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Old growth forest preservation in British Columbia and the American Pacific Northwest : an account of… Waatainen, Jeffrey Bernard 1992

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OLD GROWTH FOREST PRESERVATION IN BRITISH COLUMBIA AND THE AMERICAN PACIFIC NORTHWEST: AN ACCOUNT OF A DEBATE FOR SURVIVAL by JEFFREY BERNARD WAATAINEN BA.(honours), The University of B r i t i s h Columbia, 1991 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS (Department of P o l i t i c a l Science) We accept t h i s t h e s i s as conforming the standard required THE UNIVERSITY OF BRITISH COLUMBIA September 1992 © J e f f r e y Bernard Waatainen, 1992 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of POLITICAL SCIENCE The University of British Columbia Vancouver, Canada Date OCTOBER 11, 1992 DE-6 (2/88) ABSTRACT This essay offers a study of o ld growth forest pol icy in British Co lumb ia and the American Pacific Northwest and, in so doing, attempts to contribute to the sparse comparative environmental literature that uses Canada as a case study. Specifically, the essay addresses the question of why o ld growth forest preservation pol icy divergences so dramatically between British Co lumb ia and the American Pacific Northwest. After establishing that American Pacific Northwest and British Co lumb ia o ld growth forest preservation pol icy diverges, the author employs a chronological methodology to reconstruct the current old growth preservation pol icy outcomes in both jurisdictions. The author then identifies a series of variables that affect o ld growth forest preservation pol icy in both jurisdictions, and examines each as a force of divergence. The essay discusses the different influences of two non-institutional variables-science and economics-and two institutional variables-federalism and legalism-on American Pacific Northwest and British Co lumb ia o ld growth policy. The essay concludes by discussing the question of how each variable works with one another to produce this instance of pol icy divergence. The author finds that all four variables collaborate with one another and contribute to the divergence. However , the essay concludes that the major determining factor in this case of pol icy divergence is the interplay of the two institutional variables. ii TABLE OF CONTENTS Page ABSTRACT ii LIST O F TABLES v A C K N O W L E D G E M E N T S vi I. I N T R O D U C T I O N 1 W h y is O l d Growth a Problem? 2 The Essay 6 II. O L D G R O W T H PRESERVATION IN THE A M E R I C A N PACIFIC N O R T H W E S T 11 The Regulatory Regime 11 The Forest Service 12 The Bureau of Land Management 13 The Fish and Wi ld l i fe Service 15 The Growth Debate in the American Pacific Northwest 16 Northern Spotted O w l , Congress, and Statutory Requirements . . 17 The Northern Spotted O w l and the Endangered Species Act . . . 26 Repercussions on A P N O l d Growth 30 O l d Growth Protection in the American Pacific Northwest 35 III. O L D G R O W T H PRESERVATION IN BRITISH C O L U M B I A 37 The Regulatory Regime 37 The British Co lumbian Ministry of Forests 38 The Canadian Approach to Endangered Species 4 0 The W i ld l i f e Act 4 0 The Committee O n the Status of Endangered Wi ld l i fe In Canada 42 The Canadian Approach to Environmental Assessment 43 The O l d Growth Debate in British Co lumbia 46 The Legalistic Approach 4 6 The Federal Courts 4 6 The Provincial Courts 50 The Multipartite Approach 54 The O l d Growth Strategy Project 55 Commiss ion on Resources and Environment 56 O l d Growth Protection in British Co lumbia 58 British Co lumb ia 59 British Co lumb ia and the American Pacific Northwest 61 iii TABLE OF CONTENTS, Continued: Page IV. EXPLAINING DIVERGENCE 66 Non-Institutional Variables 66 Differences in Science? 66 Differences in Economics? 75 Institutional Variables 78 Differences in Federalism? 78 Differences in Legalism? 82 V. BY W A Y O F C O N C L U S I O N 85 W O R K S CITED 93 iv LIST OF TABLES Page Table 3.1 BC and A P N O l d Growth Figures 61 Table 3.2 BC and Federal A P N Harvest Levels (bil l ion board feet) 64 Table 4.1 BC and A P N O l d Growth Economic Figures 77 v ACKNOWLEDGEMENTS To begin, I wou ld like to give my appreciation to my professors and fe l low students at the University of British Columbia 's Department of Political Science for providing me with a stimulating academic environment, and for making my last three years an extraordinary experience. I wou ld like to thank Professor Carty for agreeing to second read for me. M y thanks also go out to Toni Erskine for her work on environmental group organisation, and to Paula Poikonen for proofreading and patience. I wou ld also like to thank the two people who , aside from my parents, have had the greatest influence on the direction of life. First, my gratitude goes out to Michae l Meade, my first and second year polit ical science instructor w h o encouraged me to work to the limit of my abilities. Second, my debt is particularly profound to Professor George Hoberg, my thesis advisor, employer, and friend; I fear I w i l l never be able to repay all George has done for me. Finally, my deepest appreciation goes to my parents, Bernie and Ellen Waatainen, to w h o m I owe everything. Jeff Waatainen vi 1 I. INTRODUCTION In both British Co lumb ia and the American Pacific Northwest, a parallel debate has developed over the remaining o ld growth forests. O n one side of the debate are a group of consumptive users concerned with the economic dislocation that cou ld result from potential logging restrictions. Balanced against the consumptive users are preservationists who are concerned with the destruction of the continent's remaining o ld growth forests in the name of economic stability. 1 Preservationists, on one hand, wish to maintain what little o ld growth remains in either country for reasons of recreation, biodiversity, and so on . Consumptive users, on the other hand, c la im that without access to the valuable o ld growth timber, they cannot continue as viable operations and, as go the timber companies, so goes the economic stability of the two regions. 2 This essay performs comparative study of the o ld growth debates in the American Pacific Northwest (APN) and British Co lumb ia (BC). 3 Specifically, I w i l l show that there is a divergence between the two jurisdictions in o ld growth pol icy responses, and explain why this divergence exists. 4 In this introduction I w i l l , first, frame the issue of o ld growth as a publ ic pol icy 'From here on in I will simply refer to "old growth forests" as "old growth". 2Ceorge Hager, "Small Owl Incites Big Battle Over Environment, Jobs," Congressional Quarterly Weekly Review. 47.26 (September 1989): 2308; British Columbia, Ministry of Forests, Towards an Old Growth Strategy: Summary of the Old Growth Strategy Workshop (Victoria: Queen's Printer for Canada, 1990) 14. 3The American Pacific Northwest, for the purposes of this essay, includes Oregon and Washington states. 4As I am concerned with the recent history of the old growth debate, I am not going to include old growth that is already protected in parks or wilderness reserves, but only what I will refer to as "unreserved" old growth. 2 problem and, second, outl ine my contribution towards a greater understanding of the problem. Why is Old Growth a Problem? The term old growth is particularly difficult to define; it means many different things to many different people. Common to most conceptions is the idea that an old growth forest is a stand of evergreen trees that has not been altered by logging activity. O l d growth forests are often contrasted with second growth forests, wh i ch are stands of evergreen trees that either regenerated naturally, or were planted by humans, on sites where o ld growth once stood. The primary difference between the two is that the natural cycle of life, death, and regeneration found in o ld growth is at least partially absent in second growth. 5 Certain characteristics, such as dead standing trees, multiple canopy layers, and a high degree of decadence, cannot exist in second growth and, consequently, neither can the ecological systems dependent upon these characteristics. 6 Preservationists generally focus their efforts on protecting o ld growth and o ld growth dependent ecosystems. They are concerned with society's "anthropocentric" management of o ld growth. The debate for preservationists is invariably connected with the debate over endangered species and biological diversity. For example, one person participating in British Columbia 's O l d Growth Strategy Project commented: "Reflections on Old Growth (Vancouver: MacMillan Bloedel, September 1990) 2-3. 'Matthew J. Coleman, "Spotted Owls: Research and Controversy," Tappi lournal (April 1990) 77. 3 Do our desires for commercial exploitation outweigh the basic survival needs of countless other species whose home we invade?7 Others, however, are concerned with the province's economy, and the financial future they bequeath to future generations. As another O l d Growth Strategy Participant explained: The forest industry has been the backbone of the B.C. economy for a long time. Our goal must be to provide employment not only for the working life of those presently engaged in the woods ... but for their children and grand-children. 8 The confl ict over o ld growth, then, is the confl ict between those w h o value o ld growth as the home of many species w h o inhabit the planet a long with human beings, and those who value o ld growth for its timber value and the lifestyle that accompanies timber harvesting. For all practical purposes, o ld growth is a non-renewable resource and is, therefore, especial ly valuable. Like other scarce resources, there are different interests compet ing for control over the publ ic policies governing o ld growth. The pol icy problem o ld growth poses for governments is how much of the remaining o ld growth should be set aside for each compet ing interest. The market, in a perfectly competit ive economy, wou ld settle this competit ion by al locating the remaining o ld growth to the party that places the highest monetary value on the resource. 9 However , many people feel they wou ld be unhappy with the market as a distribution 'British Columbia, Ministry of Forests, Towards an Old Growth Strategy: Summary of Public Comments (Victoria: Queen's Printer for British Columbia, 1992) 8. "British Columbia, Comments 8. "David Weimerand Aidan Vining, Policy Analysis: Concepts and Practice (Englewood Cliffs, N.J.: Prentice Hall, 1989) 29. 4 mechanism for old-growth; after a l l , if most remaining old growth in both BC and A P N is in the publ ic domain, why should the issue of whether or not to preserve o ld growth be decided through the market when the people already own it? What if the people do not want to sell? The distribution of o ld growth, then, is a publ i c goods pol icy problem. The conflict in society over the way the market might distribute o ld growth has to do with the negative externalities of harvesting of old-growth. Harvesting o ld growth, in other words, involves a social cost (loss of publ ic o ld growth) to cit izens who d id not consent to this cost. However, in BC and A P N , preservation of o ld growth also carries a social cost (a decrease in society's economic standard of living) to citizens w h o did not consent to this cost. Because o ld growth is an excludable publ ic good (a good that once dedicated towards a certain type of use cannot concurrently be used for other purposes) with negative externalities, government must step in to manage the social costs of harvesting or preserving o ld growth accord ingly . 1 0 The debate is often couched in terms of ideology ("preservationists are really anti-capitalists who use o ld growth as a proxy in their war against industrial capital -ism"). Frequently, the language of rights is also invoked as a central theme in the argument ("old growth forests and all creatures that depend on them have an inherent right to exist, and society violates this right by harvesting o ld growth for-ests"). However , the issue presents publ ic pol icy makers wi th , essentially, two other 10For a technical discussion of excludability, externalities, and social cost, see Wei mer and Vining, chapter 6. 5 confl ict ing pol icy approaches, both utilitarian: (1) society extracts the highest level of utility from old growth by committ ing it to timber production or, (2) society achieves the highest level of utility from old growth by maintaining current levels of biodiversity through preserving remaining o ld growth inventories. O f course, most people are not absolutely committed to one side or the other; the nature of the question, generally, is not "one or the other" but, rather, "how much of each" . Those w h o advocate the continued use of o ld growth for timber product ion maintain that restricting the logging of o ld growth forests wou ld lead to economic instability and a net decl ine in society's wel l being. These people argue that a decrease in o ld growth logging w i l l increase levels of unemployment and lead to the economic dislocation of those dependent upon on the forest sector for their l i ve l i -hood. This w i l l result in a contraction of society's money supply that w i l l negatively affect other sectors of the economy. Consequently, governments wi l l have a smaller tax base to support social programs. At the same time, however, an increase in social i l ls-such as a lcohol ism and cr ime-due to increased poverty and psychological devastation w i l l further strain the already l imited resources available for the social programs intended to combat these social il ls. The overall result for society, according to those w h o make this argument, w i l l be a lower standard of l i v i ng . " Those w h o advocate the preservation of o ld growth argue that, in the long run, cont inued harvesting of o ld growth w i l l decrease levels of biodiversity and, consequently, decrease in the present and potential benefits of biodiversity found in "For example, see Robert G. Lee, "Social and Cultural Implications of Implementing A Conservation Strategy for the Northern Spotted Owl'," unpublished essay, 1990: 28 -32. 6 old growth, resulting in a decl ine in society's we l l being. These people argue that human existence depends upon the interrelationships of all l iv ing things. A decrease in biodiversity resulting from continued o ld growth logging w i l l forever result in the loss of untold numbers of medical break-throughs, opportunities to increase the world 's food supply, potential alternative supplies of raw materials, recreational and tourist opportunities, and so on . The overall result for society in the long term, according to those w h o make this argument, w i l l be a lower standard of l i v ing . 1 2 This confl ict over the remaining o ld growth forests provides the back-drop for the rest of the discussion. The Essay This essay is a comparative study. Comparative studies are particularly useful for identifying the features of a pol icy field that are common to all jurisdictions and, conversely, for identifying features that may seem mundane in one jurisdiction but take on new meaning by their absence in another jur isdict ion. The comparative method al lows us to distinguish the merely generic from the significantly par-t icular . 1 3 As Hoberg notes, at least two features are common to most comparative literature on environmental pol icy: (1) an extensive consensus exists that there is significant convergence in pol icy outcomes in spite of diverging regulatory institu-12For example, see Calvin Sandborn, "Endangered Species and Biological Diversity," Law Reform for Sustainable Development in British Columbia, ed. Calvin Sandborn (British Columbia: Canadian Bar Association, 1990) 59-60. "Ronald Brickman, Sheila Jasanoff, and Thomas llgen, Controlling Chemicals: The Politics of Regulation in Europe and the United States (Ithaca and London: Cornell University Press, 1985) 30. 7 tions, and (2) the literature virtually ignores Canada . 1 4 A comparative study of BC and A P N o ld growth pol icy, then, affords us the opportunity to make two small but meaningful contributions to the field of comparative environmental pol icy. To begin, this study w i l l contribute to the sparse comparative environmental literature invo lv ing Canada as a case study. Further, the pol icy responses between the two jurisdictions in the field of o ld growth do not, l ike other environmental pol icy outcomes, converge. This fact calls for closer examination of the BC and A P N o ld growth pol icy outcomes. Throughout the essay, I w i l l develop an argument to explain the present level of divergence between BC and A P N o ld growth pol icy responses. Fo l lowing Brickman, Jasanoff, and llgen, I have a broad, three-part conception of pol icy that i n -cludes: the decision of the state to define or expand its regulatory authority through the establishment of legislative goals and priorities; the process of implementation in which broad policy mandates are narrowed and given individual application; and the outcome and enforcement of administrative decision making. 1 5 The reader should note that I am explaining different pol icy outcomes, not different intentions, legislative goals and processes. However , by comparing intentions, legislative goals, and processes, I w i l l help explain the diverging pol icy outcomes. 14George Hoberg, "Risk, Science, and Politics: Alachlor Regulation in Canada and the United States," Canadian lournal of Political Science XXIII:2 (June 1990): 258. ,5Brickman, Jasanoff, and llgen 30. 8 To begin, I w i l l examine the regulatory regimes governing the management of o ld growth in both jurisdictions, and offer a chronology of the events intended to reconstruct the pol icy outcomes that currently distinguish the o ld growth issue between BC and A P N . Next, I w i l l identify the various sources of divergence, and examine each variable in the context of both the A P N and BC old growth debates, assessing them as forces that are defining the different approaches towards o ld growth pol icy . I w i l l show that differences in two non-institutional variables played a role in the divergent outcomes. Fo l lowing the neo-Marxists, I w i l l demonstrate that the different roles o ld growth plays in the economies of the two jurisdictions helped to determine the level of divergence. Specifically, I w i l l show that the forest sector dominates the BC economy to a greater degree than the A P N economy, thus giv ing the forest industry greater influence over the o ld growth pol icy outcome in BC than in A P N , resulting in divergent pol icy outcomes. I w i l l also show that science had a hand in dr iv ing the pol icy divergence. There is far greater scientific certainty that o ld growth dependent species in A P N are in danger of extinction due to the continued logging of o ld growth than there is of o ld growth dependent species in BC. This suggests that diverging knowledge bases concerning o ld growth dependent species between the two jurisdictions may have led to the diverging pol icy outcomes. I w i l l further show that differences in two institutional variables played a role in the divergent pol icy outcomes. Differences between Canadian and American federalism factored prominently in the pol icy divergence. In the United States, decision making power over o ld growth issues belongs to the federal government, a l low ing decision-makers from areas outside the A P N region to establish environmen-9 talist credentials without economic expense to their own electoral constituencies. In Canada, however, BC provincial government decision-makers, whose electoral viabi l i ty is closely l inked to the province's economic performance and thus the forest industry, have control over o ld growth pol icy in BC. Consequently, federal decis ion makers from areas outside BC cannot develop the green vote in their home constituency via the o ld growth forests of British Co lumbia . Finally, I w i l l show that a major contributor to the divergence in o ld growth pol icy between BC and A P N is the legalism that prevails in the administration of environmental pol icy in the US but is absent in Canada. In the field of o ld growth pol icy in the US, the courts have been w i l l i ng to force the federal agencies with jurisdiction over federal A P N old growth to comply with the strictly-worded, action-forcing environmental statutes governing the management of A P N o ld growth. Consequently, environmental groups have been able to thwart administrative discretion in o ld growth pol icy by taking federal agencies to court and, thereby, forcing the government to protect A P N o ld growth as their governing statutes require, regardless of the polit ical or economic consequences that might fo l low from this protection. In Canada, environmental lawyers have discovered no such opportunities at the provincial level in BC. A n d though the federal courts have recently forced the federal government to comply with its own environmental regulations in other parts of the country, the courts have yet to apply these regulations in the o ld growth forests of British Co lumbia . I w i l l then conc lude by summariz ing my assessment of the forces that define the divergent old growth pol icy outcomes, and enter into a final discussion of how 10 particular or generic each explanatory variable is to the two jurisdictions. In other words, I w i l l attempt to distribute the explanatory pie. Though all variables contributed to the divergent o ld growth pol icy outcomes, a greater portion of the divergence is explained by the differences in institutional variables. 11 II. OLD GROWTH PRESERVATION IN THE AMERICAN PACIFIC NORTHWEST In this chapter I w i l l review the recent history of the old growth preservation debate in A P N , and examine the extent of nonreserved o ld growth preservation in A P N . First, however, I w i l l examine the regulatory regime governing the politics of o ld growth forests in A P N . The Regulatory Regime For the purposes of this discussion, control of American Pacific Northwest (APN) o ld growth forest land is in the publ ic domain and primarily under the jur isdic-tion of the federal government. Virtual ly all o ld growth on private lands in the US has been logged. 1 6 State agencies such as Washington's Department of Natural Resources (DNR) control slightly more than 200 000 hectares of o ld growth forest in the region, and timber harvesting continues on these lands. 1 7 Another 8 percent of the region's o ld growth are on National Park Service lands, whi le trace amounts also exist on Indian lands. 1 8 The remaining 86 percent of o ld growth in A P N is under the management of the federal Forest Service and Bureau of Land Management 16"The Citizens' Guide to the Timber Industry and a Profile of U.S. Forests," Forest Watch 12.1 (July 1991): 35. ,7Mark Bonnettand Kurt Zimmerman, "Politics and Preservation: The Endangered Species Act and the Northern Spotted Owl," Ecology Law Quarterly 18.43 (1991): 116. David Larson, Natural Resource Economist for Washington state's Department of Natural Resources (DNR), informs me that while DNR is experimenting with various old growth harvesting techniques, fully a third of DRN's 1991 harvest of 0.54 billion board came from Washington state old growth stocks. See David Larson, Washington State Department of Natural Resources, Natural Resource Economist, telephone interview, 18 August 1992. 18Gary D. Meyers, "Old-Growth Forests, The Owl, and Yew: Environmental Ethics versus Traditional Dispute Resolution Under the Endangered Species Act and Other Public Lands and Resources Laws," Boston College Environmental Affairs Law Review 18.623 (1991): 627. 12 (BLM), and all of it is potentially subject to logging. 1 9 Consequently, in this section I w i l l examine the institutions having direct management responsibility for the remaining federal nonreserved A P N old growth: the USFS and the BLM . In addi t ion, due to its recently expanded role in A P N old growth issues, I w i l l also offer a brief discussion of the Fish and Wi ld l i fe Service. The Forest Service The Forest Service (USFS) manages three-quarters of the remaining A P N o ld growth . 2 0 The USFS, established under President Theodore Roosevelt in 1906 with premier conservationist Gifford P inchotas its head, 2 1 was created with the intention of placing the nation's forest stewardship in the hands of the Department of Agriculture rather than the more political Interior department, and is now the largest agency with in the Department of Agr icul ture. 2 2 Western Forest Service operations are governed by the Senate Committee on Energy and Natural Resources, and the House Committee on Interior and Insular Affairs. The USFS plans land use in its jurisdict ion in accordance with the Multiple-Use Sustained Yield Act of 1960, the Rangeland Renewable Resources Planning Act of 1974, and the National Forests '"Meyers 627; Victor M. Sher and Andy Stahl, "Spotted Owls, Ancient Forests, Courts and Congress: An Overview of Citizens' Efforts to Protect Old-Growth Forests and The Species That Live in Them," Northwest Environmental lournal 6.2 (1990): 362. 20Meyers 627. 21R. Peter Gillis and Thomas R. Roach, Lost Initiatives (New York: Greenwood Press, 1986) 52, 60. 22Donald G. Balmer, "United States Federal Policy on Old-Growth Forest in Its Institutional Setting," Northwest Environmental lournal 6.2 (1990) 334. 13 Management Act (NFMA) of 1976. Its major responsibilities include (A) administra-tion of the National Forest System, (B) state and private forestry, and ( Q research. 2 3 Whi l e the Forest Service is ultimately responsible to the Secretary of Agriculture, the agency is under the control of a Chief Forester (Chief), usually a USFS careerist w h o has held a number of positions in the Forest Service hierarchy prior to making Chief. The Chief is assisted by an Associate Chief, and both work out of the Washington D.C. off ice. 2 4 In recent years, however, as the conflicts over US forests have become increasingly heated and pol it ical , an Assistant Secretary of Agriculture position was created and charged almost exclusively with the polit ical oversight of the Forest Service. 2 5 The National Forest System be low the D.C. office is d iv ided into nine forest regions, each headed by a Regional Forester, to oversee 155 national forests (each headed by a Forest Supervisor) encompassing 692 forest districts (each headed by a Forest Ranger). 2 6 The Bureau of Land Management The B L M manages 12 percent of the remaining A P N old growth . 2 7 The Bureau of Land Management was established in 1946 under President Truman by an executive order combin ing the o ld General Land Off ice and the Graz ing Service. 23Paul J. Culhane, Public Lands Politics (Baltimore: Johns Hopkins University Press, 1981) 60. 24Balmer 337. 25Balmer 337. 26See Balmer 335, and Randall O'Toole, Reforming the Forest Service (Washington. D.C: Island Press, 1988) 17. 27Meyers 627. 14 The B L M gained its Oregon land holdings when lands granted to the Oregon and Cal i fornia Rai lway and to the Coos Wagon Road Company (known as the " O & C lands") were returned to the Interior Department after the companies failed to comp ly with federal laws concerning the land grants. 2 8 Wh i l e the B LM has vast land holdings throughout the western US and Alaska, its major forest responsibilities are limited to its O & C lands. 2 9 The Bureau of Land Management exists wi th in the US Department of the Interior (USDI) a long with agencies such as the Parks Service, and the Fish and Wi ld l i fe Service. 3 0 As with the USFS, the Senate Committee on Energy and Natural Resources, and the House Committee on Interior and Insular Affairs, have legislative jurisdiction over the B L M . The Bureau of Land Management plans land use on its forest lands in accordance with the Federal Land Policy and Management Ac t (FLPMA) of 1976, and with the O&C Sustained Yield Act of 1937. The primary management functions of the B L M on forest land within its domain are to ensure timber production on a sustained yield basis, and to manage it according to multiple-use cr i ter ia. 3 1 Wh i l e the B L M is ultimately responsible to the Secretary of the Interior, the agency is under the control of a Senate confirmed Director. Unl ike the Forest Service, persons outside the B L M are frequently appointed to serve based on the 28Balmer 336. Maimer 336. 30Efforts to merge all US forest management into one agency-the Forest Service-have failed. See Balmer 337. 31United States Department of Interior, Bureau of Land Management, Timber Management for the 1980s (Portland: Oregon State Office, 1984) 1; Culhane 97. 15 polit ical considerations of regional members of Congress. Further, the rate of turn-over is high. A lso unlike the USFS, the hierarchy of the B LM is organised a long a state's political boundaries rather than according to the natural boundaries of resources. 3 2 So, under the Bureau of Land Management Director is the State Director for Oregon, who oversees the operations of the district offices in the state. 3 3 The Fish and Wildlife Service The Fish and Wi ld l i fe Service (FWS) was created under President Roosevelt in 1939 when the Department of Interior's Bureau of Fisheries was jo ined with the Department of Agriculture's Bureau of Biological Survey. 3 4 The FWS has the function of determining whether a petitioned species of plant or animal is "threatened" or "endangered" under the Endangered Species Act (ESA) and, if so, for devising a recovery plan for that species in accordance with the ESA. 3 5 Unti l recently, the FWS had an Off ice of Endangered Species but, due to a bureaucratic reorganisation in 1987, responsibility for endangered species is now divided among "Balmer 336-337. "USDI 24. "Richard J. Tobin, The Expendable Future (Durham: Duke University Press, 1990) 35-36. ""Northern Spotted Owl v. Lujan", Environmental Law Reporter 21 (July 1991): 20915-20916. A "threatened" species is one that will soon become "endangered" if steps are not taken to ensure its viability. See George Hager, "Small Owl Incites Big Battle Over Environment, Jobs," Congressional Quarterly Weekly Review 47.36 (September 1989): 2308. 16 several branches of the new Divis ion of Endangered Species and Habitat Conserva-t i o n . 3 6 The Fish and Wi ld l i fe Service is "bur ied" in the Department of Interior and is, therefore, ultimately responsible to the Secretary of Interior. Practically, however, it is run by a Senate confirmed Director. Under the Director, the FWS manages 70 fish hatcheries, 160 waterfowl production areas, and 4 5 0 national wi ld l i fe refuges in addit ion to its ESA dut ies. 3 7 The Senate Committee on Environment and Publ ic Works, and the House Committee on Merchant Mar ine and Fisheries, have legislative jurisdiction over the Fish and Wi ld l i fe Service. The Growth Debate in the American Pacific Northwest In this section I w i l l examine the recent history of the o ld growth forest debate in A P N , and wi l l do so from three perspectives. First, I w i l l survey the preservationists' strategy of protecting o ld growth by forcing federal agencies to comply with the statutory requirements of their p lanning processes (particularly the National Forests Management Act in the case of the Forest Service, and the Federal Lands Policy and Management Act in the case of the Bureau of Land Management, and the National Environmental Policy Act in both instances), and the legislative initiatives of regional members of Congress to block these efforts. Second, I w i l l describe the environmentalists' strategy of forcing the Fish and Wi ld l i fe Service to list the northern spotted ow l as an endangered species under the Endangered Species 36Tobin 37. 37Tobin 42. 17 Act. As I w i l l explain further be low, the USFS and B L M forest management statutes legal strategy is conceptual ly distinct from the endangered species strategy. Th i rd , I w i l l examine the repercussions the debate, to this point, has produced for A P N o ld growth. Northern Spotted Owl, Congress, and Statutory Requirements As mentioned, comprehensive use of national forest land is mandated by the Forest Service's National Forests Management Act and the Bureau of Land Management's Federal Land Policy Management Act. The N F M A and the F L P M A requires the USFS and the B L M to develop timber management plans (TMPs). In addit ion, the National Environmental Pol icy Act (NEPA) requires the Forest Service and the Bureau of Land Management to supplement their TMPs with Environmental Impact Statements (EISs). NEPA is a procedural statute requiring federal agencies to fo l low a specified process when formulating the detailed EISs. NEPA, the reader should note, does not prevent unwise decisions; it on ly prevents decisions that are uninformed.3* Though the strategy is simple enough-prevent the USFS and B L M from proceeding with their proposed o ld growth logging activities by enforcing the statutory requirements governing these activities-the myriad of court cases involved in the strategy may seem bewilderingly complex. For the purposes of clarity, I w i l l spell out the court cases in full at the outset and assign acronyms for use throughout ""Headwaters, Inc. v. Bureau of Land Management," The Environmental Law Reporter 19 October 1989: 21161. 18 the fo l lowing discussion, and point to where they fit into the strategy. The cases concerning the Bureau of Land Management's compl iance with the National Environmental Policy Act and the Federal Lands Management Policy Act are, in chronological order, as fol lows: Portland Audubon Society v. Hodel (PAS I), Portland Audubon Society v. Lujan (PAS II), and Portland Audubon Society v. Lujan (PAS III). The cases concerning the Forest Service's compl iance with NEPA and the National Forest Management Act are as fol lows: Seattle Audubon Society v. Robertson (SAS I), Oregon Natural Resources Council v. Mohia (ONRC), Seattle Audubon Society v. Robertson (SAS II), Seattle Audubon Society v. Evans (SAS III), Robertson v. Seattle Audubon Society (Robertson), and Seattle Audubon Society v. Moseley (SAS IV). In 1986, the Assistant Secretary of Agriculture-pol it ical overlord of the Forest Service-ordered the USFS to prepare supplemental EISs examining the effects timber sales on Forest Service land wou ld have on northern spotted owl populations. Later that year, the Forest Service released a draft environmental impact statement for its proposed timber sales conc lud ing that significant new information regarding the spotted ow l had evolved since the USFS drafted its original EIS for the region in 1984 . 3 9 Eventually, in December, 1988, the Forest Service released a supplemental EIS for its timber sales, and a plan to set aside "spotted ow l habitat areas" protecting from 1 000 to 3 000 acres of habitat around each spotted ow l nest. 4 0 Conversely, in Apr i l , 1987, the Oregon State Director of the B L M decided not to supplementthe original environmental impact statement accompanying the Bureau 39"Portland Audubon Society v. Hodel." Environmental Law Reporter 18 (October 1988): 21211. ^Balmer 341; William Dietrich, The Final Forest (New York: Simon and Schuster, 1992) 221. 19 of Land Management's timber management plans for Oregon. The new spotted owl information, according to the State Director, was "not significant", and the logging of o ld growth timber wou ld continue as scheduled under the original T M P s . 4 1 Fearing that the rate of o ld growth harvesting in B L M forests wou ld foreclose the ability of the Secretary of Interior to meaningfully protect the o w l , environmentalists headed for the federal courts. At first, remember, the USFS, was nominal ly comply -ing with the National Environmental Policy Act by preparing a supplemental EIS for its timber management plans. Consequently, environmentalists originally focused on the Bureau of Land Management, taking it to court in 1987 in PAS I for al legedly violat ing NEPA by fai l ing to prepare supplement environmental impact statements for its Oregon TMPs in light of new information regarding the northern spotted o w l . In addit ion, the suit also claimed that the B L M violated the Federal Land Policy Management Act, the O&C Sustained Yield Act, and the Migratory Bird Treaty A c t . 4 2 O n Apr i l 20 , 1989, the court held that a congressional continuing resolution l imiting judic ia l review of B L M and USFS timber management plans precluded a challenge to their timber sales. 4 3 For example, Section 312 of the Fiscal Year 1990 Bi l l states: The Forest Service, and the Bureau of Land Management under separate authority, may continue the management of lands within their jurisdiction under existing land and resource management plans pending the completion 4'"Portland Audubon Society v. Hodel," Environmental Law Reporter 18 (October 1988): 21211. 42"Portland Audubon Society v. Hodel," Environmental Law Reporter 19 (1989): 20366. """Portland Audubon Society v. Hodel," Environmental Law Reporter 18 (November 1988): 21210. 20 of new plans. Nothing shall limit judicial review of particular activities on these lands: Provided, however, That there shall be no challenges to any existing plan on the sole basis that the plan in its entirety is outdated, or in the case of the Bureau of Land Management, solely on the basis that the plan does not incorporate information available subsequent to the completion of the existing plan: Provided further, That any and all particular activities to be carried out under existing plans may nevertheless be challenged.44 Apparently anticipating lawsuits that wou ld have an adverse impact on the A P N timber industry and, consequently, its economy, a delegation of regional members of Congress led by Senators Mark O . Hatfield, R-Ore., and Brock Adams, D-Wash., had, beginning in 1987, annually attached this rider to the Department of Interior and Related Agencies Appropriations Act exempting the USFS and B L M from their NEPA obligation to incorporate significant new information that may have env i ron-mental implications on federal actions into their TMPs . However , in January 1989, on appeal to the Ninth Circuit Court of Appeals, the court held that the congressional cont inuing resolution did not necessarily preclude a challenge to timber sales in the o ld growth timber stands that provide habitat to the spotted o w l . The environmentalists' claims, the court stated, were aimed at particular timber sales and, therefore, might possibly be characterised as challenges to "particular activities" rather than the "p lan" and, thus, may be chal lenged under the congressional cont inuing resolut ion. 4 5 The court remanded the case back to the District Court to determine whether the plaintiffs challenge was to the T M P as a whole , or to particular sales. Meanwhi le , shortly after the Circuit •"Cited without change from Sher and Stahl 368. 45"Portland Audubon Society v. Hodel," Environmental Law Reporter 19 (April 1989): 20367. 21 Court's rul ing in PAS I, environmentalists fi led suit in a District Court in Seattle against the Forest Service in SAS I, chal lenging its timber management plans on the inadequacy of its spotted owl habitat areas. The Court issued an injunction halting most o ld growth logging in A P N not already tied up by a similar injunction stemming from PAS I.46 In M a y of 1989, the Oregon District Court ruled in PAS II on the remand resulting from the January, 1989, Circuit Court's decision in PAS I. The court held that the congressional cont inuing resolution does not necessarily preclude review of the plaintiffs' claims. However, the National Environmental Policy Act claims were a challenge to the entire timber management plan as the plaintiffs d id not present any new information on the spotted owl that was "site-specif ic" to any proposed timber sale act iv i ty. 4 7 In a case concerning Forest Service timber management plans in Oregon, the Ninth Circuit Court of Appeals wou ld take this reasoning even further on February 7, 1990. In O N R C the court held that whi le , on its face, a site-specific challenge does not appear to violate the congressional cont inuing resolution, if successful the suit wou ld a l low for sale-by-sale challenges of the entire forest management plan for failure to consider new information. Such challenges wou ld amount to a de facto attack on the entire T M P and, therefore, even a site-specific challenge violates the resolut ion. 4 8 The cont inuing resolution appeared bullet proof. 46See "Seattle Audubon Society v. Robertson," Environmental Law Reporter 20 (October 1990): 20020, and Dietrich 221. "'"Portland Audubon Society v. Lujan," Environmental Law Reporter 19 (October 1989): 21230. •""'Oregon Natural Resources Council v. Mohia," Environmental Law Reporter 20 (May 1990): 20475. 22 PAS II was heard before the Ninth Circuit Court of Appeals and, on September 6, 1989, the court upheld the District Court's rul ing on the NEPA claims, but remanded the non-NEPA claims (under the Federal Land Policy Management Act, the O&C Land Act, and the Migratory Bird Treaty Act) back to the District Cour t . 4 9 However , that fall, the Hatfield-Adams coal it ion in the Congress got to work on Section 318 of the Interior Department and Related Agencies Appropriations Act for Fiscal Year 1990, also known as the "Northwest Timber Compromise" , and by others as "the Rider from He l l " . Section 318 is a complicated amendment but for the purposes of this discussion, its main significance was that it exempted all t imber activities from comply ing with the non-NEPA statutes that Section 312 failed to address. 5 0 As such, the Seattle US District Court injunction stemming from SAS I barring USFS timber sales in A P N was dropped in November, 1989 , 5 1 and the Oregon District Court, on remand in PAS II, dropped the environmentalists' non-NEPA chal lenges. 5 2 Later, in SAS II, environmentalists sued the Forest Service for violat ing one of the provisions in Section 318 . O n M a y 11, 1990, the District Court in Seattle enjoined the USFS from sell ing timber in an Oregon national forest because, in so doing, they violated a provision in Section 318 stating that, to sell timber in spotted ow l habitat, the Forest Service must explain why that particular sale is necessary. 49"Portland Audubon Society v. Luian." Environmental Law Reporter 19 (December 1989): 21378. 50Sher and Stahl 376. 5 1 Dietrich 222. "Sher and Stahl 371. 23 The court found nothing in the administrative record of the sale in question-a sale containing spotted owl habitat-indicating why the sale was necessary and it was, therefore, found arbitrary and capricious and contrary to law. 5 3 Then, on September 18, 1990, the Ninth Circuit Court of Appeals he ld, in a case combin ing appeals from SAS II and PAS II, that Section 318 directed the courts to reach a particular conclusion in cases chal lenging federal government timber sales. Section 318, the court stated, instructed federal courts to find that USFS and B L M timber management plans satisfy federal environmental statutes and therefore violated the US Constitution's separation of powers doctr ine. 5 4 Section 318 was struck down as unconstitutional; Congress could no longer use riders to appropriation bills to a l low the USFS and B L M to skirt the requirements of federal environmental statutes. As a result of this Circuit Court rul ing, federal timber sales became, once again, w ide open to challenges from environmental groups. Such was the case on May 2 3 , 1 9 9 1 when a District Court in Seattle ruled on SAS III. W i th the prohibit ion on judic ia l review over federal TMPs removed, the USFS had to devise a plan that wou ld ensure the viabil ity of the spotted owl populat ion in A P N in order to comply with N F M A . The National Forest Management Act requires the Forest Service "... to manage the lands entrusted to it so as to maintain viable populations of native ""Seattle Audubon Society v. Robertson." Environmental Law Reporter 20 (October 1990) 21167. ""Seattle Audubon Society v. Robertson," Environmental Law Review 21 (January 1991): 20019. 24 vertebrate species ...." 5 5 The issue before the court was whether to a l low logging on USFS lands whi le the Forest Service worked on a plan to maintain a v iable spotted ow l populat ion. The key issue was, in this instance, that the Forest Service did not already have a plan, in spite of the wel l-known N F M A requirements, yet wished to proceed with its harvesting plans. The court, apparently unconvinced of the USFS's will ingness to preserve spotted ow l habitat, enjoined the Forest Service from conduct ing further timber sales wh i le not in compl iance with National Forest Management Act, and ordered the Forest Service to come into compl iance with its N F M A obligations by March 5, 1992 . 5 6 O n that date the USFS submitted its spotted ow l conservation plan wh i ch recommended restricting logging on 2.89 mi l l ion hectares of A P N old growth . 5 7 Meanwhi le , on February 19, 1992, in PAS III, the US District Court in Portland issued a temporary injunction on logging activities on Bureau of Land Management lands pending the court's decision on whether or not the B L M failed to comply with its National Environmental Policy Act requirements in formulating its t imber management plans. 5 8 O n June 8, 1992, the court held that the B L M had, in fact, violated NEPA by decid ing to proceed with its timber sales program with out issuing a supplemental environmental impact statement. The BLM's timber sales "Seattle Audubon Society v. Evans. No. C89-160WD, United States District Court Western District of Washington at Seattle, May 23, 1991: 27. 56Seattle Audubon Society v. Evans. No.C89-160WD, United States District Court Western District of Washington at Seattle, May 23, 1991: 17-18, 35. S7"Forest Service Plans For Spotted Owl," Congressional Quarterly Weekly Review 50.10 (March 7, 1992): 535. S8"U.S. Judge Curtails Old-Growth Logging," The Vancouver Sun 21 February 1992: A14. 25 decisions were made on incomplete information and, thus, were uninformed dec is ions. 5 9 The Bureau of Land Management was, therefore, enjoined from harvesting timber on B L M lands until they conducted a supplemental environmental impact statement and came into compl iance with NEPA . 6 0 After the Forest Service submitted its spotted owl protection plan to the Seattle US District Court, on July 2, 1992, they once again found themselves back in court with an logging injunction in front of them. In SAS IV the court held that the Forest Service's protection plan for the spotted owl was based on an environmental impact statement that d id not comply with NEPA's requirements. The court ordered the USFS to prepare a new or supplemental environmental impact statement that compl ied with NEPA, and enjoined them from harvesting timber on Forest Service lands until that t ime. 6 1 The government, subsequently appealed the SAS IV decis ion to the Ninth Circuit Court of Appeals in a combined case that w i l l also review the decision in PAS III.62 Finally, the reader should note that on appeal to the Supreme Court in Robert-son, the court held on March 25 , 1992 (over a year and a half after the Circuit Court decision in SAS II) that Section 318 d id not violate the separation of powers doctrine; Section 318 compel led changes in law, not results under o ld law, by replacing the 59See Seattle Audubon Society v. Moselev. No. C92-479WD, United States District Court Western District of Washington at Seattle, July 2, 1992: 15. ^Andy Stahl, Sierra Club Legal Defense Fund lawyer, telephone interview, 27 August 1992. "Seattle Audubon Society v. Moselev. No. C92-479WD, United States District Court Western District of Washington at Seattle, July 2, 1992: 15-18. "Andy Stahl, telephone interview, 27 August 1992. 26 legal standards as they appl ied to A P N timber sales. 6 3 As Section 318 was on ly a one year law, the rul ing has little immediate practical effect. However, the rul ing legally permits Congress once again to attach riders to Interior Department ap-propriation bills to a l low federal agencies to get around the requirements of environmental statutes. 6 4 However, even if Congress opts to exempt A P N federal timber sales from judicial review through another appropriations rider-and this is not a certainty-they can do nothing to lift the current injunctions until the next fiscal year. Further, as we w i l l see below, environmentalists have had other fruitful strateg-ies to pursue. The Northern Spotted Owl and the Endangered Species Act Preservationists have also attempted to protect A P N o ld growth from logging through a strategy of forcing the federal government to protect spotted owl habitat under the Endangered Species Act. The ESA became law in 1973, and requires the federal government to protect species listed by the Department of Interior as endangered or threatened. The decision of whether or not to list a species is official ly the responsibility of the USDI but, because the USDI relies on its Fish and Wi ld l i fe Service to assess the relevant technical and scientific data, the decision is, H "F . Dale Robertson, Chief, United States Forest Service, et al, Petitioners v. Seattle Audubon Society et al," The United States Law Week 60 (March 24, 1992): 4276. ""Supreme Court Says Restrictions on Judicial Review Constitutional," Forest Watch 12.10 (May 1992): 9; Supreme Court Upholds Logging Provision." Congressional Quarterly Weekly Review 50.13 (March 28, 1992): 803. 27 in effect, made by the FWS. 6 5 When dec id ing whether or not to list a species the Fish and Wi ld l i fe Service must comply with the intent of Congress as expressed in the Endangered Species Act: decisions must be based solely on technical and sc ien-tific data. Congress amended the ESA in 1982 to ensure that FWS listing evaluations were based only on the biological risks the species faced, to the exclusion of all other factors.66 The Endangered Species Act does, however, have provisions for Congress or the Administration to convene a cabinet level committee to exempt a species from the protection of the ESA. This committee is off icial ly entitled the Endangered Species Committee, but is co l loquia l ly referred to as the Cod Squad due to its abi l i ty to decide whether or not a species w i l l receive the protection provided by the ESA and, consequently, whether or not the species w i l l continue to exist . 6 7 The Endangered Species Committee was born of a 1978 amendment to the Endangered Species Act resulting from the controversy concerning the Tel l ico Damn project in Tennesse and an endangered minnow known as the snail darter. 6 8 The Committee can exempt an otherwise qualif ied species from the protection of the ESA if an 6 5 M. Lynne Corn and Pamela Baldwin, "An Endangered Species Act Primer," Forest Watch 10.11 (June 1990): 16. 66Corn and Baldwin 16. 67Alyson Pytte, "Packwood's 'God Squad' Plan Fails to Make Funding Bill," Congressional Quarterly Weekly Review (October 27, 1990): 3593. ^Tom Kenworthy, "The God Squad: Deciding the Fate of the Spotted Owl," Vancouver Sun 26 October 1991: B1. 28 "irreconcilable conflict between a proposed federal action [such bui ld ing a dam or sell ing timber] ... and a species' survival ..." exists. 6 9 The FWS first proposed the northern spotted ow l as a threatened species in 1973, the very year the Congress passed the Endangered Species Act. However , due to uncertainties over the need for a listing, the petition was dropped (though, at the state level, the owl was classified as threatened in Oregon, and sensitive in Wash ing -ton). 7 0 Yet, the "uncertainties" soon started becoming more certain, and by 1976 Bureau of Land Management biologist Mayo Cal l was warning that if swift action was not taken to preserve the spotted o w l , it might end up on the endangered species l ist. 7 1 Five years later the FWS was describing the owl as "vulnerable" . 7 2 Finally, in October, 1986, GreenWor ld , an obscure Cambridge, Massachusetts group dedicated to preserving endangered species, petitioned the Fish and Wi ld l i f e Service to list the spotted owl as an endangered species under the ESA in both Washington's O l ymp i c Peninsula and the Oregon Coast Range. 7 3 Wh i l e their first petition was dismissed on a technicality, CreenWor ld ' s second petition, filed in January, was accepted in July, 1987, and the FWS subsequently announced its inten-tion to conduct a status review of spotted ow l population viability, and assembled ^Tobin 107-108; Pytte, "Packwood's" 3593. 70Philip L. Lee "History and Current Status of Spotted Owl (Strix Occidentalis) Habitat Management in the Pacific Northwest Region, USDA, Forest Service," Ecology and Management of the Spotted Owt in the Pacific Northwest eds. Ralph J . Gutierrez and Andrew B. Carey (Washington: USDA Forest Service General Technical Report PNW-185, 1985) 5. 7 ,Ted Cup, "Owl vs Man," lime June 25, 1990: 63. "Dietrich 79. "Dietrich 83. 29 a group of Fish and Wi ld l i fe Service biologists to analyze the pertinent scientific data in the case. 7 4 After studying the available scientific data on the o w l , Fish and Wi ld l i fe Service biologist and staff expert on population viabil ity Dr. Mark Shaffer conc luded that the most reasonable interpretation of current data and knowledge indicate continued old growth harvesting is likely to lead to the extinction of the subspecies in the foreseeable future which argues strongly for listing the subspecies as threatened or endangered at this time. 7 5 O n December 17, 1987 the FWS, despite Shaffer's conclusions, yielded to pressure from the Reagan Administration and declared that a listing of the spotted owl under the Endangered Species Act was not warranted. 7 6 Shortly after this announcement, environmental groups represented by Sierra C lub Legal Defense Fund challenged the Fish and Wi ld l i fe Service rul ing in a District Court in Seattle in the Northern Spotted Owl v. Hodel (NSO I).77 O n November 4, 1988 the court ruled that the FWS decision not to list the spotted owl as en -dangered was arbitrary and capricious and contrary to law. The court held that the agency's status review of the ow l population failed to provide any evidence that a listing under the Endangered Species Act was not warranted and, furthermore, ignored the expressed contrary op in ion of its own expert, as we l l as that of many other populat ion viabil ity experts. 7 8 In deference to Fish and Wi ld l i fe Service "Meyers 623. 75"Northern Spotted Owl v. Hodel," The Environmental Law Reporter 19 (March 1989): 20277. 76Dietrich 222. ""Northern Spotted Owl v. Hodel," The Environmental Law Reporter 19 (March 1989): 20276. 7 a" Northern Spotted Owl v. Hodel," The Environmental Law Reporter 19 (March 1989): 20278. 30 expertise and its role under the ESA, the court sent the matter back to the FWS ordering it to provide analysis justifying its decis ion. Instead, on June 22, 1990, the Fish and Wi ld l i fe Service listed the spotted ow l as a threatened species under the ESA. O n February 2, 1991, in Northern Spotted Owl v. Lujan (NSO II), a District Court in Seattle held that the Fish and Wi ld l i fe Service's decision not to designate critical habitat for the spotted ow l at the time of the owl 's listing under the ESA, and its failure to justify that decision, was an abuse of administrative discretion. The court ordered the FWS to list critical habitat for the owl by M a y 1, 1 9 9 1 . 7 9 The federal government now had the task of devising a long-term protection plan for the o w l , and the environmentalists had a tremendous weapon in their quiver to use in their fight to pressure the federal government to preserve A P N old growth. Repercussions on APN Old Growth O n October 5, 1989, prior to the spotted owl 's listing under the Endangered Species Act, but after the battle in the courts had begun to heat up, the Bureau of Land Management, Fish and Wi ld l i fe Service, Forest Service, and Parks Service es-tablished the Interagency Scientific Committee (ISC) with Jack Ward Thomas as chair. The ISC was charged with designing a conservation strategy for the spotted owl based solely on the science and biology of the issue. 8 0 As a result, the ISC issued the 79"Northern Spotted Owl v. Lujan," Environmental Law Review 21 (July 1991): 20915. 80Jack Ward Thomas, "A Conservation Strategy For the Spotted Owl," Forest Watch 11.1 (July 1990): 9. 31 Thomas Report on Apr i l 20, 1990, wh ich proposed to set aside 3.12 mi l l ion hectares of forest land in A P N for spotted owl habitat. Depending upon who was asked, initial job loss estimates associated with the possible implementation of the strategy ranged between 10 and 28 thousand. 8 1 Thus, the Thomas Report marks a psychological watershed in the debate over the future of A P N old growth. The perception became, from this point on , that one of two occurrences was going to happen: (1) The economy and job structure of A P N was going to be fundamentally and irretrievably altered or, (2) the nation's most fundamental environmental laws were go ing to be overridden and the spotted owl 's long term viabil ity placed in jeopardy. The perception became and remains, with the aid of simplistic and inflammatory headlines in popular magazines and journals, that the A P N cannot have both a timber economy and spotted ow ls . 8 2 With in days of the Interagency Scientific Committee report's release, Clayton Yeutter and Manual Lujan, Jr., the Secretaries and Agriculture and Interior respectively, announced the administration's intention to design a spotted ow l protection plan that wou ld save the ow l and conserve jobs . 8 3 O n September 2 1 , 1990, the Bush administration unveiled its plan for protecting the spotted o w l , ca l l ing for a twenty percent reduction in timber sales for a year, and leaving a long term solution to Congress. Three days later Senate Majority Leader George Mi tche l l , D-8 1 , ,Owl Calls." Forest Watch 10.11 (June 1990): 5. 82For example, a Time cover-story's title, issued a month after the release of the Thomas Report, read "Owl v. Man". See Gup 56-57. "Alyson Pytte, "Bush Hedges on Spotted Owl, Leaves Congress to Choose," Congressional Quarterly Weekly Review 48.26 (June 30, 1990): 2034. 32 Maine , dismissed the plan out of hand. 8 4 A t this point Bob Packwood attempted to attach a rider to the 1991 Interior Department and Related Agencies Appropr iat ion Bil l that wou ld convene the Endangered Species Committee, but failed in the face of stiff opposit ion in the Senate. 8 5 Meanwhi le , on Apr i l 29 , 1991, as a consequence of the US District Court order in N S O II, the Fish and Wi ld l i fe Service released a preliminary report to protect the spotted ow l that listed 4.70 mi l l ion hectares of critical habitat in the A P N inc luding only 1.21 hectares of private land, and not inc luding land already set aside in parks and wilderness areas. 8 6 Once the plan was before the District Court in Seattle, as Dietrich observes, industry, which had so bitterly condemned the Jack Ward Thomas committee proposal to set aside 7.7 million acres [3.12 million hectares] for the owl the year before, found itself in the odd position of defending [emphasis in original] the Thomas plan before Judge Dwyer. 8 7 Industry spokesman MarK Rey pointed out that this figure represented the equivalent amount of land occupied by Massachusetts, Vermont, and Connect icut combined, and further c la imed some 130 000 workers wou ld lose their jobs if the plan were implemented . 8 8 "Alyson Pytte, "Timber, Spotted Owl Interests Find Middle Ground Elusive," Congressional Quarterly Weekly Review 48.39 (Sept. 29, 1990): 3105. 85Pytte, "Packwood's" 3593. "Dietrich 259; Timothy Egan, "Expanded Judicial Role: Managing the Land," New York Times 1 May 1991: A10. 87Dietrich 259. 88Cited in Margaret Kriz, "Owls 1, Timber 0," National lournal (May 4, 1991): 1059. 33 Wi th the Ninth Circuit Court of Appeals deciding on September 18, 1990 that legislative amendments l imiting judicial review of federal timber management plans were unconstitutional, the court also increased the pressure on Congress to develop a legislative solution to the A P N old growth question. To that end, House Agriculture Committee Chair E. "K ika " de la Garza, D-Texas, and Agriculture's Subcommittee of Forests Chair Harold L. Volkmer, D-Mo., established a "blue r ibbon" advisory panel of scientists, inc luding Jack Ward Thomas, to identify o ld growth forest areas, prepare maps of these areas, and develop management options for the committee to consider. O n July 24, 1991 the panel released a list of 14 spotted ow l strategies a long with the potential benefits and consequences of each plan for both the spotted owl 's viabil ity, and for the economy of A P N . 8 9 O n September 30, 1991, Interior Secretary Lujan announced his decision to convene the Endangered Species Committee to consider exempting 44 B L M timber sales in Oregon that provide habitat for the spotted ow l from the restrictions of the ESA. 9 0 Lujan, early in the fo l lowing year, further announced his intention to pursue a spotted owl plan that wou ld skirt the requirements of the Endangered Species Act, though such a plan wou ld require a legislative exemption of some sort from Congress. 9 1 Lujan started in this direction on M a y 14, 1992, when he released the Administration's strategy for resolving the spotted ow l issue. This "preservation" plan "'Phillip A. Davis, "Ruling Gives Lawmakers a Push To Resolve Spotted Owl Issue," Congressional Quarterly Weekly Review dune 1, 1991): 1439. 90Kenworthy B1. 91"Job Fears Force Official to Fly Around the Law," The Vancouver Sun 21 February 1992: A14. 34 proposed an amendment to the ESA that wou ld a l low the federal government to merely "preserve" the owl rather than comply with the ESA's more demanding "re-covery" standard, and restricted logging on only 1.13 mi l l ion hectares of nonreserved federal A P N lands. 9 2 Ironically, on the very same day, Lujan also issued FWS's "recovery" plan for the spotted owl-the plan required under the Endangered Species Ac t-wh i ch recommends that the federal government protect 2.19 mi l l ion hectares of nonreserved federal A P N land for the spotted o w l . 9 3 A n d , again, also on M a y 1 4 , 1 9 9 2 , the Endangered Species Committee announced its decision to suspend the ESA and a l low logging to go forward on 13 of the 44 Bureau of Land Management timber sales up for exempt ion . 9 4 However, without legislative riders preventing judicial review of Forest Service and Bureau of Land Management timber management plans, the Endangered Species Committee decision is meaningless: US District Court injunctions are currently b lock ing logging activities on USFS and B L M lands in A P N until the two agencies devise spotted ow l protection plans that comply with their NEPA obl igat ions. 9 5 Wh i l e the committee may enable federal agencies to jettison the ESA-and clearly, in this instance, the committee was not convinced that this was an advisable course of action-it has no jurisdiction over other federal "United States, Department of Interior, Preservation Plan for the Northern Spotted Owl - Draft (Washington: Department of Interior, May 1992) 2, 40. "Philip Davis, "Critics Say Too Few Jobs, Owls Saved Under 'God Squad' Plan", Congressional Quarterly Weekly Report 50.20 (May 16, 1992): 1334; United States, Department of Interior, Summary of the Recovery Plan for the Northern Spotted Owl - Draft (Portland: U.S. Fish and Wildlife Service, May 1992) 2. 94Davis, Critics 1334. ^"Restrictions" 9; "U.S. Judge Curtails Old-Growth Logging," The Vancouver Sun 21 February 1992: A14. 35 environmental laws. So, until Congress passes another amendment l imit ing judic ia l review of federal timber sales for compl iance with national environmental statutes, and until the Endangered Species Committee is prepared to a l low some meaningful exemptions to the Endangered Species Act, the spotted owl and, consequently, vast amounts of the remaining o ld growth in the A P N , are preserved. Old Growth Protection in the American Pacific Northwest What we have witnessed in the A P N is a determined band of environmental lawyers combined with an aggressive District and Appeals Court judiciary to force the federal administration to comply with stringent, action-forcing national environmental statutes to the letter. So far, they have overcome the efforts of regional Members of Congress, federal agencies, and even the Supreme Court to a l low continued harvesting of A P N old growth in spite of federal environmental laws. The results, thus far, are impressive. 9 6 Sierra C lub Legal Defense Fund lawyer A n d y Stahl informs us that there are, functionally, 1.94 mi l l ion hectares of unreserved o ld growth protected in A P N due to court in junct ions. 9 7 To better understand the extent of o ld growth protection in A P N , we can compare this figure with the total amount of nonreserved federal o ld growth remaining in A P N . For example, according to the Thomas report, there are approximately 2.83 mi l l ion 9 6To view the following data in tabular form, see Table 3.1 on page 66. 9 7Andy Stahl, Sierra Club Legal Defense Fund, lawyer, telephone interview with George Hoberg, Professor of Political Science, University of British Columbia, August 1992. 36 hectares of o ld growth remaining in the region. Account ing for 0.22 mi l l ion hectares in national parks, and another 0.17 mi l l ion hectares on state and indian lands, there are otherwise 2.44 mi l l ion hectares of unreserved o ld growth in A P N . 9 8 In other words, 8 0 % of APN ' s remaining nonreserved o ld growth is protected from logging. So, to this point, preservationists have been very successful in pursuing the two legal strategies outl ined above and, consequently, have protected most of the remaining unreserved federal o ld growth in A P N . The result, at least for now, is that the spotted ow l is protected and, a long with it, vast tracts of its o ld growth habitat. W e w i l l now turn to a discussion of the old growth debate in British Co lumbia . '"Interagency Science Committee. A Conservation Strategy for the Northern Spotted Owl (Portland. Oregon: USDA Forest Service, 1990) 14-16, 20. 37 III. OLD GROWTH PRESERVATION IN BRITISH COLUMBIA In this chapter I w i l l review the recent history of the old growth preservation debate in British Co lumbia , and examine the amount of nonreserved o ld growth currently protected from harvesting in BC. I w i l l also compare o ld growth protection between BC and A P N . First, however, I w i l l survey the regulatory regime governing the politics of o ld growth forests in BC-the focus of the population's frustration. The Regulatory Regime Control over British Columbia 's o ld growth is primari ly under the jurisdiction of the provincial government. Section 92 Subsection 5 of the Constitution Act, 1867 gives the provinces jurisdiction over "The Management and Sale of the Publ ic Lands belonging to the Province and of the Timber and W o o d there on " , wh i le Section 92A, the 1982 constitutional amendment on natural resources, clarifies and reenforces the provincial government's control over forest resources." In BC, 91 % of the land base are Crown provincial lands, wh i l e 8 % are private lands, and 1 % -mostly parks, Indian lands and military lands-are federal lands . 1 0 0 O f necessity, then, a discussion of o ld growth preservation is a discussion of provincial land-use a l loca t ion . 1 0 1 However, unexpected judicial interpretations of the Environmental "For a comprehensive analysis of 92A's implications, see Robert D. Cairns, Marsha A. Chandler, and William D. Moull, "The Resource Amendment (Section 92A) and the Political Economy of Canadian Federalism," Oseoode Hall Law lournal 23.2 (1985) 266-273. 100British Columbia, Ministry of Forests, Towards an Old Growth Strategy: Workshop Summary (Victoria: Queen's Printer for British Columbia, 1990) 26. ""Further, Angela Von Sacken, Research Officer with the Ministry of Forest's Integrated Research Branch, tells me that the amount of old growth on private lands in BC is "next to nothing". See Angela Von Sacken, Ministry of Forests, telephone interview, 11 August 1992. 38 Assessment and Review Procedure (EARP) Guidel ines Order , combined with various Section 92 heads of power under the Constitution Act, 1867, have combined to provide an avenue for federal involvement in the BC old growth preservation debate. In this section I w i l l examine the institutions and laws governing the management of o ld growth in BC. I w i l l begin by examining the forest planning of the British Co lumb ia Ministry of Forests (MOF). I w i l l then move into a discussion of the Canadian approach to endangered species. Finally, I w i l l explore the Canadian approach to environmental assessment. The British Columbian Ministry of Forests Wi th approximately 8 5 % of the land base in BC subject to the Forest Act-the legislative basis for managing Crown land that is in Provincial Forest-the Ministry of Forests is, by far, the most important institution involved in the management of BC's old g row th . 1 0 2 The Minister of Forests is the political head of M O F , and its advocate in Cabinet. The bureaucratic structure under the Minister is, in theory, devoid of polit ical motivations, and exists solely to carry out the policies of the Minister and Cabinet. Under the Minister is a Deputy Minister (DM) who has usually 102See Thomas Gunton and Man Vertinsky, "Reforming the Decision Making Process for Forest Land Planning in British Columbia." Forest Resources Commission Background Papers, vol. 1 (Victoria: Forest Resources Commission, 1991) 6. The remaining 6% of BC's land base under provincial control are in protected categories such as provincial parks, recreation areas, and ecological reserves. See Jeromy Wilson, "Wilderness Politics in BC: The Business Dominated State and the Containment of Environmentalism," Policy Communities and Public Policy in Canada, eds. William D. Coleman and Grace Skogstad (Toronto: Copp Clark Pitman Ltd., 1990) 142. 39 been, at least in recent years, a career bureaucrat. 1 0 3 Under the D M the Ministry of Forests is arranged into three divisions-the Forest Service (BCFS), Operations, and Management Services-each with an Assistant Deputy Minister (ADM) at its head. The Forestry Div is ion is responsible for ensuring that all C rown forest lands are managed according to the objectives of the Forest Act, and the A D M for the British Co lumbia Forest Service is also the province's Chief Forester. The province is div ided into six forest regions and 43 forest districts with each region directed by a Regional Manager, and each district directed by a Forest District Manager. The two main pieces of legislation governing forest management in BC are the Ministry of Forests Act and the Forest A c t . 1 0 4 The Ministry of Forests Act sets out the functions of the Ministry of Forests as fol lows: 4. The purposes and functions of the ministry are, under the direction of the minister, to (a) encourage maximum productivity of the forest and range resources in the Province; (b) manage, protect and conserve the forest and range resources of the Crown, having regard to the immediate and long term economic and social benefits they may confer on the Province; (c) plan the use of the forest and range resources of the Crown, so that the production of timber and forage, the harvesting of timber, the grazing of livestock and the realization of fisheries, wildlife, water, outdoor recreation and other natural resource values are coordinated and integrated, in consultation and cooperation with other ministries and agencies of the Crown and with the private sector; (d) encourage a vigorous, efficient and world competitive processing industry in the Province; and 1 0 3ln the current and immediately previous administrations, Philip Halkett and Bob Plecas, two of the longest serving and most diversified DMs in the entire provincial civil service, have alternated as Deputy Minister of Forests. For an overview of MOF's structure, see British Columbia, Ministry of Forests, Annual Report 1990-91 (Victoria: Ministry of Forests, 1991) 2-6. ,04Gunton and Vertinsky 6. 4 0 (e) assert the financial interest of the Crown in its forest and range resources in a systematic and equitable manner. 1 0 5 So, wh i l e 4(c) dictates that all natural resource values are "coordinated and integrated", language indicating the Ministry must protect nontimber values is absent, and 4 (a)(d) and (e) make it clear that M O F was intended to place "timber produc-t ion" above other forest values, inc luding o ld growth preservation. The Canadian Approach to Endangered Species For our purposes, there are two separate institutional features of endangered species protection in Canada. The first, and least important, is the provincial Ministry of Environment's (MOE's) administration of the Wildlife Act. The second, and more important, is the national Committee on the Status of Endangered Wi ld l i fe in Canada (COSEWIC). I w i l l now evaluate both institutions. The Wildlife Act In Canada, the constitution provides that, with the exception of rules governing the importing and exporting of threatened or endangered species-related goods, the provincial government has primary jurisdiction over wi ld l i fe with in its boarders . 1 0 6 In BC, the Wildlife Act states: 5. (1) Where he requires land for habitat for a species of wildlife designated as an endangered species or threatened species, the minister may, 105British Columbia Ministry of Forests Act ch. 272, Sec. 4, 1979 R.S.B.C. 106Section 91, Subsection 2 of the Constitution Act, 1867 gives the federal government jurisdiction over "Ctlhe Regulation of Trade and Commerce," and, consequently, jurisdiction over the import and export of endangered species and endangered species products, while Section 92, Subsection 5 gives the provinces jurisdiction over "Ct]he Management and Sale of the Public Lands belonging to the Province . . . " and, as a result, jurisdiction over domestic endangered species. 41 by regulation, designate land in a wildlife management area as critical wildlife area. (2) The minister may, by regulation, designate land in a wildlife management area as a wildlife sanctuary [emphasis added].' 0 7 The Wildlife Act continues: 6. (1) Where he considers that a species of wildlife is threatened with imminent extinction throughout all or a significant portion of its range in the Province owing to the action of man, the Lieutenant Governor in Council may, by regulation, designate a species as an endangered species. (2) Where he considers that a species of wildlife is likely to become endangered in the Province if the factors affecting its vulnerability are not reversed, the Lieutenant Governor in Council may, by regulation, designate the species as a threatened species [emphasis added]. 1 0 8 The provincial Cabinet, then, is responsible for listing a species as threatened or endangered within the province, and the minister is responsible for protecting the listed spec ies . 1 0 9 The language of the Wildlife Act, however, is very vague and discretionary-there is neither the strictly worded criteria found in the American Endangered Species Act (ESA) to guide the Cabinet when determining whether or not to list a species, nor a legally b inding course of act ion, also found in the ESA, that the Minister must take upon a listing. Instead, the Cabinet may designate a species as endangered or threatened, and the minister may designate a wi ld l i fe management area as a wi ldl i fe sanctuary. The Wildlife Act places the listing and protection of endangered and 107British Columbia, Wildlife Act, ch. 57, Sec. 5, 1982, B.C. Stat. 108British Columbia, Wildlife Act, ch. 57, Sec. 6, 1982 B.C. Stat. 109Prior to the most recent provincial election, decisions of this nature were, in fact, made by the Environment and Land Use Committee of Cabinet. See British Columbia, The Environment and Land Use Act, ch. 110, 1979 R.S.B.C., cited in Michael I. Jeffery, Environmental Approvals in Canada (Toronto and Vancouver: Butterworths, 1989) 1.24. Since the recent election of the NDP government, the Cabinet Committee on Sustainable Development, co-chaired by the Minister of Environment and the Minister of Forests, has taken over this function. 42 threatened species under the discretionary control of elected officials and, in so doing, virtually ensures that a species requiring protection wi l l receive it on ly if polit ical resistance is minimal , as in the case of the Vancouver Island marmot . 1 1 0 The Committee On the Status of Endangered Wildlife In Canada COSEWIC describes itself as "[a] committee of representatives from federal, provincial and private agencies which assigns national status to species at risk in Canada . " 1 1 1 As such, it is a "pseudo" governmental agency. COSEWIC, similar to the Amer ican Fish and Wi ld l i fe Service (FWS) under the Endangered Species Act, lists species as "endangered" or "threatened" according to scientific evidence, and therefore represents, nominal ly at least, a Canadian equivalent to the American FWS. 1 1 2 A n y person can nominate a species for a COSEWIC listing proceeding. The request is initially sent to a COSEWIC subcommittee comprised of experts on the species type (birds, mammals, plants, for example). If the subcommittee determines that the request is not frivolous, the chair w i l l proceed to commission an initial 1 1 0ln August, 1982, the Vancouver Island Marmot was designated, under the BC Wildlife Act, as an endangered species. See Hajo versteeg, "The Protection of Endangered Species: A Canadian Perspective," Ecology Law Quarterly 11.3 (1984): 288. However, Paul George, a director with the Western Canada Wilderness Committee, argues the fact that the animal's habitat had l i t t le forest potential to MacHillan Bloedel, the Tree Farm License holder in the habitat area, eased the listing process for the marmot. See Paul George, Western Canada Wilderness Committee Director, personal interview, 22 April 1991. '"Michael S. Rodway and the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Report on the Status of the Marbled Murrelet Brochvramphus Marmoratus in Canada (Canada: COSEWIC, April 1990) cover letter. m COSEWIC defines its listing categories in a fashion similar to the FWS as well: a "threatened" species is one that is likely to become endangered if the factors affecting its vulnerability do not become reversed, and "endangered" species is one that faces imminent extinction throughout all or a significant portion of its range. See Rodway and COSEWIC cover letter. 43 scientific report by an acknowledged expert on the species in quest ion. 1 1 3 The initial report, upon complet ion, is distributed to the subcommittee members w h o scrutinize the report and request clarifications of the author. Once the subcommittee approves a final report, the report is distributed to the committee members at large who then, at the next annual general meeting, discuss the report and vote on a listing c lassi f icat ion. 1 1 4 Neither COSEWIC 's "... status reports nor classification system have any legal fo rce . " 1 1 5 Wh i l e COSEWIC plays a valuable guidance and educative role, it has no statutory, regulatory, or coercive powers and, therefore, cannot force government authorities to act on its recommendat ions. 1 1 6 Nevertheless, the credibi l i ty of the scientists w h o sit on COSEW IC can translate into a powerful weapon for citizens concerned with the viabi l i ty of a particular species if COSEWIC assigns that species "threatened" or "endangered" status. 1 1 7 The Canadian Approach to Environmental Assessment In June of 1972 and December of 1973, the federal Cabinet issued directives creating the Federal Environmental Assessment and Review Off ice and out l ining its "Versteeg 280. 114Versteeg 280. 115Versteeg 280. 116Versteeg 280. 117For example, COSEWIC's listing of the marbled murrelet as a threatened species in BC prompted the Canadian Wildlife Service to produce a draft recovery plan for the murrelet. See Gary W. Kaiser et al, "National Recovery Plan for the Marbled Murrelet," unpublished report for the Canadian Wildlife Service (Spring 1991) 1-2. 44 Environmental Assessment and Review Process (EARP). 1 1 8 Later, in 1984, Cabinet codif ied EARP into regulations through an order-in-council under the Government Organization Act. At this point, EARP became the Environmental Assessment and Review Process Guidel ines Orde r . 1 1 9 EARP states: 2. In these Guideline, * * * "proposal" includes any initiative, undertaking or activity for which the Government of Canada has a decision making responsibility. * * * 3. The Process shall be a self assessment process under which the initiating department shall, as early in the planning process a possible and before irrevocable decisions are taken, ensure that the environmental implications of all proposals for which it is the decision making authority are fully considered and where the implications are significant, refer the proposal to the Minister [of Environment] for public review by a Panel. * * * 6. These Guidelines shall apply to any proposal (a) that is to be undertaken directly by an initiating department; (b) that may have an environmental effect on an area of federal responsibility [emphasis added]. 1 2 0 EARP describes a process where federal departments must "ensure that the environmental implications of all proposals" are assessed before final decisions are made. A proposal can be either a government agency project, or a project for wh i ch the government agency otherwise has decision-making authority. 1 2 1 n8Jeffery 1.5; Ted Schrecker, "The Canadian Environmental Assessment Act: Tremulous Step Forward, or Retreat into Smoke and Mirrors?" Canadian Environmental Law Reports 5 (1990): 192-193. ""Environmental Assessment and Review Process Guidelines Order. SOR/84-467 (June 22,1984). 120SOR/84-467. ,21See Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment). [1989] W.W.R. 538. 45 If a project w i l l have environmental effects, the initiating department conducts an initial assessment and makes one of three determinations: (1) the project will have no adverse environmental effects and may therefore be exempt from further consideration and may proceed; (2) the project will likely have significant adverse environ mental effects, and accordingly must be referred to the Ministry of the Environment for public review by a FEARO panel; or (3) the project must undergo further study prior to a decision being made on the necessity for a public review or exemption therefrom. 1 2 2 If the project w i l l l ikely have significant adverse environmental impacts, the Guidel ines Order dictates that "the proposal shall be referred to the Minister [of Environment] for publ ic review by a panel [emphasis added] . " 1 2 3 Once the panel report is completed, ultimate decision-making authority on how to proceed belongs to the initiating ministry. The panel report, however, is made publ ic regardless of how the initiating ministry decides to p roceed . 1 2 4 The language of Guidel ines Order is clearly stronger than that of the BC Wildlife Act. Specifically, EARP provides for certain act ion; there is a procedure that shall be fo l lowed instead of one that may be fo l lowed. However , until a series of landmark federal court cases in recent years, government officials believed the EARP Guidel ines Order d id not have legal force; they were, after a l l , merely gu ide l ines . 1 2 5 122Jeffery 1.5. 123SOR/84-467. 124Jeffery 1.5 125George Hoberg, "ComparingCanadian Performance in Environmental Policy fdraftl." Canadian Environmental Policy: Ecosystems. Politics and Process [forthcoming], ed. Robert Boardman (1991): 14. 46 The Old Growth Debate in British Columbia In this section I w i l l examine the recent history of the o ld growth forest debate in BC, and wi l l do so from two perspectives. First, I w i l l survey environmentalists' use of the courts to force federal agencies and the provincial Ministry of Forests to comply with the statutory requirements of their planning processes. Second, I w i l l discuss the multipartite approach towards o ld growth preservation in British Co lumbia . The Legalistic Approach As mentioned, both the federal and provincial governments have found themselves in court over the old growth preservation issue. First, I w i l l discuss the preservationists' efforts to enforce the EARP Guidel ines Order in the federal courts and, second, I w i l l examine their attempts to use Forest Act in BC's provincial courts to hinder industry's o ld growth logging operations. The Federal Courts The transformation of the EARP Guidel ines Order from mere guidelines to a law enforceable in federal court began with a Saskatchewan crown corporation's construction of the Rafferty A lameda dam project on the Souris River Bas in . 1 2 6 In Canadian Wildlife Federation Inc. et al. v. Canada (Min. of the Environment) (CWF I), the Federal Trial Court held that the EARP Guidel ines Order "... is not a mere 126Marie-Ann Bowden, "Damning the Opposition; EARP in the Federal Court," Canadian Environmental Law Reports 4 (1990): 227. 47 description of a pol icy or a program, but is an enactment or regulation ...". 1 2 7 Because the federal Department of Environment (DOE) is responsible for issuing licenses under the International River Improvements Act, it must comply with the Guidel ines Order. O n June 2 2 , 1 9 8 9 , the Federal Court of Appeals upheld the lower court's decis ion, stating that the term "guidel ines" is, in itself, neutral and that there is nothing in the Guidel ines Order to otherwise indicate that they are not mandatory and, therefore, the Department of Environment must comply with EARP. In December, 1989, the case wou ld return to the Trial Court where the court w o u l d rule that DOE 's initial environmental evaluation (IEE) had found "significant" environmental impacts, and that D O E should not have reissued the construction license without referring the project to a panel review. The court ordered the new license quashed if the Department of Environment had not appointed an Environmen-tal Assessment Panel within a month . 1 2 8 In Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Oceans and Fisheries (Oldman), the Federal Court of Appeals, in overturning a Trial Court decis ion, reenforced and expanded its decision in C W S I. In a case concerning the province of Alberta's construction of a dam on the O l d M a n River, the Federal Court of Appeals ruled in 1989 that the Department of Transport had an obligation to initiate the EARP Guidel ines Order as the guidelines were intended to apply to any project that came under the authority of the federal government. The court further ruled, however, that although D F O did not have 1 2 7Can. Wildlife Fed. Inc. v. Can. (Min. of the Environment) [1989] 4 W.W.R. 527. 1 2 aCdn. Wildlife Federation inc. v. Canada (Min. of the Environment) [1989] 4 C.E.L.R. 201-202. 48 direct authority over the project, the construction of the dam wou ld impact on the federal jurisdiction of fisheries and, therefore, required the Department of Fisheries and Oceans to initiate an EARP rev iew. 1 2 9 Encouraged by the possibilities of the language in the EARP Guidel ines Order , environmentalists moved the marbled murrelet debate in BC into the federal courts. The Committee O n the Status of Endangered Wi ld l i f e In Canada listed the marbled murrelet, a small coastal seabird that nests in the o ld growth forests of coastal BC, as a threatened species in Apr i l , 1 9 9 0 . 1 3 0 In Western Canada Wilderness Committee v. Canada (Min. of the Environment), the Western Canada Wi lderness Committee (WCWC) , represented by the Sierra Legal Defense C lub , argued that logging the old growth forest in the Upper Carmanah and Walbran Valleys, thought to provide nesting habitat for the marbled murrelet, constituted a proposal w i th in an area of federal jur isd ic t ion. 1 3 1 The Migratory Birds Convention Act (MBCA) states: 4. (1) The Governor in Council may make such regulations as are deemed expedient to protect to migratory game birds ... that inhabit Canada during the whole or any part of the year. (2) Subject to the provisions of the Convention, the regulations made under subsection (1) may provide (a) the periods in each year or the number of years during which any migratory game birds, migratory insectivorous birds or migratory nongame birds shall not be killed, captured, injured, taken, molested or sold, or their nests or eggs injured, destroyed, taken, or molested [emphasis added]. 1 3 2 129Friends of Oldman River Soc. v. Can. (Min. of Tpt). [1989] 5 C.E.L.R.(N.S.) 2. ,30Rodway and Cosewic cover letter. 131See Western Canada Wilderness Committee v. Minister of Environment and Her Majesty in Right of British Columbia. Action no. T-2913-90, Federal Trial Court, December 21, 1990. 132Canada, Migratory Birds Convention Act, ch. M-12, sched. 1-2, Can. R.S. 49 If o ld growth forest in the Upper Carmanah and Walbran Valleys provides nesting habitat for the marbled murrelet, logging the valleys wou ld necessarily destroy murrelet nests. This was an act, the Western Canada Wilderness Committee argued, requiring approval by the federal Department of Environment. The Federal Trial Court dismissed the application and, as of yet, has not released a written decision out l in ing the reasons for dismissal. Nevertheless, W C W C said that it w i l l almost certainly appeal the court's decision upon receiving the written judgement . 1 3 3 The environmentalists hope that if they can legally establish that the logging of the Upper Carmanah and Walbran Valleys, under the M B C A , constitutes a proposal that comes under federal jur isdict ion, the federal government w i l l be forced to conduct an initial environmental evaluation. A n d , as mentioned above, EARP states that if the environmental implications of a proposal are significant, the proposal must be referred to the Minister of Environment for publ ic review by panel. The Western Canada Wilderness Committee is confident that because the murrelet is listed as a threatened species by COSEWIC , an IEE wou ld almost certainly force the Minister to put the proposal up for publ ic review by the panel. So far, however, the government has not preserved any old-growth specif ical ly as murrelet habitat. Further, a recent Supreme Court rul ing in O ldman may have destroyed this strategy for o ld growth preservationists. O n January 22 , 1992, the Supreme Court, though maintaining that the O ldman River dam project d id require an EARP review, also held that the Department of Fisheries and Oceans was not an 133Paul George, personal interview, 22 April 1991. 50 initiating department. For an agency to qualify as an initiating department, the court ruled, it must have an affirmative regulatory duty pursuant to an Act of parl iament relating to the proposal; the EARP Guidel ines Order is not engaged every t ime a project may have an environmental effect on an area of federal ju r i sd ic t ion . 1 3 4 Because the Migratory Birds Convention Act does not empower the federal Department of Environment to license logging operations, the Supreme Court ru l ing may effectively render the marbled murrelet and the M B C A , at least in the courts, a pointless strategy for W C W C to pursue as an avenue of o ld growth preservat ion. 1 3 5 The Provincial Courts Preservationists have, in recent years, also been active in the provincial courts in an effort to use the Forest Act to s low the logging of o ld growth in BC. In Western Canada Wilderness Committee et al v. the Attorney General for British Columbia et a/.(WCWC I), the Western Canada Wilderness Committee attempted to halt o ld growth logging in the Nahmint Val ley on MacM i l l an Bloedel's (MB's) Tree Farm Licence (TFL) 44 , arguing that the Chief Forester violated the Forest Act by extending MB 's management and work ing plan (MWP) for the Tree Farm Licence past its expiration date wh i l e MacMi l l an Bloedel completed a new M W P . Accord ing 134Friends of Oldman River Soc. v. Canada (Min. of Tpt) [1992] 7 C.E.L.R.(N.S.) 3. , 3 S A lawyer for the intervenors in the case informed me that the Supreme Court Oldman decision did effectively negate the possibilities for appeal by the Western Canada Wilderness Committee in the murrelet case. The lawyer further informed me that the Oldman Supreme Court decision may have eased the pressure WCWC was placing on the court to release a written decision and that this, in turn, may partly account for continued delay in the release of the written decision in the murrelet case (telephone interview, August 28, 1992). Gary Kaiser, Canadian Wildlife Service biologist and principal witness in the murrelet case expressed similar views. See Gary Kaiser, personal interview, 7 August 1992. 51 to Western Canada Wilderness Committee, the Chief Forester further violated the Forest Act by approving preharvest silviculture plans (PHSPs), and by issuing cutting permits and a l lowing logging road construction in absence of a new Management and Work ing Plan. The suit, if successful, wou ld effectively shut down logging operations on TFL 44 until the Chief Forester approved a new Management and Work ing P l an . 1 3 6 O n M a y 2 1 , 1991, the Supreme Court of British Co lumbia held that the Chief Forester is not " locked into" the four corners of any document, inc lud ing a Management and Work ing Plan. So long as his decisions reflect considerations of all the varied disciplines the Forest Act requires him to consider, he has room to move in the direction he perceives is in the best interest of the forests, inc luding the direction of a Management and Work ing Plan extension. In an almost conci l iatory gesture, the court also ruled that MacM i l l an Bloedel cou ld not bui ld roads between and beyond approved cut blacks without a preharvest silviculture plan for the area in wh i ch the company was bui ld ing the road, and enjoined them from doing s o . 1 3 7 Soon, however, even this conci l iatory gesture wou ld be taken away from the preser-vat ionists. 1 3 8 136Western Canada Wilderness Committee et al v. the Attorney General for British Columbia et al., Action no. A911359, Supreme Court of British Columbia, May 24 1991, 11. 137Western Canada Wilderness Committee et al v. the Attorney General for British Columbia et ai, Action no. A911359, Supreme Court of British Columbia, May 24, 1991, 6-17. 138Stewart A. G. Elgie, "Injunctions, Ancient Forests and Irreparable Harm: A Comment on Western Canada Wilderness Committee v. A.G. British Columbia," University of British Columbia Law Review 25.2 (1991): 388. 52 The basis of the court's decision to block various road-building activities came down to a question of when a company has "the right" to harvest timber. MacM i l l an Bloedel had begun to cut roads within its Cutting Permit, but between and beyond approved cut-blocks in anticipation of M O F approving further cut blocks in the future. M B had not appl ied for a road permit for these roads, and argued that their Cutting Permit, wh ich outl ined the company's rights-of-way beyond the cut-blocks approved in the existing PHSP, gave them the right to bui ld roads outside approved cut-blocks, but within the Cutting Permit. Section 129.1 of the Forest Act, entitled "Si lviculture", states: (1) The requirements of this part and of the regulations respecting basic silviculture apply notwithstanding ... a cutting permit,... (2) Nothing in this Part applies in respect of a free use permit, a licence to cut, [or] a road permit. 1 3 9 Further, Section 91(1) of the Forest Act states: Where a person who has a right to harvest timber does not have access to the timber over an existing road ... the regional or district manager shall... grant a road permit to the person to provide access to the timber [emphasis added]. 1 4 0 The court held that the legislation took precedence over the Cutt ing Permit, and because MacM i l l an Bloedel had not appl ied for a road permit under 91(1) for bui ld logging roads between and beyond cut-blocks approved under the preharvest s i lv icu l -ture plan, they were in violat ion of section 129.1 of the Forest Act by bui ld ing roads to cut-blocks for wh ich they did not yet have an approved PHSP. 1 4 1 ""British Columbia, Forests Act, ch. 140, Sec. 129, 1979 R.S.B.C. "•"British Columbia, Forest Act, ch. 140, Sec. 91(1), 1979 R.S.B.C. '""Western Canada Wilderness Committee et al v. The Attorney General for British Columbia et âL Action no. A911359, Supreme Court of British Columbia, May 24, 1991. 17. 53 As a consequence of the ruling, M B appl ied for a road permit for a similar situation in another Tree Farm Licence that encompassed the prized o ld growth of the Tsikita Val ley. As a consequence the Western Canada Wilderness Committee, once again, returned to the courts arguing that the District Manager cannot issue a road permit until the company has the "right to harvest" timber wh i ch , in turn, is not granted until a preharvest silviculture plan is fi led under the Forest Act. The Supreme Court of British Co lumbia held in Western Canada Wilderness Committee v. The Attorney General for British Columbia et al ( W C W C II), that the "right to harvest" timber, according to Section 28(1) of the Forest Act, is conferred upon a company at the time the Tree Farm Licence is issued and, consequently, subject to the Forest Act, the District Manager can issue a road permit before a PHSP is approved . 1 4 2 W C W C has since appealled the rul ing. However , the appeals court dismissed its application for an injunction preventing MacM i l l an Bloedel from complet ing their road construction pending the appea l . 1 4 3 So, in the absence of some greater convict ion under the Forest Act, as may have been the case if in W C W C I the court had held that the Chief Forester was not entitled to extend an Management and Work ing Plan, we can conclude that preser-vationists have yet to make effective use of the provincial statutes governing the management of o ld growth forests in the courts. So far, preservationists have not '•"Western Canada Wilderness Committee v. The Attorney General for British Columbia et al. Action no. A912174, Supreme Court of British Columbia, June 24, 1991, 4-5. U3Western Canada Wilderness Committee v. the Attorney General for British Columbia et al. Action no. CA014203, British Columbia Court of Appeals, July 24, 1991. 8. 54 found legalism-either federally or provincial ly-an effective method of o ld growth preservation. The Multipartite Approach The provincial government has, in recent years, removed some of BC's remaining ancient forests-however temporari ly-from the working forest. These removals have resulted from multipartite bargaining processes that have, in recent years, dominated the provincial government's approach towards achieving an o ld growth pol icy. Multipartite bargaining finds its genesis in the "Niagra Process" developed by the Niagra Institute in 1984. The Niagra process or, otherwise, "multi-stakeholder consultations" were defined as: ... an ongoing dialogue among affected stakeholders, including government, aimed at obtaining all the relevant information, evaluating the available options and their related consequences, and providing an objectively balanced perspective to each stakeholder's decision making. A prime objective is to obtain consensus at each stage of the process. 1 4 4 Decis ion making, then, is based not upon a majoritarian decision making rule, but a consensus decision making rule; a decision is not made until all parties to the bargaining have something they can support . 1 4 5 BC has been fertile ground for 144Niagra Institute, "The Environment, Jobs, and the Economy-Buildinga Partnership," final project report (August 1985). Cited in George Hoberg, "Environmental Policy: Alternative Styles," Governing Canada: State Institutions and Public Policy ed. Michael Atkinson (Toronto: HBJ-Holt, 1993): 11. U 5Hoberg, Alternatives 16. 55 multipartite bargaining process. I w i l l focus upon two: The O l d Growth Strategy Project (OGSP), and the Commission on Resources and Environment (CORE) . 1 4 6 The Old Growth Strategy Project The O l d Growth Strategy Project was a product of a Ministry of Forests sponsored workshop in November, 1989, and was intended to formulate a strategy for deal ing with o ld growth issues. 1 4 7 In August, 1990, the provincial government deferred logging on 340 000 hectares of o ld growth forest until the August, 1992, when cabinet was to make decisions on the O l d Growth Strategy Project's recommendat ions. 1 4 8 The OGSP ' s description of the process leading up to Towards an O l d Growth Strategy. Publ ic Review Draft of January, 1992 was as fo l -lows: The Old Growth Strategy was prepared by a group of participants represent-ing the views of citizen and environmental groups, forest industry associations, organized labour, researchers, provincial and federal resource agency staff, and individual professionals. The 18-month process of creating the strategy was largely one of consensus, and required many compromises in language to achieve a fair balance of viewpoints. 1 4 9 This represents a classical description of the multipartite bargaining process. 146The Forest Resources Commission, the British Columbia Roundtable on the Environment and Economy, and other multipartite bargaining processes have not, even temporarily, removed any old growth from the working forest and, therefore, will not be examined in this work. H7British Columbia, Old Growth Strategy Project, Towards an Old Growth Strategy: Workshop Summary (Victoria: Old Growth Strategy Project, 1989) i. 1 4 8Andy MacKinnon, Ministry of Forests, Forest Ecology Research Manager and Old Growth Strategy Manager, telephone interview, 31 July 1992; British Columbia, Ministry of Forests, "Final Decisions Made On Timber Harvesting Interim Deferrals for Old Growth Forests," Newsrelease 10 May 1991: 1. British Columbia, Review i. 56 Members of the O l d Growth Strategy Project then toured the province between February 11 and March 17, 1992, col lect ing the comments of the publ i c at large on the draft. Fo l lowing the publ ic participation component of the O l d Growth Strategy Project, the members reviewed and evaluated the public 's input, and have subsequently made recommendations to the Cabinet Committee on Sustainable Development, w h o are currently determining what w i l l become of the deferred o ld g rowth . 1 5 0 The Protected Areas Strategy, in the meantime, has brought the O l d Growth Strategy Project under its umbrel la. The move's implications are not yet known. The possibility exists, however, that the logging deferrals associated wi th the O l d Growth Strategy Project may be placed under the protection of the Protected Areas Strategy. If so, the preservationist w i l l have succeeded in protecting the o ld growth under the jurisdiction of the O l d Growth Strategy Project into the near future. Commission on Resources and Environment In January 1992 the N D P government introduced CORE and appointed former Ombudsman Stephen O w e n as Commissioner. The Commiss ion on Resources and Environment has a mandate to develop a comprehensive land-use strategy for British Co lumb ia , and has deferred logging around five contentious o ld growth areas on Vancouver Island. CORE w i l l also work in conjunction with the Protected Areas 1 5 0Andy Mackinnon, telephone interview, 31 July 1992; Janet Fontaine, Policy Analyst with the Protected Areas Strategy, telephone interview, 10 August 1992. 57 Strategy announced in M a y of 1990 . 1 5 1 The objective of the Protected Areas Strategy is to increase the amount of provincial land base protected in Provincial Parks and Wilderness areas to 12 percent. W i th the introduction of the Protected Areas Strategy, the government also announced a number of study areas conta in ing 400 000 hectares of coastal o ld growth and another 600 000 hectares of interior o ld growth on which-accord ing to preliminary studies by MOF- logg ing has been deferred until decisions on the future of the study areas has been made . 1 5 2 So the Protected Areas Strategy, essentially, protects the o ld growth that gives the Commission on Resources and Environment t ime to work. Stephen O w e n notes that the Ministry of Forests cannot overcome the pub l i c perception of having a bias towards industrial use of provincial forests, the perception that ministry and industrial officials design land use pol icy in the "back r o o m " . 1 5 3 O w e n argues that in order to solve our land-use disputes the government must over come this publ ic impression. Accord ing to a press release "backgrounder", the Commiss ion on Resources and Environment is committed to "... f inding the solutions to these [land use] problems through a consensus-building process that involves all key interests inc luding forest workers, forest communit ies and companies, Aboriginal "'British Columbia, Ministry of Environment Lands and Parks, and Ministry of Forests, News Release 6 May 1990. '"The PAS deferrals include, with the exception of the Nahmint Valley, the CORE deferrals on Vancouver Island, and do not include, with the exception of Kitilop Valley and Hunakwa Lake, the Old Growth Strategy deferrals. See Andy MacKinnon, telephone interview, 31 July 1992. See also Terje Void, Senior Wilderness Forester, Recreation Branch of the Ministry of Forests, telephone interview, 31 July 1992. '"Stephen Owen, British Columbia Commission on Resources and Environment, Commissioner, telephone interview, 28 January 1992. 58 peoples and environmental ists." 1 5 4 O f course, the emphasis upon "interests" or, rather "stakeholders", and "consensus-building" reflects a multipartite decision-making approach. Owen 's personal phi losophy towards publ ic pol icy and "administrative fairness" in the domain of natural resources further reenforces the notion that C O R E is a multipartite bargaining process. 1 5 5 That Owen 's phi losophy fits the multistakerholder approach so wel l is l ikely the reason why he was appointed Commissioner of CORE . Though CORE is still in its formative stages, and we cannot be certain how it w i l l ultimately impact upon the BC old growth debate, the government does intend the Commiss ion to endeavour to resolve the o ld growth issue in BC through a process of multipartite bargaining, and the Commissioner is phi losophical ly committed to this type of dispute resolution process. In the meantime, for now at least, logging has been deferred on some 1.34 bi l l ion hectares of old growth in BC through the O l d Growth Strategy Project and the Protected Areas Strategy, both now under the umbrel la of the Commiss ion on Resources and Environment. Old Growth Protection in British Columbia In this section I w i l l , first, examine the extent of nonreserved o ld growth protection that currently exists in British Co lumbia and, second, compare the 1S4British Columbia, Premier's Office, "Backgrounder: A New Emphasis on Regional Planning," News Release 21 January 1992: 1. '5SSee, for example, British Columbia, Office of the Ombudsman, 1988 Annual Report to the Legislative Assembly (Victoria: Queens Printer, 1988) 30-32. 59 amounts of o ld growth protected in BC and A P N to illustrate that there is, in fact, a divergence between the two jurisdictions in the amount of o ld growth protected. British Columbia As mentioned, the O l d Growth Strategy Project deferred logging on 0.34 mi l l ion hectares of otherwise unreserved o ld growth and, recently, the Protected Areas Strategy, in conjunction with the Commiss ion on Resources and the Environ-ment, has deferred logging on one mi l l ion hectares of o ld g rowth . 1 5 6 However , the 0.32 mi l l ion hectare Kit i lop Watershed is inc luded in both deferral strategies. 1 5 7 Once double counting is accounted for, there are approximately 1.02 mi l l ion hectares of o ld growth protected in BC. Identifying an appropriate total BC old growth figure for comparison with the A P N figure is difficult. Accord ing to Ministry of Forest data, there are 15.20 mi l l ion hectares of mature timber in British Co lumbia . Unfortunately, this does not describe what I, in this essay, refer to as "o ld growth" . As the O l d Growth Strategy Project has noted, "[t]he age and structure of o ld growth varies significantly by forest type and from one biogeocl imatic zone to another . " 1 5 8 What I refer to as old growth are 156The Old Growth Strategy Project figures are from: British Columbia, "Final Decisions" 1; and Andy Mackinnon, telephone interview 31, July 1992. The Protected Areas Strategy figures are based on a study MOF is conducting with T.M. Thompson and Associates towards a report on the amount of old growth contained in the 12% of the provincial land base protected in the Protected Areas Strategy study areas. Terje Void, Senior Wilderness Biologist with MOF informs me that preliminary estimates indicate that, conservatively, some 1 million hectares of old growth are protected. See Terje Void, telephone interview, 31 July 1992. 1 5 7Andy Mackinnon, telephone interview, 31 July 1992. '"British Columbia, Ministry of Forests, Towards an Old Growth Strategy: Public Review Draft (Victoria: Ministry of Forests, 1992) 10. 60 forests that are several hundred years o ld with large trees, multiple canopy layers, large dead fallen snags, and a high degree of decadence-in other words, the type of forest that provide spotted owl or marbled murrelet habitat. Accord ing to an M O F biologist involved with the O l d Growth Strategy Project, there is no reliable inventory of the various biogeocl imatic o ld growth types found in BC. Andy MacKinnon noted that sampling suggests 7 0 % of coastal mature forest in BC may be what the American figures in the previous chapter referred to as-what I refer to as-old growth forest. 1 5 9 G iven this, there are 5 mi l l ion hectares of mature coastal forest in BC, and wou ld include, if we use a multipl ier of 0.7, 3.5 mi l l ion hectares of o ld growth leaving us, after subtracting the 0.2 mi l l ion hectares of coastal o ld growth protected in provincial and national parks, with a figure of 3.3 mi l l ion hectares of unreserved o ld g rowth . 1 6 0 In other words, 3 1 % of BC's nonreserved o ld growth is protected from logging. However, for this essay, the figure is even smaller. The reader w i l l recall I noted that the Protected Areas Strategy protected one mi l l ion hectares of o ld growth. O f this, however, 0.6 mi l l ion hectares are "interior" o ld growth and, as I have not included interior o ld growth in my BC o ld growth figure, nor should I include it in my protected nonreserved o ld growth 159Mackinnon also explained that the data American old growth figures are based on is equally as suspect as BC's data; though various organizations in the US come up with apparently firm figures, they depend largely upon satellite imagery techniques that are rarely ground-checked. See Andy Mackinnon, telephone interview, 18 August 1992. Though both the US and BC old growth figures are subject to a margin of error, the figures are as good as any available, and hopefully any error is, at least, random. ,60British Columbia, Ministry of Forests, "Forest Service Disagrees with Federal Report on Ancient Forest in B.C.", Newsrelease 14 April 1992: 1. 61 f igure. 1 6 1 This wou ld leave us with a protected unreserved o ld growth figure for BC of approximately 0.42 mi l l ion hectares. Therefore, a more accurate ratio for B C -under the definition of o ld growth I use in this essay-is closer to 1 3 % . British Columbia and the American Pacific Northwest I w i l l now compare the BC and A P N o ld growth figures and illustrate that the two jurisdict ions' pol icy responses to the o ld growth issue represent a clear case of pol icy divergence between BC and A P N . I w i l l first assemble the data in tabular form, and then offer my interpretation of the data. Table 3.1 BC and APN Old Growth Figures BC APN Remaining Nonreserved Old Growth ( m i l l i o n ha.) * * * * 3 . 3 0 * * * * * 2 . 4 4 * * * * Protected Nonreserved Old Growth ( m i l l i o n ha.) * * * * o . 4 2 * * * * * l . 9 4 * * * * Protected Nonreserved Old Growth as a Percentage of the Total Nonreserved Old Growth * * * * 13 * * * * * 80 * * * * The figures I have presented indicate that A P N has protected far more o ld growth than BC from two perspectives. In absolute numbers, A P N has protected nearly a mi l l ion and a half hectares more o ld growth than BC or, in other words, 16,Terje Void, telephone interview, 31 July 1992. 62 nearly five times as much. A P N has also protected a far larger percentage of their remaining o ld growth as we l l , with the A P N proportion of remaining o ld growth protected over six times larger than the BC equivalent. However , I must also note the obvious: the protected nonreserved o ld growth in both A P N and BC is not, at least yet, permanently removed from the productive forest. In A P N , the courts are protecting o ld growth through logging injunctions whi le the federal government designs a plan to protect the northern spotted ow l that w i l l meet the requirements of the Endangered Species Act (ESA). BC has protected o ld growth through temporary logging deferrals pending multipartite stake-holder consultations on the future of the province's o ld growth forests. However , differences in the two processes indicate that more of the protected nonreserved o ld growth w i l l be removed from the productive forest in A P N than in BC. Due to the stringent requirements of the ESA, the US federal government must protect enough old growth to protect the spotted o w l , and this protection w i l l require that most of the o ld growth the courts have " locked-up" in A P N is removed from the productive forest. For example, the US Fish and Wi ld l i fe Service's (FWS's) "recovery p lan" for the spotted ow l recommends that the federal government restrict logging on 2.19 hectares of currently unreserved o ld growth, more than is currently protected by court in junct ions. 1 6 2 And whi le the administration's "preservation plan" wou ld only restrict logging on 1.1 mi l l ion hectares of currently unreserved o ld growth-stil l '"United States, Department of Interior, Summary of the Recovery Plan for the Northern Spotted Owl - Draft (Portland, Oregon: U.S. Fish and Wildlife Service, May 1992) 2. 63 more than is protected in BC-the US federal government wou ld first have to amend the ESA to implement the plan, or break the l aw . 1 6 3 In BC, however, the provincial government is under no such obligation to remove any of the protected o ld growth from the work ing forest. Both the O l d Growth Strategy Project and the Protected Areas Strategy speak of preserving different biogeocl imatic areas, but have no o ld growth preservation targets. The Protected Areas Strategy does have the goal of preserving 1 2 % of the land base in BC for parks and wilderness areas, but this is not the same thing as preserving 1 2 % of BC's o ld g row th . 1 6 4 The multipartite bargaining process might result in the government protecting any where from all or none of the logging deferrals. Harvest levels offer some insight into wh i ch jurisdiction is more serious about preserving o ld growth (see table 3.2). In 1990 and 1991, the a l lowable cut on federal A P N lands was reduced by 31 % and 4 0 % respectively over the 1985 - 1989 average. In BC, over the same time frame, the al lowable cut actually rose. The a l lowable cut in BC is expected to drop to 16.31 bbf in 1992 (a drop of approximately 2%), but the decrease is hardly significant when compared to the Amer ican decreases in recent years. 1 6 5 The recent decrease in a l lowable cut on A P N federal lands may indicate two patterns. First, and most certainly, the decrease is a result of court prohibitions on '"United States, Department of Interior, Preservation Plan for the Northern Spotted Owl - Draft (Washington: Department of Interior, May 1992) 2, 40. 1 MThe Valhalla Society, "Seven Reasons why the Government's Protected Areas Strategy is a Sham," News Release 12 May 1992: 2. '"British Columbia, Ministry of Forests, Five Year Forest and Range Resource Program 1992-1997 (Victoria: Ministry of Forests, 1992) 9. 64 Table 3.2 BC and Federal APN Harvest Levels166 (billion board feet) BC APN 1985 - 1989 (ave) * * * * * * 16. 00 * * 6 .30 * * * * 1990 * * * * * * * * * * * * 16. 65 * * * * 4 .84 * * * * * 1991 * * * * * * * * * * * * 16. 65 * * 3 .75 * * * * * logging in spotted owl habitat located in A P N o ld growth. Un l ike the BC deferrals, the A P N court injunctions actually prevent loggers from cont inuing to deplete oldgrowth reserves-APN loggers cannot s imply go cut federal o ld growth e lsewhere. 1 6 7 Second, the decreased cut could represent a recognition within the federal agencies that the o ld growth the courts are protecting is going to remain protected, and that they must begin adjusting their annual cut accordingly. In BC, the fact that the a l lowable cut has actually risen since 1989 in spite of the deferrals indicates that the Chief Forester-the person responsible for designating the al lowable cut-is not expecting deletions of o ld growth from BC's productive forest similar to , 6 6The BC Annual Allowable Cut (AAC) figures for the years 1985 through 1990 are based on the Ministry of Forests annual reports for each year, and cited from The Forest Resources Commission, The Future of Our Forests (Victoria: Forest Resources Commission, April 1991) 81. The 1991 BCAAC figure is cited directly from British Columbia, Ministry of Forests, Annual Report 1990-1991 (Victoria: Ministry of Forests, 1992) 56. The APN Allowable Sale Quantity (ASQ) for the years 1985 through 1989 is cited from Margaret E. Kriz, "Jobs v. Owls," National lournal (November 30, 1991): 2915. The APN ASQ figures for 1990 an 1991 are cited from Joan Hamilton, "The Owl and the Scientist," Sierra Magazine (July/August 1991): 24. , 6 7For example, in 1990 court injunctions prevented the forest industry from harvesting over 26 thousand hectares of old growth contained in the federal timber sales program. These sales were not replaced with different sales elsewhere on federal land. See Phillip A. Davis, "Ruling Gives Lawmakers a Push to Resolve Spotted Owl Issue," Congressional Quarterly Weekly Review (June 1, 1991): 1438. 65 those expected in A P N . Otherwise the A A C wou ld have to decrease at a greater rate. The picture depicted in the last two chapters clearly indicates that the issue of o ld growth preservation provides us with a clear instance of po l icy divergence between A P N and BC; the divergence holds in absolute terms, proportionate terms, and in terms of harvest levels. The remainder of the essay is dedicated towards expla in ing this case of pol icy divergence. 66 IV. EXPLA IN ING D IVERGENCE N o w that we have examined the institutions and processes surrounding the regulation of A P N and BC old growth, and have reviewed the chronology of events leading to the present circumstances of the issue in each jurisdict ion, I w i l l begin to offer an explanation of why the old growth protection pol icy response has diverged so drastically between A P N and BC. To do so, I w i l l examine two non-institutional variables-science and economics-and two institutional variables-federalism and legalism-in the context of both the A P N and BC o ld growth debates. I w i l l illustrate differences between the jurisdictions in relation to each variable and show how each difference represents a force of divergence that contributed to the different pol icy out-comes. Non-Institutional Variables I w i l l now examine the roles of two non-institutional variables common to both the A P N and BC o ld growth debates: the role of science, and the role of economics. Differences in Science? In this section I w i l l explore the possibility that the diverging court decisions between BC and A P N , and the resulting divergence in o ld growth protection, is due to diverging scientific certainty concerning the viabi l i ty of the two animals in question. 67 The more certain the science, as Harrison and Hoberg argue, the more the l ikel ihood of pol icy convergence between two jur isdict ions. 1 6 8 Scientific uncertainties make it possible for proponents or opponents of certain po l icy outcomes to interpret scientific evidence in a manner that advances their po l icy object ives. 1 6 9 If, for example, the scientific evidence strongly supports the c la im that the spotted owl in A P N is in danger of extinction due to continued logging in old growth forests, the forest sector w i l l have difficulty presenting scientific arguments to the contrary. Conversely, if the scientific data indicating that o ld growth logging in BC is placing the marbled murrelet in danger of extinction is relatively weak, the forest sector can use scientific arguments that environmentalists w i l l have difficulty refuting to justify their desire to log o ld growth. As noted in an earlier chapter, the American Fish and Wi ld l i fe Service's (FWS's) own experts have testified that the largest threat to the viabil ity of the spotted ow l is the destruction of its o ld growth habitat. 1 7 0 Wh i l e there is, naturally, a "battle of the experts" involved in the spotted owl debate, 1 7 1 very few people seriously question the fact that the future of the spotted ow l is tied to the future of 168Kathryn Harrison and George Hoberg, "Setting the Environmental Agenda in Canada and the United States: The Cases of Dioxin and Radon," Canadian lournal of Political Science XXIV: 1 (March 1991): 7; George Hoberg, "Risk, Science and Politics: Alachlor Regulation in Canada and the United States," Canadian lournal of Political Science XXIII:2 (June 1990): 268. 169Ronald Brickman, Sheila Jasanoff, and Thomas llgen, Controlling Chemicals: The Politics of Regulation in Europe and the United States (Ithaca and London: Cornell University Press, 1985) 187-188. 170"Northern Spotted Owl v. Hodel," The Environmental Law Reporter 19 (March 1989): 20277. 171Similar data often results in different interpretations, see Matthew J. Coleman, "Spotted Owls: Research and Controversy," Taooi lournal (April 1990): 76, and "Headwaters, Inc. v. Bureau of Land Management," Environmental Law Reporter 19 (October 1989): 21162. 68 the region's o ld growth. For example, in determining whether or not to list the spotted owl under the ESA, experts from both with in and without the FWS examined the data concerning the spotted ow l over the year fo l lowing the initiation of the status review, and conc luded unanimously that the owl faced significant risk of extinction due to continued o ld growth harvesting, and that this threat was real and immediate . 1 7 2 Though there is, obviously, some uncertainty concerning the exact populat ion of spotted owls in A P N (how could it be otherwise?) surveys have documented 500 pairs in Washington state, 500 pairs in Cal i fornia, and 1460 pairs in O regon . 1 7 3 As Canadian Wi ld l i fe Service (CWS) Biologist Gary Kaiser explains, spotted owls are a "snap" to work with and wel l understood for a number of reasons. 1 7 4 First, the animal lives in manner similar to other species; gathering data is, therefore, a quicker process than, say, for the marbled murrelet. Second, the spotted owl is an easily accessible animal . A n d y Stahl confirms this v iew: "Can you think of any other w i l d species that comes when you call it and lands a few feet away?" 1 7 5 Hav ing attached a band transmitter to an animal , biologists can realistically determine populat ion density and life spans (particularly important in monitoring population), ,72Victor M. Sher and Andy Stahl, "Spotted Owls, Ancient Forests, Courts and Congress," Northwest Environmental lournal 6.2 (1990):364. ,73Mark Bonnettand Kurt Zimmerman, "Politics and Preservation: The Endangered Species Act and the Northern Spotted Owl," Ecology Law Quarterly 18:105 (1991): 110. 174Gary Kaiser, Canadian Wildlife Service, Biologist, and chair of the Marbled Murrelet Recovery Committee in British Columbia, personal interview, 7 August 1992. 17SCited in William Dietrich, The Final Forest (New York: Simon & Schuster, 1992) 52. 69 find nests, calculate foraging range, and so o n . 1 7 6 A lmost all population projection studies indicate that spotted owl populations are decl in ing, and the decl ine appears "strongly" related to habitat loss . 1 7 7 In announcing the court's decision that forced the Fish and Wi ld l i fe Service to list the spotted owl as a threatened species, Judge Z i l l y berated the FWS for fai l ing to present scientific justification for its dec is ion: The Court will reject conclusory assertions of agency "expertise" where the agency spurns unrebutted expert opinions without itself offering a credible alternative explanation.... Here, the Service disregarded all the expert opinion on population viability, including that of its own expert, that the owl is facing extinction, and instead merely asserted its expertise in support of its conclusions.' 7 8 As we saw, instead of taking the opportunity the court offered to provide scientific analysis to support its conclusions, the FWS relented and declared the spotted ow l threatened under the ESA. If there had been any scientific uncertainty concerning the condit ion of the spotted ow l , the FWS wou ld have used it, and the court probably wou ld have "deferred" to the Service's "expertise" and upheld the decision not to list the species. Yet the FWS could not produce any credible evidence to support its conc lus ion, a circumstance that suggests there is very little scientific uncertainty concerning the viabil ity of the spotted o w l : it is a threatened species. Perhaps this is why congressional spokespersons for regional timber interests, such as Senator Bob Packwood, R-Ore., do not mention a lack of scientific certainty about 1 7 6A. Renee Blondin, "The Owl Complex," lournal of Forestry (1989): 33; Gary Kaiser, personal interview, 7 August 1992. 177United States, Department of Interior, Summary of the Recovery Plan for the Northern Spotted Owl - Draft (Portland: U.S. Fish and Wildlife Service, May 1992) 17. '""Northern Spotted Owl v. Hodel," The Environmental Law Reporter 19 (March 1989): 20278. 70 the spotted owl 's dependency upon o ld growth but, rather, argue that legislation concerning the issue should recognize that "... people count as much as b i rds . " 1 7 9 If the scientific evidence were less certain, Packwood wou ld not have to resort to such emotive statements. In Apr i l , 1992, however, forest industry biologists discovered spotted owls in second growth forests. However, Washington State Lands Commissioner Brian Boyle conceded that the private surveys revealed nothing about the owl 's abil ity to reproduce in second growth forests. 1 8 0 Further, this is not the first time scientists have discovered the spotted ow l in second growth stands. So far, however, nesting sites are almost exclusively located in o ld growth . 1 8 1 Further, the second growth stands where biologists have located the spotted owl in the past have, typical ly, never been clear-cut, and exhibit o ld growth characteristics. 1 8 2 Whereas the implications of the scientific data relating to the spotted owl are "crystal clear" according to Dave Dunbar, chair of the BC Spotted O w l Recovery Committee, the same is not the case with the marbled murrelet . 1 8 3 Though we do know that the murrelet spends time in o ld growth forests, we do not know how ,79Margaret E. Kriz, "Jobs v. Owls," National lournal (November 30, 1991): 2914. 180Scott Sunde, "More Owls Spotted in Forest," Seattle Post-Intelligencer 22 April 1992: A1, A9. 1 8 ,Gary D. Meyers, "Old-Growth Forests, The Owl, and Yew: Environmental Ethics versus Traditional Dispute Resolution Under the Endangered Species Act and Other Public Lands and Resources Laws," Boston college Environmental Affairs Law Review 18.623 (1991): 637. ,82Bonnett and Zimmerman 112. 183Dave Dunbar, British Columbia Ministry of Environment, Lands, and Parks, fish and wildlife biologist, chair of the British Columbia Spotted Owl Recovery Committee, telephone interview, 20 August 1992. 71 much old growth the species needs, how long they are in the old growth, how many murrelets exist, and so on . There are two main problems: First, biologists have a much higher degree of difficulty getting radio transmitters on the murrelet, making it much more difficult to obtain the information that is available on the spotted o w l . 1 8 4 Second, intensive murrelet research is a relatively recent phenomenon and, consequently, there is only a small data base to serve as a starting point for re-searchers. 1 8 5 Nevertheless, the Committee on the Status of Endangered Wi ld l i fe in Canada (COSEWIC) listed the marbled murrelet as a threatened species in BC. Accord ing to the committee's report, the biggest threat to the viabi l i ty of the marbled murrelet populat ion in BC is the timber industry's continued appetite for the o ld growth forests said to provide the birds' only nesting habitat . 1 8 6 Similarly, the Western Canada Wilderness Committee (WCWC) argued that "[t]he murrelet is thought to nest on ly in never-logged forests made up of very big, very o ld trees. " 1 8 7 However, the literature indicates that within the scientific community nothing is very certain about the marbled murrelet. First, though we cannot realistically expect an exact population figure for the species, if we are to make pol icy decisions based on science, we should have 184Gary Kaiser, personal interview, 7 August 1992. 18SDave Dunbar, telephone interview, 20 August 1992. '"Michael S. Rodway and the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), Report on the Status of the Marbled Murrelet. Brachvramphus Marmoratus. in Canada. (Canada: COSEWIC, April 1990) 1. '"'Western Canada Wilderness Committee, "Threatened Birds Lose in Federal Court," News Release 21 December 1990: 1. 72 reliable population estimates based upon sampling and mathematical model l ing, as is the case with the spotted owl in A P N . Evidently, however, no such rel iable population estimate exists. The FWS in the US notes that although Alaska and British Co lumb ia is the center of the North American murrelet populat ion, "... no accurate census of population size exists . " 1 8 8 The most commonly cited figure-the figure Rodway's status report uses-for BC is 45 000 individuals. However, as Rodway mentions, the figure is based on 1973 data . 1 8 9 Further, the CWS draft recovery plan for the murrelet warns that Rodway's figure "... has no val id statistical basis and should be used caut ious ly . " 1 9 0 M O F estimates indicate a murrelet population in BC of 50 000 birds, wh i l e CWS biologist Gary Kaiser suggests that recent surveys indicate that the populat ion may be between 30 000 and 35 000 individuals. Kaiser also notes, however, that even if the bird's population is as low as the 30 000 figure, the murrelet wou ld still be a " common" seabird. 1 9 1 Second, there is no scientific evidence indicating that the murrelet population is dec l in ing. Rodway admits in the COSEWIC report itself that " [populat ion trends cannot be defined with available data." Rodway points out that "[a]necdotal accounts suggest populat ion declines in the Straight of Georgia ..." but that "[t]here are no 188Kim Nelson, Interim Management Guidelines for Marbled Murrelet Habitat Conservation in Washington. Oregon and California, unpublished report for the United States Fish and Wildlife Service (January 1991) 3. 189Rodway and COSEWIC 24. , 9 0Gary W. Kaiser, Hugh J. Barclay, Alan E. Burger et al, "National Recovery Plan for the Marbled Murrelet," unpublished report for the Canadian Wildlife Service (Spring 1991) 2. 1 9 ,Cited in Glenn Bohn, "Protecting the Nest," The Vancouver Sun 17 November 1990: B1, and confirmed in Gary Kaiser, personal interview 31 July 1992. 73 comparable, quantitative data available to substantiate these accounts . " 1 9 2 Further, the C W S murrelet recovery plan states that [w]e have no clear indication of population trends in the Marbled Murrelet .... In a comprehensive review of incidental records and the few technical studies Campbell et al (1990) found insufficient grounds to note a "change in status" since 1948.' 9 3 So, w e have no supportable sense of the direction concerning marbled murrelet population trends in BC. Third, there is also uncertainty concerning how much the murrelet depends upon o ld growth for nesting habitat, despite the claims of COSEWIC and W C W C mentioned earlier. Though biologists are certain that the murrelet does nest in o ld growth, there is no certainty whether or not it must nest in o ld growth. To begin, there is very little information on its nesting habits. O n l y two nests have been found in BC, and only a total of fourteen throughout its range. 1 9 4 CWS notes that "[n]o one is sure exactly where most Marbled Murrelets nest ...", 1 9 5 wh i le W . Earl Godref describes the murrelet's nesting habits as "poor ly k n o w n " . 1 9 6 Further, there are accounts of murrelets nesting on the ground in small rock ledges as, again, the COSEW IC report notes . 1 9 7 T.R. Simons, for example, has documented a murrelet ,92Rodway and COSEWIC 25. ,93Kaiser et al 1. 194Canada, Canadian Wildlife Service, Marbled Murrelet (Ottawa: Ministry of Supply and Services, 1991) 2. 195Canada, Marbled Murrelet 2. 196W. Earl Godref, The Birds of Canada (Canada: National Museums of Canada, 1986) 291. ,97Rodway and COSEWIC 25. 74 nest in a rock crevice near an area where harvestable old growth Sitka Spruce trees had been harvested. 1 9 8 What is important for the reader to note about this discovery is that the nest was near an area where o ld growth used to stand, suggesting the murrelet is capable of adjusting its nesting habits to suit its environment. So, to sum up, there is no reliable marbled murrelet census data. However , of the population estimates available, even the lowest figures indicate that there are enough murrelets in BC to classify it as a " common" seabird. Further, despite the fact that the scientific community has absolutely no substantive evidence suggesting any direction whatsoever in murrelet population trends, or even whether the murrelet is dependent upon o ld growth for nesting habitat, COSEWIC nevertheless listed the animal as a threatened species. W e can conc lude that clearly nothing is clear about the marbled murrelet, and that we have a case of divergence in scientific certainty between the marbled murrelet in BC and the spotted ow l in A P N . Consequently, the forest industry in A P N has more difficulty using scientific arguments to justify its desire to log o ld growth spotted ow l habitat than the industry in BC has using scientific arguments to justify its desire to log o ld growth marbled murrelet habitat. The result may be that A P N has protected more owl habitat than BC has protected murrelet habitat. T.R. Simons, "Discovery of a Ground Nesting Marbled Murrelet," Candor 82 (1980): 1-9. 75 Differences in Economics? For more insight into the economic aspects of this—or any-publ ic po l i cy decis ion, we can benefit from the Marxist perspective on decision making. As Me lucc i notes, traditional Marxian analysis has become virtually irrelevant as "[t]he mechanisms of accumulation are no longer fed by the simple exploitation of the labor force .... 1 , 1 9 9 However , if traditional Marxian conception of class confl ict is dropped, class analysis can be redefined in ways that provide important insight into decision-making. As a number of authors have pointed out, recent decades have witnessed a change in the socio-political context of society bringing with it a new class structure, and a new basis for class conf l i c t . 2 0 0 The change also presents new difficulties for forest po l icy makers. Accord ing to Schrecker, the new class structure includes a new middle class composed of educated citizens, typical ly from the professions, who perceive themselves as economical ly secure and are therefore, disposed towards post-materialist values such as preservationist concerns. 2 0 1 Industry, because of its abi l i ty to use "job blackmai l " , is in a position to form a class al l iance with segments ' "A . Melucci, "The New Social Movements: A Theoretical Approach," Social Science Information 19 (1980): 217-218, cited in Claus Offe, "New Social Movements: Challenging the Boundaries of Institutional Politics," Social Research 52.4 (Winter 1985): 833; for another sceptical view of the application of traditional Marxist analysis to modern society, see Ralf Dahrendorf, Class and Class Conflict in Industrial Society (Stanford: Stanford University Press, 1959). 200William D. Coleman, Politics and Business (Kingston: McGill-Queens University Press, 1988) 155-156; Jeremy Wilson, "The Forest Conservation Debate in British Columbia, 1835-85: Reflections on a Barren Political Debate," BC Studies No. 76 (Winter 1987-1988): 29; Offe 833; Ted Schrecker, "Resisting Environmental Regulation: The Cryptic Pattern of Business-Government Relations," Managing Leviathan: Environmental Politics and the Administrative State, eds. Robert Paehlke and Douglas Torgerson (Peterborough: Broadview Press, 1990) 174-175. 201Schrecker 175. 76 of society economical ly dependent upon the forest sector, inc luding industry's traditional antagonist, labour, and latent groups such as retai lers. 2 0 2 The objective of this class al l iance is to prevent the preservationist values of the new middle class from significantly inf luencing pol icy decisions at the economic expense of the all iance's membership. If so, we might argue that the divergence between the two jurisdict ions' economic dependence on the forest sector explains the diverging amounts of o ld growth protected in BC and A P N . Perhaps the new industrial class al l iance, w h o are economical ly dependent upon the forest sector, is proportionately larger and polit ical ly a more powerful force in BC than in A P N . I have assembled my numerical data in tabular form in table 4.1. If we compare BC's timber dependency with that of Washington state and Oregon combined , there is little doubt that BC is far more dependent on forest products than A P N . For example, 2 . 7 % of the BC populat ion works in the forest industry compared to only 1.7% of the A P N populat ion, a difference factor of 1.6. 2 0 3 Further, 5 .7% of the BC labour force is directly employed in the forest sector, compared with on ly 3 . 2 % of APN ' s popula -t ion, a difference factor of 1.8. So, timber industry jobs are a smaller consideration to both the population and the labour force in A P N than in BC. 2 0 2 See Schrecker 170. The decision of Jack Munro, after his retirement as leader of the BC International Woodworkers of America, to work for the Forest Alliance of British Columbia, an industry-sponsored forest issues pressure group, provides an example of these class alliances. 2 0 3 A difference factor is simply the number of times larger one figure is than another. 77 Table 4.1 BC and APN Old Growth Economic Figures BC A P N Forest Sector Jobs (thousands) 2 0 4 * * 84 * 73 * * Population (millions) * * 3.13 * 7.77 * * Ratio of Forest Sector jobs to the population (%) * * 2.7 1.7 * * Labour Force (mi l l ions) 2 0 5 * * 1.50 * 2.53 * * Ratio of Forest Sector jobs to the labour force (%) * * 5.7 * 3.2 * * Forest Sector Wages (billions of dol lars ) 2 0 6 * * 3.5 * 3.5 * * Ratio of Forest Sector Wages to the population (dollars per person) * * 1000 * 450 * * Unemployment rates (%) 2 0 7 1990 1991 * * * * 8.3 9.8 * * 5.7 6.7 * * * * 204AII figures based on 1990 data unless otherwise indicated. My American reference uses the term "lumber and wood products employment". See Northwest Portrait. 1992 (Seattle: U.S. Bancorp and the northwest Policy Center, 1992) 24. My Canadian reference uses the term "direct jobs" as opposed to "indirect jobs". See Canada, Forestry Canada The State of Forestry in Canada: 1991 Report to Parliament (Ottawa: Ministry of Supply and Services, 1992) 18. 205For the APN figures see United States, Department of Commerce, State and Metropolitan Area Year Book. 1991 (Washington, DC: Department of Commerce, 1991) 242. For the BC figures see Canada, Statistics Canada, Labour Force Annual Averages. 1991 (Ottawa: Statistics Canada, 1991 ) B43. 2061988 data found in United States, Department of Commerce, County Business Patterns: Washington Report (Washington, D.C: Department of Commerce, 1989) 17; United States, Department of Commerce. County Business Patterns: Oregon Report (Washington. D.C: Department of Commerce, 1989) 17; Canada, Forestry Canada, The State of Forestry in Canada: 1990 Report to Parliament (Ottawa: Ministry of Supply and Services, 1991) 15. 2 0 7The American figures are a weighted average of the Washington state and Oregon unemployment rates. For the raw American data, see United States, Department of Labour, Employment and Earnings 39.2 (February 1992): 163-164. For the Canadian data see Canada, Force B70. 78 Further, the ratio of annual forest sector wages and salaries to the BC population is $991.58 per person, wh i le the equivalent ratio for A P N is $450.45 per person, less than half that of B C . 2 0 8 Finally, unemployment in Washington state and Oregon was consistently between 2.6 and 3.1 percentage points lower than in BC for the years 1990 and 1991, indicating that BC has a greater general need for employment, timber industry or otherwise. These figures indicate BC is more dependent upon timber industry employment than is A P N and, consequently, the new middle class l ikely has less influence over o ld growth pol icy in BC than they do in A P N . This may explain the divergence in o ld growth pol icy between the two jurisdictions. Institutional Variables In this section I w i l l examine the role of two institutional variables in the A P N and BC o ld growth debates: the role of federalism, and the role of legalism. Differences in Federalism? The purpose of this section is to explore the differences in Canadian and Amer ican federalism, and to examine the implications of these differences on o ld growth pol icy divergence between BC and A P N . As Jerry L. Mashaw and Susan 2 0 8l do not factor the difference between the value of the Canadian and American dollars, nor cost of living data, into these figures. The figures given are, obviously, not the entire story. I merely hope to offer an rough but, for my purposes, valid comparison of the role the forest sector plays in each jurisdiction's economy. I feel that a more detailed and sophisticated statistical analysis would not blur the lines of the simple yet clear picture my basic figures depict so much that we could not tell what the picture shows. 79 Rose-Ackerman write, "[a]n industry's abil ity to resist process regulation w i l l depend on ... how important it is to the local e conomy . " 2 0 9 Resource industries, such as the forest sector, typically have a high level of local inputs (labour, for example) and are, therefore, vital to the economies of the areas where their operations are located. If a single industry dominates the economy of a political jurisdiction, and the po l i cy makers of that jurisdiction have pol icy control over a resource vital to the industry, massive electoral incentives w i l l exist for the pol icy makers to a l low industry access to that resource in order to preserve the economy . 2 1 0 However, those electoral incentives may not exist if pol icy control is located with a central level of government. George Hoberg argues that when the US Congress expanded its regulatory jurisdiction and passed a wave of environmental statutes in the late 1960s and early 1970s- inc lud ing the ESA-it not only increased the authority of federal agencies, but took away the abil ity of states to compete for industrial development by undercutting each other's environmental standards. 2 1 1 As a consequence, pol icy makers w h o do not have a vested polit ical interest in the economic welfare of A P N , and w h o have a polit ical interest in appearing "green" to their home constituencies, are able to influence the o ld growth pol icy that effects the region. For example, when Senator Bob Packwood, R-Ore., introduced a proposal to convene the Endangered 209Jerry L. Mashaw and Susan Rose-Ackerman, "Federalism and Regulation," The Reagan Regulatory Strategy, eds. George C. Eads and Michael Fix (Washington, DC: The Urban Institute Press, 1984) 132. 210Kathryn Harrison, "Federalism, Environmental Protection, and Blame Avoidance," delivered at the Annual Meeting of the Canadian Political Science Association, Kingston, Ontario, 1991: 4. 2"George Hoberg, Pluralism bv Design (New York: Praeger, 1992) 45, 197. 80 Species Committee onto the Senate floor in October, 1990, in an effort to remove the court injunctions restricting timber harvesting in APN ' s unreserved federal forests, the motion was defeated because, according to Senator A l Gore, D-Tenn., the Congress was asked to convene the committee "... not as a last resort but as a first resort." 2 1 2 The reader should note that Gore took the opposite position in the late 1970s when environmentalists' concern for the snail darter-a small minnow listed under the ESA-threatened to scrap the Tel l ico Dam project in Gore's home state. 2 1 3 This contradiction illustrates how federal po l icy makers are able to use the ESA to develop their green credentials only when it does not directly affect their home constituencies' economic well-being and, thus, on ly when it does not carry a polit ical price for the pol icy maker. In addit ion, of all the House committees and subcommittees work ing on a solution to the o ld growth issue in A P N , not one of the Chairs is held by a Representative from Washington state or O regon . 2 1 4 As Hoberg notes, once the environmental statutes of the early 1970s were brought into force, the power of the status quo was shifted to favour environmental interests. 2 1 5 The fact that the 2 ,2Alyson Pytte, "Packwood's 'God Squad' Plan Fails to Make Funding Bill," Congressional Quarterly Weekly Review (October 27, 1990): 3593. 213Pytte 3593. 2 1 4The committees and subcommittees, along with their Chairs, are as follows: Agriculture, E. Kika De La Garza, D-Texas; Agriculture Subcommittee on Forests, Family Farms, and Energy, Harold Volkmer, D-Missouri; Interior, George Miller, D-California; Interior Subcommittee on National Parks and Public Lands, Bruce F. Vento, D-Minnisota; Merchant Marine and Fisheries, Walter B. Jones, D-North Carolina; Merchant Mari ne and Fisheries Subcommittee on Fisheries and Wildlife Conservation and the Environment, Gerry E. Studds, D-Massachusetts; Energy and Natural Resources, J. Bennett Johnson, D-Louisiana; Energy and Natural Resources Subcommittee on Public Lands, National Parks, and Forests, Dale Bumpers, D-Arkansas. 215Hoberg, Pluralism by Design 198. 81 relevant House committees and subcommittees are dominated by Representatives from outside A P N , combined with the fact that the House has yet to devise a long term legislative solution to the old growth question (keeping in mind that Congress wou ld be hard-pressed to devise a legislative solution more onerous for industry than the status quo imposed by the requirements of the ESA and NEPA), certainly seems to provide support for Hoberg's theory. Conversely, in BC, the decision makers responsible for o ld growth pol icy have a polit ical interest in the economic welfare of the area. As we saw earlier in the chapter, BC's forest industry dominates the provincial economy and, therefore, occupies a privileged position-as L indblom might argue-in relation to provincial policy-makers due to the vital functions it performs in the economy . 2 1 6 Further, the provincial government, as I have noted, is the dominant level of government in the area of o ld growth pol icy in BC. Consequently, the abil i ty of Federal MPs from other regions of the country to exploit the green vote in their home constituencies by earning their environmentalist credentials in BC's o ld growth does not exist to the same degree it does for US Members of Congress and A P N old growth. A divergence seems to exist between BC and A P N in the type of polit ical pressures their respective federal structures places upon them to preserve o ld growth. As A n d y Kerr of the Oregon Natural Resources Counc i l notes, in the long run environmentalists cou ld only w in the US debate by taking the issue to the national stage via Congress where, ultimately, the law is made according to national J ,6Charles E. Lindblom, Politics and Markets. (New York: Basic Books, 1977) 189-200. 82 o p i n i o n . 2 1 7 This opt ion, however, is not avai lable for BC environmentalists to the same extent. The structural differences between American and Canadian federalism, therefore, seem to provide a powerful explanation of this pol icy divergence. Differences in Legalism? As Hoberg notes, "[t]he most important institutional difference between ... [Canada and the US] is the dominance of legalism in the US, the principal effect of wh ich is that US regulators have far less discretion than their counterparts." 2 1 8 Consequently, the purpose of this section is to discover whether American environmental groups were able to obtain a particular po l icy outcome in the field of o ld growth using the courts to force the government to fulfil l specific legislative obligations, and whether environmentalists in BC were unable to achieve the same objective in a similar manner. Though the constellation of societal interests is much the same for both legalistic and multipartite pol icy processes, legalism represents a very different approach towards publ ic pol icy. Hoberg argues that "[t]he distinguishing feature of legalism is the assertion of authority by the cour ts . " 2 1 9 Other important features of legalism include formal administrative procedures, pro-regulatory interest groups with access to courts, and non-discretionary government duties. The non-discretionary 217Cited in Dietrich 210. 2 ,8George Hoberg, "Governing the Commons: Environmental Policy in Canada and the United States," unpublished essay, 1991. 29. 219George Hoberg, "Environmental Policy: Alternative Styles." Governing Canada: State Institutions and Public Policy [forthcoming], ed. Michael Atkinson (Toronto: HBJ-Holt, 1993) 18. 83 government duties are particularly important as they provide, in this case, environmentalists with an avenue to force a government to produce a specified pol icy outcome through the courts . 2 2 0 The late 1960s early 1970s United States saw a transformation in Amer ican government from a consensual, informal, and nonlegal po l icy style to a formal, legal and adversarial pol icy style-a regime of "pluralist legalism" where cit izen groups in the US where able to resort to the courts and force federal agencies to comply with a wave of tough, action-forcing environmental statutes. 2 2 1 As mentioned, the ESA was born of this era. A number of changes occurred in the US court system that facilitated the onslaught of pluralist legalism: there was a l iberalization in the rules governing w h o was el igible for "standing"; there was an expansion of issues considered reviewable; there was an intensification in the degree of judicial scrutiny of administrative decisions; and judicial review was a l lowed earlier in the administrative process. Aga in , as Hoberg notes, "[t]he combinat ion of these four changes in the rules of the game significantly increased both the influence of cit izen groups and the judiciary in the policy-making process . " 2 2 2 A n d , as we have seen, virtually the entire story of A P N unreserved o ld growth protection has been the success story of American environmental groups in the courts. Conversely, preservationists attempting to protect unreserved o ld growth in BC through the courts have experienced only frustration. Wh i l e the US courts in 220Hoberg, Alternative 18. 2 2 1 Hoberg, Pluralism by Design 6-8. 222Hoberg, Pluralism by Design 48-49. 84 A P N have virtually stopped all harvesting of o ld growth, environmentalists in BC have to settle for various logging "deferrals" as part of a multipartite bargaining process. The legalism of the US has enabled American environmentalists to force an o ld growth pol icy outcome in A P N through the courts that federal agencies have otherwise been reluctant to embrace. In the BC courts, the forest sector has, to this point, essentially had its way-the courts have yet to impose meaningful o ld growth logging restrictions on the industry. W e must conc lude, then, that differences in legalism are an important force of pol icy divergence in this instance. In the fo l lowing conclus ion, I w i l l attempt to factor the preceding forces of divergence into the calculus of the differing A P N and BC old growth pol icy responses. I w i l l attempt to shed more explanatory light on this case of po l icy divergence by examining how the various forces of divergence function in relation with one another to produce the differing o ld growth pol icy outcomes. 85 V. BY WAY OF CONCLUSION N o w that we have examined the forces of divergence between A P N and BC old growth pol icy, I w i l l offer an account of how these forces work in relation to one another to produce this case of pol icy divergence. As we discovered in the previous chapter, the scientific certainty of data regarding the northern spotted owl 's dependence on A P N o ld growth is much greater than the data concerning the marbled murrelet's dependence on BC old growth. As pol icy responses in different jurisdictions are l ikely to converge if a high degree of scientific certainty on the pol icy issue exists , 2 2 3 we conc luded that, in theory, the divergence in the levels of scientific certainty in the two cases must, to some extent, be responsible for the diverging o ld growth pol icy responses. The weight one places on the cla im that differences in scientific certainty are responsible for this instance of pol icy divergence depends on whether each jurisdiction reacts to scientifically certain data in a similar fashion. The northern spotted owl 's range extends into southern parts of BC. A l l the scientific information available to US decision-makers on the spotted owl is also available to their counter parts in BC. Has reaction to the spotted ow l in BC resembled the reaction in APN? Wi th the exception of a few small sites (< 200 hectares), no formal protection for the spotted ow l exists in BC outside of already existing parks and wi ld l i fe areas. 2 2 4 223Kathryn Harrison and George Hoberg, "Setting the Environmental Agenda in Canada and the United States: The Cases of Dioxin and Radon," Canadian lournal of Political Science XXIV: 1 (March 1991): 7. 224Though not listed under the provincial Wildlife Act, according to Dave Dunbar the Ministry of Environment has "red listed" the owl meaning that it is fast-tracked to become the fifth species listed under the Act. See Dave Dunbar, Ministry of Environment, Lands and Parks, Fish and Wildlife Biologist, telephone interview, 20 August 1992. However, it is not yet listed even though the science has been there for years, and even if does become listed, this will not guarantee, as we have seen in the 86 Further, none of the known unprotected spotted ow l sites were specifically protected under the Protected Areas Strategy. 2 2 5 Cont inued logging in this habitat, accord ing to Dave Dunbar, is ever decreasing the province's abil ity to preserve the ow l in B C . 2 2 6 Though the spotted owl issue in BC is unresolved, the pol icy response, thus far, is very different in BC than in A P N despite the similar science. Further, wh i le the US has the same marbled murrelet information as BC, and whi le its Fish and Wi ld l i fe Service is currently conduct ing a listing proceeding for the murrelet under the ESA, the FWS has delayed making a decision on the animal for an additional six months due to insufficient and uncertain scientific da ta . 2 2 7 The delay suggests that the FWS has not been quick to interpret the available murrelet data in the same manner as Canada's COSEWIC . Once again, the same information has, at least for now, resulted in different responses. The fact that the pol icy reaction in BC to scientific data on the spotted owl has differed from the reaction in A P N , and that the pol icy reaction in A P N to scientific data on the marbled murrelet differs, so far, from the reaction in BC, suggests that the two jurisdictions do not necessarily interpret similar scientific data in a similar manner. Wh i l e scientific uncertainty concerning the marbled murrelet's dependence upon o ld growth undercuts the scientific rationale for protecting the murrelet's o ld previous chapter, that the owl will receive special protection. 22SThough the Spotted Owl Recovery Committee has very recently made a presentation to MOE calling for adding unprotected spotted owl sites to the Protected Areas Strategy. See Dave Dunbar, telephone interview, 20 August 1992. 2 2 SDave Dunbar, telephone interview, 20 August 1992. 227Paul Koberstein, "Murrelet Decision Delayed 6 Months," Portland Oregonian 29 July 1992: B1, B5. 87 growth habitat, its role as a force of divergence is limited if pol icy makers in the two jurisdictions react differently to scientifically certain data . 2 2 8 As we also saw in the previous chapter, A P N was economica l ly less dependent upon the forest industry than was BC. This fact a l lowed us to conc lude that the class al l iance favouring continued logging of o ld growth had less polit ical power in A P N than in BC. Consequently, this divergence in political power may have translated into diverging old growth pol icy responses between the two jurisdictions. Just how important are the differences in economics and, consequently, in the industrial class al l iances' polit ical power, as a force of pol icy divergence? The forest industry is, next to the aerospace industry, the second largest sector of Washington state's economy. 2 2 9 Further, 14 (or 3 6 % ) of the state's 39 counties are classified as "timber dependent" . 2 3 0 In addit ion, the timber industry is the largest sector of the economy in O regon . 2 3 1 By comparison, recent Forest Resour-ces Commiss ion research indicates that of 55 BC communities studied, 21 (or 3 8 % ) were exclusively dominated by the timber industry. 2 3 2 Though not as important as it is to the BC economy, the forest industry is, nevertheless, a significant 228Harrison and Hoberg 25. 229Gary D. Meyers, "Old-Growth Forests, The Owl and Yew: Environmental Ethics Versus Traditional Dispute Resolution Under the Endangered Species Act and Other Public Lands and Resources Laws," Boston College Environmental Affairs Law Review 18.623 (1991): 639. 230Paul Sommers and Helen Birss, Revitalizing the Timber Dependent Regions of Washington (Seattle: Northwest Policy Center, 1991) 5-9. 2î1Meyers 639. 232Garry Home and Charlotte Penner, "British Columbia Community Dependencies," Forest Resources Commission Background Paper (Victoria: Forest Resources Commission, 1992) 17. 88 component of APN ' s economy. W e must, therefore, be careful not to place too much emphasis on the differing levels of economic dependency on the forest industry between the two jurisdictions. A major difference, however, is that timber industry as a who le is less dependent upon o ld growth in A P N than in BC. Through out this essay we have focused on publ ic lands. However, a large component of the A P N logging industry operates in second and third growth forests on private lands, whereas less than 5 % of the entire BC harvest is in second g rowth . 2 3 3 For example, though the a l lowable cut on Oregon and Washington federal lands was 4.84 bbf in 1990, another 7.20 bbf was harvested from private lands—virtually all second and third growth. Large timber companies in A P N , such as Weyeraeuser, have only a tiny percentage of their opera-tions in o ld growth. For the most part, on ly small local operations depend upon publ ic o ld g rowth . 2 3 4 As the USFS's "Timber Assessment Market M o d e l " ( T A M M ) -a computer model of the US's timber economy-indicates "... half of any reduction of timber sales on publ ic lands w i l l be compensated by increases in timber cutting on private lands" . 2 3 5 Consequently, as Dietr ich suggests, the most immediate impact of court injunctions preventing logging on A P N publ ic lands may be windfal l corporate prof i ts . 2 3 6 2 3 3F.L.C. Reed, Faculty of Forestry, University of British Columbia, telephone interview, 25 August 1992. 2 3 4F.L.C. Reed, telephone interview, 25 August 1992. 2 3 5"The Citizens' Guide to the Timber Industry and a Profile of U.S. Forests," Forest Watch 12.1 (July 1991): 33. 236William Dietrich, The Final Forest (New York: Simon and Schuster 19992) 186. 89 The implicat ion of the corporate second and third growth logging on A P N private lands is revealing-it strengthens the argument that the industrial class alliance is less powerful in A P N than in BC. A major component of the forest industry in A P N is not participating in the class al l iance; in fact, the preceding argument indicates that the corporate segment of the industry may be hostile towards the small business sector of the industry. In BC, however, restrictions on o ld growth logging affects industry across the board, both the corporate and small business sectors. The question then arises whether old growth pol icy between BC and A P N wou ld have diverged if court injunctions were placed on privately owned second and third growth forests in A P N . Regardless, without the participation of the corporate sector, the industrial class al l iance in A P N does not have the level of economic-and consequently pol i t ical-clout as it has in BC. However , the difference between the two jurisdict ions' economic dependency on o ld growth can not, on its own , explain the divergence in o ld growth pol icy responses. Though significantly less dependent upon o ld growth than BC, over a third of region's forest sector is still dependent upon old growth. And if on ly half of any cut reduction on federal lands wi l l be compensated by an increased cut on private lands, half w i l l not. The A P N industrial class al l iance should otherwise still exert a substantial amount of political power over the area's o ld growth pol icy. However , differences in economics can collaborate with differences in federalism to help produce divergent o ld growth pol icy responses between the two jurisdictions. As we saw in the previous chapter, the divergence in the vertical location of decis ion making power over o ld growth pol icy between the two jurisdictions was 90 also a force of divergence between A P N and BC old growth pol icy. Those with decision making power over old growth in BC are electorally dependent upon the performance of the BC economy and, consequently, upon the health of the forest sector. Conversely, we saw that those with decision making power over o ld growth in A P N are not necessarily dependent upon the region's economic health and, in fact, have electoral incentives to strengthen their environmentalist credentials without economic expense to their home constituencies. The differences in federalism determine whether the forest sector is economical ly and, thus, pol i t ical ly important to those w h o determine o ld growth pol icy in each jurisdict ion. Nevertheless, there is evidence that the differences in federalism should not necessarily result in diverging pol icy responses to the old growth issue. For example, there is a long tradition of " logrol l ing" in American politics, a tradition that states: "You scratch my back and I'll scratch yours . " 2 3 7 Accord ing to this tradition, Members of Congress from different regions support each others' pol icy needs in the spirit of quid pro quo. G iven this tradition, A P N Congressional representatives should manage to form a voting coal it ion in Congress that wou ld produce their pol icy needs. In fact, precisely this type of polit ical manoeuvring, for many years, led Congress to attach a cont inuing resolution to the Interior Department's appropriation bills exempting federal timber sales in A P N from the requirements of various environmental statutes. 2 3 8 2 3 71870 Member of Congress B.F. Butler, cited in James Q. Wilson, American Government, fourth ed. (Lexington: D.C. Heath and Company, 1989) 432. 238See Donald G. Balmer, "United States Federal Policy on Old-Growth Forests in its Institutional Setting," The Northwest Environmental tournai 6.2 (Fall/Winter 1990): 346-349. 91 However, differences in federalism between the two jurisdictions had another, more profound, influence on the divergence in o ld growth pol icy between B C and A P N . In a time of " ideological fervor" for the environment in the late 1960s and early 1970s, Congress created a number of legal requirements in environmental statutes that, when combined with the changes in the court system discussed in the previous chapter, created a regime of pluralist legalism governing environmental issues in the US. As Hoberg writes, "[l]egal power is the single most important polit ical resource available to environmental g roups . " 2 3 9 The reader should note, in terms of the relative explanatory salience of the forces of divergence we have discussed, the ow l was not protected in A P N until the courts forced the FWS to list the spotted ow l under the ESA. The scientific and economic variables did not enter the picture until American legalism made the spotted owl and its o ld growth habitat a pol icy issue by forcing the federal government to protect its o ld growth habitat. As we have seen, Canadian federalism has not produced an environmental legalism of similar force. There are obviously variables that I have not mentioned that may also act as forces of o ld growth pol icy divergence between A P N and BC. In a larger study, one might want to examine the differences between the two countries in the organisational development and sophistication of environmental groups, the role of native peoples, and so on . However , I suspect a more inclusive study wou ld still conc lude that the primary forces causing this case of pol icy divergence are institutional. 239George Hoberg, Pluralism by Design (New York: Praeger, 1992) 199. 92 The question now becomes one of how different the pol icy outcomes w i l l remain in the coming years. In the US the technical possibility exists that the Endangered Species Committee may intervene and entirely exempt the spotted ow l from the protection of the Endangered Species Act, rather than only from particular sales as it d id in May of 1992. Legally, in both Canada and the US, there is nothing that can guarantee the protection of a threatened or endangered species. The difference between the two countries is that the American Cocf Squad must both be convened by Congress or the Administration, and take positive action to exempt a species from the protection of the ESA. Both steps, as w e have seen, are polit ical ly difficult. Conversely, Canada's G o d Squads-the federal or provincial Cabinets-are constantly in convent ion, and must s imply take no action in order to leave a threatened or endangered species unprotected. In the A P N the status quo favours environmental groups; in BC it favours industry. 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