15) ANALYSIS OF THE CONFLICTS BETWEEN THE CALIFORNIA ENVIRONMENTAL QUALITY ACT AND THE FOREST PRACTICES ACT, AN ANALYSIS OF CASE LAW, by Ariela Freed – Historically, private litigants and courts have played a significant role in the regulation of timber harvesting in California, often propelling major changes in the state’s forestry and environmental laws. Perhaps at no point has this been more true than after the enactment of the California Environmental Quality Act (“CEQA”) and the Z’Berg Nejedly Forest Practice Act (“FPA”) in the early 1970’s. This paper provides an overview of litigation involving timber harvest practices since that time to the present, focusing on recurring issues that have compelled private parties to seek judicial review. Of principal concern to litigants have been the adequacy of cumulative environmental impact assessments, evaluation and mitigation of impacts on wildlife, perceived violations of agency authority and abuse of discretion, and the interaction of CEQA with the FPA. Although this paper categorizes litigation within these areas for ease of review and analysis, it should be noted that most cases involve a significant amount of overlap. http://w3.uchastings.edu/plri/96-97tex/caselaw.htm – http://sustainableforestry.blogspot.com/2006/08/analysis-of-case-law-conflicts-between.html

16) In 2001-2002, Citizen’s for Responsible Forest Management filed suit against CAL FIRE and Don Campbell, landowner, for what CRFM believed was an illegal minor-amendment to allow harvesting of snags on the Campbell property along Baldwin Creek adjacent to Wilder Ranch State Park. In 1992, Campbell got the first NTMP to be issued in Santa Cruz County. It covers his 600 acre property in the Baldwin Creek watershed and specifically prohibits snag harvest. Prior to the lawsuit, Campbell had illegally cut multiple snags, including old growth redwood, in the stream channel of Baldwin Creek. The minor-amendment was CAL FIRE’s (Nancy Drinkard’s) way of ‘correcting0 the violation. The amendment claimed that since there would be a lot of snags on the adjacent parklands, then Campbell no longer needed to retain snags on his. Ultimately, under pressure of further legal action, Campbell withdrew the amendment. However, since then, he has continued to harvest on his property under multiple Dead, Dying and Diseased (DDD) Exemptions. The majority of trees proposed for harvest under those exemptions have been Douglas fir and redwoods. Sounds a lot like snags to me. His September 2007 Exemption for 40 acres specifically mapped a 4’ diameter downed Douglas fir in the riparian corridor. At Sierra Club’s request, CAL FIRE did an inspection and told Campbell he could not commercialize the downed wood and snags adjacent to Baldwin Creek. However, that Exemption was ‘amended’ in December of 2007 to harvest during the winter period and increased the area to be harvested to include 200 acres of hardwood. Wow, not only were winter ops allowed, but the DDD Exemption magically morphed into a Fuelwood Exemption. To continue the free-form ‘harvest permit vehicle,’ Campbell submitted a new DDD Exemption September 2008, this time without a required map. CAL FIRE asked for a map to be submitted (after the map absence was brought to their attention) and apparently Campbell emailed the original map from Sept 2007, with no changes noted, even though he admitted he had completed part of that harvest. Hmm. The 200 acres have now magically disappeared, and the 4’ diameter old growth Douglas fir snag in the WLPZ is still mapped for harvest. After speaking with DFG about this problem, they followed up with CAL FIRE. It now appears that CAL FIRE will tell Campbell he cannot harvest snags on his property. Not under his NTMP, nor under an Exemption. However, I was told that he will still be allowed to continue harvesting under Exemptions, rather than utilizing his NTMP. If you are as confused as I am, raise your hand. Clearly this is a way for Campbell to avoid having an RPF oversee his logging activities, avoid having CAL FIRE conduct regular inspections, avoid having to post Log Truck signs along his haul route, etc. And it is not clear if his activities are in conformance with the objectives of his non-industrial timber management plan. http://www.ocregister.com/articles/water-uranium-hayfield-2185785-district-agency

17) John Sneed, who was chief forester for Pacific Lumber, remembers clearly the song protesters greeted him with when he was working in the forest. “Hang down your head, John Sneed, hang down your head and cry,” went one of the verses. “You take this personally,” he said. This is the bitter history Dean must contend with as he tries to convince old antagonists that Humboldt Redwood is a kinder, gentler timber company. Dean’s partner is John Fisher, son of The Gap founder Don Fisher. The family formed the investment company that acquired the Mendocino and now Humboldt County lands. While the Fishers are primary investors in the ventures, they are not involved in day-to-day management of the properties and declined comment for this story. In June, a Texas judge approved a $530 million cash deal that allowed Mendocino Redwood and an East Coast hedge fund to acquire Pacific Lumber, which had declared bankruptcy in 2007 after it was unable to its debt payments. Mendocino Redwood’s partner — Marathon Structure Finance Fund of New York — loaned Pacific Lumber $160 million after the company put the company town of Scotia up as security. Marathon solicited Mendocino Redwood to become a partner in a plan to take over the bankrupt company. The court-approved deal calls for Mendocino Redwood to manage timber operations, while Marathon pursues the sale of residential and commercial properties to current occupants and other potential buyers. Dean’s challenge is to turn a profit while harvesting a third fewer trees annually than Pacific Lumber did, and doing so in the more environmentally friendly manner that he’s touted as a hallmark of the new regime. http://www.pressdemocrat.com/article/20081012/NEWS/810120302?Title=Timber_s_New_Dawn#

18) Here’s a memo, from NAIL Steering Committee member Terry Clark to NAIL members: “The result of the unanimous vote by the BoF is that this NTMP that we have all been fighting for three years is now off the table with no hope of resurrection. SJWC has indicated they will not appeal the decision in court. The door is still open down the road for shorter, 3-year logging plan applications on smaller parcels of land, but SJWC has not taken any action on this. IF that occurs, NAIL will be involved and vigilant in opposing any plan that affects fire safety, water quality, slope erosion, danger to wildlife and threats to our community. Your NAIL Steering Committee members, some community residents, forestry consultant Jodi Frediani, members of the Loma Prieta Chapter of the Sierra Club, representation from Assembly Member Ira Ruskin’s office and Attorney Tom Lippe, special counsel for Santa Clara County, all attended the hearing in Sacramento, opposing the permit. SJWC and their timber contractor, Big Creek Lumber, were denied an application in September of last year based on the number of acres of timberland owned by SJWC. NAIL’s challenge to the acreage reported by SJWC forced CDF to conduct their own study to validate or refute NAIL’s fi ndings and CDF’s final results agreed with NAIL’s assertion. The permit was denied and SJWC stated they would appeal. After a 3 1/2 hour meeting before the 9-member, governor-appointed board, that included statements made by attendees, timber industry lobbyists and counsel representing San Jose Water’s lumber contractor, Big Creek, the board voted unanimously to deny the appeal. We would like to thank this entire community for the support it extended to fighting this wrong plan in the wrong place. Our redwoods and big trees will continue to grow and flourish. NAIL encourages SJWC to receive a fair market price for the forested acreage while retaining water rights to the land so it can be converted to open space public land and preserved for future generations. NAIL has worked very hard on this and to achieve a unanimous vote by the board in the face of SJWC/Big Creek’s pressure and high priced San Francisco attorney as well as logging industry lobbyists, was a coup for this community. You CAN make a difference as an individual, never forget this. http://cbs5.com/search/Default.aspx?N=4294574043&TabId=0&Dt=los%20gatos%20creek%20logging%20watershed

19) The Jenner Headlands, a stunning swath of undulating coastal prairie and inland forest that almost soars off the sands of Sonoma Coast State Beach, is being bought for $36 million, the largest conservation acquisition in Sonoma County history. The Sonoma Land Trust toured its new acquisition, the 5,630-acre Jenner Headlands purchased for $36 million, thursday October 9, which includes this vista looking south including Goat Rock, Bodega Head and Pt. Reyes and Highway 1. The property, north of Jenner where the Russian River enters the Pacific Ocean, extends 2.5 miles north along Highway 1 and inland toward Cazadero. If the transaction, forged through a partnership of public agencies and environmental nonprofits, is completed on schedule early next year, public access would be conducted through organized tours sometime next spring. The 5,630-acre headlands, now reachable only by private logging roads from Jenner or Duncans Mills, also would host a three-mile section of the California Coastal Trail. The expanse of grass and woodlands is believed to rank among the largest privately held properties along the California coast. “You could be looking at 40 homes or a golf course right now,” west county Supervisor Mike Reilly said Thursday as he surveyed the property from boulders clustered around a wind-bowed oak tree. “Now, we have preserved one of the most dramatic views in California.” On a clear day, a vantage point on the Jenner Headlands provides a view of the Russian River’s spillway into the ocean, Bodega Head and the Point Reyes Peninsula. Under the pending transaction, the county’s Agricultural Preservation and Open Space District would contribute about a third of the $36 million purchase price, while the rest would be split among the Sonoma Land Trust, the state Coastal Conservancy, the California Conservation Board, the Gordon and Betty Moore Foundation and the National Oceanic and Atmospheric Administration’s coastal and estuarian land protection program. http://rare-earth-news.blogspot.com/2008/10/public-and-private-to-save-5630-acre.html

20) Now that the old growth redwoods on the former Pacific Lumber Co. lands have been saved, and the new Humboldt Redwood Company has also agreed to use selective harvest only, doing away with the destructive practice of clearcutting, many people must be wondering what North Coast Earth First! is doing now. The period of celebrations can only last so long, as there is still much work to be done and many issues to address; it’s going to take some time to develop new and focused campaigns, and we need your input and ideas to help formulate the next non-violent attack on the corporate power structures that threaten our ecology and free society. I’ve been thinking about the many lumber companies who are still clearcutting and using herbicides, and the best way to go about taking them on. In these times of economic crisis, it’s hard to find lots of people who want to go out and get arrested for just any old clearcut; people have their own worries right now, and many cannot afford the fines and hassles associated with getting arrested for a cause, understandably. Maybe what we need is another initiative, similar to the Forests Forever initiative that was being promoted at the time of the bombing of Judi Bari, which would ban clearcutting statewide. The Humboldt Redwood Company is already well on its way to proving that selective harvest can be done on a large scale, and profitably. Few of us Earth First!ers are lawyers or legislators, so we would need the help of folks who are good at writing the kind of language needed for such a bill. Any takers? People have been telling us that we should be lobbying, and, if we had a bill to lobby behind, then such actions may be possible. We could start fundraising for the expenses associated with lobbying, such as food, lodging, and traveling expenses, and then non-violent direct action campaigns could be structured around the proposed bills, to bring attention to the issues, gain popular support, and to gum the gears of the corporate industrial timber machine. As a good friend recently said, the way of the Samurai is to tighten your helmet after a victory, and I feel we need to keep the ball rolling in a really strong way. http://www.northcoastearthfirst.org

21) Teak is now the most widely used outdoor wood in the U.S. with a well deserved reputation for durability in any outdoor weather. It’s an excellent choice for outdoor furniture or structures if you want it to last. Teak sold in the U.S. is almost exclusively plantation grown in Central and South America. These plantations grow teak in rows and harvest in 20 to 40 year rotations in most cases. The highest quality teak plantations have 60 to 80 year rotations, but they are a very small minority. Teak is marketed as a “sustainably harvested” alternative to exotic wood’s taken from rain forests. The teak industry is large and spends millions annually to market this enviromental angle. It’s part truth, part fiction. The truth is teak does take pressure off the native forests as a source of good quality wood. The fiction is a significant percentage of these plantations are grown on lands that were once forests. And, teak tree farms are not native to the Americas. They replace native biologically diverse lands with monoculture that provides minimal habitat for any type of wildlife. So, it’s a mixed bag with the teak. Better than logging the Amazon, but not ideal. What about Redwood? Well, Redwood was the outdoor wood of choice in the U.S. for most of the 20th century. Like teak, it is a beautiful wood with an excellent reputation for outdoor durability. It was available nationwide and used for anything outdoors until the early 1990’s. But, the Redwoods were overlogged and in 1990’s lumber production collapsed to 1/3rd the levels of prior decades. Redwood mostly disappeared from the east coast and central states. Today, Redwood is available mostly in California and some other western states. The overall quality has dropped because the average size of trees being harvested is smaller than in prior decades. In 1995, Old-Growth Again purchased and began to restore its Redwood forestland. We offer Redwood in 3 grades to distinguish it from the what is on the market today. The young Redwood, our least expensive grade, has a 10-year decay warranty and is comparable to what is mostly available on the market. Our mature Redwood, our most popular grade, has a 20-year decay warranty and is comparable in durability to the highest grades of teak. And, our highest grade, the reclaimed Old-Growth Redwood, has a 30-year decay warranty. It exceeds the climate durability of any plantation grown teak. It takes centuries of slow growth to make lumber that is almost decay proof. Only a natural forest can do that. We don’t harvest old-growth Redwood. Luckily many logs were left on the forest floor in the early to mid 1900’s to keep our furniture shop busy for many years. Yes, the logs sat on the forest floor for 50 to 100 years and are still in excellent shape! To read more about our forestry practices, please go to: http://www.oldgrowthagain.org/sustainable.html http://oldgrowthagain.org/blog/2008/10/redwood-or-teak-for-outdoors/

22) A second study, by Craig Moritz and colleagues, found that warming in California’s Yosemite National Park has already caused elevational shifts in the range of mammals species. “These kinds of changes in community composition have been going on forever,” said James Patton, a UC Berkeley professor emeritus of integrative biology who led the field work for the second study in Yosemite. “The only thing that makes this different is that it has probably happened in our lifetime. It is the speed with which these changes are taking place that gives one pause.” “If change happens too fast, elements of the system may start to collapse because a keystone element of that system gets pulled out too quickly,” he continued. “That is something we just don’t know. From my standpoint, if I had the opportunity, I would want to minimize the rate of change.” Moritz added that because Yosemite is well protected, its species will fare better than those in non-protected areas. “Yosemite has been very well managed so that species have been allowed to move,” said Moritz, a UC Berkeley professor of integrative biology and director of the campus’s Museum of Vertebrate Zoology. “We need to continue to protect large swatches of public land from land-use changes.” The results of both studies suggest that global warming will present challenges not seen in tens of millions of years for the world’s biodiversity. Craig Moritz, et al. Impact of a Century of Climate Change on Small Mammal Communities in Yosemite National Park. SCIENCE 10 OCTOBER 2008 VOL 322 http://news.mongabay.com/2008/1009-biodiversity.html

Montana:

23) The Government Accountability Office released a letter Friday that questioned the closed-door land use plan between Agriculture Undersecretary Mark Rey and the Plum Creek Timber Company — the largest private landowners in Montana with 1.2 million acres. The GAO investigators — provoked by the secretiveness of the land use easement and potential impact on Montana’s forestland — referenced the National Forest Roads and Trails Act passed by Congress in 1964, which states the purpose is “to facilitate timber harvesting,” and concluded the agency cannot grant a right greater than what the act allows. Many argue private driveways are not facilitating timber harvest, particularly when the road easements detail “cost-sharing agreements,” where taxpayers and Plum Creek split cost of road construction and maintenance. “As a general matter,” said GAO counsel Rich Johnson, reports the Missoulian, “an agency of the federal government can only give away public property to the extent that it’s been authorized to do so by Congress.” In other news, Rick Holley, President and CEO of Plum Creek Timber, will be a Keynote Speaker at the upcoming Real Estate and Development in the Northern Rockies conference, and will be discussing the company’s approach to real estate activities. Plum Creek Timber has recently aligned itself to be a real estate investment trust and reports its real estate revenue tripled to more than $330 million annually during the last five years, reports Michael Jamison from the Missoulian. Recently, Missoula County discussed its option to potentially opt out of Plum Creek easement access. http://www.newwest.net/topic/article/plum_creek_timber_road_eastment_investigated_by_gao/C35/L35/

New York:

24) “RAN has wasted over a year ignoring our concerns, and now they bury in a short blog entry their intention to review FSC. Meanwhile FSC continues with plans to certify hundreds of millions of hectares of new ancient forest logging. Failure to end this matter now and make explicit commitments will show RAN is more concerned with throwing lavish parties and Amazon cruises, than quickly ending FSC’s enabling of ancient forest logging.” Last week forest defenders rallied at New York’s Bluestocking Bookstore to denounce the Rainforest Action Network (RAN) for their support of industrial logging of primary forests. See the protest’s banner at: http://www.rainforestportal.org/issues/img/deranged_big.jpg RAN is the focus of a global campaign to end ancient forest logging, starting with getting the Forest Stewardship Council (FSC), of which they are a founding and leading member, to stop falsely certifying first time industrial primary forest logging as being environmentally beneficial. When questioned, Mike Brune, RAN’s Executive Director, stated again that RAN does not support industrial logging of old growth forests, but does support FSC. This transparent doublespeak was met by laughter from the audience. Due to Ecological Internet’s campaign, forest conservationists are increasingly aware FSC’s existence depends upon ancient forest logging. Further protest actions are expected, and the email protest continues! Some progress has been made, as RAN recently stated in their blog that they “have begun undertaking a strategic review of the Forest Stewardship Council’s (FSC’s) benefits and costs…” and whether “…RAN can continue supporting the FSC.” However, no firm, time-bound commitments were made. The campaign continues until RAN makes written promises to use their FSC membership to get FSC to stop certifying old-growth, and if this fails, to resign from the organization. This impasse comes as a new study finds forest loss costs some $2-5 trillion a year in terms of lost services provided by healthy ecosystems, many times the cost of the current financial crisis. The benefits to be realized by a few, including RAN and FSC in terms of undeserved goodwill, from cutting down ancient forests are no match for the long term ecosystem services that are gone forever. http://www.rainforestportal.org/shared/alerts/send.aspx?id=ran_ancient_forest_logging

USA:

25) Once-radical notion of conservation was first introduced to the general public through a handful of national newspapers devoted to hunting, fishing, and natural history. When Forest & Stream editor Grinnell sent a reporter to Yellowstone in 1894 to cover illegal poaching, the story galvanized popular interest in public lands; weeks later, Congress passed legislation to protect wildlife on national parks. Meanwhile, urban reformers with little connection to sportsmen were opening another front in the nascent environmental movement. In the 1890s, public health advocates from Jane Addams’s Hull House linked sewage outflows with outbreaks of typhoid fever and pushed for sanitary garbage disposal. In 1906, Upton Sinclair published The Jungle, exposing the dangerous and unsanitary conditions of meatpacking plants. Later that year, Congress and President Roosevelt created the Food and Drug Administration. By the time Roosevelt’s cousin occupied the White House, a second environmental awakening was taking place. Massive erosion, caused by drought and unsound farming practices, led to the Dust Bowl–when dark clouds swept across the prairie and drove families off their farmsteads. In 1936, President Franklin Roosevelt called representatives from local hook-and-bullet clubs to Washington for the first North American conference on wildlife. A year later, a newly formed national network of sportsmen’s clubs lobbied for the Wildlife Restoration Act, which imposed a federal tax on sporting equipment to fund state wildlife agencies. (Two-thirds of the funding for these agencies today still comes from taxes and license fees on sportsmen.) America’s third environmental upsurge began in 1962 with the publication of wildlife biologist Rachel Carson’s Silent Spring, which traced the destructive path of the pesticide DDT through the food chain. Chemicals and industrial pollutants were jeopardizing human health and putting the nation’s official symbol–the bald eagle–at risk of extinction. In the late 1970s, a rift opened between environmentalists and hunters. Sportsmen’s groups had supported the Clean Air Act and Clean Water Act, but they were not equipped, nor particularly inclined, to oversee implementation. The membership of such groups, drawn largely from rural areas, continued to focus on local concerns and hands-on conservation projects. Different priorities alone didn’t cause bad blood. But with the emergence of the animal-rights movement, a growing number of urban and suburban Americans, with little experience of farms or slaughterhouses, came to view hunting as backward or barbaric. Local chapters of some green groups, including the Sierra Club, campaigned to prevent or curtail state hunting seasons. This put some greens and hunters directly at odds. “To hear someone attack your grandfather’s tradition–that stings,” says hunting columnist Wray. “And they [hunters] don’t forget.” The intensity of these conflicts, and a growing sense of cultural alienation, led many sportsmen to view environmentalists as antagonists. After sportsmen left the fold, the environmental movement became more vulnerable to political attacks. The seeds of the modern anti-environmental backlash were sown, when conservative leaders in the late 1970s and 1980s came to see environmentalism, together with Nader’s consumer-safety movement, as threats to commercial enterprise. http://www.washingtonmonthly.com/features/2006/0605.larson.html

26) Lawmakers were unable to act on a massive omnibus package of more than 150 public lands, water and resources bills before recessing for the elections. The bill combines a package of 53 bills passed by unanimous, voice vote out of the Senate Energy and Natural Resources Committee last month with a 96-bill omnibus package from the Committee that was already awaiting consideration on the Senate floor. Together, the bills in the omnibus package would create more than one million acres of wilderness while authorizing dozens of studies for potential parks, protected rivers, and historical landmarks. Please click here for a list of the bills. Senate Majority Leader Harry Reid (D-NV) announced that the bill will be brought to the floor for a vote on November 17, when the Senate plans to return to Washington for a lame duck session. A lame duck session occurs in even-numbered years when Congress has to reconvene following the November general election to take care of unfinished legislation. Some lawmakers who return for this session may have lost their bids for reelection and will not be lawmakers in the next Congress. Hence, they are informally called “lame duck” Members participating in a “lame duck” session. Lame duck sessions often create interesting scenarios, as some of the lame duck Members have “nothing to lose” and may cast surprising votes. The public lands omnibus has an avid opponent in Senator Tom Coburn (R-OK), who objects to about 100 of the bills because they would put some public lands off limits to extractive development. Senator Coburn has been successful so far in preventing the bill from coming to the floor for a vote. However, the sponsor of the bill, Senator Jeff Bingaman (D-NM) has said he has the 60 votes it would take to override Coburn’s hold. However, even if the Senate does return to vote on the bill, if the House is not in session, the bill will not be able to move forward. The bill must pass both chambers to be sent to the President’s desk for his signature. If this package is not passed this session, it will need to be reintroduced in the 111th Congress. While the vast majority of the bills in the package are supported by the conservation community, there is one proposal that is not. HR 2801 and S. 1680 would allow a road to be built through the Izembek National Wildlife Refuge. http://salsa.democracyinaction.org/dia/track.jsp?v=2&c=csGtmLgUAIBS56dbqyCZVK%2FH6haCwyXJ

27) With another archery deer hunt in full swing and rifle season on its way, deer hunters who choose to hunt from elevated stands are asked to use caution when heading up to their perch. Studies show more people are injured or killed each year, not in firearms incidents but in accidents involving tree stands. With the popularity of elevated stands on the rise and the amazing variety found on the market, more hunters are heading up in and effort to stack the odds in their favor. Hunting from an elevated stand offers the hunter several distinct advantages, such as a better vantage point, larger field of view and a chance to spot game quicker while removing the hunter from the direct line of sight of their quarry. It also helps to keep unnatural scent away from a wary whitetail’s nose. Unfortunately, climbing 15 to 20 feet off the ground places hunters in jeopardy of returning to earth in an unexpected and often catastrophic manor. In fact, studies done by the National Bowhunter Education Foundation (NBEF) show that accident rates caused by falls from stands are as high as one in three hunters, and the possibility of a near miss is even higher. The NBEF has made it a goal to help lower these statistics with their Project STAND (Stop Tree Stand Accidents ’n Deaths). According to the NBEF, tree stand mishaps are occurring on an all too regular basis and the image of hunting is tarnished. “Thousands of accidents occur each year, with many resulting in serious injury and even death,” said Marilyn Bentz, executive director of the NBEF.. “Hunters need to start taking treestand safety as seriously as they take firearms safety. “A tree stand hung 20 feet in the air should be treated like a loaded gun because it is every bit as dangerous, Bentz said. “When hunters start treating their tree stand set-ups with the same caution they do a loaded firearm these accidents and deaths will start to go away.” Just why are there such high accident and death rates? The NBEF believes that nearly every hunter in America knows they should wear a fall-restraint device, yet only about 50 percent do and even fewer use them while climbing, descending or getting into or out of their stands. According to the NBEF, many hunters believe it will always be the other guy who falls, and it will never happen to them. The facts show that if this is how they approach tree stand safety, it WILL happen to them. http://www.stjoenews.net/news/2008/oct/10/taking-stand-hunting-safety/?sports