Judge declines to block timber sales

Written by Jayson Jacoby July 18, 2013 07:44 am

By Jayson Jacoby

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A federal judge has denied two environmental groups’ request to block the Wallowa-Whitman National Forest from offering two timber sales in Baker County this summer.

In a decision released Wednesday, U.S. District Judge Marco A. Hernández rejected the request for a preliminary injunction on the Snow Basin project.

The Hells Canyon Preservation Council of La Grande and the Blue Mountains Biodiversity Project of Fossil sued the Forest Service in December 2012.

The plaintiffs didn’t try to block the first of five planned timber sales that are part of the Snow Basin project. Boise Cascade bought that sale, called Puzzle, last year for $415,599, and the company started cutting trees last fall.

The plaintiffs’ request for an injunction would have affected the second and third of the planned Snow Basin sales: Empire and Skull.

The Wallowa-Whitman opened preliminary bids for the Empire sale on Thursday, said Wyn Hornbuckle, a spokesman with the U.S. Department of Justice in Washington, D.C.

The Skull sale is slated to be advertised starting in mid-August, and sold in mid-September, Hornbuckle said.

Although Hernández denied the request for an injunction, the lawsuit continues, and a trial is tentatively scheduled for this fall.

Combined, the five Snow Basin sales could total 35 million board-feet to 50 million board-feet, making it the largest logging project, by volume, on the forest in the past 20 years.

Although the Forest Service is the defendant, several groups, including Baker and Union counties and the Oregon Small Woodlands Association, have joined the lawsuit as intervenors.

Fred Warner Jr., chairman of the Baker County Board of Commissioners, testified during a July 8 hearing in Portland on the injunction request.

Warner told Hernández that blocking the Empire and Skull timber sales could harm Baker County’s economy by preventing logging jobs from being filled.

Warner said Thursday morning that he was pleased with the judge’s decision.

“This is the conclusion the people of Baker County needed,” Warner said.

In his 39-page decision, Hernández agreed that the plaintiffs cleared one of the legal hurdles required to justify a preliminary injunction.

That’s the notion of “irreparable harm.”

The plaintiffs argued that without an injunction, loggers would be allowed to cut thousands of mature trees, which obviously couldn’t be replaced immediately.

Were the plaintiffs to win at trial, one of their goals — preventing trees from being cut — would in effect be rendered moot, resulting in a hollow victory.

However, Hernández went on to write that proving irreperable harm is not in itself sufficient to warrant an injunction.

The plaintiffs also needed to show that they were likely to prevail in trial, and that “the balance of hardships and public interest weigh in their favor,” Hernández wrote.

This they did not accomplish, he concluded.

“Plaintiffs fail to establish a likelihood of success on the merits and that the balance of harms and public interest weigh in their favor,” the judge wrote.

He noted, however, that neither do the merits favor the Forest Service.

“The balance of harms and public interest asserted by the parties are equal and do not tip in either of the parties’ favor,” Hernández wrote.

The judge addressed one of the plaintiffs’ main complaints about Snow Basin — that the Forest Service failed to adequately consider how logging and road-building could affect bull trout, which is a threatened species, and its habitat.

The Forest Service contends that there are no bull trout in the area, including the largest stream in the Snow Basin project, Eagle Creek.

This conclusion is based in part on surveys in 1991 and 1994 in which people using snorkels searched for bull trout in Eagle Creek and some of its tributaries.

Hernández wrote that the Forest Service “relied on the best available science when concluding that bull trout do not exist in the Eagle Creek watershed.”