Decision on Legality of Roadless-Area Logging Delayed
By Paul Fattig, Medford Mail Tribune
March 23, 2005

Following a Tuesday hearing challenging logging in old-growth reserves and roadless areas burned by the 2002 Biscuit fire, a federal judge in Medford asked attorneys for further assessments of a legal precedent in a 2003 roadless area rule lawsuit.

After listening to nearly four hours of debate, U.S. District Court Judge John P. Cooney recessed and asked the attorneys for additional legal briefs on cases impacted by that decision.

He was referring to a decision by U.S. District Court Judge Clarence Brimmer on July 14, 2003, that blocked implementation of the Clinton administration’s Roadless Area Conservation Rule.

In that decision, Brimmer held that the roadless rule violated the National Environmental Protection Act (NEPA).

Cooney wants the briefs by April 8. The Medford hearing is the result of a lawsuit brought by lead plaintiff Siskiyou Regional Education Project, of the Illinois Valley, against U.S. Forest Service regional forester Linda Goodman.

The lawsuit specifically challenges a decision to log six timber sales totaling 47 million board feet in roadless and late-successional reserves (LSRs). The latter is commonly called old-growth reserves.

The agency plans to harvest up to 372 million board feet of timber killed by the fire in the Siskiyou portion of the Rogue-River Siskiyou National Forest. The total salvage will be on 19,465 acres of the nearly half-million acres burned.

Plaintiff attorneys Mark Fink of the Western Environmental Law Center and Kristen Boyles of Earthjustice, both based in Seattle, argued that the Wyoming case does not set a precedent. Moreover, they said it contradicts roadless rule decisions made by the U.S. 9th Circuit Court of Appeals in San Francisco.

The plaintiffs say the 1994 Northwest Forest Plan created the LSRs primarily as habitat for old-growth species. Leaving the burned timber standing is vital to reducing erosion and helping restore fish and wildlife habitat, they say.

Although saying the plaintiffs did not want to stop all salvage logging, Boyles challenged the agency on roadless areas, logging old-growth timber and the impact on the fishery of sediment created by logging.

Moreover, she said the environmental impact statement (EIS) lacks an assessment of the impact that potential landslides and erosion will have on the fishery. There’s also no analysis of what effect roadbuilding and resulting sediment will have on fish.

After a defense attorney noted that only 4 percent of the burned area was being logged, Boyles replied it is the area where salvage would occur that is at issue.

"My heart may be only 4 percent of my body weight but doing harm to it would certainly harm me," he said.

Fink also agreed the EIS is insufficient, including the soil impact analysis as well as how much forest soil was damaged by the fire.

Agency promises to mitigate potential future problems aren’t acceptable, Fink said.

Fink questioned whether the agency is complying with the Appeals Reform Act of 1973, noting there is no evidence the agency responded to the 27 administrative appeals to the salvage plan.

Roger Martella, a U.S. Department of Justice attorney representing the Forest Service, said the 1994 plan clearly permits logging in the LSRs.

The agency isn’t arguing the salvage will benefit the environment, he said, noting it is an economic decision. But he noted that doesn’t mean logging will harm the environment, he added.

"But it’s not true the Forest Service gives no value to dead trees," he said, noting that more than 90 percent of the old snags will remain after the salvage is completed.

Contrary to comments by the plaintiffs, Martella said the agency is taking steps to avoid erosion and sediment problems.

"To say the agency isn’t doing it is just not right," he said.

Scott Horngren, the attorney representing the American Forest Resource Council, agreed. A timber industry group, the council is siding with the agency.

After Cooney makes his finding, participants have 10 days to respond.

If they disagree with Cooney, they can respond to U.S. District Court Judge Michael Hogan in Eugene.

Hogan would be expected to take several weeks to make a ruling based on the response. His decision could then be challenged in federal appeals court.

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