1
2 3 D EXPEDITE (if filing within 5 court days of hearing) 4 D Hearing is set: Date: ______5 Time: ______Judge/Calendar: ______6
7 SUPERIOR COURT OF WASHINGTON NO. 20-2-01051-34 FOR THURSTON COUNTY 8 ANSWER OR RESPONSE COVER SHEET
9 CONSERVATION NORTHWEST, et al., 0 DOCUMENT CONTAINS □ CROSS CLAIM (ANACC) 10 Plaintiffs, □ COUNTER CLAIM (ANCC) □ THIRD PARTY COMPLAINT 11 vs. (AN3PC) □ ANSWER & COUNTER PETITION 12 COMMISSIONER OF PUBLIC LANDS HILARY (ANCP) FRANZ, et al., □ RESPONSE & COUNTER PETITION 13 (RSPCP) Defendants. 14 X DOCUMENT DOES NOT CONTAIN any of the above (AN/RSP) 15 (CLERK'S ACTION REQUIRED) 16
17 PLEASE TAKE NOTICE that the attached Amended Answer or Response filed herein: 18 Contains a □ Counter Claim, □ Cross Claim, □ Counter Petition or □ Third Party 19 □ Complaint and requires a $240 filing fee be paid before filing pursuant to RCW 20 36.18.020(2)(a). (COLLECT FILING FEE)
21 X Does not contain a Counter Claim, Cross Claim, Counter Petition or Third Party 22 Complaint. (NO FEE REQUIRED)
23 Dated: March 19, 2020. 24
25 Attorney, WSBA #36295 26 Attorney for: Defendants 27
28
Amended Answer Does Not Contain Cross-Claim, Counter Claim Counter Petition or Third Party Complaint 1 2 3 4 5 6 7 STATE OF WASHINGTON THURSTON COUNTY SUPERIOR COURT 8
9 CONSERVATION NORTHWEST; NO. 20-2-01051-34 OLYMPIC FOREST COALITION; 10 WASHINGTON ENVIRONMENTAL COUNCIL; MIKE TOWN, an individual; DEFENDANTS’ AMENDED 11 HOLLY KOON and MAX DUNCAN, a ANSWER married couple; LINDA LORENZ, an 12 individual, PETER BAHLS, an individual; SCOTT WALLACE, an individual, and 13 MARCY GOLDE, an individual, 14 Plaintiffs, 15 v. 16 COMMISSIONER OF PUBLIC LANDS HILARY FRANZ (in her official capacity), 17 the WASHINGTON STATE DEPARTMENT OF NATURAL 18 RESOURCES, and the WASHINGTON STATE BOARD OF NATURAL 19 RESOURCES, 20 Defendants. 21 22 The Commissioner of Public Lands Hilary Franz, the Washington State Department of 23 Natural Resources, and the Washington State Board of Natural Resources (collectively referred to 24 as Defendants), by and through their attorneys of record, ROBERT W. FERGUSON, Attorney 25 General, and PATRICIA H. O’BRIEN, Senior Assistant Attorney General, in answer to Plaintiffs’ 26
DEFENDANTS’ AMENDED ANSWER 1 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 Complaint for Declaratory Judgment and Petition for Constitutional Writs of Certiorari (Complaint) 2 admit, deny, and allege as follows: 3 Under Civil Rule (CR) 8, Defendants generally deny each and every allegation of the 4 Complaint not expressly admitted. Defendants also expressly deny some allegations without 5 affecting their general denial of other allegations. Defendants will not respond to allegations that 6 present purely legal conclusions or arguments. If an answer to any such allegation is required, 7 Defendants deny each such allegation that is not expressly admitted. 8 In addition to the above general responses, Defendants offer the following responses to the
9 specific allegations set forth in each numbered paragraph of the Second Amended Complaint.
10 I. INTRODUCTION 11 1. No response is required because this paragraph sets forth legal conclusions or 12 argument. 13 2. Admit that Washington’s federal grant lands are held in trust pursuant to the 14 Enabling Act and the Washington State Constitution, and that Defendants have a role in 15 managing these lands. The Enabling Act and constitution article XVI, § 1 are each the best source 16 of their content and speak for themselves. Admit that Defendants have a role in managing state 17 forestlands acquired under RCW 79.22, and that state forest transfer lands are held in a 18 legislatively created trust. Admit that the terminology used in public comment and documents 19 to refer to forestland managed in trust by the Department varies. Admit that the challenged 20 long-term conservation strategy and sustainable harvest calculation only govern 21 Department-managed lands in western Washington. Admit that statutes and common law, 22 including Supreme Court precedent, govern the range of Defendants’ discretionary land 23 management decisions. All other allegations are denied or do not require a response because they 24 are legal conclusions or argument. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 2 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 3. Admit that Defendants must manage federal grant lands and state forestlands 2 consistent with applicable fiduciary duties. See response to ¶ 2. All other allegations are denied 3 or do not require a response because they are legal conclusions or argument. 4 4. Admit that Defendants manage federal grant lands and state forestlands consistent 5 with applicable fiduciary duties. See response to ¶ 2. All other allegations are denied or do not 6 require a response because they are legal conclusions or argument. 7 5. Admit that the Department is a state agency and the Commissioner of Public 8 Lands is an elected public official. See response to ¶¶ 32-35. Deny any remaining factual
9 allegations in Paragraph 5. No further response is required because this paragraph sets forth legal 10 conclusions or argument. 11 6. Admit that the Board of Natural Resources (Board) approved Resolutions 1559 12 and 1560 on December 3, 2019. Admit that Resolution 1559 approves the amendment to the 13 1997 Habitat Conservation Plan (HCP) to replace the interim marbled murrelet conservation 14 strategy described in the 1997 HCP with the long-term marbled murrelet conservation strategy. 15 Admit that Resolution 1560 establishes the decadal Sustainable Harvest Level for the planning 16 decade fiscal year 2015–fiscal year 2024 for forested State Trust lands in western Washington. 17 The Resolutions and Board minutes are the best source of their content and speak for themselves. 18 All other allegations are denied or do not require a response because they are legal conclusions 19 or argument. 20 7. No response is required because this paragraph sets forth legal conclusions or 21 argument. 22 8. Admit that revenue generated by Defendants from activities on federal grant lands 23 and state forestland is distributed as required by law. See response to ¶ 2. No further response is 24 required because this paragraph sets forth legal conclusions or argument. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 3 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 9. Admit that Superintendent of Public Instruction Christopher Reykdal is a member 2 of the Board pursuant to RCW 43.30.205(1)(b), and that he participated in the Board meeting on 3 December 3, 2019, and made statements that are a matter of record. 4 10. Deny the allegations in the first and third sentences. Defendants are without 5 sufficient information to form a belief as to the truth of the allegations in the second sentence, 6 and therefore deny all such allegations. 7 11. Admit that Defendants manage federal grant lands and state forestlands consistent 8 with applicable fiduciary duties. Admit that revenue generated by Defendants from activities on
9 federal grant lands and state forestland is distributed as required by law. See response to ¶ 2. All 10 other allegations in Paragraph 11 are denied or do not require a response because they are legal 11 conclusions or argument. 12 12. No response is required because this paragraph sets forth legal conclusions or 13 argument. 14 13. Admit sentences 2, 3, and 4. No response is required to sentence 1 because it sets 15 forth legal conclusions or argument. 16 14. No response is required because this paragraph sets forth legal conclusions or 17 argument. 18 II. PARTIES
19 Conservation Northwest 20 15. Admit that Conservation NW is registered as a Washington Public Benefit 21 Corporation with a principal office in Seattle, Washington, and that its advocacy has included 22 litigation against state agencies. Defendants are without sufficient information to form a belief 23 as to the truth of the remaining allegations contained in Paragraph 15 and therefore deny such 24 allegations. 25 16. Admit that Conservation NW’s Policy Director, Paula Swedeen, is a Solutions 26 Team member. Admit that the Solutions Table has those duties as directed by the Legislature.
DEFENDANTS’ AMENDED ANSWER 4 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 RCW 43.30.582, .583. Defendants are without sufficient information to form a belief as to the 2 truth of the remaining allegations contained in Paragraph 16 and therefore deny all such 3 allegations.
4 Washington Environmental Council 5 17. Admit that Washington Environmental Council is registered as a Washington 6 Nonprofit Corporation with a principal business office in Seattle, Washington. Defendants are 7 without sufficient information to form a belief as to the truth of the remaining allegations 8 contained in Paragraph 17 and therefore deny such allegations.
9 18. Admit that Washington Environmental Council’s legal action has included 10 litigation against Defendants. Defendants are without sufficient information to form a belief as 11 to the truth of the remaining allegations contained in Paragraph 18 and therefore deny all such 12 allegations. 13 19. Defendants are without sufficient information to form a belief as to the truth of 14 the allegations contained in Paragraph 19 and therefore deny all such allegations.
15 Olympic Forest Coalition 16 20. Admit that Olympic Forest Coalition is registered as a Washington Nonprofit 17 Corporation, with a principal business office in Quilcene, Washington. Defendants are without 18 sufficient information to form a belief as to the truth of the remaining allegations contained in 19 Paragraph 20 and therefore deny such allegations. 20 21. Admit that the State experienced wildfires in 2018 and 2019, as well as preceding 21 years. Defendants are without sufficient information to form a belief as to the truth of the 22 remaining allegations contained in Paragraph 21 and therefore deny all such allegations. 23 22. Defendants are without sufficient information to form a belief as to the truth of 24 the allegations contained in Paragraph 22 and therefore deny all such allegations. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 5 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 Mike and Meg Town 2 23. Admit that Department-managed lands include the Reiter Foothills. Defendants 3 are without sufficient information to form a belief as to the truth of the remaining allegations 4 contained in Paragraph 23 and therefore deny all such allegations. 5 Holly Koon and Max Duncan
6 24. Admit that Department-managed lands include lands near Sumas Mountain. 7 Defendants are without sufficient information to form a belief as to the truth of the remaining 8 allegations contained in Paragraph 24 and therefore deny all such allegations. 9 Peter Bahls
10 25. Defendants are without sufficient information to form a belief as to the truth of 11 the allegations contained in Paragraph 25 and therefore deny all such allegations.
12 26. Defendants are without sufficient information to form a belief as to the truth of 13 the allegations contained in Paragraph 26 and therefore deny all such allegations. 14 Marcy Golde
15 27. Defendants are without sufficient information to form a belief as to the truth of 16 the allegations contained in Paragraph 27 and therefore deny all such allegations.
17 28. Admit that Marcy Golde participated in implementation of the “WEC Settlement 18 Agreement” following litigation challenging Defendants’ adoption of the prior sustainable 19 harvest calculation. Defendants are without sufficient information to form a belief as to the truth 20 of the remaining allegations contained in Paragraph 28 and therefore deny all such allegations. 21 Scott Wallace
22 29. Defendants are without sufficient information to form a belief as to the truth of 23 the allegations contained in Paragraph 29 and therefore deny all such allegations.
24 30. Admit that the Department manages lands in eastern Washington. Defendants are 25 without sufficient information to form a belief as to the truth of the remaining allegations 26 contained in Paragraph 30 and therefore deny all such allegations.
DEFENDANTS’ AMENDED ANSWER 6 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 Linda Lorenz
2 31. Defendants are without sufficient information to form a belief as to the truth of 3 the allegations contained in Paragraph 31 and therefore deny all such allegations. 4 32. Admit that the Washington State Department of Natural Resources (Department) 5 is an agency of the State of Washington created by RCW 43.30.030, which is the best source of 6 its content and speaks for itself. Admit that the agency duties include management of all lands 7 and resources within the Department’s jurisdiction. 8 33. Admit that the Board is part of the Department. RCW 43.30.030, which is the
9 best source of its content and speaks for itself. Admit that the duties of the Board include 10 establishing policies to ensure that the acquisition, management, and disposition of all lands and 11 resources within the Department’s jurisdiction are based on sound principles designed to achieve 12 the maximum effective development and use of such lands and resources consistent with laws 13 applicable thereto. RCW 43.30.215 is the best source of its content and speaks for itself. 14 34. Admit that Hilary Franz is the current Commissioner of Public Lands, elected in 15 2016, and, as Commissioner, is Administrator of the Department and a member of the Board. 16 RCW 43.30.105, .205. Admit that the Administrator is the Secretary of the Board by statute, and 17 the Board selected Commissioner Franz to serve as Chair. RCW 43.30.225. Admit that the 18 Administrator has the responsibility for performance of all the powers, duties, and functions of 19 the Department except those specifically assigned to the Board. RCW 43.30.421. Admit that the 20 Commissioner of Public Lands or the Commissioner’s designee is a member of the Forest 21 Practices Board and serves as Chair. RCW 76.09.030. Admit that Stephen Bernath currently is 22 the Commissioner’s designee and Chair of the Forest Practices Board. The statutes are the best 23 source of their content and speak for themselves. 24 35. Admit that the Commissioner of Public Lands is elected for a four-year term at 25 the same election as for the members of the Legislature and that the Commissioner’s duties and 26 compensation are established by the Legislature. Const. art. III, §§ 1.3, 23. See response to ¶ 34.
DEFENDANTS’ AMENDED ANSWER 7 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 III. JURISDICTION AND VENUE 2 36. No response is required because this paragraph sets forth legal conclusions or 3 argument. 4 37. No response is required because this paragraph sets forth legal conclusions or 5 argument. 6 38. No response is required because this paragraph sets forth legal conclusions or 7 argument. 8 39. No response is required because this paragraph sets forth legal conclusions or
9 argument. 10 40. Admit that the Board approved Resolutions 1559 and 1560 on December 3, 2019. 11 No further response is required because all other allegations in this paragraph set forth legal 12 conclusions or argument. 13 41. Defendants deny allegations about Plaintiffs’ harm contained in Paragraph 41. 14 No further response is required because all other allegations in this paragraph set forth legal 15 conclusions or argument. 16 42. Defendants are without sufficient information to form a belief as to the truth of 17 the allegations contained in sentence one of Paragraph 42 and therefore deny all such allegations. 18 Defendants deny the allegations in sentence 2. 19 43. Admit that plaintiff organizations submitted written and oral comments to the 20 Defendants about the long-term marbled murrelet conservation strategy and the sustainable 21 harvest level for forested State Trust lands in western Washington prior to adoption of Board 22 Resolutions 1559 and 1560. Admit that Defendants considered all comments submitted. 23 Comments, responses, and Board meeting minutes are part of the agency record, are the best 24 source of their content, and speak for themselves. Defendants are without sufficient information 25 to form a belief as to the truth of the allegations about plaintiff organization missions, plaintiffs’ 26 activities, or harm contained in Paragraph 43, other than as admitted in response to
DEFENDANTS’ AMENDED ANSWER 8 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 Paragraphs 15, 18, and 25, and therefore deny all such allegations. Defendants deny the 2 allegations in Paragraphs 15-22 identify any specific locations or concrete plans for Plaintiff 3 organizations’ members to use Department-managed lands affected by Resolutions 1559 and 4 1560, and therefore deny all such allegations. All other factual allegations are denied. No further 5 response is required because all other allegations in this paragraph set forth legal conclusions or 6 argument. 7 44. Deny the allegations in sentence one. No further response is required because this 8 paragraph sets forth legal conclusions or argument.
9 IV. STATEMENT OF THE CASE
10 45. Admit the allegations in paragraph 45. 11 46. Admit the allegations in sentence one. Admit that under the Washington Enabling 12 Act, the federal government granted Washington approximately three million acres of federal 13 land in support of named beneficiaries. The Enabling Act is the best source of its content and 14 speaks for itself. No further response is required because the remaining allegations in this 15 paragraph set forth legal conclusions or argument. 16 47. Admit that Washington accepted the grant of federal lands through the 17 Washington Constitution. Admit that the Department manages these lands for a variety of 18 purposes, including forest management, agricultural, grazing, and commercial uses. The 19 Washington Constitution is the best source of its content and speaks for itself. No further 20 response is required because the remaining allegations in this paragraph set forth legal 21 conclusions or argument. 22 48. Constitution article XVI, § 1 is the best source of its content and speaks for itself. 23 49. Constitution article XVI, §§ 1-3 is the best source of its content and speaks for 24 itself. No further response is required because this paragraph sets forth legal conclusions or 25 argument. 26
DEFENDANTS’ AMENDED ANSWER 9 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 50. Admit that Washington retained most of the original federal grant lands. Admit 2 that the Department continues to manage federal grant lands. Admit that some federal grant lands 3 were sold, exchanged, or transferred and replacement federal grant lands have been purchased. 4 All other factual allegations in Paragraph 50 are denied. No further response is required because 5 the remaining allegations in this paragraph set forth legal conclusions or argument. 6 51. Admit that the Department manages approximately 540,000 acres of state forest 7 transfer lands, including 434,000 acres that are governed by Resolutions 1559 and 1560. Admit 8 that state forest transfer lands were acquired by counties through tax lien foreclosures and
9 transferred to the State under the terms of RCW 79.22.040. Admit that the Department manages 10 approximately 80,000 acres of state forest purchase lands purchased by the State or acquired as 11 a gift under the terms of RCW 79.22.010. Admit that revenue generated from state forestland is 12 distributed as required by law. RCW 79.64. The statutes are the best source of their content and 13 speak for themselves. All other factual allegations in Paragraph 51 are denied. No further 14 response is required because the remaining allegations in this paragraph set forth legal 15 conclusions or argument. 16 52. Admit that the Department uses the term “state forests” to refer generally to 17 forested land managed by the Department, including federal grant lands, state forest transfer 18 lands, and state forest purchase lands. Admit that “public lands” are defined by 19 RCW 79.02.010(12). All other factual allegations in Paragraph 52 are denied. No further 20 response is required because the remaining allegations in this paragraph set forth legal 21 conclusions or argument. 22 53. Admit that land managed by the Department is assigned an ownership category 23 to reflect the parcel’s constitutional or statutory status. Admit that the Department uses the phrase 24 “trust beneficiaries” to refer collectively to the institutions or units of government that receive 25 or may receive revenue from lands managed by the Department. Admit that revenue generated 26 by the Department from activities on federal grant lands and state forestland is distributed as
DEFENDANTS’ AMENDED ANSWER 10 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 required by law. RCW 79.64 is the best source of its content and speaks for itself. All other 2 factual allegations in Paragraph 53 are denied. No further response is required because the 3 remaining allegations in this paragraph set forth legal conclusions or argument. 4 54. Admit the Department’s goal is to manage lands consistent with the constitution, 5 statutes, and common law. No further response is required because this paragraph sets forth legal 6 conclusions or argument. 7 55. Admit the Department’s goal is to manage lands consistent with the constitution, 8 statutes, and common law. No further response is required because this paragraph sets forth legal
9 conclusions or argument. 10 56. Admit RCW 43.30.215 establishes the Board’s powers and duties, that Title 79 11 RCW is referred to as the Public Lands Act, and that RCW 79.10 is titled “land management 12 authorities and policies.” The cited statutes are the best source of their content and speak for 13 themselves. No further response is required because this paragraph sets forth legal conclusions 14 or argument. 15 57. Admit that the Department has adopted rules codified in WAC 332; these rules 16 are the best source of their content and speak for themselves. 17 58. Admit that some agency management decisions are subject to SEPA, which is the 18 best source of its content and speaks for itself. 19 59. Admit that multiple legal and policy requirements apply to Department 20 management of land within its jurisdiction, including the 2006 Policy for Sustainable Forests, 21 the 1997 Habitat Conservation Plan as amended by Board Resolution 1559, and Board 22 Resolution 1560. The documents are the best source of their content and speak for themselves. 23 All other factual allegations in Paragraph 59 are denied. No further response is required because 24 the remaining allegations in this paragraph set forth legal conclusions or argument. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 11 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 60. Admit that the 2006 Policy for Sustainable Forests contains a description of the 2 legal framework that applies to the Department’s management of lands within its jurisdiction. 3 The document is the best source of its content and speaks for itself. 4 61. Admit that the Final Environmental Impact Statement for the Sustainable Harvest 5 Calculation contains the quote from the 2006 Policy for Sustainable Forests, without the added 6 emphasis. The documents are the best source of their content and speak for themselves. 7 62. Admit that the Department uses modelling to help inform land management 8 decisions. Admit that the Department uses the forest estate model that is designed to find the
9 optimal solution to the problem of deciding where, when, and how many forest management 10 activities, such as harvest and thinning, should be conducted. Admit that a multitude of statutes 11 and policies apply to the Department’s decisions to sell timber, including the State 12 Environmental Policy Act (SEPA), RCW Chapter 43.21C, and the Forest Practices Act, 13 RCW 76.09. All other allegations in Paragraph 62 are denied. 14 63. Admit that Department timber harvest activities are designed in a variety of ways 15 based on the site-specific conditions and can include road construction, the use of equipment 16 building of infrastructure needed for harvest activities, and reforestation and site treatment. 17 Admit that the Department uses variable retention harvests, a type of regeneration or 18 stand-replacement harvest in which elements of the existing stand, such as down wood, snags, 19 and leave trees (trees that are not harvested), remain for incorporation into the next forest stand. 20 Deny that a variable retention harvest is synonymous with a clearcut, in which all of the existing 21 trees are removed. Admit that the prevalence of competitive exclusion stands on 22 Department-managed lands is due to intense clearcutting in prior decades under different 23 policies, statutes, and rules than current Department forest management, and took place long 24 before approval of the 1997 Habitat Conservation Plan. Admit that a robust system of forest 25 practice rules govern forest management activities on Department-managed land. WAC 222. 26 Deny all other allegations in this paragraph.
DEFENDANTS’ AMENDED ANSWER 12 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 64. Admit that the Department accepts public comments on proposed timber sales 2 consistent with existing law. No further response is required because the remaining allegations 3 in this paragraph set forth legal conclusions or argument. 4 65. Admit that the Board approves timber sales before these sales are offered at a 5 public auction. Admit that the composition of the Board is established by RCW 43.30.205, which 6 is the best source of its content and speaks for itself. Admit that the sale of timber by the 7 Department is controlled by RCW 79.15, which is the best source of its content and speaks for 8 itself. Admit that the SEPA public comment period occurs before a sale is presented to the Board,
9 and the Board takes public comment at Board meetings before taking action on a sale. Admit 10 that the Legislature has directed how revenue generated from Department-managed land is 11 distributed, including how the Department obtains funds for managing and administering lands 12 within its jurisdiction. RCW 79.64. Admit that statutes dictate a different revenue distribution 13 for state forest purchase lands than for state forest transfer lands, but deny all other factual 14 allegations. The statutes are the best source of their content and speak for themselves. No further 15 response is required because this paragraph sets forth legal conclusions or argument. 16 66. Admit that the revenue generated from Department-managed land is important to 17 the trust beneficiaries. All other factual allegations are denied. 18 67. Admit that the mechanics of timber harvest and milling have changed over time, 19 as have the statutes, rules, and policies. Admit that the Department used U.S. Bureau of Labor 20 Statistics (2019) from western Washington counties and the Washington State Timber Harvest 21 (2018) (volume harvested from public and private forests) to calculate a direct employment rate 22 of 7.8 jobs per million board feet harvested in counties in the marbled murrelet analysis area and 23 that the Final Environmental Impact Statement on the Alternatives for the Establishment of a 24 Sustainable Harvest Level (Sustainable Harvest FEIS) is the best source of its content and speaks 25 for itself. Admit that the Department concluded that total employment in the sector (includes job 26 categories forestry and logging, wood products manufacturing, and paper manufacturing) shows
DEFENDANTS’ AMENDED ANSWER 13 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 no relation to harvest levels on Department-managed lands in the marbled murrelet analysis area. 2 Admit that within the approximately 19.5-million-acre sustainable harvest analysis area 3 (terrestrial lands in western Washington), 29 percent are federal lands (primarily National Forest 4 and National Park), 8 percent are managed by DNR, and approximately 63 percent of the lands 5 are in other non-federal ownership. All other factual allegations are denied. No further response 6 is required because this paragraph sets forth legal conclusions or argument. 7 68. Admit that the Department generates revenue from a variety of land management 8 activities, including forest management, agricultural, grazing, and commercial uses. No further
9 response is required because the remaining allegations in this paragraph set forth legal 10 conclusions or argument. 11 69. Admit that Department land-management activities include trust land transfer, 12 land exchanges, and other land transactions, consistent with its statutory authority and 13 constitutional limits. All other factual allegations are denied. No further response is required 14 because this paragraph sets forth legal conclusions or argument. 15 70. Admit that the Department is a state agency, the Commissioner of Public Lands 16 is an elected public official, the State’s population is increasing, and scientific research continues 17 in forestry and forest management. All remaining factual allegations in this paragraph are denied. 18 No further response is required because this paragraph sets forth legal conclusions or argument. 19 71. Defendants are without sufficient information to form a belief as to the truth of 20 the allegations about whether Plaintiffs are affected by the Department’s land management 21 decisions challenged in Plaintiffs’ Complaint, and therefore deny such allegations. All other 22 factual allegations in this paragraph are denied. No further response is required because this 23 paragraph sets forth legal conclusions or argument. 24 72. Admit that a January 4, 2018, letter from Commissioner Franz to certain 25 individual legislators contains the excerpted quotes in Paragraph 72. The letter is the best source 26 of its content and speaks for itself.
DEFENDANTS’ AMENDED ANSWER 14 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 73. Admit that the January 4, 2018, letter identifies a list of principles critical to 2 approaching climate change and carbon policy and includes the excerpted quote in Paragraph 73. 3 Admit that Commissioner Franz released a Plan for Climate Resilience on February 20, 2020. 4 These documents are the best source of their content and speak for themselves. All other factual 5 allegations are denied. 6 74. Admit that the Sustainable Harvest FEIS, p. 3-13, states,
7 Although DNR does have broad climate and carbon strategies, DNR does not currently have a policy that specifically addresses climate change. Nonetheless, 8 existing language in the Policy for Sustainable Forests (DNR 2006a) provides silvicultural flexibility and both forest health and natural disturbance-response 9 guidance that should facilitate an adaptive agency response to a changing climate. 10 Deny that an NGO project is governed by the same limitations as state agencies. The quoted 11 documents are the best source of their content and speak for themselves. All other factual 12 allegations are denied. No further response is required because this paragraph sets forth legal 13 conclusions or argument. 14 75. In response to the allegations in the first sentence, admit forestland and resources 15 can be affected by climate change. Admit that the excerpted, quoted language is identified as a 16 key climate risk to the Department in the Assessment of Climate Change-Related Risks to DNR’s 17 Mission, Responsibilities and Operations, 2014-2016 Summary of Results, which is the best 18 source of its content and speaks for itself. 19 76. Admit that the excerpted quote is from the Assessment of Climate 20 Change-Related Risks to DNR’s Mission, Responsibilities and Operations, 2014-2016 Summary 21 of Results. 22 77. Admit that carbon is emitted due to direct and indirect use of fuel and energy 23 when managing forests. Admit that the analysis of carbon sequestered and emitted in the 24 Department’s Sustainable Harvest FEIS concluded that under each alternative analyzed, more 25 carbon was sequestered than emitted in both the 2015–2024 period and over a five-decade 26 period, and that the amount of carbon sequestered in forests and harvested wood is far greater
DEFENDANTS’ AMENDED ANSWER 15 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 than the amount of carbon emitted from harvested wood. Sustainable Harvest FEIS at 4-7 – 4-11. 2 The FEIS is the best source of its content and speaks for itself. Defendants are without sufficient 3 information to form a belief as to the truth of the allegations about land use activities and carbon 4 emissions from forest management in Oregon, which operate under a different legal regime than 5 Washington, and therefore deny all such allegations. The remaining allegations in Paragraph 77 6 are denied. 7 78. Admit that Department-managed forests sequester carbon. Defendants are 8 without sufficient information to form a belief as to the truth of the remaining allegations in
9 Paragraph 78, and therefore deny all such allegations. 10 79. Admit the study referred to in Paragraph 79 was published after the Board made 11 both decisions being challenged. Defendants are without sufficient information to form a belief 12 as to the truth of the remaining allegations in Paragraph 79 and footnote 7, and therefore deny 13 all such allegations. The study is the best source of its content and speaks for itself. 14 80. Deny the last sentence of Paragraph 80. Defendants are without sufficient 15 information to form a belief as to the truth of the remaining allegations in Paragraph 80, and 16 therefore deny all such allegations. The study is the best source of its content and speaks for 17 itself. 18 81. Admit the first sentence of Paragraph 81. Admit that Governor Inslee issued 19 Executive Order 20-01 on State Efficiency and Environmental Performance, which supersedes 20 and rescinds Executive Order 18-01. The Orders are the best source of their content and speak 21 for themselves. Deny the remaining allegations in Paragraph 81. 22 82. Deny any factual allegations in Paragraph 82. No further response is required 23 because this paragraph sets forth legal conclusions or argument. 24 83. Admit that the Department manages state forests across the state. Admit that some 25 of this land is near residential property, private forestland, tribal land, and other public land. 26 Admit that members of the public sometimes object to activities on Department-managed land
DEFENDANTS’ AMENDED ANSWER 16 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 and use oral and written comments, participation in work groups, legislation, and litigation to 2 voice their objection. Admit that the state is experiencing population growth. No further response 3 is required because this paragraph sets forth legal conclusions or argument 4 84. Admit that approximately 86 percent of state trust lands within the marbled 5 murrelet analysis area are within Competitive Exclusion stage. Deny that the Department 6 harvests old growth. The documents are the best source of their content and speak for themselves. 7 Deny all other allegations in this paragraph. 8 85. Admit that wildfires occur in both western and eastern Washington and that forest
9 fires and their effects threaten the safety and well-being of local communities. Admit that the 10 Commissioner of Public Lands has promoted forest health objectives. Admit that when the 11 site-specific conditions are suitable, the Department offers fire salvage timber sales. Defendants 12 are without sufficient information to form a belief as to the truth of the allegations about the 13 impact of forest fires on members of Plaintiff organizations, and therefore deny all such 14 allegations. The remaining allegations in Paragraph 85 are denied. 15 86. Admit that the forest practice rules apply to forest practices activities conducted 16 on Department-managed State Forests, and that the sales are designed on a site-by-site basis 17 based on the site-specific conditions. Admit that such sales are governed by RCW 76.09 and 18 WAC 222, which are the best source of their content and speak for themselves. Admit that 19 landslides can impact properties below and that forest practices on potentially unstable slopes 20 are heavily regulated. The remaining allegations in Paragraph 86 are denied. 21 87. Admit that the Department proposed the North Zender timber sale in Whatcom 22 County in 2015. Admit that two units of the sale were located on deep-seated landslides. 23 Defendants are without sufficient information to form a belief as to the truth of the allegations 24 about the remaining allegations in Paragraph 87, and therefore deny all such allegations. 25 88. Defendants are without sufficient information to form a belief as to the truth of 26 the allegations in Paragraph 88, and therefore deny all such allegations.
DEFENDANTS’ AMENDED ANSWER 17 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 89. Admit that slides have occurred in Whatcom County in the past, including 2 historical slides before humans or forest practices, and deny all other allegations in Paragraph 89. 3 90. Admit that the Sumas Mountain Community for Landslide Awareness appealed 4 the forest practices application approval for the North Zender timber sale. Admit that the notice 5 of appeal indicated that Holly Koon and Max Duncan were members of the Sumas Mountain 6 Community. Admit that the notice of appeal included allegations of past landslides, property 7 damage, and concerns about slope instability. All other allegations in Paragraph 90 are denied. 8 91. Admit that the Department withdrew the forest practice application for North
9 Zender, and the parties agreed to a stipulated dismissal of the appeal. Defendants are without 10 sufficient information to form a belief as to the truth of the remaining allegations in 11 Paragraph 91, and therefore deny all such allegations. 12 92. Admit that the Department has an obligation to manage land within its 13 jurisdiction consistent with applicable laws and policies. Admit that Sumas Mountain 14 Community for Landslide Awareness filed a petition for review seeking to set aside the 2016 15 revisions to Forest Practices Board Manual 16, Guidelines for Evaluating Potentially Unstable 16 Slopes and Landforms. All other allegations in Paragraph 92 are denied. 17 93. Defendants are without sufficient information to form a belief as to the truth of 18 the factual allegations in Paragraph 93, and therefore deny all such allegations. All other 19 allegations do not require a response because they are legal conclusions or argument. 20 94. Defendants are without sufficient information to form a belief as to the truth of 21 Ms. Koon’s and Mr. Duncan’s personal beliefs in Paragraph 94, and therefore deny all such 22 allegations. 23 95. Defendants are without sufficient information to form a belief as to the truth of 24 the factual allegations in Paragraph 95, and therefore deny all such allegations. 25 26
DEFENDANTS’ AMENDED ANSWER 18 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 96. Admit that ecological thinning, prescribed burns, and other forest health measures 2 can cost more than future returns. Admit that the Department has made efforts to improve forest 3 health in Washington. All other allegations in Paragraph 96 are denied. 4 97. Admit that for state trust lands, the Department implements riparian conservation 5 through two riparian conservation strategies in the 1997 HCP. Admit that one strategy applies to 6 the Olympic Experimental State Forest HCP Planning Unit, and the other applies to the five 7 remaining west-side HCP planning units, supported by the Riparian Forest Restoration Strategy. 8 Admit that both strategies establish riparian management zones to protect salmonid-bearing
9 streams and some non-fish-bearing streams. Admit that the Department uses a combination of 10 various types of active management through stand manipulation and the natural development of 11 unmanaged stands to meet the conservation objectives of the strategies. The documents are the 12 best source of their content and speak for themselves. All other allegations in Paragraph 97 are 13 denied. 14 98. Admit that ecological thinning can cost more than future returns. Admit that as 15 part of the process to establish a new sustainable harvest level, the Department examined the 16 prior decadal arrearage and contributing causes. Admit that actual riparian harvest and thinning 17 volumes were lower than the volume modelled and the Department identified this as a factor that 18 contributed to the arrearage. Admit that the 2007 sustainable harvest level assumed that 19 10 percent of the total riparian area available for thinning would be thinned (394 MMBF); 20 however, only about 1 percent of the total area thinned or harvested in fiscal year 2004-2015 21 period was in riparian areas (39 MMBF). Admit the Sustainable Harvest FEIS analyzed a range 22 of harvest alternatives. Admit that the Board directed that riparian harvests should be conducted 23 based on ecological values consistent with the HCP. Admit that Resolution 1560 directs the 24 Department to track and report sold timber volume from riparian areas separately from 25 sustainable harvest level volume. The documents and minutes of Board meetings are the best 26
DEFENDANTS’ AMENDED ANSWER 19 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 source of their content and speak for themselves. All other allegations in Paragraph 98 are 2 denied. 3 99. Admit that, compared to western Washington, stands in eastern Washington are 4 at an increased risk of wildfires. Admit that The Case for Active Management of Dry Forests 5 Types in Eastern Washington: Perpetuating and Creating Old Forest Structures and Functions 6 was prepared at the request of the Department. Admit that the report was a scientific review of 7 ecological information relevant to state forests in eastern Washington managed by the 8 Department. Admit that the report makes the case for active management of dry forest types in
9 eastern Washington in order to preserve and perpetuate older forest structures and functions. 10 Admit that the report details the values of large old trees and older forest structures in these dry 11 forests, presents the scientific evidence that substantiates sustainable active forest management, 12 and offers management guidelines for the restoration and maintenance of older forest conditions. 13 All other allegations in Paragraph 99 are denied. 14 100. Admit that forest health and wildfire are identified as key climate risks to the 15 Department in the Assessment of Climate Change-Related Risks to DNR’s Mission, 16 Responsibilities and Operations, 2014-2016 Summary of Results, stating,
17 Forest Health: Forest health treatment needs exceed the pace and scale possible with current resources. Tree mortality will likely increase due to interactions 18 between reduced soil moisture, pests, and pathogens, especially in eastern Washington. Wildfire: Large fires are projected to become more frequent and the 19 fire season is likely to start earlier and last longer, requiring increased resources over a longer period. Increased wildfire activity is expected to increase the risk 20 to wildland firefighters, communities, infrastructure and natural resources across the state. 21 22 Admit that that the 20-Year Forest Health Strategic Plan, Eastern Washington states,
23 Since watershed and landscape-level restoration will seek to create a diversity of age classes, seral stages, and forest conditions, having a mix of ownerships within 24 these planning areas can contribute to this diversity. While most DNR trust lands will likely provide early to mid-seral stage forests where revenue production is a 25 primary objective, other lands have habitat conservation commitments requiring late seral forest stands to provide old growth dependent wildlife species with 26
DEFENDANTS’ AMENDED ANSWER 20 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 habitat. Privately owned forests may also contribute to the early to mid-seral stage forests. 2 3 The documents are the best source of their content and speak for themselves. All other allegations 4 in Paragraph 100 are denied. 5 101. Admit that the Department has recognized the need to promote and protect forest 6 health in Washington. All other allegations in Paragraph 101 are denied. 7 102. Defendants are without sufficient information to form a belief as to the truth of 8 the allegations in the second sentence, and therefore deny all such allegations. Admit that
9 Plaintiff organizations regularly advocate to the Department on a variety of matters, including 10 forest health. All other allegations in Paragraph 102 are denied or do not require a response 11 because they are legal conclusions or argument. 12 103. Admit that forest management activities on Department-managed land is 13 compatible with surrounding working forest landscapes. Deny all other allegations in 14 Paragraph 103. 15 104. Admit that the Department manages land near Wallace Falls State Park in 16 Snohomish County and that the State Park can be accessed from the town of Gold Bar off State 17 Highway 2. Defendants are without sufficient information to form a belief as to the truth of the 18 allegations in the fourth sentence, and therefore deny all such allegations. All other allegations 19 in Paragraph 104 are denied. 20 105. Admit that Wallace Falls State Park is a popular forested park featuring the 21 Wallace River and several waterfalls. Admit that Snohomish County acquired land to provide 22 parking. Defendants are without sufficient information to form a belief as to the truth of the 23 remaining allegations, and therefore deny all such allegations. 24 106. Admit that there is a long history of recreational use, primarily motorized, on 25 Department-managed land near Wallace Falls State Park. Admit that the Department was 26
DEFENDANTS’ AMENDED ANSWER 21 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 awarded a $325,000 grant in 2012 to develop recreational trails in the Reiter Foothills Forest. 2 All other allegations in Paragraph 106 are denied. 3 107. Admit Governor Inslee issued Executive Order 14-01, but deny that it was 4 specific to Wallace Falls. The Order is the best source of its content and speaks for itself. 5 Defendants are without sufficient information to form a belief as to the truth of the remaining 6 allegations in Paragraph 107, and therefore deny all such allegations. 7 108. Admit that Department planning for the Singletary timber sale on its managed 8 lands east and south of Wallace Falls State Park began as early as 2009, and that the proposed
9 sale originally included 187 acres of variable retention harvest across three harvest units. All 10 other allegations in Paragraph 108 are denied or do not require a response because they are legal 11 conclusions or argument. 12 109. Admit that the Department worked on permitting for the Singletary timber sale 13 in 2014-2016. Admit that timber purchasers and members of the public were interested in the 14 sale, and expressed multiple, varying ideas about whether it should be sold, how the sale should 15 be designed, and the impact of the sale on the local community. Admit that Snohomish County 16 changed its position several times on the timing and design of the timber sale. Admit that the 17 Singletary sale was included in the sale packet for the October 4, 2016, Board Meeting but was 18 withdrawn to address concerns at the November 1, 2016, Board Meeting. Admit that the 19 Singletary sale was included in the sale packet for the January 3, 2017, Board meeting, and the 20 Board approved the sale for auction. Admit that the Department reduced total acreage of the sale 21 to 166 acres at the request of Snohomish County so that the County could pursue reconveyance 22 of a portion of the sale area pursuant to RCW 79.22.300. Admit that the Department auctioned 23 the sale on May 24, 2017, that the high bidder was Sierra Pacific Industries, and the sale was 24 confirmed by the Commissioner of Public Lands on June 5, 2017. All other allegations in 25 Paragraph 109 are denied or do not require a response because they are legal conclusions or 26 argument.
DEFENDANTS’ AMENDED ANSWER 22 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 110. Admit that the Mayor of Gold Bar expressed concern about the Singletary timber 2 sale. Defendants are without sufficient information to form a belief as to the truth of the 3 allegations in the Mayor’s letter, and therefore deny all such allegations. 4 111. Admit the first sentence of Paragraph 111. Admit that the Department was 5 presented with an alternative harvest plan for the Reiter Foothills Forest, but deny that the plan 6 would have achieved 60 percent of the Department’s harvest volume target. Defendants are 7 without sufficient information to form a belief as to the truth of the remaining allegations, and 8 therefore deny all such allegations.
9 112. Admit that the Middle May timber sale proposal is a redesigned timber sale in 10 proximity to Wallace Falls State Park. All other allegations in Paragraph 109 are denied or do 11 not require a response because they are legal conclusions or argument. 12 113. Admit that the City of Gold Bar has adopted a resolution dated December 17, 13 2019, regarding alternative options for the Singletary timber sale, after the date of the Board’s 14 decisions on Resolutions 1559 and 1560. Admit that the quoted language is in the Resolution. 15 All other allegations are denied. 16 114. Admit that Plaintiff Mike Town attended several of the Department’s Reiter 17 Foothills Forest Public Forum meetings and that he has met with Department staff relating to 18 forest management activities in the Reiter Foothills Forest. Defendants are without sufficient 19 information to form a belief as to the truth of the remaining allegations in Paragraph 114, and 20 therefore deny all such allegations. 21 115. Defendants are without sufficient information to form a belief as to the truth of 22 the allegations in Paragraph 115, and therefore deny all such allegations. 23 116. Admit that the Department has been planning the Michigan Trotter timber sale in 24 Clark County. Admit that the county has a trail easement near the planned sale across 25 Department-managed land for the Moulton Falls Trail, which is a 2.5-mile barrier-free trail that 26 runs from the Hantwick Road trailhead to Moulton Falls Park near the East Fork Lewis River.
DEFENDANTS’ AMENDED ANSWER 23 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 Admit that the Department has been in discussions with Clark County about possible transfer or 2 reconveyance of Department-managed land near the trail. Admit that Plaintiff Linda Lorenz has 3 expressed concerns to the Department about the Michigan Trotter sale. Defendants are without 4 sufficient information to form a belief as to the truth of the remaining allegations about 5 Plaintiff Lorenz in Paragraph 116, and therefore deny such allegations. All other allegations in 6 Paragraph 116 are denied. 7 117. Admit that the Department has had discussions with Clark County about 8 additional buffers next to the trail, including possible transfer or reconveyance of
9 Department-managed land near the trail. All other allegations in Paragraph 117 are denied or do 10 not require a response because they are legal conclusions or argument. 11 118. Admit that the Department sells, transfers, or exchanges land for a variety of 12 reasons. All other allegations in Paragraph 118 are denied. 13 119. Admit that RCW 79.19 authorizes the Land Bank program, and that the 14 Department is working on Land Bank Exchange 2019, DNR #86-099144. Admit that 15 Paragraph 119 excerpted quotes are from the objective of this exchange. All other allegations in 16 Paragraph 119 are denied. 17 120. Admit that Paradise 40 and Canal 40 are identified as trust properties in proposed 18 Land Bank Exchange 2019. Admit that Paradise 40 is forested and is zoned RR-20 (two 19 homesites). Admit that Canal 40 has some forested areas and is zoned RF-40 (only one 20 homesite). All other allegations in Paragraph 120 are denied. 21 121. Admit that the Department notified Jefferson County about the potential sale of 22 both Canal 40 and Paradise 40, and invited the County to share any questions, comments, and 23 concerns regarding the proposals. Admit that the Department noted and held a public hearing for 24 Land Bank Exchange 2019, an inter-trust exchange with the Land Bank to position the Canal 40 25 and Paradise 40 properties for auction. Admit that the Department received comments expressing 26 concerns about the exchange from members of the public, organizations, and local and tribal
DEFENDANTS’ AMENDED ANSWER 24 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 governments. Admit that more than seven months after the original Department notice of the 2 potential sale to Jefferson County, the Department received a letter from the Jefferson County 3 Commissioners in opposition to the Exchange and the auctions of Canal 40 and Paradise 40. 4 Admit that from 2009 to 2019, the Department has acquired 3,940 acres of trust land, transferred 5 2,039 acres of trust land for conservation and park purposes, and has purchased 1,882 acres for 6 conservation in the eastern portion of Jefferson County. All other allegations in Paragraph 121 7 are denied. 8 122. The Jefferson County Commissioners’ letter is the best source of its content and
9 speaks for itself. Admit that Paradise 40 is forested and is zoned RR-20 (two homesites). Admit 10 that Canal 40 has some forested areas and is zoned RF-40 (only one homesite). 11 123. Defendants are without sufficient information to form a belief as to the truth of 12 the allegations in Paragraph 123, and therefore deny all such allegations. 13 124. Admit that proposed Land Bank Exchange 2019 includes property in Okanogan 14 County. Deny the remaining allegations in Paragraph 124. 15 125. Admit that Department-managed lands provide habitat for wildlife and, when 16 appropriate, public recreational uses. Admit that there are no sanctioned trails or trail easements 17 on the Department-managed parcels in Okanogan County included in Exchange 2019, and that 18 the Department lacks legal access to several of these parcels. Defendants are without sufficient 19 information to form a belief as to the truth of the remaining allegations in Paragraph 125, and 20 therefore deny all such allegations. 21 126. Admit that the Department currently manages about 1.27 million acres of land in 22 western Washington that is currently in the Competitive Exclusion Stand Development Stage. 23 Admit that Table 3.3.2 in the Sustainable Harvest EIS at p. 3-17 describes the competitive 24 exclusion phase as quoted and is the best source of its content and speaks for itself. All other 25 allegations in Paragraph 126 are denied. 26
DEFENDANTS’ AMENDED ANSWER 25 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200 1 127. Deny the allegations in the first sentence of Paragraph 127. Defendants are 2 without sufficient information to form a belief as to the truth of the allegations in sentence two, 3 and therefore denies the same. 4 128. Admit that the Department previously considered, but did not adopt, a proposed 5 expansion of the Dabob Bay Natural Area. Admit that the Department has previously sold, and 6 currently is planning timber sales, on Department-managed land in Jefferson County. Admit that 7 the Department’s Natural Heritage Program maintains a comprehensive database on rare plant 8 species and communities and their locations, and that the Department consults the database of
9 known locations when planning timber sales activities with the intent of avoiding impacts to 10 special ecological features. Admit that the Sustainable Harvest EIS Appendix H identifies rare 11 plants on Department-managed lands in western Washington. Any other allegations in 12 Paragraph 128 are denied. 13 129. Admit that the Department manages the Olympic Experimental State Forest 14 (OESF). Admit that road density on Department-managed land in the OESF varies by landscape 15 and ranges from 3.7 to 5 road miles per square mile. Admit that forest roads can potentially 16 deliver fine sediment to streams, and fine sediment delivery to streams can have potential adverse 17 water quality and fish impacts if fish are present and the impacts are not mitigated. Deny that a 18 1981 study provides current data, since the rules, statute, practices, and HCP approval 19 significantly changed the operating landscape since publication. Admit that the 2016 OESF HCP 20 Planning Unit Forest Land Plan contains a management strategy to implement comprehensive 21 road maintenance and abandonment plans. Deny all other allegations in Paragraph 129. 22 130. Admit that stream conditions vary by site, and that warm temperatures may be 23 caused by a variety of factors, including decreased flow. Defendants are without sufficient 24 information to form a belief as to the truth of the remaining allegations contained in 25 Paragraph 130, and therefore deny all such allegations. 26 131. Defendants deny the allegations in Paragraph 131.
DEFENDANTS’ AMENDED ANSWER 26 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 132. Admit that the Department implements conservation measures for water quality 2 and wildlife. No further response is required because this paragraph sets forth legal conclusions 3 or argument. 4 133. No response is required to Paragraph 133 because it sets forth legal conclusions 5 or argument. 6 134. Admit the first sentence of Paragraph 134. No response is required to the 7 remaining allegations because they set forth legal conclusions or argument. 8 135. Admit that RCW 79.10.300(5) defines the sustainable harvest level and that
9 RCW 79.10.310 defines sustained yield plans. Admit that the Legislature has delegated 10 discretion in setting the sustainable harvest level. The statutes are the best source of their content 11 and speak for themselves. Admit that the Department has the discretion, as the agency with 12 expertise, to implement the statutes. No further response is required because the remaining 13 allegations set forth legal conclusions or argument. 14 136. Admit that the Policy for Sustainable Forests has a policy that establishes 15 sustainable harvest units for the Sustainable Harvest Calculation and on recalculation of the 16 sustainable harvest level. Admit that multiple regulatory and policy documents govern the 17 harvest on state forests. Those documents are the best source of their content and speak for 18 themselves. 19 137. Admit that the Sustainable Harvest Level FEIS analyzed six alternatives 20 including the no action alternative for the 2015 – 2024 decade. The document is the best source 21 of its content and speaks for itself. Admit the remaining allegations in this paragraph. 22 138. Admit that the one of the Department’s objectives for the sustainable harvest level 23 was in the Sustainable Harvest FEIS as quoted. The document is the best source of its content 24 and speaks for itself. No further response is required because the remaining allegations set forth 25 legal conclusions or argument. 26
DEFENDANTS’ AMENDED ANSWER 27 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 139. Admit that the Board approved Resolution 1560 on December 3, 2019, which 2 establishes the decadal Sustainable Harvest Level for the planning decade fiscal year 3 2015 - fiscal year 2024 for forested State Trust lands in western Washington. The Board minutes 4 and Resolution are the best source of their content and speak for themselves. All other allegations 5 are denied or do not require a response because they are legal conclusions or argument. 6 140. Admit that the Board approved, in Board Resolution 1560, a new End of Decade 7 Analysis: Arrearage policy for inclusion in the Policy for Sustainable Forests. The document is 8 the best source of its content and speaks for itself. The remaining allegations do not require a
9 response because they are legal conclusions or argument. 10 141. Admit that all alternatives considered in the Sustainable Harvest Level result in 11 more forests in the Structurally Complex stand development stage and less forest in the 12 Competitive Exclusion stage, as projected over the next 50 years. The document is the best 13 source of its content and speaks for itself. All other allegations are denied or do not require a 14 response because they are legal conclusions or argument. 15 142. No response is required because this paragraph sets forth legal conclusions or 16 argument. 17 143. No response is required because this paragraph sets forth legal conclusions or 18 argument. 19 144. Admit that an objective identified in the Sustainable Harvest Level FEIS included 20 the language quoted in sentence one. Deny the allegation Defendants did not consider or evaluate 21 carbon; the Department’s quantitative analysis for the Sustainable Harvest Level FEIS found 22 that more carbon was sequestered than emitted over the five-decade analysis period under every 23 alternative. Admit that the Department also evaluated the effects of climate change on the 24 alternatives and their expected environmental impacts, and that the Department found that no 25 alternative is likely to reduce climate-related forest resistance and resilience under a changing 26
DEFENDANTS’ AMENDED ANSWER 28 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 climate. The document is the best source of its content and speaks for itself. All other allegations 2 are denied or do not require a response because they set forth legal conclusions or argument. 3 145. Defendants deny the allegations in Paragraph 145, but the paragraph does not 4 require a response because it sets forth legal conclusions or argument. 5 146. Admit that the Department implements the 1997 State Trust Lands HCP, as 6 amended. Admit that the HCP supports the U.S. Fish and Wildlife Service’s issuance of an 7 incidental take permit under the federal Endangered Species Act. Admit that the ITP and HCP 8 cover Department activities on Department-managed forestlands within the range of the
9 Northern Spotted Owl in the state of Washington, and that the marbled murrelet is a covered 10 species. Admit the marbled murrelet is federally and state-listed. Any other allegations in 11 Paragraph 146 are denied. 12 147. Admit that marbled murrelets spend most of their lives on coastal marine waters 13 from southern Alaska to central California. Admit that marbled murrelets nest inland from these 14 waters in mature forests. Admit that marbled murrelets lay a single egg on a branch in a variety 15 of tree species, but in Washington, Douglas-fir and western hemlock are the primary species 16 associated with marbled murrelet nesting. Admit that marbled murrelets feed and gather food for 17 chicks in marine waters. Admit that the analysis area for the marbled murrelet analytical 18 framework for the Long-Term Conservation Strategy for the Marbled Murrelet Final 19 Environmental Impact Statement (LTCS FEIS) includes all Department-managed forested lands 20 within 55 miles of all marine waters in western Washington because USFWS uses this as an 21 estimate of the inland range of the marbled murrelet in Washington. Current science 22 summarizing the biology of marbled murrelets is documented in the LTCS FEIS, which is the 23 best source of its content and speaks for itself. All other allegations in Paragraph 147 are denied. 24 148. Admit that Department activities permitted under the HCP have three categories 25 of potential impacts: harvest impacts, edge-influenced impacts, and disturbance impacts. Admit 26 that harvest impacts result in the removal of potential marbled murrelet habitat, and that
DEFENDANTS’ AMENDED ANSWER 29 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 removing habitat can result in the loss of existing nests and reduce future reproductive capability, 2 therefore impacting the species. Admit that edge-influenced impacts are associated with the 3 forest edge left after harvest activities and some roads, and that edge effects include microclimate 4 changes, increased predation, and increased windthrow. Admit that disturbance impacts may 5 occur from actions that generate loud noises and activity in close proximity to nesting murrelets, 6 and that these types of disturbances can result in a potential disruption of murrelet breeding and 7 nesting behaviors. All other allegations in Paragraph 148 are denied. 8 149. Admit that Section 3.6 of the LTCS FEIS describes the biology and ecology of
9 the marbled murrelet and includes a discussion of the factors that may influence population 10 decline, including historic and ongoing habitat loss, marine conditions, and corvid predation. 11 Admit that the 2008 Science Team Report states “[t]he greatest threat identified to marbled 12 murrelets in Washington, Oregon, California, British Columbia, and Alaska is the loss of 13 habitat-containing quality nesting sites, primarily older forests, as well as an increase in forest 14 fragmentation which is thought to increase predation and decrease nesting success.” Admit that 15 the LTCS is expected to increase the acreage and quality of murrelet habitat on 16 Department-managed land over the planning period. The documents are the best source of their 17 content and speak for themselves. All other allegations in Paragraph 149 are denied. 18 150. Admit that the loss of inland habitat was a major cause of marbled murrelet 19 population declines over the past century, as well as marine habitat degradation due to 20 anthropogenic activities. Admit that between 2001 and 2016, the marbled murrelet population 21 declined at an average annual rate of 3.9 percent in Washington. Admit that habitat loss has 22 occurred throughout the listed range of the murrelet, and ongoing habitat loss rates are the highest 23 in Washington. Admit that southwest Washington has been identified as a priority area for 24 murrelet habitat conservation. Admit that the federal recovery plan emphasizes the role of habitat 25 on federal land. All other allegations in Paragraph 150 are denied. 26
DEFENDANTS’ AMENDED ANSWER 30 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 151. Admit that at the time the 1997 HCP was being developed, the scientific 2 information available for the marbled murrelets was limited and no federal or state recovery plan 3 had been adopted. Admit that the 1997 HCP included a five-step Interim Conservation Strategy 4 for marbled murrelets designed to protect the marbled murrelet on Department-managed land in 5 the area covered by the HCP while participating in collection of the information needed to 6 develop a long-term strategy. Admit that the 1997 HCP contains this paragraph:
7 The long-term conservation strategy developed by DNR would likely include information on the location of occupied sites, the distribution of habitat in each 8 planning unit, current research results, landscape-level analysis and considerations, and the site-specific management plans developed by DNR. The 9 long-term strategy would address such factors as developing habitat where gaps exist, developing or maintaining replacement habitat, and would protect the vast 10 majority of occupied sites. This process should result in a comprehensive, detailed landscape-level plan that would help meet the recovery objectives of the 11 U.S. Fish and Wildlife Service, contribute to the conservation efforts of the President’s Northwest Forest Plan, and make a significant contribution to 12 maintaining and protecting marbled murrelet populations in western Washington over the life of the HCP. 13 14 The documents are the best source of their content and speak for themselves. 15 152. Admit that the Department and USFWS issued scoping notices in 2006 indicating 16 that a joint SEPA/NEPA EIS would be prepared for the LTCS. Admit that in 2012-2013, 17 additional scoping was done in two phases for the preparation of the 2016 draft EIS: In the 18 Phase 1 scoping initiated in April 2012, the Department and USFWS requested public comment 19 on a proposed statement of need and purpose, range of alternatives, impacts that should be 20 considered, and environmental information relevant for the analysis for the long-term 21 conservation strategy; in Phase 2 scoping initiated in May 2013, the Department and USFWS 22 provided the opportunity for the public to provide input into the long-term conservation strategy 23 process and a set of conceptual alternatives for the long-term conservation strategy. Admit the 24 Board approved the Department need, purpose, and objectives for the LTCS FEIS process, 25 including “Objective #1, Trust Mandate: Generate revenue and other benefits for each trust by 26 meeting DNR’s trust management responsibilities. Those responsibilities include making state
DEFENDANTS’ AMENDED ANSWER 31 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 trust lands productive, preserving the corpus of the trust, exercising reasonable care and skill in 2 managing the trust, acting prudently with respect to trust assets, acting with undivided loyalty to 3 trust beneficiaries, and acting impartially with respect to current and future trust beneficiaries.” 4 Admit that the LTCS FEIS contains this quote: “DNR needs to obtain long-term certainty for 5 timber harvest and other management activities on forested state trust lands, consistent with 6 commitments in the 1997 HCP and DNR’s fiduciary responsibility to the trust beneficiaries as 7 defined by law.” The documents are the best source of their content and speak for themselves. 8 All other allegations in Paragraph 152 are denied.
9 153. Admit that the Department and USFWS started the SEPA/NEPA process in 2006 10 and that the LTCS FEIS was published in 2019. Admit that the LTCS FEIS analyzes a range of 11 eight main alternatives (A-H), and also considered, but did not analyze in detail, other 12 alternatives that had been proposed through public comments. Admit that the eight main 13 alternatives differ in the amount of land that is designated specifically for marbled murrelet 14 conservation, where that conservation is located, and how these conservation areas will be 15 managed. Admit that LTCS FEIS Figure 2.4.5 summarizes the impacts and mitigation for all 16 alternatives, including those considered but not analyzed in detail. Admit that LTCS FEIS 17 Section 2.4 Comparing The Alternatives contains a discussion on how the alternatives address 18 the Department’s purpose. Admit that LTCS FEIS Chapter 4 identifies any potential impacts 19 under each alternative on the affected environment. The LTCS FEIS is the best source of its 20 content and speaks for itself. All other allegations in Paragraph 153 are denied. 21 154. Admit that Washington Department of Fish and Wildlife, the federal 22 Environmental Protection Agency, and some conservation organizations and members of the 23 public submitted comments requesting that the Department select an alternative that set aside 24 more area or limited more forest management activities than the adopted LTCS. The written 25 comments are the best source of their content and speak for themselves. 26
DEFENDANTS’ AMENDED ANSWER 32 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 155. Admit that the adopted LTCS is closest to Alternative H, and that the LTCS is 2 consistent with the Department’s identified need, purpose, and objectives. The detailed 3 description of Alternative H is the best source of its content and speaks for itself. All other 4 allegations in Paragraph 155 are denied. 5 156. Admit that the USFWS Findings and Recommendations for the ITP amendment 6 and the Biological Opinion for the LTCS both find that the LTCS contributes to the recovery of 7 the marbled murrelet. These documents are the best source of their content and speak for 8 themselves. Admit that the quoted excerpt in Paragraph 156 is from LTCS FEIS Appendix A,
9 which is the Scoping Report prepared to document the scoping process used to develop the draft 10 EIS. Deny that the quote is a statement from the Department; the quoted language was a public 11 comment received in the scoping process related to Objective #1: Trust Mandate. All other 12 allegations in Paragraph 156 are denied. 13 157. Admit that the United States Fish and Wildlife Service approved the amendment 14 to the 1997 Habitat Conservation Plan. Admit the Board adopted the LTCS in Resolution 1559 15 on December 3, 2019. The remaining allegations do not require a response because they set forth 16 legal conclusions or arguments.
17 V. CLAIMS 18 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 19 20 1. In response to Paragraph 1, incorporate responses in Paragraphs 1-157 above. 21 2. No response is required because this paragraph sets forth legal conclusions or 22 argument. 23 3. No response is required because this paragraph sets forth legal conclusions or 24 argument. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 33 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 4. Defendants are without sufficient information to form a belief as to the truth of 2 the allegations of the first sentence of Paragraph 4, and therefore deny all such allegations. The 3 remaining allegations are denied. 4 5. No response is required because this paragraph sets forth legal conclusions or 5 argument. 6 6. No response is required because this paragraph sets forth legal conclusions or 7 argument. 8 Claim Two – Writ of Constitutional Certiorari and Invalidation of the Board of Natural Resources’ Approval of the Sustainable Harvest Calculation 9
10 1. In response to Paragraph 1, incorporate responses in Paragraphs 1-157 above.
11 2. No response is required because this paragraph sets forth legal conclusions or 12 argument.
13 3. No response is required because this paragraph sets forth legal conclusions or 14 argument.
15 Claim Three—Writ of Constitutional Certiorari and Invalidation of the Board of Natural Resources’ Approval of the Marbled Murrelet Longterm Conservation Strategy. 16 17 1. In response to Paragraph 1, incorporate responses in Paragraphs 1-157 above. 18 2. No response is required because this paragraph sets forth legal conclusions or 19 argument. 20 3. No response is required because this paragraph sets forth legal conclusions or 21 argument. 22 VI. RELIEF REQUESTED 23 Section VI, Paragraphs 1 through 7 state Plaintiffs’ prayer for relief for which no 24 response is required. 25 / / / 26 / / /
DEFENDANTS’ AMENDED ANSWER 34 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 VII. DEFENDANTS’ AFFIRMATIVE DEFENSES
2 By way of further answer, Defendants re-allege the foregoing answers to Plaintiffs’ 3 Second Amended Complaint and set forth the following affirmative defenses:
4 1. Plaintiff has failed to state a claim upon which relief can be granted under 5 CR 12(b)(6);
6 2. Plaintiff has failed to join necessary and indispensable parties as required by 7 CRs 19, 20, and 12(b)(7);
8 3. Plaintiff has failed to join necessary and indispensable parties as required by 9 RCW 7.24.110, and therefore this Court lacks jurisdiction over Plaintiffs’ claims under said 10 statute;
11 4. Some or all Plaintiffs lack standing on some or all claims; 12 5. Plaintiffs assert claims which are unreviewable matters of discretion and/or are 13 barred by the Discretionary Decision Making Doctrine;
14 6. Res Judicata; 15 7. Collateral Estoppel; 16 8. Plaintiffs’ claims are not ripe; 17 9. Plaintiffs’ claims are barred by the statute of limitations; 18 10. Plaintiffs are not entitled to attorneys’ fees under RCW 4.84; 19 11. The UDJA is not available relief for Plaintiffs; 20 12. Laches; 21 13. CR 12(f) requires striking allegations that are irrelevant to claims or preclude the 22 superior court’s jurisdiction; and
23 14. Defendants reserve the right to supplement these affirmative defenses. 24 / / / 25 / / /
26 / / /
DEFENDANTS’ AMENDED ANSWER 35 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE PO Box 40100 Olympia, WA 98504-0100 (360) 753-6200
1 VIII. DEFENDANTS' REQUEST FOR RELIEF 2 Wherefore, Defendants pray that the Court: 3 1. Dismiss the Complaint withprejudice; 4 2. Deny all relief requested by Plaintiffs; 5 3. Grant Defendants their costs and statutory attorneys' fees herein; and 6 4. Grant Defendants such other and further relief as the Court may deem just and 7 proper. 8 DATED this 19th day of March, 2020. 9 ROBERT W. FERGUSON AttorneyGeneral 10
11 12 PATRICIA H. O' RlEN, SBA #11484 Senior Assistant A,,,.,,.,-nAn General 13 MARTHA F. WEHLING, WSBA #36295 Assistant Attorney General 14 Natural Resources Division (360) 753-6204 15 Attorneysfor Defendants Commissioner of 16 Public Lands HilaryFranz, Washington State Department ofNatural Resources, and 17 Washington State Board of Natural Resources 18 19 20 21 22 23 24 25 26
DEFENDANTS' AMENDED ANSWER 36 ATTORNEY GENERAL OF WASHINGTON 1125 Washington Street SE POBox40100 Olympia,WA 98504-01 00 (360) 753-6200 1 CERTIFICATE OF SERVICE 2 I certifythat I caused a copy ofthe foregoing document to be served on all partiesor their 3 counsel ofrecord on March 23, 2020, as follows: 4 Wyatt F. Golding [] U.S. Mail Postage Prepaid 5 Brian Gruber [ ]Certified Mail Postage Prepaid Ziontz Chestnut [ ] State CampusMail 6 2101 Fourth Avenue, Suite 1230 [ ] HandDelivered 7 Seattle, WA 98121 [ ] ABC Legal Messenger [email protected] [] FedEx Overnight 8 [email protected] [X] Email
9 Attorneys for Plaintiffs 10 Peter Goldman [] U.S. Mail Postage Prepaid 11 Washington Forest Law Center [ ] CertifiedMail PostagePrepaid 4132 California Avenue SW [ ] State CampusMail 12 Seattle, WA 98116 [ ] Hand Delivered 13 [email protected] [ ] ABC Legal Messenger [ ] FedEx Overnight 14 Attorneys for Plaintiffs [X] Email 15 , 16 I certify under penalty of perjury, under the laws of the state of Washington, that the 17 foregoing is true andcorrect.
18 DATED this 23rd day ofMarch, 2020, at Olympia, Washington. 19 d\iYV's- L- .hes� 20 KIM L. KESSLER Legal Assistant 21 Natural ResourcesDivision 22 23 24 25 26
DEFENDANTS' AMENDED ANSWER 37 ATTORNEY GENERALOF WASIDNGTON 1125 WashingtonStreet SE POBox40100 Olympia,WA 98504-0100 (360) 753-6200