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Idaho Judge Rejects Lawsuit Filed by Plum Creek over HCP by CBB Staff Columbia Basin Bulletin - April 4, 2003

An Idaho federal judge on Tuesday ruled against Plum Creek Timber by dismissing a lawsuit filed by the company against conservationists who questioned a wide-ranging three-state logging plan.

The company had filed the lawsuit seeking a declaratory judgment as to the validity of the habitat conservation plan. The lawsuit came in response to a 60-day notice of intent to under the Endangered Species Act filed in June 2002 by Trout Unlimited and Pacific Rivers Council challenging federal approval of the plan. The U.S. Fish and Wildlife Service and National Marine Fisheries Service approved the plan, which included a "30-year promise that Plum Creek's actions would comply with the Endangered Species Act," according to the conservation groups. The plan comes with a "take" permit that is intended to limit impacts to listed salmon and resident fish species.

The federal government signed off on the plan in November 2000, allowing Plum Creek to log in ways the conservation groups felt would damage habitat for bull trout, salmon, and other aquatic species.

Earthjustice attorney Kristen Boyles said that, after the filing of the 60-day notice, the conservation groups had launched into settlement discussions with the federal agencies and Plum Creek with the intent of improving the document. But instead they soon found themselves being sued in federal court.

The Plum Creek lawsuit was filed last August in Idaho's U.S. District Court. Judge Edward J. Lodge was asked to find the logging plan valid and to force the conservationists to pay Plum Creek's attorneys' fees for bringing the lawsuit.

Ruling on the conservationists' motion to dismiss, Judge Lodge rejected Plum Creek's lawsuit, noting that Plum Creek could not invoke the power of a federal court to insulate its actions. The decision also says that federal law explicitly allows citizens to participate in the implementation and enforcement of the Endangered Species Act.

Judge Lodge wrote ".allowing Plum Creek to proceed with this action seems to run contrary to Congress' intent in enacting the ESA citizen suit provisions and APA (Administrative Procedures Act) which require the filing of a 60-day notice of intent to sue."

"Trout Unlimited and the Pacific (Rivers Council) are correct that this case presents a 'race to the courthouse' situation since they are precluded from filing suit until they have complied with the 60-day notice requirement, while Plum Creek need not wait," Lodge wrote. "Congress could not have intended for the notice requirement to suppress one parties' ability to file suit while allowing the opposing party to initiate a suit with no limitations.

"Plum Creek tried to pull a fast one and intimidate citizens who are just trying to bring a little balance to a massive logging plan stretching over three states," said Boyles. "Plum Creek's strategy backfired." Earthjustice represented Trout Unlimited, Pacific Rivers Council, and Montana Council of Trout Unlimited in defending against the lawsuit.

Boyles said Wednesday that her clients were undecided now about how to proceed. Among the options are renewed discussions with Plum Creek and the agencies on how aquatic habitat elements of the plan can be improved, or the filing of a lawsuit in an attempt to bring those changes.

"We want to see if Plum Creek and the agencies are willing to discuss what is really wrong with this HCP," Boyles said. Plum Creek officials said they'll continue implementing the plan, as is.

"We are disappointed in the judge's decision, but it does not change the validity of the NFHCP or how we go about our day to day activities," said Plum Creek spokesman Robin Wood. "The NFHCP is an excellent example of resolving complex environmental issues with science-based solutions, and we are confident that it will withstand any legal challenge."

The HCP covers the 1.6 million acres of Plum Creek land in Montana, Idaho, and Washington owns and manages in Idaho, Montana and eastern Washington. About five years ago, Plum Creek began developing a land management plan called the Native Fish Habitat Conservation Plan, which established habitat conservation on the lands.

The conservation group says the intent of the plans is to address the needs of bull trout, salmon, and steelhead -- all protected under the Endangered Species Act. The say instead, the 30-year plan would allow the company to destroy critical habitat in the normal course of logging.

Plum Creek in its request for declaratory relief as to the HCP's legality "asserts it is entitled to a determination that the NFHCP was properly approved in light of the large amounts of money expended in implementing the plan and in order to eliminate the risk and uncertainty raised by the defendants' notice of intent to sue," according to Lodge's April 1 order.

In his ruling, Judge Lodge also noted that "Trout Unlimited and Pacific [Rivers] (the two conservation groups targeted) attempted to proceed without litigation. The fact that Plum Creek has initiated this litigation in the face of such efforts runs contrary to the interests of justice."

"Plum Creek has no right to drive native species to extinction, and it tried to use the court to prevent citizens from protecting our fish," said Mary Scurlock of Pacific Rivers Council.

Plum Creek Timber Company, Inc. is one of the largest private timberland owners in the United States, with 8 million acres located in every significant timber region of the country.