https://www.capitalpress.com/ag_sectors/timber/judge-refuses-to-declare-oregon-state-forest-logging-takes-coho-salmon/article_fc800b42-5ec5-11ec-aac0-272fd8b166bd.html#:~:text=PORTLAND%20%E2%80%94%20A%20federal%20judge%20has,unlawfully%20harmed%20threatened%20coho%20salmon.&text=The%20plaintiffs%20must%20prove%20that,injure%20coho%20salmon%2C%20he%20said.
Judge
refuses to declare Oregon state forest logging 'takes' coho
salmon
PORTLAND — A federal judge has refused
to declare that logging activities in Oregon’s Clatsop and
Tillamook state forests have unlawfully harmed threatened
coho salmon.
Though U.S. District Judge Michael
Mosman has rejected a motion by environmental groups to
declare that timber sales in those state forests violate the
Endangered Species Act, his ruling doesn’t put an end to the
litigation.
The Center for Biological Diversity,
Cascadia Wildlands and the Native Fish Society have a
“strong case” they’ll succeed on the merits, but at this
point, their evidence of illegal “take” isn’t beyond
dispute, Mosman said.
The plaintiffs must prove that logging
road construction caused landslides that harmed streams
enough to kill or injure coho salmon, he said.
“You just can’t get there from here
without something more,” Mosman said at the conclusion of
oral arguments in Portland on Dec. 16.
However, the judge has agreed to
revisit the issue after hearing expert testimony next year
from the environmental nonprofits and the State of Oregon,
as well as Tillamook County and the Oregon Forest and
Industries Council, which have intervened in the lawsuit.
Amy Atwood, attorney for the
environmental nonprofits, argued that findings from the
National Marine Fisheries Service, numerous studies and
documentary evidence all prove that landslides from logging
roads adversely affect coho salmon.
“It’s apparent from our photography
that sediment was delivered,” Atwood said. “Our contention
is that fine sediment is always harmful.”
If the environmental nonprofits
convince the judge that ODF’s management resulted in
unlawful take, it could have implications beyond state
forestland. Similar logging activities on private forestland
could then also be vulnerable to lawsuits.
Attorneys for the defendants and
intervenors countered that the environmental plaintiffs have
not established a sufficient causal link between the Oregon
Department of Forestry’s logging authorizations and the
alleged “take” of coho salmon.
“They just haven’t done the who, what,
where, when and how,” said Jay Waldron, Tillamook County’s
attorney. “Landslides occur in Tillamook County every day.
It doesn’t automatically result in take or habitat
modification.”
The fact that sediment has entered
streams alone isn’t enough to prove that coho salmon were
killed or injured in violation of the ESA, said Deanna
Chang, attorney for the state government.
“They have not established that
landslide occurred due to any activities of ODF,” she said.
“Not all steep slopes are prone to landslides. Not all areas
to be harvested are on steep slopes.”
Chang said the court briefs filed by
the plaintiffs are not sufficient for the judge to rule that
ODF violated the law. To make such a conclusion, he must
consider expert testimony from both sides, she said.
“It’s not just the introduction of
sediment to a stream,” Chang said. “It has to have an
adverse impact on listed species.”
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