State Lands Commissioner Doug Sutherland is asking state lawmakers for $2.7
million to buy 232 acres of timberland from a company that sued the state over
the right to log in endangered owl territory.
He wants the money to settle the SDS Lumber Co. lawsuit, which otherwise he will
appeal to the state Supreme Court.
It is among the budgetary issues lawmakers will face when the special session
begins today in Olympia.
The dispute illustrates conflicts between environmental preservation rules and
private property rights.
SDS Lumber, a family-owned company and Klickitat County's largest year-round
employer, owns the parcel near Trout Lake in the county. After the state
Department of Natural Resources found a nesting pair of northern spotted owls
and limited its logging permit to no more than three trees per acre, the company
sued.
Now, if the Legislature approves, the DNR would acquire the land and avoid what
Sutherland believes is a risky Supreme Court appeal.
"I didn't think it was my responsibility to gamble with taxpayer dollars,"
Sutherland said of the proposed settlement. If DNR gets the land, it would be
managed for owls, he said.
Federal and state laws protect the habitat of the nearly extinct northern
spotted owl.
Gov. Gary Locke included money for the SDS settlement in his budget proposal in
December. Attorney General Christine Gregoire has encouraged lawmakers to
approve it. Before the regular legislative session ended April 27, the Senate
included SDS money in its version of the capital budget. But House budget
writers refused to go along.
"I think the state Supreme Court should take up the issue," said Rep. Hans
Dunshee (D-Snohomish), House Capital Budget Committee chairman. "The facts of
the case would indicate the state should win this one."
Dunshee's outlook is shared by the Washington Environmental Council, a coalition
of environmental advocacy groups that oppose the SDS settlement.
"This settlement sends a dangerous message - that the state does not have a
right to require protection for the public's wildlife - and invites further
expensive claims in the future," said Becky Kelley, the council's forest policy
analyst, in a written statement.
In May 2000, a Yakima County jury awarded SDS more than $2.2 million. SDS'
lawyer had argued that DNR's enforcement of owl protection rules denied the
company use of valuable land and that the company deserved to be paid for it.
Sutherland agreed to settle a year ago, just before the Supreme Court was
scheduled to hear the case. By that time, interest on the award had boosted the
state's obligation to more than $3 million.
If the 2003 Legislature refuses to give DNR the $2.7 million, lawyers will
proceed with the appeal.
SDS is asking lawmakers to support the appropriation to settle the lawsuit.
"Our attorneys think we're giving the state a major gift in settling," said
Jason Spadaro, SDS' president. If SDS gets the $2.7 million, the company will
buy other land it can log, he said.
Spadaro said his company's future depends on its forests, such as the 232 acres
that are the focus of the proposed settlement.
SDS, Klickitat County's only surviving sawmill, produces plywood and studs at a
sprawling Columbia River complex in Bingen, across a narrow bridge from Hood
River, Ore. The company employs 270 people, down from 325 two years ago, Spadaro
said.
About 30 percent of the logs SDS saws come from its nearly 60,000 acres of
timberland, he said.
"We're a smaller company. We're not a Weyerhaeuser. We can't absorb losses of
our timber base," Spadaro said.
That's why the company took advantage of government-arranged land swaps to
compensate landowners in parts of the Columbia River Gorge National Scenic Area
where logging is restricted.
But the government hasn't offered a similar deal for the spotted owl.
"Our company tries to do the right thing. It's only when we are forced into a
corner that we file lawsuits to protect our interests," Spadaro said.
SDS has already adapted logging plans to accommodate sensitive species such as
the bald eagle and the owl. In all, 27 owl circles, or protected areas, impinge
on various SDS lands, he said.
But the 232-acre parcel in dispute is the only property where owls have actually
nested.
Initially, SDS planned to log 3.2 million board feet of Douglas and grand fir
there.
It isn't virgin forest. Although the owl won fame as an indicator of the
declining health of the Pacific Northwest's old-growth forests, that's not the
case east of the Cascade Mountain crest where SDS is.
One of the reasons SDS planned to log the property is that many of the trees
there are infested with dwarf mistletoe, a fungus that weakens trees and deforms
branches.
Foresters may not like mistletoe, but owls do, said Joe Buchanan, a Washington
Department of Fish and Wildlife biologist who oversees spotted owl management.
The broomlike branches make appealing owl nest sites, he said.
Biologists have monitored owls on and around the SDS property since 1991. In
1992, when DNR ordered SDS to stop work, one young owl hatched from the nest.
For several years, the SDS property was among the most productive owl sites in
the eastern Cascades region, Buchanan said. But the last time biologists
confirmed a nest there was in 1996 - and no young survived. Since then, the
spotted owl population in the eastern Cascades has plummeted, Buchanan said.
Still, until biologists prove the owls are gone, logging restrictions remain, he
said.
"Just because they can't log it today, doesn't mean they can't log it in the
future," said Josh Baldi, a lobbyist for the Washington Environmental Council.
Before the proposed settlement, the case had attracted the attention of the
Pacific Legal Foundation, a property rights advocacy group, builders, loggers,
cattlemen and farmers, whose lawyers had submitted legal arguments in support of
SDS.
Also, the California and Oregon attorneys general filed a legal brief backing
DNR's right to enforce wildlife protection rules.