Section 4: The Legal Basis for Salmon Conservation Strategies in the Tillamook and Clatsop State Forests
Section 4: The Legal Basis for Salmon Conservation Strategies in the Tillamook and Clatsop State Forests
The purpose of this section is to explain both the historical background and the legal framework that governs management decisions in the Tillamook and Clatsop State Forests as they relate to the salmon recovery strategy proposed in this report.
Based upon legal and scientific research, it is our conclusion that an anchor habitat strategy offers the best opportunity for the State of Oregon to meet their salmon recovery obligations on state forest lands under state and federal law. Traditionally, the state has retained management authority for native fish species of the state. This authority is exercised in trust by the state for the benefit of its residents. This authority is well recognized and has been upheld by the courts. State law further requires that the state prevent the serious depletion of indigenous species, such as native salmon.
In the case of Pacific salmon populations native to north coast forests, serious depletion has already occurred. Scientists estimate that salmon populations currently hover at less than 5% of their historic productivity and occupy only a fraction of their historic range and distribution in coastal watersheds. This status prompted an unprecedented state initiated coho salmon recovery effort which culminated in the Oregon Plan for Salmon and Watersheds (Oregon Plan) and an executive order issued by Governor Kitzhaber in 1999. This status also resulted in the listing of Oregon coastal coho as threatened under the federal Endangered Species Act (ESA) in 1998. State and federal authorities now share responsibility for coho salmon recovery.
For salmonids native to the north coast region, current population and habitat strongholds play a disproportionately greater role in securing salmon recovery. Our studies indicate that the many of these strongholds lie within state forest land boundaries. Therefore, decisions regarding future management of these forests will directly affect the range of salmon recovery options available in this portion of the Oregon coast. While there has been some controversy associated with proposals to manage state forests for purposes other than timber production, we suggest in this proposal that such management is consistent with and required under existing law.
The Tillamook and Clatsop State Forests encompass over 800 square miles of coastal forest land. During the mid-19th century most of these lands were covered in complex, dense coastal rainforests under federal ownership. By the end of the 1800s, almost half of the lands were in private ownership and Oregon's forestry industry was growing rapidly. By 1910, 2 billion board feet were being harvested annually statewide, making Oregon the nation's fourth largest timber producer. Logging practices at that time were unregulated and their impacts were far reaching. By 1928 there were over five million acres of cut-over, unproductive lands, with an additional 125,000 acres being logged each year. Many of these lands were abandoned after harvest and ended up in county hands through tax foreclosures. An estimated 25% of all private lands in Oregon were tax delinquent by 1925. The counties, in most cases, had neither the financial resources nor the expertise to reforest and manage these lands. To complicate matters, a series of fires devastated the coastal landscape in 1933, 1939, 1945 and 1951. The multi-decade history of unregulated logging and poor land management practices left a legacy of poor roads, devastated stream systems, and burnt, cut-over hillsides statewide. Particularly hard hit were the north coast forests.
To respond to this crisis, the state legislature passed a series of laws, beginning in 1925, authorizing the state to acquire and manage these cut-over lands. State ownership provided several benefits: it stabilized land ownership, provided for the rehabilitation of productive forests, consolidated a new state forest system, and provided a stop-gap for further accumulation of cut-over lands. Legislators also recognized more intangible but important benefits such as the opportunity to develop recreation areas, control erosion, protect watersheds, protect fish and wildlife habitat, and beautify highway corridors. In exchange for transferring the lands to the state, the counties were quaranteed a percentage, as established in statute, of the revenues generated from the new state forests. This obligation to the counties remains today.
By 1952, the state had acquired over 550,000 acres of county tax foreclosed land and 89,000 acres of private land. These lands were reforested through a $25,000,000 bond authorized by the voters in 1949. Today, the majority of the these lands are known as the Tillamook and Clatsop State Forests. They are managed by the State Forester through the Oregon Department of Forestry (Department) under the supervision of the Board of Forestry (Board).
Forest management framework
Under ORS chapter 530, the Board must manage the state forest lands acquired from the counties so as to "secure the greatest permanent value to the state." The statute lists a variety of permissible management purposes including selling forest products "***fish and wildlife environment, landscape effect, protection against floods and erosion, recreation, and protection of water supplies." ORS 530.050. This wide array of management purposes has been incorporated into statutes governing the acquisition and management of state forest lands since 1925. In choosing management purposes, the Board must find that the proposed use is "not detrimental to the best interest of the state." ORS 530.050.
Recently, the Board adopted administrative rules that clarify its statutory duties and establish guidelines for future state forest management planning. OAR 629 Division 35. In particular, the new rules define the statutory term "greatest permanent value" to mean "healthy, productive, and sustainable forest ecosystems that over time and across the landscape provide a full range of social, economic, and environmental benefits to the people of Oregon." OAR 629-035-0020(1). To achieve these benefits, the rules identify specific management outcomes such as providing "sustainable timber harvest and revenues to the state, counties, and local taxing districts," and the use of specific management practices such as those that will result in "a high probability of maintaining and restoring properly functioning aquatic habitats for salmonids, and other native fish and aquatic life." The rules do not, however, direct the Department in how to achieve these objectives, but rather leave this to the State Forester's discretion.
The rules recognize that there is no legal requirement to maximize timber production and revenue generation on every acre of state forest lands. This finding of the Board is consistent with previous attorney general opinions and an independent legal analysis commissioned by the Board on this matter. (Rice and Souder, 1997). It is fully within the Board's discretion to manage some areas, such as the salmon anchor habitats proposed in this report, primarily for fish and wildlife productivity. This authority also extends to other non-timber production uses such as recreation, municipal water supply protection, or watershed protection. These uses are consistent with the statutes authorizing the creation and rehabilitation of the state forest system over the last half century.
In adopting the management objective of "maintaining and restoring properly functioning aquatic habitats for salmonids and other native fish and aquatic life" the Board incorporated key language from the Oregon Plan and from the memorandum of agreement (MOA) between the State of Oregon and the federal National Marine Fisheries Service (NMFS) regarding coastal coho salmon recovery. (State of Oregon, 1997; State of Oregon, 1997(b)). This language was also adopted into Governor Kitzhaber's Executive Order concerning the Oregon Plan in 1999. (State of Oregon, 1999). The Board's adoption of a key Oregon Plan standard reconfirmed the State's commitment to play a role in recovery of coastal salmonids on state forest lands.
The Board of Forestry is currently finalizing the first forest management plan to be adopted under the new administrative rules. This plan will provide general guidance and policy direction to the State Forester for achieving the management goals and objectives outlined in the rule. Actual implementation of the plan will occur through district implementation and operational plans. The salmon anchor habitat proposal outlined in this report is consistent with the objective outlined in the Oregon Plan and the rules of maintaining and restoring properly functioning aquatic habitat for salmonids. This proposal will be submitted to the Board for consideration during finalization of the forest management plan for the Northwest State Forests to be adopted in early 2001.
The federal Endangered Species Act
In August of 1998, the federal National Marine Fisheries Service listed Oregon coastal coho salmon as threatened under the federal Endangered Species Act. (63 FR 42587). This listing decision indicated that NMFS, in performing a status review of the species, determined that Oregon coastal coho salmon were in jeopardy of becoming endangered within the foreseeable future. No immediate protections or regulatory prohibitions are applied to a threatened species. The NMFS must first make a finding that "protective regulations are necessary and advisable to provide for the conservation of the species" under section 4(d) of the ESA. (16 U.S.C. § 1533(1). In June of 2000, the NMFS issued protective regulations, under section 4(d), for seven northwest salmon population groups, including Oregon coastal coho salmon. (65 FR 42422). These protective regulations will become effective January 8, 2001.
Once in effect, these regulations prohibit the take or harming of listed species without a permit issued by NMFS. The term "take" generally means to "harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect a protected species; or to attempt any of these." (16 U.S.C. § 1532(19)). The term "harm" means to modify or degrade habitat in such a way that it kills or injures a species by "impairing its ability to breed, spawn, rear, migrate, feed or find shelter." (64 FR 60727) NMFS has identified different types of activities that have a high risk of taking or harming listed salmon such as unscreened water diversions, passage barriers, and activities within or adjacent to critical spawning or rearing grounds. The ESA authorizes enforcement by NMFS and by third parties. Civil penalties, criminal fines, and injunctive relief are provided for in statute. The ESA, under section 10, authorizes NMFS to grant a permit for the taking or harming of listed species when it is incidental to an otherwise lawful activity. These permits are known as "incidental take permits" (ITPs) and require the applicant to submit a habitat conservation plan (HCP). The HCP must identify, among other things, the impacts that will likely result from taking and the steps that the applicant will take to minimize and mitigate harm. In order to approve an HCP, the NMFS must ensure that the authorized taking of the species will not "appreciably reduce the likelihood of the survival and recovery of the species in the wild." (50 FR 39690). Once an HCP is approved by NMFS, the applicant is protected from ESA enforcement action for the period specified in the permit, so long as conditions of the permit are satisfied.
The Board of Forestry is presently considering applying for an ITP for listed species that inhabit the north and south west state forests. This ITP would include the Tillamook and Clatsop State Forests and would incorporate federally listed coastal coho salmon. The Department of Forestry has been working with the NMFS to develop the salmon conservation components of the HCP. We anticipate that there will be both aquatic and riparian strategies as well as anchor habitat strategies incorporated into the final HCP. The Board will determine sometime in early 2001 whether or not to pursue an ITP. If the Board submits an application for an ITP there will be a federal public comment period on the HCP sometime next year. We will submit our proposal for consideration during this comment period.
Regardless of whether or not the Board pursues an ITP, it will be unlawful for the Board or Department to authorize or carry out activities, even though otherwise lawful, that result in the taking or harming of listed Oregon coastal coho salmon after January 7, 2001. It will be incumbent upon the Board and the Department, if they are to maintain control over state forest management activities, to implement adequate management strategies to avoid an enforceable take of listed coho salmon. At this time, the Department has not yet developed these strategies, increasing potential future state liability under the ESA. The proposal described in this report is intended to provide a management strategy that will reduce state liability for take of salmon during the course of carrying out other forest management activities.
Over a half century ago, the State of Oregon undertook the ambitious task of acquiring devastated cut-over lands for the purpose of creating a new state forest system that would exemplify good stewardship in forestry. Through the collaborative work of many, these lands were reforested and the forest system has been slowly recovering. While these lands now have the potential of providing large returns on the public's investment in the form of timber and associated revenues, they also provide some of the last and best places for salmon and other wildlife remaining in the north coast of Oregon.
The State of Oregon has recently established, through the Oregon Plan, a statewide priority to recover to sustainable, harvestable levels all at-risk stocks of salmonids statewide. This goal, in many ways is as ambitious as those set by foresters faced with the logging crisis of the early 1900s. The recovery of Oregon coastal salmon has also become a national priority and concern as a result of the listing of coastal coho under the federal ESA. While salmon recovery in the north coast basin will not occur solely as a result of management practices on state forests alone, these forests provide the cornerstone of any successful strategy. Oregonians have the opportunity to embrace salmon recovery as a critical management purpose of state forest lands in much the same way that they embraced the state's forest recovery objectives in the last century. We hope that our proposal will serve to liven and inform the discussion and advance meaningful salmon recovery strategies within the Tillamook and Clatsop State Forests.
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Ecotrust, Oregon Trout, and the Wild Salmon Center would like to acknowledge the assistance and input from the following individuals in the development of the anchor habitat proposal presented in this document. Our apologies to those we may have omitted. Errors in this document are solely the responsibility of the authors.
Bettina Von Hagen
Office support staff @ OT and WSC