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Ruling could limit forest activities

Alex Miller
Crews removing harmful highway traction from Black Gore Cree on Vail Pass have stopped worked because of a judge's ruling on National Forest policy.
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EAGLE COUNTY ” Chances are you’ll still be able to cut a Christmas tree in the local forest this year. It’s just going to take a whole lot more paperwork on the part of local U.S. Forest Service officials to make it happen.

That’s because a federal judge in California recently made a ruling that’s effectively grounded all uses of the national forest typically allowed under so-called “categorical exclusion” rules.

That includes things like Christmas-tree cutting, mushroom-gathering and other permits for activities ranging from horseback riding to skiing.



Local ski areas won’t be affected, but the ruling could keep one California ski area ” Mountain High near Los Angeles ” from opening on time.

Locally, a project to remove sediment from Black Gore Creek near Vail Pass has been put on hold because of the ruling. At Copper Mountain, construction of a new half-pipe just above the base area has also been scuttled, at least temporarily.

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The categorical exclusion rule exists to allow certain non-controversial projects to go forward without public comment or the ability to appeal.

The Black Gore Creek project is an example of how the Forest Service would allow a private contractor to come in to perform work that’s a seemingly obvious public good ” without going through the public comment process. But now, all such exclusions will be subject to the comment and appeal rule – even Christmas tree cutting.

It all stems from a lawsuit filed by a consortium of environmental groups in 2003 against the U.S. Forest Service. The consortium included California’s Earth Island Institute, the Sierra Club and Heartwood in Illinois and Indiana.



According to Jim Bensman of Heartwood, the original lawsuit filed in 1999 stemmed from a belief that the Forest Service was issuing categorical exclusions to projects that should really have a comment and appeal process.

At the time, the only categorical exclusions that were allowed appeal were timber sales, and the consortium won a settlement requiring such public input on 10 other kinds of projects.

“It was things like oil and gas projects, off-road vehicles, things like that,” Bensman said. “It was never suggested that things like mushroom hunting or Christmas trees should be subject to comment and appeal.”

But the Forest Service reneged on the settlement in 2003, Bensman said, removing timber sales from the comment requirement. So the consortium sued again.

They won. But when Federal District Judge James K. Singleton ruled on the matter in July, he essentially swept all categorical exclusions into the same pile, making all of them subject to comment and appeal.

And that’s why, this year, Christmas tree cutting in the White River National Forest can’t proceed until the public has a chance to weigh in.

“We hope to have Christmas trees available by the end of November,” said Wendy Haskins, a planner with the White River National Forest in Glenwood Springs. “But we have to get public comment, issue a decision and then the public will have appeal rights to that decision.”

Playing politics?

Jim Maxwell, a regional Forest Service spokesman in Denver, said the ruling will create a “tidal wave” of administrative headaches.

But environmental groups say the Bush Administration, through the Forest Service, is trying to create public outrage by going far beyond what the law requires.

“They’re playing games to convince the judge or congress to not require them to allow public participation on anything,” Bensman said.

“The Forest Service is using scare tactics to avoid doing the right thing,” said Matt Kenna of the Western Environmental Law Center in Durango.

Currently, the Forest Service is asking the judge to stay, or lift, the ruling, which would effectively put the more lax rules in place regarding public comment, Bensman said.

In opposing the stay, Kenna wrote the court that he has repeatedly told the Forest Service that minor activities are not affected by the ruling, and offered to work out a solution, but the Forest Service never responded to his calls or letters.

“They refused to talk,” Bensman said. “Instead they spend all this time in the press saying what a horrible ruling it is, but no time whatsoever talking to us to arrive at something reasonable.”

For its part, the Forest Service is adhering to the letter of the law. Last month, it suspended the permit for cutting the U.S. Capitol’s “People’s Holiday Tree” from the Santa Fe National Forest in New Mexico.

The Associated Press and Summit Daily News contributed to this story.

Alex Miller can be reached at 949-0555, ext. 615, or amiller@vaildaily.com.

Vail Daily, Vail, Colorado


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