A Tale of Two Lawsuits

Brenna Bell

“It was the best of times, it was worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity . . .”
-A Tale of Two Cities, Charles Dickens

Such were the conditions in the Clackamas River Watershed, when two federal agencies — the Bureau of Land Management (BLM) and the U.S. Forest Service — decided that they would refocus their management efforts on restoring the lush temperate rainforest.

Would that we trusted the federal agencies to be responsible land stewards! We could have all breathed a sigh of relief that the public’s forests, so long exploited, were receiving much needed care and restoration. But, sadly, this was not to be the case. When their plans were released, it came clear that the preferred way to restore the forests was to build more roads and log more trees. What follows are two stories of how Bark took to the forest and the courtroom, fighting for the right of the land to restore itself and lost, won, lost and lost (and won?).

Barkers walking through the burned area of the Airstrip Timber Sale

BLM’s Airstrip Timber Sale

In 2009, the BLM began planning the Airstrip Timber Sale on LaDee Flat to “restore” the landscape by building two miles of new road and logging 350 acres of diverse forest naturally regrown after a series of fires. LaDee Flat is a popular recreation area with access roads to the Roaring River hiking trails.

Bark volunteers and staff spent hundreds of hours in the Airstrip Timber Sale documenting impacts of the proposed road building and logging to rare old growth snags (standing dead trees) and legacy trees. We submitted comments incorporating on-site pictures and scientific studies, citing legal requirements that should incite the BLM to remove the clearcutting units and road building, as well as protect the old growth trees, both alive and dead.

Through each iteration of the public process, Bark’s active challenge to the Airstrip Timber Sale whittled away the project;in the initial notice, the BLM proposed 325 acres of logging, including 49 acres of clearcuts and by the Final Decision, the project was 118 less acres and included no clearcutting. Still, this 207 acre project included building a new road through some of the only old-growth snags and legacy trees in the area and logging a steep erosive slope, so Bark continued to challenge the proposal.

When I became an environmental attorney, I never dreamed that I would bring a lawsuit to protect dead trees. Yet, Bark’s work to protect this special forest ecosystem threatened by the Airstrip Timber Sale educated me, and so many others, about the vitally important role of dead trees to ensure a biodiverse forest.

In 2012, I filed a lawsuit on behalf of Bark in the U.S. District Court of Oregon. Its main legal question was simple: When there are not enough snags to meet the BLM’s Forest Plan minimum habitat requirements, can the BLM authorize logging of additional snags?

In a decision surprisingly bereft of legal and factual accuracy, the District Court Judge avoided answering that question and found in favor of the BLM. But we didn’t stop there!

Bark appealed to the Ninth Circuit, setting the stage for a settlement negotiation with the BLM that resulted in a surprisingly positive outcome, that decreasing the Airstrip Timber Sale another 35 acres, removed significant road building and logging on steep slopes, AND more protected old-growth trees (dead and alive).

That’s what persistence looks like.

A “temporary” road leading into one of the many logged ares in the Jazz Timber Sale.

Mt. Hood National Forest’s Jazz Timber Sale

Shortly after the BLM began planning the Airstrip Timber Sale, the Mt. Hood National Forest announced its plans to “restore” forests in the Collawash River watershed by rebuilding twelve miles of roads and logging over 2,000 acres — most of which were in protected Riparian and Late Successional Reserves.

Yes, that’s right — Mt. Hood National Forest proposed to log 1,500 acres in protected reserves. The parameters of the debate were set: was this logging and road building necessary to restore forest health? Bark groundtruthers took to the forest to find out. After spending thousands of hours scouring the more than 2,000 acre sale and visiting previously thinned areas to observe the impacts of “restoration logging” the answer was a resounding, No.

Like Airstrip, we used pictures, science, and the law, to argue that road building and logging in this special place would adversely impact, not restore, the forest. The Forest Service didn’t listen and refused to alter the project in any way. Bark went to federal court, prepared with expert witnesses, pictures, and both facts and law on our side. We lost. We appealed to the 9th Circuit. We lost again.

As Bark’s attorney, who spent hundreds of hours in this legal fight, I am disappointed. Disappointed that the federal agency entrusted with managing our public lands refused to incorporate Bark’s field work in its decision-making. Disappointed that the federal judiciary similarly ignored the valuable contributions of the public, and blindly accepted the Forest Service’s rhetoric of “logging for restoration.”

I am not, however, disappointed in Bark. We may not have stopped logging, but Bark’s actions in challenging the Jazz Timber Sale educated thousands about the myth of logging for restoration.

This past year, Bark has continued to monitor the active logging in the Jazz Timber Sale, already documenting several incidents of non-compliance with the laws that protect our forest from destructive activity. We continue to stay engaged and holding the agency accountable.

For more on the Jazz Timber Sale, check out the recent Street Roots cover story.