana based

regional forest protection network and two self-taught forest

experts, Jim Bensman and Mark Donham. They claimed that the Forest

Service illegally excluded timber sales the environmental

requirements of NEPA.

All Forest Service timber sales issued under categorical exclusions

have been halted by the Court if dated after since September 16,

1998, the date the lawsuit was filed by Heartwood.

Judge Gilbert called the use of categorical exclusions to avoid the

NEPA regulations, "...a classic example of an arbitrary decision ...

especially in light of the overwhelming opposition from both federal

and state sources as well as the general public."

Since the Forest Service used categorical exclusions not just

locally, but nationwide, Judge Gilbert specifically ruled that "any

remedy ordered must also be national in scope."

"The Court believes that the continued application of this unlawful

Categorical Exclusion does pose a potential danger both to the

environment and to public health," the ruling states.

"The judge's ruling confirms what we have been saying all along,"

said Andy Mahler, director of Heartwood. "The U.S. Forest Service has

engaged in a pattern of illegal activity designed to increase

logging, regardless of environmental damage, public opposition, and

applicable law. These sales are just the tip of the iceberg. The

entire timber sale program is illegal and should be stopped."

The exclusions were based on the size of the timber sales approved

under them. "Timber harvest which removes 250,000 board feet or less

of merchantable wood products or salvage which removes 1,000,000

board feet or less of merchantable wood products; which requires one

mile or less of low standard road construction; and assures

regeneration of harvested or salvaged areas, where required," were

excluded.

The Forest Service (FS) chopped up the timber sale areas into parcels

that would fit this definition and offered them for sale without the

necessity of meeting the NEPA regulations. The court found that the

Forest Service had failed to explain in the record the volume limits

for the timber sale categorical exclusion.

The court stated, "In sum, the Court finds that the FS failed to

adequately consider an important aspect of the issues involved,

offered little explanation for its decision and failed to provide

adequate evidence and support for its decision to greatly increase

the volume limit and implement the proposed timber harvest CE

[Categorical Exclusion]. Therefore, the Court finds the FS' decision

arbitrary and capricious and DECLARES the timber harvest CE NULL AND

VOID. The timber sale CE is invalid under NEPA and should be set

aside. "

Forest Service Associate Chief for Natural Resources, Hilda Diaz-

Soltero, has sent out a notice to all Regional Foresters to

immediately cease granting timber sales and to stop the cutting on

those now in progress.

No further timber sale advertisements, awards or other authorizing

decisions may be issued relying on categorical exclusions, Diaz-

Soltero wrote. All ongoing timber sale contracts, permits, or other

authorizations resulting from project decisions issued on or after

September 16, 1998 that relied categorical exclusions must be

immediately suspended.

"You should work with the contract or permit holder to take steps

necessary to affect an orderly shutdown of the contract or permit

activity, addressing affects such as erosion and sedimentation, Diaz-

Soltero instructed.

At this point no one appears to know exactly how much land and how

many timber sales across the country are affected by the ruling, but

that information will soon be a matter of public record. By October

8, each region must submit to the director of forest management a

list of timber sale projects subject to the ruling.

The case is a dramatic example of David winning the battle with

Goliath. Heartwood is not one of the large environment organizations.

No attorney was hired until after the lawsuit was filed. Plaintiff

Jim Bensman lives in a small apartment surrounded by stacks of

documents. He has dedicated his life to seeking justice through the

correct administration of federal procedures.

Plaintiff Mark Donham lives in an entirely solar and wind powered

house at the edge of the Shawnee National Forest. He became involved

in forest protection issues when his home was bombarded by the aerial

spraying of defoliants. Now he is running for Illinois State Senate

for the Democratic Party.

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