Court NEPA injunctions, Forest Planning Rule, More…

By American Forest Resource Council

Supreme Court Injunction Case

On April 27, the U.S. Supreme Court heard oral argument in Monsanto Co. v. Geertson Seed Farms, a case which could affect how the courts in the Ninth Circuit treat requests for permanent injunctive relief in National Environmental Policy Act (NEPA) cases.

The case challenges a decision by Northern California District Court Judge Charles Breyer granting a permanent injunction without requiring the plaintiff to prove a likelihood of irreparable harm if the injunction was not issued. Judge Breyer is the brother of Supreme Court Justice Thomas Breyer, who recused himself from deliberations.

Although it is hoped the Court will use this opportunity to clarify the standards for injunctive relief in NEPA cases, particularly in the Ninth Circuit, the questions asked by the Court during oral argument seem to point toward a more narrow decision which may have little effect on administrative or environmental law. A decision is expected early this summer. /Ann Forest Burns

Forest Planning Rule

As previously reported, the Forest Service is in the process of drafting a new Forest Planning Rule. The process to date has included a formal comment period, which closed in February. Since then the agency has held a Science Forum, three national roundtables, and several regional roundtables to solicit input from the public. AFRC participated in the regional roundtables and submitted comments during the scoping period.

The third national roundtable was held May 11-12 in Rockville, Maryland. There were approximately 100 participants including agency representatives, facilitators, and 8 people from the forest products industry. The roundtable consisted of breakout groups each discussing a set of topics:

* providing for plant and animal diversity

* restoration/resiliency

* the contribution of recreation and other goods and services from national forests to vibrant local economies

* the role of science

* managing forest service lands in the face of changing conditions * monitoring

The purpose was not to seek consensus on any of these topics, but the agency will use the information in drafting the various components of the new rule. The agency plans to have a draft environmental impact statement and proposed rule for public review by the end of this calendar year. Their plan is to have the final environmental impact statement and rule completed by November 11, 2011.

This third national roundtable was to have been the last but it was announced that there would be a fourth national roundtable sometime in late July to share the progress at that time. Details will be announced at a later date.

The agency has also set up a blog for the public to comment on what should be in the rule. It¡¦s not clear if the posts on the blog will actually become part of the official record. For further information about this process, to review the input from the various roundtables, or to go to the blog, please go to:!ut/p/c4/04_SB8K8xLLM9MSSzPy8xBz9CP0os3gjAwhwtDDw 9_AI8zPwhQoY6BdkOyoCAPkATlA!/?ss=119987&navtype=BROWSEBYSUBJECT&cid=FSE_0038

American Forest Resource Council 5100 S.W. Macadam Avenue, Suite 350 Portland, Oregon 97239 Phone: (503) 222-9505 Fax: (503) 222-3255 E-mail: [email protected]

/Chuck Burley

Climate Legislation Unveiled

On May 12, Senators John Kerry (D-MA) and Joe Lieberman (I-CT) introduced the “American Power Act¨ (APA). The stated intent of the act is to create American jobs and put the United States on a course of being energy independent, while reducing carbon emissions by 17 percent in 2020 and by over 80 percent in 2050. According to materials provided by the sponsors, the plan is based on five principles:

1. The Act sends two-thirds of all cap and trade revenues not dedicated to reducing the national debt back to energy consumers.

2. The APA invests in technology to harness domestic power supplies and reduce our dependence on foreign oil.

3. The APA will create jobs rebuilding the energy infrastructure focusing on home-grown energy sources such as: coal, natural gas, nuclear and renewables.

4. The Act provides a new approach to reducing emissions that recognizes the difference between the three largest emitting sectors: power plants, heavy industry, and transportation.

5. The system must be kept simple, stable, and secure and will only address the largest sources of carbon pollution and provide predictability to businesses and consumers through a hard pricing system and a clear set of rules.

To add clarification to some of the points, the bill states that industrial sources will not enter the program until 2016, and it only requires the largest sources of pollution to comply with reduction targets: those who produce more than 25,000 tons of carbon pollution annually. This means the program only focuses only on the 7,500 largest factories and power plants. The Agriculture Department (USDA) will have the primary authority over domestic agriculture and forestry projects, not the Environmental Protection Agency (EPA). For those who want to purchase or sell carbon credits, the bill sets up an introductory floor price of $12/ton and a ceiling price of $25/ton that are adjusted for inflation.

The APA does include several provisions of interest to biomass power producers. First, the bill¡¦s definition of ¡§renewable biomass¡¨ from federal lands contains provisions from the definition that was included in the 2008 Farm Bill as well as language from the Waxman-Markey bill that passed the House in 2009. The Waxman-Markey renewable biomass definition was the product of intense negotiations and efforts from many Western members of Congress, including Representatives Brian Baird (D-WA), Kurt Schrader (D-OR), Peter DeFazio (D-OR), Greg Walden (R-OR) and StephanieHerseth-Sandlin (DSD).

Specifically, the legislation would define renewable biomass to include materials from federal lands that are byproducts of preventative treatments and hazardous fuel reduction activities. The definition would exclude materials from Wilderness areas, Inventoried Roadless Areas, old growth stands and latesuccessional stands. The prohibition on late successional stands does include an exception for dead, severely damaged, or badly infested trees that was championed by Representative Brian Baird and others.

The Kerry-Lieberman legislation does not contain the nonsensical restrictions on biomass from private lands that were included in past definitions, including Waxman-Markey. The APA would also direct the EPA, in consultation with the Secretaries of Agriculture and Interior, to issue a report every 5 years outlining the greenhouse gas emissions and benefits of biomass energy production as well as its impact on other environmental values. Finally, the legislation would direct EPA and USDA to enter into an agreement with the National Academy of Sciences to make recommendations related to the definition of renewable biomass for private lands and require a similar review by EPA, USDA and Interior related to biomass removal on federal lands.

Noticeably absent on the sponsor list was Senator Lindsey Graham (R-SC) who was a key negotiator of the legislation, but did not sponsor the bill because of Democratic efforts to take up the controversial immigration issue before engaging in the difficult climate change debate. Comprehensive climate and energy legislation face tough odds to pass Congress this year following the bruising health care debate. Further compounding its chances is the ongoing disastrous oil spill taking place in the Gulf of Mexico which will create further controversy about encouraging increased offshore oil production. /Tom Partin

R6 Pine Indexing

In a letter dated May 4, Region 6 Regional Forester Mary Wagner announced that all existing timber sale contract holders with contract groups of Ponderosa Pine, or Ponderosa Pine and Other Coniferous Species will have the option of converting to Flat Rates upon written request of the purchaser. Further, the region will be offering Ponderosa Pine and Ponderosa Pine and Other Coniferous Species contract groups at Flat Rates in all new escalated sales and contracts across the region.

This modification was the result of several discussions between regional personnel, AFRC and AFRC members regarding the ineffectiveness of the Coast Inland Ponderosa Pine Index to reflect true stumpage adjustments based on the products currently being realized from Ponderosa Pine timber in Region 6. The Flat Rates will be determined based on the four quarterly indexes from 2009 and will be effective for a 24 month time period. The region will assess the escalation of Ponderosa Pine again as the Western Wood Products Association develops a new index log for Ponderosa Pine for the 2012-2013 base index. The work of the Regional office is very much appreciated by the purchasers and this action will allow projects to be operated, commercial products to be moved, and forested acres to be treated. /Tom Partin

House Appropriations Chairmanship

On May 4, House Appropriations Chairman David Obey (D-WI) announced that he will retire and not seek reelection. Obey¡¦s retirement most likely opens the door for Representative Norm Dicks (D-WA) to assume the chairmanship of that Committee. Dicks most recently took over the chairmanship of the Defense Subcommittee following the death of John Murtha (D-PA) in February.

To become Chairman of the Defense Subcommittee, Dicks had to give up his leadership of the Interior, Environment, and Related Agencies Subcommittee which oversees the budgets of the Forest Service and BLM; however he remains a strong member of that Committee. Dicks¡¦ rise to Chairman of the Appropriations Committee could bode very well for many sectors of the West. He has been a strong supporter of the military bases and aerospace industries located in Washington State and throughout the West, as well as supporting strong budgets for the agencies that oversee our federal forests.

The only possible roadblocks to Dicks becoming Chairman would be for the Democrats to lose control of the House in this fall¡¦s election and/or a successful challenge by a junior committee member, as decisions regarding committee chairmanships are ultimately decided by the full Democratic caucus. It is also interesting to note that very little work has been done to date on any of the eleven spending bills that need to be passed to keep our Government in operations for 2011, and it is expected few bills will be passed before the November election. /Tom Partin

DNR Timber Program Report

DNR is in the final two months of FY10 and reports the following fiscal year to date results for all sales as of April.

Sales offered 146
Sales sold 140
Sales no-bid 6
Volume offered 640 mmbf
Volume sold 622
Volume no-bid 18 %
Volume sold 97
Sold sale value $153 million
Price/MBF 245
Overbid ratio 31%
Average bidders per sale 3.6

DNR expects to sell 760 mmbf of timber in FY10, which will return approximately $200 million to the trusts and DNR despite low stumpage returns in the first half of FY10. The FY11 westside harvest is scheduled at 600 mmbf, which matches the sustained yield level. Sales volumes were higher in recent years due to an arrearage in the planning decade¡¦s early years. /Bob Dick

DNR Strategic Plan Released

On April 29, DNR released its Strategic Plan 2010 -2014: The Goldmark Agenda. Here is a brief summary of changes and key issues.

„h Recognizes stakeholder groups and DNR¡¦s intentions for its trust land management. The goal finally addresses natural resource users from shellfish growers to miners and much in-between, a much needed change. DNR continues to signal its intention to increase FSC certification. Agriculture land issues are also addressed. DNR intends to submit its aquatic HCP to the National Marine Fisheries Service.

– Discusses forest practices issues. DNR now recognizes they will not ¡§prevent¡¨ landslides. One goal is to complete federal Clean Water Act assurances.

– Deals with conversions, land base maintenance and help for non-industrial landowners. DNR proposes to create the ¡§Community Forest Trust¡¨ to protect forest lands subject to conversion.

– Examines Puget Sound restoration.

– Addresses renewable energy. DNR still believes global warming will affect land management. This entire section has been improved from earlier drafts.

– Examines department management and employee relations. One issue of interest is cost recovery. The document also modifies the ¡§diversity¡¨ language and recognizes that maybe being qualified is important.

Even though there is still much about the plan which causes us concern, it is a significant improvement over previous versions. The report can be accessed at: /Bob Dick

No Injunction in Framework Case

On April 29, the Ninth Circuit Court of Appeals denied an ¡§urgent motion¡¨ by Sierra Forest Legacy for an injunction against implementation of the 2004 Sierra Nevada Forest Plan Amendments pending appeal of Eastern California District Court Judge Morrison England¡¦s November 4, 2009 decision. His decision allows the Forest Service to continue to operate under the 2004 Sierra Nevada Framework. (See AFRC Newsletter, November 25, 2009.) The wording of the Court¡¦s order seems to signal that it will limit any review to the specifics of the Basin, Slapjack and Empire project areas, rejecting the appellants¡¦ attempts to mount yet another challenge to the overall Framework which affects 11 national forests.

Under Judge England¡¦s ruling, the Forest Service is preparing a Supplemental Environmental Impact Statement. The extended comment period for the SEIS ended on May 5. /Ann Forest Burns

Wyden Bill Hearing

Senator Ron Wyden (D-OR) is holding a field hearing on June 4 in Bend, Oregon on his ¡§Oregon Eastside Forests Jobs, Forest Restoration and Old Growth Protection Act.¡¨ The bill which was introduced on December 16, 2009, had a prior hearing in Washington, D.C. on March 10 before the Senate Subcommittee on Public Lands and Forests of the Senate Energy and Natural Resources Committee.

The bill took nearly six months to draft following collaborative efforts from members of the timber industry and conservation interests. The strategy of the bill is to get more of the fire prone eastside national forests of Oregon mechanically treated to improve forest health and maintain the existing forest products industry infrastructure. Currently less than 40,000 acres are being mechanically treated per year. The bill calls for ramping up the acres treated in the short-term until landscape sized projects of at least 25,000 acre can be implemented on each national forest per year.

Wyden¡¦s bill joined other targeted measures introduced in the Senate this session, including Senator Jon Tester’s (D-MT) ¡§Forest Jobs and Recreation Act¡¨ and Senators Mark Udall (D-CO) and Jim Risch¡¦s (R-ID) ¡§National Forest Insect and Disease Emergency Act.¡¨ The introduction of these bills highlight the forest management problems that exist in individual states and regions, which is driving these members of Congress to introduce state and issue-specific legislation. / Tom Partin

Ecological Restoration Intent of R5

On May 3, Region 5 Regional Forester Randy Moore sent a memo to all region employees asking them to implement his vision statement that calls for an increased emphasis on ¡§ecological restoration¡¨ in the work being done in the region¡¦s forests. ¡§[T]he time [has] come for a significant shift that place[s] more emphasis and focus on ecological restoration,¡¨ Moore said in the memo. He quotes the Society of Ecological Restoration definition of ecological restoration as an ¡§intentional activity that initiates or accelerates the recovery of an ecosystem with respect to its health, integrity, and sustainability.¡¨ The memo was accompanied by a paper, Leadership Intent for Ecological Restoration. By stepping up the pace and scope of ecological restoration, the agency expects to improve ecosystem services and economic benefits. It cites the ¡§on-going need for revitalization of rural economies in California, Hawaii and the Pacific Islands.¡¨ Work at the landscape level is emphasized.

Clearly, funding will be a major issue in achieving these goals and the region has announced that it is seeking new ways to fund its work.

The region¡¦s recognition of the need to move proactively and to increase the speed and scale of its active management is a step in the right direction and should inspire other parts of the agency to follow suit. /Ann Forest Burns

OESF Plan on Deck

The Olympic Experimental State Forest was first conceived in 1989 under Public Lands Commissioner, Brian Boyle. Amidst controversy over the northern spotted owl and old growth harvest, Boyle commissioned a broad interest group to study the area which contained significant stands of old growth timber on DNR managed trust lands. The ensuing report, Commission on Old Growth Alternatives for Washington¡¦s Forest Trust Lands, recommended several things, including:

* Meet the Trust responsibility in all Commissioner recommendations * Create the Olympic Experimental State Forest * Create the Olympic Natural Resource Center * Create a separate sustained yield unit * Defer harvest for 15 years (now 21 years and still going) on 15,000 acres of old growth timber.

DNR delivered on several of the above findings but has not put a land use plan in place. Dr. Peter Goldmark, Commissioner of Public Lands, has finally made it a clear priority to finish the plan. Public meetings and hearings have been set up to provide input on the management of this important Experimental State Forest. Listed below are the dates and locations. It is important that our industry is heard at these meetings.

Public Meetings: get your questions answered

June 16
6:30 – 8:30 pm
Port Angeles Senior Center 328 E. 7th,
Port Angeles

June 17
6:30 – 8:30 pm
DNR Region Office 411 Tillicum Lane,

This is an important issue that has been under development for over twenty years. Ensure your voice is heard. /Bob Dick

DNR’s South Puget Plan Adopted

DNR’s South Puget Plan was adopted by the Board of Natural Resources at its May meeting. The plan is the first to be developed under the Board¡¦s approved policies, which guide revenue production and environmental protection. Annual harvests will increase 13 million board feet as a result. /Bob Dick

Bob Dick Honored

Bob Dick, AFRC’s Washington Manager was recently honored by the Olympic Logging Conference (OLC) at its 2010 Annual Meeting in Victoria, B.C. Bob received the Milt Philbrook Award, named for a long-time Pope and Talbot forester who was active in the OLC for many years. The award is given only occasionally to recognize someone who has made significant professional contributions to the OLC and the forest products industry. The trophy is, appropriately, a silver hardhat. The OLC which started in 1945, brings together people who are involved in the forest products industry in western Washington. AFRC congratulates Bob, who will retire on June 30. /Tom Partin

Brian Tenbusch Joins AFRC

We are very pleased to announce that on May 3, Brian Tenbusch joined the AFRC staff as our Western Oregon Field Forester. Brian brings to AFRC seven years of experience including; Forest Engineer on Weyerhaeuser¡¦s Longview Timberlands, and Field Forester for Swanson Group and Stimson Lumber Company. Brian also has hands on experience as a forwarder operator for Melcher Logging in Sweet Home.

Brian graduated from Oregon State University with a degree in Forest Engineering which will serve him well as he represents the industry¡¦s issues and needs on federal forest projects in Western Oregon. I hope you will join me in welcoming Brian to AFRC. He will be located in our Eugene office and can be reached at [email protected] / Tom Partin

Mt St Helens Turns Thirty

On May 18, the Gifford Pinchot National Forest will sponsor a Special Commemorative Event to memorialize the 30th anniversary of the eruption of Mt. St. Helens at Johnston Ridge Observatory. There will be a commemorative program and buffet lunch. Please RSVP to [email protected]. /Bob Dick

OFRI Federal Forestlands Report

The Oregon Forest Resources Institute (OFRI) has issued a new report, Federal Forestlands in Oregon. Designed to provide general audiences with an appreciation of the complexity of federal forest policy and the importance of Oregon¡¦s federal forestlands, the report brings together a variety of viewpoints. It discusses the history and current management of both Forest Service and BLM lands and concludes that there is a ¡§growing consensus that doing nothing is not an option.¡¨

The report and hard copies are available on OFRI¡¦s website: /Ann Forest Burns

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