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December 15,
2009
LOCAL
GROUPS FILE LAWSUIT TO INCREASE
PUBLIC PARTICIPATION IN NATIONAL FOREST DECISIONS
U.S. Forest Service Regulations Deny the
Public’s Right to Submit Comments and File Appeals on Many
Decisions Affecting Public Lands Nationwide
 Santa Barbara,
Calif. – In a federal lawsuit filed today, two local
conservation organizations are seeking to restore the public’s
right to participate in land use decisions on National Forests.
The case, filed in U.S. District Court in Los Angeles,
challenges regulations that eliminate the public’s longstanding
right to review, comment on, and file administrative appeals of
many projects and activities on our nation’s public forest
lands.
“Our national
forests are owned by all citizens to enjoy for outdoor
recreation, clean air and water, open space, and wildlife
habitat,” said Jeff Kuyper, executive director of Los Padres
ForestWatch, a nonprofit conservation organization based in
Santa Barbara that works to protect the Los Padres National
Forest. “Today’s lawsuit seeks to restore the public’s voice
in the management of our nation’s public lands.”
The lawsuit
challenges a set of nationwide regulations that the U.S. Forest
Service used to approve a project earlier this year in the Los
Padres National Forest. The Tepusquet Fuels
Treatment Project includes clearing vegetation across 19,300
acres using chainsaws, dozers, masticators, and prescribed
burning. The Forest Service approved the project on August 10,
2009 without preparing an Environmental Assessment, and further
exempted the project from public notice, comment and appeal,
citing to the challenged regulations.
Because the Forest
Service excluded this project from the usual requirement to
prepare an Environmental Assessment (“EA”), the agency did not
give the public an opportunity to review and comment on the
details of the project, or to appeal it to higher-level forest
officials. Instead, the Forest Service only provided the public
with a two-page description back in 2006, disclosing very few
details about the project and its possible impacts.
The conservation
groups support appropriate fuels treatment projects, and believe
that portions of the Tepusquet project are appropriate. However,
they disagree with certain aspects of the project that are far
removed from the wildland-urban interface and which extend
several miles into the remote Los Padres National Forest
backcountry. Plaintiffs’ specific concerns include the
construction of several miles of remote fuel breaks using heavy
machinery, excessive vegetation clearance along forest roads,
and the cumulative impacts associated with this project when
combined with another pre-existing prescribed burn project and
two recent wildfires that collectively burned more than 330,000
acres of healthy native chaparral adjacent to, and in the
vicinity of, the Tepusquet project.
"It is critical
that citizens be allowed the opportunity to review and comment
on projects that impact our public lands, " said Richard Halsey,
executive director of the California Chaparral Institute, a
nonprofit organization based in San Diego County comprised of
scientists, wildland firefighters, and educators working
together to promote the understanding of southern California's
chaparral ecosystems. “We have lost so much native shrubland
habitat in the region already due to human-caused wildfires.
We’d like to help the Forest Service develop plans to protect
what is left, but that’s difficult to do when we’re shut out of
the process.”
If members of the
public had been permitted to comment on the project, and to
administratively appeal it, plaintiffs could have convinced the
Forest Service to prepare an EA or more-detailed Environmental
Impact Statement, which along with plaintiffs’ substantive
comments could have convinced the Forest Service to change the
proposed project to eliminate its inappropriate components.
The groups are
asking the court to set aside the challenged regulations and the
Decision Memo for the Tepusquet Fuels Treatment Project. The
groups are also asking the court to tailor its ruling to allow
necessary and proper fire mitigation directly along the
wild-urban interface to proceed while the Project is subjected
to public notice, comment and appeal.
The case is Los
Padres ForestWatch and California Chaparral Institute v. U.S. Forest Service. The groups are represented by attorneys Matt Kenna,
and Doug Carstens of the law firm Chatten-Brown and Carstens.
Background Information
Before 1992, the U.S. Forest Service allowed the public to
review, comment on, and appeal development activities such as
timber sales, fuel treatments, road and facility construction,
range management and improvements, wildlife and fisheries
habitat improvement measures, forest pest management activities,
mining and oil drilling.
In 1992, the
Forest Service proposed eliminating the public’s longstanding
right to participate in these projects. The proposal was widely
opposed, and Congress responded by enacting the Forest Service
Decisionmaking and Appeals Reform Act (“ARA”). The ARA requires
that all “proposed actions of the Forest Service concerning
projects and activities implementing land and resource
management plans” must be subject to public notice, comment, and
appeal.
The Forest Service
in 2003 established new regulations that exempted several types
of projects from the usual requirement to prepare an
Environmental Assessment, and also exempted those projects from
public comment and appeal under the ARA. The exempted actions
included timber sales up to 250 acres, forest-thinning up to
1,000 acres, and prescribed burns up to 4,500 acres. The Forest
Service thus began carrying out many forest projects without
affording comment and appeal rights to the public.
The ARA
regulations were successfully challenged in federal court in
2003, and the Ninth Circuit Court of Appeals later upheld the
district court’s judgment that the rules violated the ARA.
However, on March 3, 2009, the United States Supreme Court
reversed the Ninth Circuit on a technicality, allowing the
regulations to spring back to life. The Forest Service is now
relying on this regulation to approve a wide variety of projects
on National Forest land.
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