Schwarzenegger Administration Sued for Taking End-Run for Maxxam

SACRAMENTO, CA – In a lawsuit filed yesterday, the Center for Biological Diversity (the Center) is challenging two Schwarzenegger Administration decisions to allow Maxxam-owned Pacific Lumber Company to kill marbled murrelets and coho salmon, two of California’s most endangered species. The lawsuit, filed in Sacramento Superior Court, charges the Department of Fish and Game (DFG) and Maxxam/PL with multiple violations, and claims the Schwarzenegger Administration attempted to sidestep both the courts and the law on behalf of Maxxam.

In 1999, DFG issued to Maxxam/PL permits to kill marbled murrelets and coho salmon through the infamous Headwaters Deal, which also gave Maxxam/PL $500,000,000 for approximately 7,300 acres of land. These “take” permits were based on Maxxam/PL’s federal “Habitat Conservation Plan” (HCP), and in 2003, they were struck down and invalidated when a California Superior Court ruled they violated the California Endangered Species Act (CESA) and other laws.

In December 2004, Maxxam/PL submitted a letter to DFG, requesting that it find the 1999 HCP is “consistent” with CESA, a determination that is directly contrary to those of the court and other evidence before the agency. Nonetheless, DFG quietly approved Maxxam/PL’s request earlier this year, allowing no public or inter-agency review of its decision despite its highly controversial nature.

“Arnold Schwarzenegger pledged to protect our redwood forests while campaigning for governor. It appears like he forgot this promise as soon as he was elected, and that the administration is serving Maxxam rather than the precious redwoods and endangered species of this state,” Cynthia Elkins, spokesperson for the Center, said.

The marbled murrelet nests exclusively in ancient redwood forests in California, and is one of the world’s most endangered seabirds. Scientists are now warning that it faces a 100% likelihood of extinction in the state within 50 years unless habitat protection measures are improved.

Maxxam/PL’s HCP aims to destroy 10,000 acres of marbled murrelet nesting habitat, which DFG previously estimated would kill up to 340 individual birds. The 2003 Superior Court decision found the 1999 permit failed to “fully mitigate” negative impacts to the marbled murrelet as required by CESA. DFG contradicted this finding in its recent “Consistency Determination,” that PL’s HCP “fully mitigates” all impacts from logging to marbled murrelets.

“The Schwarzenegger Administration signed an extinction plan for the marbled murrelet and coho salmon, and tried to sneak this decision through without involving the public. This is patently illegal, and the Center intends to make sure that it does not stand,” Peter Galvin, Conservation Director of the Center, stated.

The Superior Court also found that Maxxam/PL’s HCP “…does not constitute valid mitigation under [the California Environmental Quality Act] because it is not achievable or enforceable. Numerous feasible mitigation measures that would substantially reduce or avoid significant adverse impacts on aquatic species and habitat were proposed, yet not considered….” The North Coast Regional Water Quality Control Board and an independent scientific review panel have also both concluded that Maxxam/PL’s HCP is inadequate to protect water quality.

Coho salmon are considered to be the most imperiled of all salmon species in California. According to NOAA Fisheries, population estimates of coho salmon are at approximately six to 15 percent of its abundance in California in the 1940’s, and the species has experienced a decline of at least 70% since the 1960’s.