Supreme Court of California Justia
Docket No. S123659

Big Creek Lumber v. Cty. of Santa Cruz

Filed 6/29/06



IN THE SUPREME COURT OF CALIFORNIA



BIG CREEK LUMBER CO. et al.,

Plaintiffs

and

Appellants,

S123659

v.

Ct. App. 6 H023778

COUNTY OF SANTA CRUZ et al.,

Santa Cruz County Super. Ct.

Defendants and Appellants.

Nos. CV134816 & CV137992





We must decide whether two county zoning ordinances relating to the

permissible locations for timber operations are preempted by state forestry

statutes. Concluding they are not, we reverse the judgment of the Court of

Appeal.

Background

In 1999, the Board of Supervisors of the County of Santa Cruz (County)

adopted several ordinances that would have affected timber harvesting operations

in the County. As pertinent here, County’s ordinances restricted timber harvesting

to specified zone districts within the County (Santa Cruz County Res. No. 493-99

& Santa Cruz County Ord. No. 4577 (1999); hereafter the zone district ordinance),

barred timber harvesting operations in certain areas adjacent to streams and

residences (Santa Cruz County Ord. No. 4571 (1999); hereafter the stream

ordinance), and limited the parcels on which helicopter operations associated with

such harvesting could occur (Santa Cruz County Ord. No. 4572 (1999); hereafter

1


the helicopter ordinance). County also requested and obtained from the California

Coastal Commission a ruling certifying the zone district ordinance as an

amendment to County’s local coastal program.

Plaintiffs Big Creek Lumber Co. and Homer T. McCrary (jointly Big

Creek) and the Central Coast Forest Association, a nonprofit association of

landowners and forestry professionals in the County, filed a petition for writ of

mandate against County and the California Coastal Commission, challenging

County’s timber-related ordinances and the Commission’s certification of the zone

district ordinance as a local coastal program amendment. Plaintiffs’ petition

alleged that County’s and the California Coastal Commission’s actions violated

the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)

and County’s ordinances violated the doctrine of preemption.

The preemption claim was bifurcated and heard separately. The trial court

found in favor of plaintiffs except as to the zone district ordinance. On appeal, the

Court of Appeal invalidated County’s ordinances in their entirety. We granted

County’s petition for review of the Court of Appeal’s invalidation of the helicopter

and zone district ordinances.1

Discussion

The zone district ordinance amends County’s zoning laws to restrict timber

harvesting operations to areas zoned for timber production, mineral extraction

industrial, or parks, recreation and open space. The helicopter ordinance requires

that helicopter staging, loading, and servicing facilities associated with timber

operations be located either on a parcel of land zoned for timber harvesting or on a


1

Thus, the stream ordinance, which would have established a riparian no-

harvesting buffer zone around certain stream channels, is not at issue.

2

parcel adjacent to such, and within the boundaries of a timber harvesting plan that

has been approved by the California Department of Forestry and Fire Protection.

Plaintiffs argue that the ordinances are preempted by the Z’berg-Nejedly

Forest Practice Act of 1973 (FPA) (Pub. Resources Code, § 4511 et seq.)2 and the

California Timberland Productivity Act of 1982 (TPA) (Gov. Code, § 51100 et

seq.). For the following reasons, we conclude that County’s ordinances are not

preempted.

A.

Overview: State Forestry Law

1.

The Forest Practice Act

“Timber harvesting operations in this state must be conducted in

accordance with the provisions of the Forest Practice Act. The Act was intended

to create and maintain a comprehensive system for regulating timber harvesting in

order to achieve two goals” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th

1215, 1226): to restore, enhance, and maintain the productivity of timberlands

where feasible; and to achieve the maximum sustained production of high-quality

timber products, while giving consideration to values relating to recreation,

watershed, wildlife, range and forage, fisheries, regional economic vitality,

employment, and aesthetic enjoyment (ibid.; see § 4513).

As originally enacted in 1973, the FPA permitted individual counties to

adopt stricter rules and regulations governing timber operations than those

provided under the FPA. (Stats. 1973, ch. 880, § 4, pp. 1615-1616 [adding former

§ 4516].) In 1982, the Legislature amended the FPA (Stats. 1982, ch. 1561, § 3,

pp. 6164-6166) to provide instead that counties may recommend to the California


2

Except where otherwise noted, unlabeled section references are to the

Public Resources Code.

3

Board of Forestry and Fire Protection (Board) additional forest practice rules and

regulations (§ 4516.5, subds. (a), (b)) but, except with respect to performance

bonds or other surety for road protection, counties are forbidden to “regulate the

conduct of timber operations” (§ 4516.5, subd. (d); hereafter section 4516.5(d)).3

Pursuant to the FPA, “timber operations are controlled by means of a site-

specific timber harvesting plan that must be submitted to the [state forestry]

department before timber operations may commence.[4] (§§ 4581 and 4582.5.)

The Legislature has specified that the plan include the name and address of the

timber owner and the timber operator, a description of the land upon which the

work is proposed to be done, a description of the silviculture methods to be

applied, an outline of the methods to mitigate erosion caused by operations

performed in the vicinity of a stream, the provisions, if any, to protect any ‘unique

area’ within the area of operations, and the anticipated dates for commencement

and completion of operations. (§ 4582, subds. (a)-(g).)” (Sierra Club v. State Bd.

of Forestry, supra, 7 Cal.4th at p. 1226.) The director of the state forestry

department, and the Board on appeal, review timber harvesting plans for

compliance with the FPA and applicable regulations. (§ 4582.7.)


3

In its entirety, section 4516.5(d) states: “Except as provided in subdivision

(e) [Board may delegate to individual counties authority to require surety for road
protection], individual counties shall not otherwise regulate the conduct of timber
operations, as defined by this chapter, or require the issuance of any permit or
license for those operations.” Section 4516.5(d) does not apply to parcels smaller
than three acres not zoned as timberland production. (§ 4516.5, subd. (f).)

4

The FPA defines “timber operations” as “the cutting or removal or both of

timber . . . from timberlands for commercial purposes, together with all the work
incidental thereto, . . . but excluding preparatory work such as treemarking,
surveying, or roadflagging.” (§ 4527; see also § 4516.5, subd. (a).)

4



2.

The Timberland Productivity Act

The TPA, enacted in 1982 (Stats. 1982, ch. 1489, §§ 1-39, pp. 5748-5766),

reflects state policy, inter alia, “that timber operations conducted in a manner

consistent with forest practice rules adopted by the [Board] shall not be or become

restricted or prohibited due to any land use in or around the locality of those

operations” (Gov. Code, § 51102, subd. (b)).5 The TPA seeks to implement that

policy “by including all qualifying timberland in timberland production zones.”

(Id., § 51103.) “Timberland,” the Legislature has stated, “means privately owned

land, or land acquired for state forest purposes, which is devoted to and used for

growing and harvesting timber, or for growing and harvesting timber and

compatible uses, and which is capable of growing an average annual volume of

wood fiber of at least 15 cubic feet per acre.” (Id., § 51104, subd. (f).)

In order to accomplish its purposes, the TPA relies on tax incentives and

zoning mandates. The TPA restricts land in certain timberland production zones

(TPZ’s) to the growing and harvesting of timber and compatible uses. (See Gov.

Code, §§ 51115, 51118.) In exchange, owners of land in a TPZ benefit by lower


5

Government Code section 51102 in its entirety states: “(a) The Legislature

further declares that to fully realize the productive potential of the forest resources
and timberlands of the state, and to provide a favorable climate for long-term
investment in forest resources, it is the policy of this state to do all of the
following: [¶] (1) Maintain the optimum amount of the limited supply of
timberland to ensure its current and continued availability for the growing and
harvesting of timber and compatible uses. [¶] (2) Discourage premature or
unnecessary conversion of timberland to urban and other uses. [¶] (3) Discourage
expansion of urban services into timberland. [¶] (4) Encourage investment in
timberlands based on reasonable expectation of harvest. [¶] (b) The Legislature
further declares that it is the policy of this state that timber operations conducted in
a manner consistent with forest practice rules adopted by the State Board of
Forestry and Fire Protection shall not be or become restricted or prohibited due to
any land use in or around the locality of those operations.”

5

property tax valuations that reflect the enforceable statutory restrictions. (See Cal.

Const., art. XIII, § 8 [Legislature may tax certain land consistently with use

restrictions].)

The TPA’s predecessor statute (Stats. 1976, ch. 176, § 4.5, p. 305) dictated

“timberland preserve” zoning for certain “list A” parcels that were assessed for

growing and harvesting timber as the highest and best use. (Gov. Code, § 51110.)

Exceptions to mandatory zoning of list A properties were permitted where a parcel

in fact was not used for timber growing and harvesting, or where the owner

contested the zoning and local officials found exclusion to be in the public interest.

(Gov. Code, § 51112, subds. (a), (b).) Timberland preserve zoning also was

dictated for certain other timberlands, called “list B” parcels, that were not at that

time assessed for growing and harvesting timber as the highest and best use.

(Gov. Code, § 51110.1.)6 Exceptions to mandatory zoning of list B properties

were permitted only where local officials found exclusion to be in the public

interest. (Id., § 51112, subd. (c).) Initial determinations as to parcels’ placement

on list A and list B were to have been completed by 1978. (Id., subds. (a), (b),

(c).)

Since 1978, additional timberland production zoning has been initiated by

petition of the property owner. (Gov. Code, § 51113.) The TPA also provides for

rezoning and for removal of parcels from timberland production zoning. (See id.,

§§ 51120-51146.)


6

The “timberland preserve” designation was altered to “timberland

production” in 1984. (Stats. 1984, ch. 678, § 3, pp. 2497-2498, italics added.)

6

B. Preemption

Principles

The party claiming that general state law preempts a local ordinance has the

burden of demonstrating preemption. (See, e.g., Kucera v. Lizza (1997) 59

Cal.App.4th 1141, 1153.) We have been particularly “reluctant to infer legislative

intent to preempt a field covered by municipal regulation when there is a

significant local interest to be served that may differ from one locality to another.”

(Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 707; see also Great Western

Shows, Inc. v. County of Los Angeles (2002) 27 Cal.4th 853, 866-867.) “The

common thread of the cases is that if there is a significant local interest to be

served which may differ from one locality to another then the presumption favors

the validity of the local ordinance against an attack of state preemption.” (Gluck v.

City of Los Angeles (1979) 93 Cal.App.3d 121, 133, citing, inter alia, Galvan v.

Superior Court (1969) 70 Cal.2d 851, 862-864.)

Thus, when local government regulates in an area over which it

traditionally has exercised control, such as the location of particular land uses,

California courts will presume, absent a clear indication of preemptive intent from

the Legislature, that such regulation is not preempted by state statute. (See IT

Corp. v. Solano County Bd. of Supervisors (1991) 1 Cal.4th 81, 93.) The

presumption against preemption accords with our more general understanding that

“it is not to be presumed that the legislature in the enactment of statutes intends to

overthrow long-established principles of law unless such intention is made clearly

to appear either by express declaration or by necessary implication.” (County of

Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644; accord, People v. Davenport

(1985) 41 Cal.3d 247, 266; Theodor v. Superior Court (1972) 8 Cal.3d 77, 92.)7

7

An analogous presumption against preemption is well established in federal

law, in that “[t]he party who claims that a state statute is preempted by federal law


(footnote continued on next page)

7

Moreover, the “general principles governing state statutory preemption of

local land use regulation are well settled. ‘The Legislature has specified certain

minimum standards for local zoning regulations (Gov. Code, § 65850 et seq.)’

even though it also ‘has carefully expressed its intent to retain the maximum

degree of local control (see, e.g., id., §§ 65800, 65802).’ (IT Corp. v. Solano

County Bd. of Supervisors[, supra,] 1 Cal.4th [at p.] 89.) ‘A county or city may

make and enforce within its limits all local, police, sanitary, and other ordinances

and regulations not in conflict with general laws.’ (Cal. Const., art. XI, § 7, italics

added.) ‘ “Local legislation in conflict with general law is void. Conflicts exist if

the ordinance duplicates [citations], contradicts [citation], or enters an area fully

occupied by general law, either expressly or by legislative implication

[citations].” ’ ” (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 747.)

Local legislation is “duplicative” of general law when it is coextensive

therewith and “contradictory” to general law when it is inimical thereto. Local

legislation enters an area “fully occupied” by general law when the Legislature has

expressly manifested its intent to fully occupy the area or when it has impliedly


(footnote continued from previous page)

bears the burden of demonstrating preemption. [Citation.] An important corollary
of this rule, often noted and applied by the United States Supreme Court, is that
‘[w]hen Congress legislates in a field traditionally occupied by the States, “we
start with the assumption that the historic police powers of the States were not to
be superseded by the Federal Act unless that was the clear and manifest purpose
of Congress.
” ’ ” (Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943, 956-957,
citing numerous authorities and quoting California v. ARC America Corp. (1989)
490 U.S. 93, 101.) The high court has acknowledged, moreover, that this
“presumption applies both to the existence of preemption and to the scope of
preemption.” (Bronco Wine Co. v. Jolly, at p. 957, citing Mediatronic, Inc. v.
Lohr
(1996) 518 U.S. 470, 485.)

8

done so in light of recognized indicia of intent. (Great Western Shows, Inc. v.

County of Los Angeles, supra, 27 Cal.4th at pp. 860-861.)

C.

The Zone District Ordinance

Plaintiffs contend the zone district ordinance is preempted by section

4516.5(d) of the FPA. With exceptions not relevant here, section 4516.5(d)

provides that individual counties shall not “regulate the conduct of timber

operations . . . or require the issuance of any permit or license for those

operations.” As neither ordinance at issue requires the issuance of any permit or

license, this case concerns the import of the statutory phrase “conduct of timber

operations.”

In Big Creek Lumber Co. v. County of San Mateo (1995) 31 Cal.App.4th

418, 428 (Big Creek v. San Mateo), the Court of Appeal held that section

4516.5(d) does not deprive California counties of authority to zone timberland

outside TPZ’s for uses other than timber production. The Court of Appeal

acknowledged that section 4516.5(d) mandates that the “conduct” of timber

harvesting operations be governed exclusively by state law, but held that San

Mateo County’s ordinance, which restricted the location of non-TPZ commercial

timber harvesting, did not offend the statute because it spoke “not to how timber

operations may be conducted, but rather [to] where they may take place.” (Big

Creek v. San Mateo, at pp. 424-425.) The court also noted that numerous

provisions of California forestry law reveal the Legislature’s intention to preserve

local zoning authority. (See id. at pp. 425-426, citing statutes.) Harmonizing the

FPA and the TPA, the court concluded that “the Legislature did not intend to

preclude counties from using their zoning authority to prohibit timber cutting on

lands outside TPZ’s.” (Id. at p. 426.) For the following reasons, we agree.

9



1. Traditional

local zoning power

Land use regulation in California historically has been a function of local

government under the grant of police power contained in article XI, section 7 of

the California Constitution.8 “We have recognized that a city’s or county’s power

to control its own land use decisions derives from this inherent police power, not

from the delegation of authority by the state.” (Devita v. County of Napa (1995)

9 Cal.4th 763, 782.) And the Legislature, when enacting state zoning laws, has

declared its “ ‘intention to provide only a minimum of limitation in order that

counties and cities may exercise the maximum degree of control over local zoning

matters.’ ” (Ibid., quoting Gov. Code, § 65800.)9

Thus, “[t]he power of cities and counties to zone land use in accordance

with local conditions is well entrenched.” (IT Corp. v. Solano County Bd. of

Supervisors, supra, 1 Cal.4th at p. 89.) “In enacting zoning ordinances, the

municipality performs a legislative function, and every intendment is in favor of

the validity of such ordinances.” (Lockard v. City of Los Angeles (1949) 33 Cal.2d

453, 460.)


8

Article XI, section 7 of the California Constitution provides in its entirety:

“A county or city may make and enforce within its limits all local, police, sanitary,
and other ordinances and regulations not in conflict with general laws.”

9

Government Code section 65800 provides in its entirety: “It is the purpose

of this chapter [i.e., chapter 4, Zoning Regulations] to provide for the adoption and
administration of zoning laws, ordinances, rules and regulations by counties and
cities, as well as to implement such general plan as may be in effect in any such
county or city. Except as provided in Article 4 (commencing with Section 65910
[open-space zoning ordinance] and in Section 65913.1 [zoning sufficient land for
residential use] the Legislature declares that in enacting this chapter it is its
intention to provide only a minimum of limitation in order that counties and cities
may exercise the maximum degree of control over local zoning matters.”

10



2. Express

preemption

In the FPA, the Legislature directed the Board to divide the state into

districts (§ 4531) and adopt “forest practice rules and regulations” for each district

(§ 4551).10 No timber operations may be conducted without submission of a

timber harvesting plan and approval by the Director of Forestry and Fire

Protection or by the Board on appeal. (§§ 4581-4582, 4582.7; see generally Big

Creek v. San Mateo, supra, 31 Cal.App.4th at p. 424.) And, as noted, while

individual counties may recommend regulations to the Board (§ 4516.5, subd. (a)),

they may not regulate the conduct of timber operations (§ 4516.5(d)). The

question of express preemption turns on whether the field the Legislature has

occupied in so providing encompasses the County’s zone district ordinance. (See

Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 748.) Our primary

task when interpreting a statute is to determine the Legislature’s intent. (Brown v.

Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 724.) We turn first to the statutory

language, since the words the Legislature chose are the best indicators of its intent.

(Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826.)

Section 4516.5(d) contains no express reference to “zoning,” nor does it bar

localities in terms from regulating the location of timber operations. Rather,


10

Such rules and regulations “apply to the conduct of timber operations and

shall include, but shall not be limited to, measures for fire prevention and control,
for soil erosion control, for site preparation that involves disturbance of soil or
burning of vegetation following timber harvesting activities conducted after
January 1, 1988, for water quality and watershed control, for flood control, for
stocking, for protection against timber operations which unnecessarily destroy
young timber growth or timber productivity of the soil, for prevention and control
of damage by forest insects, pests, and disease, for the protection of natural and
scenic qualities in special treatment areas . . . and for the preparation of timber
harvesting plans.” (§ 4551.5.)

11

counties are forbidden to “regulate the conduct” of timber operations. As the court

in Big Creek v. San Mateo pointed out, in common parlance an ordinance that

avoids speaking to how timber operations may be conducted and addresses only

where they may take place falls short of being “a clear attempt to regulate the

conduct” thereof. (Big Creek v. San Mateo, supra, 31 Cal.App.4th at p. 424; cf.

Desert Turf Club v. Board of Supervisors (1956) 141 Cal.App.2d 446, 452 [that

state has occupied field of horse racing regulation does not deprive county of right

to adopt zoning restrictions on placement of racetracks].) Nevertheless, as the

Court of Appeal below recognized, to the extent zoning by definition may have the

consequence of excluding logging from some locations, it may in that sense be

said to “regulate” that activity, at least in the excluded locations.

When as here a statute is susceptible to more than one reasonable

interpretation, “we look to ‘extrinsic aids, including the ostensible objects to be

achieved, the evils to be remedied, the legislative history, public policy,

contemporaneous administrative construction, and the statutory scheme of which

the statute is a part.’ ” (Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25

Cal.4th 508, 519; see also IT Corp. v. Solano County Bd. of Supervisors, supra,

1 Cal.4th at p. 98.) In this case, such indicia support the construction of section

4516.5(d) adopted by the Court of Appeal in Big Creek v. San Mateo, supra, 31

Cal.App.4th 418.

First, in many places where it addresses timberland zoning, general state

forestry law expressly preserves and plainly contemplates the exercise of local

authority. The actual designation of TPZ’s, for example, is left to local action.

(Gov. Code, § 51104, subds. (a), (c), (g); see, e.g., id., §§ 51112 [on or before

March 1, 1977 (list A); on or before March 1, 1978 (list B)] and 51113 [current].)

Owners of parcels desiring TPZ zoning must petition local authorities. (Id.,

§ 51113, subd. (a)(1).) If the parcel does not meet state timber stocking standards

12

and forest practice rules, the owner must agree to do so within five years (id.,

subd. (c)(3)(A)), and, if the owner fails to do so, local authorities are empowered

to rezone the parcel (ibid.) and to “specify a new zone for the parcel, which is in

conformance with the county general plan and whose primary use is other than

timberland” (id., subd. (c)(3)(B)). Additionally, local bodies are authorized in

certain circumstances to rezone TPZ parcels (Gov. Code, § 51120, subd. (c)) or

convert them to another use (id., § 51133, subd. (b)).

“Thus, it is clear that the Legislature has deferred a number of important

zoning decisions to local authority, even in the case of TPZ’s.” (Big Creek v. San

Mateo, supra, 31 Cal.App.4th at p. 425.) Certainly neither the TPA nor the FPA

suggests localities are restricted in what uses they may prohibit outside TPZ zones.

(Big Creek v. San Mateo, at p. 428.) “Nowhere in the statutory scheme,” in fact,

“has the Legislature expressly prohibited the use of zoning ordinances” (id. at

p. 425).

Second, section 4516.5(d)’s terminology is not “so overshadowing that it

obliterates all vestiges of local power as to a subject where municipalities have

traditionally enjoyed a broad measure of autonomy.” (Waste Resource

Technologies v. Dept. of Public Health (1994) 23 Cal.App.4th 299, 306

[discussing authority to grant refuse disposal permits].) That the Legislature

intended the phrase “regulate the conduct” in section 4516.5(d) to preclude only

local regulations that affect how timber operations are conducted is borne out by

the kinds of issues the Board, under the rubric of “the conduct of timber

operations,” is in its rules and regulations statutorily required to address. (See

§ 4551.5.) Fire prevention and control, soil erosion control, site preparation, water

quality and watershed control, flood control, disease prevention and control

(ibid.)—these clearly are matters relating to the process of carrying out timber

operations. (See Big Creek v. San Mateo, supra, 31 Cal.App.4th at p. 426.)

13

Third, the legislative history of the FPA does not support plaintiffs’

expansive reading of section 4516.5(d). Although plaintiff Big Creek suggests the

Legislature’s purpose was to substitute for local regulation procedures whereby

the Board would adopt rules addressing local concerns, the available legislative

history contains “no discussion of county zoning authority or its relation to

regulation of the ‘conduct’ of logging operations.” (Big Creek v. San Mateo,

supra, 31 Cal.App.4th at pp. 426-427.)

Of greater import is that section 4516.5(d) was added to the FPA during the

same legislative session in which the TPA was enacted. (See Stats. 1982,

ch. 1561, § 3, p. 6164 [adding § 4516.5] and id., ch. 1489, pp. 5748-5766 [adding

TPA].) That the Legislature would, in the same legislative session, include in one

general forestry statute numerous provisions that rely upon local zoning authority

(see, e.g., Gov. Code, §§ 51113, 51133, 51120) and when amending another

general forestry statute forbid localities’ exercise of such authority seems unlikely.

(See Garvey v. Byram (1941) 18 Cal.2d 279, 282 [concerning reenactment of

former Pol. Code § 3817 with minor amendments during the same legislative

session in which former Pol. Code § 3834.25 was enacted]; People v. Black (1982)

32 Cal.3d 1, 7-8 [provisions relating to same subject enacted at same legislative

session should be consistently construed].)

The history of the legislation that added section 4516.5(d) to the FPA

confirms that one of its purposes was to influence local zoning agencies in the

exercise of their authority. A TPZ designation puts county residents on notice that

timber operations are expected to occur on the parcel (Gov. Code, § 51115.1,

subd. (b)), inter alia to discourage expansion of urban services into timberland (id.,

§ 51102, subd. (a)(3)). By restricting timber harvesting to timberland production,

mineral extraction industrial, and park, recreation and open space zone districts,

County’s zone district ordinance encourages non-TPZ timberland owners who

14

desire to harvest their timber to rezone their property to one of these permitted

zone districts. This in turn advances the Legislature’s objective of “including all

qualifying timberland in timberland production zones” (id., § 51103).

Fourth, construing section 4516.5(d) so as to encompass every local

regulation of timber operations without regard to whether the regulation purports

to control the process or manner of carrying out such operations would not

account for the Legislature’s having included the phrase “the conduct of” in the

FPA’s express preemption provision. As the United States Supreme Court has

reminded us, “ ‘each phrase within [an express preemption provision] limits the

universe of [local action] pre-empted by the statute.’ ” (Lorillard Tobacco Co. v.

Reilly (2001) 533 U.S. 525, 550-551, italics added.) Plaintiffs’ proposed reading

of section 4516.5(d) would give the phrase “the conduct of” no limiting effect on

the universe of local action preempted by that statute.

Plaintiffs’ reading of section 4516.5(d) also would violate the fundamental

rule that “[c]ourts should give meaning to every word of a statute if possible, and

should avoid a construction making any word surplusage” (Arnett v. Dal Cielo

(1996) 14 Cal.4th 4, 22). One effect of plaintiffs’ reading would be to render the

FPA’s definition of “timberland” (see § 4526) partly surplusage. As previously

noted, for the purposes of the FPA (with exceptions not pertinent), “timberland”

means “land . . . which is available for, and capable of, growing a crop of trees of

any commercial species used to produce lumber and other forest products” (ibid.).

The phrase “available for” would be superfluous if the definition were read to

include any land that is capable of growing qualified trees, but that is what

plaintiffs implicitly urge by suggesting that section 4516.5(d) displaces counties’

traditional power to declare which parcels among all those capable of growing

trees are available for timbering.

15

When the Legislature wishes expressly to preempt all regulation of an

activity, it knows how to do so. For example, the Legislature has provided in the

TPA that “[p]arcels zoned as timberland production [i.e., located in TPZ’s] shall

be zoned so as to restrict their use to growing timber and to compatible uses. The

growing and harvesting of timber on those parcels shall be regulated solely

pursuant to state statutes and regulations.” (Gov. Code, § 51115, italics added.)

One implication of this provision, of course, is that the growing and harvesting of

timber on non-TPZ parcels need not be regulated solely pursuant to state statutes

and regulations.

Moreover, to read section 4516.5(d) as precluding all local zoning control

over timber operations could lead to absurd results. Such a reading, for example,

apparently would require cities and counties to allow commercial logging even in

residential districts. Neither the language of the statute nor its legislative history

supports such a reading. (See Big Creek v. San Mateo, supra, 31 Cal.App.4th at

p. 427.)

The Legislature has had ample opportunity over the past decade to amend

section 4516.5(d) to abrogate or modify the Court of Appeal’s construction of the

statutory phrase “regulate the conduct of timber operations” in Big Creek v. San

Mateo. Yet, notwithstanding it has amended the FPA in numerous other

particulars every year since that decision was filed, it has not done so. Several

California judicial decisions, moreover, have relied on Big Creek v. San Mateo in

the intervening years.11 “ ‘Where a statute has been construed by judicial

11

See City of Malibu v. Santa Monica Mts. Conservancy (2002) 98

Cal.App.4th 1379, 1384-1385 (comprehensive zoning is legitimate exercise of
local government’s police power); Placer Ranch Partners v. County of Placer
(2001) 91 Cal.App.4th 1336, 1341 (zoning “buffers are among the tools counties
may use in the interest of sound community planning”); Burchett v. City of


(footnote continued on next page)

16

decision, and that construction is not altered by subsequent legislation, it must be

presumed that the Legislature is aware of the judicial construction and approves of

it.’ ” (Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 353.) The Legislature’s

failure to amend section 4516.5(d), while not conclusive, “may be presumed to

signify legislative acquiescence” in the Big Creek v. San Mateo decision. (People

v. Leahy (1994) 8 Cal.4th 587, 604, citing numerous authorities.)12

For the foregoing reasons, we agree with the Court of Appeal in Big Creek

v. San Mateo that “the ‘conduct’ of timber harvesting operations is exclusively

governed by state law. ‘Conduct’ [however] is not given a specialized definition

in the FPA. Its ordinary meaning is ‘the act, manner, or process of carrying out

(as a task) or carrying forward (as a business, government, or war).’ ” (Big Creek


(footnote continued from previous page)

Newport Beach (1995) 33 Cal.App.4th 1471, 1482 (same). See also Westhaven
Community Development Council v. County of Humboldt
(1998) 61 Cal.App.4th
365, 369, footnote 5 (TPA “requires cities and counties to zone described
timberlands as ‘timberland production zones,’ or TPZ’s”), 370 (distinguishing Big
Creek v. San Mateo
as not addressing local permit requirements).

12

The dissent complains that we fail to address former section 4516.5,

subdivision (e) (the sunset provision), asking rhetorically, “Why would the
Legislature declare all county ordinances, rules, or regulations regarding timber
operations null and void in former section 4516.5, subdivision (e), if in the
preceding subdivision it only sought to limit local authority over how timber
harvesting could take place?” (Dis. opn., post, at p. 6.) Assuming only for the
sake of argument that the dissent accurately characterizes the sunset provision’s
impact on the 1982 legal landscape in which it was enacted, we decline to
speculate on what policy goals a Legislature besieged by competing economic and
other interests might have been seeking to maximize during the period both
provisions were the law. The issue before us today is the meaning of current
section 4516.5(d). As the dissent acknowledges, the sunset provision was repealed
by the Legislature in 1984. (See dis. opn., post, at p. 6, fn. 3, citing Stats. 1984,
ch. 1446, § 1, pp. 5059-5060.) The ordinances at issue in this case were adopted
in 1999, so obviously the sunset provision can have no direct application to them.

17

v. San Mateo, supra, 31 Cal.App.4th at p. 426.) Accordingly, local zoning

ordinances, like the County’s zone district ordinance, that speak to the location of

timber operations but not to the manner in which they are carried out, are not

expressly preempted by section 4516.5(d).

3. Implied

preemption

The Legislature’s “preemptive action in specific and expressly limited areas

weighs against an inference that preemption by implication was intended

elsewhere.” (IT Corp. v. Solano County Bd. of Supervisors, supra, 1 Cal.4th at

p. 95; see also Cippolone v. Liggett Group (1992) 505 U.S. 504, 517 [“Congress’

enactment of a provision defining the pre-emptive reach of a statute implies that

matters beyond that reach are not pre-empted”].) In addition, and specifically

pertinent here, “[p]reemption by implication of legislative intent may not be found

when the Legislature has expressed its intent to permit local regulations.

Similarly, it should not be found when the statutory scheme recognizes local

regulations.” (People ex rel. Deukmejian v. County of Mendocino (1984) 36

Cal.3d 476, 485.)

Both these bars to implied preemption are present. By expressly

preempting local regulations targeting the conduct of timber operations, section

4516.5(d) implicitly permits local regulations addressed to other aspects of timber

operations. And, as has been explained, general forestry law―in particular, the

TPA―expressly recognizes local zoning authority. Notwithstanding we might,

therefore, forgo applying the test for implied preemption applicable when state

statutes do not recognize local regulations, applying that test buttresses our

conclusion that County’s ordinances are not preempted.

“In determining whether the Legislature has preempted by implication to

the exclusion of local regulation we must look to the whole purpose and scope of

the legislative scheme.” (People ex rel. Deukmejian v. County of Mendocino,

18

supra, 36 Cal.3d at p. 485.) Implied preemption occurs when: (1) general law so

completely covers the subject as to clearly indicate the matter is exclusively one of

state concern; (2) general law partially covers the subject in terms clearly

indicating a paramount state concern that will not tolerate further local action; or

(3) general law partially covers the subject and the adverse effect of a local

ordinance on transient citizens of the state outweighs the possible municipal

benefit. (Ibid.)

(a) Complete

coverage

Plaintiffs contend the Legislature has demonstrated its intent to preempt all

local restrictions on timber harvesting by fully occupying the field of timber

harvesting regulation. Plaintiffs first note the Legislature’s statement of intent,

when enacting the FPA, “to create and maintain an effective and comprehensive

system of regulation and use of all timberlands.” (§ 4513.) Invoking the maxim

expressio unius est exclusio alterius, they argue that certain provisions of the FPA

recognizing limited local authority to regulate timber operations indicate that local

authority is otherwise preempted.13 But as County points out, the Legislature

adopted section 4513 at the same time it adopted a provision authorizing counties

to adopt timber harvest rules and regulations stricter than the state’s rules (Stats.

1973, ch. 880, § 4, pp. 1615-1616 [adding former § 4516]), so the general


13

See, e.g., sections 4516.5, subdivision (f) (counties may regulate conduct of

timber operations on “any land area of less than three acres and which is not zoned
timberland production”), 4516.5, subdivision (e) (counties may “require
performance bonds or other surety for the protection of roads”), and 4584,
subdivision (j)(4) (timber operations exempted by Board from FPA for fuelbreak
maintenance “shall conform” inter alia to “implementing ordinances, and . . .
zoning ordinances”).

19

statement of intent in section 4513 cannot have been intended to preempt local

restrictions by occupying the field.

Moreover, plaintiffs’ “expressio unius” argument implicitly assumes the

statutory preemption of local rules that regulate the conduct of timber operations

encompasses geographic zoning restrictions on the location of such operations.

But because, as demonstrated, section 4516.5(d) does not have that broad

meaning, the Legislature had no need to exempt traditional county zoning power

from the section’s preemptive scope; hence, the presence of statutory exceptions to

FPA preemption demonstrates nothing about the Legislature’s intent respecting

counties’ exercise of that power.

To summarize, general forestry law preempts local regulation of the

conduct of timber operations but otherwise expressly contemplates retention of

local zoning authority. “[L]ocalities must designate certain lands as TPZ’s. These

zones are dedicated to timber growing and harvesting, and localities may not

prohibit logging on them. As to other lands that may contain timber, the TPA

expressly reaffirms local authority to choose appropriate zoning. Local legislative

bodies retain authority to exclude from the TPZ’s certain parcels when they

believe exclusion is in the public interest. [Citation.] Localities also retain the

authority to choose the non-TPZ zones into which excluded or removed parcels

are placed.” (Big Creek v. San Mateo, supra, 31 Cal.App.4th at p. 428.)

We observe, further, that California’s Planning and Zoning Law (Gov.

Code, § 65000 et seq.) contemplates the continuation of local government’s

traditional zoning authority in connection with timber resources. In adopting that

law, the Legislature specified that localities should “exercise the maximum degree

of control over local zoning matters” (id., § 65800), inter alia by designating the

“location and extent of the uses of the land” (id., § 65302, subd. (a)) and including

the “conservation, development, and utilization of . . . forests” in their general

20

plans (id., subd. (d)). The Planning and Zoning Law also requires counties to

adopt in their general plans land use elements that “[d]esignate, in a land use

category that provides for timber production those parcels of real property zoned

for timberland production pursuant to the [TPA]” (id., subd. (a)(1), italics added),

thus implicitly acknowledging the potential for locally designated land use

categories that do not provide for timber production.

In sum, this is not a case in which “the subject matter [of where logging can

occur] has been so fully and completely covered by general law as to clearly

indicate that it has become exclusively a matter of state concern.” (People ex rel.

Deukmejian v. County of Mendocino, supra, 36 Cal.3d at p. 485.)



(b)

Partial coverage/paramount state concern

Plaintiffs argue that even if the state has not fully occupied the field of

timber operations regulation, it has a paramount interest in determining the

location of such operations. They point to the FPA’s requirements that the Board

adopt rules and regulations governing the conduct of timber operations (§ 4551.5),

that any person seeking to conduct timber operations submit and have approved a

timber harvesting plan (§ 4581), and that such plans contain a “description of the

land on which the work is proposed to be done” (§ 4582, subd. (c)). They point

also to the Board’s enactment of several rules that restrict the harvesting activities

that may be conducted in particular types of terrain.

We disagree with plaintiffs that either the Legislature’s having directed the

Board to adopt rules governing the conduct of timber operations or the Board’s

having adopted such rules, impliedly displaces (any more than it expressly does

so) traditional local authority to zone permissible (non-TPZ) locations for timber

operations. Surely, “[l]ogging, even when conducted according to state

regulations, may have some impacts properly addressed by the [local] zoning

authority. That the state has sought to reduce and control these same occurrences

21

through general regulation does not preempt local zoning control, any more than

the state and federal regulation of industrial air pollution would preclude a local

zoning authority from relying on air pollution as a reason for excluding industrial

plants from residential districts.” (Big Creek v. San Mateo, supra, 31 Cal.App.4th

at p. 427.)

The Attorney General reached a similar conclusion over 30 years ago, when

addressing analogous circumstances. (See County Zoning Ordinances, 52

Ops.Cal.Atty.Gen. 138 (1969).) Asked whether a Marin County zoning ordinance

purporting to bar “commercial logging, mining, quarrying, and drilling, together

with all associated uses, activities and structures, in certain areas of the county”

(id. at p. 139) was preempted by general state laws (including forestry laws)

governing the zoned activities, the Attorney General concluded it was not. “It is

true,” the Attorney General reasoned, “that California has numerous laws

regulating each of the activities prohibited by the proposed ordinance. However,

these laws do nothing to preclude an otherwise valid zoning ordinance which

prohibits extraction of the resource in question.” (Id. at pp. 139-140.)

Specifically with respect to “the field of commercial logging” (County

Zoning Ordinances, supra, 52 Ops.Cal.Atty.Gen. at p. 140), the Attorney General

in evaluating Marin County’s ordinance stated: “The Forest Practice Act [then

§§ 4521-4618], together with the forest practice rules . . . comprehensively

regulate forest practices [so as to] occupy the entire field [of forest practices] and

local ordinances with respect to such general practices, are invalid due to such

preemption. . . . In our opinion, however, this pre-empted area is not so broad as

to invalidate a zoning ordinance which prohibits logging where such prohibition is

otherwise reasonable.” (Ibid.)

For similar reasons we conclude that today’s general forestry statutes and

regulations fall short of “indicat[ing] clearly that a paramount state concern will

22

not tolerate further or additional local action” (People ex rel. Deukmejian v.

County of Mendocino, supra, 36 Cal.3d at p. 485) respecting the location of timber

operations.

(c)

Partial

coverage/adverse

effect on transient citizens

Plaintiffs’ overriding concern appears to be that localities may by locational

zoning prohibit timber harvesting altogether. The ordinance before us does not

have that effect, nor does it appear that any county has attempted such a result.14

The zone district ordinance permits timber harvesting on parcels zoned timberland

production, mineral extraction industrial, and parks, recreation and open space.

To require that commercial timber harvesting occur on land in a “timberland

production” or other specified zone is no more a ban on timber harvesting than a

regulation requiring that industrial land uses occur on land zoned “industrial” is a

ban on factories. County concedes that landowners wishing to harvest timber may

apply to County for approval to rezone parcels to TPZ and that County may not

deny TPZ rezoning to any qualifying parcel (Gov. Code, § 51113, subd. (a)(1)),

nor may County prohibit timber harvesting in TPZ’s.15

We previously have explained that a local ordinance is not impliedly

preempted by conflict with state law unless it “mandate[s] what state law

expressly forbids, [or] forbid[s] what state law expressly mandates.” (Great

Western Shows, Inc. v. County of Los Angeles, supra, 27 Cal.4th at p. 866.) That

is because, when a local ordinance “does not prohibit what the statute commands

14

Amicus curiae County of San Mateo notes that, in the 10 years since Big

Creek v. San Mateo upheld San Mateo’s timber operation locational zoning
ordinance, no county, including Santa Cruz, has attempted to altogether prohibit
timber harvesting.

15

In fact, the record reveals that County has rezoned more than 800 acres of

land to the TPZ designation since the challenged ordinances were enacted.

23

or command what it prohibits,” the ordinance is not “inimical to” the statute.

(Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 902.) Here,

County’s ordinances are not impliedly preempted by conflict with state forestry

law because it is reasonably possible for a timber operator to comply with both.

The zone district ordinance does not mandate what general forestry law

forbids or forbid what general forestry law mandates. While the forestry laws

generally encourage “maximum sustained production of high-quality timber

products . . . while giving consideration to” competing values (§ 4513), they do

not require that every harvestable tree be cut. Accordingly, County’s zoning

ordinance does not conflict with state law simply because it may have the effect of

placing some trees, at least temporarily, off limits to logging.16 Nor does it appear

the Board has adopted for Santa Cruz, or any other county, rules that

comprehensively address appropriate geographical locations within the county for

timber harvesting.

In sum, plaintiffs have not identified a clear statement by the Legislature of

an intent, when enacting the FPA, to preempt traditional local zoning authority

over the location of timber operations. Accordingly, and for all the foregoing

reasons, we conclude, as did the Court of Appeal in Big Creek v. San Mateo, that

“the Legislature did not intend to preclude counties from using their zoning

authority to prohibit timber cutting on lands outside the TPZ’s” (Big Creek v. San

Mateo, supra, 31 Cal.App.4th at p. 426).


16

When interpreting statutory provisions “intended to further two separate

objectives,” we have “stressed the importance of attempting to harmonize these
goals” (Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 810).

24

D.

The Helicopter Ordinance

Like the zone district ordinance’s specification of permissible zone districts

for timber harvesting, County’s helicopter ordinance is a locational zoning

provision that regulates not how timber operations may be conducted, but rather

where they may take place. (See Big Creek v. San Mateo, supra, 31 Cal.App.4th

at pp. 424-425.) The helicopter ordinance does not attempt to locally regulate the

removal of timber, as it speaks neither to whether nor how helicopters may be

used to remove timber. County concedes it lacks authority to prohibit timber

removal by helicopters or to regulate the manner in which any such removal is

conducted. The helicopter ordinance requires simply that any helicopter staging,

loading, and servicing facilities associated with timber operations be located either

on a parcel of land zoned for timber harvesting or on a parcel adjacent to such, and

within the borders of an approved timber harvesting plan.

Accordingly―and for the reasons reviewed in detail above―the helicopter

ordinance is preempted neither expressly by section 4516.5(d) nor impliedly by

general state forestry law. In the case of the helicopter ordinance, which County

apparently enacted to address citizens’ fears created by helicopters transporting

multi-ton logs by air over or near their neighborhoods, and citizen concerns with

throbbing and unbearable noise, the conclusion is buttressed by the fact that both

the FPA and the TPA expressly contemplate the survival of localities’ power to

abate nuisances endangering public health or safety. (See especially Pub.

Resources Code, § 4514; Gov. Code, § 51115.5, subds. (a), (b).)

Specifically, the FPA provides that “[n]o provision of [the FPA] or any

ruling, requirement, or policy of the [B]oard is a limitation on . . . the power of any

city or county or city and county to declare, prohibit, and abate nuisances.” (Pub.

Resources Code, § 4514, subd. (a).) And the TPA provides that, while timber

operations conducted within a TPZ pursuant to the FPA “shall not constitute a

25

nuisance” (Gov. Code, § 51115.5, subd. (a)), that limitation is inapplicable to any

timber operation that “endangers public health or public safety or . . . prohibits the

free passage or use of any navigable lake, river, bay, stream, canal, or basin, or

any public park, street, or highway” (id., subd. (b)). (See also Civ. Code, § 3479

[definition of nuisance closely mirrors language preserving nuisance-abatement

power in Gov. Code, § 51115.5, subd. (b)].)

Disposition

For the foregoing reasons, we reverse the judgment of the Court of Appeal

and remand the cause for further proceedings consistent with our opinion.

WERDEGAR, J.

WE CONCUR:
GEORGE, C. J.
CHIN, J.
CORRIGAN, J.




26










DISSENTING OPINION BY MORENO, J.

I respectfully dissent. The majority pulls an interpretive rabbit out of a

statutory hat by construing Public Resources Code section 4516.5, subdivision

(d),1 part of the Z’berg-Nejedly Forest Practice Act of 1973 (§ 4511 et seq.)

(FPA), as preempting only county-imposed limitations on how timber operations

occur, and not local restrictions on where these activities take place. This

interpretation cannot be reconciled with the language and purpose of section

4516.5, subdivision (d); with the FPA generally; or with common sense. The

distinction that the majority draws between county resolutions, rules, and

ordinances regulating how logging transpires, and measures controlling where it

takes place, breaks down upon passing scrutiny and provides a roadmap for those

who would use technical artifices to evade the letter and spirit of the FPA. The

Court of Appeal below properly rejected this delusive distinction and concluded

that state law preempts the resolutions and ordinances that are at issue here. I

agree with the Court of Appeal, and would affirm.

The disputed resolutions and ordinances were adopted by Santa Cruz

County (County) in 1999. Of the measures presently before us, two combine to

limit timber harvesting to particular zone districts (Santa Cruz County Res. No.


1

All subsequent statutory references are to the Public Resources Code except

as otherwise noted.

1

493-99; Santa Cruz County Ord. No. 4577) and the other forbids helicopter

staging, service, and loading areas except within certain areas (Santa Cruz County

Ord. No. 4572). The question presented here concerns whether these enactments

are preempted by the FPA and, in particular, by section 4516.5, subdivision (d).

This subdivision states that, except for exercising authority delegated to them by

the State Board of Forestry and Fire Protection (Board of Forestry) to require

bonds or other surety for the protection of roads, “individual counties shall not

otherwise regulate the conduct of timber operations, as defined by this chapter, or

require the issuance of any permit or license for those operations.” (Ibid.)

To ascertain the meaning of this language, “we look to the intent of the

Legislature in enacting the law, ‘being careful to give the statute’s words their

plain, commonsense meaning. [Citation.] If the language of the statute is not

ambiguous, the plain meaning controls and resort to extrinsic sources to determine

the Legislature’s intent is unnecessary.’ [Citation.] Additionally, we must

interpret [section 4516.5, subdivision (d)] in context with the entire statute and the

statutory scheme. [Citation.]” (In re Jennings (2004) 34 Cal.4th 254, 263.)

Following these principles, it is important to note at the outset that the

preemption provision replaced a statutory scheme that allowed for county

regulation of timber operations above and beyond that undertaken by the state.

The FPA is designed to “create and maintain an effective and comprehensive

system of regulation and use of all timberlands.” (§ 4513.) Toward this purpose,

the FPA creates an architecture for state control over timber operations. As

originally enacted, the FPA also allowed counties to, “within the reasonable

exercise of their police power . . . adopt rules and regulations by ordinance or

resolution which are stricter than those provided under this chapter and its

regulations.” (Former § 4516, added by Stats. 1973, ch. 880, § 4, p. 1615.)

2



By the early 1980’s, however, some observers regarded county ordinances

as having “essentially prevented the harvest of timber, contrary to the intent of the

FPA.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856 (1981-1982

Reg. Sess.) Sept. 15, 1982, p. 2.) This concern prompted a revision of the FPA in

1982 that replaced county regulation of timber operations with a system in which

counties could recommend rules and regulations to the Board of Forestry. As

signed into law, the amendments deleted the provisions of the FPA that had

allowed for stricter local control over timber operations. (Stats. 1982, ch. 1561,

§ 2, p. 6164.) At the same time, the measure added section 4516.5 to the law.

(Stats. 1982, ch. 1561, § 3, pp. 6164-6165.) Whereas the deleted provisions had

endorsed direct local regulation of timber harvesting, section 4516.5 instead

allows counties to recommend proposed forestry rules to the Board of Forestry,

thereby channeling local concerns through the state agency with principal

responsibility for interpreting the FPA. (§ 4516.5, subd. (a).) The Board of

Forestry must adopt these proposed rules as regulations if they comport with state

law and are necessary to protect the “needs and conditions” of the proposing

county. (Id., subd. (b).) Except for this procedure for proposing regulations to the

Board of Forestry, and limited, delegated authority to require surety for the

protection of roads (id., subd. (e)), the FPA prohibits counties from regulating

timber operations. As stated above, “[I]ndividual counties shall not otherwise

regulate the conduct of timber operations, as defined by this chapter, or require the

issuance of any permit or license for those operations.” (§ 4516.5, subd. (d).)2


2

The FPA also includes a savings clause, which clarifies that the law does

not affect the authority of local governments to declare, prohibit, and abate
nuisances. (§ 4514, subd. (a).) Local regulations concerning certain timber
operations covering less than three acres are also exempted from the preemption
provision. (§ 4516.5, subd. (f).)

3



The plain language of this preemption provision offers no support for the

interpretation advanced by Big Creek Lumber Co. v. County of San Mateo (1995)

31 Cal.App.4th 418, 424-426 (Big Creek I) and adopted by the majority (maj.

opn., ante, at p. 18), to the effect that the statute preempts only county rules,

regulations, and ordinances affecting how timber operations occur, while leaving

untouched measures addressing where these operations take place. Instead, the

preemption provision speaks in terms that are expansive enough to leave no doubt

that the Legislature intended to displace all local rules, ordinances, and resolutions

specifically regulating timber operations. Section 4516.5, subdivision (d)

prohibits county regulation of “the conduct of timber operations.” As Big Creek I

and the decision by the Court of Appeal below recognized, “conduct” means “ ‘the

act, manner, or process of carrying out (as a task) or carrying forward (as a

business, government, or war).’ (Webster’s Third New Internat. Dict. (1970) p.

473.)” (Big Creek I, supra, 31 Cal.App.4th at p. 426; see also Black’s Law Dict.

(6th ed. 1991) p. 295 [defining “conduct” as “[p]ersonal behavior; deportment;

mode of action; any positive or negative act”].) If we substitute this definition of

“conduct” into the statute, section 4516.5, subdivision (d) would provide in

relevant part: “Individual counties shall not otherwise regulate the [act, manner,

or process] of timber operations, as defined by this chapter, or require the issuance

of any permit or license for those operations.” The Court of Appeal below,

therefore, accurately discerned that “conduct,” as used in the statute, “necessarily

includes the ‘act’ of doing the task at all. Local measures that forbid logging in

certain locations ‘regulate the conduct of timber operations’ in those places in the

most fundamental way imaginable—by prohibiting it outright.”

The Legislature did not draw a line between permissible “where” and

impermissible “how” ordinances both because such a distinction would have no

relationship to the impetus for the amendments and because, in practical fact, no

4

such line can ever be drawn. Does an ordinance precluding the clear-cutting

method of logging within riparian corridors concern where clear-cutting may take

place, or how logging occurs within specified areas? Clearly it does both. What

about an ordinance that precludes the use of heavy machinery within county

limits? Does that ordinance limit how a business may conduct its affairs (i.e., by

using heavy machinery, or not), or where it may operate (i.e., in the county, or

not), if it chooses to use that machinery? And does an ordinance barring the

yarding of felled trees by helicopter become any more permissible if the county

achieves the same goal by drafting the measure so that it forbids the placement of

helicopter landing pads anywhere in the county?

True, a regulation may superficially purport to address only how or where

timber operations take place. But given the aims of the Legislature in adding

section 4516.5 to the FPA, I find it difficult to believe that section 4516.5,

subdivision (d) concerns only the form, and not the substance, of county

ordinances. To paraphrase the point made by the Court of Appeal below, the

Legislature could not have intended to allow counties a continued ability to

“essentially prohibit[] the harvest of timber” (Dept. of Forestry, Enrolled Bill Rep.

on Sen. Bill No. 856 (1981-1982 Reg. Sess.), supra, at p. 2), through the simple

expedient of disallowing said harvesting virtually anywhere in the county. And

whatever the Legislature had in mind in enacting section 4516.5, subdivision (d), I

doubt that it intended to create a cottage industry in the drafting of local

ordinances that appear to regulate only where timber operations may occur, while

in actual practice directing how these operations may take place.

From the above, I conclude that section 4516.5, subdivision (d), on its own,

directs affirmance of the Court of Appeal, for both the zoning ordinance and the

helicopter ordinance regulate the “conduct of timber operations” by directly

constraining the “act, manner, or process” of these operations. Yet while the plain

5

language of section 4516.5, subdivision (d) suffices to resolve this case, other

provisions of the FPA further establish that the how/where distinction espied by

the majority was never contemplated by the Legislature, and that lawmakers

sought to abrogate ordinances similar to those involved here.

As enacted, section 4516.5 included a sunset provision that nullified

existing county regulations and ordinances regulating timber operations. The

sunset provision provided as follows: “Notwithstanding this section or any other

provision of state law, any county which regulated the growing or harvesting of

timber or the conduct of timber harvesting operations pursuant to an ordinance,

rule, or regulation in effect on January 1, 1982, may continue fully to enforce the

ordinance, rule or regulation until July 1, 1983. On and after that date, all such

local ordinances, rules and regulations, unless adopted pursuant to this section,

shall be null, void, and have no force or effect.” (Former § 4516.5, subd. (e),

added by Stats. 1982, ch. 1561, § 3, p. 6165.)3 This provision on its face renders

null and void any and all local ordinances, rules, and regulations “which regulate[]

the growing or harvesting of timber or the conduct of timber harvesting

operations.” The majority regards comparable language as unambiguously

manifesting an intent to outlaw all local regulation of timber operations. (See maj.

opn., ante, at p. 16.) The reasoning embraced by the majority thus begs the

following question: Why would the Legislature declare all county ordinances,

rules, or regulations regarding timber operations null and void in former section

4516.5, subdivision (e), if in the preceding subdivision it only sought to limit local

authority over how timber harvesting could take place?


3

The sunset period having expired, the Legislature amended section 4516.5

in 1984 to remove the sunset provision. (Stats. 1984, ch. 1446, § 1, pp. 5059-
5060.)

6



The FPA’s savings clause, meanwhile, reserves to counties their traditional

prerogative of declaring nuisances. (See § 4514, subd. (a).) Yet neither the

savings clause nor any other provision of the FPA mentions zoning or other

locational ordinances, except to provide that in situations where timber harvesting

undertaken to minimize fire hazards is exempt from the FPA (thus averting any

possibility of conflicts between the FPA and local ordinances), said harvesting

must comply with generic zoning ordinances. (§ 4584, subd. (j)(4).) That the

Legislature has expressly preserved within the FPA one aspect of local police

power (nuisance regulation) but not another (zoning) indicates that the omission of

the latter was intentional, not accidental, and that zoning designed to limit timber

operations does not escape the preemptive scope of section 4516.5, subdivision

(d).4

The analyses and reports prepared for Senate Bill No. 856—the legislation

that abrogated local regulatory authority over timber operations and added section

4516.5 to the FPA—shed additional light on the Legislature’s intent in enacting

the measure. The Legislature and its staff framed the preemptive effect of the

legislation in broad terms. The Conference Committee report on this measure

provided, in pertinent part, “Certain counties (Santa Cruz, Santa Clara, San Mateo,

Sonoma, Marin) have adopted forest practice rules and regulations which are


4

Moreover, the Legislature has shown in other contexts that it knows how to

expressly preserve local zoning when it wants to do so. Some other laws that
might otherwise have had an effect on local zoning prerogatives expressly save the
authority of local entities to regulate zoning. (See, e.g., Bus. & Prof. Code,
§ 23791 [Alcoholic Beverage Control Act provision disavowing any interference
with local zoning authority], Health & Saf. Code, § 18300, subd. (g)(1) [provision
in the Mobilehome Parks Act allowing local governments to establish certain
zones for mobilehomes].) But the Legislature chose not to add similar language to
the FPA.

7

stricter than those provided under the Z’berg-Nejedly Forest Practice Act. This

bill would take away that power by preempting counties from exercising local

control.” (Conf. Com., Rep. on Sen. Bill No. 856 (1981-1982 Reg. Sess.) Aug.

24, 1982, p. 2.) Similarly, the Legislative Analyst’s analysis of the bill provided,

“This bill . . . [r]epeals provisions of existing law which authorize counties to

regulate timber harvesting more restrictively than provided under the Z’berg-

Nejedly Forest Practice Act,” while noting that the legislation “[e]stablishes an

alternate process whereby individual counties may recommend to the Board of

Forestry for adoption new rules and regulations governing timber operations.”

(Legis. Analyst, analysis of Sen. Bill No. 856 (1981-1982 Reg. Sess.) May 24,

1982, p. 1.) Likewise, the enrolled bill report prepared by the Department of

Forestry and Fire Protection (Department of Forestry) observed that the legislation

eliminates the authority of individual counties to regulate timber harvesting

operations, and establishes instead a procedure for the Board of Forestry to adopt

rules to cover local concerns.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill

No. 856 (1981-1982 Reg. Sess.), supra, at p. 1, italics added.) Noticeably absent

from these and other expressions of intent is any indication that the Legislature

intended to allow counties continued control over where timber harvesting could

occur, and eliminate only local authority over how logging operations are

performed.

In sum, the Legislature enacted section 4516.5 in response to local

ordinances that had “essentially prevented the harvest of timber, contrary to the

intent of the FPA.” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856

(1981-1982 Reg. Sess.), supra, at p. 2.) Consistent with the Legislature’s

objective, section 4516.5, subdivision (d) prohibits local regulation of “the

conduct of timber operations.” The word “conduct,” as used in section 4516.5,

subdivision (d), includes both the act of doing something and how it is done. And

8

at the same time that the Legislature enacted section 4516.5, it “sunsetted” all

local rules, regulations and ordinances relating to “the growing or harvesting of

timber or the conduct of timber harvesting operations” (former § 4516.5, subd.

(e)), using language so sweeping that the majority does not even attempt to

address it.5 In my view, these facts establish that section 4516.5, subdivision (d),

constrains counties’ ability to directly regulate timber harvesting, regardless of

whether said regulations are better described as affecting how logging operations

occur or where they take place.

Nonetheless, the majority regards the Legislature as having limited only

counties’ authority to regulate how logging transpires. In other words, the

majority considers it perfectly acceptable for a county to “essentially prevent[] the

harvest of timber” (Dept. of Forestry, Enrolled Bill Rep. on Sen. Bill No. 856

(1981-1982 Reg. Sess.), supra, at p. 2), provided a county does so by regulating

where timber harvesting occurs, not how it happens. The majority advances

several arguments in support of this interpretation of section 4516.5, subdivision

(d). None of these contentions withstand scrutiny.


5

The majority’s sole response to the sunset provision consists of a footnote

(maj. opn., ante, at p. 17, fn. 12) that asserts that we need not consider the clause
at all because it is no longer part of the FPA. But “[i]t is axiomatic that in
assessing the import of a statute, we must concern ourselves with the Legislature’s
purpose at the time of the enactment.” (In re Pedro T. (1994) 8 Cal.4th 1041,
1048, italics added.) The sunset provision, which was enacted as part of section
4516.5, affords substantial insight into the Legislature’s intent in amending the
FPA to limit local authority over timber operations. That the Legislature later
removed the sunset provision from the FPA once the sunset period came to an end
does not somehow strip the clause of its usefulness for purposes of discerning the
intent of the enacting Legislature. “[L]egislative activity after the passage of the
sunset provision casts no light on the Legislature’s intent when it enacted the
statute
.” (In re Pedro T., supra, 8 Cal.4th at p. 1048.)

9



The majority begins by invoking a presumption against state preemption of

“a field covered by municipal regulation when there is a significant local interest

to be served that may differ from one locality to another.” (Fisher v. City of

Berkeley (1984) 37 Cal.3d 644, 707.)6 The majority restyles this presumption into

a “clear indication” rule, announcing that “when local government regulates in an

area over which it traditionally has exercised control, such as the location of

particular land uses, California courts will presume, absent a clear indication of

preemptive intent from the Legislature, that such regulation is not preempted by

state statute.” (Maj. opn., ante, at p. 7.) Neither IT Corp. v. Solano County Bd. of

Supervisors (1991) 1 Cal.4th 81, 93, which the majority cites for this principle, nor

any other decision by this court has ever so augmented the Fisher presumption

against state abrogation of local regulations. Instead, the approach adopted by the

majority appears to draw from the rule applied in cases involving federal

preemption of state law. (See Bronco Wine Co. v. Jolly (2004) 33 Cal.4th 943,

956-958.) The majority transplants this clear indication rule into the context of

state preemption of local regulations, but without considering whether the factors

that have led courts to recognize the precept in federal preemption cases apply

with equal force here. Nor does the majority attempt to devise a coherent

approach toward distinguishing those areas in which localities have “traditionally”

exercised control from those in which they have not, except to say that “the


6

In a recent case decided by this court also involving a claim of express state

preemption of local land use regulations, Morehart v. County of Santa Barbara
(1994) 7 Cal.4th 725, we stated that “[t]he general principles governing state
statutory preemption of local land use regulation are well settled.” (Id. at p. 747.)
Yet our ensuing discussion of these “well settled” principles made no mention of
any presumption against preemption. (Id. at pp. 747-748.)

10

location of particular land uses” generally qualifies as a traditional subject of local

regulation.

Putting these deficits aside, and leaving for another day the question of

whether it is appropriate to employ a clear indication rule in disputes involving

state preemption of local regulations, there are several problems with the

majority’s application of this approach here. The majority concludes that the

Legislature did not clearly indicate its preemptive intent with regard to zoning

because section 4516.5, subdivision (d) does not refer to zoning or other locational

restrictions expressly or “in terms.” (Maj. opn., ante, at p. 11.) But the majority

cites no authority that has endorsed or even intimated this “magic words”

approach to statutory interpretation. Up until now, it has sufficed for the

Legislature to make its intentions known in the manner it sees fit, without being

required to employ particular terms. The Legislature that enacted section 4516.5,

subdivision (d) could not have foreseen that it had to refer to county zoning or

other locational ordinances “in terms” for a court to later determine that

lawmakers meant to preclude these measures.

Perhaps more important, the “terms” approach subtly invades the province

and prerogatives of the Legislature by requiring lawmakers to embrace particular

verbal formulations as a prerequisite to judicial recognition of their avowed intent.

Our job as jurists is not to make the Legislature jump through linguistic hoops of

our own capricious design. “[T]he [majority] does not explain by what authority

courts can dictate to legislative drafters the forms in which laws must be written to

express the legislative intent. Rather, what is required is that the Legislature

demonstrate its intention with sufficient clarity that a reviewing court can discern

and effectuate it.” (In re Pedro T., supra, 8 Cal.4th at pp. 1048-1049, footnote

omitted.)

11



This latter criticism has particular force here, given how the majority has

rather arbitrarily chosen the “terms” it requires. Section 4516.5, subdivision (d)

expressly discusses the substantive terms of the preempted local regulations—i.e.,

they must concern “the conduct of timber operations.” But the majority rejects

this wording as insufficient and unclear. Instead, the majority concludes that the

Legislature should have known that it had to expressly address zoning and

locational ordinances “in terms” for us to discern a preemptive intent. In other

words, the required “terms” involve the manner of regulation, not the substance of

these rules. Again, how the Legislature should have foreseen this nuance is

anyone’s guess. Undoubtedly, the Legislature will respond to this approach with

more detailed and complex statutes that try to anticipate the particular “terms”

courts will require in the future. I do not grasp how this will clarify or otherwise

improve the law.

Next, the majority claims that the Legislature must have intended that the

words “the conduct of,” as used within section 4516.5, subdivision (d), would

limit the scope of the preemption provision to how logging occurs; otherwise, the

majority asserts, this phrasing would constitute mere surplusage. (Maj. opn., ante,

at p. 15.) The majority reads too much into these three words. This error leads it

to adopt a construction of section 4516.5, subdivision (d) so susceptible to abuse

and evasion through clever drafting that it violates another principle of statutory

interpretation, “[s]uperfluity does not vitiate” (Civ. Code, § 3537), a maxim that

directs that the presence of arguably unnecessary terms in a statute should not, by

itself, produce an interpretation that will defeat the Legislature’s central aims in

enacting the law.

In prohibiting local regulation of “the conduct of timber operations,” the

Legislature simply echoed phrasing used elsewhere in the FPA. Specifically,

section 4551.5 states, in pertinent part, that rules and regulations adopted by the

12

Board of Forestry “shall apply to the conduct of timber operations.” Pursuant to

its authority to regulate “the conduct of timber operations,” the Board of Forestry

controls both how timber harvesting occurs and where it takes place. To take two

examples of regulations that affect where logging may occur, the Board of

Forestry has limited timber harvesting in “channel zones” (Cal. Code Regs., tit.

14, § 916.9, subd. (e)), and near bird nesting sites (id., §§ 919.2-919.3). The use

of the phrase “the conduct of” in section 4551.5, therefore, does not cabin the

Board of Forestry’s regulatory authority only to how timber harvesting occurs.

And when the Legislature uses the same phrasing in different parts of a statute, all

else being equal, we assume that it intends to imbue the terms with the same

meaning in each context. (People v. Wells (1996) 12 Cal.4th 979, 986.) This

principle means that the identical “the conduct of” phrasing in 4516.5, subdivision

(d), does not limit the preemption provision only to county regulations concerning

how logging takes place.

The majority also purports to find support for its interpretation in the

California Timberland Productivity Act of 1982 (TPA), another statute relating to

timber harvesting. (Stats. 1982, ch. 1489, §§ 1-39, pp. 5748-5766.) The TPA

seeks to, inter alia, “[d]iscourage premature or unnecessary conversion of

timberland to urban and other uses” (Gov. Code, § 51102, subd. (a)(2)) and

“[e]ncourage investment in timberlands based on reasonable expectation of

harvest” (id., subd. (a)(4)). Because conventional taxation methods were

regarded as deterring efficient timber operations, the TPA amends but essentially

reaffirms a system adopted by a predecessor statute through which timberlands

may be placed in “Timberland Preserve Zones” (now referred to as a “Timberland

Production Zones,” or “TPZ’s”). (See Gov. Code, § 51112, subd. (c); Unkel &

13

Cromwell, California’s Timber Yield Tax (1978) 6 Ecol. L.Q. 831, 845.)7 Parcels

designated TPZ are assessed for tax purposes based on their value for timber

production and compatible uses. (See Rev. & Tax. Code, §§ 431, 434.5, 435.)

This scheme thus affords a measure of tax relief to those who grow and harvest

timber.

The majority stresses that various provisions of the TPA that relate to TPZ

designations mention and rely upon local zoning authority. (Maj. opn, ante, at

p. 14.) While this is an accurate observation, it does little to prove that the

Legislature countenanced the use of this authority to directly regulate timber

operations. Neither TPZ designations themselves, nor any other reference to

zoning within the TPA, suggests that the lawmakers who enacted that statute and

the pertinent amendments to the FPA considered it acceptable for counties to use

their zoning powers in this specific manner. Only section 4516.5, subdivision (d)

speaks to this subject, and its plain language establishes that the Legislature has

taken this authority away from counties.

Another part of the TPA relied upon by the majority, Government Code

section 51115, provides that “[p]arcels zoned as timberland production shall be

zoned so as to restrict their use to growing and harvesting timber and to

compatible uses. The growing and harvesting of timber on those parcels shall be

regulated solely pursuant to state statutes and regulations.” This language, the

majority states, expresses an unambiguous legislative intent to preclude local

regulation of timber operations. (Maj. opn., ante, at p. 16.) I agree, and observe


7

The predecessor statute, the Z’berg-Warren-Keene-Collier Forest Taxation

Reform Act, also substituted a yield tax on the value of harvested timber for the
preexisting ad valorem tax on standing timber, thereby providing a tax incentive
that discourages premature harvesting and the conversion of timberland to other
uses. (Stats. 1976, ch. 176, § 2, p. 294; see Rev. & Tax. Code, § 38101 et seq.)

14

that the sunset provision enacted in 1982 as Public Resources Code section

4516.5, subdivision (e), contained similar language, suggesting that the

Legislature intended with section 4516.5 as well to prevent counties from

regulating how or where timber operations may occur.

According to the majority, “[o]ne implication of [the language within

section 51115], of course, is that the growing and harvesting of timber on non-

TPZ parcels need not be regulated solely pursuant to state statutes and

regulations.” (Maj. opn., ante, at p. 16.) This carefully couched phrasing implies,

correctly, that alternative implications also exist. The Legislature added the

second sentence to Government Code section 51115 in the same stroke as it

enacted section 4516.5. (See Stats. 1982, ch. 1561, §§ 1, 3, pp. 6164-6165.) In so

doing, the Legislature may have intended to reaffirm, within the TPA, the

principles endorsed by section 4516.5, subdivision (d). While this may have been

unnecessary, the majority’s reading of section 4516.5 creates surplusage of its

own. If, as the majority concludes, section 4516.5 does not disturb local zoning

authority, there would have been no need for the Legislature to specify, as it has,

that timber harvesting conducted for fire-prevention purposes still must comply

with local zoning ordinances. (§ 4584, subd. (j)(4).)8


8

Also contrary to the majority’s assertions, the interpretation of section

4516.5, subdivision (d) advanced by plaintiffs and accepted by the Court of
Appeal does not render the statutory definition of “timberland” partly surplusage.
Under the FPA, “ ‘timberland’ ” means “land . . . which is available for, and
capable of, growing a crop of trees of any commercial species used to produce
lumber and other forest products.” (§ 4526.) Considering this language, the
majority states, “The phrase ‘available for’ would be superfluous if the definition
were read to include any land that is capable of growing qualified trees, but that is
what plaintiffs implicitly urge . . . .” (Maj. opn., ante, at p. 15.) Plaintiffs urge no
such thing. All parties recognize that, section 4516.5 or no, the state retains its
authority to regulate timber operations. By operation of state regulations, land


(footnote continued on next page)

15



The majority also claims that it would be “absurd” to allow timber

harvesting near residential areas, and that the Court of Appeal’s analysis would

compel such a result. (Maj. opn., ante, at p. 16.) This invocation of the absurdity

doctrine is ill-considered. Regardless of whether section 4516.5, subdivision (d)

prohibits other forms of local control over timber operations, counties still may

declare certain timber operations to be nuisances (§ 4514, subd. (a)); propose to

the Board of Forestry regulations concerning timber operations, with the Board of

Forestry being required to adopt these proposals if they comport with the FPA

(§ 4516.5, subds. (a), (b));9 and regulate harvesting on plots of less than three

acres that are not given a TPZ zoning designation (id., subd. (f)). Also, the

Department of Forestry regulates timber harvesting through its review and

approval of the timber harvesting plans required for virtually all commercial

logging. (See §§ 4581-4583.) The FPA allows Santa Cruz County to recommend

that the Board of Forestry adopt additional rules and regulations regarding the

content of these plans. (§ 4516.8.) So the real question is much more narrow than

the majority suggests: Whether it would be “absurd” to deny localities the right to

forbid or limit timber operations, other than those constituting a nuisance, on

parcels of more than three acres that are located near residential areas, where the

Board of Forestry has declined to enact sufficient prophylactic rules and the

(footnote continued from previous page)

may be “capable” of timber harvesting but not “available” for these operations.
This being the case, nothing within the interpretation of section 4516.5,
subdivision (d) commended by plaintiffs renders the definition of “timberland”
within section 4526 surplusage, in whole or in part.
9

The procedure for submitting proposed rules to the Board of Forestry is no

empty vessel; the Board of Forestry has in fact enacted more than 20 regulations
proposed by Santa Cruz County, including rules relating to helicopter yarding.
(Cal. Code Regs., tit. 14, § 926-926.25. [Santa Cruz County-specific logging
rules].)

16

pertinent timber harvesting plan has not addressed residents’ concerns. The

Legislature already has answered this question in the negative, for as all parties

agree, it already has precluded local regulation of timber harvesting on all parcels

zoned TPZ, regardless of their location. (Gov. Code, § 51115.) Apparently the

Legislature is of the view that the Board of Forestry and the approval process for

timber harvesting plans will provide sufficient safeguards in such cases.10

Finally, the majority claims to find support for its interpretation of section

4516.5, subdivision (d) in the Legislature’s perceived acquiescence in the holding

in Big Creek I, supra, 31 Cal.App.4th 418. (Maj. opn., ante, at pp. 16-17.) Some

perspective is in order here. We granted review to settle a dispute between two—

and only two—published decisions by the Courts of Appeal. Big Creek I was the

earlier decided case, but under the circumstances I am aware of no authority—and

the majority cites to none—holding that we must defer to the initial panel’s

conclusions simply because they were the first to publish their views. Were

legislative acquiescence so easily discerned and so potent a consideration, we

would never disapprove of the earlier of two conflicting decisions. Such a rule

would make our jobs inestimably easier but, easily, less estimable. Yet we do

uphold the more recent decision in such situations, time and again. (See, e.g.,

People v. Leal (2004) 33 Cal.4th 999, 1003, 1010; Hassan v. Mercy American

River Hospital (2003) 31 Cal.4th 709, 715, 724, fn. 4; People v. Adair (2003) 29


10

Furthermore, by preempting only local regulations pertaining to “timber

operations,” a defined term under the FPA (see § 4527), the Legislature assumed
that counties could “continue to regulate timber operations for aesthetic purposes
(e.g., tree trimming ordinances) to require restocking of harvested timber, use of
county roads, etc.” (Conf. Com., Rep. on Sen. Bill No. 856 (1981-1982 Reg.
Sess.), supra, at p. 1.)

17

Cal.4th 895, 902, 908, fn. 6.) Whatever the merits of legislative acquiescence as

an interpretive tool, it has virtually no bearing on the issue before us.

The majority also adopts a mistaken understanding of the doctrine of

legislative acquiescence. The majority surmises legislative acquiescence in Big

Creek I, supra, 31 Cal.App.4th 418, because the Legislature has amended the FPA

numerous times since that decision, without revisiting section 4516.5. (Maj. opn.,

ante, at p. 16.) But the acquiescence doctrine requires more than merely that the

Legislature amended a statute at some point after a particular provision has been

judicially construed. For the doctrine to apply in full measure, the general subject

that had been interpreted by the courts must come before the Legislature in

connection with a subsequent amendment. (Ventura County Deputy Sheriffs’

Assn. v. Board of Retirement (1997) 16 Cal.4th 483, 506 (Ventura County).) Here,

the parties have not brought to our attention any indication that the subject of state

preemption of local authority over timber operations has come before the

Legislature in connection with any amendment to the FPA over the past decade.

Section 4516.5 itself was last amended in 1984, more than 10 years before Big

Creek I was decided. (Stats. 1984, ch. 1446, § 1, pp. 5059-5060.) The

amendments to various other sections of the FPA that the majority relies upon fail

to establish that the Legislature acquiesced in the interpretation of section 4516.5,

subdivision (d) advanced in Big Creek I. (See Ventura County, supra, 16 Cal.4th

at p. 506.)

Ventura County, supra, 16 Cal.4th 483, squarely addresses the

acquiescence issue before us. There we were concerned with the proper

interpretation of the County Employees Retirement Law of 1937 (Gov Code.,

§ 31450 et seq.). A Court of Appeal decision more than 10 years before Ventura

County had interpreted portions of the law pertaining to the computation of

pensions. (See Ventura County, supra, 16 Cal.4th at pp. 490-492.) In the

18

intervening years, the Legislature amended various provisions of the law

numerous times, without disturbing the interpretation advanced by the Court of

Appeal. (Id. at p. 505.)

The foregoing facts, it was contended, generated an inference of legislative

acquiescence in the interpretation advanced by the earlier court. (Ventura County,

supra, 16 Cal.4th at pp. 505-506.) We disagreed, observing that “[i]t is not clear,

however, that the general subject of county employee pensions was before the

Legislature when any of the amendments to which the county refers was enacted.

Instead the amendments appear to address discrete aspects of the law or to have a

general but nonsubstantive effect, such as gender-neutral wording. The county

identifies none which suggests that the subject of pension computation generally

was before the Legislature when one or more of the amendments was enacted.”

(Id. at p. 506.) Similarly here, while the Legislature has amended distinct

provisions of the FPA many times in the decade since Big Creek I was decided, no

indication appears that the Legislature considered the preemption of local

regulation of timber operations in connection with any of these amendments. The

majority’s reliance on legislative acquiescence under these circumstances is

impossible to reconcile with our reasoning in Ventura County.

Furthermore, even assuming that the Legislature has accepted the result

reached by Big Creek I, supra, 31 Cal.App.4th 418, the question remains whether

the Legislature has endorsed a broad application of the reasoning in Big Creek I

similar to that embraced by the majority here. Big Creek I dealt with a county

ordinance that prohibited logging within 1,000 feet of a legal dwelling. (Id., at

p. 422.) The Big Creek I court found the ordinance valid because it regulated

where logging was conducted rather than how it was performed. (Id., at pp. 424-

425.) I am unconvinced that the Legislature’s failure to revisit section 4516.5,

subdivision (d) in the decade since implies that it would approve of every

19

ordinance cast as a “where” rather than a “how” regulation, even if in substance

the ordinance seems to control the “where” only as a means of getting to the

“how.”

Santa Cruz’s helicopter ordinance seems a case in point. The County

enacted the ordinance only after the Board of Forestry declined to enact a

proposed regulation that would have limited the use of helicopters in timber

harvesting. The ordinance regulates where timber companies may locate their

helicopter staging, loading, and service areas. By controlling where helicopters

may be used for timber operations, the ordinance effectively regulates how

logging will be performed within county limits. By upholding this helicopter

ordinance, in particular, the majority effectively concedes that the purported

distinction between ordinances that regulate how timber operations are conducted

and those that regulate where they occur is wholly illusory, and that with a

drafting sleight-of-hand virtually any local limitation upon timber operations will

evade the proscription of county regulation set forth in section 4516.5, subdivision

(d).

It might be the case that the County can defend its helicopter ordinance

under a nuisance theory. The parties have not briefed this issue, and I would not

decide it. But otherwise, I believe that the County’s zoning and helicopter

resolutions and ordinances violate the letter and spirit of section 4516.5,

subdivision (d). Therefore, I respectfully dissent.

MORENO, J.


WE CONCUR: KENNARD, J.


BAXTER,

J.

20


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Big Creek Lumber Company v. County of Santa Cruz
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 115 Cal.App.4th 952
Rehearing Granted
__________________________________________________________________________________

Opinion No.
S123659
Date Filed: June 29, 2006
__________________________________________________________________________________

Court:
Superior
County: Santa Cruz
Judge: Robert B. Yonts, Jr.
__________________________________________________________________________________

Attorneys for Appellant:

Jones Day, Craig E. Stewart, Tracy M. Strong; Law Offices of Dennis J. Kehoe and Dennis J. Kehoe for
Plaintiff and Appellant Big Creek Lumber Company.

Bosso, Williams, Sachs, Atack & Gallagher, Bosso, Williams, Sachs, Atack, Gallagher & Sanford, Bosso
Williams, Robert E. Bosso and Catherine A. Phillipovitch for Plaintiff and Appellant Central Coast Forest
Association.

Bruce A. Crane and Ginerva K. Chandler for California Board of Forestry and Fire Protection as Amicus
Curiae on behalf of Plaintiff and Appellant Big Creek Lumber Company.

Pacific Legal Foundation, Robin L. Rivett and M. Reed Hopper for Forest Landowners of California,
California Forestry Association, California Farm Bureau Federation and California Cattlemen’s
Association as Amici Curiae on behalf of Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Dana McRae, County Counsel; Shute, Mihaly & Weinberger, Fran M. Layton, Catherine C. Engberg,
Jenny K. Harbine, Gabriel M. B. Ross, Susannah T. French and Marlena G. Byrne for Defendant and
Appellant County of Santa Cruz.

Bill Lockyer, Attorney General, Richard M. Frank and Tom Greene, Chief Assistant Attorneys General,
J. Matthew Rodriguez, Assistant Attorney General, and Tara L. Mueller, Deputy Attorney General, for
Defendant and Appellant California Coastal Commission.

Orrick, Herrington & Sutcliffe, Karen Johnson-McKewan, Joshua Walker, Robert Nagel and Katherine
Ikeda for the Committee for Green Foothills, Citizens for Responsible Forest Management, the Planning
and Conservation League, the Lompico Watershed Conservancy and the Sierra Club as Amici Curiae on
behalf of Defendant and Appellant County of Santa Cruz.

Thomas F. Casey III, County Counsel (San Mateo) and Kimberly A. Marlow, Deputy County Counsel, for
County of San Mateo as Amicus Curiae on behalf of Defendant and Appellant County of Santa Cruz.

Dennis J. Herrera, City Attorney (San Francisco), Burk E. Delventhal and Wayne Snodgrass, Deputy City
Attorneys, for League of California Cities and California State Association of Counties as Amici Curiae on
behalf of Defendant and Appellant County of Santa Cruz.






Counsel who argued in Supreme Court (not intended for publication with opinion):

Craig E. Stewart
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104-1500
(415) 626-3939

Ginerva K. Chandler
California Board of Forestry and Fire Protection
1416 Ninth Street, Room 1516-20
Sacramento, CA 94244-2460
(916) 653-8007

Fran M. Layton
Shute, Mihaly & Weinberger
396 Hayes Street
San Francisco, CA 94102
(415) 552-7272


Opinion Information
Date:Docket Number:
Thu, 06/29/2006S123659

Parties
1County Of Santa Cruz (Defendant and Appellant)
Represented by Fran M. Layton
Shute, Mihaly & Weinberger, LLP
396 Hayes Street
San Francisco, CA

2County Of Santa Cruz (Defendant and Appellant)
Represented by Dana M. Mcrae
Office of the County Counsel
701 Ocean Street, Suite 505
Santa Cruz, CA

3California Coastal Commission (Defendant and Appellant)
Represented by Tara Mueller
Office of the Attorney General
1515 Clay Street
Oakland, CA

4Big Creek Lumber Company (Plaintiff and Appellant)
Represented by Craig E. Stewart
Jones Day
555 California Street, 26th Floor
San Francisco, CA

5Big Creek Lumber Company (Plaintiff and Appellant)
Represented by Dennis Joseph Kehoe
Attorney at Law
311 Bonita Drive
Aptos, CA

6Central Coast Forest Association (Plaintiff and Appellant)
Represented by Robert E. Bosso
Bosso Williams Sachs et al
P O Box 1822
Santa Cruz, CA

7Central Coast Forest Association (Plaintiff and Appellant)
Represented by Catherine Ann Philipovitch
Bosso Williams Sachs et al.
133 Mission Street, Suite 280
Santa Cruz, CA

8California Board Of Forestry (Amicus curiae)
Represented by Bruce Alan Crane
Department of Forestry & Fire Protection
P.O. Box 944246
Sacramento, CA

9California Board Of Forestry (Amicus curiae)
Represented by Ginevra King Chandler
Department of Forestry & Fire Protection
P.O. Box 944246
Sacramento, CA

10Forest Landowners Of California (Amicus curiae)
Represented by Malcolm Reed Hopper
Pacific Legal Foundation
3900 Lennane Drive, Suite 200
Sacramento, CA

11Committee For Green Foothills (Amicus curiae)
Represented by Joshua Henry Walker
Orrick, Herrington
1000 Marsh Road
Menlo Park, CA

12League Of California Cities (Amicus curiae)
Represented by Burk E. Delventhal
Office of the City Attorney
1 Dr. Carlton B. Goodlett Place, #234
San Francisco, CA

13County Of San Mateo (Amicus curiae)
Represented by Kimberly A. Marlow
Office of the County Counsel
400 County Center, 6th Floor
Redwood City, CA


Disposition
Jun 29 2006Opinion: Reversed

Dockets
Mar 29 2004Petition for review filed
  by counsel for deft/aplt County of Santa Cruz
Apr 6 2004Received Court of Appeal record
  one box
Apr 19 2004Answer to petition for review filed
  by counsel for resp. (Big Creek Lumber Co. and Homer T. McCary)
Apr 20 2004Answer to petition for review filed
  by counsel for resp. (Central Coast Forest Assoc.) (40k)
Apr 29 2004Reply to answer to petition filed
  By counsel for appellants {County of Santa Cruz et al.,}.
May 13 2004Time extended to grant or deny review
  to 6-25-04
Jun 9 2004Petition for review granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 23 2004Certification of interested entities or persons filed
  by counsel for deft-aplt Santa Cruz
Jun 24 2004Request for extension of time filed
  for defts-aplts County of Santa Cruz et al to file the opening brief on the merits
Jun 30 2004Extension of time granted
  to 8-23-04 for aplts to file the opening brief on the merits.
Aug 23 2004Opening brief on the merits filed
  by defts-aplts
Aug 23 2004Request for judicial notice filed (granted case)
  by aplts
Sep 8 2004Request for extension of time filed
  Respondent (Big Creek and Central Coast) to file the answer brief on the merits. Asking to 11-05-04.
Sep 15 2004Extension of time granted
  to Nov. 5, 2004 for appellant ( Big Creek , et al.) to file the answer brief on the merits.
Nov 5 2004Answer brief on the merits filed
  by pltfs-aplts Big Creek Lumber and Homer McCray
Nov 5 2004Request for judicial notice filed (granted case)
  by pltfs-aplts Big Creek Lumber and McCray
Nov 5 2004Answer brief on the merits filed
  by pltf-aplt Central Coast Forest Assn.
Nov 18 2004Request for extension of time filed
  By appellants {County of Santa Cruz et al.,} requesting a 31-day extension to and including December 27, 2004, to file appellants' reply breif on the merits. Appellants' also request permission to file brief in excess of the 4200 word limit.
Nov 29 2004Extension of time granted
  to Dec. 27, 2004, for appellants to fle a consolidated reply brief on the merits. No further extensions are comtemplated.
Dec 27 2004Reply brief filed (case fully briefed)
  CONSOLIDATED by counsel for appellants {County of Santa Cruz et al.,}.
Dec 27 2004Request for judicial notice filed (granted case)
  SUPPLEMENTAL by counsel for appellants {County of Santa Cruz et al.,}.
Jan 26 2005Received application to file Amicus Curiae Brief
  by Calif. Board of Forestry & Fire Protection in support of pltf-aplt Big Creek
Jan 26 2005Received application to file Amicus Curiae Brief
  by Committee for Green Foothills, Citizens for Responsible Forest Management, The Planning & Conservation League, The Lompico Watershed Conservancy and The Sierra Club in support of deft-aplt County of Santa Cruz.
Jan 26 2005Received application to file Amicus Curiae Brief
  by County of San Mateo in support of deft-aplt County of Santa Cruz
Jan 26 2005Received application to file Amicus Curiae Brief
  by the League of Calif. Cities and Calif. State Association of Counties in support of deft-aplt County of Santa Cruz.
Jan 26 2005Received application to file Amicus Curiae Brief
  from Forest Landowners of Calif., Calif. Forestry Assn., Calif Farm Bureau Federation and Calif Cattlemen's Assn. in support of pltfs-aplts Big Creek and McCrary.
Feb 9 2005Permission to file amicus curiae brief granted
  by California Board of Forestry and Fire Protection in support of pltfs-aplts. Answers may be filed w/in 20 days.
Feb 9 2005Amicus curiae brief filed
  by California Board of Forestry and Fire Protection in support of pltfs-aplts.
Feb 9 2005Permission to file amicus curiae brief granted
  by Forest Landowners of Calif. et al in support of pltfs-aplts. Answers may be filed w/in 20 days.
Feb 9 2005Amicus curiae brief filed
  by Forest Landowners of Calif., et al in support of pltfs-aplts.
Feb 9 2005Permission to file amicus curiae brief granted
  by League of Calif. Cities et al in support of defts-aplts. Answers may be filed w/in 20 days.
Feb 9 2005Amicus curiae brief filed
  by League of Calif. Cities et al in support of defts-aplts.
Feb 9 2005Permission to file amicus curiae brief granted
  by County of San Mateo in support of defts-aplts. Answers may be filed w/in 20 days.
Feb 9 2005Amicus curiae brief filed
  by County of San Mateo in support of defts-aplts.
Feb 9 2005Permission to file amicus curiae brief granted
  by The Committee for Green Foothills et al in support of defts-aplts. Answers may be filed w/in 20 days.
Feb 9 2005Amicus curiae brief filed
  by The Committee for Green Foothills et al in support of defts-aplts.
Feb 17 2005Request for extension of time filed
  by Defts-Aplts to respond to the A/C briefs, to 3-15-05.
Feb 17 2005Request for extension of time filed
  by Pltfs-Aplts to respond to the A/C briefs, to 3-15-05.
Feb 24 2005Extension of time granted
  On application of both counsel for all parties, and good cause appearing, it is ordered that the time to serve and file their responses to amici curiae briefs are hereby extended to and including March 15, 2005.
Mar 15 2005Response to amicus curiae brief filed
  by resp Central Coast Forest Assn to A/C briefs supporting aplt County of Santa Cruz
Mar 15 2005Response to amicus curiae brief filed
  by aplt Big Creek Lumber to A/C briefs in support of aplt County of Santa Cruz
Mar 15 2005Response to amicus curiae brief filed
  by aplt County of Santa Cruz to A/C briefs of Forest Landowners and Calif Board of Forestry
Mar 15 2005Request for judicial notice filed (granted case)
  by aplt County of Santa Cruz
Mar 15 2005Received:
  letter from aplt County of Santa Cruz supplementing briefing on the merits.
Jan 17 2006Received:
  letter from appellant, Big Creek Lumber Craig E. Stewart of Jones Day re: recusal of Justices' Chin and Corrigan.
Jan 19 2006Received:
  letter from appellant Conty of Santa Cruz opposing the letter received 1-17-06. by counsel, Fran M. Layton.
Mar 8 2006Case ordered on calendar
  Tuesday, April 4, 2006, at 9:00 a.m., in Los Angeles
Mar 17 2006Filed letter from:
  Craig E. Stewart, counsel for appellants Big Creek Lumber Company and Homer T. McCrary. Application to share 10 minutes of oral argument time with Ginevra K. Chandler, counsel for amicus curiae California Board of Forestry and Fire Protection.
Mar 17 2006Received:
  letter from counsel for appellant Central Coast Forest Association, dated March 15, 2006. Re: change of mailing notification.
Mar 21 2006Request for Extended Media coverage Filed
  John Hancock of The California Channel Statewide Cable TV Network.
Mar 22 2006Request for Extended Media coverage Granted
 
Mar 23 2006Order filed
  The request of counsel for appellants Big Creek Lumber Company et al. in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to amicus curiae California Board of Forestry & Fire Protection 10 minutes of appellants' 30-minute allotted time for oral argument is granted.
Mar 23 2006Supplemental brief filed
  Appellant, County of Santa Cruz by counsel, Jenny K. Harbine of Shute, Mihaly & Weinberger.
Mar 27 2006Received:
  appellants response to supplemental brief filed by County of Santa Cruz
Mar 29 2006Supplemental brief filed
  Big Creek Lumber, appellant by Craig E. Stewart, counsel filed with permission from the court
Mar 29 2006Received:
  letter dated March 29, 2006 in opposition to County of Santa Cruz supplemental brief.
Apr 4 2006Cause argued and submitted
 
Jun 20 2006Request for judicial notice granted
  The requests for judicial notice filed August 23, 2004, November 5, 2004, December 27, 2004, and March 15, 2005, are granted.
Jun 29 2006Opinion filed: Judgment reversed
  and cause remanded for further proceedings consistent with our opinion. Majority Opinion by Werdegar, J. ----- Joined by George, CJ., Chin and Corrigan, JJ. Dissenting Opinion by Moreno, J. ----- Joined by Kennard and Baxter, JJ.
Jul 14 2006Rehearing petition filed
  Big Creek Lumber Company and Homer T. McCray by Craig T. Stewart.
Jul 14 2006Request for judicial notice filed (granted case)
  Big Creek Lumber Company and Homer T. McCray by Craig E. Stewart
Jul 18 2006Time extended to grant or deny review
  to and including September 27, 2006, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jul 20 2006Received:
  letter to file support of rehearing Calfiornia Board of Forestry, amicus curiae by Ginevra K. Chandler, counsel
Jul 24 2006Answer to rehearing petition filed
  County of Santa Cruz, appellants by Fran M. Layton, counsel
Aug 30 2006Rehearing denied
  Request for judicial notice granted. Opinion modified. Petition for rehearing DENIED. Kennard, Baxter, and Moreno, JJ., are of the opinion the petition should be granted.
Aug 30 2006Opinion modified - no change in judgment
 
Aug 30 2006Remittitur issued (civil case)
 
Sep 8 2006Received:
  receipt for remittitur
Sep 21 2006Returned record
 

Briefs
Aug 23 2004Opening brief on the merits filed
 
Nov 5 2004Answer brief on the merits filed
 
Nov 5 2004Answer brief on the merits filed
 
Dec 27 2004Reply brief filed (case fully briefed)
 
Feb 9 2005Amicus curiae brief filed
 
Feb 9 2005Amicus curiae brief filed
 
Feb 9 2005Amicus curiae brief filed
 
Feb 9 2005Amicus curiae brief filed
 
Feb 9 2005Amicus curiae brief filed
 
Mar 15 2005Response to amicus curiae brief filed
 
Mar 15 2005Response to amicus curiae brief filed
 
Mar 15 2005Response to amicus curiae brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website