Judge rejects Bush admin bid to rewrite fish protections in NW Forest Plan

Dan Berman, Land Letter senior reporter
This story first ran in E&ENews.

Judge Ricardo Martinez of the U.S. District Court in Seattle on March 30 issued a ruling that sided with Pacific Coast Federation of Fishermen's Associations and 10 other fishing and environmental groups. The order reinstates the Aquatic Conservation Strategy language from the original landmark 1994 agreement.

The Aquatic Conservation Strategy was created to protect streams and rivers -- and the salmon and steelhead that inhabit them -- by limiting logging, roadbuilding and other activities in watersheds and steep hillsides. The Bush administration revised ACS in 2004 by allowing short-term, targeted stream degradation to occur, so long as agencies to perform long-term monitoring to ensure overall watershed health is maintained or improved.

"Previously, to meet ACS objectives, the Forest Service needed to ensure that road densities and the total amount of a watershed in clearcut condition would not alter runoff and erosion patterns to the detriment of water quality and fish survival," Martinez wrote. "Because the ACS amendment eliminates this requirement, the impacts of that change must be fully assessed."

Industry sees delay and wasted effort

Chris West, vice president of the American Forest Resource Council, a timber industry group that intervened on the side of the federal government, said Martinez's ruling will cause agencies to waste more time on environmental studies rather than doing work on the ground.

"There's management opportunities and needs in the riparian areas, for the health of the aquatic ecosystem," West said. "With this ruling, those will have to be delayed and ignored until they do more process analysis."

Martinez adopted the findings of Magistrate Judge Mary Alice Theiler, who said last year the federal government failed to supply "a reasoned analysis in changing their course" and did not adequately consider the cumulative effects on the overall health of the watershed.

In a departure from Theiler's report, however, Martinez agreed with the plaintiffs that the federal agencies violated the National Environmental Policy Act by failing to disclose the results of questionnaires of scientists who developed the original 1994 agreement that disagreed with the proposed ACS amendment.

"Leading scientists who designed the watershed protections warned that eliminating them would harm clean water and salmon streams," Earthjustice attorney Patti Goldman said. "The [scientists] did not support the changes that were made and the agencies did not disclose that. That was their duty under the law."

In addition to vacating the aquatic amendment for violating NEPA and the Endangered Species Act, Martinez threw out biological options on the amendment by the National Marine Fisheries Service and Fish and Wildlife Service, and the supplemental environmental impact statement by the Forest Service and Bureau of Land Management.

The ruling does not stop the Forest Service or Bureau of Land Management from allowing timber sales or forest restoration activities in the California, Oregon and Washington forests covered by the Northwest Forest Plan.