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

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NWEA v. Washington State Forest Practices Board

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This case, filed in 1998, was an omnibus challenge to a broad range of inadequacies in the Washington State forest practices rules.

COURT INFORMATION:  Washington State Supreme Court No. 70874-6; Washington State Court of Appeals No. 24910-3-II; Thurston County Superior Court No. 98-2-02392-6

CLIENTS:  Northwest Ecosystem Alliance (now Conservation Northwest), The Mountaineers, Alpine Lakes Protection Society, Kettle Range Conservation Group, Whidbey Environmental Action Network, and Pilchuck Audubon Society

CO-COUNSEL:  Earthjustice

STATUS:  In April 2003, the Washington State Supreme Court issued a decision reported at Northwest Ecosystem Alliance v. Washington Forest Practices Board, 149 Wn.2d 67, 66 P.3d, 2003 WL 1848694.

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BACKGROUND:  This case, filed in 1998, was an omnibus challenge to a broad range of inadequacies in the Washington State forest practices rules, including protection for fish, water, terrestrial wildlife, aesthetics, recreation and other resources.

The case alleged that the Washington State Forest Practices Board, which is charged with promulgating the forest practices rules, failed to properly interpret and apply the laws governing forest practices and that the regulations on the books are causing short and long-term cumulative impacts on precious Washington resources.

The Board, under direction of the State Legislature, upgraded several of the aquatic regulations.  However, many forest practices rules remained pathetically inadequate and plaintiffs believed that judicial intervention was necessary to compel the Board to follow its statutorily-mandated duties.

The Board and the Washington Forest Protection Association, a timber industry trade group, argued in Thurston County Superior Court that plaintiffs did not have the right to go to court because they had not followed the “Petition for Rulemaking” procedure.  The procedure requires parties to petition the Board for changes to its rules.  In May 1999, the Court agreed and dismissed the case on the grounds that plaintiffs had not exhausted available administrative remedies.

Plaintiffs appealed the ruling to the Washington State Court of Appeals and, in April of 2002, the Court unanimously reversed the Thurston County Court.  The Court ruled the trial judge erred when he dismissed the case because the Petition for Rulemaking process was, as a matter of law, a permissive not a mandatory process.  The Court also ruled the Thurston County judge erred in dismissing other aspects of the case.

The Board and the timber industry filed a Petition for Review with the Washington State Supreme Court and in April of 2003, the Court affirmed in part and reversed in part. The Court held that plaintiffs could sue the Board for its failure to update the forest practices rules, but held that plaintiffs must first file a petition for rulemaking.  The Court also held that courts could not act on such cases while actual rulemaking was taking place, but did not elaborate on what constitutes actual rulemaking.