Wednesday, July 4, 2012
By February phone calls were flying back and forth between Friends of the Columbia River Gorge and the Columbia River Gorge Commission.
The two groups often wind up on the same side of protecting sensitive land in the Gorge. This time they were not.
Environmental watchdog group Friends of the Gorge wanted to know what was going on hillside a between Hood River and Mosier. Gorge Commission staff, tasked with oversight over the National Scenic Area, say they had the same question.
Over the winter, a 110-acre section of land, some of it designated as being amongst the most environmentally sensitive in the Gorge, was cleared.
Of the land, 80 acres is tribal trust land of the Confederated Tribes of Warm Springs and is exempt from the Scenic Area Act. The Bureau of Indian Affairs has acknowledged flaws in the public notice process before the timber harvest and has pledged to work with tribes to ensure better communication on future off-reservation timber cuts on tribal land.
The other 30 acres is owned by SDS Timber of Bingen. The Warm Springs had to go through the privately held SDS land for a timber operation on tribal lands, so SDS decided to have the logger who purchased the timber sale clear its parcel at the same time.
SDS obtained approval from the Oregon Department of Forestry for the operation, that much is clear. How and why a logging operation was allowed to occur on land which is designated as some of the “most significant and sensitive” land in the National Scenic Area relies on interpretation of how the National Scenic Act relates to the Columbia River Gorge Commission management plan.
The logging issue came at a tough time for the Gorge Commission, which had just seen its budget slashed by the Oregon and Washington Legislatures and had just had a new executive director, Darren Nichols, come on board in February. He and the Commission staff were immediately confronted with a tough problem.
The National Scenic Area Act created the Gorge Commission and gave it the authority to create a management plan for the scenic area.
“The Act is a source of law and the management plan is the interpretation of that law,” Nichols said.
In the Commission’s management plan, the area which was logged was zoned as “open space.”
Open spaces receive some of the most stringent protections under the management plan, which calls for tight restrictions on permitted usage in the space.
“Open spaces represent some of the most significant and sensitive resources in the Scenic area ... In some cases the resources are so sensitive and significant that their protection requires designating them as open space. This land use designation is designed to protect such resources from uses that adversely affect them,” the management plan states.
Among the uses listed which could adversely effect the areas are farming, mining, development and forestry.
However, the Act which established the Gorge Commission and mandated the Commission craft a management plan, does not fully mesh with the language in the management plan, and calls into question whether such regulations would be allowed on private timber lands for commercial use.
The National Scenic Area Act states in Section 17, the “savings provision,” that “nothing in ... this title shall affect the rights and responsibilities of non-federal timber land owners under the Oregon and Washington Forest Practices acts or any county regulations which under applicable State law supersede such Acts.”
The Oregon Forestry Practices act requires private timber land owners to provide notice and get permission from the Oregon Department of Forestry before conducting a logging operation.
SDS lumber applied for, and was granted, that approval by ODF.
“The plan was reviewed and there were no issues there,” said ODF spokesman Kevin Weeks.
SDS owns around 80 acres of land near the clearing site, almost all of which was burned in the 2009 Microwave Fire.
“That is where our hand started to become a little forced,” said Jason Spadaro, president of SDS.
Spadaro said the company had tried several times over the years to sell the property to either the National Forest Service or to the Public Lands Trust, but that each time lack of funds from the public agencies did not allow for a sale.
After the Microwave Fire the issue of whether the SDS land would even ever be used for a logging operation came to a head.
Most burned timber must be harvested around three years after it is burned or it loses all value as it dries and cracks or potentially becomes bug-infested.
When the Warm Springs came to SDS to request permission to go through the SDS property to log the tribal land, SDS granted them permission, and requested that the logger clear approximately 39 acres of the SDS parcel as well.
Spadaro says SDS did everything by the book.
“We filed notification with ODF for state forest practices,” he said.
Nichols shares that assessment.
“They did everything they should do with providing notice to the ODF,” he said.
Weeks said the ODF performed a cross check to make sure the zoning of the logging area was appropriate, and that the ODF contacted the U.S. Forest Service about the BIA land involved.
However, Nichols said the Gorge Commission was not contacted by ODF until after logging operations were under way.
When Oregon Department of Forestry and Hood River County asked the Gorge Commission to render an opinion Nichols said the Gorge Commission staff informed them that the Scenic Act itself appeared to permit logging while the management plan prohibits it, and that they should consult with their own respective legal counsels.
Hood River County adopted a National Scenic Area Act zoning ordinance provision in 2005, which essentially copies the Gorge Commission management plan and does not list forestry as an approved use in open spaces.
When Oregon Department of Forestry asked the county for its opinion on whether SDS should be allowed to log the property, the county turned to the Gorge Commission.
The Gorge Commission staff did not put down its interpretation of the plan and management in writing, with Nichols saying it “took place over a series of phone calls.”
“I think what the Gorge Commission staff has done is called into question the protection on open space land ... and they are not being accountable or acknowledging this,” said Friends of the Gorge Conservation Director Michael Lang.
Lang said that by deciding that the management plan (which was mandated by the Scenic Area Act) was trumped by the text of the act itself, the Gorge Commission staff has made a significant policy shift.
“Their 1991 management plan prohibits (the logging) but they say it is conflict with other areas of the act,” Lang said. “On the staff level they are violating the management plan and making policy changes without telling anyone.”
Nichols disagreed that there has been any shift in policy.
“I don’t think we informed people one way or another” on whether logging was an allowed use, Nichols said.
Nichols said that the Gorge Commission informed Hood River County, ODF and the U.S. Forest Service to be careful in how they interpreted the act because there appeared to be a discrepancy between the management plan and the act itself.
“It wasn’t clear to us then and it’s still not clear to us which part of the law controls how they interplay between one and another and what role the two states’ forest practices act play in that legal question,” Nichols said.
According to Lang, Nichols and Spadaro, this is not the first time this issue has come up; in 1995 the Gorge Commission sought a restraining order against a private landowner in Washington to prevent commercial logging operations. The landowner then pulled their application.
In 1990, as the Management act was being formulated, then-Oregon Assistant Attorney General Michael Huston delivered guidance to the Gorge commission on the land guidance designation.
Most of the memo deals with the Gorge Commission’s authority to designate land in an unrestricted way.
Huston reaffirms the Commission’s authority to apply designations and restrictions to land within the scenic area; however near the end of a 10-page memo Huston cites Oregon Sen. Mark Hatfield, one of the key architects of the National Scenic Area Act, for the interpretation of the savings provision.
“The savings provisions clearly state that timber harvest practices in the scenic area will continue to be governed by the Oregon and Washington Forest Practices Acts or applicable county regulations and will not be subject to potential federal regulations by the Gorge Commission,” Hatfield stated in his introduction to the bill when it was put before Congress.
“This provision was specifically included to avoid the imposition of an additional overlay of regulation on timber management practices with the scenic area.”
Huston notes that forest practices include reforestation, road construction, harvesting of trees, application of chemicals and disposal of slash.
“These are activities taking place on land already designated as forest lands and, as such, are entirely separate from the designation process itself,” Huston wrote.
How the language in the act works with the management plan, and the fate of some 3,000 acres of privately held timberland in scenic area’s general management area, have yet to be decided.
“This instance underscores the complexity of having several agencies having jurisdiction,” Weeks said. “There are two states, several federal agencies and several state agencies.”
That complexity may be getting simplified somewhat in the near future.
“This logging activity raised this issue to the awareness to a number of agencies,” Nichols said, adding later: “We’d have liked to have this answered six months ago ... or 20 years ago, we’d have liked to have this answered a long time ago.”