What will be done with Willits' Last Old-Growth?
by Jennifer Poole
The Anderson Valley Advertiser
Vol. 47, No. 18
May 5, 1999
A pair of bald eagles. Northern spotted owls. A year-round creek that hosts spawning Chinook and steelhead salmon. And 60 acres of old growth Douglas-fir forest, graced with thick-barked, sturdy, many-limbed trees, many of them more than 250 years old. This is not a Pomo elder's tale of the old days, and itžs not "way up north somewhere." It's real, it's only 8 miles east of downtown Willits -- and it's ours.
At least it was ours, until the California State Lands Commission (SLC), which owns the parcel in trust for the state teachers retirement fund, decided to give it away for $100 an acre.
After accepting a $90,000 bid in November 1994 for the 320-acre parcel, which includes the 60 acres of old growth on a ridge above Scott Creek and after cashing the successful bidder's final check - the SLC reneged on the deal.
At the last minute, the state agency says, it was tipped off by a neighboring landowner that there was a large amount of merchantable timber on the Scott Creek parcel. So the $90,000 payment, although nearly three times the minimum bid, was far below what the property was worth.
SLC wrote a letter in June 1995 to the buyers, the Smith family of Fort Bragg, rescinding the agreement, which was still in escrow, paying them back their $90,000, and offering to sell them the parcel for "fair market value."
After loudly complaining to then-Congressman Frank Riggs, other local and state politicians, and the Press Democrat about this shoddy treatment, Cas and Rosemary Smith filed suit against the SLC on July 31, 1995 for breach of contract.
In its defense, the state claims the SLC forester "examined the wrong parcel" when he was evaluating a number of scattered pieces the agency had decided to sell. "The forester was not able to get on the land," court documents state, "but had to rely on maps and aerial photographs." California law, the state claims, provides that a contract may be rescinded for such a "mistake."
The state then turned around and counter-sued the Smiths and a number of their associates for among other things fraud and trespass. The Smiths, who own property adjoining the Scott Creek parcel, "knew or should have known that California had made a mistake, and [they] failed to disclose that there was merchantable old growth timber" there, court documents state. The Smiths allegedly "made misrepresentations of fact in their bid application documents with the intent to induce California to rely thereon and to prevent California from discovering the timber," including "intentionally describing the wrong parcel." Keep in mind that it was the SLC that asked the Smiths to bid on this property; because they owned the piece next door, the agency sent them a notice offering it at auction, with a minimum bid of $32,000.
After years of back-and-forth, the Smiths reportedly entered into an agreement with the SLC that the agency would have two years to try to get a timber harvest plan OK'd for the Scott Creek parcel. If the agency couldn't get approval for the logging, the Smiths would have another opportunity to buy the land. Details aren't available, as Cas Smith did not return phone calls; however, the court case is still set for trial in mid-September in Superior Court in Ukiah. Smith has told several local environmentalists interested in the situation that if he does end up owning the 320 acres, he won't log the old growth and he'll seek a conservation easement for the 60 acres.
So far, SLC hasn't had much luck getting a THP approved. CDF officials are currently reviewing the third THP the agency has submitted, after the first two were denied. One CDF official said last week it would be "highly unlikely" that the current THP would go forward.
A spotted owl was found during the latest pre-harvest inspection, and an endangered plant species was found near where the helicopter landing would be built. Also, the THP admits there are "continuing, significant adverse impacts" on the two creeks in the area from past "forest land activities," although it won't admit the current proposed project would result in any additional significant impacts that canžt be mitigated.
"Based on conversations with the Department of Fish and Game," the THP reads, "both Tomki Creek and Scott Creek are considered spawning creeks for Chinook salmon and steelhead. In addition, the condition of both is considered 'impaired' by the Department. The impairment is based on lack of stream canopy and silted-in spawning beds and results from a variety of past projects, including, but not limited to, "road building, residential development, ranching, and logging."
The SLC claims its THP is as good as they get "We've tried to do everything to make this the most environmentally comfortable plan and still conduct a harvest," SLC attorney Peter Pelkofer said. Pelkofer also said the third version of the THP doubles the required streamside protection zones perhaps because CDF inspectors found trees marked for harvest inside the standard creekside "no-cut" zones during a pre-harvest inspection for one of the earlier THPs. The plan also leaves many of the oldest trees standing.
Others, however, don't understand why the state of California is doing any logging at all inside one of the last remnants of old growth forest near Willit.
"This is one of maybe two old growth parcels in the entire Tomki Creek watershed," said David Drell of the Willits Environmental Center. "There's maybe another little 40-acre piece someplace, and BLMžs Little Darby environmental education area. This is one of the only places a spotted owl could find a place to live in the entire watershed." Drell remembers another fight locals had with the SLC over a proposed THP, this one for Hamm's Pass, on the middle fork of the Eel River, sometime in the early 1990s. "It was junk logging," Drell said, "the worst possible", and State Lands touted this THP as state-of-the-art forestry.
As part of the struggle, activists Susan Van Dongen and Mary Norbert Korte, a teacher herself, presented a resolution against logging old growth to the state teachers' annual convention, which passed. "The teachers agreed they didn't want old growth forest cut for the benefit of their pension," Drell said. "As a result of that experience, SLC put an indefinite moratorium on logging these old growth parcels."
At the time of the moratorium, then-Lt. Gov. Gray Davis was one of the three SLC board members. In addition to the lieutenant governor's seat (now held by Cruz Bustamante), the other two SLC seats are for the state controller (now Kathleen Connell) and the state finance director (now B. Timothy Gage).
Korte, Van Dongen and others are gearing up to get the state teachers involved again, and members of the Bay Areažs Forests Forever have written a couple of dozen letters opposing the Scott Creek THP.
Although environmentalists and some neighbors along Tomki and Scott creeks are agreed they're opposed to logging the parcel, it's unclear what the preferred outcome might be.
State Lands attorney Pelkofer claims the agency is prevented from itself acquiring a conservation easement "or the parcel, as it is required to "maximize revenue in support of the teachers." However, according the official description of the agency's mandate, it is also charged with "protecting, preserving and restoring the natural values of state lands." Then-Attorney General Dan Lungren himself, in a court document his office filed for this case, claims the land, "in addition to its commercial value, has a special value based on its unique character and scenic and recreational values."
According to Pelkofer, the actual decision to go ahead and log will only be made after a THP is approved, and that - very political - decision will be made by the State Lands board, not SLC staffers.
If in the end the SLC can't get a THP approved, and the Smiths do acquire the land, will CDF at some point allow them to cut some of the old growth? Despite Cas Smith's claims that he now doesn't intend to log, court documents make it evident that's exactly what the Smith family was originally planning to do.
The "trespass" charge in the SLC countersuit comes about because of a half-dozen cut trees a forester found lying on the ground during a February 1996 timber cruise.
Originally, according to a deposition by Deputy Attorney General Kenneth Williams, Cas Smith said he didn't know who felled the trees. But, again according to Williams, the Smiths later "confirmed that without notice or permission from the SLC, they authorized the cutting down of 4 to 6 trees on the subject property."
According to court documents, while still in escrow themselves for the property, with their $90,000 bid, the Smiths had entered into a "contingent sales contract to sell the property and its timber resources to logging interests for over $500,000."
A forester, Craig Thurber, who'd been hired by the prospective buyers, including William Hoblin and Ron Hammel, to examine the timber, stated that he had been granted permission to cut four to six trees to check out their quality.
California law provides for treble damages in cases involving timber, and according to court documents, the Smiths and others named in the suit could be liable for up to $500,000 in damages, plus court costs. Over the years, the state has added a number of names to its countersuit, including Rosemary Smith's father, mother and brother, as partners in the Smith's investment company; the above-named Thurber, Hoblin and Hammel; and a Willits real estate broker, Tony Sorace.
Not surprisingly, the defendants and their attorney claim that the state has no specific evidence of any kind of fraud on the Smiths' or their associates' parts and indeed only filed its countersuit to pressure the Smiths into giving up their own claims against the government.
Activist Linda Perkins, who's been reviewing the Scott Creek THP and encouraging public comment on the plan, is determined to keep the parcel intact one way or another
Despite the harvest plan's "extra" mitigations, Perkins said, any logging at all would "destroy the integrity of the old growth."
"This 60 acres," she continued, "is surrounded by devastation; there's no place for the owls or the woodpeckers, the osprey or the bald eagles, the lions or the fish - therežs no place for them to go. You know, we paid a half-a-billion for Headwaters," Perkins said wryly, "and here the state is wanting to destroy some of the last old growth in Mendocino County. We have so little of it left -- in fact we shouldn't cut any."
Read about The Strategic Forest Stock IPO shenanigans... from Jennifer Poole.
... and an update on that story...
Read about the 10k acre Coastal Vineyard Conversion.
© Jennifer Poole... used withpermission of the author and The Anderson Valley Advertiser
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