by Rick Coates

Outrageous. Disheartening. But, unfortunately, no longer surprising. After fourteen years of involvement in government environmental review, my naiveté is dead. Still, it was not without concern that I received four calls in the last three months. Calls about corruption. From insiders.

The first call was from a young man who had hired on to a prestigious environmental consulting firm in San Francisco. His specialty was toxicology. He had just received his doctorate and still retained the fresh idealism of youth. He was assigned a task analyzing water issues related to a construction project to be built by a major oil company. His findings, which were to be included in an Environmental Impact Report (EIR), turned up serious toxic pollution that might potentially delay or halt the project. His company had just asked him to alter his findings in order to protect their client, a company whose name virtually everyone on Earth would recognize. To his credit, he had resigned rather than falsely his data. Unfortunately, his firm had changed the results anyway and issued the report with his name on it. He was made to understand that if he complained, he would not get another job in the industry.

Least you think that this was unique, consider call number two from a scientific consultant who worked on a local conversion-of-timberland-to-grapes in Sonoma County. The consultant was pressured to conclude that there would be no significant damage to a particular watershed by the project. The evidence was clear. Flooding and erosion would increase, percolation to ground water would decrease. The wells of the neighbors would suffer. The salmon habitat in the creek was already degraded. Additional silt would destroy it. The scientist had resisted so another consultant was hired to do the job.

The third call was from a well respected scientist who told me a story of his graduate student days. He had worked on research for the National Forest Service while doing his doctoral work. His thesis advisor placed him in charge of an ongoing research project while he took several months off to work on another project for a private company. When the advisor returned, the results of the forestry research done by our hapless graduate student displeased him greatly. Apparently the results threatened the profits of the private company that the thesis advisor worked with. The graduate researcher was told to alter his findings or do without a doctoral degree. You will be happy to know that the doctoral candidate ultimately received his doctorate by appealing over the head of the advisor, but was prevented from publishing in the U.S. for many years. His advisor had positions on or connections with peer review boards of Journals in the field. Our hero is now much older and has over 50 peer-reviewed publications under his belt.

The fourth call came from an insider in a government agency charged with reviewing a local logging plan. He told me that his supervisor instructed him to get the plan approved that the review process was “taking too long and too many questions are being asked.” The project proponent had “too many friends in Washington and Sacramento that can hurt the agency.”

Before jumping to the conclusion that we just need to eliminate the unethical individuals in the system, consider the system itself. Private projects in California must undergo review in accord with the California Environmental Quality Act (CEQA). The responsibility for review is vested in State or local agencies. The California Departments of Forestry (CDF), Fish and Game, and Water Quality Control review logging and conversion plans. But these departments do not write up the actual plans. Project proponents pay a private Registered Professional Forester (RPF) or a forestry firm to write a logging plan. Because foresters and forestry firms compete with one another for this business, they are under financial pressure to cut corners and increase the cut any way they can. Those who don’t maximize profits for their clients soon loose out in the market place. Lax review and enforcement of the regulations by CDF encourages cheating.

The same arrangement is true of biology, geology and hydrology consulting firms working on EIRs or logging plans. Project proponents contract directly for the production of an EIR.

Section 21082.1 of CEQA requires that EIRs “be prepared directly by or under contract to” the government agencies doing the review. The agencies may then recoup the costs by charging the project proponents fees. But the Second District Court of Appeals in a stunning example of judicial activism ruled in the case Friends of La Vina v. County of Los Angeles that it was OK for project proponents to hire consultants directly so long as the agencies “review” their work and adopts it as their own.

Unfortunately, many of the agencies are so cozy with the industry which they regulate that they are disinterested in an objective review. CDF routinely accept the forester’s and consultant’s ridiculous assertions as “substantial evidence” without (and contrary to the requirements of CEQA) any data presented to back them. Without public involvement plans are virtually rubber stamped.

Until this dysfunctional relationship between the project proponents, their consultants and the agencies, changes we can expect that the foresters will continue to claim and CDF will continue to agree that disastrous logging plans will have “no significant environmental effects.”

Please write your California Senator and Assembly Member and ask that they sponsor legislation to change this insidious arrangement.

April 9, 2010

by Rick Coates

California Geological Survey (AKA Department of Mines and Geology) is failing to protect the public health and safety and public resources in collusion with the California Department of Forestry (AKA CalFire) . We have seen a series of disasters caused directly by logging conducted under Timber Harvest Plans (THPs) incorrectly approved by the CalFire and the California Geological Survey (CGS). Homes have been destroyed, water sources made unfit for human use, and fisheries destroyed. On several occasions, lives have been threatened.

This is a result of the inappropriate political influence of the timber industry on CalFire and CGS. At issue here is CGS’s failure to obey both statute and regulations (as outlined in detail below).

The problem is long-standing, pervasive and dangerous. I have been reviewing THPs for nearly 20 years and have noted clear misconduct by CGS in several respects. These problems fall into five categories:

1. CGS permits Registered Professional Foresters (RPF’s) to practice geology without a license.

2. CGS accepts RPF’s claims without substantial evidence in the THP record.

3. CGS uses taxpayer funds to provide consulting to RPF’s and the Companies they represent, fixing mistakes and doing geology that should have been done by an independent geologist.

4. CGS, after providing missing work, then “reviews” their own work, violating the principal of independent review.

5. CGS permits Geologists and Engineering Geologists to submit reports to THP review that are not in conformance with statute or regulation

I will consider each of these points in detail:

1. CGS permits Registered Professional Foresters (RPF’s) to practice geology without a license.

The Forest Practice Rules [Section 1034(x)(10)] require that an RPF provide a map with the location of known unstable area or slides in the THP. It does not, however, require or even permit him to locate them himself or evaluate their stability. That determination clearly falls within the expertise of a licensed geologist. [See Rules and Regulations of the Board for Geologists and Geophysicists, Section 3003(d) and (f)] Just as he must seek advice from other professionals in other areas when his expertise is limited, so the RPF must seek the expertise of a licensed geologists to determine the location of slides and unstable areas. Determination of the location and stability of slides clearly falls under the definition of “professional geological work” as defined in the Rules and Regulations of the Board for Geologists an Geophysicists [Article 1, Section 3003]. Only licensed Geologist or Engineering Geologists are permitted to do professional geological work..

The Forest Practice Act specifically states [Article I, Section 4514(c)] that neither the Board of Forestry nor its regulations may limit “the power of any state agency in the enforcement or administration of any provision of law which it is specifically authorized or required to enforce or administer.” Therefore, neither CGS nor CDF has any authority to determine what constitutes work that requires a licensed geologist. The Board of Geologists and Geophysicists has that authority.

Furthermore, the Professional Foresters Law [Section 752(b)] specifically limits the services an RPF may offer and notes that he may need to utilize the services of other qualified experts. Specifically included in the list of other experts is “geologists”. In addition, Section 772 of this same law makes it clear that the Board of Forestry does not have the authority to certify or license an RPF as a geologist. Add to that CCR, Title 14, Chapter 10, Section 1602(b) which states that “A Registered Professional Forester (RPF) shall perform forestry services only in those subjects in which he or she is competent by training or experience.” Once again “geologists” is listed among those whose services he may need to utilize.

Yet, in spite of the clear dictates of law, CGS routinely permits foresters to locate slides and determine their stability without the aid of a licensed Geologist or Engineering Geologist. The public has often been forced to hire a genuine geologist to review the information in THPs. Repeatedly determinations by foresters that CGS approved have been found to be professionally inadequate, inaccurate and incomplete. I have yet to see CGS reject a THPs geological evidence as incomplete or inaccurate without such a challenge from the public.

2. CGS accepts RPF’s claims without substantial evidence in the THP record.

THP review is a Certified Program under the California Environmental Quality Act (CEQA). The Act requires that conclusions of “no significant adverse environmental effect” be made on the basis of “substantial evidence in the record” of review. Statements without such backing are termed “conclusory” and courts have repeatedly ruled that approval of a THP based upon conclusory statements is an abuse of discretion. The RPF’s statements regarding the location and stability of slides is not considered “substantial evidence” because he is not qualified to make such determinations. Yet, CGS routinely accepts RPF conclusions despite the lack of a supporting geologic report by a licensed geologist. CEQA requires information in a THP be “site specific”. The only geologic evidence ever offered by an RPF is an outdated geologic map of a scale too large to determine site-specific slides.

3. CGS inappropriately uses taxpayer funds to provide consulting to RPF’s and the Companies they represent, fixing mistakes and doing geology that should have been done by an independent geologist.

It is not appropriate for a State agency to provide consulting services to a private party at taxpayer expense, especially when that agency is also charged with reviewing the profession adequacy of the work of that party or their consultant. Furthermore, the scope of geologic review on a logging plan by CGS is limited to conformance with professional standards, the requirements of law and regulation of a geologic report submitted with the plan.

Notwithstanding, CGS routinely and inadequately evaluates the geologic conditions on THPs doing some of the work that independent geologists should be doing. They pretend that it is “review” but the work they do exceeds the scope of that which a reviewer does. The work is more akin to a (deficient) geologic report. They rightly do not call their work a “report ” (they refer to it as a “memorandum”) because it does not meet the legal requirements of a geologic report. But neither does it meet the legal requirements of a “review”.

Forest Unlimited commissioned a report by Engineering Geologist Ray Waldbaum titled “Standard of Care For Engineering Geologic Investigation”. It reviews the adequacy of the geologic analysis for a specific logging plan, THP 1-06-008 SON and the CGS’s Geological “review” of that THP. It concludes that there is no legitimate geology presented in the THP for CGS to review and that the work done by CGS is contrary to CGS’s own guidelines and workshop for geologists.

4. CGS, after providing missing work, then “reviews” their own work, violating the principal of independent review.

It is not proper under regulations contained in Note 45 of 50 the Geology Board for the reviewer to provide the geologic work for the RPF and then “review” it himself. The task of a reviewer is to determine the qualifications of the contributor to the THP and the adequacy of their work. They are not to second guess the conclusions of the professional unless the conclusions clearly do not follow from the data provided. Because the only evidence presented by a licensed geologist is that done by CGS, this evaluation lacks any independent review.

5. CGS permits Geologists and Engineering Geologists to submit reports to THP review that are not in conformance with statute or regulation

After considerable effort CDF, CGS and the Board of Geologists and Geophysicists agreed on guidelines (actually regulations) governing the content of geological reports for Timber Harvest Plans. Specifically Note 45 (Guidelines For engineering Geologic Reports For Timber Harvesting Plans) and Note 50 (Factors Affecting Landslides in Forested Terrain) spell out what information must be included in a geologic report for THPs. In the rare instances that foresters actually submit such a report, CGS fails to insist that these regulations are complied with. Checking for compliance with the regulations is, of course, one of the main duties of a reviewer.