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ENVIRONMENTAL PROTECTION INFO. C. v. PACIFIC LUMBER CO.

March 15, 1999

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.



The opinion of the court was delivered by: Patel, Chief Judge.

MEMORANDUM AND ORDER

                            FINDINGS OF FACT AND
                               CONCLUSIONS OF
                                    LAW

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.*fn1 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 nocut 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-A. 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.*fn2 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.*fn3 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 streams. If sufficient amounts of sediment are deposited in pools, the volume and complexity of the pools are significantly reduced, impairing sheltering habitat and increasing water temperature. Because the coho's ability to find food depends on the water clarity, high levels of turbidity and silting have a significant impact on the coho's ability to feed. Finally, the effects of logging are not localized, and thus, erosion in the upper per reaches of the timber harvesting plan may have significant downstream effects. For example, Roelofs stated that increased erosion in the Sulphur Creek drainage could have significant downstream effects in the East Branch North Fork Mattole Riverland the North Fork Mattole River. In contrast, Roelofs testified, the downstream effect of erosion in the Bear Creek drainage would have less impact on coho habitat in the Eel River.

B. Coho Salmon Characteristics

The court's understanding of the physical and habitat characteristics of coho salmon Ware derived primarily from the testimony of Dr. Terry Roelofs. Roelofs has been a professor of fisheries at Humboldt State University ("HSU") for 28 years and specializes in salmonids and stream ecology. He has published numerous articles on the effects of sedimentation on anadromous fish. Roelofs has also devised stream survey methodologies and presence/absence protocols. At HSU, Roelofs advises several graduate students and trains both graduate and undergraduate students to conduct stream surveys to assess habitat and identify fish species. Although Roelofs has not surveyed any streams or rivers within the Bear Creek or Sulphur Creek drainages, his opinions on the presence of coho in these drainages are based on stream surveys conducted by the California Department of Fish and Game ("CDFG"), PALCO and others and a review of the literature.

Several anadromous fish species are found in the rivers and streams of northern California, including the coho, or silver, salmon ("coho"), the chinook salmon ("chinook"), and the steelhead rainbow trout ("steelhead"). Although each of these fish species share some traits, they exhibit different physical features, especially in size and spotting, growth rates, tolerances to habitat conditions and temperatures, allowing fisheries biologists to distinguish and identify the species. Because much of the debate during the hearings centered on whether the fish identified in the drainages at issue were coho or steelhead, the court focuses primarily on the characteristics which distinguish these two anadromous fish.

Roelofs characterized the optimal habitat for juvenile coho as being "complex," consisting of deep pools of greater than one meter in depth moving approximately two to three feet per second over a substrate ranging from marble to tennis ball size pebbles and containing large quantities of "logs, rootwads, or boulders in heavily shaded sections of stream." Brown et al., 14:2 N.Am.J.Fish.Mgmt. at 238. Coho prefer to spawn in streams with a 1-2% gradient. The ideal water temperature for coho is between 55 F and 60 F, with temperatures ranging from 68 F to 70 F, increasing their susceptibility to disease and fatigue, and temperatures ranging from 74 F to 76 F being lethal to the coho within 24 hours.

The migration pattern of coho is integral in determining their presence or absence in the streams and rivers of northern California. Coho generally exhibit a "relatively simple" three-year life cycle. 62 Fed.Reg. 24588 (May 6, 1997) [Pl.Ex. 6]. Adults typically begin their freshwater spawning migration in the late summer and fall, spawn by mid-winter and then die. Id. In California, the spawning migrations upstream normally occur from October to March and generally peak from November to January. Brown et al., 14:2 N.Am.J.Fish. Mgmt. at 239. Roelofs testified that although the odds are high that coho will return to the stream into which they were hatched, a small fraction of coho stray and form new coho colonies. Depending on stream temperatures, coho eggs incubate in "redds," i.e. gravel nests excavated by spawning females, for 1.5 to 4 months before hatching. Juvenile coho, or fry, typically live in the freshwater streams along the Pacific coast for up to 15 months, and then migrate downstream to the ocean during late March and early April, usually peaking in mid-May if conditions are favorable. Id. According to Roelofs, young-of-the-year salmonids that have hatched in the spring can be seen in pools by July or August. At this stage, coho fry are generally 1.5 to 3 inches long. In contrast, young-of-the-year steelhead emerge from their redds later than young-of-the-year coho and tend to be somewhat smaller.

Other physical characteristics distinguish the coho and steelhead. For example, the dorsal fin of juvenile steelhead tends to be spotted, whereas the coho's dorsal fin is clear. Although the fins are otherwise similar in color, the sickleshaped anal fin of the coho tends to be much longer than the anal fin of the steelhead. Another distinguishing physical trait of the two species are the "par," or oval markings on the skin of the fry. The coho's par tend to be narrow and widelyspaced whereas the par of the steelhead are generally thumbprint-shaped. Finally, a personality trait distinguishes the two species: the coho are less shy than steelhead.

C. Coho Salmon Presence/Absence

After four days of testimony, the complexities of conclusively determining the presence or absence of coho in the drainages at issue became apparent to the court. First, the distribution of coho in streams in northern California fluctuate due to overall climatic conditions as well as changes in the local habitat conditions. See Brown et al., 14:2 N.Am.J.Fish.Mgmt. at 248. Because coho populations tend to vary throughout the region depending on climate and habitat quality, coho may be absent from an area for as many as fifteen years before re-establishing a colony. Poor coho habitat may change over time and increase in complexity, and vice versa, becoming more or less attractive to coho. A significant limitation therefore arises from the paucity of historical data and stream surveys of native coho populations. Second, the overall reduction of coho numbers in northern California streams have reduced the probability of observing coho. Thus, if coho are observed, then their presence is conclusively established; however, if coho are not observed, then one can only state that no coho were observable. Finally, the court notes that observing coho and its habitat in the field is not an exact science. A comparison of the various stream surveys, including those conducted in close proximity in time, failed to show correspondence in terms of physical features, i.e., pool size, depth, temperatures, and habitat features, that the court would have assumed to be fairly constant. The court is particularly cognizant of these limitations in ascertaining whether coho are present in the watersheds at issue here.

The testimony demonstrated that no systematic coho presence/absence surveys have been conducted over time by the CDFG or PALCO in either the Bear Creek drainage or the watershed composed of the North Fork Mattole River, the East Branch North Fork Mattole River, and Sulphur Creek. Rather, the testimony adduced only that a series of ad hoc habitat surveys have been conducted over the past thirty years. Only the flurry of surveys conducted over the past year in preparation for this litigation have focused on coho presence/absence. Three different presence/absence survey methodologies were described by Roelofs and Barrett and used in these surveys: (1) visual observation from the streambank; (2) direct visual observation with the use of a face mask and snorket; and (3) electrofishing, which involves placing into the water a small electrical current towards which fish are attracted and then stunned with Alka Seltzer. According to Roelofs, streambank observation is a "marginal" survey technique in comparison to direct visual observation or electrofishing. Moreover, the accuracy of both visual observation methods depend on the quality of the view the observer has of the fish. Barrett placed great emphasis on electrofishing as being the most accurate observational method, and characterized himself as an "electrofishing guy." Roelofs and Johnson also described a number of protocols for presence/absence surveys. Of relevance, the court notes that the NDFS protocol for determining coho absence requires three consecutive years of surveys of pools throughout the basin before a fish species may be declared absent.

1. Bear Creek Drainage

Presence/absence surveys for coho in the Bear Creek drainage do not extend far into the past. It is undisputed, however, that coho have been observed in Bear Creek. See Pl.Ex. 21. On December 16, 1987, Greg Moody and George Donkor of the "CCC" and Gary Flosi of the CDFG conducted a stream survey on Bear Creek designed to recover coded wire tagged chinook salmon from the PALCO bridge up to one mile upstream. Pl.Ex. 12. They observed 1 live coho, 16 live chinook and 2 live steelheads. Id. On January 10, 1992, in a survey designed to determine broadly "which anadromous fish are utilizing" Bear Creek from its confluence with Eel River to the PALCO bridge, one live chinook and three live coho were found. Id. Again on December 18, 1992, sixteen live chinook, two live coho and three unknown live fish were recorded. Id. Thus, coho salmon have been present in the Bear Creek watershed. Furthermore, these observers determined that Bear Creek and its tributaries provided suitable habitat conditions for coho. For instance, the CDFG determined the "total length and depths of pools in Bear Creek were approaching conditions consistent with high-quality coho habitat." Pl.Ex. 11, at 2. On cross-examination, Barrett also conceded that PALCO listed Bear Creek as a coho stream in the HCP submitted to the Services.

On January 1, 1997, a large "debris torrent" swept through Bear Creek causing severe channel aggradation and eliminating "large woody debris," deep pools and riparian vegetation on the main stem of Bear Creek to its confluence with the Eel River. Id. at 4. The debris torrent thus erased many "suitable habitat features for salmonids," including juvenile coho habitat, in the Bear Creek drainage. Id. The court further ascertained from Barrett that the January 1, 1997, torrent originated on PALCO lands and may have been the result of PALCO logging practices.

Finally, the court notes the Bear Creek survey conducted by plaintiffs' expert, Jason Johnson, on August 5, 1998. See Pl. Ex. 16. Johnson is presently an undergraduate student at HSU obtaining a B.Sc. in natural resources planning and interpretation and a minor degree in fisheries biology. As part of his classroom experience, Johnson has taken courses in coastal stream management and performed intensive fieldwork which required the identification of coho, chinook and steelhead and other fish species, as well as visual observational methods such as the direct visual observation and electrofishing. When questioned by the court and by PALCO's counsel, Johnson was adept at recounting the distinguishing characteristics of coho, chinook and steelhead. Johnson is also a former student and employee of Roelofs, who indicated that he is confident of Johnson's ability to identify coho and to distinguish juvenile coho from steelhead and chinook. However, Johnson's body of field and educational experience is substantially less than a number of the other surveyors cited. Johnson was recently employed as a field coordinator/technician for William M. Kier Associates ("Kier"), a consulting firm that is presently completing a coho presence/absence study for NMFS. In the course of his duties at Kier, Johnson participated in stream surveys to determine the presence or absence of coho in both the Bear Creek and Sulphur Creek drainages using a protocol devised by Kier and NMFS.*fn5

On August 5, 1998, at approximately 1 PM, Johnson and Trevor Lucas, a graduate student in the HSU fisheries department, began surveying Bear Creek. Their data sheet records their observation of 2 coho and 2 steelhead in a pool 600 feet above the confluence of Bear Creek and Eel River, and 5 coho in the next pool downstream. He further records the pool temperatures to be 72 F and 74 F, nearly within the lethal temperature range for coho. Immediately prior to the arrival of Johnson and Lucas, Collins and Jezierski had left Bear Creek after conducting their electrofishing stream survey. See Def. Exs. S & T. According to Collins, no coho were observed, but a large quantity of steelhead and sculpin were observed. Def. Ex. T. The court sought to resolve the differences between the Johnson and Collins surveys, but was left serious concerns regarding the accuracy of Johnson's data. First, Collins and Jezierski used the more reliable electrofishing method in conducting their survey. Second, Johnson observed far more coho than previously observed in 1987 or 1992, even after the debris torrent eliminated much of the suitable coho habitat in Bear Creek. Third, Johnson recorded extremely high temperature levels in the pools sampled. Finally, Johnson was unable to provide an explanation for the difference in the nearly contiguous observations. After reviewing all the circumstances and testimony, the court does not find Johnson's observations of coho in Bear Creek to be credible.

In conclusion, however, the court finds that Bear Creek is a coho stream for the purposes of its section 7(d) analysis given the historical presence of coho in Bear Creek and potential for the natural evolution of the steam habitat to be suitable for coho. Although the court recognizes that the debris torrent eliminated much of the suitable coho habitat in Bear Creek, the court further finds that the ...


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