November/December 1999
Wrong Side of the Law
By Keith Easthouse
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On May 15, 1997, wildlife biologist Laura Finley sat down at her desk and batted off an e-mail to her superiors at the Grants Pass, Oregon, office of the Bureau of Land Management.

The window of opportunity to survey for an obscure amphibian known as the Del Norte salamander had closed. It simply wasn’t consistently damp and chilly enough anymore for the creatures to venture out from their subterranean lairs to the surface, where they could be seen. It would not be possible to survey for them again until the rains resumed in the fall.

This bit of news was far from innocuous. If the surveys weren’t done by spring, a timber sale known as Savage Green couldn’t go forward. That, in turn, meant that the BLM’s Grants Pass Resource Area would fail to meet its timber volume quota for the 1997 fiscal year. In a traditionally pro-logging agency like the BLM, coming up short on your PSQ (probable sale quantity) is not the way to get ahead.

But Finley knew that if the surveys were done now, no salamanders would be found—and that not finding them would give the green light to logging in an area that might otherwise be off-limits. She also knew that looking for the salamander at the wrong time would violate a detailed set of research protocols that govern when and how to look for the critter.

Within days, Finley’s e-mail led to a confrontation with Bob Korfhage, boss of the Grants Pass office. Standing above her desk, Korfhage insisted she do the surveys immediately. He argued that the survey season for Del Nortes hadn’t passed and that at certain times of day—such as dawn—it would still be cool and wet enough to allow the salamander to crawl around on the forest floor.

Finley tried to explain that it had to be wet most of the time for the salamander to emerge from its underground hiding place deep in rocky soil. “The first layer underneath the rock needs to be damp, and it wasn’t,” Finley recalled. “You can [have the right climate conditions] in a thunderstorm in August and they won’t come up.”

Korfhage said the dispute boiled down to “a difference of opinion over a date. The protocols said surveys shouldn’t be done after mid-May. Laura’s interpretation was that meant May 15. I thought it was more flexible than that.”

The tiff at Finley’s desk ended with Korfhage directly ordering that the surveys be done. And he followed up that verbal directive with a written one, transmitted to Finley at his instruction by a subordinate. “This is the direction you will proceed with until further notice,” thee-mail said. In addition, Korfhage told Finley that the surveys should be done even if salamanders could not be seen in places where biologists knew they lived. Finley was shocked; she knew that if the salamanders could not be seen at these known reference sites, it was impossible that they would be found elsewhere.

Nonetheless, Finley obeyed. The surveys were done. No salamanders were found. And the area was logged.

“I felt like it was one of those things where my job was on the line,” Finley recalled. “I felt like if I didn’t do it, it would be insubordination.”

More than two years after Finley lost her battle of wills with Korfhage, she received a vindication of sorts.

This past August, U.S. District Judge William Dwyer of Seattle slapped the BLM and its cousin agency, the U.S. Forest Service, with a court order halting thirty-four timber sales on federal lands in western Washington, western Oregon and Northern California. Dwyer determined that the agencies had violated the terms of President Bill Clinton’s five-year-old Northwest Forest Plan by failing to properly look for and protect seventy-seven species of plants and animals dependent on the rain-drenched conifer forests on the west slope of the Cascade Range. These included a variety of humble creatures like slugs, snails, rodents, lichens and, of course, Finley’s Del Norte salamander.

Were Finley’s case an isolated one, it wouldn’t be of much significance. But based on interviews and government documents, Forest Magazine has uncovered widespread evidence indicating that Finley’s experience is part of a larger pattern in which federal scientists have been prevented by their superiors from properly carrying out the wildlife surveys mandated by the Clinton plan. There is also clear, documented evidence that middle-level managers and top agency officials weakened, delayed and in some cases simply ignored these “survey and manage” requirements. As a result, a key part of the Clinton plan is in a measure of disarray and the landmark plan itself—designed to both protect and allow cutting of old-growth—may be imperiled.

(As Forest Magazine went to press, Congress was considering a proposal that would give the government more latitude in carrying out the survey and manage requirements. Meanwhile, in a ruling that did not attract nearly as much attention as the Dwyer order, a federal judge declared at the end of September that a score of timber sales in southern Oregon broke another key aspect of the Clinton plan—the “aquatic conservation strategy,” designed to protect fish species.)

There is some truth to the agencies’ claim that there is insufficient money and staffing to adequately carry out the survey and manage requirements, which are indeed complex and numerous. It is also true that some species—such as aquatic mollusks—are extremely tiny and difficult to identify, and that other organisms, such as certain species of fungi that pop up irregularly and only under highly specific climatic conditions, can be found only every few years.

But wildlife biologists inside and outside the agencies, as well as environmentalists, say feasibility is not the issue. What has primarily hampered the survey and manage effort, they say, is stubborn resistance from timber managers who apparently fear that the more critters biologists find, the fewer trees there will be available to cut.

“At every turn in the road there has been huge amounts of foot-dragging,” said a prominent survey and manage biologist who, like many of the scientists interviewed by Forest Magazine, requested anonymity. The scientists said they feared that their jobs could be in jeopardy if they publicly criticized the survey and manage effort.

The irony, according to this scientist, is that had the agencies started searching for and protecting the habitat of the seventy-seven species five years ago, the job would now be largely completed and the logging program would not be tied up in court. “We would have protected enough habitat that we wouldn’t have needed to [protect] some of these species anymore,” the scientist said.

Although there is plenty of evidence that the survey and manage effort has been derailed from within, part of the blame for the program’s failure lies with the Clinton plan itself and the uneasy compromise it strikes between protecting old-growth species while at the same time allowing continued logging of old growth.

These dual goals have created a situation ripe for conflict between timber managers trying to provide a steady supply of logs and wildlife biologists seeking to preserve biodiversity in old-growth forests. “We’ve got two masters to follow,” said Cheryl McCaffrey, the survey and manage coordinator for the BLM. “It isn’t always easy.”

The man who is widely considered the driving force behind the two agencies’ handling of the survey and manage requirements is Bob Devlin, deputy regional forester for the Forest Service’s Pacific Northwest Region. Devlin thinks that under the Clinton plan plenty of habitat has already been set aside for wildlife.

“It’s pretty hard for me to believe that we don’t have enough of that ground protected,” Devlin said recently from his Portland, Oregon, office.

What Devlin and most everyone else is primarily concerned about are the 4 million acres of “matrix” lands—so called because they are in between areas where logging is restricted, such as 7.4 million acres of “late-successional reserves.” Accounting for 16 percent of the land base, the matrix is where most of the logging under the plan takes place. Because the plan requires that surveys for the seventy-seven species at issue in the Dwyer ruling be conducted before logging and other “ground disturbing” activities take place, it’s also where most of the wildlife surveys were supposed to have been conducted.

It has become clear that given the numerous logging restrictions elsewhere, the agencies’ prime objective on the matrix lands has been to maximize the cut. This, more than anything else, explains the fierce resistance to the survey and manage requirements.

A desire to log more of the matrix would appear to be the main reason behind two modifications of the Clinton plan made by the Forest Service and the BLM in November 1996. In two memos issued three days apart, the regional office of the Forest Service and the BLM’s regional headquarters in Portland gave a shot in the arm to both agencies’ timber programs by dramatically scaling back the survey effort.

The first memo, issued November 1, freed the agencies from a requirement to conduct wildlife surveys on all timber sales in which cutting would take place after September 1998. The second memo, issued November 4, freed the agencies from the requirement to survey throughout the range of the red tree vole, a rodent that is a favorite food source of the northern spotted owl. Instead, agency scientists needed to survey only in areas possessing special habitat conditions. That effectively reduced the survey region by almost 90 percent.

To fully understand how radical a departure these actions were from the original plan, it is necessary to understand a bit more about the plan itself.

The plan’s patchwork of reserves and habitat corridors was designed primarily for the northern spotted owl, which, scientists believe, can coexist with logging as long as it has some old-growth forest to fly to in the event that a forest stand in which it is living is cut. More than half of the 1,080 species associated with old-growth forests are also mobile and are expected to do well—or at least not disappear—under the forest plan.

For 404 of the species, however, the plan’s architects decided that more protection was needed because they weren’t as mobile. Seventy-seven of these organisms were deemed particularly at risk, including the red tree vole, which lives in treetops and eats only Douglas-fir needles. The plan promised that government scientists would survey old-growth stands likely to hold these species prior to any harvest that occurred after the September 1998 deadline.

The four-year delay in the restrictions was designed to give scientists time to figure out where the protected plants and animals were, how to identify them and how much habitat needed to be protected around the places where they were found.

But the nature of the deadline changed with the November 1 memo. Land managers at the Forest Service and the BLM no longer had to make sure surveys were being done for sales in which cutting took place after September 1998. Instead, they just needed to make sure that such sales received formal authorization before then. If that was done, the sales could proceed without surveys.

This memo explains why, just before the wildlife survey rules kicked in last fall, the Forest Service and the BLM approved a series of timber sales on which surveys either had not been completed or had not been done at all.

It was this memo, and the one pertaining to red tree vole surveys, that led thirteen environmental groups in California, Oregon and Washington, to file suit against the Forest Service and the BLM, accusing the two agencies of violating the Northwest Forest Plan.

And it was primarily these memos that led Judge Dwyer to issue the stinging rebuke that was quoted by newspapers across the country: “These actions by the federal defendants are arbitrary and contrary to the plain language of the [Northwest Forest Plan].”

When asked after the Dwyer ruling whether the two agencies had made any mistakes in handling the survey and manage requirements, Devlin said he could think of none. The only error that was made, he said, was in altering the Clinton plan “without first seeking public input” in those decisions.

That, so far, is the only public admission of guilt issued by a high-ranking regional official in either agency.

Agriculture Secretary Dan Glickman said the Forest Service and the BLM have made a good-faith effort to seek out and protect the obscure plants and animals covered by the survey and manage requirements. “The judge’s ruling is not in any way, shape or form a condemnation of our efforts to comply with [the plan],” Glickman told a Seattle newspaper in September.

And former Forest Service chief Jack Ward Thomas, considered the prime architect of the Clinton plan, said publicly he always had doubts about the workability of the survey and manage requirements.

The current chief, Mike Dombeck, who is trying to push the Forest Service in the direction of greater environmental sensitivity, has kept a low profile. However, in a recent interview, Dombeck spokesman Chris Wood did not deny that the Dwyer ruling was a major setback. “We’ve fallen down. Now we need to get back up and move on,” Wood said.

Wood also acknowledged that the attempt by Northwest regional officials to modify the survey and manage requirements should have been watched more closely by officials in the agency’s Washington headquarters. “There probably was” a failure of oversight on the part of the Washington office, Wood said. But Wood stopped short of criticizing the officials who were responsible for weakening the survey and manage requirements. “I don’t know that it was so much a sense of ŒLet’s undermine the plan’ as it was a sense of ŒYikes! How do we do this?’”

Devlin pointed out that the changes made to the plan by the Forest Service and the BLM were done not unilaterally but with the full knowledge and approval of the heads of the various agencies who serve on the Regional Interagency Executive Committee. Among those agencies are the U.S. Fish and Wildlife Service and the Environmental Protection Agency.

That no one on the committee raised a concern about the changes is particularly distressing, said Doug Heiken of the Oregon Natural Resources Council. “The administration brags about how the forest plan got the agencies talking and working together for a common goal. But instead, that’s just gotten these agencies to buy into getting the cut out,” Heiken said.

Following Dwyer’s ruling, Anne Badgley, regional director of Fish and Wildlife, and Chuck Clarke, regional administrator of the EPA, wrote an editorial for the Seattle Post-Intelligencer that called the Clinton plan a success and barely mentioned the troubles with the survey effort.

While top-level officials with the Forest Service and the BLM were busy weakening the survey and manage requirements, field-level biologists within the two agencies were running into a variety of roadblocks in carrying out the surveys. Based on extensive interviews and documents, Forest Magazine has found the following irregularities in the survey and manage program:

Scientists have been told to stop surveying in areas slated for logging.

The clearest evidence of this is a memo written by BLM wildlife biologist Nancy Duncan, who then and now works in the agency’s Roseburg office. Duncan is currently the lead scientist within both agencies for finding and protecting mollusks (slugs and snails). In January 1997, Duncan wrote a one-page report to a superior in which she said that during three days of surveying the previous November, she had found the blue-grey tail dropper—a slug—at three locations slated for logging. Despite this, she wrote, “no further surveys will be done in any [timber] sales with completed [environmental reviews] as per your instructions of November 27, 1996.”

Whether it’s coincidental that the instructions came down less than a month after the issuance of the two memos from headquarters is unclear.

When contacted by telephone, Duncan declined to comment on the memo, other than to say that the order she received to not survey applied to as many as fifteen timber sales. She also said that in the three places where she did find specimens, no-logging zones roughly two acres in size were created.

The BLM officer who Duncan said halted the surveys did not return a telephone call seeking comment.

It is the belief of Francis Eatherington, a Roseburg, Oregon­based environmentalist, that the buffer zones upset Duncan’s superiors. “They were seeing doughnut holes being punched in their clear-cut units and they got pissed,” she said.

Managers have ignored warnings from their own biologists to not log in habitat that has been surveyed and is known to contain sensitive species.

A dramatic example of this occurred with the Middle Thompson timber sale in the Ashland Resource Area of the BLM in southern Oregon. As part of the sale, BLM managers in 1996 proposed to log seventy acres within habitat occupied by the Siskiyou Mountain salamander, one of the seventy-seven survey and manage species. The agency said the logging was needed to create fuelbreaks, which would slow the advance of wildfires.

In no fewer than four memos from two agency biologists, management was warned that the fuelbreaks would violate protection standards for the salamander by allowing too much logging in its habitat.

“We run a very real risk of substantially reducing the salamander populations within the fuelbreak if the project is implemented,” wrote wildlife biologist Matt Broyles in an October 3, 1996, memo to Ashland Area Manager Rich Drehobl.

David Clayton of the Rogue River National Forest, a recognized expert on the Siskiyou Mountain salamander, weighed in on the debate on January 15, 1997, when he wrote in an e-mail that “any activity that proposes to remove overstory trees within occupied habitat is specifically not allowed under the current direction” in the Clinton plan. In another part of the e-mail, Clayton wrote, “I think you can count on losing most or all of this population if you harvest within habitat.”

Despite these admonitions, the logging project was put up for sale the next month. Drehobl was not reached for comment. But another manager, Steve Armitage, said the biologists’ objections were overridden by a desire to reduce the fire danger in the heavily wooded area.

“In 1987, there was a wildfire that wiped out a lot of salamander habitat. So walking away from it, not trying to protect it, basically doing nothing, just didn’t seem right. It’s primed to burn.”

Tom Demitre, an Ashland, Oregon­based environmentalist, said that the logging of the fuelbreaks was added to the Middle Thompson sale after an earlier version failed to sell.

“They were just trying to add volume to make it more appealing to timber companies,” Demitre said.

The fuelbreaks would have been logged this past summer were it not for an eleventh-hour lawsuit filed by Demitre’s Headwaters group and other environmental organizations in southern Oregon. The groups accused the BLM of failing to adequately disclose the concerns of their own biologists in a report on the potential environmental effects of the sale. They also accused the agency of failing to adhere to the Northwest Forest Plan.

In a settlement reached in September, the BLM agreed to delay the project for a year and conduct a detailed study of the potential impact that logging might have on the salamanders.

The research protocols, which determine where and how to look for a species, have been weakened to make way for logging.

The most egregious example of this took place in southern Washington’s Gifford Pinchot National Forest, one of the most heavily logged areas in the Pacific Northwest. The creature at issue was once again a salamander, this time a species called the Larch Mountain salamander.

According to sources familiar with the situation, the protocols for looking for the salamanders were not well received by Gifford Pinchot officials because they called for too much habitat to be surveyed.

Consequently, Gifford Pinchot officials—without consulting the scientists who drew up the original protocols—revised them. One alteration was to not require surveys in habitat east of the crest of the Cascades that was greater than ten miles north of the Columbia River Gorge.

“The problem with that was that we were finding Larch Mountain salamanders as far as ninety miles north” of the gorge, said Charlie Crisafulli, a research ecologist with the Forest Service’s Pacific Northwest Research Station in Olympia, Washington.

Forest officials also decided to restrict the surveys to areas where surface rock, or talus, was visible. Crisafulli, however, said that “the species is found in many areas that lack surface rock, but where underneath a thin veneer of mosses and soil is a rocky substrate. The animals can be quite abundant there.”

The sweeping nature of the revisions is made clear by a February 10, 1998, letter written by Deanna Olsen, head of the scientific team that drew up the original protocols. Olsen said that as much as 㦷 percent of currently identified habitat” would be unsurveyed under the modifications. She warned that the modifications could leave the agency vulnerable to legal challenges to timber sales. She also said the modifications were “incongruent with the spirit and intent of the Northwest Forest Plan.”

A letter three weeks earlier from Nancy Gloman, acting director of the Western Washington Office of the U.S. Fish and Wildlife Service, to Ted Stubblefield, former supervisor of the Gifford Pinchot, also was critical. Gloman complained that “the modifications were developed without the participation of recognized amphibian experts.” She also expressed concern that Gifford Pinchot officials had failed to abide by an agreement to forward any proposed modifications to the Regional Ecosystem Office, the interagency body that provides scientific and technical expertise under the Clinton forest plan.

Raymond Scharpf, the Gifford Pinchot official responsible for limiting the scope of the salamander surveys, said in a recent interview that the scientists lacked authority to dictate which areas should be inspected. That authority, he said, resides with officials in the agency’s Northwest headquarters in Portland. “I told them, ŒIf you want us to change, have the regional office tell us.’ Just because the scientists say one thing, that’s not necessarily direction.”

Following the storm of protest, officials higher in the agency advised Gifford Pinchot officials to rethink what they were doing. Currently, according to Claire Lavendel, the new Gifford Pinchot supervisor, the forest is surveying under the original protocols.

Dave Werntz of the Northwest Ecosystem Alliance, based in Bellingham, Washington, said the episode was an example of how little the Forest Service has changed despite the Clinton plan. “The Northwest Forest Plan was expected to usher in a new era of management. The behavior of the Gifford Pinchot in undermining scientifically defensible management indicates that timber is still king on our public lands,” Werntz said.

The management recommendations, which delineate how to protect species once they have been found, have in some cases been hung up in the two agencies’ elaborate review process for more than a year without being approved.

This is the case with terrestrial mollusks. Scientists from the two agencies began developing management recommendations for twenty-seven species of mollusks in late 1996. To date, the recommendations have not been approved.

The significance of this is that without official guidance for how to protect the species from logging and other activities, de facto authority resides with the various Forest Service district rangers and the BLM field managers—few of whom have any expertise with mollusks. “Until the management recommendations are approved and released, [the managers] can do what they want,” one source said.

This has played out in different ways. Some national forests and BLM areas “aren’t managing for [mollusks] at all,” the source said; others are protecting them “more than they really need.”

Some of the scientists who once played prominent roles in the survey and manage effort have left.

One is Ted Weasma, an original member of the mollusk team who now works for the National Park Service in Barstow, California. Weasma said he left in part because of frustration with the delay in the approval of the mollusk management recommendations.

Joseph Furnish, a BLM employee who headed up the mollusk effort for both agencies, now works for the Forest Service in the San Francisco Bay Area. Furnish declined to criticize his former employer or to make any strong criticisms of the survey and manage effort. He did express dissatisfaction, however, with the BLM’s refusal to make him a permanent employee.

“I left for better job security,” Furnish said.

Finley, the biologist who was forced to look for salamanders when they were underground, has also moved on. She now works for the Fish and Wildlife Service at the agency’s Yreka, California, office.

She does not think that the Forest Service and the BLM, even after Dwyer’s ruling, are likely to start doing a good job looking for and protecting old-growth species.

“Agency managers are not rewarded for how many salamanders they find,” Finley said. “It’s still [about] whether they meet their timber harvests. That’s still the agency culture.”

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