In the waning hours of the last day of the past legislative session, on August 31, the State Legislature passed AB 1986, approving $245,500,000 as the state's share of funding to complete the Headwaters Forest Agreement.
This is the much touted Headwaters "Deal" negotiated two years ago by Senator Dianne Feinstein, Deputy Interior Secretary John Garamendi, Governor Pete Wilson and corporate raider Charles Hurwitz's Maxxam Corporation. State funding was the next-to-last major hurdle to the actual transfer of Headwaters Forest, other old growth groves and surrounding buffer zones to public ownership.
The final contingency to completion of the "Deal" is formal adoption of a combined Habitat Conservation Plan (HCP) and Sustained Yield Plan (SYP) for all timberland owned by Maxxam's Pacific Lumber Company. The benign sounding HCP is actually an environmentally devastating loophole in the Endangered Species Act (ESA) that will allow PL/Maxxam to legally kill endangered species. It has been adamantly opposed by environmental groups involved in the twelve-year Headwaters struggle.
Meanwhile, the "Deal", as modified to assure approval of state funding and to placate Hurwitz, has been praised in glowing terms by its authors and supporters. Secretary Garamendi claimed that without the buyout the old growth could not have been completely and permanently protected. Governor Wilson said he felt very pleased about the state allotting an additional $100 million (beyond the state's original $130 million share) to purchase Owl Creek Grove and an area bordering Grizzly Creek State Park. State Senator Sher thinks that with broadening of stream-side no-cut strips there is a "fair chance" that coho salmon and other endangered species may survive. And Assemblywoman Virginia Strom-Martin feels good about $12 million earmarked for "economic assistance" to Humboldt CountyÑin addition to $10 million already allocated by the feds.
If we environmentalists were to be "realistic" and resign ourselves to the trashing of the ESA via HCPs, and to the legitimacy of the California Department of Forestry (CDF) continuing to rubber stamp PL/Maxxam Timber Harvest Plans (THPs) until most of the their timberland is clear-cut and converted to tree farms, then we might rest on our laurels and declare victory.
Unfortunately, there are at least three fundamental problems with the "Deal", and we need to keep up the struggle to squelch it.
The HCP: A license to kill
The first of these problems is the draft HCP tied to the state and federal funding bills.
The federal ESA is one of our most powerful tools in defending nature from corporate plunder. The law is very clear: it is illegal to "take" any species listed as endangered or threatened under the Act. "Take" means killing or harming in any way, including the destruction of essential habitat.
The ESA is so effective that in 1982 the extractive industries and private property zealots (lead by the ultra-conservative Wise Use Movement) pressured Congress into establishing an insidious loophole. Here is how it works: A corporation like PL/Maxxam that wants to destroy endangered species habitat applies for an Incidental Take Permit (ITP), and prepares an HCP outlining the damage it intends to do and the measures it will supposedly take to mitigate this harm. The HCP is produced by the company's own biologists, and there is no real accountability that the mitigations will actually create new habitat to replace that which has been destroyed. Furthermore, a "no surprises" policy instituted by the Clinton administration shields the company for decades from legal intervention by pesky environmentalists, even as species slide toward extinction.
According to an analysis of the draft HCP covering PL/Maxxam's remaining holdingsÑapproximately 210,000 acresÑafter the planned partial buyout, the "take" would include rapid destruction of more than 9,000 acres of ancient redwoods that are marbled murrelet habitat. As mitigation, PL/Maxxam would "set aside" other stands as Marbled Murrelet Conservation Areas. However, the wording of the HCP as modified in the funding bill does not seem to guarantee that these areas would necessarily remain off-limits to logging for the 50 year life of the HCP.
To add insult to injury, the "mitigations" requirement of an ITP issued to PL/Maxxam would in large part be satisfied by sale of Headwaters Grove and other forestland to the public. In other words, Hurwitz would be paid to circumvent the Endangered Species Act!
At this late date in the Headwaters saga, the convoluted HCP/SYP situation appears to be our best lever to stop the "Deal". Even though the state Legislature was very detailed in spelling out conditions of the PL/Maxxam HCP, it is up to the federal government to actually accept, deny, or further modify it and to issue any ITP. We need to turn out in large numbers at the public hearings scheduled in several cities in October and November, and protest the HCP/SYP sham.
One handle for demanding that PL/Maxxam's HCP application be denied is their outrageous record of logging transgressions. The company has been cited for over 250 violations of the Forest Practices Act in the last 3 years alone, and even had its Timber Operator License temporarily suspended by CDFÑan agency with which it normally has a very cozy relationship. It has also been found guilty of misdemeanor violations, and has lost 7 lawsuits over violations of the Endangered Species Act, the Forest Practises Act, and other statutes. Many civil actions are pending, including several brought by watershed groups over sedimentation caused by mudslides. According to the Code of Federal Regulations, the citations and convictions which PL/Maxxam has received should make the company ineligible for an ITP.
The SYP: Managed extinction
The second major problem with the Headwaters "Deal" is its dependence on a state mandated Sustained Yield Plan. Like HCP's, SYP's sound soft and cuddly, but amount to death notices for forests and many of the critters that live in them.
Relatively new on the scene, SYP's are now required of all large (50,000 acres or more) timber owners in California. The rationale is to put individual THPsÑusually drawn up for cuts ranging from 50 acres to a few hundred acresÑinto the context of a company's long-range harvest plans for its entire ownership.
The pronounced objective of the Wilson-appointed State Board of Forestry (which oversees CDF) is to guarantee that, on the average, a company's cutting is in sync with new tree growth. It is also argued that cumulative impacts within watersheds may be more easily kept in check by SYPs, and that the permitting process will be streamlined.
All this is possible in principle, but in practice large timber corporations are exploiting the long durations of the plans (120 years) to justify short term plunder. In PL/Maxxam's case, the draft SYP calls for cutting 32% more forest than is expected to grow in the first decade. According to Kevin Bundy of EPIC, this works out to 35,000 acres of clear-cuts and 20,000 acres of other logging methods. Compounding the problem, the "first decade" began in 1996 and ends in 1999, hence is only 4 years long.
This initial "blitzkrieg" would allegedly be offset by reduced operations in the third, fourth and fifth decades of the Plan, but extensive watershed and habitat damage would be caused by the initial onslaught. PL/Maxxam's stated goal is to convert much of their timberland to "Even Age Management", a euphemism for rotating clear-cuts, death to biodiversity, perennial mudslides, stream siltation and massive applications of garlon.
PL/Maxxam has shrewdly combined its state mandated SYP with its voluntary federal HCP in the Headwaters Forest Agreement. According to Bundy, this allows the company to get away with rapacious short-term cutting under their SYP that would not be allowed without an ITP. For example, the SYP calls for immediate logging of over 2,500 acres of old growth forest, some of which is occupied by the endangered marbled murrelet. Similarly, the Plan involves extensive cutting in watersheds where salmon and stealhead are struggling to spawn. Without an ITP such logging would violate the Endangered Species Act.
It's extortion!
The third problem with the "Deal" can be framed as a question: Why are we about to reward a white collar criminal who has already ripped off taxpayers to the tune of 1.6 billion dollars with another $480,000,000? To wit:
Charles Hurwitz is currently on trial before an Office of Thrift Supervision administrative law judge in Houston for his principal role in the failure and subsequent taxpayer bailout of United Savings Association of Texas. Hurwitz has been accused of using funds from United Savings in his unfriendly takeover of Pacific Lumber in 1985. His cohorts, Michael Milkin, Ivan Boesky, and Boyd Jeffries have already been sentenced to prison terms for Headwaters-related crimes.
In a leveraged buyout that year, Hurwitz paid less than $900 million for PL and all its assets: nearly 180,000 acres of timberland, much of it old growth redwood; the Scotia mills and the town of Scotia; a welding firm which he sold for $300 million, and an office building in San Francisco which he sold for $35 million. He also appropriated the $55Êmillion employee pension fund.
After Hurwitz's Maxxam Corporation took over PL, the logging rate was doubled (some say tripled), and two thirds of the old growth reserves were cut in the first decade. It has been estimated that Hurwitz has extracted $1.5 billion from the forest to date, and now he is being offered nearly another $500 million for less than 10,000 acres.
Cecelia Lanman of EPIC, not normally given to spontaneous public outbursts, was removed from the Senate Gallery the night the "Deal" came down after yelling, "It's extortion!", in reference to all the money being given to Hurwitz to keep him from violating the ESA on five percent of his timberland, while allowing him to continue doing so on the remaining ninetyfive percent.
This characterization was right on the mark. For some time now the Wise Use crowd has been claiming that the federal government is "taking" assets when it enforces the ESA on private property, and that owners should be reimbursed the full market value as if the land were fully exploitable. Indeed, Hurwitz filed a $500 million law suit against the government, which he has agreed to drop as a condition of the "Deal".
Now that Hurwitz has apparently pulled this off, other opportunistic wheeler-dealers will be tempted to buy cheap land harboring endangered species, threaten to kill the creatures by destroying their habitat, then try to con the government into buying it from them for top dollar. This scam worked to the max in the cases of Owl Creek and Grizzly Creek, which were added to the "Deal" at the last minute and are to be appraised at the full value of all their standing timber. This despite Owl Creek being under a permanent injunction banning all logging as the result of an EPIC lawsuit!
Doesn't it seem clear? The federal government should prosecute Hurwitz vigorously, take back Pacific Lumber as his "debt-for-nature", then let him contemplate his deeds from inside a prison.
What you can do
¥ Caravan to the HCP/SYP hearing in your area, comment on and protest these bogus plans. It's our last chance! Hearings are on October 27 and 29 and November 5 and 10, in cities throughout the state. See Calendar on page 15 for details.
¥ You can also send written comments on the HCP/SYP to the following address:
Mr. Bruce Halstead
U.S. Fish and Wildlife Service
1125 16th Street, Room 209
Arcata, CA 95521
Please reference Permit numbers PRT-828950 and 1157. Comments can also be faxed to (707) 822-8411 or placed in the box provided at the hearings. Written comments must be received by November 16.
*And, for fun and profit, check out the "Jail Hurwitz" website. The address is www.jailhurwitz.com. A real $50,000 reward is being offered for information leading to the arrest, conviction and incarceration of Charles Hurwitz.
Copyright Mendocino Environmental Center 1998
Permission granted to excerpt or use this article if source is cited