By the time of this reading, the Dogwood plan could be beyond the deadline for public comments. If, however, it has been postponed, please visit Friends of the Gualala River (www.gualalariver.org) where you can get details on commenting to the record. Our win in court didn’t necessarily save the Gualala River floodplain but the court told GRT they had to take into account the cumulative impact of Dogwood and other logging plans along the river. This and other issues will be addressed by legal staff.
Redwood Logging – “Dogwood” Timber Harvest Plan
On Tuesday, September 13, Sonoma County Superior Court granted a Preliminary Injunction to petitioners Forest Unlimited and Friends of Gualala River to temporarily halt further logging of the controversial Gualala River floodplain within the “Dogwood” timber harvest plan area while litigation proceeds.
The court determined that “Petitioners have demonstrated a clear, imminent threat of irreparable injury. Without the injunction, the logging activities under the Project will permanently remove trees and alter the environment. Petitioners’ evidence also demonstrates that the logging activities may harm ecologically sensitive, protected wetlands, flora, and fauna.
The court also agreed that the other requirement for a preliminary injunction – a sufficient basis for finding a likelihood of success on the merits of the lawsuit – was met.
The text of the decision is provided below.
“Motion is Granted. Undertaking of $10,000 is required. Petitioners have demonstrated a clear, imminent threat of irreparable injury. Without the injunction, the logging activities under the Project will permanently remove trees and alter the environment. Petitioners’ evidence also demonstrates that the logging activities may harm ecologically sensitive, protected wetlands, flora, and fauna.”
The evidence provided also demonstrates some basis for finding a likelihood of success on the merits. Petitioners raise several arguments about the validity of the timber harvest plan (“THP”) which they claim were raised in the administrative proceedings. Petitioners’ evidence in their moving papers provide explanations about deficiencies in the THP while the portions of the THP to which both real party in its opposition and Petitioners in their reply cite further demonstrate possible defects which Petitioners raise and which were raised in the administrative proceedings. For example, real party’s opposition appear to shows that the THP relied on only a generic list of plants that might be affected, as the basis for its findings, instead of demonstrating evidence of what plants are actually on the Project Site. Some of these pages are headed “common plant species list.” This failure to determine what plants are actually on the site, and thus likely to be affected, is clearly a potential violation of CEQA.
Petitioners’ Ex.1 at 122-124, 130 demonstrates that a botanist expert on wetlands provided comments explaining how the Project may affect wetlands and the responses consisted solely of an assertion that two foresters walked the area and felt that no sensitive, protected wetlands were there but, as Petitioners argue, it is arguably not demonstrated that they were necessarily qualified to make such an assertion. The responses also state that real party is “confident” that it located all of the sensitive wetlands, an equivocal statement that arguably shows a lack of meaningful evidence.
Although Petitioners’ initial evidence may arguably be objectionable with respect to the merits of the action because not taken from the administrative record, this is not fatal to Petitioners’ motion and the court overrules any objection to the evidence on that basis. The court notes that at this time the record is not yet available and thus the parties should not be restricted to it while real party in its opposition, despite objecting to extra-record evidence, presents and relies on similar extra-record evidence itself. Moreover, the documents which are presented in the opposition and reply are ostensibly from the THP and thus clearly could be considered.
Finally, the balancing test and goal of preserving the status quo weigh in favor of the injunction due to the nature of the likely harms. Despite some weaknesses in Petitioners’ showing of a probability of success, the balancing test involves a mix of the two elements and the greater the showing on one element, the weaker it may be on the other. Butt v. State of Calif. (1992) 4 Cal.4th 668, 678. In contrast to the clear, and certainly irreparable nature of the harm which Petitioners raise, Real Party demonstrates no threat of irreparable injury that the injunction would cause, only a possible and temporary monetary injury to it. Real Party will merely suffer a delay in logging and if it ultimately prevails may still conduct the logging, obtaining the profits it would have obtained. Real Party claims that the injunction will threaten a sawmill which relies on the logs and that it will suffer $1.4 million in expenses, but this is not persuasive. Nothing shows that Real Party owns and operates the mill, the relationship between them being unclear at best. Even if Real Party owns the mill, the issue for threatened injury is not the lost profits, which again will be delayed only, but injuries that may result from going out of business due to a lag in production, which Real Party has not shown. Real Party also only asserts that it needs to proceed with the logging in order for the mill to operate at “full capacity” but this does not demonstrate that without this logging this mill could not operate adequately, at less than full capacity.
Because of the lack of evidence of injury resulting from the injunction, the court finds no support for the requested undertaking of $700,000. Due to Petitioners’ demonstrated lack of financial resources, and the unclear, tenuous nature of any material harm from the injunction, the court finds that an undertaking of $10,000 is appropriate.
For more information:
contacts: Forest Unlimited Rick Coates 707.632.6070 or Larry Hanson firstname.lastname@example.org Peter Baye, Friends of Gualala River email@example.com 415.310.5109 www.gualalariver.org
by Will Parrish, Bohemian.com
The fight to save majestic coastal redwood groves in California has been waged for more than a century, starting with the campaign that created Big Basin State Park in 1902.
In 1978, the Sierra Club dubbed its successful campaign to expand Redwood State and National Park the “last battle” of “the redwood war,” but the battles to protect this globally recognized icon of nature would only intensify.
In 1985, a junk-bond dealer named Charles Hurwitz engineered a hostile takeover of Humboldt County’s most respected logging company, Pacific Lumber, and folded it into Houston-based investment company Maxxam. Meanwhile, Louisiana-Pacific, a Georgia-Pacific spin-off, was cutting its more than 300,000 acres in Mendocino and Sonoma counties at roughly three times the forest’s rate of growth.
“We need everything that’s out there,” Louisiana-Pacific CEO Harry Merlot told the
Press Democrat in 1989 “We log to infinity. Because it’s out there and we need it all, now.”
This unruly phase of the story involves the birth of radical environmentalism on the North Coast, complete with tree sits and road blockades, and culminates in the campaign to save the largest remaining area of unprotected old-growth redwoods in California, and thus the world: the Headwaters forest, located between Fortuna and Eureka. President Bill Clinton made saving Headwaters an election pitch in 1996, and in 1999 the state and federal governments purchased 7,500 acres to establish the Headwaters Forest Reserve.
Sonoma County Superior Court Judge Rene Chouteau ruled today that the California Department of Forestry and Fire Protection (CALFIRE) violated the California Environmental Quality Act (CEQA) when it approved the Bohemian Club’s 100-year logging plan for the Bohemian Grove.
Several years ago Forest Unlimited helped to organize, educate and advise the Bohemian Redwood Rescue Club. The BRRC and Forest Unlimited together with the Sierra Club reviewed and commented upon a Nonindustrial Timber Management Plan (NTMP) filed by the Bohemian Club with the California Department of Forestry (CDF). After three years of review and three major revisions to this open-ended logging plan, CDF still approved what we still felt was an illegal plan. Consequently BRRC and the Sierra Club sued the Bohemian Club and CDF.
The ruling in the case, Sierra Club and Bohemian Redwood Rescue Club v. CALFIRE, is a win for environmentalists who for years waged a David and Goliath-style battle in an effort to scale back logging at the Bohemian Club’s 2,700-acre Bohemian Grove near Monte Rio, 75 miles north of San Francisco.
The ruling is significant because it requires CALFIRE to consider reasonable alternatives that are less damaging to the environment, said Paul Carroll, the attorney who successfully argued the case.
Environmentalists had opposed the Bohemian Club’s Non-Industrial Timber Management Plan (NTMP) , which sought CALFIRE’s approval to log up to nearly two million board feet per year, including some old growth, at the Bohemian Grove. The Sierra Club’s lawsuit maintained that the Bohemian Club initially overstated the amount of timber that could be sustainably harvested, in violation of CEQA.
The Bohemian Grove, the Bohemian Club’s elite enclave on the Russian River, contains magnificent redwoods and Douglas fir, some more than 1,000 years old. Coastal old-growth redwoods remain on only 4 to 5 percent of their original range: a 450-mile band along the Pacific coast from Big Sur, California to southern Oregon.
The Bohemian Club’s NTMP drew hundreds of public comments, more than any other in the history of California’s 1972 Forest Practices Act. In this ruling, Judge Chouteau questioned how CALFIRE could consider clear cutting as potentially feasible, but reject the public’s request for less damaging alternatives.
This ruling affirms that public participation in the permitting process is essential to protecting the state’s remaining old growth, said John Hooper, a long time forest activist and former Bohemian Club member whose objections to the logging plan led to the lawsuit.
In 2001, while a member of the Bohemian Club, Hooper hiked the outlying acres of the Bohemian Grove. He came upon large old-growth redwoods and Douglas fir that had been tagged for harvest. He learned that the Bohemian Club, citing the need for fire prevention, had applied for a permit (NTMP) to harvest 1.13 to 1.8 million board feet per year. A 2001 internal report by the Bohemian Grove’s then-forester had concluded that the Grove could only sustain a maximum cut of 500,000 board feet in a year without damaging the forest.
The Bohemian Club had logged 11 million board feet been 1984 and 2005, including old growth trees. At least nine old-growth stands were still intact, but Hooper found that these hadn’t been disclosed in the Bohemian Club’s NTMP. State regulations require landowners to divulge “special and unique” resources on their property so that logging plans can be accurately evaluated. CALFIRE requires that NTMP timber harvest goals be sustainable.
Scientists from UCLA and UC-Davis disputed the Bohemian Club’s sustainability and fire safety claims. The California Department of Fish and Game also criticized the plan.
“From start to finish, this was clearly a logging project, not a project to reduce the fire hazard,” said Philip Rundel, Distinguished Professor of Ecology and Evolutionary Biology at UCLA. “The harvest rates and cutting schedules were totally inconsistent with the plan’s claims of restoring natural forest conditions.”
As a result of the criticism, the Bohemians scaled back their NTMP. The Bohemian Club resubmitted its NTMP in 2009, but offered no “feasible alternatives” to the proposed logging, as CEQA requires. CALFIRE approved the plan anyway, just two days before stronger regulations protecting Russian River salmon and steelhead took effect.
Concerned about the challenge to the integrity of CEQA, the Sierra Club filed suit in January 2010. In today’s ruling, the Court ordered CALFIRE to rescind its permit to the Bohemian Club and start over.
“Today’s victory shows that no matter how influential a group may be, it is not exempt from the law,” said Rick Coates, executive director of Forest Unlimited in Cazadero and a veteran of many redwood battles.
Here are some of the courts findings:
“It is difficult to understand why CDF would include clearcutting as a potential feasible harvesting alternative but reject the suggestion by public commentators that CDF consider a reduced harvest alternative. CDF rejects the clearcutting alternative as infeasible, but provides no clear justification for rejecting some form of reduced harvest alternative.”
“Given the fact that the department was unable to come up with one feasible alternative to be analyzed, it is difficult to conclude that the environmental document sets forth alternatives necessary to permit a reasonable selection of alternatives that will allow meaningful evaluation.”
“The NTMP is inadequate to support CDF’ s decision to approve the project.”
For more information:
11/9/10 After waiting nearly a year for a court date of November 12,2010, the plaintifs in the suit against the Bohemian Club were informed four days before the trial date that the Judge Robert S. Boyd recused himself citing close relatives who belong to the Bohemian Club! Judge ReneAuguste Chouteau has been assigned to hear the case sometime in 2011.
1/28/09 The Bohemian Redwood Rescue Club and the Sierra Club filed suit in Sonoma County Superior Court to set aside CalFire’s approval of the Bohemian Club’s logging plan. The Bohemian Redwood Rescue Club was organized, trained and advised by Forest Unlimited. A special thanks to the Sonoma Group of the Redwood Chapter of the Sierra Club for their support of this legal challenge. Click here to donate to the legal fund for this suit. To see the petition click here: Sierra Club & BRRC vs. CDF.
1/16/10 As of this date, the Sheephouse Creek NTMP has not been returned to Calfire for additional review. A recent engineering report submitted to Calfire demonstrates that the proposed unimproved haul road, cannot withstand heavy logging trucks without damage and likely siltation of Sheephouse Creek. If you would like to help review this plan contact us.
1/16/10 Calfire approved the Sunrise Mountain THP months ago but, as yet Gualala Redwoods Inc. has not logged likely because of the low price of timber. GRI also applied for and received a lot line adjustment that would facilitate homebuilding on the parcels after logging. We still have hope that GRI will consider selling the parcels to the Open Space District for inclusion in the recently acquired Jenner Headlands.
12/29/09 CalFire approved the Boheminan Club Nonindustrial Timber Management Plan in spite of the fact that the Club has too many acres to qualify for such a plan and that the Alternatives Analysis and the discussion of cumulative effects all violate the requirements of the California Environmental Quality Act. Read More at savebohemiangrove.org.