Environmental Prot. Info. Center v. Pacific Lumber

• Decision Date: 15 March 1999
• Docket Number: No. C-98-3129 MHP.,C-98-3129 MHP.
• Parties: ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC., a nonprofit corporation; and, Sierra Club, Inc., a non-profit corporation, Plaintiffs, v. PACIFIC LUMBER COMPANY, a Delaware corporation; Scotia Pacific Holding Company, a Delaware corporation; and Salmon Creek Corporation, a Delaware corporation, Defendants.
• Court: U.S. District Court — Northern District of California

67 F.Supp.2d 1090

ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC., a nonprofit corporation; and, Sierra Club, Inc., a non-profit corporation, Plaintiffs, v. PACIFIC LUMBER COMPANY, a Delaware corporation; Scotia Pacific Holding Company, a Delaware corporation; and Salmon Creek Corporation, a Delaware corporation, Defendants.

No. C-98-3129 MHP.

United States District Court, N.D. California.

March 15, 1999.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Brian Gaffney, Oakland, CA, Sharon E. Duggan, Law Offices of Sharon E. Duggan, San Francisco, CA, Tara L. Mueller, Environmental Law Foundation, Oakland CA, Brendan Cummings, Berkeley, CA, Richard M. Pearl, Richard M. Pearl Law Offices, San Francisco, CA, for Environmental Protection Information Center, Sierra Club, Plaintiff.

Bruce S. Flushman, Edgar B. Washburn, David M. Ivester, Christopher J. Carr, Washburn Briscoe & McCarthy, San Francisco, CA, Jared G. Carter, Frank Shaw Bacik, Carter Behnke Oglesby & Bacik, Ukiah, CA, for Pacific Lumber Co., Scotia Pacific Holding Co., Defendants.

Edgar B. Washburn, Washburn Briscoe & McCarthy, San Francisco, CA, Jared G. Carter, Carter Behnke Oglesby & Bacik, Ukiah, CA, for Salmon Creek Corp., Defendant.

MEMORANDUM AND ORDER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

PATEL, Chief Judge.

Plaintiffs Environmental Protection Information Center ("EPIC") and Sierra Club bring this action against defendants Pacific Lumber Company ("PALCO") and its subsidiaries Scotia Pacific Holding Company and Salmon Creek Corporation alleging violations of section 7(d) of the Endangered Species Act ("ESN"), 16 U.S.C. § 1536(d), and seeking declaratory and injunctive relief. On August 14, 1998, Judge Thelton E. Henderson granted plaintiffs' motion for a temporary restraining order enjoining PALCO from conducting or allowing any logging activities of any kind within the boundaries of Timber Harvest Plans ("THP") Nos. 1-96-413 HUM, 1-96-307 HUM, and 1-97-286 HUM. EPIC v. Pacific Lumber Co., Case No. C-98-3129 TEH, slip op., at 5 (N.D.Cal., August 14, 1998). This court subsequently related this action to an action already pending before the court, Coho Salmon v. Pacific Lumber Co., Case No. C-98-0283 MHP, which was filed on January 26, 1998.

Now before the court is plaintiffs' motion for preliminary injunction enjoining PALCO from conducting or allowing any logging activities within the above THPs. The court conducted an initial hearing on the preliminary injunction motion on September 3, 1998. At the conclusion of the hearing, the court converted the temporary restraining order into a preliminary injunction, and ordered further hearings on the limited question of whether coho salmon are currently present or were historically present within the regions described by the THPs at issue here. The court heard testimony on the presence of coho salmon in the watersheds at issue on September 23 and 24, 1998, and October 21 and 22, 1998. At these hearings, the court heard testimony from plaintiffs' witnesses, Michael Evenson, Dr. Terry Roelofs, and Jason Johnson, and defendants' witness, Dr. Jeffrey C. Barrett.

Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order. This memorandum and order incorporates the court's findings of fact and conclusions of law regarding plaintiffs' motion for preliminary injunction.

BACKGROUND

At the root of this dispute are lands which are subject to an agreement between PALCO and its parent company, MAXXAM, Inc., the federal government and the state of California to preserve a 7,500 acre tract of old growth redwood forest in Humboldt County, California. The agreement is commonly known as the "Headwaters Agreement." See 63 Fed. Reg. 37900-02 (July 14,1998) [Cummings Decl., Ex, F]. The Headwaters Agreement originally anticipated the exchange of the tract of old growth forest for federal and state assets with a value of $300 million and other properties. Id. The Headwaters Agreement also called for, among other things, the development and submission by PALCO of an incidental take permit ("ITP") application pursuant to section 10(a)(1)(B) of the ESA, 16 U.S.C. § 1539(a). Id.

PALCO subsequently applied for an ITP pursuant to section 10(a)(1)(B) to the U.S. Fish and Wildlife Service ("FWS") and National Marine Fisheries Service ("NMFS") (collectively, "the Services"). See 63 Fed.Reg. at 37900. If granted, the ITP would permit PALCO to legally conduct timber harvesting and other proposed activities on PALCO lands located in Humboldt County, California.¹ These lands are within the Mattole River, Sulphur Creek, and Bear Creek-watersheds. Moreover, the lands comprise areas which are purportedly the habitats of several species listed as threatened or endangered under the ESA, among which include the marbled murrelet (Brachyramphus marmoratus), the northern spotted owl (Strix occidentalis caurina), and the coho salmon (Oncorhynchus kisutch). In conjunction with its permit application, PALCO submitted a proposed Habitat Conservation Plan ("HCP") in accordance with the requirements of section 10(a)(2)(A), 16 U.S.C. § 1539(a)(2)(A), and a proposed implementation agreement. 63 Fed.Reg. at 37900.

The FWS subsequently issued a notice of receipt and availability for public comment for PALCO's permit application, HCP, and proposed implementation agreement pursuant to the public comment requirement of section 10(c) of the ESA. 63 Fed.Reg. at 37900-01. On November 16, 1998, the FWS and NMFS also initiated "formal consultation" on the Services' proposal to issue an ITP to PALCO pursuant to section 10(a)(1)(B) of the ESA and its implementing regulations at 50 C.F.R. Parts 17 and 222, respectively. See Letter dated November 16, 1998 from the Services to John Campbell ("November 16 letter").

A. Watersheds and THPs

This action concerns PALCO's timber harvesting activities in three THPs: THP Nos. 1-96-413 HUM ("THP-413") 1-96-307 HUM ("THP-307"), and 1-97-286 HUM ("THP-286"). Under California's Z'berg-Nejedly Forest Practice Act of 1973, Cal.Pub.Res.Code § 4511 et seq., timber harvesters must submit a Timber Harvest Plan prepared by a registered professional forester to the California Department of Forestry and Fire Protection ("CDF") for approval before beginning any logging operations. Cal.Pub.Res.Code §§ 4581-4582.75. The THP must contain a description of, among other things, the silvicultural methods to be applied, the type of logging equipment to be used, and methods to avoid excessive erosion. Cal. Pub.Res.Code § 4582.

THP-413 and THP-307 both lie within the Mattole River watershed, whereas THP-286 lies within the Bear Creek drainage. The Mattole River watershed includes the Mattole River, and its tributaries, the North Fork Mattole River, the East Branch North Fork Mattole River, and Sulphur Creek. See Def. Ex. C-2. Sulphur Creek flows into the East Branch North Fork Mattole River, which flows into the North Fork Mattole River about five miles north of its confluence with the main stem of the Mattole River. Id. THP-413 is divided into two tracts, one of which lies on the banks of the Sulphur Creek above the confluence of Sulphur Creek and the East Branch North Fork Mattole River. See Def. Exs. C-2 & C-3. The other tract in THP-413 sits above Sulphur Creek, along one of its tributaries. THP-307 consists of four separate tracts of land within the Sulphur Creek watershed, the largest of which extends along the upper reaches of Sulphur Creek. See id. According to PALCO, both TBP-413 and THP-307 include no-harvest and selective-cut buffer zones where the harvest areas lie adjacent to streams. For example, Barrett testified that Class I streams, or those streams with fish on a seasonal basis, had no-cut buffers of 170 feet, and Class II streams, or those stream with other aquatic life forms, had a 100 foot no-cut buffer. PALCO clear-cuts timber from the rest of THP-413 and THP-307. Id. Also, according to Barrett, the THPs require that PALCO commit "zero net sediment" delivery from its logging operations by improving logging roads and implementing other restorative measures.

The Bear Creek drainage is part of the Eel River watershed, of which Bear Creek is a tributary, and includes the West, South and East Forks and the South Branch of Bear Creek. See Def. Ex. C-4. It is a relatively small watershed, consisting of 8.4 square miles, and has "moderate to very steep" slopes resulting in a "moderate to high" erosion hazard rating. Pl. Ex. 11, at 2. THP-287, which lies within the Bear Creek drainage, consists of three separate parcels of forest that lie above Bear Creek and is comprised of both "rehabilitation harvest" and "overstory removal harvest." Def. Ex. C-4. One of the parcels lies on a mountain ridge, far from any streams. Id.

Roelofs described the effects of PALCO's logging operations on the aquatic environment in the THPs described above.² In doing so, Roelofs first referred to a 1994 study on the status of coho in California which concluded that coho salmon have declined dramatically in the last sixty years to less than 6% of their abundance during the 1940s and have probably declined at least 70% since the 1960s.³ See Brown, L.R., Moyle, P.B. and Yoshiyama, R.M., "Historical Decline and Current Status of Coho Salmon in California," 14:2 N.Am.J.Fish.Mgmt. 237,250 (May 1994) [Pl.Ex. 10]. Like Roelofs, Brown et al. attributed the decline to a number of factors, primary among which was the loss of stream habitat. Id. at 251 (citations omitted). Although Brown et al point to several factors that have contributed to habitat loss, "[d]amage was particularly severe in coastal streams affected by logging," which have exacerbated erosion and land slippage through the construction of logging roads and by the removal of vegetative ground cover. Id. Erosion, or "mass wasting," increases the amount of sediment— or, aggradation — in...