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Forest Conference-#318 Sales
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Forest Conference-#318 Sales
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Kathleen McGinty's Files
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FOIA Number: 2012-0769-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Council on Environmental Quality
Series/Staff Member:
Kathleen (Katie) McGinty
Subseries:
OA/ID Number:
4301
FolderID:
Folder Title:
Forest Conference-#318 Sales
Stack:
Row:
Section:
Shelf:
Position:
S
61
7
2
2
06-06-94 11:25AM
P02/03
U.S. Department of Justice
LJS: PDC: EMAthas
90-1-4-3806
(202) 272-8236
Washington. D.C. 20530
more
June 6, 1994
* ATTORNEY-CLIENT PRIVILEGED *
MEMORANDUM
To: will Stelle
office on Environmental Policy
The White House
Patty J. Beneke
Accociate Solicitor
hackymend
Division of Energy & Resources
anythin fould
From: Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: Spotted Owls: BLM's Suspension of 70 MMBF
This is yet another update on these sales. We will
need a final decision on whether to lift the suspensions as soon
as possible.
There are three new things to report. First, attorneys
for the environmental groups did receive the Notices of
Satisfaction of Judgment in the PAS V. Babbitt case. They
arrived with copies of the ROD, SEIS, and attachments, and the
attorneys mistakenly thought they were merely duplicate copies of
the publications.
Second, Mark Rutzick, on behalf of the timber
companies, has begun to make inquiries about the 70 MMBF. We
learned Thursday that on June 1, Mark Rutzick called Roger
Nesbitt, Regional Office of the Solicitor, to ask about the 70
MMBF. Rutzick stated that he represents some of the timber
companies that possess contracts to harvest the previously
injoined timber sales. He asked when t. contracts would be able
to be started. Nesbitt advised that suspension orders would have
to lifted by the BLM, and admitted to not knowing when that would
occur. Nesbitt went on to say that BLM was aware of the 70 MMBF
at high levels and had not forgotten about those contracts.
Nesbitt said hc wac looking for this matter to be cleared up
pretty quickly, but suggested that Rutzick contact the BLM
directly.
Third, Judge Dwyer has still not ruled on lifting the
injunction on the Forest Service. Apparently, ruling will not
issue until next week. Based on the questions asked by the Court
at the May 31 hearing, there is a good likelihood that the
injunction will stay in place during the briefing on the merits
of the new claims. Although that does not affect BLM lands, it
would raise some questions as to whether or not we should be
moving forward with BLM harvests.
Please advise on how you would like to proceed.
flor
- 2 -
06-06-94 11:25AM
P02/03
U.S. Department of Justice
2
LJS: PDC: EMAthas
90-1-4-3806
(202) 272-8236
Washington, D.C. 20530
June 6, 1994
* ATTORNEY-CLIENT PRIVILEGED *
MEMORANDUM
To: will Stelle
office on Environmental Policy
The White House
Patty J. Beneke
Ascociate Solicitor
Division of Energy & Resources
From: Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: Spotted Owls: BLM's Suspension of 70 MMBF
This is yet another update on these sales. We will
need a final decision on whether to lift the suspensions as soon
as possible.
There are three new things to report. First, attorneys
for the environmental groups did receive the Notices of
Satisfaction of Judgment in the PAS V. Babbitt case. They
arrived with copies of the ROD, SEIS, and attachments, and the
attorneys mistakenly thought they were merely duplicate copies of
the publications.
Second, Mark Rutzick, on behalf of the timber
companies, has begun to make inquiries about the 70 MMBF. We
learned Thursday that on June 1, Mark Rutzick called Roger
Nesbitt, Regional Office of the Solicitor, to ask about the 70
MMBF. Rutzick stated that he represents some of the timber
companies that possess contracts to harvest the previously
enjoined timber sales. He asked when the contracts would be able
Lo be started. Nesbitt advised that suspension orders would have
to lifted by the BLM, and admitted to not knowing when that would
occur. Nesbitt went on to say that BLM was aware of the 70 MMBF
at high levels and had not forgotten about those contracts.
Nesbitt said hc was looking for this matter to be cleared up
06-06-94 11 : 26AM
P03/03
pretty quickly, but suggested that Rutzick contact the BLM
directly.
Third, Judge Dwyer has still not ruled on lifting the
injunction on the Forest Service. Apparently, ruling will not
issue until next week. Based on the questions asked by the Court
at the May 31 hearing, there is a good likelihood that the
injunction will stay in place during the briefing on the merits
of the new claims. Although that does not affect BLM lands, it
would raise some questions as to whether or not we should be
moving forward with BLM harvests.
Please advise on how you would like to proceed.
- 2 -
LJS: PDC: EMAthas
90-1-4-3806
(202) 272-8236
May 19, 1994
3/8
* ATTORNEY-CLIENT PRIVILEGED *
MEMORANDUM
SOZU
To: Will Stelle
Office on Environmental Policy
The White House
Patty J. Beneke
Associate Solicitor
Division of Energy & Resources
From: Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: Spotted Owls: BLM Proposed Harvesting of Sold Sales
This memorandum sets forth the background to the
enjoined, sold BLM sales, totalling 70 MMBF. It further outlines
options for addressing these sales.
Background
The PAS Injunction. Auction and award of BLM sales
were enjoined by Judge Frye in Portland Audubon Society V.
Babbitt. The court enjoined all sales "not awarded prior to
1992", and the injunction remains in place "until the BLM submits
to this court a Supplemental Environmental Impact Statement or
its functional equivalent which examines new information on the
effects of logging on the northern spotted owl subspecies as
required by NEPA." (Judgment, Jan. 5, 1994). Included in that
injunction are the BLM 70 MMBF of sold and awarded sales, which
represent the only sold and awarded sales enjoined by any court.
(These sales were awarded during a brief interlude when the issue
of jurisdiction was before the Ninth Circuit, which ultimately
held that the district court had jurisdiction over the matter.)
These decision notices to go forward with these sales were based
on the old SEIS, which the court found inadequate for failing to
consider new information.
The ROD and FSEIS. The ROD specifically states that
all "sales awarded prior to the effective date of this Record of
Decision are not altered by this Record of Decision." (ROD, at
13). That is based on the assumption that, at the time of award,
"these timber sales were consistent with the planning documents
then in effect, complied with the Endangered Species Act and
other laws, and the environmental effects of these sales were
considered as part of the baseline for the biological opinion for
the Final SEIS." (ROD, at 13). Sales in key watersheds were
also subjected to a screening process. (ROD, at 13-14). These
sales, however, were not specifically considered by the SEIS
team. The aquatic group did assume, for purposes of their
analyses, that all sold sales were to be considered as harvested
stumps. The terrestrial group, however, made no assumptions on
these sales.
Lifting the PAS Injunction. On May 20, 1994, the
Record of Decision becomes effective. Tom Lee, the Assistant
United States Attorney who has handled the Portland Audubon
Society V. Babbitt matter for the BLM, intends to file the FSEIS
and Notice of Satisfaction of Final Judgment on that date. That
filing should satisfy the injunction in that case before Judge
Frye and conclude the Portland case.
Current Status of 70 MMBF. The sales are located in
matrix lands, key watersheds, adaptive management areas and late-
successional reserves. These sales were formally suspended by
BLM when the injunction was entered. The suspension remains in
place today, but BLM feels it must lift the suspension shortly
TAP
after the injunction is lifted in Portland Audubon. Under the
KOT
filing schedule set forth by Tom Lee, the filing to lift the
injunction would occur on May 20th.
Litigation Concerns. The difficulty arises because
these sales went forward under the old EIS, found to be
inadequate by Judge Frye. No new reconfiguration or new
decision notice is required for sold sales under the current ROD.
Yet, these sales, which may be the first of all currently
enjoined sales under the new ROD to be contested, may represent
the least defensible of any such sale. Thus, these 70 MMBF may
engender much publicity. In addition, such a challenge might be
used to try to draw the Court into litigating the merits of the
ROD under an expedited preliminary injunction schedule.
The question of how we could defend these sales remains
open. Unlike the section 318 sales, Congress has not found these
sales to be in compliance with NEPA. Instead, if challenged
under NEPA, we would have to argue that these sales, based on the
old SEIS, are lawful, because the ROD permits these sales to go
forward without reconfiguration. The administrative record,
however provides little support for this position.
BLM Concerns. BLM remains concerned, however, that it
must lift the suspension once the injunction is lifted. Without
the injunction, the BLM does not feel legally justified in
continuing the suspension. In addition, the BLM would like to
proceed with some timber harvesting as soon as possible.
Therefore, to withhold these sales could create political and
monetary pressures.
Options
Option 1. Proceed as planned. AUSA Tom Lee files to
lift the injunction, BLM does nothing further on these sales, and
the suspension is immediately lifted.
Advantages: Easiest option that permits some timber
harvest.
Disadvantages: High litigation risks, with potential
risks on the entire defense of the ROD.
Option 2. Permit a one-week hiatus to assess
litigation claims. AUSA Tom Lee files to lift the injunction,
BLM does nothing further on these sales, and the suspension
remains in place for at least one week to permit BLM and DOJ to
evaluate the nature of the new claims. These claims may indicate
whether or not plaintiffs will oppose these sales going forward.
Advantages: Provides a window of opportunity to review
matter.
Disadvantages: Puts off tough decision for another
day. The claims may be so broad that we do not ascertain whether
opposition will arise.
Option 3. Prepare some NEPA documentation on these
sales. AUSA Tom Lee files to lift the injunction, BLM begins
preparation of NEPA documentation, and suspension remains in
place until such documentation is completed. This documentation
can range from sale-by-sale environmental assessments to an all-
inclusive memo to file on the entire sale batch.
Advantages: Provides some NEPA defense if sales are
challenged.
Disadvantages: BLM is concerned that new decision
documents will invite court challenges.
Option 4. Avoid going forward with these sales. AUSA
Tom Lee files to lift the injunction, and BLM maintains
suspension.
Advantages: This would insulate the ROD from immediate
challenge on these sales and avoid litigation risk to the Plan.
Disadvantages: This would invite an industry challenge
and the need to compensate purchasers for the lost volume.
Conclusion
We recommend adoption of Option 2, so that we can make this
crucial decision with the benefit of additional information.
MAY-16-94 MON 15:08
HEADWATERS-ASHLAND
FAX NO. 5034827282
P.01
Headwaters
To protect and restore forest ecosystems
TO:
KEY DECISION-MAKERS ON THE R.O.D.
FOR THE CLINTON FOREST PLAN
318
D.C.
Jim Pipkin and David Cottingham
Jim Lyons and Jack Thomas
Will Stelle
Portland Tom Tuchmann
SALLS
FROM:
JULIE NORMAN, HEADWATERS
DATE:
MONDAY, MAY 16, 1994
RE:
UPDATE ON NIXING THE SUGARLOAF TIMBER SALE
(A) Thank you again for visiting with me during my trip to
Washington D.C. last month. You should have recieved by now a
followup letter (April 25th) and fax (May 6th), recommending that
you initiate the delicate administrative process of dropping the
(unawarded) Sugarloaf Timber Sale from the Siskiyou National
Forest's timber sale program, since the entire sale area lies
inside a very important "Late-Successional Reserve."
(B) Last week the Sugarloaf Sale was cleared by the USFWS in the
marbled murrelet consultation process. This triggered media
activity which in turn triggered loud citizen outcry (see clip).
(C) Following the media flurry, Siskiyou Forest Supervisor Mike
Lunn called a member of the local conservation community to say
that he was not wed to the sale being awarded but could not do
anything independently, and that he would be conferring with his
superiors. He estimated "three weeks" until the sale award to
Boise Cascade.
(D) I hear that the Administration wants to stand behind
procedural mandates in Section 318 and claim that Sec. 318
requires the award of the unawarded Sec. 318 sales.
If so, the Administration should also take into account that the
Sugarloaf Sale was the only Siskiyou 318 Sale that did not
receive approval from the Siskiyou's Sec. 318 Advisory Board in
1990, because the area was so controversial. In our opinion, if
proper procedure had been followed by the Siskiyou NF, the
Sugarloaf Sale never should have been offered as a Section 318
sale.
This is the perfect excuse to nix it!
PLEASE DO !!!
(E) It would be wonderful if our combined good faith efforts
resulted in the Sugarloaf Sale being dropped before the R.O.D.
goes "effective." Thanks again for your help.
Julie Fax (503) 482-7282
Post Office Box 729
Ashland. Oregon 97520
Telephone (503) 482-4459
BUT
Sugarloaf sale gets final nod
IT'S
MAY-16-94 MON 15:09
Environmental groups vow opposition will continue
NOT
murrelet's habitat. It was among a dozen
"But I've been asking the administration to
By PAUL FATTIG
released this week, including the Briggs
take a second look."
AWARDED
of the Mail Tribune
Secret sale in the Galice Ranger District. The
In addition to being a roadless area, the
WILLIAMS- The U.S. Fish and Wildlife
Briggs Secret sale, including 4.8 million
site is in a key watershed with old-growth
Service has given the nod to the Siskiyou
board feet of timber,
timber, she said.
YET!
National Forest to award the controversial
has not been contro-
Sugarloaf timber sale,
Sugarloaf timber sale
"We haven't given up
The 739-acΓe sale containing some 10.5
versial.
yet," she said.
million board Feet of timber on the western
But the trees in the
Little
Nor have other
slopes of Grayback Mountain a half dozen
Sugarloaf sale, which
Sale area
Sugarloaf
environmentalists, said
Big
HEADWATERS-ASHLAND
miles south of Williams does not conflict with
drew controversy
Peak
Steve Marsden,
the survival of the threatened marbled
when it was first con-
Sugarloaf
director of the Siskiyou
Oregon
sidered a decade ago,
Peak
murrelet, the agency concluded.
Caves
Regional Education
The decision announced Thursday opens
have been defended
National
Project in Cave
by environmentalists,
Junction.
the door for the Forest Service to award the
Monument
contract to Boise Cascade Corp., the high
who have in the past
"What we are dealing
bidder when the sale was offered three years
promised to mount
46
with here is a morally
ago.
protests to defend it.
impaired, criminal
Meanwhile, local environmental groups
Spikes were found
organization," he said
VOW to continue their opposition to the sale
in some trees at the
Grayback
of the Forest Service.
site in the fall of 1992,
Mountain
situated in the Kangaroo Roadless Area,
"They lied. They want
noting the unit is an old-growth forest
but local environmen-
to get the saws out and
Mount Elijah
reserve under the Clinton forest plan.
tal groups stress they
cut."
"But you won't see immediate activity or
are opposed to spik-
Mail Tribune
When that happens,
awarding of the contract," said forest
ing trees to
there will likely be
spokeswoman Sue Olson. "We still have some
discourage logging.
protests, he said.
more reviews to do, and some checking to do
Although efforts to halt the sale through
"There is tremendous community concern
FAX NO. 5034827282
on the ground."
the courts have been exhausted,
about this timber sale," he said. "There will
There is one spotted owl nesting site
environmentalists will continue to lobby the
be an outraged community."
within the sale which will be protected by a
administration in Washington. D.C. to
70-acre island within the unit, she said.
preserve the area, said Julie' Norman,
Although the agency hopes to avoid
If awarded soon as expected, the firm
president of the Ashland-based Headwaters
further controversy over the sale, it will be
would have until March 1998 to log the sale.
group.
vigilant for potential problems, forest
The plan calls for the timber to be selectively
She noted that a memo released by the
spokeswoman Olson said.
cut and removed with helicopters. A half
administration last December directed the
mile of logging road will be constructed.
Forest Service and the Bureau of Land
"We're concerned," she said. "We know
The sale was one of 88 reviewed by the
Management not to release the sales.
there are still some very strong feelings
Fish and Wildlife Service for impact on the
"We have no legal recourse now," she said.
about it."
P.02 02
MEDFORD MAiL TRiBUNE - FRI. MAY 13, '94
05-18-94 01:06PM DOJ LAND GEN LIT
P01/03
U.S. DEPARTMENT OF JUSTICE
ENVIRONMENT AND NATURAL RESOURCES DIVISION
GENERAL LITIGATION SECTION
601 Pennsylvania Avenue, N.W.
Washington, D.C. 20004
Fax Number (202) 272-6815, 5775
Confirmation Number (202) 272-8056
318
TO:
will Stelle
31221
Office on Environmental Policy
The White House
Patty J. Beneke
Associate Solicitor
Division of Energy and Resources
DATE:
May 18, 1994
FAX NUMBER:
202 456-2710
202 219-1792
PHONE NUMBER: 202 456-6224
202 208-5757
NUMBER OF PAGES TO BE TRANSMITTED (including cover) : 3
FROM:
Lois Schiffer, Peter Coppelman
PHONE NUMBER: 202 514-2701
MESSAGE:
Attached is a memo addressing certain BLM sales.
Lois would appreciate a conference call on this
matter soon.
05-18-94 01:06PM DOJ LAND GEN LIT
P02/03
U.S. Department of Justice
LJS: PDC: EMAthas
90-1-1-3806
(202) 272-8236
Washington, D.C. 20530
May 18, 1994
* ATTORNEY-CLIENT PRIVILEGED *
MEMORANDUM
To: Will Stelle
office on Environmental Policy
The White House
Patty J. Beneke
Associate Solicitor
Division of Energy & Resources
From: Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: spotted owls: BLM Proposed Timber Sales
on May 20, 1994, the Record of Decision becomes
effective. Tom Lee, the Assistant United States Attorney who has
handled the Portland Audubon Society V. Babbitt matter for the
BLM, intends to file the FSEIS and Notice of Satisfaction of
Final Judgment on that date. That filing should satisfy the
injunction in that case before Judge Frye and conclude the
Portland case. It will also give BLM the opportunity to go
forward with its sales. of imminent concern are the 70 MMBF of
sold, awarded sales under the injunction that BLM maintains can
go forward immediately upon the court filing.
On April 28, 1994, Peter Coppelman, Wells Burgess and
Ellen Athas spoke with representatives of the Solicitor's Office,
BLM and OGC to discuss the BLM sales program. we discussed the
need for a unified strategy between the Forest Service and BLM.
Specifically, the Forest Service could commit to providing 30
days' notice to plaintiffs before the auction or award of any
sale in suitable habitat for the northern spotted owl. The BLM
agreed to review whether they could agree to that timetable.
However, as to the 70 MMBF of sold and awarded sales, BLM would
like to proceed with those sales as soon as possible. To date,
we have not received a commitment on the 30 days' notice issue
from BLM, but have received today more information on the 70
MMBF, as requested during our phone conference.
05-18-94 01 07PM DOJ LAND GEN LIT
P03/03
The 70 MMBF were sold and awarded prior to being
enjoined by Judge Frye. They appear to represent the only
enjoined sales in such a category, except for the section 318
sales mandated by Congress. The sales are located in matrix
lands, key watersheds, adaptive management areas and late-
successional reserves. These sales were formally suspended by
BLM when the injunction was entered. The suspension remains in
place today, but BLM feels it must lift the suspension as soon as
the injunction is lifted in Portland Audubon. Under the filing
schedule set forth by Tom Lee, that would occur on May 20th.
The difficulty arises because these sales went forward
under the old EIS, found to be inadequate by Judge Frye. No new
reconfiguration or new decision notice is required for sold sales
under the current ROD. Yet, these sales, which may be the first
of all currently enjoined sales under the new ROD to be
contested, may represent the least defensible of any such sale.
That is so, because, unlike all other new sales, BLM is not
planning to prepare any new sale documents. In fact, certain
fringe environmental groups may file a preliminary injunction to
stop these initial sales. Thus, these 70 MMBF may engender much
publicity. In addition, such a challenge might be used to try to
draw the Court into litigating the merits of the ROD under an
expedited preliminary injunction schedule.
The question of how we could defend these sales remains
open. Unlike the section 318 sales, Congress has not found these
sales to be in compliance with NEPA. Instead, if challenged
under NEPA, we would have to argue that these sales, based on the
old EIS, are lawful, because the ROD permits these sales to go
forward without reconfiguration. The Record of Decision, based
upon the new SEIS, did not require any changes to sold and
awarded sales.
BLM remains concerned, however, that it must lift the
suspension once the injunction is lifted. Without the
injunction, the BLM does not feel legally justified in continuing
the suspension. In addition, the BLM would like to proceed with
some timber harvesting as soon as possible. Therefore, to
withhold these sales could create political and monetary
pressures.
This matter needs to be resolved prior to the filing on
behalf of BLM on May 20. Please advise on how you would like to
proceed.
United States Office of Forestry and Economic Development
A ))
333 S.W. First Avenue, P.O. Box 3623, Portland, Oregon 97208-3623
COMMIT or
May 10, 1994
E STATES of
UNITED PROTECTION STATES. 1
Memorandum
DEPARTMENT * or \
To:
Will Stelle, George Frampton, Mollie Beattie, Jim Lyons, Jack Ward
inc
Thomas, Mark Gaede, Gray Reynolds, Jim Pipkin, Mike Spear, Don
Knowles
LIMITED
From:
Tom Tuchmann, Director
Subject:
Marbled Murrelets
of LABLE
URGENT
UNITED STATES (1) MEMBER
Attached is an outreach plan and a press release on marbled murrelets and the 318 sales.
SMALL
STATEMENT
INESS
We would like to get this under way at 1:00 pm EST Wednesday, May 11. If you have
concerns, please call or fax Lauri Hennessey of this office before that time. At that
time, we will have the biological opinion delivered to the U.S.D.A. Forest Service and
-IDMINISTRY
1953
YOU
the attached public outreach will get underway.
Please note that we have not addressed the buyback issue. We expect that there will be
questions on the buyback and we suggest that our answer be succinctly to the point and
as follows: We need to contact the timber purchasers to notify them of the jeopardy on
their timber sales. That will allow the purchaser to either request a buyback or possibly
a petition to the Endangered Species Committee (the God Squad). We will begin these
discussions immediately. Our estimate is that if all 43 sales were bought back given
current lumber prices, the buyback could cost $50 - 70 million.
Telephone 503-326-6248
Facsimile 503-326-6254
2 PAGE
FILE No. 445 05/10 '94 15:22 ID:FORESTRY & ECONOMIC DVLP 503 326 6254
TO: Distribution
FROM: R-6 Forest Service and US Fish and Wildlife Service
The jeopardy biological opinion on marbled murrelets for a group of Section 318
timber sales is due to be received by the Forest Service from the Fish and
Wildlife Service on Wednesday, May 11. Following are plans for handling the
biological opinion.
On Wednesday (Day 1) after the biological opinion is received, the Forest
Service will get the opinion (by overnight mail) to the six national forests
where the timber sales are located.
On Thursday (Day 2) the national forests will notify the purchasers of the
timber sales. After the purchasers are notified, local congressional offices
will be notified by the Forest Supervisors/Public Affairs Officers of the
national forests involved.
After purchasers and congressional offices have been notified, a press release
(draft press release attached) would be faxed. The press release would not be
sent to everyone on the mailing list; it would only be sent to those areas
where the six national forests are located.
Industry and environmental interest groups would then be notified by the
Director and Deputy Director of the Forest Service Natural Resources Staff
Group.
Key messages to be conveyed are as follows: the historical perspective is
important; these timber sales are not part of the 1.1 billion board feet in the
President's Forest Plan; issues are being resolved--we're moving forward;
these sales are pre-President's Forest Plan.
If you have any concerns about these plans, please let us know by 8 a.m.
Wednesday morning.
ε PAGE
FILE No. 445 05/10 '94 15:23 ID:FORESTRY & ECONOMIC DVLP 503 326 6254
U.S. Fish & Wildlife Service - Region 1
NEWS
911 N.E. 11th Avenue
Portland, Oregon 97232-4181
U.S. Forest Service - Region 6
P.O. Box 3623
316
RELEASE
Portland, Oregon 97208-3623
SACES
94-
Refer: Susan Saul, Fish and Wildlife Service, Portland, Oregon, 503/231-6121
Sandy Berger, Forest Service, Portland, Oregon, 503/326-4084
DRAFT
May 12, 1994
BIOLOGICAL OPINION ON MURRELET FINDS JEOPARDY
ON 76 OF 88 TIMBER SALES FROM 1990
The U.S. Fish and Wildlife Service today delivered a biological opinion to the U.S. Forest
Service finding that 76 of 88 timber sales in six national forests in Oregon and Washington pose
jeopardy to the marbled murrelet, a seabird that nests in coastal old growth forest and listed in
1992 as a threatened species.
The 88 sales are the last batch of unreviewed timber sales that predate the development
of President Clinton's Forest Plan for management of Federal forests in the Pacific Northwest.
Of the 76 sales found to jeopardize the murrelet, 43 are currently occupied by the species
and 33 are in suitable murrelet habitat and require additional surveys before alternatives under
the biological opinion can be developed. An additional 12 sales have been reviewed and judged
not to pose jeopardy to the murrelet, in the same biological opinion.
The timber sales are part of 2 larger group of 1,258 Forest Service sales and 21 Bureau
of Land Management sales totalling 7.86 billion board feet that were released from court
injunction and sold in 1990 under section 318 of that year's Interior Department appropriations
legislation. These 88 sold and awarded sales, some of which had been previously reviewed for
their effect on the northern sported owl, required reconsultation when the murrelet was listed by
the Federal Government.
Harvest of these areas would cause jeopardy to the species due to direct killing of
murrelets, displacement of nesting birds, fragmentation of nesting habitat leading to increased
predation, and an increased isolation of breeding groups of murrelets.
Twenty-eight of the sales also fall into late successional reserve areas that are integral
units of the President's Forest Plan, where timber harvest is proposed to be reduced.
(over)
t PAGE
FILE No. 445 05/10 '94 15:23 ID:FORESTRY & ECONOMIC DVLP 503 326 6254
94- - May 12, 1994
DRAFT
-2-
The 76 jeopardy sales contain an estimated 290 million board feet of timber; the 12 non-
jeopardy sales contain an estimated 46 million board feet. The sales are located in the Siskiyou Mt
and Siuslaw national forests in Oregon and in the Olympic, Wenstchee, Gifford Pinchot, and
Baker-Snoqualmie national forests in Washington.
Copies of the final biological opinion are available from the U.S. Forest Service in
Portland at 503/326-2971.
X
X
X
PAGE 5
FILE No. 445 05/10 '94 15:23 ID:FORESTRY & ECONOMIC DVLP 503 326 6254
THE WHITE HOUSE
318
WASHINGTON
MEMORANDUM TO:
K. McGinty
T.J. Glauthier
Ruth Saunders
George Frampton
Mollie Beattie
Jim Lyons
Mark Gaede
Jack Thomas
FR;
Will Stelle
RE:
Timber Sales Cancellations, Murrellets and
Money
DATE:
3 May 1994 AWY
The purpose of this memorandum is to flag for your attention
and final disposition the question of the position of the
Administration on making funding available to buy back the sale
cancellations required by a pending biological opinion on
murrellets. Are we going to require a supplemental, and if so, are
we prepared to ask for it?
The U.S. Fish and Wildlife Service is poised to issue a
biological opinion on a number of 318 sales (I believe roughly 43)
that will require cancellation and buy-backs totally between $80
million and $100 million.
I understand that the source of funding may be general FS
appropriations and that, if the cancellations occur, a supplemental
will be required.
The issue has hit the press in the northwest, and a timely
action on the biological opinion is warranted. The questions of
what is going on will increase in intensity quickly.
Please advise.
CC. T. Tuchmann
D. Knowles
Headwaters
Will Stelle, OEP
OEOB #360
To protect and restore forest ecosystems
Washington D.C. 20501
re: FOREST PLAN R.O.D. / UNAWARDED SALES
318
Monday, April 25, 1994
Dear Will,
Thank you again for meeting with me last week to discuss the
fate of the unawarded timber sales that fall inside Late-
Successional Reserves in the Clinton Forest Plan. I have since
found out from Don Knowles that the unawarded sales are a very
small part of the proposed sales inside Reserves.
Awarded sales in Reserves
24,364 ac.
Unawarded sales in Reserves
1,226 ac.
Naturally we would prefer if all these unawarded sales were
dropped to protect the integrity of the Reserve system. In case
this is not politically feasible, I hope you will consider the
following information on the unawarded Sugarloaf Timber Sale
(Siskiyou NF) to help you analyze them on a sale-by-sale basis.
1. Attached is a photo and sale specifications for the Sugarloaf
Sale. It lies in (a) a high-elevation Roadless Area, (b) a Key
Watershed (Upper Illinois), (c) Critical Habitat for the spotted
owl, and (d) a crucial connecting corridor linking the Illinois
and Klamath River basins.
2. The Siskiyou NF Supervisor, Mike Lunn, announced last Friday
that he intends to award the Sugarloaf Sale to Boise Cascade
(high bidder, but not dependent on federal timber) after marbled
murrelet consultations are completed. Lunn was not responsive to
the high likelihood of citizen outcry and even civil disobedience
if the sale should go forward.
3. Contrary to my April 20th memo, the Sugarloaf Sale was
modified minimally to increase stream buffers in late 1993.
Dropping the Sugarloaf Timber Sale will really help
Headwaters' members get off to a fresh start and work positively
with the agencies in implementing the new Clinton Forest Plan. I
appreciate your looking into this issue.
Best regards,
Julie Nonman
Julie Norman
Post Office Box 729
Ashland, Oregon 97520
Telephone (503) 482-4459
Fax (503) 488-0284 482-7282
recycled paper
Protect Grayback Mounta'n:Stop the
Sugarloaf Timber Sale
PROPOSED
GRAYBACK MOUNTAIN 7,055'
UNITS = 00
SUGARLOAF MTN.
it
UNIT 3
UNIT
150
ac.)
AGNIM
UNIT 2
250 ac
RD. #4611
350 ac.
FAN
TO CAVES CAMP RD.
RD # 4611
The mountainside above the road in this photo has been protected as a Late-Successional Reserve by President Clinton's
Forest Plan except that an old timber sale that local residents have fought for ten years could go forward, according to the
recently issued Record of Decision. If the Forest Service sells the Sugarloaf Timber Sale, 10.5 million board feet will be
"selectively cut" and removed by helicopters from 749 acres of predominantly old-growth forest above 5,000 ft elevation.
The fragmentation of this Roadless Area and Key Watershed should not be allowed to damage the Reserve system.
-- Headwaters. 4/25/94
fom
To: Will Stelle, Jim Lyons, George Frampton, Mark Gaede, Jack
Ward Thomas, Mollie Beattie
From: Tom Tuchmann
Subject: Biological Opinion on 318 Sales
Issue:
Policy decisions are needed on those timber sales authorized
under Section 318 of the FY 1990 Interior and Related Agencies
Appropriations Act (P.L. 101-121), which are currently in
consultation with the F&WS.
Background:
The F&WS is prepared to issue a final opinion on the 318 sales
that have been in consultation for marbled murrelet. There was
no specific mention of the 318 sales in the Record of Decision,
although they are covered within Section 3a & b. We chose to
postpone the issuance of the B.O for these sales to keep the
action separate from the ROD. The B.O. will stand on its own.
The Biological Opinion will contain the following:
on
- A jeopardy opinion for all sales where surveys have been
all
completed and found occupied, with no reasonable and prudent
alternative;
thuslaw.
There are 43 sales in this category (all FS).
Total acres 4,091 with 3,100 in LSR.
Volume = 204.6 mmbf with 50 mmbf outside of LSRs and 151
mmbf within LSRs.
Estimated buy-out cost = $50 million.
- A jeopardy opinion for sales with incomplete or no
surveys, with the reasonable and prudent alternative of
completing surveys--both awarded and unawarded sales will
released if no occupancy is found after surveys have been
completed;
be 16- saveys. seman
There are 2 unawarded sales with MaMu issues.
(869 acres in LSR, 15mmbf)
16' no
There are 33 awarded sales with partial or no surveys.
(1600 acres with about 875 in LSR)
(83 mmbf with about 52 mmbf in LSR)
The jeopardy sales are primarily in LSR, 22 are on the
Siuslaw, along the Oregon coast, 2 are on the Siskiyou, 6
are on the Olympic and 2 are on the Mt. Baker-Snoqualmie.
- Non-jeopardy opinion for sales with surveys completed to
protocol and no occupancy was found.
There are 10 sales, 7 in LSR equalling 750 acres and 29.1
mmbf.
Policy Decisions:
1. Funding needed to complete surveys: Approximately $550,000
for FY 94 and $450,000 for FY 95. This includes remaining 318
sales and a few proposed sales for FY94 and 95. The required mix
of funds between timber support NFTE ET113 and Timber Sale
Administration for FY 94 is 60% Sale Admin and 40% ET113. For FY
95, it's reversed. It's anticipated that all funds need to be
ET113.
2. Funding to buy back sales: Approximately $50 million will be
needed to buy back the 43 sales with jeopardy opinion. The other
option is for either party to go to the God Squad. How do we
want to handle a request to the God Squad?
03/30/94
13:24
5033267577
USDA FS R-6
002
7. Pre-318 sales, sold, awarded, suspended for further surveys:
BLM-0
FS-4
-
President's Plan issue:
If the sales in categories 2 and 6a & b are found unoccupied, what will be the
effect of cutting these on the biological opinion that was completed for the
Plan? The F&WS is working on a preliminary analysis to answer this question.
03/30/94
13:23
5033267577
USDA FS R-6
001
Summary of Status of Section 318 Sales
3/30/94
Categories of Sales:
1. Sold, unawarded, consultation completed, within LSR:
FS-0
BLM- 13 sales. Of these, 1 sale has significant issues and was dropped
from further consideration. This leaves 12 sales.
commit to
10 of these sales are in the near zone for murrelet, and have critical
habitat, therefore, BLM policy requires conferencing on these sales. This
expedite
does not have the 135-day time limit of regular consultation.
Acreage:
116 acres in the 2 sales outside MM zone.
551 acres in remaining 10 sales, all within LSR.
Comment: These sales are not regeneration harvest sales, but have been
modified as a result of consultation to avoid jeopardy and adverse
modification of critical habitat.
2. Sold, unawarded, consultation NOT completed, within LSR:
BLM-0
FS- 12 sales. Of these, 3 sales have significant issues and were dropped
role Cit. mayvest assume
from further consideration. 7 sales have only owl issues, no MM issues. 2
sales have MM habitat.
Acreage: 2 sales with MM issues have 869 acres in LSR.
7 sales with owl issues have
in LSR. (Need to calculate)
No LSR
3. Sold, unawarded, outside LSR, hung up in court;
BLM-0
FS- 1 sale (Enola Hill)
N.A.
4. Sold, unawarded, consultation complete, outside LSR:
FS-Q
NA
BLM- 4 sales. They will be awarded within the next 2-3 weeks.
5. Sold, awarded, outside LSR, consultation complete:
BLM- lots
FS- lots
These sales are currently operating,
OPTIONAL FORM - (7-90)
FAX TRANSMITTAL
of pages
From
Freedman
6. Sold, awarded, suspended and under consultation, some inside LSR:
BLM- 0
FS- 87
Of the 87 FS sales, the following categories exist:
a. 1 year of survey for MM with no occupancy found:
How many
17 sales
these in DSR?
b. No surveys started for MM:
16 sales
How many obn' these
in LSR
If outside LSR, try to get waiver on 2nd year
Survey - and I'year Survey for (b.)
Comment: For a. and b. there are a total of 33 sales (18 sales in
LSR)
Acreage: 1600 acres total with about 875 in LSR.
It will cost $1.5mm to conduct surveys in the first year and
$750,000 to complete surveys in the second year. Recommend
contracting this work,
If we end up buying out of these sales, it will cost between
$40-50mm.
C. Surveyed and found occupied;
43 sales (32 Sales in LSR)
Acreage: 4,091 total, with 3,100 in LSR
Comment: These sales were awarded in 1990-1991 and were cleared under
spotted owl consultation, The purchasers did not harvest them before
the marbled murrelet was listed in September 1992. The listing
triggered reinitiation of consultation and suspension of the sales
Get jeoporty-
under ESA,
The biological opinion is being prepared by the F&WS with a jeopardy
opinion and the assumption that no reasonable or prudent alternatives
exist. The alternatives which are not deemed reasonable and prudent
under the ESA are as follows:
the Let way
i. Buy back the sales, This is within the scope of the contract
and would involve compensating the purchasers for their
to dente
investment, costs of holding the contract, negotiated securities,
work invested, and replacement costs for similar timber.
Estimated cost is $ 50mm.
ii. Action agencies or Applicants petition to take the sales to
the God Squad.
d. 2 year survey completed, NO occupancy found:
10 sales within MM range (7 in LSR--750 acres)
1 sale outside NM range or unsuitable habitat and not
NA
likely to adversely effect, but within LSR--35 acres.
5033267577
03-30-94 05:32PM P001 #10
NOV 03 '93 03: 38PM
P.3/3
These numbers are completely consistent with the original numbers we mentioned back in July.
They are also consistent with the original talking points that were generated by the White House
in July. Please note, however, that these numbers have been updated from the original talking
points about 400 mmbf of timber under contract has been harvested since July. These numbers
will continue to change over time as timber available for harvest continues to be cut and enjoined
and planned timber sales are modified to meet the final plan guidelines. I have asked the Forest
Service and BLM to provide me with monthly reports which I will share with you in order to
assure that we are all singing off the same songsheet.
SECTION 318 SALES:
The FY 1990 Interior Appropriations Bill mandated that 7.0 bbf of FY 1989 and 1990 timber
sales be sold notwithstanding any provision of law except the Endangered Species Act. The
Forest Service and BLM have basically met this goal.
However, the Forest Service has 8 sales containing approximately 60 mmbf located in proposed
Late Successional Reserves (LSRs). These sales have not gone through ESA consultation which
is expected to drop the volume down to about 40 mmbf.
The BLM has 21 Section 318 sales remaining. Twelve of which are in LSRs and 9 are not in
LSRs.
Agriculture would like to defer any decision on 318 sales in proposed LSRs until after the Plan
is finalized. Harvesting old growth in LSRs so near a final decision could undermine the
confidence and trust in the agencies ability to manage LSRs.
Interior initially felt that we should move forward and award those sales to show our commitment
to moving some timber, and complying with congress' intent.
Last week we had a conference call to clear up this matter. The BLM and Forest Service agreed
that our position should be to defer 318 sales in proposed LSRs until the plan is finalized, and
move forward with the 9 BLM sales which have cleared ESA review and are outside of LSRs.
BLM believes and I strongly agree that any decision to move forward in this way should
be made by the White House so the BLM will not be perceived as heading off in a different
direction.
DO YOU AGREE WITH DEFERRING THE 8 FOREST SERVICE AND 12 BLM
"SECTION 318 SALES" IN PROPOSED LSRs UNTIL THE FOREST PLAN IS
FINALIZED?
YESY/NO_/DISCUSS_
DO YOU AGREE WITH MOVING IMMEDIATELY FORWARD WITH THE 9 BLM
"SECTION 318 SALES" OUTSIDE OF THE PROPOSED LSRs THAT HAVE CLEARED
ESA REVIEW? YESV_/NO_/DISCUSS_
11-03-93
06:51
PM
P 0 3
NOV 03 '93 03 38PM
P.2/3
MEMORANDUM
TO:
Secretary Babbitt
Tom Collier
Kevin Sweeny
FROM:
Tom Tuchmann
form
SUBJ:
Timber Sale Program
DATE:
November 1, 1993
There are two issues that need your attention. The first is a clarification of some statements we
made regarding the timber sale program and the second relates to whether Section 318 sales"
should move forward.
(1) "2.2 BILLION BOARD FEET THIS YEAR"
When the President released his forest plan we were widely quoted as stating that we could move
2.2 billion board feet this year. Many perceived this as a commitment to move 2.2 billion board
feet (bbf) of new timber, timber that had not yet been awarded for sale.
In my travels throughout the region I have been getting a lot of follow up questions concerning
our ability to actually meet these goals. In the spirit of your statements, I have attempted to
clarify the administration's views in the following manner.
0 There are three different pots of timber which we hope to access through the end
of FY 1994. (September 1994)
0 We have about 1 bbf of timber available for harvest today. These sales are sold,
awarded, and outside of any injunctions.
o We have about 1 bbf of timber that is currently enjoined. Once these sales are
released from the injunctions they will be assessed for consistency with the
President's Plan and will require consultation under the ESA.
-- We expect that this assessment will allow an additional 250 million board
feet (mmbf) to be harvested next year. We already have an agreement with
the plaintiffs to go to Judge Dwyer and release 83 mmbf before the full
injunction is lifted.
0 In addition, we believe we can prepare between 350 mmbf and 650 mmbf of new
timber sales between now and the end of FY 1994.
-- We have already announced that 140 mmbf will move by the end of 1993
and we expect to move the remainder next year.
o Of course these numbers have and will continue to can change as timber is
harvested and as we get a better feel for how the plan may be implemented.
U.S. Department of Justice
LJS: PDC: EMAthas
90-1-4-3806
(202) 272-8236
Washington, D.C. 20530
June 1, 1994
*
ATTORNEY-CLIENT PRIVILEGED *
now
MEMORANDUM
To: Will Stelle
Office on Environmental Policy
The White House
Patty J. Beneke
Associate Solicitor
Division of Energy & Resources
From:
Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: Spotted Owls: BLM Proposed Harvesting of Sold Sales
This is to update you on the 70 MMBF issue, to advise
you of the representations made in Court on May 31, 1994, and to
ascertain your final view on this matter.
At the hearing before Judge Dwyer on May 31, we advised
the Court that the Government had filed a notice of satisfaction
of the judgment in PAS V. Babbitt and that our position was that
the injunction was lifted by its terms. We further advised that
the Court in Lane County V. Babbitt had entered an order
dissolving the injunction in that case. Unfortunately, attorneys
Mike Axline and Todd True stated that they had not received
copies of the notice of satisfaction in PAS V. Babbitt. We
reviewed this with the U.S. Attorney's Office in Portland after
the hearing, and they indicated that the packages were sent by
regular mail on May 20. We have since faxed copies of the
pleadings to the attorneys on June 1.
We advised the Court that the BLM and the Forest
Service would provide counsel for the parties with 30 days'
notice of the auction of any new sale that would log spotted owl
habitat, in order to avoid preliminary injunction motions. We
expressly stated that the notice would not cover sold and awarded
sales. In response to the Court's later question regarding what
was meant by new sales, we indicated again that sold and awarded
sales were not included in our notice commitment, and reminded
the Court that the SAS V. Lyons injunction did not cover sold and
awarded sales.
Based on the failure to notify plaintiffs' attorneys
sooner, we requested that the suspensions not be lifted until
further notice. Judge Dwyer's decision on whether to lift the
injunction is expected shortly. In the meanwhile, we await your
final decision on proceeding with these harvests.
- 2 -
LISA: PLEASE FAX TO MARK GAZDZ +
Tom torkuvan + wr A COUSE NOTE
ASKING TAIM WHAT Aer OUR OPTIONS
ON TAIS?
Mx 208' 4863
]
JUN- 2-94 THU 11:30
HEADWATERS-ASHLAND
FAX NO. 5034827282
P.01
To: Will Stelle
Headwaters
From: Julie Norman
To protect and restore forest ecosystems
Date: June 2, 1994
Re: Cancellation of awarding the contract for the Sugarloaf Timber Sale, located
within a Late-Successional Reserve in the Siskiyou National Forest.
The Sugarloaf Timber Sale could be awarded within the next week, as early as June
8, according to sources within the Forest Service.
This would be a tragedy, not only for the forests, but for future citizen involvement in
federal forest management in southwest Oregon.
We are very concerned that many of our members will be SO upset by this timber sale
that they'll just give up on trying to work constructively with the Forest Service or the BLM.
The consensus that we have built up over the years in support of thinning and limited
salvage operations is delicate, and could be shattered by what many see as simply a political
move to get more timber volume regardless of cost.
Over the last 8 months we have worked hard with the Rogue River National Forest to
develop the Partnership One Timber Sale as an example of better forestry that
conservationists could support. But how can we ask our members to trust the agencies to
prepare more sales like Partnership One if timber sales like Sugarloaf are still being
awarded? To make it worse, for almost a year, maps have shown the Sugarloaf area to be
protected within a Late-Successional Reserve. Cutting it now would let people down hard.
Sugarloaf is not a 100% bonafide Section 318 timber sale. It is the only sale that the
Siskiyou NF's Section 318 Advisory Board did not agree to sell. By offering Sugarloaf for
sale in 1990 without Advisory Board approval, the Siskiyou managers violated the spirit, if
not the letter, of Section 318. By signing the contract for Sugarloaf in 1994, the Forest
Service would violate the spirit, if not the letter, of President Clinton's new Forest Plan.
Our hopes for ending a decade of confrontation and gridlock will be dashed if this
sale is awarded.
Please act now, the time is so short! Julie Norman
cc: David Cottingham, John Lowe, Mike Lunn, Jim Lyons, Jim Pipkin, Tom Tuchmann
Post Office Box 729
Ashland, Oregon 97520
Telephone (503) 482-4459
Fax (503) 482-7282
JUN- 2-94 THU 11:31
HEADWATERS-ASHLAND
FAX NO. 5034827282
P.02
FAVORABLE PRESS RELEASE TIMBER
SALE
Headwaters
To protect and restore forest ecosystems
ON
ONE
FOR IMMEDIATE RELEASE:
WEDNESDAY, MAY 11, 1994
CONTACT: JULIE NORMAN (503)482-4459
APPLEGATE TIMBER SALE PROJECT GETS KUDOS FOR PROTECTING BIG TREES
The Rogue River National Forest is to be congratulated for
successfully working with the public to design the Partnership
One Timber Sale, and the results show that the Forest Service has
sincerely tried to protect local biodiversity and big live trees.
Julie Norman, President of Headwaters, stated: "The
Applegate Ranger District staff has worked hard to design an
innovative experimental project that uses less-damaging methods
of salvage, and uses thinning in an attempt to improve forest
health. The Forest Service has made a good effort to minimize
possible negative impacts, and that's a positive sign as
implementation of the Clinton Forest Plan begins."
The Partnership One Project includes timber cutting
(thinning-from-below and dead-tree-only-salvage), prescribed
burning near private residences (to reduce fire hazard), road
rehabilitation (erosion-control), and upgrade of recreational
facilities at McKee Bridge. The examples of innovation that
Post Office Box 729
Ashland, Oregon 97520
Telephone (503) 482-4459
Fax (503) 482-7282
JUN- 2-94 THU 11:32
HEADWATERS-ASHLAND
FAX NO. 5034827282
P.03
Headwaters especially applauds are:
(1) not cutting large trees over 25" diameter in the
thinning units,
(2) salvaging dead trees only (not trees that are merely
predicted to soon die),
(3) protecting clusters of snags (habitat for birds
that help control insects), and
(4) favoring Ponderosa pine, madrones, and oaks,
to preserve species diversity.
Richard Hart, Chief Researcher: "The big trees are the most
rare component on the public forests. They are also the most
difficult to replace. So we're glad to see the agencies bring
this fact into their decision-making.
Julie Norman continued: "Headwaters has been promoting
thinning-from-below to the federal agencies for years. We see it
as an alternative to clearcutting that has the additional
possible benefit of reducing fire hazards. It is gratifying to
see the Forest Service take a step back from clearcutting and try
to actually improve the health of the forest."
-30-
^ 7
05/26/94
12:07
202 514 0557
ENRD
001
U.S. Department OI Justice
Environment and Natural Resources Division
Office of the Assistant Attorney General
Washington, D.C. 20530
FAX NUMBER
(202) 514-0557
(FTS) 368-0557
CONFIRMATION NUMBER (202) 514-2701
(FTS) 368-2701
FROM:
Lois J. Schiffer
NO. OF PAGES:
5
(INCLUDING
COVER PAGE)
TO:
Will Stelle and Patty Beneke
TELEPHONE NO:
FAX NO:
MESSAGE:
PLEASE DELIVER ASAP!
PLEASE NOTIFY SENDER IMMEDIATELY IF YOU HAVE ANY PROBLEMS
RECEIVING THESE PAGES.
05/26/94
12:07
202 514 0557
ENRD
002
U.S. Department of Justice
Environment and Natural Resources Division
LJS: PDC: EMAthas
90-1-4-3806
(202) 272-8236
Office of the Assistant Attorney General
Washington, D.C. 20530
May 26, 1994
*
ATTORNEY-CLIENT PRIVILEGED
*
MEMORANDUM
To: Will Stelle
Office on Environmental Policy
The White House
Patty J. Beneke
Associate Solicitor
Division of Energy & Resources
From: Lois J. Schiffer
Acting Assistant Attorney General
Peter D. Coppelman
Deputy Assistant Attorney General
Re: Spotted Owls: BLM Proposed Harvesting of Sold Sales
This memorandum sets forth the background to the
enjoined, sold BLM sales, totalling 70 MMBF. It further outlines
options for addressing these sales at this stage of the
litigation.
Background
The PAS Injunction. Auction and award of BLM sales
were enjoined by Judge Frye in Portland Audubon Society V.
Babbitt. The court enjoined all sales "not awarded prior to
1992", and the injunction remains in place "until the BLM submits
to this court a Supplemental Environmental Impact Statement or
its functional equivalent which examines new information on the
effects of logging on the northern spotted owl subspecies as
required by NEPA. (Judgment, Jan. 5, 1994). Included in that
injunction are the BLM 70 MMBF of sold and awarded sales, which
represent the only sold and awarded sales enjoined by any court.
(These sales were awarded during a brief interlude when the issue
of jurisdiction was before the Ninth Circuit, which ultimately
held that the district court had jurisdiction over the matter.)
These decision notices to go forward with these sales were based
on the old SEIS, which the court found inadequate for failing to
consider new information.
05/26/94
12:08
202 514 0557
ENRD
003
The ROD and FSEIS. The ROD specifically states that
all "sales awarded prior to the effective date of this Record of
Decision are not altered by this Record of Decision. (ROD, at
13). That is based on the assumption that, at the time of award,
"these timber sales were consistent with the planning documents
then in effect, complied with the Endangered Species Act and
other laws, and the environmental effects of these sales were
considered as part of the baseline for the biological opinion for
the Final SEIS." (ROD, at 13). Sales in key watersheds were
also subjected to a screening process. (ROD, at 13-14). These
sales, however, were not specifically considered by the SEIS
team. The aquatic group did assume, for purposes of their
analyses, that all sold sales were to be considered as harvested
NOT
stumps. The terrestrial group, however, made no assumptions on
TWZ
these sales.
Lifting the PAS Injunction. On May 20, 1994, the
Record of Decision became effective. On that same day, Tom Lee,
the Assistant United States Attorney who has handled the Portland
Audubon Society V. Babbitt matter for the BLM, filed the FSEIS
and Notice of Satisfaction of Final Judgment. A copy of that
filing is attached. According to Tom Lee, that filing satisfies
the injunction in Judge Frye's case and concludes the Portland
litigation. Nothing further is needed or expected.
Current Status of 70 MMBF. The sales are located in
matrix lands, key watersheds, adaptive management areas and late-
successional reserves. These sales were formally suspended by
BLM when the injunction was entered. The suspension remains in
place today, but BLM feels it must lift the suspension shortly
after the injunction is lifted in Portland Audubon. The BLM
agreed to wait seven days following the filing in Portland
Audubon before lifting the suspension to review whether any new
claims addressed these sales. None do. That decision to suspend
sales seven days beyond the filing expires Friday, May 27.
Litigation Concerns. The difficulty arises because
these sales went forward under the old EIS, found to be
înadequate by Judge Frye. No new reconfiguration or new
decision notice is required for sold sales under the current ROD.
Yet, these sales, which may be the first of all currently
enjoined sales under the new ROD to be contested, may represent
the least defensible of any such sale. Thus, these 70 MMBF may
engender much publicity. In addition, such a challenge might be
used to try to draw the Court into litigating the merits of the
ROD under an expedited preliminary injunction schedule.
The question of how we could defend these sales remains
XXXX a ax
open. Unlike the section 318 sales, Congress has not found these
sales to be in compliance with NEPA. Instead, if challenged
under NEPA, we would have to argue that these sales, based on the
old SEIS, are lawful, because the ROD permits these sales to go
- 2 -
05/26/94
12:09
202 514 0557
ENRD
004
forward without reconfiguration. The administrative record,
however provides little support for this position.
Notification to Plaintiff Groups. An important issue
arises whether or not we should contact the plaintiff
environmental groups to advise them that we are going forward
with these sales. This is not technically required by any legal
tenet. By not notifying plaintiffs of these sales, however, they
may react angrily when they learn of them and create negative
press stories. Tom Lee maintains, on the other hand, that if we
bring these sales to plaintiffs' attention, they will have no
choice but to oppose them. This is particularly true for Oregon
Natural Resources Council, which has vowed to fight every sale of
old growth timber.
BLM Concerns. BLM remains concerned, however, that it
must lift the suspension shortly after the injunction is lifted.
Without the injunction, the BLM does not feel legally justified
in continuing the suspension. In addition, the BLM would like to
TAKING
proceed with some timber harvesting as soon as possible.
Therefore, to withhold these sales could create political and
monetary pressures. Finally, BLM would prefer not notifying the
plaintiff groups about the sales. Their view is that
notification would serve as a red flag and invite challenges that
might otherwise not arise.
Options
Option 1. Immediately lift suspensions on Friday, May
27th, without notifying plaintiff groups.
Advantages: Most expeditious option that permits some
immediate timber harvest.
Disadvantages: Could create serious public relations
problems and damage our image before the courts if our action is
perceived as "sneaking" some sales through.
Option 2. Do not lift the suspension until after the
status conference and hearing before Judge Dwyer on Tuesday, May
31. At Judge Dwyer's status conference, we can represent that
(1) the injunction in Portland Audubon has been formally lifted;
and (2) the BLM and Forest Service agree to a 30-day notice to
plaintiff groups prior to any auction or award of timber sales in
spotted owl habitat. If plaintiffs have an issue with sold sales
going forward, that could be their opportunity to come forward.
If plaintiffs say nothing about sold sales, we then lift the
suspension, without specific notification to plaintiff groups.
Advantages: This permits us to make formal
representations in court on the issue, which, if unchallenged,
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could forward. justify our moving forward. Also, timber harvests could go
Disadvantages: Could also create serious public
relations problems and damage our image before the courts if our
action is perceived as "sneaking" some sales through.
Option 3. Call plaintiff groups immediately and advise
that BLM intends to lift the suspensions on the 70 MMBF and ask
if plaintiffs intend to challenge these sales.
Advantages: Our actions will not become the source of
bad press.
Disadvantages: The mere asking of the question could
flag the issue, and serious opposition may result. BLM would
then be in the difficult position of having to decide whether to
buy back the sales, undergo a new NEPA analysis for the sales or
take on a serious litigation risk. Finally, BLM agreed to the
seven-day delay on lifting the suspensions with the hope that if
no new claims were asserted the sales would go forward, and
changing position now may become an issue.
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