IF ONLY TREES COULD SUE

Faced with state laws and state agencies that damage Oregon’s forests, environmental groups have resorted to lawsuits and court actions for many years. These groups say that the compromised laws that govern timber in Oregon, as well as a poorly focused Oregon Department of Fish and Wildlife and a legislature bought off by logging interests – combine to force them to take legal action if Oregon dwindling old-growth timberlands are not to be lost.

Recently in these efforts, Cascadia Wildlands, the Audubon Society of Portland and Center for Biological Diversity and Oregon Wild, have leveraged a small sea bird, the marbled murrelet.

The marbled murrelet is considered a bellwether for other old-growth dependent species. It has been categorized as “threatened” by the Oregon Endangered Species Act for nearly 30 years. Although they are ocean birds, murrelets only nest and roost in old-growth and mature coastal rainforests – forests the groups say are increasingly fragmented because of clearcutting on private and state lands.

“For the last 30 years, Oregon’s plan for marbled murrelets has been to look the other way while their habitat is clear-cut,” says Oregon Wild Conservation Director Steve Pedery.

Marbled murrelets use the Tillamook and Clatsop State Forests and the 93,000-acre Elliott State Forest east of Coos Bay, which the state has made repeated efforts to sell to timber operations.

 

“State lands… that contain mature forests with big old growth trees are critical for the marbled murrelet and numerous other older forest species,” says Nick Cady, Legal Director of Cascadia Wildlands. “These large contiguous tracts of old forest are incredibly rare in Oregon’s Coast Range, which is largely privately owned industrial timber land.”

Although the state of Oregon has a mandate to manage these forests for a host of different values including conservation, recreation, climate change protections and clean water, “unfortunately,” Cady says, it “exclusively focuses on heavy industrial timber management” of forests. This results in large clearcuts, “followed by aerial pesticide spraying and the replanting of dense, Douglas-fir farms or plantations, not to mention the aggressive trapping of bear and beavers and any other species that would damage the new plantings.”

FORESTRY ACT STACKS THE DECK AGAINST FORESTS

Environmental groups contend that a long series of state decisions have led Oregon to have what Cady calls “the weakest forestry regulations in the country.” The first is the Oregon Forest Practices Act (OFPA) of 1971, a set of laws that established standards for commercial timber harvesting in the state. Overseen by the Oregon Department of Forestry (ODF), the laws are viewed as disastrous by environmentalists like Arran Robertson of Oregon Wild.

Robertson contends that the OFPA, rather than setting smart rules for managing healthy, sustainable forests, encourages rampant clearcutting, “even on steep slopes, which contributes to landslide risks.” The act, he says, “converts healthy, biologically diverse forests [into] monoculture plantations,” and does not protect or encourage the recovery of old growth stands, which are necessary habitat for species like the marbled murrelet and important for carbon storage. Federal agencies like the Environmental Protection Agency and the National Oceanic and Atmospheric Administration have warned the state for several years that the act allows insufficient buffers around fish bearing streams and has weak rules that don’t protect people or drinking water from aerial pesticide spraying.

Environmentalists also object to how the OFPA makes timber harvesting beneficial for corporate interests, often outside the state, while residents and Oregon wildlife bear the burden. They suffer from unregulated aerial pesticide spraying, their drinking water is contaminated – and they don’t even get the income.

“The OFPA contains a number of tax loopholes and regulatory exemptions that hurt rural Oregon counties,” Cady says. While logs harvested from state and federal forests are required to be milled within the country – the OFPA specifically exempts private industrial timber owners from this requirement. “Accordingly,” Cady says, “almost all logs off of private timber lands in Oregon are shipped unprocessed to Asia and milled overseas with Oregon missing out on the jobs and tax income associated with milling.”

The OFPA also gives significant property tax breaks and exemptions to private commercial timber owners. Private timber owners with holdings of over 5,000 acres are also exempt from a severance tax (a tax paid on logs that are harvested) that smaller timber owners are required to pay.

“Essentially,” Cady says, “these… exemptions allow industrial timber companies, especially those with over 5,000 acres, to remove a natural resource from Oregon largely without paying tax or contributing to the local economy.”

Forty years after the Forestry Act, state officials adopted a2011 Forest Management Plan that increased clearcutting and nearly doubled the annual timber harvest rate within the Elliott State Forest. The land has an historic mandate to generate revenue for the Common School Fund, a source that helps finance Oregon K-12 public schools. Environmentalists believe the state can both allow timber sales for the Common School Fund and also manage it for ecological, social, and recreational purposes.

But the Oregon State Land Board, made up of Gov. Kate Brown, Secretary of State Jeanne Atkins and Treasurer Ted Wheeler, tried to sell 788 acres to timber interests in 2011, and August 2015 determined to dispose of the entire Elliott property for clearcutting by private logging interests.

The alternative, to create a balanced forest plan “that balances ecological and recreation needs with revenue production,” as suggested by Robin Meacher of Cascadia Wildlands, has no traction with the land board.

Finally, although the Oregon Department of Fish and Wildlife (ODFW) is charged with an “overriding obligation to manage to prevent the serious depletion” of native wildlife, says Robertson, “Only 2% of ODFW’s budget actually goes to non-game species conservation. The marbled murrelet has been listed as threatened for almost thirty years with no recovery plan… It’s a clear example of conflict between the agency’s core mission and what is being actually carried out.”

 

TAKING IT TO THE COURTS

In 2012, the groups brought a lawsuit under the Endangered Species Act, challenging the state’s logging program on the Elliott, Tillamook, and Clatsop State Forests, because the logging being authorized was causing murrelet loss. They had some success; a federal court found that the state of Oregon – in its quest to ramp up clearcutting in the Elliott – violated the federal Endangered Species Act. This forced the cancellation of 28 old-growth timber sales.

In 2014, the groups filed another lawsuit against the state, challenging the sale of the 788-acres to Seneca Jones Timber Company. The Oregon Court of Appeals will decide that case soon.

In June of this year, an alliance that included Cascadia Wildlands, Center for Biological Diversity, Oregon Wild and Portland Audubon submitted petitions that asked both the Oregon Department of Fish and Wildlife (ODFW) and the Oregon Board of Forestry to take new measures to better identify and protect forest areas for the marbled murrelets,

The petition to the ODFW asks that the bird be “uplisted” to “endangered” status so it will receive greater protections than it receives as simply “threatened.”

The second petition, to the Board of Forestry, asks the agency to identify and protect important forest sites critical to the murrelets’ survival.

Both petitions direct the state to change its course. As Cady says, “Not only has the state failed to take any meaningful measures to recover and protect murrelets, the state itself… is primarily responsible for the recent dramatic loss in breeding habitat.”

AN ONGOING STRUGGLE

“We live in a state where Oregonians treasure our old-growth forests and wildlife, but where there is a growing gap between the public’s values and the actions of our politicians and state agencies,” says Tierra Curry, a senior scientist with the Center for Biological Diversity.

When state agencies and state laws degrade the forest environment, groups like Cascadia Wildlands feel they have few options other than taking legal action. “It has been impossible to address these issues directly in the legislature without being immediately shut down,” Cady says. “Even in the face of huge public health concerns and death, reform has not come. He says this happens because the timber industry contributes heavily to political figures on all sides of the aisle in Oregon.” It is estimated that logging interests donated almost $600,000 to legislators in the 2014 election season.

Continued lack of political will and legislative inaction predicts an Oregon where decisions about air and water quality, fish, wildlife and human health are not made in the best interest of those who live here. And advocates for forests will continue to take to the courts.