portland independent media center  
images audio video
newswire article reporting oregon & cascadia

forest defense | save the biscuit

URGENT NEWS: Temporary Restraining Order on Biscuit Logging Denied! General Legal Update..

Regrettably, the Temporary Restraining Order sought by Cascadia Wildland Project (alongside The National Forest Protection Alliance, Native Forest Network, and Klamath Forest Alliance) was not granted on appeal by the 9th Circuit.

This DOES NOT mean that this, nor the other lawsuit filed by the Siskiyou Project (along with American Lands Alliance, Defenders of Wildlife, Pacific Rivers Council, Sierra Club, and The Wilderness Society), will not eventually stop the logging in the Biscuit -- it just means that logging will continue for at least another few weeks until the next round of legal battles.

Updates on this and other legal matters below...
The Temporary Restraining Order (TRO) against logging in Biscuit was denied on the basis of jurisdiction (but without prejudice) by the 9th circuit court of appeals. 9th circuit dismissed the appeal essentially for lack of jurisidiction and did so "without prejudice". Cited "Religious Tech Ctr v. Scott", 869 F.2d 1306, 1308 (9th 1989).

This lawsuit, amongst many arguments, was based on the dangers of logging during wet season. The Forest Service, bypassing it's own internal regulations is logging as well as yarding and hauling, despite the risk of spreading a root rotting fungus that has been rapidly killing the rare "Port Orford Cedar". (see  http://www.fs.fed.us/r6/siskiyou/poc1.htm for more info).

This lawsuit, filed by the Cascadia Wildland Project (alongside The National Forest Protection Alliance, Native Forest Network, and Klamath Forest Alliance) is not to be confused with a 2nd lawsuit, discussed way down below.

------------------------

Here's my "I'm not a lawyer but I like to pretend" analysis of what the court said in relation to the TRO.

1. "Without Prejudice" means that the lawsuit itself was not in anyway rejected, only that the specific issues raised for granting the TRO was not sufficient. It *might* also mean that if other grounds for a TRO were raised (which is unlikely) that the court would hear further arguments as well. "With Prejudice" would mean that this was the end of the line, that the court had no interest in hearing about the matter again. So this isn't a dead end by any means, just an unfortunate delay.

2. I looked up "Religious Tech. Ctr. v. Scott"... you can the decision on this case here:  link to www.ronsorg.nl

In this case the 9th circuit *DID* grant a TRO after the federal district court denied one. (Oddly enough, it involves a well known Church of Scientology lawsuit that news nerds may remember...)

My guess is the critical piece from the courts ruling in this lawsuit from 1989 is this:

"The denial of a preliminary injunction is subject to a limited standard of review [as per] Colorado River Indian Tribes v. Town of Parker, 776 F.2d 846, 849 (9th Cir.1985). We reverse the denial only when the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact."

So basically, unless the District Court used blatently and fundamentally bad judicial *process* in evaluating a TRO, the 9th Circuit Appeals court won't undo a denial of a TRO by a district court, regardless of the viability of the overall lawsuit. (The District Court denied the TRO a few weeks back).

It should be clear that this doesn't fundamentally effect this legal challenge to the logging in the Biscuit, it just mean that there will be no TRO.

The lawyers will still be applying for a "Preliminary Injunction" (PI) which takes longer to get, last longer than a TRO, and requires the judge to evaluate the merits of the case more carefully. The fundamental question in both a TRO and a PI is the same: "will irreperable harm be done to the in the interim before the trial can even be determined". If the answer is determined to be "yes" than they can be granted. In this case the District Court Judge Michael Hogan, a well known right-winger, basically stated that while the environment might be harmed, the timber companies would be too.

Even if the PI also fails, the trial will still take place: TROs and Injunctions are just "holds" on a procedure that stop something from happening (i.e., logging) until a court decides whether it is legal or not.

------------------
As for the OTHER lawsuit - filed by the Siskiyou Project (along with American Lands Alliance, Defenders of Wildlife, Pacific Rivers Council, Sierra Club, and The Wilderness Society) on the illegality of logging in Late Successional (old-growth) Reserves and Roadless Areas, the 9th Circuit has delayed the beginning of the proceedings for another few weeks. (See  link to www.mailtribune.com)

This is bad news: Further delays mean more rapid-action logging in the meantime.

This lawsuit had acheived an injunction last summer, but the injunction was thrown out in February, rather mysteriously by a federal panel that reviews and renews injunctions. (There is a feeling that this was something of a rogue action by a group of right-wing underling judges, since there was virtually no reason given.) This is what prompted the logging to begin earlier this month.

Regardless, this trial will still take place, and we hope before all of the forests are cut down

------------------
If someone understands this stuff better, please correct the above!

homepage: homepage: http://www.cascadiarising.org
phone: phone: 503-493-7495
address: address: PO Box 12583

an addition.... 26.Mar.2005 19:44

......

Mostly right, but there are [were] three lawsuits. 1. Cascadia Wildlands, NFPA, KFA and the Native Forest Network. 2. Earthjustice is representing The Wilderness Society, Defenders of Wildlife, and Pacific Rivers Council. 3. The Western Environmental Law Center is representing the Siskiyou Project, KS Wild, American Lands, Sierra Club and the Oregon Natural Resources Council.

The later is the original Biscuit lawsuit. After Earthjustice got involved, those later two cases were consolidated.

A fourth case was also filed, from the American Forest Resources Council, a timber industry group that argued the Forest Service was violating the National Forest Management Act by not actively "reforesting" (aka creating tree farms) on more acres after the fire. Judge Hogan ruled against them as the NFMA only requires replanting after logging. This is something the timber industry might try and change legislatively very soon. Stay tuned.

Another half-truth 26.Mar.2005 20:48

Native son

Another half-truth regarding the management of the Port-orford cedar root rot. Some areas may be entered, depending on the status of the watershed - if it is infected or not infected. Some areas may have log haul if it is going from an infected area to another area that is infected. Also, log haul may occur if there are extended dry periods, since the spore (Phytopthora-lateralis)that kills the Port-orford cedars can be spread during wet periods. Again, it would appear that this is a half-truth, since the author prefers to go to a FS website that gives only brief details that are meant to inform the general public.

Luckily, when the courts fail, there is always... 27.Mar.2005 01:48

Wild Siskiyou Action

Announcing the Biscuit Burn Skillshare Camp in the Wild Siskiyous, check out the full post at:
 http://portland.indymedia.org/en/2005/03/314311.shtml

Heros of Our Time 27.Mar.2005 18:54

Old Timer

You've read about 70 year old woman arrested trying to save some of last examples of ancient trees in this state. You should also drink a glass to 21 year old woman from Eugene who spent 8 days in solitary confinement in the dungeons of Josephine County for crime of "singing in her cell" after arrest at Bisquit. If you have the time, and give a farthing about the air and water you imbibe, Reich's Orgone manifest Oregon, you should get your sorry ass down there. Or at least sit in at office of some corrupt and bought off donkey-ass like Wyden.