1 Land Exchange Update June 1999 Land Exchange Update Western Land Exchange Project Seattle, Washington R e s e a r c h , A d v o c a c y , a n d O u t r e a c h f o r L a n d E x c h a n g e P o l i c y R e f o r m J une 1 999 V o l .3, N o . 2 COURT HALTS LOGGING ON LAND TRADED TO WEYERHAEUSER By Rachael Paschal, President, W estern Land Exchange Project Testament to the destruction wrought by the Weyerhaeuser Corporation, Huckleberry Mountain is wasted with clearcuts and roads that have brought the Green River watershed to the v ery edge of ecological collapse. But a recent decision from the Ninth Circuit Court of Appeals has afforded Huckleberry Mountain a temporary reprieve. In 1996 Weyerhaeuser (Weyco) and the Forest Service (USFS) entered into an extraordinary deal. In exchange for 4,300 acres of the last remaining native forest on Huckleberry Mountain in the Mt. Baker-Snoqualmie National Forest, the public was traded about 30,000 acres of corporate lands, consisting mostly of clearcuts, young plantations, and high-elevation “rocks and ice.”Pilchuck Audubon Society, Huckleberry Mountain Protection Society, and the Muckleshoot Indian Tribe opposed the trade, and sued in federal court. After losing there, attorneys David Vogel and Greg O’Leary appealed to the Ninth Circuit. In oral argument held in Seattle in March, three appellate judges severely questioned USFS attorneys about the adequacy of the environmental analysis. The judges appeared incredulous when Weyco’s attorney argued that the appeal was moot because deeds had already been exchanged and Weyerhaeuser had “destroyed” ten percent of the land. (Weyco later stated that it had received permits to log that amount, but had only logged 3 percent). The landmark May 19, 1999 opinion in Muckleshoot Indian Tribe, et al. v . U.S. Forest Service held with the plaintiffs, stating that the decision to approve the Huckleberry trade was flawed and must be returned for further analysis. The decision unequivocally established that federal agencies must conduct a more comprehensive review of land exchange proposals under the National Environmental Policy Act (NEPA). The Court also addressed impacts to cultural resourcesa pivotal issue for the Muckleshoot Indian Tribe, to whom Huckleberry Mountain is of great historic and spiritual importance. Destruction of an ancient Indian trail The trade gave Weyco a lengthy section of the 17.5-mile Huckleberry Divide Trail, an important ancestral transportation route of the Muckleshoot Indian Tribe. The trail is protected under the National Historic Preservation Act, yet Weyco’s logging would plainly destroy it. The Court rejected the mitigation plan, which entailed photographing and mapping the trail it prior to its destruction. The Court remanded, suggesting that deed restrictions (such as easement or covenant) would provide more appropriate protections. Cumulative effects The Court also remanded on two NEPA issues. NEPA requires agencies to analyze the cumulative effects of a project in conjunction with past, present, and future projects in the same area. In this case, the analysis would have to look at the 1984 Alpine Lakes Land Exchange, which transferred several thousand acres in the Green River out of federal ownership, as well as Plum Creek Timber Company’s upcoming I-90 Land Exchange, trading public lands in the same watershed. The USFS had argued that the I-90 Exchange was too speculative to warrant
was announced five months before the Huckleberrydecision was approved.
The Court found that the cumulative effects
analysis was “very general and one-sided,” that it“failed to evaluate the near term impacts of
Weyerhaeuser’s logging of old growth timber in anymeaningful fashion,” and that the “Forest Service
abused its discretion” in ignoring the impacts of other exchanges.
New alternatives: restrictions or purchase
The Court ruled that the agency did not fulfill itsduty under NEPA to consider an adequate range of
alternatives for the project.
Lands traded on both sides of the Huckleberry swap
fall within the “checkerboard” of alternating publicand corporate-held lands created by the Northern
Pacific Railroad land grant of the 1800s. Thepurpose of the exchange was to “consolidate land
ownership patterns where consistent landmanagement applies across large blocks of land.”
But the EIS considered only three optionstherequired “no-action” alternative and two very
similar exchange scenarios.
The Court upheld plaintiffs’ argument that the
agency should have considered at least two otheralternatives. The firstdeed restrictions on the
land traded to Weyco requiring more protectivelogging standardshad been eliminated from
analysis by the USFS because it would decreaseWeyco’s incentive to trade. The Court pointed out
that land exchange regulations promulgated under
the Federal Land Policy and Management Act(FLPMA) specifically direct agencies to reserve
rights on public exchange lands where necessary toprotect the public interest. The Court was troubled
that the USFS failed to consider this alternative,which is “more consistent with its basic policy
objectives” than the alternative that was approved.
A second new alternative would involve outright
purchase of the Weyco lands using the federal Land
and Water Conservation Fund (LWCF), specificallyearmarked for public land purchases. The USFS didnot analyze this option, arguing that the availability
of LWCF funds was too speculative to consider.The Court found that LWCF purchase was in fact a
reasonable alternative and should have been
analyzed.
Logging is stopped
The Ninth Circuit ordered an immediate halt tologging and other activities on the exchanged
lands. The vast majority of the forest traded to
Weyerhaeuser still stands. Now, the USFS ischarged with conducting a new analysis to addres
the deficiencies in the 1996 EIS. Clearly, this waffect the configuration of the Huckleberry
exchange, but it also raises the possibility that thtrade might be reversed.
It would be difficult to overstate the potentialimpact of the Huckleberry decision on federal land
exchange policy. Agencies must now consider nalternatives, better enabling the public to weigh t
effects of swapping land unencumbered to privateinterests. The decision also affirms the right of t
courts under FLPMA to review whether a land
exchange serves the public interest. The NinthCircuit’s decision clearly demonstrates that land
exchanges must be held to a higher standard.
We owe a debt of gratitude to Pilchuck Audubon,Huckleberry Mountain Protection Society, and the
Muckleshoot Indian Tribe. Their controversial andifficult battle pays tribute to Huckleberry Mounta
and to all public lands sacrificed under misguided
land exchange policies.
For background on the Huckleberry Land Exchange, seepast issues of Land Exchange Update, posted on our wesite at www.westlx.org. The Ninth Circuit decision canalso be read from a link on our “press room” web page
TO BLOCK FURTHER LITIGATIONIn a move to block further court challenges against
its land exchange with the US Forest Service,
Crown Pacific, L.P. has offered a settlement thatwould protect about 3,000 acres of old growth in
the Deschutes National Forest in central Oregon.
In October 1998, the timber company and theForest Service were sued by the Western Land
Exchange Project, Sierra Club Juniper Group,Central Oregon Forest Issues Committee, and WildWilderness. Plaintiffs are represented by Carrie
Stilwell of Western Environmental Law Center inEugene.
Among the central issues brought by plaintiffs was
the net loss to the public of 3,000 to 3,500 acres of old growth. In a mid-April decision, Federal DistrictCourt Judge Helen Frye decided in Crown’s favor.
Despite this victory, Crown quickly offered a
settlement in order to fend off further appeals.
Crown proposed a “special management area”
(SMA) on 3,040 acres of the public land thecompany would receive in the trade. The SMAwould be managed to create habitat for old-growth
dependent species including the northern goshawk
and the white-headed woodpecker, both indicator
species for old-growth Ponderosa pine habitat.Old-growth Ponderosa pine is one of the most
endangered plant communities in the world, and itis estimated to have been reduced to about 3percent of its original range in the Deschutes
National Forest.
Plaintiffs called off negotiations in late April whenCrown’s offer went from vague to worse and the
company refused to accept input. In a statementissued to the press, Sierra Club spokespersonSandy Lonsdale said, “What they originally offered
was a long-term conservation plan, but this is mo
like a quick-liquidation logging plan.”
Crown reopened negotiations soon after. Plainti
changed the boundaries of the proposed SMA,removing much of the trashed land the companywas offering and adding several hundred acresmore of intact old growth.
The land will be put into a 100-year conservationeasement granted to the Deschutes Basin Land
Trust (DBLT). The SMA will be managed underprescriptions to be developed by Bill Hopkins, areecologist for the Forest Service and theacknowledged expert on eastside old growth.
Hopkins will create the prescriptions without inputfrom Crown Pacific, but plaintiff groups and theDBLT will be allowed to review the plans. All tre
of 21 inches or greater diameter at breast height
will be retained, and pre-commercial thinning andprescribed fire may be used in some areas. CroPacific will manage the land according to Hopkins
prescriptions and will pay DBLT to monitor itsactivities.
Two years ago, the plaintiffs and other citizens’
groups and asked the Forest Service to put
restrictions on the trade to limit logging on thepublic land going to Crown Pacific, and not to trad
any old-growth forest to the company. But theagency refused to ask Crown for any concessions
Western Land Exchange Project director Janine
Blaeloch expressed bitterness toward the agencyfor its failure to protect the public’s interests.“The Forest Service generally goes along with
whatever timber companies want. We’re the oneswho ended up having to negotiate to save sometrees while the Forest Service did nothing.”
! ! ! ! ! ! !
We wish to acknowledge the invaluable help (in its myriad forms) of David Vogel, Sharon Gilpin
and John Bodin, Sandy Lonsdale, Andy Ryan, Steve Huddleston, Tim Lillebo, Tom Squires, Stevi
Staples, Ray Ziarno, the Heartwood clan, Tim Greyhavens and Jen Clanahan, Dave Bahr and Da
Stotter, John Loftus, Stuart Lewin, and Judi Brawer and all the folks at American Wildlands
We’re honored to have three new additions to our boardof directors.
Vice president Chuck Pezeshki is an associate
professor of mechanical engineering at WashingtonState University, author of " Wild to the Last:Environmental Conflict in the Clearwater" (WSUPress, 1998), and founder of the Clearwater
Biodiversity Project. He is a frequent contributor to
various periodicals across the West onenvironmental issues. He is currently working on aphotographic and text essay on the Lewis and Clark
Trail in the Clearwater Country.
Sandy Lonsdale is a freelance journalist and
photographer, chairs the Sierra Club’s Juniper
Group, and focuses his activism on grazing, forests,
mining, and water. Sandy recently completed aphoto-inventory of Oregon’s High Desert wildlandsfor an upcoming exploration guidebook. He is a
27-year resident of Bend, Oregon.
Marianne Dugan was an attorney and associate
director with the Western Environmental LawCenter, where she litigated two major land
exchange cases. She now works in private practicein Eugene, Oregon in the area of personal injury
and consumer protection law. Marianne earned a
JD with certificates in environmental and
ocean/coastal law as well as a Masters Degree inenvironmental studies from the University of Oregon.
Land Exchange Updat eLand Exchange Updat eLand Exchange Updat eLand Exchange Updat e is published by the Western Land
Exchange Project, a non-profit charitableorganization conducting research, outreach, and
advocacy for the reform of federal land exchange
policy.
West er n Land Exchan ge Pr oj ectWest er n Land Exchan ge Pr oj ectWest er n Land Exchan ge Pr oj ectWest er n Land Exchan ge Pr oj ectP.O. Box 95545
Boar d o f Di r ect or s:Boar d of Di r ect or s:Boar d o f Di r ect or s:Boar d of Di r ect or s:Rachael Paschal, President
Dr. Charles Pezeshki, Vice President
Bonnie Phillips, Secretary
Martin L. Rand, TreasurerMarianne Dugan, At-Large
Sandy Lonsdale, At-Large
St aff :St aff :St aff :St aff :Janine Blaeloch, Director
Joseph Cunningham, Program Coordinator
Our gratitude to the True North , Bullitt, Ko ngsgaard-Goldman , W ilburforce,and New-Land foundations and to Training Resources for the EnvironmentalCommunity for their support.
Thanks also to our n ew m embers and contributors:
Steve Doyle, Joe Cunningham, Bonnie Phillips, Rachael Paschal, Paul Swetik, Beth Menig, Jan Naragon,
Jennifer Schemm, Jill Sheldon, Craig Lorch, Stephanie Matheny, Charles Bagley, Jr., Buell & Donna
Hollister, Kootenai Environmental Alliance, the van Doornincks, Linda Campbell, David Batker,Christopher Vondrasek, Betsy Dennis, Betsy Gaines, Beth Fries, Susan Saul, Joanne Vinton, Kris Nyrop,Vivian Stockman, Homer & Marguerite Campbell, Joan Smith, Debra Patla, Greg Nagle, Jonathan Marvel,
Charles Couper, David Orr, Don Steuter, Mark Drake, E. M. Sterling, Vernon Bates, Ouachita WatchLeague, Rebecca Rundquist, James Bicknell, Chuck Pezeshki, Dr. John Osborn, Sam Francis, Tom & Jackie Andrewjeski, Linda Brousseau, Ann & David Bellis, Leslie Ann Rose & David Adams, Wade Higgins,
Cathleen Campbell, Mark Z yniecki, and Howard Paine.
Our new “Press Room” web page allows you tokeep up with recent newspaper coverage of theland exchange issue.
