November 16, 1998

Donald Koch
Department of Fish and Game
601 Locust Street
Redding, CA 96001

re: Pacific Lumber's Violations of 1603 Agreements 97-0835 and 98-0113

Dear Mr. Koch,

This pertains to violations of Section 1603 of the Fish and Game Code which occurred during operations of Pacific Lumber's logging plans 1-97-401 and 1-97-428 (1603 Agreements 97-0835 and 98-0113). I spoke with Jim Barton and Jim Froland of your staff regarding this matter on November 5th, and found they presented information which conflicts with that contained in your October 19, 1998 memorandum to Glen Newman, CDF, as well as information I have gained through conversations with Mark Moore, DFG, and all officials from other agencies who inspected the area (please see enclosed reports from Jay Harris, CDF; Ernie Rohl, CDF; Holly Lundborg, Water Quality; and Mark Moore, DFG). Messrs. Barton and Froland indicated they believe the violations were technical in nature and did not result in substantial environmental damage. Your memorandum and the reports from other agency officials on this matter, however, certainly present clear evidence to the contrary. We strongly urge you to exercise the appropriate authority granted to DFG under 1603.1 of the Fish and Game Code to seek the judicial remedies to which your department is entitled.

Pursuant to the 1603 agreements with DFG on these logging plans, the company was to install culverts at five road locations that cross Bear River and Harmonica Creek, both salmonid streams. We have learned a company employee instructed workers to not install these culverts, and that tractors, excavators and loaded dump trucks were driven directly through the watercourses innumerable times. Both of the 1603 Agreements in these logging plans specifically required that a bridge or culvert be installed for repeated crossings. Section 1603(d) states:

It is unlawful for any person to engage in an activity affected by this section, unless the activity is conducted in accordance with the department's proposals or the decisions of the panel of arbitrators.

Although the company employee claims he had verbal agreement from Warden Froland to not install these culverts, it is our understanding that he only mentioned it to Warden Froland in passing, and this was only after the stream had been driven through in violation of the Agreement. This simply does not constitute agreement from DFG to deviate from the approved 1603 Agreement or the THP. Section 1603(a) of the Fish and Game Code states:

"It is unlawful for any person to substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake designated by the department, or use any material from the streambeds, without first notifying the department of that activity, except when the department has been notified pursuant to Section 1601Š" (emphasis added).

Your memorandum states "during the field review, the question was posed to Mr. Moore that, if the plan submitters had filed amendments to the plans with CDF to use wet fords rather than culverted crossings, would the DFG have approved? Mr. Moore responded to Mr. Johnson that, if the crossings were to be of a repeated nature, the DFG would have recommended against amendment approval due to the increase in sedimentation of downstream reaches of Harmonica Creek and Bear River. Wet fords are inappropriate given the large number of salmonids rearing in the affected stream reaches." This very clearly indicates that not only did the company not have approval from DFG to violate their 1603 Agreement, they would not have received such approval if they had proposed to amend the Agreement as required by law. Likewise, the CDF Biologist stated in his report "The measures employed by the project proponent at the crossings consisted of wet fords and are well below any standard that would have been permitted by this reviewer. Had such a proposal been submitted to this reviewer a finding of significant adverse effect would have been made" (November 3, 1998, Jay Harris, CDF, page 3).

There is no doubt these operations caused severe damage to water quality and aquatic habitat in Bear River and the affected tributaries. This is stated in all of the reports of public record on this matter. Ms. Lundborg, Water Quality, stated in her report that "Upstream of the crossing the gravels were moderately embedded with no evidence of fine sediment on the gravel and cobble substrate. Downstream of the crossing, gravel embeddedness was significantly higher and fine sediment (up to 2" in depth) was present on the gravel and cobble substrate. Even with the stream bed covered with gravel from the crossing removal, driving across the watercourse in pickups resulted in a visible plume of turbidity approximately 100 feet downstream of the crossing" (November 10, 1998, Holly Lundborg, Water Quality, page 2).

Mr. Harris stated in his report that "Based on the observations conducted during the field investigation it is the opinion of this reviewer that the multiple crossings by pickups and other equipment at the identified crossings has resulted in a significant adverse effect to salmonid habitat and other aquatic life in Harmonica Creek, Pullen Creek, and Bear River, and a significant adverse cumulative effect to Bear River" (November 3, 1998, J. Harris, CDF, page 4).

Mr. Froland indicated he believes that because multiple individuals, besides the landowner, have been crossing the streams without culverts, it is difficult to assess the damage to Pacific Lumber Company. However, we would like to point out and stress that Pacific Lumber Company is the landowner responsible for this road, and they are therefore responsible for the damage incurred by other individuals who have crossed the areas without the benefit of culverts as well as the damage that incurred when they drove heavy equipment repeatedly through the streams. It is Pacific Lumber Company who had the 1603 Agreement with DFG, and it is they who bear the responsibility for violating the terms of that Agreement.

Under 1603.1 of the Fish and Game Code, your department may seek civil penalties and a temporary restraining order, preliminary injunction and/or permanent injunction. Due to the severity and magnitude of these violations and the fact that this company has made it a practice to avoid or ignore the law whenever possible, we feel it is most appropriate that your department exercise the authority granted under this section and send a clear message that this behavior will not be tolerated by your department. To let these violations go unpenalized will do nothing to prevent or deter Pacific Lumber Company from committing similar egregious acts in the future.

These violations clearly demonstrate a lack of responsibility and respect for the law and the environment by this company. To fail taking appropriate action on these violations would demonstrate much the same by your department. We hope you will make wise use of your authority to protect the public trust by initiating action under 1603.1 of the Fish and Game Code. Thank you for your time and attention in this matter.

For All Aquatic Life,

Cynthia Elkins,
EPIC

cc: Senator Sher
Senator Hayden
Jim Barton
Jim Froland
Mark Moore
Steven Conger
Don Jacobs
Holly Lundborg
Jay Harris
Ernie Rohl
Bill Condon
Vicki Campbell