Superior Court upholds plan denial

February, 2006
The Superior Court of Mendocino County upheld the California Board of Forestry's denial of a timber harvest plan in the floodplain of the Gualala River because it was likely to cause harm to endangered coho salmon.

Background
The Cassidy timber harvest plan, submitted by Gualala Redwoods, Inc. in 2000, included approximately 148 acres lying in the floodplain adjacent to the fish-bearing North Fork and Little North Fork branches of the Gualala River.

According to the National Marine Fisheries Service, the Regional Water Quality Control Board and the California Department of Forestry, the Cassidy plan would likely cause harm to salmonid species listed as threatened under the federal Endangered Species Act.

The plan was denied by the California Board of Forestry in February 2002. The following month, Gualala Redwoods petitioned the Superior Court to overturn the Board's decision. Following a hearing in December 2005, the Superior Court rejected GRI's petition (see the Court's decision below).

Meanwhile, in March 2004, Gualala Redwoods filed a new logging plan, the Lily plan, which is almost identical to the Cassidy plan.

Excerpt from the Court's decision

Petitioner contends that there isn't any evidence in theadministrative record of likely harm to salmonids. The Court does not agree.
First, the NMFS July 30 letter, and NMFS' testimony at the hearing before theBoard, both establish the likelihood of habitat degradation [emphasis added]. In particular, the NMFS letterstates that excess channel bed load poses an "immediate risk" to increased floodfrequency and inundation depth such that meander cutoff and channel abandonment bythe river system may occur resulting in channel incision and general floodplain andvalley degradation. (AR 990.) Similarly, Charlotte Ambrose, a natural resourcespecialist with the Protected Resources Division of NMFS, opined at the hearing that theproposed timber operations would cause significant habitat modifications, includingdecreased large wood recruitment, increased sediment delivery, increased mass wastingpotential, increased peak flows, and decreased channel complexity. (RT, at p. 19.) Ms.Ambrose concluded that the proposed harvesting activities will combine with theaccumulation of ongoing and previous timber operations and result in further significantmodifications of salmon habitats. (RT, at p. 12.) Dr. Brian Clue[r], a fluvialgeomorphologist/hydrologist also submitted testimony on behalf of NMFS, and he tooconcluded that approving the THP would contribute to further degradation of streamchannels and fish habitat. (RT, at p. 37-38.)
Second, there is evidence in the record that the likely habitat degradation isreasonably certain to harm coho salmonid [emphasis added]. (See RT, at p. 22 et seq.) Among other things,Ms. Ambrose opined that conifer removal and channel aggradation reduces channelcomplexity (loss of pool formation and sediment sorting), which in turn, impairs salmonrearing, sheltering, feeding, spawning, and migration. The loss of cool water refugia inthe river further harms coho due to inefficient feeding, thermal stress, increasedsusceptibility to disease, reduced competitive vigor and/or death. High sediment inputreduces egg-to-fry emergence by suffocating eggs and entombing alevins, and by fillingrefugia areas and shifting macro invertebrate communities, which are a food source ofcoho. Increased turbidity from sediment input decreases feeding ability and increasedgill abrasion. Further, extremely high sediment delivery results in direct mortality tocoho eggs and alevins by washing them downstream, smothering them or entombingthem. (RT, at pp. 22-23; see also RT, at p. 31.)
For these reasons, the Court concludes that there is substantial evidence in therecord to support the finding that a take* would occur...
Read the full decision by the Superior Court 52K

*Note: definition of "Take"
Section 895.1 ofTitle 14 of the California Code of Regulations defines "take" to mean "to harass, harm,pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt to engage in any suchconduct with regard to a federally listed wildlife species." (14 CCR ¤ 895.1.) Thatsection also defines "harm" to mean "an act where it actually kills or injures a federallylisted wildlife species. Such acts may include a significant habitat modification ordegradation which actually kills or injures wildlife by significantly impairing essentialbehavior patterns, including breeding, feeding or sheltering." (Id.)