The door, as they say, is open for the state’s next Commissioner of Public Lands and for the Department of Natural Resources (DNR) he or she will lead. But the new commissioner will still have to walk through that recently opened door.
Metaphors aside, whoever wins the November vote for Commissioner of Public Lands will have more flexibility in managing Washington’s 2.1 million acres of state forests and other state lands than anyone could have confidently predicted four years ago.
The competition to run the DNR provided a rare touch of drama in this year’s primaries, when a hand recount of nearly 2 million ballots gave Democrat and King County Council chair Dave Upthegrove a slot on the final ballot by a margin of 49 votes. Democrats took more than 57 percent of the primary votes, but Democratic candidates split it five ways. The Republicans split the rest only two ways, and therefore almost wound up with an all-Republican final.
The job isn’t what it used to be. For all but two of the past 40 years, Washington managed its forests under the absolute language of the state supreme court’s unanimous Skamania decision. That decision said that the Washington constitution required “undivided loyalty” to the state’s K-12 public schools and other named financial beneficiaries of the state’s public lands, so generating revenue for them took precedence over any and all other values, however laudable. There were exceptions for complying with laws, such as the Endangered Species Act, that governed all land in the state or nation. Otherwise, forest land could be conserved without logging only if the state compensated the trusts or received other land to offset the lost timber.
Then, two years ago, in a case brought by Conservation Northwest and other Washington environmental groups, the court walked back the absolutism of Skamania. Yes, the state has an obligation to the schools and other beneficiaries, the again-unanimous court said, but it also has a broader duty to – in the words of the state constitution — manage the forests for “all the people.” Rather than single-mindedly selling timber to raise cash, the court said,”[t]here appear to be myriad ways DNR could choose to generate revenue from the state and forest lands or otherwise put them to use for the benefit of the enumerated beneficiaries.” The DNR is not required to maximize revenue, and indeed, “is not required to harvest timber from state lands.”
The agency and the state Board of Forest Resources have broad discretion to decide what would be in the best interests of all the people. The legislature has broad discretion to weigh in; the court all but invited it to do so.
Environmental groups hailed the decision in CNW v. Franz as historic. An industry group, the Portland Based American Forest Resources Council (AFRC), said that nothing had changed. But it has.
Also in 2022 the DNR announced that it wanted to lease 10,000 acres of state forest land in King, Thurston, Whatcom, and Grays Harbor counties for carbon sequestration. In a press release, the DNR called the project “the first-in-the-nation use of carbon markets by a state agency to protect critical forest areas by immediately removing stands from the planned harvest schedule, many of which were slated for imminent harvest.”
The AFRC was joined by Lewis and Skagit counties, which get money from state timber sales. They promptly sued. In May, Thurston County Superior Court judge Anne Egeler ruled against them. They have appealed. Odds are, Egeler’s decision won’t be reversed.
Conservation Northwest executive director Mitch Friedman calls Judge Egeler’s ruling “the first affirmation of our interpretation of the [supreme court’s] ruling” in CNW v Franz. CNW was one of three environmental groups that intervened in the Thurston County Superior Court case. To build on the ruling, Friedman says, this year’s race for Commissioner of Public Lands is crucial.
Peter Goldman, director of the Washington Forest Law Center, which represented intervenors in Thurston County Superior Court, says that the election of Upthegrove “could hopefully seize the authority of CNW v. Franz.” Goldman suggests that an aggressive Commissioner of Public lands could “set aside the [trees] that aren’t worth cutting because of their huge carbon sequestration potential.”
Upthegrove would like to do it. He has said that he’d like to save so-called “legacy forests” of big trees. Last year, he led a King County Council majority that asked the DNR to defer its planned 102-acre Wishbone timber sale near Duvall, arguing that the “legacy trees” in the sale area should be preserved for carbon capture and biodiversity.
Upthegrove knows that under the 2022 supreme court ruling, “we have more flexibility.,” he says. And although he still hears some people talk about “undivided loyalty,” he says, now “it’s OK to weigh . . . broad public benefits,” as well as hard cash.
He adds that he has to be careful how he talks about this. He doesn’t want anyone to think he dismisses the economic problems of people and institutions in rural counties that still rely partly on logging. And he doesn’t want anyone to think he opposes logging. He just thinks some trees have more value for other uses.
And cutting more timber on state lands won’t solve the long-term problems; he says that 70 percent of the timber in Washington grows on private land so state forests aren’t the only game or even the biggest game in town. Rural economies and surviving mill towns have struggled economically for decades. No one has come up with a credible plan to reverse their economic slide. “We could ramp up our board feet on public land,” Upthegrove says, “but we’re not going to turn around local economies” that way. “We’ve got to think bigger.”
For decades, some people have argued that the way to save at least some surviving timber economies and jobs is to add more value to the wood. Seattle and other cities now have low- and mid-rise commercial buildings constructed primarily with wood, and these “mass timber” buildings meet codes and sequester a whole lot of carbon.
But their basic materials – “cross-laminated timber” which is basically a three- or five-ply sandwich of boards in layers that run perpendicular to each other, and the more familiar “glu-lam” composite beams – aren’t made here. Seattle’s mass timber structures contain cross-laminated timber from British Columbia and glu-lam beams from Oregon – places where government has done more to encourage and support the technology. Could Washington do something similar? The DNR certainly couldn’t on its own, Upthegrove says, since that would require partnerships with private industry. But he doesn’t dismiss the idea of partnering with private firms. Or working with the legislature, which would be crucial for changing, land values on which state payments to timber counties are based.
During the debate over the Wishbone sale, Upthegrove says, people asked, “what about the schools?” They didn’t know that timber sales paid nothing to keep the schools running, or that they paid less than 2 percent of school construction costs. Upthegrove refers to statements by Superintendent of Public Instruction Chris Reykdal (also on the November ballot), who has said that state forests provide “an almost invisible share” of school construction expenses, and added “this money is not the future of school construction.”
Basically, Upthegrove says, the recent court decisions have let the DNR “manage the public land in the public interest.” That’s hardly a revolutionary proposition. He adds, “I don’t think that is in conflict” with funding school construction or government services. The court decisions mean, he says, that “we shouldn’t be afraid to lean into questions about how we maintain our climate responsibility.”
