Published by the California Forestry Association monthly. Address questions or comments via our cfa e-mail link or to: 300 Capitol Mall, Suite 350, Sacramento, CA 95814 (916) 444-6592, FAX 444-0170, e-mail: cfa@cwo.com

June 1996

What’s Inside:

Lead Story

Grass Roots Leaders Flying High After Annual Event

State News

Biomass and Self-Wheeling: Topics for New Committee Discussion

Appointments

Forest Management &Legal Affairs

Archaeological Rules

Red-Legged Frog Listed as Threatened

Legal Update

Guest Opinion

Lost Dreams and Broken Promises: A Letter to Bill Clinton

Grass Roots Leaders Flying High After Annual Event

More than 300 grass roots activists descended on our nation s Capitol, June 15-19, to educate Congress and the Administration on issues critical to loggers, ranchers, farmers, fishermen, recreation enthusiasts and property owners during the sixth annual Fly-In for Freedom. The theme of this year s Fly-In was “The World is Run by Those Who Show Up.” Sponsored by the Alliance for America, a 50-state coalition of grass roots groups seeking to balance environmental laws, the event included press conferences, panel discussions, workshops and visits with congressional members and Clinton Administration officials.

Alliance President Bruce Vincent opened the 1996 Fly-In by outlining the victories and frustrations from the past year. Citing the fight against repeal of the salvage rider and the introduction of forest health legislation, Vincent applauded the effectiveness of the Alliance for America grass roots network. He urged everyone not to be discouraged by stalled attempts to develop better environmental laws and to look past election year politics. With Alliance issues on the forefront of presidential politics and the legislative agenda, Vincent said, “We are strong and growing stronger, large and growing larger, real people with a real cause, fueled by emotion and fired by the truth.”

Highlighting the Fly-In, Speaker Newt Gingrich joined Represenative Richard Pombo and a capacity crowd in a discussion of enviromental issues at the U.S Chamber of Commerce. The Speaker, taking notes, appeared to be emotionally and intellectually moved by introductory comments from Alliance President Bruce Vincent and personal stories from the audience. Gingrich applauded the organization for their efforts and encouraged them to continue building coalitions because of the lack of resource professionals elected in Congress. He acknowleged that Republicans and conservative Democrats have failed in their efforts to explain these issues properly to the American public, while citing media hostility as part of the problem. He stressed the importance of framing our messages positively as we present “the new environmental movement,” using a phrase from Vincent s opening. He added that he wants to protect property rights and improve the Endangered Species Act so that it provides positive incentives. “I take these issues very seriously,” he said. The Speaker s recognition of the Alliance for America and other efforts to secure common sense solutions to environmental protection brought added credibility and political clout to a grass roots movement that a few short years ago couldn t get an appointment with many lawmakers. In words written by film producer Roger Brown, Vincent told the Speaker the nation must now turn to, “A new environmentalism based on hope instead of fear; on solutions instead of conflict, on education instead of litigation, on science instead of emotion, and on employing human resources rather than destroying them.”

In another media event, Utah State House Speaker Melvin Brown held a press conference on behalf of the Western States Coalition, representing 3,500 state, county and local elected officials from across the west joining the efforts to support a better, visionary environmentalism. Brown was joined by Senator Craig Thomas (Wyoming), Senator Larry Craig (Idaho), Senator Ted Stevens (Alaska), Representative Richard Pombo (California) and Representative Helen Chenoweth (Idaho). Other key U.S. Senators had been scheduled to participate but were unable to attend due to a leadership meeting with the new Senate Majority Leader Trent Lott (Mississippi).

Indicative of the bipartisan concern for protection of private property, more than 50 members of the U.S. Congress were on hand at an event sponsored by the League of Property Rights Voters to receive individual certificates of recognition as champions of constitutional property rights. The certificates were awarded to congressional members who acheived a 75% or better rating in the annual Voter Index sponsored by the League. Photographs of each recipient were taken with their local constituents attending the Fly-In or League of Property Rights Voters officials.

Media events are only part of the menu of activities at the annual Fly-In. This year s panel discussions, political workshops and hundreds of meetings with congressional representatives, Administration officials and staff members focused on a variety of policy isues important to the diverse Alliance for America membership. Reports on three issues of primary importance to forest communities and workers included:

Endangered Species: Tom Pyle, aide to Rep. Richard Pombo, and Julie Kays, aide to Senator Slade Gorton, agreed that any major reforms of the Endangered Species Act are unlikely this year. However, the new leadership in the Senate should be friendly to efforts to reform the Endangered Species Act. Senator Dirk Kempthorne is working with Senator Harry Reid to form a compromise proposal and Representatives Young and Pombo are looking at splitting their bill into three separate bills. Confirmed by the House Resources Committee staff, Rep.Young is planning to introduce the “Private Property Rights Abuse Prevention Act,” the “Endangered Communities Protection Act,” and the “Unfunded Mandates Prevention Act” as seperate compromises to H.R. 2275.

Property Rights: With the support of the U.S. Chamber of Commerce and the American Forest and Paper Association, Fly-In participants were treated to the premier of “Forest Wars,” a documentary film by Emmy-award winning producer Roger Brown. W. Henson Moore, AF&PA President, stressed the importance of focusing efforts on S. 605, the property rights bill in the Senate that may be heard in July. Moore said that many Senators do not want to vote on the bill because their position on the issue would be controversial among their constituents in an election year. Fly-In participants distributed property rights support letter to members of Congress, which will be forwarded to Senate Majority Leader Trent Lott.

Forest Health: Senator Bill Bradley (D-NJ) negotiated to postpone the mark-up of Senator Craig s forest health bill (S. 391), allowing more time to broker a bipartisan compromise. Sen. Bradley views his role as a moderate Democrat wanting to forge a “centrist” position, from which both parties can support forest health legislation. The bill went before the Energy & Natural Resource Committee on Wednesday, June 19. After weeks of negotiations aimed at producing a bi-partisan bill, discussions fell apart after the Ninth Circuit Court of Appeals overturned a district court ruling dealing with old contracts released as part of last year s salvage rider. After the appeals court decision, much of the incentive to work for a bi-partisan forest health bill was lost. The bill now goes to the floor of the Senate where it may die for this session.

Appropriations: The House adopted a $12.1 billion natural resources appropriations bill, although key forestry issues were passed by the slimmest of margins. While Republican defection was limited to mostly eastern moderates on provisions to fund logging road construction and protect the emergency salvage law, Speaker Gingrich cast the deciding vote in favor of responsible forestry. Fly-In participants actively lobbied on these issues and might have been a deciding factor in the results of a few crucial votes, including the Speaker s. All was not positive, however, as Representative Frank Riggs (CA) effort to exclude private landowners in California from marbeled murrelet critical habitat designation was defeated, proving that even the House is still trying to quench their insatiable appetite for regulatory takings without compensation.

The Alliance for America s 6th annual Fly-In for Freedom marked a pivitol point in the maturation of a once-naive group of citizens exercising their rights to protect personal freedoms and livelihoods. Smarter, more politically sophisticated and impassioned about a common vision to create sensible environmental policies, the Alliance and all like-minded grass roots organizations have become advocates for a cause that the loyal opposition cannot deny.

Biomass and Self-Wheeling: Topics for New Committee Discussion

As part of the State Legislature s effort to address the future of the electric energy market after deregulation, a conference committee will be established. On Tuesday, June 11, 1996, the Senate Energy and Utilities Committee agreed that biomass market protections and self-wheeling ability as proposed in AB 1202 (R-Woods) and AB 1048 (R-Conroy) respectively, will be topics included in the conference committee s discussion of legislative action necessary under any electrical power restructuring proposals. Several witnesses, committee members and the committee Chairman, Senator Steve Peace (D-Chula Vista) expressed agreement over the environmental benefits of protecting the biomass market, but disagreed about the legislative mechanism to be used. The conferees for the electrical restructuring conference committee or hearing dates have not been formalized as of yet. CFA will keep you apprised of upcoming hearings and any actions as necessary.

Appointments

Governor Wilson has announced the appointment of Stephen L. Kashiwada, of Sacramento, as Deputy Director of the Department of Water Resources and Peter Rooney, of Sacramento, as Undersecretary of the California Environmental Protection Agency.

Staff contact: Mark Rentz

Archaeological Rules

At its June meeting, the Board of Forestry (Board) unanimously voted to delay any action on the proposed amendments to the Forest Practice Rules for Archaeological and Historical Protection. This decision was based on a recommendation by the Forest Practices Committee (Committee) which acknowledged that several issues were still unresolved. Many of these issues were raised by CFA staff, several member company representatives and other interested parties who testified before the Committee. The Committee will request additional public comment and report back to the Board at the July meeting. No specific date was set for any Board action on the proposed amendments.

CFA members continue to support the identification and protection of significant archaeological and historical sites throughout the state. Under the current regulations, there are more archaeological records filed with the informational centers in relation to forestry operations than any other single land-use activity. Unfortunately, the proposed amendments provide little opportunity to increase day-to-day, on-the-ground activities which will ultimately assure greater protection for significant archaeological and historical sites. Conversely, the proposed amendments appear to merely generate additional paperwork for both the landowner (or the registered professional forester) and the already overburdened responsible agencies.

CFA will submit a detailed response to the Board. CFA members are encouraged to provide CFA staff with their input, and to submit their comments directly to the Board.

Red-Legged Frog Listed as Threatened

The U.S. Fish and Wildlife Service (USFWS), in compliance with a federal court order, has listed the red legged frog under the federal Endangered Species Act (ESA). The listing is effective June 24, 1996. The USFWS has attributed the decline in population to the spread of exotic predators such as bullfrogs, habitat fragmentation which has isolated populations and degraded streams. The listing means that activities on private and public lands, including grazing, real estate development and timber harvesting, may be subject to federal review and possible restrictions. It will also mean additional survey requirements and perhaps additional restrictions on timberland in the coast district south of San Francisco. Habitat for the frog consists mostly of wetlands and streams that have deep pools and dense stands of overhanging vegetation. Currently, the frog is known to occur in about 240 streams or drainages in the central coastal area of California from portions of Marin County in the north to Ventura County in the south. The USFWS has yet to determine suitable habitat, but could include the Sierras if historic habitat is included. Managing for frogs is a new undertaking by the USFWS and a specialized recovery team has been created to respond to this listing. The USFWS will begin reviewing Timber Harvest Plans in the southern coast, Plumas County and the central valley for the protections proposed for riparian zones which are the frog s primary habitat.

Legal Update

Pacific Coast Federation of Fisherman's Association. v. EPA (TMDL case - federal): Plaintiffs seek to compel the Environmental Protection Agency (EPA) to establish total maximum daily loads (“TMDLs”) under the federal Clean Water Act (CWA) for 17 northern California rivers listed under § 303(d) of the CWA. CFA Board of Directors has approved CFA s participation with the American Forest and Paper Association (AF&PA) as joint intervenors. AF&PA s Legal Committee is reviewing the case and will make its recommendation to the AF&PA Board as to whether AF&PA should intervene. This case will be guided by the “federal fast track” rules. Briefings are tentatively scheduled for as early as July or August. Settlement discussions are likely to begin in the near future. Given the importance of this case for several CFA and AF&PA members, we have requested an expedited decision by the AF&PA Board. If intervention is approved, AF&PA will assume the lead role and the legal services of Crowell & Mooring (Washington, D.C.) are likely to be retained.

Coast Action Group v. Regional (North Coast) Water Quality Board, et al. (TMDL case - state): Plaintiffs maintain that the North Coast Water Quality Board could, but has failed to, require new logging operations to file waste discharge reports and consequently, over the past 20 years, water quality has deteriorated. The plaintiffs also allege that the California Department of Forestry (CDF) has violated the California Environmental Quality Act (CEQA) by failing to appropriately evaluate cumulative impacts when reviewing Timber Harvest Plans (THPs). All parties to this action are currently taking depositions. The plaintiffs motion for summary judgment is scheduled for late summer but may be delayed until early fall. The defendants and intervenors will have an opportunity to respond. The trial will probably take place in late fall.

Northwest Forest Resource Council v. Glickman, et al.: The Ninth U.S. Circuit Court of Appeals reversed, in part, the recent ruling by U.S. District Court Judge Hogan (District of Oregon) on the 1995 Rescissions Act (Salvage Law). The Court of Appeals held that the agencies (Forest Service and Bureau of Land Management) can use the Pacific Seabird Group (PSG) protocol throughout the range of the marbled murrelet (California, Washington and Oregon) to determine whether the bird is “known to be nesting” within a timber sale cutting unit. Under the PSG protocol, murrelets are considered to be nesting if: (1) tere is detection of an active nest or recent nest by a fecal ring or eggshell fragments; (2) murrelets are observed flying in, out or directly through the canopy; or (3) murrelets are observed circling directly over or under the canopy. Detection of a murrelet flying overhead across a stand is not considered to be behavior indicating nesting or breeding in the stand.

The Court of Appeals also held that with regards to the Section 318 timber sales in Washington and Oregon, the Salvage Law does not require the Secretary of the Interior (BLM sales) or the Secretary of Agriculture (Forest Service sales) to seek out and release these sales to previously unsuccessful bidders if the high bidders are unwilling, unable or unqualified to take advantage of a renewed offer.

Mahler v. U.S. Forest Service: Judge Hamilton, U.S. District Court for southern Indiana, recently ruled that the prohibitions in the Migratory Bird Treaty Act (MBTA) do not apply to death or injury caused by forestry operations on national forests, or, by implication, on private land. Judge Hamilton explicitly rejected the decision of Judge Hull (U.S. District Court for Georgia), holding that the MBTA only prohibits activities that are intended to kill or capture birds, or traffic in their body parts. MBTA does not apply activities that result in unintended death or injury to migratory birds.

McDaniel v. U.S. Forest Service: Alleging that the Forest Service s failure to control southern pine beetle on national forest system lands constituted negligence, the Mountain States Legal Foundation (MSLF) has filed an appeal with the U.S. District Court of Appeals for the Fifth Circuit. MSLF is seeking to reverse and remand a decision by the U.S. District Court for eastern Texas to dismiss a cause of action by adjacent timberland owners seeking damages resulting from the spread of pine beetle. The District Court held that any Forest Service decision to act (or not act) in response to the spread of bark beetle is discretionary and therefore no cause of action exists. MSLF maintains that the Land Management Plan (LMP) and environmental assessment for the project set forth a mandatory course of action for the agency.

National Association of Home-builders v. Babbitt: The National Association of Homebuilders (NAHB) has filed a lawsuit in Federal District Court (Washington, D.C.), alleging that the federal government lacks the constitutional authority to regulate wildlife or land-use on non-federal lands. NAHB further alleges that the Commerce Clause, a frequently cited source for federal authority to regulate the activities of private citizens, does not justify federal regulation because the Delhi Sands fly, listed as an endangered species under the federal Endangered Species Act (ESA), has no nexus with interstate commerce. The federal prohibitions to protect the Delhi Sands fly impacts the land-use within a 40-square mile area in the San Bernardino and Riverside Counties. NAHB has asked the court to issue an injunction preventing the U.S. Fish and Wildlife Service from enforcing federal prohibitions on harming the fly or disturbing its habitat without an “incidental take” permit.

Recent Filing

Hayden, et al. v. California Fish and Game Commission: Sen. Tom Hayden (D-Santa Monica), the Natural Resources Defense Council (NRDC) and the Environmental Protection Information Center (EPIC) have filed a lawsuit in the San Francisco Superior Court alleging that the Fish and Game Commission (Commission) has ignored evidence, abused its discretion and failed to follow the law by not making California s spring run of chinook salmon a candidate for listing under the California Endangered Species Act. The plaintiffs have requested that the court order the Commission to make the spring run a candidate species. According to a recent article in the Sacramento Bee (Monday, June 17, 1996), an estimated 8,000 spring-run chinook salmon returned to their spawning grounds in 1995, well above the 25-year average of 2,000 to 3,000 fish. A listing ould likely affect water deliveries for Sacramento Valley farmlands, as well as drinking water in southern California.

Lost Dreams and Broken Promises: A Letter to Bill Clinton

By Nadine Bailey

(Permission to reprint granted by Nadine Bailey, Exec. Assistant Timber Producers Association of Michigan & Wisconsin.)

March 11, 1996

Dear President Clinton,

You made a promise to my daughter on a national television program. When Elizabeth showed you her yearbook with names of the children whose parents would lose their jobs because of the spotted owl, you made a promise to her and to all of the children who live in timber dependent communities. Do you remember what you said?

Your promise was that you would solve the problems in the Northwest and California. That you would bring everyone together and come up with a solution that would allow logging and protect the spotted owl. Do you remember? Do you care where Elizabeth is today? Do you care where her father is? Do you know how hard her family worked to bring about solutions that would save the community and ensure the health of the forest? I hope this brief summary of the last three years will make you understand and regret your broken promise.

1993-- After the summit, I worked with the environmental community to develop a plan that would add jobs while protecting habitat and wildlife. I received a call from Vice President Gore asking for my suppot for the Option 9 Forest Plan.

1993-1994-- The Option 9 Plan is approved and the region gets an adaptive management area. [These areas were specifically designated to have adaptive management techniques used to produce products that would enable local communities to survive the transition brought about by changes in forest management.] Hopes are high in the region that some relief from the timber supply crisis will be felt.

Spring 1994-- Jobs become hard to find. Grants from Option 9 do not make their way to unemployed loggers. In fact, in public forums Tom Tuchman admits that much of the money will go to infrastructure. In other words, the people most affected by the change in national forest policy will be the least likely to receive help. We no longer have our own business. Years of work to build a business are gone and my husband, Wally, works for five different employers, some as far away as eight hours. Families are starting to leave the Trinity area. Some Trinity county school districts now have 96% of children on free and reduced lunches which means they now live below the poverty level.

Fall 1994-- The last large logger in Hayfork prepares to move operation because of lack of work. Adaptive Management Area fails to produce any more timber than other areas under Option 9. In fact, there seems to be more study in the AMA than other areas affected by the Option 9 Plan.

Spring 1995-- We move our family from our home in Hayfork to Redding. At this point, I contacted the many agencies that had been given money to help displaced workers for help with the move. We were told that we didn t qualify because my husband had already found work. We are forced to borrow money from a family member to move. We had been home owners, now we are faced with renting, and finding the $2000.00 needed for deposits. We cannot sell our home partly because of the market, and partly because the house was built by my mother and father and I can t face losing my home. Wally becomes even more bitter about being betrayed by your administration. Despite my job with the California Forestry Association we fall deeper into debt. My kids are not happy. City life is much different. To leave a high school with 125 kids and start again in a high school with 1000 is almost too much for country kids. I am very concerned about Elizabeth. She misses her friends so much. Wally finds work six hours from home. He moves out to live on the job site and I become a single mother again.

April 24, 1995-- A bomb goes off at my office killing my boss and friend, Gil Murray. I seem to have lost the heart to fight for our community. Nothing I have done for the last four years seems to have made a difference. My trust in government and society as a whole is weakened. You use the Oklahoma bombings to attack right wing political groups. You never mention the Unabomber. Vice President Gore doesn t call this time.

Summer 1995-- Where did I go wrong, was it believing in the promises of a president? Could I have done more? Everything is beginning to unravel. With the exception of some local groups that came together to seek solution through consensus, like the Quincy Library Group and the Trinity River CRIMP,everyone seems to be going back to war. I wonder if you realize what an opportunity you had to heal old wounds. Instead, all hope is fading for the future of towns like Hayfork. I still get calls late at night from people not knowing how they will make it through the winter, wanting to know if they should stick it out, if there is any hope that things will change. For the first time in my life, I have no hope.

Fall 1995-- I am offered a job at the Timber Producers Association of Michigan & Wisconsin in Rhinelander, Wisconsin. We are not making it in California. The work just isn t there. How can I leave my home and family to start over in a strange land miles from home? How can I ask my family to give more than they ve already given?

Winter 1995-1996-- Wisconsin experiences the coldest winter in 50 years, but we survive it. I love my job, but suffer as I see my family longing for the friends they love so much. I dream of the South Fork mountains, the river so clean and cold, the hot summer sun and the sound of the wind through the trees. We survive but our hearts ache.

February 1996-- I receive a call from a close friend. She tells me that the mill in Hayfork is closing. I sit in the living room with the lights out, looking at the frozen whiteness that surrounds me. The landscape looks like how my heart feels, barren and cold, a great white void. I can t allow myself to think of the pain my community is experiencing. How will they cope with the reality that their way of life is gone forever? I wonder, do you know and do you care?

March 1996-- I read a press release where you say that the salvage rider is undermining the healing process that Option 9 had produced. Do you actually believe this? Do you even remember the workers whose wounds weren t healed, whose pain and loss was simply swept aside? Do you remember Elizabeth Bailey and the promises you made? Or do you think she has healed. Do you have the courage to meet her face to face now?

One of the first things I did when I became involved with forestry issues was an interview with Chris Bowman from the Sacramento Bee. He said, “Nadine, your story would make a great movie-of-the-week, but you would have to die at the end.” I doubt very much if my husband and son will stay in the Lake States. They dream of the mountains and tall trees and the sound of the wind in the canyon too much. So in the end, with my family scattered like leaves, a part of me has died. All I wanted was to keep our community together, our families together. When that hope died, I guess a part of me did too. Maybe its time to make that movie now.

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