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Seattle PI: "Much-heralded timber deal faces its first challenge"

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January 7, 2002 -- Today, the first challenge to a permit issued under Washington's much-heralded Forests and Fish law is being heard before the Washington Forest Practices Appeals Board.

http://www.seattlepi.com/local/53525_weyer07.shtml

By Robert McClure
Seattle Post-Intelligencer Reporter 

GREENWATER -- Jerry Trussell's King of the Road RV and Ford pickup truck sit just 50 yards from the Greenwater River as he grouses about the "fish kissers" who are trying to protect salmon here.

But, unwittingly, the former log-truck driver backs up the environmentalists' case when he recalls his days in the Hoh River valley on the Olympic Peninsula. There, he says, the river began to move around once foresters started leaving logjams in place the way Mother Nature intended.

"The water goes the easiest way it can, so nearly the whole valley is river," Trussell said recently, as he lounged at his campsite east of this tiny town on the King-Pierce county line.

That's pretty much what lawyers representing environmentalists plan to argue today in Lacey, where the first challenge to a permit issued under Washington's much-heralded Forests and Fish law is being heard before the Washington Forest Practices Appeals Board. Where a river is likely to move, according to the law, timber has to be left intact.

The case pits the state and the mammoth Weyerhaeuser Co. against the small Washington Forest Law Center of Seattle, which charges that Weyerhaeuser is trying to cut timber that's off-limits under the Forests and Fish deal approved by the Legislature.

If Weyerhaeuser is allowed to get away with it in this case, environmentalists contend, it will cripple protections promised when the Legislature acted in 1999.

They accuse the Federal Way company and the state Department of Natural Resources of cutting corners and employing a "callously haphazard and unscientific" method for determining how many trees had to be left standing to protect salmon.

"It was about the stingiest delineation they could do," said Peter Goldman, the lead lawyer representing environmental groups. "They did an extremely cursory job."

DNR, though, says it has a case as solid as the boulders that lie alongside the Greenwater River -- and backed up by the expert who wrote Washington's manual on streamside timber cuts.

"If you want Windows to work on your computer, you go to Bill Gates," said Todd Myers, a DNR spokesman. "We went to the guy who wrote the manual and got him in the field and said, 'Are we doing this correctly?' He will testify that, yes, we did this correctly."

Myers accuses Goldman of filing the appeal to get publicity.

"Simply making the accusation helps him fund-raise, so there's lots of motivations that have nothing to do with the science and whether or not we did a good job, and that's the most unfortunate part of this," Myers said.

Weyerhaeuser attorneys noted that one of the goals of the state law is the "maintenance of a viable forest-products industry" and said the system has to be set up so the off-limits timberlands can be identified "without requiring expensive and time-consuming studies." A company spokesman declined to elaborate or discuss the case.

The case centers on what will happen over the next century or so as provisions of the Forests and Fish deal are carried out. A key part of the strategy is to allow logs to fall into rivers, creating logjams.

Logjams help salmon in a number of ways, including creating large pools where fish can escape rushing floodwaters and trapping gravel that salmon use for spawning. They also cause the formation of side pools and secondary channels where fish can rest, lay eggs and feed.

State officials in past decades required timber companies to remove logjams, mistakenly believing that helped salmon. The Forests and Fish plan envisions allowing trees near streams to grow big and fall into the water, helping re-establish prime salmon habitat.

Environmentalists decried the Forests and Fish law, though, as a politically hatched deal without enough teeth or specifics to get the job done on salmon recovery. They have sued in federal court to have it declared invalid.

Under the law, the Washington timber industry gets a 50-year exemption from the salmon protections of the Endangered Species Act. In exchange, the logging companies agreed to certain rules.

One of those rules says timber in areas where a river might move over the next 140 years cannot be cut, because streamside trees are needed for a number of reasons, including shading streams so they don't grow too warm for fish to thrive. Logging too close to streams also allows dirt to run off into the water and harms fish in myriad other ways.

The Greenwater case to be heard this week before the quasijudicial board in Lacey centers on the rules by which those areas to be declared off-limits to logging will be delineated. A mere 10 to 20 acres of second-growth timber is at issue with Forest Practices Application No. 2407607.

"If this was just a business decision, we've already cost them more than (the timber) is worth," Goldman said. "They know this has long-term implications."

A Weyerhaeuser attorney, responding to an offer by the environmentalists' attorneys to settle the case without a hearing, wrote that the company "cannot entertain any offer which would set a precedent" for other cases.

Goldman said that in settlement discussions, Weyerhaeuser attorneys said they were willing to enlarge the no-cut area in some places, but only if corresponding reductions were made elsewhere so that the net amount of timber cut came out the same.

The rivers on valley bottoms such as the one at issue in this case represent only a small fraction of the state's timberlands. However, these valley bottoms are particularly important habitat for fish -- and at the same time very productive for growing timber.

"Our fear is that this is going to repeat itself all over this state in this valuable habitat," said Becky Kelley of the Washington Environmental Council, which along with Washington Trout filed the appeal that resulted in this week's hearing.

Kelley is particularly critical of the timber industry for seeking to limit the amount of streamside trees that are left standing, even as it runs a multimillion-dollar advertising campaign extolling the virtues of the Forests and Fish deal.

The environmentalists do not fault only Weyerhaeuser, but also the state DNR. They point out that a DNR reviewer wrote in a memo that she looked at aerial photos dating only to 1978 to determine how much the river had moved. But she also wrote that older photos "should be reviewed; however, no older photos were available within the given time frame." The reviewer had about one day to write her report, the DNR has admitted.

DNR officials appear to have rushed their consideration of the logging permit. Shortly after they approved the logging permit, they had to issue an order enlarging the area where no timber could be cut because staffers "prematurely approved the application by mistake," according to DNR attorneys.

The permit was issued 28 days after Weyerhaeuser applied for it; state law sets a 30-day deadline for the agency to make a decision. However, the agency can reject a permit application as incomplete and start the clock running again.

DNR spokesman Myers said the agency was not rushed.

"There were no fewer than six site visits -- some before, some during and some subsequent to the application to see if modifications needed to be made," Myers said.

"The implication is that not enough time was allocated to do a thorough review and not all the information was looked at, when the reality is that neither of those things are true."

The agency processes about 8,300 such permits per year, and visits the site of about 55 percent to 60 percent, Myers said.

Environmentalists say they are fearful of what might happen if the Forest Practices Appeals Board does not send a strong message in this case.

They have spent more than $25,000 on this case alone.

"For every little 40-acre cut, who's going to have that kind of money?" Goldman asked.

Tim Abbe, a scientist specializing in how rivers move around who is working for the environmentalists, said the case is a crucial one.

"The underlying issue is: Are environmental-minded people going to have to appeal every permit, or are they going to do what they said they would?" Abbe asked.

Environmental groups including one of the plaintiffs in this case, the Washington Environmental Council, abandoned the negotiations that led to the Forests and Fish deal after they came to believe it would be based on politics instead of what they considered sound science. They have been criticized by the state and the timber industry for doing so.

Said Myers: "They are now trying to legislate in the courtroom rather than working with us and other folks, and that is the worst way to make environmental policy."