[00:00:02] Speaker 04:
Good afternoon, everyone.

[00:00:03] Speaker 04:
Thank you for arranging your schedules to accommodate the hearing this afternoon.

[00:00:11] Speaker 04:
And so we will take up Oregon Wild versus United States Forest Service.

[00:00:19] Speaker 04:
Who's the appellant?

[00:00:21] Speaker 04:
Okay, Mr. Stiefel.

[00:00:30] Speaker 04:
Thank you.

[00:00:39] Speaker 04:
You may proceed.

[00:00:41] Speaker 02:
Good afternoon, Your Honors, and may it please the Court.

[00:00:43] Speaker 02:
My name is Oliver Stiefel.

[00:00:44] Speaker 02:
With me at council table is Aaron Hogan.

[00:00:47] Speaker 02:
Together we represent plaintiff's appellants, Oregon Wild and Wild Earth Guardians.

[00:00:51] Speaker 02:
I'd like to reserve five minutes for rebuttal, and I'll watch the clock.

[00:00:54] Speaker 04:
Thank you.

[00:00:56] Speaker 02:
We're here on a challenge to three logging projects in South Central Oregon that authorized between 3,000 and 16,000 acres of commercial thinning.

[00:01:05] Speaker 02:
All three, which were approved within about a six-month time period,

[00:01:09] Speaker 02:
were authorized pursuant to a categorical exclusion or CE from full review under the National Environmental Policy Act.

[00:01:17] Speaker 02:
The core question presented in this case is this.

[00:01:20] Speaker 02:
The National Environmental Policy actor, NEPA, requires federal agencies to disclose and fully analyze the environmental significance of their actions.

[00:01:30] Speaker 02:
Can the Forest Service unilaterally exempt from full NEPA review large-scale commercial logging operations without any analysis or disclosure of their environmental significance?

[00:01:41] Speaker 02:
The answer to this question is clearly no.

[00:01:43] Speaker 02:
Ruling in favor of the Forest Service here would create an enormous loophole that is fundamentally at odds with NEPA and the CE regulatory regime.

[00:01:53] Speaker 02:
Now, appellees don't want this question to be reviewed.

[00:01:55] Speaker 02:
Instead, they would have this case resolved based on whether they've thrown up enough barriers to prevent Wilde from having it stay in court.

[00:02:04] Speaker 02:
Under their question presented, it's not did they comply with the law, but can they get away with it?

[00:02:09] Speaker 02:
Now, Wilde has presented this court with two pathways to reach the conclusion that CE6 cannot authorize the scale of commercial logging operations approved by these projects.

[00:02:22] Speaker 02:
First is the interpretation question, and that's the interpretation of 36 CFR 220.6 E6.

[00:02:30] Speaker 02:
And second is the authority question, and that is if

[00:02:35] Speaker 02:
CE6 does permit functionally unlimited commercial logging operations, then did the Forest Service exceed its authority as such?

[00:02:45] Speaker 02:
Turning first to the interpretation question and by way of background, categorical exclusions by definition are reserved for categories of activities predetermined in notice and comment rulemaking to have no individually or cumulatively significant environmental impacts.

[00:03:02] Speaker 02:
Now the Forest Service never made and indeed could not have made such a determination with respect to logging operations on the scale of these projects.

[00:03:12] Speaker 02:
Indeed, the only instances in which the Forest Service and Congress have deemed it appropriate to approve such activities for a CE is when the activities are small in scale.

[00:03:26] Speaker 02:
And I would point this court to the recent decision in the Friends of the Inyo case, where there was a question about whether the legal violation at issue there constituted harmless air because of the project size there, which was less than about an acre of disturbance.

[00:03:42] Speaker 02:
And here, the South Warner Project authorizes 16,000 acres of commercial thinning operations.

[00:03:50] Speaker 02:
For years, the Forest Service only applied CE6 to non-commercial projects.

[00:03:55] Speaker 02:
And it is against this backdrop that under no reasonable interpretation of the language of CE6 can it be applied to the scale of the projects at issue here.

[00:04:05] Speaker 02:
Now, of course, this court recently addressed a CE6 case in the Mountain Communities decision.

[00:04:14] Speaker 02:
But that was a different question presented.

[00:04:16] Speaker 02:
That case dealt with the size of trees, not the size of projects.

[00:04:20] Speaker 04:
Where do you find the size limitation in the statute?

[00:04:25] Speaker 02:
In the statute itself, it requires, the lodestar is significance, your honor, and so at some stage in the decision-making process, the agency must address the question of significance, and that's what never happened here.

[00:04:40] Speaker 03:
Where are you getting significance from?

[00:04:42] Speaker 02:
42 USC section 43322C says that federal agencies are required, and this is the,

[00:04:54] Speaker 02:
The statute, NEPA has been recently amended by Congress, and so this is the 22 version.

[00:05:01] Speaker 02:
But the statute says that federal agencies must prepare a full environmental impact statement for major federal actions significantly affecting the quality of the human environment.

[00:05:10] Speaker 02:
So that's where significance is imported into the regime.

[00:05:15] Speaker 04:
Well, so I'm reading 40 CFR 1508.

[00:05:21] Speaker 04:
IE that says categorical exclusion means category of actions that an agency has determined and normally does not have a significant effect on the human environment.

[00:05:37] Speaker 02:
So Your Honor, that's the new version of the CEQ regulations and the version of the CEQ regulations that was enforced at the time this CE was adopted in 1992 did not have that term normally.

[00:05:50] Speaker 02:
So it's categorical in that it says no individually or cumulatively significant environmental impacts.

[00:05:59] Speaker 02:
It doesn't include that modifier normally.

[00:06:02] Speaker 02:
So it's an absolute requirement.

[00:06:05] Speaker 03:
And so in 1992, when the... Does the fact that a NEPA was amended, does that change the statute of limitations argument or?

[00:06:15] Speaker 02:
I don't believe so, Your Honor.

[00:06:19] Speaker 02:
You know, of course,

[00:06:20] Speaker 02:
On the statute of limitations question is only presented in our issues two and three, which we submit this court need only reach if it holds that the Forest Service's interpretation of CE6 is reasonable, and that is that it permits functionally unlimited commercial logging operations.

[00:06:38] Speaker 02:
And so we don't get to the statute of limitations question unless that predicate determination has been made.

[00:06:45] Speaker 03:
Why is that the case?

[00:06:46] Speaker 03:
It seems like you're challenging CE6 for lack of having an acreage limitation.

[00:06:52] Speaker 02:
We think at step one, which is presented as issue one in our brief, there is a reasonable interpretation of CE6.

[00:07:00] Speaker 02:
And that is that it doesn't permit the scale of these projects commercial logging operations.

[00:07:04] Speaker 02:
And so if this court finds in our favor on that point, it doesn't need to reach the question of whether or not the Forest Service actually

[00:07:12] Speaker 02:
exceeded its authority in applying CE6 to these projects.

[00:07:16] Speaker 03:
So what would be the acreage limit under your reading of CE6?

[00:07:21] Speaker 02:
This court doesn't need to find an explicit acreage limitation, and I would direct this court's attention to the epic case that we cite in our brief, where a similar question was presented in terms of whether that CE at issue, which is the D4 CE, which applied to road repair and maintenance activities, could authorize an extensive commercial logging operation.

[00:07:41] Speaker 02:
And this court held that

[00:07:42] Speaker 02:
While in some circumstances, CED4 could apply to the activity at issue there, roadside hazard tree logging, a project of this scale was beyond the pale.

[00:07:53] Speaker 03:
The court didn't stop because of a significant limitation.

[00:07:57] Speaker 03:
They just rule that the trees would never get to the road by at 200 feet away.

[00:08:01] Speaker 03:
So that's completely different.

[00:08:03] Speaker 02:
And also the scale of the project, your honor.

[00:08:05] Speaker 02:
And, and, and I think that's clear, you know, at least two district courts who have interpreted epic have explicitly found the scale of the project to be determinative in that case.

[00:08:14] Speaker 03:
I thought it was just the fact that it doesn't meet the CE at all, since the trees are not going to touch the road.

[00:08:21] Speaker 02:
The court underscored the fact that CEs are designed to only apply to activities with a minimal effect and insignificant effect.

[00:08:29] Speaker 03:
So I think that that was at least underlying the court's... So what's the limiting principle you want us to read into CE6 then?

[00:08:35] Speaker 03:
Scale.

[00:08:36] Speaker 03:
But what is it in this case?

[00:08:38] Speaker 02:
In this case, I don't think you need to specifically set forth a scale limitation, and instead, again, just merely hold that these projects' scales, the commercial logging operations authorized by these projects between 3,000 and 16,000 acres of commercial thinning, is unreasonable.

[00:08:56] Speaker 04:
How do we measure that, though?

[00:09:01] Speaker 02:
with a fulsome evaluation of the text structure, purpose, and history of the statute in which the Forest Service and Congress have always deemed it necessary for these types of activities to have some kind of limiting principle.

[00:09:16] Speaker 02:
And so in all of the other examples, the Forest Service had said that you can't go beyond a certain amount of acreage.

[00:09:23] Speaker 02:
And the Forest Service now is just reinterpreting this old CE

[00:09:26] Speaker 02:
that it found doesn't have any acreage limitation and applying it to a set of activities that it never intended to in 1992.

[00:09:33] Speaker 01:
You do agree that the CE6 does not have a limitation as to size?

[00:09:39] Speaker 02:
The only limitations expressly in CE6 are the prohibition on the use of herbicides and the prohibition on no more than one mile of road construction.

[00:09:49] Speaker 02:
But we think that this court, when it reviews CE cases all the time, has imported limiting principles that aren't from the plain language of the statute.

[00:09:58] Speaker 02:
And this is what happened in EPIC, but also in the West case.

[00:10:02] Speaker 02:
So there, the CE in question allowed for approvals in changes in access control.

[00:10:08] Speaker 02:
In theory, that could apply to the activity in question, which was a new interchange.

[00:10:13] Speaker 02:
But this court looked at the kind of size and magnitude of the new interchange and said, it's not a reasonable fit under a CE.

[00:10:20] Speaker 03:
And this is- Why isn't the one mile of road limitation a sufficient limiting principle here?

[00:10:26] Speaker 03:
It means that they can't go pretty far, any far from existing roads, right?

[00:10:33] Speaker 02:
There's, I think, because there are so many existing roads, that's why it's not a limitation.

[00:10:38] Speaker 03:
So then that would suggest that it would be not a significant impact.

[00:10:43] Speaker 02:
Well, the Forest Service never made that determination in the rulemaking, Your Honor.

[00:10:48] Speaker 02:
And we think that the record here clearly shows that the level of disrepair of some of these roads is going to require reconstruction that is on par with new construction.

[00:11:01] Speaker 02:
And so we've cited a number of times in our brief on that point.

[00:11:05] Speaker 03:
I guess my overall problem is if you ask, if we agree with you there's an acreage limit, but you won't tell us what it is, what are we supposed to say to the district court?

[00:11:13] Speaker 02:
that commercial thinning operations authorized in these projects is based on an unreasonable interpretation of CE6.

[00:11:21] Speaker 02:
But what is the reasonable one then?

[00:11:25] Speaker 02:
I don't think that this court needs to answer that question explicitly, which is exactly what happened in the EPIC case.

[00:11:31] Speaker 02:
And so what's going to happen is that it could go back to the Forest Service.

[00:11:36] Speaker 02:
The Forest Service can try to repropose some type of project.

[00:11:40] Speaker 02:
And the explicit bounds of CE6

[00:11:42] Speaker 02:
will get teased out.

[00:11:44] Speaker 02:
More likely, Your Honor, is that the Forest Service will go back to doing what it's always done, which is rely on other CEs, including the new suite of Congressional CEs that apply to these exact type of activities, which do have their own limits.

[00:12:00] Speaker 02:
So I do just want to make clear for Your Honors, you know, kind of the two-pronged approach that we're proposing here, which is

[00:12:08] Speaker 02:
We think that under no reasonable interpretation can CE6 be applied to these activities, but if this court disagrees and holds in favor of the Forest Service there, then that triggers our as applied challenge.

[00:12:20] Speaker 02:
And so this court needs to look at whether the Forest Service in

[00:12:25] Speaker 02:
authorizing a CE that doesn't have any limits exceeded its authority because there's a clear conflict with NEPA in the implementing regulations.

[00:12:35] Speaker 02:
And so back to Your Honor's point about the statute of limitations, that's the Forest Service's principal defense there, but we think that corner posts really kind of

[00:12:45] Speaker 02:
rewrites the rulebook, so to speak, and indeed appellees seem to have walked away from their principal theory of their statute of limitations defense that the clock started running on the statute of limitations in 1992.

[00:12:57] Speaker 02:
And instead, they point to these two other projects, one from 2005 and one from 2014, that they allege is the source of injury to plaintiffs, Oregon Wild and Wild Earth Guardians.

[00:13:08] Speaker 02:
Respectfully, that's not the case.

[00:13:10] Speaker 02:
So in 2014, the Cordova's project in New Mexico.

[00:13:14] Speaker 03:
Don't you think we should just remand that all back to just your court?

[00:13:17] Speaker 03:
Because that seems like a factual question.

[00:13:21] Speaker 02:
i don't think so your honor because this is a record review case and uh... discord is reviewing all of the issues to know though uh... the district court doesn't uh... sit in any better position than this court to review those issues if the district court does do any fact-finding this court will uh... oh that district court no deference really in the fact of whether or not organ was injured seems like a pretty factual question injured in two thousand five percent some other year

[00:13:50] Speaker 02:
The record is complete.

[00:13:51] Speaker 02:
This is an APA record review case.

[00:13:53] Speaker 02:
So there's no additional fact finding that would occur.

[00:13:56] Speaker 02:
So this court is well equipped to address these questions.

[00:14:01] Speaker 02:
And I would note, we really think that it's in the interest of judicial economy for this court to resolve this question now.

[00:14:09] Speaker 03:
Sorry.

[00:14:09] Speaker 03:
So if we remanded on that question, you're saying that just your court can't take any new evidence on whether or not Oregon Well was injured back in 2005 or the other year?

[00:14:19] Speaker 02:
Unless the agency found some way to reopen the record, the record was complete and deemed certified as complete by the Forest Service.

[00:14:31] Speaker 02:
This is a prototypical record review case where the record is closed and this court is in the same position as the district court to review the facts and the law.

[00:14:40] Speaker 02:
And just quickly on my point about judicial economy and why it makes sense for this court to take it up now, I would note for the court that these projects are soon to be implemented.

[00:14:51] Speaker 02:
So there hasn't been any implementation yet, but the Forest Service is accepting bids for the Baby Bear project on Monday.

[00:15:01] Speaker 02:
And we'll then be auctioning the bear wallow project on October 14th.

[00:15:07] Speaker 02:
So implementation is imminent here.

[00:15:09] Speaker 02:
And we think that it would make sense for this, this court to resolve the questions as opposed to sending it back.

[00:15:14] Speaker 02:
And then we're, we're in kind of a interesting injunction quagmire.

[00:15:19] Speaker 04:
When was your client injured?

[00:15:22] Speaker 02:
With the approvals of these projects in 2021 and 2022.

[00:15:26] Speaker 04:
Okay.

[00:15:34] Speaker 03:
If there are no further questions, just one quick factual question.

[00:15:37] Speaker 03:
You mentioned the one thing that's unique about this case is it's commercial thinning.

[00:15:40] Speaker 02:
That's correct.

[00:15:41] Speaker 03:
So what, what happens?

[00:15:42] Speaker 03:
You usually what's traditionally the four surface does it themselves?

[00:15:45] Speaker 03:
The thinning themselves?

[00:15:47] Speaker 02:
Uh, it's a distinction between pre-commercial thinning, which happens just, um,

[00:15:51] Speaker 02:
hand thinning, so no heavy machinery or equipment doesn't require any new roads.

[00:15:57] Speaker 02:
So that's the pre-commercial versus the commercial thinning, which involves heavy machinery, the reconstruction and use of hundreds of miles of roads.

[00:16:07] Speaker 02:
It's just a different kind of magnitude of impacts.

[00:16:10] Speaker 02:
And that's really not in dispute on this record.

[00:16:14] Speaker 04:
Okay.

[00:16:14] Speaker 04:
All right.

[00:16:14] Speaker 04:
You may reserve the remainder of your time.

[00:16:16] Speaker 04:
Thank you.

[00:16:28] Speaker 00:
Good afternoon, Your Honours, may it please the Court, Ben Richmond for Federal Defendants.

[00:16:37] Speaker 00:
These challenge projects, Your Honour, are crucial to improving forest health and to mitigating catastrophic wildfires on the Fremont-Wyanema National Forest.

[00:16:45] Speaker 00:
The Court should affirm the District Court's judgment as to both of plaintiff's claims.

[00:16:49] Speaker 00:
On plaintiff's first claim, the project's carefully limited commercial thinning treatments fall within Categorical Exclusion 6.

[00:16:56] Speaker 00:
And on plaintiff's second claim, plaintiff's challenge of the promulgation of Categorical Exclusion 6 is time barred.

[00:17:02] Speaker 00:
I want to start with plaintiff's first claim.

[00:17:05] Speaker 00:
Just as this court held in mountain communities, Categorical Exclusion 6 is not unlimited.

[00:17:10] Speaker 00:
there are four key distinct limits on Categorical Exclusion 6.

[00:17:15] Speaker 00:
First, Categorical Exclusion 6 only covers timber stand and or wildlife improvement activities.

[00:17:22] Speaker 00:
Second, Categorical Exclusion 6 only permits one mile of low standard road construction.

[00:17:28] Speaker 00:
Third, Categorical Exclusion 6 bars herbicide use.

[00:17:32] Speaker 00:
And fourth, Categorical Exclusion 6 imposes an extraordinary circumstances test.

[00:17:37] Speaker 00:
where the Forest Service must determine that there are no extraordinary circumstances that could potentially cause significant impacts and thereby require a different level of NEPA review.

[00:17:47] Speaker 00:
Project acreage is not one of those limits, Your Honor, but acreage is not equivalent to impacts.

[00:17:53] Speaker 00:
The acreage limits plaintiffs are pointing to in other categorical exclusions are simply pools of projects that the Forest Service elected to study when it promulgated categorical exclusions.

[00:18:04] Speaker 00:
But the Forest Service has made findings of no significant impact for much larger projects.

[00:18:09] Speaker 00:
To determine impacts of a project, you really need to look at the project's activities.

[00:18:14] Speaker 00:
So the question before the Court, Your Honor, is it's not whether Categorical Exclusion 6 is unlimited.

[00:18:19] Speaker 00:
It's deciding whether the projects here fit within Categorical Exclusion 6's existing limits.

[00:18:25] Speaker 00:
the projects do and let me take you through those different restrictions in turn.

[00:18:30] Speaker 04:
Is it the Forest Service's position that there's no size limit at all on the amount of acreage that can be subject to commercial thinning?

[00:18:41] Speaker 00:
There is no specific acreage limit, but the Forest Service is very meaningfully constricted here in terms of different projects because of those forest limits, including timber stand and or wildlife.

[00:18:52] Speaker 00:
The fact that these projects must be timber stand and or wildlife habitat improvement activities.

[00:18:59] Speaker 00:
Also, mountain communities held that road limits, the one mile of low standard road construction was a meaningful limit on project size that's binding precedent for mountain communities.

[00:19:10] Speaker 00:
But you really, I think you should look at the actual vegetation treatments here.

[00:19:15] Speaker 00:
The project's management direction, there are limits on the vegetation treatments here in terms of canopy cover percentages.

[00:19:22] Speaker 00:
The basil area per acre, only a certain mass of trees can be taken these projects and a certain mass of trees must be remaining on each acre.

[00:19:30] Speaker 00:
The vegetation treatments are limited by the diameter of trees, by the type of tree, by the age of tree to guard old growth.

[00:19:37] Speaker 00:
This is all at 2 ER 76 to 78, 88 to 89 and 116.

[00:19:43] Speaker 00:
In addition, the Forest Service conducted a number of different biological evaluations, carefully looking at different resource categories, and used those biological evaluations to develop project design criteria, pages and pages of essentially environmental protections designed to minimize effects to wildlife, soils, riparian areas, heritage, vegetation, range, botany.

[00:20:08] Speaker 00:
fisheries, it's all those limits which ensure that this is a timber stand and or wildlife habitat improvement project.

[00:20:16] Speaker 00:
Plaintiffs don't engage with those meaningful limits on the project here.

[00:20:20] Speaker 00:
They just continue to classify this as some sort of logging, large-scale logging project.

[00:20:25] Speaker 00:
And when we look at the record and the limits on the project, that isn't the case.

[00:20:29] Speaker 00:
As I mentioned, these projects meet the road standards and it's under mountain communities binding precedent that the one mile of low standard road construction is a meaningful limit on acreage size.

[00:20:41] Speaker 00:
These projects do not use herbicides.

[00:20:43] Speaker 00:
And finally, the extraordinary circumstances test here is very important.

[00:20:47] Speaker 00:
The Forest Service always ensures, based on the criteria promulgated in its regulations to comply with CEQ regulations, it looks at all the different resource categories, the different factors to make sure that a project does not

[00:21:03] Speaker 00:
present certain impacts that could potentially raise significant impacts and require a different level of NEPA analysis.

[00:21:10] Speaker 00:
So plaintiffs do not challenge the significant circumstances test here and I think that's very noteworthy.

[00:21:16] Speaker 00:
What plaintiffs are really trying to do here and

[00:21:19] Speaker 00:
As we talked about, as Your Honours were asking questions about earlier, plaintiffs seem to be trying to ask the court to rewrite Categorical Exclusion 6 to essentially infer some sort of totally unspecified acreage limitation for commercial thinning.

[00:21:35] Speaker 00:
But that argument, I think, runs into two main barriers.

[00:21:39] Speaker 00:
The first is mountain communities.

[00:21:42] Speaker 00:
It's binding precedent under mountain communities that CE6, quote, unambiguously allows commercial thinning.

[00:21:49] Speaker 00:
So plaintiffs are saying they're objecting to the total amount of commercial thinning, but the plain language of categorical exclusion six, including its examples,

[00:21:58] Speaker 00:
It contains no acreage limitation.

[00:22:00] Speaker 00:
So here, the first canon of construction should be the last.

[00:22:04] Speaker 00:
The words of the regulation here are unambiguous, and there's no acreage limit.

[00:22:08] Speaker 00:
And plaintiffs can't write an acreage limit into categorical exclusion six based on policy.

[00:22:15] Speaker 01:
May I ask you a question?

[00:22:16] Speaker 01:
One of the reasons that you can use category limit six is because that doesn't require an impact statement or an impact assessment or environmental assessment, correct?

[00:22:28] Speaker 00:
Correct, all categorical exclusions would not require a full EIS.

[00:22:32] Speaker 01:
So what kind of study is it that you do to determine that CE6 actually applies?

[00:22:37] Speaker 00:
So I would refer the court to the decision memos here, which they do a number of different biological evaluations.

[00:22:44] Speaker 00:
They develop project design criteria.

[00:22:46] Speaker 00:
And those decision memos lay out how the project activities here, including those limited vegetation treatments I mentioned, limitations on canopy cover percentages,

[00:22:55] Speaker 00:
the limitations on basal area per acre, the diameter of trees, the type of trees, different type of treatments, the Forest Service determines in its decision memo that based on all of the record before it that the project falls within categorical exclusion six.

[00:23:13] Speaker 03:
Can I move on to the corner post corner post question?

[00:23:18] Speaker 00:
Certainly.

[00:23:19] Speaker 03:
So the government says that because of a 2005 project and another project, the injury occurred back then.

[00:23:26] Speaker 03:
That seems like a factual question.

[00:23:28] Speaker 03:
Is that something so we should we need to remand that back to the district court?

[00:23:32] Speaker 00:
I think the government's position here is that a remand isn't necessary, that all of the facts and the record are available at this time for the court to decide the question of law under corner post, that this claim is untimely.

[00:23:42] Speaker 00:
So let me lay out our corner post argument.

[00:23:45] Speaker 00:
The Supreme Court in corner post, it lays out a rule that it calls straightforward.

[00:23:49] Speaker 00:
A claim first accrues under section 2401A when a plaintiff has a complete and present cause of action.

[00:23:55] Speaker 00:
A plaintiff has a complete and present cause of action when they suffer an injury from final agency action, or they've suffered an injury basically sufficient to press their claim in court.

[00:24:07] Speaker 00:
Now plaintiff's challenge to the promulgation of categorical exclusion six, it's very broad.

[00:24:13] Speaker 00:
It's a challenge essentially to the level of, as I understand it, the level of NEPA analysis that was done for the promulgation of categorical exclusion six as to commercial thinning, what they call commercial logging, of any scale.

[00:24:27] Speaker 00:
And they're asking also for very broad,

[00:24:29] Speaker 00:
relief on their promulgation challenge.

[00:24:32] Speaker 00:
They're asking for injunctive relief and declaratory relief that would essentially bar the Forest Service from continuing to use Categorical Exclusion 6 in the future as applied to any type of commercial thinning project.

[00:24:45] Speaker 00:
So the government's position here is that plaintiffs suffered injuries sufficient to press their claim and causing their claim to accrue under Section 2401A when the Forest Service applied Categorical Exclusion 6 to commercial finning and forests in which the plaintiffs here had concrete interests.

[00:25:02] Speaker 00:
So let me take you through those two examples of the application of CE6 that we think caused the claim to accrue.

[00:25:08] Speaker 00:
So the first is

[00:25:09] Speaker 00:
the 2006 application.

[00:25:12] Speaker 00:
The Forest Service applied CE6 to commercial thinning on the Fremont-Winema National Forest.

[00:25:17] Speaker 00:
That's the forest in which these projects are all in, these three projects.

[00:25:21] Speaker 00:
Plaintiffs have long-standing interest in the Fremont-Winema.

[00:25:24] Speaker 00:
They regularly participate in the NEPA process for the different projects on the Fremont-Winema.

[00:25:29] Speaker 00:
Did they enter in the case back then in 2005?

[00:25:33] Speaker 00:
So I actually don't have the full record of administrative comments for that project in 2006.

[00:25:40] Speaker 00:
But I do want to clarify that it should be undisputed from the record that the Forest Service did apply Categorical Exclusion 6 to commercial thinning.

[00:25:50] Speaker 03:
And I would just point- Let me ask, if we remanded it to district court, can the district court have access to all these records to find out whether or not Oregon Wilde appeared in the 2006 case and whether or not they were actually injured by it?

[00:26:02] Speaker 00:
Yeah, I think potentially the administrative record could be supplemented, but I think just the fact that, I mean, we, in this case, I think, you know, Oregon Wild has showed it has long-standing interest in the Fremont Wynema, and, you know, the decision memo is clear that it's using Categorical Exclusion 6,

[00:26:21] Speaker 03:
We don't know the state of Oregon wild.

[00:26:24] Speaker 03:
I mean, did it exist back then?

[00:26:26] Speaker 03:
Same mission.

[00:26:29] Speaker 03:
Like all this is outside of the record.

[00:26:31] Speaker 03:
So I just don't know how we could make that decision here.

[00:26:34] Speaker 00:
Well, I think the decision memos here for the 2006 project, the Jack and Rock Meadows project, it's in the record at 2ER, 281 and 82.

[00:26:42] Speaker 03:
No, I have no problem with the decision of minimum six, but we just don't know about the state of Oregon Wild back then.

[00:26:48] Speaker 04:
Well, it's not only that, but I mean, suppose Oregon Wild did suffer injury in 2006 and 2014.

[00:26:58] Speaker 04:
Why would that bar a claim arising from a new injury, the injuries that occurred

[00:27:05] Speaker 04:
the approval of these three projects?

[00:27:08] Speaker 00:
So for two reasons, Your Honor.

[00:27:09] Speaker 00:
First is because the scope of the promulgation challenge is so broad here.

[00:27:13] Speaker 00:
It's not challenging specific types of commercial thinning projects in the promulgation challenge.

[00:27:19] Speaker 00:
The plaintiffs here are challenging, and based on their relief, they're challenging essentially any type of commercial thinning authorized under Categorical Exclusion 6 for forever borrowing the Forest Service

[00:27:30] Speaker 00:
from continuing to apply categorical exclusion six to commercial thinning, just as it did in 2006, in 2014, and also in 2020, the Blue Mile project, which plaintiffs didn't challenge, but that was a 130,000 acre project that relied on CE6 to authorize commercial thinning that the plaintiffs didn't challenge.

[00:27:48] Speaker 04:
The second- I didn't see why, with respect to independent projects where they have independent injuries, they could allege, why not bringing suit in an earlier time

[00:28:00] Speaker 04:
for that injury, bars a later injury that occurs.

[00:28:05] Speaker 00:
And so I think I would point, Your Honor, to Section 2401A.

[00:28:08] Speaker 00:
2401A, it says, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.

[00:28:20] Speaker 00:
So it's the first accrual, the first time they were injured.

[00:28:23] Speaker 04:
My question is, is this one right of action, or is this multiple rights of action?

[00:28:28] Speaker 00:
So I think it applies to the right of action here, the claim here.

[00:28:33] Speaker 00:
And the claim here is the very broad promulgation challenge.

[00:28:38] Speaker 04:
Are they barred, in your view, from an as-applied challenge?

[00:28:41] Speaker 00:
No, they aren't.

[00:28:42] Speaker 00:
And to the extent your honor is concerned about future CE6 applications and being able to enforce the limitations which have been laid out in the mountain communities and which I talked about before, plaintiffs have every right to continue to challenge applications of CE6 in the future.

[00:28:59] Speaker 00:
Plaintiffs are savvy litigants here.

[00:29:01] Speaker 00:
And just talking to the policy interests about corner post,

[00:29:05] Speaker 00:
You know, the government interest in repose, its interest in continuing to be able to apply Categorical Exclusions 6 to commercial thinning, just as it did in 2006, and just as it did in 2014.

[00:29:17] Speaker 00:
I think that predominates over this very belated, essentially facial challenge to CE6, which I essentially see as a collateral attack on mountain communities.

[00:29:26] Speaker 00:
You know, mountain communities was very clear about what the limits for Categorical Exclusion 6 were.

[00:29:32] Speaker 00:
There were the limits for timber stand and our wildlife habitat improvement.

[00:29:37] Speaker 00:
There were the limits about roads, about herbicides, and also extraordinary circumstances is another limit.

[00:29:43] Speaker 00:
Plaintiffs are just trying to get around that and facially attack Categorical Exclusion itself and try to stop future applications of CE6.

[00:29:56] Speaker 00:
I'll just say we do recognize, Your Honors, that in light of intervening Supreme Court precedent, the Court has discretion.

[00:30:06] Speaker 00:
And if the Court decides that the best course is remand, we understand that the Court may take that action.

[00:30:12] Speaker 00:
It's just on these facts, the administrative record before the Court, we think there's a very reasonable way to resolve this case that shows that this claim, the facial challenge to C-6 is time barred.

[00:30:24] Speaker 00:
I'll also just briefly talk about remedy.

[00:30:28] Speaker 00:
Remedy, it's an equitable determination here.

[00:30:31] Speaker 00:
And so at minimum, if the court rules against the Forest Service, project authorizations as to non-challenge activities should stay in place.

[00:30:42] Speaker 00:
And I mention that, Your Honor, is just because of the really dire need for active management on the forests right now.

[00:30:48] Speaker 00:
As we've shown in the biological evaluations for these project areas, the legacy of the bootleg fire in Oregon, the forest is just under tremendous stress.

[00:30:59] Speaker 00:
And time and time again, it's really this type of active management which is so crucial in being able to mitigate the risk of catastrophic wildfire.

[00:31:07] Speaker 00:
And that's why C6 is so important to the Forest Service.

[00:31:10] Speaker 00:
And we ask that the court should please exercise their equitable discretion in developing a remedy.

[00:31:16] Speaker 03:
If we remanded to the district court for the corner points question that wouldn't stop anything though, right?

[00:31:23] Speaker 00:
No, it would not and just I'll talk about implementation of the projects the baby bear Project the smallest which is only 3,000 acres that the notice for sale did go out for baby bear but we understand that we're under a 30-day notification requirement based on a case management order in the district court and

[00:31:41] Speaker 00:
and before the project, 30 days before a project was implemented, we understand that we'll have to notify plaintiffs of that.

[00:31:48] Speaker 00:
There is a sale for bear wallow, which is tentatively scheduled for October.

[00:31:55] Speaker 00:
But again, this is about as we pass through this fire season, as the Forest Service works to try to get the current fires under control, we want to keep these projects in the pipeline to be able to continue to do this type of active forest management.

[00:32:10] Speaker 00:
If there, unless there are any remaining questions from the panel, for these reasons, the judgment of the district court should be affirmed.

[00:32:17] Speaker 00:
Thank you.

[00:32:18] Speaker 04:
Thank you very much, counsel.

[00:32:20] Speaker 04:
Mr. Giffel.

[00:32:33] Speaker 02:
Thank you, your honor.

[00:32:35] Speaker 02:
Judge Collins, in response to your question about kind of the degree of environmental review that has occurred here, what happens is for the agency to be able to use a categorical exclusion, it needs to, during the rulemaking process, take the comprehensive evaluation of environmental impacts.

[00:32:54] Speaker 02:
And that's what did not happen here in 1992.

[00:32:57] Speaker 02:
So my friend

[00:32:58] Speaker 02:
is talking about the project-level review that happens.

[00:33:01] Speaker 02:
But that's a very narrow and circumscribed review on the theory that all of those environmental impacts have already been studied at the time of rulemaking.

[00:33:10] Speaker 02:
And that's what never happened here.

[00:33:12] Speaker 02:
So one glaring example is that when an agency reviews a project-specific CE, it doesn't look at all at cumulative impacts.

[00:33:21] Speaker 02:
we think that that's glaring here because of course all three of these projects are on the same forest were authorized within six months of one another and indeed two of the projects share a border but the agency at the project level review never evaluated the cumulative impacts of those projects that's what's supposed to happen in 1992 that's what never happened on the question of accrual

[00:33:43] Speaker 02:
There doesn't need to be any additional fact-finding here because it's clear on the face of the record that the Meadows project from 2005 is not an example of the Forest Service applying CE6 to commercial thinning.

[00:33:59] Speaker 02:
That's an example of the Forest Service using its historical practice of stacking CEs, which was the issue in the Friends of the Inyo case, where

[00:34:07] Speaker 02:
If there was a set of activities that didn't fall neatly under a single CE, the forest historically used to stack multiple CEs.

[00:34:16] Speaker 02:
Of course, this court ruled that that was unlawful.

[00:34:18] Speaker 02:
And that's what the Meadows Project is an example of.

[00:34:21] Speaker 02:
So not only did the Forest Service rely on CE6, it also relied on CE10, which at the time authorized up to 1,000 acres of commercial thinning operations for fuels reduction activities.

[00:34:34] Speaker 02:
And the project, the Meadows Project, was only 990 acres.

[00:34:37] Speaker 02:
far from any injury causing application of CE6, it's actually an example of the Forest Service using stacked CEs.

[00:34:46] Speaker 02:
So plaintiff's cause of action certainly didn't accrue in 2006.

[00:34:49] Speaker 02:
To your point, Judge Wardlaw, I completely agree that

[00:34:54] Speaker 02:
We have a brand new as applied challenge, even setting aside the 2005 application.

[00:34:59] Speaker 02:
And this is, I think, consistent with this court's decisions in CBD versus Salazar that we cite in our brief, and also the Northwest Environmental Advocates case, the Neweah case, where we have these old regulations promulgated in the 70s.

[00:35:15] Speaker 02:
And this court has green lit as applied challenges

[00:35:20] Speaker 02:
More than 30 years later.

[00:35:21] Speaker 02:
So, of course, there were other applications of those old regulations, but this court permitted new as applied challenges.

[00:35:29] Speaker 02:
I respectfully disagree with my friend that this is somehow a facial challenge.

[00:35:32] Speaker 02:
We've been clear all along that we're bringing a substantive as applied challenge based on these three projects.

[00:35:38] Speaker 02:
We're not saying that CE6 is facially invalid.

[00:35:41] Speaker 02:
There are many lawful applications of CE6.

[00:35:43] Speaker 02:
including applying it to non-commercial activities which the Forest Service did for 30 years until it reinvented its new application here.

[00:35:55] Speaker 03:
I see it as a facial challenge too because you're saying that C6 needs to have an acreage limit.

[00:36:01] Speaker 02:
We're saying that the acreage authorizations in these three projects between 3,000 and 16,000 acres is beyond any reasonable interpretation.

[00:36:10] Speaker 02:
of CE6.

[00:36:11] Speaker 03:
So the Forest Service could in theory... But that's your challenge one, but I thought your challenge two is that CE6 itself was promulgated unlawfully because it doesn't follow the NEPA, whatever the authorizing statute is.

[00:36:24] Speaker 02:
We've still anchored our as applied challenge on these three projects.

[00:36:28] Speaker 02:
So we're saying that CE6 is unlawful as applied.

[00:36:31] Speaker 02:
Yeah, that's claim one, right?

[00:36:33] Speaker 02:
That's claim two.

[00:36:35] Speaker 02:
So I'm missing something.

[00:36:38] Speaker 02:
Claim one, we allege that under no reasonable interpretation can CE6, 36 CFR, 220.6 E6 be applied to these projects.

[00:36:46] Speaker 02:
And our claim two is that if CE6 allows for functionally unlimited commercial logging operations, then CE6 is unlawful as applied to these projects.

[00:36:58] Speaker 02:
So they're both anchored on these projects.

[00:37:01] Speaker 02:
And again, it's not a facial challenge because

[00:37:03] Speaker 02:
There are many lawful applications of CE6.

[00:37:07] Speaker 01:
One other question I have.

[00:37:08] Speaker 01:
Council talked about a 30-day window that they've got to get 30-day notice to you before they can do something.

[00:37:13] Speaker 01:
What does that do for you?

[00:37:16] Speaker 02:
In theory, Your Honor, it would provide the parties sufficient time to tee up a preliminary- To file something else?

[00:37:23] Speaker 02:
Schedule.

[00:37:24] Speaker 02:
Right.

[00:37:25] Speaker 02:
Okay.

[00:37:27] Speaker 02:
see my time is has expired so we respectfully request this court reversed the judgment of the district court and hold unlawful and set aside the projects commercial logging operations thank you very much.

[00:37:37] Speaker 04:
Thank you.

[00:37:37] Speaker 04:
Oregon wild versus U.S.S.

[00:37:41] Speaker 04:
is submitted and this session of the court is adjourned for today.