Prove your humanity

A federal judge has agreed in part with a lawsuit filed by an environmental group to stop clearcutting in the Wayne National Forest in southeastern Ohio. He also agreed in part with the U.S. Forest Service. The decision means the government will have to be more specific in its logging decisions, but leaves the door open to its plan to clear cut in the forest. 

The ruling, issued Thursday by Chief Judge Algenon L. Marbley of the U.S. District Court for the Southern District of Ohio, gives the Ohio Environmental Council 21 days to file an additional brief.

At issue is the Sunny Oaks Project, proposed by the Forest Service in 2018, which spans 25,000 acres of the Wayne National Forest. The stated goals are to create a young, brushy forest, a new crop of oak trees, and contribute to the local economy through commercial timber harvests. The Project includes logging on 2,700 acres, including 1,600 acres of clearcutting, or cutting down nearly all the trees in that part of the forest. 

The Ohio Environmental Council filed suit in 2021 alleging that the Forest Service’s approval of the Project violated the National Environmental Policy Act (NEPA) and the National Forest Management Act for several reasons, including failing to adequately study the project’s environmental impact. 

Protecting an endangered bat

The National Forest Management Act of 1976 requires national forests to have a forest plan. The 2006 Wayne Forest Plan includes a standard to maintain 12 trees per acre of  species that provide roosting habitat for the federally endangered Indiana bat. These include trees with “loose bark” like white oaks. According to the Forest Service, the Sunny Oaks Project area currently fails to meet this requirement. Given that it could not meet the standard, the Ohio Environmental Council alleges that by approving the Project, the Forest Service violated the Forest Plan, and therefore the National Forest Management Act. 

However, Judge Marbly disagreed. “The Forest Service considered the impact of the Project on Indiana bat habitats and reasonably concluded that the impact is minimal,” he wrote in the ruling. He found that the Forest Service satisfied the Forest Plan by retaining other “loose bark” species like shagbark and shellbark hickories.

The ruling agrees and disagrees with OEC

In 2018, the Forest Service conducted an “Environmental Assessment” of the potential biological impacts of the Project, and issued a “Finding of No Significant Impact (FONSI).” In it, the Forest Service explained that the Sunny Oaks Project did not warrant a more extensive study called an Environmental Impact Study (EIS). It explained that the scope of timber harvests in the Project is only 1% of the Wayne. Plus, it would take place over twenty years. 

The Ohio Environmental Council argued, though, that this would be the largest timber project in the Wayne Forest in several decades and could lead to an irretrievable loss of white oak trees.

The Council argued that the decision not to conduct an EIS violated the National Environmental Policy Act(NEPA) because it was “arbitrary and capricious.”

Judge Marbly disagreed, and said that decision was not arbitrary and capricious. 

Still, he ruled that the Forest Service violated NEPA, because it didn’t outline specific enough plans for regenerating oak trees, while moving forward with timbering plans.

The Forest Service explained that it would assess the size, species and health of the trees. 

“The Forest Service has not provided any quantifiable criteria for assessing oak regeneration, either before or after a harvest,” Judge Marbly wrote. “Instead, the Project relies on vague quantitative triggers, like “enough” oak regeneration or a “need” for more.”

“The Court is left to speculate,” he continued. Marbly ruled that the Forest Service harvest approach on oak regeneration was in violation of NEPA. 

Marbly has given the Ohio Environmental Council 21 days to file an additional brief outlining remedies to this violation.

What about that argument about underground fungal networks?

The OEC argued the Forest Service failed to consider how some timber harvests impact the underground fungal networks that connect plants and fungi. The Environmental Council claims that after a timber harvest, oak trees could struggle to regenerate because the mycorrhizal network associated with maple and tulip trees are likely to take over. 

The Environmental Council raised this issue during a Forest Service comment period, but Judge Marbly said OEC did not “raise that issue properly during the mandatory objection process,” and dismissed the mycorrhizal argument.