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Judge refuses to declare Oregon state forest logging 'takes' coho salmon

PORTLAND — A federal judge has refused to declare that logging activities in Oregon’s Clatsop and Tillamook state forests have unlawfully harmed threatened coho salmon.

Though U.S. District Judge Michael Mosman has rejected a motion by environmental groups to declare that timber sales in those state forests violate the Endangered Species Act, his ruling doesn’t put an end to the litigation.

The Center for Biological Diversity, Cascadia Wildlands and the Native Fish Society have a “strong case” they’ll succeed on the merits, but at this point, their evidence of illegal “take” isn’t beyond dispute, Mosman said.

The plaintiffs must prove that logging road construction caused landslides that harmed streams enough to kill or injure coho salmon, he said.

“You just can’t get there from here without something more,” Mosman said at the conclusion of oral arguments in Portland on Dec. 16.

However, the judge has agreed to revisit the issue after hearing expert testimony next year from the environmental nonprofits and the State of Oregon, as well as Tillamook County and the Oregon Forest and Industries Council, which have intervened in the lawsuit.

Amy Atwood, attorney for the environmental nonprofits, argued that findings from the National Marine Fisheries Service, numerous studies and documentary evidence all prove that landslides from logging roads adversely affect coho salmon.

“It’s apparent from our photography that sediment was delivered,” Atwood said. “Our contention is that fine sediment is always harmful.”

If the environmental nonprofits convince the judge that ODF’s management resulted in unlawful take, it could have implications beyond state forestland. Similar logging activities on private forestland could then also be vulnerable to lawsuits.

Attorneys for the defendants and intervenors countered that the environmental plaintiffs have not established a sufficient causal link between the Oregon Department of Forestry’s logging authorizations and the alleged “take” of coho salmon.

“They just haven’t done the who, what, where, when and how,” said Jay Waldron, Tillamook County’s attorney. “Landslides occur in Tillamook County every day. It doesn’t automatically result in take or habitat modification.”

The fact that sediment has entered streams alone isn’t enough to prove that coho salmon were killed or injured in violation of the ESA, said Deanna Chang, attorney for the state government.

“They have not established that landslide occurred due to any activities of ODF,” she said. “Not all steep slopes are prone to landslides. Not all areas to be harvested are on steep slopes.”

Chang said the court briefs filed by the plaintiffs are not sufficient for the judge to rule that ODF violated the law. To make such a conclusion, he must consider expert testimony from both sides, she said.

“It’s not just the introduction of sediment to a stream,” Chang said. “It has to have an adverse impact on listed species.”





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