[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Headwaters Forest Agreement



  Distributed to TAP-RESOURCES, a free Internet Distribution List
  (subscription requests to listproc@tap.org) 
  
  TAXPAYER ASSETS PROJECT - NATURAL RESOURCES POLICY ADVISORY
  (please distribute freely)
  
  TAP-RESOURCES
  October 2, 1996
  
  
  
  INTRODUCTION
  
  
  	The Clinton administration recently announced an agreement had 
  been forged to save the Headwaters Forest.  This agreement has been 
  praised by some government officials and condemned by many environmental 
  organizations, who want all 60,000 acres of the Headwaters Forest area 
  protected from logging.  Below is the text of the agreement.
  
  For more information on Headwaters and the Agreement, point your browser 
  to this address:  http://www.impactonline.org/baa/rallycry/
  
  
  Arthur Clark
  
  
  - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
  
                             AGREEMENT
  
    WHEREAS, MAXXAM Inc. ("Maxxam"), The Pacific Lumber
  Company, on behalf of itself, its subsidiaries and its affiliates
  ("Pacific Lumber," and together with MAXXAM, the "Pacific Lumber 
  Parties"), the United States of America ("United States") and the 
  State of California ("California") (all of the foregoing 
  collectively, the "Parties")have been negotiating a possible land 
  exchange of the Headwaters Forest for valuable federal and state 
  considerations; and
  
    WHEREAS, Pacific Lumber desires to obtain a permit under section
  10(a) of the Endangered Species Act ("ESA");
  
    WHEREAS, the United States Fish and Wildlife Service, and agency
  within the United States Department of the Interior, and the National
  Marine Fisheries Service, and agency within the United States
  Department of Commerce (collectively, the "Services"), are required to
  comply with their responsibilities under the ESA and the National
  Environmental Policy Act ("NEPA");
  
    WHEREAS, the Parties desire to seek resolution of the pending
  takings lawsuits and the possible land exchange by entering into this
  Agreement (the "Agreement");
  
  
    NOW, THEREFORE, the Parties agree as follows:
  
  1.The Pacific Lumber Parties will not enter the approximately 4,500
  acres of Pacific Lumber's timberlands commonly referred to as the
  Headwaters Forest (the "Headwaters Forest") or the approximately
  1,125 acres commonly referred to as the Elk Head Forest to conduct
  logging operations, including salvage logging (the "Moratorium"),
  provided that the Moratorium shall terminate, unless extended by
  agreement of the Parties, if within 10 months from the date of this
  Agreement (the "Expiration Date") the Parties have not achieved the
  following items to their respective satisfaction, such achievement to 
  be evidenced by written instrument(s) in form and substance 
  satisfactory to all of the Parties. The Parties agree to use their 
  respective best, good faith efforts to achieve such items:
  
    a.  Transfer of the Headwaters Forest and the Elk Head Forest to
  the United States and California in exchange for (i) the Exchanged Elk
  River Property (as defined below) and (ii) property and other
  consideration from both the United States and California (including 
  cash) having an aggregate fair market value of $300 million;
  
    b.  Acquisition by the United States and California of the
  approximately 9,600 acre Elk River Timber Company property ("Elk
  River Property") to serve, in part, as an additional buffer zone of
  approximately 1,845 acres (the "Preserved Elk River Property") for the
  Headwaters Forest, with the remaining approximately 7,755 acres (the
  "Exchanged Elk River Property") to serve as additional consideration to
  be received by Pacific Lumber in exchange for the Headwaters Forest
  and the Elk Head Forest under Subparagraph 1.a, above.
  
    c.  The Parties agree to use their respective best, good faith efforts
  to achieve expedited development and submission by Pacific Lumber
  and processing
  
    (i).by the United States of an incidental take permit ("Permit")
  under section 10(a) of the ESA, 16 U.S.C $A4; 1539(a), based upon a
  multi-species Habitat Conservation Plan ("HCP") covering the remaining
  lands of Pacific Lumber, the Exchanged Elk River Property, any other
  timberlands or timber harvesting rights acquired by Pacific Lumber as a
  result of the herein-described transactions (collectively, the 
  "Resulting Pacific Lumber Timber Property"), the Headwaters Forest and 
  the Elk River Forest, and
  
    (ii). by California of a Sustained Yield Plan ("SYP") covering
  the Resulting Pacific Lumber Timber Property.
  
    (iii). In order to facilitate processing of the Permit and SYP,
  the parties agree to follow the procedures set forth below:
  
    A.  Development of HCP. Pacific Lumber and the Services
  shall within 30 days of the date of this Agreement begin good faith
  negotiations for a multi-species HCP covering all of the Pacific Lumber
  Timber Property and the Elk River Property, including Headwaters
  Forest, the Elk Head Forest, and the buffer. Such HCP shall be
  prepared in full compliance with the requirements of the ESA and other
  applicable laws and regulations and shall be consistent with the
  regulations applicable to the critical habitat for the marbled 
  murrelet, 50 C.F.R $A4; 17.95(b). The HCP shall provide for the 
  management and harvest of the Resulting Pacific Lumber Timber Property 
  consistent with the requirements of the ESA and other applicable laws and 
  regulations. The HCP shall be subject to the Department of Interior's "No 
  Surprises" policy.
  
    B.  Submission of HCP and Application for Permit.  Withing 120 days from 
  the date of this Agreement, Pacific Lumber intends to submit to the 
  Services an application for a Permit and a proposed multi-species HCP 
  that covers the Headwaters Forest, the Elk Head Forest and the Resulting 
  Pacific Lumber Timber Property.
  
    C.  Review and Approval of the HCP and Permit. The Services will 
  expedite consideration of the application for the Permit and will use 
  their best efforts to review and decide upon the application for the 
  Permit as soon as practicable after Pacific Lumber submits the
  application to the Services. The Parties recognize and understand that
  the Services must make their decision on the application for the Permit
  based on sound science and in full compliance with the requirements of
  the ESA and all other applicable laws and regulations.
  
    D.  Public Involvement. The Parties understand that Pacific Lumber can, 
  by involving the public in the HCP planning process, facilitate early 
  public review of the HCP and expedite development and consideration of 
  the HCP. The Services are responsible for ensuring that the public 
  involvement requirements in the ESA, NEPA, and other applicable laws and 
  regulations are met.
  
    E.  NEPA Compliance. The Parties understand and agree that issuance of 
  an incidental take permit requires compliance with NEPA and that the 
  Services are responsible for this compliance. It is Pacific Lumber's 
  intent to submit an HCP that will not significantly affect the quality of 
  the human environment and to prepare a draft Environmental Assessment 
  ("EA") for review by the Services. The Services will (I) assist Pacific 
  Lumber in outlining the type of information required by the EA, (II) 
  independently evaluate the environmental issues, (III) make and changes 
  necessary, and (IV) take responsibility for the document's scope and 
  content. The Services will promptly advise Pacific Lumber if, at any 
  point, the Services believe an environmental impact statement ("EIS") is 
  required. The Parties will pursue the HCP and NEPA processes concurrently.
  
    F.  Submission Review and Approval of SYP. Pacific Lumber will submit 
  to the State of California a proposed SYP which (I) covers the Resulting 
  Pacific Lumber Timber Property, and which the Parties agree will be 
  amended to include and timberlands or timber harvesting rights received 
  by Pacific Lumber in Elk River Property, and (II) complies with the terms 
  and specifications to be agreed upon by Pacific Lumber and California as 
  soon as practicable, such agreement to be evidenced by an instrument in 
  form and substance satisfactory to Pacific Lumber and California (the 
  "SYP Terms Condition"). The State of California will expedite 
  consideration of such SYP upon its formal submission to California. Such 
  SYP shall provide for management and harvest, consistent with applicable 
  and legal requirement, of all the Resulting Pacific Lumber Timber 
  Property and shall be with respect to the marbled murrelet, the coho 
  salmon, the northern spotted owl and all other species specifically or 
  generally identified in the SYP (whether now or hereafter listed as 
  threatened or endangered under the laws of the United States or 
  California). The State of California shall use its best efforts to review 
  and approve the SYP.
  
    d.  The dismissal with prejudice at closing by Pacific Lumber of the
  following pending legal actions: Pacific Lumber Co. v. United States,
  No. 96-257L (Fed. Cls.) and Salmon Creek Corp. v. California Board of 
  Forestry, No. 96-CS-1057 (Cal. Super. Ct.), such dismissals to be 
  evidenced by instruments in form and substance satisfactory to each of 
  the parties to those cases.
  
    e.  All property furnished by the United States and/or California to
  Pacific Lumber pursuant to Subparagraph 1.a. having been freed of all
  mortgages, liens, pledges, security interests or encumbrances of any 
  kind (other than permitted encumbrances to be agreed upon by the Parties).
  
    f.  All consents, approvals, opinions, or similar items from third
  parties necessary to consummation of the transactions described in the
  Agreement having been furnished,
  
    g.  In addition to the documents and instruments specifically
  referred above, execution by the Parties of appropriate documents and
  instruments, in form and substance satisfactory to the Parties, 
  evidencing the transactions described in this Agreement.
  
  2.  It is a condition to the continued effectiveness of the Moratorium
  that the United States and/or California provide to Pacific Lumber,
  within 60 days of this Agreement, a list of property interests owned or
  controlled by the United States and/or California with a good faith
  estimated fair market value equal to or in excess of $300 million which
  are available and acceptable to pacific Lumber for exchange under
  Subparagraph 1.a. above (the "Presenting Properties"). Such list shall 
  be accompanied by sufficient background information (including, where
  available, appraisals and any other valuation information) regarding 
  the Presented Properties as will enable Pacific Lumber to make a
  determination as to the commercial viability of such property interests
  and the ability to monetize such property interests; Pacific Lumber 
  shall also be give access to enter and inspect such Properties. Should
  California and/or United States fail to perform the obligation within 
  120 days from the date of this Agreement, the Moratorium shall terminate. 
  If the United States and/or California do furnish the required amount and
  type of Presented Properties (together with access and sufficient
  information to evaluate the Properties) by such date, (a) the PArties 
  shall have a ten-day period of time commencing on the date that the
  Presented Properties list is provided during which to agree upon the
  procedures to be used in determine the fair market value of the
  Presented Properties (the "Appraisal Procedure Period"), such agreement 
  to be evidenced by an instrument in form and substance satisfactory to 
  all of the Parties, and (b) Pacific Lumber shall have an additional 
  30-day period following the Appraisal Procedure Period in which to 
  evaluate the Presented Properties (the "Evaluation Period"). If
  at the end of the Appraisal Procedure Period, all of the Parties hereto
  have failed to execute an instrument indicating their agreement as to 
  the procedures to be use in determining the fair market value of the
  Presented Properties, the Moratorium shall terminate. Furthermore, if 
  at the end of the Evaluation Period, Pacific Lumber has failed to identify
  $300 million in fair market value of Presented Properties which it 
  finds acceptable for exchange, the Moratorium shall terminate. The Parties
  further agree to supplement this Agreement to provide for an effective
  exchange at closing.
  
  3.  As soon as practicable, the Parties shall file appropriate joint
  motions to stay the litigation (the "Litigation") referenced in
  Subparagraph 1.d. above; provided, that each Party shall retain and
  have the right, at any point after the presentation of the Presented
  Properties list, to move to terminate the stay (a) at any time when the
  Moratorium has terminated, or (b) if such Party has a reasonable belief
  that the matters provided for under Paragraph 1 of the Agreement will
  not be achieved. The Parties also agree to cease and desist all 
  activities in connection with the Litigation, except as ordered by the 
  court, until the motions are granted.
  
  4.  All discussion relating to, or arising from, this Agreement, 
  including but not limited to all negotiations and final products shall be 
  subject to the Principles Governing Discussions dated August 23, 1996,
  notwithstanding and stated termination date thereof.
  
  5.  The exercise by any Party of its right of termination under this
  Agreement or to end the Moratorium shall be preceded by two weeks
  written notice to the other Parties.
  
  6.  It is agreed that the following shall each be a consideration to
  closing of this Agreement:
  
    a.  Completion of each of the matters described in Subparagraphs
  1.a., 1.b. and 1.d. through 1.g. above;
  
    b.  Approval of an HCP and SYP and issuance of a Permit, each
  in a form and substance satisfactory to Pacific Lumber, such 
  satisfaction to be evidenced by a written instrument by Pacific Lumber 
  satisfactory in form and substance to all of the Parties;
  
    c.  The issuance on or before the closing date by the Internal
  Revenue Service and the California Franchise Tax Board of closing
  agreements in form and substance sought by an satisfactory to the 
  Pacific Lumber Parties, setting forth acceptable federal and California 
  income tax consequences of the transactions;
  
    d.  The absence of a judicial decision in any litigation brought by
  third parties that and Party reasonably believes will significantly 
  delay or impair the transactions described in this Agreement; and
  
    c.  Approval by the Boards of Directors (and any special committee 
  thereof) of the applicable Pacific Lumber Parties, and as appropriate, 
  their affiliates, of the transactions described in this Agreement.
  
  7.  In the event that a claim or action is brought or threatened by a
  third party challenging the legality, enforceability or validity of 
  this Agreement, or any portion thereof, including the HCP, Permit or SYP,
  the Parties agree to cooperate and act in good faith to preserve 
  diligently this Agreement, HCP, Permit, or SYP against such third party 
  challenge.
  
    IN WITNESS WHEREOF, the Parties agree to the foregoing as of
  September __, 1996.
  
    THE UNITED STATES OF AMERICA
  
    By:
  
    THE STATE OF CALIFORNIA
  
    By:
  
    MAXXAM, INC.
  
    By:
  
    THE PACIFIC LUMBER COMPANY
  
    By:
  
  
  
  --------------------------------------------------------------
  TAP-RESOURCES is an Internet Distribution List provided by the
  Taxpayer Assets Project (TAP).  TAP was founded by Ralph Nader 
  to monitor the management of government property, including
  information systems and data, government funded R&D, spectrum,
  allocation, public lands and mineral resources, and other
  government assets.  TAP-RESOURCES reports on TAP activities
  relating to natural resources policy.  To obtain further
  information about TAP send a note to tap@tap.org.
  
  Subscription requests to: listproc@tap.org with the
  message:  subscribe tap-resources yourfirstname yourlastname
  ---------------------------------------------------------------
  Taxpayer Assets Project; P.O. Box 19367, Washington, DC  20036
  v. 202/387-8030; f. 202/234-5176; internet: tap@tap.org