Prove your humanity

An environmental group is suing to stop the U.S. Forest Service from moving forward with a project that would clear-cut 1600 acres in the Wayne National Forest, about two hours southwest of Pittsburgh. The case was heard this week in the U.S. District Court for the Southern District of Ohio in Columbus.

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The Sunny Oaks Project, which spans 25,000 acres of the Wayne, was first proposed in 2018 by the Forest Service to create young, brushy forest and grow a new crop of oak trees. The project has a preference for white oak, and aims to contribute to the local economy through commercial timber harvests.

In its lawsuit, the nonprofit Ohio Environmental Council claims the project will destroy older oak trees and is unlikely to regrow new oaks, and that it is a violation of the Wayne’s 2006 Forest Plan

The Importance of Oaks

Oak trees, especially white oaks, are used for things making furniture, and barrels for bourbon, an important industry in this region. Oaks are considered an ecological powerhouse, producing acorns that many birds, bears, and other species rely on, and hosting hundreds of species of insects.  

But a report by the White Oak Initiative, a cooperative project of industry and forestry groups, finds that white oaks could decline significantly in the next 10 to 15 years, and largely disappear from American forests in the coming decades.

The report cites a variety of reasons for this, including climate change, invasive insects and diseases, making it more difficult for oak saplings to become fully-grown trees. 

The White Oak Initiative also points to a lack of proper forest conditions that white oaks need to grow. Young oaks establish their roots in the shade of taller trees but need sunlight to grow larger. Historically, fire opened the canopy allowing sunlight onto the forest floor, but that was largely eliminated with European settlement of the area.

How The Sunny Oaks Project Proposes to Help

The Project includes logging 2,700 acres of the Wayne, with 1,600 acres of clear-cut, which means cutting everything down to open up the forest floor to more sunlight. 

The Forest Service has declined interviews about the project because of the lawsuit.  

According to an agency video, the clearcut would mean all the trees would be starting back from zero age, and that would give oaks an advantage to grow over other species in this area of the forest. 

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The Ohio Environmental Council Lawsuit

Oak regrowth after clear-cutting only works if the oak trees already have well-established roots, according to OEC attorney and public lands director Nathan Johnson, who says he is concerned because the Forest Service doesn’t have the data to know that.

The problem is that this tree is really disappearing,” Johnson said. “It responds very poorly to clear-cutting, to other forms of heavy industrial timbering. And something’s got to be done to protect this tree, whether just straight up preserving it or finding better ways, more scientifically-based ways to harvest some of it.”

In federal court in Columbus on Monday, Johnson argued before Chief Judge Algenon Marbley that the agency isn’t following its own forest plan for the Wayne. The plan requires the agency to maintain 12 trees with loose bark per acre, like oaks and hickories, to provide habitat for endangered Indiana bats.

“Unfortunately, the Forest Service wanted to move clear-cuts and other cuts of similar nature so badly that they just took the standard and essentially threw it in the garbage can, something that’s highly unlawful under any sort of way of looking at the situation,” Johnson said in an interview on the courthouse steps after the hearing.

Nathan Johnson, attorney and public lands director of the Ohio Environmental Council, outside the U.S. District Court for the Southern District of Ohio, in Columbus. Photo: Julie Grant/ Allegheny Front

Johnson argued in court that the Forest Services’ decision to clear-cut and not maintain those 12 trees per acre was “arbitrary and capricious.” 

Judge Marbley then turned to Department of Justice attorney Paul Freeborne, who represented the Forest Service, and asked why the agency didn’t change the forest plan to avoid these claims. 

Freeborne argued that in the project area, there aren’t that many trees with loose bark, and he said the agency has the flexibility to not follow the standard. 

A unique argument based on fungal networks

The Ohio Environmental Council brought up one issue in this case that’s not gotten much attention in the courts before, arguing that the Sunny Oaks Project would destroy what it calls the “wood wide web” in sections of the Wayne National Forest.

The wood wide web refers to the mycorrhizal fungal network that communicates with trees underground. Johnson argued that the importance of these networks is now well-established science. 

“These mycorrhizal networks are especially sensitive to clear-cutting, so if the agency goes in and clear-cuts a white oak ecosystem, it’s destroying not only the trees but the soil that these trees depend on,” Johnson said. 

DOJ’s Freeborne responded that the Ohio Environmental Council brought this issue up at the wrong time in the case, that on a legal technicality, the court should not consider this issue when deciding the case.

In closing, Judge Marbley noted that in his many years as a federal judge, he’d never gotten to consider trees in a case, and expressed his appreciation. He said that a decision should be issued in 10 to 14 days.