A Clallam County Superior Court judge denied a motion to halt logging operations in the controversial 126-acre Power Plant timber site near Port Angeles.
Environmental groups have been trying to stop the project, saying the logging site is too close to the Elwha River — the only source of drinking water for the city.
In a ruling on Nov. 17, Judge Simon Barnhart found that although the Department of Natural Resources (DNR) had failed to produce a record of the case within the 30-day deadline, there were insufficient grounds for the court to grant a sanction against the department.
“The failure to meet the 30-day deadline is not, per se, sanctionable conduct, at least according to the Legislature,” Barnhart said.
State law does provide for a deadline for departments to produce a record of cases, but the Legislature has not stated what is to be done if that deadline is not met, Barnhart said. Barnhart ruled against a preliminary injunction against DNR’s timber sale in July, after which DNR was supposed to produce a record of the case within 30 days.
The record was due on Aug. 4, but was not delivered until Nov. 6 — 99 days late.
“We’ve been waiting for this record with bated breath,” said Steven Turner, attorney for Earth Law Center; the Center for Whale Research and the Keystone Species Alliance, the groups challenging the sale.
Appellants are planning to appeal the Board of Natural Resources’ decision to approve the sale, but cannot begin preparing its brief until the record of the case is delivered, Turner said.
“We’re not asking for money but we need compensation for the 99 days we’ve lost,” Turner said. “If the court doesn’t do anything, there’s no incentive for the DNR to comply with 30-day deadline.”
Turner stated that Earth Law Center was not alleging that DNR acted in bad faith, only that they failed to comply with a court order.
But Barnhart noted that a finding of acting in bad faith was required for the court to impose sanctions, and given the size of the document, it was not unreasonable for DNR to take time to produce the record.
Terra Moulton, a lawyer with the Washington Attorney General’s Office, said it was telling that Earth Law Center was not alleging DNR acted in bad faith. The department is not required to allow appellants access to the case record before it’s completed, Moulton said, but DNR did allow Turner access to case records in an effort to be collaborative.
“What this ends up being is a second attempt at a preliminary injunction,” Moulton said.
Barnhart said he would leave the matter to the parties to schedule a date for an appeal or else come to an arrangement.
The appellants in the case are not the only ones concerned about the logging project.
In June, Port Angeles Mayor Kate Dexter and City Manager Nathan West sent a letter to Commissioner of Public Lands Hilary Franz asking to pause the project while other options are considered.
In August, another letter was sent, this time signed by several state lawmakers including District 24 Representatives Steve Tharinger, D-Port Townsend, and Mike Chapman, D-Port Angeles, as well as other Port Angeles City Council members.
The court case is only one avenue by which the logging might be stopped, according to Elizabeth Dunne, policy director for the Earth Law Center, but there are other options on the table.
Dunne said Franz could intervene and rescind the sale and there are options to find other, less environmentally sensitive lands to log.
“The case continues to move forward, but at this point, there’s nothing stopping the logging.”
Dunne said she and other appellants are challenging the Board of Natural Resources decision but they needed the case record before they could file the appeal. Dunne said she’s concerned the trees might be harvested before they get the opportunity to present their full arguments in court.
“It’s a problem in the system that you’re able to appeal timber sales but it’s possible that logging could happen before you get your day in court,” Dunne said.
DNR and the company that purchased the logging rights to the site — Eugene, Ore.-based Murphy Company — have defended the project saying won’t impact the Elwha River watershed and is in compliance with federal environmental laws.