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Federal Court Halts Pacific Northwest Logging

January 25, 2006

On January 9, 2006, the United States District Court for the Western District of Washington enjoined hundreds of timber sales in Washington, Oregon, and California. Northwest Ecosystem Alliance v. Rey, 2006 WL 44361, *7 (W.D. Wash. 2006). District Court Judge Marsha Pechman’s decision follows an order she issued in August 2005, ruling that a 2004 Supplemental Environmental Impact Statement issued by the Departments of Interior and Agriculture (Departments) failed to comply with the National Environmental Procedures Act (NEPA), 42 U.S.C. § 4321 et seq.Northwest Ecosystem Alliance v. Rey, 380 F. Supp.2d 1175, 1181 (W.D. Wa. 2005). The decision will likely impact over 140 timber projects.

The court’s decision is the latest development in fifteen years of legal controversy surrounding old-growth logging in the Pacific Northwest. In 1994, the Departments adopted the Northwest Forest Plan (the Plan) in response to litigation involving old-growth logging and the spotted owl. The Plan covers over 24.5 million acres of Forest Service and Bureau of Land Management land in Washington, Oregon, and California. In 1994, the Departments issued a record of decision (ROD) which adopted mitigation measures, known as “Survey and Manage” standards, to provide protection to approximately 400 species in land covered by the Plan. The Survey and Manage standards required the Departments to (1) manage known sites of certain species; (2) conduct surveys prior to ground disturbing activities; (3) conduct surveys to find high-priority sites for hard-to-find species; and (4) conduct regional surveys to gain information about poorly known species. 380 F. Supp.2d at 1181-83.

Judge Pechman’s recent ruling has its roots in prior litigation over a 2001 ROD issued by the Departments which streamlined implementation of the Survey and Manage standards. Both environmental and timber industry groups challenged the 2001 ROD. See Douglas Timber Operators v. Rey, Civ. No. 01-6378-AA (D. Or.). The timber groups and the Departments reached a settlement whereby the Departments would prepare a new supplemental EIS evaluating the option of eliminating the Survey and Manage standards and relying instead on Bureau of Land Management and Forest Service programs. The Departments issued a supplemental EIS in January 2004 which evaluated three options: (1) retaining the Survey and Manage standards; (2) modifying the Survey and Manage standards; and (3) eliminating the Survey and Manage standards.

A ROD issued in March 2004 resulted in the litigation which is the source of the recent injunction. In the 2004 ROD, the Departments eliminated the Survey and Manage standards. Plaintiff environmental groups filed suit, alleging that the adoption of the 2004 ROD violated NEPA, the National Forest Management Act (NFMA), 16 U.S.C. § 1600 et seq., and the Federal Land Policy and Management Act (FLPMA), 43 U.S.C. § 1701, et seq. 380 F. Supp.2d at 1182-84.

On August 1, 2005, Judge Pechman partially granted the plaintiffs’ motion for summary judgment and ruled that the 2004 supplemental EIS recommending the elimination of the Survey and Manage standards failed to comply with NEPA. Id. at 1180-81. Judge Pechman first ruled that the SEIS failed to comply with NEPA. Her ruling was based in part on her finding that whether species covered by the Survey and Manage standards would actually be protected by alternative discretionary Forest Service and BLM programs was “an assumption based upon uncertain future events that there is no guarantee will occur.” Id. at 1189-90. Judge Pechman next ruled that the Departments failed to fully analyze whether certain species would be adequately protected by the Plan’s reserve system. Id. at 1190-94. Finally, Judge Pechman ruled that the Departments failed to adequately support their conclusion that the Survey and Manage standards hindered hazardous fuel treatment programs. Id. at 1194-97. The Court did not reach plaintiffs’ NFMA and FLPMA claims.

After providing an opportunity for further briefing and argument, Judge Pechman granted the plaintiffs’ request for injunctive relief on January 9, 2006. 2006 WL 44361, *7. Based on her prior ruling that the 2004 ROD failed to comply with NEPA, Judge Pechman granted the plaintiffs’ injunctive relief on two grounds. First, Judge Pechman ruled that an injunction was appropriate in order to avoid “irreparable harm to the species” covered by the Survey and Manage program because nearly half of the timber sales that relied upon the 2004 ROD included mature or old growth forest. Id. at *4-5. Second, Judge Pechman ruled that declaratory relief alone was inadequate because the Departments had “auctioned for award timber sales that were never surveyed or buffered under the 2001 ROD even after this Court ruled [that] the 2004 SEIS was illegal.” Id. at *5. Thus, an injunction was appropriate because there was inadequate remedy at law. Id. Therefore, Judge Pechman set aside the 2004 ROD and reinstated the streamlined Manage and Survey standards in the 2001 ROD. Judge Pechman also enjoined all timber projects that did not comply with the 2001 ROD because “the environmental harm that may result from projects that do not comply with the 2001 ROD outweighs the costs and burdens on Defendants.” Id. at * 7.

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