Kettle Range Conservation Group v. DNR
| Decision Date | 23 December 2003 |
| Docket Number | No. 29077-4-II.,29077-4-II. |
| Citation | 120 Wash. App. 434,120 Wn. App. 434,85 P.3d 894 |
| Parties | KETTLE RANGE CONSERVATION GROUP and The Lands Council, Appellants, v. WASHINGTON DEPARTMENT OF NATURAL RESOURCES, and Stimson Lumber Co., Respondents (real parties in interest), and Washington Forest Practices Appeals Board, Respondent. |
| Court | Washington Court of Appeals |
Toby Thaler, Peter Robert Goldman, Washington Forest Law Center, Attorney at Law, Seattle, WA, for appellant.
Edwin Charles Perry, Attorney at Law, Max M. Miller, Tonkon Torp, Portland, OR, Steven William Reneaud, Attorney General of Washington Natural Resouces Div., Olympia, WA, for respondent.
The Kettle Range Conservation Group and the Lands Council (collectively, "Kettle Range") appeal two decisions of the Forest Practice Appeals Board (Board) in Kettle Range's action to require environmental regulation compliance before Stimson Lumber Company harvests timber in the LeClerc Creek watershed: (1) the Board's grant of partial summary judgment to the Washington State Department of Natural Resources (DNR), and (2) its affirmance of the DNR's approval of the LeClerc Creek Watershed Analysis (WSA) and related modified determination of nonsignificance (MDNS). Kettle Range argues that (1) the DNR failed to comply with the State Environmental Protection Act (SEPA)1 when it erroneously issued a MDNS and failed to require an Environmental Impact Statement (EIS) addressing the effect of Stimson Lumber Company's future forest practices on endangered species and water quality; and (2) the mitigating "prescriptions," some based on erroneous calculations, do not comply with the Forest Practices Rules2 and do not cure the adverse environmental impacts of Stimson's proposal.
Acknowledging the Ninth Circuit's recent decision in Selkirk Conservation Alliance v. Forsgren,3 we hold that the record contains substantial evidence to support the Board's determination that the DNR adequately considered Stimson's future forest practices. But we agree with Kettle Range's assertion that because the road and sedimentation prescriptions are based on significant erroneous data and calculations, we cannot say that the watershed analysis and its prescriptions will cure adverse impacts of Stimson's proposal on the environment or comply with Forest Practice Rules. Accordingly, we affirm in part, reverse in part, and remand to the Board.
Many tributaries join to form the Pend Oreille River in northeastern Washington. Among them is LeClerc Creek near Usk in Pend Oreille County. The LeClerc Creek watershed area was heavily logged in the past, resulting in significant soil erosion and stream sedimentation, especially along old logging roads.
In 1996, anticipating eventual logging of the area, Plum Creek Timber Company initiated a watershed analysis for the LeClerc Creek watershed. Plum Creek then sold its timber holdings in the LeClerc Creek watershed to Stimson Lumber Company.
Stimson completed Plum Creek Timber's watershed analysis, using a resource team comprising six analysts,4 who analyzed the watershed processes and resources of the area. From this information, the team compiled an overview and seven "modules" addressing seven specific areas of environmental concern within the watershed: "mass wasting,"5 surface erosion, hydrologic conditions, riparian function, stream channel assessment, fish habitat, and water supply and public works.
A "prescription"6 team, comprising forestry managers from the Kalispel Indian Tribe, the DNR, and industry, used the resource team's data to draft 12 prescriptions restricting forest practices to protect sensitive resources. The four prescriptions at issue in this appeal were designed to reduce soil erosion.7 Administrative Record (AR) at 2207-49.
Both DNR field managers from other regions and the general public reviewed the LeClerc Creek watershed analysis. Under the terms of the WSA, Stimson completed a Road Maintenance and Sediment Reduction Plan (Road Plan) to guide future compliance with the WSA prescriptions for the roads.
As required by WAC 222-22-080(5),8 Stimson also submitted a completed SEPA checklist to the DNR for review. The checklist noted grizzly bear, woodland caribou, gray wolves, and the North American lynx as threatened or endangered species on site. The checklist did not list bull trout as a threatened or endangered species because its status was still pending.
The DNR responsible SEPA official9 reviewed the WSA and the SEPA checklist and issued a Determination of Nonsignificance (DNS). The DNS, SEPA checklist, and an executive summary were broadly distributed10 for review and comment. Although not on the DNR's distribution list, Kettle Range sent comments on behalf of itself, the Lands Council, and the Spokane Chapter of the Washington Environmental Council. In response to comments received, the DNR modified some of the prescriptions. It then issued a modified determination of nonsignificance (MDNS).11
After the bull trout was listed as "threatened" under the Endangered Species Act (ESA),12 the DNR issued an addendum to the MDNS, stating that this new listing did not substantially change its MDNS analysis of significant environmental impacts. The DNR then issued a final SEPA determination, approving the amended LeClerc Creek WSA. Consistent with its issuance of the MDNS, the DNR did not require Stimson to prepare an EIS.
Kettle Range Conservation Group and the Lands Council appealed to the Board.13 Joined by Stimson, the DNR moved for partial summary judgment, arguing that the WSA prescriptions were adequate to satisfy the Forest Practices Act and WAC 222-22 resource-protection standards. Kettle Range also sought summary judgment on the SEPA issues, arguing that the LeClerc Creek Watershed Analysis SEPA review was fatally flawed both procedurally and factually.
After clarifying the issues,14 the Board granted the DNR's and Stimson's motions for partial summary judgment.15 The Board determined that (1) the WSA will not have a significant adverse impact on the environment, so no EIS is required; (2) the WSA did not violate the Clean Water Act;16 (3) the WSA need not address environmental, aesthetic, recreational, or wildlife concerns; (4) alternatives to the prescriptions are permitted; (5) neither the WSA Rules nor Forest Practice Rules require the DNR to monitor implementation of the prescriptions; and (6) the DNR need not design prescriptions for cattle-grazing activities. The Board otherwise denied the motions for summary judgment.
During a hearing on the remaining issues, the parties presented additional SEPA compliance information, including: the impact of future forest practices, reduction of sediment delivery to area streams, classification of the Middle Branch Road, "rocking"17 of Middle Branch Road, "armoring"18 LeClerc Creek, and ways that the WSA prescriptions were or were not consistent with WAC 222-22-080(3)(b).
Kettle Range disputed that the DNR complied with its duty to evaluate adverse impacts under SEPA, and it specifically disagreed with the DNR's future forest practices assessment. Relying on Alpine Lakes Protection Society v. Washington State Department of Natural Resources (ALPS II), 102 Wash.App. 1, 979 P.2d 929 (1999), and Plum Creek Timber Co., L.P. v. Washington State Forest Practices Appeals Board, (ALPS III), 99 Wash.App. 579, 993 P.2d 287 (2000), the Board found "sound policy reasons" for the DNR's evaluation process. ALPS II required the DNR to consider future forest practices when reviewing a WSA under SEPA, and the Board was satisfied that Stimson satisfied this burden.
First, the Board found the DNR's assumption—that eventually the entire LeClerc Creek watershed would be logged—revealed environmental consequences throughout the watershed. Second, alternatively requiring a list of specific future harvests, which would likely change in response to market conditions, might not accomplish the same environmental purpose. Third, the DNR is supposed to consider "future forest practices as contemplated to occur" with regard to a proposed WSA. Finally, Dwight Opp, Stimson's fee land manager, testified that the intent behind completing the watershed analysis was eventually to log all the permissible land in the entire area.
The Board concluded that ALPS III placed the burden on Kettle Range to show how requiring SEPA review for individual forest practices would afford greater environmental protection. The Board concluded that Kettle Range had failed to satisfy this burden.
The DNR's watershed analysis Manual (Manual) noted that if there was a reduction in sediment delivery to streams to a level 50 percent above "background,"19 there would likely be a lower chance for adverse change in the area. Nancy Sturhan, a witness for the DNR, agreed with the Manual's assumption that it is difficult to detect a change in sediment delivery below the 50 percent threshold. JoAnn Metzler, a member of the resource assessment team, also testified about the difficulty in detecting a change in sediment delivery below the 50 percent threshold. Even Kettle Range's expert, Dr. Timothy Abbe, agreed that it would be hard to distinguish between 100 and 150 percent of background sediment delivery. The Board ultimately agreed that the "50 percent standard" was the minimum level of detectability for change to natural sedimentation conditions.
The appropriate classification for Middle Branch Road was also an issue during the summary judgment hearing. Stimson had rocked the Middle Branch Road in 1999. After the rocking, roughly 800 loaded logging trucks used the road, primarily during the winter months, when the ground was...
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