1 2 3 4 5 6 7 8 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 9 IN AND FOR SKAGIT COUNTY 10 11 12 13 14 15 16 17 18 CONCRETE SCHOOL DISTRICT, a Washington public school district; QUILLAYUTE VALLEY SCHOOL DISTRICT NO. 402, a Washington public school district; NASELLE-GRAYS RIVER SCHOOL DISTRICT, a Washington public school district; CLALLAM COUNTY FIRE DISTRICT NUMBER 4, a county fire district; WAHKIAKUM COUNTY, a Washington county; PACIFIC COUNTY, a Washington county; SKAMANIA COUNTY, a Washington County; MASON COUNTY, a Washington County; CITY OF FORKS, a Washington code city; and AMERICAN FOREST RESOURCE COUNCIL, a nonprofit corporation, 21 22 23 24 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF; BREACH OF FIDUCIARY DUTY; VIOLATION OF STATE ENVIRONMENTAL POLICY ACT, RCW CHAPTER 43.21C; AND APPLICATION FOR CONSTITUTIONAL WRIT OF CERTIORIARI Plaintiffs, 19 20 Case No. v. STATE OF WASHINGTON; WASHINGTON DEPARTMENT OF NATURAL RESOURCES, an agency of the State of Washington; and WASHINGTON BOARD OF NATURAL RESOURCES, an agency of the State of Washington, Defendants. 25 26 COMPLAINT -- 1 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 I. 2 1. INTRODUCTION The State of Washington (“State”), the Washington Board of Natural Resources 3 (“Board”) and the Washington Department of Natural Resources (“Department” or “DNR”) are 4 bound by fiduciary duties to manage over 1.4 million acres of commercial forestlands in trust to 5 provide revenues for public schools, fire departments, hospital districts, and counties of western 6 Washington. Instead of fulfilling these duties, the Board has chosen to pursue other objectives 7 with these lands in a manner that will dramatically reduce the revenues produced for the trust 8 beneficiaries. This action will result in across-the-board budget cuts and reductions of critical 9 public services in rural areas of western Washington. The Board’s action will also significantly 10 reduce timber supply for forest products manufacturers who are a mainstay of rural economies. 11 The Board has taken these service-reducing actions while paying lip service to its trust obligations, 12 by prioritizing measures that it can advertise as “wildlife conservation,” or as providing long-term 13 environmental benefit. In reality, none of the actions proposed by the Board result in meaningful 14 wildlife conservation. Defendants’ decisions deprioritize the interests of the trust beneficiaries in 15 order to advance other priorities, and gratuitously give up portions of the trust assets; they 16 constitute grave violations of their fiduciary duties and should be overturned. 17 2. In 1889, in the enabling act admitting Washington to the Union, the federal 18 government granted to the State, to be held in trust, title to sections sixteen and thirty-six in every 19 township of the proposed state in order to support the common schools; fifty sections to fund the 20 state capitol buildings; seventy-two sections to support state universities; additional lands to 21 support the building of a state penitentiary; ninety thousand acres to support state agricultural 22 colleges; one hundred thousand acres to support normal schools; and grants for the support of state 23 charitable, educational, penal, and reformatory institutions. 1 Today, Washington holds nearly a 24 million acres of westside forest land in trust for the purpose of providing financial support to the 25 26 1 Omnibus Enabling Act of 1889, 50th Cong., 2d Sess., ch. 180, 20 Stat. 676 (1889). COMPLAINT -- 2 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 schools, universities, and other public institutions that were endowed with these lands in 2 Washington’s Enabling Act. The terms of the trust are set by the Enabling Act and embodied in 3 Washington’s Constitution, as the Constitutional provisions were the final prerequisite for 4 President Harrison’s Proclamation of Statehood on November 11, 1889. The terms of the trusts 5 have not been amended in the succeeding 130 years. These endowed land trusts are “real, 6 enforceable trusts” under both state and federal law. Skamania Cty. v. State, 102 Wn.2d 127, 132, 7 685 P.2d 576, 580 (1984). In the management of these trusts, the state therefore has the same 8 fiduciary duties toward the beneficiaries as would a private trustee. 9 3. By statutes passed in the 1930s, the State required counties to deed to the 10 predecessor of DNR land that the counties owned after tax foreclosures, on the understanding that 11 the State would manage the lands in trust to produce sustained-yield forest products and that 12 revenues from those lands would come back to the counties and their junior taxing districts as a 13 long-term sustained source of revenue. RCW 79.22.040. Like the federally-endowed lands, these 14 state forest lands are held in real, enforceable trusts for the benefit of the counties and their junior 15 taxing districts. In the management of these trusts the state has the same fiduciary duties toward 16 the beneficiaries as would a private trustee. 17 4. Among the fiduciary duties owed by the state as trustee are a duty of undivided 18 loyalty to the trust beneficiaries, a duty of full disclosure, and a duty of prudent management of 19 the lands, which includes the duty to make reasonable inquiries and investigations. To fulfill these 20 fiduciary duties, the state relies upon DNR, the agency to which the state has delegated the task of 21 managing the state trust land, and the Board, which is charged by statute with adopting policies by 22 which the state trust lands are to be managed. 23 5. On December 3, 2019, the State, through the Board and on the advice and 24 recommendation of DNR, made two policy decisions that violated the State’s, the Board’s, and 25 DNR’s fiduciary obligations to the trust beneficiaries. 26 COMPLAINT -- 3 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 6. First, the Board adopted Resolution 1660, setting a Sustainable Harvest Calculation 2 for the 2015-2024 planning decade that substantially lowered harvest rates across the state trust 3 land base. The Sustainable Harvest Calculation, which was adopted five years late, will correlate 4 to an approximately 23% drop in revenues to the trust beneficiaries from the already reduced 5 harvest levels of the last decade. The Board violated its fiduciary duties of prudent management 6 and undivided loyalty in adopting the Sustainable Harvest Calculation, among other reasons, 7 because it failed to use reasonable care in crafting a sustainable harvest model; failed to ensure 8 that the beneficiaries’ interests were properly prioritized in the model; failed to meaningfully 9 inventory the forest asset so that its sustainable harvest model could be based on accurate input 10 data; ignored the advice of its own expert; failed to follow industry best practices in the 11 management of the forestland asset; and failed to act in a transparent manner and provided no 12 meaningful way for trust beneficiaries to understand the process or the impacts its decision would 13 have on them. 14 7. Second, the Board breached its fiduciary duties by adopting Resolution 1559, 15 selecting a Long-Term Conservation Strategy for the Marbled Murrelet (the “Murrelet Strategy” 16 or “LTCS”) that improperly reduced the corpus of the trusts by setting aside trust lands for 17 purported murrelet conservation that do not provide habitat for the murrelet and are not required 18 to be set aside in order for DNR to meet its obligations under the Endangered Species Act (“ESA”). 19 The marbled murrelet (Brachyramphus marmoratus) is a small seabird that is listed as threatened 20 under the ESA. The murrelet uses late-successional and old-growth forests for nesting purposes, 21 but otherwise makes no use of forestlands. The Murrelet Strategy sets aside thousands of acres of 22 managed second- and third-growth forests for the murrelet, which the murrelet simply cannot use. 23 The Murrelet Strategy adopted by the Board violates its fiduciary duties of prudent management 24 and undivided loyalty because the strategy prioritized murrelet conservation over the interests of 25 the beneficiaries; it unnecessarily set aside tens of thousands of acres of trust land in a manner that 26 made them entirely unprofitable; it failed to act like a reasonably prudent forester managing COMPLAINT -- 4 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 commercial forest lands; it failed to make reasonable inquiries to determine the minimum amount 2 of land that was necessary to set aside for the murrelet so as to satisfy the requirements of the 3 Endangered Species Act; and it failed to defend the trusts by ensuring that the federal government 4 abided by the terms of the 1997 Habitat Conservation Plan governing state forest lands. 5 8. In addition to these violations of the State’s fiduciary obligations to the trust 6 beneficiaries, both the Sustainable Harvest Calculation and Murrelet Strategy decisions were made 7 in violation of the State Environmental Policy Act, Chapter 43.21C RCW (“SEPA”). Specifically, 8 DNR failed to properly evaluate in each Environmental Impact Statement (“EIS”) the impacts that 9 the decisions would have on public services due to reductions in revenues to counties, junior taxing 10 districts, the common schools, and the state universities. DNR failed to analyze the impacts that 11 reductions in harvest levels would have on school districts that are dependent on timber revenues, 12 or on fire departments that are losing significant revenue as a result of set asides, or on county 13 sheriff’s departments that rely heavily on timber revenues. Under WAC 197-11-444, “public 14 services and utilities,” “fire,” “schools,” “parks or other recreational facilities,” and “other 15 governmental services or utilities” are each elements of the environment which must be analyzed 16 in an EIS when a proposed action will affect them. For many of the trust beneficiaries a decrease 17 or increase in harvests from state trust lands directly impacts the scope and availability of these 18 governmental services. The purpose of SEPA is to ensure that when public officials make 19 decisions with adverse impacts on elements of the environment, they make those decisions with 20 full information, and with full information having been provided to the public. The failure of the 21 Final Environmental Impact Statements (“FEIS”) for the Sustainable Harvest Calculation and the 22 Murrelet Strategy to provide that information makes those FEISs inadequate. The FEISs for both 23 the Long-Term Murrelet Strategy and the Sustainable Harvest Calculation are deficient and must 24 be set aside. 25 26 9. Both the Sustainable Harvest Calculation and Murrelet Strategy decisions were willful and unreasoning actions, in disregard of the facts and circumstances, and therefore arbitrary COMPLAINT -- 5 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 and capricious or contrary to law. Under Article IV, Section 6 of the Washington Constitution, 2 the Court has inherent power to set aside such arbitrary and capricious decisions. Due to the 3 importance of these issues to Washington’s timber economy, and the tens of thousands of 4 Washingtonians that rely upon it, this Court should also grant a Constitutional Writ of Certiorari 5 to review DNR’s Sustainable Harvest Calculation and Murrelet Strategy decisions and set aside 6 those decisions accordingly. 7 8 II. 10. PARTIES Concrete School District is a school district created under the laws of the State of 9 Washington which serves students living in a large swath of eastern Skagit County. Concrete 10 School District is a junior taxing district of Skagit County, and relies on funds generated from the 11 harvest of timber on state trust transfer lands in Skagit County. Concrete School District is entitled 12 to receive funding from the harvest of timber on the federally granted trust lands through the 13 Common School Trust. In addition, it is entitled to receive revenues from the harvest of Forest 14 Board Transfer Lands (now technically “State Forestlands”) within its jurisdictional boundaries. 15 Timber revenues are a critical source of revenue to the school district which, despite covering a 16 large area, has a small tax base due to the existence of a large amount of federally owned land in 17 the district. Historically, the district used timber revenues to pay teacher salaries, but given the 18 inconsistent nature of those DNR payments in recent years the district has been forced to rely on 19 other sources of funding for teacher salaries to avoid layoffs, and has instead attempted to utilize 20 timber revenues to fund the district’s capital projects budget. The district relies on timber revenues 21 to maintain roofs, floors, classrooms, parking lots, and other critical infrastructure. Timber 22 revenues have fallen short of being able to provide the necessary funding to address an historic 23 backlog of deferred maintenance. Currently the district is in immediate need of upgrading the 24 heating system of Concrete Elementary School. Given the inefficiencies of the historic heating 25 system, at times some classrooms will be at 45 degrees while others hover near 85 degrees. 26 Upgrading the system will cost approximately $1 million. Timber revenues have fallen far short COMPLAINT -- 6 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 of being able to fund this project and numerous other necessary improvements. In 2019 the district 2 has received almost no timber revenue, despite receiving hundreds of thousands of dollars in prior 3 years. The proposed decreases in the harvest levels in Skagit County, nearly a 50% reduction in 4 coming years, will have severe negative consequences on the district’s ability to maintain its 5 facilities. 6 11. Plaintiff Quillayute Valley School District No. 402 is a school district created under 7 the laws of the State of Washington which serves students living in and around Forks, Washington. 8 Quillayute Valley School District No. 402 is a junior taxing district of Clallam County, and relies 9 on funds generated from the harvest of timber on Forest Board Transfer Lands in Clallam County. 10 Quillayute Valley School District No. 402 is also entitled to receive funding from the harvest of 11 timber on the federally granted trust lands through the Common School Trust. At present the 12 school district needs to construct a new stadium to facilitate school-sponsored athletic activities. 13 The current stadium was built in 1961 and is at the end of its useful life. Given budgetary 14 constraints faced by the district, timber revenues are the only foreseeable source of funds to 15 construct the new stadium. However, given DNR’s volatile management of the trust, Quillayute 16 Valley School District has been unable to commit funds to the stadium project. Recently, as a 17 result of uncertainty related to timber revenues, the school district was again forced to defer the 18 construction of the badly needed stadium replacement. 19 12. Naselle-Grays River Valley School District is a school district in rural southwest 20 Washington that serves approximately 300 students in grades K-12. The district also operates the 21 Naselle Youth Camp School, which is a state institutional school. The district is a junior taxing 22 district of Pacific County and relies on funds generated from the harvest of timber on Forest Board 23 Transfer Lands in Pacific County. Naselle-Grays River Valley School District is also entitled to 24 receive funding from the harvest of timber on the federally granted trust lands through the 25 Common School Trust. DNR timber revenues are a critical component of the school district’s 26 general fund which provides funding for personnel salaries, building repairs, vehicle upgrades, and COMPLAINT -- 7 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 all other expenses associated with maintaining and operating its schools. Approximately 10% of 2 the school district’s personnel cost is directly funded by timber revenues. A drop in timber 3 revenues would result in the district losing critical personnel, likely requiring it to lay off teachers. 4 Similarly, an increase in timber revenues would allow the district to hire needed personnel. A 5 significant number of students in the district come from households that rely on the timber industry. 6 Not only will a decrease in timber harvests place strains on the district’s budgets, but it will also 7 likely increase needs that the district will need to fill. 8 13. Clallam County Fire District No. 4 is a county fire protection district based in and 9 around Joyce, Washington. The district is a junior taxing district of Clallam County and relies on 10 timber revenues to provide services in its jurisdiction. At present the district is using an outdated 11 fire engine that is in need of a replacement. Given a lack of timber revenues, the district has been 12 unable to purchase the necessary engine. The district does not intend to replace the engine until it 13 receives additional timber revenues. 14 14. Plaintiff Wahkiakum County is a Washington county, validly formed and existing 15 under the Constitution and laws of the State of Washington. In accordance with RCW 79.22.040, 16 Wahkiakum County transferred ownership of 12,612 acres of forestlands to DNR to be held in 17 trust and prudently managed for the benefit of Wahkiakum County. Revenues generated from 18 DNR’s sale of timber on these transferred lands are paid to Wahkiakum County pursuant to RCW 19 79.64.110. Over the past decade approximately 25% of Wahkiakum County’s annual budget has 20 been generated from the sale of timber on lands it transferred to DNR to be held in trust. At present 21 DNR timber revenues provide higher amounts of funding than the county’s property tax 22 collections, and there is no viable alternative to replace a loss of timber revenues in the County’s 23 budget. The interim marbled murrelet plan created by the State Trust Lands Habitat Conservation 24 Plan (“HCP”) prejudiced Wahkiakum County by preventing harvest of mature timber that created 25 no benefit for the marbled murrelet while DNR considered its long-term murrelet conservation 26 plan. The Murrelet Strategy releases some of that timber for harvest, thus causing harvests over COMPLAINT -- 8 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 the next decade to increase. However, this increase is lower than it should be because the 2 Sustainable Harvest Calculation is lowering harvest levels on all of the county’s state forest 3 transfer lands, both newly released lands and previously available lands. The Murrelet Strategy 4 also continues to hold thousands of acres back unnecessarily from future harvests which will 5 depress County revenues from what they would be if those lands were being managed prudently, 6 consistent with the State’s duty of undivided loyalty to the County. 7 15. Plaintiff Pacific County is a Washington County validly formed and existing under 8 the Constitution and laws of the State of Washington. In accordance with RCW 79.22.040, Pacific 9 County has transferred ownership of 23,227 acres of forestlands to DNR to be held in trust and 10 prudently managed for the benefit of Pacific County. Revenues generated from DNR’s sale of 11 timber on these transferred lands are paid to Pacific County pursuant to RCW 79.64.110. Over 12 the past decade a significant share of Pacific County’s annual general fund budget has been 13 generated from the sale of timber on lands it transferred to DNR to be held in trust. In addition to 14 these general funds, Pacific County also distributes DNR trust revenue to numerous junior taxing 15 districts in the county including the county’s hospital districts, fire districts, emergency response 16 districts, and various school districts including the Raymond School District and Naselle-Grays 17 River School District. At present, there is no viable alternative to replace the loss of timber 18 revenues in the county’s budget, nor the budgets of the county’s junior taxing districts that provide 19 critical services in the county. Decreases in timber funding will result in fewer resources available 20 to the school children of Pacific County, the hospitals of Pacific County, and the firefighters who 21 protect Pacific County. 22 16. Plaintiff Skamania County is a Washington County validly formed and existing 23 under the Constitution and laws of the State of Washington. In accordance with RCW 79.22.040, 24 Skamania County has transferred ownership of 42,553 acres of forestlands to DNR to be held in 25 trust and prudently managed for the benefit of Skamania County. Revenues generated from DNR’s 26 sale of timber on these transferred lands are paid to Skamania County pursuant to RCW 79.64.110. COMPLAINT -- 9 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 Skamania County has a long history of working to ensure the state lands trusts are properly 2 managed and was the named plaintiff in the leading Washington Supreme Court decision relating 3 to the trust mandate. Skamania Cty, 102 Wn.2d 127 (1984). Skamania County retains an interest 4 in ensuring the holdings of that case are followed. Over the past decade approximately 17% of 5 Skamania County’s annual budget came from the sale of timber on lands it transferred to DNR to 6 be held in trust. At present, there is no viable alternative to replace a loss of timber revenues in 7 the county’s budget. Timber revenues make up a critical portion of the county’s budget and a 8 reduction in such revenues would result in a corresponding decrease in public services such as 9 policing, firefighting, emergency response, and road maintenance. 10 17. Plaintiff Mason County is a Washington County validly formed and existing under 11 the Constitution and laws of the State of Washington. In accordance with RCW 79.22.040, Mason 12 County has transferred ownership of 28,909 acres of forestlands to DNR to be held in trust and 13 prudently managed for the benefit of Mason County. Revenues generated from DNR’s sale of 14 timber on these transferred lands are paid to Mason County pursuant to RCW 79.64.110. 15 Historically, Mason County relied on DNR trust revenues to pay the salaries of critical county 16 employees. The volatile and inconsistent nature of DNR’s management made it difficult for the 17 county to predict whether it would be able to fully fund these positions. In 2017 Mason County 18 received significantly less in DNR timber revenue than it had anticipated; as a result Mason County 19 was forced to lay off personnel. Following those 2017 layoffs, Mason County shifted to using 20 timber revenues to provide critical county infrastructure upgrades, in order to protect personnel 21 from layoffs. Mason County has subsequently used timber revenues for critical upgrades including 22 the purchase of new patrol cars for the sheriff’s office and the upgrading of the county jail. In 23 addition to these funds, Mason County also distributes DNR trust revenue to numerous junior 24 taxing districts in the county including the county’s hospital districts, library district, port districts, 25 fire districts, emergency response districts, and various school districts including the Hood Canal 26 School District and North Mason School District. Decreases in timber funding will result in fewer COMPLAINT -- 10 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 resources being available to the school children of Mason County, the hospitals of Mason County, 2 and the emergency responders who protect Mason County. 3 18. Plaintiff City of Forks is a city located in western Clallam County on the Olympic 4 Peninsula. Forks is organized as an optional municipal code city under RCW Title 35A. Forks 5 has a long history as a “timber town” and relies on state trust timber sales to provide local 6 employment, school funds, and general county funds. The City of Forks is actively engaged in 7 ensuring the proper management of the state trust land to benefit rural communities and was an 8 intervenor-defendant in litigation related to the past decade’s Sustainable Harvest Calculation. 9 Quillayute Valley School District, a junior taxing district of Clallam County, serves the Forks 10 community and is one of the City’s largest public sector employers. The City also partners with 11 various other junior taxing districts, including the local hospital, fire district, and parks and 12 recreation district, to maximize DNR timber revenues. 13 19. Plaintiff American Forest Resource Council (“AFRC”) is a nonprofit corporation 14 and has paid all fees due and owing to the State of Washington. AFRC is a forest products trade 15 association, which represents the interests of approximately 50 lumber and plywood 16 manufacturing companies and landowners throughout Washington, Oregon, California, Idaho, and 17 Montana. AFRC’s members are dependent upon the consistent and sustainable management of 18 publicly owned forest lands to supply their mills. AFRC represents the majority of purchasers of 19 commercial softwood and hardwood timber from DNR trust lands. The majority of timber from 20 state trust lands is processed at AFRC member mills. AFRC members have invested hundreds of 21 millions of dollars in forest products mills in the State of Washington in reliance on the sustainable 22 source of timber provided by Washington’s state trust forest lands. AFRC members provide 23 thousands of family-wage jobs in rural Washington communities, where the jobs in AFRC- 24 member mills and in other parts of the forest products industry that are essential to growing and 25 harvesting the wood for those mills are often the only family-wage jobs available. The reductions 26 in harvest from state trust lands caused by the decisions being challenged in this suit are the COMPLAINT -- 11 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 equivalent of the total wood supply needed for one of AFRC’s members’ mills, and the loss of that 2 harvest is likely to cause the closure of at least one of AFRC’s members’ mills. In several previous 3 instances, when DNR and the Board have taken actions consistent with their fiduciary duties but 4 have been challenged by parties seeking to reduce harvest from state lands, AFRC has been granted 5 status as an intervenor of right to defend DNR’s and the Board’s decisions because of its members’ 6 dependence on harvests from state lands. AFRC has also joined with trust beneficiaries in previous 7 litigation to challenge DNR and Board decisions that are inconsistent with the State’s fiduciary 8 duties. 9 20. Defendant the State of Washington (“State”) was granted the “federal grant lands” 10 by the federal government at statehood and holds those lands in trust for the named beneficiaries 11 set out in the Enabling Act. In the 1930s, the State began requiring the Counties to deed the Forest 12 Board Transfer Lands (now technically “State Forestlands”) to the State, to be held in trust for the 13 benefit of the counties that deeded them and their junior taxing districts. The State is thus the 14 trustee of both the constitutional trusts and the Forest Board Transfer Lands trusts. 15 21. Defendant Washington Department of Natural Resources (“DNR”) is an 16 administrative agency of the State of Washington created by and organized under RCW Chapter 17 43.30. The Washington State Legislature has delegated the state’s fiduciary duties for managing 18 state trust forestlands to DNR consistent with the trust mandate, common law fiduciary duties, and 19 all other applicable laws. RCW 79.22.040. 20 22. Defendant Washington Board of Natural Resources (“Board”) is established by 21 RCW 43.30.030 and is required to establish policies related to the acquisition, management, and 22 disposition of all lands and resources within DNR's jurisdiction. RCW 43.30.215. In performing 23 such duties, the Board is responsible for managing state trust forestlands in a manner that is 24 consistent with the trust mandate, common law fiduciary duties, and all other applicable laws. 25 26 COMPLAINT -- 12 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 III. 2 23. JURISDICTION AND VENUE Jurisdiction is proper in this Court pursuant to RCW 2.08.010 (Breach of 3 Trust/Breach of Fiduciary Duty), RCW 43.21C.075 (SEPA), RCW 7.24.010 (Declaratory Relief), 4 and the inherent power of the judiciary under Article IV, Section 6 of the Washington Constitution 5 (Writ of Certiorari). 6 24. Venue is proper in this Court pursuant to RCW 4.92.010 because one or more of 7 the plaintiffs have their principal place of business in Skagit County; the cause of action arose in 8 substantial part in Skagit County; and substantial parts of the real property at issue in this case are 9 located in Skagit County. 10 11 12 IV. A. STATEMENT OF THE CASE The History and Importance of Washington’s Trust Lands 25. The State has delegated to DNR the duty to manage approximately 1.4 million acres 13 of commercial forestlands in western Washington in trust for the named beneficiaries. DNR, like 14 the State, acts as a fiduciary for the trust beneficiaries. RCW 79.02.010(14) and (15) describe each 15 category of trust land. These forstlands were acquired and put into trust in two primary ways. 16 26. First, in Washington’s Enabling Act establishing statehood in 1889, the federal 17 government granted lands to the State of Washington for the purposes of creating a public-school 18 system, the construction of a state capitol building, and to support various universities and other 19 public institutions. The Enabling Act grant lands are collectively known as the “federal grant 20 lands” and continue to be held in separate trusts to benefit the purposes for which they were 21 originally granted. The largest federal grant lands trust is the Common School Fund, which pays 22 for the construction of K-12 school infrastructure across Washington. 23 27. The second major category of trust lands is the Forest Board Transfer Lands, now 24 technically known as the “state forestlands.” Title to these lands was acquired by various counties 25 through tax foreclosures in the 1920s and 1930s. These foreclosures occurred primarily after 26 forestlands were logged and then abandoned by owners who saw no value in retaining ownership COMPLAINT -- 13 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 over, and continuing to pay property taxes on, the logged parcels. The failure to regenerate the 2 lands to create a future flow of wood to Washington’s forest products industry, which at the time 3 was the largest industry in the state, was viewed as an existential threat to the future health of the 4 state’s economy. Across the region and state, this period experienced broad adoption of the 5 modern forest management approach known as sustained-yield management, where harvests are 6 planned not to exceed the land’s growth. In order to create a permanent and consistent source of 7 income to the counties and their junior taxing districts and ensure a future consistent flow of wood 8 to Washington’s forest products mills, the Legislature required the counties to transfer the cutover 9 lands to the State Forest Board, the predecessor to DNR, to be regenerated and managed in trust 10 11 for the benefit of the counties and their junior taxing districts. 28. A third, albeit smaller, category of state trust forest lands is known as the “state 12 forest purchase lands.” These were lands that were purchased by or gifted to the state and then 13 placed into trust to provide funding for counties and their junior taxing districts. 14 29. The legislature created DNR in 1957 and delegated to it the management of 15 Washington’s trust forest lands. RCW 43.30.010, 43.30.215, 43.30.411. As trustee, DNR must 16 produce revenue for trust beneficiaries while protecting the land and preserving its 17 productivity. The forest trust lands are primarily valuable for their ability to grow timber crops. 18 DNR generates revenue from these lands primarily through timber sales, which are auctions for 19 the right to log particular parcels of land, or from “sort sales,” in which DNR pays a logger to 20 harvest and sort the logs and sells the logs. DNR retains ownership of the land under either 21 approach. Once the timber is removed, the forest is replanted, regrown, and subsequently 22 harvested again on a sustainable rotation. DNR is required by statute to manage the state trust 23 forest lands on a sustained-yield basis; this is done to ensure that there is a consistent supply of 24 timber available for harvest and as a result a consistent flow of revenue to the beneficiaries. 25 Revenue generation for the beneficiaries is the dominant purpose for which these lands are to be 26 COMPLAINT -- 14 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 managed. All other uses of the land are permissible only to the extent they are consistent with and 2 do not reduce the revenues from this dominant purpose. RCW 79.10.120. 3 30. The annual revenue generated from DNR timber sales is well in excess of $100 4 million. After payment of a management fee to DNR, this revenue is distributed to trust 5 beneficiaries, ranging from major institutions like the University of Washington to small rural 6 school districts such as the Concrete, Quillayute Valley, and Naselle-Grays River School Districts. 7 The trusts are not unified. Instead, a beneficiary’s revenue depends on DNR’s management of the 8 specific parcels of trust land that are held for that beneficiary. DNR’s fiduciary duties for specific 9 parcels will run only to beneficiaries of that parcel. 10 31. In the case of counties and their junior taxing districts, they are dependent on the 11 harvesting of DNR timber located within their jurisdictional boundaries. This creates a direct 12 connection between the finances of rural counties and the management of DNR lands located 13 within their boundaries. Many of the plaintiffs lack the large tax bases and diversified economies 14 that support the basic public services taken for granted in other parts of Washington. In many 15 cases, this situation is a direct result of the predominance of public land in those counties. As a 16 result, trust revenues play a direct and outsized role in ensuring that public services are available 17 in these rural communities, and any reduction in trust land revenues results in equivalent decreases 18 in basic public services such as road maintenance, after-school programing, and emergency 19 response. Plaintiffs in this case will face significant financial harm, resulting in the laying off 20 employees and a decrease in public services, as a result of decreases in DNR harvest levels that 21 result in a lowering of trust revenues. 22 32. Reductions in state trust land harvest levels have additional negative impacts on 23 rural communities beyond the direct losses of revenues paid to beneficiaries. The timber industry 24 remains the economic foundation of much of rural western Washington, and the industry provides 25 family-wage employment to foresters, loggers, truck drivers, mill workers, and others. In many 26 rural communities, there exist few other opportunities for family-wage employment. Inadequate COMPLAINT -- 15 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 log supply for mills results in mill closure, which results in loss of these important rural jobs. 2 Failure to properly manage the trust lands consistent with the trust mandate will result in a ripple 3 effect of negative socioeconomic consequences throughout rural western Washington, including 4 both losses of public services and economic opportunities, and the further erosion of the social 5 fabric of struggling communities. 6 33. This deterioration of Washington’s rural communities is not theoretical. Since the 7 early 1990s there has been a major reduction in the availability of timber in the Pacific Northwest, 8 largely as a result of shifts in the management of the federal forests away from timber production. 9 For example, over 80% of federal forest land west of the Cascades in Oregon, Washington, and 10 California has been placed into no-harvest “reserves.” These reductions have had major negative 11 impacts on the rural communities that rely on timber jobs. A shift in the management of the state 12 trust lands to reduce timber production in order to purportedly foster other objectives will only 13 further erode the health and vitality of affected rural communities. 14 B. 15 DNR’s Sustainable Harvest Calculation 34. As the foundation of its trust management, RCW 79.10.300 through .340 requires 16 DNR to manage forests under its jurisdiction on a sustained-yield basis. Each decade DNR must 17 calculate a sustainable harvest level for the forest land under its management, and the Board must 18 adopt the sustainable harvest level to be followed for the coming decade. The sustained-yield plan 19 must provide for “management of the forest to provide harvesting on a continuing basis without 20 major prolonged curtailment or cessation of harvest.” RCW 79.10.310. This is consistent with 21 the generally accepted definition of sustained yield, which is “the achievement and maintenance 22 in perpetuity of a high-level annual or regular periodic output of the various renewable resources 23 without impairment of the productivity of the land.” Robert Deal ed., Dictionary of Forestry 183 24 (2d ed. 2018). The plan must also include the harvest of arrearages providing the greatest return 25 to the trust based on economic conditions then existing and forecast, as well as analyzing and 26 COMPLAINT -- 16 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 disclosing impact on the environment of harvesting the additional timber. DNR must offer for sale 2 the sustained yield as calculated in the sustainable harvest calculation. 3 35. In 2004, based on DNR’s recommendation, the Board voted to set a sustainable 4 harvest level of 5.97 billion board feet for the 2004-2015 planning decade. In 2006, as a result of 5 changes in DNR policy and as part of a litigation settlement, the 2004-2015 sustainable harvest 6 level was revised downward to 5.5 billion board feet. As of December 3, 2019, DNR had an 7 accumulated arrearage from the 2004-2015 planning period of at least 462 million board feet. 8 36. DNR failed to set a sustainable harvest level for the 2015-2024 planning decade 9 until December 3, 2019. The December 3, 2019 decadal sustainable harvest level dropped to 4.27 10 billion board feet (4.65 billion once a portion of the arrearage was added back in), a more than 25 11 percent reduction over the previous decade’s level. Using conservative timber valuations, this 12 represents a reduction of over $200 million in trust beneficiary payments over the course of the 13 planning decade. 14 37. The reduction in the sustainable harvest level has not been the result of prior 15 overharvesting of trust land, nor the absence of available timber on the landscape. Instead, DNR 16 has dropped the sustainable harvest level as a result of its own failure to prudently manage the 17 forest lands with an undivided loyalty to the interests of the trust beneficiaries. Breaches of DNR’s 18 fiduciary duties have included, among other things, decisions by DNR to exclude lands from active 19 management; decisions by DNR to not meaningfully survey the land base to ensure that its timber 20 inventory is accurate; decisions by DNR to rely on modeling assumptions that are biased towards 21 maintaining long-term forest cover instead of maximizing the revenues to the beneficiaries; 22 decisions by DNR to prioritize the speculative non-economic interests of distant future generations 23 over the interests of the current generations; and a failure to manage the forestlands consistent with 24 the standard of care utilized by a reasonable, careful, and prudent forest-trust manager. 25 26 38. DNR relies upon a computer model to make decisions about harvest levels on the trust land base. This computer model, known as the Forest Estate Model, contains a number of COMPLAINT -- 17 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 errors and assumptions that result in an inaccurate and overly conservative sustainable harvest 2 calculation output. By failing to meaningfully acknowledge, explain, and address the model’s 3 errors and incorrect assumptions, DNR has breached its fiduciary duties by endorsing a flawed 4 sustainable harvest calculation that improperly deprives beneficiaries of significant trust value. 5 39. The foundation of DNR’s model is DNR’s inventory data. DNR does not 6 meaningfully survey its forestlands to determine the quality or volume of timber in its inventory. 7 Instead, DNR has chosen to rely almost exclusively on a computer program coded with decades- 8 old information related to the age-class, stocking, and harvest history of the managed land base, 9 and remote sensing data from Light Detection and Ranging (“LIDAR”) surveys. DNR has no 10 adequate process to confirm that the data being used in its model is in fact reflective of facts on 11 the ground. Forest conditions on the ground routinely diverge from what is used as input to DNR’s 12 Forest Estate Model. DNR has been informed of the inaccuracies in the data utilized by its model, 13 but DNR has taken no significant action to rectify these errors. Any reasonably diligent forestland 14 manager would take steps to ensure that it had adequate and current inventory data and that the 15 data utilized for planning purposes was accurate, and a failure to take steps to ensure the accuracy 16 of the model inputs constitutes a breach of fiduciary obligations. 17 40. Since its last decadal harvest level calculation, DNR also modified the Forest Estate 18 Model to apply overly conservative management approaches intended to increase forest cover over 19 the next 50 years, at the expense of current-generation beneficiaries. 20 41. DNR’s Forest Estate Model purportedly aims to maximize the net present value of 21 the timber investment growing on the landscape. In order to calculate net present value, the model 22 requires a discount rate be applied so that future values can be discounted to present values. The 23 selection of a discount rate is one of the critical decisions that must be made by a forest manager. 24 Selection of too low a discount rate improperly pushes harvests into the future, increases harvest 25 rotations far beyond what is economically efficient, and results in current generations being 26 deprived of revenue. Any diligent forest asset manager would recognize the importance of the COMPLAINT -- 18 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 discount rate and undertake sufficient analysis to determine what the proper discount rate to be 2 applied would be in light of the purposes for which the land was to be managed. 3 42. In 2004, DNR used a 5% discount rate as part of its sustainable harvest level 4 calculation. A 5% discount rate would be low for private forest land managers but is not 5 inconsistent with what public timber managers use when attempting to balance multiple uses on 6 public land. However, DNR has no authority to manage trust land for multiple uses unless it can 7 provide compensation to the trusts for any loss of revenue. DNR must manage trust lands with the 8 financial obligations to the beneficiaries as the dominant purpose of management. 9 79.10.120. As such, the discount rate utilized should be similar to that utilized by a private timber 10 11 RCW land manager. 43. In December 2016, DNR released the Draft Environmental Impact Statement 12 (“DEIS”) for the Sustainable Harvest Calculation that dropped the discount rate used by DNR for 13 planning purposes from 5% to 2%. DNR provided no comparison of its proposed 2% discount 14 rate to rates used by other land managers, nor did it provide any meaningful analysis of why 2% 15 was proper. The selection of a 2% discount rate caused DNR’s sustainable harvest level to 16 dramatically fall, and improperly deferred harvests into the future. DNR justified this rate by 17 noting that it believed it had an obligation to prioritize future generations over present generations, 18 citing to an inapplicable academic article discussing “social” discount rates. The article did not 19 involve the management of a trust asset for income beneficiaries, such as the trust land managed 20 by DNR. 21 44. After issuance of the DEIS, DNR retained a professor at the University of 22 Washington’s College of the Environment specializing in forest management tools, Dr. Sándor 23 Tóth, to review the Forest Estate Model’s computational framework. Dr. Tóth’s review did not 24 investigate the quality and reliability of the input data that DNR utilized, but instead simply 25 examined the computational assumptions included in DNR’s model. Dr. Tóth found four key 26 flaws in DNR’s model, and expressly highlighted the discount rate being used as improper and COMPLAINT -- 19 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 inconsistent with DNR’s obligations to the trust beneficiaries. After a review of public forest 2 managers, Dr. Tóth found no discount rate below 4% being used by any public forest manager, 3 even those that unlike DNR may manage for multiple uses. Dr. Tóth laid out a method by which 4 DNR could calculate the proper discount rate to be used so as to avoid violating its trust obligation. 5 45. After receipt of Dr. Tóth’s report, DNR failed to follow the report’s 6 recommendations to fix the model’s fundamental discount rate problem. Upon information and 7 belief, all DNR did was increase the discount rate from 2% to 3% and cited to the same inapplicable 8 literature it had previously used to support the 2% discount rate. At a public hearing in November 9 2019, DNR acknowledged that this shift was not the result of following Dr. Tóth’s 10 recommendation to determine a proper discount rate, nor the result of any study to determine what 11 the rate should be. At 3%, DNR’s discount rate remains lower than the rate used by any other 12 public landowner identified by Dr. Tóth. DNR’s decision to significantly lower its discount rate 13 from 5% to 3% was arbitrary, and apparently largely driven by a desire to prioritize long term 14 forest cover by reducing the frequency of harvests on the land base. This action violates DNR’s 15 fiduciary obligation of prudent management to the beneficiaries as well as its adopted policy of 16 promoting intergenerational equity. 17 46. On information and belief, DNR did not make any changes to respond to the three 18 other flaws identified by Dr. Tóth. Each of those flaws constitutes a breach of DNR’s statutory 19 and fiduciary obligations. 20 47. As a result of the above actions, DNR’s sustainable harvest calculation has been 21 improperly lowered in a manner that negatively impacts all trust beneficiaries. DNR’s model also 22 forecasts a continuing decrease in timber harvests on DNR lands for the next five decades. The 23 violations are in addition to those detailed below, as well as any others that may be revealed 24 through discovery on the breach of trust claims. 25 26 48. DNR’s Sustainable Harvest Calculation process was largely conducted behind closed doors, and neither the process nor its impacts were ever explained to the beneficiaries or COMPLAINT -- 20 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 the public. The beneficiaries and the public were not given any means by which they could 2 determine the impact or the outcome of specific assumptions and failures by DNR to obtain 3 adequate inventory data. This failure occurred despite numerous beneficiaries (as well as the City 4 of Forks, AFRC, and others) actively seeking additional information about the process and the 5 decision’s impacts. 6 49. The DEIS for the Sustainable Harvest Calculation was released in December 2016. 7 After release of this draft, DNR communicated to beneficiaries that the process could not go 8 forward until the Murrelet Strategy was finalized, and as a result the Sustainable Harvest decision- 9 making process was largely put on hold. Nearly three years later, in October 2019, DNR released 10 its FEIS for the Sustainable Harvest Calculation. After it released its FEIS, DNR stated that it 11 intended to make a decision on December 3, 2019, less than six weeks later and would not delay 12 that decision for any reason. Upon review of the FEIS, numerous beneficiaries became concerned 13 by the significant drops in harvest levels, and the severe impact that these reductions would have 14 on their abilities to provide public services. Numerous beneficiaries voiced their concerns 15 regarding the proposed Sustainable Harvest Calculation between October 2019 and December 16 2019 (as well as in 2016). These concerns primarily focused around the inability of outside 17 observers to understand how DNR reached its conclusions and the potential financial impacts that 18 the decision would have. Numerous beneficiaries asked DNR to delay its decision to allow them 19 to investigate the model and determine its validity. Beneficiaries also repeatedly told DNR that 20 they did not understand what impact the calculation would have on their finances or their abilities 21 to provide public services moving forward. Despite numerous beneficiaries identifying flaws in 22 DNR’s methodology and asking for financial impact information to be provided, DNR ignored the 23 beneficiaries’ wishes and proceeded to push the decision through on a highly compressed timeline. 24 DNR never explained or justified its sustainable harvest methodology to the beneficiaries. Despite 25 being unable to explain the Sustainable Harvest Calculation to the beneficiaries and not having 26 COMPLAINT -- 21 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 evaluated the impacts of the decision on public services provided by the beneficiaries, DNR pushed 2 the decision forward over the objections of various beneficiaries. 3 50. Because of the lack of transparency in DNR’s Sustainable Harvest Calculation, 4 combined with the known deficiencies in the inventory data that provides input to DNR’s Forest 5 Estate Model, and the lack of transparency to the model itself, it is difficult to pinpoint exactly 6 which factors led the results of DNR’s modeling to be so low. It is easy, however, to conclude 7 that under prudent professional management, the trust land DNR manages should be producing 8 significantly more timber volume and revenue. DNR’s failure to manage the trust lands to produce 9 the revenue which would be generated using prudent management is a breach of its fiduciary 10 obligations. 11 C. 12 Marbled Murrelet Long-Term Conservation Strategy 51. In 1997, DNR submitted a Habitat Conservation Plan (“HCP”) to the United States 13 Fish and Wildlife Service (“FWS”) and National Marine Fisheries Service (“NMFS”), and in 14 return was granted an Incidental Take Permit covering various species listed under the ESA, 15 including the Marbled Murrelet. One of the purposes of the HCP was to provide additional support 16 for threatened and endangered forest-dependent species during the decades when federal forest 17 lands will be re-growing habitat under the Northwest Forest Plan. The HCP committed DNR to 18 setting aside 567,000 acres of trust land for the benefit of species listed under the ESA, removing 19 more than 40 percent of the trust land it manages in trust for income beneficiaries from commercial 20 forestry production for the duration of the HCP. 21 52. The Incidental Take Permit exempts DNR forestry activities from the ESA’s 22 Section 9 take prohibition, 16 U.S.C. § 1538, and authorizes commercial forestry activities to 23 continue without threat of violations of the ESA. The HCP and the Incidental Take Permit form a 24 contract between DNR and the federal government that the state would protect habitat for various 25 threatened species in the manner specified in the HCP, in exchange for operational certainty that 26 it could proceed with commercial forest operations on the remainder of the trust land base, even if COMPLAINT -- 22 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 such commercial forestry resulted in incidental take of listed species. The certainty to continue its 2 operations that DNR received in turn provided a level of certainty to trust beneficiaries that their 3 trust lands would provide a consistent stream of revenue, and to AFRC members that their mills 4 would have a continuing supply of timber necessary to keep them operating. This certainty is 5 embedded in the HCP Handbook, which explains, “as long as the permittee is properly 6 implementing the HCP, the [federal] Services will not impose additional requirements or 7 restrictions.” 2 In other words, “a deal is a deal.” 3 To cement this point, the Service’s 1994 “No 8 Surprises” policy is incorporated in the documents for the HCP. 4 9 53. The marbled murrelet was first listed as threatened under the ESA in 1992. The 10 murrelet spends a majority of its life living on near-shore marine waters and migrates inland only 11 to nest on the horizontal branches of large trees. Beyond nesting, the bird makes no use of 12 terrestrial (non-marine) habitats. When the HCP was being negotiated in 1997 relatively little was 13 known about the bird’s terrestrial habitat needs. Recognizing the lack of available science on the 14 habitat needs of the murrelet, the 1997 HCP included an interim murrelet strategy that was very 15 conservative and set aside all forest lands that the drafters thought could conceivably be utilized 16 by the murrelet, until additional research provided a foundation from which a final murrelet 17 conservation plan could be developed. The Marbled Murrelet Strategy is the adoption of the final 18 plan that replaces the 1997 interim strategy. 19 54. Since 1997 much has been learned about the murrelet. During nesting, murrelets 20 must fly to and from their marine foraging areas to bring whole fish to their chick. Those flights, 21 of up to 40 miles or more, are a significant drain on the energy of the adults attempting to feed 22 their young. Recent studies have shown that the decrease in murrelet populations in Washington 23 24 25 26 HCP Handbook at 1-3 (Dec. 21, 2016), available at https://www.fws.gov/endangered/what-we-do/hcp_handbookchapters.html. 2 3 Id. 4 HCP FEIS, Oct. 25, 1996, at A6-1 to A6-4. COMPLAINT -- 23 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 since 1997 is most likely caused by conditions at sea, where populations of forage fish have 2 plummeted, forcing murrelets to feed lower on the trophic scale. The effect of feeding lower on 3 the trophic scale is that since each prey fish provides fewer calories, murrelets have greater 4 difficulty obtaining enough food to maintain body health necessary for breeding, and when they 5 attempt to nest, they are often unable to bring adequate food to their chick. As a result, there is no 6 reason to think the current population of murrelets is limited by available nest sites; the population 7 is limited because, as recent research shows, most murrelets never attempt to nest, if they do 8 attempt to nest, their egg often fails to hatch, and if the egg hatches, their chick often dies of 9 malnutrition. 10 55. We now know that the murrelet is dependent on late-successional and old-growth 11 forests. It does not use managed commercial forestlands or second-growth forests lacking legacy 12 trees, which describes the vast majority of the trust lands managed by DNR. This old-growth 13 dependence arises because murrelets are poor flyers and lack the ability to construct nests. Thus, 14 to “nest,” the bird requires a mossy depression to naturally form on a horizontal limb that is large 15 enough to safely hold the egg and prevent it from rolling off. These depressions, known as 16 platforms, must be on horizontal branches that are a minimum of seven inches in diameter to have 17 a big enough depression so that the egg does not roll off or the chick does not fall off in a 18 windstorm. The broad branches must be a minimum of 50 feet off the forest floor so as to allow 19 the murrelets to generate enough speed for flight after jumping off the branch (the murrelet 20 generally runs across the water to generate speed for take-off, and is not a nimble flier that can 21 easily launch into the air). The platforms should have tree canopy above them to protect the chick 22 during rainstorms and to provide cover from predators. Additionally, nesting murrelets need open 23 flight paths that allow them to approach and leave a nesting platform at high speeds without having 24 to maneuver through a tightly crowded forest canopy. Because the requirements for landing, 25 takeoff and nesting are rooted in the basic biology of the murrelet, murrelets cannot adapt to use 26 forests that have some, but not all, of the required nest stand characteristics. Murrelet nesting has COMPLAINT -- 24 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 not been observed in stands that do not have some elements at least 180 years old. None of the 2 DNR lands at issue have stands this old, and they will not have them even 50 years from now at 3 the end of the HCP’s term. 4 56. The only forests that provide marbled murrelets the type of complex structure that 5 they require are late-successional and old-growth forests. 6 timberlands do not provide marbled murrelet habitat. No replanted commercial forests have been 7 observed to attain the structural complexity necessary to become murrelet habitat. This is largely 8 because it takes centuries for trees to grow horizontal limbs that are high enough and of sufficent 9 diameter for murrelet nesting. Even if Washington’s commercial timberlands were given centuries 10 to grow, they still may not achieve the type of structural complexity that is required because they 11 have been planted as dense, single species plantations. In plantations, trees are planted at such a 12 density that due to overcrowding and competition for sunlight, the trees do not grow significant 13 horizontal limbs. The result is that commercial forests grow a large number of straight trees that 14 have no large diameter branches. In order for overstocked commercial forests to obtain structural 15 complexity, a large number of the trees have to naturally die off or otherwise be removed so as to 16 open up the forest canopy and allow the growth of horizontal limbs. Absent human intervention, 17 it will take hundreds of years for most of DNR’s plantations to develop the late-successional forest 18 characteristics that are essential to the murrelet. Thus, not only do commercial forests fail to 19 provide marbled murrelets habitat today, but if left alone (as the Murrelet Strategy proposes to do) 20 rather than actively managed, these forests will not become habitat until long after DNR’s HCP 21 has expired. 22 57. Previously-harvested commercial The state trust forest lands managed by DNR contain relatively few areas of late- 23 successional and old-growth forest. In accordance with the Department’s Policy for Sustainable 24 Forests, all of the remaining DNR-managed old-growth forests are reserved from commercial 25 harvest. Much of the old-growth forest is also set aside under the 1997 HCP as habitat for other 26 endangered species. DNR has done a robust old-growth survey to ensure that it is adequately COMPLAINT -- 25 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 conserving its remaining old-growth inventory. The most effective way to conserve the marbled 2 murrelet’s terrestrial habitat is to focus on the remaining old-growth that provides the late- 3 successional environment that murrelets need, a conservation action that has already occurred. 4 58. In addition to DNR’s old-growth survey, and as part of the research needed to create 5 a marbled murrelet long term conservation strategy, DNR undertook extensive surveys to identify 6 those areas on DNR land that the murrelets were actually using. Between 1998 and 2002 DNR 7 spent significant resources studying its lands to identify all areas that were actually occupied by 8 murrelets. As a result, DNR knows the limited areas where the murrelet population nests on DNR 9 lands. 10 59. In December 2016, DNR and the FWS jointly published the DEIS for the Marbled 11 Murrelet Long-Term Conservation Strategy. The DEIS considered six alternatives (Alternatives 12 A-F) that would set aside various amounts of trust land for the murrelet, taking it out of commercial 13 production for the benefit of trust beneficiaries and instead holding it solely to provide habitat for 14 marbled murrelets. In the DEIS, DNR and the FWS represented that all of the alternatives being 15 considered met the purpose and need of both agencies. The alternative that aligned most closely 16 with DNR’s trust mandate was Alternative B. In addition to the 567,000 acres of land already set 17 aside for habitat purposes under DNR’s HCP, Alternative B set aside for conservation all of the 18 stands of timber that DNR’s extensive surveying found to be occupied by murrelets but were not 19 already protected for the remaining duration of the HCP – an additional 9,000 acres. Under 20 Alternative B, as part of the total HCP, 576,000 acres, or 42% of the western Washington state 21 trust land base, would be reserved from commercial harvest activity. 22 60. In September 2018, DNR published the Revised Draft Environmental Impact 23 Statement (“RDEIS”) for the Marbled Murrelet Long-Term Conservation Strategy. The RDEIS 24 analyzed two additional alternatives, one an alternative based on comments received from various 25 other agencies (Alternative G), and a second alternative (Alternative H) that was created in 26 response from feedback from the Board and which became the Board’s preferred alternative. The COMPLAINT -- 26 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 preferred Alternative H included approximately 37,000 additional acres of conservation for the 2 murrelet, beyond the 567,000 acres already set aside for habitat protection under DNR’s HCP. 3 The additional acres being taken out of commercial timber production include tens of thousands 4 of acres that are not now murrelet habitat and will not become habitat during the remaining life of 5 the HCP, if ever. In other words, the preferred alternative sets aside additional acreage that is four 6 times the necessary area identified in Alternative B. The Draft Environmental Impact Statement 7 noted that even under Alternative B the volume of murrelet habitat would increase over the period 8 of the HCP. 9 61. In September 2019, DNR published the FEIS for the Marbled Murrelet Long-Term 10 Conservation Strategy. Following the publication of the FEIS, DNR and the Board put the marbled 11 murrelet long term conservation strategy on a fast track to decision. Despite repeated calls from 12 trust beneficiaries that the process had failed to properly consider the public service impacts on 13 their communities or the science of the bird, the Board voted to adopt a slightly modified 14 Alternative H as the HCP Amendment at its December 3, 2019 board meeting, which reserves 441 15 more acres than the 37,000 additional set-aside acres described in the FEIS. The result of this 16 selection is that tens of thousands of trust acres were taken out of production and are no longer 17 being managed to benefit the beneficiaries. 18 62. The adoption of Alternative H constitutes a breach of the Board’s fiduciary 19 obligations to the plaintiffs, because it constitutes a use of trust assets for a purpose that is 20 inconsistent with the trust’s mandate. The 1997 HCP predicted that the ultimate Murrelet Strategy 21 would “make a significant contribution to maintaining and protecting marbled murrelet 22 populations in western Washington.” Alternative B does so because it protects all of the occupied 23 stands that were identified after in-depth surveys conducted by DNR in the early 2000s. Some of 24 these are unlikely to be occupied today due to population decreases caused by at-sea conditions, 25 but would be protected to ensure future murrelets have areas to nest if the population rebounds. 26 The occupied stands protected by Alternative B are in addition to DNR’s protection of 567,000 COMPLAINT -- 27 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 acres for other conservation purposes, and DNR’s policies that set aside DNR’s entire inventory 2 of old growth, which are the forest upon which the murrelet depends. 3 63. As trustee, DNR should have pursued Alternative B, which was the alternative that 4 surrendered commercial production on the fewest number of acres, and thus maximized the value 5 of the trust. Defendants violated their fiduciary duties by failing to adequately pursue Alternative 6 B. On December 3, 2019, when the Board voted to adopt Alternative H, DNR indicated in writing 7 that it was “uncertain” if Alternative B satisfied the requirements of the ESA. Thus, DNR failed 8 to adequately investigate whether Alternative B complied with the ESA’s requirements. DNR and 9 the Board could not make a decision in the best interest of the beneficiaries without fully 10 11 investigating this key issue. 64. Another key flaw in the Murrelet Strategy is DNR’s assumption that it was required 12 to provide mitigation for “taking” murrelets as a result of its forestry activities. DNR used this 13 mitigation requirement as a justification for setting aside additional lands, but this justification is 14 misplaced. Neither the Murrelet Strategy’s FEIS nor DEIS identifies any level of take actually 15 occurring. Furthermore, because murrelets do not use commercial forests, the harvesting of 16 second- and third-growth unoccupied stands on DNR-managed lands does not result in any “take” 17 under the ESA. Because there is no “take,” DNR was not required to mitigate for take. As a result, 18 any lands set aside as mitigation were not required to be set aside under the ESA, and results in an 19 improper reduction in the corpus of the trust to the detriment of the trust beneficiaries. Absent a 20 showing by DNR or the FWS that forestry activities on trust lands are actually “taking” murrelets, 21 there is no reason why lands should be set aside as mitigation for that unproven take. 22 65. DNR’s acceptance of a full mitigation requirement represents a failure to hold FWS 23 to the terms of the HCP, and therefore a breach of its duty to the beneficiaries. Nothing in the 24 HCP requires full mitigation, and nothing in the ESA overrides the HCP. 25 26 66. Even assuming that DNR was required to provide mitigation for take as a result of harvesting murrelet habitat, DNR’s methodology for determining where habitat exists is fatally COMPLAINT -- 28 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 flawed. To identify habitat, DNR relied on a “P-Stage model” instead of actual field surveys to 2 classify habitat. The “model” is little more than a chart of stand age and dominant species. The 3 P-stage model was never properly calibrated (field tested) and a field review of the model’s 4 findings shows that it consistently identifies as “habitat” stands that do not contain essential 5 components which murrelets require for nesting habitat. The result is that the model is improperly 6 requiring trust beneficiaries to provide mitigation for harvesting forest stands that are not and 7 cannot be used by the murrelet. 8 67. DNR has been made aware that its P-Stage model is systematically requiring 9 mitigation for the harvest of non-murrelet habitat, and beneficiaries have requested that DNR 10 conduct a meaningful ground-truthing of the stands that are being identified by the model as 11 “habitat” to determine whether they contain the essential components of murrelet habitat. Despite 12 repeated requests that DNR actually examine the land base for murrelet habitat, DNR has refused 13 to conduct a meaningful field survey. Even a cursory on-the-ground review by a biologist or 14 silviculturalist reveals that thousands of acres of the lands being “mitigated for” are not in fact 15 murrelet habitat, and that the lands being set aside do not provide murrelet habitat. By failing to 16 field review its forests to avoid providing meaningless and ineffective mitigation, DNR has 17 violated its fiduciary obligations to act with undivided loyalty to the sole best interest of the 18 beneficiaries, and has also facilitated an improper erosion of the corpus of the trust. 19 68. The mitigation calculations used by DNR adopt a double standard that costs the 20 beneficiaries significant dollars. When alerted to the issue, DNR failed to take action to protect 21 the beneficiaries’ interests. Specifically, under the mitigation calculations DNR presented to FWS, 22 the trusts are being required to provide mitigation for the potential future harvest of approximately 23 8,550 acres of narrow slivers of murrelet “habitat.” While requiring the trusts to give up land to 24 mitigate the potential harvest of these lands, the model gives the trusts zero mitigation “credit” for 25 the approximately 28,000 acres of similar, narrow stringers that have already been set aside. It is 26 a clear double standard to require mitigation for the harvest of slivers, but also fail to give the trusts COMPLAINT -- 29 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 credit for prior efforts to similar areas. DNR did not adequately address the double standard but 2 instead went forward with a plainly one-sided plan to the detriment of the beneficiaries. 3 69. DNR attempts to justify its decision to adopt Alternative H by a “population 4 viability analysis.” A careful review of the population viability analysis shows that there is no 5 significant difference between the viability of murrelet populations in Washington whether 6 Alternative B or Alternative H is adopted. Moreover, the analysis rests entirely on the assumption 7 that terrestrial habitat rather than food sources is the limiting factor for murrelet populations, an 8 assumption that as shown above lacks scientific support. DNR’s reliance on the population 9 viability analysis is a breach of fiduciary duty and is arbitrary and capricious. 10 11 D. State Environmental Policy Act 70. DNR’s and the Board’s decisions to select a Long-Term Murrelet Conservation 12 Strategy and set a Sustainable Harvest Calculation are subject to the requirements of Washington’s 13 State Environmental Policy Act, RCW Ch. 43.21C. SEPA is a “procedural” statute “that ensures 14 state agencies, among others, consider environmental impacts and alternatives before taking 15 certain actions.” Cornelius v. Wash. Dep't of Ecology, 182 Wn.2d 574, 598 (2015). 16 71. RCW 43.21C.030 requires that each recommendation for a major action 17 significantly affecting the quality of the environment be accompanied by a detailed statement on 18 the environmental impact of the proposed action, and any adverse impacts that cannot be 19 adequately mitigated. 20 72. In an effort to comply with these requirements for the Long Term Murrelet 21 Strategy, DNR and the FWS published a Draft Environmental Impact Statement (“Murrelet 22 DEIS”) in December 2016, a Revised Draft Environmental Impact Statement (“Murrelet RDEIS”) 23 in September 2018, and a Final Environmental Impact Statement (“Murrelet FEIS”) in September 24 2019. DNR took comments on both the DEIS and RDEIS, and some of the Plaintiffs in this matter 25 provided comments. 26 COMPLAINT -- 30 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 73. In an effort to comply with these requirements for the Sustainable Harvest 2 Calculation, DNR published a Sustainable Harvest DEIS in December 2016, and a Sustainable 3 Harvest FEIS in October 2019. DNR took comments on the Sustainable Harvest DEIS, and some 4 of the plaintiffs in this matter provided comments. 5 74. SEPA requires an analysis of the impacts a decision will have on both the natural 6 and the built environment. This analysis must include, among other things, consideration of the 7 impacts a decision will have on public services and utilities, including but not limited to impacts 8 on fire departments, police departments, and schools, as well as other public services. WAC 197- 9 11-444. SEPA also requires an analysis of the impacts on roads and other traffic infrastructure. 10 11 SEPA also requires an agency to respond adequately to public comment. WAC 197-11-560. 75. The counties and junior taxing districts that have brought this lawsuit rely on timber 12 revenues to provide a full range of public services in their jurisdictions. For rural counties such as 13 Wahkiakum, Pacific, and Skamania, timber revenues may make up over 20% of a county’s entire 14 operating budget. These plaintiffs lack reliable alternative sources of revenue. Due to variable 15 timing for timber revenues from state trust lands, these counties often have to borrow money to 16 fund their public safety departments, road crews, and emergency services in years when timber 17 revenue is low, with timber revenues during years with higher harvests used to repay the loans and 18 keep the government afloat. There simply is no excess spending that can be cut, and no alternative 19 sources of revenue for these public bodies’ budgets. The drop in revenues over the coming decade 20 as a result of the Sustainable Harvest Calculation decision will result in further layoffs and 21 corresponding reductions in public services in county plaintiffs. At present, county plaintiffs are 22 unable to provide the levels of services they wish to provide, and any increases in timber revenues 23 would similarly increase the level of public services that could be provided. The Murrelet Strategy 24 will have a compounding effect on the revenues of several of the plaintiffs, including most notably 25 Pacific and Wahkiakum Counties, and will further depress their ability to deliver essential public 26 services. COMPLAINT -- 31 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 76. DNR was repeatedly asked to provide analyses of the financial impacts that its 2 decisions would have on beneficiaries, and on the public services the beneficiaries will be able to 3 provide. DNR failed to provide this analysis. Instead, DNR provided only an “operable acres” 4 analysis that did not reveal the actual impacts of the decisions on the revenues available to trust 5 beneficiaries to deliver public services. The operable acres analysis does not allow the public to 6 understand what impacts on public services will arise from the decisions or allow an adequate 7 comparison of alternatives. 8 9 10 11 77. At the Board meeting on December 3, 2019, numerous beneficiaries continued to repeat their requests that DNR detail the impacts the decision will have on their abilities to provide public services. These requests, which had been occurring for years, were ignored. 78. DNR’s Sustainable Harvest Calculation projects a 23% drop in harvests over the 12 coming decade from that approved for the 2004-2015 decade. DNR has the modeling capability 13 to project on a decadal basis the drop in revenue for each beneficiary county. It could also provide 14 the same information for each beneficiary junior taxing district if it took the time to gather 15 jurisdictional boundary data and information about past distributions to junior taxing districts. 16 That is the sort of information which a proponent is reasonably expected to gather prior to making 17 a decision that will have the profound impacts that these decisions will have. 18 79. Similarly, DNR has the modeling capability to project the decrease in harvests over 19 the remainder of the HCP from each of the set asides under the Murrelet Strategy. It could also 20 provide the same information for each beneficiary junior taxing district if it took the time to gather 21 the information about past distributions to junior taxing districts. That is the sort of information 22 which a proponent is reasonably expected to gather prior to making a decision that will have the 23 profound impacts that these decisions will have. 24 25 80. Failing to conduct the above analysis, and also its failure to adequately involve the public, constitutes a violation of SEPA, as well as DNR’s fiduciary obligations. 26 V. COMPLAINT -- 32 CAUSES OF ACTION NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 First Cause of Action 2 (Breach of Trust/Fiduciary Duty) 3 81. Plaintiffs reallege paragraphs 1-80 above. 4 82. The State, DNR, and the Board of Natural Resources, (collectively “Defendants”) 5 are trustees of the various state land trusts described herein. Plaintiffs include beneficiaries of 6 those trusts. 7 83. The trusts are real and enforceable trusts that impose upon the Defendants the same 8 fiduciary duties applicable to private trustees, as well as the specific statutory duties applicable to 9 DNR. Defendants are obligated to pursue the interests of the beneficiaries in the management of 10 the trust lands above all other objectives, no matter how laudable those other objectives may be. 11 12 84. The fiduciary duties owed by the Defendants to the beneficiaries include but are not limited to: 13 a. making the trust property productive; 14 b. preserving the corpus of the trust; 15 c. exercising reasonable care and skill in managing the trust; 16 d. carefully investigating any claims against the trust corpus; 17 e. full disclosure to the beneficiaries; 18 f. acting prudently; 19 g. acting with undivided loyalty to the trust beneficiaries; and 20 h. acting impartially with respect to current and future trust beneficiaries. 21 85. The Defendants’ adoption of the Long-Term Conservation Strategy for the Marbled 22 Murrelet constitutes a violation of all of the above fiduciary duties. Among other reasons, the 23 decision constitutes a breach of trust because it ceded large portions of the trust’s corpus for 24 purposes outside of the trust mandate, and because Defendants refused to take reasonable and 25 readily available steps to ensure that it set aside only the amount of trust lands necessary to satisfy 26 the requirements of the ESA. COMPLAINT -- 33 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 86. The Defendants’ adoption of a Sustainable Harvest Level for the 2015-2024 2 planning decade constitutes a violation of all of the above fiduciary duties. Among other reasons, 3 this decision constitutes a breach of trust because the harvest level was not set in accordance with 4 sound or prudent principles of forest management, and because it was based on improper 5 assumptions made to prioritize long-term forest cover over the interests of the beneficiaries. 6 Second Cause of Action 7 (Constitutional Writ of Certiorari, Arbitrary and Capricious Agency Action) 8 87. Plaintiffs reallege paragraphs 1-86 above. 9 88. Washington Constitution Article IV, Section 6, permits plaintiffs to challenge 10 11 government actions that are arbitrary and capricious or contrary to law. 89. The Defendants’ adoption of a Long-Term Conservation Strategy for the Marbled 12 Murrelet was arbitrary and capricious for the reasons detailed above. Specifically, the long-term 13 conservation strategy is arbitrary and capricious because it requires mitigation for the harvesting 14 of forest lands that are not marbled murrelet habitat, and then sets aside for mitigation purposes 15 lands that are not murrelet habitat. 16 90. The Sustainable Harvest Calculation is arbitrary and capricious and contrary to law 17 because it is based on inventory data that is known to be inaccurate and deficient and on violations 18 of DNR’s statutory duties as found in the Report of Sándor Tóth, which were not rectified. 19 Third Cause of Action 20 (State Environmental Policy Act, RCW Chapter 43.21C) 21 91. Plaintiffs reallege paragraphs 1-90 above. 22 92. SEPA requires the preparation of an Environmental Impact Statement (“EIS”) 23 describing the environmental impacts and assessing alternative proposals for “major actions 24 significantly affecting the quality of the environment.” RCW 43.21C.030(2)(c)(i)-(iii). To meet 25 the requirements of the act, an EIS must include a reasonably thorough discussion of the significant 26 aspects of the probable environmental consequences of the agency's decision. COMPLAINT -- 34 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 93. The EIS must consider the full range of elements of the environment specified in 2 WAC 197-11-444, in addition to impacts on the natural environment. Impacts on public services 3 and utilities are elements of the environment which must be considered. 4 94. The Long-Term Murrelet Strategy and Sustainable Harvest Calculation decisions 5 will have significant impacts on the delivery of public services by the beneficiary plaintiffs. This 6 includes reductions in funding for schools, hospitals, libraries, fire departments, roads, and 7 numerous other critical public services. DNR provided no meaningful analysis of the impacts that 8 the Long-Term Murrelet Strategy and Sustainable Harvest Calculation decisions will have on 9 public services. 10 11 12 95. DNR’s failure to provide a reasonably thorough analysis of the impacts on public services in the requisite EISs violates SEPA. 96. SEPA requires an agency to respond fully to public comments on a DEIS when 13 publishing an FEIS. The agency must consider the comments reasonably and take appropriate 14 corrective action. 15 97. Multiple comments urged DNR to provide full and fair documentation of the effects 16 of its two decisions on public services, to conduct appropriate ground-truthing, and give a full and 17 fair explanation of its model inputs and outputs. Defendants’ failure to do so violates SEPA. 18 Fourth Cause of Action 19 (Declaratory Judgment) 20 98. Plaintiffs reallege paragraphs 1-97 above. 21 99. Under RCW Chapter 7.24 this Court has authority to declare rights, status and other 22 legal relations. In accordance with these powers the Court should enter an order declaring that 23 DNR’s Sustainable Harvest Calculation and Long-Term Murrelet Strategy decisions constitute 24 breaches of the Defendants’ fiduciary duties to the Plaintiffs, and that the decisions were arbitrary 25 and capricious in nature. Additionally, the Court should enter an Order declaring that DNR 26 violated SEPA by failing to adequately address the impacts that the SHC and LTCS decisions COMPLAINT -- 35 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 would have on public services, in the relevant EISs, and by failing to adequately respond to public 2 comment in the relevant FEISs. 3 PRAYER FOR RELIEF 4 WHEREFORE, Plaintiffs request the following relief: 5 1. That the Court issue a writ directing the Defendants to certify and return to the 6 Court copies of any and all documents or records in the possession or control of Defendants, and 7 their agents or employees, that are in any way related to DNR’s recommendation and the Board's 8 December 3, 2019 decision to set a sustainable harvest level for the 2015 to 2024 planning decade. 9 2. That the Court issue a writ directing the Defendants to certify and return to the 10 Court copies of any and all documents or records in the possession or control of Defendants, and 11 their agents or employees, that are in any way related to DNR’s recommendation and the Board's 12 December 3, 2019 decision to select a long term conservation strategy for the marbled murrelet. 13 3. That upon trial of the case, the Court declare that the Defendants violated their 14 fiduciary duties to the Plaintiffs in connection with their selection of a sustainable harvest level for 15 the 2015 to 2024 planning decade, and that the sustainable harvest level must be vacated and set 16 aside. 17 4. That upon trial of the case, the Court declare that the Defendants violated their 18 fiduciary duties to the Plaintiffs in connection with their selection of a long-term conservation 19 strategy for the marbled murrelet and that the long-term conservation strategy must be vacated and 20 set aside. 21 5. That upon trial of the case, the Court declare that the Defendants’ selection of a 22 sustainable harvest level for the 2015 to 2024 planning decade was arbitrary and capricious, or 23 otherwise not in accordance with law. 24 6. That upon trial of the case, the Court declare that the Defendants’ selection of a 25 long-term conservation strategy for the marbled murrelet was arbitrary and capricious, or 26 otherwise not in accordance with law. COMPLAINT -- 36 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 1 7. That upon trial of the case, the Court declare that the Sustainable Harvest FEIS 2 violated the State Environmental Policy Act by failing to adequately disclose impacts on public 3 services in the supporting environmental impact statement. 4 8. That upon trial of the case, the Court declare that the Marbled Murrelet FEIS 5 violated the State Environmental Policy Act by failing to adequately disclose impact on public 6 services in the supporting environmental impact statement. 7 9. That the Court declare invalid, or issue a writ invalidating, the Board’s 8 determination of a sustainable harvest level for the 2015-2024, and remand the determination to 9 DNR and the Board with instructions to vacate the SHC the Board adopted, to direct DNR to 10 develop a plan to promptly inventory its forest to correct the data deficiencies, and in the interim 11 to recalculate the SHC using its existing data but a discount rate of not less than 5% and correcting 12 other errors identified in the trial of the case. 13 10. That the Court declare invalid, or issue a writ invalidating, the Board’s 14 determination of a marbled murrelet long-term conservation strategy, and remand to the Board 15 with instructions to adopt Alternative B forthwith. 16 17 11. That the Court enter all other declaratory or injunctive relief as the Court deems just and proper. 18 19 20 21 22 23 24 25 26 COMPLAINT -- 37 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564 LuauDATED this 2nd day of January, 2020. NORTHWEST RESOURCE LC laine L.vSpencer, WSBA #6965] espencer@nwresourcelaw.com 206.971.1566 David O. Bechtold, WSBA #55811 dbechtold@nwresourcelaw.com 503.664.3582 SUMMIT LAW GROUP Christ??er Wion, #38207?! chrisw@summitlaw.com 206.676.7019 0? ham? df" Attorneys for Plainti?fs? 4833?5128-5168, v. 2 COMPLAINT -- 3 8 NORTHWEST RESOURCE LAW PLLC 101 Yesler Way, Suite 205 Seattle, WA 98104 206.971.1564