PRC's 2002-2004 ESA case
When PRC recognized that Oregon's forest practices committee was unwilling to work towards salmon recovery, we and four co-plaintiffs, represented by Earthjustice, filed a lawsuit under the ESA against Oregon's State Forester for authorizing forest practices that harm listed coho salmon. The basis of our lawsuit was the violation of the federal prohibition on the "take" of threatened coho salmon under the ESA. The case focused on stopping the approval of three categories of logging practices that harm coho and are routinely authorized on the industrial forestlands of Oregon's North Coast.
The state of Oregon and members of the timber industry moved to dismiss our case, PRC v. Brown, on five separate grounds and a hearing was held in October 2002. On December 23rd, federal district court Judge Anna Brown issued an opinion soundly rejecting each and every argument presented by the state and industry lawyers. This decision validated our theory of the case that the State Forester can be held liable for violating the ESA based on his approval of logging that causes harm to coho salmon.
Our case set important precedent as to how state and private lands are required to follow the letter and intent of the ESA. Meanwhile, Judge Brown heard our motion for a preliminary injunction to stop clearcut logging on landslide prone slopes. The case addressed the kind of logging on high-risk slopes that the Department of Forestry has considered an unacceptable threat to homes and roads ever since landslides from clearcuts killed five people in November 1996. Our case demonstrated a strong consensus in the scientific research that clearcuts dramatically increase the occurrence of landslides compared to unlogged areas. Sediment and debris from those landslides kill wild coho salmon and their eggs in the streams. Though the judge was unable to justify the injunctive relief, the hearing provided us with some clear strategic direction in preparation for the trial. In addition, Judge Brown confirmed our theory that the State Forester can be held liable for taking endangered salmon by permitting these timber projects.
In January 2003, the Board of Forestry attempted to avoid their liability under the ESA, and therefore our lawsuit, by issuing a temporary rule eliminating the requirement of State Forester "approval" for damaging logging. We worked closely with Earthjustice to prevent the Department of Forestry from sidestepping of the ESA (Download our letter to the Board).
In a final effort to avoid ESA liability, the Oregon State Legislature joined the Board in proposing and adopting legislation to repeal all types of state forester approvals for forestry operations. We sent explicit comments to the House, as well as Governor Kulongoski and State Forester Woo, pushing for a NO vote on both bills.
We and our co-plaintiffs also issued a notice of our intent to add members of the Board of Forestry to our lawsuit, as they too can be held liable under the ESA. With our notice, we offered to work with the Board to improve Oregon state practices if they wish to avoid litigation. However, the Board did not accept our offer, and we officially amended our complaint to include the seven Board of Forestry members to the list of defendants. The amended complaint also expanded the geographic scope of the lawsuit to include the entire range of Oregon coastal coho salmon, not just the North Coast population.
Unfortunately our case came to a close when the coho were delisted in 2004 due to NMFS's hatchery policy at the time. The court never ruled on the merits of our case. The coho have since been relisted, but we have not revived our case at this time. Click here to read more about the coho.
Lean more about the background for our take case, including a chronology of events significant in the effort to improve Oregon's policies to protect streams and native fish from the effects of poor logging practices.
Read the Take Case Frequently Asked Questions, or follow the links below to read other legal documents from the case.
Related News Articles
Court hears motions to dismiss ESA case against State Forester: Request to halt clearcutting on high risk slopes on hold pending ruling, November 15, 2002, Oregon Insider
Ruling May Clear Way for Tighter Logging Rules On Private Lands, January 2, 2003, The News-Review.
Logging Ruling Lends Weight to State's Strategy, January 2, 2003, The Columbian
