Categorical Exclusions (CE's)
Earth Island v. Ruthenbeck update: USFS appeals, asks for Stay
October 20, 2005
FROM: The BlueRibbon Coalition Action Alert List.
Dear BRC Action Alert Subscriber,
According to an internal memo sent to Forest Service employees, the agency has formally appealed a court order resulting from the lawsuit; Earth Island Institute v. Ruthenbeck. As you all know by now, that ruling requires any forest project using a Categorical Exclusion (CE) to include a formal public notice, be available for public comment and give the public the option of appealing the decision.
According to the memo, the Forest Service (FS) filed a "Motion for Stay Pending Appeal" and related documents on October 12, 2005. The FS requested a stay arguing the District Court's order is impermissibly broad and has resulted in disruptive, nationwide impacts far beyond the specific issues originally before the court.
The FS also argued that the order is already having tremendous impacts to the agency's operations requiring significant resources to comply. The FS included information regarding projects affected by the Courts order. According to the document, the kinds of activities which have been affected by the implementation of the Court's order include the following:
* Approximately 74 fuels treatment projects to protect local communities and forests from the dangers of wildfire
* Approximately 169 recreation projects for developed and dispersed recreation areas, including projects at campgrounds and on trails. Reconstruction on the Captain Cook Trail in Oregon will be delayed, possibly into next year, which may require closure of the trail during the season of its heaviest use. Many recreation projects to clear hazard trees from roads, trails, trallheads, and campgrounds are affected. The inability to clear such hazards in a timely fashion may result in the closure of those areas during notice, comment and appeal.
* Approximately 98 projects to maintain and improve watersheds and wildlife habitat, such as projects to protect bats on the Shawnee National Forest or to stabilize streams banks on the Mark Twain National Forest.
* Nearly 115 outfitter and guide permits for activities including guided hunting, fishing, river trips, and horseback rides.
* 98 permits for public utilities and communications sites. In California, suspension will delay installation of a communication tower for the California Highway Patrol. In Arizona, suspension may result in a private landowner not having power this winter.
* Approximately 14 projects on ski areas, including maintenance of cross-country ski areas and maintenance or improvements on downhill ski areas.
* National Guard training scheduled for the Hoosier National Forest because the activities require clearing five acres, which cannot be done in advance of notice, comment, and appeal.
* Numerous recreation events requiring permits, such as Boy and Girl Scout activities, family reunions, fun runs, bicycle races, Enduros and other OHV events.
On July 2, 2005 the United States District Court for the Eastern District of California issued an Order banning the use of Categorical Exclusions (CEs). The ruling requires any forest project using a CE to include a formal public notice, be available for public comment and give the public the option of appealing the decision. The order applies to all decisions made with a CE after July 7, 2005. It also applies nationwide.
The ruling potentially affects hundreds of projects throughout the country. CE's are used to approve all sorts of projects ranging from trail maintenance activities to timber operations. Many group activities, such as Boy Scout campouts and jamboree's are approved with CE's along with 4x4 club runs or charity events. Most Operating Plans for backcountry ski Yurt's and even major Ski areas are processed via CE's. In some areas, snowmobile grooming operations are approved via CE's. OHV events ranging from Enduro's to Dual Purpose Motorcycle (street legal) tours are approved via CE's.
Sadly, the court ruling has resulted in the cancellation of many such projects, including the popular "49er Enduro," sponsored by AMA's District 36 and the Capital City Enduro sponsored by the Tallahassee Trail Riders. The ruling even resulted in the cancellation of an adopt-a-trail project on the Gila National Forest in New Mexico.