Is The U.S. Forest Service Attempting To Sell Out At The Expense Of The Endangered Mexican Spotted Owl? By Kevin Franklin THERE IS NO end to the Forest Service's lawlessness--not only can't they follow the law, they can't even follow a court order or a signed agreement," charges Kieran Suckling, director of the Southwest Center for Biological Diversity . The Tucson environmental group is attempting to thwart a timber harvest in the Chiricahua Mountains 100 miles southeast of Tucson. They feel the proposed timber sale will harm the habitat of the endangered Mexican spotted owl and the area's potential to regenerate after the 27,000-acre Rattlesnake Fire in 1994. Brian Power, U.S. Forest Service District Ranger for the Douglas area, wants to log roughly 250,000 board feet from some of the heavily burned territory near Rustler Park. The harvested logs would be sold to private permit holders for vigas--the long roof beams used in Santa Fe-style house construction. This viga sale is the most recent scheme in a long list of attempts to log the area, says Shane Jimmerfield, Southwest Center assistant director. Last year Power began the process to get the Rustler Park area logged. Since then, the Tucson environmentalists have locked horns with Power and the U.S. Forest Service in a continuing battle. Each time the Southwest Center manages to obstruct Power with a court order or some other legal maneuver, he rewords the plan to slip it through their blockade. Southwest Center's most serious claims are that Power has ignored agreements with other federal agencies, flouted court orders and hidden evidence--all in an attempt to subvert the Endangered Species Act. "I think they're grasping at straws," counters Power. "I find it hard to believe that 69 acres out of that mountain is critical to the continuation of the species when they forage over a much larger area." Jimmerfield says the Southwest Center does not oppose, in principal, small selective timber sales like the one Power plans. However, the proposed harvest area lies within what was a Mexican spotted owl protected activity center, or PAC, and is within a mile of two others. These areas are meant to serve as safe havens for the animals, and activities detrimental to their well-being are supposed to be prohibited. Jimmerfield says the Forest Service deleted the land's PAC status immediately before announcing the timber sale, presumably to avoid endangered-species complications. The Forest Service had no authority to delete that PAC and, in any event, logging near Rustler Park would impact the other PACs and violate the recovery plan, Jimmerfield says. While making it clear he was unfamiliar with the Rustler Park area PACs, Bruce Palmer, U.S. Fish and Wildlife Service fish and mammal section coordinator, agreed with Jimmerfield in general on the integrity of PACs. "Those PACs remain in place for the life of the recovery plan," says Palmer, "or until the owl is delisted. Once a PAC is drawn, at least for our context here, it becomes immutable--even though the area has burned. It cannot be arbitrarily eliminated, as the guidance for the recovery plan calls for." From the beginning Power has been playing a sleight-of-hand game with the public and federal law in order to get the area logged, says Jimmerfield. Initially, Power proposed the area be logged for sawtimber, a more profitable and comprehensive logging strategy. This started a public comment process. Then Congress passed the Rescission Bill (Public Law 104-19). This law was meant to expedite salvage logging. Environmentalists railed against the act as "logging without laws," because it circumvents six major environmental laws, overturns many previous court rulings, denies the public administrative appeal and is not even limited to dead trees. Power pulled the plug on public comment for the Rustler Park harvest by calling it a salvage cut and shielding it with the Recission Act. However, the Recission Act does not protect the timber harvest from an injunction issued in August by U.S. District Court Judge Carl Muecke. That injunction prohibits virtually all sawtimber harvesting in the Southwest until a recovery plan for the Mexican spotted owl is completed by the U.S. Fish and Wildlife Service. When the Southwest Center threatened to file contempt of court charges against the Forest Service, the timber harvest was withdrawn. The next day the Forest Service re-issued the plan for logging, limiting it to viga cutting, but maintaining the same volume of wood cut. With that change in tactics, the Southwest Center tried to get the Forest Service's assurance that only viga logs would be cut. But in apparent defiance of Muecke's order, District Forester Les Dufour fired off a letter, writing, "There is no legal or moral reason for such a requirement....Once the trees are removed from National Forest system lands, their use is at the discretion of the owner." When the Southwest Center cried foul about Dufor's letter, Power took measures to ensure only viga cutting would be permitted. In an attempt to halt the logging altogether, Southwest Center attorney Geoff Hickcox filed a lawsuit on December 27. Hickcox tried to stop the harvest by proving the proposed harvest area was a pine-oak woodland, a type of forest the owls use for foraging. The recovery plan calls for pine-oak forests adjoining PACs to remain undisturbed. A Southwest Center biologist conducted a survey of the area and submitted an affidavit to the court calling the area a pine-oak woodland. Judge Muecke said only the Forest Service's administrative record was admissible in court. Hickcox then examined the administrative record index. He requested a document from the index he felt would prove the area is pine-oak. At first, Forest Service personnel sent him the wrong information. Later they claimed the document did not exist. Hickcox felt the case rested on proving the area to be pine-oak, but pressed on without that evidence. Judge Muecke ruled in favor of the Forest Service. The members of the Southwest Center were both vindicated and infuriated when the Forest Service document they had requested was provided to them by another source--and it did in fact show the area to be pine-oak. "They outright lied about it," Jimmerfield says. And that's been the Forest Service's mode of operation through this whole process, Jimmerfield says. Regardless of the lengths they had to go to, they wanted the area logged, he charges. Power responds that the Southwest Center people are the obsessed ones for going to such tremendous efforts to stop a tiny wood sale in a burned forest. Power says National Forests are mandated to be multiple use lands and are not there solely for environmentalists. Power says hiking, logging, hunting and a myriad of activities must share the forests. But Jimmerfield argues the Forest Service has legions of small-scale projects like this going on all over the Southwest and, when they're examined as a whole, it's obvious they produce a large impact. The unknown effect of that impact is the reason Muecke enacted the injunction in the first place, Jimmerfield says. Until the Fish and Wildlife Service determines what will and will not harm the owls, the Forest Service has no business dodging the laws, court orders and agreements put in place to protect Endangered Species, Jimmerfield says.

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