S.C. to Review Pacific Lumber Plan for Logging On North Coast

Thursday, March 30, 2006

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S.C. to Review Pacific Lumber Plan for Logging On North Coast

By KENNETH OFGANG, Staff Writer/Appellate Courts

The California Supreme Court yesterday agreed to decide whether Pacific Lumber Co.’s state-approved 100-year logging plan will adequately protect endangered species and watersheds.

The justices, at their weekly conference in San Francisco, voted 6-1 to review the Dec. 12 ruling of the First District Court of Appeal’s Div. Five in Environmental Protection Information Center v. California Department of Forestry and Fire Protection (Pacific Lumber Company), A104828.

Only Justice Marvin Baxter voted against hearing the case.

The Court of Appeal ruled that the plan, which allows the company to harvest timber on approximately 211,000 acres in Humboldt County complied with state environmental laws, overturning a contrary ruling in Humboldt Superior Court.

The logging plan arose from a deal between Maxxam Incorporated, which acquired Pacific Lumber in 1986, and the state and federal governments. Under the 1996 agreement, brokered by Democratic U.S. Sen. Dianne Feinstein, the company agreed to sell the Headwaters Forest, 7,500 acres of environmentally sensitive old-growth redwoods, to the government in exchange for permission to log its remaining acreage.

That permission, in turn, was conditioned upon preservation of habitat for the imperiled marbled murrelet and the northern spotted owl, prevention of excessive logging and protection of streams.

Environmentalists, Union Join

The Environmental Protection Information Center in Garberville, the Sierra Club and the United Steelworkers of America sued the state in 1999, 30 days after the state and federal governments signed the $480 million deal to buy the ancient redwood groves from Pacific Lumber.

The groups charged that the state didn’t follow the state Forest Practices Act, Endangered Species Act and Environmental Quality Act as well as the Fish and Game Code when they reviewed and approved the long-term logging plan and other permits.

A visiting judge from Lake County granted a writ of mandate sought by the petitioners but later allowed the company to proceed with logging pending the appeals court decision. Halting logging would place the entire Headwaters deal in jeopardy, Pacific Lumber warned.

Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, noted that appellate courts in environmental review cases defer to the agency, not to the trial court, and said the plaintiffs failed to show that the forestry department failed to follow the law in conducting its review.

“It bears emphasizing here that when an environmental assessment involves complex scientific questions requiring a high level of technical expertise, we leave the conclusions to the informed discretion of the agency,” Jones wrote.

The jurist rejected the argument that the department violated its own rules by approving the plan without demonstrably accurate long-term projections of timber production. She noted that projections are estimates and that the rules explicitly recognize that precise accuracy becomes more difficult to attain over longer periods of time.

“The [department’s] Public Review Draft supplied inventory data, projections on growth and harvest spanning 120 years, and an evaluation of the accuracy of the model for long-term sustained yield,” she wrote. The draft and the environmental impact report for the project, she added, set up a monitoring and reporting program to deal with the inherent flaws in the projections.

The court yesterday also agreed to decide two cases involving proof of prior convictions under the Three-Strikes Law.

In one case, the court will consider under what circumstances a conviction of a federal statute making it a felony to rob, burglarize, or extort a bank constitutes a “strike.”

Long, Long Sentence

Attorneys for a man sentenced to 219 years to life in prison after being convicted of attempted carjacking and multiple counts of armed assault claim that his federal conviction was not a strike because the statute treats non-residential burglary, which is not a serious felony under California law, as a violation. The Third District Court of Appeal, however, said in an unpublished opinion that the federal judgment and commitment order describing the offense as armed robbery established that the crime was a serious felony.

The case is People v. Miles, C045348.

In the other case, People v. Delgado, B180315, concerns the aggravated assault statute, Penal Code Sec. 245(a)(1).

That statute may be violated either by assaulting the victim with a deadly weapon, or by using “means likely to produce great bodily injury.” Under Penal Code Sec. 1192.7, if a deadly weapon is used, the violation is a serious felony; but if a defendant is convicted under the great bodily injury provision, the offense is a serious felony only if the defendant personally inflicted great bodily injury.

The Court of Appeal, in an unpublished opinion, held that an abstract of judgment describing the offense as “245(a)(1) asslt w dwpn,” was sufficient to establish that the crime was committed with a deadly weapon and was therefore a serious felony.