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Timber Ruling Favors Salmon by Robert McClure Seattle Post-Intelligencer, June 1, 2001

Tree sales barred as court says federal agencies ignored impact on fish

In a victory for fishermen and environmentalists seeking to protect sickly runs of Pacific Northwest salmon, a federal appeals court yesterday barred nearly 200 timber sales stretching from southern Washington to Northern California.

The 9th U.S. Circuit Court of Appeals said federal agencies allowed the sale of trees on as much as 20,000 acres under a system that "appears to be calculated to ignore the effects" of logging on salmon and cutthroat trout protected under the Endangered Species Act.

The court singled out the agencies' decision to assess damage starting 10 years after trees would be cut, when in fact three generations of salmon and other affected fish would swim out to sea and return to spawn during that decade.

"This generous time frame ignores the life cycle and migration cycle of (these) fish," the court ruled. "In 10 years, a badly degraded habitat will likely result in the total extinction of subspecies that formerly returned to a particular creek for spawning."

Logging harms fish in a number of ways:

• Streams that lose shade can easily grow too warm to support young fish.

• Dirt can run off deforested areas more readily, clouding nearby watercourses.

• Trees that would otherwise fall into streams, creating pools where fish can rest and eat, are taken away.

The National Marine Fisheries Service figured that the short-term and localized effect of a timber sale would not be significant, the court said. A timber sale might affect several hundred acres, but the Fisheries Service looked at effects across a whole watershed, which might cover hundreds of square miles. At that scale, the impact look puny.

The Fisheries Service said that for a timber sale to be blocked, it would have to be shown that it would create "a measurable worsening of ... conditions across the entire watershed."

But environmentalists and fishermen argued that fish return to specific streams to spawn, and logging in a relatively small area could hurt the fish in the stream that drains that area.

U.S. District Judge Barbara Rothstein of Seattle agreed, calling the Fisheries Service's actions "arbitrary and capricious." Yesterday the San Francisco-based appeals court agreed.

"This optimism may be justified for the purpose of counting trees, but for the purposes of counting (these) fish, it is wholly unrealistic," the court ruled.

Patti Goldman of the Earthjustice Legal Defense Fund, the lawyer who represented environmentalists and fishermen, criticized the Fisheries Service for evaluating each proposed timber cut without taking into account the cumulative impact of other timber sales in a given area.

"The agencies have been cutting corners," Goldman said. "It doesn't matter if the trees will grow back and there will be salmon habitat later if the fish haven't been able to hatch and return in the meantime."

At issue in the case decided yesterday were 23 timber sales around the Umpqua River in southwestern Oregon where the Umpqua cutthroat trout and Oregon Coast coho salmon were among the first oceangoing fish to receive protection under the Endangered Species Act.

The ruling also puts on hold another 170 timber sales, from the Gifford Pinchot National Forest near Mount St. Helens to Northern California's Shasta Trinity National Forest, federal officials and lawyers familiar with the case say.

Altogether, some 15,000 to 20,000 acres are affected by the ruling, Goldman estimated.

The case turned in part on the Northwest Forest Plan, which was adopted in 1994 to protect the northern spotted owl and other dwindling plants and animals in old-growth forests.

That plan already reduced timber harvests in the region by about four-fifths. It covers 24.5 million acres, mostly on the western slopes of the Cascade Mountains.

The timber sales had been authorized by the U.S. Forest Service and the Bureau of Land Management based on Fisheries Service approval.

"We're going to have to work with the National Marine Fisheries Service to figure out what to do," said Rex Holloway, a spokesman for the Forest Service. "Once the lawyers go through and figure out what this means, we'll know how to proceed."

A timber industry spokesman said Rothstein's ruling and the appeals court's affirmation, if allowed to stand, will also block projects intended to help salmon and other fish.

For example, said Chris West of the American Forest Resource Council, replacing a culvert that blocks salmon from spawning upstream will dislodge cloudy water that can hurt fish -- a "short-term" impact like those Rothstein said need to be considered.

If timber sales can't proceed because of short-term effects, then it stands to reason that these pro-salmon activities likewise are forbidden, West said.

"We're totally shocked," he said of the ruling. "If you can't have any effect, nothing can go forward, whether it's restoring a stream or fixing a road or even forest management activities -- including logging -- that add diversity and improve forest health."

Yesterday's ruling by a three-judge panel of the appeals court may be further appealed to the entire panel of 9th Circuit judges, and could eventually end up at the U.S. Supreme Court, West said.

"The good news is that the 9th Circuit doesn't have a real good track record at the Supreme Court," he said.