In upholding a lower court decision in Pacific Coast Federation of Fishermen's Associations (PCFFA) v. National Marine Fisheries Service (NMFS), the Ninth Circuit ruled that the government failed to ensure that the timber sales would protect salmon in two ways:
1) The government failed to look at the local detrimental effects of specific timber sales and their cumulative effect on salmon habitat. The court stated that "NMFS's assuming away site-specific degradations that could lead to a jeopardy finding contradicts the purpose of the ESA and is arbitrary."
2) The government failed to look at immediate near-term degradation (first ten year period after a sale) of salmon habitat caused by timber sales and road building. The court stated "We find nothing in the record to authorize NMFS to assume away significant habitat degradation.... In ten years, a badly degraded habitat will likely result in the total extinction of the subspecies that formerly returned to that part of the creek for spawning."
In the decision, the court also responded specifically to the government's argument that harm to salmon would be mitigated because trees would grow back in ten years. The court stated, "This optimism may be justified for the purpose of counting trees, but for the purpose of counting anadromous fish, it is wholly unrealistic.... There is no scientific evidence in the record to support the conclusion that natural vegetation growth will adequately mitigate the degradation caused by the logging projects and ensure that fish that never hatched could return to the recovered spawning habitat."
The decision will dictate the outcome of all timber sales affecting salmon habitat under the Northwest Forest Plan. It was issued in a case involving approximately two dozen sales in Oregon, and it will govern 170 other federal timber sales in western Washington, Oregon, and northern California that were enjoined pending this ruling. It also establishes legal precedent for future sales in the region.
"There are now four different court rulings finding that the federal government is harming salmon and violating the law by allowing harmful logging to proceed," said Patti Goldman, an attorney with Earthjustice Legal Defense Fund, which represented the plaintiffs in the case. "It is now time for the federal government to make its timber sales safe for salmon."
"We are talking about salmon that are protected by the Endangered Species Act," said Regna Merritt, Executive Director of the Oregon Natural Resources Council. "The Endangered Species Act is a salmon safety net, and we can't let destructive timber sales poke holes in that safety net."
The Northwest Forest Plan Now Must Be Given A Chance to Work.
At the heart of the case is the government's Northwest Forest Plan, adopted in 1994, which governs the management of all of the Pacific Northwest's federal public lands. The Northwest Forest Plan is designed to ensure that forestry activities like logging are carried out in ways that protect salmon. In this ruling, the court concluded that the government has failed to implement the Northwest Forest Plan faithfully.
"When the Northwest Forest Plan was issued, the federal government promised that salmon would be protected on our public lands," said Goldman of Earthjustice. "The time has finally come for the government to implement the plan faithfully and deliver on this long-delayed promise."
Consistent with the Northwest Forest Plan, many of the halted timber sales can go forward if they are modified to better protect fish habitat. Modifications may include changing the logging prescription from clear-cuts to thinning or selective cutting, and modifying timber sales units to stay out of riparian reserves.
"In many cases, sales will simply need to be modified according to recommendations already made by federal fish biologists," said Glen Spain of the Pacific Coast Federation of Fishermen's Associations, the west coast's largest organization of commercial fishing families and the lead plaintiff in the suit. "If we want fishable runs of salmon in the Northwest, if we want fishing jobs for coastal communities, we have to protect them. Fundamentally all the judge is requiring is that the agencies actually do what they said they'd do, which is to protect salmon habitat. As long as they do that, most of these sales can go forward."
"Many of the sales at issue affect the Umpqua River and its tributaries," said Francis Eatherington of Umpqua Waterheds Inc., another plaintiff in the suit. "The Umpqua River was once a world class fishery. If we want to rebuild this fishery, the federal government will have to respect the river and the salmon, and work with local citizens to bring back the fish."