March 23, 2005

Fiddler sale gets its day in court

By Robert Plain
Ashland Daily Tidings

The fate of thousands of acres of old growth in the Siskiyou National Forest was again being fought over on Tuesday. But this time the ancient trees were a source of contention in a federal courtroom in Medford, rather than the banks of the Wild and Scenic Illinois River, where this battle has seen a separate front.

Though the cast has changed from hardy locals to out-of-town lawyers, the two groups both work to preserve the same network of old-growth forests.

The case was Siskiyou Regional Educational Project, an environmental organization based in the Cave Junction area, versus Linda Goodman, a regional forester with the U.S. Forest Service. At issue were the provisions of the Biscuit Fire Recovery Project that allow for salvage logging in late successional, or old growth, reserves such as the Fiddler Mountain area that have recently seen both timber harvesting and civil disobedience.

The Siskiyou Regional Educational Project, which was represented by lawyers from Earthjustice and the Western Environmental Law Center, contended that the Forest Service had violated the 1994 Northwest Forest Plan by allowing for emergency logging of old growth forest that were affected by the 2002 Biscuit Fire.

"Your honor, we ask that the LSR and roadless area Records of Decision be ruled invalid," Kristen Boyles, a Seattle attorney with Earthjustice said. Her client claims the forest service did not adequately study the effects of soil erosion on the area fisheries or the effect it will have on wildlife.

The government, represented by the Department of Justice, countered that the Northwest Forest Plan actually contained a provision for emergency salvage logging.

"Everything the agency is required to do is in the [Environmental Impact Statement], your honor," said Roger Martella, the U.S. attorney. "[The agency's] decisions should be reaffirmed unless they are construed to be arbitrary and capricious."

The Fiddler Mountain area, which has been the scene of recent logging protests that have resulted in at least 40 arrests, is a portion of the 47 million board feet of timber that the forest service wants to cut from roadless areas and old growth reserves. It was, at one time, protected from chainsaws by the 1994 Northwest Forest Plan. This Clinton-era multi-jurisdictional management plan extended protection to this area - as well as many others in Northern California, Oregon and Washington - partially because they contained critical habitat for the northern spotted owl.

However, after the summer of 2002, when the Biscuit Fire burned nearly 500,000 acres in the Rogue River Siskiyou National Forests, this designation changed.

As part of the Biscuit Fire Recovery Plan, the Forest Service, in what lawyers described as the biggest timber sale in the lower 48 over the last 50 years, decided to sell 19,465 acres of timber, much of which was previously declared old growth, to help defray the massive expense associated with fighting that fire.

The BFRP was released in June 2004. The forest service was sued over that Record of Decision in July. And it is that litigation that brought the various groups to court on Tuesday.

During opening remarks, Martella reminded Magistrate Judge John P. Cooney that his job "was not to referee the case between the different scientists." The court's role, he explained, "was to see if the agency took a good hard look at the issue."

But Mark Fink, a Boise lawyer with Western Environmental Law Center, said that, in fact, the judge was to rule, partly, on whether the Forest Service addressed the impact on wildlife and soils.

"The Forest Service has not addressed the cumulative impacts on wildlife species," he said. "And they haven't shown how they are going to comply with their own forest policy standards." Specifically, he said, "in regards to the 15 percent soil rule" which states that commercial timber harvesting cannot affect more than 15 percent of the area soils.

A similar case, Oregon Natural Resources Council v. Brong, was found for the plaintiff last summer. In that case, Judge Ann Aiken ruled that salvage logging was not permissible in old growth reserves affected by fire. However, that case is not a binding precedent since both cases were heard at the Circuit Court level.

The Forest Service's defense is based around the economic interest of recouping some of the dollars spent on fighting forest fires through salvage timber sales. The agency does not pretend to engage in the timber sales for ecological benefit.

"Salvage is defined as removal," Martella said. "The Northwest Forest Plan does not require the agency to come up with an ecological purpose."

Judge Cooney asked that both parties submit to him briefs on how a Wyoming District Court decision in 2003, that enjoined the roadless rule in that state, would bear on his decision. As with Brong, Judge Cooney could use this decision to help him decide on the merits of the case before him, though he is not legally obliged to do so.

Staff writer Robert Plain can be reached at 482-3456 x 3040 or bplain@dailytidings.com.