EPIC immediately filed suit to overturn this death sentence on endangered species, but it took four years of procedural wrangling to get it into court. Finally, on May 19, 2003, the California Superior Court issued an historic tentative ruling that agrees with EPIC on every count, finding the law was broken at nearly every possible turn. This ruling is not final, however, and as this issue of Wild California goes to press, never has there been more hanging in the balance.
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What's at Stake
Backroom negotiations shapd the permits that were granted to Maxxam's Pacific Lumber Company (PL) as conditions of the Deal, including a 120-year logging plan, permits to kill all resident endangered species, and a "master" permit to alter streams. Judge John Golden's tentative ruling finds the California Department of Forestry (CDF) and Department of Fish and Game (DFG) violated numerous laws in issuing these permits, meaning they could all be invalidated when a final judgement is issued.
PL's permits established a framework under which large-scale, "liquidation" logging prevails. They opened up logging in thousands of acres of ancient forests that were previously protected, and state agencies gave their blessing to the harm that would occur to species such as the critically imperiled marbled murrelet. PL was allowed to "take," or kill, up to 340 marbled murrelets, a huge percentage of the individuals remaining in California. It also received permits to kill coho salmon, northern spotted owls, and more than a dozen other endangered species.
Logging operations under these permits have drawn the concern of the Regional Water Quality Control Board, which found that PL is fouling streams with sediment in violation of the state and federal Clean Water Acts. EPIC argued that DFG violated the public trust in allowing this damage to fish habitat, an assertion that was affirmed in Judge Golden's ruling.
Boom and Bust
PL's 120-year, so-called "Sustained Yield Plan" (SYP) is a model for boom-and-bust logging, whereby clearcutting will occur at an accelerated rate over the first decade, then will virtually come to a halt when there is nothing left to take. Logging too much too fast is not only devastating to streams and rivers, forests, and wildlife, but also to the local economy. The United Steelworkers of America filed a separate lawsuit concerning the impacts of PL's SYP on local jobs, something that CDF and PL refused to analyze beyond its initial "boom" cycle. Judge Golden has also issued a favorable tentative ruling in the Steelworkers lawsuit.
What SYP?
The Headwaters Deal involved $480,000,000 in taxpayer funds, and negotiations included the President, the Governor, and Senator Diane Feinstein, among others. Given this, one would think that state agencies would have paid careful attention to the details when they authorized at issue in EPIC's lawsuit. This was far from the case, however, as even the most fundamental laws were ignored.
One of the most glaring violations came to light in March 2003 during the four-day trial on EPIC's case. CDF fully acknowledged at that time that it never actually had a physical document that could be called an SYP, and never put one together until the Court requested a copy. This was done just weeks before the trial--four years after it approved the SYP--leading people to wonder: exactly what did CDF approve?
We had a Deal...
At one point during the trial, Judge Golden asked DFG where the law gives it the authority to issue permits to kill species that are not currently listed as threatened or endangered, but may be listed sometime in the future. In granting these permits, DFG gave PL "assurances" that it would not be required to change any of its logging practices or be subjected to any further restrictions no matter what environmental conditions become. After the DFG attorney was not able to provide a response to the judge's question, Frank Bacik, lawyer for Maxxam/PL, stood and bellowed, "Those assurances are in there because we had a deal, your honor."
Breaking the Pattern
Just because Maxxam/PL had a deal, it did not have the right to ignore and break the law. Unfortunately, PL has acted as if it had this right since Maxxam maneuvered a hostile takeover of the company in the mid-1980's. And public agencies like CDF and DFG have served as an accomplice in these violations, abandoning their duty to protect forests, fish, and wildlife and uphold the public trust.
This case could play an essential role in changing this pattern, not only here in Humboldt County but across the state as a whole. The tentative ruling points out systemic problems that have pervaded California's forests and watersheds for decades. While many of these same problems have been noted in previous court rulings, legislative hearings, and other venues, this case is of tremendous consequence, and not one that will be ignored.
EPIC's court filings, the tentative ruling, and other information are available on EPIC's website at www.wildcalifornia.org.
