Enviros lose challenge to log sale in Murrelet habitat


It was a sleepy Friday afternoon in Judge Harper’s courtroom in Port Townsend. Folks wanted to finish up the day, and get on with their weekend. Looking out the large windows of the 1890 era courthouse  that frame the Olympics to the west, it seemed a long way from the major issues of our time. Far to the west, US hopes for a western style middle east were unraveling. But closer to home, west on the coast of Jefferson County, an ongoing court battle is playing out to save what little habitat remains for a bird that is battling for real survival, the Marbled Murrelet. And this courtroom was right now, ground zero.

The Murrelet nests in old growth, huge trees that can sustain it’s eggs in the crotch of a branch high up off the forest floor, since the bird doesn’t actually build a nest. As the big trees vanished (less than 1% remain of the original old forest), the bird is an indicator of the health of the forest. Audubon and other environmental groups sued the federal government in the 90s to protect the last habitat of the Murrelet. They won, and a large scale plan was put in place to work with the Department of Natural Resources (DNR) to protect and preserve the remaining forests where the bird lived. That last part was very important, as the state wants to cut anything that isn’t directly a location of bird nests, or their immediate buffer zones. In 1997, the DNR received a Habitat Conservation Plan (HCP) from the USFWS, which required them to complete a Long Term Conservation Strategy (LTCS) by 2007 at the latest. That plan has never been completed, and is currently scheduled for adoption in 2016. In 2008, the DNR issued the so-called Science Report, on conservation of the Marbled Murrelet on State-managed lands. It called for large management areas centered on multiple nest sites called MMMAs in the OESF and SW Washington. This DNR Science Report has never been accepted or implemented by the agency, but remains the best available science.

The environmental community wants to protect these large areas around the nests, to ensure breeding pairs have habitat. The issue at hand in the courtroom had to do with one of these MMMAs in the Goodman Creek drainage, five small units totaling 230 acres. The units themselves don’t mean a lot in causing the loss of the whole species. They are not old growth and have no nests, but they do pose a risk to adjacent nesting Murrelets, because, if logged, of hosting an invasion by crows and jays which eat Murrelet eggs and baby birds.

The fate of the Murrelet is tied to the State’s desire to cut all the remaining old growth outside the national parks, in a sustainable way.  DNR wants to do that because the State’s founders, thinking that they could never cut all the timber, used the timber sales to fund the State’s schools. Now, with our rural areas still reeling from the Wall St. induced financial crisis, the pressure on our state agencies and politicians to give up habitat for jobs and tree sales is hard to fight.

But a group of conservation minded folks were in court, mostly over the age of 50, sitting on the right side of the courtroom. They represent the birds, as the State will not allow the birds to simply be the issue. The environmental people have to claim that their ability to view the bird is the reason for the lawsuit asking for an injunction for the cutting of the trees. It’s a fundamental problem with our legal system that the loss of a species cannot be argued directly, but only as a zoo like viewing that will be taken away by their loss. The environmentalists  were dressed in jeans and shirts, except for the older dignified woman who has been one of the leaders of the battle, Marcie Goldie.

On the other side of the courtroom, it was all the black suits and new haircuts of the lawyers for the logging companies and the Department of Natural Resources. A small army of them were attending the trial. To them, the issue was, well, clear cut. The State had reclassified the timber, and sold it at auction. The environmental folks,they claimed had multiple opportunities to challenge the rulings, and now, at the 11th hour, were asking the judge to issue an injunction stopping the harvest, even for a short time. However, the environmentalists saw it somewhat differently.  They had formally requested changes at least three times, but not used multiple opportunities to legally challenge the rulings, and now, at the 11th hour, were asking the judge to issue an injunction stopping the logging, for a short time, until their legal challenge could be heard in court.

Clear-cutting in MMMAs signals a major change in the way DNR is treating Murrelets and is working with the environmental community. Generally speaking, when a timber sale appeal is filed, the cloud of litigation prevents BNR (the auction side of DNR) from auctioning the sale.  So, they’ll hold it, wait for litigation to pass, and then put it up for auction or rescind it. This time, this did not happen. While the environmental appeal was in place, BNR went ahead with the auction and Interfor bought it.  Based on previous legal precedents, this was definitely a point of law. The environmental lawyers felt that should have been sufficient for Harper to have waited a couple of weeks or ruled in their favor. 

Although the injunction filed was, indeed, to stop the logging from happening starting on Saturday, the appeal on this case had been in place for several months, but DNR/BNR chose to ignore it and went ahead with the sale – leaving the environmental community  no choice but to file the injunction.

What is also at stake here is that a well-respected process under the State Environmental Policy Act (SEPA) that the DNR has had in place for many years, since 1979, that allowed the environmental community to work to get it’s input through on the agency sales and cuts like these, and not been forced to spend huge amounts of time in court (for both sides).

As stated by the lawyers for the environmental groups:

This emergency injunction is necessary because of DNR’s rare decision to approve and auction-off these two timber sales while they are on appeal and before the Court has had the opportunity to rule on their legality.  In the past, Washington State DNR has shown respect and deference to both the legal system and citizens by postponing any timber ales that are under  legal challenge until the appeals have been finally resolved.  This is the second time DNR has tried to log forests in disregard to marbled murrelets; in July of 2013, the Honorable Bruce Heller of the King County Superior Court ruled against DNR in a case that bears many similarities.  DNR’s appeal of that ruling was withdrawn.

This process has  been summarily thrown out the window by the agency run by the man whom was funded by the environmental community, Commissioner Peter Goldmark. He found heavy backing in Democratic Jefferson County on his two runs for Commissioner of Public Lands, due to his support of environmental issues. Now, the question is being asked by many in the community, “What’s happening to Goldmark?”

Commissioner Goldmark was criticized by an article in the New York Times, just after the Oso landslide, because the environmental community had known, as had DNR that the Oso slope was a disaster waiting to happen. Rather than admit that, Goldmark had railed against ‘tree huggers’ who he claimed were rushing to judgement against his agency. This was out of character for a man who had used his position to champion environmental issues.

Over this last year, there has also been the “McCleary Decision” which has forced the State to come up with billions of dollars to properly fund long neglected schools. That decision came from this very courtroom (correction on 6/19, this case, while from a family in Jefferson County was originally filed in Seattle) and rippled up to the Supreme Court, where it still is being implemented, as recently as this week, as the Court debates issuing a contempt of court ruling against the State legislature for not submitting a plan the Court required.

The unspoken issue behind all this is that local mills cannot afford logs from private land owners, who are sending logs overseas by selling them to the multinationals. This situation is the result of a federal law that prohibits the export of timber logged on public land.   So the pressure builds for DNR to just get these sales done for the money.

The Environmental community now finds itself behind the eight ball, because the normal process DNR had implemented with them, has been clearly thwarted with this sale. It marks a turning point. The enviro lawyers had to scramble, since they were assuming DNR would do their normal work of negotiating this issue with them. The very process that DNR had normally followed, one that avoided unnecessary lawsuits, now was being argued by the DNR lawyers, to have been wrong, essentially saying  that DNR wanted the enviro lawyers to sue earlier and cost the State more in legal fees, rather than negotiate a way out of their concerns.

So DNR has signaled with this small afternoon session in a sleepy courtroom on the upper right hand side of the Olympic Peninsula, that they no longer see themselves as a partner with the groups that have worked with them to create a manageable way to avoid excessive costs and protect the habitat of the birds.  While legally the logs were to be harvested the next day,  Saturday June 14th, the argument that the lawyers for the logging companies made seemed to be a stretch in understanding. While the market for the logs is strong right now, the likelihood that these logs will just end up sitting in a pile with all the others down in Port Angeles harbor  or in the mill yard waiting for shipment out of the US is high. Anyone driving around the Olympic Peninsula lately will see huge numbers of fresh clear cuts and full logging trucks almost every few miles it seems.

Judge Harper ruled that the harvest could continue, though he seemed frustrated. He didn’t understand why the enviros had waited so long to sue. It was inappropriate to argue that the suits hadn’t happened because DNR was changing the ground-rules,  which itself had been somewhat  outside the normal legal framework and been implemented to avoid this very situation. The suit was very complicated, and the speed that the decision dictated at this last minute appeal, along with the complexity of rules that were needed to understand the nuances of the laws, confounded Judge Harper’s wanting to really understand all the issues. In the end, he simply felt forced to follow the legal guidelines that the DNR and logging lawyers fell back on, which is understandable. While DNR has “won” this round, the kind of game they intend to play in the future appears to have been signaled, and now it’s up to the environmental community to force the stalemate ground game that brought DNR to compromise with them in the first place. While the 80+ jobs that the logging company claimed are likely working this week, it means it will be harder to keep the logging going if DNR is going to force the environmental community to tie them up in court sooner to get anything done.

What does seem to be happening is that the Legislature, DNR and the Governor have decided that DNR will harvest it’s way out of the McCleary Decision, and that the Peninsula will be the scape goat.

 

 

 

 

3 Responses

  1. Al, Thanks for your detailed background and analysis of the ruling on this case, so clearly and engagingly written. Following the arguments in the courtroom last Friday, I was struck by the sad irony that the welfare of the murrelets seemed to have little to do with the deliberations. But I also questioned why the enviro groups had waited so long to file the injunction. Now I see that the story was much more complex, and the way it played out has seriously worrisome implications.
    Two questions: You write that “While the market for the logs is strong right now, the likelihood that these logs will just end up sitting in a pile with all the others down in Port Angeles harbor waiting for shipment out of the US is high.” But these logs are to be milled in Forks, right?
    And, are you saying that the McCleary Decision was issued in PT/JeffCo?

    • They say that the logs will be milled in Forks. Not sure that has actually happened. I’m just questioning it. Obviously there is no shortage of logs on the Peninsula right now. Perhaps my writing could have been a bit better.

      As to the McCleary Decision, it started with a lawsuit from a family here in Jefferson County. I believe that means it was originally brought before a courtroom here, and appealed up the chain to the Supreme Court. I subsequently found that the case was argued in Seattle. I could not find an answer to that before publishing so I made an assumption. I stand corrected.

  2. Al, I have a finite ability to stay abreast of issues, so I normally don’t read much about birds, and I tend to ignore blogs and other media about other issues outside my small perimeter. But the opening paragraph of this article was so nicely written and so much fun to read that I had to read the rest of the article.

    Thanks for making my day and keep up the good work!

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