Forestry board ponders new rule

JOHN DODGE, THE OLYMPIAN

Originally published October 10, 2001

OLYMPIA -- Some timberland owners could receive relief from state logging rules under a proposal being considered by the state Forest Practices Board.

Landowners eligible for regulatory relief would have to show that enforcing laws to protect fish, wildlife and water quality denies them all or almost all reasonable economic use of their land.

The idea is to protect the state from lawsuits alleging unconstitutional taking of private property, said Todd Myers, a spokesman for the state Department of Natural Resources.

The 12-member Forest Practices Board, which regulates logging on 12 million acres of private and state land, is slated to discuss the issue at an Oct. 24 retreat in Colville.

Several groups, including small timberland owners and environmentalists, question the need for the special exemption, for different reasons.

"If they're just trying to create immunity from lawsuits, it's not necessarily in the best interests of small landowners," said Nels Hanson, a Rainier tree-farm owner and executive director of the Washington Farm Forestry Association, which represents owners of 1,500 family-sized tree farms.

"We don't want the board going through with this," added Becky Kelley, program coordinator with the Washington Environmental Council. "The board would be abdicating their obligation to protect fish and water resources."

The proposal, which has yet to be crafted as a draft rule, grew out of a legal review of the Forests and Fish Act state legislators approved in 1999. The act was adopted by the forestry board as a regulation in July, explained Patty O'Brien, the state assistant attorney general who provides legal advice to the board.

She said the new forestry regulations, which increase tree buffers along salmon-bearing streams and their tributaries, could translate into a taking of private property on some timberland.

There are provisions in Forests and Fish to partially compensate landowners if they sign 50-year agreements to not log their environmentally sensitive lands. Lawmakers also exempted landowners of 20 acres or less from the new forestry rules.

"Yes, the Legislature provided some relief," O'Brien said. "But there are people who wouldn't fit into those programs."

The taking of private property rights is at the core of a court case involving the state Department of Natural Resources and SDS Lumber of Bingen.

In May 2000, a Klickitat County Superior Court judge awarded the company a $2.25 million claim against the state for trying to limit timber harvesting on 232 acres of company land to protect northern spotted owls. The owl was listed as threatened under the federal Endangered Species Act in 1990.

The state has appealed the ruling in the SDS case.

Kelley said the Forest Practices Board should wait to see how the SDS case plays out before considering anything to exempt certain landowners from forestry regulations.

"We oppose it the way it is drafted now," Hanson said. "It would be a regulatory and legal nightmare to prove unreasonable economic loss of your property."

John Dodge covers the environment and energy for The Olympian. He can be reached at 360-754-5444.

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