Court: DNR must prepare EIS for thinning logging near murrelets

A King County Superior Court judge ruled July 11 that the state Department of Natural Resources (DNR) must produce full environmental impact statements (EIS) before starting thinning logging near marbled murrelet habitat.

The agency had hoped to undertake the thinning logging on approximately 12,120 acres, including 3,000 in Wahkiakum County, and had issued a declaration of non-significance for the work after consulting with the US Fish and Wildlife Service and reviewing provisions of a habitat conservation plan (HCP) established to protect areas occupied by endangered spotted owls on timberlands which the DNR manages. The agency made what it called a "minor amendment" to the HCP to permit the logging.

The logging would have occurred on land adjacent to identified endangered species habitat, and it would have taken only a portion of available trees.

However, the Seattle Audubon Society and Olympic Forest Coalition sued the DNR, claiming the declaration of non-significance was inadequate because the DNR hasn't yet completed a habitat conservation plan for marbled murrelets, and that the logging would create significant adverse environmental impacts.

Wahkiakum County officials had hoped to receive revenue from the logging on state-managed county trust timberlands, and the county and the American Forest Resource Council filed as intervenors supporting the DNR.

The parties argued the case last winter, and Judge Bruce E. Heller ruled last week that the DNR's decision making process violated the State Environmental Protection Act (SEPA) and that the matter should be remanded to the DNR for further consideration.

Judge Heller commented that most of the arguments focused on whether or not the impacts of logging would harm the murrelets, but, he said, the SEPA focuses primarily on the way decisions are made rather than on a result. He held that the DNR had violated SEPA by engaging in a piecemeal environmental review by considering the impact of the minor amendment to the HCP in isolation from the impacts of the pending long-term conservation strategy.

Judge Heller also ruled that the DNR violated SEPA by balancing the benefits of the minor amendment against its adverse impacts. Quoting another court decision, he said state administrative code requires the agency to consider "the absolute quantitative environmental effects of the action itself."

Heller acknowledged that the DNR walks a tightrope between managing land for endangered species and for performing its fiduciary responsibility of producing revenue off the lands for its trust beneficiaries.

"However, DNR can only engage in this balancing process within the context of an EIS, the long-term conservation plan, or some other more comprehensive process," he wrote. "It cannot, as it did in this case, harvest reclassified areas without knowing whether the second part of the equation--the marbled murrelet management areas--will come to pass."

The decision disappointed Wahkiakum County officials.

Prosecuting Attorney Dan Bigelow presented the decision to the board of commissioners in an executive session on Tuesday. Afterward, he said the options for the DNR are limited.

The agency can appeal, ask for a reconsideration, or perform the EIS, all of which take time, or, in the case of reconsideration, are unlikely to succeed. The agency also needs to finalize the murrelet HCP for good, he said, but that work may not be completed for several years.

So far, there has been no official comment from the DNR, Bigelow said, so "we don't know what the DNR will do."

The Seattle Audubon Society issued a statement Tuesday.

“It’s heartening to see that the court recognizes the importance of a long-term conservation strategy to recover marbled murrelets on state lands, especially one that respects the terms of the habitat conservation plan and is developed with all stakeholders involved” said Marina Skumanich, Seattle Audubon Interim Executive Director.

The 19-page opinion placed renewed emphasis on having a long-term conservation strategy planning process that considers all viable options to balance important economic considerations with the preservation of Washington’s natural heritage, the statement said.