The Second Battle of the Redwoods

Conservationists urged expansion of Redwood National Park in order to protect the Tall Trees Grove. But the tall trees were a minor issue in a clash over public versus private ownership of natural resources.

Political compromisers believed that they had settled years of controversy when, on October 2, 1968, President Lyndon B. Johnson signed the bill that created Redwood National Park in northern California. Yet that act assured that there would be many more years of intense conflict over the redwoods, conflict that would set precedents as yet unheard of in the United States for the violation of the rights of its citizens to property in land and natural resources.

For the first time in our history, "legislative taking" was used to acquire privately owned lands for public use. The moment the president signed the act creating Redwood National Park, 28,100 acres of land belonging to 120 owners were transferred to federal ownership. As drawn, the park boundaries included another 30,000 acres of California's state parks to be donated by California (they never have been).

Congress had been asked to consider more than 40 separate park bills, representing six different proposals. The end result was an unmanageable white elephant that satisfied no one.

THE SHAPE OF THE BATTLE

Even before the bill creating the 58,000-acre park was signed, the Save-the-Redwoods League had announced that it would push for the acquisition of an additional 35,500 acres in Del Norte County. Within a year, the Sierra Club asked the secretary of the Interior to stop the harvesting of valuable redwood timber on 12,000 acres in Humboldt County, 40 miles to the south.

The original Redwood National Park stretched for 46 miles along the north coast of California in Del Norte and Humboldt counties. It consisted primarily of a narrow corridor, 7 miles at its widest point, connecting three of California's state parks. The largest block of nearly 12,000 acres was at the south end, looking on a map very much like a polliwog, with a long tail extending further southward along Redwood Creek.

The unwieldy shape of the park guaranteed that there would be demands to enlarge it. The polliwog's tail was soon dubbed "the Worm." That unfortunate appendage included the Tall Trees Grove, where the tallest known tree in the world stands. Anyone who wished to see it had to hike eight and a half miles up an old logging road from a parking lot at the lower end of Bald Hills Road, by Arcata Redwood Company's sawmill.

The Worm was only a half mile wide, split down the middle by Redwood Creek. Visitors expected a wilderness experience and were disturbed by the sounds of chain saws, tractors, and trucks from the slope above them and by the occasional sight of a freshly cutover area.

So it was no surprise when Associated Press reported in late 1970 that the Sierra Club and other organizations were "mounting a major new redwoods offensive to add more trees and watershed land to the park." To achieve their goal, the park expansionists had to convince a large segment of the people and a majority of Congress that destructive timber-harvesting methods on privately owned lands outside the park threatened to destroy the Tall Trees Grove. Though ostensibly aimed at the three large timber companies that owned land adjacent to the Worm, the expansionists' shotgun blasts hit every forest landowner in the state—some 35,000 to 50,000 of them.

UNSIGHTLY LOGGING

The expansionists' opportunity came when the timber companies ended their five-year voluntary moratorium on timber harvesting adjacent to the Worm. They had worked out agreements with the National Park Service on how the trees would be logged.

The Park Service insisted that the logs be pulled out of the woods with cables, instead of large crawler tractors, as was the most common practice. Cable logging disturbs less soil than tractor logging, but it requires clearcutting—removing all the trees on blocks ranging in size from 15 to 40 or more acres. Foresters agree that clearcutting is a legitimate and necessary timber-harvesting system. While they maintain that it does no violence to and often is needed for the long-term survival of forests, they admit that few of man's activities are more unsightly.

When hikers visiting the Tall Trees Grove and sightseers driving up Bald Hills Road on the ridge along the east side of Redwood Creek Basin began to see clearcut patches growing to the very edge of the Worm, they reacted with horror at what they viewed as destructive logging methods. The character of the Redwood Creek Basin itself seemed to support their view that timber harvesting causes erosion that was filling in the streambed and threatening to destroy the Tall Trees Grove.

Redwood Creek, in common with other California coastal areas, carries very heavy loads of sediment. The adjacent slopes are steep. There are many large earthflows and slumps and evidence of many others that stabilized hundreds or even thousands of years ago. Relatively minor changes can trigger additional movement of the slide areas, and those changes were provided by logging, the park expansionists believed. Citing a study by Dr. Richard Janda of the US Geological Survey (USGS) which showed that changes in the hydrology of the watershed had caused about a 20 percent increase in runoff, they blamed this too on timber harvesting.

The expansionists feared a network of destructive factors. Increased runoff led to higher floodwaters, causing erosion of stream banks and reactivating old slides. Logging roads across susceptible areas triggered additional slides and contributed, by erosion of the roads, to the sediment in the streams. Deposits raised the level of the streambed, making it less able to carry its load of water within its banks. And the higher flood levels and accelerated erosion of the stream banks threatened to destroy the Tall Trees Grove. Therefore, the expansionists argued, the park must be enlarged and the logging around the Worm stopped immediately if the Tall Trees were to be saved.

"Not guilty," cried the timber companies: Harvesting practices have changed in the last few years. Timber-harvesting plans are worked out with the Park Service in order to avoid damage to the park's resources. Besides, the new Forest Practice Act and Forest Practice Rules are strictly enforced, and they don't allow us to do all those bad things.

NATURAL FORCES

The timber companies retained Winzler and Kelly Consulting Engineers and turned them loose, with no strings attached, to determine the origins of the heavy sediments in Redwood Creek. Using complex electron-microscope and x-ray analysis techniques, Winzler and Kelly concluded that today's sediments have the same origin as those deposited hundreds of years ago near the mouth of Redwood Creek. They came mainly from the erosion of the streambed and from adjacent slide materials and were not caused by logging. They were being created by the same natural forces that created the flat on which the Tall Trees stand, said Winzler and Kelly.

So the park expansionists had their USGS study and the timber companies their consulting firm's study. Henry A. Froelich, a forest hydrologist from Oregon State University, told the Board of Forestry that he had reviewed the data presented by both the Geological Survey and Winzler and Kelly. He was pleased to see that the data were similar but was surprised at the difference in conclusions.

Both studies, said Froelich, showed that the water quality of Redwood Creek and its tributaries is good, that the insect populations of the streams are good, and that fish taken from the streams are healthy. He believed that the data did not support the conclusion that logging was contributing significant amounts of sediment to the park.

Even the secretary of California's Resources Agency, Claire Dedrick, after walking across the lower edge of a clear-cut patch at the Worm boundary, declared that she saw no damage to resources inside the park. Conservation Department director Lew Moran acknowledged that "a complete halt to logging in all of Redwood Creek Basin, or near the Park, does nothing to slow the erosional processes that are already underway.…There can be no question that potential damage caused by the existing bedload to areas adjacent to the Creek is presently a fact even," he emphasized, "if no additional logging were to be allowed in the Basin."

And after three years of controversy, a two-day field trip to the Redwood Creek Basin, and several days of hearings, the Board of Forestry declined to declare a moratorium or to impose special regulations on timber-harvesting operations in the basin, because no one had presented evidence that the forest-practice regulations then in effect did not adequately protect the park.

ENTANGLED STATE LAWS

For those who found problems at Redwood Creek, the next move was to launch an assault against California's system of regulating forest practice. The subsequent extension of state power to the control of timber management on private lands hinged on the interpretation of two laws that seemed to overlap in authority yet had different procedures and applications.

The Z'berg-Nejedly Forest Practice Act of 1973, which became law on January 1, 1974, created a new nine-member Board of Forestry in California. Five members are selected from the general public, three from the timber industry, and one from the range livestock industry. The board was made responsible for the adoption of regulations governing forest-management practices in order to meet the goals of the act.

Before any timber owner could begin harvesting timber, he had to submit to the state forester a Timber Harvesting Plan (THP) prepared by a registered professional forester. The state forester was required by the act to "review the plan to determine if it is in conformance with the rules and regulations of the board and the provisions of this chapter."

Strict time limits were imposed, usually 15 days (depending on certain conditions), for the state forester to review the plan. If, within the specified time period, the plan was not returned to the person who submitted it as "not in conformance with the rules," the timber operations could begin. As the law was written, no "permit" from the state appeared to be necessary.

Some interpreted the law differently. They believed that the state forester, the Board of Forestry, and the Forest Practice Act are all subject to the California Environmental Quality Act (CEQA). That act is similar to the federal Environmental Policy Act and requires that any action undertaken by state or local governmental agencies that may significantly affect the environment be preceded by an Environmental Impact Report (EIR). And the courts have held that the issuance of a permit is an action that may significantly affect the environment. So, whether or not Environmental Impact Reports are required for Timber-Harvesting Plans hinged on the question: Does the state forester issue a permit when he reviews a THP?

THE BATTLE HEATS UP

Soon after the Forest Practice Act became law, the state attorney general's office concluded, in an informal letter of opinion, that THPs are subject to the California Environmental Quality Act and that EIRs are therefore required. The attorney general reasoned that a Timber Harvesting Plan is a "project" that is approved or disapproved at the discretion of the state forester. A "project" involves "the issuance to a person of a lease, permit, license, certificate or other entitlement for use." When the state forester determines that a THP is in conformance with the rules of the Board of Forestry, he essentially issues a permit to harvest timber, concluded the attorney general.

Joseph P. DeLu, staff attorney for the Department of Conservation, denied that timber harvesting falls into any of those categories. The state forester, DeLu insisted as he quoted the Forest Practice Act, does not issue permits or "approve" THPs. He only reviews the plans to determine whether they are "in conformance with the rules and regulations of the board and the provisions of this chapter."

The Reagan administration agreed. Environmental Impact Reports would not be required.

Armed with the attorney general's letter of opinion, the Natural Resources Defense Council (NRDC) amended its complaint then pending in Humboldt County Superior Court. The original suit had asked the court to declare timber harvesting in the Redwood Creek Basin to be a public nuisance.

Now the NRDC named Lew Moran, then state forester, as added defendant and respondent and asked for an injunction against timber harvesting in the Redwood Creek Basin until EIRs were prepared and reviewed. Judge Arthur B. Broaddus denied the NRDC motion for an injunction and set a trial for December 9, 1974.

Less than three weeks before the trial in the NRDC case, a formal opinion signed by Deputy Attorney General Nicholas C. Yost confirmed the informal opinion that timber-harvesting programs are subject to the California Environmental Quality Act. This action was protested by many as a direct attempt to influence the court's decision and a direct violation of the stated "policy of the Attorney General to refrain from rendering an opinion in a case, or upon a matter, which is currently being tried in the courts in the state."

It was apparent that the taxpayers of California were paying for legal research and advice provided to the Sierra Club and the NRDC by the attorney general's office. Reporter Jack Welter revealed in the San Francisco Examiner that Yost was a member of the Natural Resources Defense Council. When questioned by Welter, Yost responded that he saw no conflict of interest in his action.

THE FINAL OFFENSIVE

By January 1975 the park expansionists had maneuvered themselves into strategic positions and were ready to launch their final offensive. The new Forest Practice Act had been in effect one year, and the rules developed by the Board of Forestry had been in effect less than two months. All Timber Harvesting Plans processed during 1974 had expired on January 1.

Three lawsuits were pending: the Sierra Club versus the Department of the Interior, for its alleged failure to protect the park; the NRDC versus the state forester and the three timber companies operating in the Redwood Creek Basin, for failing to comply with the California Environmental Quality Act; and a nuisance suit by the attorney general against the three companies.

In early January, Edmund G. Brown, Jr., became the governor of California. One of his first appointments was Mrs. Claire Dedrick, first vice-president of the Sierra Club, as secretary of the Resources Agency, which included the Department of Conservation and its Division of Forestry (later upgraded to a full department). Larry Moss, conservation director of the Sierra Club, was named Dedrick's chief deputy.

In mid-January, Judge Broaddus, in Humboldt County Superior Court, released his preliminary ruling on the NRDC suit: timber operations "clearly come within the requirements of the Environmental Quality Act." The full ruling came on February 19, when Broaddus issued a summary judgment that the state forester must comply with CEQA and ordered him to void all THPs in the Redwood Creek Basin and to require future plans to comply with CEQA.

Broaddus also provided that "appeal of this judgment shall operate as a stay." The timber company defendants filed notice of appeal two days later.

State Forester Lew Moran did not appeal. The new administration had reversed the position of the Reagan administration. The state forester would comply with CEQA.

Only 31 Timber Harvesting Plans had been cleared by the state forester's office between January 1 and February 19; 250 more had been submitted, and 2,500 were expected during the year. But there were no regulations for either the writing or the processing of Environmental Impact Reports on THPs on private lands.

All action on pending THPs came to a sudden halt. It soon became obvious to all concerned—even to the Sierra Club's erstwhile vice-president, Mrs. Dedrick—that the Forest Practice Act and the California Environmental Quality Act were incompatible and that environmental reports on timber harvests could not work.

DELAYING TACTICS

On January 29 the Resources Agency issued emergency regulations to govern procedures for handling Timber Harvesting Plans, Environmental Impact Reports, and negative declarations (the latter to be used where a plan would have no significant impact on the environment). The regulations provided for an "environmental addendum" (which industry spokesmen called a "mini-EIR") to be added to the THPs. The time limit built into the Forest Practice Act was evaded simply by providing that THPs would not be deemed filed until all required environmental documentation had been submitted.

On February 3 an estimated 1,300 mostly unemployed loggers in plaid shirts and hardhats traveled to Sacramento to see the governor, bringing with them hundreds of petitions asking him to observe the court-ordered stay and to order a moratorium on the filing of EIRs for timber-harvesting operations. Governor Brown, conveniently, was in Los Angeles.

Two weeks later, Brown issued an emergency executive order directing Secretary Dedrick to set up a process that would be the "functional equivalent" of an EIR. He directed the Department of Fish and Game, the Department of Parks and Recreation, the State Water Resources Control Board, and the Regional Water Quality Control Boards to assist in reviewing the Timber Harvesting Plans.

The following day, Mrs. Dedrick issued a second set of emergency regulations amending the administrative procedures for handling EIRs to allow for the functional equivalent process. On March 3 Lew Moran, who had become director of the Conservation Department, issued a third set of emergency regulations to implement the process.

Still, Timber Harvesting Plans stacked up. Many were returned for completion of the environmental addendum or other environmental information. The Department of Fish and Game and the Water Quality Board staffs—with their own environmental goals in mind—refused to agree that the plans adequately protected the environment.

Eventually, in mid-March, orders came down to give control to the state forester's staff and to get the plans out. In three days and nights, several hundred were processed, many without the environmental addendum (in violation of the emergency regulations).

In the midst of all this controversy, on March 19, Congressman Phillip Burton of San Francisco introduced a bill to add 74,000 acres to Redwood National Park. The state legislature and the Board of Forestry began to look into the proposal.

BACK AND FORTH

In late May Mrs. Dedrick appeared to reverse her position when she told the Board of Forestry: "It is the policy of the administration to ask total exemption of the Forest Practice Act from the California Environmental Quality Act. We believe that the Forest Practice Act has within itself sufficient safeguards to protect the environment."

"However," Mrs. Dedrick continued, "to meet those goals, the administration requires additional revisions in rules and the timber harvesting procedures." The additional rules included provision for "public input" before the state forester would "approve" or "deny" a THP and the discretion of the state forester to "adjust" forest practices within stream and lake protection zones, to protect special archeological and ecological areas, and to provide for road construction, routing, and maintenance to prevent "substantive damage" to resources.

In June Mrs. Dedrick visited the Redwood Creek operations. After her tour she declared at a news conference that it was not fair to require Environmental Impact Reports only in Redwood Creek and not in other areas. "If it is true the industry will not operate properly without CEQA there, it is true for the rest of the streams and creeks," she said.

She also said that she saw no reason to oppose a moratorium on the applications of CEQA requirements to timber-harvesting operations. Mrs. Dedrick soon began to lose favor among the members of the Sierra Club and its sympathizers.

In a two-day meeting at the end of June, the Board of Forestry, for the second time in 18 months after the Forest Practice Act became law, adopted revised and more restrictive forest-practice rules. But on June 30 the governor signed a bill that clearly exempted the Forest Practice Act from CEQA provisions for six months. As an emergency bill, it became effective immediately.

Industrial foresters breathed a sigh of relief—but it was a short one. Instead of dropping the functional equivalent process, as expected, Conservation Department director Lew Moran issued emergency regulations (for the fourth time during the first six months of the Brown administration) that, with some minor changes, continued the system already in effect.

LAND GRAB ACT

The legislature's more permanent solution was to write the functional equivalent process into law. At its last meeting of 1975 the Board of Forestry voted to amend its regulations in order to qualify its regulatory programs under that law.

Effective for two years, beginning January 1, 1976, it provided that state regulatory programs that have the protection of the environment as their primary purpose and meet certain additional criteria may be certified by the secretary of the Resources Agency and then be exempted from the filing of EIRs. One of the requirements was that if a Timber Harvest Plan (even if it met the rules of the board) did not adequately protect the environment in the view of the state forester, he could require additional protection measures or deny approval of the plan.

Spokesmen for the timber industry and forest landowners objected to the proposed changes in the rules to qualify for exemption under the new law. They contended that the rules, if adopted, would limit their ability to make important decisions concerning their own land and would give the state the power to dictate how each timber operation would be conducted, what equipment could be used, or even to prohibit an operation altogether. They objected to giving so much authority to the state forester, and to the Resources secretary, who could disapprove the entire program. "If you adopt these regulations, the Forest Practice Act can be renamed 'The Z'berg-Nejedly Land Grab Act of 1973,'" argued Dennis Elliott, an independent logger and forest landowner from Grass Valley.

The board adopted the proposed rules, and in early January (1976) the Resources secretary certified the rules and regulations of the Board of Forestry as meeting the criteria for exemption from Environmental Impact Reports. The state now has the authority to prohibit timber harvesting on any private land in the state or to dictate how the trees will be harvested. Mrs. Dedrick and Governor Brown issued a joint statement in which they hailed the end of a bitter dispute—an over-optimistic statement, at best.

ENTER THE BIG GUNS

Pressures continued to mount. The Carter administration announced its recommendation for a 48,000-acre expansion of Redwood National Park, and Congressman Burton agreed to amend his bill from 74,000 acres to 48,000 acres. Burton and the late Congressman Leo Ryan held field hearings in San Francisco and Eureka. Then the main offensive moved to Washington. The park expansionists' home forces continued their holding action in California to stop all timber harvesting in the Redwood Creek Basin.

About the same time, the state forester denied approval of two THPs because they applied to land "within the area under consideration for park expansion"—a reason for denial that, forest landowners noted, was not in the Forest Practice Act or the board's rules. By this time, a typical 18- to 20-acre THP in the Redwood Creek Basin was subjected to 8 to 10 days of on-site inspections by three separate state and federal teams, over a four-month period, before it was submitted to the state forester. All the inspection teams had recommended approval of the two plans. But Lew Moran, now director of the newly created Department of Forestry, withheld approval. The plans were taken to the Board of Forestry for review.

The board was no longer a holdover from the Reagan administration. That board had included Phil Berry, attorney and past president of the Sierra Club, and still a member of both. Now, the board was practically an arm of the Sierra Club.

At the height of the Redwood battle, recalls William D. Walsh, senior vice-president of Arcata National Corp., Governor Brown asked three people from his company to visit him. "He demanded that we declare a moratorium on harvesting operations in the Redwood Creek drainage," Walsh says. "When we protested this invasion of our property rights, the Governor cynically remarked that private property rights were rapidly eroding. In any case he explained that if we did not accede to his demand, he possessed the power to achieve his end through appointments to the Board of Forestry."

As vacancies developed, two more Sierra Club activists and a Sierra Club sympathizer were appointed, giving the preservationists more votes on the board than the timber industry had. Moreover, one of the industry members was forest resources manager for one of the three companies that owned lands adjacent to the Worm. Under California's conflict-of-interest law (as interpreted by the deputy attorney general who advised the board), he could not vote on matters concerning Redwood Creek. The Sierra Club members felt no such compunction and so had a clear majority.

The board asked the attorney general whether it had authority to deny Timber Harvesting Plans "solely on the grounds that the timber to be harvested is within an area which could be acquired by the federal government for national park purposes" if pending legislation were enacted.

The answer appeared to be no. Attorney General Evelle J. Younger wrote: "The Board of Forestry may not deny a harvesting permit that otherwise complies with all provisions of the Act solely on the ground that there is pending legislation in Congress in preliminary stages of consideration that might result in eventual acquisition of the areas covered by the permit for national park purposes."

In spite of the attorney general's opinion, the two Sierra Club member attorneys on the board decided that the board could legally deny the plans solely because they were within the proposed park expansion area. One simply decided that the attorney general was wrong. The other maintained that, correctly interpreted, the attorney general's opinion said that the board could take the action.

The board denied approval of the plans.

THE TRUE FIGHT

A little more than a year after she took office, Mrs. Dedrick made a revealing speech before the Mount Shasta Chapter of the Society of American Foresters. Among her comments: "Since I have been in office, I've tried to see all of the areas that the state regulates on the ground, and the surprising thing about that…is that that's the whole 100 million acres of California. I think that it is an important thing for us all to recognize that this land, which stretches from the Pacific to the Atlantic, from Mexico to Canada, belongs to all the people of the United States—not just to the people who are living now,…but also to the future."

Few of the foresters who heard Mrs. Dedrick that evening realized that she was actually stating the basic issue beneath the conflict over the expansion of Redwood National Park and the regulation of privately owned forest lands. Few of the participants in the conflict realized that it was a struggle over who should own the land and the natural resources of this country. It was only one skirmish in what economist and historian Murray Rothbard calls "the great conflict which is eternally waged between Liberty and Power." It was a struggle between those who believe resources should be owned and their use allocated by the public and those who believe that resources should be allocated by private ownership and the marketplace.

SEIZURE OF PROPERTY

Seldom has the controversy over the redwoods and the regulation of private forest lands been brought down to that basic level, largely because it was not understood by those who were defending their properties and their practices. Because the basic issue was not recognized, the forest landowners received little help from their potential allies in defending their property.

The true issue was again revealed when Arcata Redwood Company began logging under an approved Timber Harvesting Plan that covered 35 acres in the Skunk Cabbage Creek drainage—a tributary of Prairie Creek, which flows into Redwood Creek about nine miles downstream from the Tall Trees. With $1 million donated by the Save-the-Redwoods League, the Department of the Interior, relying on eminent domain, seized the 35-acre tract, under authority in the act of 1968 that created the original park.

That seizure clearly demonstrated that the protection of the Tall Trees Grove was only a smokescreen designed to hide the real issue. The tract was 10 or 12 miles downstream from the Tall Trees, and logging it could not possibly affect the grove or the flow of Redwood Creek through the park.

Even then, the basic issue was not brought out and discussed in public. The claims of excessive erosion and other problems caused by logging were simply the means by which the owners and managers of the land could be discredited in order to create a climate of public concern and a sense of urgency, so that the takeover of their property would be possible—both the physical taking of an expanded park and the taking by regulation of the use of private resources.

The environmental movement began with a serious concern over problems of the environment, and many persons within it still share that concern. But the environmental movement has been captured by authoritarians who saw it as an opportunity to extend the power of government over all segments of the economy and therefore over all human activities.

The debates over the Forest Practice Act, the California Environmental Quality Act, and Redwood National Park provided one opportunity the authoritarians needed in order to move closer to their ultimate goal. Every legislative, Board of Forestry, and court hearing was used as a public relations event to convince the general public of the imminent destruction of the Tall Trees, but the actual goal was to achieve greater public control of natural resources. Because of the nature of "news" and of the political decisionmaking process, the owners of California's forest lands and the residents of two sparsely populated counties held little hope of stopping the juggernaut in its drive to take over the forest resources of the state and the redwoods.

FAIT ACCOMPLI

The bill to expand the park was signed by President Carter on March 28, 1978. At that moment, 48,000 acres of the most productive timber-growing land in the world became the property of the federal government.

The former owners (not just three, but 25 of them) can seek redress in federal district court if they believe they are not offered enough to compensate them fairly for their lands. The cost to the taxpayer of the lands and timber taken will not be known for years. The economic costs—in jobs and trade on the north coast of California and in the lumber market areas—will never be known. Some bills for the taxpayer are starting to come in: in 1978 Congress enacted the Redwoods Employment Protection Program to aid California loggers forced out of work by the park expansion; the Socioeconomic Newsletter reports that they can get up to $36,000 a year—tax-free—and that there is competition to get laid off.

The park expansionists have their enlarged park. Mrs. Dedrick has her goal of public control over the forest lands of California, where private ownership can no longer be said to exist.

C.R. Batten is a free-lance writer and photographer, as well as a forester and consultant. He lives in Sacramento, California.