| Diamond Lake Ranger District |
| Diamond Lake Ranger District |
SIERRA CLUB LEGAL DEFENSE FUND
July 31, 1996
Todd True 206-343-1526, Mark Hubbard 503-283-6343
PORTLAND...The Ninth Circuit Court of Appeals today ruled that the "Logging without Laws" Rider allows the Forest Service to violate President Clinton's Northwest Forest Plan (Option 9) with impunity. The appellate court held that because Congress created a loophole in the laws for the Forest Service, citizens cannot challenge - and courts cannot review - these timber sales despite harm to green, old-growth forests, watersheds, fisheries, and other wildlife. The ruling comes only one day after the federal government listed the Umpqua cutthroat trout as endangered.
"This is yet another example of the extreme lawlessness allowed under the Clearcut Rider that Congress passed last summer," said Todd True, attorney with the Sierra Club Legal Defense Fund. "By making environmental protection irrelevant for a year, Congress has thrown the validity of Option 9 into question."
Oregon Natural Resources Council and Umpqua Watersheds, Inc., represented by the Sierra Club Legal Defense Fund, challenged the Forest Service's decision to clearcut over 600 acres of old growth forests in the headwaters of the upper North Umpqua River Basin in southwestern Oregon. This watershed provides essential habitat for the imperiled Umpqua River cutthroat trout. It is also an important source of the clear, cold water that makes the North Umpqua River one of the most famous sports fishing areas on the west coast.
"The Forest Service's own expert identified significant environmental harm to water quality and fish habitat," said Mark Hubbard of Oregon Natural Resources Council. "Under the Clearcut Rider, however, the Forest Service can clearcut these ancient forests without considering any environmental impacts."
"Just yesterday, the Umpqua cutthroat trout were listed by the federal government as endangered," continued Hubbard. "The Clearcut Rider allows logging in ancient forests and Umpqua cutthroat trout spawning habitat. This ruling puts the fish at further risk."
The appellate court upheld a December 5, 1995 district court decision. Logging had already begun on some these sales.
The Watchdog, Roughneck, Snog, Pinestrip are 29 mmbf on 630 acres in the Diamond Lake Ranger District of the Umpqua National Forest.
Location:
Headwaters of the North Fork of the Umpqua River and the Clearwater River, both part
of the upper North Umpqua River Basin.
Status:
Should be protected under "Option 9" of President Clinton's Northwest Forest
Plan because additional clearcutting in this watershed will impair water quality
and further imperil the Umpqua River cutthroat trout. The Northwest Forest Plan directs
the Forest Service to protect streams and fish.
Problem:
What resources are at stake:
Why these sales violate the President's Northwest Forest Plan:
What is at issue in this court case:
Oregon District Court Judge Michael Hogan ruled today that the "logging without laws" rider allows the Forest Service to violate President Clinton's Northwest Forest Plan ("Option 9") with impunity.
Judge Hogan ruled that the Forest Service is not accountable under the federal environmental laws for Option 9 timber sales, and that the Forest Service does not even have to follow the advice of its own fisheries expert.
"The court's ruling allows government lawlessness," said Laura Ziemer, an attorney with the Sierra Club Legal Defense Fund.
Judge Hogan ruled that the rider: "bar[s] environmental challenges to Option 9 sales, thereby giving the agency complete discretion, insofar as environmental laws are concerned, in offering and awarding Option 9 sales." Ziemer commented, "This ruling turns back the clock to the days of industrial clearcutting in our public ancient forests."
Oregon Natural Resources Council and Umpqua Watersheds, Inc., represented by the Sierra Club Legal Defense Fund, challenged the Forest Service's decision to clearcut over 600 acres of old growth and mature forests in the headwaters of the upper North Umpqua River Basin in southwestern Oregon. This watershed provides essential habitat for the imperiled Umpqua River cutthroat trout. It is also an important source of the clear, cold water that makes the North Umpqua River one of the most famous sports fishing areas on the west coast. The Forest Service's own expert identified significant Option 9 violations regarding water quality and fish habitat. Judge Hogan's ruling, however, means that the Forest Service can clearcut these headwaters without considering these impacts.
The rider was tacked on to a popular budget-cutting bill that Congress passed this summer. It was heralded as an emergency salvage logging measure to address forest health. "No one imagined that the rider could allow unlimited logging of healthy, old growth forests," said Ziemer.
The Forest Service has said that it will award the sales to the high-bidders next week, and logging could start immediately after the award. The Sierra Club Legal Defense Fund is appealing the court's decision to the Ninth Circuit Court of Appeals.
The outcome of a district court hearing today in Eugene, Oregon, will determine whether the Forest Service will be required to meet any environmental standards when it offers sales of old growth timber on public lands which are subject to President Clinton's Northwest Forest Plan.
In a suit brought by the Sierra Club Legal Defense Fund on behalf of Oregon Natural Resources Council and Umpqua Watersheds, Inc., the two organizations are challenging four timber sales that would clearcut old growth forests in the important upper North Umpqua River Basin. These sales - Watchdog, Roughneck, Snog, and Pinestrip - together would clear 630 acres and produce nearly 29 million board feet of timber from the Umpqua National Forest.
In offering these timber sales, the Forest Service has ignored the advice of its own expert, who told the agency that the sales would degrade streams and impair water quality. The imperiled Umpqua River cutthroat trout, already proposed for listing as an endangered species, would be pushed further towards the brink of extinction by the loss of this important habitat in the upper watershed. This watershed is a key source of clear and clean water on which the cutthroat trout depend.
The decision made with respect to the Watchdog, Roughneck, Snog, and Pinestrip timber sales will decide the fate of many old growth forests now governed under Option 9 of the President's Northwest Forest Plan. The timber industry, which has intervened in the lawsuit, is using the case to launch a broad attack on the Plan. After the Northwest Forest Plan was completed in 1993, most people believe that the wounds opened in the debate over the Pacific Northwest's ancient forests had begun to heal. But a logging rider attached to a popular budget-cutting bill this summer has rekindled the industry's incendiary drive to mine the forests of trees without any consideration to the significant harm to fish, wildlife, and the clean water which forests provide. It is an unveiled attempt to log without laws. If the timber industry has its way, the outcome of this litigation could turn the clock back 30 years, with one glaring difference: the Pacific Northwest contains just a fraction of the old growth it had in the 1960's
What's more, the timber industry wants to remove the citizens' right to stop timbre sales on environmental grounds. It argues that the Forest Service does not have to comply with any environmental standards and that, under the "logging without laws rider," there are no longer any rules to guide stewardship of the land.
Nowhere is this more clear than in the Umpqua National Forest in Southwest Oregon. The Diamond Lake Ranger District, where the Watchdog, Roughneck, Snog, and Pinestrip sales are located, has a long history of disregarding recommendations of the Forest Service's own scientists when it comes to fish and aquatic resources. This case is no exception. When Biological Evaluations by the Umpqua National Forest's top fisheries biologist concluded that the planned clearcutting in the North Umpqua River Basin would harm Umpqua River cutthroat trout and vital aquatic habitat, his warnings were summarily ignored by the Forest Supervisor.
The Umpqua River basin is extremely important as a sports fishery. The Forest Service estimates the value of the Umpqua River fisheries at $36 million annually. The proposed clearcuts and road building threatens both the fish and the people whose livelihood depends on this valuable spots fishery. The Umpqua River was designated by Congress as a Wild and Scenic River partly because of its beautiful clear water. Past clearcutting and road building has already degraded the water quality, and logging more 500 year old trees which measure up to five feet in diameter will add to the destruction of the Umpqua River watershed.
FOR MORE INFORMATION CONTACT:
LAURA ZIEMER, SCLDF (206) 343-7340
DOUG HEIKEN, ONRC (503) 344-0675
MARK HUBBARD, ONRC (503) 223-9001
The Umpqua National Forest plans to cut over 13 million board feet of mature and old-growth forest without giving adequate thought to harm to wild salmon and trout, according to a lawsuit filed in federal courtin Eugene today. The headwaters of the North Umpqua River contain valuable habitat for Umpqua River cutthroat trout which is proposed for protection under the Endangered Species Act. "These timber sales will cause further harm to a watershed already badly damaged by logging, yet these impacts were simply not considered when the Forest Service decided to cut more of our public forests," according to Mark Hubbard of ONRC.
The suit, filed by the Sierra Club Legal Defense Fund on behalf of the Oregon Natural Resources Council was prompted by the consistent lack of any analysis of impacts to fish in timber sales in the Diamond Lake Ranger District of the Umpqua National Forest. Review of the sales by the Forest Service's own biologists concluded: "the professional and scientific basis for this [timber sale] decision is grossly inadequate and unsupported by any data, documentation, literature, or inventory."
"President Clinton signed the logging-without-laws rider a little over a month ago and took away most avenues for citizens to enforce our environmental laws. But with these sales, the Forest Service has turned a deaf ear to its own biologists. We think common sense will win this case because the Forest Service can't ignore the sound advice of its own employees," said Laura Ziemer of SCLDF.
This lawsuit specifically challenges the Pinestrip and Snog Timber Sales in the upper North Umpqua River Basin.
****
The Sierra Club Legal Defense Fund is a national non-profit environmental law organization. It is not part of the Sierra Club.
Following is a memo showing how the USFS Office of General Counsel views the recent court decision on the Umpqua National Forest. Basically it confirms our worst fears-- that we cannot challenge individual timber sales that do not comply with environmental rules of Option 9. It also says that the same rule will probably hold true when it comes to any future challenge of logging rider sales, e.g., Four Gates sale in the Roseburg BLM.
December 7, 1995MEMORANDUM
FOR JACK WARD THOMAS CHIEF, FOREST SERVICE
FROM: Michael J. Gippert, Assistant General Counsel, Natural Resource Division
SUBJECT: Decision in Oregon Natural Resources Council v. Thomas, No. 95-6272 (D.Ore.), December 5, 1995
ISSUE
Judge Hogan has dismissed challenges to four timber sales on the Umpqua National Forest, holding that Section 2001(d) and Section 2001(k) of the 1995 Rescissions Act bars such environmentally-based challenges. The decision rejects some of the government's interpretations of the Rescissions Act and is the first judicial interpretation of section 2001(d). The decisions rationale may also be applicable to salvage sales under Section 2001(b).
DISCUSSION
The complaint, filed September 1, 1995 and later amended, challenged four timber sales on the Umpqua National Forest, alleging violations of NFMA, APA and the Forest Service viability regulation 36 CFR 219.19. Judge Hogan, who has NFRC v. Glickman and other Rescissions Act cases before him, dismissed the complaint for lack of subject matter jurisdiction holding that only the Rescissions Act was applicable to the sales.
Section 2001(k)
The Roughneck and Watchdog sales were awarded in 1994, prior to the Rescissions Act. The government argued that these did not meet the requirements for the Rescissions Act because, while they are within the geographic area of "Section 318" and were offered before enactment of the Rescissions Act, they were not enjoined or otherwise held up at the time of enactment.
The court rejected the government's argument, holding that Section 2001(k) applies to all sales within the geographic area of "Section 318" offered or awarded prior to July 27, 1995, regardless of whether the sales were enjoined or otherwise held up at the time of enactment. The court held that Section 2001(k) mandates the award and release of these sales "notwithstanding any other provision of law."
Section 2001(d)
The Pinestrip and Snog sales were advertised and awarded after the enactment of the Rescissions Act, and are within the area governed by the April 13, 1994 Record of Decision for Amendments to Forest Service and Bureau of Land Management Planning Documents Within the Range of the Northern Spotted Owl ("Option Nine"). All the parties agreed that the two sales were governed by Section 2001(d) which grants the Secretary of Agriculture authority to award timber sales "notwithstanding any other law" and which deems the required sale documents comply with all environmental and natural resource laws (Section 2001(i)). Plaintiffs made several creative arguments to try to avoid the Section 2001(i) legal hurdles to their challenges:
1. Plaintiffs argued that the "notwithstanding any other law" provision in Section 2001(d) applies only to the award of the timber sale, and that they were challenging and seeking to enjoin the "operation" of the sale, not the decision to award the sale. Judge Hogan rejected the differentiation between the award and operation of the sale and held "Section 2001(d) does not permit environmentally-based challenges to the 'operation' of otherwise immunized sales."
2. Plaintiffs argued that because the "deemed to satisfy" provision of Section 2001(i) applies to documents required by Section 2001, any documents not required by Section 2001 should not be considered "deemed to satisfy" environmental and natural resource laws. Plaintiffs note that Section 2001(d) does not require any documents, and thus argue that any documents promulgated are subject to the environmental laws. Judge Hogan rejected this argument, holding that "[t]he only reasonable construction of section 2001(i) is that it suspends environmental challenges while preserving non-environmental challenges to Option 9 sales."
3. Plaintiffs argued that even if the Rescissions Act suspends environmental laws, it does not prohibit challenges under the Administrative Procedure Act (APA). The court rejected this argument, noting that the APA is merely a vehicle for carrying to court challenges based on substantive statutes, and that Sections 2001(d) and 2001(i) give the agencies complete discretion and bar environmental challenges to Option 9 sales. "Thus, absent an independent, substantive body of law, the APA does not provide reviewable subject matter."
Possible Implications for Judicial Review of Salvage Sales Under Section 2001(b)
Although the decision does not directly apply to the salvage sale provisions of the Rescissions Act (Section 2001(b)) much of the decision's rationale regarding Section 2001(d) is applicable to the salvage sales. In particular:
1. The court's interpretation of the "deemed to satisfy" direction in Section 2001(i) is applicable to both Section 2001(d) and Section 2001(b) sales.
2. The court's rejection of the argument that the APA provides independent grounds for review of environmental considerations is applicable to Section 2001(b) salvage sales because the "arbitrary and capricious" standard of review for Section 2001(b) sales is the same terminology used in the APA. Plaintiffs in other cases are arguing that the "arbitrary and capricious" standard of review provides independent grounds for review of environmental considerations.
This decision is not inconsistent with the only judicial interpretation of Section 2001(b), Kentucky Heartwood v. U.S. Forest Service, No. 95-225 (E.D. Ky. 11/27/95) which held that an "extremely deferential standard of review" applied to Section 2001(b) sales and that no federal environmental or natural resource laws applied, but which did not go so far as to say environmentally-base challenges are barred.
Jeff Handy handled the case for OGC from our Portland Office. The Umpqua National Forest and Sue Zike of the PNW RO provided excellent support for the government's litigation effort.
SUMMARY
Judge Hogan has dismissed challenges to four timber sales on the Umpqua National Forest, finding that Section 2001(k) and Section 2001(d) bar environmentally-based challenges to these sales.
cc: J.Gilliland, A.Kennedy, J.Lyons, M.Gaede, G.Reynolds, R.Nelson, D.Hessel