Reforms are need to ensure the Forest Practices Board serves the public’s best interest.
IN March 2014, a devastating landslide wiped out the Steelhead Haven community in Snohomish County, killing 43 people. Virtually all scientists agree that the Oso landslide was triggered by massive amounts of groundwater.
While it still has not been conclusively determined how much of this groundwater came from legacy logging in the 1950s or more recent (2004, 2009, 2011) logging above and to the side of the active landslide, it is undisputed that the state Department of Natural Resources allowed the forest landowner, Grandy Lake Forest Associates, to log within the “groundwater recharge area,” a violation of the forest practice rules and the Hazel “watershed analysis” that was supposed to govern Grandy’s logging.
A King County Superior Court judge recently ruled that the DNR could not be liable to the Oso victims for its failure to enforce the logging rules even if this failure contributed in some way to the slide. Citing appellate court precedent, the judge applied the “public duty” doctrine, which says the state cannot be liable when it fails to follow state rules, and this failure only injures a member of the “public as a whole” as opposed to “a specific class of persons” intended by law to be protected.
Legal commentators and academics are best-equipped to debate whether the judicially created “public duty doctrine” ruling is sound public policy and needs to be fixed by the Legislature. Under the court’s ruling, however, a jury will never be able to find DNR liable for its failure to correctly enforce the logging rules even if that failure contributed to the destabilization of the landslide. This outcome is not only an injustice to the victims of the slide, but it creates little incentive for DNR to scrupulously enforce the rules governing logging near potentially dangerous landslides.
To make matters worse, the timber industry’s influence over the forest practice rules is akin to the fox watching the hen house. Under a 2000 state law, before the Forest Practices Board can revise the logging rules, the board’s appointed policy committee must agree to such changes. But because the timber industry holds two seats on this nine-member committee and because the committee operates on consensus, the timber industry has a constructive veto over the board’s strengthening of the rules.
This constructive veto is the primary reason why, with the exception of approving a guidance-only, non-regulatory “board manual” and eliminating the archaic “watershed analysis” loophole, the board has not strengthened the rules after a timber company was permitted to log on steep slopes in southwest Washington, logging that resulted in massive landslides after the powerful December 2007 storm. And it is why the board could not muster the votes to enact a temporary moratorium on logging around glacial deep-seated landslides in the wake of Oso.
Consider also that many forest landowners’ compliance with the rules is abysmal. Because the Legislature permits DNR to charge only $150 for forest practice permits and has shrunk DNR’s enforcement budget by about 30 percent in the past few years, DNR is unable to carefully oversee the thousands of forest-practice permits presented to it each year. DNR’s own studies reflect that forest landowners err in complying with the rules approximately 40 percent of the time. And the rules governing logging on steep and unstable slopes are far from adequate; DNR’s own studies following the devastating December 2007 storms demonstrate that almost half of the more than 1,000 landslides caused by this storm started in logged areas that were not even recognized as potentially unstable by the current rules.
Responsible and sustainable logging should be a part of our rural economy. But the public is put at risk and suffers an injustice when the timber industry can veto rule improvements required to protect public safety and when DNR cannot be held liable for failing to enforce those rules. The Legislature, commissioner of public lands, and Gov. Jay Inslee should take immediate steps to fix this crucial public safety issue.