Archive for July, 2011

We wrote earlier this month about a recent Ninth Circuit Court of Appeals decision that threw out 35 years of legal precedent and federal environmental policy by claiming for the first time that logging roads should be treated as if they were industrial sites. We also described the legislation that was introduced in Congress to overturn the decision.

Local, state and federal officials have now had a couple weeks to consider the legislation — and the news is not good for the environmental groups that so desperately want logging roads to be treated like textile factories, despite 35 years of state regulatory practices that do a better job of protecting water quality than the federal system.

The New York Times described the reaction as a “political backlash.” Representatives and senators from both sides of the aisle have lined up in favor of the legislation, and Oregon Gov. John Kitzhaber said his state will ask the U.S. Supreme Court to review the Ninth Circuit decision. The governor said the court’s decision would open up forest owners to lawsuits from environmental groups.

“…(W)e are at a point in the history of our management of forest lands where we need to develop stability, consensus, and collaboration, not management by lawsuit. Dramatically expanding citizen lawsuits risks accelerating the conversion of our forest land to development, costing us both in terms of harvest revenue and environmental values, as well.”

Perhaps it shouldn’t be a surprise that the Ninth Circuit’s decision would be so widely reviled. The Los Angeles Times pointed out this month that the U.S. Supreme Court “reversed or vacated 19 of the 26 decisions it looked at from the 9th Circuit this judicial term.”

Although the proportion of reversals was relatively in line with past years and other appellate circuits across the country, the 9th Circuit was often out of step even with the high court’s liberal justices, who joined with the conservatives in 12 unanimous rulings.

The Oregonian’s editorial board also came out in favor of overturning the Ninth Circuit decision.

If the ruling stands, it would require tens of thousands of permits for new and existing forest roads, on both public and private lands. And because the Clean Water Act allows citizen lawsuits, virtually every logging project anywhere in Oregon could be challenged. That’s the last thing that the Oregon timber industry needs as it struggles to compete with timber producers in other parts of the country and the world, none of which face this regulation of forest roads.

Why should you care? The Oregon economy still relies on the timber industry, which provides 125,000 direct jobs and tens of thousands of related jobs. Moreover, where private forest owners go, so go Oregon forests. Already owners are resisting forces pushing them to sell their timberland for development. A burdensome new regulation that makes Oregon timber less competitive will cost more private forests.

The reaction from environmental groups to the backlash seems to be schizophrenic — somehow both shocked and resigned.

The bill overturning the Ninth Circuit decision “came like a bolt out of the blue to us,” said Steve Pedery, conservation director for Oregon Wild, to the Oregonian.

But Peter Goldman with the Washington Forest Law Center tried to claim to the New York Times that environmentalists knew all along.

“We knew this was going to happen,” Peter Goldman, one of the lawyers at the Washington Forest Law Center who won the case on behalf of the Northwest Environmental Defense Center, said of the reaction. “We are disappointed but not surprised.”

Well, which one is it? Either way, it’s going to be a long road for environmental groups to prevail now that the public is having its say.

Even seemingly obscure legislative committees can have huge consequences for the timber industry, and no one should assume that the summer months will necessarily be quiet. In Washington state, the Joint Legislative Audit and Review Committee (JLARC) came out this week with a preliminary report that recommends allowing an exemption on sales and use tax for woody biomass, otherwise known as hog fuel, to expire in 2013.

The end of this exemption would obviously have huge ramifications on the timber industry. Biomass generation is a critical factor in ensuring the survival of the industry, which is still so important to rural communities across the West. And as any biomass plant developer will tell you, support from federal and state officials, including grants and tax exemptions, are what allow the plants to be economically viable in a field with already slim profit margins. Without governmental support, the plants don’t pencil out.

The preliminary report this week from JLARC in Washington was actually researched and written by the committee’s staff members, and the recommendations would need to be approved by JLARC and then the Legislature next year. But the very idea that the committee would consider throwing out the biomass tax exemption is troubling.

In a hearing this week, the biomass exemption was one of only two tax exemptions that the JLARC staff members recommended allowing to expire. They said it would save the state $3 million in the 2011-13 biennium and should expire because the Legislature made a conscious decision to put an expiration date on the exemption when it was approved in 2009. The staff members also said they thought the Legislature wanted the exemption in 2009 because oil and natural gas prices were low at the time, and woody biomass needed some incentives in order to compete in the energy marketplace.

Rep. Ed Orcutt, R-Kalama, a member of JLARC and also a forestry consultant, questioned the staff during the hearing about how they reached their conclusions. He said it was clear that problems in the timber industry, not low oil and natural gas prices, were the motivator behind the approval of the biomass exemption in 2009. For instance, between 2007 and 2009, the gross price of Douglas Fir timber declined from $600 per 1,000 board feet to $275 per 1,000 board feet.

“It was a huge disincentive for landowners to harvest timber,” Orcutt said.

The committee staff members added that they could no find no evidence that the exemption had helped promote the use of biomass to generate energy. No evidence? Just look at all the biomass facilities that have been built or designed in Washington over the last few years, as well as the older facilities that are flourishing.

The proposed end of the biomass tax exemption will come up next in September, when a citizen committee called the Citizen Commission for the Performance Measurement of Tax Preferences takes public testimony. It will be critical for the timber industry to have its say and ensure this exemption is extended.

Sometimes what may seem like a narrow court case can have far-ranging consequences. A recent decision by the Ninth Circuit Court of Appeals, originally made last year and affirmed in May, would threaten the viability of the timber industry in the West if allowed to stand.

The decision upended 35 years of legal precedent and federal environmental policy by claiming for the first time that logging roads should be treated as if they were textile factories or industrial parking lots. In fact, if the decision is allowed to take effect, each drainage pipe or stormwater ditch on logging roads across the West would be treated as if it were a factory or coal-burning plant.

The Ninth Circuit decision would also throw out the highly effective set of state practices, called Best Management Practices, that states use to regulate stormwater runoff on timber land. These state practices take into account the natural conditions of each state, as well as the health of entire fisheries and watersheds.

On the other hand, the federal system endorsed by the Ninth Circuit would impose a unilateral and less effective set of regulations focused entirely on discharge permits and institute arbitrary rules on even the tiniest source of stormwater runoff without regard to the health of the whole ecosystem.

Fortunately, there is some hope on the horizon. Legislation was introduced in Congress this week that would overturn the Ninth Circuit decision. The National Alliance of Forest Owners (NAFO) and U.S. Rep. Jaime Herrera Beutler (R-WA), one of the bill’s sponsors, both issued press releases in support.

From David Tenny, President and CEO of NAFO:

“If the legislation isn’t enacted, the Ninth Circuit decision will add job-killing costs and invite litigation to rural areas hardest hit by the economic downturn without corresponding environmental benefit. Overlaying a (Clean Water Act) permit requirement onto forestry activities will push more private forests into non-forest uses with greater impacts on water quality. The resulting loss of jobs and forests undermines the goal of preserving working landscapes that support rural families, wildlife habitat, clean water and recreation opportunities across the country.

From Rep. Herrera Beutler’s release:

In Washington state, forest land owners must already comply with the Forests and Fish law, widely considered one of the toughest environmental protection laws in the nation.

The (new federal) legislation was applauded by small business, labor, and employers throughout the forest product and forest product-related industries. Private forest lands in Washington state are responsible for more than 110,300 jobs and provide $4.9 billion to the nation’s economy.

…“Working farms and forests are an important part of our environment and economy, providing jobs, especially in rural communities,” said Mark Doumit, Executive Director of the Washington Forest Protection Association. “Requiring an additional federally mandated permit that adds cost and confusion, without marked environmental benefit, on top of our state system that is working to protect water quality makes no sense.”

Make sure to contact your U.S. representatives and senators to encourage them to support this critical legislation.

The release last week of the final spotted owl recovery plan continues to reverberate. Newspaper editorial boards are beginning to weigh in, and the word is mixed at best.

The Oregonian says the feds’ plan to kill some of the more aggressive barred owls with shotguns is not the greatest idea, but there may not be any other option.

Of course, there’s no choice but to keep trying to save the spotted owl. The Endangered Species Act, thankfully, doesn’t allow Americans to get frustrated and walk away from trying to preserve a species. And while we are pessimistic about the owl’s future, we think the Obama administration’s owl recovery plan is the best effort so far to save the owl from extinction and allow some logging on national forests in the Northwest.

It builds on 20 years of research on spotted owls, and more carefully and knowledgeably defines high-quality owl habitat. It also more clearly describes forests — particularly young and overcrowded forests — that are not suitable for owls and can and should be available for commercial logging.

The Medford Mail Tribune is much more pessimistic about the plan to kill barred owls.

Fish and Wildlife biologists in the field and, more likely, their superiors in tall office buildings — pigeon, not owl, territory — have grown frustrated at their inability to improve the spotted owls’ survivability. So their latest plan includes stepped-up efforts to “control” the barred owl.

First of all, we’re not children and everyone knows that “control” is code for “kill.” Hey, Fish and Wildlife guys, news flash, we’ve broken your code. Plain English would be appreciated — then again, anyone who has read through a draft environmental impact statement knows that English is not your native tongue.

So, with the code broken, we can address the Fish and Wildlife decision to kill barred owls. In one word, it’s unsustainable. OK, one other word, unnatural.

If the barred owl population is in fact “exploding,” how many owls will biologists have to kill in order to make a difference? Hundreds? Thousands? And for how long will they have to kill those hundreds or thousands? Forever?

Forty years after we had no barred owls, we now have an exploding population, which suggests that the owls not only are adaptable, but also quite good at reproducing. Killing a few hundred birds may postpone the inevitable, but it would take a barred owl genocide to rid the region of them.

In addition to the question of how, there’s the question of why. Why are we killing a dominant species to protect a weaker species? Are we protecting nature or our view of what nature should be?

The release this week of the final spotted owl recovery plan by the U.S. Fish and Wildlife Service came after months of delays, though at least it’s finally here. Both environmental groups and timber companies are still examining the final plan, but the initial reaction is not good.

Tom Partin, the president of the American Forest Resource Council in Portland, said the new plan is essentially a land grab that will do nothing to protect the spotted owl from its more aggressive cousin, the barred owl.

“The spotted owl will not recover unless decisive action is taken to control the barred owl. Unfortunately, the Plan offers nothing more than studies and protocols while proposing massive new restrictions on both federal and private lands.”

The forest thinning proposed in the plan is also a large point of contention. The environmental groups think the thinning is too much, and the timber groups think it’s far too little.

“Thinning opportunity, that’s what’s always offered up to us as an alleged middle ground. But it’s pretty limited,” said Ray Wilkeson, President of the Oregon Forest Industries Council, to the New York Times.

Partin was even more forceful.

“The (U.S. Bureau of Land Management) will soon be out of plantation forests it can thin to provide even the inadequate level of harvest volume that has become the norm in recent years. The BLM Medford District is struggling to provide approximately one-third of the annual timber volume promised under the Clinton Northwest Forest Plan. This recovery plan will likely lead to further drastic reductions in available timber supply at a time when many rural Northwest communities face 15-20% unemployment and the remaining mills are hanging on by a thread,” said Partin.

Even the federal government has doubts about its own plan. Eric Forsman, a biologist for the U.S. Forest Service and one of the nation’s foremost experts on the spotted owl, said he’s not sure the plan will work.

Forsman and fellow owl scientist Bob Anthony, a retired fish and wildlife professor at Oregon State University, say success is uncertain because of the barred owl, which migrated from the east and was first documented in the Northwest in the 1970s. It’s larger, more aggressive, favors the same habitat and is a less picky eater than the spotted owl.

“Given that the barred owl is part of the equation,” Forsman said, “it’s no longer clear that protecting habitat is going to do the job.”

Controlled removal of barred owls to determine if spotted owls reclaim territory would be a worthwhile experiment, he said, but isn’t financially or logistically sustainable.

There is still a lot of work left to do. Both timber companies and environmental groups are waiting for the feds to release the critical habitat designation for the spotted owl, which will be drafted in November and won’t be finalized until late next year. This document will go a long way to guiding how Western forests will be managed. And it’s likely that the spotted owl plan will be challenged in court by one or both sides.