BILL NUMBER: AB 1986 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 31, 1998
AMENDED IN SENATE AUGUST 28, 1998
AMENDED IN SENATE AUGUST 12, 1998
AMENDED IN SENATE JULY 7, 1998
AMENDED IN ASSEMBLY APRIL 2, 1998
INTRODUCED BY Assembly Member Migden
FEBRUARY 17, 1998
An act relating to forest resources, making an appropriation
therefor, and declaring the urgency thereof, to take effect
immediately.
LEGISLATIVE COUNSEL'S DIGEST
AB 1986, as amended, Migden. Headwaters Forest and
, Owl Creek , and Grizzly Creek :
appropriation.
Existing law recognizes the importance of protecting and
preserving forest resources.
This bill would appropriate $130,500,000
$130,000,000 from the General Fund to the Controller for
allocation to the Wildlife Conservation Board, for
expenditure without regard to fiscal year until July
1, 1999 , to acquire specified lands known as the Headwaters
Forest Preserve, the Elk Head Forest, and the Elk River Property,
which are located in the County of Humboldt, in accordance with
specified requirements , and for administrative expenses
. The bill would prohibit any funds appropriated under the
bill from being encumbered until specified conditions have occurred.
The bill would also appropriate $80,000,000 from the General Fund
to the Controller for allocation to the Wildlife
Conservation Board board , until July 1,
2001, for expenditure without regard to fiscal year,
to purchase a specified tract of land identified as "Owl
Creek" on the map titled "Murrelet Conservation Areas,"
which is on file in the Office of the Secretary of the Resources
Agency , as specified .
The bill would also appropriate from the General Fund to the
Controller, $15,000,000 for allocation to the County of Humboldt for
economic assistance, up to $20,000,000 for allocation to the board
for the purchase of the Grizzly Creek Marbled Murrelet Conservation
Area, and $500,000 for allocation to the board for administrative
expenses and costs related to the acquisition of those properties.
The bill would declare that it is to take effect immediately as
any urgency statute.
Vote: 2/3. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. (a) The sum of two hundred ten
forty-five million five hundred thousand dollars
($210,500,000) ($245,500,000) is
hereby appropriated to the Controller from the General Fund
for allocation to the Wildlife Conservation Board in accordance with
Sections 2 and 5 of this act. Of the funds for
allocation in accordance with subdivision (b) and Sections 2 and 5 of
this act.
(b) Of the funds appropriated by this section, fifteen
million dollars ($15,000,000) shall be available for economic
assistance for the County of Humboldt, up to $20,000,000 shall be
allocated to the Wildlife Conservation Board and be available for the
purchase at fair market value of the Grizzly Creek Marbled Murrelet
Conservation Area, and up to five hundred thousand dollars
($500,000) shall be available to the Wildlife Conservation Board for
expenditure for administrative expenses and costs related to the
acquisition of properties authorized by this act.
(c) Notwithstanding any other provision of law:
(1) Funds appropriated pursuant to subdivision (a) for the
purposes of Sections 2 and 3 of this act shall only be available
until July 1, 1999, and as of that date shall revert to the General
Fund.
(2) Funds appropriated pursuant to subdivision (a) for the
purposes of Section 5 of this act shall only be available from July
1, 1999, until June 30, 2001, and as of that date shall revert to the
General Fund.
(d) Funds appropriated pursuant to subdivision (a) shall be
encumbered only if the United States Government has encumbered two
hundred fifty million dollars ($250,000,000) as matching funds in
fulfillment of the agreement dated September 28, 1996, among the
United States of America, the State of California, MAXXAM Inc., and
the Pacific Lumber Company, and any subsequent agreements adopted
pursuant thereto.
SEC. 2. (a) Of the funds appropriated by Section 1 of this act,
one hundred thirty million dollars ($130,000,000) is to be allocated
to the Wildlife Conservation Board, subject to the conditions
established pursuant to Section 3 of this act, for expenditure,
notwithstanding Section 13340 of the Government Code, without regard
to fiscal years, to acquire the lands referenced in the Agreement
dated September 28, 1996, which consist of approximately 4,500 acres
commonly referred to as the Headwaters Forest, approximately 1,125
acres referred to as the Elk Head Forest, and approximately 9,600
acres referred to as the Elk River Property, which are located in the
County of Humboldt, California for the purposes of consummating
the Agreement dated September 28, 1996 .
(b) This section is intended to provide the sole authority for the
acquisition of the property, referenced in subdivision (a), that is
the subject of the Agreement dated September 28, 1996, between the
United States of America (hereafter, United States), the State of
California, MAXXAM, Inc., and the Pacific Lumber Company (hereafter,
Company). Of the entire Elk River Property, the United States and
the State of California are to receive approximately 1,845 acres and
the remaining approximately 7,755 acres of Elk River Property is to
be transferred to the Company. The property to be acquired by the
United States and the State of California is that property that is
the subject of the Agreement dated September 28, 1996, as generally
depicted on maps labeled as sheets 1 through 7 of Township 3 and 4
North, Ranges 1 East and 1 West, of the Humboldt Meridian,
California, titled "Dependent Resurvey and Tract Survey," as approved
by Lance J. Bishop, Chief Cadastral Surveyor, Bureau of Land
Management, Sacramento, California. The land acquired by the United
States and the State of California, which consists of approximately
7,470 acres, shall hereafter be known as the Headwaters Forest
Preserve.
SEC. 3. Notwithstanding any other provision of law, funds
appropriated by this act shall only be encumbered by the board if the
final habitat conservation plan (hereafter "final HCP"),
implementing agreement, and permits to allow the incidental take of
threatened and endangered species, the drafts of which are more fully
described in the notice published in the Federal Register on July 7,
1998 (hereafter "Draft Habitat Conservation Plan" or "Draft HCP")
incorporate , at minimum, the following additional
conditions and the final HCP is no less protective of aquatic or
avian species than the draft HCP, as amended by those conditions
:
(a) The final HCP shall establish a no-cut buffer of 100 feet on
each side of each class 1 watercourse until all of the following
conditions are met:
(1) The watershed analysis process described in the draft HCP has
been completed for that watercourse , and the watershed
assessment has been reviewed by the United States Fish and Wildlife
Service and the United States National Marine Fisheries Service
.
(2) The United States Fish and Wildlife Service or the National
Marine Fisheries Service have established site-specific prescriptions
for that watercourse. If the United States Fish and Wildlife
Service or the United States National Marine Fisheries Service
establish site-specific prescriptions that differ from prescriptions
proposed in the watershed assessment, the agency shall state in
writing its reasons for doing so.
(3) The site-specific prescriptions established by the United
States Fish and Wildlife Service or the National Marine Fisheries
Service have been implemented on that watercourse.
(b) The final HCP shall establish a no-cut buffer of 30 feet on
each side of each class 2 watercourse, which shall remain in effect
until all of the following conditions are met:
(1) The watershed analysis process described in the draft HCP has
been completed for that watercourse , and the watershed
assessment has been reviewed by the United States Fish and Wildlife
Service and the United States National Marine Fisheries Service
.
(2) The United States Fish and Wildlife Service or the National
Marine Fisheries Service have established site-specific prescriptions
for that watercourse.
(3) The site-specific prescriptions established by the United
States Fish and Wildlife Service or the National Marine Fisheries
Service have been implemented on that watercourse. If the
United States Fish and Wildlife Service or the United States National
Marine Fisheries Service establish site-specific prescriptions that
differ from prescriptions proposed in the watershed assessment,
either of those services shall state in writing its reasons for doing
so.
(c) Except as provided in subdivisions (a), (b), and (i),
the final HCP shall incorporate into the draft HCP all
(d), and (j), the final HCP shall establish all those
restrictions on class 1, 2, and 3 watercourses contained in the
January 7, 1998, document entitled "Corrected Version
Draft--Interagency Federal-State Aquatic Strategy and Mitigation for
Timber Harvest and Roads for the Pacific Lumber Company," which shall
remain in effect until all of the following conditions are met:
(1) The watershed analysis process described in the draft HCP has
been completed for each watercourse , and the watershed
assessment has been reviewed by the United States Fish and Wildlife
Service and the United States National Marine Fisheries Service
.
(2) The United States Fish and Wildlife Service or the National
Marine Fisheries Service have established site-specific prescriptions
for each watercourse.
(3) The site-specific prescriptions established by the United
States Fish and Wildlife Service or the National Marine Fisheries
Service have been implemented on that watercourse. If the
United States Fish and Wildlife Service or the United States National
Marine Fisheries Service establish site-specific prescriptions that
differ from prescriptions proposed in the watershed assessment, the
agency shall state in writing its reasons for doing so.
(d) The draft HCP shall provide that in those cases where a
site-specific watershed prescription has been proposed by the United
States National Marine Fisheries Service or the United States Fish
and Wildlife Service, the company may request an independent peer
review of the proposed prescription. The peer review shall be
conducted in accordance with the following procedures:
(1) The company, and the United States Fish and Wildlife Service
or the National Marine Fisheries Service, shall each select a peer
reviewer, and those two peer reviewers shall select a third peer
reviewer. Each peer reviewer shall have a Ph.D. in fisheries biology
and shall have at least five years experience in working on aquatic
species protection.
(2) The peer reviewers shall, within 30 days of selection, review
the proposed prescription and determine whether or not the
prescription is scientifically valid. If the peer review is not
completed within 30 days, the prescription may be adopted by the
United States Fish and Wildlife Service or the National Marine
Fisheries Service.
(3) The determination of the peer reviewers shall be forwarded in
writing to the United States Fish and Wildlife Service or the
National Marine Fisheries Service for final review. If the United
States Fish and Wildlife Service or the National Marine Fisheries
Service imposes a prescription that the peer reviewers have
determined not to be scientifically valid, the United States Fish and
Wildlife Service or the National Marine Fisheries Service shall
state in writing its reasons for adopting the prescription.
(4) Nothing in this subdivision shall affect the authority of the
United States Fish and Wildlife Service or the National Marine
Fisheries Service to adopt a site-specific watershed prescription
pursuant to subdivision (a), (b), or (c).
(e)
(d) The final HCP shall require that any site-specific
prescriptions that are recommended
established by the United States Fish and Wildlife Service or
the National Marine Fisheries Service, upon completion of the
watershed analysis, shall be implemented by the Company so that those
prescriptions result in a no-cut buffer of not less than 30 feet,
and not more than 170 feet, on each side of each class 1 and class 2
watercourse.
(f) However, with respect to the minimum 30 foot
no-cut buffer on Class 2 watercourses, the United States Fish and
Wildlife Service or the United States National Marine Fisheries
Service may adjust the buffer if it determines that it will benefit
aquatic habitat or species. However, in no event may the minimum 30
foot no-cut buffer be less than that distance established under the
draft HCP.
(e) The final HCP shall provide that the United States Fish
and Wildlife Service and the United States National Marine Fisheries
Service, in consultation with the Department of Forestry and Fire
Protection , the regional water quality control board, and
the Department of Fish and Game, shall develop a peer review process
to evaluate, on a spot-check basis, the appropriateness of completed
analyses and prescriptions that are developed through the watershed
analysis process.
(g)
(f) The final HCP shall provide that the Company, in
consultation with the National Marine Fisheries Service and the
United States Fish and Wildlife Service, shall establish a schedule
that results in completion of the watershed analysis process within
five years.
(h)
(g) The final HCP shall prohibit timber harvesting,
including salvage logging and other management activities that are
detrimental to the marbled murrelet or marbled murrelet habitat in
the Marbled Murrelet Protection Conservation
Areas for the 50 year life of the incidental
take permits , as defined in the February 27, 1998, document
entitled "Pre-Permit Application Agreement in Principle" that
are in effect in the following tracts of remnant and residual ancient
forest that are depicted in the map titled "Murrelet Conservation
Areas" that is on file in the office of the Secretary of the
Resources Agency:
(i) Elk Head Residual ....................... 564 acres
(ii) Cooper Mill ............................. 722 acres
(iii) Allen Creek ............................ 1,421 acres
(iv) Allen Creek Extension ................... 301 acres
(v) Road 3 .................................. 659 acres
(vi) Owl Creek ............................... 904 acres
(vii) Shaw Gift ............................... 548 acres
(viii) Right Road 9 ............................ 322 acres
(ix) Road 7 and 9 North ...................... 501 acres
(x) Booth's Run ............................. 776 acres
(xi) Bell Lawrence ........................... 634 acres
(xii) Lower North Fork Elk .................... 531 acres
(i)
(h) The acreages established pursuant to subdivision (g) may be
adjusted by the United States Fish and Wildlife Service or the United
States National Marine Fisheries Service, provided that the
adjustments are made to more accurately describe Marbled Murrelet
habitat. However, in no event shall the acreages be any less than
those acreages established pursuant to the draft HCP.
(i) The final HCP shall prohibit the Company from timber
harvesting, including salvage logging and other management
activities, in the tract identified as the "Grizzly Creek Marbled
Murrelet Conservation Area," as depicted on the map titled "Murrelet
Conservation Areas," which is on file in the Office of the Secretary
of the Resources Agency, for five years from the date of adoption of
the final HCP to provide an opportunity for the purchase, and
permanent protection of, that tract.
(j) The final HCP shall impose conditions on road-related
activities that , on balance, are no less protective of
species and habitat than the provisions contained in the February 27,
1998, document entitled "Pre-Permit Application Agreement in
Principle."
(k) The final HCP shall require that the company shall submit all
timber harvesting plans covering lands that are subject to
the final HCP and the incidental take permit for review and comment,
and for a finding as to whether or not the timber harvesting plan is
consistent with the final HCP, to the United States National Marine
Fisheries Service and the United States Fish and Wildlife Service at
least 30 days prior to the earliest possible date of the timber
harvesting plan approval by the Department of Forestry and Fire
Protection. Nothing in this section shall affect the authority
of the Department of Forestry and Fire Protection to approve or
disapprove timber harvesting plans under state or federal law.
(l) The Legislature finds and declares the following:
(1) The final approval or disapproval of the draft HCP is
exclusively within the jurisdiction of federal law and those agencies
that implement federal law.
(2) It is the intent of the Legislature in authorizing the
expenditure of funds pursuant to Section 2 of this act, and in
establishing conditions on the use of those funds pursuant to this
section, that the final HCP approved by the United States Fish and
Wildlife Service and the National Marine Fisheries Service will
incorporate the conditions set forth in this section and not be any
less protective of aquatic or avian species than the provisions of
this section.
SEC. 4. The sustained yield plan and any subsequent sustained
yield plans for the Pacific Lumber Company (hereafter,
Company) referenced in the Agreement dated September 28, 1996,
between the United States of America, the State of California,
MAXXAM, Inc., and the Company and prepared pursuant to that
agreement, and any timber harvest plans prepared by the Company
covering lands subject to the final HCP adopted pursuant
thereto, shall comply with those conditions set forth in Section 3 of
this act, with the Applications for Permits to Allow Incidental Take
of Threatened and Endangered Species, and the Habitat Conservation
Plan and Implementation Agreement, as more fully described in the
notice published in the Federal Register on July 7, 1998, and may not
be any less protective of aquatic or avian species than the
provisions of this act. Nothing in this section shall be
construed as requiring the Department of Forestry and Fire Protection
to make any additional findings relative to timber harvest plans
pursuant to this section, other than those findings that are already
required the law as it read on the effective date of this act.
SEC. 5. (a) Of the funds appropriated by Section 1 of this act, up
to eighty million dollars ($80,000,000) is to be allocated to the
Wildlife Conservation Board for expenditure by the board, effective
July 1, 1999, notwithstanding Section 13340 of the Government Code,
without regard to fiscal year, and subject to compliance with
the conditions established pursuant to Section 3 and 4 of this act,
to be applied to the purchase price of purchasing for fair
market value the area identified as "Owl Creek" (MMCA) in the draft
Habitat Conservation Plan submitted by Pacific Lumber Company, dated
July 1998, as part of completing the Headwaters Agreement of
September 28, 1996. To the extent funds allocated pursuant to
this section remain after the purchase of the "Owl Creek" Tract,
those funds may be reappropriated for the acquisition, at fair market
value, of the tracts known as the "Elk River Property" and the
previously unlogged ancient Douglas Fir forestland within the Mattole
River watershed.
(1) The Wildlife Conservation Board is hereby authorized to
purchase for its fair market value the tract of land identified in
subdivision (a) as "Owl Creek".
(2) The Wildlife Conservation Board shall undertake an appraisal
of the tract of land described in paragraph (1) to determine its fair
market value. The appraisal shall be conducted by three qualified
appraisers to be selected as follows:
(A) One appraiser selected by the Pacific Lumber Company.
(B) One appraiser selected by the board.
(C) One appraiser selected by the appraisers selected pursuant to
subparagraphs (A) and (B).
(3) The listing of the "Owl Creek" tract under paragraph (vi) of
subdivision (h) of Section 3 of this act shall not be a factor in the
appraisal of the fair market value of that tract under this section.
(c)
(b) At the option of the Pacific Lumber Company, the appraisal
methodology may assume the issuance of all necessary permits and
approvals for the management of the "Owl Creek" tract as described in
the draft HCP, including incidental take permits under the
California and federal endangered species acts.
(c) On or before July 1, 2000, the Wildlife Conservation Board
shall make a good faith offer to the Pacific Lumber Company for the
purchase of the "Owl Creek" Tract.
(d) The Legislature finds and declares that the
appropriation and allocation of funds for the purposes of subdivision
(a) is intended to demonstrate a good faith commitment on the part
of the state to purchase the Owl Creek tract. The Legislature
further finds and declares that the Wildlife Conservation Board shall
undertake all feasible efforts to obtain private and nonprofit
funding to assist in this purchase.
(d) This section shall remain in effect until January 1,
2000 July 1, 2001 , and as of that date is
repealed unless a later enacted statute , that is enacted before
July 1, 2001, extends or repeals that date.
SEC. 6. The provisions of this act shall not, in any way, be
construed to create any precedent or requirement that would be
applicable to any other future timber harvest plan, sustained yield
plan, habitat conservation plan, or to otherwise restrict or prohibit
any other activity affecting forest resources that is currently
permitted under state law other than those plans or activities
that are subject to the requirements of this act .
SEC. 7. The provisions of this act are severable. If any
provision of this or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.
SEC. 8. This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:
In order to facilitate the acquisition of the Headwaters Forest
pursuant to the September 28, 1996, agreement between the Pacific
Lumber Company, the United States, and the State of California at the
earliest possible time, thereby permanently preserving in public
ownership the largest intact stand of ancient redwoods left in
private ownership, it is necessary that this act take effect
immediately.