Judge Defers Ruling on Whether Forests and Fish Deal is Adequate to Protect Salmon

Seattle, WA. Today Judge Rothstein delayed deciding whether the Forest and Fish deal passes muster under the Endangered Species Act. While the federal government gave the state a preliminary okay in September 2000 (after months of hearings and intensive agency review), it has not given the deal the final okay. By accepting the government's arguments, the Court agreed that timber companies remain subject to prosecution for violating the ESA even if they comply with Washington's new forestry rules (the so-called Forests and Fish Report).

Conservation and fishing groups took legal action in September 2000 challenging the National Marine Fisheries Service (NMFS) decision because they felt the activities approved for exemption would cause the continued harm of fish listed under the Endangered Species Act. We oppose the Forests and Fish deal because the science shows that it will lead to continued harm of listed salmon. "That kind of a deal should not be exempted from the very law the public expects to protect threatened species," said Joan Crooks, Executive Director of the Washington Environmental Council.

Their opinion was given further justification in early 2001 when a report was issued by scientists convened by the Society for Ecological Restoration Northwest, which stated that the Forests and Fish deal was not based on sound science and peer-review.

The lawsuit challenged a regulation adopted by the NMFS that included an exemption from ESA liability for activities that comply with the Forests and Fish Report. However, the regulation provided for a federal review of the final state forestry regulations adopted to implement the Report. Because the state has not yet submitted the formal paperwork, NMFS has not given its final approval. The judge ruled that she could not determine whether the exemption was legal because it had not yet been put into place.

The question before the court was, "Does the Forests and Fish deal protect salmon as required under the Endangered Species Act," said Patti Goldman, Managing Attorney with Earthjustice Legal Defense. Unfortunately, because of the state's delay the court says we will have to wait for that answer.

In the meantime, timber companies in Washington have no protection from liability under the ESA. They could be sued and held liable for logging activities that harm protected salmon.

Coincidentally, environmental and fishing groups filed an ESA lawsuit today against the Oregon State Forester to stop logging practices that harm protected salmon, such as logging on landslide-prone slopes and along streams. Such litigation could be triggered in Washington by the state's delay in obtaining an ESA exemption for the Forests and Fish Report.

The Washington Environmental Council, Pacific Rivers Council, Pacific Coast Federation of Fishermen's Associations, Institute for Fisheries Resources, Northwest Ecosystem Alliance, Federation of Fly Fishers, and The Mountaineers filed suit against the National Marine Fisheries Service in September 2000, alleging that the agency's 4 (d) rule violated the Endangered Species Act for several reasons including:

* The Forests and Fish agreement does not provide adequate salmon protection as demonstrated by science.

* NMFS did not conduct environmental review as required by law.