Contact:    
Nick Cady, Legal Director, Cascadia Wildlands, (541) 434-1463          
Noah Greenwald, Center for Biological Diversity
Quinn Read, Bird Alliance of Oregon

Clearcutting plans halted to protect threatened seabird within former Elliott State Forest parcel

Eugene, OR — Today, the Ninth Circuit Court of Appeals affirmed a 2022 ruling from the District Court of Oregon that prevents Scott Timber Co. from clearcutting old-growth forest within Oregon’s Elliott State Forest. The court held that the proposed logging of the 355-acre Benson Ridge parcel by the subsidiary of Roseburg Forest Products would harm threatened marbled murrelets in violation of the federal Endangered Species Act. The case marks the first time a private timber company has been held to account in court for potential violations of the federal Endangered Species Act in Oregon.

“After a decade of advocacy, the rare old-growth in Benson Ridge is at last protected from private industry chainsaws,” said Nick Cady, legal director at Cascadia Wildlands. “This ruling is significant for the imperiled marbled murrelet and will hopefully dissuade land managers from logging the little remaining coastal old-growth forest in the state.”

The 82,000-acre Elliott State Forest, located near Coos Bay, has been mired in controversy for over a decade. In 2012, following a decision by the state of Oregon to significantly increase logging levels on the Elliott, Cascadia Wildlands, the Center for Biological Diversity and Bird Alliance of Oregon (formerly Portland Audubon) sued the state for illegally logging occupied marbled murrelet habitat on the Elliott and other state forests. After a judge issued a legal injunction, the state settled the suit in 2014, agreeing to drop 26 timber sales and stop logging in occupied murrelet habitat.

Following the settlement, however, the state sold the Benson Ridge parcel and two other tracts, totaling 1,453 acres, even though they contained mature and old-growth forests that were occupied by imperiled marbled murrelets. Prior to the finalization of the sales, the timber purchasers were specifically warned by the three conservation organizations that logging these forests would violate the federal Endangered Species Act. The state finalized the sales regardless.

“I’m absolutely thrilled that the marbled murrelets of Benson Ridge are safe from logging,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “This court victory makes it clear that timber companies are no more exempt from ending the extinction crisis that plagues these enduring seabirds than the rest of us.”

The Benson Ridge case was originally filed in August 2016 claiming violations of the federal Endangered Species Act, which strictly prohibits “take” (statutorily defined as including harm, harassment or killing) of threatened species like the marbled murrelet. Unlike any other seabird, murrelets nest on the wide, mossy branches of large, old-growth trees, making a daily trip of up to 35 miles inland to bring fish to their young.

“This entire Elliott State Forest saga demonstrates the incredible cynicism that underpins the treatment of mature and old-growth forests in Oregon,” said Bird Alliance of Oregon conservation director, Quinn Read. “Land managers, both public and private, continue to try to convert these rare old forests into timber plantations. This is not only ecologically devastating but illegal.”

The Ninth Circuit affirmed the district court holding stating: “…the Benson Tract is occupied and used for nesting by marbled murrelets, the logging operation would eliminate 49 acres of this occupied habitat, and the clearcut would remove nests and prevent returning murrelets from nesting or engaging in other breeding-related activities there…” and noted how the District Court explained  “the timber harvest would directly fragment a continuous stand of occupied forest and, using scientific studies, [demonstrated] how this fragmentation would foreseeably and negatively impact the murrelets’ breeding behaviors.” Opinion at 25.

“This case exemplifies the vital importance of citizen suits in our fight to save the planet. The State of Oregon knew the Marbled Murrelet used this land, but sold it anyways to be clearcut. The Federal Government knew the Marbled Murrelet used the Benson Ridge tract for nesting and reproduction, yet took no action to stop Scott Timber Company’s logging plans. Only through the decades-long effort of these public interest organizations was this land and its nesting Marbled Murrelets protected – in perpetuity – from devastation. Moving forward, timber companies should pay close attention to the existence of Marbled Murrelets on their property, as we certainly will be,” said Daniel Synder of Public Justice.

In addition to winning the Benson Ridge case, the organizations successfully legally challenged the other Elliott privatization efforts with a separate lawsuit.

In recent years, a diversity of stakeholders have successfully worked to “decouple” the Elliott State Forest from the Common School Fund through a series of legislative appropriations and transition it into the Elliott State Research Forest. No longer is there an obligation to clearcut the Elliott to fund public schools in Oregon, and the forest will now be managed with an emphasis on older forest conservation and research.

The conservation organizations were represented by Daniel Kruse of Kruse & Saint Marie LLC, Daniel Snyder of Public Justice, Nick Cady of Cascadia Wildlands and Brian Segee of the Center for Biological Diversity.

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Cascadia Wildlands works on behalf of its over 15,000 members and supporters to defend and restore Cascadia’s wild ecosystems in the forests, in the courts, and in the streets. 

The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.1 million members and online activists dedicated to the protection of endangered species and wild places.

Bird Alliance of Oregon (formerly Portland Audubon) was founded in 1902 to promote the understanding, enjoyment and protection of native birds, other wildlife and their habitats. Today, it represents over 16,000 members in Oregon.

Founded in January 1982, Public Justice (originally Trial Lawyers for Public Justice) is a nonprofit legal advocacy organization that takes on purveyors of corporate corruption, sexual abusers and harassers, and polluters who ravage the environment.

The post Press Release: Ninth Circuit Upholds Conservationists’ Efforts to Stop Coastal Old-Growth Logging first appeared on Cascadia Wildlands.

Contacts:
Nick Cady, Cascadia Wildlands, (541) 434-1463            
Noah Greenwald, Center for Biological Diversity
Bob Sallinger, Portland Audubon

 Old-Growth Clearcutting Would Imperil Threatened Marbled Murrelets

EUGENE, Ore. — Today, a U.S. District Court judge issued a ruling preventing Scott Timber from clearcutting old growth forest previously part of the Elliott State Forest. The court found that the proposed logging of the “Benson Ridge” parcel by the subsidiary of Roseburg Forest Products would harm and harass threatened marbled murrelets, in violation of the federal Endangered Species Act. The court’s ruling permanently enjoins logging of the occupied murrelet habitat.

In August 2016, Cascadia Wildlands, the Center for Biological Diversity and Portland Audubon filed suit seeking to block Scott Timber from clearcutting 49 acres of the 355-acre parcel of land because of the impacts to threatened marbled murrelets.

“Today’s ruling is groundbreaking because it holds a private timber company accountable for plans to destroy habitat essential for imperiled wildlife in Oregon,” said Nick Cady, legal director at Cascadia Wildlands. “This ruling establishes that private timber companies can no longer violate the Endangered Species Act with abandon.”

Marbled murrelets are listed as “threatened” under the Endangered Species Act. The Act strictly prohibits “take” — which includes harming, wounding, harassing or killing — of protected species.  Marbled murrelets are sea birds with unique nesting requirements. They lay a single egg high in horizontal branches of old-growth trees within 40 miles of the coastline, and make daily trips to the Pacific to bring fish to their young once hatched.

Murrelets were documented in the stand proposed for clearcutting more than 200 times by both Coast Range Forest Watch, a group of citizens scientists who conduct murrelet surveys out of concern for their survival, and the logging company’s own contractors, leading the court to find that logging would harm murrelets “through the destruction and degradation of occupied murrelet habitat” and thereby impair the seabird’s ability to nest for “100 years or more.”

“I love marbled murrelets and I’m thrilled they got a little more protection from logging,” said Noah Greenwald, endangered species director at the Center for Biological Diversity. “The state of Oregon, private timber companies, and all of us share a responsibility to stop extinction and protect forests. This decision is good news not only for murrelets, but for hundreds of other species and future generations.

In July of last year, the Oregon Department of Fish and Wildlife uplisted the murrelet’s state protected status from threatened to endangered under Oregon’s Endangered Species Act. In response to a 2016 lawsuit, the Oregon Board of Forestry is in the process of developing rules to protect murrelet sites on state and private timber lands, but has dragged the process out for over five years and has yet to propose final rules. When presented with this lawsuit, the federal Fish and Wildlife Service declined to take up the case.

“Since their listing 30-years ago under the ESA, marbled murrelets have moved even closer to extinction in Oregon in large part because state and federal agencies have not done enough to protect and preserve the older forests on which they depend,” said Bob Sallinger, conservation director for Portland Audubon. “Hopefully this win and others that preceded it will encourage state and federal agencies to more aggressively pursue their responsibilities to protect and recover this amazing seabird that depends on Oregon’s older coastal forests to nest.”

The Benson Ridge parcel was acquired by Scott Timber as a part of the state of Oregon’s efforts to sell the Elliott State Forest in 2014. Cascadia Wildlands, Audubon, and the Center for Biological Diversity challenged those land sale efforts in state court in order to keep the much loved forest open to the public. In 2019, the Oregon Supreme Court ruled that the state’s efforts to sell the Elliott were illegal, and that the state’s understanding that these lands needed to be managed to maximize revenue were misplaced.

The court’s ruling builds on recent successful efforts to permanently protect the remainder of the Elliott State Forest. This past legislative session, the Elliott State Research Forest was created severing the link between old-growth timber sale revenues and public school funding in Oregon. The new research forest: 1) retains the forest in public ownership, 2) creates a 34,000-acre permanent reserve on the west side of the forest to benefit murrelets and other imperiled species, 3) protects nearly all of the remaining mature and old-growth forest left on the Elliott, and 4) meaningfully engages western Oregon tribes in its management.

The organizations were represented by attorneys for Cascadia Wildlands, the Center for Biological Diversity, attorney Daniel Kruse and the law offices of Charlie Tebbutt.

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Cascadia Wildlands defends and restores Cascadia’s wild ecosystems in the forests, in the courts, and in the streets. Cascadia Wildlands has over 12,000 members and supporters.
 
The Center for Biological Diversity is a national, nonprofit conservation organization with more than 1.1 million members and online activists dedicated to the protection of endangered species and wild places.
 
Audubon Society of Portland was founded in 1902 to promote the understanding, enjoyment and protection of native birds, other wildlife and their habitats. Today it represents over 16,000 members in Oregon.

The post Press Release: Court Halts Logging of Elliott State Forest Tract Sold to Private Timber Company first appeared on Cascadia Wildlands.

It may not be the trial of the century, but Monday saw the start of the trial of a lifetime for some cryptic, secretive seabirds nesting in the Elliot State Forest. The case is Cascadia Wildlands v. Scott Timber Company, and it is taking place this week in judge Aiken’s Courtroom #1 at Federal District Court in Eugene. At issue are the timber company’s plans to clearcut log 46 acres of old-growth forest from the Benson Ridge parcel of what used to be the Elliott State Forest, in the Oregon coast range not far from the town of Lakeside. Stopping the saws are the unobtrusive seabird, the Marbled Murrelet, which nests in old-growth forest; and a persistent group of forest defenders who care about them.

Usually, environmental destruction never makes it into a court of law. There are almost no laws protecting our environment; only laws protecting people. One rare exception is the endangered species act, a law which makes it illegal to drive a species to extinction. Because the Murrelet is listed as Threatened under the Endangered Species Act, and because citizen surveyors actually found nesting Murrelets in this specific stand of trees, Cascadia was able to sue to stop the logging on the logic that it would result in illegal “take” of Murrelets.

The atmosphere is nervous as the assembled crowd waits for the judge to make her entrance. Dark-suited attorneys sit at the tables on either side of the room, computer monitors in front of them showing a photograph of a Marbled Murrelet on the sea. Gathered in the room are attorneys, citizen advocates, and bird scientists. The bird on the monitor is the real plaintiff in the case. The obligation to speak for the bird that can’t speak for itself weighs heavy.

Lead counsel for the good guys is Cascadia’s own Dan Kruse, an accomplished environmental and criminal defense attorney who judge Hogan once called a tall glass of water. We also know him as a cut-throat Poker champion, and steadfast forest defender.

In opening statements, the contest begins to take shape. The Marbled Murrelet, a rare seabird, nests exclusively on branches of big trees in the coast range. Loss of that old forest to logging is the main reason they are going extinct. Scott Timber, which recently bought some acreage of old-growth from out of the Elliott State Forest, wants to clearcut log one of those stands of old-growth. In 2014, citizen surveyors with Coast Range Forest Watch found and documented Murrelets nesting in that very stand.

The law says you can’t knowingly harm a threatened species. Our case is that logging this old-growth, by destroying nest trees and making neighboring trees more vulnerable to predators, would harm Marbled Murrelets. We aren’t demanding money; just that they stop the logging.

The logging company’s opening statement sets out their view. They say we have a high burden of proving that this tract is essential to particular Marbled Murrelets, and that logging it would cause some specific problem for some specific bird. This is a familiar line of argument from earth-destroyers. They love to complain about uncertainty until it is too late.

Plaintiffs first burden is to show “standing.” This is an odd legal doctrine that requires someone bringing a lawsuit to show that they will be personally harmed by the lawbreaking. The law doesn’t protect nature. It only protects humans. It is not enough to show that Scott Timber would illegally kill Murrelets. We also have to prove that in killing those Murrelets, it will hurt us.

Filling that task for us is Francis Eatherington, a long-time forest activist. On the stand she testifies to how many times she has been in this particular stand of trees, how she has enjoyed it, and how she would be hurt by a clearcut. Francis is a perfect witness, personable and relatable. Her sharp knowledge of the facts on the ground, understanding of the law, and long experience give her undeniable credibility.

The logging company half-heartedly tries to catch her in a trap. Isn’t it true, they ask, that what she really cares about is the forest? That she is only pretending to care about Murrelets because they can stop this logging?

Francis’ eyes light up as she takes the opportunity to explain holistic worldviews to the young timber industry lawyer. Yes, it is about the forest, she explains, and what forest includes Murrelets  It includes the trees, the plants, the wildlife and birds, including the Marbled Murrelet.

Next on the stand is Max Beeken. Clean-cut in a slacks and tie, Max does not look the stereotype of a forest defender. The Port Orford resident with a bachelor of science in field biology is a co-founder of Coast Range Forest Watch, an all-volunteer group that does citizen science to protect the coast range forests.

Marbled Murrelet surveys are a big part of what they do. Part of Max’s job is keeping track of all of the Murrelet survey forms from volunteers, so the attorney walks him through page after page of Murrelet surveys. The group has done about four hundred surveys looking for Murrelets.

Our attorney pauses on the survey form that showed Marbled Murrelets nesting in this stand. One survey, on May 24, 2014, is what this case comes down to.

The attorney pauses also on several surveys that did not find Murrelets, including one by Max himself where a Murrelet was detected, but not at the elevation that would show it was nesting. Why not just fudge the numbers a little bit, the attorney asks?

He answers simply: because that wouldn’t be true.

Industry tries to “impeach” Max only half-heartedly. Isn’t it true that he was affiliated with Cascadia Forest Defenders? Well yeah, and…?

Next on the stand is Clark McMahon, also a co-founder of Coast Range Forest Watch and a professional tree climber and surveyor. Clark spends a lot of his time doing surveys for timber companies, so it’s hard to challenge his credibility. That doesn’t stop the industry attorney from trying.

Isn’t it true he was arrested for criminal trespass a decade ago at a protest on the Elliott State Forest? Isn’t it true he was affiliated with Cascadia Forest Defenders? Yes and yes and…

But the industry lawyer’s gambit doesn’t work. McMahon, like Beeken and Eatherington, is not even remotely ashamed of protest activities. The line of accusation only bolsters their integrity. The judge gives a look. The industry attorney sits down.

The day’s highlight came with Clark on the stand. After having described in agonizing detail the survey protocol for Marbled Murrelet nesting, we hear audio recordings of his field notes. The courtroom is suddenly full of the silence of the forest at dawn. Clark’s voice, softly speaking into his recorder, notes the time, 5:30 a.m., weather a calm 58 degrees, and his observations. Two thrushes. A Robbin. At 5:30 he records seeing a Murrelet only 15 meters away, flying a straight line, but above the canopy.

Then comes the magic moment: two birds at zero-point-eight canopy, flying west, seventy meters away.

I am full of pride in Cascadia and gratitude for these citizen surveyors. They are actually pulling this off. They are giving the bird— one of our relations in Cascadia who can’t speak for itself— a voice in the courtroom.

Stay tuned…

The post Murrelet Get Their Days in Court–Words From the Courtroom Part 1 first appeared on Cascadia Wildlands.