1 2 3 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 4 5 6 7 8 9 CONSERVATION NORTHWEST; OLYMPIC FOREST COALITION; WASHINGTON ENVIRONMENTAL COUNCIL; HOLLY KOON and MAX DUNCAN, a married couple; MIKE TOWN and MEG TOWN, a married couple; LINDA LORENZ, an individual; PETER BAHLS, an individual; SCOTT WALLACE, an individual, and MARCY GOLDE, an individual; 10 Plaintiffs, 11 v. 12 COMMISSIONER OF PUBLIC LANDS HILARY FRANZ (in her official capacity), the WASHINGTON STATE DEPARTMENT OF NATURAL RESOURCES, and the WASHINGTON STATE BOARD OF NATURAL RESOURCES, 13 14 15 16 NO. COMPLAINT FOR DECLARATORY JUDGMENT AND PETITION FOR CONSTITUTIONAL WRITS OF CERTIORARI Defendants. 17 I. 18 INTRODUCTION 19 1. Plaintiffs seek a declaratory judgment interpreting the state constitution’s direction for 20 management of state lands, and separately petition for writs of certiorari regarding the Board of 21 Natural Resources’ approval of Resolution Nos. 1559 and 1560. 22 23 24 25 26 2. This case asks the Court to declare that the Washington State Constitution, through its mandate that “[a]ll the public lands granted to the state are held in trust for all the people,” requires the State to not only manage forests to produce revenue from timber harvest, but also to promote the broader public interest. Art. XVI, sect. 1. With control of over 3 million acres of federally granted lands, ZIONTZ CHESTNUT COMPLAINT - 1 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 and 546,000 acres of lands transferred from counties, the State has the opportunity and obligation 2 to transition from an antiquated system which strictly prioritizes generating revenue from logging 3 4 5 6 to an approach that balances commercial logging with promotion of forest health, diverse regional economies, and the vast carbon sequestration value of some of the world’s most productive forests. This better, more balanced approach would allow the State to manage public lands for the public 7 interest, as the plain language of the state constitution requires. 8 3. The Department of Natural Resources (DNR or Department) and its Board of Natural 9 Resources (BNR or Board) assert they must treat public lands as a private trust, in which the agency 10 11 is the trustee and specific state and local government entities are the trust beneficiaries. Under this view, DNR must as a matter of law manage public lands for the exclusive best financial interest 12 13 14 of beneficiaries, and that this legal duty does not permit the BNR or DNR to implement any approach that reduces revenue return for the benefit of any broader public interest. DNR refers to 15 this view as the “trust mandate.” 16 4. As a result of DNR fealty to the perceived trust mandate, the DNR manages public lands in a 17 manner similar to a private timber company or real estate development entity, and regularly makes 18 19 20 21 decisions that provide cash benefit to trust beneficiaries while imposing significant costs on plaintiffs, the broader public, and future generations. DNR’s implementation of the trust mandate constrains and shapes agency decisions on both landscape and site-specific levels and violates the 22 Washington State Constitution’s clear command to manage public lands for “all the people.” 23 5. There is deep on-going conflict between DNR’s status as a state agency, which administers 24 public lands with publicly-elected leadership, state employees, and some state funding, and the 25 agency’s view that it must absolutely prioritize maximizing revenue from public lands. These dual 26 missions are increasingly incompatible as Washington’s population increases and expands into ZIONTZ CHESTNUT COMPLAINT - 2 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 areas traditionally focused on logging, logging is generally becoming less capable of supporting 2 local economies and generates relatively less revenue, and public and scientific understanding of 3 4 5 6 the non-timber value of forests grows. As set forth in this Complaint, DNR’s view of its trust mandate is often at odds with the community in which it seeks to carry out logging activities, constrains agency staff from implementing creative management solutions that they may otherwise 7 pursue, and harms public interests in a stable climate, public safety, and a vibrant local economy. 8 6. On December 3, 2019, the BNR approved two major resolutions that shape the future of forest 9 management on public lands. Resolution 1559 adopted DNR’s “Sustainable Harvest Calculation,” 10 11 which dictates the volume and location of timber from state lands that must be logged in the next decade and whether and how quickly prior years’ deficits must be logged. Resolution 1560 12 13 14 adopted a major amendment to DNR’s federal Habitat Conservation Plan for the marbled murrelet, known as the “Marbled Murrelet Long-Term Conservation Strategy.” DNR and BNR expressly 15 relied on and sought to implement the trust mandate as part of the development and approval of 16 both of these land management decisions. 17 7. DNR’s implementation of the “trust mandate” violates Plaintiffs’ constitutional right to have 18 19 20 21 their interests taken into account in on-going projects and at site-specific levels, and also undermines DNR’s larger planning efforts in the approval of the sustainable harvest calculation and the marbled murrelet long-term conservation strategy challenged here. The request for 22 declaratory judgment and appeals of Resolutions 1559 and 1560 each require the Court’s 23 interpretation of article XVI, section 1 of the Washington Constitution. 24 8. While revenue from timber harvest on federally granted State lands goes in part to fund public 25 school construction (today comprising less than 10% of such funds), those funds are inconsistent 26 and insufficient. The perverse system of intensively managing public forests to fund school ZIONTZ CHESTNUT COMPLAINT - 3 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 construction—the very forests upon which future generations rely for clean water and a safe 2 climate—is part of an antiquated funding structure that the Washington Supreme Court ruled was 3 4 5 6 “broken” and violates the State constitution. McCleary v. State, 173 Wash. 2d 477, 539, 269 P.3d 227, 258 (2012). 9. Indeed, Superintendent of Public Instruction Christopher Reykdal, who by statute has a 7 position on the Board of Natural Resources, said the following at the BNR’s December 2, 2019 8 meeting regarding management of State forests: 9 12 the State of Washington needs something else…my school districts right now are sticking this money into a common construction account that is becoming an almost invisible share of the 3.5 billion we spend every year on school construction. This is not the future of school construction. It just isn’t. This money would be better used to protect species, to protect habitat, and to take care of industries and the impacted counties. 13 10. The status quo approach under DNR’s trust mandate is both proving harmful to the public good 10 11 14 15 and incapable of adequately supporting the growing needs of state and local institutions and rural economies. Plaintiffs support ongoing sustainable and environmentally-sound logging on state 16 17 18 forests and revenue distribution to trust beneficiaries. However, to actually sustain economies and promote the public interest DNR must manage public lands according to the constitutional 19 requirement to benefit “all the people.” 20 11. DNR oversees a management system that is not serving either the trust beneficiaries or the 21 general public. While logging provides some local employment and revenue in rural parts of 22 23 24 25 26 Washington, it has not proven able to adequately support those economies and institutions. Mechanization and outsourcing of milling to other countries (of logs from private lands) has rendered the forest industry less and less capable of supporting rural economies. DNR’s studies report that it takes at least one million board feet per year of timber volume from public lands to ZIONTZ CHESTNUT COMPLAINT - 4 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 provide just 7.8 jobs. As evidenced by a complaint filed by Skagit County on December 30, 2019 2 for breach of trust against DNR, many trust beneficiaries are dissatisfied. Given these disputes 3 4 5 6 and the great implications, clear judicial resolution of DNR’s constitutional authority and obligations in the management of public lands is required. 12. While DNR, some beneficiaries, and the timber industry trade associations rely on the 7 Washington Supreme Court case Skamania v. State, 102 Wn. 2d 127, 685 P.2d 576 (1984) for the 8 principle that DNR must manage public lands to maximize revenue for the enumerated trust 9 beneficiaries, that is a mistaken and overly broad reading of dicta in that case. Skamania concerned 10 11 the outcome of timber sales that had already been planned and sold at public auction to timber companies. Following a downturn in residential construction that coincided with the recession of 12 13 14 the early 1980’s, the State passed legislation releasing timber companies from their contracts. Skamania only stands for the unremarkable proposition that, consistent with the Washington State 15 Constitution, when the State sells trust assets it must do so at “full market value” and cannot give 16 away legally-secured funds to private timber companies. Indeed, the first sentence of the opinion 17 states: “This case concerns the sale of timber from state lands.” 102 Wash. 2d 127, 129 (emphasis 18 19 20 21 added). 13. Unlike Skamania, this case pertains to the scope of the State’s duties when managing public lands. Management encompasses the many decisions the DNR makes regarding where, when, and 22 how to conduct forestry and facilitate other uses of public lands. Well-managed public forests are 23 one of the State’s greatest resources. They hold immense potential value based on their ability to 24 generate revenue from logging, sequester carbon, provide resilience from climate change, promote 25 diverse and strong economies, and preserve fish and wildlife habitat. 26 ZIONTZ CHESTNUT COMPLAINT - 5 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 14. Plaintiffs’ success in this suit would require DNR to take into account “all the people” when it 2 makes decisions in managing State forests. In most instances, that would still entail commercial 3 4 5 6 forestry to generate revenue for specific trust beneficiaries. A ruling for the plaintiffs would simply give DNR broader authority and obligation to consider more than simply maximizing cash revenue for a narrow subset of Washington residents. The more inclusive approach complies with the 7 Washington State Constitution, diversifies use of public lands, and allows DNR to adapt to a 8 modern world where forests have increasingly recognized economic and social value. 9 10 11 II. PARTIES Conservation Northwest 15. Conservation Northwest is a non-profit organization whose mission is to protect, connect and 12 13 14 restore wildlands and wildlife from the Washington Coast to the British Columbia Rockies. Conservation Northwest has approximately 4,000 members, most of whom reside in Washington 15 State. Conservation Northwest and its members have tirelessly advocated for protection of wildlife 16 and connectivity on Washington State lands for decades. 17 16. Conservation Northwest prioritizes collaboration between stakeholders in the management of 18 19 20 21 natural resources. For example, the organization has spent years working effectively with ranchers to reduce wolf-livestock conflicts, to both promote ranching and allow wolf populations to thrive. The organization has taken a similar approach to forestry, collaborating on federal and state lands 22 to advocate for balanced forestry that takes into account the needs of local communities, the most 23 recent science, and impacts to the public. Conservation Northwest spends significant staff 24 resources advocating for supplemental non-timber revenue for trust beneficiaries, including 25 actively participating in a “Solutions Table” convened by DNR attempting to resolve the ongoing 26 tension between the interests of different stakeholders for public lands. ZIONTZ CHESTNUT COMPLAINT - 6 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 Washington Environmental Council 2 17. WEC is a nonprofit, statewide advocacy organization that has been driving positive change to 3 4 5 6 solve Washington’s most critical environmental challenges since 1967. WEC’s mission is to protect, restore, and sustain Washington’s environment for all. 18. For over 50 years, WEC has championed and defended the laws and programs that make 7 Washington a national leader in environmental protection. WEC’s fundamental strategies have 8 been to build partnerships, find common ground, mobilize the public and involve voters, engage 9 decision-makers, and, when necessary, take legal action. 10 11 19. WEC has over 34,000 members. WEC is guided by a 21-member Board representing a nonpartisan and diverse set of interests from business, labor, conservation, and academic 12 13 14 communities with expertise in climate change, forestry, water quality, equity, and health. WEC, through staff, lobbyists, and members, has long sought to promote supplemental non-timber 15 revenue for trust beneficiaries, including actively participating in the DNR “Solutions Table.” 16 Olympic Forest Coalition 17 20. OFCO is a non-profit corporation organized and existing under the laws of the State of 18 19 20 21 Washington since 2002. The organization’s purpose is to promote the protection, conservation and restoration of natural forest ecosystems and their processes on the Olympic Peninsula, including fish and wildlife habitat, and surrounding ecosystems. OFCO maintains its principal 22 place of business in Jefferson County, Washington. OFCO members have monitored timber sales, 23 commented on individual sales and land plans throughout the Olympic Peninsula; calling for 24 science-based solutions that meet the needs of local communities, government services, and 25 education while also preserving habitats and species. 26 ZIONTZ CHESTNUT COMPLAINT - 7 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 21. OFCO members, grandparents and parents have dedicated their time, resources and efforts to 2 preserve, protect and restore ecological treasures—particularly the iconic forests of the Olympic 3 4 5 6 Peninsula—for future generations. OFCO’s members are witnessing the effects of climate change on public forests and marine waters of the Olympic Peninsula. Important species of trees and mosses are struggling to adapt to the changing climate. Wildfires in 2018 and 2019 on the 7 Peninsula were viewed as a clarion warning bell concerning business-as-usual management of 8 public forest lands. 9 22. The OFCO Board of Directors has resolved to prioritize conservation action to reduce and 10 11 mitigate effects of climate change as a foundational principle of the organization. In the face of the climate crisis, OFCO seeks to raise the public interest for this generation and future 12 13 14 generations, and to the honor the sacred trust we have as human beings in defense of wildlife, waterways, salmon, and the majestic trees that give life. OFCO recognizes the need to develop 15 revenues to supplement those supplied by logging to communities and schools, and also dedicated 16 significant resources to DNR’s Solutions Table. Supplemental revenues based on the irreplaceable 17 values of ecosystem services would promote the resiliency and future well-being of Washington’s 18 19 20 21 citizenry. Mike and Meg Town 23. Mike Town, and his wife, Meg Town, are members of the public residing in Duvall, WA. Mr. 22 Town has a B.S. in environmental science from Huxley College of the Environment (Western 23 Washington University) with a concentration in terrestrial ecosystem analysis and a master’s 24 degree in education from the University of Washington. He worked as a silviculturist for the US 25 Forest Service and conducted extensive research on mountain pine beetles. He taught science in 26 public schools for 33 years including courses in environmental science and forestry. He also was ZIONTZ CHESTNUT COMPLAINT - 8 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 an Einstein Fellow for the National Science Foundation in Washington, DC and served for 6 years 2 on the Teachers Advisory Committee for the National Academy of Science. Ms. Town taught in 3 4 5 6 the Sultan School District and the Towns have been very active in volunteering for their local schools. The couple share a passion for protection and sound management of Reiter Foothills, as well as for securing an adequate and reliable source of funding for schools and local government. 7 Holly Koon and Max Duncan 8 24. Holly Koon and Max Duncan are married members of the public residing with their child in 9 Kendall, WA, in Whatcom County. Their home is at the base of Sumas Mountain, below State 10 11 forests that DNR manages. Mr. Duncan works at the nearby Kendall Elementary School. Peter Bahls 12 13 14 25. Peter Bahls is a member of the public residing in Port Townsend, WA, in Jefferson County. 26. Mr. Bahls is Executive Director of the Northwest Watershed Institute, a non-profit 15 organization. NWI's mission is to provide scientific and technical support to protect and restore 16 fish and wildlife habitats and watershed ecosystems of the Pacific Northwest. 17 Marcy Golde 18 19 20 21 27. Marcy Golde is a member of the public residing in Seattle, WA, who spends significant time at her cabin in Jefferson County, WA, in close proximity to State forests. Ms. Golde participates in this lawsuit both as a member of the public and in her capacity as a founding member of the 22 Olympic Forest Coalition. 23 28. Ms. Golde is an avid and longtime forest advocate. She has followed and commented on DNR 24 policy from an environment perspective since 1979, including the negotiation of the 2005-2014 25 Sustainable Harvest Calculation settlement, and the 20-year effort to secure a long-term 26 conservation strategy for the marbled murrelet. Ms. Golde has provided public comment on the ZIONTZ CHESTNUT COMPLAINT - 9 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 DNR trust mandate, the development of the 2015-2024 Sustainable Harvest Calculation, and the 2 long-term conservation strategy. 3 4 5 6 Ms. Golde has also overseen the creation of a database monitoring DNR timber sales in the Olympic Experimental State Forest from 2004 to the present. Scott Wallace 29. Scott Wallace is a member of the public residing in Twisp, WA, Okanogan County. 7 30. Mr. Wallace owns property adjacent to 160 acres of DNR property slated to be transferred to 8 the land bank for sale along with several other parcels within the surrounding area of Twisp and 9 his neighborhood. Mr. Wallace’s interest in conservation was forged on his family dairy farm in 10 11 the Snoqualmie Valley in King County. The property along the Snoqualmie river was bisected by streams that contained essential salmon spawning beds. Over the decades, runoff from ridgeline 12 13 14 development had major impact on the valley floor. As young dairy farmer and student he worked on the Farmland Preservation Program, a successful, and ongoing, King County effort to preserve 15 farmland from development. This early effort informs his current concerns with DNR’s planned 16 sale of public lands adjacent to his home. 17 Linda Lorenz 18 19 20 21 31. Linda Lorenz is a member of the public who owns property across from DNR forests near the East Fork of the Lewis River in Clark County. Ms. Lorenz’ property is directly across from the East Fork of the Lewis River, near the Moulton Falls and Hantwick Trail trailheads. Ms. Lorenz 22 uses the Hantwick Trail on a regular basis and has spent years working with the local community 23 to protect it and the forested corridor in which the trail lies. The Hantwick Trail is unique in that 24 it is accessible to disabled individuals and provides health and recreational benefits to a broad 25 community who enjoy the East Fork of the Lewis river watershed. 26 Defendants ZIONTZ CHESTNUT COMPLAINT - 10 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 32. The Washington State Department of Natural Resources is an agency of the State of 2 Washington and is responsible for managing forests on Washington State lands. See RCW 3 4 5 6 43.30.030. 33. The Board of Natural Resources is part of DNR, RCW 43.30.030, and has the authority and duty to set land management policy according to sound principles of resource management. 7 RCW 43.30.215. In this Complaint, unless otherwise specified, reference to DNR includes the 8 BNR. 9 34. Commissioner of Public Lands Hilary Franz is the administrator of the DNR, responsible for 10 11 performing all the powers, duties, and functions of DNR except those specifically assigned to the Board. RCW 43.30.105; RCW 43.30.421. The Commissioner of Public Lands has a seat on the 12 13 14 Board by law, RCW 43.30.205, and is chair of the Board by choice of the other Board members. The Commissioner also chairs the Forest Practices Board. RCW 76.09.030. 15 35. The state constitution requires that the Commissioner is “severally chosen by the qualified 16 electors of the state at the same time and place of voting as for the members of the legislature.” 17 Art. III, section 1. The Commissioner’s duties and compensation are established and may be 18 changed by the Legislature. Art. III, section 23. 19 III. 20 21 JURISDICTION AND VENUE 36. With respect to the declaratory judgment claim in Count I, the Court has jurisdiction pursuant 22 to RCW 7.24.010. RCW 7.24.010, et. seq., authorizes declaratory relief. 23 37. With respect to the appeals of Board Resolutions 1559 and 1560, the Court has jurisdiction 24 and authority to issue a constitutional writ of certiorari pursuant to the Washington State 25 Constitution, art. IV, section 6, and the Court’s resulting “inherent constitutional power to review 26 illegal or manifestly arbitrary and capricious action violative of fundamental rights.” Pierce ZIONTZ CHESTNUT COMPLAINT - 11 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 County Sheriff v. Civil Service Comm'n for Sheriff's Emps., 98 Wn.2d 690, 693, 658 P.2d 648 2 (1983) (internal quotation omitted); Saldin Sec. v. Snohomish County, 134 Wn.2d 288, 292-294 3 4 5 6 (Wash. 1998). 38. King County is an appropriate venue because a Washington State agency and official are defendants, and because plaintiffs Conservation Northwest and Washington Environmental 7 Council have their principal place of business in King County, and because plaintiff Marcy Golde 8 resides in King County. RCW 4.92.010. 9 39. All claims in this case are timely filed. Claim I is timely and justiciable because the correct 10 11 interpretation of the trust mandate is an issue of significant public concern, the parties have settled legal positions, and because Plaintiffs are today members of “all the people” of Washington who 12 13 14 have been harmed or threatened by the current interpretation of the trust mandate and suffer a concrete threat to their interests resulting from DNR’s pending actions and decisions. 15 40. Claims II and III timely seek writs of review of two Board resolutions approved on December 16 3, 2019. Plaintiffs seek a constitutional writ of certiorari to appeal the two Board Resolutions 17 because DNR’s proprietary decisions in the management of public lands are considered exempt 18 19 20 21 from judicial review under the Administrative Procedure Act (APA). RCW 34.05.010(3)(c). While there is no prescribed appeal deadline for seeking a constitutional writ of certiorari, courts often apply the analogous 30-day appeal deadline imposed by the APA, RCW 34.05.542(2). In 22 the event it is determined that the appealed Board Resolutions are subject to the APA, Plaintiffs 23 appeal in the alternative under RCW 34.05.570. 24 41. As detailed in the complaint, Plaintiffs have standing to pursue the declaratory judgment 25 action. The individual plaintiffs, and members of plaintiff organizations, are affected members of 26 the public who face ongoing procedural and substantive harm caused by DNR’s management of ZIONTZ CHESTNUT COMPLAINT - 12 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 public lands. With respect to each plaintiff DNR has caused procedural harm by asserting that, as 2 a matter of law, DNR must strictly prioritize its perceived fiduciary obligations to specific trust 3 4 5 6 beneficiaries and may not manage public lands in a manner that reduces harms to Plaintiffs if it potentially lessens financial returns to trust beneficiaries. DNR’s legal position is incorrect and violates Plaintiffs’ procedural rights under the Washington State Constitution to have their 7 interests taken into account when DNR manages state forests. 8 42. Individual plaintiffs and members of plaintiff organizations reside near and regularly visit State 9 forests managed by DNR, and have concrete plans to do so in the future. Plaintiffs suffer resulting 10 11 concrete harm or imminent threat of harm to their safety, recreational, aesthetic, and other interests as a result of DNR’s management of state forests. 12 13 14 43. Plaintiffs also have standing to challenge the BNR’s adoption of Resolutions 1559 and 1560. The plaintiff organizations Conservation Northwest, Washington Environmental Council, and 15 Olympic Forest Coalition each have missions that include advocating for sound management of 16 public lands in Washington. The organizations have extensively participated in the administrative 17 processes leading up to the BNR’s adoption of Resolutions 1559 and 1560, including repeated 18 19 20 21 written and oral comments submitted to BNR and DNR. Some of the organizations’ comments were dismissed by DNR and BNR as non-compliant with the perceived trust mandate. Members of plaintiff organizations suffer procedural and substantive harm from the implementation of the 22 trust mandate, as well as the SHC and marbled murrelet long-term conservation strategy. Members 23 of each organization regularly visit State forests managed by DNR, have concrete plans to do so 24 in the future, and suffer health, economic, recreational, aesthetic, and/or other harms from logging 25 carried out under the sustainable harvest calculation (SHC) and the marbled murrelet long-term 26 ZIONTZ CHESTNUT COMPLAINT - 13 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 conservation strategy (MMLTCS or “long-term strategy”). Members of each organization are also 2 harmed by the reduced opportunity to view marbled murrelets as a result of DNR’s logging. 3 4 5 6 44. A grant of the requested relief would redress Plaintiffs’ injuries. Correct interpretation of the constitution to require DNR to manage state forests on behalf of “all the people” would require DNR to take Plaintiffs’ interests into account when managing state forests where management 7 decisions impact Plaintiffs, including on a site-specific basis and when determining the SHC and 8 long-term strategy. 9 10 11 IV. STATEMENT OF THE CASE Background and Legal Framework 45. Washington is blessed with some of the richest and most vibrant forests in the world. In 12 13 14 western Washington, prolific rain, a moderate climate, and rich soils grow large trees quickly. Those forests support vibrant ecosystems of salmon, old-growth dependent species, wolves, bears, 15 orcas, owls, and plant life. In eastern Washington, mature dry forests benefit from abundant sun 16 and snow, and provide valuable shade, fire resiliency, and wildlife habitat. 17 46. In 1889, forests were among the most commercially valuable natural resource in Washington. 18 19 20 21 The Federal government granted the territory of Washington approximately 3 million acres of lands in the Omnibus Enabling Act of 1889 (25 U.S. Statutes at Large, c. 180 p. 676) in a checkerboard pattern of the 16th and 36th sections of each township. The lands were granted “in 22 the support of common schools,” § 10, and the Enabling Act mandates that “all lands herein 23 granted for educational purposes shall be disposed of only at public sale, and at a price not less 24 than ten dollars per acre, the proceeds to constitute a permanent school fund.” Id. at § 11. The 25 Enabling Act never uses the word “trust,” “fiduciary,” or “beneficiary.” 26 ZIONTZ CHESTNUT COMPLAINT - 14 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 47. The grant provided a low-cost means for the Federal government to provide startup revenue to 2 new states. The federally granted lands include forest land, range land, and agricultural land, and 3 4 5 6 lands which now comprise commercial real estate. Washington accepted the granted lands. At the constitutional convention, the Framers considered, but rejected, an amendment to require revenue maximization from the management of state lands. 7 48. Art. XVI, sect. 1 specifies that state lands are managed for “all the people” and must be 8 “disposed of” at full market value, section 2 details the manner of sale at public auction, and section 9 3 states that “[n]o more than one-fourth of the land granted to the state for educational purposes 10 11 shall be sold prior to January 1, 1895, and not more than one-half prior to January 1, 1905.” Section 3 also authorizes the State to sell “timber or stone off of any of the state lands in such manner and 12 13 14 on such terms as may be prescribed by law….” 49. Read together, article XVI, sections 1-3 evidence the understanding that lands and timber 15 would be held and managed for the interests of “all the people” until sold, but when lands and 16 timber are sold they must be sold in a transparent process for full market value as prescribed by 17 the Constitution and applicable law. Funds generated from sale would be dedicated to K-12 school 18 19 20 21 construction and other designated state institutions. This corresponded with the prevailing concern of the era regarding public land, which was that corrupt state governments would give away public lands to well-connected timber barons. 22 50. Unlike other western states, Washington opted to retain nearly all of the federally granted lands 23 and specifically dedicated them to “all the people.” The Washington State Legislature delegated 24 management of state forests to the Department of Natural Resources and the Board of Natural 25 Resources. Over time, DNR consolidated grant lands into larger blocks through land swaps, 26 ZIONTZ CHESTNUT COMPLAINT - 15 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 auctions, and purchases. Through this process the federally granted lands morphed from fractured 2 and scattered parcels to a consolidated land base. 3 4 5 6 51. DNR also owns and manages approximately 546,000 acres of forests acquired from Washington counties. After logging old growth on private lands, many private individuals and entities largely abandoned their cutover lands, and in the 1920s and 1930s, counties acquired these 7 forest lands through tax foreclosures. Later, 21 of these counties opted to transfer lands to the state 8 of Washington to make use of the State’s considerable management resources. In exchange for 9 the deed transfer, the county and junior taxing districts in which the land is located are given a 10 11 majority of the revenue from timber sales and other revenue-producing activities on these lands. The Legislature has directed that the “state forest transfer lands” be managed in the same manner 12 13 14 as the federal grant lands. RCW 79.22.040. From time to time, the State also acquires forest lands via purchase or donation, referred to as state purchase lands. There are approximately 80,000 acres 15 of such lands. 16 52. State forests therefore are comprised primarily of forests in three categories: federal grant 17 lands, which derive from lands received at Statehood, “forest board transfer lands,” which were 18 19 20 21 acquired from certain Counties, and “state forest purchase lands,” which DNR has acquired via purchase or donation. Collectively DNR manages these forests under the same interpretation of the “trust mandate.” Plaintiffs refer to these forested lands collectively as “state forests,” and all 22 forested and non-forested lands collectively as “public lands.” 23 53. Each stand of trees within DNR’s forests are assigned to a specific entity based on the origin 24 of the lands used to acquire the property. DNR serves a variety of specific entities, including the 25 common schools construction fund, various state universities, and prisons, as well as the 21 26 counties who transferred lands to the state for management. DNR refers to these entities as “trust ZIONTZ CHESTNUT COMPLAINT - 16 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 beneficiaries.” The county trust beneficiaries in turn distribute funds to junior taxing districts in 2 proportions determined by the counties. 3 4 5 6 DNR’s Timber Management System under the “Trust Mandate” 54. DNR’s view is that under the Washington State Constitution, the Enabling Act, and common law, all legally available forests must be logged in a manner designed to generate maximum 7 revenue for the trust beneficiaries. DNR implements a management system focused on the 8 development and auction of timber sales with the primary objective of maximizing revenue. As a 9 result, DNR manages State forests in a manner similar to a private timber company or investment 10 11 entity and real estate developer. 55. DNR carries out its duties subject to state and federal law. Specific laws directing public lands 12 13 14 management are set forth in the Public Lands Act, RCW 79.10.010 et seq. The State Legislature has never set forth its understanding of the trust mandate in statute, and provides BNR and DNR 15 with broad discretion in management of public lands. 16 56. The BNR’s organic act tasks BNR with the obligation to “[e]stablish policies to ensure that the 17 acquisition, management, and disposition of all lands and resources within the department's 18 19 20 21 jurisdiction are based on sound principles designed to achieve the maximum effective development and use of such lands and resources consistent with laws applicable thereto.” RCW 43.30.215(2). The Public Lands Act requires that logging be conducted on lands “which are primarily valuable 22 for the purpose of growing forest crops” on a sustained yield basis, but does not preclude lands 23 having other values and does not require logging to occur for maximum sustained yield. RCW 24 79.10.320. The Act also provides that “the department is authorized to identify and to withdraw 25 from all conflicting uses at such times and for such periods as it shall determine appropriate, 26 limited acreages of public lands under its jurisdiction.” RCW 79.10.210. These set-aside lands ZIONTZ CHESTNUT COMPLAINT - 17 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 “shall be maintained for the benefit of the public and, in particular, of the public schools, colleges, 2 and universities, as areas in which may be observed, studied, enjoyed, or otherwise utilized the 3 4 5 6 natural ecological systems thereon.” Id. With respect to non-timber values, the Public Lands Act recognizes and authorizes “uses additional to and compatible with those basic activities necessary to fulfill the financial obligations of trust management,” but does not set forth what those basic 7 activities or financial obligations are. RCW 79.10.120. 8 57. The DNR and BNR have never promulgated regulations explaining the nature or scope of the 9 trust mandate. 10 11 58. DNR’s management of public lands is subject to the State Environmental Policy Act, RCW 43.21C.010, et seq.. There, the Legislature established inter alia that “it is the continuing 12 13 14 responsibility of the state of Washington and all agencies of the state to use all practicable means, consistent with other essential considerations of state policy, to improve and coordinate plans, 15 functions, programs, and resources to the end that the state and its citizens may: (a) Fulfill the 16 responsibilities of each generation as trustee of the environment for succeeding generations.” 17 RCW 43.21C.020(2). 18 19 20 21 59. DNR manages State forests under several programmatic legal requirements and policies, including the 2006 “Policy for Sustainable Forests,” which sets forth broad objectives for forest management, a 1997 “Habitat Conservation Plan” that addresses obligations under the Federal 22 Endangered Species Act and long-term strategy, and the 2015-2024 sustainable harvest 23 calculation, which projects decadal timber volumes, and which sets forth broad agency policies 24 for management related to issues such as recreation and aesthetics. In developing, adopting, and 25 implementing these policies, DNR takes the legal position that the “trust mandate” requires that 26 ZIONTZ CHESTNUT COMPLAINT - 18 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 the agency provide the minimum protections necessary to comply with applicable law, but 2 otherwise must maximize revenue for trust beneficiaries as its primary objective. 3 4 5 6 60. In the Policy for Sustainable Forests, DNR states: “[t]he state of Washington, acting through DNR, has specific obligations in managing the forestlands that are covered by the Policy for Sustainable Forests because they are trust lands.… With the state as trustee, the Legislature has 7 designated DNR as manager of the Federal Grant Lands and State Forest Lands. The fiduciary 8 aspect of trust management requires DNR to manage these lands to produce perpetual income for 9 the beneficiaries (the trusts).” See Policy at 14-15. 10 11 61. In the Final Environmental Impact Statement for the SHC, DNR references and incorporates the Policy for Sustainable Forests and states: “As a trust lands manager, DNR must follow the 12 13 14 common law duties of a trustee. Two of these duties were defined in the 1984 landmark decision County of Skamania v. State of Washington: 1) a trustee must act with undivided loyalty to the 15 trust beneficiaries to the exclusion of all other interests, and 2) a state’s duty as trustee is to manage 16 trust assets prudently.” SHC EIS at 1-5 (emphasis added). 17 62. To implement its legal interpretations and policies, DNR staff uses modelling to project harvest 18 19 20 21 over the next 100 years. DNR staff plans individual timber sales and conducts review of proposed sales under the State Environmental Policy Act (SEPA), RCW Chapter 43.21C, the Forest Practices Act, Chapter RCW 76.09, and other statutes and policies. 22 63. A typical timber sale is a major industrial undertaking which involves road construction; 23 logging with a feller-buncher and other machinery; yarding, stacking, sorting, and hauling logs; 24 replanting; and spraying of herbicides and fertilizers. DNR’s most common management regime 25 is “variable retention harvest,” a technical term for what is commonly known as clearcutting. In a 26 variable retention harvest, DNR leaves 8 trees per acre and some additional trees around protected ZIONTZ CHESTNUT COMPLAINT - 19 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 resources (primarily fish-bearing streams and steep and unstable slopes). The result of this 2 approach over time is that more than 85 percent of DNR-managed forests are in “competitive 3 4 5 6 exclusion phase,” comprised of densely packed stands of relatively young, homogenous commercial trees that are replanted following logging. 64. The Forest Practices Act and SEPA provide for public comment. Often, affected members of 7 the public provide input on anticipated impacts of the proposed sale. Despite accepting public 8 comment, DNR takes the legal position that regardless of identified impacts or concerns, as a 9 matter of law the only measures DNR may take in response to public comment is to adjust legally 10 11 required protections but only to the extent those adjustments do not reduce revenue for trust beneficiaries. 12 13 14 65. Following public comment and SEPA review, DNR presents those sales for approval to the Board of Natural Resources, which is primarily comprised of representatives of entities that benefit 15 from timber sale revenue. The BNR approves the sales and they are presented for public auction. 16 At auction, a small number of private timber companies bid for the right to harvest the timber from 17 State forests according to the specifications in the sale. DNR takes 25 to 50 percent of the revenue 18 19 20 21 to fund management and pay other administrative costs, depending on the land classification. The remaining revenue is distributed to specific trust beneficiaries.1 66. Logging on state forests comprises an important source of revenue through timber auctions, 22 taxes, and employment. However, due to past overharvest, planning challenges, and increasing 23 administrative costs, the volume of timber and resulting revenue delivered to specified trust 24 25 26 1 DNR takes 50% of the revenue for state forest purchase lands. These lands are those donated or purchased for counties at low value, and may be in poor condition and require greater management expenditures. ZIONTZ CHESTNUT COMPLAINT - 20 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 beneficiaries is often erratic and is generally declining both in an absolute sense and relative to the 2 funding needs of the trust beneficiaries. 3 4 5 6 67. As a result of DNR’s primary objective of maximizing revenue, the agency designs intensive timber harvest that can easily be carried out by machine, and the agency cannot take into account local economic benefits of forestry other than revenue generated at auction. Greatly increased 7 mechanization and consolidation of the timber and milling industries mean that even when there 8 is significant timber volume, the number and quality of local jobs is declining. DNR’s studies 9 report that it takes at least one million board feet per year of timber volume to provide 7.8 jobs, 10 11 and that logging on state forests has little impact on paper manufacturing and wood products manufacturing jobs. See Marbled Murrelet EIS at 3-79. 12 13 14 68. In addition to timber harvest, DNR generates revenue for trust beneficiaries from land leasing and commercial real estate on forested and non-forested lands. In making land management 15 decisions DNR asserts that it must consider only the financial interests of the trust beneficiaries, 16 and may take into account the interests of the general public only to the extent it does not affect 17 such revenue. 18 19 20 21 69. Pursuant to its perceived trust mandate and RCW Ch. 79.19, DNR is engaging in an aggressive program to auction and swap out lands that it deems to be insufficiently economically productive. This program is focused on lands in areas of high social and ecological value, where surrounding 22 communities oppose intensive logging and other management. In implementing the land exchange 23 program and selecting properties for exchange, DNR contends that it must solely focus on potential 24 revenue for trust beneficiaries, and consideration of broader public or ecological impacts have no 25 role in the agency’s decisionmaking. 26 Impacts and Costs of DNR’s Timber Management System Pursuant to the “Trust Mandate” ZIONTZ CHESTNUT COMPLAINT - 21 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 70. DNR faces serious challenges in its attempts to apply the private trust legal framework to 2 management of public lands. There is untenable tension between DNR’s status as a state agency, 3 4 5 6 with publicly-elected leadership, state employees, state facilities, and oversight of public lands, and the agency’s view that it must absolutely prioritize maximizing revenue from public lands. These dual missions are increasingly incompatible as Washington’s population grows and expands 7 into areas traditionally focused on logging, and public and scientific understanding of the non- 8 timber value of forests grows. The result is a management system that is failing to serve both the 9 trust beneficiaries and the general public. 10 11 71. Logging and associated forest practices as carried out by DNR under its perceived legal obligations generate diverse and significant costs to the public and public resources. Plaintiffs and 12 13 14 members of Plaintiff organizations are members of the public affected by DNR’s management of public lands, and therefore have a right under the Washington State Constitution to have DNR take 15 their interests into account in making management decisions. As detailed below for purposes of 16 establishing Plaintiffs’ claim for declaratory judgment, DNR violates Plaintiffs’ rights under 17 article XVI of the constitution. The individuals highlighted below are illustrative, and similar 18 19 20 21 harms are also suffered by members of each of the Plaintiff organizations. Climate Change Impacts 72. In a January 4, 2018 letter to the Washington State Legislature, Commissioner Franz wrote 22 “we know with certainty that climate change will impact our wildfires, forests, waters and soils, 23 and the timber, fish, shellfish, crops, and wild plants that sustain our communities. In fact, we are 24 already living with such impacts and know that they will grow in the coming decades.” She then 25 urged that “[t]he threats to our healthy and productive lands are real, we are already late in 26 responding, and we cannot afford to wait for others to bring leadership to this challenge.” ZIONTZ CHESTNUT COMPLAINT - 22 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 73. Commissioner Franz went on to explain DNR’s newly established “resilience principles.” 2 With respect to forest management, these principles include to “[i]ncentivize and invest in the 3 4 5 6 management of working forests in ways that increase carbon storage, grow forest management jobs, increase soil moisture storage, increase timber value, sustain timber production, improve summer stream flows, and increase resilience to disturbance.” 2 This letter correctly describes the 7 fact that forest management can optimize carbon sequestration, revenue, and jobs. 8 74. Unfortunately, despite these public statements, the well-established relationship between 9 forestry and climate change, and the vast carbon sequestration potential of public lands in 10 11 Washington, DNR no plans in place to adapt to climate change, promote resilience, or to prioritize sequestration of carbon. By the agency’s own admission “DNR does not currently have a policy 12 13 14 that specifically addresses climate change.” SHC EIS at 3-13. Instead, DNR adheres to an outdated 2006 Policy for Sustainable Forests (PSF), which mentions climate change exactly once, 15 in passing. PSF at 31. DNR also has not implemented creative opportunities like carbon projects 16 that would benefit both climate impacts from additional carbon storage as well as provide a 17 diversified source of revenue for beneficiaries. While these projects can be more complicated on 18 19 20 21 22 public lands, they have shown to be successful in other areas, including WEC’s Nisqually Carbon Project.3 Instead, DNR is pursuing a status-quo continuation of commercial forestry, in large part to serve what it views as its legal obligation under the trust mandate to prioritize financial value from logging. 23 24 2 25 26 Washington State Department of Natural Resources Resilience Principles. Available at https://www.dnr.wa.gov/publications/em_resilience_principles.pdf 3 Swedeen Lessons from Exploring the Use of California’s Carbon Market to Leverage Forest Conservation in Washington State. The Nisqually Land Trust Case. (2016.) Available at https://wecprotects.org/wpcontent/uploads/2016/11/Nisqually-Lessons-Learned_full.pdf ZIONTZ CHESTNUT COMPLAINT - 23 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 75. Every aspect of forest management is affected by climate change. According to DNR in a 2 summary of climate change impacts, “[t]imber production may be negatively affected by increased 3 4 5 6 disturbance and prolonged moisture stress in some locations. Increased disturbance will likely affect critical habitats for forest dependent species and may challenge the existing strategies that support species recovery. Increased landslide risk may result from heavier rainfall and more rain 7 in winter, potentially threatening public safety, damaging public resources such as fish and water, 8 and causing the loss of productive timber lands. Seed diversity and supply may be insufficient to 9 support reforestation needs. The financial viability of dry forests in eastern Washington is expected 10 11 to become more challenging due to reduced productivity. Reforestation of some dry forest areas may no longer be ecologically viable due to low moisture levels.”4 12 13 14 76. DNR further predicts that public safety will be placed at risk, as “[l]arge fires are projected to become more frequent and the fire season is likely to start earlier and last longer, requiring 15 increased resources over a longer period. Increased wildfire activity is expected to increase the 16 risk to wildland firefighters, communities, infrastructure and natural resources across the state.” 17 77. DNR’s forestry contributes to climate change, both from emissions and foregone sequestration. 18 19 20 21 Wood product emissions are the result of fuel burned by logging equipment, the hauling of timber, milling, wood burned during forestry activities, and the ongoing decomposition of trees after they are cut. Relative to preservation or less intensive, longer-rotation forestry, DNR’s industrial 22 forestry is a significant source of carbon emissions, both as a result of timber harvesting operations 23 and related trucking and milling, and as a result of foregone carbon sequestration. A recent study 24 25 26 4 Assessment of Climate Change-Related Risks to DNR’s Mission, Responsibilities and Operations, 2014-2016 Summary of Results, Department of Natural Resources, 1, https://www.dnr.wa.gov/publications/em_climate_assessment010418.pdf?ovn8b8. ZIONTZ CHESTNUT COMPLAINT - 24 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 titled “Land use strategies to mitigate climate change in carbon dense temperate forests,” (Law et 2 al. 2018) concluded that forestry is Oregon’s single largest carbon polluter.5 While forestry under 3 4 5 6 Oregon law is more intensive than in Washington, similar practices and conditions strongly suggest high carbon emissions from logging on DNR-managed State forests. 78. The location and extent of DNR-managed State forests positions those forests to sequester and 7 store vast amounts of carbon in trees, roots, and soils if allowed to grow older and not over- 8 harvested. A recent study, which includes consideration of private lands, suggests that carbon 9 sequestration in Washington’s forests could be increased by 44% and timber production by 2% 10 11 through adoption of more protective management standards coupled with longer rotations.6 79. A separate study, published by Oregon State University, identifies forests in southwest 12 13 14 Washington and the Olympic Peninsula as “high” forest carbon priority rank. It is titled “Carbon sequestration and biodiversity co-benefits of preserving forests in the western USA,” by Buotte et 15 al.7 The paper concludes that preserving high‐carbon‐priority forests in the western United States, 16 which include DNR-managed forests in southwestern Washington and the Olympic Peninsula, 17 would offset approximately 6 years of regional fossil fuel emissions. 18 19 20 21 80. The 2019 OSU study concludes in part that in high priority forests, “proforestation,” which consists of measures to return forests to a more natural ecological state, has tremendous potential to prevent and mitigate the catastrophic impacts of climate change. The paper states: Preservation of high carbon density Pacific Northwest forests that are also economically valuable for timber production will have costs and benefits to consider, including socioenvironmental benefits, the feasibility of preservation, and 22 23 24 5 Law et al., Land use strategies to mitigate climate change in carbon dense temperate forests. (2018) Available here: https://www.pnas.org/content/pnas/115/14/3663.full.pdf 6 Davies et al., Climate Smart Forestry for a Carbon-Constrained World (Sept. 12, 2017) 26 us.fsc.org/download.ecotrust-forest-carbon-report.415.htm. 7 Buotte et al., Carbon sequestration and biodiversity co-benefits of preserving forests in the western United States. (Dec. 4, 2019) Available here: http://dx.doi.org/10.1002/eap.2039 25 ZIONTZ CHESTNUT COMPLAINT - 25 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 5 opportunity costs harvest. There is tremendous potential for proforestation, growing existing forests intact to their ecological potential, which is an effective, immediate, and low-cost approach to removing carbon dioxide from the atmosphere (Moomaw et al. 2019). Proforestation serves the greatest public good by maximizing co-benefits such as biological carbon sequestration and unparalleled ecosystem services including biodiversity enhancement, water and air quality, flood and erosion control, and low impact recreation. The development of governance programs to promote forest preservation will be critical. 6 DNR has not contended with the costs and benefits of managing forest for carbon 2 3 4 7 8 9 10 sequestration or developed corresponding policies. 81. Climate change poses a severe threat to the wellbeing and livelihoods of Washington’s residents, and also to the health and productivity of State forests and other public lands. Governor 11 Jay Inslee has recognized that immediate actions can and must be taken to protect families and 12 businesses from the threat of climate change. According to Governor Inslee, Washington leaders 13 simply “cannot be passive witnesses to catastrophic change.” To spur agencies to take much- 14 15 needed action, he issued Executive Order 18-01, State Efficiency and Environmental Performance (Jan. 16, 2018). The Order directs all Washington agencies to consider how their actions contribute 16 17 18 to climate change and to find solutions that will reduce greenhouse gas emissions. According to the Governor, “if we don’t act, our children and grandchildren will inherit these problems on a 19 scale that’s hard to imagine.”8 20 82. As detailed herein, DNR’s failure to adjust to climate change and take advantage of the 21 opportunity presented by modernizing management of the enormous carbon sink embodied in 22 23 24 State forests harms Plaintiffs, members of Plaintiff organizations, and the people of Washington, and fails the constitutional requirement to manage State forests on behalf of “all the people.” 25 26 8 Governor Jay Inslee, Climate Impacts in Washington State, https://www.governor.wa.gov/issues/issues/energy-environment/climate-impacts-washingtonstate (last visited May 17, 2019). ZIONTZ CHESTNUT COMPLAINT - 26 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 2 3 4 5 6 Public Safety 83. State forests are often located between rural residential areas and private forestlands. As Washington’s population and economy quickly grow, there is increasing pressure created by the incompatibility between industrial, clearcut logging and the many other economic and social values of forest land. 7 84. DNR’s legacy of decades of intensive logging has drastically reduced old forest conditions and 8 complex forests on DNR lands. By DNR’s account, 86% of State forests in western Washington 9 (1.27 million acres) are in a “competitive exclusion phase,” which refers to the dense homogenous 10 11 forests that occur after logging. SHC EIS 3-27. 85. Increasingly, wildfires occur in both western and eastern Washington. While DNR seeks to 12 13 14 carry out thinning and prescribed burns to reduce fire risk and has focused recent attention on fire and forest health planning, DNR contends that it is unable to adequately treat overstocked stands 15 due to the lack of sufficient revenue generated. Similarly, after forests burn, in pursuit of revenue 16 maximization DNR carries out intensive post-fire salvage sales in a manner that increases risk of 17 post-fire flooding and decreases ecological elements that support healthy forest restoration. 18 19 20 21 DNR’s perceived trust mandate constrains the agency from taking adequate measures to reduce fire risk, and thereby increase risks to Plaintiffs. Forest fires and their effects threaten the safety and well-being of local communities, including members of Plaintiff organizations whom have 22 had to evacuate their homes and wear respirators to enable them to simply breathe when forest 23 fires encroach upon them. 24 86. Subject to limitations in the Forest Practices Rules, DNR carries out logging and other forest 25 practices on steep and potentially unstable slopes. Logging on steep or unstable slopes, even under 26 ZIONTZ CHESTNUT COMPLAINT - 27 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 applicable forest practices rules, can increase risk of landslides, which can threaten human lives 2 and infrastructure and degrade water quality and aquatic habitat. 3 4 5 6 87. Plaintiffs Holly Koon and Max Duncan provide a site-specific example of the public safety risks imposed by DNR’s logging pursuant to the trust mandate. Ms. Koon and Mr. Duncan and their family live on Sumas Mountain, in Whatcom County. In 2015, DNR proposed the North 7 Zender timber sale above their house. The two harvest units (~100 acres total) and a new road 8 segment (~2,300 feet) were located directly on two large deep-seated landslides on Sumas 9 Mountain. An elementary school, at least 15 residential structures, access roads, a domestic water 10 11 supply intake, and a fish hatchery are all also within the potential runout paths of these two large deep-seated landslides. There are also a significant number of salmon runs (including Coho, Bull 12 13 14 Trout, Pink, Chinook, Steelhead, and Cutthroat) and some wetlands with valuable wildlife habitat directly downstream of the two landslides in Kendall Creek. In this particular setting, the 15 confidence in the slope stability assessment must be high because the potential for harm to the 16 Koon family, the public, and public resources if a landslide were to destabilize is high. 17 88. Concerned about public safety, Ms. Koon and Mr. Duncan retained legal counsel and consulted 18 19 20 21 with a geologist, Dan McShane (President and Senior Geologist at Stratum Group) who reviewed the bare earth LiDAR topographic images for the site, and conducted a site visit. Mr. McShane’s opinion was that the proposed logging increased risk of reactivation of the underlying slides. 22 Subsequently, Dr. David Montgomery, a distinguished professor of Earth and Space Sciences at 23 the University of Washington) independently and separately provided an opinion to the Seattle 24 Times that DNR’s proposed logging directly over this landslide was imprudent, if not reckless. 25 Field review and local knowledge documents strong evidence of slope movement, including mass- 26 wasting sites, pistol-butted trees, cracks in the earth, sharp incipient scarps above the headwall ZIONTZ CHESTNUT COMPLAINT - 28 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 scarps, road bench failures with ensuing landslides, inner gorge slides on headwater streams, not 2 fully developed drainage systems, and unstable worn bedrock. 3 4 5 6 89. Local slides in the recent past, such as the 2009 deep-seated landslide in Racehorse Creek drainage following DNR logging, help to confirm concerns of potential slide activation. 90. Working with a local organization, Ms. Koon and Mr. Duncan appealed the forest practices 7 permit approval, stating in a declaration that “[i]n the past two decades, multiple mass-wasting 8 landslides have damaged our property, closed off road access to our property, and cost us money 9 to clean up. Most of these landslides originated from sites in the middle of an old DNR unit above 10 11 our property. Landslides leading from DNR logging roads have also failed and served as the starting point for small landslides directly above our property. These slides increased the flow of 12 13 14 surface water onto our property, requiring us to hand-dig mitigating ditches to handle the increased surface flow from DNR land.” 15 91. DNR withdrew the North Zender FPA before logging commenced but has never made a formal 16 declaration that the logging application will not be re-filed. Ms. Koon and Mr. Duncan have a 17 reasonable fear that should the North Zender timber sale application ever be refiled and approved, 18 19 20 21 the resultant deforestation above their home located on steep slopes on top of a deep seated landslide could cause devastating harm to their property, their families, their recreational interests, and their jobs as Mr. Duncan works at the Kendall Elementary School which is also located directly 22 under the path of any reactivation of the deep seated landslide. 23 92. DNR has advised Ms. Koon and Mr. Duncan that the DNR “trust mandate” requires DNR to 24 conduct logging on DNR lands--if such logging is consistent with the applicable forest practice 25 rules and DNR policies regardless of whether or not the proposed logging is desirable or prudent 26 given the location directly above homes or schools. As a result of concerns that the existing ZIONTZ CHESTNUT COMPLAINT - 29 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 regulations were insufficiently stringent, Ms. Koon and Mr. Duncan were also plaintiffs in a 2 lawsuit appealing the update to the Washington Forest Practices Board’s Board Manual governing 3 4 5 6 logging on steep and unstable slopes that were instituted following the landslide at Oso. 93. Ms. Koon and Mr. Duncan now enjoy a mutually respectful relationship with their local DNR staff. After several years of collaboratively and creatively addressing local issues as they arise, 7 Ms. Koon and Mr. Duncan have come to trust the competence and critical judgement of the DNR 8 professionals with whom they have worked. For this reason, they were reluctant to join this lawsuit 9 as plaintiffs. However, they made the decision to join in part out of concern that, pursuant to 10 11 DNR’s view of its legal obligations, the North Zender Timber Sale or a similar sale could be reactivated. In Ms. Koon and Mr. Duncan’s view, the problem lies not with staff, but rather the 12 13 14 “trust mandate” and forest practices rules under which those personnel are obliged to operate. In Ms. Koon and Mr. Duncan’s experience, local forest managers are constrained by the trust mandate 15 from finding sensible compromise and creative solutions that would benefit the local community 16 and trust beneficiaries. 17 94. Ms. Koon and Mr. Duncan also joined this suit because they have a strong conviction that, in 18 19 20 21 a world of climate change models which predict complex conditions not even imagined when current laws were written, competent DNR professionals and local experts on the ground should be free to use their professional judgement to place the interests of ALL of Washington’s citizens- 22 -current and future—at the heart of the decision-making process. 23 95. Finally, Ms. Koon and Mr. Duncan strongly believe that no other homeowner need face the 24 mental harm caused by lying awake at night during a rain-on-snow event (or increasingly common 25 severe rain storm) wondering if a clear-cut above their home may be increasing the likelihood 26 of initiating a landslide that could bury them alive. They believe that a more holistic view of ZIONTZ CHESTNUT COMPLAINT - 30 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 DNR’s management obligations to serve the public would allow individual foresters needed 2 flexibility to both generate revenue and take into account the reasonable public safety concerns of 3 4 5 6 7 the local community. Such a broader consideration would allow foresters the discretion to consider not only the degree of risk of slide created by proposed forest practices on public lands, but also the consequences of a slide if it were to occur. Forest Health 8 96. DNR’s focus on revenue from logging as the primary objective has led the agency to forego 9 many necessary measures to promote forest health. While the agency has made efforts to improve 10 11 forest health, those efforts are severely constrained by the perceived trust mandate. DNR claims that ecological thinning, prescribed burns, and other forest health measures are insufficiently 12 13 14 lucrative and therefore cannot be carried out absent allocations of outside funds. 97. In western Washington, DNR has acknowledged that historical logging of riparian buffers 15 (protective forests surrounding streams) has led to dense stands that require thinning in order to 16 promote large woody debris, water quality protection, and salmon habitat. As part of its Habitat 17 Conservation Plan and associated Federal law obligations the agency agreed to carry out ecological 18 19 20 21 thinning in these areas according to strict standards. 98. However, DNR has determined that ecological thinning practices are insufficiently lucrative to carry out to the extent needed. As a result, in the 2005-2014 SHC DNR performed only a small 22 fraction of anticipated thinning. The agency committed to 394 million board feet of thinning but 23 only performed 39 million board feet, less than 1 percent of which occurred in riparian areas. SHC 24 EIS at 2-4. In the upcoming sustainable harvest calculation the BNR chose an alternative with the 25 least riparian restoration, and elected not to include such logging in the sustainable harvest 26 ZIONTZ CHESTNUT COMPLAINT - 31 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 calculation because it is not lucrative and reliable enough. “Harvest activities are expected to take 2 place on an average of 11,447 acres and thinning on 1,592 acres per year.” SHC EIS at 2-15. 3 4 5 6 99. In eastern Washington, DNR’s historical overharvest, particularly of the largest diameter trees (termed “high-grading”) has resulted in extensive acreage of dense, overstocked stands that present great risk of wildfire. In a DNR report titled “The Case for Active Management of Dry Forests 7 Types in Eastern Washington: Perpetuating and Creating Old Forest Structures and Functions,” 8 DNR argues for active management of dry forest types in eastern Washington in order to preserve 9 and perpetuate older forest structures and functions. Specifically, the report details the values of 10 11 12 13 14 large old trees and older forest structures in these dry forests, presents the scientific evidence that substantiates sustain-able active forest management, and offers management guidelines for the restoration and maintenance of older forest conditions.9 100. In DNR’s “Assessment of Climate Change Related Risks” document, the agency notes that 15 “[f]orest health treatment needs exceed the pace and scale possible with current resources. Tree 16 mortality will likely increase due to interactions between reduced soil moisture, pests, and 17 pathogens, especially in eastern Washington,” and also describes increased risk of wildfire.10 In 18 19 20 21 DNR’s “20 Year Forest Health Strategic Plan,” the agency writes that restoring stand diversity is important for fire resilience, but that “most DNR trust lands will likely provide early to midseral stage forests [dense young forests] where revenue production is a primary objective.”11 22 23 9 24 25 26 Franklin et al., The Case for Active Management of Dry Forest Types in Eastern Washington: Perpetuating and Creating Old Forest Structures and Functions. (Sept. 2008) Available at https://www.dnr.wa.gov/Publications/lm_ess_eog_mgmt.pdf 10 Washington State Department of Natural Resources Assessment of Climate Change-Related Risks to DNR’s Mission, Responsibilities and Operations, 2014-2016 Summary of Results. Available at https://www.dnr.wa.gov/publications/em_climate_assessment010418.pdf?f4d80f 11 Washington State Department of Natural Resources 20-Year Forest Health Strategic Plan, Eastern Washington. Available at https://www.dnr.wa.gov/publications/rp_forest_health_20_year_strategic_plan.pdf?fuivas ZIONTZ CHESTNUT COMPLAINT - 32 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 101. 2 Washington, but does not do so as a result of the agency’s view that it must prioritize maximization 3 4 5 6 DNR both recognizes the need to protect and promote forest health in western and eastern of revenue. In many instances where thinning of small-diameter trees and retention of larger, older trees is needed to promote fire resilience and healthy forests, DNR instead chooses to log large diameter trees in order to meet volume and revenue goals. 7 102. 8 and promoting forest health, with resulting harms to native ecosystems. Members of Plaintiff 9 organizations reside near unhealthy state forests, and live in fire-prone areas near state forests. 10 11 DNR’s view that it must maximize revenue prevents the agency from adequately protecting Plaintiff organizations have regularly advocated DNR for improved measures to promote forest health, and have been advised by DNR that forest management must maximize revenue. DNR’s 12 13 14 15 failure to manage forests for “all the people” further creates increased risk of wildfire and associated public safety hazards throughout Washington that harm Plaintiffs. Economic and Recreational Impact 16 103. 17 in communities where recreation is an economic driver. In many locations, timber harvest on DNR 18 19 20 21 The industrial forestry carried out by DNR creates significant economic harms, particularly lands is compatible with the surrounding “working forest” landscape. In other locations, particularly near rapidly-growing urban or suburban areas, DNR’s trust mandate-driven policy of maintaining an aggressive timber program collides with the interests of local residents or the 22 general recreating public’s desire for public lands that provide clean water, recreation, scenic 23 beauty, and trails running through natural Northwest forests. In these areas, tourism, recreation, 24 hunting and fishing, and property taxes often provide much greater economic value over time than 25 a timber harvest every 40-70 years (the approximate range of “harvest rotations” typically 26 employed by DNR). ZIONTZ CHESTNUT COMPLAINT - 33 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 104. 2 DNR’s logging pursuant to the trust mandate, in the Reiter Foothills state forest. The Reiter 3 4 5 6 Plaintiffs Mike and Meg Town provide a site-specific example of the economic impacts of Foothills forest surrounds Wallace Falls State Park in Snohomish County. The park is accessed from the town of Gold Bar, off State Highway 2. Gold Bar, Index, and surrounding towns have increasingly become home to commuters who work in Everett, Edmonds, and Seattle but desire 7 high quality of life and recreation offered by rural communities. 8 105. 9 waterfalls. The Seattle Times documented Wallace Falls as a place where “[m]ossy, old-growth 10 11 Wallace Falls State Park is a popular forested park featuring the Wallace River and several trees and gorgeous waterfalls treat hikers to a sense of wilderness, but the beautiful vistas at Wallace Falls are less than an hour's drive from Everett.” The Park and surrounding area is often 12 13 14 celebrated by the local chamber of commerce, local politicians, and non-profits as a stunning attraction, and it draws heavy use from throughout the State year-round. Surveys by Wallace Falls 15 staff indicate that between 2011 and 2016, park use increased from 140,000 annual visitors to 16 175,000. The Washington Trails Association’s website describes Wallace Falls as “one of the 17 State’s most popular attractions,” and posts a warning that parking may be unavailable for visitors. 18 19 20 21 Snohomish County acquired additional land in order to provide parking and greater trail access. 106. The popularity of Wallace Falls State Park has pushed trail users and recreation to the surrounding DNR-managed State forest. In 2012, DNR received a $325,000 grant from the 22 Recreation and Conservation Funding Board to create trails in the area surrounding Wallace Falls 23 State Park. 24 107. 25 Snohomish County’s recent “Tourism Strategic Plan” recognizes public land as integral to 26 Wallace Falls and the surrounding lands are a key driver of the regional economy. economic growth, and Governor Inslee’s Executive Order 14-01 (“Establishing a Blue Ribbon ZIONTZ CHESTNUT COMPLAINT - 34 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 Task Force to Develop a Transformation Strategy for Outdoor Recreation in Washington State”) 2 states that “outdoor recreation activities in Washington directly support 227,000 jobs and 3 4 5 6 consumers spend $22.5 billion on outdoor recreation equipment, apparel, lodging, and other services, generating $1.6 billion in state and local tax revenue.” 108. Despite the pristine beauty and popularity of Wallace Falls, DNR insists that the trust 7 mandate requires it to undertake business-as-usual industrial logging directly adjacent to the 8 boundaries of the park. In March 2014 DNR proposed an approximately 187-acre state timber 9 sale, known as “Singletary,” directly to the east of Wallace Falls. 10 11 109. DNR waited for approximately two years as a result of permit delays due to a bridge permit, and then brought the sale back to the Board of Natural Resources for consideration in the fall of 12 13 14 2016 and winter of 2017. The sale encountered substantial local opposition and requests for the sale to be reconfigured to be less impactful. According to a Snohomish County joint resolution, 15 Wallace Falls is “one of the county's great hiking trails, tourist attractions, and recreational and 16 economic assets.” Indeed, the county first urged DNR to reduce the size of the sale to reflect 17 Snohomish County’s wish to protect some of the forest. DNR rejected that request based on its 18 19 20 21 belief that the trust mandate precludes the agency, even at the request of a beneficiary, from foregoing potential revenue. Snohomish County later offered to sacrifice its share of the timber revenue for a 25-acre reconveyance from DNR, and sought a delay of the timber sale to acquire 22 funds to compensate junior taxing districts for the remaining lost timber revenue. 23 110. 24 Singletary Timber sale in Snohomish County, the City also recognizes such timber sales and the 25 income generated for local taxing districts to be one-time events with a potential of fifty to sixty 26 On October 19, 2016, the Mayor of Gold Bar wrote to DNR: “Regarding the upcoming year harvest cycles. Visitors to the Wallace Falls State Park bring a sustainable source of income ZIONTZ CHESTNUT COMPLAINT - 35 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 to the Skykomish Valley. Since its inception, this Park has been a perennial favorite with hikers 2 and it is anticipated that this demand will only continue to grow.… A timber sale such as Singletary 3 4 5 6 will potentially have negative impacts on both the contributions to current local economies, and the tourism industry.” 111. Local conservation organizations appealed the sale to Snohomish County Superior Court 7 under the State Environmental Policy Act and prevailed on a narrow issue that required 8 reconsideration of environmental impacts by DNR. Following that decision, and to demonstrate 9 to DNR and affected trust beneficiaries that the citizens who opposed the Singletary sale 10 11 acknowledge that forestry, scenic resources, and recreation are not necessarily incompatible, local citizens commissioned a independent professional forestry plan for the Reiter Forest generally and 12 13 14 the Singletary area specifically. This plan sought to locate smaller clear-cuts away from recreational trails and the State park while, at the same time, producing timber that would achieve 15 approximately 60% of DNR’s harvest volume target. 16 112. 17 in October 2019 that pursuant to its trust mandate it was proceeding forward with a re-designed 18 19 20 21 Despite these good faith attempts to compromise, DNR pushed forward. DNR announced sale, renamed the “Middle May” timber sale. DNR is pursuing several additional timber sales in close proximity to Wallace Falls State Park. The Middle May sale involves roughly the same number of acres as Singletary but the logging units are more spread out and the area around the 22 biggest trails would be thinned for northern spotted owl habitat instead of clear-cut. This 23 reconfiguration demonstrates DNR’s view that it may only adjust timber sales according to 24 existing legal requirements, and the degree to which the perceived trust mandate constrains DNR 25 staff. Throughout the planning process, both in statements to the public and to the BNR, DNR 26 ZIONTZ CHESTNUT COMPLAINT - 36 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 staff has expressed that their ability to find a compromise solution is greatly constrained by the 2 agency’s perceived trust mandate. 3 4 5 6 113. City of Gold Bar resolution No. 19-15, dated December 17, 2019, confirms that the local government remains concerned about the negative economic impacts of DNR’s logging in the vicinity of Wallace Falls State Park. It states in part that “the City of Gold Bar has a history of 7 mining and logging that, while an important part of history and heritage, no longer serves as viable 8 sources of employment or income for its residents,” that “timber sales, whether the Singletary plan, 9 the newly proposed plan called Middle May, or other such plans to harvest vast amounts of forest 10 11 in the surrounding area will negatively and drastically impact both the beauty and functionality of the forests for many decades to come,” and “economic growth for Gold Bar and the Skykomish 12 13 14 valley is primarily going to come through tourism and services in the next fifty years and not through selling natural resources.” The resolution requests that DNR and local governments “find 15 ways to manage the land being proposed for harvesting that will preserve the natural beauty and 16 outdoor recreation, and that will provide sustainable economic benefit for years to come.” 17 114. 18 19 20 21 Plaintiff Mike Town has been a leader in protecting and promoting Reiter Foothills. He has volunteered over a thousand hours working on DNR-related forest issues in the Reiter Foothills Forest, including the Singletary proposed sale and others in the vicinity. Mr. Town serves on the Reiter Foothills Forest Recreation Advisory Board. Mr. Town has also worked with Washington 22 State Parks to protect and to explore the expansion of Wallace Falls State Park into the DNR lands 23 that lie adjacent to it. Mr. Town has participated in dozens of meetings with DNR staff relating to 24 proposed logging in Reiter Foothills Forest. 25 115. 26 Mr. Town has visited the site of the proposed Singletary sale hundreds of times and has concrete plans to continue to do so in the future. He has given tours of the site multiple times. He ZIONTZ CHESTNUT COMPLAINT - 37 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 has a passionate personal interest in the well-being of the Reiter Foothills Forest and has dedicated 2 much of his life to its protection. DNR’s continued pursuit of highly impactful timber sales in 3 4 5 6 Reiter Foothills pursuant to its perceived trust mandate, and inability to modify timber harvest to accommodate interests other than maximization of revenue, harms Mr. Town. 116. Another example of the trust mandate compromising the greater public interest is playing 7 out today in Clark County. There Plaintiff Linda Lorenz owns property near DNR managed State 8 forests, which include the regionally popular wheelchair-accessible Hantwick Trail. In mid-2018, 9 Ms. Lorenz learned that DNR was planning a timber sale known as “Michigan Trotter.” Unit 1 of 10 11 this sale includes the area above and to the south of a large portion of the Hantwick Trail as well as the East Fork of the Lewis River, which comprises valuable steelhead habitat. Since that time, 12 13 14 Ms. Lorenz has attended multiple meetings with DNR about Unit 1 of the sale, has organized local and regional activists, and helped convince the Clark County Council to work hard to prevent 15 DNR’s logging from damaging the trail and surrounding forest, polluting the river, and potentially 16 harming the river’s population of threatened steelhead. 17 117. 18 19 20 21 DNR staff have informed Ms. Lorenz that, as a result of DNR’s trust mandate, the agency has no choice but to log the forests above the trail included in the Michigan Trotter sale and future sales, and absent financial compensation may not provide any additional buffers to protect the Hantwick Trail, public safety, recreational and health benefits, or steelhead habitat. If the forests 22 above the Hantwick Trail are intensively logged as DNR plans, it will reduce Ms. Lorenz’s 23 enjoyment of her property and the Hantwick Trail. DNR’s proposed logging and ongoing threat 24 of logging in the surrounding forest pursuant to its trust mandate causes recreational, aesthetic, 25 and health impacts to Ms. Lorenz. 26 DNR’s Sale and Exchange of Forests and other Public Lands Deemed “Unproductive.” ZIONTZ CHESTNUT COMPLAINT - 38 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 118. 2 or exchange forest land in suburban and surrounding areas, resulting in logging and conversion to 3 4 5 6 In response to the pressures of population growth, DNR has increasingly decided to auction commercial and residential use. Where DNR elects to auction or exchange forest lands for commercial use, public resources are significantly degraded, if not completely lost. 119. The basis for DNR’s land auctions and exchanges is its perceived trust mandate and uses 7 the “land bank” program created in RCW Ch. 79.19. DNR is currently pursuing the 2019 Land 8 Bank Exchange. It describes the goals of the program as follows: “DNR proposes to exchange 9 State trust lands, which are no longer suitable for trust ownership, with properties that have greater 10 11 12 13 14 revenue potential to support the trust beneficiaries. Following the exchange, the properties no longer held in trust ownership will be positioned for sale, with proceeds used to purchase more productive properties.”12 120. In support of the claim seeking declaratory judgment, Plaintiffs Peter Bahls and Scott 15 Wallace provide examples of the impacts of DNR’s forest conversion efforts. Plaintiff Peter Bahls 16 is impacted by DNR’s proposed sale of two parcels in Jefferson County near Hood Canal, known 17 as the “Paradise 40” and the “Canal 40.” One of the parcels, the Paradise 40 remains heavily 18 19 20 21 forested; the other, the Canal 40, has been logged. 121. Both the Canal and Paradise 40 liquidations raised immediate environmental concerns from private citizens, local government, three Indian tribes, and three environmental organizations. The 22 Jefferson County Commissioners advised DNR that it “opposed the sale.” The Commissioners 23 reasoned that the sales threatened to convert working forest land into development lands, and are 24 inconsistent with the County’s unanimous decision in 2011 encouraging DNR to consider an 25 26 12 Washington State Department of Natural Resources Land Bank Exchange 2019. Available at https://www.dnr.wa.gov/managed-lands/land-transactions/land-bank-exchange-2019 ZIONTZ CHESTNUT COMPLAINT - 39 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 alternative forest asset management plan, prepared by a retired DNR forester with 20 years of 2 experience, urging DNR to retain its holdings in the eastern portion of Jefferson County. 3 4 5 6 122. Jefferson County Commissioners further noted that the Canal 40 sale contains core habitat for the lower Duckabush elk herd, and that the Paradise 40 was development-prone forest land near Port Ludlow. 7 123. 8 He has a strong interest in advocating for public resources, including clean water and wildlife 9 habitat, and regularly recreates on sites in E. Jefferson County and visits these sites. 10 11 124. Mr. Bahls is adversely impacted by DNR’s proposal to sell “Canal 40” and “Paradise 40.” Plaintiff Scott Wallace of Okanogan County is affected by a similar auction proposed by DNR of approximately 490 acres just outside Twisp, WA. The lands are undeveloped shrub steppe 12 13 14 and riparian area habitat. DNR desires to sell them based on the belief that the agency must make more money for the trusts. Development of these parcels could have multiple adverse 15 environmental impacts, including increasing sprawl, straining limited water resources, and 16 developing shrub steppe and riparian habitat. 17 125. 18 19 20 21 Like many residents and visitors, Mr. Wallace uses these public lands for recreation and the opportunity for viewing wildlife. These parcels slated for sale provide habitat for denning rattlesnakes, nesting raptors and browse for mule and whitetail deer as well as a host of birds and other wildlife. Mr. Wallace and his neighbors have worked to keep trails accessible and free of 22 litter and noxious weeds. Mr. Wallace’s recreational and aesthetic enjoyment of the lands and his 23 property would be diminished by the auction. 24 25 26 Water Quality, Salmon, Wildlife, and Native Ecology. 126. DNR’s history of conversion of complex, old forests to homogenous plantations has profound ecosystem impacts to wildlife and humans. As compared to more complex forests, the ZIONTZ CHESTNUT COMPLAINT - 40 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 1.27 million acres of State forests in competitive exclusion phase provide limited wildlife or 2 ecosystem value, and lead to greatly reduced surface water quantity and quality. DNR concedes 3 4 5 6 that in these forests “[t]rees fully occupy the site, competing for light, water, nutrients, and space. Dense overstory means there are few or no shrubs or groundcovers and relatively little wildlife use.” SHC EIS at 3-17. 7 127. 8 is causing continuing harm to the public interest. As one example in support of the claim for 9 declaratory judgment, Plaintiffs Mr. Bahls, the Washington Environmental Council, and the 10 11 DNR’s logging of State forests with complex stand structure and rare ecological conditions Olympic Forest Coalition, are deeply concerned with DNR’s planning of timber sales that involve the harvest of known rare forest plant associations in the vicinity of the Dabob Bay Natural Area 12 13 14 in Jefferson County. Within the harvest unit boundaries of planned DNR timber sales in the Dabob Bay area, Natural Heritage Program botanists documented at least two globally imperiled forest 15 types endemic to the Puget Trough in Washington with very few known good quality occurrences. 16 128. 17 Natural Area, but they were later excluded from the Natural Area at the request of the DNR 18 19 20 21 At one point in time, DNR had included these forests in a proposed expansion of the Olympic Region Office in order to meet the planned sales and expected volume. DNR’s expressed view is that it must log these forests to the full extent allowable, regardless of the Plaintiffs’ concern regarding extremely rare ecological features. The logging proposals are a direct result of 22 DNR’s perceived trust mandate. 23 129. 24 quantity. Forest practices rules and DNR policies allow logging around headwater streams, and a 25 dense network of logging roads increases sediment in streams. For example, the Olympic 26 DNR’s logging and associated forest practices also adversely impact water quality and Experimental State Forest, managed by DNR, contains very high road density ranging from 3.7 to ZIONTZ CHESTNUT COMPLAINT - 41 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 5.0 miles of forest road per square mile of forest. In one study carried out in the same region, 2 watersheds with a road density of 4 miles per square mile had elevated sediment loads between 3 4 5 6 2.6 to 4.3 times the expected natural background rate from basins without logging and logging roads.13 Sediment in streams harms adult fish, reduces spawning substrate, and can reduce benthic insect life and cover salmon redds and eggs. 7 130. 8 primarily are), results in sustained depletion of late spring, summer and fall streamflow by up to 9 50% for periods of greater than 50 years after logging.14 Decreased stream flow leads to decreased 10 11 Recent studies conclude that logging in Douglas fir dominant forests (which State forests fish passage and warmer temperatures. 131. DNR concedes that its activities degrade wildlife habitat and water quality, with associated 12 13 14 harms to threatened and endangered species, and for that reason applied for and received “incidental take permits” to harm threatened and endangered species issued by the U.S. Fish and 15 Wildlife Service and the National Marine Fisheries Service. 16 132. 17 to somewhat reduce ongoing harm to those resources to the minimum extent allowable. Under the 18 19 20 21 22 While DNR has protections in place for water quality and wildlife, those protections serve correct reading of the Washington State Constitution, DNR would not always protect wildlife instead of logging, but DNR would have the ability to adjust its management in appropriate circumstances to reflect impacts to the public’s interest in preservation and recovery of native ecosystems. 23 13 24 25 26 Cedarholme et al. 1981. Cumulative Effects of Logging Road Sediment on Salmonid Populations in the Clearwater River, Jefferson County, Washington. Available here: http://www.krisweb.com/biblio/gen_uofw_cederholmetal_1981_impacts.pdf 14 Perry, T.D., and J.A. Jones. 2016. Summer streamflow deficits from regenerating Douglas-fir forest in the Pacific Northwest, USA. Ecohydrology 2016:1-13. DOI 10.1002/eco.1790; see also Memo from Chris Frissell, PhD, Implications of Perry and Jones (2016) study of streamflow depletion caused by logging for water resources and forest management in the Pacific Northwest, available here: http://oregon-stream-protection-coalition.com/wpcontent/uploads/2017/10/MEMO-RE-Implications-of-Perry-and-Jones-2016.pdf ZIONTZ CHESTNUT COMPLAINT - 42 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 133. 2 wildlife or native ecosystems that are not strictly protected. Plaintiffs, including Marcy Golde, 3 4 5 6 DNR’s view is that it must log to the greatest extent allowable, irrespective of impacts to who enjoys the opportunity to view marbled murrelets, salmon, and other wildlife on state forests and surrounding lands in Jefferson County, are harmed by DNR’s interpretation of its trust mandate and the agency’s resulting land management. 7 The Board of Natural Resources’ Adoption of Resolutions 1559 and 1560 8 134. 9 term marbled murrelet conservation strategy and the sustainable harvest calculation. Plaintiffs 10 11 On December 3, 2019, the BNR adopted Resolutions 1559 and 1560, concerning the long- seek writs of certiorari to appeal both of these decisions. As detailed below, in both of these major decisions, the Board’s discretion was severely limited and compromised by its incorrect and 12 13 14 15 unconstitutional perception of its trust mandate and the alleged limits on its authority to protect the broader public interest. The Sustainable Harvest Calculation 16 135. 17 planning decade as calculated by DNR and approved by the Board.” RCW 79.10.300 (5). 18 19 20 21 The SHC is the “volume of timber scheduled for sale from state-owned lands during a “Sustainable” means “harvesting on a continuing basis without major prolonged curtailment or cessation of harvest.” RCW 79.10.310. The broad definition allows DNR significant discretion in setting the method, volume, rotation length, and location of anticipated logging. 22 136. DNR conducts the SHC calculation by dividing up all state forests into sustainable harvest 23 units and the Olympic Experimental State Forest. This calculation takes into consideration the 24 overall forest land base of State forests and the multiple regulatory and policy restrictions 25 governing logging on state forests. 26 ZIONTZ CHESTNUT COMPLAINT - 43 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 137. 2 with varying volume levels. The alternatives ranged in proposed average annual “harvest acres” 3 4 5 6 To set the level of harvest for the next decade, DNR recently evaluated six alternatives from 8,900 acres per year and 384 million board feet of timber to 12,500 acres per year and 550 million board feet of timber. The range of average annual acres of thinning activities undertaken to improve forest health ranged from approximately 1,600 to 7,500. 7 138. 8 agency was legally required to adopt the SHC that maximized financial returns to trust 9 beneficiaries. A stated objective constraining DNR’s evaluation of alternatives was to “[e]nsure 10 11 Throughout the process of selecting the SHC, DNR and the BNR stated the belief that the alternatives analyzed are reasonable, feasible, and consistent with DNR’s trust management obligations, existing DNR policies, and applicable state and federal laws.” SHC EIS at S-2. 12 13 14 139. On December 3, 2019, the BNR approved Resolution 1560, which inter alia, selected “alternative 6” for the SHC. The selected alternative includes an average of 11,400 acres of upland 15 logging per year to deliver 465 million board feet on average. The BNR selected the least amount 16 of thinning, at approximately 1,600 acres per year, and further directed that volume from thinning 17 not count toward the SHC. BNR directed DNR to implement the SHC selection by preparing 18 19 20 21 timber sales that deliver the requested volume. The result of this decision is continue status quo industrial logging. To the extent BNR made changes in approach, it opted to strongly deemphasize forest health restoration and to further focus and intensify “variable retention harvest,” 22 clearcutting, in the uplands. 23 140. 24 guides implementation of the SHC, even though that Policy by its own terms required revision as 25 of 2011, is not based on best available forest science, contains one mention of climate change, and 26 DNR also elected not to meaningfully update its 2006 Policy for Sustainable Forests, which does not consider the value of carbon sequestration. ZIONTZ CHESTNUT COMPLAINT - 44 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 141. 2 meaningfully improving forest health would require a significant change in management approach. 3 4 5 6 Decades of industrial logging practices have degraded DNR’s state forests, and About 86% of its forests (1.27 mil. acres) are in a crowded “competitive exclusion stage,” and only 10% of them are in the “Structurally Complex,” a stage which provides significantly more benefits for other values.15 However, as a result of its perception of the trust mandate, with the adoption 7 of the 2015-2024 SHC DNR plans to continue approximately its status quo approach of industrial 8 logging to maximize revenue. DNR’s past policy has been to harvest “structurally and biologically 9 diverse stands and converting them into even-aged young stands dominated by Douglas Fir.” SHC 10 11 FEIS, at 5-3. None of DNR’s considered alternatives will appreciably improve the structural complexity of State forests over the next 50 years. SHC EIS at 4-19. 12 13 14 142. DNR's Federal Habitat Conservation Plan does drive some improvement in structural complexity over time. However, these improvements are not expanded in the general management 15 of DNR lands under the newly adopted SHC given the stated constraints of the Trust 16 Mandate. This decision will leave the majority of DNR's forests in western Washington in a less 17 ecologically resilient status than is needed to adapt to climate change and support the state's native 18 19 20 21 biological diversity. 143. BNR’s decision to continue a status quo approach to logging means that the agency is foreclosing the opportunity to implement a meaningful climate policy because DNR will instead 22 be driven by delivering the volume for specific trust units in the manner and time set forth in the 23 SHC. 24 25 26 15 SHC EIS, at 3-27. “Structurally-complex” forests “increase species diversity and greater abundance of understory species, particularly those associated with older forest conditions. SHC FEIS, at 4-19. ZIONTZ CHESTNUT COMPLAINT - 45 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 144. 2 environment, analyze climate change impacts and benefits of the alternatives, and identify possible 3 4 5 6 While the SHC included an objective to “[c]onsider climate change as part of the affected mitigation measures that will reduce or eliminate any identified adverse environmental climate change impacts of the proposal,” SHC EIS at 5-2, the agency did not consider or evaluate adoption of any forest management standard dictated by sound climate policy. Instead, DNR gave itself 7 “credit” for forests that the Legislature has already approved funds for DNR to preserve in natural 8 or recreational status park status (termed Natural Resource Conservation Areas and Natural Area 9 Preserves) and its federal HCP. DNR arbitrarily and capriciously determined that its logging 10 11 regime selected in the SHC EIS has no adverse climate change impacts and failed to implement any climate change policy. 12 13 14 15 16 17 18 19 20 21 145. The BNR’s adoption of the SHC was based on an erroneous and unconstitutional interpretation of its perceived trust mandate, which unlawfully limited its jurisdiction. The adoption was arbitrary and capricious and justifies review by constitutional writ of certiorari. The Marbled Murrelet Long-Term Conservation Strategy 146. DNR implements the Trust Lands Habitat Conservation Plan, signed in 1997. Adherence to the HCP provides DNR with a permit to harm threatened and endangered species through its forest practices. One of the species harmed by DNR logging is the marbled murrelet, a federal and State-listed threatened seabird. 22 147. 23 stands of mature conifer forests and dives for fish in the cold, rich waters of the Pacific Ocean and 24 Puget Sound. Marbled murrelets fill a narrow biological niche within their rugged habitat. The 25 adult female lays a single egg on a wide mossy branch of a Douglas fir, western hemlock, Sitka 26 The marbled murrelet is a true Pacific Northwest icon because it raises its young in large spruce, western red cedar, or big leaf maple tree. Once the egg has hatched, the parents take turns ZIONTZ CHESTNUT COMPLAINT - 46 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 protecting the egg and flying up to 55 miles from the nest to marine waters to gather food for the 2 chick. To catch fish and marine life, the marbled murrelet flies under water like a penguin. To 3 4 5 6 complete its round-trip journey, short, strong wing beats power the bird at speeds up to one hundred miles an hour. Murrelet chicks are no less impressive. Their feet barely touch the ground—after molting, they leap from the nesting platform and either crash to the forest floor far below or 7 successfully take flight, bound directly for the salt water. The marbled murrelet is dependent upon 8 large, contiguous stands of mature forests for nesting habitat. 9 148. 10 11 Logging adversely affects marbled murrelets in many ways, including decreasing the proportion of marbled murrelets able to find nest sites, fragmenting and creating “edges” around blocks of habitat (which allows greater depredation by crows and other corvids and other 12 13 14 detrimental edge effects), and forcing murrelets into lower-quality habitat with negative consequences for nest success. The noise disturbance created by road construction and heavy 15 logging machinery also adversely impacts murrelets. 16 149. 17 (WDFW), and DNR have all confirmed that loss of habitat due to logging is the leading cause of 18 19 20 21 The U.S. Fish and Wildlife Service (USFWS), Washington Department of Fish and Wildife continued decline of marbled murrelets in Washington. For example, a 2008 DNR report concluded that the “greatest threat identified to marbled murrelets in Washington” is “loss of habitat-containing quality nesting sites” and “an increase in forest fragmentation which is thought 22 to increase predation and decrease nesting success.” 23 150. 24 populations. Across its range, murrelets lost nearly 30 percent of their remaining non-Federal 25 habitat (State and private forests) in the single decade between 1996 and 2006. Between 2000 and 26 Over the past several decades, commercial timber harvest has decimated marbled murrelet 2010, marbled murrelet populations declined by 29 percent. Between 2001 and 2016, the marbled ZIONTZ CHESTNUT COMPLAINT - 47 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 murrelet population declined at an average annual rate of 3.9%. The decline has been even more 2 severe in southwest Washington, where the majority of remaining marbled murrelet habitat is on 3 4 5 6 state land. Between 2000 to 2010, the murrelet population in southwest Washington declined by 6.5 percent annually, for a cumulative ten-year decline of approximately 46 percent. If populations decline by half every ten years, marbled murrelets will be extirpated from the region well before 7 the end of the century. 8 151. 9 biology or habitat of the reclusive murrelet. In order to develop the necessary information to 10 11 When DNR obtained its HCP in 1997, neither the USFWS nor DNR knew much about the conserve the species, DNR agreed to implement a 5-step “interim strategy”, culminating in the development and adoption of a science-based long-term conservation strategy. In the 1997 DNR 12 13 14 HCP, the agency committed to “help meet the recovery objectives of the U.S. Fish and Wildlife Service, contribute to the conservation efforts of the President's Northwest Forest Plan, and make 15 a significant contribution to maintaining and protecting marbled murrelet populations in western 16 Washington over the life of the HCP” and “result in improved conditions for the murrelet over 17 time” (p. IV-44). 18 19 20 21 152. DNR delayed implementation of the long-term conservation strategy over more than a 20- year period, starting and stopping various attempts. In 2012, DNR published a “Purpose and Need” statement which set forth objectives which would guide the development and consideration of 22 alternatives for the LTCS. The statement provided that the first objective of the amendment was 23 to “generate revenue and other benefits for each trust by meeting DNR’s trust responsibilities.” In 24 2019, the Final Environmental Impact Statement confirmed that “DNR needs to obtain long-term 25 certainty for timber harvest and other management activities on forested state lands, consistent 26 ZIONTZ CHESTNUT COMPLAINT - 48 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 with commitments in the 1997 HCP and DNR’s fiduciary responsibilities to the trust beneficiaries 2 as defined by law.” FEIS at S-1. 3 4 5 6 153. Between the years 2012 and 2019, DNR conducted a complex NEPA and SEPA-guided process to evaluate a spectrum of alternative long-term conservation strategies. DNR ultimately set eight (8) potential alternatives, Alt. A, B, C, D, E, F, and G.16 Each of these alternatives had 7 different effects on the three key indicators of murrelet survival and recovery: population size, 8 reproduction, and distribution. 9 154. 10 11 In written public comments agencies (WDFW and the federal Environmental Protection Agency) and multiple conservation organizations asked DNR to adopt an alternative that is more scientifically precautionary and is more certain to facilitate the species’ survival and recovery. 12 13 14 155. DNR ultimately selected the second most logging intensive alternative, “alternative H,” as its preferred alternative and submitted that alternative to USFWS for approval as a major 15 amendment to DNR’s HCP. The agency’s decision was largely based on DNR’s stated constraint 16 of achieving its perceived trust mandate. DNR’s logging under Alternative H would lead to the 17 harvest of 38,744 raw acres of murrelet habitat (or 11,085 adjusted acres) primarily in the first 18 19 20 21 decades of implementation, and that this harm will be mitigated by Alt. H’s highly-speculative and risky commitment to grow back a roughly equivalent amount of habitat, 11,905 adjusted acres measured by footprint, over the remaining 48 years of DNR’s HCP. The proposed, uncertain 22 benefit to offset this harm is insufficient to mitigate the risk of Alt. H. Given their dangerously 23 precarious population trend, the inherent biological risks of DNR’s mitigation strategy, and loss 24 of habitat, a proposed 706 “adjusted” acre gain over 48 years (15 surplus acres a year across all of 25 26 16 MM FEIS, at S-4. ZIONTZ CHESTNUT COMPLAINT - 49 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 western Washington) does not make a significant contribution to murrelet protection and 2 population stability. 3 4 5 6 156. Despite having committed to making a significant contribution to marbled murrelet conservation, DNR determined that it could not comply with this agreement and dedicate any more lands to recover this forest-dependent species than the minimum required to secure a federal 7 incidental take permit. In the FEIS, DNR stated that “[w]hile the long-term conservation strategy 8 is likely to improve the conditions for the marbled murrelet over time thereby contributing to the 9 recovery of the species, the state’s responsibility is not to provide for recovery of the species. If 10 11 the state and trust beneficiaries are required to manage for a standard higher than this, it is within the state’s authority to terminate the HCP and manage these lands utilizing a ‘take’ avoidance 12 13 14 strategies.” MM FEIS, at App. A-13. 157. USFWS approved DNR’s amendment request. On December 3, 2019 the BNR decided to 15 accept the HCP and permit amendment. The BNR’s approval was based on an erroneous and 16 unconstitutional interpretation of its perceived trust mandate, which unlawfully limited its 17 jurisdiction. The adoption was arbitrary and capricious and illegal, and justifies review by 18 constitutional writ of certiorari. 19 V. CLAIMS 20 21 22 23 24 25 26 Claim One—Declaratory Judgment that DNR’s Interpretation and Application of the Trust Mandate Is Inconsistent with and Violates Article XVI of the State Constitution 1. Claim one incorporates paragraphs 1-157 above, to the extent applicable. 2. DNR and BNR take the legal position that the State of Washington must manage public lands to as private trusts to maximize financial return for specific beneficiaries. DNR and BNR utilize the trust mandate in virtually every forest planning, management, and operational decision. ZIONTZ CHESTNUT COMPLAINT - 50 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 DNR has candidly admitted in public meetings that this leads to DNR prioritizing maximizing 2 revenue over all other interests when managing State forests. 3 4 5 6 3. The conflict regarding DNR’s legal position relative to the trust mandate is ongoing, welldeveloped and discrete. DNR presents its view of its perceived “trust mandate” at virtually every Board meeting and instructs the Board members that it is legally bound to uphold the obligations 7 of a private trustee. DNR’s interpretation of its federal lands also directly affects how DNR 8 manages forest board transfer lands and state forest purchase lands. See RCW 79.22.050. 9 4. Plaintiffs and members of Plaintiff organizations live near and regularly visit DNR-managed 10 11 public lands in Washington, and will continue to do so. Throughout Washington, DNR’s interpretation of its perceived trust mandate harms Plaintiffs and members of Plaintiff 12 13 14 organizations. DNR’s trust mandate eliminates the ability of Plaintiffs and members of Plaintiff organizations to have their interests taken into account in the management of public lands, and 15 thereby violates their rights under the Washington State Constitution. The logging that DNR 16 carries out pursuant to the trust mandate causes ongoing harm and threat of harm to Plaintiffs and 17 members of Plaintiff organizations on the site-specific scale of described forest management, as 18 19 20 21 well as on the larger scale of fire risk, carbon emissions, poor forest health, and degraded water quality. 5. Plaintiffs seek a declaration from this Court interpreting the meaning of the phrase “all the 22 people” in article XVI, section 1 of the constitution. The Court should declare that the 23 constitution mandates that DNR has an obligation to manage State forests on behalf of “all the 24 people,” which includes the duty to consider impacts to public interests as part of the agency’s 25 discretionary management decisions. 26 ZIONTZ CHESTNUT COMPLAINT - 51 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 6. Plaintiffs further seek a declaration that DNR’s systematic assertion that it must prioritize the 2 financial interests of specific beneficiaries and cannot consider broader public interests in 3 4 5 6 7 8 9 10 management of State forests violates Plaintiffs’ rights established in article XVI, section 1 of the constitution. Claim Two – Writ of Constitutional Certiorari and Invalidation of the Board of Natural Resources’ Approval of the Sustainable Harvest Calculation. 1. Claim two incorporates paragraphs 1-157 above, to the extent applicable. 2. As set forth in this Complaint, Plaintiffs allege that the Board of Natural Resources’ decision approving the sustainable harvest calculation is illegal, unconstitutional, and manifestly arbitrary 11 and capricious. These allegations justify issuance of a writ of constitutional certiorari and 12 preparation of an administrative record. 13 3. Plaintiffs request an order from this Court declaring that the BNR’s approval of the SHC is 14 15 illegal, unconstitutional, and manifestly arbitrary and capricious, invalidating the approval, and remanding the SHC to the Board for appropriate reconsideration. 16 17 18 19 20 21 Claim Three—Writ of Constitutional Certiorari and Invalidation of the Board of Natural Resources’ Approval of the Marbled Murrelet Longterm Conservation Strategy. 1. Claim three incorporates paragraphs 1-157 above, to the extent applicable. 2. As set forth in the Complaint, Plaintiffs allege that the Board of Natural Resources’ decision approving the Marbled Murrelet Long-term Conservation Strategy is, to the extent it is based on 22 DNR’s misinterpretation of the trust mandate, illegal, unconstitutional, and manifestly arbitrary 23 and capricious. These allegations justify issuance of a writ of constitutional certiorari and 24 preparation of an administrative record. 25 3. Plaintiffs request an order from this Court declaring that the BNR’s approval of the marbled 26 murrelet long-term conservation strategy is illegal, unconstitutional, and manifestly arbitrary and ZIONTZ CHESTNUT COMPLAINT - 52 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 capricious; invalidating the approval; and remanding the marbled murrelet long-term 2 conservation strategy to the Board for appropriate reconsideration. 3 4 5 6 VI. RELIEF REQUESTED Plaintiffs respectfully request the following relief: 1. Grant of declaratory relief set forth in Claim One above. 7 2. Based on the facts alleged herein, to grant the petition for writ of constitutional certiorari for 8 review of the Board of Natural Resources’ decision to approve the Sustainable Harvest Calculation 9 at its December 3, 2019 meeting, and to direct the Defendants to prepare an administrative record. 10 11 For sake of judicial efficiency and reduced cost to the parties, Plaintiffs request that the Court direct the parties to work collaboratively on preparation of an electronic administrative record that 12 13 14 is narrowed as appropriate to address Plaintiffs’ claims. 3. Based on the facts alleged herein, to grant the petition for writ of constitutional certiorari for 15 review of the Board of Natural Resources’ decision to approve the marbled murrelet long-term 16 conservation strategy at its December 3, 2019 meeting, and to direct the Defendants to prepare an 17 administrative record. For sake of judicial efficiency and reduced cost to the parties, Plaintiffs 18 19 20 21 request that the Court direct the parties to work collaboratively on preparation of an electronic administrative record that is narrowed as appropriate to address Plaintiffs’ claims. 4. Enter an order invalidating the Board’s approval of the sustainable harvest calculation in 22 Resolution 1560 and remand to the Department of Natural Resources and Board of Natural 23 Resources for reconsideration. 24 5. Enter an order invalidating the Board’s approval of the Marbled Murrelet Long-term 25 Conservation Strategy in Resolution 1559 and remand to the Department of Natural Resources and 26 Board of Natural Resources for reconsideration. ZIONTZ CHESTNUT COMPLAINT - 53 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962 1 6. Enter an order granting Plaintiffs their costs and attorneys’ fees based on the Equal Access to 2 Justice Act, RCW 4.84, or any other applicable provision of law. 3 7. Any other relief that this Court deems to be just and proper. 4 5 6 Dated this 2nd day of January, 2020. 7 8 _____________________________ Wyatt F. Golding, WSBA No. 44412 Brian Gruber, WSBA No. Ziontz Chestnut 2101 Fourth Avenue, Suite 1230 Seattle, WA 98121 wgolding@ziontzchestnut.com (206) 448-1230 Phone (206) 448-0962 Fax 9 10 11 12 13 14 15 16 17 Peter Goldman, WSBA No. 14789 Washington Forest Law Center 4132 California Ave S.W. Seattle, WA 98116 pgoldman@wflc.org (206) 223-4088 Phone 18 19 20 21 22 23 24 25 26 ZIONTZ CHESTNUT COMPLAINT - 54 2101 FOURTH AVENUE, SUITE 1230 SEATTLE, WASHINGTON 98121 TEL. (206) 448-1230; FAX (206) 448-0962