In the mid-1980's, Maxxam/Pacific Lumber's Owl Creek grove was the second largest remaining stand of unprotected ancient redwoods. Located in the southeastern portion of the Headwaters Forest complex, the Owl Creek grove rises to an elevation of over 3,000 feet and includes redwoods, Douglas fir and upland prairie. Owl Creek is also one of the core nesting areas for Marbled Murrelets in California.
EPIC and the Sierra Club first sued Maxxam/Pacific Lumber to stop the logging of Owl Creek in 1988, successfully preventing them from cutting 226 acres of ancient forests without incorporating any of the mitigations requested by the state Department of Fish and Game (DFG). This was only the beginning of many controversies over the future of Owl Creek.
In 1990, Maxxam/Pacific Lumber proposed Timber Harvest Plan (THP) 237, a savage 237-acre logging plan in the heart of the grove. PL refused to provide wildlife surveys as part of the plan, leading to opposition from Fish & Game. Ultimately the California Department of Forestry (CDF) denied the plan. Shocked by the opposition from CDF, PL appealed the decision to the Board of Forestry, which has the authority to override the Department. The Board approved the plan over the objection of their own counsel. Following more EPIC/Sierra Club legal challenges, Humboldt County Judge William Ferroggiaro Jr. ordered the Board to re-examine the issue.
On March 6, 1992 the Board again approved the plan, this time with the stipulation that Pacific Lumber must provide two years worth of scientifically valid Murrelet surveys prior to logging. Six days later the Marbled Murrelet was listed as "Endangered" under the California Endangered Species Act (CESA).
The Massacres
On Friday June 19, 1992 PL mailed a handful of inadequate survey results to CDF. Without waiting for authorization from any agency, they immediately began logging Owl Creek. This weekend logging spree, with extra crews working overtime, carved 20 acres of cuts into the grove in 5 different locations. Later examination of the logging sites showed that PL had deliberately targeted areas near survey stations with high concentrations of Murrelets.
Following the June massacre, EPIC pressed the Department of Fish and Game and the Department of Forestry to bring criminal charges against PL for this blatant violation of CESA. By August Fish and Game had taken the unprecedented action of notifying CDF that approval of the logging plan was in violation of CESA, and that it would jeopardize the continued existence of the species. CDF, on the other hand, gave PL permission to re-enter the grove to salvage the illegally cut timber, giving them a chance to destroy any remaining evidence of illegal take of Murrelets.
On September 28, 1992, the Murrelet was listed as "threatened" under the Federal Endangered Species Act. By that fall, the agencies had made it abundantly clear that PL would need explicit approval from both Federal and State agencies before they could begin logging in Owl Creek. Nevertheless, Pacific Lumber staged a secret full-scale assault on the grove over the Thanksgiving weekend.
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On Saturday November 28, EPIC was informed that ancient trees were falling in Owl Creek. Earth First! activists had rushed into the woods, trying to physically stop the massacre, while EPIC notified the agencies of the illegal logging, and demanded that they stop the slaughter.
Just days before, Pacific Lumber Resource Manager Tom Herman had personally assured the agencies that PL would not resume logging until the endangered species issues had been resolved. However, despite calls to all of the agencies, the sheriff's office, and even the FBI, no law enforcement agency would stop the illegal logging.
To Trial, on a Wing and a Prayer
When the authorities refused to act it was clear that the grove would only be protected by public citizens. EPIC had already pursued the case in State court, and had secured a temporary stay to halt the logging, but the recent listing of the Murrelet as a Federally protected species opened up a whole new forum for protection. In one of the first cases of its kind, EPIC filed suit in Federal Court under the Endangered Species Act, seeking to halt any further logging of the grove.
In April of 1993, two EPIC attorneys, Mark Harris and Rod Jones, filed suit against Pacific Lumber for violating the ESA in Owl Creek. PL responded by hiring Pillsbury, Madison and Sutro, one of the biggest corporate law firms in San Francisco, and proceeded to sandbag EPIC with mountains of documents and motions, overwhelming our tiny group. Operating on a miniscule budget, EPIC's financial reserves were soon exhausted. Rather than abandon the case, many of the staff agreed to continue working without pay.
Meanwhile, the Wall Street Journal did a profile on Charles Hurwitz and his takeover of Pacific Lumber. The story described Hurwitz's birthday party, which featured a chainsaw-shaped cake. The article also mentioned the Owl Creek controversy. Colorado environmental attorney Macon Cowles, fresh from a recent victory in the Exxon Valdez oil spill case, was so infuriated by the article that he immediately pledged to his wife, "Honey, I'm going to sue that bastard." Cowles contacted our beleaguered legal team, and offered his services, along with several of his colleagues who had worked with him on the Exxon case. Not only did he bring more lawyers and extensive experience to the case, they even offered to work pro bono and pay their own expenses!
Marbled Murrelet and EPIC v. Pacific Lumber went to trial in August of 1994, and became one of EPIC's most important cases.
During the trial, a number of shocking and fascinating facts came to light. Despite over a year of pre-trial discovery, it wasn't until the second-to-last day of trial that Pacific Lumber revealed that the consultants who conducted the Murrelet surveys in Owl Creek had kept the original surveys hidden in a closet, and had only provided "replicated" surveys to EPIC and the agencies. Of course, these "replicas" mysteriously deleted Murrelet detections and other important information. It was also disclosed that weekend logging had been virtually unheard of in the company, and that the June and Thanksgiving "massacres"were personally ordered by company President John Campbell. Moreover, much of the logging was immediately adjacent to the survey stations in the proposed Timber Harvest Plan, in an apparent attempt to disrupt the birds.
After two weeks of trial, on February 27, 1995 Judge Louis Bechtle issued a scathing 60-page decision. In his Findings of Fact he enumerated Pacific Lumber's attempts to avoid finding Murrelets in THP 237 and lambasted their "experts" for "lack[ing] objectivity and credibility". The judge issued a permanent injunction barring Pacific Lumber from logging THP 237 because it would harm and harass Murrelets in violation of the ESA, and likely jeopardize their continued existence in the region.
The Company Strikes Back
Maxxam/Pacific Lumber retaliated for this crushing defeat with a new logging plan in the heart of Headwaters Grove. Described as an extension of the existing 300' wide "Death Road" into the center of Headwaters Grove, PL was forcing a regulatory show-down by proposing to log the heart of the most important Murrelet area on their property. Knowing that approval to log this area was unlikely (given the recent federal court ruling), the company was deliberately trying to create a situation where it could claim that enforcement of the ESA had "taken" all the value from that property. When the Board of Forestry refused to approve that logging plan, Pacific Lumber did indeed sue both the state and federal government, demanding to be paid the presumed value of the forest that they couldn't log.
Though there are many good arguments that the company was not entitled to compensation, the government felt threatened by the lawsuit and entered into discussions with the company. The result of the government's efforts to settle out of court was announced in September of 1996 as "The Headwaters Deal". In exchange for dismissing its lawsuits, Maxxam/Pacific Lumber would receive $380 million for approximately 7,500 acres of redwoods (roughly half old-growth), and it would resolve Endangered Species Act conflicts on the rest of the property by working with the agencies to create a "Habitat Conservation Plan."
The negotiations over the Murrelet protection provisions of the Habitat Conservation Plan were among the most controversial aspects of the deal. Pacific Lumber's first proposal called for logging everything outside of the Headwaters Reserve. EPIC and Sierra Club California undertook an extremely aggressive advocacy campaign, working with many of the same experts who were involved in the Owl Creek trial, and demanding that all remaining Murrelet stands be protected for the survival and recovery of the endangered seabird. Later versions of the HCP called for protecting all six of the large named groves in the Headwaters area, but allowed PL to cut either Owl Creek or Grizzly creek after five years. The final HCP protects the named groves for 50 years, but allows the Grizzly Creek area to be re-evaluated in 2004 to determine whether PL can log it without jeopardizing the continued existence of the Murrelet in California. State Purchase of Owl Creek
California's portion of the Headwaters purchase was $130 million, but as the clock ticked down on the last day of the legislative session and PL continued to balk at HCP restrictions, moves were made to sweeten the deal. First and foremost was adding money to buy Owl Creek. Of course, the timber value of Owl Creek, since it couldn't be logged for at least 50 years, was nominal. So the legislature took the unprecedented step of stipulating that Owl Creek would be appraised under the assumption that it could be logged, and authorized spending up to $80 million to purchase the 1200-acre area. The state's funding legislation also said that any money left from the Owl Creek appraisal and purchase could be re-appropriated for acquiring land in the "Hole in the Headwaters" area, or the old-growth Douglas fir stands in the Mattole River valley. The state also appropriated $20 million separately to purchase and protect lands adjoining the existing Grizzly Creek State Park.
After months of controversial appraisals of Owl Creek, in December of 2000 the state bought the 1,200 acres, including more than 400 acres of old growth, for $67 million. Efforts are currently underway to have the extra $13 million redirected to other disputed areas on the property. The Grizzly Creek appraisal is still in progress.
So, after 13 years of litigation and advocacy, Owl Creek is finally ours. It is tremendously satisfying to have permanently protected this magnificent area, and brought a little bit of justice to the backwoods of Humboldt County. Most importantly, we're deeply proud of the hard work and passion of the many good people who gave the Marbled Murrelet a fighting chance to survive.