Bower logging plan: Legal Petition

Center for Biological Diversity Friends of the Gualala River and Coast Action Group vs.

California Department of Forestry and Fire Protection
and California Department of Fish and Game

Petition by Justin J. Augustine et al
February 5, 2010

Introduction

The Center for Biological Diversity, Friends of the Gualala River, and Coast Action Group (“Petitioners”) challenge the decision of the California Department of Forestry and Fire Protection (“CAL FIRE”) to approve the Bower nonindustrial timber management plan (“NTMP”), 1-08-009-MEN.

In approving the plan, CAL FIRE failed to comply with the California Environmental Quality Act (“CEQA”), the California Endangered Species Act (“CESA”), the Forest Practice Act (“FPA”), and applicable implementing Forest Practice Rules. Petitioners seek an order setting aside approval of the NTMP because CAL FIRE’s approval constitutes an abuse of discretion and is contrary to law.

At stake in this case is the future of 18 acres of old-growth, late-seral redwood forest estimated to be centuries old. Age matters because it is only through the long aging process that redwood forest stands develop the late-seral characteristics that are of significant value to many wildlife species, including the endangered marbled murrelet, a coastal bird well known for relying exclusively on late-seral forest for nesting.

The vast majority of old-growth, late-seral redwood forest stands are now gone from California. Only three to five percent of the original redwood forest remains.

In this case, the situation is especially stark. In the entire watershed in which the proposed harvest would take place, the California Department of Fish and Game was unable to identify any late-seral forest stands outside of the 18 acres stand in the NTMP. Thus, for wildlife that depends on late-seral forest habitat, this NTMP’s stand constitutes the entirety of the available late-seral habitat in the watershed.

The NTMP’s proposal to log substantial amounts of this stand and surrounding area will thus have significant impacts on wildlife which could have been avoided, contrary to CEQA, CESA, and the FPA.

Petitioners also challenge DFG’s abdication of its public trust and CESA responsibilities under common law and statute, and its failure to fulfill its role as a trustee and responsible agency under the Forest Practice Rules, CEQA, and the Fish and Game Code in the administrative review process of this NTMP. As trustee charged with the protection of wildlife resources, DFG was under an affirmative obligation to perform its statutory and common law duties to ensure adequate protection of California wildlife.

While DFG found the NTMP to cause unmitigated, significant impacts to forest and wildlife, it did not take actions consistent with its public trust and CESA responsibilities to ensure that State fish and wildlife would be protected.

DFG’s failure to conform with its statutory and common law duties as trustee for the State’s wildlife resources will cause substantial and adverse harm to public trust resources, especially the marbled murrelet.