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Critics of 50-year exemption to salmon rules say pact 'predecided'

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Seattle P-I, May 9, 2006; For years, timber companies and the government have debated environmental groups and Indian tribes over whether Washington's timber industry should get 50 years of protection from Endangered Species Act prosecutions for harming salmon.

http://seattlepi.nwsource.com/local/269529_forest09.html

Tuesday, May 9, 2006

By ROBERT MCCLURE
P-I REPORTER

For years, timber companies and the government have debated environmental groups and Indian tribes over whether Washington's timber industry should get 50 years of protection from Endangered Species Act prosecutions for harming salmon.

The debate was required under a federal law meant to give the public a chance to speak out before the government makes a major environmental decision.

But now environmentalists are charging -- based on an admission in a recent letter by Washington's elected lands commissioner, Doug Sutherland -- that the whole thing looks as if it was a foregone conclusion. That flies in the face of a federal law designed to give close environmental review to federal actions, they contend.

Sutherland wrote that the mind-set of all involved was "a deal is a deal and this is about memorializing the deal."

"Sutherland's letter confirms the deal was the deal, and only now are they doing environmental review years later," said Paul Kampmeier, an attorney with the Washington Forest Law Center in Seattle. "That makes it look to us like they're using environmental review as a rubber stamp for the decision they've already made."

Not so, say the federal agencies that are about to issue a decision. They are widely expected to bless the 50-year exemption.

"Within the culture of the (U.S) Fish and Wildlife Service, there is a very strong taboo on what we call predecisional, which is making a decision before the final decision," agency spokesman Doug Zimmer said. "It's counterculture to the biological staff, which is 99 percent of the agency, to do that. ... It's so inbred in these guys that it's a taboo."

The proposed 50-year exemption would cover 9 million acres of private forestland -- about one-fifth of Washington. It would be the second-largest such deal in the country.

In addition to protecting timber companies, it would give legal shelter to the state, which permits logging that can harm the fish in many ways, such as allowing streams to heat up too much to be healthy for salmon.

In return, timber companies promised to leave trees standing alongside some streams, to fix forest roads that smother streams in clouds of dirt and open up salmon spawning habitat previously blocked by roads

The deal was worked out in 1999 among federal wildlife agencies, the state government, the timber industry and some Indian tribes. The Legislature blessed the deal.

In the document that embodies the pact, the first two authors listed are the U.S. Fish and Wildlife Service and the National Marine Fisheries Service -- both of which are now being asked to approve the deal. The agencies and others agreed to "use all reasonable efforts to" put it into effect.

Yet the National Environmental Policy Act requires federal agencies to "study, develop, and describe appropriate alternatives to recommended courses of action."

Environmentalists have long complained that because the federal agencies helped write the pact, their approval is certain.

At the request of Gov. Gary Locke, Sutherland's Department of Natural Resources in 2003 took on the task of securing the no-prosecution assurances.

In coming weeks, the deal -- known as a "habitat conservation plan" -- is expected to be approved by the federal agencies. Bob Lohn, Northwest regional administrator for the federal fisheries service, said he takes "great exception" to the idea that the deal already is done.

"I don't know if Doug Sutherland was speaking for his agency or the state, but remember in that letter he certainly does not speak for us," Lohn said.

Lohn said his agency and the wildlife service prepared an environmental impact statement that "wasn't just to grease the slide to put a permit in place. It was a step back, a hard look at what we had agreed to" in 1999.

Even now, he said, the agencies reserve the right to put conditions on their approval. Those conditions would be announced when the deal is made final, probably early next month.

Mary Scurlock of the Pacific Rivers Council said this is only the latest example of how the public usually isn't told of the terms of a habitat conservation plan until its terms are agreed to by the government and the party seeking the Endangered Species Act protection.

"The agency doesn't technically come out and say, 'This is what we're going to do,'" Scurlock said. "The reality has always been that the deal is very much done by the time it goes out for public comment."

Sutherland's recent comments came in a letter he wrote to the state Executive Ethics Board on behalf of former DNR official Debora Munguia. She led a team formed to secure the federal protections for the state and timber industry, then went to work at the lobbying group representing Washington's big timber companies, sparking an ethics complaint.

"Based on the understanding of all those directly involved in the process that 'a deal is a deal, and this is about memorializing the deal,' there were no negotiations that resulted in a change to the rule or law that were not carried out by the Legislature itself in the full light of day," he wrote.

Sutherland wrote that what was negotiated by Munguia and others was wording, not the deal's substance.

Sutherland said in an interview his agency was merely carrying out the Legislature's orders.

"We were instructed by the Legislature to pursue the assurances based on statute," he said. "That discussion was through the legislative process."

HISTORY OF THE FOREST AGREEMENT

1999: Federal fish and wildlife agencies enter agreement with Washington's timber industry, state government and some Indian tribes. The "Forests and Fish Report" requires timber companies to take steps to help salmon in exchange for protection against prosecution under the Endangered Species Act when their activities harm protected salmon. Over environmentalists' objections, Legislature approves deal.

2001: Washington Forest Practices Board tightens state logging restrictions to conform to Forests and Fish Report.

2003: Gov. Gary Locke and Lands Commissioner Doug Sutherland agree that Sutherland's Department of Natural Resources will manage process of securing the protection against prosecution from the federal government.

2003-06: Series of meetings and comment periods held to allow public to comment on provisions of the deal.

April 17, 2006: Sutherland letter says understanding of all involved was "a deal is a deal, and this is about memorializing the deal."

June 2006: Approval expected by federal agencies.

P-I REPORT ONLINE

To read the P-I's special report about government exemptions to the Endangered Species Act, "A License to Kill"


P-I reporter Robert McClure can be reached at 206-448-8092 or robertmcclure@seattlepi.com.

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