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Fiddler sale gets its day in court

The fate of thousands of acres of old growth in the Siskiyou — National Forest was again being fought over on Tuesday. But this time — the ancient trees were a source of contention in a federal courtroom in — Medford, rather than the banks of the Wild and Scenic Illinois River, — where this battle has seen a separate front.

Though the cast has changed from hardy locals to out-of-town — lawyers, the two groups both work to preserve the same network of old-growth — forests.

The case was Siskiyou Regional Educational Project, an — environmental organization based in the Cave Junction area, versus Linda — Goodman, a regional forester with the U.S. Forest Service. At issue were — the provisions of the Biscuit Fire Recovery Project that allow for salvage — logging in late successional, or old growth, reserves such as the Fiddler — Mountain area that have recently seen both timber harvesting and civil — disobedience.

The Siskiyou Regional Educational Project, which was represented — by lawyers from Earthjustice and the Western Environmental Law Center, — contended that the Forest Service had violated the 1994 Northwest Forest — Plan by allowing for emergency logging of old growth forest that were — affected by the 2002 Biscuit Fire.

"Your honor, we ask that the LSR and roadless area Records — of Decision be ruled invalid," Kristen Boyles, a Seattle attorney with — Earthjustice said. Her client claims the forest service did not adequately — study the effects of soil erosion on the area fisheries or the effect — it will have on wildlife.

The government, represented by the Department of Justice, — countered that the Northwest Forest Plan actually contained a provision — for emergency salvage logging.

"Everything the agency is required to do is in the [Environmental — Impact Statement], your honor," said Roger Martella, the U.S. attorney. — "[The agency's] decisions should be reaffirmed unless they are construed — to be arbitrary and capricious."

The Fiddler Mountain area, which has been the scene of — recent logging protests that have resulted in at least 40 arrests, is — a portion of the 47 million board feet of timber that the forest service — wants to cut from roadless areas and old growth reserves. It was, at one — time, protected from chainsaws by the 1994 Northwest Forest Plan. This — Clinton-era multi-jurisdictional management plan extended protection to — this area - as well as many others in Northern California, Oregon and — Washington - partially because they contained critical habitat for the — northern spotted owl.

However, after the summer of 2002, when the Biscuit Fire — burned nearly 500,000 acres in the Rogue River Siskiyou National Forests, — this designation changed.

As part of the Biscuit Fire Recovery Plan, the Forest — Service, in what lawyers described as the biggest timber sale in the lower — 48 over the last 50 years, decided to sell 19,465 acres of timber, much — of which was previously declared old growth, to help defray the massive — expense associated with fighting that fire.

The BFRP was released in June 2004. The forest service — was sued over that Record of Decision in July. And it is that litigation — that brought the various groups to court on Tuesday.

During opening remarks, Martella reminded Magistrate Judge — John P. Cooney that his job "was not to referee the case between the different — scientists." The court's role, he explained, "was to see if the agency — took a good hard look at the issue."

But Mark Fink, a Boise lawyer with Western Environmental — Law Center, said that, in fact, the judge was to rule, partly, on whether — the Forest Service addressed the impact on wildlife and soils.

"The Forest Service has not addressed the cumulative impacts — on wildlife species," he said. "And they haven't shown how they are going — to comply with their own forest policy standards." Specifically, he said, — "in regards to the 15 percent soil rule" which states that commercial — timber harvesting cannot affect more than 15 percent of the area soils. —

A similar case, Oregon Natural Resources Council v. Brong, — was found for the plaintiff last summer. In that case, Judge Ann Aiken — ruled that salvage logging was not permissible in old growth reserves — affected by fire. However, that case is not a binding precedent since — both cases were heard at the Circuit Court level.

The Forest Service's defense is based around the economic — interest of recouping some of the dollars spent on fighting forest fires — through salvage timber sales. The agency does not pretend to engage in — the timber sales for ecological benefit.

"Salvage is defined as removal," Martella said. "The Northwest — Forest Plan does not require the agency to come up with an ecological — purpose."

Judge Cooney asked that both parties submit to him briefs — on how a Wyoming District Court decision in 2003, that enjoined the roadless — rule in that state, would bear on his decision. As with Brong, Judge Cooney — could use this decision to help him decide on the merits of the case before — him, though he is not legally obliged to do so.

Staff writer can be reached at 482-3456 x — 3040 or bplain@dailytidings.com.