State of California The Resources Agency

Memorandum

Date: November 9, 1998

To: Mr. Ross Johnson
Deputy Director for Resource Management
California Department of Forestry and Fire Protection
Post Office Box 944246
1416 9th Street. Room 1311
Sacramento, California 94244-2460

From: Department of Forestry and Fire Protection
1416 Ninth Street, Room 1516-20, Sacramento, CA 9S814

Subject: Complaints Regarding Violations by The Pacific Lumber Company of the Forest Practice Act, the Forest Practice Rules, and the Stipulated Agreement

As you know the Department initiated action last December to deny The Pacific Lumber Company's (PALCO) timber operator's license for 1998. The license action resulted in a Stipulated Agreement (Agreement) between the Department and PALCO whereby PALCO was given a conditional timber operator's license. Conditions for the license under the Agreement require compliance with the provisions of the Forest Practice Act, rules and other terms of the Agreement.

Under the approved Agreement, the Department may revoke PALCO's conditional license if there is any of the following: 1) three complaints to the Deputy Director for Resource Management from the Deputy Chief for Forest Practice Enforcement, or 2) issuance of two citations or complaints by the county District Attorney based on reports from persons not employed by the Department, or 3) one complaint to the Deputy Director for Resource Management from the Deputy Chief for Forest Practice Enforcement involving gross negligence or willful disregard of the Agreement.

The main considerations in determining if violation of the Act, rules, plan provisions, or the Agreement constitutes a complaint under the Agreement include:

1. The general overall significance of the violations.
2. The level of environmental impact.
3. The frequency of similar violations.
4. The company' s effort to avoid such violations and it's responsiveness to required corrections.

Since the Agreement was approved PALCO has received 16 violations from the Department. Violations range from lesser offenses with minor environmental impact to violation of timber harvesting plan provisions which resulted in major impacts.

In September I filed a complaint with you regarding violations committed by PALCO while operating on THP 1-95-126-HUM. Those violations resulted in the issuance of a citation to PALCO for the following:

Violation of 14 CCR 923.5(f) - Failure to pull back landing fills.

Violation of 14 COR 923.2(k) - Leaving overhanging banks on new road construction.

Violation of 14 CCR 1035.3(d) - Failure to comply with the approved plan in that culvert #3 was not installed.

Violation of 14 CON 1035.3(d) - Failure to comply with the approved plan in that treatment required for road segment A was not completed.

Now I am presenting you with two more complaints. The complaints stem from violations committed while conducting timber harvesting activities under THPs 1-97-428-HUM and 1-98-259-HUM. Those violations have resulted in the issuance of two more citations to PALCO.

In the matter of THP 1-97-428-HUM, PALCO was cited for the following violation:

Violation of 14 CCR 1035.3(d) - Failure to comply with the approved plan in that four (4) separate watercourse crossings on Class I watercourses were used as ford crossings instead of culvert crossings.

In the matter of THP 1-98-259-HUM, PALCO was cited for the following violation:

Violation of 14 CCR 1035.3(d) - Failure to comply with the approved plan in that heavy equipment was used within a Northern Spotted Owl nesting territory to construct a landing.

I consider each citation as a complaint against PALCO as provided for in the Stipulated Agreement. These three (3) complaints alone are enough to invoke the provisions of the Agreement and suspend PALCO's timber operators license.

Supplementary information obtained from our inspectors and found in the Forest Practice inspection reports for THPs 1-98-259-HUM and 1-97-428-HUM indicates that PALCO was well aware of the required mitigation and protective measures for the Northern Spotted Owl nesting territory and Class I watercourse but chose to either ignore them or failed to ensure compliance. The circumstances surrounding these two incidents demonstrates gross negligence and the willful disregard for the Agreement by PALCO, and is independent grounds for action against the license under the Agreement.

Under the Agreement any action against the PALCO license must be based on violations by PALCO itself and not by a contractor working on PALCO lands. In THP 1-98-004 the violation of overcutting the WLPZ of a class I watercourse was committed by a contractor, Rounds Logging, and not directly by PALCO. However, PALCO employee Dan Callahan learned of the violation but was told by a PALCO supervisor not to report the violation. As a result PALCO concealed the violation from CDF for two weeks until the logs were hauled to the mill and the site was cleaned up. This concealment and profiting from the concealment are willful violations of the Agreement attributable directly to PALCO and not to the contractor.

Considering the totality of PALCO's 1998 violation history, my three complaints to you of violations, and my two additional complaints of willful violation of the agreement, I recommend the Department invoke the provisions of the Stipulated Agreement and suspend PALCO'S timber operator license.

Ken Nielson
Deputy Chief
Forest Practice Enforcement