Close Up Of Gavel Resting On Its Sounding Block

A federal judge has rejected an attempt from 21 Colorado residents and landowners to halt a U.S. Forest Service logging project in the White River National Forest.

In an opinion for the U.S. District Court in Denver last Thursday, chief judge Timothy M. Tymkovich found the Forest Service did not violate the National Environmental Policy Act by failing to account for the logging operation’s effects on climate change, by neglecting harm to fungi, and by declining to prepare a formal environmental impact statement. None of those allegations met the threshold for intervention.

The Upper Fryingpan Project near Leadville would allow logging on 1,631 acres of land and the construction of nine miles of access roads. The removed trees would be turned into forest products and biomass fuel, while the waste will be burned or converted to additional biomass energy. The operation would generally include lodgepole pine trees, while leaving in place aspen and mixed conifer species.

A 2017 assessment from the Forest Service determined the project would have no significant impact on the environment, and on April 30, 2018, the agency announced its plan to proceed. Under federal law, a finding of no significant impact does not trigger the requirement for a formal environmental impact statement.

“This project will provide forest products to local and regional industry while also improving forest resilience and habitat for snowshoe hare, a species that is a key food source for Canadian lynx,” then-District Ranger Karen Schroyer said at the time. The “vegetation management” plan also mentioned prescribed burns and decommissioning of existing roads, which would only be suitable for lynx habitat after 30 years.

The residents and landowners filed a complaint one year later. “They depend on income from tourists visiting for Colorado outdoor recreation,” the filing states. “All of these recreational activities and interests would be impaired for many years. In the Forest Service’s best-case scenario, forest regrowth would take up to a century.”

The plaintiffs alleged the Forest Service violated NEPA by not accounting for increases in greenhouse gas emissions and the project’s effect on climate change. Tymkovich concluded, however, that such analysis was not mandatory unless the consequences were “significant.” 

“Thus, where indirect or cumulative impacts are so remote as to be indiscernible, those impacts need not receive attention from the agency,” he wrote.

While the Forest Service did acknowledge a negligible increase in carbon dioxide emissions, the plaintiffs asserted that the use of logging trucks, the disruption of soil and the production of biomass fuel amounted to “significant cumulative climate impacts.” Tymkovich countered that given the size of the project, the Forest Service's analysis should stand.

The environmental assessment also noted that “there may be less fungal activity in 10 years after clearcut,” which plaintiffs argued was a failure to adequately document the adverse effects on forest fungi. They also claimed the Forest Service’s assertion of an increase in fungi and biodiversity from the project as scientifically unsupported.

“Petitioners are correct that studies in the record refute this contention,” Tymkovich conceded. “But Petitioners are incorrect that every erroneous statement in an agency’s analysis rises to the level of arbitrary and capricious conduct.”

Tymkovich added that the plaintiffs' argument in favor of an environmental impact statement also failed because other courts have allowed projects of similar scope to proceed without one.

John G. Swomley is the Massachusetts-based lawyer who led the lawsuit. According to Aspen Public Radio, his family has a cabin in the Fryingpan Valley.

“There’s literally no one on it, and there are these stands of lodgepole pines that have no undergrowth,” Swomley told the outlet. “It's just like a ghost forest. You can see tall, skinny trees that go on and on forever. It's just magical."

Swomley did not immediately return a request for comment about the District Court’s opinion.

The case is Swomley et al. v. Schroyer et al.

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