California ruling affects Flathead Forest work

A long-planned fuels reduction project in the Blankenship area is one of the projects on the Flathead National Forest that has been delayed by a federal court ruling in California.

A total of 13 Flathead projects, most of them small maintenance jobs, were affected by the ruling from U.S. District Judge James Singleton in California's eastern judicial district. Hundreds of similar Forest Service projects have been affected nationwide.

The judge ruled on July 2 that so-called "categorical exclusion" provisions in Forest Service regulations violated the federal Appeal Reform Act. Categorical exclusions are used to allow certain types of projects to proceed without environmental reviews that involve an appeals process.

Singleton issued an order on Sept. 16 clarifying that the July 2 ruling "will not be confined to the Eastern District of California or the Ninth Circuit."

As a result, the ruling became a nationwide issue for the Forest Service.

National forests across the country have since been compiling lists of projects that could be subject to the ruling, forwarding them to the Department of Justice for review.

Joe Krueger, the Flathead Forest's litigation coordinator, has submitted such a list.

"This is a big issue," Krueger said.

While the ruling has not shut down any ongoing projects on the Flathead, it would apply to some projects that have recently been completed and some that were expected to begin soon.

A project that would involve thinning out 830 acres of national forest lands near private property in the Blankenship and Teakettle Mountain area was expected to start this fall. But now that project, approved under a categorical exclusion for fuels reduction work, will be delayed until next year, Krueger said.

To comply with the judge's ruling, the Flathead Forest must publish a public notice on the project for 30 days, allow for public comments, and allow 45 days for any appeals to be filed with the Forest Service's regional office in Missoula. If there are appeals, then the forest has 45 days to respond.

Other projects that the ruling might apply to include a proposed installation of a propane tank as a backup power source for communications equipment on Blacktail Mountain, installation of a utility line, and several small road maintenance projects.

Krueger said the ruling has created uncertainty about the forest's work plan for the coming year, along with practices on the forest that have long been considered routine.

It's unclear whether the ruling somehow applies to firewood and Christmas tree permits.

Krueger says those programs should be valid because they were established under planning rules well before the July 2 ruling, but there are still questions about whether they need to go through a process to comply with the Appeal Reform Act.

Krueger said the forest is consulting with legal advisers, so those questions should soon be resolved.

Reporter Jim Mann may be reached at 758-4407 or by e-mail at jmann@dailyinterlake.com