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Protecting the environment by providing legal services for forest cases of statewide significance

Protecting the environment by providing legal services for forest cases of statewide significance.

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Addressing the Cumulative Effects of Multiple Forest Practices

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Washington’s forest practices rules permit forest landowners, some of whom own hundreds of thousands of acres of forest, to apply for forest practices permits on a permit-by-permit basis.  The rules do not require either the Department of Natural Resources (DNR) or the forest landowner to look at the overall health of a watershed or species that occupy the area of the proposed harvest.  These multiple forest practices applications can and regularly do have significant adverse cumulative impacts on fish, wildlife, and scenic beauty--resulting in “death by a thousand cuts.” 

Teanaway River Valley Clearcut, Eric Harlow

This cumulative effects “loophole” is compounded by the fact that most forest practices in Washington are exempt from Washington’s State Environmental Policy Act (SEPA).  SEPA clearly requires consideration and prevention of cumulative effects but SEPA’s purposes and policies are thwarted when forest practices are exempt.

To fix the “death by a thousand cuts” loophole, WFLC litigated three related cases that presented a common legal issue:  Do the Washington forest practices rules fundamentally fail to comply with the Forest Practices Board’s duties under the State Forest Practices Act and/or SEPA? 

We argued the rules violate the Forest Practices Act and SEPA because they do not prevent multiple related SEPA-exempt forest practices from having a significant adverse cumulative environmental impact.

How the Cases Started

In a case involving a series of large, ugly Plum Creek Timber Company clearcuts across from Mount Rainier National Park (The Mountaineers v. Department of Natural Resources and Plum Creek Timber Company), WFLC on behalf of the Mountaineers obtained a precedent-setting ruling from the Forest Practices Appeals Board in 2002. 

The ruling declared that “operationally linked” forest practices require SEPA review under the forest practices rules.  The Appeals Board agreed with the Mountaineers and ruled that the Forest Practices Board had adopted an anti-segmentation SEPA rule (WAC 197-11-305) and this rule required the DNR to consider the environmental impact of Plum Creek’s related clearcuts.

Carbon River Valley Aerial 

Plum Creek clearcuts across from Mount Rainier National Park

Plum Creek responded to the ruling by filing a lawsuit arguing that this SEPA rule was invalid for procedural reasons (that SEPA rules could not apply to SEPA-exempt forest practices under any circumstances).  In 2004, the Thurston County Superior Court agreed; this case went before Div. II of the Court of Appeals on May 4, 2006 (Alpine Lakes Protection Society v. Department of Ecology).  The Court of Appeals handed down a decision on October 10, 2006 in favor of the Defendants.       

In the meantime, in March of 2003, WFLC coordinated a massive rulemaking petition before the Forest Practices Board arguing that the Board had a legal duty to adopt a forest practices rule that would prevent the “death by a thousand cuts” loophole.  In support of this Petition, WFLC focused on extensive recent logging in the Teanaway and Carbon River Valleys as examples of the “death by a thousand cuts” loophole.  As evidence, we amassed a 10,000 page record of the environmental flaws with the current forest practices rules.  The Forest Practices Board denied the Petition and the Superior Court affirmed the denial in the summer of 2005.  This case went before Div. II of the Court of Appeals on May 4, 2006 (Alpine Lakes Protection Society v. Forest Practices Board).  The Court of Appeals handed down a decision on October 10, 2006 in favor of the Defendants.  The decision was appealed to the Washington State Supreme Court, which denied review in February 2008.