Case 4:09-cv-00482-CWD Document 28
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO
WESTERN WATERSHEDS PROJECT & WILDEARTH GUARDIANS; Plaintiffs, v. BUREAU OF LAND MANAGEMENT, and U.S. DEPARTMENT OF THE INTERIOR; Defendants.
Case No. CV 09-482-CWD MEMORANDUM DECISION AND ORDER
Pending before the Court are cross motions for summary judgment. (Docket Nos. 7, 14.) Having thoroughly reviewed the record and the briefing submitted by the parties as well as hearing oral argument on the motions, the Court issues the following Order. FACTS On August 16, 2007, Plaintiffs Western Watersheds Project and WildEarth Guardians filed a Freedom of Information Act (FOIA) request with the Bureau of Land Management (BLM) seeking basic information regarding BLMs ongoing management of livestock grazing on public lands. (Docket No. 11-3.) In their requests, Plaintiffs sought information concerning: Any and all records maintained by the BLM through its Rangeland
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Administration System (RAS) or otherwise within the agencys control that tends to show the identify of all individuals and/or entities currently holding BLM grazing permits for each and every livestock grazing allotment within the BLM system of lands. These records should include, but are not limited to: a. Each permittees name; b. Each permittees postal and electronic mailing address; c. Each permittees telephone number; d. Each permittees associated allotment name and number; and e. The length of time each permittee has held such grazing privilege on BLM Lands.1 On September 20, 2007, the BLM sent Plaintiffs a letter indicating that their FOIA request was placed on a complex track and would require more time to respond to the requests because clarification was needed. (Docket No. 11-3.) Further, the letter provided that the responses could be provided once BLM made appropriate modifications to its existing database - the Rangeland Administration System (RAS). On October 2, 2008, the Plaintiffs sent a letter clarifying their requests. (Docket No. 11-3.) In a letter dated May 13, 2008, the BLM refused to disclose certain unspecified portions of the information requested, claiming that it was protected from disclosure under Exemption 6 of the FOIA. (Docket No. 11-3.) This letter also directed Plaintiffs to the RAS website which allows public access to a menu of available reports for all BLM allotments/permits.2 (Cooley Decl., Docket No. 11-4.) On September 9, 2008, the Plaintiffs appealed BLMs use of 5 U.S.C. 552(b)(6) or Exemption 6, to withhold
Plaintiffs also sought two other types of information under the FOIA but those requests are not at issue in this case. A detailed discussion of the types of reports available is included in the Declaration of Philip Cooley. (Docket No. 11-4.) MEMORANDUM DECISION AND ORDER - 2
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information. The Department of Interior denied the Plaintiffs appeal on September 30, 2008, in a letter which included as an attachment a letter that denied an almost identical FOIA request by Forest Guardians (know as WildEarth Guardians) in 2005. The 2005 letter explained that the information withheld was withheld in accordance with BLMs internal policies. BLMs division of the grazing permittees into the three categories identified below determines what information the BLM releases in response to an FOIA request. Category 1 includes all permittees whose names, designations and/or identifiers indicate clearly that they are formally organized and operating as a business. For this category of permittees, the BLM has determined that permittees have no privacy interest in their contact information and that all contact information can be released. Category 2a permittees includes entities listed under a personal name along with the words Ranch or Farm plus some additional legal designation such as Inc., Corp., Co., or LLP. The BLM has determined that these entities are usually closely held or family owned businesses and retain a reduced privacy interest in their contact information. Therefore, the BLM releases the permittees name, operator number or authorization number, city, state and five digit zip code. The permittees street/mailing address and telephone number are withheld. Finally, Category 2b includes permittees holding a permit under a personal name or in the individuals name plus the word Ranch or Farm without a public designator. The BLM has determined that these permittees have the highest interest in their privacy

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and, as a result, only the operator or authorization number, city, state and five digit zip code are released by the BLM. The permittees name as well as street/mailing addresses and telephone number are withheld. (Cooley Declaration 11, Docket No. 11-4.) Plaintiffs Western Watersheds Project and WildEarth Guardians (Plaintiffs) filed this action against the BLM and the Department of the Interior (Defendants) on September 24, 2009. (Complaint, Docket No. 1.) The Complaint alleges that Defendants violated the Freedom of Information Act (FOIA) by not fully responding to their requests for information regarding grazing permits and permittees authorized to graze livestock on federal public lands. Defendants filed an Answer to the Complaint on October 30, 2009. (Docket No. 4.) On October 27, 2009, the BLM through the U.S. Attorneys Office, provided Plaintiffs counsel with a disk containing all of the information requested except for the information described above related to the Category 2a and 2b permittees. Soon after, Plaintiffs filed their Motion for Summary Judgment (Docket No. 7) on their FOIA claim. Defendants responded to Plaintiffs motion and filed a Motion for Summary Judgment of their own. (Docket No. 11.)3 After several extensions of time requested for briefing by both parties, the motions are fully briefed and pending before the Court.
The Complaint also alleges a violation of the Administrative Procedure Act (APA) that is based on the same facts as the FOIA claim. Plaintiffs did not move for summary judgment on the APA claim. Defendants moved for summary judgment on both claims. MEMORANDUM DECISION AND ORDER - 4
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DISCUSSION 1. Summary Judgment Standard Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil Procedure, which provides, in pertinent part, that judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Under Rule 56, summary judgment is mandated if the non-moving party fails to make a showing sufficient to establish the existence of an element which is essential to the non-moving partys case and upon which the nonmoving party will bear the burden of proof at trial. See Celotex Corp v. Catrett 477 U.S. 317, 322 (1986). If the non-moving party fails to make such a showing on any essential element, there can be no genuine issue of material fact, since a complete failure of proof concerning an essential element of the nonmoving partys case necessarily renders all other facts immaterial. Id. at 323.4 Moreover, under Rule 56, it is clear that an issue, in order to preclude entry of summary judgment, must be both material and genuine. An issue is material if it affects the outcome of the litigation. An issue, before it may be considered genuine,

See also Fed. R. Civ. P. 56(e)(2), which provides, in part: When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response mustby affidavits or as otherwise provided in this ruleset out specific facts showing a genuine issue for trial.
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must be established by sufficient evidence supporting the claimed factual dispute. to require a jury or judge to resolve the parties differing versions of the truth at trial. Hahn v. Sargent 523 F.2d 461, 464 (1st Cir. 1975) quoting First Natl Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289 (1968). The Ninth Circuit cases are in accord. See, e.g., British Motor Car Distrib. v. San Francisco Automotive Indus. Welfare Fund, 882 F.2d 371 (9th Cir. 1989). When applying this standard, the court must view all of the evidence in a light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Hughes v. United States, 953 F.2d 531, 541 (9th Cir. 1992). Freedom of Information Act (FOIA) claims, such as this one, are typically decided on summary judgment. Lane v. Dept of Interior, 523 F.3d 128, 1134 (9th Cir. 2008).5 2. Freedom of Information Act The Freedom of Information Act (FOIA) was enacted to facilitate public access to government records. Forest Service Employees for Environmental Ethics v. United States Forest Service, 524 F.3d 1021 (9th Cir. 2008) citing John Doe Agency v. John Doe Corp. 493 U.S. 146, 151 (1989). The statutes purpose is to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny. Id. Citing Dept of Air Force v. Rose, 425 U.S. 352, 361 (1976). Therefore, the FOIA requires every federal entity to make requested records promptly available to any
The standards upon which the court evaluates the cross motions for summary judgment do not change simply because the parties present cross-motions.J&J Sports Productions, Inc. V. Phelan, 2009 WL 3748107 (E.D. Cal. 2009) quoting Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991.) MEMORANDUM DECISION AND ORDER - 6
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person. Id. Citing 5 U.S.C. 552(a)(3)(A). This requirement does not apply if the information requested falls into one of nine exemptions included in the FOIA. 5 U.S.C. 552(b). The burden is upon the government agency to establish that a given document is exempt from disclosure.6 Van Bourg, Allen, Weiberg, & Roger v. National Labor Relations Board, 728 F.2d 1270, 1272 (9th Cir. 1984). In this case, Defendants contend that 5 U.S.C. 552(b)(6) or Exemption 6, applies to some of the information requested by Plaintiffs. However, prior to addressing Defendants assertion that Exemption 6 supported their withholding of certain information, the Court will first address Plaintiffs argument that the Court should not consider all of Defendants arguments in their Response to Plaintiffs Motion for Summary Judgment and in Support of Defendants Motion for Summary Judgment. (Docket No. 11-1.) A. BLMs new arguments First, the Court will discuss Plaintiffs argument that the Court should consider only the reasons relied upon by the BLM in their denial letter7 when addressing the

This standard remains the same where, as here, the question comes before the court on cross motions for summary judgment. See Fort Hall Landowners Alliance v. Bureau of Indian Affairs, et al. Case No. CIV 99-52-E-BLW, Memorandum Decision and Order (Docket No. 135) (D. Idaho, March 17, 2000) citing Maricopa Audubon Society v. U.S. Forest Service, 108 F.3d 1082, 1085 (9 th Cir. 1997). Plaintiffs identified a letter sent by Darrell R. Strayhorn, FOIA & Privacy Act Appeals Officer at the Department of the Interior, to Mark Salvo of WildEarth Guardians dated September 30, 2008, as the denial letter that Plaintiffs contend Defendants must base their position on. This letter denied the Plaintiffs request pursuant to Exemption 6 and attached a July 12, 2005 letter response that the Department issued on a prior appeal by the WildEarth Guardians (formerly known as the Forest Guardians) after denying a MEMORANDUM DECISION AND ORDER - 7
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applicability of Exemption 6 to the case at hand. Plaintiffs argue that the Courts review is limited to the record before the agency,8 contending that only the reasons listed in the BLMs denial letter may be used to oppose the Plaintiffs motion for summary judgment and to support the Defendants cross motion. Specifically, Plaintiffs contend that the Court should not consider BLMs argument that, because the withheld information relates to individuals, family-owned business and closely held entities, Exemption 6 applies. Instead, Plaintiffs argue that the Court should consider only the sole basis Plaintiffs claim was asserted by Defendants for invoking Exemption 6, that the permittees were not commercial operators and they could easily be grazing for personal and subsistence use. (Plaintiffs Reply/Response, p. 4-5, Docket No. 17 citing Oregon Natural Desert Association v. United States Dept of Interior (ONDA), 24 F.Supp. 2d 1088, 1091) (D. Or. 1988). Defendants respond that they consistently have maintained that the names, addresses, and other contact information for the individual permittees are exempt from disclosure under Exemption 6. Second, Defendants contend that Ninth Circuit case law does not limit judicial review to the justification for withholding documents that was originally relied upon by the agency. (Defendants Reply p. 5, Docket No. 25.) In support
previous FOIA request that sought the same information. (Answer Exh. D, Docket No. 44.) However, the statute cited by Plaintiffs, 5 U.S.C. 552 (a)(4)(A)(vii), as well as both ONDA and District Judge Winmills 1997 decision specifically restrict review of the record only in the context of fee waivers. MEMORANDUM DECISION AND ORDER - 8
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of their argument, Defendants cite Young v. CIA which held that an agency does not waive FOIA exemptions by not raising them during the administrative process. 972 F.2d 536, 538-9 (4th Cir. 1992) citing Dublin v. Dept of the Treasury, 555 F.Supp. 408, 412 (N.D. Ga. 1981) affd 697 F.2d 1093 (11th Cir. 1983). In light of this holding allowing an agency to belatedly claim a new FOIA exemption, Defendants argue that Plaintiffs cannot logically maintain that an agency should be barred from clarifying, enlarging or expanding upon the rationale that was previously offered in support of its decision to withhold documents. (Defendants Reply p. 5, Docket No. 25.) Despite Plaintiffs arguments, the Court finds that the Defendants letter denying the appeal (Answer Exh. D, Docket No. 4-4) sufficiently contains the arguments relied upon by Defendants in their cross motion for summary judgment. The 2005 letter attached to the 2008 letter from Darrel R. Strayhorn to Plaintiffs identifies issues virtually identical to those Plaintiffs are raising in this lawsuit, including the BLMs decision to withhold pursuant to FOIA exemption (6), the names and contact information (i.e. street or P.O. Box addresses, telephone numbers, and four -digit zip codes) of federal grazing permit holders (permittees) who are identified in the Rangeland Administration System (RAS) only by the name of an individual and the BLMs decision to withhold the contact information of permittees who are identified in the RAS as closely held corporations and family owned business operators, i.e. permittees who are identified by an individuals name with a public designation (such as Inc., LLC, or Co.) or whose names include the term Ranch or Farm and are self-identified on their grazing

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applications as corporations or groups. (Answer Exh. D at p. 3, Docket No. 4-4.) The 2005 letter explains how the Defendants believe that Exemption 6 covers the information listed above for both individuals and closely held corporations or family owned businesses. Therefore, the Court finds that, even if the Court should review only what was included in the denial letter by the Defendants, here the denial letter includes the argument that family owned and closely held businesses have a privacy interest in their addresses that protects that information from disclosure under Exemption 6. B. Application of Exemption 6 Defendants argue that Exemption 6 applies to the information withheld from Plaintiffs FOIA request, including the names and addresses of individuals who possess grazing permits (category 2b) as well as the addresses of closely held entities or family owned businesses who possess grazing permits (category 2a). Exemption 6 provides that government entities may withhold information from personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Id. The term similar files has been interpreted broadly, U.S. Dept of State v. Washington Post. Co., 456 U.S. 595, 600 (1982), to include government records containing information that applies to particular individuals. Van Bourg, Allen, Weinerg & Roger v. NLRB, 728 F2d 1270, 1273 (9th Cir. 1984). If the requested information meets the similar files requirement, the court must next consider whether disclosure of the requested information constitutes a clearly unwarranted invasion of the individuals personal privacy. 5 U.S.C. 552(b)(6). To do
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so, the court must balance the public interest in disclosure against the interest Congress intended the exemption to protect. United States Dept of Defense v. Federal Labor Relations Authority, 510 US 487, 489 (1994). The requirement of a clearly unwarranted invasion of privacy instructs [courts] to tilt the balance of disclosure interests against privacy interests in favor of disclosure. United Assn of Journeymen & Apprentices of the Plumbing & Pipefitting Indus., Local 598 v. Dept of the Army, Corps of Engrs, 841 F.2d 1459, 1464 (9th Cir. 1988). 1. Similar files requirement To determine whether Exemption 6 applies, the Court first must decide whether the information requested falls under the broadly construed similar files requirement in 5 U.S.C. 552(b)(6). Although this requirement is broadly construed, it does not protect privacy interests of business or commercial enterprises. Multi Ag Media LLC v. Dept of Agriculture, 515 F.3d 1224, 1228 (D.C. Cir. 2008) (It is clear businesses themselves do not have protected privacy interests under Exemption 6.) However, government records containing information that applies to particular individuals satisfy the threshold test of Exemption 6. Bourg, Allen, Weinberg & Roger v. NLRB, 728 F.2d 1270, 1273 (9th Cir. 1984) (emphasis added). Lists of names and addresses meet this definition. Id. at 1272. Plaintiffs contend that Defendants have not demonstrated that the name and address information withheld for individual permittees meets the similar files requirement, because Plaintiffs are seeking only the names and business mailing

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Exemption 6.12 (Defendants Response p. 10, Docket No. 11-1.) Defendants argue that courts have recognized a privacy interest in family owned or closely held business information where the information can be readily associated with a particular individual. See Campaign for Family Farms v. Glickman, 200 F.3d 1180 (8th Cir. 2000). Although the facts of the Glickman case are distinguishable, the Eighth Circuit held that an overly technical distinction between individuals acting in a purely private capacity and those acting in an entrepreneurial capacity fails to serve the exemptions purpose of protecting the privacy of individuals. Id.; see also BURT A. BRAVERMAN & FRANCES J. CHETWYND, Information Law 10-4.13 (1985) ([I]nformation about closely held corporations or sole proprietorships may be protected if the information can be identified as applying to a particular individual.). In support of their argument that Exemption 6 should not apply to the addresses of family owned or closely held entities, Plaintiffs rely heavily on decisions rendered in Oregon Natural Desert Association v. United States Dept of Interior, 24 F.Supp. 2d 1088 (D. Or. 1988) and Washington Post Co. v. U.S. Dept of Agriculture, 943 F.Supp. 31 (D.C. 1991). However, in both of these cases, the courts balanced any minimal privacy interest against the public interest under Exemption 6. Therefore, as explained below, the Court does not find persuasive Plaintiffs argument that these cases preclude the application of the balancing test in this situation.
Defendants do not contest the conclusion that corporations or business entities have no privacy interests in their addresses and other contact information. MEMORANDUM DECISION AND ORDER - 14
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In ONDA, the plaintiff sought names of individuals who trespassed with cattle onto a land allotment. The District of Oregon concluded, after applying the balancing test, that the balance weighed in favor of disclosure of the names because the individuals had admitted to violating the law, the plaintiffs had no other way to access the requested information, and the public needed the information to determine how the government was enforcing and punishing the violation of land management laws. ONDA, 24 F. Supp. 2d 1088. In Washington Post, the plaintiff requested the names, addresses and amounts paid to individuals and business entities that received cotton subsidies. The court found that the cotton farmers had a minimal privacy interest in the requested information because it was generic and revealed no damaging or sensitive information about the individuals receiving subsidies. The court weighed this minimal privacy interest against the substantial public interest in shedding light on allegations of fraud and conflicts of interest that were supported by government reports and investigation, concluding that the information should be disclosed. Washington Post, 943 F.Supp. At 37. Further, the court in Multi Ag Media held:.where business records reveal financial information easily traceable to an individual, disclosing those records jeopardizes a personal privacy interest that Exemption 6 protects. We thus hold that Exemption 6 applies to financial information in business records when the business is individually owned or closely held, and the records would necessarily reveal at least a portion of the owners personal finances. 515 F.3d at 1228-1229 quoting Kleppe, 547 F.2d at 685.

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invasion of privacy is warranted cannot turn on the purposes for which the request for information is made.) The Court will address the privacy interest first. a. Privacy interest The Supreme Court of the United States and the Court of Appeals for the Ninth Circuit have held that some nontrivial privacy interest is sufficient to justify the withholding of information under Exemption 6 unless the public interest in disclosure is sufficient to outweigh it. Forest Service Employees for Envtl. Ethics v. United States Forest Service, 524 F.3d 1021, 1027 (9th Cir. 2008) quoting Dept of Defense, 510 U.S. at 501. Courts have recognized that individuals have a privacy interest in avoiding the unlimited disclosure of their names and addresses. National Assn of Home Builders v. Norton, 309 F.3d 26, 35 (D.C. Cir. 2003). Further, the Supreme Court of the United States has evinced a reluctance in the FOIA context to disparage the privacy of the home which is accorded special consideration in our Constitution, laws, and traditions. Dept. of Defense, 510 U.S. at 501. However, the Supreme Court also has recognized that the disclosure of names and addresses is not always a significant threat to the privacy of the individual on the list. U.S. Dept of State v. Ray, 502 U.S. 164, 177 n. 12 (1991). Insteadwhether disclosure of a list of names is a significant or de minimis threat depends upon the characteristics revealed by virtue of being on the particular list and the consequences likely to ensue. Id. quoting National Assn of Retired Federal Employees v. Horner, 879 F.2d 873, 877 (U.S. App. D.C. 1989) cert denied 494 U.S. 1079 (1991). The party seeking to invoke the
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exception may not rely on the speculative potential of a privacy invasion without any degree of likelihood. Home Builders, 309 F.3d at 385. Based on the foregoing, the Court finds that the category 2b individual permittees generally have a non-trivial privacy interest in their names and home addresses.14 However, the severity of the threat to the privacy interest as it relates to the balancing test depends upon the characteristics revealed by virtue of being on the particular list and the consequences likely to ensue. Here, Plaintiffs argue that the only characteristic revealed by being on the list is that each permittee is engaged in raising and grazing livestock on BLM managed land and that this information would not reveal any damaging, embarrassing, or specific financial information about the permittees. In support of this contention, Plaintiffs cite several cases where disclosure of names and addresses was not permitted based on the nature of the consequences associated with disclosure or the nature of the personal information at stake.15 Defendants admit that, if considered alone, the names and addresses of individual

The amount or size of the individuals assets is irrelevant to a determination of privacy interest. As noted in Multi Media Ag, the disclosure of an individuals financial information is not less protected under Exemption 6 simply because his assets are significant. 515 F.3d at 1229. MEMORANDUM DECISION AND ORDER - 20
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1230. The situation here is similar. Defendants have not demonstrated how or how often inferences might occur with respect to an individuals personal wealth, and how specific these inferences could be due to unknown variables and other factors regarding the correlation between size of herd and personal financial wealth. Further, the Court notes that similar generic information, including names and addresses, has been ordered to be released in other cases. For example, the court in Washington Post held:.the nature of the list sought by plaintiff in this case does not create the same sort of personal privacy concerns or invite the kind of unwanted intrusions that would justify nondisclosure. The only individualized information that would be ascertainable from the release of the list is that a particular individual grows cotton, the addresses of the farm where the cotton is grown and where the subsidy is received, and how much of a subsidy that cotton farmer received in 1993. 943 F.Supp at 34. Further, the court in Washington Post found, precisely because the list is so large and the information is so generic that the individual privacy interests are so small. Id. citing Kurzon v. Dept of Health and Human Services, 649 F.2d 65, 69 (1st Cir. 1981). The instant case is comparable. As noted by Plaintiffs, the BLM is authorized to issue permits and leases allowing grazing on nearly 160 million acres of public lands, which it accomplishes by issuing nearly 18,000 permits. (Plaintiffs Opening Brief, p. 18, Docket No. 7-2.) Based on the foregoing, the Court finds that any privacy interest the category 2b individual permittees have in their names and addresses is minimal. Further, the Court
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finds that the closely held entities and family owned business permittees in category 2a have an even smaller privacy interest in disclosure of their addresses due to the speculative nature of the extent of the disclosures and the consequences of such a disclosure. However, the Court finds that, because both the category 2a and 2b permittees have more than a non-trivial privacy interest in the requested information, the Court should proceed to balance this minimal interest against the public interest in disclosure.17 b. Public interest When applying the balancing test, the only relevant public interest the Court is directed to consider is how disclosure would contribute significantly to public understanding of the operations or activities of the government. Dept of Defense, 510 U.S. at 495 quoting Reporters Comm. 489 U.S. at 775. Public interest is substantial if it sheds light on an agencys performance of its statutory duties. Id. at 496.

Plaintiffs contend that the privacy interest is trivial due to the BLMs previous disclosure of some of the same information to other groups. (Plaintiffs Opening Brief, Docket No. 7-2.) Specifically, Plaintiffs argue that information released in response to one FOIA request must be released to the public at large and therefore BLM cannot withhold the information from Plaintiffs. Forest Service Employees for Envtl. Ethics, 524 F.3d 1021. Defendants contend that this argument essentially constitutes a waiver argument and has no merit. The Court agrees. Other courts generally have upheld the invocation of Exemption 6 even after the same information has been released to others. See Sherman v. U.S. Dept of the Army 244 F.3d 357, 363-4 (5 th Cir. 2001) (.only the individual whose informational interests are protected by exemption 6 can effect a waiver of those privacy interests when they are threatened by a FOIA request. For that reason, we do not accept [the plaintiffs] argument that [the government] has waived its authority to implement exemption 6.) See also The Lakin Law Firm v. Federal Trade Commn, 352 F.3d 1122, 1124 (7th Cir. 2003) (the FTC cannot waive individuals consumers privacy interests - whatever it does or fails to do.)
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Plaintiffs contend that disclosure of the withheld information is necessary to more fully understand the scope of the BLMs grazing program. Specifically, Plaintiffs contend that, without the names and addresses of the category 2b permittees and the addresses of the category 2a permittees, it is not possible to know the identities of the persons who hold BLM issued grazing permits, how many grazing authorizations are held by each permittee, how may permittees are grazing on a particular allotment, and whether the BLM is complying with its regulatory requirements to manage public lands grazing and only issuing permits to qualified applicants. (Salvo Decl. 5-8. 11, and 13, Docket No. 17-1.) Specifically, Plaintiffs contend that the authorization number is an insufficient surrogate for the name and address of any permittee who has more than one authorization to graze public land because, without the name and addresses of the permittees, there is no way to determine how many grazing authorizations are associated with a particular permittee within or among multiple BLM field offices, districts or states. (Salvo Decl 8, Docket No. 17-1.) Defendants disagree, arguing that the additional information would not shed light on the BLMs management of its grazing program any more than the information that is currently available to the public. Specifically, Defendants argue that an understanding of the true scope of the program could be accomplished by release of only the names of the permittees and that release of addresses would be of no additional value. In support of this contention, Defendants cite Chief District Judge Winmills decision in State of Idaho v. United States Forest Service, CV98-230-S-BLW, Docket No. 20 (D. Idaho, Dec. 9.

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Defendants also contend that the public can determine the relationship between a permittee and multiple grazing authorizations from each permittees grazing application. However, this application form does not request the permittee to disclose the authorization numbers associated with the permittee. (Salvo Decl. 19, Docket No. 17-1; Cooley Decl. Exh. 5, Docket No. 11-4.) Therefore, the Court finds that the only way to determine the number of authorization numbers associated with each permittee is through release of the names and addresses of the permittees in categories 2a and 2b. Further, Defendants argue the information requested by Plaintiffs and the conclusions the Plaintiffs seek to draw from the information would shed light on the operations of the permittee rather than on the operations of the BLM, because there are no restrictions on the number of grazing permits that any one applicant may hold, no limits on the number or the size of grazing applications, and no limits on the number of allotments that may be used by a given permittee at any point in time. (See Second Cooley Decl. 7, Docket No. 25-1.) Although the Court acknowledges that there are no restrictions on the number or size of grazing permits that each permittee may hold, the Court finds that there is a substantial public interest in understanding the scope of the grazing and rangeland program, particularly in light of the environmental impacts associated with grazing and the amount of tax dollars spent on the grazing program itself. Understanding the scope includes knowing how many individuals or entities actually graze cattle on public lands, as well as the size and scope of their operations. Because the only way to determine this information is from release and cross referencing of the
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requested information, the Court finds that a substantial public interest exists.20 With respect to the qualified applicants issue, Plaintiffs contend that determining which authorization numbers are associated with each permittee is necessary for the public to be able to monitor and determine whether the BLM is complying with the requirement that an applicant have a satisfactory record of performance or has substantial compliance with the terms and conditions of the existing Federal grazing permit or lease for which renewal is sought, and with the rules and regulations applicable to the permit or lease. 43 C.F.R. 4110.1(b). Plaintiffs contend, that without knowing the extent of a permittees grazing authorizations, the public cannot cross reference the permittee with other public information concerning compliance with permit terms and conditions, including trespass notices, notices of unauthorized use, and other prohibited acts under 43 C.F.R. 4140 and 4150. Plaintiffs also argue that public interest in this information is very high due to the documented environmental impacts of grazing and the amount of tax dollars spent to manage private livestock grazing each year. (Salvo Decl., Docket No. 17-1.) Further, Plaintiffs contend that this interest is evidenced by the numerous reports and news articles produced on the subject several of which are attached as exhibits to Mr. Salvos declaration. (Salvo Decl., Docket No. 17-1.) Defendants respond that Plaintiffs allegations that the BLM may not be

Defendants argued that the permitting process for one region may not consider whether the applicant is in compliance with regulations in a different region. However, without the requested information, the public has incomplete information regarding the agencys action in approving the applications and therefore cannot reasonably determine whether to challenge or accept that process. MEMORANDUM DECISION AND ORDER - 26
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complying with its duty to give permits to only qualified applicants do not rise to the level of a cognizable public interest because Plaintiffs have offered no evidence of impropriety. See Favish, 541 U.S. at 174. However, Plaintiffs have identified evidence that, with a permittees name and address the Plaintiffs and the public can determine if the permittee has grazing permits on other allotments that have been classified as being ecologically damaged. (Salvo Decl. 11-12, Docket No. 17-1.) The Court finds this situation similar to that in State of Idaho where the court found a legitimate public interest in knowing whether permits are being granted to those with a past history of environmental abuses. State of Idaho, CV 97-230-BLW at 6. Based on the foregoing, the Court finds that providing the requested information would allow the public to better understand the scope of the BLMs grazing program. Therefore, the Court finds that the public interest in disclosing the requested names and addresses of individuals as well as the addresses of the closely held entities and family owned businesses is substantial. c. Balancing privacy interest with substantial public interest Given the Defendants insufficient showing that release of the addresses of category 2a permittees and the names and addresses of category 2b permittees would allow the public to draw inferences about some of the grazing permittees financial circumstances, and considering the presumption in favor of disclosure, the Court finds the public interest in monitoring the BLMs rangeland program outweighs the minimal privacy interests held by both the category 2a and 2b permittees. Therefore, the Court

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concludes that disclosure of the names and addresses of the individual permittees (category 2b) as well as addresses of the closely held entities or family owned businesses (category 2a) would not constitute a clearly unwarranted invasion of personal privacy, and that the Defendants reliance on Exemption 6 for withholding the information is not justified. Plaintiffs Motion for Summary Judgment on their Freedom of Information Act Claim will be granted. ORDER Based on the foregoing, the Court being otherwise fully advised in the premises, IT IS HEREBY ORDERED that: 1) Plaintiffs Motion for Summary Judgment on the Freedom of Information Act Claim (Docket No. 7) is GRANTED. 2) Defendants Motion for Summary Judgment (Docket No. 11) is DENIED.
DATED: September 13, 2010
Honorable Candy W. Dale Chief United States Magistrate Judge
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Dead Tree Management in British Columbia1
Jeff Stone,2 John Parminter,3 Andr Arsenault,4 Todd Manning,5 Nancy Densmore,6 Gerry Davis,7 and Andy MacKinnon8

Abstract

We highlight the historical development, current legislation, and operational practices regarding dead tree management in British Columbia (BC), Canada. BCs Forest Practices Code, which regulates forest management, enables resource managers to leave wildlife tree patches in harvested areas, and to consider the retention of coarse woody debris (CWD). At the same time, occupational health and safety regulations govern the retention of potentially dangerous trees in forestry operations, and current CWD policy enables the management of CWD only within harvesting utilization standards. Managing for the ecological values of dead trees without impacting timber supply is a challenge facing BCs forest managers.

Introduction

British Columbia (BC) is Canadas most ecologically and biologically diverse province, with areas of extensive alpine, rangeland, and forest. Ownership of the provinces 95.2 million ha is predominantly public (94.7 percent). These lands are administered for many purposes including fish, wildlife, wilderness, recreation, heritage, water, minerals, range, and timber. The Ministry of Forests (MOF) manages, in cooperation with other provincial and Federal agencies, the timber, range, and recreation resources of the unreserved public forest land (about 59 million ha). From these lands about 65-70 million cubic meters of wood are harvested annually (Ministry of Forests 1998). The predominant (about 90 percent by area) silvicultural system is clearcutting or clearcutting with reserves of individual or clumps of trees. The ecological values of dead trees are well recognized by the managers of BCs forests. Wildlife trees (standing dead trees and live defective trees) are a vital component of biodiversity, providing critical habitat for 80 species of birds,
An abbreviated version of this paper was presented at the Symposium on the Ecology and Management of Dead Wood in Western Forests, November 2-4, 1999, Reno, Nevada. This paper reflects government organization, legislation, or policy as of December 1999. 2 Timber Supply Analyst, Ministry of Forests, Kamloops Forest Region, 515 Columbia St., Kamloops, BC V2G 2T7 Canada (e-mail: jeff.stone@gems7.gov.bc.ca) 3 Research Ecologist, Ministry of Forests, Research Branch, P.O. Box 9519 Stn. Prov. Govt., Victoria, BC V8W 9C2 Canada (e-mail: john.parminter@gems7.gov.bc.ca) 4 Plant Ecologist, Ministry of Forests, Kamloops Forest Region, 515 Columbia St., Kamloops, BC V2G 2T7 Canada (e-mail: andre.arsenault@gems8.gov.bc.ca) 5 Habitat Forester, Manning, Cooper & Associates, 5148 William Head Rd., Victoria, BC V9C 4H5 Canada (e-mail: tmanning@islandnet.com) 6 Silviculture Planning Forester, Ministry of Forests, Forest Practices Branch, P.O. Box 9513 Stn. Prov. Govt., Victoria, BC V8W 9C2 Canada (e-mail: nancy.densmore@gems2.gov.bc.ca) Janes Rd., Nanaimo, BC V9X 1P3 Canada (e-mail: davismoffat@shaw.ca) 8 Manager Ecosystems Conservation, Ministry of Sustainable Resource Management, P.O. Box 9373 Stn. Prov. Govt., Victoria, BC V8W 9M3 Canada (e-mail: andy.mackinnon@gems1.gov.bc.ca)
USDA Forest Service Gen. Tech. Rep. PSW-GTR-181. 2002.
Dead Tree Management in British ColumbiaStone, Parminter, Arsenault, Manning, Densmore, Davis, and MacKinnon
mammals and amphibians in BC, as well as habitat for a myriad of invertebrate and fungal organisms (Lofroth 1998, Machmer and Steeger 1995). Coarse woody debris (CWD; fallen dead trees) has similar critical roles for many species of plants (especially bryophytes and lichens), fungi, invertebrates, and small mammals (Harmon and others 1986, Stevens 1997). The value of dead wood, particularly for wildlife trees, is acknowledged in forest management in BC through regulations issued under legislative acts. In this paper, we outline the history and status as of December 1999 of the legislation and management of dead wood on crown lands in BC.
History of Forest Management and the Dead Wood Resource
Forests provided important resources to the First Nations of BC in terms of housing, transportation, clothing, household goods, fuel, and food. Dead wood was valued for a variety of purposes. Turner (1998) identified specific uses of dead wood that include cottonwood (Populus balsamifera ssp. trichocarpa) for the hearth and drill for creating friction fires, rotten trembling aspen (P. tremuloides) as an absorbent material, decayed wood for smudge for tanning hides, and knots left in rotten western hemlock (Tsuga heterophylla) and spruce (Picea spp.) logs for curved fish hooks. Little has been summarized specifically on the management of dead wood by First Nations, whose population was likely between 200,000 and 300,000 in the mid-1700s (Muckle 1998). Undoubtedly forest management did occur, given the recognition of resource ownership by many First Nations. Prescribed burning was carried out for a number of purposesprimarily to create and/or maintain certain vegetative types and to clear the land around habitations. Single burns would add to the dead wood resource, while repeated burning would reduce levels of both standing and downed material. Commercial forest harvesting in BC began in earnest in the late 1800s. It was concentrated in the valuable and easily-accessible timber of the west coast and at lower elevations of major valleys in the interior of BC. Impacts on the forest were generally low because only the more valuable and easily-transported trees were cut. Undesirable species may have been felled to provide a cushion and reduce breakage of valuable trees felled subsequently. A legacy of high stumps was left due to the use of springboards to cut above butt flares. Additionally, the lower portions of felled trees were sometimes too massive to move and so were left in place. This increased the proportion of large diameter, fresh CWD in forests. The use of high-lead yarding and extensive railway logging networks began just before World War I, ushering in clearcutting as a harvesting system. At the same time, slashburning was promoted by the BC Forest Service to reduce the fire hazard on logged coastal sites. The application of fire was deemed appropriate to remove fuels and create a seedbed amenable to natural regeneration. Some CWD would be removed by these controlled burns, but given that partial cutting (essentially highgrading) was still common, a supply of fire-killed standing dead trees was created at the same time. Fire prevention has been encouraged since 1905, when fire wardens were first appointed. Early controlled burning reduced logging slash loadings but escaped burns increased dead wood resources. Human-caused wildfires have done likewise. Effective fire suppression began in the late 1950s due to improved fire detection,

technological advancements, such as air tankers and lightweight fire pumps. While the number of wildfires has increased since the late 1950s (from an average of 1,583 per year in the 1940s and 1950s to 2,493 in the 1980s and 1990s), the area burned has dramatically declined. Total area burned for the respective periods was 3,000,462 ha and 1,265,573 ha, as average fire size decreased from 94 to 25 ha. Artificial reforestation was initiated in coastal BC in 1939 and in the Interior in 1950. To reduce the fire hazard and improve safety for planting crews, snags were felled on parts of Vancouver Island as early as 1942. In 1946 the Forest Act was amended to make snag falling compulsory concurrent with logging operations in the Vancouver Forest District (Statutes of British Columbia 1946). All standing dead trees taller than 10 feet were felled, that being the height to which a man could apply dirt with a shovel to extinguish a burning snag. By 1947, changing logging methods, closer utilization and salvage operations had reduced the amount of logging residue. A 1943 pulpwood salvage study found that salvable wood accounted for 19 percent of the total utilizable stand volume, the rest having been taken in the first pass for sawlog production (MacBean 1946). Slash burning became less common on the Coast and was replaced either by spot burning or no burning at all. This increased the amount of remaining medium-sized CWD. Snag falling continued, largely as a fire prevention and safety measure, resulting in most dead wood being on the ground and little left standing. Environmental concerns became more prominent in the mid-1960s and early 1970s. Resource management guidelines dealt primarily with wildlife habitat, soil conservation, stream protection, riparian zone management, silvicultural systems, cutblock size and arrangement and road location. The general guidelines did not address site-specific issues such as CWD or wildlife trees, which had not yet been identified as items requiring consideration and management. Indeed, in 1978 the responsibility to fall snags progressively with the felling of adjacent live timber in all forest operations was entrenched in the Workers Compensation Board (WCB) Industrial Health and Safety Regulations (Workers Compensation Board of British Columbia 1998). The Ministry of Forests Act of January 1, 1979 instructed the Ministry of Forests to integrate and coordinate the management of timber, range, fisheries, wildlife, water, outdoor recreation and other natural resource values (Revised Statutes of British Columbia 1979). Integrated use involved altering harvesting prescriptions to provide benefits to established resource users, mitigating the effects of harvesting, and facilitating change in forest conditions to support new uses. The main variables were dispersal of activities, size of cutblocks, time interval between the sequential removal of adjacent blocks and location of roads and other infrastructure (Ministry of Forests 1984). All of these are landscape level issues and no provisions specifically addressed the conservation of dead trees. General recognition of the ecological importance of dead trees started to emerge in BC in 1979, following the lead of research and management in the U.S. Pacific Northwest. In February 1979, Kamloops Forest Ranger Jack Weinard initiated a process he called the rule of thumb for snag management in the Kamloops Ranger District (Stevenson 1999). In the 1980s, the Ministry of Forests and Ministry of Environment jointly developed a wildlife tree signing program. This involved placement of Wildlife Tree: Do Not Disturb signs on selected wildlife trees (Backhouse and Lousier 1991). In 1985 the BC Wildlife Tree Committee, a multi-

agency group, was formed to consider the conservation and management of wildlife treesparticularly as related to their safe maintenance within forest operations (Manning 1995). This committee was instrumental in raising awareness of the need for legislation, regulations, guidelines and the importance of management of the dead tree resource. In the 1990s the importance of dead trees was recognized through significant policy, management, and legislative change. A problem analysis by Backhouse and Lousier (1991) highlighted the importance of wildlife trees and the need for changes in wildlife tree management. The initiatives of the multi-agency BC Wildlife Tree Committee began to take root. Through interpretation of the term hazardous, the WCB began to recognize that not all standing dead trees were dangerous and that standing dead trees had ecological value. Wildlife/danger tree assessment procedures and training programs were initiated (Manning 2002). Management for wildlife trees began to appear in regional and provincial guidelines. Initiatives for CWD have lagged behind those of wildlife trees in BC. In fact, the Ministry of Forests initiated and still has in place a strict residue and waste policy as part of its utilization standards (Caza 1993). This policy requires licensees to remove all wood above certain size and soundness limits while harvesting and penalizes them if they do not.
Current Legislation and Regulations
In 1995, BC introduced major changes to the legislation affecting forest resource management with the implementation of the Forest Practices Code of British Columbia Act. The Forest Practices Code establishes mandatory requirements for planning and forest practices, sets enforcement and penalty provisions, and specifies administrative arrangements. The regulations under the act lay out the forest practices that apply province-wide, including the planning framework. This act applies to all crown lands outside of protected areas, or about 80 percent of the land base in BC (Fenger 1995). Guidance for planning is provided in a number of ways, including forest practices guidebooks and various levels of policy. This guidance is not normally binding until it is written into a higher level plan or operational plan (see http://www.for.gov.bc.ca/tasb/legsregs/fpc/hilevel/hlp-toc.htm for a detailed outline of the hierarchy under the Forest Practices Code). Landscape Unit Planning is the higher level process that sets the legal requirements for wildlife tree retention and old-growth management. Landscape Units usually cover a watershed or a series of watersheds and average about 70,000 ha. Other higher level plans (e.g., Local Resource Management Plans that address a region with many landscape units) may also provide direction on dead tree management. Further guidance for wildlife trees and CWD is found in Forest Practices Code documents, such as the Biodiversity Guidebook, Riparian Management Area Guidebook, and the Identified Wildlife Management Strategy (Ministry of Forests and BC Environment 1995a, 1995b, 1999). The importance of wildlife trees is well recognized within Forest Practices Code regulations and guidelines. The Forest Practices Code of British Columbia Act and associated regulations provide the framework for wildlife tree management by ensuring that wildlife tree objectives are stated, that wildlife tree and other reserves

are clearly mapped within operational plans and marked in the field, and that penalties for non-compliance are in place (table 1). Further, changes made in April 1998 to the WCB Occupational Health and Safety Regulations now enable greater retention of standing dead trees that do not pose a safety hazard (table 2).
Table 1Forest Practices Code of British Columbia Act and associated regulations that relate to dead trees (the act and regulations are available at http://www.for. gov.bc.ca/tasb/legsregs/comptoc.htm).
Act or Regulation Forest Practices Code of British Columbia Act What 12. A silviculture prescription must comply with the following: (a) it must include, for the area under the prescription, (i) long term management objectives set out (A) in a Forest Development Plan (ii) a description of the silvicultural system and post harvesting stand structure and site condition 41(1)(b) the district manager is satisfied that the plan or amendment will adequately manage and conserve the forest resources of the area to which it applies. 41(2) before approving a plan or amendment the district manager may require the holder to submit information that the district manager reasonably requires in order to determine if the plan or amendment meets the requirements of subsection (1) Section 1 - Definitions: wildlife tree means a tree or group of trees that are identified in an operational plan to provide present or future wildlife habitat 18(1) A person must ensure that a forest development plan includes the following information for the area under the plan: (u) the general objectives respecting the target levels of retention for coarse woody debris and wildlife trees 32. A person must ensure that a logging plan contains a map of the area under the plan illustrating the topography and (b) the approximate location of (i) mappable reserves including wildlife trees and wildlife tree patches 39(2) A person must ensure, for the area under the silviculture prescription, that the silviculture prescription describes the location of the following: (d) mappable reserves, including wildlife tree patches and riparian reserve zones 39(3) A person must ensure, for the area under the silvicultural system, that the prescription does the following (c) describes the silvicultural system to be used, including the species and function of any trees left standing. (m) describes (i) the volume and range of piece sizes of coarse woody debris, if any, necessary or required to accommodate any objectives for coarse woody debris established in a forest development plan and that are applicable to the area under the prescription 50(2) A stand management prescription must (b) contain a map illustrating (ii) for the area under and adjacent to the prescription, the following items: (D) the approximate location of mappable reserve areas, including wildlife tree patches 3(1) A person carrying out harvesting must mark in the field, before commencement of harvesting, the location of all wildlife trees or wildlife tree patches that are (a) 0.25 hectares or more, unless exempted by the district manager, and (b) less that 0.25 hectares, if required by the district manager (2) A person required to mark a wildlife tree or wildlife tree patch, under subsection (1) must ensure that the marking is visible during harvesting and is marked in a manner that will remain visible for at least 6 months after the completion of harvesting 28. A person must not carry out a minor salvage operation in any of the following areas unless harvesting the area has been approved in a silviculture prescription or the person has received in writing from the district manager the terms and conditions that apply to the carrying out of the minor salvage operation: (c) wildlife tree patches; Harvesting or damaging trees that are required by the silviculture prescription to be left standing or undamaged$5000. Failure to mark in the field the location of wildlife trees or wildlife tree patches, before commencement of harvesting operations$5000

Operational Planning Regulation
Timber Harvesting Practices Regulation
Timber Harvesting Practices Regulation (Administrative Remedies Regulations Schedule)
Table 2Workers Compensation Board Occupational Health and Safety Regulation as related to dead trees (these regulations can be viewed at http://www.worksafebc.com/policy/ regs/contents.asp).
Act or Regulation Workers Compensation Board Occupational Health and Safety Regulation What 26.11(1) If work in a forestry operation will expose a worker to a dangerous tree, the tree must be removed. (2) Trees that will interfere with rig-up, the movement of lines and equipment, or that could be pushed or pulled into the work area must be removed. (3) Saplings over 6 m (20 ft) tall, in an area where cable logging is being done, must be removed before yarding commences. (4) If it is not practicable to comply with subsection (3), such as during partial cutting operations, alternative work methods or procedures which minimize the risk to workers may be used, and the work must be directed by a supervisor who has, as far as practicable, controlled the danger to any worker. (5) Any dangerous tree, regardless of height, located within an active hand falling or cable logging operation must not interfere with safe falling or yarding practices, and if it does interfere, it must be removed. (6) A dangerous tree in a forestry operation may be left standing during operations other than construction or harvesting if (a) no significant ground vibrations are likely to be produced, (b) no work will be done within reach of the tree when wind speed exceeds 20 km/h (12mph), and (c) tree assessor who has completed a training program acceptable to the board determines that the tree will not be dangerous to workers during the planned activity (7) If tree planting is to be done in an area that has more than 500 dangerous trees per hectare, the board may approve a request to work without removing all the dangerous trees if, before work commences, (a) a representative sample of the dangerous trees is assessed by a tree assessor who has completed a training program acceptable to the board, (b) any findings of the assessment as to the removal of dangerous trees or other trees are implemented, and (c) no silviculture is done within reach of dangerous trees when wind speed exceeds 20km/h (12 mph).

The importance of CWD is also clearly recognized within the Forest Practices Code regulations but, unlike wildlife trees, detailed provincial CWD management guidelines are lacking. References to CWD management within the Biodiversity Guidebook and the Managing Identified Wildlife Guidebook are less specific than references to wildlife trees. Several interim CWD guidelines have been drafted, but consensus has not been reached (see http://www.for.gov.bc.ca/research/deadwood/ Dtgui.htm#BC for the current short-term strategy). Concerns not only also exist where specific CWD volume retention targets may conflict with present timber utilization standards as expressed in Ministry of Forests policy, but volume retention targets also conflict with wood below the standards that the forest licensees consider economical to harvest (Ministry of Forests Policy 8.1Timber utilizationcoastal and interior available at http://for.gov.bc.ca/tasb/manuals/policy/resmngmt/rm81.htm).

Current Management

Wildlife tree management includes both the retention of suitable trees at the time of harvest and during silviculture activities, and provision for recruitment of suitable replacement wildlife trees over the harvest rotation period. Operationally, there are three types of wildlife tree management strategies. These are wildlife tree patches (WTPs), individual live tree retention, and artificially created wildlife trees. Potentially, all three approaches can be applied in a single harvest area, although WTPs are generally the most operationally feasible (i.e., easier to accommodate various block layouts, topographic considerations, and harvesting methods) and the safest method for forest workers to retain wildlife trees. If selected carefully, WTPs can incorporate all or some of the habitat attributes commonly associated with the conservation of biodiversity at the stand level. These attributes include horizontal and vertical stand structure, wildlife trees, CWD, intact forest floor, and various special habitats, such as riparian areas, wetlands, gullies and rock outcrops. However, given our understanding of the ecological values of wildlife trees, it is prudent to also retain dispersed single trees within the landscape. In 1995 the Biodiversity Guidebook brought forward a tabular approach to determining wildlife tree retention requirements for a particular area. Two variables must be known to allow determination of wildlife tree retention: Percent of the area available for harvest (i.e., percent of the total area deemed to be operable). Percent of the operable area already harvested without wildlife tree retention.
Knowing these numbers, an area retention objective ranging from 1 percent (where most of the area is inoperable and very little harvesting without wildlife tree retention has occurred) to 15 percent (where the area is highly operable and a large portion has been harvested without wildlife tree retention) is determined. These retention objectives can be applied as area-based WTPs or as a basal area equivalency for individual tree retention. To date, Ministry of Forests district managers have generally provided policy as per the retention objectives and communicated them to licensees for incorporation into their silviculture prescriptions (an operational plan required prior to harvesting). With the recent issuance of the Landscape Unit Planning Guide, these will now be incorporated as landscape unit objectives (Ministry of Forests and Ministry of Environment, Lands and Parks 1999). A silviculture prescription map must show the location of the WTPs that make up the retention objective and state the basal area equivalence for single tree management. A significant proportion of this retention will come from inoperable areas, such as riparian reserves. In addition, placement of wildlife tree patches should consider: Worker safety; only wildlife trees which are assessed as safe may be left outside of a patch within the work area. Location of good wildlife tree attributes, e.g., center a patch around a wellused wildlife tree or group of wildlife trees. Areas of tree species that are potentially valuable as wildlife trees and relatively uncommon.

Stability of chosen patch, e.g., it may be advisable to locate patches adjacent to standing timber of a riparian reserve if there is concern regarding windthrow.
The decision to retain individual trees as wildlife trees in a harvest block will depend on the characteristics and condition of those trees (e.g., species, size, evidence of wildlife use, branching structure, decay, wind firmness, and safety considerations), and other management objectives (e.g., type of silvicultural system, harvesting method, and rotation length). In most cases, individual trees must be retained through the rotation in order to receive credit as wildlife trees in the management prescription. However, except for initial layout and considerations for wind firmness, no long-term management prescriptions for wildlife tree patches have usually been expressed. In BC, hazard/danger tree assessment procedures developed by the Wildlife Tree Committee of BC are in place, along with appropriate training, concerning the management and retention of wildlife trees (Manning 2002). These guidelines are intended to provide information and technical procedures for assessing and safely retaining trees (some of which are potentially dangerous) in all types of forestry operations. In some circumstances, trees are artificially modified to create or enhance wildlife tree habitat values. Methods used in BC include tree-topping, fungal inoculation, girdling, planting snags with an excavator, or cutting stems at 3 to 6 metres in height (stubbing) with a mechanical harvester (Deal 1995, Harris 1995). The practice of modifying trees is usually only undertaken to remove specific safety hazards, or to augment other methods of habitat retention. CWD management is less advanced than wildlife tree management, particularly due to the lack of CWD management guidelines. However, CWD objectives must be defined in forest development plans that guide individual silviculture prescriptions. CWD objectives must be balanced with other potentially competing stand management objectives such as fuel management. CWD objectives defined in forest development plans range from general statements to more specific CWD volume retention targets. CWD volume targets are usually based on a volume that can be easily achieved within standard operational practice or a minimum of the range found in unmanaged primary forests (Stevens 1997). At present, forest companies are encouraged to leave behind as much CWD as possible provided it does not exceed the minimum utilization standards or interfere with other stand management objectives (i.e., forest health). This may be perceived as the status quo and often leads to the development of vague CWD management objectives, although it does not necessarily translate into low CWD retention. In the case of general CWD management objectivessuch as within the requirements of normal utilization standards the licensee will try to maintain current levels of CWD on each cutblock providing post-treatment objectives, forest health, and fire hazard are not compromisedthe result on the ground depends greatly on the type of stand harvested, the pulpwood market, the harvesting and site preparation techniques, and the knowledge of the operators. For example, the whole-tree harvest of a 60-year old lodgepole pine (Pinus contorta var. latifolia) stand that has a history of underburn fires and, similarly, the harvest of coastal second-growth stands which were subjected to shake salvage will often result in very low post-harvest levels of CWD. On the other hand, clear-cut harvesting of a high elevation subalpine fir (Abies

lasiocarpa) stand with many standing dead trees will generally yield high levels of CWD. Communication between on-the-ground operators, foresters, and ecologists is important to minimize the adverse impact on the CWD resource and to maximize timber use. However, such communication varies within BC. Through communication, the experience of the operators plays an important role in the retention of CWD. An experienced on-the-ground operator may be able to leave uneconomic wood at the stump rather than hauling it to the landing by identifying only economic grade logs that should be yarded to the roadside, bucking out unmerchantable sections on the site, and retaining full-length intact uneconomic logs (Arsenault 2002). Regulations and guidelines not only direct on-the-ground decisions but are considered in higher level forest management decisions, such as the determination of the allowable annual cut (AAC). In British Columbia, the AAC is determined by the Chief Forester of BC every 5 years for each of the 70 forest management units administered by the Ministry of Forests. To assist the decision of the Chief Forester that is based on social, economic, and ecological considerations, a timber supply review is conducted. The timber supply review uses simulation models in which the timber flow (merchantable volume that excludes most endemic dead wood) of the unit is projected. The models use current forest cover inventory and constraint information that reflect existing management practices, such as cutblock adjacency and ungulate winter range requirements, to model current and future timber flows (although the AAC decision is only for the first 5-year period). In the timber supply review, wildlife tree patch requirements are commonly modeled by reserving a percentage of forest within a biogeoclimatic subzone in a landscape unit. CWD has not been considered directly as operational practices do not directly influence the merchantable volumes attributable to the AAC. Current practice has only used uneconomic CWD below utilization levels, though recent relaxation of utilization accounting could enable the retention of small volumes of some lower grades of wood. Non-recoverable losses, such as those caused by pest or fire, are excluded from the timber flow projections.

Management Support

Forest management planning in BC is supported by a variety of inventories, surveys, and projection tools. In the 1990s, under the auspices of the multi-agency Resources Inventory Committee, BC initiated substantial standardization and updating of resource inventories. The new provincial Vegetation Resources Inventory, that is to replace an existing provincial forest cover inventory, includes provision for both wildlife tree and CWD sampling (Ministry of Forests 1999). However, the majority of ground-based samples are expected to have a timber emphasis and not include items such as CWD. Procedures for describing terrestrial ecosystems include wildlife tree and CWD sampling (Ministry of Forests and Ministry of Environment, Lands and Parks 1998). Pre-harvest timber cruises provide counts of standing dead trees but typically only those with >50 percent sound wood. Similarly, post-harvest residue and waste surveys only sample merchantable wood volumes. Standards for growth and yield permanent sample plots were modified in 1999 to include standing dead tree measures. This information will be used to enhance existing standing and down dead tree models incorporated in growth and

yield models used in forest management planning (Stone and others 2002). Although there is an expectation of improved dead tree information, these new sampling procedures need to be evaluated to ensure their usefulness. Research on dead trees and their ecological values is conducted by the many research organizations in BC: provincial and Federal governments, academia, industry, and consultants. Little research on CWD was conducted in BC prior to the 1990s (Candy and Swan 1995, Caza 1993), although as early as 1929 MOF researchers showed some interest in CWD dynamics (Stone and others 1998). The past decade has seen increased research on the roles and dynamics of dead trees in BC and limited investigation of the effects of current harvesting practices on dead wood volumes and attributes. Forest Renewal BC, a Crown corporation established in 1994 that derives monies from stumpage revenues, has funded a variety of recent research on dead wood, including experimental manipulation of CWD, snag dynamics, CWD dynamics, the ecology of dead wood dependent organisms, and forest productivity relationships (Feller 1977, Huggard 1999). However, we still lack knowledge of the specifics of many of the ecological roles and dynamics of dead trees in conjunction with forest stand development and management (Lofroth 1998). Education about dead trees has occurred at many levels in BC. Legislation and guidelines have provided many incentives to learn about the value of dead trees. A variety of informational brochures and publications have been made available (Kremsater and Nicholson 1995; Machmer and Steeger 1995; Ministry of Environment, Lands and Parks, and Ministry of Forests 1999; Stevens 1997). Hundreds of forest workers and professionals have received formal training for wildlife/danger tree assessment and riparian management (Forestry Continuing Studies Network of British Columbia: http://www.fcsn.bc.ca). Wildlife trees have been included in public school education programs such as Project WILD (Post and others 1994). Students themselves have created informational software with a wildlife tree and CWD component (Neal and Taylor 1996).

Discussion

The abundance and distribution of dead wood is highly variable and depends largely on disturbance history, stand age, tree species composition, ecosystem type, and decomposition rates. Standing dead trees and CWD will vary in size and stages of decay, even within the same forest. Maintaining the natural variability of dead wood at both the stand and landscape levels needs to be an objective for sustainable forest management. However, there are many real and perceived constraints that make this challenging. Some of the constraints limiting the retention of dead wood in BCs forests are: worker safety (particularly with standing dead trees); logging costs; utilization policy; resistance to change; harvesting techniques; pulpwood markets; salvage initiatives; silvicultural objectives; fuel management; and forest health. Another challenge is defining the natural variability of dead wood, considering the dynamic nature of ecosystems over time and space. BCs forest management is still mainly concerned with the harvesting of older primary (previously unlogged) forests. These primary forests provide opportunities for management of the dead tree resource that may not be present in second-growth forests established with little consideration for the ecological values of dead trees. Of special concern is the recruitment of large standing dead trees and fresh CWD in second-growth stands. In some instances, most CWD remaining on such sites

originated from the first harvest of the primary forest and is therefore large, but usually well-decayed. Where biodiversity is a management objective in secondgrowth stands, specific strategies, such as direct felling and retention of live stems, will need to be developed to provide for CWD and wildlife trees of all species, size, and decay classes. Policy has separated the management of wildlife trees and CWD in BC. To a large extent this reflects a lack of specific CWD targets in terms of volume and dimensions. As CWD targets or clearer ecological objectives are developed, it will be important to evaluate how wildlife tree reserves will address long-term CWD input a current assumption of forest managers. Three main challenges face us. The first is implementation and evaluation of no-cost opportunities for retaining CWD (e.g., minimizing piles). The second is collection of dead wood attributes on both natural and managed stands to provide the necessary background to establish defensible CWD targets that are fully integrated with wildlife tree reserve goals. The third is integration by resource managers of CWD ecological values and management with the traditional view of CWD as salvage, slash, fuel, and waste (Arsenault 2002). The management and recognition of the dead tree resource in BC has improved since the time when dead trees were left standing only if we could cover their tops with dirt. However, the balancing of dead tree ecological values and timber supply is a challenge still facing BC's forest managers.

Acknowledgments

We thank Mike Fenger and David Stevenson for reviewing an earlier draft of this manuscript and Doug Steventon for insights. Financial support for attendance by Todd Manning was provided by the Wildlife Tree Committee of British Columbia. Financial support for attendance by Jeff Stone and Andr Arsenault at the conference and many of the projects indicated within this paper was provided by Forest Renewal BC, a crown corporation committed to renewing the forest sector in BC.

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