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Oregon State Forests Case 3:18-cv-01035-MO Document 95 Filed 12/07/20 Page 1 of 5 ELLEN F. ROSENBLUM Attorney General DARSEE STALEY #873511 DEANNA J. CHANG #192202 Senior Assistant Attorneys General Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: [email protected] [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION CENTER FOR BIOLOGICAL DIVERSITY; Case No. 3:18-cv-01035-MO CASCADIA WILDLANDS; NATIVE FISH SOCIETY, DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 Plaintiffs, v. PETER DAUGHERTY, in his official capacity as Oregon State Forester; KATHERINE SKINNER, in her official capacity as District Forester for the Tillamook District; MICHAEL CAFFERATA, in his official capacity as District Forester for the Forest Grove District; DANIEL GOODY, in his official capacity as District Forester for the Astoria District, Defendants. Page 1 - DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 34067462 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Case 3:18-cv-01035-MO Document 95 Filed 12/07/20 Page 2 of 5 And OREGON FOREST INDUSTRIES COUNCIL, Intervenor-Defendant. And TILLAMOOK COUNTY, Intervenor-Defendant. CONFERRAL Counsel for defendants conferred with the parties by video conference on November 13 and 25, 2020. Plaintiffs and intervenor-defendants do not oppose the motion.1 1 The statements of the parties are as follows: “Plaintiffs’ consent to the State Defendants’ motion is based on the proposed stay’s automatic expiration, on July 15, 2020 [sic], and the State Defendants’ agreement to drop two timber sales from the 2021 Tillamook ODF District Annual Operations Plan, known as Coast Bill and Thundercat, that were of concern to Plaintiffs.” “Intervenor-Defendant Oregon Forest Industries Council (“OFIC”) does not oppose the State Defendants’ motion to stay because the reasons presented in the supporting memorandum and declaration present a sufficient basis for staying the case until July 15, 2020 [sic]. Separately, OFIC strongly opposes the State Defendants’ agreement to remove the Coast Bill and Thundercat sales from the 2021 Tillamook ODF District Annual Operations Plan. The Plaintiffs have presented no evidence -- during conferral or otherwise in this case -- showing that those sales will result in incidental take in violation of the Endangered Species Act or that removal of those sales is otherwise justified. Based on the representations of the State Defendants’ counsel, OFIC’s understanding is that the State Defendants agreed to remove those sales for no reason other than to procure the Plaintiffs’ non-opposition to the motion to stay.” “Intervenor-Defendant Tillamook County does not oppose the State Defendants’ motion to stay because the State Defendants have agreed to replace lost timber volume from the Coast Bill and Thundercat sales such that the actual 2021 timber volume on the Tillamook State Forest remains as equal as possible to the volume set forth in the original 2021 Tillamook ODF District Annual Operations Plan, and for the reasons identified in OFIC’s conferral statement.” Page 2 - DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 34067462 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Case 3:18-cv-01035-MO Document 95 Filed 12/07/20 Page 3 of 5 MOTION Defendants move for an extension of the stay in this matter until July 15, 2021, approximately six months from the expiration of the current stay on December 29, 2020. In support of this Motion, defendants rely on the Court’s inherent power to control its docket in the interest of justice and judicial efficiency, the Declaration of Liz Dent, filed concurrently, the following memorandum in support, and publicly available information on the COVID-19 pandemic, the wildfire crisis in Oregon, and the status of the HCP currently being developed by the Oregon Department of Forestry (ODF). Defendants anticipate that an additional stay will be sought if the HCP process continues toward conclusion as expected. MEMORANDUM IN SUPPORT In April 2020, defendants moved for a stay on the grounds that the global pandemic, ODF’s ongoing effort to prepare an HCP, and the impending fire season, left defendants with insufficient resources to continue the litigation on its course. (ECF #77). Defendants informed the court and the parties that, in the event the HCP process proceeded as expected, defendants likely would seek an extension of the stay. The initial stay was granted until October 30, 2020. On September 16, 2020, defendants filed an unopposed motion to extend the stay for an additional 60 days, until December 29, 2020, on the grounds that the COVID-19 pandemic remained a significant obstacle to normal operations and the HCP process was continuing on schedule. (ECF# 92). In addition, at the time of the unopposed motion to extend the stay, Oregon was in the midst of an unprecedented fire season that diverted nearly all of ODF’s resources. That motion to extend the stay was granted and will expire on December 29, 2020. Defendants now seek another extension of the stay so that ODF can continue to focus its resources on the critical tasks ahead, including maintaining the HCP process and recovery and restoration of the state forests which were damaged in this year’s catastrophic wildfires. As described in the declaration of Liz Dent, ODF’s State Forest Division Chief, ODF’s resources continue to face enormous strains resulting from the COVID-19 pandemic. With a significant Page 3 - DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 34067462 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Case 3:18-cv-01035-MO Document 95 Filed 12/07/20 Page 4 of 5 portion of ODF employees working at home, technological and other factors are impacting ODF’s efficiency. Ex. 1, Decl. of Liz Dent ¶3. In addition, over one million acres of forestlands were burned in the wildfires that ravaged the state this year. Id. at ¶4. Portions of State Forests, including the Tillamook and the Santiam State Forest, were damaged by fires. Id. at ¶5. The most significant fire damage occurred in the Santiam State Forest, where nearly 50% of the forest was in the footprint of the Beachie Creek fire. Id. at ¶6. ODF’s office in Lyons, Oregon burned, and several ODF employees lost their homes. Id. Although the fires themselves are now contained, ODF has a significant amount of resource-intensive work ahead to restore the State Forests. In order to aid the recovery effort of the Santiam State Forest, ODF has shifted resources from other districts and prioritized Santiam restoration. Id. at ¶7. Restoration focuses on removal of debris, hazard and burnt trees, road repair, re-establishing fish passage, erosion control, restoration of fish and wildlife habitat and popular recreation areas, and reforestation. Id. Moreover, some personnel who are critical to defending this litigation are necessary to the reforestation and recovery efforts of the Santiam State Forest. Id. Finally, as outlined in the earlier motions to stay, ODF has been actively engaged in the development of a multi-species HCP and ITP that would likely, when approved, moot this case. See e.g., Alliance for the Wild Rockies v. Burman, 2020 WL 6381983 (D. Mont. Oct. 30, 2020) (lawsuit alleging violation of ESA dismissed as moot after ITP obtained). In October 2020, ODF met its goal of producing a first administrative draft HCP for presentation to the Oregon Board of Forestry. On October 6, 2020, the Board voted unanimously to instruct ODF to proceed and complete Phase 3 of the HCP process. Id. at ¶8. Phase 3 involves submission of the draft HCP to the NOAA Fisheries and the US Fish and Wildlife Service (collectively, the Services) for review under the National Environmental Policy Act. Id. at ¶9. Although the NEPA process is the responsibility of the Services, the close collaboration of ODF and the Services leads ODF to Page 4 - DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 34067462 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Case 3:18-cv-01035-MO Document 95 Filed 12/07/20 Page 5 of 5 believe that the federal approval process can be completed by July 2022. Id. at ¶9. That approval will include issuance of an ITP, which will moot this litigation. CONCLUSION Accordingly, defendants request that the court order the stay of this litigation through July 15, 2021. DATED December 7, 2020. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General s/ Deanna J. Chang DARSEE STALEY #873511 DEANNA J. CHANG #192202 Senior Assistant Attorneys General Trial Attorneys Tel (971) 673-1880 Fax (971) 673-5000 [email protected] [email protected] Of Attorneys for Defendants Page 5 - DEFENDANTS’ UNOPPOSED MOTION TO EXTEND THE STAY UNTIL JULY 15, 2021 34067462 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000.
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