Fight over flight: Activists resist aerial pesticide spraying: Register-Guard article

The Register-Guard
by Christian Hill
December 6, 2019

Timber companies notified state regulators this year that aircraft will spray pesticides on least three dozen tracts of forestland in Lane County.

Aerial spraying of these chemicals has been controversial in Oregon, with environmental groups seeking reforms to the practice for years. Timber companies spray pesticides using aircraft to kill competing vegetation after a clear-cut that can curtail the growth of Douglas fir and other valuable trees grown for logging. Oregonians have raised concerns about how the broad application of pesticides and applying them from the air can pollute waterways and sicken people.

Oregon lawmakers moved in 2015 to protect homes and schools from the chemicals, but more recent legislative efforts to restrict aerial spraying and improve public notification have floundered.

In recent weeks at the county and state level, efforts to ask voters to curtail or outright ban the practice, which opponents say is only loosely regulated, have been stymied. For example, a judge threw out in September an aerial spray ban that Lincoln County voters passed in 2017.

But supporters of the statewide efforts received good news Thursday when Secretary of State Bev Clarno approved three proposed initiatives, two of which seek more restrictions on aerial spraying, to take another step toward signature gathering. Clarno rejected three earlier proposed initiatives after concluding they were unconstitutionally over broad.

“I appreciate that the chief petitioners of these initiatives amended their proposals to meet the constitutional requirements,” Clarno said in a statement. “Voters will now be able to read and decide for themselves on these issues.”

Regulating aerial spraying

State regulation of aerial spraying falls under the Oregon Forest Practices Act, the law that sets policy for commercial logging in Oregon’s forests, and is chiefly divided between the state departments of agriculture and forestry.

The agriculture department registers the pesticides and licenses the people who apply it. To qualify for an Oregon aerial applicator license, which allows a person to apply pesticides by aircraft, pilots must meet a list of requirements, including passing an aerial exam and least 50 hours of pesticide application flight time​. ​There are 1,012 active Aerial Pesticide Applicator licenses in the state.

Timber companies must notify the forestry department before applying pesticides, but there’s no state requirement to notify the public. Companies can voluntarily provide that public notice.

Thirty-eight tracts of Lane County forestland were sprayed with pesticides using aircraft in 2019, according to Beyond Toxics which provided The Register-Guard with data from an Oregon Department of Forestry-managed database. Pesticide reform is one of the main missions of Beyond Toxics, a Eugene-based nonprofit environmental organization.

From 2015 to 2019, 185 tracts of Lane County forestland were sprayed with pesticides by aircraft, according to the data.

The database doesn’t provide the exact acreage sprayed, the exact dates of the spraying or the exact chemicals and amounts used.

But the typical chemicals used in those sprays included imazapyr, a weedkiller, and clopyralid, an herbicide that kills broadleaf weeds, including clover. Both chemicals can damage or irritate eyes and skin.

The data shows that this year another 44 Lane County tracts of forestland were sprayed with either aircraft or on-the-ground applicators.

“We’re finding that more and more timber companies are switching from aerial spray to ground spray because of the public awareness,” said Lisa Arkin, Beyond Toxics executive director. “I think that’s a good thing.”

At the same time, she said, companies are applying pesticides more frequently as the growth cycle for trees grown for logging has narrowed from 60 years to about three decades.

Attempts to strengthen regulations

In 2015, state lawmakers passed a law establishing a 60-foot “no-spray buffer” when aerial spraying occurs next to homes and schools. The law also required state certification for applicators using aircraft to spray pesticides.

The law came amid growing public concern about the potential dangers of aerial spraying and Oregon’s weak regulations in comparison to neighboring states, which do more to protect people and the environment from drifting chemicals.

But efforts to further tighten regulations surrounding aerial spraying haven’t advanced in the Legislature since then.

A 2017 bill, supported by Beyond Toxics, would have provided residents timely public notification of aerial sprays and more detailed public information about the applications, but it died in committee.

Earlier this year, a second attempt to strengthen notification requirements failed, as did a bill that would ban aerial spraying on state-owned lands.

Recent county efforts stymied

Locally, county commissioners have made clear they will not refer to voters a ballot measure proposed by grassroots organizations to ban aerial spraying of herbicides, which kill undesirable plants and weeds, in Lane County.

The groups, including Community Rights Lane County and the Lane County Freedom From Aerial pesticides Alliance, gathered signatures to qualify the measure for the ballot but a judge invalidated the initiative in 2018 as overly broad.

While an appeal of that decision is pending, backers have pressed county commissioners to refer the measure to the ballot, citing the level of public support.

Elected county commissioners have balked, citing an opinion from their attorney, County Counsel Stephen Dingle, that they could be held personally and financially liable for spending public money to hold an election on a measure that doesn’t pass legal muster. The county took the rare step of waiving attorney-client privilege to make the opinion public because of the high interest in the issue.

Stan Long, a retired local attorney and timber industry supporter, has threatened to take the county to court if it refers the measure. He sued Lane County and that case ultimately led to the judge throwing out the groups’ measure.

State law preempts cities and counties from adopting policies and regulations related to the use of pesticides.

This preemption is the reason a Lincoln County judge invalidated that county’s voter-approved measure. The measure was similar to Lane County’s proposed initiative.

And the potential personal liability for Lane County commissioners if they referred the local measure to the ballot with that state preemption on the books gave the elected leaders pause.

“To me, wasting time, money and effort if it’s going to be preempted doesn’t make a great deal of sense,” Commissioner Pat Farr said at an Oct. 17 meeting when the legal issues surrounding a referral were debated.

The attorney representing the organizations putting forth the measure disputes Dingle’s finding, arguing there’s no case in which public officials have been held personally liable for placing a measure on the ballot.

“They (commissioners) lack the courage to stand with the people, and they’re hiding behind an unjust (state) law,” said Michelle Holman, founder of Community Rights Lane County, one of the measure’s backers.

Measures proposed to state

Meanwhile, efforts by a coalition of environmental groups to amend state law to scale back aerial spraying and restrict logging had hit roadblocks until Thursday.

In September, Clarno, the state’s top elections official, had tossed three prospective initiatives for being unconstitutionally overbroad. The coalition, which includes Oregon Wild and Beyond Toxics, filed another three prospective initiatives aimed at addressing Clarno’s concerns, leading to her approval.

A key aim of the initiatives is to amend the state law to expand the buffer where aerial spraying is prohibited to 500 feet from 60 feet in areas next to waterways.

Jason Gonzales, Oregon Wild’s forest and watershed campaign organizer, said the coalition is seeking to put on the November 2020 ballot a measure that amends current law in a way “that the science, common sense and the voters will support.”

“A 500-foot buffer from running water is something that we found widespread agreement about,” he said, “and something that I think accomplishes what we all want to see, which is protection from this practice without going so far as banning a whole class of behavior.”

Katie Fast, executive director of the agribusiness industry group Oregonians for Food and Shelter, raised concerns about the local and statewide efforts.

She questioned how county governments would enforce local bans and restrictions without the experts and resources offered by the state.

“Would the county still have the expertise to go in and do an investigation?” she asked.

On the proposed statewide restrictions, Fast noted the federal government registers the chemicals and sets the instructions for their use, including how far they can applied from water.

“What’s in the ballot measure are very large buffers that we would see as” an infringement of private property rights, she said, “because of not being able to control noxious weeds in that area by using the application method.”

Holman with Community Rights Lane County said the groups pushing the county measure aren’t allowing the recent setback as a result of the county commission decision to stop them.

“We believe we are fighting a principled fight,” she said.

Timber interests propose three pro-logging ballot measures: Oregonlive article

by Ted Sickinger
November 8, 2019
Oregonlive

A  group of retired foresters backed by the timber industry filed three initiative petitions this week looking to counter what they say are “radical anti-forestry ballot initiatives being pursued by environmental extremists.”

The measures would give Oregon counties and the wood products industry more control over how members of the state Board of Forestry are selected. They would amend the state constitution, requiring the state to fully compensate woodland owners for any new regulations that eliminate their ability to log, such as expanded no-touch stream buffers. And they would require that the forestry board use “non-biased” and “peer reviewed science” to come up with consensus-based policies.

Jim James, a forestry consultant and executive director of the Oregon Small Woodlands Association, is one of the chief petitioners. He said he was not acting on behalf of the association, though it is mentioned in the initiative petitions. The Oregon Forest Industries Council, a timber industry trade group, is serving as treasurer of the campaigns.

“I’m a professional forester and have had a long career in the industry,” James said. “When I became aware of the three anti-forestry ballot measures, I became very passionate about how wrong those were and I reached out to others to push back on these absolutely crazy initiatives they proposed.”

Environmental groups filed three ballot measures earlier this year to tighten aerial herbicide spraying rules, increase forest stream buffers, prohibit logging in steep, landslide-prone areas, and prohibit conflicts of interest for state forestry board appointees.

Secretary of State Bev Clarno rejected all three petitions, saying they violated rules that prohibit measures that address more than a single policy topic. Environmental groups are taking her to court over that decision, but have since filed new versions of the petitions that they claim address Clarno’s concerns.

Now the forestry groups have filed their own countermeasures.

The dueling ballot measures go the heart of the timber tug of war that has been playing out in Oregon for four decades. Once centered on the decline of logging on federal forests because of endangered species concerns, the divide over policies also spread to private and state forests. Indeed, that partisan divide could become a deciding factor in how the legislative session plays out next year, with likely battles over climate change policies and wildfire funding.

As it stands, the controversy is currently being spotlighted in a $1 billion lawsuit in which 14 rural counties are suing the state for breach of contract, saying it has failed to maximize logging on state forests.

Environmental groups have long contended that Oregon has some of the weakest forest protection rules in the West. They say the rules fail to ensure the protection of endangered species and their habitats, as well as the health and safety of rural residents. They describe the forestry ballot measures as a power grab by the industry that would limit the discretion of the state board, and possibly lock the state in the same constitutional debate over property rights and land use safeguards that came with the 2004 passage of the far-reaching Measure 37. Voters subsequently overturned most of those reforms with the passage of Measure 49 in 2007.

“With this measure, industry wants to change the Oregon constitution to make Oregonians pay them to not pollute rivers and streams with excessive clearcutting on steep slopes, said Ralph Bloemers, senior staff attorney for the Crag Law Center, a non-profit that represents conservation groups and local residents throughout Oregon.

“They expect to be paid if Oregonians decide to limit their ability to spray toxic chemicals near drinking water supplies, homes and schools,” he said. “I don’t expect Oregonians will be fooled twice.”

James, meanwhile, insists that there is no scientific evidence that wider stream buffers would help salmon habitat, as environmentalists contend. He says the new regulations proposed in the environmental petitions would prevent active forest management in many areas, cause more wildfires, and result in an uncompensated taking of land from private owners. And while he could not cite a specific example, he said the forestry board’s policy-making has been hobbled by a divide among conservation and industry-oriented members.

“If there was more of a collaborative model,” he said, “things would happen more quickly and they would be more balanced and fair.”

As many as nine dueling forestry bills could be on next November’s ballot: NewsReview story

by Carisa Cegavske
The News-Review
November 10, 2019

The timber industry and environmentalists are headed toward a showdown over forest management that could bring as many as nine ballot measures before the voters next November.

At issue is a fundamental disagreement over what forest practices best protect water quality. The two sides are also gearing up for a possible fight over what role the timber industry should play in making the regulations that govern forest management in Oregon.

The environmentalists fired the opening volley with Initiative Petitions 35, 36 and 37 in July. All three were rejected by Oregon Secretary of State Bev Clarno, who said the petitions failed to meet the requirement that each measure cover a single topic.

The environmentalists sued, hoping to overturn that decision.

While that case works its way through the court system, the environmentalists filed three pared-down initiative petitions — 45, 46 and 47 — in October, in an attempt to meet the single topic requirement.

Last week, the timber industry fired back, filing three initiative petitions of its own. They’re numbered 53, 54 and 55.

The environmentalists propose changing the laws to block clear-cuts in landslide-prone areas and to create more restrictive rules around spraying of herbicides near waterways.

They argue that intensive logging in landslide hazard locations increases sediment and debris in the forest waters that become Oregonians’ drinking water. They also argue that aerial application of toxic herbicides is allowed across broader areas of forest watersheds in Oregon than in other states and that this affects forest waters and endangers Oregonians’ health.

Their first set of proposed measures would additionally prevent people with conflicts of interest from sitting on the State Board of Forestry. Those who make money from the industries the board regulates could not become board members. These conflict of interest rules weren’t included in their second round of petitions.

The pro-timber petitions filed last week would do three things. First, Initiative Petition 53 would change the Oregon Constitution to provide that any time the state makes a law or regulation that eliminates the economic value of a property, it would have to provide just compensation to the landowner.

Second, Initiative Petition 54 would mandate that policies related to forest management be based on peer-reviewed science and on the forestry board’s consensus.

Third, Initiative Petition 55 would change the composition of the forestry board to expressly include industry representatives, small woodlands owners and wood manufacturing employees — people who would be barred under the environmentalists’ proposed conflict of interest rules. It would also include three members nominated by state agencies to represent environmental advocates.

Sara Duncan of Gallatin Public Affairs, a spokeswoman for the Oregon Forest and Industries Council, said barring those industry representatives from the board would amount to regulation without representation. She said it’s important to have members who work in the timber industry because they are the ones who have experience in managing the forests.

Duncan said the landslide and spraying rules proposed by the environmentalists aren’t based on science.

“There has been a movement — and you can see it in the ballot initiatives of the anti-forestry activists — to put in regulations, prescriptive regulations that have no backing by science. We think that’s a bad idea,” she said.

Duncan also said reducing timberland owners’ ability to manage their forests increases the risk of wildfire.

“We think that will increase catastrophic wildfire risks in Oregon and we don’t think Oregonians want that, nor can they afford it. It’s bad for our health. It’s bad for the health of the forest. It pollutes our air and our water and we think that’s a bad idea,” Duncan said.

She said the spraying that environmentalists object to is necessary to ensure that newly planted trees aren’t choked out by Scotch broom and blackberries before they have a chance to grow into forests to replace those that have been harvested.

Water quality in the state is excellent today, especially in forestlands and including actively managed forest, Duncan said.

“So we know that the laws that are in place to protect water quality in the forest, those are working,” she said.

Kate Crump of Rockaway Beach is a chief petitioner for the environmentalists’ initiatives. She does not think the state’s current forestry laws adequately protect the water Oregonians are drinking.

“I feel like they’re extremely unsafe, and I feel like there’s a complete lack of transparency on what is happening in our drinking watersheds in forestlands,” she said.

And that, she said, has everything to do with the forestry board’s membership.

“They’re the ones that are making the decisions and they are responsible for allowing Oregon to fall behind our neighbors in our forest practices. They’re responsible for not protecting our forest waters further for communities and people and wildlife,” she said.

She also disputed the assertion that her petitions’ proposals are unscientific.

“All of our measures are backed by science. I definitely feel like that’s an inaccurate claim,” she said.

Crump is a fishing guide for Frigate Adventure Travel. She became concerned about her water after she received a notice in the mail saying elderly or pregnant people shouldn’t drink it.

“I was like what, I live in America. How is this a thing?” she said.

There wasn’t a factory upstream, but she said she discovered the water flowed through recently cut industrial timberland. She walked to the headwaters and said it looked like a bomb had gone off and she learned it was being helicopter sprayed with herbicides and pesticides.

Crump said caring about clean water and forests is a core value for Oregonians.

“It’s very important to people to protect these places and to have clean water and to know that it’s safe for their children to drink and play in it,” she said.

 

Oregonlive article: Oregon Attorney General Ellen Rosenblum refuses to defend Secretary of State over unprecedented rejection of forestry ballot measures

By Rob Davis
Oregonlive
October 30, 2019

Oregon Attorney General Ellen Rosenblum is refusing to defend Secretary of State Bev Clarno in litigation over Clarno’s unprecedented rejection of three proposed ballot initiatives to tighten state forestry laws.

Rosenblum also challenged Clarno’s legal basis for tossing the proposals, which Clarno said violated a state requirement that legislative measures stick to one subject. The rule applies equally to voter initiatives and bills in the Legislature.

“There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement,” Rosenblum told The Oregonian/OregonLive in a statement. “I do not believe there is any compelling reason to argue for a change in the current law.”

Rosenblum said she couldn’t represent Clarno because the Oregon Legislature is also a client and she didn’t want to make arguments that would impede its work. She said she authorized Clarno to find another lawyer due to the conflicting interests.

Clarno did not respond to a request for comment. Her deputy, Rich Vial, declined to answer questions.

The decision by Rosenblum, a Democrat, is unusual, pitting two of Oregon’s top elected officials against one another.

Clarno, a Republican who has taken $36,000 in donations from timber interests in her career, is not backing down in a suit brought by environmental advocates trying to ensure their original petitions advance.

She will instead be represented by Schwabe Williamson Wyatt, a Portland law firm that advertises itself as “one of the nation’s top timber law practices” and says it is part of the fabric of the timber industry. The firm says on its website it is “involved” with the Oregon Forest & Industries Council, one of the leading opponents to the ballot measures.

Clarno on Sept. 24 rejected Initiative Petitions 35, 36 and 37. The measures are substantially the same, calling for tightening the state’s aerial herbicide spraying laws. They propose more logging restrictions in steep, landslide-prone areas. They would prohibit conflicts of interest for state forestry board appointees.

Clarno rejected the initiatives proposed by environmental advocates, including the group Oregon Wild, saying each of the proposals covered more than one subject. The Oregon constitution says a ballot initiative can only address a single policy topic. The same ballot initiative couldn’t raise the minimum wage and ban the death penalty, for example.

No other ballot measure has ever been rejected by the Secretary of State on single-subject grounds, two election lawyers have said.

Vial, Clarno’s deputy, is a former Republican lawmaker who took $19,000 from timber interests in his career.

Vial would not say how the law firm retained by the Secretary of State was being paid. He would not explain why the Secretary of State is litigating a case the state’s lead attorney has opined has no legal justification.

Former Oregon Supreme Court Justice Michael “Mick” Gillette is representing Clarno’s office for the Schwabe law firm. Gillette declined comment.

As a justice on the Oregon Supreme Court, Gillette wrote the landmark 1997 ruling that eliminated Oregon’s campaign contribution limits. The decision allowed Oregon to become one of the biggest money states in American politics, one where today the timber industry gives more than anywhere else in the nation.

Rosenblum’s full statement is below.

My office represents both the Secretary of State and the Oregon Legislature. Our overarching client is always the State of Oregon, however. As the chief law officer of the state I have reached the conclusion that the Secretary of State is entitled to hire conflict counsel in this matter. This is a brief explanation of this decision.

The Oregon Supreme Court has said that the ‘single subject’ requirement in the Oregon Constitution that governs the initiative process is to be given the same interpretation as the ‘single subject’ requirement that applies to the legislature. There is no question that, under current law, the legislature could pass a measure such as this one and it would be in full compliance with the ‘single subject’ requirement. I do not believe there is any compelling reason to argue for a change in the current law.

Under the circumstances I concluded that we would not want to make arguments detrimental to our legislative branch client (although the legislature is not currently a party to this litigation) in order to defend this executive branch action. I authorized Secretary Clarno to obtain conflict counsel, which will allow her to present her view of the ‘single subject’ requirement to the courts for their consideration.

Oregonian Opinion Piece: Coastal Oregonians want stronger protections for forest waters

OregonLive
October 30, 2019

by guest columnists
Nancy Webster, Jane Anderson and Pat Himes

Webster lives in Rockaway Beach. Anderson lives in Garibaldi. Himes lives in Oceanside. All three are members of the North Coast Communities for Watershed Protection, an organization that seeks to protect air and water throughout the region.

We live at the Oregon coast and have been directly affected by the influence of money in Oregon politics. For 25 years, the Oregon Legislature has failed to significantly update protections from clearcutting for rivers and streams, or to protect us and water from aerial spraying of toxic pesticides. Out of frustration, we have joined with people from across Oregon to advance protections for forest waters.

Recently, The Oregonian/OregonLive’s Rob Davis wrote an article on Secretary of State Bev Clarno’s rejection of ballot initiatives seeking greater protections for forest waters. The initiatives sought to put an important question before voters: Should Oregon update its protections for rivers and streams and require larger buffers for aerial spraying of toxic chemicals? Clarno’s denial appears to be another example of corporate influence hurting rural Oregonians. And considering the donations that she and her deputy have taken in the past, it also seems to be another example of the overreach of corporate influence in Oregon as Davis revealed earlier this year in the series “Polluted by Money.

For too long, we have watched Wall Street corporations clearcut near Oswald West State Park, Cannon Beach, Yachats, Rockaway Beach, Arch Cape and other communities. Experts from Oregon State University have found that short-rotation clearcutting reduces water supplies by half. We have witnessed streams running dry in the summer months.

While we all use wood products, we cannot make more water. According to state figures, timber is around 2% of Oregon’s gross domestic product and less than 2% of jobs. Welcoming visitors to our communities and providing water for them and local residents is worth more. We also know how hard people work and that every job in our rural economy matters. We feel that things are out of balance, and that Oregonians from diverse backgrounds will agree.

The fact is that investment firms and Wall Street corporations control huge amounts of land in northwest Oregon. These companies flood our Legislature with money and resist even modest updates to protect the public’s water supplies that flow from Oregon’s forests.

Secretary of State Clarno demonstrated she is ill-informed when she confused the Oregon Board of Forestry, charged with protecting the greatest permanent value for all Oregonians, with the Oregon Forest & Industries Council, a timber lobbying group that works to protect its ability to clearcut by streams, spray toxic chemicals, and denude steep slopes. While we agree the timber industry should have a voice in decisions affecting its industry, we do not agree that they should get to set all the rules in their favor.

Those of us on the coast are being adversely affected, and we’re not going to take it anymore. In Rockaway Beach, we watched as more than 80% of the forestland from which our water flows was clearcut. Cannon Beach, Yachats, Newport, Arch Cape, Wheeler, and other communities have watched in alarm as their forested watersheds have been clearcut and sprayed with toxic chemicals. Slopes designated by the state as having a high risk of landslides have been clearcut, endangering communities and the waters which sustain them. Our group, North Coast Communities for Watershed Protection, reflects our common goal to ensure the air we breathe and the water we drink are safe. To learn more about us, visit https://healthywatershed.org.

Idaho, Washington, and California have better protections for forest waters than “green” Oregon. The companies which are deforesting Oregon are able to profitably comply with these better protections in other states. Why not in Oregon? The proposed initiative is consistent with Oregon values. It would protect our forests and the waters that flow from them. It would live up to our reputation.

We have been talking to Oregonians of all stripes who tell us they will support increased protections for forest waters because they know the value of clean and abundant water. They know we cannot afford to spend millions of dollars to treat dirty water caused by clearcutting on steep slopes and by streams. Clarno asserts that the initiative is confusing, but the voters we spoke with understood that it would protect forests and the water they provide.

We think that, given the chance, voters in Tillamook County and many other rural counties will vote for protecting forests and the water they provide. We are for “logging,” and we are for doing better –– for our drinking water, the fish and our communities.

Failing forestry: Oregon’s forestry department is on an unsustainable path: Oregonian news story

By Ted Sickinger
October 20, 2019
OregonLive

Oregon’s state forests are supposed to be managed to deliver a balance of benefits, from sustainable timber harvests to habitat for fish and wildlife, from clean air and drinking water to well-managed recreation spaces.

But the Oregon Department of Forestry is failing on almost every front.

The reasons are numerous, but stem from structural issues exacerbated during the last decade by ineffective management at the agency, ineffectual oversight by its seven-member board and inaction by the governor and legislators.

The agency’s state forest division budget is almost entirely dependent on timber sales, a volatile revenue stream that it can’t control and is subject to market swings, political agendas and legal challenges. The division gets no money from taxpayers, but is asked to provide services that cost millions of dollars annually and generate little or no revenue. Meanwhile, two-thirds of the timber sales it does generate go directly to 15 counties and the taxing districts where the logging takes place.

Since the 2008 recession, agency managers have warned that budget formula no longer works, leaving them operating at the edge of a financial precipice.

In response, they’ve axed staff, frozen programs and cut more trees. They’ve reduced the amount of forests set aside for conservation. They’ve deferred investments necessary to ensure future forest health and productivity. And they’ve skimmed the cream off their available “inventory,” targeting accessible clearcuts of large, high-value trees to quickly generate more profitable sales.

Those aren’t sustainable tactics, much less the durable long-term strategy to increase both financial and conservation outcomes that the division has been directed to develop since 2013, but has so far failed to deliver.

It’s unclear that such a balance can be achieved. Tradeoffs are inevitable. That’s why the current strategy – laid out in a document called the forest management plan — has become a zero-sum game, pitting rural counties, their schools and jobs against conservation, recreation and clean water.

The policy mess will be showcased in a trial starting this week. Fourteen of Oregon’s 15 “forest trust land” counties are suing the agency, arguing they’ve been shortchanged $1.4 billion in logging revenues. Bankrolled by private timber companies, the counties claim the state breached its contract with them by failing to maximize harvests on state forests since 2001. Many observers expect the agency will lose.

Ballot initiative to tighten Oregon forestry laws gets rejected. Advocates blame timber money: Oregonian Story

By Rob Davis
October 4, 2019

The Oregonian

For years, coastal residents and environmental groups have pushed state forestry officials and the Legislature for tighter restrictions on clearcutting and aerial weed killer spraying in Oregon’s forests.

And for years, little has changed in Oregon, where the timber industry gives more money to state lawmakers than anywhere else in the nation. Oregon trails neighboring West Coast states on a long list of environmental protections.

Now advocates are turning to another avenue — the ballot box. And there, too, they’ve been stymied. This time it’s by the Oregon Secretary of State’s office, led by two former Republican lawmakers whose campaigns drew significant financial backing from timber companies.

The three ballot measures — Initiative Petitions 35, 36 and 37 — are substantially the same. They call for tightening the state’s aerial spraying laws, which today offer some of the West Coast’s weakest protections for people and fish. They call for more logging restrictions in steep, landslide-prone areas. They would prohibit conflicts of interest for state forestry board appointees, who today can set policies that benefit their own companies.

But the Secretary of State’s elections division last week rejected the initiatives proposed by environmental advocates, including the group Oregon Wild, saying they related to more than one subject. The Oregon constitution says each ballot initiative can only address a single policy topic.

“When you have things with all sorts of things to do with a forest – setbacks and sprays and rivers – that’s more than one subject,” Secretary of State Bev Clarno said in an interview. “When you’re talking about creating an advisory board, and issues about how you can spray and set aside, that’s a lot of different subjects on how to manage a forest.”

Former Oregon lawmaker Richard Vial, Clarno’s deputy, also played a role in the decision. He is considering a campaign for Clarno’s spot in 2020; she has said she will not run.

Two elections attorneys called the rejection unprecedented and Clarno’s decision to perform her own legal review unusual.

The rejection delays proponents, who now must refile shorter initiatives while potentially challenging Clarno’s decision in court. The petitioners need the secretary of state’s approval before they can start collecting more than 100,000 signatures to qualify for the November 2020 ballot.

In each rejection, the secretary adopted arguments advanced by opponents of the initiatives. Those groups immediately celebrated Clarno’s action, which had been sought by the recently formed group Timber Unity and by Greg Chaimov, an attorney who has represented timber and pesticide interests.

On its Facebook page, Timber Unity called it “AMAZING NEWS!”, saying the initiatives were “trying to kill private forestry in Oregon.”

Kristina McNitt, president of the Oregon Forest and Industries Council, said the state’s existing forestry protections are sound and the initiatives “will face considerable constitutional hurdles and vehement objections by our industry.”

The initiative’s backers said they were stunned by the rejection, calling it evidence that Clarno and Vial are not as committed to running a politically agnostic office as the two Republicans have claimed. They said the explanation is clear: A political system fueled by timber industry dollars.

“It’s an office that says it wants to be nonpartisan doing something that is explicitly partisan,” said Sean Stevens, executive director of Oregon Wild. “It calls into question the confidence that people can have in their government. The grip the industry has on things is extending everywhere.”

As a lawmaker, Oregon House Speaker and candidate for state treasurer in the 1990s and early 2000s, Clarno took more than $36,000 in donations from timber interests. Vial took $19,000.

Then-Rep. Richard Vial, R-Scholls, in the House of Representatives chamber in 2017. (File/The Oregonian)

Clarno, when asked whether her decision was linked to party politics or her past backing by the timber industry, responded simply: “Bull.”

“I really do believe, in this office, partisanship has no business,” she said.

The attorney general typically provides a written opinion explaining why an initiative doesn’t pass legal muster. That opinion is typically made public, as a way to allow petitioners to redraft their initiative and ensure it complies with the law.

This time, the secretary of state didn’t ask for an opinion in writing, and the attorney general’s office didn’t draft one. Instead, an assistant attorney general met in person with officials in the secretary of state’s office. No one will disclose what the attorney said about the legality of the initiatives.

Clarno refused to waive attorney-client privilege to allow the attorney general to speak about it with a reporter. Vial at first refused to release even the name of the assistant attorney general who discussed the initiatives with him, saying her identity was protected by attorney-client privilege.

“Why would the public need to know that?” he asked, before eventually providing assistant attorney general Amy Alpaugh’s name.

Clarno, in an interview with The Oregonian/OregonLive, said she based her decision on analysis conducted by her own staff — Vial and elections director Steve Trout. “I thought I was in good hands,” she said.

Clarno said “we did not get a yes/no” from the attorney general about the initiatives’ legality, rather an assurance “that if I ended up in court they would defend me.”

A spokeswoman for Attorney General Ellen Rosenblum, a Democrat, said she could not discuss the measures because the secretary of state would not waive attorney-client privilege. The spokeswoman, Kristina Edmunson, confirmed that the Department of Justice was “involved in conversations” with Clarno’s office about the initiatives. But she also contradicted part of Clarno’s account.

“We have not said (and were not asked) whether we would, or would not, defend their office in case of a lawsuit,” Edmunson said in an email. She said the late Secretary of State Dennis Richardson, who was elected in 2016, had changed the initiative review process, asking the Department of Justice only to review initiatives upon request.

To qualify for the ballot, initiatives must pertain to a single subject. The same ballot initiative couldn’t ask voters to create campaign donation limits, permit grocery stores to sell liquor and outlaw the death penalty. It’s called the single-subject rule.

Oregon courts have strictly interpreted the single-subject rule for proposed constitutional amendments. But they’ve treated it far more permissively for changes to often-complicated state statutes, like those the forestry initiatives seek to change.

“It is a very lenient test,” said Dan Meek, a Portland elections attorney. “It is very difficult to violate the single-subject requirement.”

It’s so hard to violate that Meek and another attorney who has written multiple ballot measures said they didn’t think the Secretary of State had ever rejected an initiative to change state law on single-subject grounds.

“It just raises eyebrows to me,” said Margaret Olney, a Portland attorney who has drafted ballot initiatives for progressive groups including Our Oregon and Planned Parenthood. “It’s extremely surprising that there isn’t at least a short letter of explanation for purposes of transparency to allow the chief petitioners to fix any problems. That has been the standard.”

Meek read the ballot proposals and said they clearly relate to the same subject.

“It’s weird,” Meek said. “When the proponents take this to court, they will win – easily.”

Clarno’s office released a deeper explanation late Thursday night, after inquiries from The Oregonian/OregonLive about discrepancies in the reasons separately provided by Clarno, Vial and Trout.

In the news release, Clarno said questions about aerial spraying in forests and “how the Oregon Forest Council manages forests” are very different. “These aspects of the proposed measures would potentially confuse voters,” she said.

Oregon forest laws are in fact managed by the governor-appointed, seven-member Board of Forestry.

The Oregon Forest Council does not exist, though the Oregon Forest & Industries Council is a lobbying group that has donated to both Clarno and Vial’s campaigns.

 

 

Failing forestry: Oregon wanted to clearcut above their water supply. The plan’s on hold for now: Oregonian Story

By Ted Sickinger
Sept. 28, 2019

The Oregonian

The first Roger Neugebauer heard about the Norriston Heights timber sale was two days before the end of the public comment period, which closed May 2. A neighbor emailed him and described the Oregon Department of Forestry’s plan to clearcut the 77-acre forest plot.

Neugebauer was stunned. The tract of timber sits directly across Highway 101 from his house in Arch Cape, just south of Cannon Beach. He hadn’t heard a peep from the agency. Neither had most of the owners of 20 neighboring homes, all of whom draw their water from gravity fed cisterns in the forest collecting groundwater under the trees slated for harvest.

“They claimed they couldn’t inform us because it was too complicated,” Neugebauer said. “They could have printed 20 copies of a letter and hired a high school kid in Cannon Beach to put it in front of everyone’s door and they would have got the communication done. But they couldn’t figure that out.”

“It’s not hard to find us,” added another neighbor, Jay Haladay. “We’re right across the damn street.”

On Monday, agency officials will hold their first public meeting about the sale with the Clatsop County Board of Commissioners. And, capitulating to angry neighbors, it will announce that it plans to delay the sale for a year in order to work with locals and finds some “mutually acceptable solutions” to their concerns.

The agency’s policy on timber sales requires a 45-day public comment period, but doesn’t specify which parties should be notified prior to or during that period. In this case, however, officials now acknowledge that they screwed up.

“We could have done better as an agency to reach out earlier in this case,” said Jason Cox, an agency spokesman. “We’re committed to improving our engagement both with the general public as well as specific parties with potential concerns.”

But for the agency these days, time is money. And based on a forestry department report, Norriston Heights is a potentially lucrative sale. It requires a nominal investment in roads — $43,200 — and would bring in an estimated $981,750. That’s the kind of sale that agency leaders have explicitly directed foresters to focus on as they try to dig out of deep financial problems by identifying “high net revenue” sales.

Translation: Easily accessible clearcuts that don’t require big investments.

The state forest division has struggled since the 2008 recession to find a path to financial viability. Meanwhile, the agency at large is mired in a cash flow crisis that has it borrowing heavily from state forest cash reserves to float nearly $100 million it has failed to collect from wildfire costs dating back to 2015.

The Norriston Heights sale also would be good news for Clatsop County and its local taxing districts, as they get nearly two-thirds of the net revenue from state forestland harvests. Clatsop and 14 other counties rely on money from state harvests to pay for basic services. They also depend on the logging and mill jobs the harvests provide their communities.

Cox, the agency spokesman, emphasized that point in an email to a neighbor who raised concerns about Norriston Heights in July: “The area required minimal infrastructure investment, is of relatively simple complexity and offers a high rate of return to benefit local services like schools, transportation, health care, law enforcement and rural fire protection.”

“Simple complexity” is agency lingo for the type of forest with smaller, relatively young trees. “Complex forest,” by contrast, are those lands with prime habitat that the agency is aiming to protect. According the agency’s Forest Management Plan, it is actively managing state lands so 30% of forests will grow to become complex at some undefined point in the future.

But it’s a goal it is largely failing to accomplish. In real life, the percentage of complex forests is going down. It currently stands at just over 10%.

The Norriston Heights unit was classified as complex forest until last spring, when the agency decided to cut it. And a portion of the tract was part of designated conservation areas until 2010, when financial problems led it to reduce the amount of public forests across the state it aimed to protect from 40% to 30%, freeing up more land for harvest. This spring, the agency resurveyed the plot and designated it as “understory,” a less complex forest structure that can typically be logged without much blowback from conservation groups.

Agency officials said the plot was resurveyed using agency protocols. It was previously clearcut in the 1950s, and they said, the 68-year-old plot had yet to attain complex structure.

Risks to habitat, drinking water

The stretch of woods near Arch Cape proposed for clearcut is the backdrop to one the most popular tourist destinations on the coast. Three quarters of a million visitors stop each year at Arcadia Beach and Hug Point state recreation sites that bracket the stand and countless more drive by on Highway 101. That’s a social value the agency is supposed to take into account under its statutory mandate to manage forests for the “greatest permanent value” to Oregonians.

Cannon Beach Mayor Sam Steidel emphasized that point in a September letter to the agency.

“The Norriston Heights property is unique because it is the only state forestland on the coast in Clatsop County,” he wrote. “Because of its special value – scenic, wildlife and drinking water – we ask that you cancel the sale and permanently protect it as high value conservation land.”

The sale area directly adjoins a stand of giant Western Red Cedars containing Oregon’s largest tree – the Arcadia Cedar — which is already a protection area for the endangered Marbled Murrelet. The presence of an endangered species nearby — and possibility that logging would harm its habitat — considerably ups the ante on any timber harvest.

Department surveys in 2003 showed “significant behavior indicative of stand occupancy” directly to the north. Murrelets were also detected flying over the harvest unit. But the department says that was evidence of presence, not occupancy. Cox, the agency spokesman, said the sale area was surveyed again in 2017 and 2018 and no murrelets were observed.

Yet there’s no question that the land holds valuable water. The Arch Cape neighborhood’s supply is piped from cisterns that sit about 50 to 75 feet into the woods, under Highway 101 and into private pump houses that filter and pressurize it for supply to the homes. It’s already a precarious, low-tech and high-maintenance system, prone to clogging year round and low flows when rain is scarce in the summer.

Neighbors worry the clearcut could ruin the natural groundwater filtration and further decrease water flows. They’re also anxious that pesticide spraying will poison the water they do get, making the neighborhood unlivable.

It’s not an unfounded concern. They need only look south to Rockaway Beach, where clearcutting on private land in the Jetty Creek watershed left high levels of a cancer-causing byproduct in the town’s drinking water, and aerial spraying left traces of a potent herbicide in the creek. The department has received similar complaints about clearcuts from residents to the south in Neahkahnie. Indeed, mud from hillside clearcuts and logging roads threaten drinking water up and down the Oregon coast.

For Norriston Heights, agency geotechnical analyses acknowledge that the harvest might decrease summer flows, which it says would be most pronounced in the decade after harvest. But it also suggested that its plan to replant the area with fewer trees than are currently there may result in more available water. Agency officials also told neighbors that they would establish stream buffers larger than those required by the state law and the agency’s normal standards to minimize landslide risks and the impacts of sediment on their collection systems.

Liz Dent, chief of the state forest division, said the agency had listened to feedback and modified the sale accordingly. “In this case,” she said, “we put together a timber sale that exceeded our own standards.”

Thomas Merrell, who manages the waters systems for many Arch Cape neighbors, has a more cynical view after dealing with the agency for two decades.

“They look at you nod their head and say they can do what they want and that’s the way it’s going to be,” he said. “Historically, that’s the way it works.”

Thomas Merrell is a water consultant who helps manage water systems for many homeowners near Arch Cape. He and other neighbors are worried that a clearcut would harm their community’s only water source.

Neighbors revolt

When the Arch Cape neighbors did learn of the plan, they organized an informational meeting for July 2. It was supposed to be the agency’s show, with a district forester there to explain the plan. About 65 people showed up. But at the last minute, the forester who was supposed to attend decided he wasn’t coming.

“He had obtained an e-mail that had been circulating about ODF being at Hug Point the morning of July 2nd to discuss the clear cut,” said Nadine Mathis Basha, the neighbor who organized the meeting. “He told me that he wasn’t going to meet with those people who were not even affected by the clear cut. I don’t remember exactly what he said but that is the essence.”

Dent says that’s a mischaracterization of the forester’s response. She said he didn’t go because some of the neighbors, as well as the water manager for many of the systems, couldn’t be there.

With the agency’s decision on Wednesday to defer the timber sale for a year, locals say they’ll use the time to hire their own experts to evaluate landslide and water risks.

The agency’s reversal came after inquiries from legislators as well as pressure at the Board of Forestry. Haladay, the Norriston Heights neighbor, asked the board at its early September meeting whether the agency had followed its own protocols when reclassifying the forest. He described the agency’s lack of outreach to affected homeowners and asked forestry officials to cancel the sale.

“ODF needs to come back and say we didn’t do this right,” he said.

That caught the attention of board member Brenda McComb, who asked State Forester Peter Daugherty whether the agency had any response.

Daugherty said the agency was still considering the sale and would be holding an information meeting with the Clatsop County Commission to discuss it. But he said this was the first he’d heard of any formal request to cancel the sale.

It certainly wasn’t the first such request to the agency. Halladay made the same request to the agency in early July. Thirteen environmental groups also had asked the agency in May to pull the sale, raising concerns about coastal erosion and Marbled Murrelet habitat. Another advocacy group, The Ecola Creek Awareness Project, made the same request during the agency’s public comment period in May.

Board member Jim Kelly told Daugherty at the September meeting that he thought Norriston Heights was an unusual situation given its proximity to homes, and the sale might merit more attention from the agency.

The forestry board is the agency’s policy oversight board. But Daugherty cut off any further conversation by citing a specific section of Oregon Administrative Rules that limit the board’s authority to second guess particular timber sales.

“Just to be real clear,” he concluded, “you’re not directing or giving me any advice in this matter. Thanks.”

 

Failing forestry: Oregon Forestry Department faces financial crisis: Oregonian Story

By Ted Sickinger
September 25, 2019

The Oregonian

The Oregon Department of Forestry has failed to collect nearly $100 million it is owed for wildfire costs dating back as far as 2015, creating a cash flow crunch that is undermining core operations and forcing its leaders into a financial shell game to pay the bills.

In June, agency leaders restructured a $50 million line of credit with the Oregon Treasury to avoid default. Then they borrowed $18 million from the Department of Administrative Services to cover two months of payroll costs – loans they’re required to “repay” in coming months but will immediately renew to keep cash on hand.

Meanwhile, the agency has been forced to drain internal cash reserves that support other departments, tapping one fund that is supposed to support state forests for $27 million and another for private forest landowners for $15 million.

Those funds must be repaid, too, and officials acknowledge that their temporary subsidization of fire costs is hampering work in other areas. The agency has put a freeze on an all non-essential spending to conserve cash, including computer and motor pool purchases, travel and training.

The cash flow problem only came to light in mid-June, when the agency nearly defaulted on its line of credit from Treasury. It eventually paid off half of its $50 million obligation, but extended the repayment period for the other half until April. That may not be an option going forward, as Treasury might not be willing to continue the practice.

“As the frequency and severity of Oregon’s fire costs grow, along with the complexity and duration of underlying repayment mechanisms, Treasury’s interfund borrowing program may no longer be the right tool to support these ongoing cash flow needs,” Rachel Wray, a spokeswoman for Treasury said Tuesday.

That near default prompted the co-chairs of the Legislature’s Ways and Means Committee to demand a monthly memo from State Forester Peter Daugherty detailing the agency’s financial condition and the steps he is taking to solve the problem.

Sen. Betsy Johnson, D-Scappoose and one of the three co-chairs, said the agency had not been forthcoming with the size or the nature of the problem with the Legislature or the Board of Forestry. She said she’s still trying to piece together “what I consider to be a crisis.”

“There has not, in my view, been a complete disclosure of the problem,” she said. “I am terribly disappointed by the agency’s inability to process its outstanding claims that stretch back four years,” Johnson said. “At some point the data may become irretrievable.”

Daugherty did send an email in mid July to Board of Forestry members describing the nature and extent of the issue.

“I take full responsibility for the department finding itself in such a precarious position, with only two weeks left in the fiscal year,” he said. “It will be important for me to ensure that clear, consistent communication between finance functions in the Fire Protection and Administration divisions are seamless and that adequate controls are in place to identify and escalate this type of issue as early as possible.”

In his August and September memos to the co-chairs, Daugherty said the root of the problem was Oregon’s outdated approach to covering firefighting costs at a time when the severity of wildfires has increased and the related costs have mushroomed.

The agency’s fire division is responsible for fighting fires on private and state land. It also contributes much of the resources needed to fight fires on lands owned by the Bureau of Land Management and U.S. Forest Service. Most of those costs are reimbursable by the state and federal government, but the agency says it simply doesn’t have financial capacity to float those escalating costs until the bills get paid.

Bill Herber, the agency’s deputy director for administration, said another issue is that the agency hasn’t been adequately staffed to process the backlog of expense claims after years of high-cost fire seasons. That involves digging through boxes of old shift tickets and lists of equipment used on fires as far back as 2015, reviewing them against old cost-sharing agreements, auditing the results and submitting the claims.

The agency just closed out its expense claims from fires in 2013 and 2014. It has $93 million in unreimbursed costs from fires between 2015 and 2018, half of which have yet to be invoiced. And though the 2019 fire season has been fairly mild to date, it has another $32 million in costs that will take at least a year to reimburse.

“Some of this just creeped up on us,” Herber said. “It all culminated pretty suddenly. It overwhelmed our ability to really track it… There’s a lot of work that goes into determining how much needs to be paid and by whom.”

The agency is currently working with the legislative fiscal office and the state’s chief financial officer to beef up its collection efforts, improve its documentation and invoicing processes, and track its cash flow on a weekly basis. Herber said the agency had transferred staff internally to address the backlog, and those efforts have led to quicker turnaround of more recent expenses and successful collection of some older debts.

Agency leaders plans to request more money to help address the crisis in the 2020 session. Longer-term, they say Oregon needs to restructure its approach to cover the cost to fight large wildfires.

“We are committed to appropriately responding to the new challenges fire seasons are presenting and working closely with the governor’s office, the governor’s council on wildfire response and legislators to identify a long-term solution,” Daugherty said in a Sept. 3 memo to the co-chairs.

Johnson said she was skeptical of the agency’s requests for general fund money when it had $93 million in reimbursements outstanding.

“It’s a management problem, or a prioritization problem,” she said.

Tom Imeson, the chair of the Board of Forestry, said problem needs a legislative fix and the board will be taking it up at an October meeting focused on strategic planning.

“This topic will be an important discussion item at that meeting.”

Kristina McNitt, president of the Oregon Forest & Industries Council, described fire protection as the number one priority for Oregon’s private forest landowners and said the department’s protection program is the envy of the nation.

But she said “the current fiscal crisis is alarming, not least of which the agency’s precipitous loan to itself of $15 million from the Oregon Forestland Protection Fund, predominantly funded by fees and taxes paid by private forestland owners. The state legislature, the Oregon Board of Forestry, and Oregon’s private forest landowners deserve answers and transparency from the agency.”

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