Summary of EPIC Forestry Lawsuits
January 1998

The Environmental Protection Information Center (EPIC) of Garberville, California was founded in 1977 with the goal of supporting grassroots environmental activities. EPIC's litigation has protected old-growth-dependent wildlife from the cumulative loss of redwood and Douglas fir forest habitat . Most of our cases involve private forestlands in our region, the north coast of California, but many have affected statewide forestry policy and have set both state and national legal precedents. Of particular importance are EPIC v. Johnson (#1), Sierra Club and EPIC v. Board of Forestry (#5), and Marbled Murrelet v. Pacific Lumber (#18). EPIC's litigation has challenged corporate timber practices and negligent governmental oversight, leading to temporary protection of the largest remaining groves of ancient redwoods, stronger implementation of environmental regulations, and reform of forestry policy. We have filed fifteen lawsuits involving the ancient and residual old-growth groves of Headwaters Forest, and we have moved to intervene in Pacific Lumber's private property rights lawsuit against the United States of America. Many of our cases have been filed with the Sierra Club, individuals, or watershed groups as co-plaintiffs. We have joined six coalition lawsuits, with dozens of fisheries and environmental groups, to seek the listing and protection of endangered anadromous fish species under federal and state Endangered Species Acts. We believe success is measured in the outcome and influence of our efforts. At least 24 of our 37 cases have resulted in significant achievements. As of this writing six suits are currently active. The following is an outline of the forestry lawsuits in which EPIC has been directly involved.

1) EPIC v. Johnson
EPIC's first forestry lawsuit established that cumulative impacts must be considered by the California Department of Forestry (CDF) in their review of timber harvesting plans (THPs). Full compliance with California Environmental Quality Act (CEQA) procedures is required in agency review of THPs. Also, the Native American Heritage Commission must now be consulted if there is evidence of Native American historical sites within the THP. Georgia-Pacific's plans to clearcut 75 acres of the old-growth redwood/Douglas fir forest of 'Sally Bell Grove' at Little Jackass Creek in the Sinkyone area of California's coast prompted the lawsuit. This suit was brought by EPIC, the International Indian Treaty Council, Robert Sutherland, Richard Gienger, and Fred "Coyote" Downey against Ross Johnson as CDF Resources Manager, Jerry Partain as CDF Acting Director, the State Board of Forestry, the California Department of Forestry, the Secretary of the California Resources Agency, Rex Timber, Inc., and Georgia-Pacific Corporation. Procedure: THP #1-83-464 MEN approved 9/2/83 by CDF. EPIC filed Petition for Writ of Mandate 9/30/83 (Sonoma County Superior Court #131459). Venue changed to Mendocino County 10/21/83 (Mendocino County Superior Court #48383). Writ denied by Judge Phelps 10/31/83. EPIC appeals 10/31/83. California Court of Appeals (#A024754) decision 7/25/85 published at 170 Cal.App.3d 604 (1st Dist 1985). Status: final - THP held to be inadequate. Attorneys: R. Jay Moller, Sharon Duggan, Michael Solomon
EPIC Contact: The Man Who Walks in the Woods

2) EPIC v. JOHNSON II
In 1985 Sally Bell Grove was again threatened by resubmittal and approval of the same 75 acre clearcut as above. EPIC again filed suit. However, the case never reached trial because EPIC's litigation and public education attracted the interest of the Trust for Public Land. The Trust purchased 7100 acres of land from Georgia-Pacific on 12/20/86, 3300 of which were donated to the State, including the Sally Bell Grove, thus doubling the size of the Sinkyone Wilderness State Park. This suit was brought by EPIC, the International Indian Treaty Council, Robert Sutherland, Richard Gienger, Fred Downey, and the Sierra Club against Ross Johnson as Resource Manager of the State Board of Forestry, Jerry Partain as CDF Director, The State Board of Forestry, the California Department of Forestry, Gordon Van Vleck as Secretary of the California Resources Agency, Jere Melo as RPF for Rex Timber, Rex Timber, Inc., and Georgia-Pacific Corporation. Procedure: THP #1-85-524 MEN approved 12/20/85 by CDF. EPIC filed Petition for Writ of Mandate 1/17/86 (Mendocino Ct. #51969, Judge Broaddus). Status: final - Suit withdrawn in 1987. Attorneys: R. Jay Moller, Sharon Duggan,
Joseph Brecher (Sierra Club Legal Defense Fund)
EPIC Contact: The Man Who Walks in the Woods

3) EPIC v. MAXXAM I
EPIC's first suit against the Pacific Lumber Company resulted in a court finding that the California Department of Forestry had not only 'rubber-stamped' the THPs, but had intimidated the Department of Fish and Game and the Regional Water Quality Control Board staff from making any comments critical of THPs. This suit led to a Department of Fish and Game policy shift towards reviewing some old-growth plans more carefully. It also resulted in mandatory marbled murrelet surveys and development of murrelet surveying protocols. This suit involved three plans by Pacific Lumber to clearcut old-growth redwood and/or Douglas fir forests in the Little South Fork Elk River, Salmon Creek, and the Mattole River watersheds. Two of the challenged plans were located in the area of the Headwaters Forest complex . Procedure: THP #1-87-240 HUM, 1-87-241 HUM, 1-87-230 HUM approved May/June 1987. EPIC filed Petition for Writ of Mandate 6/4/87 (Humboldt Ct. #79879, Judge Peterson). Petition granted 11/5/87. Status: final - THPs found to be inadequate. EPIC recovered attorneys' fees under CCP §1021.5. Attorneys: R. Jay Moller, Thomas Lippe, Sharon Duggan, Thomas Petersen
EPIC Contact: The Man Who Walks in the Woods

4) EPIC v. MAXXAM II
EPIC challenged two Pacific Lumber THPs and one Simpson THP because the California Department of Forestry did not adequately consult with the Department of Fish and Game, or consider cumulative impacts and wildlife mitigation measures. Extensive cutting occurred during a 25 day period between the date CDF approved the THP and the date the motion for a Preliminary Injunction was granted. The loss of these trees, as well as changes in CDF policies spurred by this Preliminary Injunction and the results of other EPIC cases, was the basis for the trial court's dismissal of this case on grounds of mootness. While the appellate court upheld the trial court's decision of mootness, it also stated that "The record ... leaves no doubt that environmental litigation, such as [EPIC's] Preliminary Injunction in this case, played an important role in bringing about changes in departmental policies. To this extent, the issue of mootness is a product of [EPIC's] own success." One of the THPs at issue in this suit was located in the area of the Headwaters Forest complex, near Lawrence Creek. Procedure: THP 1-87-625 HUM, 1-87-690 HUM, 1-87-619 HUM approved March 1988. EPIC filed Petition 3/18/88 (Humboldt Ct. #81790, Judge Buffington). Simpson Timber Company withdrew its plans to log THP 1-87-619. The trial judge disqualified the Attorney General on 1/4/89 for a conflict of interest based on his failure to represent the public interest. Even though this was reversed by the appellate court (#A045615), the Attorney General removed himself from this and other pending forestry lawsuits, forcing state agencies to find private counsel. Suit dismissed for mootness, because THPs completed and because regulations had been changed. Appellate court upheld dismissal, 5/27/92, but held EPIC entitled to fees under CCP §1021.5. Appellate decision published at 4 Cal.App.4th 1373. Status: final. Attorneys: Thomas Lippe, R. Jay Moller, Kenneth Collins, Bruce Towner.
EPIC Contact: The Man Who Walks in the Woods

5) SIERRA CLUB AND EPIC v. BOARD OF FORESTRY, et al.
A unanimous California Supreme Court held that the Board of Forestry cannot approve a THP which fails to include information regarding the presence in the plan area of old-growth-dependent species where such information is requested by the California Department of Forestry in order to evaluate adverse environmental impacts. Significantly, the Court held that in approving THPs the Board of Forestry must comply not only with the provisions of the Forest Practice Act , but also with the more extensive requirements of CEQA, thus affirming the standard previously imposed by an appellate court in EPIC v. Johnson (see #1 above). The Supreme Court ruled that CEQA does vest CDF with authority to require information not expressly specified in the Forest Practice Rules if the information requested is necessary to determine whether a THP will have a significant adverse environmental impact or to determine if the plan has incorporated feasible measures to reduce those impacts. Therefore, agency approval of plans without the necessary information violates both CEQA and the Forest Practice Act. Conclusions by the California Department of Fish and Game as to possible effects of timber harvesting on wildlife must be considered by the Board of Forestry, according to the Supreme Court. Because possible destruction of both old-growth-dependent species and their habitat from harvesting of old growth timber can fairly be described as significant and adverse, the Board of Forestry, through the California Department of Forestry, has an obligation imposed by CEQA to collect information regarding presence of old-growth-dependent species on the proposed logging plans. The Court rejected Pacific Lumber's rationale that extensive surveys to address wildlife effects were not appropriate because of the cost and time such surveys could impose on landowners. This case stemmed from Pacific Lumber's plans to cut 325 acres of unentered old-growth redwood and Douglas fir at Lawrence and Shaw Creeks within the Headwaters Forest complex, and the consequent impact such logging would have on the red tree vole, the marbled murrelet, the goshawk and the spotted owl. The suit was brought by EPIC and the Sierra Club against the California Board of Forestry, Maxxam Corporation, and the Pacific Lumber Company. Procedure: THPs 1-88-65 HUM & 1-88-74 HUM both denied by CDF 4/19/88 as incomplete because Pacific Lumber refused to provide requested wildlife information. The Board of Forestry overturned CDF's denial on 6/8/88. EPIC filed Petition for Writ of Mandate 6/16/88 (Humboldt Ct. #82371, Judge Buffington). TRO denied 6/28/88; EPIC appeals and granted Stay 7/1 and Alternative Writ 8/15/88 (#A047924). On remand, Trial court returned THPs to Board for further findings on 2/9/89. Trial court then denied Writ on 10/23/89 based on Board's finding of no significant impact to old-growth dependent species or habitat. EPIC appeals again, and Appeals court issued Writ of Supersedeas staying logging pending appeal. Appeals court reversed and remanded with instructions to Trial Court for denial of both THPs. Petitions for rehearing filed by Pacific Lumber, CDF, and Sierra Club/EPIC. The Appellate court redecided the case on 3/18/92, holding for EPIC. Appellate decision published at 4 Cal.App. 4th 982 (1992). The California Supreme Ct. granted Pacific Lumber's petition for review (#S026367).. Status: final -California Supreme Ct. unanimous decision for EPIC published at 7 Cal.4th 1215 (July 21, 1994). EPIC recovered attorneys' fees under CCP 1021.5. Attorneys: Thomas Lippe, Bruce Towner, Richard Jay Moller
EPIC Contact: The Man Who Walks in the Woods

6) SIERRA CLUB AND EPIC v. CDF ("Salmon")
EPIC contested CDF's approval of a THP without ordering implementation of feasible alternatives and mitigation measures for old-growth species as specified by the Department of Fish and Game. The court held that CDF had imposed upon Fish and Game standards of proof (i.e. 'beyond a reasonable doubt') which were not authorized by law. Trial court set aside approval of the THP on grounds that cumulative impacts on watershed and wildlife were inadequately considered. Pacific Lumber planned to cut an unentered 230 acre old-growth redwood and Douglas fir grove on Salmon Creek in the Headwaters Forest, which contained marbled murrelet nesting sites. Procedure: 1-88-462 HUM approved 9/9/88. EPIC filed Petition 9/20/88 (Humboldt Ct. #82983, Judge Ferroggiaro). TRO requested 10/24/88; TRO denied. EPIC appeals and stay issued by appellate court 10/27/88 (#A043997); Preliminary Injunction granted 12/16/88. Suit then dismissed for failure to request hearing within 90 days of filing suit; dismissal successfully appealed and case consolidated with Sierra v. Imboden (see below) on 7/12/89. Appellate court reinstated the case on 11/21/90; Trial court finally issued Writ of Mandate 12/4/91. Status: final - THP inadequate. Appellate decision depublished by California Supreme Court. Attorneys: Joseph Brecher (Sierra Club Legal Defense Fund), Michael Golden
EPIC Contacts: Cecelia Lanman, Charles Powell

7) Californians for Native Salmon & Steelhead Association, et al. v.
CDF ("Pattern & Practice")
EPIC sought a judicial declaration that the California Department of Forestry's continuing practice of failing to analyze and mitigate cumulative impacts and of failing to respond to public comments constituted an agency policy. This litigation resulted in a published appellate opinion that established a pattern and practice cause of action. A settlement instituted cumulative impact rules and practices, as well as a rule change requiring agency response to public comments by the THP approval date. The challenge referenced 65 separate THPs approved by CDF. The original challenge was to an Eel River Sawmills plan to clearcut 76 acres of old-growth and second-growth in the Mattole River watershed at Baker Creek. The suit was brought by EPIC, Californians for Native Salmon and Steelhead Association, and Fred "Coyote" Downey, a Native American of the Wailaki People, against CDF, Len Theiss as CDF Resource Manager, Gerald Partain as Director of CDF, the State Board of Forestry, and the Secretary of the California Resources Agency. Procedure: 1-88-520 HUM/MEN approved 10/25/88 despite Department of Fish and Game nonconcurrence. Petition for Writ filed 11/15/88 in California Superior Court (Humboldt #83329, Judge McFarland). 65 additional THPs were then incorporated into the suit. The timber company canceled THP 1-88-520 and was dismissed from the action. The state agency demurred on the grounds that the suit was moot. Demurrer and dismissal granted by visiting Judge Langhauser 4/28/89. Dismissal reversed on appeal 6/5/90 on grounds that EPIC had stated a valid cause of action (A046232) against the agency. Supreme Court denied review 9/19/90. Appellate decision published at 221 Cal.App.3d 1419. Settlement included an award of attorneys' fees. Status: final - 1993 Settlement. Same THP resubmitted as 1-89-230 HUM/MEN. Attorneys: Sharon Duggan, Joseph Cotchett, Michael Remy, John Fitzgerald
EPIC Contacts: Cecelia Lanman, Charles Powell

8) Sierra Club & EPIC v. Imboden & CDF ("Owl I")
EPIC challenged Pacific Lumber's plan to log 226 acres of an unentered old-growth redwood/Douglas fir grove in the Owl Creek drainage without implementing the wildlife mitigations requested by the Department of Fish and Game. This THP was planned for an area containing marbled murrelet nesting sites and which was in close proximity to the area later litigated in EPIC v. Pacific Lumber (see #14 and #18 below). Procedure: THP 1-88-515 HUM approved 11/1/88. Petition for Writ filed by EPIC 11/30/88 (Humboldt Ct. #83428, Judge MacFarland). TRO issued with bond of $50,000 in 12/88. 12/9/88 Writ and Emergency Stay was issued by the Court of Appeal (#AO44393) holding that the bond was not required. Dismissed by trial court on procedural grounds, but reinstated by appellate court. Consolidated with Sierra v. CDF (see #6 above). Status: final - THP inadequate. Appellate decision depublished by Supreme Court. Attorneys: Joseph Brecher and Julie McDonald (Sierra Club Legal Defense Fund) Michael Golden
EPIC Contacts: Cecelia Lanman, Charles Powell

9) Sierra Club & EPIC v. Imboden & CDF ("Owl I")
In its first case in Federal Court, EPIC sought further environmental review by the U.S. Bureau of Land Management (BLM) before BLM decided whether to allow the proposed Elkhorn Ridge timber sale within a roadless, old-growth forest adjacent to the South Fork Eel Wild and Scenic River. Following the court's issuance of a Temporary Restraining Order, BLM suspended approval of this sale until it had conducted further environmental review. After five years of further review, the BLM decided not to allow harvest of the Elkhorn Ridge timber sale. This suit was brought by EPIC, the Wilderness Society, the Ancient Forest Defense Fund, Sierra Club, California Trout, Friends of the River, California Wilderness Coalition, Eric Swanson, Jo Anne Swanson, and Steven Day against Ed Hasty, California State Director, U.S. Bureau of Land Management. Procedure: Complaint filed 3/31/89 in federal District Court (C-89-1093 EFL). Temporary Restraining Order issued. BLM issued Record of Decision 5/27/94. Status: final - Record of Decision to not allow logging. Attorney: Stephan Volker (Sierra Club Legal Defense Fund)
EPIC Contact: Steven Day

10) Sierra Club & EPIC v. Theiss
Following dismissal in previous case, Sierra v. Imboden, EPIC filed this action realleging the same violations, except for those based on CEQA. This suit was filed against Leonard Theiss, CDF Region 1 Resource Manager. Procedure: THP 1-88-515 HUM. Petition for Writ filed 6/12/89 (Humboldt Ct. #DR84664, Judge Hennigan). On 9/12/89 trial court ordered action abated pending outcome of Sierra v. Imboden and sanctioned plaintiffs. Sanctions appealed (#A047319) 9/25/89; on 6/10/91 the Court of Appeal reversed and remanded to trial court for further hearing. Status: final - Court dismissed for plaintiffs' failure to prosecute, but victory in Sierra v. Imboden renders this suit moot. Attorneys: Joseph Brecher (Sierra Club Legal Defense Fund), Michael Golden
EPIC Contacts: Cecelia Lanman, Charles Powell

11) EPIC & Sierra Club v. CDF ("All Species Grove")
The California Department of Forestry approved a THP in which Pacific Lumber refused both to conduct site-specific wildlife surveys and to incorporate mitigations proposed by the Department of Fish and Game. The proposed logging plan would have cut 186 acres of unentered old-growth redwood and Douglas fir at the confluence of Bell and Lawrence Creeks in the Headwaters Forest complex. Procedure: THP 1-90-069 HUM approved 5/4/90. EPIC filed Petition for Writ of Mandate 5/4/90 (Humboldt Ct. #90CP0341, Judge Nelson). Sierra Club filed Petition for Writ of Mandate 6/3/90 (Humboldt Ct. #90CP0405) which was consolidated with EPIC's Writ petition. TRO issued 5/9/90. Trial court denied Writ 6/5/92. Appellate court issued Writ of Supersedeas enjoining logging pending appeal (#A058587). Status: final - EPIC's appeal dismissed as moot, 8/16/95, since Pacific Lumber withdrew THP following Supreme Court decision in Sierra Club and EPIC v. Board of Forestry (case #5). Attorneys: Thomas Lippe, R. Jay Moller, Ken Collins
EPIC Contacts: Charles Powell, The Man Who Walks in the Woods

12) Coastal Headwaters Association v. CDF I ("Goshawk Grove I")
EPIC filed suit over CDF's approval of an Eel River Sawmills plan to log 58 acres of diverse forest in the Mattole River Watershed at the confluence of Helen Barnum and Lost Man Creeks which would cause fragmentation of remaining old-growth habitat and adversely impact fish spawning habitat. The Trial court found that the THP was incomplete and inaccurate when filed and that CDF should have returned the THP to the timber company. This suit was filed by EPIC, the Coastal Headwaters Association, Mattole Watershed Salmon Support Group, Inter-Tribal Sinkyone Wilderness Council, and B. Ann Robbins against CDF, Ray Utterback in his capacity as CDF Region 1 Resource Manager, Harold Walt in his capacity as Director of the California Department of Forestry, the State Board of Forestry, the Secretary of the California Department of Fish and Game, the North Coast Regional Water Quality Control Board, Eel River Sawmills, and Barnum Timber Company. Procedure: THP # 1-90-063 MEN approved 5/2/90. EPIC filed Petition for Writ of Mandate 5/15/90 (Mendocino Ct. #60344, Judge Luther). Writ granted 1/2/91. Status: final - THP was found to be incomplete and inaccurate. This THP was later resubmitted but the agency found it still deficient, so it was withdrawn. Attorney: Sharon Duggan EPIC Contact: Charles Powell

13) Coastal Headwaters Association v. CDF II
EPIC litigated three Barnum Timber THPs for failure to address cumulative impacts and failure to respond to public comments. The THPs at issue here covered 746 acres of old-growth and second-growth redwood and mixed conifer forest in three southern Humboldt County watersheds. This suit was brought by EPIC, Coastal Headwaters Association, and the Inter-Tribal Wilderness Council against CDF, Ray Utterback, Harold Walt, the State Board of Forestry, the Secretary of the California Resources Agency, and Barnum Timber. Procedure: THPs 1-90-179 HUM, 1-90-188 HUM, 1-90-426 HUM approved November 1990. Petition for Writ filed 12/3/90 (Humboldt Ct. #91CPO162, Judge Weir). Trial 4/18/91. Notice of Intended Decision issued 6/17/91. Status: final - trial court held CDF improperly approved all three THPs and that CDF must give reasoned responses to significant environmental issues raised by the public, including those in generic letters. Attorney: Sharon Duggan
EPIC Contact: Charles Powell

14) EPIC & Sierra Club v. Board of Forestry ("Owl II")
Since 4/11/90 EPIC has fought the Pacific Lumber Company's (PL) plans to log 237 acres at the core of the ancient redwood/Douglas fir grove known as Owl Creek, located within the Headwaters Forest complex. The California Department of Forestry originally rejected this THP because the THP lacked adequate information on the marbled murrelet, at the time a state 'candidate' species, and then denied the Plan on 1/30/91 because Pacific Lumber refused to provide murrelet surveys and mitigations. After Pacific Lumber appealed, the Board of Forestry approved the THP over the objections of CDF, the California Department of Fish & Game, the Attorney General and their own counsel. EPIC sued the Board of Forestry in State Superior Court in March, 1991 alleging that the plan would violate the California Endangered Species Act (CESA) and convinced a Humboldt County Judge to require the Board to reconsider the Plan. On 3/6/92 the Board reapproved the plan conditioned on Pacific Lumber performing adequate murrelet surveys. According to state and federal officials Pacific Lumber has never met these conditions. On 3/12/92 the murrelet was listed by the Department of Fish and Game as 'endangered' under CESA. In June, 1992 Pacific Lumber began weekend logging operations in the Owl Creek grove without consulting with state or federal wildlife agencies as required by law. After 3 days of illegal logging, the company ceased operations only after being threatened with legal proceedings. This illegal cut netted Pacific Lumber over $1,000,000. In September, 1992 EPIC obtained a Temporary Restraining Order preventing PL from re-entering the grove. After the marbled murrelet was listed by the U.S. Fish and Wildlife Service as 'threatened' EPIC filed suit in federal District Court (see Marbled Murrelet v. Pacific Lumber, #18 below). Procedure: THP 1-90-237 HUM rejected for filing 4/19/90 and denied by CDF 1/30/91; Pacific Lumber appealed; approved by Board of Forestry 3/6/91. EPIC filed Petition for Writ 3/26/91 (Humboldt Ct. #91CPO244, Judge Ferroggiaro). Trial court granted Alternative Writ 8/6/91 requiring the Board to reconsider the THP. The Board returned to court arguing compliance and reapproved the plan 3/6/92 conditioned on adequate murrelet surveys being performed. EPIC sought a Supplemental Writ 9/18/92 until the surveys were actually performed and was granted a TRO. While Pacific Lumber challenged Judge Ferroggiaro as biased, visiting Judge Hatch granted their Demurrer. EPIC was granted an Emergency Stay by the Appellate Court 12/1/92 (#A059797). Case transferred from Division One to Division Five on 1/19/93. PL's Petition for Review by Supreme Court denied 5/20/93 (#S031969). When the state appellate court (#A059875) lifted this Stay in November, 1993 EPIC was granted a TRO in federal District Court (see #18 below). Status: final - Case was dismissed (11-15-93) on procedural grounds. (By the date of dismissal the grove was protected by case #18). Attorneys: Joseph Brecher and Julie McDonald (Sierra Club Legal Defense Fund), Mark Harris, Rod Jones
EPIC Contacts: Charles Powell, Cecelia Lanman

15) EPIC v. CDF ("Tom Long Creek")
EPIC and the Tom Long Watershed Association brought suit regarding a plan to cut 406 acres, including 24 acres of old-growth mixed conifer on the South Fork watershed of the Eel River, in southern Humboldt County. The area may serve as habitat for many wildlife species at risk. The suit was brought against CDF, Tom Osipowich as Acting Resource Manager of CDF Region 1, Richard Wilson as Director of CDF, the State Board of Forestry, the Secretary of the California Resources Agency, the State of California, and Eel River Sawmills. Procedure: THP 1-91-046 HUM approved 12/6/91. EPIC filed Petition for Writ 1/6/92 (Humboldt Ct. #92DR0005, Judge Nelson). Status: final - 1992 mediated settlement included agreement by defendants to survey for one and one-half years for murrelets, voles, osprey, eagles and goshawks accompanied by EPIC member. Attorneys: Bill Verick, Sharon Duggan
EPIC Contact: Charles Powell

16) Little River Alliance & EPIC v. CDF
EPIC and the Little River Alliance challenged six THPs filed in one of California's most depleted watersheds near Trinidad, arguing that the California Department of Forestry approved the THPs without assessing the cumulative impacts of such logging to Bald Eagles and other forest resources. The proposed logging plans (five by Louisiana-Pacific and one by Simpson Timber) were located in a watershed in which a total of 442 logging plans had been approved during the previous six years, which together, involved the clearcuting of 26% of the watershed . The suit was filed against CDF, Ray Utterback, Lloyd Keefer, Richard Wilson, the State Board of Forestry, the Secretary of the California Resources Agency, the State of California, the Louisiana Pacific Corporation, Simpson Redwood Company, and Simpson Timber Company. Procedure: Six THPs (1-91-341 HUM, 1-91-361 HUM, 1-91-369 HUM, 1-91-374 HUM, 1-92-010 HUM, 1-92-012 HUM) approved April and May of 1992. EPIC files Petition for Writ of Mandate 5/6/92 (Humboldt Ct. #92CPO326). Judge Buffington delayed issuing a TRO while logging commenced. Trial court then denied TRO on grounds that court wanted to review the administrative record. Appellate court issued Stay May 1992 and chastised trial court's rationale (#A057592). Status: final - No abuse of discretion by California Department of Forestry; Adequacy of mitigations, alternatives, and cumulative impact analysis to be judged by forestry rules only, not CEQA. Appellate court affirmed trial court decision. (Note: this decision was issued prior to the unanimous Supreme Court decision in Sierra Club and EPIC v. Board of Forestry (see #5 above)). Attorneys: Bill Verick, Sharon Duggan
EPIC Contact: Dan Zimmerman

17) Children for Old Growth & EPIC v. CDF ("Turwar")
EPIC and CFOG contested a plan by Miller Redwood to clearcut a 60 acre grove of previously unentered redwood/Douglas fir, which was the last such island of old-growth in Del Norte County's Turwar Creek drainage. Suit was brought against CDF, Lloyd Keefer, Ray Utterback, Richard Wilson, the State Board of Forestry, the Secretary of the California Resources Agency, the State of California, and Miller Timber Company. Trial court held that the THP process was not subject to CEQA. (Note: this decision was issued prior to the unanimous Supreme Court decision in Sierra Club and EPIC v. Board of Forestry (see #5 above)). Procedure: THP 1-92-031 DEL approved 5/11/92. EPIC filed Petition for Writ of Mandate 6/2/92 in San Francisco Superior Court (#943344). TRO issued 6/5/92. Venue changed to Del Norte County (Del Norte #92-0697). Status: final - EPIC dismissed this challenge after the Court of Appeal (#A061092) refused to issue a stay while EPIC appealed the highly questionable trial court decision. Attorneys: Bill Verick, Sharon Duggan
EPIC Contact: Charles Powell

18) Marbled Murrelet & EPIC v. Pacific Lumber ("Owl Creek Federal Case")
In EPIC's first federal Endangered Species Act case, the court determined that Pacific Lumber's plans to log 237 acres of contiguous old-growth forest in Owl Creek under THP 1-90-237 HUM would violate section 9 of the ESA by harassing and harming the threatened marbled murrelet. Thus, the court permanently enjoined the company from executing its logging plan . EPIC's suit was precedent-setting as being the first time the ESA was applied to stop logging on private forest land in order to conserve the habitat of an endangered species. The district court judge noted that "EPIC has served the public interest by assisting the interpretation and implementation of the ESA." On 10/1/92 the U.S. Fish & Wildlife Service listed the marbled murrelet as threatened with extinction. Despite the ESA's clear prohibition against injuring or killing listed species, Pacific Lumber resumed logging in the murrelet occupied Owl Creek grove during Thanksgiving weekend, 1992, stopping only after EPIC received an Emergency Stay from the California Court of Appeal . In March 1993 Pacific Lumber removed the timber it had illegally cut in November, netting another $1,000,000 from its illegal acts. EPIC then filed suit in federal court in April 1993. EPIC received a Preliminary Injunction on February 2, 1994 and a permanent injunction a year later on February 27, 1995. The Ninth Circuit U.S. Court of Appeals affirmed the district court judgement May 7, 1996. On February 18, 1997 the U.S. Supreme Court refused to hear Pacific Lumber's final appeal. EPIC alleged that the acts of Pacific Lumber in their logging of Owl Creek constituted a 'take' in violation of the federal and state Endangered Species Acts. EPIC alleged that logging as planned would either significantly disrupt the marbled murrelet's normal behavioral patterns or actually injure or kill murrelets, because it would increase the chance of murrelet predation and remove the nesting habitat the murrelet needs. The court found that EPIC had proved that Owl Creek is suitable habitat for the marbled murrelet, that murrelets are nesting in THP 237, and that this logging plan would both significantly disrupt normal behaviors and would actually kill or injure murrelets. The court noted that Pacific Lumber was committed to cutting trees at all costs and had used fraudulent wildlife surveying techniques. This suit was brought by EPIC on behalf of the Marbled Murrelet against Bruce Babbitt, Secretary, Department of the Interior, John Turner, Director, U.S. Fish and Wildlife Service, Marvin Plenert, USFWS Region 1 Director, the U.S. Fish and Wildlife Service, the Pacific Lumber Company, the California State Board of Forestry, CDF, and the California Department of Fish and Game. Procedure: Suit filed in U.S. District Court 4/16/93 (C-93-1400, Judge Fern M. Smith). On 9/1/93 EPIC's claims against federal and state defendants, as well as claims under the California Endangered Species Act dismissed. Judge Fern Smith issued Preliminary Injunction 2/2/94. Before trial, Pacific Lumber was sanctioned $6,275 for withholding information from EPIC. Trial held August 15-24 and September 6-9, 1994 before visiting Judge Louis Bechtle. District Court found that this THP would both 'harass' and 'harm' the marbled murrelet in violation of the federal Endangered Species Act. On 2/27/95 District Court permanently enjoined Pacific Lumber from implementing THP 237 (decision published at 880 F. Supp.1343), awarding EPIC costs, attorney and expert witness fees totaling over one million dollars (published at 163 FRD 308). EPIC's appeal of the dismissal of state and federal defendants was dismissed by the 9th Circuit (#94-15194) in July 1995 on procedural grounds. Pacific Lumber appealed the Injunction in November 1995. Appeal heard 3/14/96. Ninth Circuit affirmed district court judgement 5/7/96 (83 F.3d 1060). Pacific Lumber Petition for Reconsideration denied by Court of Appeal, 6/26/96. Pacific Lumber filed Petition for Writ of Certiorari to U.S. Supreme Court. Status: final - 2/18/97 U.S. Supreme Court unanimously ruled that they would not hear Pacific Lumber's appeal, giving EPIC and the Marbled Murrelet final victory. Attorneys: Mark P. Harris, Macon Cowles, Susan O'Neill, Charles S. Crandall, William A. Rossbach, Brian Gaffney, Rodney Jones, John Paul Graff, Stephan Volker (Sierra Club Legal Defense Fund)
EPIC Contacts: Cecelia Lanman, Jamie Romeo

19) Coastal Headwaters Association & EPIC v. CDF III ("Goshawk Grove II")
EPIC again brought suit (see case #12) over CDF's approval of a plan to log 58 acres of mature forest in the headwaters of the Mattole River watershed. EPIC's suit alleged that the logging would cause significant and cumulative impacts, including further fragmentation of the remaining old-growth habitat and impairment of stream restoration, that alternatives and mitigations were not considered, and that the agency did not adequately respond to comments. In addition, EPIC sought a judicial declaration that CDF lacks authority to approve THPs because of its continued approval of such inadequate THPs. This suit was brought against CDF, Tom Osipowich, Richard Wilson, Eel River Sawmills, and Barnum Timber. Procedure: THP # 1-92-187 MEN approved 9/15/93. Petition for Writ of Mandate filed 10/14/93 (Mendocino Ct. # 68285). Public Comment period reopened in 8/94; CDF re-approved the plan. Status: final - Trial judge, King, ruled 5/8/95 in favor of the defendant. Agreement reached between Eel River Sawmills, Barnum Timber and Save-the-Redwoods League for land purchase. Land will be made part of Sinkyone Wilderness State Park in the Shadowbrook section in the Mattole River corridor. Attorney: Sharon Duggan
EPIC Contact: Laurel Sarachek

20) EPIC v. CDF ("3-Acre Exemptions")
This suit, brought against CDF and the Board of Forestry, established that it was illegal for the Board of Forestry to exempt logging on parcels smaller than 3 acres from the requirement of preparing a timber harvest plan . Persons planning to log parcels of 3 acres or less must now submit a THP. Procedure: Complaint filed 2/28/94 (San Francisco Ct. #958445, Judge Cahill). Summary judgment granted to EPIC 6/30/94. Declaratory Relief and Injunction granted. CDF appeal (#A067903) heard 1/24/96. California Court of Appeal, Division Two, affirmed trial court judgement 3/15/96 (published at 43 Cal. App. 4th 1011.) Status: final - State Supreme Court denied appellants petition to review, 6/12/96. Attorney fees awarded EPIC, 9/20/96. Attorneys: Thomas Lippe, David Fox
EPIC Contact: Charles Powell

21) EPIC v. CDF ("Seven THPs")
EPIC challenged California Department of Forestry's approval of seven THPs without the issuance of an official response to public comments. Each of the THPs challenged involved residual old-growth groves, two of which were directly adjacent to suitable marbled murrelet nesting habitat. Of the seven THPs, six were Pacific Lumber plans within the Headwaters Forest complex; one was an Eel River Sawmills plan in the 'North Fork Study Area' of the Headwaters Forest complex. EPIC additionally alleged failures to identify significant and cumulative impacts to the marbled murrelet, but these issues were never reached by the time the case was dismissed on procedural grounds. Procedure: THPs 1-93-398 HUM, 1-93-414 HUM, 1-93-458 HUM, 1-94-044 HUM, 1-94-086 HUM, 1-94-096, 1-94-105 HUM approved between 10/93 and 4/94. EPIC filed Petition for Writ 4/29/94 (Humboldt Ct. #94CPO317, Judge Buffington). TRO denied 5/10/94; Stay denied by Court of Appeal 5/17/94. EPIC's motion on 7/27/94 requesting a hearing date was repeatedly delayed by the self-disqualification of three Humboldt Court judges because of conflicts. Amended Petition filed 8/17/94. EPIC's Alternative Writ/TRO motion (9/27/94) denied and case dismissed by visiting Judge Vincent Lechowich. Status: final - Suit dismissed on 10/4/94 because hearing date not secured within 90 days of filing suit. Attorney: Brian Gaffney, James Pierce
EPIC Contact: Josh Kaufman

22) Sierra Club & EPIC v. Keefer & CDF ("State Headwaters Exemption")
In September 1994, during the Owl Creek trial, Pacific Lumber was quietly granted an exemption to salvage log 179,000 acres of land including at least 10 old-growth groves. Within days of EPIC's February 1995 victory in federal court (see #18 above) Pacific Lumber announced plans to salvage log an additional 6,000 acres, including the pristine 3000-acre Headwaters Grove, under another exemption. These exemptions were granted under a CDF rule which exempts logging of 'dead, diseased, and dying' trees from public comment or environmental review. EPIC sought a court order to withdraw approval and stay logging under the exemption rule for all the old-growth groves involved. In addition EPIC sought a declaration from the court that such 'exemptions' must fully comply with the environmental review requirements of CEQA. Procedure: Pacific Lumber filed with CDF Notice of Exemption (1-94EX-1110) for 179,000 acres on 9/21/94. The Headwaters Exemption (1-95EX-086) was filed on 3/1/95 for 6,000 acres. After returning the Headwaters Exemption on 3/6/95, CDF accepted it 3/15/95. EPIC filed suit (Humboldt Ct. #95DR0072) on 3/10/95 regarding the 179,000-acre exemption, and amended the suit on 3/21/95 to include the Headwaters Exemption. A standstill agreement was reached between EPIC and Pacific Lumber preventing cutting of ancient forest under the exemptions until decision by the court on the Preliminary Injunction. A hearing was held 3/1/95 before visiting Judge James Kleaver on EPIC's Motion for Preliminary Injunction and Pacific Lumber's Motion for Demurrer and Judgment on the Pleadings. On 5/18/95 Judge Kleaver ruled against EPIC on the merits and denied our request for a Preliminary Injunction. He also overruled Pacific Lumber's demurrer and motions to dismiss and for judgement on the pleadings. EPIC appealed, requesting an emergency stay (A070042). Petition for Writ of Supersedeas to halt operations until appeal hearing denied 6/6/95. [However, Preliminary Injunction received in federal court, see # 27.] Oral arguments heard 2/15/96 in California Court of Appeal, Division One. Status: final - Appeals court affirmed the trial court ruling which denied this CEQA challenge to the CDF exemption logging procedure, 2/23/96, unpublished. Attorneys: Joseph Brecher (Sierra Club Legal Defense Fund), David Henkin, Michael Golden
EPIC Contact: Cecelia Lanman

23) THRON AND EPIC v. PACIFIC LUMBER, et al. ("Yager Creek")
Challenging logging of residual old-growth forests, EPIC filed suit to protect the forests and salmon fisheries located within the Yager Creek drainage of the Headwaters Forest complex. Yager Creek drainage, supporting chinook salmon, steelhead trout and coho salmon, is one of the last salmon producing basins in the region. Logging has resulted in erosion, sedimentation, and a 96% loss of forest canopy. Habitat for bald eagles, northern spotted owls, and marbled murrelets has also been adversely impacted. This suit was brought by Doug Thron, The Bald Eagle and Salmon Restoration Project, and EPIC against Pacific Lumber Company, Scotia Pacific Holding Company, CDF, Tom Osipowich as Deputy Chief of CDF Region 1, Lloyd Keefer as Chief of Region of CDF, and Richard Wilson as Director of CDF. Procedure: In early 1995 PL submitted plans to log five THPs (1-94-558 HUM, 1-95-002 HUM, 1-95-042 HUM, 1-95-072 HUM, 1-95-075 HUM) involving thousands of acres of residual forest within the Yager Creek drainage and its tributaries. THP 95-042 on Blanton Creek was approved on 4/10/95 and logging commenced. EPIC filed suit (Humboldt Ct. #95DRO100) on 4/10/95 and a Temporary Restraining Order (TRO) was issued on 4/12/95 by Judge Buffington. PL temporarily closed Mill A at Scotia in response to the TRO. Preliminary Injunction hearing set for 4/28/95 before Judge Buffington rescheduled to 5/5/95 before visiting Judge Kleaver after Buffington recused himself in response to PL media campaign and political pressures. Preliminary Injunction (for THP -042) denied 5/18/95, with TRO to remain in place until 5/31/95. EPIC appealed, filing Petition for Writ of Supersedeas; Emergency Stay granted 5/31. Writ of Supersedeas denied 6/13/95. Complaint alleging unfair business practices and Petition for Writ of Mandate (on THP -558) filed 6/23/95 (Humboldt Ct. #95DR0182). TRO issued 6/26/95 contingent on EPIC posting $10,000 bond. Bond was raised from the community in 24 hours. Preliminary Injunction denied 7/29/95. Status: final - As logging commenced on the plans and seeing no relief from the court, EPIC dismissed suit in exchange for return of the bond to plaintiffs. Attorneys: Sharon Duggan, Dave Williams, Kirk Boyd
EPIC Contact: Jesse Noell

24. Oregon Natural Resource Council, et al. v. Brown ("Coho Salmon Listing")
The coho (silver) salmon is in danger of extinction throughout its range in Washington, Oregon, and California. Coho populations have plummeted over 90% since 1940 along the California coast. This suit, under the Endangered Species Act, sought to compel the Secretary of Commerce, Ronald H. Brown, and the Director of the National Marine Fisheries Service (NMFS), Rolland A. Schmitten, to make a determination whether listing coho salmon as endangered or threatened throughout this range is warranted, and, if so, to publish a proposed rule adding coho salmon to the list of threatened and endangered species. Twenty-four organizations joined as plaintiffs including Oregon Natural Resources Council, EPIC, Oregon Trout, Coast Action Group, Coast Range Association, Friends of the Garcia River, Friends of the River, Greater Ecosystem Alliance, Klamath Forest Alliance, Marble Mountain Audubon, Mendocino Environmental Center, Mount Shasta Area Audubon Society, Northcoast Environmental Center, Pilchuck Audubon Society, Portland Audubon Society, Save the West, Sierra Club, Siskiyou Audubon Society, Siskiyou Regional Education Project, Tenmile Creek Association, Trout Unlimited of California, Washington Trout, and the Western Ancient Forest Campaign. After a series of unjustified delays, and in response to this lawsuit, NMFS finally listed the southern and central California population of coho salmon as threatened on October 31, 1996, and the northern California/southern Oregon coho population as threatened on April 25, 1997. The northern and central Oregon population was not listed due to that state's watershed recovery plan . As a result it is now unlawful under the Endangered Species Act for anyone, including federal, state, and local agencies, as well as private companies and individuals, to do anything that harms coho salmon in these areas . In addition, federal agencies are supposed to take affirmative steps to recover the species. Procedure: Complaint filed 6/1/95 in U.S. District Court (C-95-1844, Judge Vaughn Walker reassigned to Judge Susan Illston). On 10/11/95 motions for Summary Judgement filed by both plaintiffs and the government. Motions heard 12/1/95 by Judge Illston. Decision filed 12/18/95, ruling in our favor on three important points, but against us on one. The court acted as follows: --granted 1) standing; 2) that NMFS violated the law by failing to publish the proposed rule by October 20, 1994; --agreed with the government that final rule was due July 25, 1996 (we argued it was due October 20, 1995); --denied the government's claim that case was moot and ought to be dismissed. The court retained jurisdiction over the case until NMFS published a final rule. On October 31, 1996, pursuant to court order, NMFS published its final rule listing as threatened the "Central California Coast Salmon Evolutionarily Significant Unit (ESU)." At the same time, NMFS postponed for six months, until April 25, 1997, its final determination whether to list the "Oregon Coast ESU" and the "Southern Oregon/Northern California ESU." Status: pending further action regarding the "Oregon Coast ESU" - The "Southern Oregon/Northern California ESU" was listed as "threatened" under the federal Endangered Species Act on April 25, 1997. The "Oregon Coast ESU" was declined for listing. Attorney: Michael Sherwood (Sierra Club Legal Defense Fund)
EPIC Contact: Jesse Noell

25. Planning and Conservation League, et al. v. DFG ("CESA suit")
In March 1995 California Governor Pete Wilson and the Department of Fish and Game issued a five-year, Emergency Management Measures Permit suspending protections for threatened, endangered, and candidate species, effectively gutting the California Endangered Species Act. This suit alleges the Governor of California exceeded his authority under the Emergency Services Act. The permit would allow unlimited and indiscriminate take of species without any associated management activities designed to provide a benefit to the species. Thirteen organizations joined as plaintiffs including The Planning and Conservation League, EPIC, Natural Resources Defense Council, Sierra Club, National Audubon Society, Monterey Peninsula Audubon Society, Golden Gate Audubon Society, California Association of Professional Scientists, California Trout, Mountain Lion Foundation, California Native Plant Society, and Friends of the Swainson's Hawk. Suit was filed against the California Department of Fish and Game, and Pete Wilson, Governor of the State of California. Procedure: Complaint filed 6/6/95 in San Francisco County Superior Court (970119). Petition for Writ of Mandate granted by the court on 1/17/96. Status: - Trial court ruled in favor of the plaintiffs citing that the Department of Fish and Game had exceeded its authority under the California Endangered Species Act in issuing the Emergency Management Measures Permit. First Appellate District unanimously affirmed trial court decision, 4/10/97 . Attorney: J. William Yeates
EPIC Contacts: Brian Gaffney

26. Oregon Natural Resources Council, et al. v. Brown ("Steelhead Trout Listing")
The Steelhead trout, a species of Pacific salmon, is in danger of extinction throughout its range in Washington, Oregon, Idaho and California. Plaintiffs brought suit under the Endangered Species Act to compel a determination whether listing steelhead trout as endangered or threatened throughout this range is warranted, and, if so, to publish proposed and final rules adding steelhead to the list of threatened and endangered species and designating critical habitat. On February 16, 1994 plaintiffs filed a petition with NMFS, requesting that the steelhead trout be added to the endangered species list. The court ruled in March 1996 that the National Marine Fisheries Service (NMFS) "violated the ESA and the Administrative Procedure Act (APA) by failing to issue a proposed rule by February 16, 1995," but also held that because of the budget freeze, "at the present time defendants cannot be ordered to comply with their duties under the ESA." Retaining jurisdiction, the court ordered the government to submit a reasonable timetable for the issuance of the proposed ruling on listing within 30 days from the time funds are appropriated for their ESA duties. Judge Illston's 6/24/96 order responded to NMFS' proposed timetable and request for an additional six month extension with "the steelhead trout have been under study by defendants since at least May 20, 1993 ... the time has come for action--not for further study or reprioritizing pending petitions." Seventeen months late and under court order, NMFS finally published its listing proposal for west coast steelhead trout populations. As in the Coho listing case, the date for final rule is one year from the date the proposed rule is actually published in the Federal Register, not one year from the date the proposed rule legally should have been published. Thus, final rules were due by August 9, 1997. This suit was filed by the Sierra Club Legal Defense Fund on behalf of a coalition of groups including: Oregon Natural Resources Council, EPIC, California Sport Fishing Protection Alliance, California Trout, Carmel River Steelhead Association, Coast Range Association, Federation of Fly Fishers, Friends of the Santa Clara River, Friends of the Ventura River, Keep the Sespe Wild Committee, Northwest Ecosystem Alliance, Oregon Wildlife Federation, Pilchuck Audubon Society, Sacramento River Preservation Trust, Santa Barbara Urban Creeks Council, Save the West, Siskiyou Regional Education Project, The Nature School, Washington Trout and the Western Ancient Forest Campaign, all non-profit organizations, against Ronald Brown, Secretary of Commerce and Rolland Schmitten, Director, NMFS. Procedure: On 9/6/95 plaintiffs filed Complaint in U.S. District Court (C-95-3117, Judge Vaughn Walker, case transferred 9/25/95 to Judge Susan Illston). Motion for Summary Judgement filed 12/19/95. Decision issued 3/19/96 ruling that the deadline for action by NMFS on a proposed regulation listing Pacific coast Steelhead trout populations was 2/16/95 and that the agency had violated the ESA and APA; the court ordered NMFS to comply with their ESA listing duties in a "reasonable" time period. NMFS proposed 12/3/96 to issue the rule. On 6/24/96 Judge Illston ordered the rule to be issued by 7/31/96. On 8/9/96 NMFS issued a proposed rule to list 10 of the 15 population segments of west coast steelhead; final rules due by 8/9/97. Status: NMFS listed Steelhead Trout, 8-12-97, as threatened in some areas of the state, and endangered in Southern California, but delayed the listing in northern California for six months. Attorneys: Michael Sherwood and Hank Bates (Sierra Club Legal Defense Fund)
EPIC Contact: Jesse Noell

27. Marbled Murrelet, Northern Spotted Owl & EPIC v. Bruce Babbitt, et.al. ("Federal Exemption suit")
On March 1, 1995, three days after the victorious Owl Creek decision permanently enjoining a logging plan in that murrelet-occupied ancient grove, Pacific Lumber announced plans to salvage log the murrelet-occupied Headwaters Forest through "exemptions" to the Forest Practice Rules. Two other exemptions had been quietly filed earlier, leaving all of Pacific Lumber's 187,000 acres, including vast tracts of ancient forest and proposed murrelet "critical habitat," open to salvage logging. Under public pressure, the U.S. Fish and Wildlife Service imposed restrictions, allowing no operations during murrelet breeding season. EPIC brought suit alleging federal agency action and the need for a biological assessment or biological opinion under Section 7 of the Endangered Species Act and an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA). Further, EPIC alleged that such timber operations would cause a "take" of listed species in violation of Section 9 of the ESA. (Also see case #22, our state case against exemption salvage operations.) EPIC amended their complaint, 3/20/96, to include claims against eight Pacific Lumber timber harvest plans (THPs) approved under a Northern Spotted Owl Management Plan in concurrence with the FWS. Unable to maintain restraining orders with the court, EPIC dismissed ESA section nine claim in January 1997. Remaining claims, including one under section seven of the ESA arguing that the U.S. Fish and Wildlife Service must undertake a full biological opinion and jeopardy call, were dismissed by the court in June 1997. Pacific Lumber asked the court for $47,000 in costs plus $600,000 in attorney fees from EPIC. EPIC's opposition included amicus briefs from other environmental groups which would be affected by such bad precedents. This suit was filed against Bruce Babbitt, Secretary, Department of the Interior; Mollie Beattie, Director, USFWS; Michael Spear, Region 1 Director, USFWS; the U.S. Fish and Wildlife Service; The Pacific Lumber Company; Scotia Pacific Holding Company; and the Salmon Creek Corporation. Procedure: Complaint filed and Temporary Restraining Order on exemption operations (under section 7) issued 9/15/95 in U.S. District Court (C-95-3261, Judge Maxine M. Chesney); Preliminary Injunction granted 9/29/95 (under section 7). TRO on eight THPs received 3/18/96 (under section 7) (reassigned Judge Louis Bechtle); Preliminary Injunction issued 4/3/96. U.S. Court of Appeals, Ninth Circuit reversed Preliminary Injunction on exemptions (Section 7) and remanded case back to the district court, 5/7/96 (83 F.3d 1068). EPIC filed Renewed Motion for Preliminary Injunction on exemptions (Section 7) 8/26/96. EPIC filed Ex Parte Motion for TRO (Section 7) 9/12/96; denied 9/17/96. EPIC moved for TRO (Section 7) 9/13/96; denied 10/2/96. After operations began and apparent violations had occurred, EPIC filed Ex Parte Motion to Enforce Order Denying TRO and for TRO, 10/11/96; denied 10/15/96. EPIC filed Renewed Motion for TRO (Section 7) and/or Expedited Motion for Preliminary Injunction, 10/17/96; denied 10/22/97. EPIC dismissed ESA Section 9 claim with prejudice 1/6/97. Preliminary Injunction on eight THP's overturned by 9th Circuit, 4/18/97 (111 F.3d 1447). Defendants' motions for Summary Judgement on Section 7 were granted by USDC 6/18/97. Status: Awaiting decision on Pacific Lumber's fee motion against EPIC, hearing set 2/26/98. Attorneys: Thomas Lippe, Sharon Duggan, and Mark Harris
EPIC Contacts: Cecelia Lanman, Jamie Romeo

28. PACIFIC COAST FEDERATION OF FISHERMEN'S ASSOCIATIONS, et al. v. MARCUS ("303 d suit")
This suit goes beyond the "take" protections offered under the Endangered Species Act and seeks restoration of the commercial fisheries within a reasonable amount of time under the Clean Water Act. This suit sought to compel the Environmental Protection Agency to establish a schedule for promulgating Total Maximum Daily Loadings (TMDLs) for seventeen north coast rivers and streams whose fisheries are impaired. These studies were mandated by the Clean Water Act of 1972, but have never been completed. The suit was brought by the Sierra Club Legal Defense Fund on behalf of a broad coalition of fishermen's and environmental groups including the Pacific Coast Federation of Fishermen's Associations, EPIC, Golden Gate Fishermen's Association, Sierra Club, Coast Action Group, Friends of the Garcia, California Trout, Klamath Forest Alliance, Mendocino Environmental Center, Willits Environmental Center, California Wilderness Coalition, Friends of the Navarro River, South Fork Mountain Defense Committee, and the Northcoast Environmental Center against Felicia Marcus, Region IX Administrator, the Environmental Protection Agency (EPA) and Carol M. Browner, Administrator, EPA. A joint Consent Decree was submitted to the Court on March 6, 1997, which sets out a timeline in which TMDLs would be developed for the seventeen 303(d) listed north coast rivers. Yager Creek in the Headwaters Forest area and the South Fork of the Eel near Garberville are to be completed by 1999. The agreement binds state and federal agencies to set enforceable standards within ten years to limit the amount of sediment and keep water temperatures safe for spawning salmon. The agreement also includes interim deadlines to ensure that studies of some of the rivers are completed in a manner consistent with the timeline. We are pleased with what was agreed upon and will continue to monitor EPA's performance under the agreement to assure that there is full compliance. This settlement will likely provide a model for the two dozen other TMDL lawsuits pending in other states. Procedure: Complaint filed 12/14/95 in U.S. District Court in San Francisco (C-95-4474, Judge Marilyn Hall Patel). Consent Decree submitted to the Court on 3/6/97. Status: final - Consent Decree signed 3/8/97. Attorneys: Joseph Brecher and Stephan Volker (Sierra Club Legal Defense Fund)
EPIC Contact: Jesse Noell

29. Coho Salmon Defense Project & EPIC v. DFG &CDF
This suit challenged the approval of an Elk River Timber Company timber harvest plan (THP 1-96-059 HUM) to cut down approximately 395 acres of redwood forest along the South Fork Elk River in Humboldt County, California. The action challenged agency failure to uphold their statutory and public trust obligations to protect the imperiled Coho salmon from extirpation in this region. The South Fork Elk River is one of the most pristine streams left in California where viable populations of wild Coho salmon still spawn. This suit illustrated the importance of the Elk River to salmon survival in California. Consequently the announced Headwaters "deal" included parts of the Elk River drainage and important Coho corridors. Procedure: Complaint filed 6/10/96 (Humboldt Court # 96CPO420). Preliminary Injunction denied 7/10/96. Status: EPIC dismissed suit without prejudice to refile at a later date as to DFG, 7/23/96. Attorneys: Mark Harris and Sharon Duggan
EPIC Contact: Jesse Noell

30. Hayden et al. v. California Fish and Game Commission ("Chinook Listing Suit")
On April 6, 1996 the California Fish and Game Commission denied the petition to list the Spring Run Chinnook Salmon as a "candidate" for endangered species status under the California Endangered Species Act. This suit was filed by Tom Hayden, the Natural Resources Defense Council (NRDC), EPIC, Friends of the River, California Sportfishing Protection Alliance, Sacramento River Preservation Trust, the Bay Institute of San Francisco, and Save the San Francisco Bay Association against the California Fish and Game Commission, challenging the petition denial as an abuse of discretion. Procedure: Petition for Writ of Mandate filed 6/12/96 (San Francisco Superior Court # 978-935). Petition granted 2/21/97 (Judge William Cahill). Status: Writ granted 2/21/97; DFG was ordered to list the Spring Run Chinook Salmon as a candidate for endangered species status and to begin the process of determining if listing this species as "endangered" is warranted. Attorneys: Roger Beers, Joel Reynolds (NRDC), Cynthia Koehler (Natural Heritage Institute)
EPIC Contact: Jesse Noell

31. Pacific Lumber v. United States of America ("PL Takings Suit")
EPIC is not a plaintiff but a potential intervenor in this case brought by the Pacific Lumber Company and related subsidiaries against the United States of America. On July 24, 1996 Sierra Club and EPIC asked the Court of Federal Claims for permission to intervene in a lawsuit filed in May by Pacific Lumber Company. The suit seeks hundreds of millions of dollars from the federal treasury based on Pacific Lumber's claim that enforcement of the Endangered Species Act to protect the marbled murrelet, a threatened seabird, constitutes an illegal "taking" of its property. Pacific Lumber plans to log areas which would destroy the birds' habitat. This "Takings" suit, which we believe is logically faulty and based on erroneous assertions, is now suspended as part of the tentative Headwaters agreement. Procedure: The Pacific Lumber Company, Scotia Pacific Holding Company, and the Salmon Creek Corporation filed a Complaint for Inverse Condemnation against the United States of America 5/6/96. EPIC and Sierra Club filed motion to intervene 7/23/96. Status: pending - Judge Turner granted Pacific Lumber and the Federal Government's joint motion to stay all proceedings until 7/28/97. Attorneys: Michael Sherwood, Hank Bates (Sierra Club Legal Defense Fund), Thomas Lippe, Mark Harris
EPIC Contact: Cecelia Lanman

32) Mendocino Environmental Center, EPIC v. DFG (Sinker Logging)
EPIC joined with Mendocino Environmental Center, Coho Salmon Defense Association, and Mendocino Coast Watch to bring suit against the California Department of Fish and Game to address DFG's issuance of three sinker logging permits in Mendocino County and to challenge the practice of issuing Fish and Game Code section 1603 permits without CEQA review. DFG initially claimed that such permits were ministerial, but they have since admitted that CEQA review is warranted and that their regulation exempting 1603's from CEQA is invalid. The practice of salvaging big logs from the river bottoms was very damaging to the environment and threatened salmon habitat. After our filing this case DFG rescinded the river bottom salvage permits, but we are additionally asking the court to injoin all 1603 permits/streambed alterations until they comply with CEQA. CEQA compliance would require competent DFG personnel to review the environmental impacts associated with the project and on-site review. They would issue a negative declaration if no impacts were foreseen, or require further review, EIR... It is expected that DFG could eventually get an abbreviated CEQA review approved as a certified regulatory program. Procedure: Suit was filed 6/16/97 in Mendocino County Superior Court (76761). TRO was awarded 6/25/97. A week later DFG rescinded the 1603 permits at issue in Mendocino County, mooting a Preliminary Injunction. Status: Settlement discussions have been occurring, but the case may yet proceed to trial. Attorneys: Paul Carroll, Rod Jones
EPIC Contacts: Jamie Romeo, Paul Mason

33) Hayden v. California Fish and Game Commission (Chinook Take Suit) EPIC joined with many of the same co-plaintiffs as the Chinook listing suit to challenge the special order issued by the California Fish and Game Commission that would allow take of Chinook, despite the listing order. We challenged the failure of the agency to meet the time and notice requirements of placing such an order. As ordered by the Court, the Commission rescinded the special order, but then adopted an emergency take permit with the same language that met proceedural requirements. This effectively "got around" our challenge. During meetings with the Commission, they agreed with some of our points and agreed to certain concessions. However, very little has been done to protect the species during its candidacy period. A listing decision for the Spring Run Chinook is due in June. We are continuing to monitor the situation and collect information to determine our future legal strategy and to challenge the decision should the Commission decide not to list the species. Procedure: Petition for Writ of Mandate filed 7/11/97 (San Francisco Superior Court # 988075). Hearing 8/8/97. Peremptory Writ of Mandate received 8/12/97 ordering the Commission to "vacate and set aside the Special Order Relating to Incidental Take of Sacramento River Spring-Run Chinook Salmon During Candidacy Period..." Status: final. Attorneys: Roger Beers, Joel Reynolds (NRDC), Cynthia Koehler (Natural Heritage Institute)
EPIC Contact: Paul Mason

34) Piercy Watershed Association and EPIC v. Osipowich (McCoy Creek THP)
EPIC joined the Piercy Watershed Association in this suit challenging a 160-acre timber harvest plan to clearcult a virgin Douglas fir and mixed hardwood forest along McCoy Creek in northern Mendocino County. The area was sold by BLM to trade for protection of old-growth in Mill Creek on the Mattole. There is ancient forest and spotted owl and coho concerns. We are challenging CDF's approval of the THP and are working to acquire this land by private purchase. Procedure: THP 1-97-053 was approved 6/15/97 by the California Department of Forestry. Petitioners received a TRO on 7/18/97 (Mendocino County Superior Court # 76916); Preliminary Injunction received 8/13/97. $5000 bond was posted, mostly raised by appeals on our local radio station. Trial held 11/7/97. Status: Awaiting trial court decision. Attorneys: Sharon Duggan, David Williams, Barry Vogel
EPIC Contact Jesse Noel, David Bergin

35) EPIC and Friends of Gilham Butte v. CDF (Gilham Butte THP)
This suit challenged timber harvest plans filed by the Eel River Timber Company on Gilham Butte, an area of old-growth and residual redwood forest in sourthern Humboldt County and an area for which local residents have worked to gain protection for many years. In some of these plans the agency personnel recommended denial, but CDF approved them anyway. The company stipulated not to cut all three THPs until a judge could decide the case. Procedure: THP 1-96-536 HUM on the Mattole River was approved by CDF on 9/16/97; 1-96-255 HUM on Salmon Creek was approved 9/29/97; 1-97-023 HUM on Westlon Creek was approved 11/3/97. Petition for Writ of Mandate was filed on 9/25/97 on THP 536 (Humboldt County Superior Court #9700762) for failure to meet the zero net discharge requirements and the likelihood that sediments would impact the Mattole River. THP 255 was amended into the case on 10/3/97 for cumulative impacts to late successional forest and sedimentation that would result from the cuts on steep unstable slopes. Separate Petition for Writ of Mandate was filed for THP 023 on 12/1/97 (Humboldt County Superior Court #9700851) on basis of failure to meet zero net discharge requirements. Status: Trial scheduled for 3/30/98. Attorney: Thomas Lippe
EPIC Contact: Cecelia Lanman, Linda Derksen (FGB)

36) EPIC v. CDF, et. al. (THP-003 Owl Creek Residual)
In this case we are challenging the approval of a THP to cut 54 acres of unentered and residual old growth on the South Fork Yager Creek and adjacent to the murrelet occuppied Owl Creek Grove. THP 003 was submitted to CDF on January 3, 1997 by the Pacific Lumber Company. Public comment was closed in February 1997, prior to substantial amounts of evidence being introduced to the record which ultimately affected the decision to approve the plan but which was not available for comment on by the public. There were numerous other inadequacies and inaccuracies in the plan as well. While we were unable to halt operations and the THP was subsequently logged, we believe the abuse of discretion by the agency cannot be ignored and we must continue to take this case to trial. EPIC sued the California Department of Forestry, Richard Wilson, Thomas Osipowich, Scotia Pacific Holding Company, and Pacific Lumber Company. Procedure: THP 1-97-003 HUM was approved by CDF 12/11/97. Notice of operations was filed 12/15/97. Petition for Writ of Mandate filed 12/17/97 (Humboldt County Superior Court # CP9700874). Temporary Restraining Order filed 12/18/97; hearing 12/22/97. TRO denied 1/2/98. Status: Awaiting scheduling of hearing on the merits. Attorney: Sharon Duggan
EPIC Contact: Cynthia Elkins

37) Coho Salmon, EPIC, et. al. v. Pacific Lumber et. al. (Coho Take Lawsuit)
Wild, naturally spawning populations of coho salmon have declined by over 95% since 1940. While the coho was listed as "threatened" in northern California on April 25, 1997, the regulating agencies have failed to establish guidelines for avoiding "take," and continue to approve timber harvest plans that threaten spawning habitat. This suit marks our effort to accomplish for the coho salmon what the Owl Creek case accomplished for the marbled murrelet: a clear articulation of the conservation standards and changes in forest practices needed to allow the species to recover in northern California. We have identified critical watercourses throughout the 60,000-acre Headwaters Forest and elsewhere on Pacific Lumber land where we believe "take" is occurring. If successful we will stop logging plans harmful to salmon throughout Headwaters Forest and set important scientific standards for protection of coho throughout California. This suit was filed by EPIC, the Sierra Club, and the Northcoast Environmental Center against Pacific Lumber Company, Scotia Pacific Holding Company, and Salmon Creek Corporation to protect the Coho Salmon from "take" under the federal Endangered Species Act. Procedure: 60 Day Notice of Intent to Sue sent 10/1/97. Complaint filed 1/23/98 in USDC. Status: Proceeding toward trial. Attorneys: Macon Cowles, Mark Harris, Susan O'Neil, Brendan Cummings, William Rossbach, Jack Tuholske
EPIC Contacts: John Gaffin, Paul Mason, Cynthia Elkins; Kathy Baily (Sierra Club); Tim McKay (NEC)