Jittery forest advocates admit that such a ruling could be a mixed blessing. It could put virtually all remaining old-growth forests off-limits to logging; it could also fuel calls for weakening the Endangered Species Act in a new Congress that will be controlled by conservative Republicans.
"If we win, and the Forest Service is ordered to take further steps to permanently protect ancient forest and salmon habitat, the timber industry will mount the largest campaign in the history of the West to overturn existing laws and raid the ancient forests," predicted John Fitzgerald, executive director of the Western Ancient Forest Campaign.
Option Nine, as the Clinton plan is known, is an outgrowth of President Clinton's Northwest Forest Conference in April 1993. The controversial strategy aims to protect old-growth forest ecosystems across 24 million acres of federal land within the range of the northern spotted owl through a system of old-growth and stream corridor reserves. It would allow some thinning and salvage logging to occur within those reserves.
The plan is supposed to allow 1 billion board-feet of federal timber to be sold annually. That's about a quarter as much as was sold in the mid-1980s, before lawsuits to protect the owl and its habitat resulted in sweeping federal court injunctions that brought the timber sale program west of the Cascades to a halt.
Although Dwyer lifted the latest injunction last spring, very little timber has been sold. Option Nine requires detailed watershed studies before any new logging or road-building may occur in sensitive watersheds that are important to salmon. Sales that have been readied for auction have been appealed. The Oregon Natural Resources Council, which last year called for a zero-cut policy for federal lands, has been especially aggressive in filing appeals.
The latest round in the legal battle over Pacific Northwest forests unfolded Nov. 17 in the Seattle courtroom of U.S. District Judge William L. Dwyer, where not only the fate of centuries-old forests but also the future of ecosystem management is on trial.
Jim Lyons, assistant U.S. agriculture secretary in charge of the Forest Service, has said that what happens in Dwyer's court will determine whether the agency can proceed with ecosystem-based planning in other parts of the national forest system, including forests of the Columbia Basin east of the Cascades in Oregon, Washington, Idaho and parts of three other states (HCN, 9/19/94).
The familiar adversaries argued their cases for what may be the last time before the judge, who has had the Northwest's old-growth forests in trust since 1988. Dwyer has consistently ruled that the National Forest Management Act requires the government to adopt a plan that assures the survival of the threatened northern spotted owl and the old-growth ecosystem.
Lawyers for environmentalists argued at the hearing that neither spotted owls nor Pacific salmon will receive adequate protection under Option Nine. Todd True of the Sierra Club Legal Defense Fund said the government did not seriously consider two demographic studies showing that the rate of population decline among female owls appears to be accelerating. Under Option Nine, an estimated 1.6 million acres of owl habitat - about 20 percent of what remains today - would be opened to logging.
Mike Axline of the Western Environmental Law Center said Option Nine places Pacific salmon at much greater risk than the government has revealed: The Clinton administration had directed biologists not to consider the heavily logged condition of state and private land along salmon streams.
Timber industry spokespersons attacked the secrecy surrounding the plan's development and the destruction of voluminous paper and electronic records.
Forest Service Chief Jack Ward Thomas admitted in depositions last summer that as team leader he authorized the shredding of up to six large garbage bags of paper each day, including internal communications among the scientists.
Timber industry attorney Mark Rutzick said those records might have shed light on the trade-offs and decision-making that went into Option Nine. Other evidence, turned up during pretrial discovery, revealed that all electronic communications from the first two months of the 1993 scientific deliberations were wiped out last July, Rutzick said.
"We believe the Clinton forest plan represents government at its worst," Rutzick said. The administration "demanded a revolutionary plan in 60 days. It was developed in secret by an illegal committee that destroyed its documents. The Clinton administration closely controlled the process and posted a political appointee to monitor the process."
Lawyers representing the Clinton administration did not directly address the destruction of evidence. Instead, they pleaded the government's case that Option Nine is a landmark conservation strategy and that it deserves a chance to work - even if it has created legal complications.
Six days after the Nov. 17 hearing, Dwyer asked all parties to submit briefs suggesting what course he should follow if he finds:
* that the law prohibits further logging of spotted owl habitat,
* that the government must strengthen the plan, or
* that the process of developing it was legally flawed.
Though Dwyer stressed that "no ruling on any issue is implied," both timber industry and environmental groups read his questions as a strong indication that Dwyer will find the Clinton plan inadequate.
Many environmentalists predicted the judge would issue a new injunction along the lines of Option One. It proposed stricter protection for owl and salmon habitat in old-growth areas and in watersheds.
* Kathie Durbin
The writer lives in Portland, Oregon.