Marbled Murrelet Litigation Update

by Marcy Golde, OFCO Board Member

As we wrote in the last issue of our newsletter, on March 18, 2013 Judge Heller, of the King County Superior Court, heard Olympic Forest Coalition’s and Seattle Audubon Society’s challenge to the Washington Department of Natural Resources’ decision to open more than 12,000 acres of previously protected, higher-quality marbled murrelet habitat to logging.  Prior to May 2012 DNR was unable to log that habitat because of commitments it made in its Trust Lands Habitat Conservation Plan (the HCP), a federally-approved logging and conservation plan developed pursuant to the federal Endangered Species Act.  But in May 2012, DNR proposed, and the U.S. Fish and Wildlife Service approved, an amendment to the HCP that lifted protective restrictions and opened that habitat up to logging.  OFCO and Seattle Audubon challenged DNR’s decision in state court, while OFCO and Sierra Club challenged federal approval of the HCP amendment in federal court.

The plaintiffs in the cases received good news in both cases this past July.  In the state-court case, Judge Heller agreed with the plaintiffs and ruled that DNR’s “determination of non-significance” for the decision violated the State Environmental Policy Act (SEPA).  His ruling protects 12,000 acres of marbled murrelet habitat in southwest Washington until DNR adopts the long-term marbled murrelet conservation strategies required by the HCP.  Also in July, Judge Leighton, of the U.S. District Court in Tacoma, denied the federal defendants’ motion to dismiss the case, meaning that the challenge to their approval of the HCP amendment will go forward.

Judge Heller’s ruling in the state-court case placed renewed emphasis on having a long-term planning process that considers all viable options to balance important economic considerations with the preservation of Washington’s natural heritage.  Seattle Audubon Society, Sierra Club, and Olympic Forest Coalition have been actively providing input to DNR as it develops the requisite long-term conservation strategies.  The conservation objective is to recover populations of the murrelet, a Pacific Northwest seabird that nests in old forests near marine waters, by protecting what remains of these forests.

Conservation groups hope that, as a result of Judge Heller’s decision, DNR will have increased options available as it develops its long-term strategies. Those strategies will shape forestry on DNR-managed lands for decades and should help protect forest habitat for the murrelet, preserve old-growth ecosystems, and provide clean air and water for human consumption as well as for other species including wild salmon.  Well-balanced long-term conservation strategies should also provide long-term and stable benefits to the counties and other trust beneficiaries.

“It’s heartening that the court agrees with us on the impacts logging can have on murrelet habitat and the need to require DNR to respect the terms of its Habitat Conservation Plan,” said outgoing OFCO President John Wooley. 

“It was very surprising to see DNR claim that opening 12,000 acres of a threatened species’ habitat to clear-cut logging wouldn’t have any significant environmental impacts,” noted Paul Kampmeier, an OFCO board member and attorney with the Washington Forest Law Center.

In addition to working with DNR on long term planning, conservation groups have successfully lobbied the State Legislature for $1.5 million in funds to protect State lands and compensate counties for potential timber harvest revenue.   

The Washington Forest Law Center, a non-profit law firm that represents public interest groups in forest policy advocacy and litigation regarding State and private lands in the Pacific Northwest, represents OFCO, Sierra Club, and Seattle Audubon Society in the two cases.  Wyatt Golding, an attorney with WFLC, argued the state-court case in Judge Heller’s courtroom.

Reflecting on the broader implications of the murrelet’s survivial, Woolley observed, “What’s good for the marbled murrelet is one step toward protecting Washington coastal watersheds in our changing world.”