Logging lawsuit possible

By Jayson Jacoby October 03, 2012 09:49 am

By Jayson Jacoby

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A Portland attorney said Tuesday that he might file a lawsuit claiming the Wallowa-Whitman National Forest failed to consider the possible effects the Snow Basin logging project could have on threatened bull trout.

Tom Buchele, of the Earthrise Law Center at Lewis & Clark Law School, co-signed a notice of intent to sue the Wallowa-Whitman.

The other attorney in the case is Jennifer Schwartz, staff attorney for the Hells Canyon Preservation Council in La Grande.

Potential plaintiffs are required to send such a notice at least 60 days before filing a lawsuit based on alleged violations of the federal Endangered Species Act (ESA).

Wallowa-Whitman officials have been working on the Snow Basin project for several years.

It covers about 28,500 acres in the southern Wallowa Mountains in eastern Baker County.

Forest officials approved the project earlier this year, and last month awarded the first of five planned timber sales.

Boise Cascade paid $415,599 for the Puzzle sale, which includes about 7.2 million board-feet of timber.

Wallowa-Whitman officials intend to offer five timber sales over as many years, totaling 35 million to 50 million board-feet.

Boise Cascade plans to start work on the Puzzle sale in about three weeks, said Lindsay Warness, forest policy analyst at the company’s offices in La Grande.

 “We are disappointed that there is a potential lawsuit on this project but we are confident that the Forest Service has done a great job in creating a project that balances ecological function with economy and societal needs,” Warness said.

“We appreciate all of the hard work done by the Forest Service, their partners, and the local community and hope that the Forest Service will continue to collaborate to produce ecologically sound landscape scale projects, such as Snow Basin, that will continue to benefit the local economy while restoring our national forests,” she said.

Fred Warner Jr., chairman of the Baker County Board of Commissioners, said this morning that he hopes Boise Cascade will be able to proceed with logging on the Puzzle sale.

“I still think Snow Basin is hugely important,” Warner said.

Warner said this summer that if lawsuits are filed to try to block logging in Snow Basin, he would seek intervenor status for the county in the suit so that county officials could make the case that delaying logging would harm the local economy.

Buchele, who represents Karen Coulter of the Blue Mountains Biodiversity Project, based in Fossil, said the Wallowa-Whitman violated the ESA by failing to prove that there are no bull trout in Eagle Creek, which flows through part of the Snow Basin project.

Absent definitive proof that bull trout aren’t present, the Wallowa-Whitman should have designed the project to avoid potential harm to the fish, Buchele contends.

The U.S. Fish and Wildlife Service listed bull trout — which is actually a type of char, not a trout — as a threatened species in 1999.

Wallowa-Whitman officials do not comment on possible litigation, said Jodi Kramer, a public affairs officer for the forest.

In the notice of intent to sue, Buchele cites a 2005 report from the Oregon Department of Fish and Wildlife that states, in part: “In Eagle Creek, bull trout historically were distributed throughout the basin, but current distribution appears to be drastically restricted.  The population is considered to occupy just fragments of its historical distribution.”

Although surveys in 1991 and 1994 did not find any bull trout in Eagle Creek, the ODFW report from 2005 concludes that bull trout in Eagle Creek “will not be considered extinct until a thorough and appropriate survey is conducted.”

Buchele contends that such a survey has not happened.

He also cites a 1997 ODFW study about the status of bull trout in Oregon which concludes that “the status of Eagle Creek bull trout remains a question mark.”

In 2010 the Fish and Wildlife Service designated Eagle Creek as critical habitat for bull trout, though the agency acknowledged that there was not a confirmed population of the fish there.

At that time, Paul Boehne, fish biologist for the Wallowa-Whitman, said Eagle Creek is ideal habitat for bull trout.

In its environmental studies for Snow Basin, the Wallowa-Whitman concluded that “bull trout are not currently present” in the area where logging is proposed and that “bull trout have likely been extirpated from the Eagle Creek system since the 1990s.”

Coulter said she’s concerned that logging could tear up the ground and cause dirt to wash into Eagle Creek and other streams, harming bull trout habitat.

According to the Fish and Wildlife Service, bull trout are more dependent than other fish, including salmon, on cold, clear water.

Buchele contends that the Wallowa-Whitman’s protection strategies for redband trout are not sufficient to protect bull trout, which according to biologists need water at least 14 degrees colder than what’s considered suitable for redband trout.

Coulter said possible effects on bull trout isn’t her only concern about Snow Basin.

She also objects to the Wallowa-Whitman’s plan to allow loggers to cut live trees larger than 21 inches in diameter.

The Forest Service stopped cutting those larger trees in the early 1990s on national forests east of the Cascades.

“We’re already deficient in those trees, and that (21-inch) limit has been the only thing holding back the continued loss of our old-growth forests,” Coulter said.

Wallowa-Whitman officials, though, say the forests in much of the Snow Basin area has changed substantially over the past century or so as the agency has greatly reduced the number of wildfires, and as a result of past logging which removed most of the old-growth ponderosa pines and tamaracks.

In their place, thickets of grand firs have grown. Those trees are more susceptible to insects and disease and, ultimately, fire.

The Wallowa-Whitman’s solution is to cut many of those firs — including some larger than 21 inches in diameter — reducing competition for soil and water and invigorating the remaining ponderosa pines and tamaracks.