Mature trees in the Nantahala National Forest in August 2022. Jack Igelman / Wmforo

The Southern Environmental Law Center, representing five environmental organizations, filed a federal lawsuit last month against the U.S. Forest Service, opposing a proposed timber harvest in the Nantahala National Forest in the far western corner of North Carolina

The site is only 15 acres. But the lawsuit could have dramatic implications for future timber cutting in the region.

Referred to as stand 41-53, along the Whitewater River in Jackson County, the site is part of an area known as the Southside Project. The US Forest Service finalized the scope of the Southside Project in 2019, which includes the timber harvest of trees on 300 acres in 23 separate stands within a 19,000 acre section of national forest land near the Georgia and South Carolina state lines. The average size of each stand is 22 acres.

In all, the Southside Project will use timber prescriptions, such as cutting trees, controlled fire and other techniques to manage the forest.

The legal complaint, focusing on the 15-acre timber harvest, argues that the Southside Project is inconsistent with the U.S. Forest Service’s new plan for North Carolina’s Pisgah National Forest and Nantahala National Forest, which the agency released in February 2023.

“The logging risks destroying many, if not all, of the area’s special ecological values identified by Plaintiffs, the State of NC, and the Forest Service,” said the suit.

According to the suit, logging and road building will damage rare plant and animal habitats and will degrade the scenic quality of the Whitewater River gorge.

The plaintiffs represented by the Southern Environmental Law Center, or SELC, include the Chattooga Conservancy, the Sierra Club, Defenders of Wildlife, MountainTrue, and the Center for Biological Diversity.

Timber harvesting in the forest plan

National forests are required to have land management plans describing the strategic direction for management of forest resources. The Forest Service revises those plans every 15-25 years or when conditions require an update. The management of forest resources was guided by the 1976 National Forest Management Act.

Finalized in February 2023, the Pisgah and Nantahala land management plan and the environmental impact statement for the national forests of Western North Carolina are available online.

The plan sets out a strategy to restore ecosystems and watersheds within the Pisgah and Nantahala national forests. Achieving the plan’s strategies will happen through a range of projects, such as Southside, focused on a broad list of goals from trail building to forest restoration, with input from stakeholders.

The Forest Service intended the Southside Project to provide more early successional habitat — that is, managing the forest to include more grassy openings, shrubs and stands of trees that are less than 20 years old.

The 15-acre site in question is an exceptional patch of forest in a North Carolina designated natural area and within 100 yards of the Whitewater River, a waterway identified by the Forest Service as eligible for inclusion in the U.S. Wild and Scenic River system, said Buzz Williams of the Chattooga Conservancy.

“The Forest Service wants to cut timber on one of the most iconic spots on the Whitewater River,” Williams said. “We’re talking about one of the most exceptional recreational, scenic, and biologically diverse areas in the United States.”

The agency is obligated to manage the forest along the Whitewater River as a wild and scenic river corridor, which limits management options. However, timber harvesting is allowed to occur as long as it does not harm the river's outstandingly remarkable values or degrade its water quality. The wild and scenic corridor extends about one quarter-mile on each side of the river.

“This timber prescription takes it backwards,” said Nicole Hayler, executive director of the Chattooga Conservancy. “The Forest Service has a track record of management activities in eligible areas to basically whittle away at the eligibility.”

Timber harvest OK in special interest area?

North Carolina’s Natural Heritage Program, or NHP, identified the 15-acre stand as “exceptional.” The site is within the state’s Whitewater River Falls and Gorge Natural Area because of its exceptional biological diversity.

NC Natural Areas are sections of private or public land recognized by the state for providing habitat for rare plants and animals. The NHP helps project planners, such as the Forest Service, make decisions that have the most benefit for society and the economy, while having the least ecological damage.

In the Southside Project’s final Environmental Analysis released in 2019, the Forest Service included a response to objections that the project analysis failed to analyze impacts to state natural areas.

The NHP determined that portions of the stand are dominated by white pine, an artifact of previous land use that is not naturally occurring.

According to the NHP, “It would be beneficial to remove the white pines from this stand, and then manage the area after harvest in such a way to restore the natural community” while acknowledging that some areas along the Whitewater River are in excellent condition.

The NHP did not respond to CPP’s interview request.

Following recommendations by the NHP and environmental groups the tract was redesignated as a special interest area, or SIA, under the 2023 Forest Plan. A SIA is among several management areas used by the Forest Service specifying which activities are appropriate for a range of uses, including timber cutting.

Under the previous plan, the tract was within the matrix management area which has the fewest logging restrictions.

SIAs include communities of plants and animals that occupy a small portion of the landscape but contribute significantly to biological diversity. According to the Forest Service, SIAs are not in need of active restoration, unless they improve an endangered species habit, for public safety, or to restore historic wildfire patterns.

The timber harvest prescriptions for the tract “require harvesting much more than white pine,” SELC attorney Patrick Hunter said. “We can say with certainty that the NHP’s request to limit logging to white pine is not reflected in the Forest Service’s final decision.”

Hunter said lands within SIAs are generally unsuitable for timber production.

“The legal issue is whether the Forest Service can move forward with a project authorized under the old plan, even though it's inconsistent with the 2023 Forest Plan,” he said.

Brushy Mountain situation is different

The 15-acre site is not the only controversial patch of forest within the Southside Project. In 2021, CPP reported on a 26-acre parcel of forest on Brushy Mountain, which environmentalists said is an exceptional patch of old-growth forest and provides habitat for the green salamander, a rare species.

“There are much better ways to create forest diversity without cutting irreplaceable old-growth timber,” Williams told CPP in 2021. “The greatest value of our national forests is to protect biological diversity and to manage them to help us adapt to climate change.”

The Forest Service disagreed with objections to harvesting the Brushy Mountain site. A bid was accepted from a private timber company to harvest the trees by November 2026.

The Brushy Mountain section, however, is not included in the recent lawsuit. The site, as well as other sections of the Southside project, comply with both the old plan and the new plan.

“Brushy Mountain needed to be protected as existing old-growth in the new forest plan,” Hayler said. The patch of old growth of Brushy Mountain, however, is not included in the forest’s 265,000 acre old-growth network designated by the 2023 forest plan. “(Its exclusion from the network) reduced our leverage.”

The Chattooga Conservancy supports timber management practices, but believes the opportunity cost of creating young forest is too high in environmentally significant patches of forest, such as Brushy Mountain and tract 41-53.

“There are plenty of areas where the Forest Service could have gone in and created early successional habitat without any controversy,” Hunter said.

“For years, we've been telling them that this particular stand is not one of those areas, because the trade-offs between sacrificing an exceptional ecological community like that just to create run-of-the-mill, early successional habitat are just not worth it.

“To avoid litigation, we brought this case to the Forest Service’s attention multiple times but they have continued to move forward with portions of the Southside Project that are inconsistent with the 2023 Plan anyway.”

Hunter said the Forest Service has 60 days to respond to the complaint. Forest Service spokeswoman Jen Bunty told Wmforo that she could not comment on pending litigation.

Timber harvest lawsuit's implications

Sharon Friedman, moderator of The Smokey Wire, a national forest policy blog, is a retired Forest Service employee who participated in the development of current national forest planning rules and regulations.

Although the lawsuit includes a relatively small parcel of land, Friedman said that the court's ruling could establish legal precedent around the influence of new forest plans on projects initiated and authorized under prior plans.

“The same groups who didn't want certain projects before will still not want them” after a forest plan is finalized, she said. “If they feel strongly enough about them and have the financial wherewithal, they will litigate those projects. That's just the way it works for most of the country; it’s business as usual. “

Litigating forest restoration projects in the Forest Service’s Southern region, however, are less frequent compared to other parts of the country, such as the Northern or Pacific Southwest region. There has been just one forest restoration project litigated in the Southern region which stretches from Texas to Virginia since 2003.

Hunter told CPP this is the first time SELC has initiated litigation against the Nantahala or Pisgah National Forest.

Whether the case is settled inside or outside of court, Friedman said changing an existing agency decision may set a precedent for other projects and other national forests.

According to Hunter of the SELC, the lawsuit seeks to validate the understanding that activities occurring within the national forest must be consistent with the current forest plan.

He noted that the complaint could reinforce existing precedent citing a 2006 decision against the Cherokee National Forest in Tennessee in which the court ruled that a timber harvesting and road building project must be made consistent with a revised forest management plan that went into effect after the projects’ authorization.

The legal action reflects broader concerns about balancing the need for timber harvesting to restore the ecology of the forest while preserving ecologically significant areas and underscores the complexities of managing public lands.

Creating and implementing new forest plans is an enormously complicated process, Friedman said. “The Forest Service is going down this path among all of these competing groups that want different things for the same piece of land. It’s a lot for one process to carry.”

David Whitmire, of the Fish and Wildlife Conservation Council, which represents the interests of fishers and hunters in Western North Carolina, said the lawsuit could, however, slow down forest-restoration work.

“I would rather see money spent on projects rather than lawyers,” Whitmire said. “The Forest Service is having to back up and deal with the lawsuit. It takes away a lot of resources that would otherwise benefit the forest.”

Williams of the Chattooga Conservancy said the lawsuit is intended to “shine a light on this particular timber sale. The law is on our side, we want the people to understand, we want them to be educated, we want them to engage and get involved.”

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Jack Igelman is a contributing reporter with Wmforo. Contact him at [email protected].