§ 8.3 - Rights and Obligations Pertaining to Timber and Timberlands

• Jurisdiction: Washington

§8.3 RIGHTS AND OBLIGATIONS PERTAINING TO TIMBER AND TIMBERLANDS

Under the common law, timberland owners could manage and operate their property subject only to certain principles affecting any use of real property—e.g., trespass, public and private nuisance, tort liability to various classes of persons, and prescriptive rights. Although these concepts generally still apply to timberlands, they have been supplemented, and in some cases supplanted, by numerous statutes and regulations.

(1) Rights to cut and remove timber

This section discusses direct and indirect regulatory limits pertaining to timber harvesting. In addition, this section discusses examples of regulatory programs that, under certain circumstances, require timber cutting.

(a) Direct regulatory limits on timber cutting

Direct regulatory limits on timber harvest include the following:

Temperature sensitive streams. Trees must be left to shade certain temperature sensitive streams. WAC 222-30-040; see also Wash. St. Dep't of Natural Res., Forest Practices Bd., Method for Determination of Adequate Shade Requirements on Streams in FOREST PRACTICES BOARD MANUAL §1 (2000).

Riparian management zones. Trees must be left in riparian management zones. WAC 222-30-020(3)-(7); WAC 222-30-023; see also Wash. St. Dep't of Natural Res., Forest Practices Bd., Guidelines for Riparian Management Zones (RMZ) (measuring widths and tree counts) in FOREST PRACTICES BOARD MANUAL §7 (2010).

Wildlife reserve trees. Wildlife reserve trees, green recruitment trees, and down logs must be left for cavity-nesting wildlife. WAC 222-30-020(11).

Hydraulics Act. Trees may not be felled into streams, or removed from streams, without WDFW approval under the Hydraulics Act. This approval may be withheld for sensitive areas, e.g., important spawning beds, or may contain conditions, e.g., limits on the time of year in which activities are allowed.

Shorelines. Clearcutting is prohibited within 200 feet of the high-water mark in shorelines of statewide significance, except where DOE or the local government determines that selective logging would preclude reforestation or otherwise be ecologically detrimental. RCW 90.58.150. In addition, logging is prohibited in certain shorelines designated as natural environment in master programs adopted by local governments and approved by DOE under the SMA. See WAC 173-26-241(2)(a).

Critical Fish and Wildlife Habitats. The forest practices approval issued by DNR may contain conditions limiting logging near nests of peregrine falcons, bald eagles, ospreys, sandhill cranes, northern spotted owls, or marbled murrelets; the habitat of certain salmon and trout; the habitat of the Columbia white-tailed deer; gray wolves; grizzly bears; mountain caribou; western pond turtles; Oregon silverspot butterflies; and heron rookeries. See WAC 222-16-050(1), WAC 222-30-020(10). Bald eagle habitat is protected under WAC 232-12-292, which implements RCW 77.12.655. WDFW will make recommendations regarding logging in big game winter ranges, near beaver ponds, or in other locations of particular importance to fish and wildlife.

Archaeological or Historical Sites. The forest practices approval issued by DNR may contain conditions limiting logging (1) near archaeological or historical sites that are eligible for listing by the Washington State Office of Archaeology and Historic Preservation (OAHP) on the Washington State Heritage Register or the National Register of Historic Places; or (2) on sites containing evidence of Native American cairns, graves, or glyptic records. See WAC 222-16-050(1)(f).

Comment: In addition to registered archaeological or historical sites (i.e., sites registered on the Washington State Heritage Register or the National Register of Historic Places), the Washington Office of Archaeology and Historic Preservation also maintains an informal database referred to as the "Archaeological Site Inventory." This database includes actual or potential archaeological or historical sites. Inclusion in this database however, is substantially different from registering a site on either the Washington State Heritage Register or the National Register of Historic Places, both of which require landowner notification and a public review process. The database, by contrast, has no procedural safeguards for landowners to contest inclusion, does not require peer review, and lacks a public review process.

Public Resources. If necessary to protect public resources (including all property owned by state or local agencies), DNR may impose additional conditions by a stop work order or notice to comply. RCW 76.09.080, .090.

Practice Tip: Landowners should discuss their proposed activities with all agencies that might be affected, e.g., the municipal water department for lands in or near a municipal watershed, the state or local parks department for lands near a park. Generally it will be less expensive to reach agreement among all affected agencies during the planning process (before filing a forest practices application) than to risk unexpected conditions or expensive remedial measures.

(b) Indirect regulatory limits on timber cutting

Various regulatory programs may indirectly limit logging by making timber harvest uneconomic at particular locations. Examples include (1) small or oddly shaped parcels on steep slopes or swampy ground, where tractor logging may not be permitted and the timber value may be insufficient to justify logging by other means; (2) small areas separated from the remainder of the property by a stream, lake, cliff, etc., where the timber value may be insufficient to justify either an access road or logging techniques not requiring direct road access; (3) land where reforestation cannot be successfully accomplished; landowners can be required to continue replanting until acceptable stocking levels have been achieved, although generally they will not be required to replant the same area more than three times, see WAC 222-34-030(4); and (4) lands having low timber values (e.g., low volumes of merchantable logs per acre) and unusually high logging costs because of difficult terrain, unstable soils, archaeological or historic sites, unique or controversial wildlife habitats, etc.

Practice Tip: Often these problems can be reduced by concurrently logging two or more adjoining parcels. Property boundaries seldom coincide with the most logical boundaries for harvest units. Landowners should consider negotiating with their neighbors to purchase some additional timber or land, to sell some of their timber or land, or to share the expenses of jointly logging a suitable area. Persons managing timberlands in a fiduciary capacity may have a duty to seek such arrangements when necessary to avoid unreasonable expenses or value reductions.

(c) Regulatory requirements to cut timber

Regulatory programs sometimes require, rather than restrict, timber cutting. For example, (1) "whips" and noncommercial trees must be felled where necessary for adequate reforestation, WAC 222-30-090; (2) certain "snags" must be felled because of fire and safety hazards, RCW 76.04.465; WAC 332-24-401. But see WAC 222-30-020(11) (requiring that some snags be left for cavity-nesting wildlife where consistent with fire prevention and safety needs); (3) under safety standards, Ch. 296-54 WAC; (4) on fire trails; (5) due to insect or disease infestations, which may result in an obligation to fell affected timber or to remove timber killed by windstorm, fire, disease, pests, or other casualty; and (6) where a forest practice increases the risk to public resources for danger trees, when DNR can require removal of the danger trees by a condition attached to its approval of a forest practices application or by notice to comply or stop work order.

(d) Federal regulatory programs

Regulatory programs also affect application of common-law principles. Violation of relevant regulations may be evidence of negligence, public or private nuisance, etc.

Although currently there is no direct federal regulation of logging or other forest practices, the federal government does exercise considerable influence over forestry activities. For example, certain federal land designations (including private property) can result in timber harvest restrictions (e.g., Columbia River Gorge National Scenic Area). Also, the U.S. Environmental Protection Agency helps to fund and supervise state regulatory programs relating to water quality, air quality, and pesticides. 33 U.S.C. §§ 1251-1274; 42 U.S.C. §§ 7401-7430; 7 U.S.C. §§ 136-136w. As well, the Endangered Species Act,16 U.S.C. §§ 1531-1544, prohibits "take" of endangered species. Depending upon the fish or wildlife species at issue, both the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have jurisdiction under the Endangered Species Act to prohibit take of species they list as threatened. Both those agencies have adopted rules defining "harm" (one form of "take") to include habitat modifications (e.g., timber harvests) that result in actual death or injury to listed species. In addition, the U.S. Forest Service, Natural Resource Conservation Service, Agricultural Extension Service, Fish and Wildlife Service, National Marine Fisheries Service, and other federal agencies comment on state and local regulations. And finally, the federal government, through the U.S. Forest Service, is the state's largest owner of timberlands and controls the road systems providing access to private timberlands (and, increasingly, nontimber activities—e.g., luxury private estates) in some areas.

(2) Forest roads

Forest roads are used to access timber and haul logs to market; to bring personnel, equipment, and materials onto timberlands; to provide staging areas from which to operate logging equipment, load log trucks, mix...