Photo by Ellen Miller

Tuesday, June 26, 2012

Court: Can EPA regulate mud from logging roads?

Court: Can EPA regulate mud from logging roads?


The timber industry is hoping that the U.S. Supreme Court will maintain business as usual on controlling muddy water running off logging roads into salmon streams.
The high court decided Monday to take up a 9th U.S. Circuit Court of Appeals ruling that federal regulators should treat stormwater on industrial timberlands the same as pollution discharged from a factory, changing the longstanding practice that treats it like water coming off farm fields.
The ruling on an Oregon case would apply to logging roads on state, private and national forest lands throughout the jurisdiction of the 9th Circuit, which covers much of the West. Most of the roads are graveled, but some are paved or bare dirt.
Tom Partin, president of the American Forest Resource Council, said increased regulation would cost money and offer conservation groups new opportunities for blocking logging without producing any cleaner water.
“Over the years, we have been able to continually improve our practices as we have learned more about the environment,’’ he said in a statement. “Water flowing from our forests is high quality,’’
Paul Kampmeier, a lawyer for the Washington Forest Law Center, which represents conservationists, said the high court was presented with arguments urging them to take up the case from 26 states, including Oregon, as well as the timber industry.
“I think the defendant, or the petitioners now, did a very good job of making it sound like the sky is falling,’’ if the ruling stands, Kampmeier said. “Congress is political, and there is political pressure on EPA…I think we will get a fair and impartial ruling from the Supreme Court.’’
The appeals court ruled in 2010 that the muddy water running off roads used in industrial logging is the same as any other industrial pollution, requiring a Clean Water Act permit from EPA. Scientists have long identified sediment running into salmon streams from erosion as a leading cause of habitat loss because it chokes off the gravel beds where salmon lay their eggs.
The case was brought by the Northwest Environmental Defense Center in Portland, Ore., against the Oregon Department of Forestry over logging roads on the Tillamook State Forest.
The Obama administration petitioned the Supreme Court not to take the case. It argued that while it felt the appeals court ruling was wrong, there was no reason for the Supreme Court to get involved, because Congress and the Environmental Protection Agency were taking steps already.
Last May, EPA formally proposed to revise stormwater regulations to say logging roads don’t need the point-source pollution permits that factories must get, effectively blunting the ruling.
Instead, the roads would be regulated under a less stringent system known as “Best Management Practices,’’ where authorities set up guidelines for the design and maintenance of logging roads to minimize erosion that sends mud into rivers. EPA started reviewing how states and tribes handle the issue, and planned to put out new rules by Sept. 30, when an exemption for the timber industry enacted by Congress expires.
Dave Tenny, president of the National Alliance of Forest Owners, questioned the need for EPA to continue developing new regulations for logging roads now that the issue would be decided by the high court.
“The basic question in the case is what kind of deference the courts give an agency to interpret the statutes and their own regulations,’’ Tenny said. “The 9th Circuit interjected itself into the realm of the regulatory agency. And that’s inappropriate.’’
Oregon Department of Forestry spokesman Dan Postrel said the current system has done a good job of protecting water quality for many years without federal permits.
Kampmeier said only roads with trucks actively hauling timber that discharge water into streams would require permits.
“We have confidence the Supreme Court will agree that when the EPA said discharges associated with industrial logging activities requires a permit, EPA is allowed to say that,’’ he said.
Asked whether it would continue working on new regulations, an EPA spokeswoman referred comment to the U.S. Department of Justice, which declined to comment on pending litigation.


Wednesday, June 20, 2012

The O&C's New Man At The Scene Of The Crime

The O&C's New Man At The Scene Of The Crime
By: Jim Petersen, Co-founder and Executive Director, The Evergreen Foundation


Last week, Oregon Governor, John Kitzhaber appointed Tom Tuchman to be his new man at the scene of the crime that is the administration - dare I say the management - of the revested Oregon and California Railroad Lands, commonly known as "the O&C lands."  
These are federal lands in western Oregon - arguably the finest Douglas-fir timberlands on the face of the earth. They, together with western Oregon's national forests, formed the economic backbone of western Oregon's timber economy for more than 40 years. Then the spotted owl was listed as a threatened species [in 1990] and the entire federal timber sale program came crashing down on those who first gave it life.
It is frequently argued that the 1937 O&C Act - which mandates a sustained yield harvest and an economic return to the 18 counties in which the lands are located - trumps the owl listing. But the argument has fallen on deaf ears. In modern-day America, the draconian federal Endangered Species Act trumps all economic reality. So be it.
Tuchman is no stranger to this conflict. In fact, it was he who led the development of the Clinton Forest Plan which has never been implemented, thanks to impossible to navigate regulations and errant federal court rulings - plus the crushing and misguided political influence of environmental groups that oppose commercial timber harvesting in federal forests to the detriment of rural counties that are now bankrupt or soon will be.
The truth here is that there is nothing Governor Kitzhaber or Tuchman, the Governor's officially titled Forestry and Conservation Financial Advisor, can do about the sorry state of O&C affairs. Interior Secretary, Ken Salazar, is running this silly show - and he seems to find anathema in the Western Oregon Plan Revision, an exhaustive and scientifically sound idea that he took off the table as soon as the Obama Administration took power. He apparently believes it was a gift from the outgoing Bush Administration to its friends in the timber industry. It was not. In fact, what was left of the industry had already gone to court over the proposed harvest level.
Kitzhaber deserves credit for going through the motions. Appointing Tuchman would seem to be a politically shrewd move. Both are Democrats with long years of front line experience in the region's forest wars. So this would seem to be a good time to reintroduce my late friend, Dan Goldy, another Democrat of considerable renown, and a man who, long ago, actually won a bitterly fought forest war of another kind.
Dan Goldy was Pacific Northwest Regional Administrator for the Bureau of Land Management in the early 1950s. More important though is the fact that Goldy is the man most responsible for preventing the region's largest private timberland owners from hijacking the entire O&C timber sale program, which they attempted to do in the late 1940s under the seductive guise of a series of "cooperative sustain yield agreements" with the Bureau.
The agreements, which were shot down by the Truman Administration, would have granted the big landowning outfits the exclusive right to harvest O&C timber from tracts adjacent to their own lands. Had they succeeded, the technology-driven sawmilling industry that took root in western Oregon after World War II would never have materialized. Why? Because Goldy and his fellow Democrats understood that, minus the presence of innovative, upstart lumbermen, there would be no spirited bidding for O&C timber, no great financial return to the counties and no motivation for the big outfits to modernize their aging and wasteful mills. Today, there are state-of-the-art mills here with overruns above three. This means that for every board foot they buy in log scale, they are cutting three board feet in lumber scale. Lord only knows how many billion board feet of old growth timber have been spared by these remarkable recovery rates.
Goldy was himself a fierce competitor who hated to lose. He thus played a critical but little understood behind the scenes role in the development of the old Western Forest Industries Association, which represented the diverse interests of independent lumbermen for more than 40 years. I know this because I spent more than five years researching a book I've written that centers on the growth and development of the region's family owed sawmills. It is titled The Independents, a word the West's lone wolf lumbermen often used to describe themselves.
But this column is not about my book. It is about what Goldy and the Truman Administration believed concerning the development of the West's federal estate. And what they believed to the depths of their souls was that these vast and productive forests were the greatest economic engines the country had ever seen. They saw their development as the key to the nation's post-war homebuilding boom, and thus the blossoming of middle class prosperity - a first in the nation's history - that followed World War II.
A very solid case can be made for the fact that the fabled GI bill - which guaranteed every returning veteran a low-interest home loan - could never have fulfilled its mission had it not been for the opening of federal forests and the abundance of competitively priced lumber that the Democrat-inspired federal timber sale program provided. Although most people don't know it, very little federal timber was harvested in the West before the late 1940s. Virtually all of the nearly 60 billion feet of timber consumed by our armies during World War II came from private lands because federal lands were still mostly roadless.
I knew Dan Goldy fairly well, but I got to know him better after he died by spending more than a week at the Truman Library in Independence, Missouri. Goldy's voluminous and enlightening papers are stored there, as are those of his boss, C. Girard Davidson, who was Assistant Secretary of the Interior during Truman's first term. It was Davidson who courageously killed the monopolistic cooperative agreements. He later opened a law practice in Portland, and served as Democratic National Committeeman for Oregon for several years, chairing the party's Natural Resources Committee during Jack Kennedy's run for the White House.
Goldy's letters and speeches - and Davidson's as well - should be required reading for every contemporary Democrat. Suffice it to say, there was a time in America when Democrats stood shoulder to shoulder with loggers, lumbermen, miners, farmers and ranchers. No more. Today, save for Southern Democrats, there are few in the party who give a damn about people who get their hands dirty every day, or have the slightest idea where the nation's wealth begins. [Hint: it isn't taxes]
Through an odd set of circumstances, I have more than 100 letters that Goldy wrote to friends in his later years. Mostly, they are chatty notes about his world travels. But last week I came across one I had not read before that I want to quote here in its entirety in the hope that someone will show it to Governor Kitzhaber or Tom Tuchman, who might then be inspired to start acting more like old time Democrats and less like shills for the environmental industry.
Goldy, who died in December of 2000, wrote this letter to the late Mark Hatfield, Oregon's most revered U.S. Senator, on August 28, 1990. It references people most of you won't know, including his wife, Rusty, who lured him to Oregon not long after he got out to the Navy. By then, he was a well-connected Democrat. Among his close friends was Monroe Sweetland, a Molalla newspaper publisher and guiding force in Oregon Democratic Party politics for four decades. Sweetland also played a vital behind the scenes role in the development of the O&C timberlands. Now - without comment - Goldy's letter:
Dear Mark:
Rusty and I have been traveling in Eastern Europe, and since our return I have been riding horses in the wilderness and have been making speeches around the country. This is the first opportunity I have had to focus on the political campaign in Oregon.
I am enclosing a contribution for your re-election campaign. As a Democrat, I find it rather easy to sit on the sidelines this year and to keep my checkbook in the drawer. I find few Democrats worthy of support. In your race, I feel that no less than the future of Oregon and the Pacific Northwest is at stake. Harry Lonsdale admits he is politically unsophisticated, but this is no excuse for aligning himself with the most radical elements of the preservationist movement to lock up the forest resources of the Northwest.
It is my view - which I have been asserting in speeches around the country - that the Vento's, Jontz's. Adkins', Yates' and Leahy's of the Congress will, if they are successful, inflict an environmental disaster on the Northwest. To lock up all of the old growth timber and permit nature to manage it in its brutal fashion with fires, insects and blow-downs, is a formula for catastrophe. Moreover, their insistence that only the young second growth be harvested means that we will be depriving the region of any forestry future, and will shortly exhaust these limited resources of young timber that are keeping our mills going for the moment. Indeed, I have heard from industry sources that at the rate their young second growth is behind harvested, it will all be gone in four to five years.
Aside from the devastating effects of this approach on the economy of the Pacific Northwest, I find it appalling that these members of Congress do not understand the economic significance to the entire United States of eliminating its wood basket. Even our own people are surprised to learn that approximately 50 percent of the total softwood lumber consumed in the United States comes from Oregon, Washington and northern California; that two-thirds of what is domestically produced in the United States comes from these three states [the difference being what is imported from Canada].
Recently, I have consulted with the experts in the various wood products associations in this region to get an estimate of the size of the cutback we are facing in Oregon, Washington and northern California. Taking into account the initiatives on the ballot in California, the impact of the spotted owl listing on private lands, and the reduced sales levels from national forests called for in the House markup of the 1991 appropriations bill, we expect a reduction in timber harvests of about nine billion feet. This translates into 14.4 billion board feet of softwood lumber if all of those logs were put through sawmills. That is about one-third of total U.S. consumption. These estimates, bad as they are, do not take into account the likelihood of mass appeals of federal timber sales when Section 318 expires September 30.
That much lumber cannot be withdrawn from the U.S. market - even at its present depressed levels - without producing a large inflationary spike in prices. It would increase enormously the median price of a house in the U.S., and would make housing unaffordable for more than a million additional families.
I have recently had a meeting with Dale Robertson and George Leonard and pointed out to them that a reduction in wood products from this region of this magnitude cannot be made up from other sources. Now that the U.S. Fish & Wildlife Service guidelines on the owl are being applied by the states to private lands, there appears to be no way that the cutbacks in federal harvests can be compensated for by increased harvests from private lands. Moreover, their statements to Congress that Canada can make up some of the difference is refuted by their own 1985 study of British Columbia which predicted a precipitous drop in harvest levels as past overcutting and failures in forest utilization practices catch up with the Canadians. The Canadian experts in the B.C. forests have recently reported we can expect a reduction in magnitude of about 7.5 billion board feet in harvests sometime in the next five years.
You are in a unique position as the ranking Republican on the Senate Appropriations Committee to provide the leadership to achieve a national solution to this problem. I never understood what possessed the Oregon electorate to give up the enormous clout and constructive influence that Al Ullman exercised on our behalf when he was Chairman of the House Ways and Means Committee, or to retire Bob Duncan despite his growing influence on the House Appropriations Committee. It would be an even greater act of insanity to substitute an extremist like Harry Lonsdale for a seasoned leader like you.
Rusty and I want you to know that we want to be as helpful as possible in your re-election campaign.
With warmest regards and best wishes,

Daniel L. Goldy

Monday, June 18, 2012

9th Circuit creates laws 'out of the vapors'

9th Circuit creates laws 'out of the vapors'


Editorial cites Judge Milan Smith Jr. "chastising the 9th Circuit for repeatedly creating 'burdensome, entangling environmental regulations out of the vapors."  The Oregon forest roads NPDES permit decision, awaiting both U.S. Supreme Court and Congressional action, also made Judge Smith's list of rulings out of vapors:
A recent ruling that requires timber companies to get Environmental Protection Agency permits for stormwater that runs off primary logging roads, even though the agency's regulations exempt them. "The result? The imminent decimation of what remains of the Northwest timber industry."

Editorial From Capital Press
It's not often we find ourselves agreeing with anything coming from the 9th U.S. Circuit Court of Appeals, but criticism of the court written by one of its judges in a dissenting opinion in a mining case is right on target.
Earlier this month, the court ruled in favor of the Karuk Tribe of California in a lawsuit against the U.S. Forest Service. The tribe alleged the Forest Service had failed, as required by the Endangered Species Act, to consult with federal wildlife agencies before it allowed recreational gold mining on the Klamath River to proceed under a Notice of Intent.
A trial court ruled against the tribe, a decision that was upheld by a three-member appeals panel. That ruling was overturned by an 11-member panel representing the full court.
Judge Milan Smith Jr. disagreed with the majority, arguing the court had disregarded its own precedents in finding for the tribe. Then he went further, chastising the 9th Circuit for repeatedly creating "burdensome, entangling environmental regulations out of the vapors."
He cited:
* A recent ruling that requires timber companies to get Environmental Protection Agency permits for stormwater that runs off primary logging roads, even though the agency's regulations exempt them. "The result? The imminent decimation of what remains of the Northwest timber industry."
* A ruling that overturned a Forest Service management plan for 11.5 million acres in the Sierra Nevada, and set a standard that Smith said will "dramatically impede any future logging in the West."
* A ruling that reinterpreted the Central Valley Project Improvement Act, resulting in the reallocation of additional water to benefit endangered fish. "The practical impact of this decision is that there will be less, perhaps far less, water for irrigation in the San Joaquin Valley's $20 billion crop industry."
Smith argued that elected legislatures and regulatory agencies that answer to the president would never enact rules that "create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs." But the 9th Circuit Court of Appeals, Smith wrote, regularly pushes an agenda lawmakers and regulators never intended.
"Our job is constitutionally confined to interpreting laws, not creating them out of whole cloth," he wrote. "Unfortunately, I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role when it comes to construing environmental law."
We agree.

Monday, June 4, 2012

Tom Partin: The spotted owl did help destroy the timber industry

Tom Partin: The spotted owl did help destroy the timber industry


READER’S VIEW FOREST POLICY Idaho Statesman
Spotted owl did collapse timber industry
I write to set the record straight. Niels Nokkentved, whose guest opinion piece appeared May 27, simply does not know what he is talking about. Following the dialectic of the environmental movement, he would have readers believe the listing of the spotted owl had nothing to do with the neglect our federal forests are now suffering or the plight of our rural communities which those forests surround.
I have lived in Oregon for all of my 62 years, mostly in small rural communities. I have witnessed firsthand the appalling damage done by misguided federal forest policy to our forests, our communities and our families. Here are some facts.
The Northwest Forest Plan, implemented in 1994, was designed to assure the recovery of the northern spotted owl. The plan allocated only 15 percent of the 24.5 million acres of federal land it covers to multiple use management and set aside 85 percent for special uses. This drastic reduction in manageable land reduced the amount of timber available annually from 4.5 billion to 1.1 billion board feet. This reduction, coupled with the fact that less than 40 percent of the projected 1.1 billion was ever made available for harvest, led to the closure of 261 mills supporting at least 50,000 jobs in western Washington, western Oregon and northern California.
Based on a conservative production estimate of at least 500 board-feet per acre per year, growth on the Northwest Forest Plan acres since 1994 has been in the neighborhood of 12.1 billion board feet per year. The annual harvest has been only about 4 percent of growth. The resulting buildup of dead and dying trees in Northwest forests has led to catastrophic fires burning millions of acres, much of it prime spotted owl habitat.
The Pacific Northwest is the premier timber growing region in the world. We have the laws and standards in place to assure good environmental management and protection of air and water quality when we harvest. Yet today, America is importing 40 percent of its softwoods from Canada. We are in a prolonged period of high unemployment in America — and especially in Oregon, Washington and northern California. Poverty in rural areas of the Northwest continues to fester. More than 25 percent of rural Oregon families are on food stamps and a record number of our children depend on free school lunches and even breakfasts to meet their basic nutritional needs.
Meanwhile, the U.S. Fish and Wildlife Service is proposing to nearly triple the critical habitat set aside for protection of the spotted owl from 5.3 million acres to nearly 14 million acres. This despite the fact that owl numbers have continued to decline rapidly due to catastrophic wildfire and predation by the more aggressive barred owl. Curtailing harvest well below that envisioned by the Northwest Forest Plan has not helped the owl because habitat is not the limiting factor.
In closing, I suggest if Mr. Nokkentved is going to write about Oregon and Washington, he get out of Idaho and come visit some of our unhealthy forests and communities and witness the devastation firsthand. It is only a three-hour drive to visit the community of John Day, where I lived for 18 years and was the mayor for two. I watched the demise of the federal timber program and watched that community lose its timber industry, its infrastructure and its identity, while surrounded by a sea of dead and dying federal timber. It’s time to get it right.
Tom Partin is president of American Forest Resource Council in Portland.

Read more here: http://www.idahostatesman.com/2012/06/03/2140631/tom-partin-the-spotted-owl-did.html#storylink=cpy