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INTRODUCTION (1)
In 1986, Charles Hurwitz was known in Northern California only asthe shadowy Texas Wall Street tycoon who had suddenly and forciblypurchased a titan of the North Coast timber industry. Hurwitz would dolittle to improve his image on the North Coast, and his company sufferedas a result, deepening the already intense Redwood Wars as he waged waragainst local activists over the fate of the forest he had purchased.The first time Charles Hurwitz, CEO of Maxxam Group Holding, Inc.,addressed his new employees at The Pacific Lumber Company, he replied toa question about his intentions by telling the crowd, "There'sa little story about the golden rule. Those who have the gold,rule." (2) That twist of the biblical Golden Rule about treatingothers as you'd like to be treated became shorthand for the popularpress' overly simplistic morality story about a conflict betweenWall Street and local environmentalists over the fate of HeadwatersForest. The forest was located approximately 250 miles north of SanFrancisco, and at the time it was the world's last privately ownedand unprotected old-growth redwood forest complex, containinghalf-a-dozen groves of giant redwoods nearly 300 feet tall, 20 feet indiameter, and nearly 2,000 years old. After Hurwitz acquired PacificLumber, North Coast activists identified a 60,000-acre forest threatenedby the company's new logging regime. Pacific Lumber and activistsfought for 20 years over how that forest should be managed. They foughtin the media, in legislative halls, in the forests, and especially inthe courtroom. Litigation developed into the activists' mostpowerful tool, and the state courts of California were the most frequentvenue for the battles among timber companies, activists, and governmentagencies. The battles transformed California's and thenation's forestry regulations on private land, and demonstrated thepower granted to citizen activists by the environmental protectionregime erected during the 1970s.
Hurwitz's quotation did epitomize the history of Californiaforestry regulation to that point. Until 1970, state law had granted thetimber industry authority to self-regulate. After 1970, however,citizens successfully leveraged the courts to challenge the state'sforestry regime, with its traditional focus on timber production. Thus,by the time Hurwitz orchestrated the takeover of The Pacific LumberCompany and uttered his infamous phrase in 1986, the California Board ofForestry--although still heavily influenced by the needs of the timberindustry--had endured nearly two decades of legal assault on thestate's long-standing production-focused logging practices andinstitutions. (3)
A close study of the history of citizens' legal campaignsagainst California's forestry regulations challenges some of thekey literature about postwar environmental politics by shifting thefocus of study from the national perspective to the local perspective.The typical narrative of postwar environmental politics, as constructedby Stephen Fox, Samuel Hays, Robert Gottlieb, Michael Kraft, RichardLazarus, and others, has, until recently, emphasized the nationalizationand professionalization of " modern" environmentalism and thedevelopment of command-and-control federal environmental regulation. Atit* core, the narrative explains how the expanded, largely whitemiddle-class environmental movement--animated by its understanding ofpopular ecology and of the destructive forces of modern industry--roseup and demanded a cleaner, more beautiful environment filled withgreater recreation opportunities. Earth Day 1970 represents theculmination of that popular upsurge, and from there, professional"environmentalists," politicians, and bureaucrats took thereins and built the modern environmental protection regime.Environmental politics was then integrated into the everydayhorse-trading of Capitol Hill. There, D.C.-based environmental groups,business interests, and state actors lobbied and debated the scope andintent of the new environmental laws, and the courts rendered judgments.(4)
The top-down narrative of nationalization and professionalizationfrays when viewed from a local perspective, however. Many scholars haveaddressed local activism and its effects on the federal environmentalprotection regime and public land management, but there are relativelyfew treatments of the local politics of forestry on private land. Thefederal studies illuminated the dramatic postwar changes in federalpolicy for public land management, the rifts and tensions between localand national environmental groups during the spotted owl conflict, andthe ways local groups affected the implementation of the Wilderness Actand the National Environmental Policy Act. Studying the Redwood Warsdemonstrates how local activists on the North Coast of Californiadeveloped a litigation campaign to discredit and destroy theProgressive-Era corporatist system in order to better considernon-commercial forest resources in the regulation of private timberland. (5)
Under corporatist governance, the state officially grantsindustries the ability to improve efficiencies via self-regulation. Thestate facilitates industry participation by forming official regulatoryboards on which industry holds a majority of seats. The idea behindcorporatism is that those people with the best knowledge of anindustry's operations ought to be the ones who set the rules andgovern the development of the industry. The state administers theprograms and brings resources to the table. Corporatism, thus, is aformal institutional arrangement, not a description of the policypreferences of a regulatory board. The U.S. Forest Service, Bureau ofLand Management, and the Fish and Wildlife Service never were managed bycorporatist boards, and accordingly, national environmental litigationaddressed agency action and statute interpretation. However, the statesutilized corporatist boards more frequently, which complicated the shiftto the modern environmental protection regime. Stephanie Pincetlcorrectly identified the role of California's Progressive-Eragovernance traditions in preventing land use and ownership reform inCalifornia, but largely without considering successful challenges tocorporatist arrangements. The history of California forestry revealspersistent insurgence, intense local activism, and the breakdown of acorporatist, production-focused governance tradition. That history alsopoints to the national consequences, most of them unintended, of thelocal activism. (6)
Litigation was the local reformers' most successful toolduring the Redwood Wars. A small group of citizens leveraged the powerof the courts and the Legislature, while simultaneously marshalling morepower into their own hands. Their legal campaign accomplished fourthings that advocacy, protests, and direct action alone could notaccomplish. First, citizen suits forced the state to legislativelyabandon the official corporatist and development-only focus of stateforestry laws. Second, the cases forced the Board of Forestry to backaway from its traditional alliance with the timber industry at crucialtimes. Third, the litigation permanently blocked proposed harvests ofmany old-growth redwood groves. And finally, the cases drove PresidentBill Clinton, Governor Pete Wilson, and Pacific Lumber to negotiate asettlement of the Headwaters Forest conflict. As scholars have pointedout, public demonstrations created the necessary political will to actat times during the establishment of the modern environmental protectionregime, advocacy helped build the national and state laws, and nationallitigation pushed the implementation of the laws along. In California,the long corporatist tradition mitigated the usefulness of those toolsbecause the Legislature had previously abrogated its legislative dutieswith respect to the timber industry. As a result, citizens took theircase to the courts to dismantle corporatism and production-focusedtimber regulation. (7)
The California forestry challenges deserve to be counted among themost important environmental law developments in the postwar UnitedStates because they fundamentally transformed an entire system ofgovernance. The environmental litigation of citizens at the federallevel expanded, clarified, and enforced particular aspects of the modernfederal environmental protection regime. For example, the NationalEnvironmental Policy Act (NEPA) and other laws expanded theresponsibilities of federal agencies to non-commercial landscaperesources, and they empowered citizens to participate in agencydecisions and act as private attorneys general. And citizens turned tothe courts using NEPA and other legal tools to force agencies to betterconsider public and ecological health and to comply with the newenvironmental laws. In the case of the Forest Service, local citizengroups sued the agency during the early 1970s and drove Congress to passsweeping legislation that overhauled the agency's mission andoversight. However, as dramatic as the changes in environmentalregulation and oversight were at the federal level, the fundamentalstructure of governance that was handed down from the Gilded Age and theNew Deal remained unchanged. The U.S. regulatory system maintained itscommand-and-control structure. The Forest Service still maintained aclient-agency relationship with the timber industry. The litigationcampaign orchestrated by North Coast activists was different because itdealt with state law and private land, it gutted a governance structureand philosophy--corporatism--and it destroyed part of the vestigialremains of the corporatist tradition. (8)
The federal cases are important because they clarified legislativemandates and forced agency action to fulfill new legal obligations, butthey did not reorder institutions in the same way as the North Coastactivists' efforts in California. The most-studied litigationinvolved the implementation of the Clean Air and Clean Water Acts, theEndangered Species Act, and the National Forest Management Act. Thosecases helped define the scope and intent of the modern environmentalprotection regime. The literature is rich with analysis of those casesand their effects. This article focuses on the eight most importantcases in the movement to transform California forestry governance.Because the movement set its sights on the fundamental transformation ofinstitutions, increased regulation of private property and giantredwoods, it led to, and was part of, one of the most importantenvironmental battles of the late twentieth century in the UnitedStates. As such, its place in environmental law needs to be bettersituated than it currently is.
THE CORPORATIST TRADITION
The California Board of Forestry was a model of corporatism longbefore Herbert Hoover popularized the concept, and the Board of Forestryremained an official corporatist body until 1970. In 1885, Californiabecame one of the first states to regulate private timber land throughthe use of an appointed Board of Forestry, and that Board of Forestryappears to be one of the first incarnations of corporatist regulatoryentities. As previously noted, under corporatist governance, the stategrants industries the ability to improve efficiencies viaself-regulation. The state facilitates industry participation by formingofficial regulatory boards on which industry holds a majority of seats.The California Board of Forestry was created and designed to ensure thatthose with intimate knowledge of the industry could guide thedevelopment of California timber operations. The board's missionwas not to wrest control of the timber industry from large companies andlandholders, but rather to efficiently manage the industry bysafeguarding its interest in long-term timber harvests. However, theBoard of Forestry was more committed to its economic development goalsthan it was to its conservation mission. (9)
The 1885 Board of Forestry was established to ward off thepredicted timber shortage, and the governor appointed its five membersbased on their knowledge of timber industry operations. Rather thanaddress harvest methods or forest regeneration to ward off the predictedshortage, the first Board of Forestry mostly concerned itself withrecommendations to the Legislature to protect the inventories of thestate's private timber operators. Indeed, from 1885 until itsdissolution in 1893, no law was passed that dealt with a forestry issueother than the prevention of fires and trespassing. A singular exceptionin early California history was a law passed in 1868, long before theestablishment of the board, that encouraged the planting of shade andfruit trees along highways in order to protect travelers from the heatand to provide a source of food in case of emergency. (10)
In 1905, the Legislature reorganized the Board of Forestry, butretained the corporatist structure. The new Board of Forestry wasformally charged with preventing fires, protecting public and privateland from trespass, managing the state parks, and purchasing clearcutland to manage as state forests to regenerate the timber supply. Timberharvesting methods were left to the judgment of individual timberoperators. On the recommendation of the Board of Forestry, theLegislature passed five fire prevention laws, including the 1923Compulsory Fire Patrol Act, as well as an insect abatement law in 1923,all in an effort to protect the timber supply. (11)
In 1927, the Board of Forestry was reorganized within the newDepartment of Natural Resources, and the reorganization--still a body offive members appointed by the governor, based on knowledge of the timberindustry--officially recommitted its members to timber supply and water.The new Parks Commission took over control of the management ofrecreation resources. During the life of the third Board of Forestry, inaddition to the usual fire prevention, state nursery, and regenerationlaws and recommendations, a minimum diameter law that prohibited theharvest of trees smaller than eighteen inches in diameter was passed in1943. That law marked the first time the Board of Forestry encroachedupon the management prerogatives of private industry in the name ofconservation, and it came long after a 1932 Department of Agriculturereport that recommended selective cuts in Redwood Country in order toprevent deforestation. (12)
After World War II, the Legislature made some cosmetic changes tothe regulatory regime, but maintained its corporatist orientation.Without legislative oversight, the Board of Forestry continued tosupport development but not forest conservation. For example, the 1943law prohibiting the harvest of trees less than eighteen inches indiameter may appear to mark a move away from corporatism, toward greaterlegislative oversight, but that law was in fact another in the longhistory of regulations devised by businesses in order to protect theirmarkets. In this case, the minimum diameter law protected big timbercompanies from competition from small, independent, "gyppo"contractors best suited to harvest small trees. Like the minimumdiameter law, the 1945 Forest Practice Act that governed timberoperations on private land also appeared to undercut corporatism whilepromoting conservationism. The law required the Board of Forestry tocreate forest practice rules to ensure that the state's privatetimber operators used the best conservation practices. However, it alsoperpetuated industry self-regulation, and when the Board of Forestrycreated the rules, it predictably declined to include penalties forviolations. Finally, in 1960 the Board of Forestry, despite therecommendations of North Coast timber reports, began approving largeclearcuts because the timber industry wanted to capitalize on thehousing boom and on decreased timber production in the PacificNorthwest. None of these postwar logging developments is surprising. TheBoard of Forestry's own assessment of its postwar priorities wereto prevent fire from destroying timber and to protect the timberindustry from unfair competition from within--priorities that reveal theinfluence of the postwar housing boom on the timber industry as well asits commitment to helping the timber companies operate profitably. (13)
The resilience of California's corporatist Board of Forestrystands in stark relief against the rising tide of "modernenvironmentalism" and the resulting changes in environmentalpolitics after World War II. The popularity of outdoor recreationincreased dramatically as did concern about suburban development andhumankind's impact on the planet. As a result, nationalenvironmental groups like the Sierra Club and The Wilderness Societygrew in size and stature. And local groups arose to combat localpollution, local land management, and suburban development. While thenation's environmental attention swung from nuclear fallout toDinosaur National Monument to The Wilderness Act, the California Boardof Forestry remained beyond reproach for the most part. Outside of loudcomplaints, no active opposition to the board's operations wasapparent until the late 1960s. And why would there have been? Most ofthe state's residents did not live near enough to timber lands towitness the increased logging and clearcutting. The Save The RedwoodsLeague purchased grand redwood groves and created parks out of them forrecreationists and scientists. Appreciation of the non-economic valuesof forests did not become widespread until well after World War II. Andthe timber industry was a major contributor to California's postwarprosperity, just as it was nationally. As a result, residents of theNorth Coast seemed unwilling to bite the hand that fed them, and otherCalifornians were not concerned with North Coast logging. (14)
Challenges to the Board of Forestry's predominance firstemerged in the 1950s, when citizen groups such as the Sierra Clubcomplained about the rate of timber harvests and the prolific use ofclearcutting in Redwood Country. As a result, the Legislature took stepsto increase its oversight of the timber industry. In 1962, theLegislature commissioned a report that concluded that the forestpractice rules "failed to provide adequate enforcement" toprotect public values in water, fishing, and recreation." In 1967,another legislative report concluded that the rules needed to bebroadened if California were to avoid major damage to its most importantwatersheds. A final legislative committee study of the forest practicerules concluded in 1971 that logging was one of the primary causes ofthe 80 percent decline in salmon and steelhead runs in NorthernCalifornia. The agitation of the Sierra Club and others thus helpedundercut confidence in the corporatist regulatory regime by pressuringthe Legislature to study the industry in more detail. (15)
THE DESTRUCTION OF CORPORATISM
The inability, or unwillingness, of the Board of Forestry toaccommodate the public's desire to consider the non-commercialvalues of the forest led directly to citizen actions that repealed the1945 Forest Practice Act and the Board of Forestry it authorized. In thelate 1960s, Bayside Timber Company obtained a logging permit from theboard for land in San Mateo County, near Santa Cruz. Down-sloperesidents objected to the logging plan because of projected erosion andwatershed damage, and successfully pressured the county Board ofSupervisors to reject Bayside's road- building permit. BaysideTimber subsequently sued the county, but in 1971, the First DistrictCourt of Appeal in California ruled in favor of the county's rightto block the logging. The court declared that the 1945 Forest PracticeAct unconstitutionally delegated legislative authority to "personspecuniarily interested in the timber industry." (16)
The court identified two main problems with the 1945 act, despiterecent amendments. First, the act authorized the governor to appoint afive-person board comprising three representatives of the timberindustry, one from the grazing industry, and one from the generalpublic. Second, all forest practice rules were to be approved bytwo-thirds of the timber owners in any forest district before beingfinalized by the Board of Forestry. While the Bayside case was workingits way to appeal in 1970, the Legislature attempted to fix theself-regulation problem by increasing the size of the Board of Forestryto seven members. The additional two members were to be from the generalpublic with "an interest in and knowledge of the environment."The court noted that the additional Board of Forestry members did notchange the fact that two-thirds of a district's private timberowners had to approve all forest practice rules, and so the courtdeclared the 1945 act unconstitutional. As the first successful attackon the Board of Forestry's independence, the Bayside decision marksthe beginning of citizen actions to overhaul California's forestryregime. (17)
Subsequent passage of the 1973 Forest Practice Act, as NEPA did in1970 for federal environmental protection law, marked a sea change inprivate land use law in California because the law was designed to shiftthe state's focus toward resource conservation, and it deputizedthe citizenry. The new law reflected the more powerful status ofscientists in postwar environmental politics and was based on the 1972UC Davis Report's recommendation of a system of "resourceconservation standards to protect watersheds and ecologicalvalues." The law charged the Board of Forestry and the Division ofForestry it oversaw with creating forest practice rules to end thedepletion of timber resources, "giving consideration to valuesrelating to recreation, watershed, wildlife, range and forage,fisheries, regional economic vitality, employment and aestheticenjoyment." The law additionally required timber companies tosubmit Timber Harvest Plans before any new cutting and to allow theDepartment of Fish and Game and the Water Quality Control Boards tocomment on the plans.
The most important sections of the new law for citizen groupsprovided greater citizen oversight of the Timber Harvest Plan process.The new law mandated public review of Timber Harvest Plans before finalapproval, and another section allowed citizens to challenge theDepartment of Forestry (CDF) and the Board of Forestry decisions incourt (following the model of the NEPA and the federal Clean Air andWater Act amendments of 1970 and 1972, respectively). The citizen suitprovision specifically allowed citizens to sue CDF and the Board ofForestry to obtain judicial review of administrative decisions.Additionally, the state Code of Civil Procedure granted citizens theright to challenge discretionary agency actions. Environmental activistseagerly embraced these new tools and were able to aggressively use thecitizen suit provisions because, unlike federal environmental cases,issues of standing regarding environmental group plaintiffs never becamean issue in California. The courts had long recognized an exception tothe specific economic injury/interest test for cases involving a"public right... to procure the enforcement of a public duty."The new act also reconstituted the Board of Forestry with five membersfrom the public, three from the forest products industries, and one fromthe livestock industry, a move naively meant to break the timberindustry's grip on the board. Out of this system, a legal andpolitical battle arose over control of board policies andCalifornia's last unprotected ancient forests. (18)
"HITTING THE DONKEY": FORCING OUT DE FACTO CORPORATISMWITH CONTINUED LITIGATION
ARCATA AND GALLEGOS: TWO EARLY STEPS TO FORCE BOARD COMPLIANCE WITHCEQA AND FPA
The Board of Forestry, like its federal counterparts, largelyresisted its new responsibilities during the 1970s, and citizenscontinued to challenge the state's corporatist tradition forlogging regulation, just as citizen groups challenged federal agencyactions under NEPA. In 1973, over the objections of the National ParkService, the Board of Forestry ruled that clearcutting in the RedwoodCreek watershed did not harm Redwood National Park. It also approved anArcata National Corporation harvest plan within the watershed. TheNatural Resources Defense Council, in line with their federal efforts toclarify and enforce NEPA, sued Arcata National and the state forester,arguing that the plan did not adequately consider environmental harm asrequired by the California Environmental Quality Act (CEQA, the stateequivalent of NEPA), which required environmental impact studies priorto any state agency taking actions that could cause significantenvironmental impacts. The law also required state agencies to proposemitigations for environmental impacts. Arcata National argued that CEQAguidelines did not apply to the Timber Harvest Plans because planapproval was a ministerial duty of the state forester, not adiscretionary action. Superior Court Judge Arthur Broaddus ruled in 1975that Timber Harvest Plans were a discretionary action and thus governedby CEQA, and further ruled that the content of the contested harvestplans failed to fulfill the Environmental Impact Report requirement ofCEQA. Development-focused corporatism was hit with a second major blowwhen Arcata National unsuccessfully tested the industry and the Board ofForestry's autonomy in a 1976 appeal of Judge Broaddus'ruling. (19)
The Board of Forestry's continued resistance to its duties toCEQA and the non-economic mandates of the Forest Practice Act encouragedcitizens to continue their legal challenges to corporatism. In 1978,Sonoma County residents Francine Gallegos and Louise Patterson, alongwith the Camp Meeker Improvement Association, obtained a writ of mandateto negate the Board of Forestry's approval of a Chenoweth LumberCompany harvest plan, one that the Department of Health concluded would"threat[en]... the quantity and quality of water in the Camp Meekerarea." In a sequence of events that became a pattern through the1980s, CDF rejected the Chenoweth harvest plan based on the Departmentof Health's concerns, but Chenoweth appealed to the Board ofForestry, the board overturned CDF's dismissal, and citizens sued.
Gallegos et al. successfully argued that the Arcata ruling did notfully capture all of the ways CEQA applied to timber plans.Specifically, they charged the Board of Forestry with failure to complywith CEQA requirements because the Board of Forestry had not based itsdecision on "substantial evidence" and had not responded topublic comments regarding the Chenoweth harvest plan. The appellatecourt agreed with Gallegos et al. and the Arcata court that harvestplans had to fulfill CEQA requirements for Environmental Impact Reports.The Gallegos court went even further and demanded that the board andstate forester had to respond in writing to public comments regardingsignificant environmental impacts of a harvest plan, and that theresponse needed to explain the state forester's decision in a"reasoned" manner based on "substantial evidence."Even though official corporatist rule had ended, the industry wouldcontinue to appeal to the corporatist-leaning Board of Forestry whenbureaucrats threatened to block logging plans. The Board of Forestrydenied the industry's appeals only after repeated defeats in courtduring the 1980s and 1990s demonstrated that the Gallegos ruling had tobe heeded. (20)
The Gallegos and Arcata decisions provided the foundation fornearly all subsequent local citizen challenges of harvest plans. The tworulings required that harvest plans fully comply with CEQA, including:the requirements that other relevant agencies be consulted, thatfeasible alternatives and mitigation be implemented, that the agencymake the harvest plans available to the public, and that the agencyrespond to public comments in a reasoned manner. CDF, the Board ofForestry, and the timber industry resisted these mandates, but, asdescribed below, EPIC and other groups sued to force compliance with thelaws and court precedents. It was through these legal channels thatlocal citizens chipped away at the Board of Forestry's corporatistorientation, forcing it to step back from its traditional alliance withthe timber industry several times during the late 1980s and 1990s. (21)
EPIC V. JOHNSON: A SUCCESSFUL MODEL
Although the Sierra Club was instrumental in the fights overRedwood National Park and in the 1976 amendments to the Forest PracticeAct, and continued to play a major role in California logging politics,the legal campaign to destroy the corporatist traditions of the Board ofForestry was largely driven by a small group of North Coast residentscommitted to the conservationism and ecological environmental values setforth by Gifford Pinchot (first chief of the U.S. Forest Service) anddecidedly uninterested in state or national politics or citizen groups,except where needed to effect local land management changes. This cadreincluded Humboldt and Mendocino residents Kathy Bailey (state chair ofCalifornia Sierra Club's state forestry program and the personresponsible for convincing national Sierra to partner with locals on thelitigation effort), Sharon Duggan (a native North Coast attorney workingin the Bay Area), and other activists who established the EnvironmentalProtection Information Center (EPIC). (22)
EPIC was formed in 1977 in southern Humboldt County (approximately200 miles north of San Francisco along the coast) by residents RobertSutherland (who changed his name to The Man Who Walks in the Woods),Ruthanne Cecil, and other activists. EPIC was initially an ad hoc groupthat worked on local environmental issues, but in 1981, EPIC wasformally incorporated with a broader set of goals:
1) preserve critical old growth forest remnants and the biologicaldiversity they contain; 2) reduce the degradation of timberlandsthrough improvement of forest practices (toward sustainability); 3)stabilize the local economy through sustainable production in healthy,diverse forests; 4) educate the citizenry regarding their publicinterest in the forests, its intrinsic value, and the avenues ofinfluence available to them through state and federal agencies; and 5)channel information on environmental matters of all kind. (23)
The local organization from the small town of Garberville(population approximately 2,000) quickly became a major player inlogging regulation by aggressively using the citizen suit provisions ofCEQA and the Forest Practice Act to challenge Board of Forestry actions.In doing so, EPIC's actions paralleled the legal actions ofnational environmental groups that increasingly turned to the courts inresponse to the Reagan administration's decreased enforcement ofenvironmental laws. Unlike the national efforts, however, EPIC'swork was built on a local vision of responsive government andsustainable communities that would produce timber, jobs, and wildlifehabitat in perpetuity. However, forestry operations were governed at thestate level, and endangered species law at the state and nationallevels, so the local activists were forced to engage in litigation andpolitics outside their local region in order to effect local change,just as groups such as the Headwaters Alliance and the Oregon NaturalResources Council (ONRC) were forced to engage the federal courts andthe Forest Service to protect local landscapes on federal land duringthe 1970s and 1980s. Unlike the Pacific Northwest movement, however,nearly all of the national environmental groups chose not to engage.EPIC drove the litigation strategy, and they often split the bills withthe Sierra Club--but only on the insistence of Kathy Bailey and becauseof her ability to convince the California Sierra Club of the importanceof the work. (24)
Though the locals' goals were broad, they were focused onlocal quality of life. Bailey, Duggan, Woods, Richard Geinger, and theother local activists involved in the campaign against corporatism werelocal activists first and foremost, and, as told by Woods, if they couldhave avoided state and national authorities, they would have. Forexample, Bailey, Geinger, and Sutherland moved to the North Coast in theearly 1970s after burning out in the anti-war movement and thecounterculture of the Bay Area. Bailey and Sutherland grew up in theMidwest, and Geinger grew up in the Northeast. They all came frommiddle-class backgrounds and moved west to be near the natural beauty ofthe region. After moving to the North Coast to escape politics, each wasdrawn back in because of the local behavior of timber companies. Duringthe late 1970s, Bailey successfully orchestrated a county initiative toban the use of Agent Orange on logged-over land. Nearly simultaneously,Sutherland, Geinger, Cecil, and Marylee Bytheriver (a founder of EPICwho assisted as a paralegal in preparing its cases) successfully workedto stop Humboldt timber companies from aerially spraying pesticides onthe countryside. As Bailey explained it, she re-engaged in politicslocally out of concern for her children's health and education, andshe only really wanted to work on Mendocino issues. Likewise, Sutherlandand Geinger were interested in Southern Humboldt watershed, forest, andhuman health. Duggan was a North Coast native, and her interest inforestry litigation stemmed from a concern about the rapid changes inthe landscape and forest health of the North Coast. Duggan grew up whilethe local timber companies were selling their land to Georgia-Pacificand Louisiana-Pacific, which led to increased industrial timberoperations, including greatly expanded clearcuts and the relatedwatershed damages. That their litigation efforts had state and nationalimplications was due to the avenues available to the activists to pursuelocal change, not because they set out to change state or national law.(25)
EPIC's first lawsuit, EPIC v. Johnson, was initiated in 1983,and resulted in a landmark appellate decision that paved the way formuch of the environmental community's forestry reform efforts inCalifornia, especially in the state's remaining unprotected andprivately-owned old-growth forests. The Johnson case challenged a75-acre harvest plan on Georgia-Pacific land in northern MendocinoCounty, near the Sinkyone Wilderness State Park. The Department ofForestry approved the clearcutting of the Sally Bell Grove, anold-growth redwood grove and the last remaining stand of trees in theimmediate area. The grove was situated on a steep slope bound by thePacific Ocean to the west and clearcuts on the other three sides. Thus,the grove acted as the hill's "keystone" by anchoring theslope's soil and preventing it from wasting into the ocean. Thegrove also contained a Native American Archeological site. EPIC and theSinkyone Council prepared to challenge G-P logging plans in Sally BellGrove throughout the summer of 1983. They prepared an on-the-groundresistance and a legal attack for any logging plans in the Sally BellGrove. The on-the-ground resistance plan was developed in consultationwith the group Earth First!, and it offered the EPIC lawyers the timethey needed to get to court when logging began. (26)
In court, EPIC and the Department of Forestry (CDF) made argumentsthat were notably similar to those made by plaintiffs and defendants,respectively, in nearly every case dealing with old-growth forestsbetween 1983 and 1997. Sharon Duggan successfully argued that CDF, inapproving the plan, had violated three CEQA requirements: first, CDF hadnot adequately responded to public comments on the harvest plan; second,CDF failed to consider the cumulative impact of the harvests on thehillside; and third, CDF failed to consult with relevant agencies withjurisdiction over the project (in this case the Native American HeritageCommission). CDF did not dispute EPIC's claims. Instead, it arguedthat, according to the rules, it could consider only the Forest PracticeAct when approving plans. Therefore, CEQA's requirements aboutconsultation, cumulative impact, and public comments were irrelevant toTimber Harvest Plans. It appears that CDF and the timber industry werehoping for a judgment that would overturn the previous rulings becausethey made the same arguments as in Arcata and Gallegos. At the sametime, CDF contended that, contrary to EPIC's claim, it implicitlyaddressed the cumulative effects of its decisions by minimizing theimpact of each individual project. That assessment of cumulative impactanalysis--coupled with CDF's continued use of the argument thatCEQA did not apply to harvest plans--demonstrated the degree ofintransigence within the agency. By definition, one cannot analyzecumulative impact without studying past and future plans. The courtruled for EPIC in 1985, striking another blow to the Board ofForestry's industry-friendly economic development priorities. (27)
The Johnson case provided EPIC with valuable experience, a strongprecedent, and successful arguments. EPIC and other citizens used theEPIC v. Johnson model with increasing frequency and success. Prior toJohnson, there were only two published opinions for cases challengingharvest plans. After Johnson, environmental groups would challenge plansevery year. But if EPIC members thought the Board of Forestry and thetimber industry would take this third defeat at the hands ofenvironmental groups as a signal to reform the Forest Practice Rules andForestry methodology, they were wrong. CDF and the timber industry wouldcontinue to argue they were exempt from CEQA, despite the growing stackof precedents building against that position. Duggan believed that theagency and the industry were hoping they would eventually find a judgeor panel that would agree with them, which made sense given their longexperience with self-regulation. (28)
USING THE JOHNSON MODEL ON THE DONKEY AGAIN AND AGAIN
Woods was convinced that the North Coast activists needed tocontinue to combine litigation with direct action in order to "hitthe donkey" enough to make it move. Activists had overturnedofficial corporatism in 1971, and they won three important cases duringthe subsequent fifteen years that reinforced the Legislature'sorders that the Board of Forestry end its corporatist traditions whichallowed the industry to determine its own harvest practices. After theJohnson decision, North Coast activists steeled themselves to breakcorporatism's back by challenging harvest plan after harvest planusing the Johnson model. From 1985 to 1995, the Board of Forestry, EPIC,Sierra Club, and the timber industry jousted repeatedly in court aftercourt over the same issues. What became known as Headwaters Forestbecame the focal point of many of the battles between environmentalactivists and corporatism, but the activists challenged harvest plansall over the North Coast that were rubber-stamped by CDF. The litigationduring that period produced three major state precedents and one majorfederal precedent that drove wedge after wedge between the Board ofForestry and the industry.
MAXXAM I AND II, AND NATIVE SALMON: PUTTING AN END TORUBBER-STAMPING
The leveraged buyout of Pacific Lumber by Maxxam in 1985 was thekey event that propelled Headwaters Forest into the middle of thecitizen challenges to California's corporatist tradition.Environmental activists, shareholders, and timber workers all initiallyreacted negatively to the buyout, creating an under-siege atmosphere inthe rural North Coast of California. The Murphy family-run PacificLumber was in many respects a model corporate citizen. But perceptionschanged after the company was taken over by Texas-based MaxxamCorporation in 1985. The Murphy-run company had sold and donated 20,000acres of their land for parks, avoided clearcutting since the GreatDepression, and left 30-70 percent of the trees on the land bypracticing selective logging in old-growth stands.
Despite the "family business" image, by 1975, no investorgroup owned more than five percent of Pacific Lumber stock, and, by1985, the company was a full-fledged conglomerate working in realestate, agriculture, cutting and welding, and lumber. However, PacificLumber retained its small-town image up to the time of the Maxxamtakeover. Maxxam, led by Charles Hurwitz, purchased Pacific Lumber fornearly $900 million, financed by "junk bond" legend MichaelMilken. (29) The takeover of Pacific Lumber by Hurwitz, a well-known"corporate raider" that hostilely acquired undervaluedcompanies--such as McCulloch Oil and Simplicity Patterns--and sold offtheir assets, generated local concern about the future of PacificLumber. Specifically, the takeover allowed John Campbell, the executivevice president of Forest Products, to implement his long-held desires toreinstitute clearcutting and to harvest the remaining old growth on theproperty in order to maximize the timber growth rate of the land and tomaximize operational efficiency. The new management of the forest drewthe attention of local environmentalists, and for the next thirteenyears, the conflict between Pacific Lumber and local activists escalatedand peaked just before the Headwaters Deal was finalized in 1999. Manylocal residents feared Maxxam would cut quickly and leave the areawithout its major employer while devastating its forest land. EarthFirst! activist Greg King trespassed on Pacific Lumber land to determinethe size and quality of the company's holdings. In the process,King discovered a vast old-growth redwood forest in the middle of theproperty and named it Headwaters Forest because several major streamsand rivers originate inside the forest. (30)
Between 1987 and 1993, both EPIC and local Earth First! activistsratcheted up their efforts. Court after court found the Board ofForestry guilty of operating under a de facto policy of automaticallyapproving Timber Harvest Plans without considering the plans'relationship to the Forest Practice Act or CEQA. The policy was aproduct of a century of corporatism during which the Board ofForestry's primary duty was to facilitate timber harvests.Especially on Pacific Lumber land, Earth First! activists kept constanttabs on logging activity, as locals had done during the Sally Bell Groveconflict, and they staged dramatic direct actions and protests, mostnotably Redwood Summer in 1990 and the tree-sits and near constantoccupations of the Headwaters Forest old-growth groves. Tensions on theNorth Coast grew as logging was delayed, activists swarmed the county,the spotted owl conflict raged to the north, and as EPIC won in courtafter court. The three major precedent-setting EPIC cases during thistime period--EPIC v. Maxxam I, EPIC v. Maxxam II, and Californians forNative Salmon and Steelhead Association, et al. v. California Departmentof Forestry (Native Salmon)--forcefully chipped away at that corporatisttradition and strengthened the role of citizens as private attorneysgeneral. Then, in 1994, the California Supreme Court delivered acrushing blow to corporatist autonomy and the legal argument that CEQAdid not apply to harvest plans in Sierra Club and EPIC v. Board ofForestry. (31)
In 1987, the ruling in Maxxam I bolstered the court's Johnsondecision that CEQA rigorously applied to harvest plans and the decisionfurther discredited Forestry and its practices. EPIC asked for writs ofmandate against three Pacific Lumber old-growth harvest plans (twowithin Headwaters Forest) because the plans lacked cumulative impactstudies and mitigation alternatives. CDF tried a new argument in thiscase; it argued that its hands were tied because, even though theharvests would cause significant environmental harm, the land had beenzoned for timber production by the Timber Production Act, which,according to CDF, superseded the court's Johnson ruling. InHumboldt County Superior Court, Judge Frank Peterson ruled for EPIC andfound that CDF had "rubber-stamped" the plans because theplans were approved before they were completed. Additionally, the judgefound that CDF intimidated Fish and Game biologists to prevent them fromfiling non-concurrence opinions that objected to the plans. Fish andGame opposed the plans because they did not contain any scientificinformation about the presence of species of concern, like the marbledmurrelet, in the harvest areas. (32)
By 1987 a pattern was developing: EPIC and Sierra Club wouldchallenge old-growth harvest plans based on the Johnson model, localEarth First! activists would stage direct actions to delay loggingactivity, and Pacific Lumber would experiment with defense arguments.For example, Maxxam II challenged two more 1987 Pacific Lumber harvestplans within Headwaters Forest and one Simpson Timber plan. SimpsonTimber withdrew its plan, but Pacific Lumber fought the writs ofmandate. The company abandoned the unsuccessful agency argumentsregarding CEQA's irrelevance to harvest plans and the supersedingauthority of the Timber Production Act. Instead, the company challengedthe scientific analysis that its land was important for species ofconcern. Pacific Lumber argued that Fish and Game should not haveconcerned itself with the species on its land because the species werenot dependent upon old-growth redwood groves. The company also claimedthat the state already owned enough redwood land to maintain viablepopulations of species that were dependent on old-growth redwoods.
In addition to introducing a new industry argument, Maxxam IImarked the initial, if seemingly reluctant, split between the timberindustry and the Board of Forestry. The trial judge ruled against Maxxamand again accused CDF of "rubber-stamping" and intimidation.The appellate court also disagreed with the company's argument, butthe case was dismissed in 1992 for three reasons, two of which werevictories of a sort for EPIC, and one a symbol of the determination ofPacific Lumber to carry out its new timber regime: 1) Pacific Lumberfelled the trees in one of the harvest areas between March 1988 and May1988 -- the date EPIC obtained a preliminary injunction; 2) CDF adoptedemergency regulations covering old-growth timber plans, marbled murreletand northern spotted owl habitat, and cumulative impact analysis; and 3)EPIC and Sierra Club obtained an injunction on the harvest plan forLawrence Creek (the second contested plan) in 1989 via Sierra Club v.State Board of Forestry (discussed in the next section). The appellatecourt, while dismissing the case, recognized the influence of citizengroups on the Board of Forestry's behavior, writing:
The record... leaves no doubt that environmental litigation, such asEPIC's Preliminary Injunction in this case, played an important role inbringing about changes in departmental policies. To this extent, theissue of mootness is a product of EPIC's own success.
The judge then strengthened EPIC's position as a privateattorney general by forcing Pacific Lumber to pay EPIC's attorneyfees. The company was able to log in the disputed area, but the pressurebrought on the Board of Forestry by the litigation caused the agency tostray from the hardline position that CEQA did not apply to TimberHarvest Plans as evidenced by the agency's creation of the newregulations without a direct court order. The new regulations played akey role in breaking down development-focused corporatism because theBoard of Forestry responded to citizens and courts, not to the wishes ofthe timber industry, and the rules recognized the Board ofForestry's responsibility to non-economic forestland resources.(33)
Protecting Headwaters Forest was not EPIC's sole project. (34)In fact, one of the non-Headwaters cases filed by EPIC, Native Salmon,left the strongest precedent of the cases concluded between 1987 and1993. In this case, EPIC and friends challenged a 1988 Eel RiverSawmills harvest plan because CDF failed to analyze cumulative impact,and failed to respond to public comments. Sixty-five additional planswere added to the suit, and EPIC argued that the failure to fulfill CEQArequirements was a de facto CDF policy. Eel River Sawmills withdrew itsplans, and before the case went to trial, CDF approached EPIC andCalifornians for Native Steelheads to negotiate a settlement. Anagreement was signed on September 23,1993. CDF agreed to further rulechanges that put the agency in compliance with CEQA regarding cumulativeimpact analysis, mitigation, and public comments. The appellate decisionopened the door for environmental groups to challenge policieswholesale, not just individual harvest plans, and the settlement forcedwritten changes in CDF practices that EPIC had been fighting for over adecade to achieve. (35)
SIERRA V. BOARD OF FORESTRY: THE DONKEY IN THE CALIFORNIA SUPREMECOURT
In 1994, the California Supreme Court sided once and for all withthe citizen groups with respect to the relevance of CEQA to timberoperations on private land. In 1988, Pacific Lumber remained confidentin the corporatist tradition of the Board of Forestry, but Sierra Clubv. State Board of Forestry seriously damaged the allegiance between theboard and industry. Sierra Club v. State Board of Forestry challengedtwo more Pacific Lumber plans in the Lawrence Creek area of HeadwatersForest and became EPIC's second major precedent-setting case andthe fourth major blow to California's corporatist timber regime.CDF initially rejected the two Pacific Lumber harvest plans because theydid not include marbled murrelet surveys. Pacific Lumber, like ChenowethLumber in 1976, appealed to the Board of Forestry, claiming it did nothave to provide any survey information because the rules did notspecifically require the surveys. Following the tradition of maximumproduction and deference to the industry, the Board of Forestryoverruled its Department of Forestry and approved the plans. EPIC andSierra Club filed for a writ of mandate to rescind the board'sapproval of the plans. On March 20,1989, the board convinced Judge JohnBuffington that the harvest plans would not result in any significantimpact on the environment, and Buffington denied EPIC's writ ofmandate. EPIC and Sierra Club appealed the decision, and after theappellate court overturned Buffington's ruling, the board withdrewits support of Pacific Lumber in the case. The Board of Forestry furtherdistanced itself from corporatist tradition when it issued the newregulations that caused the dismissal of Maxxam II. The two boardactions demonstrated the success of citizen litigation in destabilizingthe traditional relationship between the board and industry. (36)
When the state Supreme Court ruled against Pacific Lumber, itdelivered industry independence a staggering blow. As it ended oneconflict, the court escalated another when it increased the legaldemands on the industry and the board to protect non-timber forestresources. Like previous lower courts, the court ruled that the Board ofForestry had to comply with CEQA and the Forest Practice Act alike andthat the board had the authority to require new information from timbercompanies (such as wildlife surveys) that the Forest Practice Rules didnot explicitly require but that the Department of Forestry deemednecessary to comply with CEQA guidelines. In fact, the court furtherunderscored the board's non-timber responsibilities when it arguedthat not requiring timber companies to submit enough information toassess and prevent environmental damage violated CEQA. The victory forEPIC and Sierra Club forced the Board of Forestry to further reform itspractices regarding ancient forests, and forced it to recognize itsresponsibilities for old-growth-dependent species. During the ten yearsafter Johnson, citizen litigation exposed and discredited the de factocorporatist regime, destroyed the autonomy the board and the industryonce enjoyed, and drove a wedge between the industry and the agency.However, legal battles over non-timber resources escalated because theagency, and especially the timber industry, yet again failed to embracethe ruling. (37)
OWL CREEK: ENDANGERED SPECIES AND NATIONALIZATION OF THE CAMPAIGN
In 1997, the U.S. Supreme Court refused Pacific Lumber a writ ofcertiorari in the Marbled Murrelet case, reinforcing the North Coastactivists' twenty-plus-year fight to include protection of habitatand ecological health in private forest management practices. The fightover corporatism was played all over the North Coast, but the fight overnon-commercial responsibilities was mainly fought in the HeadwatersForest arena, and it was a fight citizen groups largely won. The federalcourt case reinforced the Board of Forestry's obligation tocitizens and non-timber forest values, revised endangered species caseprecedent, and unintentionally drove President Clinton, Governor Wilson,and Charles Hurwitz to the negotiating table in an attempt to end theconflict over Headwaters Forest. EPIC filed suit in federal courtbecause three of changes that had occurred in Northern California.First, the murrelet was protected under both the California and federalEndangered Species Acts. Second, Pacific Lumber seems to have decidedthat it could no longer count on the Board of Forestry to protect itsinterests so it became more aggressive and independent with its courtactions. And third, state judges began to rule against EPIC.
The listing of the marbled murrelet as a "threatened"species on October 1,1992 proved to be vital to EPIC's challenge ofPacific Lumber's old-growth harvesting plan. The state casechallenging an old-growth harvest plan in the Owl Creek Grove ofHeadwaters Forest floundered in a sea of competing motions andconflicting rulings, especially after the murrelet's federal statuschanged and Pacific Lumber worked feverishly to log the area. Forexample, on November 2, Superior Court Judge Morton Colvin rejectedPacific Lumber's motion to dismiss that case due to what thecompany perceived as Judge William Ferroggiaro's anti-company bias.However, Pacific Lumber simultaneously persuaded a court clerk toschedule a hearing with a visiting judge on a motion to dismiss thecase, and on November 22, despite Judge Colvin's prior rejection ofPacific Lumber's dismissal motion, visiting Judge Leighton Hatchdismissed the case. (38)
Then the conflict turned even uglier. On November 24,1992, theCalifornia Department of Fish and Game spoke to Pacific Lumber and toldthem not to resume logging in Owl Creek without complying with thefederal Endangered Species Act, and the company agreed to consult withthe U.S. Fish and Wildlife Service before logging. With Earth First!activists conducting nightly hikes to Owl Creek, Pacific Lumber resumedlogging on November 28, Thanksgiving weekend, without consulting Fishand Game or Fish and Wildlife. It was the first time in the sixteen-yearcareer of Pacific Lumber's chief timber operations manager, DanMcLaughlin, that the company logged over Thanksgiving, and he assertedthat Owl Creek was the only area harvested. The next day, Fish andWildlife sent EPIC a letter informing it that the harvest constituted a"taking" in violation of the Endangered Species Act. Theagency had told Pacific Lumber before November 28 that thecompany's partial surveys indicated murrelet occupation of OwlCreek. On December 1, 1992, the California appellate court issued anemergency stay of logging operations in Owl Creek. (39)
On April 16,1993, EPIC filed suit against Pacific Lumber, theDepartment of Forestry, the Board of Forestry, Fish and Game, Fish andWildlife, and Secretary of the Interior Bruce Babbitt in federal court,arguing that all the parties were responsible for allowing"harm" to a listed species in violation of section 9 of theEndangered Species Act. EPIC filed suit in federal court because theywere frustrated about the state court proceedings and Pacific Lumberlogging activities. Additionally, Macon Cowles --the lead environmentalattorney in the Exxon Valdez oil spill litigation --suggested that EPICsue in federal court. EPIC attorney Sharon Duggan agreed that theclaimants would have a better chance in federal court because theHumboldt County judges were growing weary of having EPIC and PacificLumber in their courtrooms, and the Superior Courts did not have theresources or time to thoroughly review the massive administrativerecords compiled in the cases. (40)
The cases against the agencies were dismissed later in 1993, andthe case against Pacific Lumber was tried in August and September 1994.On February 27,1995, Judge Louis Bechtle of the Ninth Circuit Court ofAppeals placed a permanent injunction on the Owl Creek harvest area andfound that "EPIC has proven, by a preponderance of the evidence,that marbled murrelets are nesting in THP-237" (the area of TimberHarvest Plan 237 at issue) and that Pacific Lumber had tried to minimizeits detections of murrelets by neglecting PSG protocol, intimidatingsurveyors, sending doctored-up data sheets to state and federalagencies, and intimidating government witnesses. (41)
The Ninth Circuit upheld the decision on May 7, 1996, and the U.S.Supreme Court denied Pacific Lumber's appeal on February 18,1997.The permanent injunction was a landmark victory for EPIC, and the rulingbecame the first time the Endangered Species Act was used to stoplogging on private land. The Ninth Circuit opinion also broadened thePalila standard for "harm" and "harass." The rulingdeclared that "reasonable certainty" of "imminent"injury or death, not the discovery of actual injury or death--thestandard the Palila cases established--was enough to invoke aninjunction on a project. The Endangered Species Act gave EPIC grounds toargue substantively and obtain permanent protection (rather than justforcing CDF to review its decisions). By doing so, EPIC and the federalcourts sent a strong message to the Board of Forestry and to the timberindustry that it could not take their responsibilities for non-timberforest values lightly. (42)
The post-injunction legal strategy of Pacific Lumber led theClinton administration to significantly alter Endangered Species Actimplementation procedures and led directly to the public purchase ofpart of Headwaters Forest. After the permanent injunction on Owl Creekwas finalized, Pacific Lumber filed a takings suit against thegovernment, and the Clinton administration quickly decided to negotiatewith Hurwitz and other land owners rather than fight takings suits orrisk congressional action against the Endangered Species Act. In Lucasv. South Carolina Coastal Council, the U.S. Supreme Court ruled in 1992that an injunction could result in a "take" of private land ifthe injunction prevented the owner from making any use of its land. (43)Hurwitz was willing to bet that he could convince the court that itsLucas ruling could apply to a Timber Harvest Plan, so it filed PacificLumber v. United States in May 1996. Additionally, the Republican-ledCongress was threatening action to weaken Endangered Species Actprotections. On September 28,1996, the Headwaters Deal was signed,authorizing the California Legislature and Congress to purchase morethan 7,000 acres of Headwaters Forest, allowing Pacific Lumber to file aHabitat Conservation Plan for the rest of its land, and dismissing thetakings suit against the federal government. Thus, a trend began. The1982 amendments to the Endangered Species Act permitted landowners tonegotiate Habitat Conservation Plans with the federal government toaccelerate species recovery and to avoid protracted litigation. Theplans allow for some development of endangered species habitat so longas it was accompanied by a fifty-year plan to add additional habitat.From 1982 to 1994, however, only thirty-nine plans were issued. Between1994 and 1998, more than 230 such plans were issued, including theHeadwaters Deal negotiated with Pacific Lumber. (44) While mostenvironmental groups viewed the agreement as insufficient to protect theancient forest ecosystem, the case presented the Board of Forestry witha strong statement about the need to change its traditional ways ofdoing business.
The North Coast Redwood Wars were not nearly over in 1996, despitethe resolution of the federal court cases. EPIC and North Coast EarthFirst! opposed the deal, and both groups continued their fights: EPICfought to protect more old growth and to complete the destruction of defacto corporatism and the related resistance to managing private landfor timber and non-timber resources. Earth First! fought to stop alllogging in the old-growth groves via direct action. Famously, JuliaButterfly Hill sat in an ancient redwood for two years to protest thelogging of old growth not included in the deal. Pacific Lumber filed forbankruptcy in 2007. And, in 2008, the California Supreme Court sidedwith EPIC in their challenge to the Sustained Yield Plan associated withPacific Lumber's Habitat Conservation Plan. (45) In 2009,corporatism may have been on the decline, but the fate of HeadwatersForest was still up in the air.
CONCLUSION
To be sure, national institutions played a large role in thedevelopment of the environmental movement and federal environmentalpolitics. The National Resource Defense Council, Sierra Club, WildernessSociety, State Public Interest Research Groups, and others helped pushthe major environmental laws of the 1970s through Congress, thenwatchdogged the agencies charged with executing the new laws. Businessassociations lobbied and litigated to ensure that the laws andregulations did not unduly hinder their operations.
But the California forestry battles were largely a local affairthat involved local activists, with local goals, who used the toolsavailable to force changes in local land management. The local historyof the redwood litigation demonstrates two often-neglected features ofpostwar environmental politics: 1) the drive to change traditionalinstitutional arrangements in order to accommodate specific localenvironmental goals, and 2) the watchdog tactics local environmentalactivists use to ensure the implementation of environmental laws.Working at both the national and state levels, citizens helped guide thedevelopment of the modern environmental protection regime by using theirdeputized status in court to clarify definitions, obligations, andrules. California's citizen groups also focused on transforming theinstitutions charged with managing local landscapes. The legal historyof citizen challenges to the California Board of Forestry from 1969-1999demonstrates a sustained interest in conservation methodology as well asecology, human health, and aesthetics. As Adam Rome pointed out inBulldozer in the Countryside, conservationism was not cut off frommodern environmentalism after World War II. (46) Sharon Duggan, KathyBailey, Woods, Richard Geinger, and the rest of the EPIC and CaliforniaSierra Club activists were committed to using their citizenattorney-general powers not only to protect endangered species,old-growth ecosystems, and human health, but also to force the timberindustry and the state government to embrace more sustainable forestpractices for their local communities. The byproducts of their effortswere the sweeping changes to state governance, forestry regulations forprivate land, and the implementation of the federal Endangered SpeciesAct.
The center of gravity of environmental history has been shiftingdownward in recent years. Most early environmental historians focused onthe sweeping national trends of postwar environmentalism and on theimportance of industry, of national writers like Rachel Carson and PaulEhrlich, and of the creation of the modern environmental protectionregime. Robert Gottlieb and Adam Rome, among others, pushed the field tobetter consider on-the-ground environmentalism in the suburbs and urbanareas. And, even though historians attend to local environmentalpolitics, a D.C.-based narrative of modern environmental historycontinues to dominate policy and political history classrooms, as wellas the popular media.
Local environmental activists in northern California took cues fromnational trends and events, yet forged their own path and local vision.Actions against private property set them apart from the nationalgroups, which kept their distance from local activists so as not tojeopardize their bargaining positions inside the Capitol Hill Beltway.EPIC's goal was to change governance and timber practices on theNorth Coast alone, but they were forced to challenge state and nationalagencies, and thus political arrangements outside of the North Coastbecame collateral damage of the Redwood Wars. In order to more fullyunderstand the development of the environmental movement andenvironmental politics, we need to examine the ways local peoplechallenged tradition and forced state and national institutions toadjust their actions the way the Board of Forestry, the CaliforniaLegislature, Congress, and the Clinton administration did with respectto EPIC's court strategy.
DARREN F. SPEECE (*)
(*) Ph.D., University of Maryland; Assistant Dean of Students andHistory Teacher, Sidwell Friends School, Washington, D.C.
(1) An earlier version of this article was first published asDarren F. Speece, "From Corporatism to Citizen Oversight: The LegalFights over the California Redwoods, 1970-1996," EnvironmentalHistory 14, No. 4 (October 2009): 705-736. Portions of this article arealso utilized in Darren F. Speece, Defending Giants: The Redwood Warsand the Transformation of American Environmental Politics (Seattle:University of Washington Press, 2017).
(2) The quote can be found in numerous articles, including EllenSchultz, "A Raider's Ruckus in the Redwoods," Fortune,April 24,1989, 72, and John Skow, "Redwoods: The Last Stand,"Time, June 24, 2001,http://www.time.com/time/magazine/article/0,9171,1101940606-164513,00html. The best description of the incident at Scotia is by David Harris,The Last Stand: The War Between Wall Street and Main Street overCalifornia's Ancient Redwoods (New York: Times Books, 1995).
(3) Because of this corporatist system, no "irontriangle" existed to govern private timber operations on privateland in California. The industry was left to its own devices, and theboard helped coordinate fire and pest protection, as well asreforestation efforts. After 1970, because the Board of Forestry wasretained, an iron triangle of the Board, the courts, and interest groupsregulated timber operations on private land. This is a very differentsituation than the regulation of the national forests where Congress,the courts, the Forest Service, and interest groups shaped forestservice policy on public lands after 1970. See Paul Hirt, A Conspiracyof Optimism: Management of the National Forests since World War Two(Lincoln: University of Nebraska Press, 1994) and Dennis C. Le Master,Decade of Change: The Remaking of Forest Service Statutory Authorityduring the 1970s (Westport, Conn.: Greenwood Press, 1984) for analysesof the changes in national forest governance and management.
(4) On the rise of modern environmentalism, see especially SamuelP. Hays, Beauty, Health, and Permanence: Environmental Politics in theUnited States, 1955-1985 (Cambridge: Cambridge University Press, 1987)and A History of Environmental Politics since 1945 (Pittsburgh:University of Pittsburgh Press, 2000); Roderick Nash, Wilderness and theAmerican Mind (New Haven: Yale University Press, 1973); Richard J.Lazarus, The Making of Environmental Policy (Chicago: University ofChicago Press, 2004); and Adam Rome, The Bulldozer in the Countryside:Suburban Sprawl and the Rise of American Environmentalism (Cambridge:Cambridge University Press, 2001). On the nationalization andprofessionalization of modern environmental politics and theenvironmental movement, see Thomas R. Dunlap, Faith in Nature:Environmentalism as Religious Quest (Seattle: University of WashingtonPress, 2004), who argued that professional national groups tried toimpose their ideologies on local people; J. Brooks Flippen, Nixon andthe Environment (Albuquerque: University of New Mexico Press, 2000);Stephen Fox, The American Conservation Movement: John Muir and HisLegacy (Madison: University of Wisconsin Press, 1985), whose argument,to be fair, revolved more around the role of the "radicalamateur" in the environmental movement, despite theprofessionalization of the movement; Robert Gottlieb, Forcing theSpring: The Transformation of the American Environmental Movement(Washington, D.C: Island Press, 1993); Michael E. Kraft, EnvironmentalPolicy and Politics (New York: Pearson Longman, 2007); James Salzman andBarton H. Thompson, Environmental Law and Policy (New York: FoundationPress, 2003); Joseph L. Sax, Mountains Without Handrails: Reflections onthe National Parks (Ann Arbor: University of Michigan Press, 1980); andJames Morton Turner, "The Promise of Wilderness: A History ofAmerican Environmental Politics, 1964-1994" (PhD diss., PrincetonUniversity, June 2004).
(5) Hirt, Conspiracy of Optimism and Le Master, Decade of Changeare great studies of the transformation of federal land management. Someof the recent treatments of local forestry activism as it related tofederal laws such as the Wilderness Act of 1964, the Endangered SpeciesAct, and the National Forest Management Act include William Dietrich,The Final Forest: The Battle for the Last Great Trees of the PacificNorthwest (New York: Penguin Books, 1993); Kathie Durbin, Tree Huggers:Victory, Defeat & Renewal in the Northwest Ancient Forest Campaign(Seattle: The Mountaineers, 1996); Kevin R. Marsh, Drawing Lines in theForest: Creating Wilderness Areas in the Pacific Northwest (Seattle:University of Washington Press, 2007); and Samuel P. Hays, Wars in theWoods: The Rise of Ecological Forestry in America (Pittsburgh:University of Pittsburgh Press, 2007). Henry F. Bedford produced awonderful study of the local activism in New Hampshire regarding theNEPA impacts on the nuclear industry, Seabrook Station: Citizen Politicsand Nuclear Power (Amherst: University of Massachusetts Press, 1990).The literature on the Redwood Wars is largely journalistic andautobiographical, including Judi Bari, Timber Wars (Monroe, Me.: CommonCourage Press, 1994); Joan Dunning, From the Redwood Forest: AncientTrees and the Bottom Line: A Headwaters Journey (White River Junction,Vt.: Chelsea Green Publishing, 1998); Dave Foreman, Confessions of anEco-Warrior (New York: Harmony Books, 1991); and Julia Butterfly Hill,The Legacy of Luna: The Story of a Tree, a Woman, and the Struggle toSave the Redwoods (San Francisco: HarperSanFrancisco, 2000). Harris, TheLast Stand is the only journalistic book that deals solely with theHeadwaters conflict. The journalistic and polemical treatments thatattend briefly to the Headwaters conflict include Alston Chase, In aDark Wood: The Fight over Forests and the New Tyranny of Ecology (NewYork: A Richard Todd Book / Houghton Mifflin Company, 1995); DavidHelvarg, The War against the Greens: The "Wise-Use" Movement,the New Right, and the Browning of America (Boulder: Johnson Books,2004); Christopher Manes, Green Rage: Radical Environmentalism and theUnmaking of Civilization (Boston: Little, Brown, 1990); JacquelineVaughn, Green Backlash: The History and Politics of the EnvironmentalOpposition in the U.S. (Boulder: Lynne Rienner Publishers, 1997); andSusan Zakin, Coyotes and Town Dogs: Earth First! and the EnvironmentalMovement (New York: Viking, 1993). A few scholarly books that arefocused on environmentalism briefly mention the Headwaters conflict,including Hays, Wars in the Woods, Carolyn Merchant, Radical Ecology:The Search for a Livable World (New York: Routledge, 2005) and RikScarce, Eco-warriors: Understanding the Radical Environmental Movement(Walnut Creek, Calif: Left Coast Press, Inc., 2006). In their scholarlytreatments, Hays and Merchant identify the wrong timber company andincorrect forest, respectively.
(6) Corporatism, as used here, refers to the definition EllisHawley used in his classic article, "The Discovery and Study of a'Corporate Liberalism,'" The Business History Review 52,No. 3 (Autumn 1978): 309-320. Hawley defines corporatism as a systemwhereby industries are guided by "officially recognized,non-competitive, role-ordered occupational or functional groupings...where the state properly functions as a coordinator, assistant, andmidwife rather than director or regulator."
(7) Some good analyses of general postwar citizen group legalhistory with respect to NEPA are Hays, Beauty, Health, and Permanence,chapter 14; Lazarus, The Making of Environmental Policy; William H.Rodgers, Jr., Environmental Law (St. Paul: West Publishing Company,1994); Salzman and Thompson, Environmental Law and Policy; Joseph L.Sax, Defending the Environment: A Strategy for Citizen Action (New York:Alfred A. Knopf, Inc., 1971); David B. Sicilia, "The CorporationUnder Siege: Social Movements, Regulation, Public Relations, and TortLaw since the Second World War," in Constructing Corporate America:History, Politics, Culture, eds. Kenneth Lipartito and David B. Sicilia(Oxford: Oxford University Press, 2004); and Richard B. Stewart, "ANew Generation of Environmental Regulation?," Capital UniversityLaw Review 29 (2001): 21-182. With respect to the Forest Service, theMonongahela and Tongass cases are the most important. Paul Hirt'sanalysis of the use of the courts to challenge the "get out thecut" mentality of the U.S. Forest Service is a very importantstudy, especially chapter 11, "From Gridlocked Conflict toCompromised Policy Reform, 1969-1976, in A Conspiracy of Optimism. LeMaster, Decade of Change recounts the history of the way citizen suits,industry and congressional pressure to increase harvests, and ForestService implementation of clearcutting, led to the creation of theRenewable Resources Planning Act of 1974 and the National ForestManagement Act of 1976, which transformed Forest Service oversight andthe agency's mission.
(8) The most well-known environmental cases include Scenic HudsonPreservation Conference v. Federal Power Commission, 407 U.S. 926 (1972)because it was the first time an environmental group was granted legalstanding. Sierra Club v. Morton, 405 U.S. 727 (1972) changed thetraditional injury-in-fact standing requirements to allow citizens touse the citizen suit provisions of the federal environmental laws ifthey could demonstrate they had suffered recreational or aestheticinjuries. Previously, standing was granted only if the plaintiffs coulddemonstrate specific economic or personal harm to themselves. Theliterature also prioritizes the cases that clarified the 1970senvironmental laws. Tennessee Valley Authority v. Hill, 437 U.S. 153(1978) clarified that the Endangered Species Act was to be implementedwithout consideration of the economic impact of protecting species.Likewise, Lead Industries Association v. EPA, 647 F.2d 1130 (Fed. Cir.1980) established the principle that the EPA must only base air qualitystandards on health considerations, not on economic or technicalconsiderations.
(9) Samuel P. Hays provides the classic interpretation ofconservationism and progressivism in The Gospel of Efficiency: TheProgressive Conservation Movement, 1890-1920 (Cambridge: HarvardUniversity Press, 1959), chapter 13. Hays argues that progressivism andconservationism were motivated by the efficient use of resources via thecentral guiding hand of executive branch scientific experts, not by"people versus the interests" politics. The Board of Forestryin California was similar, but different, in that the Board was notcomposed of scientific experts but rather experts of the industry. Thestate forester, overseen by the board, provided technical analysis andadvice. Stephanie S. Pincetl, Transforming California: A PoliticalHistory of Land Use and Development (Baltimore: Johns Hopkins UniversityPress, 1999) argued that the progressive boards and commissions createdduring the Progressive Era directly contributed to land use andownership patterns during the twentieth century because the regulatoryboards were composed of business experts focused on development.
(10) Chapter 498 of the 1868 Assembly; see C. Raymond Clar,California Government and Forestry from Spanish Days Until the Creationof the Department of Natural Resources in 1927 (Sacramento: Division ofForestry, Department of Natural Resources, State of California, 1959)[vol. 1], 74 and 96-98.
(11) Clar, California Government and Forestry [vol. 1],214,297,402,411,433, 445. And see Samuel Trask Dana and Myron Krueger,California Lands: Ownership, Use, and Management (Washington, D.C.: TheAmerican Forestry Association, 1958), 64 and 68, and Schrepfer, Fight toSave Redwoods, 23.
(12) See C. Raymond Clar, California Government and Forestry [vol.2]: During the Young and Rolph Administrations (Sacramento: Division ofForestry, Department of Conservation, State of California, 1969), 36-37,52,121-125,148-150,189-274. Also see, Pincetl, Transforming California,110; S.B. Show, "Timber Growing Practice in the Coast RedwoodRegion of California," Technical Bulletin 283, March 1932, in USDATechnical Bulletins No. 276-300 (Washington, D.C.: U.S. GovernmentPrinting Office, 1932).
(13) C. Raymond Clar, California Government and Forestry [vol. 2],36-37,52,121-125, 148-150, 189-274. Also see, Pincetl, TransformingCalifornia, 110; Dana and Krueger, California Lands, 69,70,71,187,188,192-193; Pincetl, Transforming California, 162-165; andMichael G. Barbour, et al., Coast Redwood: A Natural and CulturalHistory (Los Olivos, Calif.: Cachuma Press, 2001), 188.
(14) Samuel P. Hays and Roderick Nash provide classic discussionsabout the changing attitudes of the American public toward naturalresources and landscapes during the nineteenth and twentieth centuries(Hays, Beauty, Health, and Permanence and Nash, Wilderness and theAmerican Mind). See also, J.W. Penfold, "The DinosaurControversy," Sierra Bulletin 36, No. 10 (December 1951); Rome,Bulldozer in the Countryside; Stephen M. Spencer, "Fallout: TheSilent Killer," The Saturday Evening Post, August 29,1959; andMcGee Young "From Conservation to Environment: The Sierra Club andthe Organizational Politics of Change," Studies in AmericanPolitical Development 22 (Fall 2008): 183-203. See Pincetl, TransformingCalifornia, 163, for a discussion of the new pro-timber attitudes ofNorth Coast residents after World War II.
(15) See Henry Sadler, "Winter Damage in Redwood Parks,"Sierra Bulletin 41, No. 8 (October 1956): 12-18; Peggy Wayburn andEdward Wayburn, "Our Vanishing Wilderness," Sierra Bulletin42, No. 1 (January 1957): 6-9; George Ballis, "Havoc in BigTrees," Sierra Bulletin 42, No. 5 (May 1957): 10-11; Peggy andEdward Wayburn, "Bulletin," Sierra Bulletin 44, No. 9(December 1959); Peggy Wayburn, "The Tragedy of Bull Creek,"Sierra Bulletin 45, No. 1 (January 1960): 10-11; Newton B. Drury,"Chapter II--Bull Creek Story: Redwoods and You," SierraBulletin 45, No. 4 (April/May 1960): 10-13; and Susan R. Schrepfer, TheFight to Save the Redwoods: A History of Environmental Reform, 1917-1978(Madison: University of Wisconsin Press, 1983), 108-110,112,117,144; andPincetl, Transforming California, 162-165, regarding the 1950s SierraClub and Fish and Game complaints; Assembly Interim Committee on NaturalResources, Planning and Public Works, Findings and RecommendationsRelated to the Forest Practice Act, 1961-1962, quoted in Sharon Dugganand Tara Mueller, A Guide to the California Forest Practice Act andRelated Laws (Point Arena, Calif: Solano Press Books, 2005), 1; AssemblySubcommittee on Forest Practices and Watershed Management, Man'sEffect Upon the California Watershed, 1965-1967, quoted in Duggan andMueller, 1-2; Committee on Salmon and Steelhead Trout, An EnvironmentalTragedy, 1971, quoted in Duggan and Mueller, 2. The history of statelegislators, agency employees, and environmentalists pushing thesestudies and reforms still needs to be told. For this study, the factthey took place, and the framework they set up, are the most importantaspects of that history because it is that framework that led to thechanges in law during the 1970s that gave citizens greater access to thebureaucracy and courts. See Henry J. Vaux, Timber in Humboldt County,California Agricultural Experiment Station Bulletin 748 (University ofCalifornia, 1955); William D. Pine, "Humboldt's Timber: APresent and Future Problem," pamphlet (Eureka, Calif: HumboldtCounty Board of Supervisors, 1952).
(16) Bayside Timber v. Board of Supervisors, 20 Cal. App. 3d 1, 7(1971).
(17) Forest Practice Act, [section] 4572, as amended in 1970,quoted in id., at 9. Sharon Duggan, "Citizen Enforcement ofCalifornia's Private Land Forest Practice Regulations,"Journal of Environmental Law & Litigation 8 (Spring 1993): 291-315.Duggan rightly argues that Arcata (see next section) provided motivationfor citizens to watchdog the timber harvest plan review process (p. 4).However, Bayside marks the beginning of the citizen watchdog era becausecitizens and citizen groups pressured the county Board of Supervisors toreject a harvest plan and argue the unconstitutionality of the 1945 FPAon appeal.
(18) Institute of Ecology at the University of California, Davis,Public Policy for California Forest Lands (UC Davis, 1972), quoted inDuggan and Mueller, Guide to Forest Practice Act, 2-3. See Pincetl,Transforming California, 167-168, and Barbour, Coast Redwood, 188-189.For a detailed review of the sections of the 1973 Forest Practices Act(Pub. Res. Code [section] 4511 et seq.), see Duggan and Mueller, 6-9 and790-796. The citizen suit provision of the FPA is contained within Pub.Res. Code [section] 4514.5. The ability to challenge discretionaryactions is found in Code of Civ. Pro. [section][section] 1085 and1094.5. See Duggan and Mueller, 797-798, for a discussion of issues ofstanding in California.
(19) Natural Resources Defense Council, Inc. v. Arcata NationalCorp., 59 Cal. App. 3d 959 (1976); 58 Ops. Cal. Atty. Gen 250 (1975).See Schrepfer, Fight to Save Redwoods, 194 and 197, for a discussion ofthe Board's refusal to heed National Park Service orders to enforcethe California Forest Practice Act and stop logging in the watershed.The California Environmental Quality Act is California Public ResourcesCode [section][section] 21000-21006, 21050, 21060-21072, 21080-21098,21100-21108, 21150-21154, 21156-21159.9, 21160-21162, and 21165-21177
(20) Barbour, Coast Redwood, 189-190. A writ of mandate compels apublic agency to correct prior actions not consistent with the law.Gallegos v. California State Board of Forestry, 76 Cal. App. 3d 945(1978).
(21) In addition to the published court opinions and regulations,Sharon Duggan offers a detailed analysis of codes, laws, and rulings ofthe 1970s regarding CEQA, the Timberland Productivity Act, and the FPA.She also provides analysis of a few of the subsequent rulings related todefining the laws regulating timber harvesting in California that thisarticle does not cover. See Duggan, "Citizen Enforcement."
(22) See Schrepfer, Fight to Save Redwoods, 129-228, for a detailedaccount of the 1968 and 1978 efforts to create Redwood National Park.
(23) "Organizational History and Goals," undated,Archives of the Environmental Protection Information Center, "EPICPublications" binder, EPIC offices, Redway, California.
(24) From "Organizational History and Goals." See RogerW. Findley, et al., Cases and Materials on Environmental Law, 6th ed.(St. Paul: Thomson/West, 2003), 688-689. See Durbin, Treehuggers, forthe story of local Oregonians and Oregon groups that fought to stoplogging on federal lands during the spotted owl conflict regarding theimplementation of NFMA. According to Woods, the original EPIC bylawswere clear that EPIC was only to work at the local (Southern Humboldt)political arena, on purely local issues. With respect to the Sierra/EPICrelationship: Woods and Bailey both confirmed that the SierraClub's litigation role was to help fund the litigation and to givethe plaintiffs additional clout in front of Superior Court judges. EPICattorneys and staff crafted and drove the actual litigation. In fact,when I corresponded with the Sierra Club litigation team about trackingdown their files on the Headwaters cases, the director of the team toldme that the only person at Sierra directly involved with the litigationwas Bailey, who was a volunteer organizer, not an attorney. EPIC led thelitigation teams, and they sometimes hired lawyers from the Sierra ClubLegal Defense Fund, which, despite its name, is not a part of the SierraClub. SCLDF changed its name during the 1990s to Earthjustice to end theconfusion.
(25) Kathy Bailey, interview by author, Philo, California, March20, 2007; Kevin Bundy, interview by author, April 26, 2007, SanFrancisco; Sharon Duggan, interview by author, Oakland, April 27, 2007.Locals grew concerned about the state of North Coast forestry during theearly 1970s when the Atlanta-based Georgia-Pacific acquired The UnionLumber Company of Mendocino County as well as surrounding family ranchesin what locals referred to as an "unprecedented consolidation ofland." See Lynwood Carranco and John T. Labbe, Logging the Redwoods(Caldwell, Idaho: Caxton Printers, 1975), 77; David Cross, "SallyBell Redwoods Protected! Sinkyone Coast Purchased for Park," EarthFirst! Journal 7, No. 3 (February 2,1987): 1-4. Richard Geinger,interview by author, Redway, California, March 22, 2007; Paul Mason,interview by author by phone, February 16,2007; Robert Sutherland,interview by author, Arcata, California, April 22, 2008 (all recordingsand handwritten notes in possession of author). Sutherland told me thathe only wanted EPIC to work on issues within southern Humboldt Countyand that he wanted to deal with them in the local arena. However,because timber harvesting on private land involved state regulation,they had to engage state agencies. And, when the state courts andagencies proved to be a dead end, they based their case on federal law(ESA) once the marbled murrelet was designated a threatened species.
(26) Environmental Protection Information Center, Inc. v. Johnson,170 Cal. App. 3d 604 (1985), 624, n. 10 re: "keystone"determination; Cross, "Sally Bell Redwoods," 1-4; Duggan,Geinger, and Sutherland interviews and correspondence with author.
(27) See EPIC v. Johnson for discussion of EPIC's arguments,CDF's arguments, and the court's analysis of the arguments.
(28) Duggan, "Citizen Enforcement," 12 n. 55, citesGallegos and Seghesio v. County of Napa, 135 Cal. App. 3d 371 (1982) asthe two previous THP challenges.
(29) John Campbell, interview by author, Fortuna, California, April24, 2008 (recording and handwritten notes in possession of author). Thevarious diversification efforts can be found in the annual reports ofThe Pacific Lumber Company 1976-1982, Selected Corporate Annual Reportson Microfiche, 1975-1983, Library of Congress, Business Reading Room,Washington, D.C.; Evelyn Nieves, "Lumber Company Approves U.S. Dealto Save Redwoods," The New York Times, March 3,1999, Al, and"The Headwaters Forest Stewardship Plan: A Citizens'Alternative to Maxxam Management of Headwaters Forest" (Redway,Calif: The Trees Foundation, 1997), 20.
(30) Jane Kay, "Last Stand: Fighting for the Tall Trees,"San Francisco Examiner, December 16,1995; Elliot Diringer, "Cuttinga Deal on Redwoods: A Tangled Tale of Trees, Takeovers and a Texas S& L," The San Francisco Chronicle, Sept. 4, 1996, Al; AndyCaffrey, "Partners in Crime: Bill Clinton, Pete Wilson, Wall Streetand the Death of the Redwood Forest," Save Headwaters ForestReport, 3; "Deal Saves Giant Redwoods: 2,000-year-old Forest onPacific Coast to be Made a Preserve," The Gazette (Montreal,Quebec), March 3, 1999, A14; Nieves, "Lumber Company" and"Spring Headwaters Campaign," Headwaters Updates 30 (Winter1998), 5; John Campbell, interview with author, Fortuna, California,April 24, 2008. During our interview, Campbell made it clear that theMaxxam takeover did not radically alter the forest management plans ofPacific Lumber; rather, the takeover made it easier and more urgent forCampbell to increase old-growth logging activity.
(31) Environmental Protection Information Center, Inc. v. MaxxamCorp., Humboldt Superior Court No. 79879 (1987); EnvironmentalProtection Information Center, Inc. v. Maxxam Corp., 4 Cal. App. 4th1373 (1992); Californians for Native Salmon and Steelhead Association,et al. v. California Department of Forestry, 221 Cal. App. 3d 1419;Sierra Club, et al. v. State Board of Forestry, 7 Cal.4th 1215. The bestsources regarding the direct action activity on North Coast are Bari,Timber Wars; Dunning, From the Redwood Forest; Hill, Legacy of Luna;Darryl Cherney, interview with author, Redway, California, April 23,2008; and Alicia Littletree, interview with author, Ukiah, California,May 20, 2008 (all recordings and notes in possession of author).
(32) EPIC v. Maxxam, Humboldt Superior Court No. 79879, Aug.13,1987, Peterson, J., pp. 2-4. The private attorney general doctrinewas first used by Judge Jerome Frank in Associated Indus. v. Ickes, 134F.2d 694, 704 (2d Cir. 1943) to award attorney's fees to a person"vindicating the public interest." Many environmental lawspassed as a part of the new social regulations include citizen suitprovisions.
(33) Environmental Protection Information Center, Inc. v. MaxxamCorp., 4 Cal. App. 4th 1373 (1992). The marbled murrelet regulations arefound in Cal. Code Regs., tit. 14, [section][section] 895.1, 912,919.13, and 919.14. The spotted owl regulations are CCR, tit. 14,[section][section] 919.6(d)(1), 919.9, and 919.10. The cumulative impactregulations are in the FPR, [section][section] 985.1, 898, and 912.9.
(34) During my interviews with 1980s and 1990s EPIC staff membersRichard Geinger (staff forester), Sharon Duggan (EPIC attorney), andKevin Bundy (EPIC media spokesman during the mid-1990s), each of themexpressed the anxiety EPIC felt about the size, direction, and scope ofthe Headwaters conflict, and each of them stated that EPIC wanted tocontinue its challenges to CDF even while Headwaters work consumedever-more time and energy.
(35) See "Settlement Agreement, CDF, Californians for NativeSalmon and Steelhead Association, EPIC, and Fred 'Coyote'Downy," unprocessed EPIC Archives, Eureka, California. NativeSalmon, Humboldt Superior Court No. 83329 (1989), was dismissed as mootwhen Eel River withdrew its harvest plans. EPIC appealed the dismissal,221 Cal. App. 3d 1419 (1990), and the case was reinstated, prompting CDFto negotiate with EPIC. The other two cases settled were EPIC v. CDF,Humboldt Superior Court No. 92DR0005 (1992), which resulted in anagreement with Eel River Sawmills protecting Tom Long Creek, and CoastalHeadwaters Assn. and EPIC v. CDF, Mendocino Superior Court No. 68285(1995), where the trial court ruled in favor of CDF, but Save TheRedwoods stepped in and bought Goshawk Grove from Eel River Sawmills.See "Sanctuary Forest Moving Forward," Branching Out,affiliate newsletter published by the Trees Foundation (Winter 1998-99):3.
(36) Sierra Club, et al. v. State Board of Forestry, 7 Cal.4th 1215(1994).
(37) Id.
(38) The marbled murrelet listing is 50 CFR Part 17, FederalRegister 57, No. 191 (October 1,1993), Rules and Regulations section RIN1018-AB56. See EPIC brief before California Court of Appeal A059797requesting a stay, December 1,1992, pp. 4-8, unprocessed EPIC Archives,Eureka, California.
(39) Marbled Murrelet v. Pacific Lumber, C-93-1400, Feb. 25,1997,36, unprocessed EPIC Archives, Eureka, California. See Department ofInterior memo 1-1-92-TA-81, Nov. 29,1992, from Wayne White, FWS FieldSupervisor, to EPIC attorney Mark Harris, unprocessed EPIC Archives;EPIC v. Board of Forestry, Emergency Stay Order A059797, Dec. 1,1992;cert. denied by California Supreme Court S031969, May 20,1993, Lucas,C.J.; Panelli and Baxter, JJ., concurring, unprocessed EPIC Archives;Alicia Littletree interview and map of Owl Creek hikes fromLittletree's personal papers, Ukiah, California (copy of map inpossession of author).
(40) Duggan interview; Marbled Murrelet v. Pacific Lumber,C-93-1400-FMS slip op. at 12 (N.D. Cal., Feb. 2,1994), unprocessed EPICArchives, Eureka, California.
(41) Marbled Murrelet v. Pacific Lumber, 880 F. Supp. 1343,1360(N.D. Cal. 1995).
(42) Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996);cert. denied, 519 U.S. 1108 (1997). See Salzman, Environmental Law andPolicy, 267, for a brief discussion of the precedent-setting nature ofMarbled Murrelet v. Pacific Lumber.
(43) Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992).
(44) Findley, Cases and Materials, 970-971, 982. Also, JohnCampbell interview; Campbell commented on how the takings suit hiscompany filed against the United States made Feinstein and Clinton eagerto negotiate rather than have the Endangered Species Act "turned onits bottom." Additionally, Paul Mason phone interview with author,March 12, 2007 (handwritten notes in possession of author). Masondiscussed the fact that Senator Dianne Feinstein was eager to negotiatewith Maxxam in order to end the conflict and prevent the GingrichCongress from more aggressively pushing Endangered Species Act reforms.The 1982 amendments to the Endangered Species Act created [section] 10a,permitting the government to issue an Incidental Take Permit fordevelopment projects that would harm some members of an endangeredspecies in exchange for a fifty-year Habitat Conservation Plan designedto increase population numbers overall. Section 10a was designed toprovide land owners incentives to conduct good stewardship and keep ESAconflicts out of court. See U.S. Fish and Wildlife Service, Status ofHabitat Conservation Plans (Washington, D.C.: U.S. Government PrintingOffice, 1997). Additionally, see Shi-Ling Hsu, "The Potential andPitfalls of Habitat Conservation Planning under the Endangered SpeciesAct," Environmental Law Review 29 (October 1999): 10592-10601;Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992); andPacific Lumber Company v. United States, 96-257L (Fed. Cls.).
(45) Environmental Protection and Information Center v. CaliforniaDepartment of Forestry and Fire Protection, 44 Cal.4th 459 (2008).
(46) Rome, Bulldozer in the Countryside, 8-9.
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