Analysis

By MATEUSZ PERKOWSKI

Capital Press

The U.S. Bureau of Land Management has given up defending its logging plans for Western Oregon, but that doesn't mean the legal fight is over.

The federal government has said environmental groups are right that its plan to double logging on 2.5 million acres of public land in the region violates the Endangered Species Act.

While BLM has thrown in the towel, timber industry groups continue to defend the Western Oregon Plan Revisions, known as WOPR.

The BLM is acknowledging defeat to sidestep a previous court ruling that prevented the agency from throwing out the plan, according to timber companies involved in lawsuits in Oregon and Washington, D.C.

"We do feel the federal government is trying to achieve the same outcome," said Julie Weis, an attorney for timber companies, during a recent court hearing in Portland.

The WOPR was approved during the Bush administration but was withdrawn after the Obama administration came into power in 2009.

Earlier this year, a federal judge in Washington, D.C., ruled that the government improperly yanked the plan without submitting its decision to public comment.

That ruling effectively reinstated WOPR, triggering a lawsuit against the plan in an Oregon federal court by the Pacific Rivers Council and other environmental groups.

The BLM was thus forced to defend a plan it no longer supported.

The agency tried to resolve the dilemma by asking the judge in that case to rule in favor of the environmentalists, vacate the WOPR and order the federal government to reconsider the plan.

That move angered Douglas Timber Operators, a coalition of companies that challenged the original withdrawal decision in federal court in Washington, D.C.

The federal government "is trying to accomplish precisely the result that this court rejected -- nullification of the WOPR" without following notice-and-comment procedures, the group said in a court filing.

Douglas Timber Operators has asked the federal judge in Washington, D.C., to order the BLM to recant its admission that the plan was approved unlawfully.

That motion is pending while the court case in Oregon has reached an important juncture. The judge overseeing the lawsuit recently heard oral arguments, during which Pacific Rivers Council argued that WOPR must be overturned.

Regardless of the BLM's change in mindset, the judge should vacate and remand the plan, said Kristen Boyles, an attorney representing the environmental plaintiffs.

There's enough evidence to prove the BLM acted unlawfully by not consulting with other federal agencies about WOPR's potential effects on threatened and endangered species, she said.

"With or without BLM's position, we would prevail because the facts are so clear," Boyles said. "BLM's admission of error is welcome but not necessary at this point."

Timber companies that intervened in the case -- Ron Hailicka Equipment and Oregon West Lumber Sales -- requested that the judge postpone any decision until the court in Washington, D.C., rules whether the BLM's concession is legal.

Weis, the timber companies' attorney, said the environmentalists have asked the court to accept at face value that BLM committed a legal error in approving WOPR without examining all the internal documents that led to its decision.

"The record has not been compiled," she said. "We feel we should have the opportunity to examine the complete administrative record."

For its part, the federal government claimed it has no documents in the administrative record that would shed further light on WOPR's approval.

The documentation submitted by BLM is sufficient for the judge to make a decision whether the agency violated the Endangered Species Act, said Coby Howell, an attorney representing the government.

Howell said there's no sense in delaying a ruling in the case, since Douglas Timber Operator's strategy of forcing BLM to retract its concession is unlikely to work.

"They're asking for an extraordinary remedy," he said. "I think it's a very low possibility they're going to be successful."