Timber Industry Fails to Convince Judges that Logging Levels Linked to Wildfires

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In a decision dismissing three lawsuits intended to compel more federal land logging in western Oregon, DC federal district court judge Richard Leon found that the timber industry failed to show that less logging means more wildfires (see page 7’s footnote). Judge Leon had ruled earlier in favor of the industry plaintiffs in one of four forum-shopping lawsuits filed by attorney Mark Rutzick. But, judges don’t like being reversed. When the DC circuit court did so in the earlier case, ruling that the timber industry failed to establish standing, Leon took that message to heart and said “ditto” for the other three lawsuits.

Judge Leon’s ruling likely ends a two-decades long legal skirmish by the timber industry to compel federal agencies to increase logging levels from Northwest Forest Plan lands. The campaign has been led by the Portland-based American Forest Resource Council. For 20 years AFRC chose primarily the courts as its strategy to increase logging. Today’s decision suggests that AFRC may change its focus from the courts to Congress, which would play to the strength of its newly-hired executive director, Travis Joseph, former natural resources staff to Oregon Rep. Peter DeFazio. Joseph, who is not an attorney, was DeFazio’s point person during House negotiations over proposed O&C forest legislation that continues to languish in Congress.

3 Comments

  1. I don’t think AFRC ever sees a closed door, and I can still see a crack here. The D. C. Circuit opinion did not address fire. Both it and this case emphasized that the obvious cause of past economic harm to the timber industry was the recession, and there was no basis in the record for projecting future harm from restrictions on federal harvests. The district court refused to accept new declarations from plaintiffs that might have adequately responded to the circuit court’s demands for specificity.

    With regard to wildfire as being caused by the agency action (and then causing economic harm to the timber industry), I’m not sure what “Vilsack” case is being cited in the footnote. The decision in FFRC v. Vilsack upheld the Forest Service planning rule, in part because of language in the rule that recognized fire risk and promoted its reduction (not because there is no causation as quoted in the footnote 7). In any case, it could still just be a failure by Rutzick’s recruits to say the “right” things in their declarations.

    • I do agree, Jon, and am kind of amused that industry would pursue such a “pie-in-the-sky” case. Chances are, their lawyer(s) cautioned them on taking that path but, industry wanted to make that leap. I’m pretty sure we haven’t seen the last of this issue, especially when checkerboarded land ownership still exists. I’m sure that industry would like to do some sort of massive land swap but, I doubt that the public will agree.

  2. Note: AFRC Filed a ​New O&C lawsuit in DC​. Their lastest newsletter says:

    Action on DC Cases
    On August 31, AFRC joined its members Swanson Group, Rough & Ready Lumber, Seneca Sawmill
    Company, Seneca Jones Timber Co., Freres Lumber Co., Hull-Oakes Lumber Co., Starfire Lumber Co.,
    C & D Lumber Co., South Coast Lumber Co., Boise Cascade Wood Products, Douglas Timber
    Operators; and Rob Freres, Scott Keep and Bob Ragon as individuals, in filing a new lawsuit in federal
    District Court in Washington, D.C. The lawsuit is aimed at forcing the BLM to fulfill its commitment
    under the O&C Act to sell timber from the O&C lands in western Oregon.
    The lawsuit covers all six BLM Oregon Districts. The new suit known as Swanson III, combines the
    elements of two earlier cases – Swanson I and Swanson II.

    Swanson I, filed in 2010, was decided in AFRC’s favor in 2013 when Judge Leon ruled that the BLM
    must sell at least 80% of its Allowable Sale Quantity (ASQ) on the Roseburg and Medford Districts
    every year. That case also overturned the Owl Estimation Methodology (OEM) used by both the BLM
    and Forest Service in determining the impact of timber sales on spotted owls. Last June, the D.C. Court
    of Appeals held that the industry plaintiffs did not have standing because there was insufficient ground
    to conclude that they were harmed by the shortfall in timber sales. Because there was no standing, the
    Appeals Court did not rule on the legal claims and simply vacated Judge Leon’s decision.
    Swanson II, filed in 2014 sought to extend the ruling in Swanson I to the Lakeview, Coos Bay, Salem,
    and Eugene BLM Districts.
    In response to the Appeals Court decision vacating Swanson I, Judge Leon asked the parties to brief
    whether the industry had standing in several other cases including Swanson II and the case challenging
    the U.S. Fish and Wildlife Service’s vast expansion of spotted owl critical habitat in 2012. After
    considering the briefing, Judge Leon dismissed the Swanson II and spotted owl critical habitat cases.
    Plaintiffs are assessing whether to appeal Judge Leon’s dismissal decisions.
    The Swanson III case raises many of the same issues as Swanson II and is supported by additional
    detailed standing declarations. It remains to be seen whether Judge Leon, who is also assigned to the
    Swanson III case, will permit the case to move forward.
    Over the last 10 years, the BLM has failed to sell 624.7 million board feet of timber, nearly one-third of
    the two billion board feet promised in its Resource Management Plans (RMPs). Under the O&C Act,
    the lands must be managed for “permanent timber production” on a sustained yield basis. AFRC hopes
    to have the issue that the O&C Act and RMPs require BLM to sell the sustained yield level adopted in
    the RMPs ultimately decided in Swanson III as it was favorably decided in Swanson I.
    AFRC continues to work towards the sustainable management of all of Oregon’s federal forests. When
    other means fail, the Association and its members must resort to litigation. /Ann Forest Burns

    http://www.amforest.org/images/pdfs/AFRC_Newsletter_9-29-15.pdf

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