Filing alleges public input was stymied
The North Cascades Conservation Council (NCCC) has filed a lawsuit against the U.S. Forest Service over the Twisp Restoration Project (TRP), alleging that the Forest Service failed to give the public adequate opportunity to comment on the project, as required by federal law.
The lawsuit also contends that the agency didn’t consider multiple alternatives, and didn’t analyze all potential impacts of the TRP and a related forest project, both in violation of federal laws. It also contends that the TRP uses a management approach that “allows logging contractors to remove trees at will under vague guidelines.”
Although the Forest Service held an initial comment period on the TRP in 2020, the agency significantly changed the project after much of the area burned in the 2021 Cedar Creek Fire.
After the fire, the Forest Service reduced the TRP area by 69% (from 77,000 acres to 24,000 acres) to exclude areas affected by the fire. But the agency didn’t reopen the comment period to allow the public to weigh in on the potential environmental impacts of the revised TRP, according to the lawsuit.
“The Forest Service made the decision to reduce the Project in this way to avoid doing a full re-analysis of the project area and allow logging to occur as soon as possible,” according to the complaint. “The Cedar Creek Wildfire created changed circumstances for the project area that require a new draft environmental assessment and the attendant public comment period. The public has had no opportunity to comment on the Project as currently planned.”
Not only did the project area change, but the revised TRP eliminated the phased approach to commercial logging and reduced the timeline from 30 to 20 years, according to the lawsuit.
The current version of the TRP includes four timber sales. It will create almost 11 miles of new roads, plus some temporary roads, according to the complaint.
The NCCC lawsuit also alleges that the Forest Service provided privileged access to the North Central Washington Forest Health Collaborative, but did not extend the same opportunities for input to other members of the public, including NCCC. The lawsuit alleges that the Forest Service has been using the collaborative as an advisory committee in violation of federal law.
NCCC asked the Forest Service to reopen public comment when it learned that the project had changed and that changes had been discussed with the collaborative, but the agency declined to do so, according to the lawsuit.
NCCC’s lawsuit contends that when the Forest Service reduced the project area for the TRP, it created a new project called the Midnight Restoration Project containing much of the acreage eliminated from the TRP. But the Forest Service conducted planning and design for the Midnight project out of public view and without the required opportunities for public input — other than from the forest health collaborative, according to the complaint.
The environmental analysis for the TRP doesn’t mention the Midnight project nor other proposals for the acreage eliminated from the TRP, it says.
More analysis needed
NCCC submitted comments on the TRP, met with Forest Service officials, and filed an administrative objection. But the group says its concerns haven’t been addressed. “This litigation is a last resort to pursue equitable public process and objective analysis of wildfire science,” said Ric Bailey, an NCCC member who lives in Winthrop.
NCCC contends that a project of this scope and duration requires a comprehensive environmental impact statement (EIS), not merely an environmental analysis. Moreover, the law requires that all connected environmental impacts be evaluated at the same time, it says.
“The Project’s admitted large urban interface means that failed attempts at wildfire reduction or actions exacerbating wildfire risk and intensity will have a significant adverse impact on the human environment … necessitating an environmental impact statement,” according to the complaint.
The lawsuit also takes issue with the Forest Service’s specified approach to logging and forest treatment, called condition-based management. The complaint describes this as a process where the Forest Service or private logging contractors decide on an area-by-area basis how many trees to cut and how to conduct the logging.
“The private contractors are not obligated to mark or indicate which trees will be cut . . . There will be no consistent oversight of the private logging contractors by federal employees on the ground in the units where logging will occur,” according to the complaint. “The use of condition-based management over roughly 21,000 acres of the project area makes it impossible for the public to adequately determine what trees will be cut, where, or in what amounts,” the complaint says.
Not enough alternatives
The lawsuit also alleges that the Forest Service violated federal law by not including more than two alternatives for the TRP. The project description compares the proposed TRP only with the status quo (the “no-action” alternative). NCCC contends that 11 reasonable alternatives were proposed but all were rejected as inconsistent with the purpose and need.
Moreover, the public didn’t have an opportunity to propose additional alternatives after the Cedar Creek Fire, even though the Forest Service acknowledged that the fire had changed circumstances, according to the lawsuit.
The lawsuit states that there is scientific controversy over the use of thinning to manage wildfire risk. “The Forest Service claims that logging can emulate wildfire and prevent unnaturally large fires, while new studies are showing this is not the case,” Bailey said.
The lawsuit asks that the court order the Forest Service to reopen public comment on the environmental analysis so all interested parties can provide input, to produce a comprehensive EIS, and to consider all reasonable alternatives. They seek to enjoin the Forest Service from doing any logging or other work on the TRP until the alleged violations have been corrected.
The first timber sale for the TRP is anticipated in the spring. If necessary, NCCC will seek an injunction on logging until the case is heard.
NCCC is a nonprofit dedicated to preserving the scenic, scientific, recreational, educational and wilderness values of the North Cascades. Many NCCC members live within or adjacent to the project area.
The lawsuit was filed in U.S. District Court in Spokane on Nov. 23. Okanogan-Wenatchee National Forest Supervisor Kristin Bail is also named as a defendant.
The Forest Service doesn’t comment on pending litigation. The Office of General Counsel and the U.S. Department of Justice handle litigation for the agency, Public Affairs Officer Victoria Wilkins said.