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Judge clarifies Forest Service order

Clarifying an earlier ruling, a federal judge has told the U.S. Forest Service that while it must take public comments and consider appeals on major projects, it doesn't have to for minor things like hunting permits.
/ Source: The Associated Press

Permits for Christmas tree cutting and mushroom picking can likely be issued, but wildfire prevention projects such as prescribed burns and thinning are still being held up under a judge's order to give the public greater say in national forest management, the U.S. Forest Service said Thursday.

Clarifying an earlier ruling, U.S. District Judge James Singleton Jr. wrote Wednesday that the Forest Service needs to take public comments and consider appeals on major projects, such as timber sales and prescribed burns — not on minor things like permits for hunting guides or gathering mushrooms.

"This is the second time in a row the judge agreed with us and rejected the Forest Service's utterly ridiculous interpretation of his order," said Jim Bensman of Heartwood, a Midwest forest protection group that was a plaintiff in the lawsuit challenging Bush administration changes to forest management rules.

"I think this is pretty solid proof that the Forest Service was playing games with thousands of people's livelihoods to try to get a political advantage."

The Forest Service had suspended nearly 1,500 activities nationwide, including cutting an 80-foot spruce in New Mexico to serve as the U.S. Capitol Christmas tree, the transfer of an operating permit for a ski area outside Los Angeles, and permits to pick mushrooms on national forests in Oregon, arguing that they were all affected by Singleton's July 2 ruling for the Eastern District of California.

Rex Holloway, northwest regional spokesman for the Forest Service in Portland, said national forests would wait until they got direction from the national office before starting to issue permits, but it appeared the judge's clarification authorized them to resume handing out permits for things like mushroom picking, Christmas trees and firewood cutting.

Agency will appeal initial ruling
Because prescribed burns and thinning projects designed to prevent wildfires still required public comment, the Forest Service would continue with its appeal, said Agriculture Undersecretary Mark Rey.

"We are relieved that Judge Singleton provided a necessary clarification to his earlier orders to make it clear that a limited number of truly inconsequential activities on national forests and grasslands are unaffected," Rey said in a statement. "However, many essential and time-sensitive activities that do not have significant adverse environmental impacts, such as prescribed burning and hazardous fuels reduction projects in the wildland-urban interface, are still being delayed."

Environmental groups accused the Bush administration and the Forest Service of intentionally trying to create an uproar by halting trivial activities, to build support for legislation to further limit public participation in logging on national forests.

The ruling stemmed from a 2003 lawsuit by Heartwood and other environmental groups challenging the harvest of burned trees on the Sequoia National Forest in California, which had been approved under what is called a categorical exclusion, which does not allow for public comment or appeals. The case was aimed at striking down rules adopted by the Bush administration in 2003, Bensman said.

The judge wrote that when he suspended the 2003 regulations, he intended for the Forest Service to go back to regulations in effect before they were changed. Under those rules, activities subject to public comment and appeal included timber sales, prescribed burning, off-highway vehicle trails, creating wildlife openings greater than five acres, oil and gas exploration, and digging trenches to look for minerals.

The judge denied the Forest Service request to lift his order pending appeal, saying the Forest Service had not shown it was likely to win an appeal, and the irreparable harm it claimed would likely go away now that his order had been clarified.

Bid to change law?
Matt Kenna, an attorney for the Western Environmental Law Center in Durango, Colo., who represented environmentalists in the case, said he was still afraid that timber supporters would try to push a legislative rider through Congress to repeal the Appeals Reform Act, the basis for the ruling.

"This certainly shows the Forest Service was acting totally inappropriately and had no legal basis for what they were doing," Kenna said. "I hope Congress realizes the Forest Service has been dishonest all along."

Chris West, vice president of the American Forest Resource Council, a timber industry group, maintained that environmentalists had intended to shut down minor forest activities, but backed off when confronted with public outrage.

"Our laws and regulations are not set up to pick and choose," West said. "It should be across the board, not just those deemed politically correct by a special interest."

West said the judge's action 'reinstates' rules that were never formally enacted.

"With a contempt threat hanging over their head, the Forest Service did the best they could do," West said. "Who knew the judge was going to make new law and regulations from the bench?"

The Forest Service had suspended 115 permits for guided hunting, fishing, river trips and horseback rides, 14 projects on ski areas, 98 permits for public utilities and communications sites, and National Guard training on the Hoosier National Forest in Indiana. They also suspended thinning and burning to reduce wildfire danger on 20,000 acres, and 169 projects involving trail and campground maintenance.