Flaws In The Headwaters Deal Finally See The Light Of Day
by Sam Johnston
August 15, 2003
On July 22, a Humboldt County Superior Court judge formally declared plaintiffs Environmental Protection Information Center (EPIC) and Sierra Club "prevailing parties" in the lawsuit
challenging the state permits granted to Maxxam/Pacific Lumber Co. (PL) in the infamous 1999 Headwaters "Deal." In a sweeping 59-page Statement of Decision, Judge John J. Golden affirmed virtually all of the environmental groups' claims and said he will set aside the Headwaters deal permits, including the Sustained Yield Plan (SYP), the Incidental Take Permit (ITP), and the Streambed Alteration Permit (1603 permit).
Judge Golden's language regarding the
challenged permits was unambiguous:
"The [agency] decisions challenged in this proceeding are so extensively flawed ... that it cannot be determined that any part of the project ... can be severed from the remainder in order to allow the severed part to proceed ... Consequently, the writ will direct respondents to vacate the challenged decisions in whole." he wrote. Golden ruled that CDF failed to properly evaluate impacts to old growth forests, DFG failed to fully mitigate the impacts to the marbled murrelet, and DFG violated the Public Trust doctrine by failing to do everything necessary to protect native species.
He did, however, leave open the extent to which Maxxam/PL's timber harvest plans (THPs) already approved by the California Department of Forestry (CDF), and which rely upon the invalidated permits, will be enjoined. The hearing began on July 30, continuing several days focused not only on PL's assertions of harm to their business, but included witnesses for EPIC who testified about the environmental harm that would occur if logging under these permits continues.
Nevertheless, because no new THPs may rely on the invalidated permits, the Judge's final order is expected to prevent further logging in most or all existing THPs that occur in endangered species habitat or on unstable slopes. The ruling is likely to
provide long-needed, significant relief to wildlife and watersheds already bleeding from the intensive industrial logging long practiced in Humboldt County by Maxxam/PL.
The permits that this ruling invalidates were granted to Maxxam/PL in the Headwaters Deal by CDF and the California Department of Fish and Game (DFG). Because these permits so broadly violated legal requirements and authorized widespread, highly damaging logging, EPIC, Sierra Club and the Steelworkers union filed suit in March of 1999. Their 75-page complaint alleged a multitude of violations and sought an
injunction to stop logging operating under the flawed permits.
Since that time, the challenge has meandered its way through a series of pre-trial motions, held up for four years in part by an incomplete record submission by the agencies, landing in a bench trial before Judge Golden in February of 2003.
Invalidation of the SYP
A Sustained Yield Plan is a rolling 100-year plan, reviewed every 10 years, intended to achieve what the California Forest Practice Act calls "maximum sustained production (`MSP') of high quality timber products." Among other things, an SYP must address sustained timber production, watershed impacts, fish and wildlife assessments, and potential adverse environmental impacts resulting from proposed harvesting.
Though required for signing of the 1999 Deal, there was never a single, consolidated document that could serve as an SYP, which in itself violates several provisions of California law and, additionally, constitutes "a serious impediment to judicial analysis." The disarray of the SYP resulted in part from a confused manner in which CDF granted its approval to Maxxam/PL. In his decision invalidating the SYP, Judge Golden cited these flaws.
When CDF cleared the draft SYP for public review in July 1998, it did so on the explicit condition that Maxxam/PL provide the needed information on watershed assessments, cumulative impacts, Long-Term Sustained Yield (LTSY) and provide the information at the planning watershed scale, before final approval. CDF ultimately granted final approval in March 1999 despite the continuing absence of this information, and in violation of law, according to Judge Golden.
In February and March of 1999, CDF actually made two separate approvals of two different SYPs, again in violation of law. The first approval selected what CDF called "Alternative 25(a)," an alternative which calculated the available timber volume based on assumptions regarding what would become available to the company through "watershed analysis," mandated by the deal process. The second approval, apparently hastened through pressure on CDF from DFG and the U.S. Fish and Wildlife Service, purported to withdraw approval of alternative 25(a) and select, instead, "Alternative 25," a more permissive plan that would allow higher rates of logging in streamside habitat and on steep slopes.
Judge Golden ruled that this process, as well as the hodgepodge of documents purported to constitute the SYP, failed to meet legal requirements. He then went further, ruling that the SYP failed to provide for MSP, or valid LTSY projections, and failed to provide adequate cumulative impacts assessments. Further, the SYP failed to provide watershed information at the required scale of the planning watershed, thus preventing the required assessment of environmental impacts. The SYP lacked an adequate analysis of impacts of the logging of late-successional forests and watershed analysis.
Thus, every approval of a PL logging plan was granted without the analysis of impacts and mitigations required under California law, because no SYP was actually in place.
Invalidation of the ITP and the Streambed Alteration Permit
An Incidental Take Permit (ITP) is a permit issued as part of an approved Habitat
Conservation Plan (HCP), which is an amendment to the federal Endangered Species Act (ESA). It allows destruction of habitat of an endangered species or the "take" (killing) of that species, provided "mitigation" takes place--often enhancement (effective or not) of nearby habitat. Prior to the 1982 HCP amendment, killing an endangered species was illegal--period.
Judge Golden found that the Headwaters Deal ITP failed to fully mitigate all impacts to the endangered marbled murrelet, impermissibly deferred full mitigation, and was granted without required survey information on murrelets. It illegally authorized take of currently unlisted species, and illegally provided "regulatory assurances" that no new mitigations would be required of Maxxam/PL in the future. (In other words, new data on the population would not require PL to make adjustments to its impacts on the species' habitat.) It violated Fish and Game Code Section 3503.5 by authorizing take of the northern spotted owl and destruction of its nests, equally violated the Public Trust doctrine in several respects, including by granting "regulatory assurances" and delegating the power to determine future mitigations to the corporation rather than the wildlife agencies. The ITP represented a "prejudicial abuse of discretion" in that DFG issued findings that the ITP complied with the California Endangered Species Act and the California Environmental Quality Act (CEQA). The Judge also ruled that the Streambed Alteration Permit violated numerous provisions of the state Fish and Game Code.
Invalidation of the ITP means that PL no longer has the right to alter the habitat of state-listed species such as the murrelet and coho salmon. Since the ITP was granted in 1999, Maxxam/PL has logged thousands of acres of old-growth forest considered
important to the survival of the murrelet and coho, as well as numerous other listed and candidate species. Invalidation of the 1603 permit means that Maxxam/PL must now apply to DFG for permission each time it seeks to alter any streambed to facilitate
Invalidation of the EIR
The judge found the Environmental Impact Report (EIR) deficient in its analysis of the project description, the environmental setting, significant environmental impacts, adverse cumulative impacts, and feasible alternatives including a "no logging" alternative. Additionally, the EIR failed to adopt feasible mitigation measures, impermissibly deferred formulation of mitigation measures, failed to adequately respond to comments, and failed to make adequate findings under CEQA.
Regarding the public review process, Judge Golden made several important holdings. He found that CDF withheld from the administrative record a report on damage resulting from logging in the steep-sloped Jordan Creek watershed. Judge Golden ruled that CDF illegally ignored numerous expert comments including those of Dr. Leslie Reid, widely recognized as the foremost authority on the relationship between logging and slope failures. Golden further ruled that because the state and federal agencies were conducting a joint process for public review, the state was therefore legally required to consider all comments submitted up to the later federal deadline, a requirement which CDF patently disregarded. Maxxam/PL's steam-rolling of the process made a mockery of provisions put in place via NEPA and CEQA to protect public trust resources.
The Bottom Line: Disposition of the Case
At the very least, Judge Golden is certain to vacate the SYP, ITP, and 1603 permit. The question remains to what extent the judge will vacate already approved THPs that rely on any one of those permits.
Judge Golden's Statement of Decision states, " ... [C]onsidering a grant of injunctive relief requires the application of traditional equitable principles." Such equitable
principles require a "balancing of harms" whereby the harm to the environment without the injunction will be balanced against the harm to the "economic objectives" of Maxxam/PL that would result from the injunction. Because the harm to the watershed and species without the injunction has been clearly established, but the harm to the
company from an injunction is as yet "speculative," the Judge ordered a July 30 hearing to assess the adverse economic impacts to the company from an injunction.
The plaintiffs asked the court to enjoin any and all approved or proposed THPs, and to prevent Maxxam/PL from engaging in any activities that rely on any of the invalidated permits and to "direct both CDF and DFG to prepare an adequate EIR in compliance with CEQA." The strong language of the Judge's Statement of Decision indicates the
virtual certainty that he will grant this latter request.
After the July/August hearing on the final judgement in Humboldt County Superior Court in Eureka, Judge Golden will issue a Writ of Mandate ordering CDF and DFG to vacate the invalidated approvals, as well as a Supplemental Statement of Decision describing the content of the Writ and of the final judgment to be entered.
-- Sam Johnston q