FOREST DEFENSE, P.C.          Thomas J. Woodbury, Esq.    Missoula, MT

        Tel  (503) 728-5733                         Specializing in Environmental Law          P.O. Box 7681, 59807

        Fax  (503) 728-9432

September 22, 2003

Bradley Powell, Regional Forester

Northern Region

U.S. Forest Service

Missoula, MT

Dear Mr. Powell:

I am writing to you on behalf of The Ecology Center, Inc. of Missoula.  I was lead counsel for TECI in the recently decided lawsuit over old-growth harvest in the Kootenai NF, and am also representing them in the pending old-growth litigation in the Lolo and Lewis & Clark NFs.  My client has asked that I outline a proposal for your consideration that would bring the Northern Region into compliance with the District Court’s legal rulings on old-growth, and thus avoid future and protracted litigation over these issues.  You may or may not be aware that I am also lead counsel in litigation over similar issues in the Payette NF in Idaho.  After we won our first court ruling on the Payette in the 1998 case of Neighbors of Cuddy Mountain v. U.S.F.S., the Forest Service chose to continue litigating the issue, rather than addressing our concerns.  The result has been six years of litigation, in which we have prevailed without exception, while little or no logging went forward, and now the PNF is just beginning to endeavor to comply with the law.  It is my client’s sincere hope that you will choose a more constructive path, and address our wildlife concerns at this time, rather than continue to argue over what is minimally required to protect species.  I am confident that if you choose to work with us, rather than against us, we can get forest management in this region moving in a positive direction that serves everyone’s interests.

One common refrain I hear in the public forum is that it is somehow in TECI’s interest to foster litigation rather than to foster good forest stewardship.  I hope that you know this is not an accurate accusation.  What I would like to impart to you at this early juncture is that the choice to continue litigating over protection of old-growth dependent wildlife is in your hands, not ours.  TECI is much more interested at this critical point in time in actively working to influence the forest plan revision process in the region, rather than devote its resources to protracted litigation.  Accordingly, at this time we feel it is incumbent upon us to let you know exactly what it is that we feel is necessary to address our concerns over old-growth species.  In outlining the steps we feel are necessary and appropriate at this time, we want to emphasize that we are not proposing anything that is not required by your own rules and regulations, or that is not already being done in other regions.

With that as background, we are formally requesting that you agree to implement the following measures:

·      Develop a Regional Conservation Strategy for the protection of Northern Goshawk as a regional indicator species for old-growth habitat.  This CS would be very similar to the one adopted for Utah NFs in Region 4, which recognizes the FS study done by Reynolds as the best science currently available on goshawk habitat requirements, supplemented by the Regional Guidelines currently in place (based on Green et al. 1992) for the various old-growth habitat types in the Northern Rockies.  The result of this strategy must be to include objective standards, based upon population trends, that would tell the public how any particular forest is doing in protecting old-growth habitat, and it would be incorporated into all existing and future forest plans. 

·      Develop a Regional Conservation Strategy for the protection of the Black-Backed Woodpecker as the regional indicator species for wildfire-impacted habitat.

·      Direct each NF in the region to undertake forest-wide viability assessments for their old-growth MIS, as the Payette NF has now done in response to consistent rulings from the Ninth Circuit Court of Appeals.  For those forests with expired Forest Plans, we would respectfully request that they consider whether or not the MIS designated in their old forest plans is appropriate, or whether it may be more appropriate to adopt the Northern Goshawk as their old-growth MIS, in the interest of coordinating regional efforts.  In the recent Circuit Court decision in ISC v. Rittenhouse, the Court agreed that based upon recent science, it was no longer appropriate to use the pileated woodpecker as the MIS for old-growth, an argument we believe is also applicable in this region.

·      Direct each NF in the region to begin monitoring old-growth MIS populations immediately, as part of their forest-wide assessments, and to determine what a minimum viable population level for that species is, according to the best available science tailored to local ecosystem characteristics.  Many forests developed this baseline information as part of their AMSs in the last round of Forest Plan adoption (e.g., Payette and Boise NFs in Idaho), and it is inexcusable to have gone through an entire generation of Forest Plan implementation without providing the public with this very basic scientific information from which to gauge the impacts of timber harvest on biodiversity, which is the most basic requirement of NFMA.

·      Commit to developing Conservation Strategies, either regionally or forest-by-forest, for the remaining sensitive old-growth species, in accordance with official Forest Service Policy and Procedure, over the next five years.

In exchange for these minimal protections, we would be willing to enter into a Memorandum of Agreement that would allow old-growth harvest to take place at an earlier time than might otherwise be allowed by the courts.  As you know, the District Court faulted the Kootenai for not having monitoring data for populations and trends that they are required to have in place before harvest can proceed, and Forest Service experts opined in the case that such trends “take more than 8-10 years to confirm.”  While it may turn out that some forests, like the Kootenai, can not afford to sacrifice any more old-growth habitat, we would be willing to stipulate that where a particular forest has sufficient habitat well distributed in the forest, and a margin of safety of present populations over minimum viable populations, then old-growth harvest may be considered prior to establishing a trend.  Of course, this would assume that the forest had reliable scientific data on baseline conditions, as well as an adequate monitoring program in place to insure viability of all old-growth species.

Should you find this to be a workable framework for proceeding, I would encourage you to initiate a more formal process for working out the details of a Memorandum of Agreement.  As you know, the Kootenai litigation is ongoing, and thus this proposal is prospective only.  Of course, it would be possible to include ongoing litigation in any agreement, at least regarding these issues, should the parties so choose.  It is our sincere hope that you will seize upon this opportunity to work constructively towards a future for our forests that we can all be proud of.  While we are committed to doing whatever it takes to maintain species health in our forests, consistent with the will of the American people, we hope you will agree that there are more constructive avenues for resolving our differences than the federal courts.

Sincerely,

_________________

Thomas J. Woodbury

Copies:            Tom Platt, Executive Dir., TECI

                        Allen Campbell, Office of Regional Counsel