From The Oregonian, Jan. 2, 2003, p B1

Ruling affects private timber
A judge says Oregon's state forester must follow federal environmental
law when approving logging projects

By MICHAEL MILSTEIN, The Oregonian
A little-noticed court ruling promises to force Oregon forestry
officials to hold logging on private timberlands to higher
environmental standards than they have long maintained.
The ruling decisively strikes down the Oregon Department of
Forestry's contention that it need not ensure that the private logging
projects it approves adhere to the federal Endangered Species Act.
The federal law, often stricter than state law, clearly prohibits
anyone from harming protected species, U.S. District Judge Anna J.
Brown of Portland ruled during Christmas week.
"By its plain terms, this prohibition extends to governmental
entities (including the state) and makes them liable in the same
manner as private parties," she wrote.
Although state officials downplayed it, the decision raises the
environmental bar for private-lands logging, now the maintstay of
logging in the Northwest and often more closely overseen by the state
than the federal government.
The ruling came in the course of a February lawsuit five conservation
groups brought against State Forester James Brown, who must review all
logging in Oregon to see that it complies with the state Forest
Practices Act. They allege he routinely violates the U.S. Endangered
Species Act by approving clear-cut logging in Northwest Oregon that
leads to landslides and erosion harmful to protected coho salmon.
Trying to head off a broader ruling on whether such logging is
harming salmon, the state, joined by timber industry groups and
forested Tillamook County, asked Brown to dismiss the case. They said
the lawsuit was misplaced because it's not the state's job to enforce
federal law.
The 10th Amendment to the Constitution keeps the federal government
from making states enact federal regulations, and the 11th Amendment
protect the state from such lawsuits, they argued. They also contended
that the loggers who cut trees, not the state forester who allows it,
must see that they comply with endangered species safeguards.
State officials have taken the same stance when wildlife groups have
complained that the state Forest Practices Act - praised by the timber
industry as a model of responsible forestry - does not live up to
federal standards.
But the judge solidly rejected the state's arguments, saying the
state forester is liable if he authorizes actions that harm endangered
species.
The judge did not rule on whether state-permitted actions are in fact
harming species, and state officials strongly deny that they area. But
by refusing to dismiss the case, the judge clears the way so she can
decide that question.
"The idea that they don't have to show they are complying with the
Endangered Species Act has been a pretty prominent piece of their
defense, and now the judge has taken that away," said attorney Patti
Goldman of Earthjustice, which represents the conservation groups
including the Pacific Rivers Council, Audubon Society of Portland and
Native Fish Society.
"Our hope is that this will make them look at their position and
recognize they can't keep dodging the issue," she said.
If the judge does determine the state is allowing harm to protected
species, the conservation groups want her to order the state forester
not to allow logging on steep slopes, along streams and in other
sensitive sites. Such a ban could affect thousands of acres of private
timberlands in Northwest Oregon and echo through other parts of the
state with species issues, prompting what landowners may see as
onerous new mandates.
"It could create a whole new atmosphere for forest stewardship in
Oregon, and not necessarily a good one," said John Poppino, president
of the Oregon Small Woodlands Association, which intervened in the
lawsuit on behalf of the state.
Assistant State Forester Charlie Stone played down last week's ruling
because it did not address the underlying issue of whether
state-approved logging harms coho salmon.
"It was a ruling simply that she did not find the state arguments
powerful enough to dismiss the case out of hand," he said.
Even if the state had to enforce the federal Endangered Species Act -
and despite the ruling, state officials still don't think they do -
there remains no evidence state-approved logging is violating the law,
he said.

Posted as a courtesy by
Daniel B. Wheeler
www.oregonwhitetruffles.com