The Junk Bond Boss Meets the Ancient Sequoia
This article is from the September/October 1996 issue of Dollars and Sense: The Magazine of Economic Justice available at http://www.dollarsandsense.org/archives/1996/0996seidenstein.html
This article is from the September/October 1996 issue of Dollars & Sense magazine.
Ancient redwoods are priceless, from an environmentalist's point of view, but now green activists are trying to attach a price tag to the trees in order to preserve them. Texas millionaire Charles Hurwitz controls one of the last groves of old-growth redwoods in private hands, and environmentalists are lobbying for a ždebt-for-natureÓ swap, with Hurwitz giving the trees to the U.S. government to pay back some of the $1.6 billion it spent bailing out a savings and loan Hurwitz managed into bankruptcy. Hurwitz says the government should either buy the land at fair market value, or get out of his way and let him log.
The direct action group Earth First! was the first to suggest that the Federal Deposit Insurance Corp. (FDIC) accept the redwoods of Pacific Lumber Company's Headwaters Forest in Northern California as payment for its 1988 bailout of depositors of Hurwitz's United Savings & Loan of Texas. In its usual fashion, Earth First! made the suggestion politely, at a 1993 demonstration at the FDIC's Washington, D.C. headquarters. A lot is at stake. The forest's Headwaters Grove is home to 1000-year-old redwoods standing hundreds of feet tall and shielding the habitats of the Northern spotted owl and other threatened and endangered species. It is a remnant of a forest that once blanketed the West Coast from Big Sur to southern Oregon, 96% of which has vanished under 150 years of liquidation logging.
Since the 1993 demonstration, Greenpeace, Sierra Club Legal Defense Fund, and Senators and Congresspeople have joined in the call for a ždebt-for-natureÓ swap. They are appealing to the FDIC, the Office of Thrift Supervision (OTS) and the Clinton Administration to negotiate forgiveness of all or part of Hurwitz's debt to the federal government in exchange for 57,000 to 76,000 acres of Headwaters Forest, to be placed into public hands for long-term protection.
Debt-for-nature swaps, although rare in the United States, are not unheard of. In 1988, the Bank of America gave the state of California a nature preserve in the northern part of the state, three other properties and $27 million to clear a debt of about $54 million. In the early 1990s, Howard Hughes' estate swapped wetlands near the Los Angeles Airport in exchange for state taxes due. Outside the United States, Third World countries have traded ecologically valuable resources to relieve debt. This controversial version of the swap has helped protect tropical forests and grasslands in Bolivia, parks on the island of Palawan in the Philippines and a dozen other sites.
A swap of S&L debt for nature seems like a far-fetched plan if you ask Richard Keeton, Hurwitz's lawyer. He took time out from his busy schedule, fielding lawsuits from people seeking his client's cash, to tell me in a good-natured way that any debt-for-nature idea is žbeating a dead horse.Ó Since his client is innocent of wrongdoing, he explained, there is no debt.
But it could be one of the FDIC's options, because of the convoluted and seemingly illegal connections Hurwitz created between his S&L and the go-go world of junk bond financing of the 1980s. Hurwitz bought the redwoods with his own swap ů the FDIC claims he buried his Texas S&L by having it buy junk bonds nobody wanted from Michael Milken's junk bond factory at Drexel, Burnham, Lambert in New York City. In turn, Milken helped Hurwitz engineer the takeover of Pacific Lumber and received his business issuing the junk bonds to pay for it.
The takeover has led to the equivalent of a work speedup in the forests. Because junk bonds are risky, or backed by assets of lower value, they burden the companies that issue them with high interest payments. To pay off the loans and interest on $600 million of junk bonds (and $300 million of bank loans) issued to pay for the company, Hurwitz has doubled Pacific Lumber's traditional rate of logging, sold off assets and allegedly raided the employee pension fund. Before the takeover, Pacific Lumber's relatively conservative harvesting practices had kept the forests healthy while other timber companies had destroyed theirs. But now the only thing that protects the Headwaters Grove from logging is an injunction won by an environmental group ů which is likely to end in September.
Junk Bonds for Sale Cheap
Last year, The Wall Street Journal described Hurwitz's United Savings and Loan of Texas as ža highflying thrift heavily involved in junk bonds, arbitrage and speculative real estate plays.Ó Its failure was one of the most costly of the S&L bailouts of the 1980s, and centrally involved in the junk bond crisis that cost the U.S. government $134 billion to clean up.
The S&L's complicated financial transactions with Hurwitz's Maxxam Corporation essentially freed up its federally insured deposits to fund Maxxam's hostile takeover of Pacific Lumber. In effect, the government argued in a 1991 lawsuit against Michael Milken, Hurwitz transferred the assets of the federally-insured S&L to Maxxam (see box). This suggests that Hurwitz and Maxxam Corporation acquired Pacific Lumber and Headwaters Forest illegally, and the takeover of the lumber company žled to the failure of the savings and loan and subsequent bailout,Ó as one environmental lawyer put it.
The Hurwitz camp categorically denies any wrongdoing. For one, they claim Hurwitz did not legally control United Savings & Loan. His lawyer also says that the FDIC cannot legally žsecond guessÓ today actions taken according to Hurwitz's best business judgment in the 1980s.
If the Suit Fits. . . File It
Charles Hurwitz is a wealthy man. He is principal shareholder and CEO of Maxxam, Inc., whose assets were recently estimated at $3.8 billion. Hurwitz, or Maxxam, own Kaiser Aluminum, Federated Development Company of New York, Pacific Lumber and United Financial Group, the former holding company of United Savings and Loan of Texas. Pacific Lumber owns 189,000 acres in Northern California plus two mills. The acreage includes nearly all old-growth redwoods in private hands, some 6,000 acres. Prime old-growth redwood trees, like many of the 300-foot giants in Headwaters Grove, are worth $100,000 each at the lumber yard.
But apparently Hurwitz owes a lot of people a lot of money ů and many are finally going after it. He has faced three shareholder suits linked to Pacific Lumber alone: one an attempt to block the takeover of Pacific Lumber, the second by Pacific Lumber's original shareholders who felt they had been sold out for a ludicrous price, and a third challenging his raid of the employee pension fund. In 1995, the FDIC, the Office of Thrift Supervision and a Humboldt County community activist filed three new suits against him.
FDIC v. Hurwitz, filed in August 1995, seeks a $250 million damage award from the financier directly; Maxxam is not named in the suit. It accuses Hurwitz of having United Savings & Loan buy junk bonds from Drexel in exchange for the firm financing his takeovers. He then hid the true condition of the S&L žby a pattern of deceptive financial reporting and balance sheet manipulation.Ó As it sunk deeper into a hole, the S&L increased its liabilities beyond legal limits, gambled on žcumbersome real estate projects with no realistic chance of success and invested in complex financial instruments which the officers understood poorly and which resulted in staggering losses to the association.Ó
The FDIC suit
Under Hurwitz's control, the financial condition of United Savings steadily deteriorated. As the institution's financial health plummeted, Hurwitz, senior officers and United Savings board members serving at Hurwitz's request undertook greater and greater risks until both the officers and board members žbecame entirely indifferent to losses the institution might incur,Ó the FDIC charged in its lawsuit against Hurwitz.
But according to FDIC chair Ricki Tigert-Helfer, the lawsuit cannot compel Maxxam, Pacific Lumber or their boards of directors to consider a debt-for-nature swap since they might decide to use other assets to satisfy their liability.
"Nevertheless," she added in a letter to Jill Ratner, a lawyer with the Rose Foundation for Communities and the Environment, "the FDIC is open to any appropriate settlement of its claim, including a debt-for-nature swap."
Additional pressure for a debt-for-nature swap came from yet another lawsuit, filed in January 1995 by Humboldt activist Robert Martel in U.S. District Court. It asks that Maxxam repay losses related to the Savings & Loan and that the judge award as much as $4.8 billion in damages on behalf of U.S. taxpayers.
Nearly a year later, in December 1995, the federal Office of Thrift Supervision filed 13 claims in administrative court charging Hurwitz, Maxxam, Federated Development and former and present directors of United Savings and Loan and its holding company with contributing to the failure of the S&L by turning it into ža vehicle for speculative, highly leveraged, high risk investmentsÓ from a traditional home mortgage lender. In order to keep financing takeovers while maintaining its stated net worth, the thrift had to sell off its assets.
The suit seeks civil penalties of more than $800,000, restitution and a ban on the financiers from working in the banking industry. Among its other claims: that the financiers failed to properly maintain the minimum net worth of the S&L, which regulators had made a condition for approving the merger of United Savings & Loan and another thrift in 1983; violated a ban against affiliated parties engaging in transactions when the S&L bought junk bonds from Drexel, Burnham, Lambert; failed to maintain the minimum capital required by law; and paid out žunsafe and unsoundÓ bonuses, settlements and severance packages to officers and directors.
Languishing and Dying in Congress
The U.S. Congress and the Clinton Administration are well aware of Headwaters and Hurwitz. In 1994, then-Representative Dan Hamburg (D-CA) introduced a bill in the House that authorized the U.S. Forest Service to begin negotiating with Pacific Lumber and other landowners of Headwaters to attach the forest to the Six Rivers National Forest. Although the bill eventually passed the House, the Senate version introduced by Barbara Boxer (D-CA) did not come up for a vote.
Hurwitz has a close ally in Frank Riggs (R-CA), the Congressman who defeated Hamburg in the Republican sweep of 1994. In June, Riggs was soundly rebuffed by his colleagues when he tried to win passage of a rider limiting enforcement of the Endangered Species Act on Pacific Lumber land. Perhaps Pacific Lumber was tired of being challenged by a local environmental group for its violations of environmental law. The Environmental Protection Information Center won nine suits that overturned Headwaters timber harvest plans.
The House also defeated a bill Riggs introduced that would have opened Headwaters to logging if negotiations between the Forest Service and the landowners fell through within an 18-month period.
Meanwhile, environmentalists, senators, representatives, Vice President Al Gore and high-level administrators in the departments of the Treasury and the Interior have been busy exchanging letters and holding meetings. One of the most hopeful meetings took place in February in Sacramento with Deputy Interior Secretary John Garamendi, California state officials and Hurwitz.
Searching for Cover
It's now June.
Pacific Lumber is busy logging. They have already cut a large swath through Headwaters Grove and logged significant portions of second-growth and residual-growth forest. Suits filed by the Environmental Protection Information Center have largely kept the chainsaws out of the most pristine groves, but the court injunction that currently protects the Headwaters Grove will probably be lifted in time for autumn logging.
The neighboring Elk River Timber has indicated it is willing to sell its land to public trust, but in the meanwhile is logging in a threatened species' habitat.
The Environmental Protection Information Center continues its legal battles, challenging a timber harvest plan along the South Fork Elk River drainage in a June lawsuit.
The FDIC suit against Hurwitz and his cohorts is pending in Judge Lynn Hughes' federal court in Houston, awaiting rulings on various motions, including one filed by Hurwitz's lawyers to dismiss the case. The Office of Thrift Supervision's suit is scheduled for a hearing in May 1997 in Houston, but OTS has not frozen Maxxam's assets, as it has the power to do if it thinks they will not be around once the lawsuit is over. Martel's suit seeking damages on behalf of U.S. taxpayers has been transferred, also to Texas.
One possible sign of hope: Deputy Interior Secretary Garamendi recently said that the federal and California governments are discussing with Hurwitz the acquisition of Headwaters Forest ů although they are not specifically talking about a debt-for-nature swap or settling the lawsuits. It will be several months before the public can expect to hear of a possible agreement.
That's about the time the young Coho salmon of Headwaters will be searching for rapidly declining cool waters and scarce adequate cover.