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The Gap investors hire Jared Carter to defend L-P logging plans
- from the Mendocino County Environmentalist, July/August 1998

"It's sad but it really should be no huge surprise. Everybody knew they were cutting themselves out of business."

Richard Wilson, Director of the California Department of Forestry and Fire Protection, stated in reference to Louisiana Pacific Corporation's recent sale of all of its timber lands (Santa Rosa Press Democrat, November 1997)


The Redwood Coast Watersheds Alliance and other environmental groups and local communities were dismayed to learn, last week, that the Gap investment group-also known as Sansome Forest Partners--and their new Mendocino Redwood Company have hired former Louisiana Pacific attorney Jared Carter to defend several abominable logging plans that were filed by L-P and approved by the California Department of Forestry shortly before the sale of L-P's Mendocino forest lands to the Gap investors. Two of these logging plans have been the subject of public outcry and protest for ten years (the "Enchanted Meadow" logging plans, in the Albion River). The other two logging plans, of more recent vintage, have also been extremely controversial. The public sent dozens of letters and hundreds of petition signatures to CDF about these clearcutting plans in Greenwood Creek and Elk Creek. The Greenwood-Elk community considers these logging plans to be a major assault on the fragile resources of this two-watershed region. The fisheries in both Creeks are extremely imperiled. Greenwood Creek also supplies water to the town of Elk, which has suffered years of impacts on the town water supply from L-P logging.

That the Gap investment group would defend logging plans such as these-in effect, defending L-P's notorious policy of "liquidation logging"-has been bitterly disappointing. That the Gap would hire Jared Carter, who is notorious for defending L-P as L-P clearcut its way out of the County, makes it highly improbable that the Gap's intentions are any different than L-P's. The Gap group has put itself into the position of having to prove otherwise. They don't look very good right now.

Jared Carter Writes A Letter

The following letter of attorney Jared Carter to California State Assistant Attorney General Marc Melnick illustrates what public interest groups and forest and fish advocates have been up against, trying to insure the sustainability and health of our forests and the long term life of our fisheries. At the time that Mr. Carter wrote this letter--May 13,1998-he was still representing Louisiana Pacific, which had just gone into escrow with the Gap group.

The letter shows Mr. Carter orchestrating a legal attack on the right of citizens to participate in timber harvest plan review. He tells the attorney general how the California Department of Forestry (CDF) can further shut the public out. He also suggests a way for CDF to shut out other state agencies, and even a federal agency, from the review process.

It is already nearly impossible for ordinary citizens to participate in the review of a timber harvest plan. The time-line is extremely short to begin with. The agencies' reports on the plan are almost always submitted at the last minute, just before the close of public comment. CDF often changes the plan after that date. One would have to go sit in the CDF-Santa Rosa office for days and weeks in order to keep track of the changes to a THP. CDF-Santa Rosa generally won't fax documents to the public. The THP is a moving target. If a member of the public successfully runs the cruel gauntlet of CDF logging plan review, and manages to get comments in on time, CDF ignores them.

In his letter to the A.G., Mr. Carter discusses a way to shut the door on public comment ever more quickly. He is obviously writing for friendly readers in the attorney general's office and at CDF-the "Defender of Liquidation Logging" writing to his lieutenants.

The occasion for Carter's letter was a lawsuit filed by the Redwood Coast Watersheds Alliance on May 13-the same day that the letter was written-- challenging three of L-P's high impact logging plans that had been approved by the California Department of Forestry in the months leading up to the sale. Mr. Carter, in addition to advising how to shut the public up, states that the CDF should assert its "final authority" instead of "waiting for comments from Water quality or NMFS, etc., to bolster up the CDF decisions."

"NMFS" is the National Marine Fisheries Service, the federal agency in charge of protecting the coho salmon, a federally listed species. Carter's casual inference that "Water quality or NMFS" will "bolster up" CDF's decisions is something of a slander on those agencies. While "Water quality" (California's North Coast Regional Water Quality Control Board, or NCRWQCB, to be precise) and the National Marine Fisheries Service have, indeed, been scandalously negligent in protecting our fisheries and the quality of our water, it is not fair to say that these agencies always "bolster" CDF's decisions. In fact, these agencies have sometimes dissented from CDF's decisions, and NMFS has in addition been highly critical of the California Forest Practice Rules and the failure of CDF to require adequate assessment and analysis of the cumulative impacts on coho salmon.

CDF goes right ahead and approves whatever logging plans the timber industry puts before them-no matter what any other agency says, state or federal. The state attorney general then defends whatever decision CDF makes, no matter how bad.

At the conclusion of the letter, Mr. Carter advises the attorney general to "write a letter to the judge" in the RCWA case, telling the judge that "the Rules are valid and CDF follows them"-oddly redundant advice considering that the attorney general always takes this position in support of CDF anyway. In court, the attorney general always sits at the other table, with the timber industry attorneys-opposite the public interest.

What happened in this lawsuit is that the judges at the Superior Court and Appellate court levels delayed ruling on RCWA's request for an emergency stay of logging for a total of twelve days, while L-P logged the last significant Redwood forest in Greenwood Creek and began clearcutting in Elk Creek and the Albion River. The judges in effect mooted the case. Mr. Carter needn't have concerned himself that the logging might be stopped, and needn't have suggested that the attorney general "write a letter to the judge." Indeed, he might have saved some paper by not writing this letter at all. Why he did so is food for thought.



Rawles, Hinkle, Carter, Behnke & Oglesby
A professional corporation
169 Mason St., Box 720
Ukiah, California 95482

May 13, 1998 Date stamped California State Board of Forestry 5/15/98

Marc Melnick
Attorney General's Office
50 Fremont Street, Ste. 300
San Francisco, CA 94105-2239

Re: RCWA v. CDF/L-P, Mendocino Superior Court No. 78423

Dear Marc:

Attached are my points and authorities in opposition to the latest TRO [temporary restraining order] request. It occurs to me that CDF might emphasize some of these points coming out of the 1995 legislation (the ones cutting off the time when they have to consider other people's comments particularly) in some of the ORs [Official Responses to Public Comment on Timber Harvest Plans]. Also the amendment in 4582.7(e) about the director having "final authority" might be utilized more vigorously--instead of waiting for comments from Water quality or NMFS, etc., to bolster up the CDF decisions. After all, it was this section that the Court of Appeal relied upon in the second Marbled Murrelet (111 F.3d 1447) case as indicating that NMFS' view on taking marbled murrelets was not really all that important to the plan approval process.

One more point: During argument of the TRO today, Lippe [RCWA attorney Thomas N. Lippe] told the judge that CDF keeps applying the "incremental" approach to cumulative impacts assessments that was rejected in EPIC v. Johnson. He said this is not only illegal under EPIC, but also inconsistent with the Rule's definition of cumulative impacts. Of course, I said "it ain't so" and that Technical Rule Addendum No. 2 is entirely consistent with 15252 of the CEQA [California Enviornmental Quality Act] Guidelines, the FPA [Forest Practice Act], and Sierra Club v. Bd. of Forestry. I think it would be helpful if you wrote a letter to the judge for the preliminary injunction hearing (in about two weeks) whether or not a TRO is issued) saying the Rules are valid and CDF follows them.


Jared G. Carter

cc: Tom Thompson, Tom Osipowich, Chris Rowney, Norm Hill, Craig Anthony



A Memorial To Fisherman Nat Bingham

On April 1, 1998, the Redwood Coast Watersheds Alliance filed a lawsuit against four Louisiana Pacific logging plans-a lawsuit that is still in process in the courts and is scheduled to go to trial in mid- to late August. One of those logging plans was THP 1-97-445 MEN, a proposal for 606 acres of logging including 418 acres of clearcutting in Elk Creek on the south Mendocino coast. In the timber harvest plan, L-P asserted that the entire South Fork of Elk Creek is a Class II non-fish-bearing stream (even though their draft "Sustained Yield" Plan designates the entire stream as a Class I). Members of the public who know this stream, and local and commercial fishermen, wrote dozens of letters to CDF about this plan, objecting to the down-classing of this historical coho salmon and steelhead fishery. The state agency inspection reports endorsed L-P's assertion-that there are no fish. CDF approved this huge clearcutting plan. Then, some local fisherkids went fishing in the South Fork of Elk Creek and caught and released numerous steelhead a half mile above where L-P and the agencies said there was a barrier to fish migration and no fish.

THP 1-97-445 came to the attention of the National Marine Fisheries Service through Nat Bingham, the legendary commercial fisherman and fish advocate who died this May. Fighting for the Elk Creek fishery was one of the last things that Nat Bingham did on this earth. The struggle to save this extremely endangered fishery continues in his memory.

There are only ten (or fewer) coho salmon left in the entire Elk Creek watershed, according to a survey conducted by L-P in 1995. This fragile population of coho salmon is located directly below the proposed THP 445 clearcut. This information was suppressed in the timber harvest plan and was not made available to the public until after the plan was approved.

The National Marine Fisheries Service Writes A Letter

In the first paragraph of the following letter, the National Marine Fisheries Service states that its comments on THP 1-97-445 also apply to "many other [THPs]" that contain seriously defective cumulative impacts analysis. The letter goes on to state that THP 445 may pose a "serious threat to survival of coho salmon in Elk Creek due to cumulative effects to salmonid habitat."


United States Department of Commerce
National Oceanic and Atmospheric Administration
National Marine Fisheries Service
Southwest Region
777 Sonoma Avenue, Romm 325
Santa Rosa, California 95404

April 7, 1998 F/SWR3: PJR

Mr. Tom Osipovich
Department of Forestry and Fire Protection
135 Ridgeway Avenue
P.O. Box 670
Santa Rosa, CA 95402-0670

Dear Mr. Osipovich

The National Marine Fisheries Service (NMFS) has reviewed THP 1-97-445 MEN, which has received considerable attention from State agencies as well as concerned members of the public. The following comments describe some of the concerns NMFS has with this THP, and with many others that do no fully analyze the impacts of timber harvest on federally listed salmonids and their habitat.

The landowner, Louisiana Pacific Corporation, proposes to clearcut 418 acres and conduct selection on 188 acres in the Elk Creek Watershed. The proposed THP also proposes to construct approximately two miles of new roads within the watershed.

The plan identifies coho spawning and rearing habitat as on-site and downstream beneficial uses of water that could be affected by the project activities. The plan also states that "In the event that significant adverse impacts occur from this timber harvest, the Lower Elk Creek drainage is likely to be effected."

NMFS is concerned that threatened central California coast coho salmon and the habitat that supports these fish may be impacted, even the the plan evaluation for cumulative impacts is "NO significant effect." The proposed THP acknowledges that coho and their habitat are present and if impacts occur they will occur in Elk Creek. The THP as submitted, confirms sediment delivery from class III stream due to past harvesting activities, yet makes no attempt to assess the current condition of coho habitat or the potential impact of the proposed harvest activities. In Sec. IV of the plan, the RPF's answer was "NO" to the question of impacts due to past projects that may have increased sediment inputs that have embedded gravesl, filled pools, or caused channel aggradation within some portion of the stream system. The RPF also answered "NO" to the question regarding past projects that have caused increased channel downcutting or bank erosion as a result of increased flows, sediment transport, or other channel modifications. The cumulative effects analysis also has a "NO" answer to the question regarding impacts of future projects (considering mitigation) with respect to increase sediment inputs that will lead to pool filling, embedded gravel etc.

No information is provided in the THP to support the cumulative watershed effects assessment. The RPF did not identify how past impacts were analyzed, provide information on current fish habitat condition or current upslope conditions that may be delivering sediment to channels. This information should be key to the cumulative impacts analysis when a beneficial use such as spawning and rearing habitat for coho salmon has been identified. Without the information on the past impacts, current condition of stream channels and sediment delivery, impacts of the proposed plan (e.g. harvesting, road building, skidding) are almost impossible to predict. Allowing the THP to proceed, even with some additional protection measures, may pose a serious threat to survival of coho salmon in Elk Creek due to cumulative effects to salmonid habitat.

I believe this proposed harvest (THP 1-97-445 MEN), due to its size and activity level, should require the applicant to provide the documentation and analysis that was used to determine that no significant cumulative biological impacts would occur. The documentation should address past impacts, present conditions and potential impacts of the proposed THP on Federally listed coho salmon and coho habitat.

If you have any questions concerning these comments, please contact me at (707) 575-6059.


Patrick J. Rutten
Supervisor, Northern CA Protected Resources Div.

cc: W. Hogarth - SWR, J. Lecky - SWR3, A. Lavine - CAG, N. Bingham - PCFFA



Two Of The "Many Other" THPs

The Redwood Coast Watersheds Alliance also filed suit on April 1, challenging CDF's approval of a clearcutting plan in Greenwood Creek (THP 1-97-352 MEN) and CDF's recent approval of two ancient logging plans, from 1989, in the Enchanted Meadow area of the Albion River (THPs 1-89-100 and 1-89-145). These logging plans also have very much to do with the cumulative impacts issue. In the case of Enchanted Meadow, L-P and CDF attempted to exclude the public entirely from the cumulative impacts assessment process. That case went to appeal and resulted in the strongest statement yet by the courts regarding the public's right to participate in the review of logging plans, and also regarding the vital necessity of such participation. Those kids who found the fish in Elk Creek are a good example of the value of public in-put. Enchanted Meadow itself is also a good example. Without public participation, Enchanted Meadow would have all been clearcut long ago, and the public would have lost a valuable and beautiful recreational area.

The Greenwood Creek clearcutting plan (THP 1-97-352 MEN) involves several additional aspects of cumulative impacts assessment. The area was heavily logged back in 1979-against the protests of many local people at the time. CDF's Ross Johnson claimed at that time that the logging would "enhance" the area. He said that the owner at that time, Masonite, would replant the area with conifers (Redwoods, Douglas fir). Much of the area is now covered with 18 year old tanoak. This fragile little forest is trying to heal itself from the assault by Masonite and by the previous owner Crowfoot. It is extremely steep. One of the logging roads that L-P put in collapsed into Greenwood Creek last fall and poured sediment into the Creek all winter. This sediment is adding to an overall heavy sediment load that travels downstream to the Elk town wells, where the community has to spend about $10,000 per year to filter the water. L-P conducts no water quality monitoring, neither for the people nor for the fish.

CDF conducted several important inspections, and placed several important reports and memos in this Greenwood Creek clearcutting plan, long after the close of public comment, yet they never re-opened the comment period for review of these additional documents, some of which made highly questionable assertions about the justification for clearcutting and the impacts on water quality.

This Greenwood Creek clearcutting plan relies heavily on L-P's draft "Sustained Yield" Plan for its justification-a plan that is rather a joke, now that L-P has sold out due to lack of sustainability of their logging practices. The timber harvest plan-which refers to the draft SYP 43 times-- announces L-P's intention to clearcut about 30% of L-P's holdings in this highly impacted watershed over the next ten years.

The Gap investor group recently announced that it intends to adopt L-P's draft "Sustained Yield" Plan with only minor changes. What is the difference then between L-P and the Gap?

No Fish Data In The Gap's So-Called "Sustained Yield" Plan (SYP 95-003)
and no table of contents

The Redwood Coast Watersheds Alliance made an official Public Records Request of the California Department of Forestry in connection with the fish data that CDF had placed into the public record of THP 97-445 in Elk Creek after the logging plan was approved. CDF identified this fish data as having come from an Appendix to L-P/the Gap's "Sustained Yield" Plan. RCWA asked CDF for the rest of the SYP fish distribution data-the fish data for all Mendocino coast watersheds. CDF replied on March 26, 1998, that it did not possess any such data.

CDF is about to approve this SYP-a plan that has no fish distribution data to support its assertions that the coho salmon will continue to prosper on L-P/Gap lands forever more.

RCWA made a second Public Records request. Among the documents RCWA asked for was a list-merely a list--of the contents of the current, published SYP, including reports, manuals, appendices, etc., and a list of the contents of any previous versions. Following is the reply, in a letter to RCWA from CDF's John Munn on July 16, 1998:

"There is no existing list of documents as described in this item."

In other words, CDF cannot list the contents of L-P/the Gap's "Sustained Yield" Plan. This is the document that will control the future of Mendocino County for the next ten years at least. The contents that are available to the public present an alarming picture of a dying fishery, a critical lack of wildlife habitat and a vast landscape of small, even-aged, evenly-spaced trees-in fact, a tree farm. The magnificent Redwood, that can grow to two thousand years of age, will be no more. The Redwood logging industry itself is on the verge of extinction, due to CDF's failure as a regulatory agency. And CDF cannot even tell us what are the contents of this plan.

This is the plan that the Gap investor group has chosen to follow. This is the plan that CDF will hand to the Gap investor group on a gold platter, just as they handed the Mendocino coast Redwood forest to Louisiana Pacific timber harvest plan by timber harvest plan.

When Did We Decide Not To Have A True Redwood Forest On The Mendocino Coast?

We have no hope whatever of influencing our tax-supported Department of Forestry on these vital issues. The whole thing will be over in a year, and any rules or laws we make (or decide to enforce) at that point won't make any difference to the salmon fishery in Elk Creek and many other places. We also have very little hope of influencing the Gap investors. When they are presented with facts about the condition of these forests and their dependent creatures, they say things like: If we get too much trouble over this, we'll just re-sell immediately to a timber corporation. An L-P forester once made a similar statement to an Elk resident: How would you like strip-malls here instead of forests?

The way L-P logged, it ends up being a decidedly moot question. Tree farms or strip-malls-or, more likely, subdivided ranchettes-seems to be the program of big money in California. True wildness, true forest-and a prosperous, sustainable natural resource economy-no longer seems to be an option. When did the people of California make this decision? When did the people of the United States decide that they don't want a true Redwood forest on the Mendocino coast? What have we done to the children of the world, and to children yet unborn, to deny them a say in this awesome and final decision on the fate of the mighty Redwood and the extinction of the coho salmon?

Mary Pjerrou is President of the Redwood Coast Watersheds Alliance, a non-profit alliance of 13 local community watershed groups and projects in Mendocino County.




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P.O. Box 533, Talmage, CA 95481 * (707) 459-5490 ext 501 fax 468-1009.

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