by Tyler Brown
The Washington State Supreme Court unanimously voted at the end of July to reaffirm a lower court ruling backing the Department of Natural Resources’ right to regulate timber sales for the public good while providing lawmakers more discretion on how state forests are managed.
Conservation Northwest, the environmental group that brought the legal action, called the decision a major victory in a 24-year fight for conservation and climate activism.
They said it widens the opportunity for the DNR to prioritize conservation and mitigate climate change, wildfires and erosion while still raising revenue similar to what timber companies would pay to harvest the lumber.
On July 21, the court ruled that the state is not constitutionally obligated to allow the harvesting of trees from state forests in order to maximize revenue. It also has a constitutional mandate to serve “all the people” of Washington and the public interest when managing state lands.
Conservation Northwest v. Franz
This decision, Conservation Northwest v. Franz, alters the modern interpretation that legal precedent requires that land entrusted to the state is to be used to maximize revenue and support public programs, such as schools and universities.
The decision says that the state does not have these obligations and gives more discretion to lawmakers when interpreting the state constitution’s policy on managing forests entrusted to the state.
Conservation Northwest v. Franz reaffirms the Omnibus Enabling Act of 1889, which was made “for the support of common schools” and other state institutions and that the state constitution requires lands be “held in trust for all the people.” Timber harvests generated the revenue to support schools, universities, and other public services that benefit all Washingtonians.
Conservation Northwest challenged DNR’s land management strategies on the grounds that they violate the mandate under Washington Constitution Article XVI, stating that all the public lands granted to the state are held in trust for all the people.
Conservation Northwest argued that DNR’s strategies prioritize maximizing revenue from timber harvests and undercut its obligation to manage granted lands for the broader public interest, which would be better served by prioritizing conservation and efforts to mitigate climate change, wildfires and land erosion.
Justice G. Helen Whitener wrote in the majority opinion that the use of revenue generated by logging public lands may be constitutionally protected, but it’s not the only way to manage public land for the benefit of “all people,” as the state constitution states.
Mitch Friedman, executive director and founder of Conservation Northwest in 1988, said in an interview that the decision is an important victory. [First based in Bellingham, CNW now has a main office in Seattle.]
Struggling Since Late 1990s
Friedman said this struggle has been going on since the late ‘90s when the DNR had logged most of its Bessie timber until the only roadless area left was in northern central Washington, an area called the Loomis Forest, a key habitat for lynx.
“The timber there was low quality, and wasn’t a priority for the DNR to log,” Friedman said. “Then they were sued by Okanogan County forcing them to log using the trust mandate, saying ‘you have an undivided loyalty to maximize revenue for trusts, and you have all these forests that no one is using. You better get busy.’ They didn’t lose that lawsuit, but they became concerned about it.”
Friedman said the DNR’s decision to clearcut the area led CNW to sue, alleging that it would harm native grizzly bears. In 1998, the group was given the option to settle the lawsuit, giving them 15 months to gather enough money to compensate the trusts as though they had logged the Loomis Forest, allowing for a modification of the deed.
“And we succeeded,” Friedman said. “We ended up having to pay $16.5 million, this little group in Bellingham raised that much money in 15 months, and nobody thought we could. It got a lot of attention, and we won!”
Friedman said donors asked why they needed to pay for public land that they already owned.
Fix the System Later
“My answer then was ‘let’s save the Loomis now and fix the system later,’” Friedman said. “After we succeeded, it became a matter of developing a legal theory. So, we contracted a historian and legal expert to write an article for a law review on the constitutional language and what it meant and what the fathers intended. And that became the basis for our view that the state was misinterpreting the language of ‘for all the people.’”
It became clear to CNW this was an issue that could only be decided by the Washington Supreme Court, thus leading to the Lake Whatcom conflict.
DNR managed about 15,000 acres around the lake, much of which has unstable steep slopes with a history of landslides, considered hazardous to the public’s watershed supply. CNW convinced the WA state Legislature to pass a bill directing the DNR to come up with a logging plan to protect drinking water in Lake Whatcom’s watershed.
In response, the timber industry sued.
“They said, that’s all well and good but DNR’s mandate is to maximize revenue, no matter how bad it is for community drinking water,” Friedman said. “And we intervened in that lawsuit, and we fully intended to take that up to the supreme court.”
But before CNW could take it to court, Dan Pike, a newly elected mayor of Bellingham, stepped in and settled with the timber industry, according to Friedman.
Friedman said CNW made multiple attempts to take DNR and the timber industry to court to escalate the public-good issue to the state supreme court, but was unsuccessful.
Lawsuit Filed in 2020
In January 2020, CNW filed suit against the DNR using Wyatt Golding with the Ziontz Chestnut law firm in Seattle along with Peter Goldman with the Washington Forest Law Center. They challenged two resolutions approved by the Board of Natural Resources in December 2019.
The issue was related to the conservation of marbled murrelet habitat as well as timber harvests on state and forest board lands. The marbled murrelet is a small, squat seabird with short neck and tail, giving the body a blocky shape.
The Marbled Murrelet Long-Term Conservation Strategy (Marbled Murrelet Strategy), replaced an interim conservation plan in DNR’s 1997 habitat conservation plan. It detailed a long-term strategy to minimize and mitigate “any incidental take” of marbled murrelet habitat through DNR’s other activities, including timber harvests, incompliance with the Endangered Species Act.
Conservation Northwest alleged that the Marbled Murrelet Strategy and the “harvest calculation” violated DNR’s trust mandate under Article XVI to hold “all the public lands granted to the state … in trust for all the people.”
For 50 years, until the decision on July 21, the court ruling of County of Skamania v. State set a precedent that the DNR is obligated as a trustee to manage state lands for the beneficiaries enumerated in the Omnibus Enabling Act. During the recession of the 1970s, the timber industry was “stock heavy,” and promised to pay much more than the timber was worth.
DNR and the state let the companies “off the hook.” Skamania, reliant on timber sales, sued the state, and the timber industry was legally obligated to generate revenue.
“We thought that was misconstrued,” Friedman said.
The opportunity to bring this decision to the state supreme court was not lost on CNW, and in turn filed a writ of certiorari for a declaratory judgment.
Friedman asserts the case ruled in favor of Conservation Northwest and did not decide in favor of the state, saying the ruling decided the state has discretion to log, but also a discretion not to log.
Nick Smith, public affairs director of the American Forest Resource Council, said the majority opinion clearly affirmed DNR’s approach to log for defined beneficiaries and that it soundly and unanimously rejected the claims of CNW that the reading of the constitution was incorrect. The DNR has this trust mandate to generate revenue for beneficiaries.
The AFRC is a regional trade association whose purpose is to advocate for sustained yield timber harvests on public timberlands throughout the West to enhance forest health and resistance to fire, insects, and disease, according to its mission statement.
Friedman said the end goal of CNW was to have the interpretation of the constitution be changed for precedence, and that they had succeeded.
“I would think that their goal would be to win their case,” Smith said. “But they didn’t. What’s clear is that the DNR has a constitutional obligation to manage these forests and give revenue to beneficiaries. Really this was a reaffirmation of the status quo.”
Friedman said the former interpretation of the constitution forced the hand of DNR with the timber industry and their obligation took precedence over the preservation of legacy forests and maintaining drinking water quality.
“We wouldn’t characterize that,” Smith said in response. “Certainly we care about healthy forests and clean air. To question our values and motivations is fairly egregious. We feel like we are a part of the solution.”
Smith said that the response from conservationists like Conservation Northwest and Center for Responsible Forestry strikes him as spin and that the drafted opinion clearly chooses a side to win.
“It’s been made out to be nuanced, but our stance is that the SC [Washington state Supreme Court] reaffirmed the decision and focused on beneficiaries. That’s the clearest way I can describe it.”
Probable Challenges to Decision
Friedman expects petitioning, lawsuits, and other legal action by the timber industry to challenge this decision, but says that both DNR and the timber industry can no longer hide behind the legal language based on an interpretation of the state constitution.
Michael Feerer, executive director of the Whatcom Million Trees Project, said in an interview that the court decision is a huge deal to the conservation of natural habitats in the area, and that the estimated 280,000 trees to be preserved should be seen as a win for the people of the state.
The Million Trees project was started in early 2020 based on Whatcom County Executive Satpal Sidhu’s public call to plant one million trees over five years in Whatcom County. Feerer saw no action in the county and decided to take on the initiative.
The call to action was modified by Feerer to include forest preservation.
Bessie Sorts, Legacy Forest
By mid-2021, DNR intended to allow logging of the legacy forest in Whatcom County (known as Bessie Sorts) for $2.2 million by Spring 2022, according to information on the DNR website and the Board of Natural Resources.
Environmentalists raised concerns for Lake Whatcom’s water quality almost immediately. The DNR’s 2006 Policy for Sustainable Forests defines old-growth forests as structurally complex, with natural origin dates before 1850, the start of the European settlement in the Pacific Northwest.
DNR’s assessment of the Bessie Timber sale suggests that the forest dates to around 1900, but organizations, such as the Center for Responsible Forestry, challenge this, saying DNR’s own inventory data indicates an origin closer to 1876.
Old-growth, a legacy forest or “virgin forest” that has attained a great age without significant disturbance, is described as more than a habitat for endangered species by Friedman. One of the primary public benefits is carbon storage in the ground rather than the sky, and trees in old-growth forests do a great job at that, as well as maintaining drinking water quality within their watershed.
Pushback by Nonprofits
Pushback from nonprofits such as CRF, Million Trees, and CNW raised an incredible amount of awareness as well as informing the local policy makers, which led to a letter from the City of Bellingham asking DNR to reconsider.
“The four of us started pushing back together somewhere around the fall of last year,” Feerer said. “DNR holds an auction for trees to be logged for private timber cutters to bid on, and we wanted to get in the middle of that and stop it from happening.”
Feerer said that the obvious and immediate benefits of preserving the legacy forest, such as quality of drinking water and carbon capture benefits, were huge incentives to step in to prevent the timber sale.
“Lumber companies have suggested from studies that they have funded that older trees slow down their rate of carbon capture in the air,” Feerer said. “But new studies show the opposite. Carbon capture is actually increasing with older trees.”
Center for Responsible Forestry
Brel Froebe, volunteer coordinator for CRF, said in an interview that in response to the state supreme court decision, their group has created a call to action laying out seven policies for the DNR.
1. Conserve all remaining legacy forests.
2. Modernize the Board of Natural Resources for all the people.
3. Create an “All the People” Forest Plan — with climate as top priority.
4. Invest in rural counties, especially those reliant on logging.
5. De-link logging and education budgets.
6. Implement practices that improve forest health.
7. Strengthen the Trust Land Transfer tool.
Froebe said that CRF is hosting a large rally Sept. 6 in Olympia at 8:30 a.m. in front of DNR headquarters. The rally is meant to demand the implementation of policy to protect older forests on state lands, as well as enacting the seven policy changes.
Froebe said there are 77,000 acres of unprotected legacy forests on DNR land, and the land designated for preservation in the DNR’s carbon credits program is substantially small in comparison.
“This was really touted as a way to preserve legacy forests while maintaining profits,” Froebe said. “But honestly, this is nothing. They basically are saying ‘let’s lump a bunch of forests together and call them high conservation areas.’”
“Not Nearly Enough”
Friedman said that, while he was happy with the halt of the Bessie Timber sale, and the plan to preserve legacy forests, he reluctantly acknowledged that the carbon credits program is “not nearly enough.”
“The scale of the issue is so much bigger than that,” Friedman said. “That would have been a nice step in 2000.”
Smith’s opinion about the carbon credits program was almost the opposite, suggesting that DNR is essentially “walking away from their forests” and that the carbon program undermines preservation efforts already in place.
“It’s hard to see how carbon credits will generate the same revenue as timber sales in order to meet the constitutional obligation of the state,” Smith said.
Smith said that the AFRC’s objection to the carbon program is the belief it takes away the opportunity for active forest management and for Washington to be a leader in green building materials.
AFRC’s official stance on the carbon program is that the preservation of legacy forests DNR manages, which is less than one percent of the forests in the state, is not worth pursuing and a step towards walking away from the forests completely.
Friedman said that, at this point, the ball is in DNR Commissioner Franz’ court, and said there might not be more to do other than take more care of public lands. He also added that Franz could be a lot more creative with three million acres of state land.
Limited Step Forward
“I tend to agree it’s a very limited step forward,” Feerer said of the carbon sequestration program. “And when they announced their initiative, with 10,000 acres all together, it doesn’t contain all of the legacy forests in Whatcom County.”
“There’s no doubt that companies are buying out carbon credits to ‘greenwash’ themselves,” Feerer said. “But from a tree preservation standpoint, although this greenwashing is happening, it’s putting an enormous amount of revenue into protecting and preserving forests. We see this as a net gain that trees are being protected, even if companies are using it to excuse themselves for carbon dumps.”
The carbon credits program with DNR is seen by many as an alternative way to fund public programs such as schools and universities without having to cut down legacy forests.
CRF, CNW, and the Million Trees project have all worked in tandem with the timber industry and DNR, and have stated that they are willing to work with them in the future to insure timber for logging and sale.
“I want to stress that we are not anti-logging,” Feerer said, a sentiment echoed by CNW and CRF. “We understand the necessity of income from logging, and we simply want to contain the logging, (and) guide them.”
Feerer, Friedman and Froebe all say their goal is not to create or push for a movement stopping logging, but to channel logging out of critical areas into less critical ones.
Funding From Logging
Much of the funding from logging goes to schools in urban areas and rarely goes to rural areas, according to Froebe. He said that ensuring that a proper flow of money goes through all the proper channels is key to some of the next steps, and that more labor-intensive practices can put more loggers to work. He said the movement is about “more than just saving trees.”
“Actions speak louder than words,” said Smith in response.
“Chris Reykdal, state superintendent of public instruction, is actually against funding schools with logging money,” Froebe said.
In a media briefing on July 19, Reykdal laid out a plan to reallocate funding from the Common School Trust, which currently provides a small percentage of the funding for school construction across Washington. Reykdal’s proposal calls for the state Legislature to fund the School Construction Assistance Program from revenue sources other than trust land revenue.
At the briefing, Reykdal said, “Rural communities in Washington have long generated this revenue through timber harvests and other trust land activities, but are not often the beneficiaries of it.” He also said that investing revenue within the communities where it is actually generated is the next step, and using a portion of the money earned to support better forest health and preservation was tantamount.
Benefit to All the People
Kaylee Galloway, Whatcom County Council member representing District 1, said in an interview that the court’s decision will define the responsibilities of DNR moving forward and how the forests will be managed.
“Really this is an opportunity for a quick check-in with ourselves,” Galloway said. “Ensuring we maintain a thriving timber economy while protecting our natural resources.”
Galloway, a member of the Whatcom County Climate Impact Advisory Committee, said the supreme court decision struck a really important balance and built in a lot of flexibility to manage most of those lands in multiple ways. The question now is “how are these lands being used to benefit all the people?
The preservation of forests such as Bessie Sorts and Box of Rain, both within Whatcom County, has the ability to offset carbon emissions released into the atmosphere, and, with the carbon credit program funding public programs, it will be easier to maintain revenue without the need to maximize it from logging.
The decision by the supreme court could set a new precedent and understanding of what the roles and limitations of DNR and the timber industry are.
“Really this is a win, win, win scenario here,” Galloway said. “This way we can still derive value and benefit economically and environmentally from our forests other than extracting trees.”
Conservation groups anticipate that the timber industry will be making moves in the near future to challenge this decision, and are already taking steps to prepare for the eventual legal battles.
Friedman said he and CNW intend to continue challenging big timber both in the courts and in the forests, saying this win is just the first step in many victories.
“Game on,” said Friedman.
Commissioner Franz released a statement in response to the ruling on the dnr.wa.gov website saying, “I believe strongly in our mission to protect public lands, support healthy forests, and provide essential benefits to the people of Washington.
“Today’s ruling affirms DNR’s position that it has discretion under the constitutional and legislative mandate to manage public lands on behalf of the communities we serve and ensure our public lands are providing the greatest environmental, social, and economic good.
“I also recognize that, in the face of a rapidly changing climate, we must do everything we can to safeguard public lands and protect our forests. This is why DNR has made climate resilience and long-term sustainable land use a core part of our work, including being a nationwide leader in efforts to restore forest health and conserve forestland and critical habitat across our state.”
To read the state supreme court ruling, see:
Tyler Brown is a senior at Western Washington University and an intern for Whatcom Watch, finalizing a bachelor’s degree in visual journalism with dreams of being a foreign correspondent someday.