The incredible climbing at Trout Creek

The Trout Creek climbing area in Central Oregon – one of Oregon’s truly unique and treasured recreational resources – was closed by the Bureau of Land Management on February 1, 2012.  The Trout Creek area is located above the Deschutes River just outside of Madras, Oregon.  Rock climbers from around the country have traveled to Central Oregon to experience the incredible “traditional” crack climbing, which is situated on a scenic butte overlooking the world-famous Deschutes River.

BLM has been considering a seasonal closure of the Trout Creek area for several months because of potential issues related to Golden Eagles.  A dedicated group of local climbers had been making every effort to talk to the BLM about access issues to ensure that Golden Eagles are protected while also preserving reasonable public access.  Local climbers have been trying to obtain from BLM information on whether and to what extent Golden Eagles have used the area in order to develop a plan to manage human access for the benefit of wildlife.  Golden Eagles are not listed as either threatened or endangered, but they are protected by the Bald and Golden Eagle Act.

Despite the efforts from the local climbing community, BLM first refused to disclose for several months information on Golden Eagle use of the area.  Although the agency was slow to disclose relevant data, it had assured the local climbing community that it would conduct a public environmental assessment process before closing the area.

Despite those earlier promises, BLM suddenly made the decision to close Trout Creek without any advance notice, without any public comment process, and without any environmental analysis.  BLM decided to close Trout Creek from February 1st – August 31st, and the closure could be lifted in May or June if Golden Eagles have chosen a nest besides the one on the main wall or if no nesting has occurred.

The scenic views of the Cascades from Trout Creek

The climbing community and especially the Trout Creek locals have been excellent stewards of the environment and respect the importance of preserving wildlife habitat.  At the same time, there are many open questions as to whether BLM’s heavy-handed tactics are necessary in this situation, including: 1) to what extent do Golden Eagles use the nests near the climbing area; 2) what buffer is necessary to protect Golden Eagles; and 3) how long must the area remain closed before it is determined whether the birds will nest in an particular season.  These issues should have been answered as part of a public process instead of being made by BLM behind closed doors without any public involvement.

Please contact the following people to let your voice be heard.  BLM personnel are good, hard-working people, so please be respectful.  The Crag Law Center will be providing additional information as it becomes available.

Recommended Talking Points:

• Trout Creek is an irreplaceable, world-class recreational resource for Oregon, and it helps to support the local recreation-based economy in Madras and Central Oregon;
• Climbers care about Golden Eagles and are committed to protecting their habitat while preserving climbing access to the extent possible;
• The current closure of Trout Creek was a closed-door decision made without any advance public notice or public input; and
• BLM must conduct a public environmental assessment, disclose all relevant information, and take input from the interested public on Trout Creek access and wildlife management issues.

Resources:

• The Access Fund
• Trout Creek Guidebook
• Mountainproject Info on Trout Creek
• Friends of Trout Creek Facebook Page
• Information on the Golden Eagle
• The Bald and Golden Eagle Protection Act

Judge Rasmussen will issue a written ruling.

For more information, check out KLCC Public Radio’s coverage of the case and the January 24 Eugene Register-Guard’s article.

To learn more about the youth who are taking action and speaking out about climate change, check out the Trust Films series produced by Our Children’s Trust, the iMatter Campaign and WITNESS.

Nesting Murrelet, photo courtesy of US Fish & Wildlife

Today Cascadia Wildlands, the Center for Biological Diversity, and Audubon Society of Portland gave the State of Oregon and its forestry departments notice of their intent to file a lawsuit to protect the federally threatened marbled murrelet.

Marbled murrelets are rare seabirds that nest inland in big, old trees.  The birds have large webbed feet and require big tree limbs upon which they can crash land and moss in which they can nest.  Murrelet populations in the Pacific Northwest have been dwindling each year largely due to the loss of the mature and old-growth forests the birds require for nesting.  The marbled murrelet was listed as a threatened species under the Endangered Species Act in 1992.

Tillamook Forest thin

Oregon has a practice of playing fast and loose with the requirements for finding murrelets and their habitat, a practice that has resulted in significant logging of occupied murrelet habitat and fragmentation of the older forests upon which the birds rely.  Couple this practice with the State’s recent decisions to increase logging on Oregon’s coastal state forests – the Tillamook, Clatsop, and Elliott – and the recipe spells disaster for murrelets.

As a result, the Crag Law Center is partnering with Eugene attorney Daniel Kruse and Cascadia Wildland’s staff attorney Nick Cady to represent the groups in a lawsuit against the state.  As described in the notice letter, the State is violating the ESA by causing the “take” of marbled murrelets – i.e., by authorizing activities that are harming and harassing the birds and impacting their breeding.

Marbled Murrelet chick, photo courtesy of Peter Halasz

Read the murrelet_press_release and visit Cascadia Wildlands; the Center for Biological Diversity; and Audubon Society of Portland’s websites to learn more about this issue and marbled murrelets.

Here are some of the news articles talking about this matter:
The Oregonian
The Associated Press
OPB
Portland Tribune
The Register Guard

Since the Ninth Circuit issued its final unanimous decision this past May, a number of developments have taken place.  First, both the timber industry and the State of Oregon announced that they will ask the Supreme Court to overturn the Ninth Circuit decision.  As a first step, they must file a “petition for certiorari” requesting that the Supreme Court accept the case for review.  We expect those petitions to be filed in September, and Crag will then be working with our partners on a response defending the decision.  The Supreme Court only accepts a limited number of cases for review, and the timber industry and the State will have to convince the Court that this should be one of those limited cases.

Second, Senator Wyden (D – Or) has co-sponsored a bill that would exempt the timber industry from the permitting requirements of the Clean Water Act.  Industry has tried to convince anyone and everyone that the sky is falling in the form of a CWA permit program that has already been applied to most other industries in the country.  In response, we have been working with a coalition of organizations to clarify the contours and operation of the Clean Water Act program, which has proven to be an efficient, transparent and reliable way to protect our natural resources for more than 30 years.

The case has also generated substantial media over the past several weeks.  To learn more, you can read a sample of that coverage:

1)            The Oregonian story on Sen. Wyden’s bill;

2)            An editorial from the Oregonian regarding the bill; and

3)            A response that I co-authored with Bill Bakke, Executive Director of the Native Fish Society and Jim Lichatowich, fisheries biologist and author of Salmon Without Rivers – A History of the Pacific Salmon Crisis.

Finally, we also recently sent out an e-mail blast to our supporters asking for their help as we move the work forward.  We’re a small organization working on a shoestring budget, and we depend on the generous support from individuals that believe in Crag’s mission of protecting our natural resources for future generations.  Please consider making a gift to help with our work, and rest assured that we will continue to defend the public’s interest in clean water and our iconic runs of native salmon and steelhead.

© 2011 John Hyde/AlaskaStock.com Blurred motion view of a wolf in *black phase* running in the Tongass National Forest, Southeast, Alaska during Winter

Crag recently won a key victory in the fight to preserve old-growth forest and wildlife habitat in the Tongass National Forest.  In the case – Greenpeace v. Cole – the Ninth Circuit Court of Appeals threw out four old-growth timber sales that would have logged important habitat for the rare Alexander Archipelago wolf.  Crag filed the case on behalf of Greenpeace, Inc. and Cascadia Wildlands.

The Tongass contains some of the most magnificent old-growth forests remaining in the United States, and these forests are laid out across both the mainland as well as a network of coastal islands known as the Alexander Archipelago.  These coastal rainforests provide irreplaceable habitat for the wolf, a unique subspecies of the gray wolf, which can swim from island to island and dens in old-growth forest near salmon streams and fresh water.

The Forest Service was using a computer model to estimate impacts to wolves and deer, but the model suffered from numerous errors that greatly underestimated the damage done to these old-growth dependent species.  In a unanimous decision, the three-judge panel rejected four separate timber sales, which collectively would have logged over 1,700 acres of old-growth forest.  The Court recognized that the Forest Service was ignoring the best available science on how old-growth logging affects wolves and deer, instead relying on inaccurate and outdated data.

Years of intensive old-growth logging and road building have caused significant declines in wolf populations in the Tongass, and the errors identified by the Court have also plagued every other sale approved by the Forest Service in this area from 1996 to 2008.  For years, Greenpeace and others attempted to bring their concerns directly to the federal government, but the Forest Service refused to acknowledge the best available science or admit the errors in its computer models.  After running out of options, Greenpeace contacted Crag and moved forward with court action as a last resort.

Chris Winter, staff attorney and Co-Executive Director, handled the case for Crag and its clients.  Winter said, “The Forest Service ignored the best available science on the impacts of clearcutting old-growth forest in the Tongass.  The court issued a common sense decision requiring more from our federal government.”

For more information, the read the 9th Circuit Court of Appeals opinion and the press release distributed by Greenpeace and Cascadia Wildlands.

The communities of Padres and El Pueblo play host to the only three hazardous waste dumps in the entire State of California.  Title VI of the Civil Rights Act, signed by President Johnson in 1963, prohibits any recipient of federal funding from discriminating on the basis of race or national origin.  EPA distributed funds to state agencies that issued permits for these three hazardous waste facilities.

In 1994, Padres and El Pueblo filed an administrative complaint with EPA under Title VI of the Civil Rights Act.  At that time, the state Department of Toxic Substances Control had used EPA funding to issue permits for the construction and expansion of the toxic dumps.

Since 1994, EPA has failed to respond to the Title VI complaint, letting the allegations languish inside the agency’s co-called “Office of Civil Rights.”  Although it was required to issue a preliminary report within 180 days of accepting the case for investigation, EPA has now sat on the complaint for more than 15 years without any resolution to these civil rights violations.

The recent complaint follows up on Crag’s 2009 victory in the case of Rosemere Neighborhood Association v. EPA.  In that case, the Ninth Circuit Court of Appeals reviewed a similar situation involving years and years of illegal delay in EPA’s processing of civil rights complaints.  At that time, the Ninth Circuit noted the “consistent pattern of delay by the EPA” and stated that the delays “appear, sadly and unfortunately, typical of those who appeal to [EPA] to remedy civil rights violations.”

Crag looks forward to working on behalf of Padres and El Pueblo in prosecuting this important environmental justice case.  Their communities have struggled with these issues for many years, and we hope to be able to serve their interests along with the Center for Race Poverty and the Environment.

Complaint

Press Release

You can now download the Spring 2011 Summit directly from our website and save paper. If you currently receive the Summit in the mail, you are welcome to contact us at (503) 525.CRAG to go paperless.

The latest edition of the Summit has stories from each of our staff about our work to protect the Oregon coast, Willamette Valley farmland, the North slope of Alaska and more. We also profile two of our supporters    — Dick and Jeanne Roy — and welcome a new board member Emily Bartha.

Download Now and find out the latest!

Photo courtesy BLM

Fast forward to October of 2010, when DOGAMI is notified by local concerned citizens that Tidewater has excavated its entire annual allotment of gravel without obtaining the required stormwater permit, and has mined to a depth exceeding the terms of the DOGAMI mining permit.  DOGAMI issued two separate notices of violation and a suspension order, and required Tidewater to re-grade the site. Tidewater’s representative admitted that it had altered its mining method from the proposed side-cut scalp to instead dig a series of trenches and that it was stockpiling overburden at the mine site.

When Tidewater applied for a renewal of its permit last November, Crag again represented Oregon Shores before the Curry County Planning Commission.  Crag argued that the violations of DOGAMI’s permit also constituted violations of the County’s conditional use permit, and that Tidewater’s admitted modification of its mining method required a modification of the permit.  The Planning Commission agreed and denied the permit renewal request with a 7-1 vote.  Tidewater still has options to seek approvals, but the Planning Commission’s decision is a breath of fresh air for local people seeking to protect the Rogue River, its fish and wildlife populations, and the tourism money and jobs they’ve come to support.

Late last week, the Environmental Appeals Board (EAB or Board) in Washington, DC rejected two air permits issued by the Environmental Protection Agency (EPA) to Shell Oil for proposed offshore drilling projects in the Arctic.  The Crag Law Center represented local Inupiat organizations in the case, including the Alaska Eskimo Whaling Commission and the Inupiat Community of the Arctic Slope, a federally recognized tribal government.

Shell’s offshore drilling proposal would emit thousands of tons of pollutants into the pristine air sheds of the Chukchi and Beaufort Seas, including nitrous oxides, particular matter, and carbon dioxide.  The local communities already suffer from high rates of respiratory diseases like asthma, and they are concerned that the additional pollution will contribute to public health concerns on the North Slope.

In an important victory for the local communities, the EAB sent the permits back to EPA Region 10.  The Board held that EPA Region 10 failed to address the local community’s environmental justice concerns and the potential health impacts of NOx emissions.  In issuing the permits, EPA Region10 relied on outdated standards and science that were almost 15 years old in concluding that the drilling operations and NOx emissions posed no threat to the health of local people.  The Board returned the permits to Region 10 of EPA noting the local communities’ use of offshore areas for subsistence purposes and asking Region 10 to incorporate the most recent scientific information before concluding that Shell’s proposed operations are safe for the local community.

The EAB also overturned Region 10’s determination of when the 514 foot drillship becomes a source subject to permit requirements.  In the permits, Region 10 allowed Shell to unilaterally determine when the drillship becomes a source and therefore when the permit requirements begin to apply to Shell’s operations.  The Board noted that EPA had no way to verify Shell’s decision and that the agency had inappropriately delegated its regulatory authority over air quality to a private oil company.

Shell had previously announced plans to drill at least one well in the Beaufort Sea in 2011, but those plans are now up in the air because of the EAB decision.  This is the second time that Shell’s air permits have been rejected by the Environmental Appeals Board, and there is no current timetable for when EPA Region 10 will be able to reissue draft permits for public comment.

To download and review the decision, click here: 12-30-2010 Order Denying in part and Remanding in Full

Local Citizens Hail Court Ruling Protecting Rural South Salem Hills from Sprawling Development

(Salem, Oregon)  In a decision issued today, Senior Judge Nely Johnson reversed a decision issued by the Marion County Board of Commissioners that had opened up rural farm land to a large subdivision development proposed under former Measure 37.  Neighboring property owners had objected to the County’s decision because their drinking water wells were threatened by the development which would have drawn water from this ground water limited area.  In the challenge, the Friends of Marion County and the Keep Our Water Safe Committee pointed out that the landowners had not even started the development before Measure 49 passed. The claimants had spent money on consultants to pursue the developments but had done almost nothing to establish the use on the ground.

Despite the passage of Measure 49, a number of people with claims under former Measure 37 sought to go ahead with their large developments despite the passage of Measure 49.  One of these requests was a highly controversial development in the South Salem Hills. The claim was seen as the poster child for what went wrong with former Measure 37.  Despite facts to the contrary, the Board of Commissioners granted the request without considering the negative impacts of this development on neighboring property owners.  While the Board of Commissioners concluded the small amounts of monies spent on preparatory work were sizable enough to allow the development to continue, the Circuit Court rejected these arguments and reversed the County’s decision.

Instead of proceeding with developing a large subdivision on prime farmland and threatening water supplies, the owners were able to pursue more modest developments of up to three homes allowed under Measure 49.  Brian Hines from the Keep Our Water Safe Committee stated: “While many people pursued modest claims under Measure 37, others pursued large developments that threatened farms, forests and water supplies.  Neighboring owners have property rights, too.  This ruling safeguards our interests as well.  The court recognized the rights of neighbors while allowing owners to move forward with developments that meet the requirements of Measure 49.”

Measure 37 proponents insisted that its purpose was to allow rural landowners to build a few houses for their family.  In reality, Measure 37 resulted in over 6,800 claims. More than half of those were for large subdivisions on valuable farm and forest lands. When Oregonians realized the impact on local agriculture and water supplies, they passed Measure 49 to rein in the worst abuses and provide modest development options instead.  Measure 49 provided up to 3 houses per parcel without proof of financial loss, or more if the owner proved an actual financial loss.

Ralph Bloemers, a staff attorney with the Crag Law Center, stated: “Many people sought to take advantage of Measure 37 and develop large residential subdivisions, commercial developments and gravel mines. These proposals threatened neighboring property rights, water supplies and undermined the efforts of people with more reasonable goals. This decision protects neighboring property owners and preserves Oregon’s valuable agricultural capabilities.”

Additional Information:

Oregonian Story: Marion County judge says Salem development didn’t meet the ‘vested rights’ test of Measure 49

Hines Sight:  On the Meaning of Land Use

Court Decision: FOMC v. Marion County (Laack) – December 6, 2010 Judge Johnson