Bush gets in a few last whacks at Northwest forests

A last minute change in the rules for Oregon forests will be hard to undo, though the environmental lawsuits have already begun.
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A last minute change in the rules for Oregon forests will be hard to undo, though the environmental lawsuits have already begun.

The Bush Administration'ꀙs sturdy hewers of environmental regulation aren'ꀙt just resting on their axes as their shift draws to a close.

On the last day of 2008, the Bureau of Land Management adopted the Western Oregon Plan Revision (abbreviated as WOPR and pronounced 'ꀜwhopper'ꀝ), which will change the rules for 2.6 million acres of forest that the BLM manages in western Oregon.

Environmentalists, who expected this, argue that WOPR will cut the legs out from under the Northwest Forest Plan, which was adopted 15 years ago to end the legal wars over the northern spotted owl and its old-growth habitat. WOPR changes the management of 'ꀜa huge chunk of the lands that are covered by the Northwest Forest Plan,'ꀝ says Earthjustice attorney Kristen Boyles. The Forest Plan assumes that owls and other critters can find refuge in the Oregon forest managed by the BLM. If less of the BLM land can be used as habitat, then the odds of survival for owls and other critters drop. The BLM plan revision 'ꀜundermines'ꀝ the whole Forest Plan, Boyles says.

She also points out that scrapping old growth protection on BLM land in southern Oregon and northern California was on the wish list that the timber industry gave the Bush Administration and that Earthjustice used the Freedom of Information Act to uncover in 2003. Reducing habitat protect for the northern spotted owl and the marbled murrelet were keys. The industry also wanted the administration to dump the Forest Plan'ꀙs Aquatic Strategy designed to protect salmon; and to get rid of the requirement to 'ꀜsurvey and manage'ꀝ for the survival of fungi, invertebrates and other species protected by the Forest Plan. Federal attempts to grant these other wishes haven'ꀙt worked. 'ꀜWOPR'ꀙs the last thing on the table,'ꀝ Boyles says.

That is not, of course, why the feds have said they'ꀙre revising the western Oregon plans. The BLM'ꀙs press release stresses that approving the plan revision: complies with the Endangered Species Act and all other federal laws; doesn'ꀙt constitute approval of any specific timber sale; doesn'ꀙt permit the cutting of any old or mature timber just yet; will contribute some $75 million a year and 1,200 jobs to Oregon county economies; will permit logging at less than half the level that would be the sustainable maximum; is governed by the Oregon and California (O&C) Lands Act of 1937, which requires sustainable harvest.

The agency also implies that the O&C Act requires a certain flow of timber from the BLM lands. That is, indeed, what language in one section of the act says, but federal courts have ruled that the legislation as a whole does not force the BLM to ignore environmental laws in order to achieve a certain harvest level. 'ꀜThe timber industry brought that case and lost,'ꀝ Boyles says. 'ꀜThey lost that challenge and BLM knows they lost that challenge.'ꀝ (In 1993, upholding an injunction against old-growth logging on BLM land until the agency complied with the National Environmental Policy Act, the 9th Circuit found that 'ꀜthe plain language of the [O&C] Act supports the district court's conclusion that the Act has not deprived the BLM of all discretion with regard to either the volume requirements of the Act or the management of the lands entrusted to its care. . . . [W]e cannot allow the Secretary [of the Interior] to 'utilize an excessively narrow construction of its existing statutory authorizations to avoid compliance [with NEPA].'")

The industry wasn'ꀙt faring much better in, and wasn'ꀙt likely to win, the suit that the Bush Administration settled under terms that obligated it to do WOPR. (The suit had already been dismissed twice.)

Arguably, the administration'ꀙs crafting of a recovery plan for the northern spotted owl was designed to make that possible. Certainly, it was designed to make more logging possible. A summary from the draft environmental impact statement for WOPR explains that the BLM prepared the document because "(1) the BLM plan evaluations found that the BLM has not been achieving the timber harvest levels directed by the existing plans, (2) there is an opportunity to coordinate the BLM management plans with new recovery plans and re-designations of critical habitat currently under development.'ꀝ In other words, BLM wanted to cut more timber, and it thought the spotted owl recovery plan then in the works would let it.

"BLM had a very unusual level of influence in this recovery plan, as documented in testimony I sent to the House Natural Resources Committee,'ꀝ says Dominick DellaSalla of the Ashland-based National Center for Conservation Science & Policy. 'ꀜThis is based on thousands of [Freedom of Information Act] documents that I reviewed, plus my personal experience of being on the ... recovery team for nearly 18 months. Bottom line: The [recovery plan] was rigged to accommodate BLM's WOPR."

DellaSalla sees a certain synergy at work there. 'ꀜWe estimate that the [recovery plan] will lead to a reduction of about 20-30% of the habitat reserves overlapping with the BLM's WOPR,'ꀝ he says. 'ꀜThis means BLM could get a free pass . . . to increase old growth logging by 700%. . . . According to the BLM's own figures, this could result in destruction of up to 830 owl sites and over 600 marbled murrelet sites in the next decade.'ꀝ

After the owl was listed in 1990, the federal government started a recovery plan, came out with a draft, but dropped the process after the Clinton Administration adopted the 1994 Northwest Forest Plan, which seemed to accomplish the same thing. Before the Northwest Forest Plan went into effect, the BLM and its parent Department of the Interior came up with their own owl plans, at odds with the recommendations of the Interagency Scientific Committee — the so-called Thomas Committee — whose recommendations were driving the debate. When the Fish and Wildlife Service decided that 44 old-growth timber sales on the lands now covered by WOPR would endanger the owl, the BLM invoked the so-called God Squad — the interagency Endangered Species Committee that can decide the economic costs of saving a population exceed the environmental benefits — to approve. This was only the third time anyone had ever asked the God Squad to intervene. The committee approved 13 of the sales, turned thumbs down on the rest, and ordered BLM to plan and manage under the draft Northern Spotted Owl recovery plan.

Parts of the industry never reconciled themselves to the Forest Plan, and the Bush Administration committed itself early on to let loggers cut the billion board feet a year that Bill Clinton — in an ill-advised effort to promise something for everyone — had said the plan would allow. In 2006, after a status review found that owl populations were plummeting faster than anyone had anticipated, that the invasive barred owl posed a significant threat, and that disease and climate change further jeopardized the owl'ꀙs survival, the Bush Administration convened a team to draw up an owl recovery plan in light of new information.

The process was well along, when an oversight committee of Agriculture and Interior Department officials second-guessed the recovery team. This high-level oversight committee demanded from Washington D.C. that the draft plan say barred owls posed more of a threat than habitat loss. The draft also had to include two options — the first time a draft recovery plan had ever done so. Option two would have scrapped owl reserves with fixed boundaries so that forest managers could protect habitat as they saw fit. Interested Congressmen applied enough political pressure to secure scientific reviews of the draft plan. The reviewing scientists ripped it to shreds. There was no way the administration could take its draft into court and expect to win. It went back to the drawing board.

The result is the plan that the Bush Administration adopted last year. It protects 1.1 million fewer acres of old growth than the Northwest Forest Plan. East of the Cascade crest, it requires no permanent reserves, but a fluid system in which new reserves can be designated when old ones were wiped out by fire or disease. Unlike the draft, it recognizes past and present habitat loss as the owl'ꀙs greatest threat.

Imperfect though the owl plan may be, the administration arrived at it by jumping through all the right procedural hoops. It can'ꀙt be undone without jumping through those hoops again. It will probably be with us for a while.

So will the Forest Plan itself. The plan protects so many critters in addition to owls that it couldn'ꀙt easily be scrapped. Arguments against trying to amend it in light of new information parallel arguments against amending the Constitution: once you open the document up, you have no idea where the process will lead.

WOPR'ꀙs future looks a lot more problematic. Boyles says that on New Year's Eve, Earthjustice filed a 60-day notice of intent to sue the government for violating the Endangered Species Act. A variety of organizations will probably sue over a variety of alleged scientific and procedural deficiencies. In any case, the 60 days will expire at the beginning of March. See you in court.


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About the Authors & Contributors

Daniel Jack Chasan

Daniel Jack Chasan

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.