25th Anniversary of EPIC v. Johnson

By
Friday, July 30th, 2010

By Richard Gienger

Sally Bell Grove soon after two clearcuts were completed on either side of the grove.

We should, here in 2010, take notice, reflect, and refresh at a wellspring of inspiration on occasion of the 25th anniversary of the landmark, precedent-setting EPIC v. Johnson appeal court decision in 1985. From a statewide, and even national perspective, EPIC v. Johnson marked a significant milestone in environmental protection, much of which was initiated by environmental laws passed in the late 1960s and early 1970s. In California this included the California Environmental Quality Act (CEQA), the Forest Practices Act (FPA), and California Endangered Species Act (CESA). There were federal legislative counterparts with some direct cross-over, notably the California Porter-Cologne Water Quality Control Act (1969) affecting the federal Clean Water Act (CWA) of 1972.

During the 1970s, 80s, and 90s, the turmoil of politics and natural resources was intense in the Redwood Region of California (and lingers today), especially from Santa Cruz to the Oregon border. Damage from the huge floods in 1955 and 1964 were greatly increased from the horrific impacts of the post WWII logging boom (which was basically unconstrained & pushed by the ad valorem tax on standing timber). The old “Forest Practice Act” was thrown out for being unconstitutional (no rules unless the large landowners agreed). A number of counties struggled to have their own rules. The effort to protect an adequate National Redwood Park was a huge local, regional, and national issue. The general move to constrain unbridled ‘boom & bust’ resource economies to respond to environmental considerations like conservation for the future with protection for wildlife, remnant old-growth forests, and the beneficial uses of water — set the stage for dramatic, stressful, and from time to time, violent manifestations of significant social and cultural change. I don’t have the time and space to detail all the important legal cases, other events, and situations leading up to the July 25th, 1985 EPIC v. Johnson decision, or the cases, events, and situations in the last 25 years — but I will try and give a coherent summary of the decision and related matters from a local “Mateel” perspective, and through the experience of a participant, from time to time, in various activist and watershed restoration efforts.

The Environmental Protection Information Center (EPIC) was founded in 1976 or 1977, depending on the person you talk to. It formally was accepted as a 501(3)(c) several years later. It’s formation was catalyzed by the region’s opposition to the aerial spraying of phenoxy herbicides (2,4,5T & 2,4D: components of the ‘Agent Orange’ defoliant used in Vietnam) on forestlands surrounding or adjacent to human communities. The specific instigating situation for Northern Mendocino and Southern Humboldt Counties was the attempt by the Barnum Timber Company (BTC) to aerially spray its timberland, mainly in the Sprowel Creek Watershed west of the town of Garberville. Due to vocal and written opposition encouraged by EPIC, and spontaneous direct action by various individuals, such as removal of truck keys from the truck hauling an herbicide application helicopter through Garberville, and contamination of barrels of herbicide near an herbicide application site — BTC was prompted to cancel its proposed aerial application of herbicides.

Subsequent to that EPIC continued to regularly meet — an amalgamation of local concerned activists — supporting each others’ voluntary efforts and involvement on a wide range of issues: Gilham Butte, the King Range/Lost Coast, Red Mountain, National Forest lands, private and State forest practices, water quality, toxins, and many others. In late summer and early fall of 1977, concerns coalesced over changing poor forest practices that had continued, and protecting the last old growth forest remnants and the area that became know as the Sinkyone Wilderness Coast. In September 1977 Georgia-Pacific Corporation (G-P) filed a Timber Harvest Plan (THP) to use the “Overstory Removal” silviculture method [sic], quite prevalent at the time, to liquidate all the Old Growth and merchantable forest in Little Jackass (or Little Wolf) Creek — in the same month that the California Parks and Recreation Commission was meeting in Fort Bragg to combine and classify the Usal and Bear Harbor projects.

The spectacular forested coastal canyon they wanted to cut is about midway between Bear Harbor and Usal, and remarkably, had somehow retained about 300 acres of Old Growth — despite numerous rounds of logging in the surrounding areas starting in the latter part of the 19th century. Aerial photos from the early 1960s showed almost the entire watershed covered by Old Growth. The canyon that later became renowned as the Sally Bell Grove watershed has a beautiful cove at its base where the creek enters the Pacific, along with a prominent rocky outcropping, aptly named Mistake Point. In the 1970s and 80s, it was common to have to share the beach with many hundreds of sea lions.

In the early 1970s, when William Penn Mott was Resources Secretary, California showed great interest in protecting the rugged and wilderness character of the coast, particularly from Usal north to Chemise Mountain. The Bureau of Land Management’s (BLM’s) King Range coastal land, including a significant proportion of the western Mattole Valley, from Chemise Mountain (just south of Shelter Cove) to the mouth of the Mattole River became the first National Conservation Area in 1970 — after widespread local and regional support, and leadership from Congressman Clem Miller.

In Fort Bragg in September 1977, the Parks & Recreation Commission heard both concise and impassioned testimony from the public supporting wilderness designation for the combined area of the Usal & Bear Harbor projects. The Bear Harbor Ranch had been purchased by Parks and Rec. in 1975. Testimony was topped off by William Penn Mott himself, who perhaps most strongly and lucidly spoke for wilderness protection. Parks & Rec. Director Cahill was vehement for classification as a park, and the Commission did vote for classification as park, but with the provisions that large areas would be designated as wilderness. The naming was put off until October at Asilomar, when the Commission named the new unit Sinkyone Wilderness State Park.

During that early Fall, the California Department of Forestry backed Georgia-Pacific down into a two or three phase cutting plan for the Sally Bell Grove watershed. The 1977 THP was approved, however, for 40 and 80 acre clearcuts on either side of what became the Sally Bell Grove, which still stands providing a predominately Old-Growth Redwood forest background behind the cove and beach. The Grove and some other areas were left for subsequent THPs. It was heartbreaking when those clearcuts were done in 1978.

These actions in the Fall of 1977 precipitated an amazing and often bitter struggle to achieve a protected Sinkyone Wilderness Coast, as well as end logging abuses, recover fisheries resources, and gain protection for Native American cultural heritage. Local and regional groups and individuals became mobilized and activated over these issues. EPIC and the “Sinkyone Council” (which was a local non-Indian, but living on the land group of what some called ‘back-to-the-landers’, and others called ‘hippies’ & worse.), joined by the Sierra Club were the initial main organizations committed to those issues along that coast.

Usal Creek 1980.

The roller coaster emotional, political, communicational, and physical engagement was, it seemed, at times unbearable. People that had never before, nor since, traveled and spoke out at public meetings and hearings did so during those years. The Board of Forestry, the Coastal Commission, the Parks and Recreation Commission, the Department of Fish and Game (DF&G), the Department of Forestry (CDF) and other entities were repeatedly approached with relevant information that applied to their legal responsibilities to protect this area and correct damaging and illegally implemented resource exploitation. Legislation was sought and passed enabling negotiations to get underway between the state and G-P, and to establish wilderness principles for the area (carried by Senator Barry Keene). It should be pointed out that wilderness designation, in part, was significantly supported, in the context of classifications available through Parks & Rec. protection, because traditional hunting and fishing could only be allowed to continue under that designation. Another major factor, of course, was the exclusion of motorized vehicles which continued to degrade the land — whether it was ‘yahoos’ attacking steep coastal meadows, or caterpillars scaring the hills, deranging the drainage and watercourse equilibriums established through millennia, and causing immense amounts of sediment to clog the streams that were the spawning and rearing areas for salmon, steelhead and other species.

G-P had first logged on the Sinkyone Wilderness Coast in 1975, having purchased the old Union Lumber Company holdings from Boise-Cascade. Their first THP was basically for the entire Hotel Gulch watershed on the north side of Usal Creek between the Usal Road and the ridges with cliff faces toward the Pacific Ocean. CDF allowed them to use “overstory removal” in the entire watershed, and the Coastal Commission which had jurisdiction over logging in the Coastal Zone at the time, allowed the cutting to go forward in exchange for the promise of an easement granted for a coastal trail across G-P’s holdings on the coast. This promise of an easement got ‘lost between the cracks’ until EPIC’s Robert “Man-who-walks-in-the-Woods” Sutherland (or “Woods”) pointed out that promise. This was after more than a year was wasted in legislative and administrative efforts to establish a trail with G-P ingenuously/corruptly insisted that it had to be a leased trail.

THP after THP submitted by G-P was analyzed and opposed by the public. Each THP and each legislative & administrative move (e.g.: getting resolutions passed to force field tours etc.) took an immense effort in donated time, money, and resources. We were schooling ourselves, schooling the bureaucrats, schooling the public, and schooling the media. We were ‘trying to get a handle on’ turning around the resource extraction culture to actually evaluate and respond to essential values, rather then merely “giving consideration to the public’s need for watershed protection, fisheries and wildlife, and recreational opportunities”, while primarily encouraging “prudent and responsible forest resource management calculated to serve the public’s need for timber and other forest products” (parts of the Z’Berg-Nejedly Forest Practice Act (FPA) in Section 4512(c)). The “prudent and responsible resource management” part was a big problem. It was quite a struggle to even finally come up with a professional licensing program for foresters in 1973. One has to understand that up until the 1973 FPA there really was no ‘harvest plan’ — no mapping requirements about actual operations, no procedure to ensure stream and watercourse protections, no procedure for cultural protection, no procedure to ensure slope stability, prevent bad roads — and no procedure to evaluate and respond to the ‘big picture’ and long-term forest and timberland sustainability. Although an idealistic forester might see that mandate ‘between the lines’ in the 1973 FPA, it wasn’t until the courts clearly spelled out that the California Environmental Quality Act (CEQA) applied to forest practices — that some headway was arduously gained in making obvious and legally mandated considerations and responses become manifest.

While EPIC and the public gained experience in the realities of logging, applying environmental law, and in spreading that knowledge in ever widening circles — the tightly entwined CDF/Industry culture gripped the basic philosophy that immediate economic gain trumps and trivializes all other concerns. CDF & industry had (and really still has) a hard time seriously responding to the multi-agency review that the FPA, to a small extent, and CEQA, to a large extent, required. It wasn’t uncommon for sister agencies like Fish & Game, Geology, and Water Quality to be bullied, impugned, & ignored. A mild mannered Fish and Game biologist was threatened with being shot for taking streambed samples in a coastal stream in or near the area of a G-P proposed THP south of Bear Harbor.

These new-fangled environmental laws and rules enraged many in the dominant timber industry — many had the “hell with this sissy bull___” attitude — and this attitude, along with its variety of milder and subtler versions, had to be coped with at almost every level. The modification of this attitude was, at root, a heavy needed cultural change that continues today. A lot of times there was no real conscious collusion between the industry and the regulators, but a shared unspoken instinctual understanding of a common perspective on the accepted, even perceived as essential, treatment/mistreatment of forests through generations and millennia.

The public persevered. Even the calloused perspectives of loggers were often softened by the amazing existence of any remnant old-growth — and by the spectacular and wild coastal landscape. There are many personal stories that will probably never be known, and some that are, that epitomize positive resolutions of inner conflict in the many human perspectives.

One of these perspectives came up immediately along the Sinkyone Wilderness Coast. This was the perspective of the ancestors, descendants, and cultural heritage of the Indian People. The idealist ‘back-to-the-landers’ of the 1960s and 70s consciously were looking for models of how to ‘get-in-tune’ with ‘place’. The model all around them of a skid trail every ‘stone’s throw’ didn’t seem to be the right one. The Briceland Book Store had a short UC Berkeley anthropological tome from the 1920s or 30s, called “Sinkyone Notes” by Gladys Ayer Nomland. It was widely acquired and read. Among other things, it described the year-to-year, season-to-season, movement from coast to inland and back. It described the incredible rich range of resources from acorns to salmon to elk and much more. It also described some of the horrific impacts of the euphemistically labeled “contact” era. One of these was the story of Sally Bell and her brother surviving the killing of the rest of her family “by bad men” near Needle Rock along the Sinkyone Wilderness Coast. We’re not talking ancient history. She and her Coast Yuki husband, Tom Bell, lived at Four Corners (several miles north of Needle Rock) almost into the 1940s. All of this made a great impression on many persons and affected the whole way that the protection of the coast was approached.

Right away, as G-P THPs were examined, analyzed, and ground-truthed, the existence of, and past and potential future adverse impacts to, Native American heritage and cultural resources were evident. To protect these values and resources was, and continues to be, very difficult in complex ways. Initially, it seemed sort of straight-forward: “There are sites, including many that are damaged, that need to be protected.” But then it became evident that there was no adequate will and process to ensure that real and respectful protection could be achieved. Operations went ahead and adversely impacted sites, when assurances had been made that adequate archaeological protections would be in place prior to those operations. Consultation with Native Americans and California Indians was not happening. The public fought for protections in one large and significant area, only to have only four small areas designated for protection, and then have one of those bulldozed for a layout pad for the felling of an old-growth Redwood. When the Park and Rec. archaeologist involved in setting protections discovered the destruction, and was accordingly angered and dismayed, he was admonished by a G-P forester and told he could never come on their land again.

There is too much information to convey about those years from 1977 to 1985 in this summary paper. But, as regards the incident just described above: It led to a conviction for site destruction by G-P, with a requirement that they do an archaeological study/inventory for their entire 50,000 acre “Usal Unit”. It was requested of the court to include mandatory consultation with California Indians as part of this requirement, but the court failed to do so. Walt Lara Sr. and Milton Marks of the Northwest Indian Cemetery Association, a precursor of the California Native American Heritage Commission, were present during the proceedings.

So, by late summer 1983, progress had been made for the protection of the Sinkyone Wilderness Coast on some levels: There was 3.2 million dollars set aside for acquisition of the G-P lands (initiative taken by Assemblyman Doug Bosco). The public had been made aware of the importance of protection of that coast and the heavy damage from the past and present. The Native American and California Indian relationship was being more publicly realized. Just about everything that could be done to administratively affect the way CDF was approving THPs had been done. Legislation carried by Assemblyman Dan Hauser to facilitate protection of the Sinkyone Wilderness Coast passed, but failed to protect the critical areas and remnant old-growth. And then it happened: G-P filed the THP to cut the Sally Bell Grove. And that was EPIC’s, the International Indian Treaty Council’s, and the public’s last straw.