Logging ruling lends weight to state's strategy

Friday, January 3, 2003

By KATHIE DURBIN, Columbian staff writer

Does the federal Endangered Species Act apply to logging practices on state and private land?

Oregon says no. But Washington says yes.

That's why Washington has so far dodged a federal ruling like the one a judge issued last week saying Oregon's top forestry official may be held legally liable for impacts to threatened salmon from high-risk logging practices.

In her Dec. 23 ruling, U.S. District Judge Anna J. Brown said Oregon State Forester James Brown may be sued for approving logging operations that allegedly harm threatened Oregon coastal coho salmon.

Oregon's attorney general, joined by two timber industry associations and heavily forested Tillamook County, argued that the state is not bound by the federal ESA in regulating logging on state and private lands.

The state also argued that the 11th Amendment to the U.S. Constitution shields states from lawsuits filed under federal laws to overturn state regulations.

Judge Brown, in a strongly worded ruling, rejected those arguments and denied the state's motion to dismiss the suit.

"The ESA imposes a general obligation on all 'persons' to avoid causing" harm to listed species, she wrote. "This prohibition extends to governmental entities and makes them liable in the same manner as private parties."

Patti Goldman of the public interest law firm Earthjustice, who is representing plaintiffs in the Oregon case, said the ruling should give pause to those who want to weaken Washington's 18-month-old Forests and Fish Agreement.

"We have heard some in the industry would like to backtrack on Forests and Fish," she said. "I think the decision in Oregon reinforces their exposure and should encourage them to look at strengthening stream protection rules."

The Oregon plaintiffs, four environmental groups, seek a court order declaring that the state forester, by continuing to approve clearcut logging operations on certain high-risk sites, has caused harm to threatened coho salmon. The merits of that argument will be argued before the judge later.

The suit specifically challenges clearcutting in steep areas of Northwest Oregon where landslides could reach coho salmon habitat and along small and medium-sized streams that flow into larger coho streams.

Such a lawsuit is unlikely in Washington, Goldman said.

That's because the state's Forests and Fish Agreement, negotiated by the Department of Natural Resources and the state's major timber companies, was specifically designed to fend off lawsuits under the Clean Water Act and the Endangered Species Act.

"The state of Washington did assume it had liability and wanted to get ahead of the curve by coming up with new forest practice rules that would minimize their exposure," Goldman said.

"When they negotiated the rules, they negotiated them with the idea of meeting the requirements of the Clean Water Act and ESA," DNR spokesman Todd Myers agreed.

The state's new stream protection strategy, which applies to 8 million acres of private land and 2 million acres of state-owned land, went into effect July 1, 2001.

Washington environmentalists walked away from the negotiations that led to the agreement and later denounced the stream buffer rules as inadequate. But Goldman said it's clear Washington has taken a more responsible approach to regulating steep-slope logging near fish-bearing streams.

"On the highest-risk sites, a lot less logging is going on," Goldman said. "It's not a panacea, but the new rules . . . deter a lot of the most egregious logging."

Reviews required

Steep-slope logging near streams can release sediment that buries spawning gravels and fills pools fish use for resting. It can also topple trees that stabilize stream banks.

The new Washington rules state that before a timber company may clearcut steep, landslide-prone slopes ---- generally those greater than 65 percent, within the inner gorges of river canyons or in headwall areas near stream headwaters ---- it must conduct a full review under the State Environmental Policy Act.

The only way a company can avoid such expensive and time-consuming reviews is to produce a report by a certified geotechnical expert saying the logging will not deliver sediment to the waters of the state.

However, Washington has not yet taken the required steps to get the federal stamp of approval for its strategy, which remains largely untested.

That process is just getting under way, said Debora Brown-Munguia, the DNR employee who is in charge of federal compliance.

"We don't have a plan laid out yet," she said. "We are looking at all our options."

The state recently hired a consultant to prepare an environmental impact statement, Brown-Munguia said, but it has not yet decided whether to write a habitat conservation plan that would allow logging to proceed with safeguards to protect listed salmon and steelhead statewide.

Becky Kelly of the Washington Environmental Council said the Forests and Fish Agreement is far from ideal. "There is more scrutiny," she said. "Does it do what is needed to restore healthy populations of salmon? No. It does not provide some of the safeguards that are needed, especially for some small streams."

Oregon timber industry spokesmen have downplayed the significance of the Dec. 23 ruling. The Washington Forest Protection Association, a coalition of industrial timberland owners, could not be reached for comment.