EPIC Update and Action Alert!

Recycled News ay903 at extra.lafn.org
Tue Sep 15 20:28:12 EST 1998

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September 14, 1998



Just after midnight on September 1, the California Legislature--by the
narrowest possible margin and over the objections of many grassroots
environmental organizations--approved Assembly Bill 1986, a plan to fund
the controversial Headwaters Forest agreement struck nearly two years ago.
The legislation made funding contingent upon certain changes to the
Maxxam/Pacific Lumber Company Habitat Conservation Plan (HCP), which will
determine how the parts of Headwaters Forest left out of the acquisition
deal will be managed for the next fifty years.  The bill also provided more
money for acquisition of two more old-growth redwood groves.

The $245,500,000 appropriated in the bill will be used for the following

- $130,000,000 for the state's share of the Headwaters Forest agreement,
which provides for acquisition of Headwaters Grove and Elkhead Springs
Grove (the federal government has already appropriated $250,000,000 toward
this purchase);
- $20,000,000 toward acquisition of an area bordering Grizzly Creek State
Park, southeast of Headwaters Forest;
- $15,000,000 in unspecified "economic assistance for the County of Humboldt";
- up to $80,000,000 for acquisition of nearly 1,000 acres surrounding Owl
Creek Grove, based on a "fair market value" appraisal that assumes the
existence of a permit allowing Pacific Lumber to completely log the grove
(a permit which does not exist);
- funds left over from the acquisition of Owl Creek Grove following the
"fair market" appraisal may be used toward further acquisitions, including
an area along the South Fork Elk River adjacent to the Headwaters Grove and
the ancient Douglas-fir forests of the Mattole River watershed;
- $500,000 for administrative expenses of the state's Wildlife Conservation
Board in carrying out the aforementioned acquisitions.

The bill also requires the following changes to the Habitat Conservation
Plan before the money can be spent:

- Increased "no-cut" buffer zones along fish-bearing and year-round streams
(to 100 feet on fish-bearing, and 30 feet on non-fish-bearing, year-round
streams); pending completion of a watershed analysis process that could
take up to five years;
- review and establishment of watershed analysis prescriptions to be
carried out by federal agencies instead of the company;
- a fifty-year term of protection for areas "set aside" under the HCP as
habitat for the marbled murrelet (this includes the three ancient groves of
Headwaters not considered for public acquisition).


In terms of acquisition, the public may acquire two areas that might have
fallen to the chainsaws under the original deal: Owl Creek and Grizzly
Creek.  While it is important that these areas be permanently preserved,
the assumptions under which the purchase will be made are flawed enough to
set a poor policy precedent.

Generally, when the public acquires land, we are only expected to pay the
"fair market value" of the property.  Appraisals of this value generally
must consider the legally allowable uses of the land.  In the case of Owl
Creek, restrictions under the Endangered Species Act prevent large-scale
logging operations in the grove.  AB 1986, however, requires the appraisal
to assume that Pacific Lumber has a permit to cut the entire grove
regardless of these restrictions.  Ironically, the bill itself specifies
that Owl Creek Grove is among the areas to be "set aside" for fifty years
as habitat for the threatened marbled murrelet.  In other words, the
appraisal must assume the existence of a permit that does not, and will
never exist.

Making this assumption is a clear capitulation to the company's argument
that they must be compensated for lumber that they cannot legally produce.
This is a major concession to wise-use "takings" threats, and reinforces
the increasing trend of corporations to threaten to destroy legally
protected habitat unless paid a king's ransom.

Most of the changes required in the HCP are nominal, and based in political
rather than biological reality.  Federal agency oversight of the watershed
assessment process may result in better overall prescriptions than those
adopted by the company alone, but continued citizen monitoring will be
necessary to ensure that the process is credible.  The bill also fails to
address serious problems associated with logging on landslides, unstable
areas, and in the steep seasonally-flowing drainages in the upper portions
of coastal watersheds.  Furthermore, the California Department of Forestry
retains the final say over actual logging plans submitted following HCP
approval, and has no explicit responsibility to deny plans that are not in
compliance with the HCP.  In short, most of the HCP-related problems that
led many environmentalists to oppose the agreement in the first place

In summary, the bill preserves both the best and worst parts of the
Headwaters agreement: ancient forests will be acquired by the public, but
under bad policy conditions that reward corporate extortion and leave
hundreds of thousands of acres of Humboldt County forestland at the mercy
of a dramatically inadequate HCP.  Fortunately, we still have an
opportunity to provide public comment on the HCP, and if necessary, to
challenge the final document in court.  Contrary to the assertions of some
legislators involved in cutting this latest sweet deal for Charles Hurwitz,
the Headwaters struggle is far from over.

Although the official close of comment on the HCP is currently October 13,
there is a good possibility that the deadline will be extended until
November 16.  Public hearings are also tentatively scheduled for several
locations in California:

Oct 29  Sacramento
Nov 3   Oakland
Nov 5   Fortuna
Nov 10  Santa Monica

All of these dates are still subject to change, and will not be final until
published in the Federal Register.  They have changed six times already, so
nobody should be too surprised if they change again.  We'll keep you
posted.  EPIC is also working on a guide to the HCP and suggestions for
comment; this should be available by early October for all who are
interested.  Stay tunede


U.S. District Court Judge Marilyn Patel, at a hearing on September 3,
granted a request by EPIC and the Sierra Club for a preliminary injunction
against three Pacific Lumber logging plans.  Two of the plans, located in
the Sulphur Creek drainage, were the subject of much recent controversy due
to profound differences of opinion between federal biologists and the state
agencies that approved the logging over the biologists' strong objections.
The other plan is located in Bear Creek, where more than three miles of
recovering salmon habitat were buried by a logging-related landslide and
debris torrent over a year ago.  Despite the substantial cumulative adverse
impacts of logging in these watersheds, the California Department of
Forestry continues to approve new logging plans!

The legal theory in this case is simple but far-reaching.  The Endangered
Species Act specifies that a "consultation" process must occur whenever a
federal agency undertakes, funds or permits a project that could harm
protected species.  Because a Habitat Conservation Plan leads to a federal
permit to kill endangered species and destroy their habitat, we argued that
this consultation process applies to the current situation with Pacific
Lumber.  Here's the catch: once consultation begins, everyone involved is
prohibited from making an "irretrievable commitment of resources" that
would preclude "reasonable and prudent alternatives" to the proposed
project.  In plain English, this means that Pacific Lumber shouldn't be
allowed to continue logging areas that could reasonably be protected under
other alternatives.

Despite a rather disingenuous attempt by federal agencies to assert that
"formal" consultation has not yet begun, the judge agreed with our
assertions, and granted a preliminary injunction.  We hope that this ruling
sends a strong message to federal agencies, other corporations and HCP
activists nationwide regarding the requirements of the law.  An evidentiary
hearing has been set for September 23 and 24 to further explore these


In what is becoming a yearly Congressional ritual, extremists have once
again attached numerous anti-environmental conditions to the Department of
Interior's yearly spending bill, currently under consideration in the
Senate.  Almost all of these measures would fail dramatically if proposed
as stand-alone legislation.  However, many destructive provisions
(including the now-infamous Salvage Rider) have managed to slip through
Congress as "riders" on the Interior bill in the past.

The crop of riders waives environmental laws and processes, allowing for
construction of a road through Alaska's Izembek Wilderness, reauthorization
of public lands grazing permits, delays in the revision of long-term Forest
Service management plans, increased logging in the Tongass National Forest,
prevention of grizzly bear reintroduction, and limits on salmon restoration
efforts, among other destructive provisions.

This year, opposition to the riders is growing.  Numerous newspapers
nationwide have editorialized against this practice of crafting "stealth"
anti-environmental legislation.  Montana Senator Max Baucus has offered a
motion to strike some of these riders from the Interior bill, but his
motion unfortunately does not include all of the destructive provisions.
Senators Barbara Boxer (D-California) and Dale Bumpers (D-Arkansas) have
also offered motions to strike amendments allowing continued oil company
subsidies and delaying review of hard rock mining regulations on public

There is one "good" rider under consideration as well, offered by Senator
Richard Bryan (D-Nevada).  The Bryan Amendment takes an important step
toward ending the environmentally and economically costly practice of
subsidizing road-building in National Forests.

TUESDAY, SEPTEMBER 15!  So, call your U.S. Senators and ask for support of
the Bryan, Boxer, Baucus and Bumpers amendments!  The Capitol Switchboard
number is (202) 224-3121; they can put you in touch with your Senators'

For more information, visit the Defenders of Wildlife home page at

Thanks a lot!

The Environmental Protection Information Center (EPIC)
P.O. Box 397
Garberville, CA 95542
(707) 923-2931
Fax 923-4210
Contact us at epic at igc.org to join our listserver

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