Legal Briefing on PL Court Case

Final testimony and arguments were offered to Superior Court Judge
John Golden, Thursday, (09-04-03) as he weighs damage done to the environment
with potential damage faced by Maxxam/Pacific Lumber should an
injunction be issued against Timber Harvest Plans that rely on
the "fatally flawed" Sustained Yield Plan.

Pacific Lumber's geomorphologist Kate Sullivan took the stand to
give testimony regarding PL's monitoring of watersheds where they
conduct logging operations. She claims PL's monitoring of impaired
streams is more intensive than any other monitoring being done, though
it's only been going on for three months. Freshwater Creek was first
listed as impaired and degraded by the Environmental Protection
Agency in 1997. Between the time of the EPA listing and PL's
implementation of this "intensive monitoring," thousands of
acres have been clear-cut and tens of thousands of tons of sediment
have been delivered into creeks and rivers. Ms. Sullivan failed to
mention Salmon Forever, who has been monitoring degraded creeks and
rivers for years with stations that take water samples every ten
minutes when the water levels rise. Oddly, the purpose of PL's
monitoring is not to quantify sediment, but rather to determine that
there are sources from which the sediment comes.

She also blamed flooding and sedimentation on "legacy logging," or
century old logging practices used before the new-and-improved ways
of exploiting the forest we see today. She contradicted herself
minutes later by saying adverse effects of logging happen right away
and diminish with time. Apparently she never heard of the Stafford
mudslide that wiped out houses, and for which the corporation she
works for had to settle with people who lost their homes. The
cumulative effects of repeated clear-cuts upslope from the town
caused the slide.


Kate Sullivan's job is to develop the monitoring methods used by
Pacific Lumber. When asked if PL logs in the winter, she said she
did not know since she only joined the company last spring.

Wouldn't this be a key piece of information since her job is to
detect the effects of logging? No one was fooled.


EPIC called Susan Nelson to the stand, a Research Wildlife Biologist
and a leading expert on the endangered marbled murrelet. She has
published several writings on the murrelet, including a recovery plan
after the bird was listed as endangered in 1992. She has visited
marbled murrelet nesting sites on PL-claimed property and is familiar
with their so-called Habitat Conservation Plan.


She testified that 3200 acres of occupied marbled murrelet habitat
are targeted for PL's "Incidental Take Permit," which allows a
loophole around the endangered species act and permits Maxxam to
destroy their habitat. An additional 6600 acres of suitable but
unsurveyed habitat are also at risk.


Marbled Murrelets return year after year to the same nest. When
nesting trees are destroyed, breeding may not happen again for years,
or may not happen at all, she said. Logging near the site of nest
trees may also disrupt breeding due to change in the microclimate.

60% – 70% of marbled murrelet nests fail, largely due to predation.
Loss of forest near nest trees increases risk to eggs and chicks.

Nelson's testimony was in direct contradiction to that of Mark
Stopher of the Department of Fish and Game (DFG) who claimed that no
harm is done to the birds if they are not in the trees at the time of
cutting.

The cross-examination of Susan Nelson by Pacific Lumber attorney
Frank Bacik was an example of how lawyers "pound the table"
when they don't have law or facts on their side. Although there was
no pounding, there was plenty of arrogance and belittling of the
witness. Winning the Mr. Condescending prize of the day, Bacik asked
if it was true that the cutting of Marbled Murrelet nesting trees
*really* posed a threat to the species.


During the previous hearing, Bacik lauded Mark Stopher as one who
upholds the Endangered Species Act, even though Stopher issues
permits to destroy their habitat. Using a less respectful tone, he
asked Susan Nelson "isn't it true that you are an `advocate' of the marbled murrelet?"

Bacik looked like a hypocrite as well as a bully.

EPIC attorney Sharon Duggen attempted to submit "Phase 2" of
the Independent Science Review Panel report regarding the effect of
PL logging on water quality. Phase 1 was in evidence over the
kicking and screaming of PL's legal team, but the judge sustained
objections to the second report. PL lawyer Ned Washburn displayed
further hypocrisy by calling the report an opinion of "some agency"
(water board), when the day before he was affronted by any doubting
of agencies like DFG and the California Dept. of Forestry who
routinely give the thumbs up to environmental degradation. Although
the disallowance of the report is unfortunate, as it clearly
addresses the impacts of PL's liquidation logging on water quality,
admission would have caused further days of testimony by PL
biostitutes in attempts to discredit the report. Time is an issue
because the last day of marbled murrelet nesting season is September
15, after which PL will cut dozens of acres of occupied habitat
unless Golden issues an injunction.


During closing arguments, Sharon Duggen used a black marker to do
some math for the judge using PL's own figures. She showed that
PL is merely 5 million board feet away from their annual projection,
not 100 million board feet as they claim. They will achieve this
projection whether the injunction is granted or not. We know from
previous testimony that PL has ten million board feet worth of trees
lying on the ground they've yet to count.

Duggen also emphasized the looming September 15 deadline for the
Marbled Murrelet and implored the judge for an injunction. "If
there is a time to plead it is now," she told the judge, "and so I
plead with you to do something."


Attorneys for PL, DFG and CDF (alphabet soup, anyone?) advised the
judge to revisit his statement of judgment, which sets aside the
Sustained Yield Plan (SYP), the Incidental Take Permits, as well as
permits for streambed alteration. They also told the judge he has no
authority to put an injunction on the plans because they have already
been approved for logging (never mind they were approved under
a "fatally flawed" SYP).


Regarding the marbled murrelet nesting sites in question, Washburn
called them "miniscule" and therefore should be allowed for
logging. Only an agent of the timber industry would use the word
"miniscule" to refer to ancient redwoods. I wonder if that's the word
he'd use if hanging upside down from one, 160 feet above the ground
(like Eric Schatz does to treesitters).

PL threatened to appeal the injunction if issued, and plans to appeal
the statement of judgment as it stands.

Golden did not give a time frame for his decision of remedy, and so
we wait...