ed by Betty & Gary Ball
Challenges to Pacific Lumber's plans to harvest "dead, dying and diseased" trees on more than 185,000 acres are headed to the State Court of Appeals in San Francisco after the Thursday, May 18th, 1995 ruling in Humboldt County Superior Court. Visiting Judge John Kleaver issued two decisions May 18th, in both cases rejecting plaintiffs' arguments that environmental review of wildlife and cumulative impacts analysis were inadequate for the California Department of Forestry (CDF) to approve the plans.
"This is nothing new" said Cecelia Lanman of EPIC. "We've had to go to the appeals court before, and we've won there six times in our suits against Maxxam/Pacific Lumber (PL). We have always received protection for the PL old-growth stands from the appellate court while proving our case." At present, logging of dead and dying trees under PL's exemptions could commence any day, and Judge Kleaver set the temporary restraining order on harvest of 198 acres in the contested Yager Creek drainage to expire May 31.
Cecelia noted the difficulty in keeping local judges on timber issues, due to blatant political pressure applied by PL, and said that visiting judges typically do not have sufficient knowledge of the issues required for a well-considered decision. "We feel that this judge only briefly, superficially looked at the issue and gave us a narrowly-construed decision," she said.
In his decision, the judge said that CDF had followed proper procedure to justify its approval of the Exemptions and Timber Harvest Plan. However, he left the door open for an appeal in which the plaintiffs can prove that inadequate information was received by CDF and that it abused its discretion in accepting the plans.
Judge Kleaver wrote that logging dead, dying and diseased trees under an Exemption plan is "surely considered relatively inconsequential activity," and this is precisely what the plaintiffs hope to disprove in the appellate court. The issues that plaintiffs claim were not sufficiently examined include cumulative impacts of logging activity on streams and watersheds, and the effect on salmon and other wildlife known to inhabit the area. They claim that under the California Environmental Quality Act (CEQA), public review of the Exemption plans should have been carried out as well.
The February Owl Creek decision in Federal court putting a permanent injunction in place on that tract of old-growth woods upheld a preponderance of evidence that PL's own wildlife survey data is faulty and incomplete, yet, it is PL's data (drawn up by the same consultants who carried out the discredited surveys in Owl Creek) that CDF considered in its review. CDF has the authority and duty to require independent third-party scientific analysis, but failed to do so.
An April 12th letter to Pacific Lumber Resource Manager Tom Herman from the US Fish and Wildlife Service and California Department of Fish and Game states, "We are aware that NSO (northern spotted owl) activity centers exist within the Exemption boundaries and that surveys have not been completed for the Exemption area." The letter goes on to note that PL's northern spotted owl plan was not complete, and that written descriptions of specific procedures to avoid "take" of endangered species must be submitted prior to harvest. This has not been done. Therefore, further operations by PL in these areas would likely result in a "take" violation under the Endangered Species Act.
Other provisions prohibit harvest of any standing trees in the old-growth redwood areas including Headwaters Forest. Only removal of downed trees in Headwaters and the other old-growth groves will be allowed to occur, and only after marbled murrelet nesting season (which extends from April 15th to September 15th). This does not recognize the biologically critical rule of downed trees in an ancient forest, nor the disturbance to the area which will be caused by the activity of removing downed logs.
There are two cases pending here. One is the challenge to PL's 179,000 acre and 6,000 acre Exemptions to log dead, dying and diseased trees, brought by the Sierra Club and EPIC. The other case seeks to halt PL logging in the Yager Creek drainage because of cumulative impacts of several timber harvest plans and extensive damage from past logging. Plaintiffs in the latter case are Doug Thron, the Bald Eagle and Salmon Restoration Project and EPIC. Both cases will be appealed.
Late Update - Appellate Court Declines to Issue Stay
Unfortunately, the Appellate Court has declined to issue a Stay for the Exemptions Case, which technically means PL could begin logging and removal of downed logs in the areas not designated as occupied murrelet or northern spotted owl habitat. EPIC is continuing to pursue all legal avenues to ensure correct and adequate interpretation and enforcement of the Endangered Species Act in the entire Exemption area.
The temporary restraining order in Yager Creek remains in effect until May 31.
What You Can Do
*Please contact Scott Pierson at the US Fish and Wildlife Service (USFWS) (916) 979-2987. Ask them what they are going to do to uphold the Endangered Species Act if PL starts logging in these exemption areas? Ask them to clarify that PL really has an enforceable agreement with USFWS to stay out of murrelet habitat.
*Of course, the only just and viable way to settle the Headwaters issue once and for all is a "debt for nature swap". As you recall, MAXXAM's CEO Charles Hurwitz crashed a Savings and Loan in Texas in 1988 and was bailed out by taxpayers for $1.6 billion. As a result of this, the Federal Deposit Insurance Corporation (FDIC) has an outstanding claim against MAXXAM for $540 million. This is roughly equivalent to the $500 million that Hurwitz wants for Headwaters.
There is indication that the FDIC is actually considering a debt for nature swap, but twice they have extended the statute of limitations on their $540 million claim. We need to keep up the pressure on the FDIC, asking them to compensate the US taxpayers for what Hurwitz owes us by confiscating Headwaters Forest. And, Charles Hurwitz should be prosecuted to the full extent of the law.
*Please write to Ricki Tigert, FDIC, 550 - 17th Street NW, Washington, DC 20249. Ask her to speedily pursue a debt for nature swap for Headwaters, and prosecution for Charles Hurwitz.
*Call the MEC at 468-1660 to keep informed of late developments and to be put on the action alert list.
Latest Update - Red Alert - Call To Action!
As we put this issue of the Newsletter to press, the courts have failed on all counts to act in favor of the Headwaters Forest complex. Cutting has begun and promises to continue. Direct action is underway in a last ditch effort to keep the big trees standing around the pristine Headwaters grove. Due to the delay between writing and the date you will receive it, we cannot tell if direct action will still be happening by the time you read this. We can guess that direct action will continue as long as the cutting and that your help is needed. Call the MEC for details if you're able to participate.
Copyright Mendocino Environmental Center 1995