Huntington Lake in California's Sierra National Forest is a popular spot for campers, hikers, sailors, snowmobilers -- and wedding parties.
Sean Tomlinson and Krista Garcia got married on the lakeshore Oct. 1, as 160 guests looked on. Their gathering had a permit from district ranger Ray Porter. The Forest Service typically issues such special use permits without environmental reviews or public comments since the area was already developed (There is a resort hotel across the road).
But it turns out, Porter may have violated a recent federal court order and a policy directive from Forest Service Chief Dale Bosworth by handing over a permit without sending it out for public comments, an environmental review and possible appeal. Says Agriculture Undersecretary Mark Rey: The wedding admonition "speak now or forever hold your peace," has new meaning.
The Tomlinson-Garcia wedding was one of over 1,400 events "categorically excluded" from the National Environmental Policy Act that the Forest Service has been tracking since early July, when Judge James Singleton of the U.S. District Court in Anchorage, Alaska, ruled the agency violated the 1992 Appeals Reform Act by not sending out categorically excluded projects for public comment and appeal. Last month, Singleton said his order should be applied nationwide.
But for Porter's error, the wedding would have become the latest example of a project or permit delayed or shelved by the agency as a result of the controversy. It would have been included among more than 70 hazardous fuels treatment projects, more than 160 recreation-maintenance jobs and nearly 115 outfitter and guide permits for hunting, fishing and horseback riding. Not to mention the planned cutting of an 80-foot-tall tree in New Mexico for display as the Capitol Holiday Tree in Washington.
Enviros unhappy with Forest Service response
Environmentalists who filed the lawsuit against the categorical exclusion rule are furious about what they see as an effort by the Forest Service to generate negative press coverage of the court ruling.
"Their tactic in large measure has worked," said Western Environmental Law Center attorney Matt Kenna. "A lot of traditional allies our groups worked with like hunter groups and forest users are complaining their recreational activities were shut down by this order."
He added, "They don't need to be freaking out and shutting down all these recreational activities in the forests. That simply is not required."
After Singleton's Sept. 16 order applying his ruling in Earth Island Institute v. Ruthenbeck nationwide, the Forest Service suspended all projects and activities using categorical exclusions from the NEPA process until project managers allow public notice, comment and the opportunity for appeal, a process that can take 135 days.
The Justice Department filed a request with Singleton on Wednesday to stay the ruling pending appeal, saying it has "thrown the Forest Service into unnecessary disarray and confusion." Indeed, the agency has been spending considerable time and money on the issue, even holding daily meetings or conference calls to determine how to comply with Singleton's ruling.
The ruling was spurred by a lawsuit filed by the Earth Island Institute, Heartwood, Center for Biological Diversity and the Sierra Club. The groups were challenging a 2003 rule that expanded the use of categorical exclusions for timber cutting and salvage logging projects without providing for public comment and appeal, the plaintiffs say it was not targeted at all categorical exclusions.
"We're just really pretty disgusted," said Mark Donham, program director at Heartwood, one of the plaintiff groups. "It was never our intent from the beginning to stop things like cutting branches off of trees to create Christmas tree wreaths or cleaning outhouses or anything like this."
The plaintiffs filed a response yesterday to the Justice Department stay request, and Kenna hopes the court can provide proper direction to the Forest Service. "I expect the court will be able to clarify the order does not apply to mushroom picking and other things the Forest Service is using as a scare tactic in this case," Kenna said. "They're using these legitimate forest users as pawns in this P.R. game."
The plaintiffs motion asking Singleton to clarify his ruling charges the Forest Service is "applying a faulty interpretation of law" to force the suspension of all categorically excluded projects.
"It is apparent that the Forest Service is applying this interpretation to create a 'backlash' against the court's orders in order to gain a legislative override or other relief from the court's order," the motion states. "This is creating an extreme hardship for these people (who include many members of the plaintiff groups), and creating a burdensome situation for plaintiffs as they try to explain to them that the Forest Service is acting improperly in response to the court's orders."
But Rey said the plaintiffs got exactly what they asked for in requiring all categorically excluded projects be subject to the 135-day comment and appeal process, noting their attorneys filed one motion for contempt and threatened a second.
"The ruling is there," Rey said. "It's very clear it's very direct and the plaintiffs in the case have been equally direct they expect us to abide by it or they will consider filing a second motion of contempt."
Rey cited a Sept. 21 letter from Kenna to DOJ in which Kenna threatens to file a motion to hold the Forest Service in contempt if it does not comply with Singleton's move to apply the ruling nationwide. "There isn't anything ambiguous about that," Rey said. "There isn't anything unclear about it. There isn't anything the plaintiffs can say it isn't what they asked for."
Several environmental and business groups have already notified the Forest Service of their intention to use Singleton's ruling to appeal categorically excluded projects in various national forests.
The controversy has also caused the Forest Service to revisit plans to issue a rule using categorical exclusions to streamline studies of small oil and gas drilling projects on grasslands and forests where officials do not anticipate negative environmental effects (E&ENews PM, Sept. 12). "The nature of that proposal may change," Rey said. "It seems prudent for these issues to be resolved."
Bid to portray enviros as 'Grinch'?
Heading the list of projects getting the media and public's attention in light of the controversy is the fate of the Capitol Holiday Tree, an 80-foot Englemann spruce that has been selected in the Santa Fe National Forest. Along with the main tree, 65 smaller trees are scheduled to be delivered from there to Washington for use in offices.
But the Forest Service plans to issue a categorical exclusion for the project, meaning there is a chance the tree may not be available until January, let alone for the scheduled Dec. 8 lighting ceremony. The Forest Service last week sent the proposal out for 30 days of public comment, and if no substantial issues are raised and no appeals are filed, the Land of Enchantment can deliver its tree to the West Front of the U.S. Capitol on time. But an appeal could be problematic.
"If an appeal is filed the appeal period will make it not possible for the tree to be delivered until sometime January," Rey said. "There aren't 135 shopping days until Christmas."
Already, New Mexico Sens. Pete Domenici (R) and Jeff Bingaman (D), have written Attorney General Alberto Gonzales and Agriculture Secretary Mike Johanns asking them to intervene and move the project along. "It is very clear that there is nothing preventing the Forest Service from moving ahead with plans to cut down the tree, and I urge the agency to stop looking for impediments where there are none," Bingaman said in a statement last week.
"This problem symbolizes the far-reaching consequences of some environmental lawsuits," Domenici said.
Once again, the environmentalists say the Forest Service is out of bounds. "We think they're trying to change the law," Donham said. "There is a reasonable way to approach this where the public can be involved in projects that might have a significant effect on the environment while letting these minor projects go through."
Already, the chairman of the Senate Forests Subcommittee said he would work to help sidestep Singleton's ruling. "The judge has spoken," said Sen. Larry Craig (R-Idaho). "Congress has spoken. We'll try to speak again in a language he doesn't understand" (Greenwire, Sept. 29).
Forest Service officials said allowing the Tomlinson-Garcia wedding was a mistake. "In this one case, the ranger district did not follow the process," said the agency's Region 5 spokesman, Matt Mathes. "The ranger district did not put this out for public notice and comment. Our highest priority is to comply with the judge's order and so in this case that did not occur."
Mathes said issuing the special use permit was the only known violation of Singleton's order and Bosworth's memorandum.
For her part, Garcia said no Forest Service official mentioned the controversy when she applied for the permit, but the bride said she worried it would not be approved in time for the wedding. "With any permit it can take from short periods of time to weeks or months," Garcia said. "I did anticipate not getting the permit in time."
Sue Exline of the Sierra National Forest said at the time Garcia filed for the permit, there was uncertainty as to whether it was covered by the order. "A wedding doesn't really implement a land and resource management plan," Exline said.
The environmentalists note the wedding occurred without incident, and the Forest Service successfully used a NEPA categorical exclusion without public comment or appeal, proving the agency has adequate authority despite Singleton's order.
"If they let it go forward they are saying they have the authority to make that determination," Donham said. "If you were going to have a million people at a wedding in a place where there might be endangered plants that might require something, but if you're having 100 people in a developed recreation area, of course that doesn't require that kind of environmental study."
Click here to view Singleton's Sept. 16 order.
Click here to view Singleton's July order.