Court supports BLM protest process
April 13, 2023 | View PDF
A federal judge has ruled in support of a Bureau of Land Management effort to restrict bureaucratic delays to timber harvests and fuel reduction projects on BLM lands.
U.S. District Judge Michael J. McShane on March 27th granted summary judgment in favor of the BLM’s 2020 Final Rule eliminating the agency’s protest process which, the agency argued, had resulted in unnecessary bureaucratic delays to timber harvests and fuel reduction projects on BLM-managed lands, including more than 2 million acres of OandC lands in Western Oregon that must be managed on a sustained-yield basis.
The ruling was a response to a lawsuit filed in October 2021 against the BLM and the U.S. Department of the Interior by environmental groups Cascadia Wildlands, Klamath-Siskiyou Wildlands Center and Oregon Wild, which alleged that a BLM timber sale violated both the federal Administrative Procedure Act and the Federal Land Policy and Management Act.
The lawsuit sought to invalidate the 2020 Rule and reinstate what the American Forest Resource Council described as “a loophole in the agency’s public engagement process that allowed groups to unnecessarily stall, delay, or stop forest management projects by simply filing a written objection after the agency’s environmental analyses had been completed, public input had been received, and land management decisions had been made.”
The specific focus of the lawsuit was the approximately 130-acre Mine your Manners Timber Sale, part of the BLM’s Row River Timber Management Project south of Culp Creek.
The plaintiffs argued that the BLM violated the APA by failing to provide a reasoned analysis for the change in policy that resulted in the 2020 Rule, and failing to respond to public comments during the rulemaking process.
Prior to the 2020 Rule, opponents of logging operations could file objections called “paperwork protests,” that often contained hundreds of pages with what forestry interest attorneys described as “frivolous points that had little to do with the work at hand.”
The BLM was then required to formally respond to each point, a costly process that stopped or stalled forest management projects, forestry interest attorneys said.
The BLM’s review of 1,560 timber sale decisions between 2002 and 2017 revealed that 26% of the total volume of those sales were protested, and the average time between advertisement and award of those protested sales was 251 days, McShane noted in his decision.
In some cases, according to the American Forest Resource Council, wildfires have burned forests where “smart forest management” has been planned before the agency could even respond to the protests. In September 2017, the Pickett Hog timber sale in southwest Oregon received 29 protests, including a 250-page protest containing 126 individual protest points, which delayed the project by more than a year.
Before the BLM could complete protest reviews and responses, the Pickett Hog timber sale burned in the Taylor Creek Fire in July 2018.
McShane agreed with the AFRC that the BLM’s rule changes “actually improve public participation by allowing the public to comment on forest projects earlier in the process when public input can have the greatest impact.
He said the opponents’ disagreements with the “BLM’s reasons for changing course” had not been shown to be “legally insufficient.”
McShane also ruled that the environmental groups attempted “to impose a heightened standard on BLM unsupported by case law” in their complaint that the BLM instituted the 2020 Rule without adequate response to public comment.
Sara Ghafouri, an AFRC attorney, in a statement regarding McShane’s ruling: “Under the 2020 Rule, ‘paperwork protests’ can no longer be used and abused after decisions have been made, simply to stall work that helps keep our forests healthy, accessible and less vulnerable to severe fire.
“This decision enables the BLM to meet its mandate to harvest timber on Western Oregon OandC lands while soliciting feedback from the public.”