August 1, 2003
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EPIC never ceased its efforts to expose the many "backroom deals" that were wrapped into the Headwaters Deal, immediately filing a lawsuit to overturn the sacrifices that were kept out of the headlines but all too apparent on the ground. On May 19, 2003, after a four-day trial in March, the California Superior Court issued a monumental tentative ruling that agrees with EPIC on every count of the lawsuit, bringing a landmark victory very close to hand.
What's at Stake
Backroom negotiations shaped the numerous permits granted to Maxxam's Pacific Lumber Company (PL), including a 120-year logging plan, permits to kill numerous endangered species, and a "master" permit to alter streams. Judge John Golden's tentative ruling found the California Department of Forestry (CDF) and Department of Fish and Game (DFG) violated numerous laws in issuing these permits, and indicated he will invalidate them all following a final hearing sometime this summer.
Maxxam/PL's permits established a framework under which large-scale, "liquidation" logging prevails. They opened logging in thousands of acres of ancient forests that were previously protected, with state agencies giving their blessing to the harm that would occur to species like the critically imperiled marbled murrelet. PL was allowed to "take," or kill, up to 340 marbled murrelets, a huge percentage of the individuals remaining in California. It also received permits to kill coho salmon, northern spotted owls, and more than a dozen other endangered species.
PL's logging operations under these permits have raised the concern of the Regional Water Quality Control Board, which found that PL is fouling streams with sediment in violation of the state and federal Clean Water Acts. EPIC argued that DFG violated the public trust in allowing this damage to fish habitat, an assertion that was affirmed by the Golden ruling.
Boom and Bust
PL's 120-year, so-called "Sustained Yield Plan" (SYP) is a model for boom-and-bust logging, whereby clearcutting will occur at an accelerated rate over the first decade, then will virtually come to a halt when there is nothing left to take. Logging too much too fast is not only devastating to streams and rivers, forests, and wildlife, but also to the local economy. The United Steelworkers of America filed a separate lawsuit concerning the impacts of PL's SYP on local jobs, something that CDF and PL refused to analyze beyond its initial "boom" cycle. Judge Golden has also issued a favorable tentative ruling in the Steelworkers lawsuit.
What SYP?
The Headwaters Deal cost $480,000,000 in taxpayer funds, and involved everyone from former President Clinton to California's Governer Gray Davis and Senator Diane Feinstein. Given this level of money and power, one would assume that state agencies would have paid careful attention to detail in authorizing the permits now at issue in EPIC's lawsuit. This was far from the case, however, with even the most basic and fundamental requirements being ignored.
One of the most glaring violations came to light during the March trial. CDF fully acknowledged at that time that it never had a physical document that could be called an SYP, and never compiled one until requested to do so by the court. This was done within weeks of the trial--four years after it approved an SYP--leading people to wonder: exactly what did CDF approve?
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At one point during the trial, Judge Golden asked DFG where the law gives it the authority to issue permits to kill species that are not currently listed as threatened or endangered, but are listed sometime in the future. In granting these permits, DFG gave PL "assurances" that it would not be required to change any of its logging practices or be subjected to any further restrictions no matter what the circumstances or environmental conditions may be at that time. After the DFG attorney was not able to provide a response to the judge's question, Frank Bacik, lawyer for Maxxam/PL, stood and bellowed, "Those assurances are in there because we had a deal, your honor."
Breaking the Pattern
Just because Maxxam/PL had a deal, it did not have the right to ignore and break the law. Unfortunately, PL has acted as if it has this right since Maxxam maneuvered a hostile takeover of the company in the mid-1980s. And public agencies like CDF and DFG have served as an accomplice in these violations, abandoning their duty to protect forests, fish, and wildlife, and to uphold the public trust.
This case could play an essential role in changing this pattern, not only here in Humboldt County but across the state as a whole. The tentative ruling points out systemic problems in state management of California's forests and watersheds for decades. While many of these same problems have been
noted in previous court rulings, legislative hearings, and other venues, this case is of tremendous consequence, and not one that will be ignored.
Judge Golden will issue a final judgement in the case sometime this summer. EPIC's court filings, the tentative ruling, and other information are available on EPIC's website at
www.wildcalifornia.org.
Case Summary
The following summarizes EPIC's allegations that were affirmed by the court's tentative ruling.
- The "Sustained Yield Plan" (SYP) did not properly evaluate impacts to old growth forests.
- Both the SYP and the Environmental Impact Report (EIR) failed to adequately evaluate cumulative environmental impacts to wildlife and watersheds.
- PL's SYP lacked necessary information, including a complete sustained timber production assessment.
- The Deptartment of Fish and Game (DFG) failed to fully mitigate adverse short-term impacts to endangered marbled murrelets.
- DFG exceeded its authority by issuing permits to kill native species in the event they are listed under the Endangered Species Act (ESA) in the future.
- DFG illegally authorized killing of endangered northern spotted owls and the destruction of their nest sites.
- DFG violated the public trust doctrine in issuing permits to kill species that are listed under the ESA and failing to protect the state's wildlife from substantial population declines.
- DFG's "master" streambed alteration agreement violates the Fish and Game Code.
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Environmental Protection Information Center (EPIC)
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TOC for Forest & River News, Summer 2003