The twelve year struggle to save Headwaters Forest has taken on national political significance. As Earth First! continues to amplify public awareness from the ground level, politicians are busy trying to wrap up the so-called "deal" by which they hope to pay off the marauders and mollify the mainstream. The intensity of the debate has been determined by an ever increasing educational campaign. Thousands of concerned individuals realize that the ecological situation on earth can no longer afford slick maneuvers which rob our planet of vital life force but are passed off as conservation.
Understanding HCPs
In 1973 the Endangered Species Act (ESA) was passed by Congress for the purpose of "averting and reversing the trend toward extinction" of endangered species. In order to achieve this end, the Act prohibited "take" (defined as killing, harassing or harming) of species listed as threatened or endangered. In addition, it is also necessary to preserve the natural habitat of these species. A species cannot flourish without ample food, shelter and genetic diversity. Subsequent court cases clearly defined habitat destruction as "take."
In 1982 a loophole was created in the Endangered Species Act. Should a corporation or landholder wish to modify or destroy habitat occupied by endangered species, they could now apply for what is called an "incidental take" permit under section 10 of the ESA. An "incidental" take is the destruction of endangered species and their habitat as "incidental" to "otherwise lawful activities" upon the land they inhabit. The paperwork necessary for this permit is what is called an Habitat Conservation Plan (HCP).
In this paperwork a landowner can claim steps s/he will take to "mitigate and minimize" the effects of proposed habitat destruction for each endangered species affected. This is often accomplished by setting a portion of habitat aside or simply identifying nearby areas of habitat, usually on public lands. The plan is reviewed by federal agencies responsible for enforcing the ESA: the U.S Fish and Wildlife Service and the National Marine Fisheries Service. They are usually approved under tremendous and powerful lobbying pressure.
Habitat Conservation Plans are a recipe for eco-system collapse and corporate control of the earth's resources. By definition they result in habitat destruction and legalized killing of endangered species. It is absolutely vital that we, the public, understand what is happening with them and not allow ourselves to be sold downstream by fast talking politicians and big business.
Built Upon False Science
An HCP is based on the erroneous assumption that modern science can mimic the earth's natural systems. Working from this fallacy, an HCP is a mock ecosystem "management" plan. After a company is granted an "incidental take" permit to kill, the only scientific monitoring of the maintenance of habitat and "recovery" of the endangered species affected is done by the company itself through filing periodic reports.
In 1993, bypassing public debate, Secretary of Interior Bruce Babbitt began negotiating "experimental policies" with companies who were lining up looking for loopholes out of endangered species protection laws. At this point the term "no surprises" came into the game. What this means is that once a company obtains an approved HCP it is shielded from having to provide any additional endangered species' protection for the life of the plan, sometimes more than100 years. This guarantee remains in effect no matter what scientific evidence is discovered which might reveal the devastating effects upon endangered species, habitats, ecosystems and the overall trend toward extinction. An HCP cannot be revoked on the efficacy of its habitat conservation, only on the fulfillment of its own management terms. Hence: "No Surprises".
Babbit's Backdoor ESA Reforms
The Endangered Species Reauthorization Act is currently dragging through Congress, accumulating more interesting loopholes as it sits in the hallways outside of committee sessions. Senator Dick Kempthorne's S. 1180, which enjoys the support of the Clinton Administration, would codify "no surprises" into law and make HCPs the functional equivalent of far more stringent, realistic recovery plans.
During the Clinton Administration more than 200 HCPs have been approved and over 200 more are being developed. If Bruce Babbit's "experimental reforms" of the Endangered Species Act are amended into law later this year, the ability of the ESA to protect biodiversity and habitat will become a farce, and even more wild places will be logged, stripmined and/or subdivided.
Habitat Conservation Plans are plans for habitat conversion. There is no way monitor them independently, no matter what the environmental consequences. Other large industrial timber companies are waiting lasciviously in the wings to see how the Headwaters Deal goes down so they might open the floodgates for similar future development rights. It is essential for the preservation of the original intention of the Endangered Species Act, let alone the simple fact of the survival of our beautiful and diverse life-sustaining planet, that we not allow the hype of the Headwaters "deal" to lull us into complacency. There is no such thing as a "good" HCP.
Turning the Tables
The Headwaters "Deal" hinges on false leverage. Legislators lobbying for the Deal continually point to a lawsuit against the U.S. filed by Charles Hurwitz named (incidentally?) his "takings" lawsuit. They speak as if the threat it poses is reason enough to negotiate with Hurwitz, spend millions of taxpayers' dollars, give him the license to kill and the right to develop land which under current federal law should already be protected.
Charles Hurwitz's "takings" lawsuit is based on his premise that the financial profit losses he would incur due to existing environmental law, being the Endangered Species Act, amount to unconstitutional "taking" of private property by the government. It is an empty threat. The Endangered Species Act was passed by Congress in 1973, years before Charles Hurwitz acquired Headwaters Forest with his junk bond takeover. Many legal experts believe that Hurwitz's suits lack merit.
What would actually be threatening to the current administration is the public exposure of the deliberate erosion of the Endangered Species Act this lawsuit could bring. If Hurwitz's lawsuit should fail, it would set a precedent of environmental law over corporate profit, which is exactly the intent of the ESA: to protect nature. This would require strong enforcement of the ESA on private lands, angering influential corporate contributors! Instead of facing the important social discussion Hurwitz's "takings" lawsuit would demand, Clinton and Feinstein are essentially settling the cases out of court through the Headwaters "deal". What these legislators and politicians are doing is warping the field of discussion away from the real focus upon the health of forest ecosystems by creating fear from thin air and a whirlwind of doublespeak.
Our success will be in continuing to shift the terms of the debate. We must keep up the public pressure, educate ourselves, keep informed about what is happening in the halls of Congress with the Endangered Species Act, support the frontline activists, (get out there and join them!) and let the world know in every way we can that we intend to live in a sustainable, compassionate relationship with nature. We want an economy based on restoration of resources, not extraction. We want an economy which rewards its workers with local profits and healthy lives. We absolutely must turn our focus to healing the planet! The hillsides are slipping into the rivers as we speak.
We must remember that concerted public pressure can give the resource agencies backbone to big business. Continual presence, enhanced awareness, active education - these are the tools of change.
Understanding the ground we stand upon, that the "deal" is not a deal at all and the leverage upon which it was dreamed up is smoke and mirrors and that a large percentage of the American population completely supports the unadulterated enforcement of the Endangered Species Act even on corporate lands, we can unify our voices to speak for the true spirit of the ESA - to avert and reverse this frightening trend towards extinction. We know that it affects us all, irreversibly.
In order for true genetic biodiversity to flourish in the Redwood ecosystem region, even a Headwaters Forest of 60,000 acres is not enough.
Copyright Mendocino Environmental Center 1998
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