Court grants EPA new hearing on pesticide ban

An environmental lawsuit against logging practices in the Tillamook and Clatsop state forests will be allowed to proceed as long as the allegations are made more specific.

Oregon forestry officials had urged Chief U.S. District Judge Michael Mosman to dismiss environmentalist claims that logging in those state forests violates the Endangered Species Act.

In 2018, five environmental and fisheries groups led by the Center for Biological Diversity filed a legal complaint against the Oregon Department of Forestry alleging that logging and associated activities are harming threatened coho salmon by discharging sediment into streams.

The complaint sought an injunction against timber harvest on the two state forests, but the Oregon Department of Forestry argued its legal arguments don’t pass muster under the U.S. Constitution, federal statutes or case law.

During oral arguments in Portland on Jan. 17, much of the debate centered on the level of detail necessary for the environmental lawsuit to move forward.

Attorneys for the State of Oregon claimed the complaint should address specific timber sales rather than generally criticizing logging practices.

"We need as much specificity as we can get so we know what type of conduct they're talking about," said Sarah Weston, attorney for the State of Oregon. "The state is prejudiced by not knowing what and where we're exactly talking about."

The environmental plaintiffs have to identify which modifications from logging are harming actual fish, and not just deal hypothetically, she said.

"Coho don't live in all streams in a watershed. Some of them are too small for them to live in," Weston said.

Jay Waldron, an attorney representing Tillamook County, said the state forests are vast and include thousands of streams.

"About half the county is steep slopes," Waldron said, noting that specific timber sale implementation plans provide a high level of detail.

"You're talking about hundreds of square miles in those watersheds. That's like saying cars in Multnomah County cause accidents," he said.

Amy Atwood, attorney for the plaintiffs, said it would be incredibly difficult for the court to manage "every link in the chain of causation" between logging and habitat damage if each specific timber sale had to be analyzed.

"I just don't know how that's the best use of anyone's time," Atwood said.

Mosman agreed with several of the environmental groups' points, ruling they can point to past logging problems as evidence of impending harm and argue existing stream buffers are inadequate to protect fish.

The judge also held that "there is nothing in the law that requires a sale by sale approach" when reviewing Endangered Species Act claims.

However, Mosman said the existing complaint comes "dangerously close" to arguing that logging has caused habitat damage in the past and therefore future logging necessarily will harm coho salmon.

"I do think this complaint is at an improperly high level of generality," he said.

The judge said the plaintiffs will be allowed to amend their complaint to be more specific, potentially by grouping examples of alleged habitat damage to support their Endangered Species Act claims.

The state's lawyer argued that it doesn't have the same Endangered Species Act obligations as federal agencies do on public land.

The ESA simply prohibits state governments and other landowners from killing or injuring protected species, with the option of obtaining an “incidental take permit” that allows limited harm to such species as long as conservation measures are followed, the agency said.

The plaintiffs in this case want the Oregon Department of Forestry to obtain such a permit and abide by an associated “habitat conservation plan” for coho salmon, but they can’t force the agency to take this step, the agency said.

Landowners are prohibited from “take” under the ESA but the hazard must be imminent and they can choose an alternative method of preventing harm to the species other than obtaining an “incidental take permit,” the agency said.

Logging, road-building and log-hauling are regulated under Oregon’s forest practices rules aimed at preventing landslides, erosion and other deleterious impacts, the agency said.

The environmental plaintiffs countered that the harmful activities to coho salmon in the two state forests are ongoing, which is supported by past examples of clear-cutting on erosion-prone slopes increasing the frequency of landslides.

The lawsuit doesn’t challenge ODF’s forestry regulations or management practices but rather seeks to show they don’t prevent “take” of the threatened fish, the plaintiffs claim.

Amy Atwood, the plaintiffs' attorney, said that other courts have required state defendants to apply for incidental take permits.

Mosman, the judge, said that, at this point, he cannot consider forcing Oregon officials to take this step, since such matters are only relevant if the state government is found liable for harming the species.

"We're a long way from that day but I am aware I have awesome powers," he said.

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

Recommended for you