Citation 44 Cal. 4th 459, 187 P.3d 888, 80 Cal. Rptr. 3d 28
Environmental Protection and Information Center et al., v. California Department of Forestry and Fire Protection, et al.
Filed 7/17/08
IN THE SUPREME COURT OF CALIFORNIA
ENVIRONMENTAL PROTECTION AND
INFORMATION CENTER et al.,
Plaintiffs
and
Respondents,
S140547
v.
Ct.App.
1/5
A104828
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION et al.,
Humboldt
County
Defendants and Respondents;
Super. Ct. No. CV990445
PACIFIC LUMBER COMPANY et al.,
Real Parties in Interest and Appellants.
UNITED STEELWORKERS OF AMERICA,
Plaintiff and Respondent,
v.
) Ct.App. 1/5 A104830
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION et al.,
) Humboldt County
Defendants and Respondents;
) Super. Ct. No. CV990452
PACIFIC LUMBER COMPANY et al.,
Real Parties in Interest and Respondents.
UNITED STEELWORKERS OF AMERICA,
1
Plaintiff and Respondent,
v.
) Ct.App. 1/5 A105388
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION et al.,
) Humboldt County
Defendants and Appellants;
) Super. Ct. No. CV990452
PACIFIC LUMBER COMPANY et al.,
Real Parties in Interest and Respondents.
ENVIRONMENTAL PROTECTION
INFORMATION CENTER et al.,
Plaintiffs
and
Respondents,
v.
) Ct.App. 1/5 A105391
CALIFORNIA DEPARTMENT OF FORESTRY )
AND FIRE PROTECTION et al.,
) Humboldt County
Defendants and Appellants;
) Super. Ct. No. CV990445
PACIFIC LUMBER COMPANY et al.,
Real Parties in Interest and Respondents.
This case arises from the “Headwaters Agreement” consummated by the
Pacific Lumber Company and the state and federal governments. The agreement
was intended to settle matters of litigation and public controversy surrounding the
intensive logging of old growth redwoods and other trees on Pacific Lumber’s
property in Humboldt County. In addition to the state and federal governments’
purchase of a relatively small portion of Pacific Lumber’s property for
conservation purposes, it was agreed that Pacific Lumber could log the rest of its
2
property, provided that it obtain certain regulatory approvals from state and federal
agencies. The deadline for obtaining these approvals was March 1, 1999. The
approvals were timely obtained, in some cases right at the March 1 deadline.
Shortly thereafter, various environmental and labor groups challenged the validity
of the regulatory approvals on numerous grounds. The trial court resolved the
issues mostly in favor of the environmental and labor groups in 2003, and the
Court of Appeal, at the end of 2005, reversed the trial court on almost every point
and upheld each of the regulatory approvals at issue. We granted review in
February 2006 to consider a number of issues, many of them of first impression, in
this important case. The case was put on hold due to a stay resulting from Pacific
Lumber’s filing for chapter 11 bankruptcy in February 2007. The stay was lifted
in August 2007.
We conclude that one of the challenges to Pacific Lumber’s Sustained
Yield Plan (SYP), which, as explained below, is a kind of master plan for logging
a large area, is valid, inasmuch as an identifiable plan was never approved. We
also conclude, as explained below, that any resubmitted SYP should have an
adequate analysis of individual planning watersheds, which the plan as originally
approved did not contain. We further conclude that the state Incidental Take
Permit, authorizing the capturing and killing of endangered and threatened species
incidental to lawful activity, was deficient because it included overly broad “no
surprises” clauses limiting in advance Pacific Lumber’s obligation to mitigate the
impacts of its logging operations. In all other respects, we affirm the Court of
Appeal opinion, and remand the matter for further proceedings consistent with this
opinion.
I.
STATUTORY AND REGULATORY FRAMEWORK
One of the obstacles to the proper understanding of this complex case is
that it concerns a myriad of regulatory approvals, each approval supported by a
3
document or documents that are to some degree interrelated with the others.
Before discussing the facts of this case, an overview of the regulatory approvals
required and the governing statutes is in order.
A Sustained Yield Plan (hereafter sometimes SYP) is a kind of master plan
for logging a large area, authorized by statute (Pub. Resources Code, § 4551.3)
and regulation (Cal. Code Regs., tit. 14, § 1091.1-1091.14),1 designed to achieve
the Forest Practice Act’s objective of obtaining the maximum timber harvest
consistent with various short- and long-term environmental and economic
objectives. (Z’berg-Nejedly Forest Practice Act of 1973; Pub. Resources Code,
§ 4511 et seq.) As explained below, the SYP does not replace the more specific
timber harvest plan (THP), but inasmuch as the SYP adequately analyzes pertinent
issues, a THP may rely on that analysis. Although SYP’s are usually voluntary at
the option of the landowner, in this case the SYP was required by the Headwaters
Agreement.
Also required in this case under federal law was a Habitat Conservation
Plan. Although the “taking” of a federally listed endangered species, i.e., the
killing, capturing or harming of such species (16 U.S.C., § 1532(19)), is generally
unlawful (id., § 1538), a permit for the taking of a species incidental to an
otherwise lawful activity, known as an Incidental Take Permit, may be issued
when an applicant submits to the Secretary of the Interior a Habitat Conservation
Plan. (16 U.S.C. § 1539(a)(2)(A).) The plan is to specify, among other things, the
impacts that will likely result from the taking and the steps the applicant intends to
1
We will refer to these and related rules as the Forest Practice Rules, and
will follow the Court of Appeal’s practice of parenthetically citing them as “FP
Rules,” e.g., “(FP Rules, § 1091.1).” All these rules are to be found in title 14 of
the California Code of Regulations.
4
employ to minimize and mitigate those impacts. (Ibid.) Although the federal
Incidental Take Permit is not challenged in this appeal, the Habitat Conservation
Plan (HCP) was combined with the SYP for purposes of environmental review,
and is critical to supporting various other approvals at issue in this case. In
addition to a federal Incidental Take Permit, Pacific Lumber in this case was
required to obtain a state Incidental Take Permit for species listed as endangered
or threatened under the California Endangered Species Act (Fish & G. Code,
§ 2050 et. seq.)
In conjunction with approval of the HCP, the U.S. Fish and Wildlife
Service, Pacific Lumber, and various state agencies entered into an
Implementation Agreement for the HCP, defining the obligations of each party
under the HCP.
Because the state SYP and federal HCP contained overlapping and
interrelated analyses and provisions, a decision was made to prepare for both of
these documents a single joint environmental impact report (EIR) under the
California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et
seq.) and an environmental impact statement (EIS) under the National
Environmental Policy Act (42 U.S.C. § 4321 et seq.). Thus, the EIS/EIR also
overlaps and is interrelated with the SYP and the HCP, each of these documents
considering among other things the impact of proposed logging activities on
wildlife and wildlife habitat. In fact, as explained below, substantial portions of
the draft and final EIS/EIR were incorporated into and became part of the SYP.
Finally, Pacific Lumber was required to apply for a Streambed Alteration
Agreement, pursuant to Fish and Game Code former section 1603. As will be
further explained, that statute imposed on Pacific Lumber and the Department of
Fish and Game (DFG) the obligation to negotiate an agreement that would
5
mitigate impacts on fish and wildlife caused by the obstruction or diversion of
streams and other watercourses.
With this framework in mind, we turn to the facts of this case.
II. FACTUAL AND PROCEDURAL BACKGROUND
Real parties in interest Pacific Lumber Company, Scotia Pacific Co., LCC
and Salmon Creek Corporation (hereinafter collectively referred to as Pacific
Lumber) own approximately 211,000 acres of timberland in Humboldt County
that have been used for commercial timber production for some 120 years. In
1986 Pacific Lumber was acquired by Maxxam Incorporated, and in order to pay
off Maxxam’s debt for the buyout, Pacific Lumber began cutting down old growth
redwoods at a faster rate than ever before. The deforestation led to litigation and
considerable local protest.
In the 1990’s, as a result of federal and state litigation, Pacific Lumber was
enjoined from harvesting a particular stand of old growth timber that served as the
habitat for the marbled murrelet, an endangered bird. Pacific Lumber, in turn,
filed lawsuits alleging an unlawful taking by the state and federal governments of
the land declared unusable for timber production and harvesting.
To resolve the existing controversies, Pacific Lumber entered into the
Headwaters Agreement of 1996 with the State of California and the United States.
The agreement provided for the sale of some 7,000 acres of Pacific Lumber’s
timberland to the federal government and the State of California, and for Pacific
Lumber to obtain the various regulatory approvals discussed above for its
remaining 211,000 acres. What follows is a brief history of Pacific Lumber’s
process of gaining these approvals — a history necessary to understanding the
issues in this case.
6
Pacific Lumber submitted a draft of the SYP to the California Department
of Forestry and Fire Protection (CDF)2 for its consideration in December 1996.
The CDF forwarded the draft SYP to numerous state and federal agencies seeking
their comments on February 20, 1997. As will be elaborated on below, the
agencies’ comments were critical of, among other things, the draft SYP’s decision
to employ large watershed assessment areas that would not accurately register the
impacts of logging on individual watersheds and the fish and wildlife they
contained. Pacific Lumber provided responses to those comments on April 1,
1997.
The state and federal governments and Pacific Lumber entered into a “Pre-
permit Application Agreement in Principle” on February 27, 1998, setting forth
the regulatory framework governing the approval of further logging on Pacific
Lumber’s property. Under the terms of the agreement, Pacific Lumber agreed that
its Incidental Take Permit and HCP would be for a term of 50 years. The
agreement set forth various specifications for the Implementation Agreement for
the Incidental Take Permit and the HCP and agreed to incorporate various
conservation measures. The agreement also provided that Pacific Lumber would
submit a SYP to CDF and that “[u]pon receipt from Pacific Lumber of an SYP
incorporating CDF’s request for timber growth estimates, CDF will find the SYP
sufficient for public review.” The agreement further provided that “[t]he SYP will
be evaluated by the [DFG] and CDF” under the California Endangered Species
2
The California Department of Forestry and Fire Protection’s acronym was
recently changed from CDF to CAL FIRE. We use CDF here, because that is the
acronym the agency was known by during the administrative review process and
throughout this litigation.
7
Act (CESA), the Forest Practices Act, “and other applicable state statutes to ensure
that it satisfies applicable statutory requirements.”
In June 1998, Pacific Lumber submitted a draft combined SYP/HCP,
referred to in the litigation as the Public Review Draft. The draft contained
descriptions of existing or “baseline” forest conditions, projections of long-term
sustained yield, impacts of anticipated logging on habitat and wildlife, and
proposed mitigation measures and management practices to minimize those
impacts. The draft was released to the public on July 14, 1998.
The HCP proposed three primary conservation strategies to protect
endangered and threatened species. The first is the establishment of a series of
reserves, i.e., contiguous areas of second growth and old growth redwoods called
marbled murrelet conservation areas, after the endangered sea bird whose habitat
is partly within Pacific Lumber’s land. These conservation areas are to total
approximately 8,446 of the 211,000 acres, including 1,522 acres of uncut old
growth redwoods and 3,174 acres of second growth redwoods. These reserves
would be for the most part, though not entirely, protected from timber harvesting.
The second strategy was the establishment of a series of riparian management
zones around streams, establishing no-cut buffers around the streams varying in
size depending on the extent to which wildlife was found in the stream, and taking
various measures to reduce the amount of sediment that accumulates in the
streams. The third strategy would include various timber harvesting or
“silvicultural” practices that would protect wildlife, including use of “best
management practices” to monitor the forest fish and wildlife and ensure that their
populations do not fall below baseline levels.
At about the same time, Pacific Lumber officially submitted an application
for an Incidental Take Permit to the United States Fish and Wildlife Service and
the National Marine Fisheries Service.
8
In order for the Headwaters Agreement to become a reality, Congress and
the Legislature were required to approve funding for the purchase of the
Headwaters Forest. Congress authorized $250 million in October 1997,
conditioned on the approval of all required regulatory permits on or before March
1, 1999. On September 1, 1998, the Legislature passed Assembly Bill No. 1986
(Assem. Bill No. 1986 (1997-1998 Reg. Sess.); Stats. 1998, ch. 615 (hereafter
Assem. Bill 1986)), which approved expenditures of $245.5 million. Assembly
Bill 1986 conditioned the appropriation of funds on modification of the HCP to
provide additional measures to mitigate the impacts of Pacific Lumber’s logging
on threatened and endangered species. (Ibid.)
In October 1998, a draft EIS/EIR was released analyzing the Headwaters
acquisition and the Public Review Draft SYP/HCP. The EIS/EIR evaluated five
separate alternative harvest levels ranging from 86.9 million board feet (mmbf) to
233.5 mmbf per year on average for the first decade.3 Pacific Lumber’s proposal
for timber operations (alternative 2) had the highest projected harvest volume of
233.5 mmbf per year on average in the first decade. With each of these
alternatives, projections were made over a 120-year period and harvest levels were
projected to decline in the middle decades and rise again in the later decades. The
public draft EIS/EIR also noted that Pacific Lumber’s SYP/HCP application had
not been modified in response to the restricting provisions of Assembly Bill 1986,
3
There is potential for confusion in the discrepant numbers that are cited by
the parties, and that are found in the record and in the Court of Appeal opinion.
We will express numerical values for harvest levels and sustained yield estimates
as x mmbf (million board feet per year), and, when expressing harvest levels for a
decade, for example, the first decade, we will use “x mmbf per year on average for
the first decade.”
9
but that the draft EIS/EIR would include assessments of the environmental effects
of implementing the legislation.
On January 22, 1999, the final EIS/EIR was issued, after an intensive
period of public comment. Additional mitigation measures, which were added to
the final HCP, reduced the land available for harvest and therefore reduced the
estimated long-term sustained yield. The final HCP also called for the analysis of
the impacts of logging on individual planning watersheds within five years of the
SYP/HCP’s approval.
The EIS/EIR was critical of the high harvest levels contemplated by Pacific
Lumber and the methodology it used. As the EIS/EIR states, the harvest level
projections were based on intensive management methods, “such as site
preparation, planting improved stock, herbicide application to control competing
vegetation, and thinning to concentrate growth,” which were expected to increase
harvest yields. The EIS/EIR commented that Pacific Lumber “has not managed its
land using these intensive management practices until recently. Therefore, there is
no record to judge [Pacific Lumber’s] likely success at achieving the projected
growth increases. If the higher harvest during the first two decades are not
followed by a continuing and successful intensive management program, there
will be a considerable decrease in timber available for harvest in the following
decades.”
As a result of this skepticism, as well as the recognition that the restrictions
imposed by Assembly Bill 1986 and the final HCP would mean reduced harvest
levels, the EIS/EIR proposed to reduce harvest levels from the 233.5 mmbf per
year on average in the first decade. Appendix Q to the EIS/EIR, which purported
to set forth the contents of the final SYP, proposed a new long-term sustained
yield of about 196.5 mmbf per year, with an estimated harvest volume for
maximum sustained production of 176.1 mmbf per year on average for the first
10
decade.4 Appendix Q also contained a “crosswalk,” or index, that purported to
identify where all the components of a final SYP were to be found. The EIS/EIR
also included a listing of changes to the draft EIS/EIR in response to public
comments.
On October 29, 1998, Pacific Lumber officially applied for a state
Incidental Take Permit and notified DFG that it would be seeking a Streambed
Alteration Agreement pursuant to Fish and Game Code former section 1603.
The U.S. Fish and Wildlife Service, in approving the federal Incidental
Take Permit and HCP on February 26, 1999, acknowledged that the necessary
watershed analysis had not yet occurred but would be done within the next five
years, and that various protective measures would be taken in the interim.
CDF requested, and Pacific Lumber supplied, additional information
regarding the SYP in February 1999. On February 25, 1999, DFG made the
4
The difference between long-term sustained yield and maximum sustained
production can be explained as follows. According to Forest Practice Rules
section 895.1, long term sustained yield “means the average annual growth
sustainable by the inventory predicted at the end of a 100 year planning period,” in
other words, the amount of timber that will be produced in the last decade of the
planning horizon in accordance with the projected inventory, growth, and harvest
levels. (See FP Rules, § 913.11, subd. (b)(4).) The long-term sustained yield is a
means of demonstrating and quantifying that logging activity in the near future
will not exhaust the timber supply in the long term.
Maximum sustained production, perhaps the core concept of the Forest
Practice Act, is in quantifiable terms the average annual projected harvest over any
rolling 10-year period (FP Rules, § 1091.45; see Pub. Resources Code, § 4513,
subd. (a)) and must be “[c]onsistent with the protection of soil, water, air, fish and
wildlife resources.” (FP Rules, 1091.45, subd. (a).) Maximum sustained
production “shall not exceed the long-term sustained yield estimate for a SYP
submitter’s ownership.” (Ibid.) Thus, projected maximum sustained production,
as an average expected yearly harvest level, will be somewhat lower than the long-
term sustained yield estimate.
11
required CEQA findings and approved the final EIS/EIR. The CDF director
(Director) also approved the SYP, specifically approving the long-term sustained
yield estimate identified as alternative 25a, set at 196.1 mmbf per year with a
projected conifer harvest level of 136.65 mmbf per year for the first decade. The
Director stated that “the Department has determined that alternative 25a is the only
alternative with constraints and timber harvesting that are consistent with the
interim mitigations required by the [HCP] and the EIS/EIR.” On February 27,
1999, Pacific Lumber wrote to the Director, disagreeing with some assumptions
and advocating alternative 25. Under alternative 25, the long-term sustained yield
was set at 190 mmbf per year, and the projected conifer harvest level in the first
decade was 178.8 mmbf per year ― similar to the projections found in appendix Q
to the final EIS/EIR. Both alternatives 25 and 25a proposed to implement the
mitigation measures found in the final HCP, but the former was based on
assumptions about results of the required watershed analysis that were more
optimistic than the latter, i.e., that future watershed analysis would result in fewer
restrictions on logging than was assumed under alternative 25a. Officials of the
United States Fish and Wildlife Service, the National Marine Fisheries Service,
and the DFG also wrote to express their support for alternative 25. They argued
that the HCP provided for an “adaptive management” approach that would allow
for greater flexibility as conditions in the field were evaluated, which would lead
to a relaxation of some of the interim restrictions contained in the HCP, and that
therefore the higher harvest level estimate was more likely to be accurate.
5
In the record below, harvest levels are sometimes expressed in terms of
conifer harvest, which comprises most of the harvest, and sometimes in terms of
conifer and hardwood harvest. We will adopt the former practice.
12
On March 1, 1999, right at the deadline imposed by federal legislation for
obtaining the necessary regulatory approvals, the Director of CDF approved the
SYP, selecting alternative 25, allowing for the higher harvest levels. The
approved harvest level was substantially lower than Pacific Lumber’s harvest
levels for 1987-1997, after Maxxam Corporation had taken over the company, of
250 mmbf per year on average, but was substantially higher than the historic level
of logging prior to that time of approximately 120 mmbf per year.
On February 26, 1999, DFG executed a Streambed Alteration Agreement
pursuant to Fish and Game Code former section 1603. On March 1, 1999, the
DFG approved a state Incidental Take Permit authorizing the take of various
species incidental to Pacific Lumber’s timber harvesting.
On March 31, 1999, an administrative mandamus action was filed by the
Environmental Protection Information Center and the Sierra Club (hereafter
collectively EPIC). The lawsuit challenged (1) the approval of the SYP by CDF,
(2) the issuance of the state Incidental Take Permit by DFG, (3) the approval of
the Streambed Alteration Agreement by DFG, and (4) the findings issued by both
state agencies under CEQA concerning the Headwaters Forest project.
Simultaneously, the United Steelworkers of America (Steelworkers) also
petitioned for administrative mandamus to challenge only the SYP on similar but
not identical grounds.
The trial court proceedings involved an extensive preliminary dispute over
the contents of the administrative record. The court then held several days of
evidentiary hearings on whether certain materials had been excluded from the
administrative record — i.e., whether documents existed that should have been
considered by the agencies. EPIC and the Steelworkers were granted leave to
amend their complaints to allege a failure by the state agencies to provide an
accurate administrative record.
13
The trial court ruled on EPIC’s and the Steelworkers’ petitions in two
separate statements of decision, issued June 22, 2003. The trial court ruled that
petitioners had failed to sufficiently demonstrate that any of the challenged agency
decisions were not based on substantial evidence, because they had not sufficiently
identified the evidence claimed to be insufficient.
In virtually all other respects, the trial court agreed with petitioners that the
public agencies had not proceeded according to law. Specifically, the trial court
held that the SYP was deficient on a number of grounds, and that the state
Incidental Take Permit, Streambed Alteration Agreement and CEQA findings
were all inadequate and represented a failure to comply with the law on the part of
CDF and DFG.
The trial court then held a further hearing to decide whether Pacific
Lumber’s timber operations should be enjoined. The court, weighing the balance
of harms, concluded that although Pacific Lumber’s past and current timber
operations had resulted in water quality degradation and reduction in fish
population, enjoining all of Pacific Lumber’s timber operations would cause
excessive hardship to the company, its employees, and the community. The court
concluded that timber operations being conducted pursuant to THP’s approved
prior to the court’s July 22, 2003 statement of decision would not be enjoined but
that logging under any THP approved after that date that relied upon the now-
vacated Sustained Yield Plan would be enjoined. Separate judgments were
entered in the lawsuits filed by the environmental plaintiffs and by the
Steelworkers, and the trial court issued a peremptory writ of mandate in each case.
Pacific Lumber and both state agencies appealed from each judgment. The
Court of Appeal consolidated the appeals. For reasons discussed at greater length
below, the Court of Appeal reversed the trial court on every point that had been
decided adverse to the state agencies and Pacific Lumber, upholding the validity
14
of each of the regulatory approvals and reversing the granting of a peremptory writ
of mandate. EPIC and the Steelworkers separately petitioned for review and we
granted both petitions. The Steelworkers’ petition raises several issues related to
the SYP. EPIC raises some of these same issues and, in addition, raises issues
with respect to the Incidental Take Permit, the Streambed Alteration Agreement,
and the adequacy of CEQA findings. The issues raised by the parties before this
court, while numerous, are somewhat fewer than were raised below.
III. DISCUSSION
A. Standard of Review
The standard of review, and the related question of what constitutes
prejudicial error, will be discussed in more detail below. For now, we state these
general principles. First, the standard for review of agency decisions in
connection with regulatory approvals is generally one of abuse of discretion.
“ ‘Abuse of discretion is established if the respondent [agency] has not proceeded
in the manner required by law, the order or decision is not supported by the
findings, or the findings are not supported by the evidence.’ [Citations.]” (Sierra
Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 (Sierra Club).)
In this case, we are reviewing for errors of law, and will not engage in
substantial evidence review. As the Court of Appeal correctly stated: “In the
present case, the trial court rejected the allegations in [EPIC’s] writ petition that
the administrative findings were unsupported by the evidence. The trial court
found that [EPIC] failed to present a summary of the material evidence or any
argument on the sufficiency of the evidence. In essence, the trial court found that
[EPIC] waived or abandoned [its] challenges to the factual bases for the
administrative decisions. [EPIC has] not cross-appealed, nor [does it] dispute that
the focus of our review is whether the state agencies committed legal, not factual,
15
error. Hence, for purposes of our review, we will accept that the administrative
findings were supported by the evidence and we will confine our review to
determining whether the state agencies failed to proceed in a manner required by
law.”
In
determining
whether
the agency complied with the required procedures
and whether the agency’s findings are supported by substantial evidence, the trial
court and the appellate courts essentially perform identical roles. We review the
record de novo and are not bound by the trial court’s conclusions. (Bixby v.
Pierno (1971) 4 Cal.3d 130, 149, fn. 22; Sierra Club v. California Coastal Com.
(1993) 19 Cal.App.4th 547, 557.)
B. Challenges to the Sustained Yield Plan
1. Standing of the Steelworkers
As a threshold matter, Pacific Lumber contends that the Steelworkers have
no standing to bring this writ of mandate action to challenge the SYP. We
disagree.
Generally speaking, in order to have standing to sue, “a party must be
‘beneficially interested’ (Code Civ. Proc., § 1086), i.e., have ‘some special interest
to be served or some particular right to be preserved or protected over and above
the interest held in common with the public at large.’ ” (Associated Builders &
Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 362.)
There is nonetheless a well-established exception to the beneficial interest rule for
citizen suits. “ ‘ “ ‘[W]here the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the relator need not
show that he has any legal or special interest in the result, since it is sufficient that
he is interested as a citizen in having the laws executed and the duty in question
16
enforced . . . .’ ” ’ ” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d
432, 439.)
The trial court found that in this case, which involves the proper
enforcement of administrative regulations governing a plan for logging over
200,000 acres of timberland highly valued both for environmental and economic
reasons, a public right and a public duty were at stake. Pacific Lumber did not
contest that finding on appeal.
Pacific Lumber argues rather that an exception to the rule of citizen
standing should be recognized for labor unions like the Steelworkers, along the
lines of the exception recognized for corporations in Waste Management of
Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223 (Waste
Management). In that case, in considering whether a corporation had standing to
bring a CEQA action under the citizen suit doctrine, the court reasoned that
“where a corporation attempts to maintain a citizen suit, it is appropriate to require
the corporation to demonstrate it should be accorded the attributes of a citizen
litigant, since it generally is to be expected that a corporation will act out of a
concern for what is expedient for the attainment of corporate purposes . . . .” (Id.
at p. 1238.) In giving effect to this principle, the court articulated a number of
factors that may be considered, including “whether the corporation has
demonstrated a continuing interest in or commitment to the subject matter of the
public right being asserted [citations]; whether the entity is comprised of or
represents individuals who would be beneficially interested in the action
[citations]; whether individual persons who are beneficially interested in the action
would find it difficult or impossible to seek vindication of their own rights
[citation]; and whether prosecution of the action as a citizen’s suit by a corporation
would conflict with other competing legislative policies [citation].”) (Ibid.)
17
We need not decide whether the corporate exception to citizen suits
articulated by the Waste Management court is a correct statement of the law, nor
whether and to what extent that exception applies to labor unions. In this case, the
trial court found that the Steelworkers qualified as a citizen litigant under Waste
Management. The court concluded that the Steelworkers had shown a continuing
interest in and commitment to issues related to this case, including that of
sustainable economic development and environmental quality and specifically
issues regarding timber harvesting. The court also found that the union had over
12,000 members in California who had sufficient interest in the proper
enforcement of timber harvest laws, that interested individuals would have trouble
participating in the litigation due to its size and complexity, and that the
Steelworkers’ participation presented no conflict with competing legislative
policies.
Pacific Lumber did not contest those findings on appeal and does not
discuss the findings before this court. It does quote a statement in the record that
the Steelworkers’ participation was motivated by a labor dispute with Pacific
Lumber’s parent company, Maxxam Incorporated. But the record also contains
ample evidence the Steelworkers have long-standing involvement in
environmental and economic sustainability issues. We will review the trial court’s
factual determinations that bear upon the issue of standing under a substantial
evidence standard. (Daro v. Superior Court (2007) 151 Cal.App.4th 1079, 1092.)
We conclude that substantial evidence supports the trial court’s conclusion that the
Steelworkers have standing in this case.
2. What Are Sustained Yield Plans?
A proper understanding of the nature and purpose of Sustained Yield Plans
for timber harvesting begins by placing them in the context of the Forest Practice
18
Act (Pub. Resources Code, § 4511 et seq.). “The Act’s provisions, together with
implementing rules and regulations promulgated by the State Board of Forestry
(board) ([Pub. Resources Code,] §§ 4521.3, 4551), provide a comprehensive
scheme regulating timber operations in a way which promotes the legislative ‘goal
of [achieving] 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’ ([Pub. Resources Code,] §§ 4513, subd. (b), 4512, subd. (c)). The
heart of the scheme is its requirement that logging be carried out only in
conformance with a timber harvesting plan (THP or plan) submitted by the timber
owner or operator and approved by the department after determining, with an
opportunity for input from state and county agencies and the general public, that
the proposed operations conform to the Act and rules and regulations. (§§ 4581-
4582.75, 4583; [citations].) [¶] Since 1976, the THP preparation and approval
process developed under the Act has been certified as the functional equivalent to,
and hence an adequate substitute for, the full environmental impact report (EIR)
process required by CEQA. [Citations.]” (T.R.E.E.S. v. Department of Forestry &
Fire Protection (1991) 233 Cal.App.3d 1175, 1180.)
As part of fulfilling the Forest Practice Act’s goals, the Legislature has
authorized the Board of Forestry and Fire Protection to create rules and regulations
for the development of Sustained Yield Plans. (Pub. Resources Code, § 4551.3,
subd. (a).) The SYP is intended to serve as a kind of master plan for timber
harvesting a large geographic area. The board’s regulations, adopted as article
6.75 of title 14 of the California Code of Regulations, declares: “This Article
carries out the Legislature’s direction that the Board adopt regulations to assure
the continuous growing and harvesting of commercial forest tree species and to
protect the soil, air, fish and wildlife, and water resources in accordance with the
19
policies of the . . . Act. Those policies include creating and maintaining a system
of timberland regulations and use which ensures that timberland productivity is
maintained, enhanced and restored where feasible and the goal of maximum
sustained production of high-quality timber products . . . is achieved while giving
consideration to environmental and economic values. The Sustained Yield Plan
(SYP) may be submitted at the option of the landowner and is intended to
supplement the THP process by providing a means for addressing long-term issues
of sustained timber production, and cumulative effects analysis which includes
issues of fish and wildlife and watershed impacts on a large landscape basis.” (FP
Rules, § 1091.1, subd. (b).) Under the Forest Practice Rules, a SYP “shall not
replace a THP. However, to the extent that sustained timber production,
watershed impacts and fish and wildlife issues are addressed in the approved SYP,
these issues shall be considered to be addressed in the THP; that is the THP may
rely upon the SYP.” (FP Rules, § 1091.2, italics added.)
Forest Practice Rules section 1091.45, subdivision (a) further elaborates on
the SYP requirements: “Consistent with the protection of soil, water, air, fish and
wildlife resources a SYP shall clearly demonstrate how the submitter will achieve
maximum sustained production of high quality timber products while giving
consideration to regional economic vitality and employment at planned harvest
levels during the planning horizon. The average annual projected harvest over any
rolling 10-year period, or over appropriately longer time periods for ownerships
which project harvesting at intervals less frequently than once every 10 years,
shall not exceed the long-term sustained yield estimate for a SYP submitter’s
ownership.” Forest Practice Rules section 1091.3 defines “Planning Horizon” as
the “100 year period over which sustained timber production, watershed, and fish
and wildlife effects shall be evaluated.” The Forest Practice Rules also require “an
estimate of the long term sustained yield.” (FP Rules, § 1091.45, subd. (c)(2).)
20
Thus, the SYP is a kind of master plan for timber harvesting over a long
time period that supplements but does not replace the THP process, and individual
THP’s may rely on the SYP to the extent it analyzes the pertinent issues.6
3. Omitted Public Comments
The Steelworkers contend that certain comments submitted by the public
regarding the draft SYP were not taken into account by CDF, which amounts to
prejudicial error.
It is first undisputed that none of the comments in question were placed in
the administrative record. CDF certified the administrative record. A certified
record in an action challenging the sufficiency of an EIS/EIR under CEQA is
supposed to include all public comments and supporting documentation. (Pub.
Resources Code, § 21167.6, subd. (e)(6)-(8), (10)-(11).) Moreover, as the Court
of Appeal stated: “The record does suggest that the missing documents were not
taken into account. The trial court explained that the order for preparation of the
administrative record required the Department of Forestry to prepare a record of
all documents that were before the agency and taken into account—not just the
documents from the agency’s file compiled post hoc. Trial counsel for the
Department (the Attorney General) conceded at trial that what was not in the
certified administrative record was not taken into account. The question, then, is
whether the failure of the Department of Forestry to consider the missing
documents rendered the Sustained Yield Plan invalid.”
The trial court found that three types of public comments were not
considered by CDF. First, there were documents submitted prior to the November
6
We note that SYP’s have not been commonly used and, according to the
briefing, the SYP at issue here was only the second one ever done. Consequently,
most of the issues raised with respect to SYP’s are ones of first impression.
21
16, 1998 deadline for receiving public comments on the SYP. Second, there were
written documents submitted by members of the public at public hearings. Third,
there were a number of letters and public comments submitted after November 16,
1998, which, for reasons discussed below, the Steelworkers contend and the trial
court found were timely submitted. Each of these categories will be discussed in
turn.
As to the first category of comments, CDF characterizes them7 as “cover
memos written on behalf of [EPIC], which transmitted reference materials such as
scientific articles cited by other members of the public in their comment letters.”
CDF asserts that these materials “contain no substantive comments.” An
examination of the record reveals that the exhibits in question consist of scholarly
articles about various subjects generally related to the kind of subjects addressed
in a SYP; for example, an article entitled “Forest Vegetation Removal and Slope
Stability in the Idaho Batholith.” One of the omitted exhibits in this category,
submitted by Cynthia Elkins, contains documents pertaining to Pacific Lumber’s
previous THP’s. As the Court of Appeal observed: “The articles themselves are
not comments on the Sustained Yield Plan but are reference materials that were
cited in comment letters that had been previously submitted. Those comment
letters are in the certified administrative record and were responded to in the final
EIS/EIR.”
We agree with the implicit distinction drawn by the Court of Appeal.
Although CDF has a duty to consider comments by members of the public under
7
CDF and DFG submitted a common brief, prepared by the Attorney
General. For the sake of clarity and convenience, we will attribute a contention or
argument to the agency most involved in the regulatory approval being challenged
— here, in the case of the SYP, CDF.
22
the Forest Practice Rules, that duty does not necessarily extend to considering all
of the non-project-specific secondary materials submitted in support of the
comments. Whether and to what extent CDF reviews such material cited in the
comments is a matter to be left to its sound discretion and professional judgment.
This deferential standard does not change when scholarly articles are not only
cited in the comments but reproduced and submitted along with the comments.
There is no indication CDF did not consider the comments themselves.
The second category of excluded documents are written comments
apparently submitted at public hearings, in conjunction with oral comments, some
opposing and some supporting the SYP. CDF contends that this material was not
included in the administrative record because it was duplicative.
The third category of documents are comments submitted after CDF’s
comment period closed on November 16, 1998, up to February 22, 1999,
comments mainly critical of the SYP. The trial court concluded that the public
comment period had been extended and that whether or not it had been extended,
CDF should have considered these documents. The Court of Appeal did not
dispute this factual conclusion, but held that the failure to consider these
documents was nonprejudicial.
The record discloses that CDF announced that the public comment period
would end on November 16, 1998, “unless the public review period is extended by
mutual consent of the SYP submitter and the [CDF].” The United States Fish and
Wildlife Service posted a notice in the Federal Registry on January 22, 1999,
announcing that public comments would be received on the SYP/HCP and the
EIS/EIR until February 22, 1999. The notice included the address of the United
States Fish and Wildlife Service persons who would be receiving the comments,
and also stated that “comments on the SYP may be mailed to John Munn” of CDF.
The notice further explained that during the initial comment period, CDF and
23
other government agencies had received approximately 18,000 comments on the
SYP/HCP and draft EIS/EIR and that numerous changes had been made in
response to those comments and to the enactment of Assembly Bill 1986. The
new public comment period was intended to address these changes. We therefore
agree with the trial court and Court of Appeal that the Federal Register notice
effectively reopened the public comment period for the SYP until February 22,
1999.
The question, then, is whether the error in failing to consider the second
and third category of comments is prejudicial. In order to address this question,
we first consider what constitutes prejudicial error in cases involving
environmental review. As previously noted, “Only if the manner in which an
agency failed to follow the law is shown to be prejudicial, or is presumptively
prejudicial, as when the department or the board fails to comply with mandatory
procedures, must the decision be set aside . . . .” (Sierra Club, supra, 7 Cal.4th at
p. 1236.) In Sierra Club, we found prejudicial abuse of discretion when the Board
of Forestry and Fire Protection approved a THP notwithstanding the fact that real
party in interest Pacific Lumber had failed to provide information requested by
CDF and DFG. “The failure of the board to proceed as required by law was
prejudicial. The absence of any information regarding the presence of the four
old-growth-dependent species on the site frustrated the purpose of the public
comment provisions of the Forest Practice Act. ([Pub. Resources Code,]
§§ 4582.6, 4582.7.) It also made any meaningful assessment of the potentially
significant environmental impacts of timber harvesting and the development of
site-specific mitigation measures impossible. In these circumstances prejudice is
presumed.” (Sierra Club, supra, 7 Cal.4th at pp. 1236-1237.)
In coming to this conclusion, we cited with approval Rural Landowners
Assn. v. City Council (1983) 143 Cal.App.3d 1013 (Rural Landowners Assn.).
24
(Sierra Club, supra, 7 Cal.4th at p. 1237.) That case considered the approval of
an EIR for the annexation and development of certain agricultural land by the Lodi
City Council, when the draft EIR had not been timely submitted to the Governor’s
Office of Planning and Research, as required by law. The city council had
therefore failed to consider that agency’s substantive comments before approving
the EIR. (Rural Landowners Assn., supra, at pp. 1017-1018.) The trial court
found that because the state agency’s comments were incorporated into an
addendum after the approval, and the city council had not changed its decision,
failure to include the comments in the EIR was harmless error. (Id. at p. 1019.)
The Court of Appeal in Rural Landowners Assn. disagreed with this line of
reasoning: “Were we to accept respondent’s position that a clear abuse of
discretion is only prejudicial where it can be shown the result would have been
different in the absence of the error, we would allow . . . a subversion of the
purposes of CEQA. Agencies could avoid compliance with various provisions of
the law and argue that compliance would not have changed their decision. Trial
courts would be obliged to evaluate the omitted information and independently
determine its value. . . . . We conclude that where that failure to comply with the
law results in a subversion of the purposes of CEQA by omitting information from
the environmental review process, the error is prejudicial. The trial court may not
exercise its independent judgment on the omitted material by determining whether
the ultimate decision of the lead agency would have been affected had the law
been followed. The decision is for the discretion of the agency, and not the
courts.” (Rural Landowners Assn., supra, 143 Cal.App.3d at pp. 1022-1023.) The
remedy for this deficiency was for the trial court to have issued a writ of mandate
compelling the city to prepare a supplemental EIR. (Id. at p. 1025.)
The above rule emerges out of the difficulty courts have in assessing the
effects of the omitted information, much of it generally highly technical, on the
25
ultimate decision. A trial court’s “independent judgment that the information was
of ‘no legal significance’ amounts to a ‘post hoc rationalization’ of a decision
already made, a practice which the courts have roundly condemned.” (Rural
Landowners Assn., supra, 143 Cal.App.3d at p. 1021.) On the other hand, errors
in the CEQA or THP process which are insubstantial or de minimis are not
prejudicial. (Environmental Protection Information Center, Inc. v. Johnson
(1985) 170 Cal.App.3d 604, 623, fn. 11.)8
The Forest Practice Rules require the director to “review public input” at
the close of a public comment period prior to approval of a SYP. (FP Rules,
§ 1091.10, subd. (e).) Public comments are therefore an integral part of the SYP
approval process, as they are in the EIR approval process, and such comments,
like the comments from state agencies at issue in Rural Landowners Assn., may
contain information critical to that process. “Public review is essential to CEQA.
8
Pacific Lumber suggests that our standard of review for what constitutes
prejudicial error should be particularly deferential in the present case, because the
Legislature, through Assembly Bill 1986, the statute authorizing the Headwaters
Agreement, in effect endorsed the project. As Pacific Lumber states: “[Assembly
Bill] 1986 was adopted after the draft SYP/HCP had been prepared and circulated,
and after the essential terms for issuance of the stay permits had been agreed upon.
[Assembly Bill] 1986 continued specific legislative authorization of the
requirements for final state permits and imposed additional material constraints on
[Pacific Lumber’s] timber operations beyond those contained in the draft
SYP/HCP.”
Although, as will be discussed below, Assembly Bill 1986 is important for
resolving some of the legal questions before us, we do not construe such
legislation to alter in any way well-established rules regarding the standard of
review. The Legislature can, and has, exempted various projects from
environmental review. (See, e.g., Pub. Resources Code, §§ 21080.14, 21080.16
[CEQA does not apply to certain seismic retrofit projects].) Assembly Bill 1986
did not exempt Pacific Lumber from any environmental review requirements and,
except for certain specific matters discussed below, did not alter the manner in
which the various environmental review procedures were to be conducted.
26
The purpose of requiring public review is ‘ “ ‘to demonstrate to an apprehensive
citizenry that the agency has, in fact, analyzed and considered the ecological
implications of its action.’ ” . . .’ . . . ‘[P]ublic review and comment . . . ensures
that appropriate alternatives and mitigation measures are considered, and permits
input from agencies with expertise in timber resources and conservation.
[Citation.] Thus public review provides the dual purpose of bolstering the public’s
confidence in the agency’s decision and providing the agency with information
from a variety of experts and sources.” (Schoen v. Department of Forestry & Fire
Protection (1997) 58 Cal.App.4th 556, 573-574.)
If it is established that a state agency’s failure to consider some public
comments has frustrated the purpose of the public comment requirements of the
environmental review process, then the error is prejudicial. (See Sierra Club,
supra, 7 Cal.4th at pp. 1236-1237; Rural Landowners Assn., supra, 143
Cal.App.3d at pp. 1022-1023.) As the case law establishes, courts are generally
not in a position to assess the importance of the omitted information to determine
whether it would have altered the agency decision, nor may they accept the post
hoc declarations of the agencies themselves. (Rural Landowners Assn., supra, 143
Cal.App.3d at p. 1021.)9
9
We emphasize that the claim here — the failure to consider public
comments on the draft SYP — is distinct from the claim that an agency did not
adequately respond to such comments. Agencies generally have considerable
leeway regarding such response. When an agency adequately addresses an
environmental issue in response to one commenter, it may refer to the prior
response when addressing other commenters, and a failure to respond to a
particular comment is not prejudicial error when the issue raised by the comment
is adequately addressed elsewhere. (Twain Harte Homeowners Assn. v. County of
Tuolumne (1982) 138 Cal.App.3d 664, 681-685.) The instant case presents the
rarer situation of comments not being considered altogether.
27
On the other hand, an agency’s failure to consider public comments is not
necessarily prejudicial. For example, when the material not considered was, on its
face, demonstrably repetitive of material already considered, or so patently
irrelevant that no reasonable person could suppose the failure to consider the
material was prejudicial, or when the omitted material supports the agency action
that was taken, then such omissions do not subvert the purpose of the public
comment provisions and are nothing more than technical error. Short of these
showings, which the agency that failed to consider the comments would have the
burden to make, the omission of the information must be deemed prejudicial. 10
10
We note that this case law is consistent with the standard of prejudice found
in Public Resources Code section 21005: “(a) The Legislature finds and declares
that it is the policy of the state that noncompliance with the information disclosure
provisions of this division which precludes relevant information from being
presented to the public agency, or noncompliance with substantive requirements of
this division, may constitute a prejudicial abuse of discretion within the meaning
of Sections 21168 and 21168.5 [regarding actions to set aside CEQA
determinations], regardless of whether a different outcome would have resulted if
the public agency had complied with those provisions. [¶] (b) It is the intent of
the Legislature that, in undertaking judicial review pursuant to Sections 21168 and
21168.5, courts shall continue to follow the established principle that there is no
presumption that error is prejudicial.”
The Court of Appeal in Environmental Protection Information Center, Inc.
v. Johnson, supra, 170 Cal.App.3d 604, construed Public Resources Code section
21005’s provision that courts reviewing CEQA decisions “shall continue to follow
the established principle that there is no presumption that error is prejudicial”:
“Judicial decisions indicate that the ‘established principle’ in CEQA cases was not
one of presumed prejudice from any error, but one involving the determination of
prejudice from the violation of a fundamental regulatory provision. Absent
additional guidance from the Legislature, and in light of the policy expressed in
the cases . . . , we assume that the enactment of section 21005 was simply a
reminder of the general rule that errors which are insubstantial or de minimis are
not prejudicial.” (170 Cal.App.3d at p. 623, fn. 11.) We note that the Legislature
has not amended section 21005 since the above case, except to add a subdivision
(footnote continued on next page)
28
With these principles in mind, we turn to the present case. The Court of
Appeal stated that “[t]he Steelworkers do not dispute that the missing comments
were duplicative, raising objections to the Sustained Yield Plan that were covered
by over 16,000 written comments made by others during the public comment
period and responded to in the final EIS/EIR.” The Steelworkers did not contest
the accuracy of that statement in its rehearing petition to the Court of Appeal nor
in its briefing before this court. 11 Rather, the Steelworkers argue only that under
Rural Landowners Assn., the question whether the comments are duplicative is
irrelevant, because a court “may not exercise its independent judgment on the
omitted material by determining whether the ultimate decision of the lead agency
would have been affected had the law been followed.” (Rural Landowners Assn.,
supra, 143 Cal.App.3d at p. 1023.) But a determination of whether omitted
information would have affected an agency’s decision is significantly different
from a determination of whether the omitted material is duplicative of information
already considered. The former determination is highly speculative, an inquiry
that takes the court beyond the realm of its competence. The latter determination
— whether omitted evidence is duplicative or cumulative — is an inquiry courts
commonly make. (See, e.g., People v. Keehely (1987) 193 Cal.App.3d 1381,
1386-1387.)
(footnote continued from previous page)
(c) not relevant to the issue of prejudicial error. (See Stats. 1994, ch. 1230, § 2,
p. 7681.)
11
At oral argument, the Steelworkers, in response to a question, denied they
were making any such concession. We do not regard this belated, conclusory
assertion as sufficient to disavow their earlier position.
29
To be sure, the question whether public comments were duplicative,
particularly when these comments involve, as they do here, highly technical
material, may not be obvious to a reviewing court. As stated above, when a SYP
or EIR is challenged for failing to consider comments alleged to contain
significant new information, it is the burden of the agency that erroneously
omitted the comments to establish they are merely duplicative. When, however,
their duplicative nature essentially is not contested, as in the present case, no
further inquiry is necessary. We conclude CDF’s failure to consider these
comments was not prejudicial.
4. Consideration
in
Sustained Yield Plan of Long Term Regional
Economic Vitality and Employment
The Steelworkers contend that the SYP failed to consider issues of regional
economic vitality and employment over a 100-year period, as required in the
Forest Practice Rules. As Forest Practice rules section 1091.45, subdivision (a)
states: “Consistent with the protection of soil, water, air, fish and wildlife
resources a SYP shall clearly demonstrate how the submitter will achieve
maximum sustained production of high quality timber products while giving
consideration to regional economic vitality and employment at planned harvest
levels during the planning horizon.” (Italics added.) As noted ante, Forest
Practice Rules section 1091.3 defines “Planning Horizon” to mean “the 100 year
period over which sustained timber production, watershed, and fish and wildlife
effects shall be evaluated” — although in the present case a 120-year planning
horizon was chosen. Thus, the Forest Practice Rules require “consideration” of
regional employment and economic vitality over a 100-year period in the SYP’s
demonstration of how Pacific Lumber will achieve “maximum sustained
production of high-quality timber products.” This is consistent with the primary
objective of the SYP regulations: to address “long-term issues of sustained timber
30
production,” such that the “goal of maximum sustained production of high-quality
timber products . . . is achieved while giving consideration to environmental and
economic values.” (FP Rules, § 1091.1, subd. (b).)
The Steelworkers point to the statement in the SYP that the first decade of
the 120-year planning period “is the only period appropriate for [analysis of]
economic and social effects. Too many variables, including economic diversity of
the local economy, strain of the local timber industry, and timber-related tax
revenue, would not be constant over a longer-term analysis period. Thus, a
discussion of social and/or economic effects beyond 2012 would be very
uncertain, if not speculative, and would not be appropriate in either an EIS or
EIR.” It contends that this limitation of economic analysis to the first decade
contravenes the injunction of section 1091.45 of the Forest Practice Rules that the
SYP consider economic and employment effects for the entire planning horizon.
In rejecting the Steelworkers’ claim, the Court of Appeal relied on a brief
portion of the Public Review Draft of the SYP/HCP that in fact assessed the
employment impacts of logging over a 120-year period. In that section, Pacific
Lumber estimated jobs per decade in relation to millions of board feet of timber
per year, using a multiplier of six jobs per year for every million board feet
harvested. On this basis, Pacific Lumber projected a decline in employment as
timber harvesting tapered off, going from a high of 1,401 jobs in the first decade
to a low of 844 jobs in the fifth decade and then steadily rising thereafter as newer
growth timber matured and was harvested.
As the Steelworkers point out, however, although there is some confusion
about the contents of the final SYP (as discussed below), the above draft section
was superseded and was not incorporated in the final SYP. CDF does not dispute
that the employment portion of the Public Review Draft of the SYP was
superseded. Rather, it states that “the evolution of the discussion of jobs and
31
economic vitality from draft to final indicates that the issue is analyzed over
twelve decades but ultimately CDF found any discussion beyond ten years to be
speculative. This represents evidence of the consideration of the issue, not a
failure to consider.”
Moreover, the final SYP does contain projections of harvest levels for each
decade for a 120-year period that would be the basis for further economic analysis
of the effects of timber harvesting. The SYP projects a conifer harvest level of
178.8 mmbf per year for the first decade, declining in each subsequent decade to a
low of 113.8 mmbf per year on average for the fifth decade, and then gradually
increasing to 166.2 mmbf per year on average for the final decade. The
projections also specify the kind of timber to be harvested, with old growth timber
making up a large portion of the harvest in the first decade and giving way
increasingly to younger growth timber in subsequent decades.
It is unclear from the Forest Practice Rules how much detail is required in
“giving consideration” to economic issues over the planning horizon. The rules do
state that in a SYP, “the accuracy of, and therefore the need for, detailed future
projections becomes less as the time horizon lengthens” and that “[i]t is not the
intent of this Article that speculation shall be promoted such that analyses shall be
undertaken which would produce only marginally reliable results or that unneeded
data would be gathered. . . . It is the intent of this Article that the requirements for
informational or analytical support for a SYP shall be guided by the principles of
practicality and reasonableness; no information or analysis shall be required which
in the light of all applicable factors is not feasible. However, it is the intent of this
Article that all potential adverse environmental impacts resulting from proposed
harvesting be described, discussed and analyzed before such operations are
allowed. Should such analysis not be included in the SYP, it must be contained in
32
those THPs which rely on the SYP, including any impact discovered after the SYP
is approved.” (FP Rules, § 1091.1, subd. (b).)
As a general matter, courts will be deferential to government agency
interpretations of their own regulations, particularly when the interpretation
involves matters within the agency’s expertise and does not plainly conflict with a
statutory mandate. (See Yamaha Corp. of America v. State Bd. of Equalization
(1998) 19 Cal.4th 1, 12-13.) In the present case, the question of how much
economic and employment analysis over how long a period of time is feasible, and
at what point it becomes speculative, is a judgment call, and we will not disturb
the agency’s determination without a demonstration that it is clearly unreasonable.
Here, the SYP contains information regarding (1) projected harvest levels for 12
decades; (2) a credible estimate of the employment effects of such harvesting and
projection of timber-related employment over 12 decades in the draft SYP; (3) a
detailed analysis of economic and employment impacts of timber harvesting in the
first decade; and (4) a reasoned decision to omit detailed analysis of the effects of
timber harvesting on employment and the economy over the subsequent decades
of the planning horizon. Under these circumstances, we conclude that CDF did
not abuse its discretion in determining that the SYP had adequately followed the
Forest Practice Rules by “giving consideration” to the economic and employment
consequences of timber harvesting during the period of the planning horizon (FP
Rules, § 1091.45), while at the same time not engaging in overly speculative
analysis (FP Rules, § 1091.1).12
12
The Steelworkers point to various documents of legislative history of the
Forest Practice Act, which it contends support the proposition that “regional
economic vitality” and “employment” are distinct considerations, and that analysis
of the latter did not relieve CDF and Pacific Lumber of the obligation to analyze
the former. Without disputing the above, we note nonetheless that the analysis of
(footnote continued on next page)
33
5. Is There a Valid Sustained Yield Plan Document?
Petitioners13 contend there was no single, agreed-upon SYP that has been
approved, and that the CDF director’s approval of the SYP must therefore be
invalid. We agree.
As discussed, various federal and state agencies approved several
interrelated documents: an EIS/EIR, an HCP and a SYP. The final EIS/EIR was
circulated in January 1999, and contained an Appendix Q, which purported to
identify the final SYP. Appendix Q states: “This [f]inal EIS/EIR constitutes the
final HCP/SYP. To reduce the volume of paper associated with finalizing the six-
volume proposed HCP/SYP, it is incorporated here by reference. To ensure that
all requirements of the SYP are met, and that key components can be located
easily, the following crosswalk is provided. It indicates the primary location
where information may be found; it is not all-inclusive, and relevant information
may be found in other sections. Except as noted, volume and part references refer
to [Pacific Lumber’s] July 1998 draft SYP/HCP.” The crosswalk then references
the topics that are required to be addressed in the SYP together with the volume
and section in which the topic is addressed in the draft SYP/HCP For example,
“[s]ustained timber production assessment” is found in “Volume I, Part C, . . . and
Part E,” and “Fish and wildlife assessment” is found in Volumes I, II, and IV.
(footnote continued from previous page)
the effects of timber harvesting on employment and on regional economic vitality
are interrelated. Nothing in the legislative history persuades us that CDF abused
its discretion under the particular circumstances of the present case in not
requiring more economic analysis.
13
When the Steelworkers and EPIC make the same or similar arguments, they
will be referred to collectively as “petitioners.”
34
Pacific Lumber argues that Appendix Q and the documents to which it
refers constitute the final SYP. As petitioners point out, however, there are several
problems with relying on Appendix Q to definitively set forth the contents of the
final SYP. First, by its own terms, it “is not all-inclusive, and relevant information
may be found in other sections.” Second, Appendix Q purports to incorporate the
six-volume draft SYP circulated for public review. Yet in a document that was
prepared for the trial court below, CDF made clear that substantial portions of the
Public Review Draft SYP had been superseded, noting in the margins of the table
of contents of the Public Review Draft SYP those portions that had been replaced
by the final EIS/EIR. Thus, the Appendix Q crosswalk, in referencing a Public
Review Draft SYP that had been substantially superseded, failed to give an
accurate picture of the document’s contents at the time the SYP was approved by
the CDF director on March 1, 1999.
Third, Appendix Q is included in a January 1999 document. Additional
information was provided by Pacific Lumber in February 1999 that the CDF
Director relied on for his March 1, 1999 approval of the SYP. On February 16,
1999, Pacific Lumber presented CDF with a lengthy document entitled “Updated
Sustained Yield Planning Information,” with extensive supplemental information
pertaining to the long-term sustained yield estimate. Pacific Lumber on February
23, 1999, provided further extensive information on alternative 25A, which
contemplated a conifer harvest of approximately 136.6 mmbf per year for the first
decade in response to a CDF request. Along with providing that information,
Pacific Lumber made clear it believed that this alternative was infeasible inasmuch
as it contemplated a lower harvest than Pacific Lumber found economically viable.
On February 25, 1999, the Director approved the SYP with alternative 25A. On
February 28, 1999, Pacific Lumber again supplied extensive additional
information, this time targeted to alternative 25, which contemplated the higher
35
conifer harvest of 178.8 mmbf per year for the first decade. The Director
eventually chose alternative 25. None of the voluminous supplemental
information on which the Director partly based his decision is included in
Appendix Q.
CDF, in contrast to Pacific Lumber, does not contend that Appendix Q
represents the definitive SYP. Rather, it claims that the CDF Director’s March 1,
1999 and February 25, 1999 letters approving the SYP contain “a description of
the location of the substantive information which comprises the various
components of the Sustained Yield Plan required by the Forest Practice Rules.”
As the CDF Director stated in the March 1, 1999 letter, his determination that the
SYP was in conformance with Forest Practice Rules was “[b]ased upon analysis of
the revised draft of [the SYP] submitted by [Pacific Lumber] in July of 1998 in
combination with provisions of the HCP, EIS/EIR, supplemental information
received from [Pacific Lumber] on February 16, 1999, responses from Pacific
Lumber to watershed questions received on February 23, 1999, and with
additional information provided by the National Marine Fisheries Service, the U.S.
Fish and Wildlife Service, and the California Department of Fish and Game . . . .”
Yet the Director’s terse statement in this approval letter cannot be regarded
as setting forth a definitive SYP. First, the letter refers to the Public Review Draft
SYP, a substantial portion of which, as discussed above, had been superseded.
The Director’s approval does not specify which portions of the draft SYP are to
be included in the final SYP, which parts of the final EIS/EIR are to be included,
or how the draft SYP dovetails with the February 16, 1999 and February 23, 1999
documents to which the Director’s approval also refers. Second, the document
refers nonspecifically to “additional information provided by the National Marine
Fisheries Service, the U.S. Fish and Wildlife Service, and the California
Department of Fish and Game . . . .”
36
That the contents of the draft SYP were unsettled at the time of its approval
is further evidenced by a communication on March 15, 1999, two weeks after the
SYP was approved. CDF project manager John Munn requested “within a
relatively short time frame” “supplemental SYP materials,” in order “to meet the
requirements of the SYP,” including “[a] consolidated version of the material
submitted by [Pacific Lumber] in support of Alternative 25 and related responses
to CDF questions, Appendix Q in the EIS/EIR, and information from the July
1998 public review draft of the SYP/HCP that is still applicable to the approved
SYP and Habitat Conservation Plan.” (Italics added.) There is nothing in the
record indicating that Pacific Lumber ever complied with this request.
It is noteworthy, then, that even Pacific Lumber and CDF do not appear to
agree on what constitutes the final SYP —the former would find it in Appendix Q,
the latter in the February 25 and March 1, 1999 letters of approval. As explained
at greater length below, the SYP is intended to be relied on by Pacific Lumber and
CDF and other government agencies in determining whether Pacific Lumber’s
logging activities, as described in its timber harvest plans, are lawful. As also
discussed below, Public Resources Code section 4551.3 contemplates a role for
the public in monitoring compliance with an SYP after it has been approved. As
we recently reaffirmed in the analogous case of an EIR: “The data in an EIR must
not only be sufficient in quantity, it must be presented in a manner calculated to
adequately inform the public and decision makers, who may not be previously
familiar with the details of the project. ‘[I]nformation “scattered here and there in
EIR appendices,” or a report “buried in an appendix,” is not a substitute for “a
good faith reasoned analysis.” ’ ” (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442.) Similarly,
basic confusion about the contents of an unconsolidated SYP scattered over a
voluminous administrative record does not allow the public and decision makers
37
to readily know those contents and use the SYP for the purposes for which it was
intended. And the fact that the information and analysis contained in the various
environmental documents Pacific Lumber submitted is so extensive makes the
need for an easily identifiable document all the greater.
Moreover, the Steelworkers convincingly argue that the Director
improperly delegated to Pacific Lumber the task of determining the final contents
of the SYP. As noted, the Director charged Pacific Lumber, in the March 1, 1999
letter approving the SYP, with preparing “an updated report based on alternative
25 that contains the SYP information contained in Appendix Q to the EIS/EIR and
incorporates information from the July, 1998 public review draft of the
SYP/HCP,” and would include unspecified information from various documents
provided by Pacific Lumber and by certain government agencies in February
1999. In effect, the Director was giving Pacific Lumber the task of revising
Appendix Q, in light of the new information about alternative 25. This revision
was to incorporate unspecified sections of the Public Review Draft SYP, and
which sections were to be incorporated was to be apparently left, at least initially,
to Pacific Lumber’s judgment. John Munn’s March 15, 1999 postapproval letter
discussed above also refers to Pacific Lumber assembling portions of documents
“still applicable” in a final SYP. As the Steelworkers state: “Whether or not an
agency may delegate to a private party the duty of consolidating various identified
documents into a final plan . . . , there should be no question that an agency cannot
delegate to a private party the responsibility of determining what it is that the
agency approved. This is a core agency function.” We agree.
CDF and Pacific Lumber argue that any confusion about what constitutes a
final SYP can be rectified in administrative proceedings pursuant to Public
Resources Code section 4551.3. This was the position taken by the Court of
Appeal, which reasoned that “[a]n integrated document was not a condition
38
precedent to approval of the Sustained Yield Plan; it was a condition subsequent,”
and if that condition was not met, petitioners could avail themselves of the
remedies set forth in Public Resources Code section 4551.3, which provides for
“ ‘continuing monitoring’ of an approved sustained yield plan by the Department
of Forestry, including a hearing whenever an interested party comes forth with
evidence of potential noncompliance with the terms and conditions of the approval
of a sustained yield plan.” The Court of Appeal therefore concluded that “the
assertion by [petitioners] to the trial court in the administrative mandamus
proceedings that [Pacific Lumber] failed to provide the integrated document was
misdirected and premature. When an administrative remedy is provided by
statute, relief must be sought from the administrative body and exhausted before
the courts will act. [Citations.] The remedy available to [petitioners] was to
request a hearing by the Department of Forestry pursuant to section 4551.3 of the
Public Resources Code. Having failed to exhaust their administrative remedies,
the environmental plaintiffs and the Steelworkers were not entitled to assert that
[Pacific Lumber] failed to comply with the condition for approval of the Sustained
Yield Plan.”
Public Resources Code section 4551.3, to which the Court of Appeal
opinion refers, states in pertinent part: “(b) As part of the continuing monitoring
process for an approved sustained yield plan . . . , the department shall hold a
public hearing on the plan if requested by an interested party who submits, in
writing, a request based on substantial evidence of potential noncompliance with
any of the following: [¶] (1) The terms and conditions of the original sustained
yield plan approval. [¶] (2) The applicable provisions of the rules or regulations
adopted by the board that were in effect on the date the sustained yield plan was
originally approved. [¶] (3) Other requirements that have been imposed on the
sustained yield plan by operation of law. [¶] (c) The request shall identify
39
specific issues in the plan to be addressed at the public hearing. To be considered,
a request shall be made to the department within six months after the midpoint of
the effective term of a sustained yield plan described in subdivision (a). The
department shall hold the public hearing within 120 days after the date of the close
of the six-month request period. A sustained yield plan shall be effective for the
remainder of its term unless the director makes written findings, based on a
preponderance of evidence, that implementation of the sustained yield plan is not
in compliance with any material provision of paragraph (1), (2), or (3) of
subdivision (b).” (Italics added.)
It is difficult to fathom how the procedures and remedies set forth in Public
Resource Code section 4551.3 address petitioners’ objections to the SYP. That
statute, which contemplates continued monitoring of the manner in which the SYP
is implemented, presupposes a SYP in its final form that can be monitored, i.e., a
clear, written plan that can be compared to the plan as executed. If there is
uncertainty about what constitutes the final SYP, then it is difficult to see how
Public Resources Code section 4551.3’s monitoring provisions can address this
shortcoming. This point is underscored by the provisions in subdivision (c) that
the shortcomings be raised in a hearing approximately midway through the term of
the SYP’s operation. Subdivision (a) of the statute provides that a SYP may be
effective for a period of up to 10 years, and that is the effective period for the SYP
in the present case. Section 4551.3 was plainly not meant to be used to cure
inadequacies in a SYP present at the time the document was approved, but rather
to remedy deficiencies in implementing the document that have become clear over
time.
CDF and Pacific Lumber also argue the shortcoming identified by
petitioners amounts to merely a formatting problem, that there is nothing in the
Forest Practice Rules that require a SYP to be a consolidated document, and that,
40
in any case, there is a lack of prejudice from not producing such a consolidated
document. In support of this argument, CDF cites an e-mail from project manager
John Munn on January 13, 1999, “indicating that the usability of the final
document was ‘primarily a matter of formatting.’ ” But that quotation, placed in
its proper context, does not support CDF’s argument. As Munn wrote: “There is
still some question about what constitutes the final document. The HCP included
as Appendix P to the EIS/EIR appears to be self-contained. The SYP discussion
contained in Appendix Q, however, relies heavily on reference to the draft
SYP/HCP. Does this mean that the final package consists of the new EIS/EIR,
Responses to Comments, the draft SYP/HCP and an additional addendum (or
appendix?) that includes the updated SYP information? This is primarily a
question of formatting. Would it be possible to give conditional approval based on
the company preparing a consolidated document containing SYP information? If
not, I assume that this could be accomplished by preparing a working document
following approval. Somehow, we have to end up with a usable document.”
Thus, the above quotation indicates that the CDF soil erosion studies
project manager made clear that in its then-current state, the document was not
usable. There is no indication that the shortcomings identified in Munn’s e-mail
were ever corrected. On the contrary, the subsequent information that CDF
received and considered in approving the SYP in February 1999, made the
identification of a single, usable document even more problematic. Munn’s
postapproval letter of March 15, 1999, quoted above, continues the same theme,
asking Pacific Lumber to expeditiously update and supplement various documents
into a complete SYP. There can be no question that approval of a final document
that is usable by the government agencies and by the public in monitoring the SYP
is required. Indeed, the fact that the Forest Practice Rules contemplate a SYP that
can be “filed” (FP Rules, § 1091.10) strongly supports the idea that there must be
41
a specific document that CDF, and the public, can turn to for the purposes served
by the SYP. As explained, CDF and Pacific Lumber have yet to identify or agree
upon a definitive SYP.
For these reason, we reject CDF and Pacific Lumber’s argument that the
lack of an identifiable SYP was not prejudicial. Although minor ambiguities in
what constitutes a final SYP may be harmless, here the ambiguity as to the SYP’s
contents were sufficiently substantial that CDF staff did not consider the document
to be readily usable. Moreover, the fact that the Director of CDF improperly
delegated to Pacific Lumber the task of finalizing the contents of the SYP after it
was approved, abdicating the agency’s basic function of making that
determination itself, appears to be the kind of error that is not amenable to
harmless error analysis. And even if it were proper for CDF to promulgate a
condition subsequent to approval of the SYP that it be finalized by the
consolidation of various unspecified documents, there is no indication that this
condition was ever met. We conclude that in failing to approve an identifiable
final SYP, CDF failed to proceed according to law, and that such error was
prejudicial.
The parties have not briefed the remedy for this deficiency. That question,
and the related question of the procedures appropriate for resubmitting an
adequate, identifiable SYP for approval, should be addressed on remand.
6. The Sufficiency of the Sustained Yield Plan for Public Review
Petitioners contend that CDF failed to obtain sufficient information to
authorize the SYP for public review because the Public Review Draft SYP/HCP
failed to analyze individual planning watersheds and the cumulative impacts of the
proposed logging on those watersheds.
42
The process of approving a SYP is described in section 1091.10 of the
Forest Practice Rules: First, within 20 days after receipt of the SYP, the CDF
director reviews the document to ensure that it “is in proper order, and meets the
informational requirements of the rules, and if so, the SYP shall be filed.” (Id.,
subd. (a).) Otherwise the Director is to return the document with noted
deficiencies. Once filed, the Director has a 45-day or longer period to review the
SYP to determine if it “contains sufficient and complete information to permit
further review by the public and other agencies.” (Ibid.) After a 90-day or longer
period of public review, the Director has a 30-day period to review and respond to
public input and determine whether the SYP should be approved. If not, the
reasons must be in writing.
The Forest Practice Rules also require that a SYP contain analysis of the
impacts of proposed logging on individual planning watersheds. Section 1091.6
states in part: “The following watershed issues shall be addressed in a SYP: [¶]
(a) Assessment Area. The minimum assessment area shall be no less than a
planning watershed. The assessment area may include multiple watersheds within
a Management Unit, and areas outside the ownership may be included. [¶]
(b) Impacts Analysis and Mitigation. The Assessment shall include an analysis of
potentially significant adverse impacts, including cumulative impacts, of the
planned operations and other projects, on water quality, fisheries and aquatic
wildlife. [¶] (c) The SYP shall contain a description of the individual planning
watersheds in sufficient detail to allow a review of the analysis of impacts.” 14
14
The meaning, function and significance of watersheds has been described
as follows: “The watershed ― an area or region draining into the same
watercourse― is the fundamental building block of the landscape, and thus,
natural resource systems. Watersheds can be scaled up or down, aggregated or
disaggregated, to analyze and address problems or opportunities of varying scope.
(footnote continued on next page)
43
Petitioners contend that the SYP failed to provide sufficient information in
their watershed analysis for public review. In conducting watershed analysis,
Pacific Lumber used five watershed assessment areas (sometimes WAA’s)
ranging in size between 55,000 and 426,000 acres, each of which consisted of a
number of planning watersheds15 — from approximately seven for the smallest
WAA to approximately 45 for the largest.
(footnote continued from previous page)
For example, from the 14,000 square mile watershed of the San Joaquin River, we
can focus down to the 700-square-mile Mokelumne River watershed, to the 75-
square-mile Middle Fork of the Mokelumne watershed, or to the 22-square-mile
Forest Creek watershed. [¶] . . . [¶]
“Forest watersheds integrate the water quality impacts of land management
activities. Sediment generated by land management moves from the hillslopes
to the intermittent draws to the small creeks, and on to the main stem of the river.
If you want to assess the potential water quality impact of a proposed activity,
you must look at the whole watershed ― upstream and downstream ― to see
what’s already being put into the stream system. Add a time dimension to this
spatial analysis ― what’s been moving through the stream in the recent past,
what’s going to be moving through the stream in the future and you’ve
completed, in the professional lingo, a water quality cumulative effects analysis.”
(Wilson, Director of CDF, “California Watersheds: Natural Resources and
Community Integrators,” CDF Comment (Aug. 1993) p. 1
<http://www.frap.cdf.ca.gov/publications/california_watersheds.html> [as of July
17, 2008].)
15
Forest Practice Rules section 895.1 defines “planning watershed” as “the
contiguous land base and associated watershed system that forms a fourth order or
other watershed typically 10,000 acres or less in size. Planning watersheds are
used in planning forest management and assessing impacts. The Director has
prepared and distributed maps identifying planning watersheds plan submitters
must use. Where a watershed exceeds 10,000 acres, the Director may approve
subdividing it. Plan submitters may propose and use different planning
watersheds, with the director’s approval. Examples include but are not limited to
the following: when 10,000 acres or less is not a logical planning unit, such as on
(footnote continued on next page)
44
The record reflects that CDF staff found Pacific Lumber’s treatment of
watershed analysis and the cumulative impacts of logging on individual
watersheds to be inadequate throughout the SYP preparation process. Ross
Johnson, CDF’s Chief of Forest Practices, requested in an April 25, 1997 letter
that Pacific Lumber explain “how the watershed assessment based on the very
large WAAs can identify cumulative watershed effects related to timber
operations, distinguish between natural and man-caused event effects, and identify
the location of sensitive areas for project planning and mitigation.”
A letter by CDF’s Deputy Director Craig Anthony written in November
1997 to Pacific Lumber, months before public review began, stated that the SYP
in its then form “must address the watershed assessment issues described below
before it is sufficient for public review.” Anthony continued, “CDF concurs with
other reviewing agencies that the watershed assessment areas (WAAs) are so large
that potentially significant impacts from intensive management in one or more of
the smaller subwatersheds” may occur without those impacts being detected by the
proposed monitoring system.
Pacific Lumber prepared and submitted a revised draft SYP/HCP in June
1998. The Director then released this draft in July 1998 for public review. But a
letter from John Munn, CDF’s soil erosion studies project manager, the following
year in November 1998, at a time when public review was almost over, stated that
the issues described in Anthony’s November 1997 letter “have not been
addressed.”
(footnote continued from previous page)
the Eastside Sierra Pine type, as long as the size in excess of 10,000 acres is the
smallest that is practical.”
45
The record further indicates that Pacific Lumber and the state and federal
governments had entered on February 27, 1998, into a Pre-Permit Application
Agreement in Principle which, as noted, set forth a procedural framework for
processing the required environmental documents, including the SYP. The
agreement provided in part that Pacific Lumber was to submit to CDF a SYP that
incorporated a range of timber growth estimates employing various timber
management strategies.” Upon the receipt of those estimates, “CDF will find the
SYP sufficient for public review.” No mention was made in this agreement of the
watershed analysis issues. As John Munn stated in a December 18, 1998 letter to
Pacific Lumber, explaining his continued pursuit of the watershed analysis issues
after the initial period of public review: “The Pre-Permit Application Agreement
in Principle . . . simply says that [CDF] will find the SYP sufficient for public
review. Although the Department would like to have major concerns addressed
prior to public review, this is not a requirement of the Forest Practice Rules.”
Moreover, whether or not the public draft SYP was sufficient for public
review under the Forest Practice Rules, it appears clear that the Director did not
abuse his discretion when his actions are viewed in light of Assembly Bill 1986,
the state legislation authorizing the Headwaters Agreement. (Stats. 1998, ch. 615.)
Sections 3, subdivision (a)(1), and 4, subdivision (c) of the statute specifically
contemplate that the watershed analysis process will be completed after the
approval of the SYP/HCP, and that until the process is completed and site-specific
prescriptions emerging from that process have been implemented by the relevant
government agencies, interim measures such as 100-foot no-cut buffers for class I
watercourses, 16 will be adopted. Although Assembly Bill 1986’s September 1998
16
Class I watercourses are those in which fish are continuously or seasonally
present, and class II watercourses are those that contain nonfish aquatic species.
46
enactment postdated the July 1998 circulation of the Public Review Draft
SYP/HCP, the statute certainly appears to legislatively ratify the decision of CDF
and other government agencies to circulate a public review draft before
completion of individual planning watershed analysis. We therefore conclude that
the circulation of the Public Review Draft was not error.
7. Insufficiency of the Sustained Yield Plan Approval
EPIC contends that the SYP should not have been approved because it
lacked the information identified above not only at the public review stage but in
its final form. As indicated above, a number of CDF officials pointed out the
inadequacy of Pacific Lumber’s watershed analysis. This inadequacy was not
remedied before the SYP was approved. The dissatisfaction was expressed at the
executive level by Douglas Wheeler, Director of the Resources Agency of
California, who sent a letter to Pacific Lumber on December 8, 1998, a few
months before the SYP was approved, stating: “Specifically, the watershed
assessment areas should be described and reduced in size”; and “the assessment
must then consider past, present, and future impacts.”
EPIC also points to the comments during the public review process by
Robert Hrubes, a forester and resource economist in its employ, that explain the
significance of the lack of planning watershed analysis: “Planning watersheds,
which averaged [10,000] to 20,000 acres, have been delineated by state water
resource personnel and are correlated with topographic and drainage patterns
across the landscape. At the scale of the planning watershed, it is possible to
ascertain the potential contributory effects of plan ground disturbing activities in
conjunction with other activities as well as whether resource sensitivity is within a
geographic area united by common watershed drainage patterns.” In contrast, the
Pacific Lumber watershed assessment areas “range in size from 55,000 acres to
47
426,000 acres and each [watershed assessment area] encompasses numerous
planning watersheds. At the highly aggregated scale of a [watershed assessment
area], it is impossible to assess the extent to which individual planning watersheds
are being cumulatively impacted by [Pacific Lumber’s logging activities] and
other industrial timber harvesting and road building activities.”
As discussed, Assembly Bill 1986 specifically contemplates deferred
watershed analysis to be completed after the SYP and HCP are approved. That
statute and the HCP prescribe a five-year period after the SYP’s and HCP’s
approval in which the watershed analysis will be accomplished. But this fact does
not entirely resolve the issue before us. As noted, under the Forest Practice Rules,
a SYP “shall not replace a THP. However, to the extent that sustained timber
production, watershed impacts and fish and wildlife issues are addressed in the
approved SYP, these issues shall be considered to be addressed in the THP; that is
the THP may rely upon the SYP.” (FP Rules, § 1091.2, italics added.) In
approving the SYP, the CDF director also approved a conifer harvest level of an
average of 178.8 mmbf per year for the first decade — and specifically found that
Pacific Lumber may rely on that estimate in its future timber harvest plans.
EPIC argues that, apart from the question whether substantial evidence
supports that estimate, CDF failed to proceed according to law because it
approved that estimate before it had gathered critical information necessary to
understand the effects of Pacific Lumber’s timber harvesting on the environment,
and therefore necessary to arrive at an accurate long-term sustained yield estimate.
It points to the provision of Forest Practice Rules and the Forest Practice Act
itself, that the achievement of “maximum sustained production of high-quality
timber products” (FP Rules, § 1091.1, subd. (b)) that is the goal of the act must be
“consistent with the protection of soil, water, air, fish and wildlife resources.” (FP
Rules, § 1091.45(a); see Pub. Resources Code, § 4513, subd. (a).) It also points to
48
Forest Practice Rules section 1091.6, subdivision (c): “The SYP shall contain a
description of the individual planning watersheds in sufficient detail to allow a
review of the analysis of impacts.” Without sufficient information about the
environmental impacts of Pacific Lumber’s contemplated intensive logging, EPIC
argues, there can be no reliable long-term sustained yield estimate which, as
discussed, signifies a timber harvest that is, among other things, environmentally
sustainable. All parties appear to agree that the long-term sustained yield estimate
is at the core of a sustained yield plan, and EPIC argues that in the absence of a
reliable estimate, the SYP itself must be invalidated. Moreover, EPIC argues, in
essence, that the issue of this insufficiency is not excused or addressed by
Assembly Bill 1986.
CDF contends that the watershed planning and assessment was adequate to
comply with the Forest Practice Rules. It points to Forest Practice Rules section
1091.6, subdivision (a), which provides that “[t]he minimum assessment area shall
be no less than a planning watershed. The assessment area may include multiple
watersheds . . . .” Subdivision (d) further provides: “The SYP submitter shall
utilize any one or a combination of methods to assess adverse watershed impacts
including but not limited to: [¶] . . . [¶] (3) Other methods proposed in the SYP
and approved by the Director.”
Yet the fact that section 1091.6, subdivision (a) of the Forest Practice Rules
refers to “assessment area” and provides that the “minimum assessment area shall
be no less than a planning watershed” but may include “multiple watersheds” does
not modify the obligation found in section 1091.6, subdivision (c) to describe
“individual planning watersheds in sufficient detail to allow a review of the
analysis of impacts.” An “assessment area” generally refers to the total
geographic area over which environmental review must be conducted, and the
controversy surrounding such areas generally concerns whether a government
49
agency and the plan submitter have selected areas that are too small to fully
encompass the environmental impacts of a project or logging activity on an
endangered or threatened species. (See Ebbetts Pass Forest Watch v. Department
of Forestry & Fire Protection (2008) 43 Cal.4th 936, 945-951.) Here, the
question is not whether the overall assessment area referenced in section 1091.6,
subdivision (a) was sufficiently large in scope, but whether watershed assessment
areas were too large to permit the individual watershed analyses required by the
Forest Practice Rules. Although Pacific Lumber contends that “the watershed
assessment contained information for individual planning watersheds consistent
with the [Forest Practice Rules],” it cites to a portion of the SYP that merely lists
the individual planning watersheds within each watershed assessment area. This is
plainly insufficient to meet the descriptive requirements of section 1091.6,
subdivision (c).
CDF also points to the definitional section of the Forest Practice Rules,
section 895.1, defining “planning watershed” (see fn. 15, ante) and in particular to
the language that “[timber harvest] Plan submitters may propose and use different
planning watersheds, with the director’s approval.” But nothing in the record
suggests that the Director approved any “different planning watershed” in this
case, or that the permitted use of watershed assessment areas at the SYP stage
displaced Pacific Lumber’s obligation under section 1091.6, subdivision (c) to
assess impacts on individual planning watersheds.
CDF further seeks to justify its manner of proceeding by pointing to the
fact that the SYP is “a large scale planning document[s] similar to a programmatic
environmental impact report.” The CDF contends that the relationship between a
SYP and a THP “is analogous to the relationship between a programmatic EIR and
a site-specific EIR.” In other words, CDF and Pacific Lumber argue, echoing the
Court of Appeal, that the SYP engaged in the common practice in environmental
50
analysis of “tiering.” Tiering is a process “by which an agency prepares a series of
EIRs or negative declarations, typically moving from general, regional concerns to
more site-specific considerations with the preparation of each new document.”
(Remy et al., Guide to CEQA (11th ed. 2006) p. 601.)
We recently articulated the appropriate role of tiering: “While proper
tiering of environmental review allows an agency to defer analysis of certain
details of later phases of long-term linked or complex projects until those phases
are up for approval, CEQA’s demand for meaningful information ‘is not satisfied
by simply stating information will be provided in the future.’ [Citation.] As the
CEQA Guidelines explain: ‘Tiering does not excuse the lead agency from
adequately analyzing reasonably foreseeable significant environmental effects of
the project and does not justify deferring such analysis to a later tier EIR or
negative declaration.’ (Cal. Code Regs., tit. 14, § 15152, subd. (b).) Tiering is
properly used to defer analysis of environmental impacts and mitigation measures
to later phases when the impacts or mitigation measures are not determined by the
first-tier approval decision but are specific to the later phases. For example, to
evaluate or formulate mitigation for ‘site specific effects such as aesthetics or
parking’ (id., § 15152 [Discussion] ) may be impractical when an entire large
project is first approved; under some circumstances analysis of such impacts might
be deferred to a later-tier EIR.” (Vineyard Area Citizens for Responsible Growth,
Inc. v. City of Rancho Cordova, supra, 40 Cal.4th 412, 431, fn. omitted.)
Stated another way, CEQA contemplates consideration of environmental
consequences at the “ ‘ “earliest possible stage, even though more detailed
environmental review may be necessary later.” ’ [Citation.] The requirements of
CEQA cannot be avoided by piecemeal review which results from ‘chopping a
large project into many little ones — each with a minimal potential impact on the
environment ― which cumulatively may have disastrous consequences.’ ” (Rio
51
Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 370.
On the other hand, “ ‘ “[W]here future development is unspecified and uncertain,
no purpose can be served by requiring an EIR to engage in sheer speculation as to
future environmental consequences.” [Citation.]’ ” (Id. at p. 372.)
In the present case, there is no indication that analysis of planning
watershed assessments was infeasible under the principles of tiering cited above,
i.e., that the lack of specific details about Pacific Lumber’s projected activities
made it infeasible to do individual watershed planning analysis. In fact, the
completion of the watershed analysis within five years was not tied to any
particular THP and was not contingent on Pacific Lumber formulating the siting
and other details of its logging activity more precisely. Rather, as Pacific Lumber
admits, “the deferral of a more specific analysis of smaller ‘planning watersheds’
was because more detailed site-specific information was not readily available at
that smaller scale by the conclusion of the administrative review process on March
1, 1999 . . . .” As discussed above, the March 1, 1999 deadline was imposed by
federal funding legislation, and did not mark a natural stopping point in the
environmental analysis. What was done in this case is best characterized not as
tiering of environmental analysis but rather as deferring a portion of the analysis in
order to approve the SYP by a statutory deadline.
As noted, the Forest Practice Rules provide that “to the extent that
sustained timber production, watershed impacts and fish and wildlife issues are
addressed in the approved SYP, these issues shall be considered to be addressed in
the THP; that is the THP may rely upon the SYP.” (FP Rules, § 109.2.) The
position of CDF and Pacific Lumber has been that future THP’s may not rely on
the SYP’s watershed impacts analysis, because it is admittedly incomplete, but
that it may rely on its analysis of long-term sustained yield. But the above
categories of environmental analysis, although distinct, are interrelated, and the
52
substantial informational and analytic gap in the analysis of watershed impacts,
which directly affect fish and wildlife issues, may also call into question the
reliability of the long term sustained yield estimate, which depends in part on an
assessment of watershed and wildlife impacts.
In any case, whether or not there was adequate justification in 1999 for
deferring individual watershed planning analysis, we perceive no justification for
further delay. As discussed, we hold that an identifiable SYP was never properly
approved and must be resubmitted for approval. We hold also that the document
must include individual planning watershed analyses, which CDF agrees is
necessary to address the cumulative effects of Pacific Lumber’s logging practices
on the 211,000 acres in question. In considering whether to approve the
resubmitted SYP, moreover, CDF must decide whether the information on
individual planning watersheds complies with the Forest Practice Rules and is
adequate to support Pacific Lumber’s long-term sustained yield estimate.
8. Sustained Yield Plan’s Demonstration of the Maximum Sustained
Production of High Quality Timber
The Steelworkers claim that the SYP violated the provision in Forest
Practice Rules section 1091.45, subdivision (a) that a SYP must demonstrate how
sustained production of “high quality timber products” will be achieved. In
support of this claim, the Steelworkers point to what they contend are “several
undisputed factual findings on this issue” by the superior court. First, that “old-
growth trees are high-quality timber; in fact, the highest quality,” and produce the
“most desirable commercial timber.” Second, “that the majority of old-growth
trees projected to be logged over 120 years will be felled in the first decade and
more than 80 percent in the first 20 years.” Third, that such a “rate of logging
does not balance growth and harvest over time with respect to old-growth timber.”
53
The success of this claim depends upon the Steelworkers’ equating “high-
quality timber products” in the Forest Practice Rules with old growth trees. In
making this equation, the Steelworkers cite two pieces of evidence in the record.
The first is a reference in section 3.9 of the final EIS/EIR singling out the unique
attributes of old growth forests. These include that old-growth redwood stands
“may have 10 to 20 times the wood volume of an entire acre of trees in the
deciduous forests of eastern North America [citation],” that the “volume and the
quality of the wood . . . make such redwood trees extremely valuable,” and that
old growth forests “provide important habitat for many plant and animal species
not provided by younger forests.” The Steelworkers also cite to a table found in
the Public Review Draft of the SYP demonstrating that old growth redwoods, and
to a lesser degree old growth Douglas firs, are significantly more valuable
economically than younger growth species.
We conclude that these citations fail to demonstrate that CDF violated
Forest Practice Rules section 1091.45, subdivision (a). The fact that old growth
timber is of the highest quality, and that 80 percent will be logged over the first 20
years does not mean that other, remaining timber is not of “high quality” within
the meaning of the Forest Practice Rules. These rules provide that maximum
sustained production is demonstrated in a SYP “by providing sustainable harvest
yields established by the landowner which will support the production level of
those high quality timber products the landowner selects while at the same time”
meeting the various other requirements. (FP Rules, § 913.11, subd. (b), italics
added.) As noted, we defer to an agency’s interpretation of its own regulations,
particularly when the interpretation implicates areas of the agency’s expertise.
(Yamaha Corp. of America v. State Bd. of Equalization, supra, 19 Cal.4th 1, 12-
13.) Although heavily logging old growth timber in the early decades may cause
54
economic or ecological repercussions, the Steelworkers have failed to demonstrate
that such heavy logging, by itself, violates any Forest Practice Rule.
9. Confusion
of
Late Succession Forests with Late Seral Habitat
Section 919.16, subdivision (a) of the Forest Practice Rules states that
“[w]hen late succession forest stands are proposed for harvesting and such harvest
will significantly reduce the amount and distribution of late succession forest
stands or their functional wildlife habitat value so that it constitutes a significant
adverse impact on the environment,” then “[t]he THP, SYP, or NTMP[17] shall
include a discussion of how the proposed harvesting will affect the existing
functional wildlife habitat for species primarily associated with late succession
forest stands in the plan or the planning watershed, as appropriate, including
impacts on vegetation structure, connectivity, and fragmentation.”
As the Court of Appeal opinion explained, EPIC contends “that the
Sustained Yield Plan here does not include such information. The Public Review
Draft supplies an evaluation of ‘late seral forests,’ a classification that includes but
is not limited to late succession[] forests. The category of ‘late seral forests’ is
also used in the Habitat Conservation Plan and in the EIS/EIR.” A “late seral
forest” is defined in the public draft SYP as “stands with overstory trees that on
average are larger than generally 24 [inches diameter breast height] and may have
developed a multi-storied structure. It occurs in stands as young as 40 years old
but more typically in stands about 50 to 60 years old and older.” Late succession
forests, on the other hand, are dominated by large, old growth trees. So late seral
17
NTMP stands for Nonindustrial Timber Management Plan. (FP Rules,
§ 895.)
55
forests may consist largely of trees younger than those found in late succession
forests, with features less suitable to certain species than the latter forests.
EPIC contends that Pacific Lumber was not authorized to unilaterally
change the definition of what constituted a late succession forest, and that this
altered definition amounted to noncompliance with Forest Practice Rules section
919.16. They point to a statement by CDF in response to comments on the public
draft EIS/EIR: “We are aware that there is a gap in [Pacific Lumber’s] seral stage
classification: that it does not take into account the lengthy transition from even-
age stands that are relatively young and weakly stratified (including [Pacific
Lumber’s] late seral stage) to relatively old, complex, and highly stratified stands
that would be considered old-growth. Monitoring efforts and agency
considerations in the watershed analysis process will be focused on actual stand
attributes.”
The Court of Appeal concluded that Forest Practice Rules section 919.16,
subdivision (a) was not violated because the regulation called for analysis of late
succession or forest impacts at either the SYP or THP stages. It further concluded:
“In any event, the variant classification used by [Pacific Lumber] was
harmless. . . . [EPIC has] made no assertion that the habitats of any particular
wildlife species were overlooked or omitted by the analysis of late seral forests,
rather than late succession forests.”
We agree that deferring the analysis of late succession forests to the THP
stage, although it creates an analytical gap in assessing impacts on wildlife, does
not violate the Forest Practice Rules, when, as here, the relevant environmental
documents contain substantial analysis of the impacts of timber operations on
wildlife associated with late succession forests. On remand, the parties may
address whether inclusion of any omitted information related to late succession
forests in the resubmitted SYP would be appropriate.
56
C. Challenges to the Incidental Take Permit
EPIC makes several challenges to the validity of the state 50-year
Incidental Take Permit. Each of these will be considered in turn.
1. The Validity of the No Surprises Clauses
EPIC contends that the DFG violated CESA, the California Endangered
Species Act (Fish & G. Code, § 2050 et seq.), in agreeing to what are called “no
surprises clauses” that would limit in advance the obligation of Pacific Lumber to
mitigate various impacts on endangered and threatened species. An overview of
CESA is useful for addressing these claims.
The Legislature has declared that “[I]t is the policy of the state to conserve,
protect, restore, and enhance any endangered species or any threatened species and
its habitat.” (Fish & G. Code, § 2052.) “Under CESA, a native species of bird,
mammal, fish, amphibian, reptile, or plant is considered ‘endangered’ when it ‘is
in serious danger of becoming extinct throughout all, or a significant portion, of its
range’ (Fish & G. Code, § 2062), and ‘threatened’ when it ‘is likely to become an
endangered species in the foreseeable future in the absence of . . . special
protection and management efforts.’ (Fish & G. Code, § 2067.)” (Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 114.)
Central to CESA is its prohibition on the taking of an endangered or
threatened species. (Fish & G. Code, § 2080.) To “take” in this context means to
catch, capture or kill. (Fish & G. Code, § 86.) Nonetheless, CESA allows the
DFG to authorize a “take” that is incidental to an otherwise lawful activity if
certain conditions are met. (Fish & G. Code, § 2081, subd. (b); see also Cal. Code
Regs., tit. 14, § 783 et seq.) At the heart of CESA is the obligation to mitigate
such takes. “The impacts of the authorized take shall be minimized and fully
mitigated. The measures required to meet this obligation shall be roughly
proportional in extent to the impact of the authorized taking on the species. Where
57
various measures are available to meet this obligation, the measures required shall
maintain the applicant’s objectives to the greatest extent possible. All required
measures shall be capable of successful implementation. For purposes of this
section only, impacts of taking include all impacts on the species that result from
any act that would cause the proposed taking.” (Fish & G. Code, § 2081, subd.
(b)(2), hereafter section 2081(b)(2).)
In this case, a state Incidental Take Permit was issued to Pacific Lumber
authorizing the incidental take of the marbled murrelet, an endangered bird, and
the bank swallow, a threatened bird. The taking of two other fully protected
species was not permitted under the permit.18
EPIC contends that the state Incidental Take Permit was issued with
unlawful no surprises clauses. As explained in the HCP, the no surprises
provision consists of two major components. First, if there are changed
circumstances that were anticipated in the HCP, and mitigation measures were
prescribed to meet the adverse impacts of those changed circumstances, then if
and when those circumstances occur, the landowner will be expected to implement
those measures and no others. As the HCP’s Implementation Agreement makes
clear, this is the case even if “additional conservation and mitigation measures are
deemed necessary by [DFG] to respond to a Changed Circumstance.” Second, in
the case of unforeseen circumstances, the government will not require the
commitment by the landowner of additional land, water, or financial
18
The state Incidental Take Permit also authorized in advance the take of 13
“unlisted” species should they become listed in the future under CESA. The Court
of Appeal held that DFG erred in issuing a permit in advance for unlisted species,
concluding that the Pacific Lumber must seek new permits if and when the species
become listed. It concluded that this provision must be severed from the
Incidental Take Permit. Pacific Lumber and DFG do not challenge this ruling.
58
compensation, or additional restrictions on the use of land, water or other natural
resources unless the landowner consents. “Unforeseen circumstances” are defined
as “those changes in circumstances affecting a species or geographic area covered
by an HCP, that could not reasonably be anticipated by a landowner and the
wildlife agencies at the time of the HCP development and that result in a
substantial and adverse change in the status of a species covered by the HCP.”
Particular types of “changed circumstances” and “unforeseen
circumstances” are defined in the HCP. For example, “fire changed
circumstances” are wildfires, including “those originating from timber operations
and prescribed burning” that are 5,000 acres or less. “Fire unforeseen
circumstances” is defined as all such wildfires that are over 5,000 total acres.
Changed and unforeseen circumstances for wind, landslides, and flooding are
similarly defined in terms of the magnitude of the events.
EPIC argues that these kinds of advanced assurances that additional
mitigation measures will not be required even when the measures are deemed
necessary by DFG is contrary to that agency’s statutory mandate. EPIC bases the
argument on the language of Fish and Game Code section 2081(b)(2), as discussed
above, that the impact of the authorized take must be “fully mitigated.”
Pacific Lumber and DFG have several responses to this argument. First,
they note, as the Court of Appeal did, that the no surprises rule is the established
policy of federal wildlife agencies, as adopted by federal regulation (50 C.F.R.
§ 17.22). They contend the authority to make regulatory assurances likewise
resides in DFG. They also point to a provision of the Natural Community
Conservation Planning Act (NCCPA; Fish & G. Code, § 2800 et seq.), which
allows for similar regulatory assurances in the context of the development of a
Natural Community Conservation Plan.
59
EPIC counters that the existence of a provision within the NCCPA
authorizing a “no surprises” provisions undermines rather than supports Pacific
Lumber’s argument. It argues that this statute demonstrates that when the
Legislature intends to authorize an agency to give a landowner regulatory
assurances that no further mitigation measures will be required in the case of
changed or unforeseen circumstances, it has done so explicitly, and that we should
infer from the lack of such explicit authorization in CESA that the Legislature did
not intend such authorization. (See Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1395 [when the Legislature intends to
authorize an agency to award damages, it does so expressly, as evidenced by
pertinent statutes].)
In order to evaluate that argument, it is useful to understand the background
and scope of the NCCPA. As originally enacted in 1991, the act provided that
DFG “may enter into agreements with any person for the purpose of preparing and
implementing a natural community conservation plan to provide comprehensive
management and conservation of multiple wildlife species” (Fish & G. Code,
former § 2810), and that such planning “may be undertaken by local, state and
federal agencies independently or in cooperation with other persons.” (Fish & G.
Code, former § 2820; Stats. 1991, ch. 765, § 2, pp. 3424-3425.) The former
statute further provided that the Fish and Game Commission, on recommendation
from DFG, “may authorize . . . the taking of any candidate species whose
conservation, protection, restoration, and enhancement is provided for in a [DFG]
approved natural community conservation plan” that ensured compatibility with
the federal Endangered Species Act. (Id., former § 2830; see also former § 2825,
subd. (a)(6).)
The NCCPA was amended in 2002 (Stats. 2002, ch. 4, § 2) to define in
much greater detail the kind of provisions that are to be included in a natural
60
community conservation plan, including public participation in the development of
the plan (Fish & G. Code, § 2815), and an extensive set of findings required for
plan approval (id., § 2820, subd. (a)). These findings are to include that “the plan
integrates adaptive management strategies that are periodically evaluated and
modified based on the information from the monitoring program” (id.,
subd. (a)(2)) and that “[t]he plan provides for the protection of habitat, natural
communities, and species diversity on a landscape or ecosystem level through the
creation and long-term management of habitat reserves or other measures that
provide equivalent conservation of covered species” (id., subd. (a)(3)). Section
2820 also includes detailed provisions for implementation agreements (id., subd.
(b)) and provisions for monitoring and enforcement (id., subds. (b) & (c)). Section
2820, subdivision (f)(2) provides: “If there are unforeseen circumstances,
additional land, water, or financial compensation or additional restrictions on the
use of land, water, or other natural resources shall not be required without the
consent of plan participants for a period of time specified in the implementation
agreement, unless the department determines that the plan is not being
implemented consistent with the substantive terms of the implementation
agreement.”
DFG argues that CESA and the NCCPA are distinct statutory schemes that
never have been amended together, and that therefore the explicit provision for
regulatory assurances in the latter statute does not imply a lack of authority to
grant regulatory assurances under the former statute. We find DFG’s argument
unpersuasive. First, although CESA and the NCCPA are distinct statutes, they
share a common objective — they authorize the incidental taking of threatened
and endangered species in a way that minimizes impacts on those species. The
statutes take different routes to that objective, CESA through the imposition of
“roughly proportional” mitigating measures on landowners, the NCCPA through a
61
comprehensive agreement incorporating various mitigation measures, including
the creation of habitat reserves. Although in practice these lines may be blurred,
the Legislature clearly contemplated distinct statutory paths to the same objective.
Moreover, CESA has been amended several times either contemporaneously with
or subsequent to the 2002 amendment of the NCCPA. (See Stats. 2004, ch. 614,
§ 1; Stats. 2003, ch. 62, § 96; Stats. 2002, ch. 32, § 2.) Where as here the
Legislature has established alternative statutory schemes for authorizing and
minimizing the taking of endangered species, but has provided a particular benefit
to landowners — regulatory assurances — in only one of those schemes, the
natural inference is that it did not intend the same assurances to be provided in the
other scheme.
Nor does the language of CESA assist DFG’s position. Pacific Lumber and
DFG point out that although the act speaks of “fully mitigat[ing]” the impacts of
the authorized take, it also has significant limiting language. The statute provides
that the landowner’s obligation only be “roughly proportional in extent to the
impact . . . on the species.” (§ 2081(b)(2).)
As amici curiae California Building Industry Association et al. point out,
the “roughly proportional” language mirrors the constitutional standard for what
constitutes the taking of property set forth in Dolan v. City of Tigard (1994) 512
U.S. 374. In that case, the court held under Fifth and Fourteenth Amendments
takings jurisprudence that when a government requires a dedication of land in
exchange for a development permit, it must guided by the principle of “rough
proportionality,” i.e., it must ” “make some sort of individualized determination
that the required dedication is related both in nature and extent to the impact of the
proposed development.” (512 U.S. at p. 391.) As we stated in a case that applied
Dolan’s rationale to development fees, Dolan was “concerned with implementing
one of the fundamental principles of modern takings jurisprudence — ‘to bar
62
Government from forcing some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.’ ” (Ehrlich v. City
of Culver City (1996) 12 Cal.4th 854, 880.)
Thus, to require that mitigation measures be roughly proportional to a
landowner’s impact on a species means that the landowner is only required to
mitigate its own impacts on the species. If the no surprises provisions applicable
to Pacific Lumber did no more than guarantee this kind of proportionality, then
they would be unquestionably within DFG’s purview. But these provisions go
further. For example, included in the changed and unforeseen circumstances
pertaining to fire are fires “originating from timber operations.” Furthermore, in
defining “landslide” or “flood,” changed and unforeseen circumstances are cast
solely in terms of magnitude, and do not differentiate between those events
partially caused or exacerbated by timber harvesting and those that are not. Nor
do the regulatory assurances permit DFG to require additional mitigation measures
when changed and unforeseen circumstances have rendered previously prescribed
mitigation measures insufficient. Inasmuch as the language categorically exempts
Pacific Lumber from mitigating impacts of its own activities on listed species and
their habitat, it goes further than the language Fish and Game Code section
2081(b)(2) contemplates.
In other words, reading the “roughly proportional” language together with
the “fully mitigate” language leads to the conclusion the Legislature intended that
a landowner bear no more — but also no less — than the costs incurred from the
impact of its activity on listed species. To the extent that the changed and
unforeseen circumstances provisions of the Incidental Take Permit exempt
landowners from this obligation, they exceed DFG’s statutory authority under
CESA. The language in the last sentence of Fish and Game Code section
2081(b)(2) stating that “impacts of taking include all impacts on the species that
63
result from any act that would cause the proposed taking” (Fish & G. Code, §
2081, subd. (b)(2)) further supports our construction of the statute.19
Pacific Lumber and DFG in support of their argument also point to the
language providing that “[w]here various measures are available to meet this
obligation [to fully mitigate], the measures required shall maintain the applicant’s
objectives to the greatest extent possible.” (Fish & G. Code, § 2081, subd. (b)(2).)
19
Amici curiae California Association of Counties & League of Cities and the
Building Industry Association, et al., call our attention to the legislative history of
section 2081(b)(2), and argue that this history demonstrates that regulatory
assurances were contemplated. We disagree that the legislative history supports
their position.
Section 2081 was enacted in response to the Court of Appeal opinion in
Planning and Conservation League v. Department of Fish and Game (Apr. 10,
1997), A074048, review granted June 18, 1997, S061521, review dism. Nov. 25,
1997), in which the court held that CESA does not give DFG the authority to issue
Incidental Take Permits. (Sen. Com. on Nat. Resources & Wildlife, Analysis of
Sen. Bill No. 879 (1997-1998 Reg. Sess.) as amended Sept. 9, 1997, p. 2.) Amici
curiae point to a letter from Senator Tom Hayden to Senator Patrick Johnson
expressing concern that the bill that eventually became section 2081 “gives
unprecedented assurances to private parties limiting their responsibility to mitigate
damage to species (their cost is limited to rough proportionality, the mitigation
must be economic, it must be assuredly successful, etc.” (Sen. Tom Hayden, letter
to Sen. Patrick Johnson, Sept. 3, 1997.) Even assuming that such a letter is
relevant to the determination of legislative intent (but see Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 37-
38 [letters to and from individual legislators not judicially noticeable on issue of
legislative intent]), it does not advance the argument of amici curiae. The fact that
various legislators or environmental groups believed the bill went too far in
limiting the obligation of private parties to mitigate impacts on endangered species
by imposing proportionality requirements and the like does not mean the
Legislature contemplated the kind of categorical assurances included in the current
Implementation Agreement. In other words, although the language and legislative
history reveals that the Legislature was unquestionably attempting to strike a
balance between competing interests in passing section 2081(b)(2), it does not
disclose that the regulatory assurances at issue here were part of that balance.
64
This language does not diminish the extent of a landowner’s obligation under
CESA, however, but merely provides that when that obligation can be met in
several ways, the way most consistent with a landowner’s objectives should be
chosen. It does not relieve the landowner of the obligation to fully mitigate its
own impacts.
With respect to the changed circumstances portion of the no surprises
provisions, Pacific Lumber and DFG endorse the Court of Appeal’s conclusion:
“The required responses to changed circumstances are designed to mitigate the
impact of physical processes (such as fire, flood, earthquake) that can be
anticipated in the course of the underlying activities. Insofar as [EPIC contends]
that the responses will not in fact fully mitigate the adverse impacts, their
contention is a challenge to the sufficiency of the evidence to support the
Department’s finding on full mitigation, and that challenge is foreclosed.”
But as noted, the Implementation Agreement to the HCP provides that even
“[i]f additional conservation and mitigation measures are deemed necessary by
[DFG] to respond to a Changed Circumstance and such measures were not
provided for pursuant to the HCP, [DFG] will not require any new, additional or
different conservation and/or mitigation measures from [Pacific Lumber] in
addition to those provided for pursuant to the HCP without the consent of [Pacific
Lumber].” Thus, we do not understand EPIC to be mounting a sufficiency of the
evidence challenge to the mitigation measures proposed in the HCP in response to
certain anticipated changed circumstances, but rather to be challenging a provision
stating that even when DFG itself concludes the prescribed mitigation measures
are not adequate in light of changed circumstances, it will not impose new
measures without Pacific Lumber’s consent. As discussed, this provision cannot
be reconciled with Pacific Lumber’s duty to fully mitigate the impacts of its take.
65
Nor do we agree with the Court of Appeal’s approach in addressing the
unforeseen circumstances issue. As the court stated: “With respect to unforeseen
circumstances, the full mitigation requirement does not apply. The focus of the
full mitigation requirement is on adverse impacts that result from an ‘act’ — i.e., a
purposeful activity. (Fish & G. Code, § 2081, subd. (b); see Department of Fish &
Game v. Anderson-Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1561.)
Adverse impacts that result from unforeseen circumstances are impacts that cannot
reasonably be anticipated, not impacts from purposeful activities.”
We agree that the focus of the full mitigation requirement is on adverse
impacts that result from purposeful activity. But as discussed above, “unforeseen”
circumstances, as defined in the HCP, includes impacts resulting from purposeful
activity. A catastrophic event such as a fire or flood is classified as unforeseen
when it reaches a certain magnitude, whether or not Pacific Lumber’s timber
operations contributed to that event. Moreover, when natural disasters change
baseline conditions, then logging activities that previously would not have had a
significant impact on endangered species may now have such an impact, and
therefore fall within the scope of the CESA obligation to fully mitigate impacts.
To be sure, there is no obligation for a permit holder to mitigate the impacts of the
natural disasters themselves when it did not contribute to them. But when these
impacts are exacerbated by the permit holder’s own subsequent purposeful
activities, then section 2081(b)(2) mandates the full mitigation of the impacts of a
take, guided by the principle of rough proportionality. Particularly in light of the
50-year duration of the permit, provisions that freeze Pacific Lumber’s obligations
66
to mitigate in the face of changing circumstances, even when these circumstances
are labeled “unforeseen,” cannot comply with the statutory mandate.20
Moreover, the term “unforeseen circumstance” is a misnomer. Obviously,
events identified in the HCP, such as fires over 5,000 acres and 100-year floods,
are not unforeseen. They may be rare events, but if Pacific Lumber’s timber
operations contribute to cause such events to occur more frequently, or if the
events themselves change conditions in such a way as to necessitate additional
mitigation measures, there is no reason under section 2081(b)(2) that additional
measures cannot be required.
Pacific Lumber further argues that Assembly Bill 1986, the legislation that
authorized the Headwaters Agreement, implicitly approved the no surprises
clause. The statute “made compliance with the Implementation Agreement [for
the HCP] a condition of the SYP and other permits.” Section 3 of that act states:
“Notwithstanding any other provision of law, funds appropriated by this act shall
only be encumbered by the board if the final habitat conservation plan (hereafter
“final HCP”), implementing agreement, and permits to allow the incidental take of
threatened and endangered species, . . . incorporate, at minimum, the following
additional conditions and the final HCP is no less protective of aquatic or avian
species than the draft HCP, as amended by those conditions . . . .” (Stats. 1998,
20
We recognize that the HCP also contains various “adaptive management”
programs designed to protect wildlife in response to changing circumstances. The
relationship between these programs and the no surprises provisions is unclear.
The parties may address on remand the extent to which these programs fulfill
Pacific Lumber’s obligation to fully mitigate the impact of its take of listed
species, notwithstanding the regulatory assurances found in the Incidental Take
Permit.
67
ch. 615, § 3.) The Act then goes on to prescribe certain specific conditions and
restrictions on Pacific Lumber’s timber harvesting. (Ibid.)
This argument is not persuasive. Assembly Bill 1986’s reference to the
draft HCP established the minimum protective measures to be included in the final
HCP — it was to serve as a floor, not a ceiling. The citation to a draft HCP that
was then undergoing public review and possible revision obviously did not signify
legislative approval of the contents of that draft beyond its use as a baseline.
Moreover, an implied amendment of a statute is generally disfavored. (Lesher
Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 540-541.)
Here, the general reference to complying with the conditions imposed by the draft
HCP does not evince any legislative intent to alter the scope of DFG’s statutory
authority to issue incidental take permits under Fish and Game Code section
2081(b)(2), nor indicate any consideration of the use of regulatory assurances.
There is no evident legislative intent to grant an exception to section 2081(b)(2)’s
full mitigation and rough proportionality requirements.
Pacific Lumber and DFG, as well as several amici curiae, also emphasize
the important policy promoted by such regulatory assurances, endorsing the Court
of Appeal’s statement that “the ‘no surprises’ rule is . . . intended to encourage
landowners to factor into their day-to-day activities measures to protect
endangered species. By bringing in an element of certainty, the no-surprise rule
removes a disincentive a landowner might have to obtaining an incidental take
permit and submitting to the mitigation measures.” As discussed above, however,
the Legislature has already provided a means for DFG to validly provide the types
of regulatory assurances at issue here to landowners pursuant to the NCCPA. The
68
expansion of the circumstances under which such assurances can and should be
given is a matter best addressed by the Legislature.21
2. Violations of the Public Trust Doctrine
EPIC contends that the Incidental Take Permit constituted abandonment of
the DFG’s public trust obligation to protect the natural resources of this state by
virtue of the no surprises clauses, discussed above, and because of improper
delegation to Pacific Lumber to determine which northern spotted owl sites will
receive protection and which will be eliminated.
As the Court of Appeal recognized, there are two distinct public trust
doctrines invoked by EPIC. First is the common law doctrine, which involves the
government’s “affirmative duty to take the public trust into account in the
planning and allocation of water resources . . . .” (National Audubon Society v.
Superior Court (1983) 33 Cal.3d 419, 446.) The second is a public trust duty
derived from statute, specifically Fish and Game Code section 711.7, pertaining to
fish and wildlife: “The fish and wildlife resources are held in trust for the people
of the state by and through the department.” (Id., subd. (a).) There is doubtless an
overlap between the two public trust doctrines — the protection of water resources
21
As noted, the regulatory assurances provision of the NCCPA in Fish and
Game Code section 2820, subdivision (f) was added by statute in 2002. (Stats.
2002, ch. 4, § 2.) It is unclear whether the NCCPA prior to that date impliedly
authorized such assurances. This is not a question we need to address here
because DFG made the finding that the present HCP did not constitute a natural
community conservation plan under the NCCPA as defined at the time of the
HCP’s approval in 1999. In any case, the validity of those pre-2002 plans or any
regulatory assurances given within them does not appear to be open to question.
(See Fish & G. Code, § 2830, subd. (a) [authorizing incidental take pursuant to a
natural community conservation plan approved prior to 2002].)
69
is intertwined with the protection of wildlife. (See National Audubon Society,
supra, 33 Cal.3d at p. 447.)
Nonetheless the duty of government agencies to protect wildlife is
primarily statutory. Fish and Game Code section 1801, which declares that it is
“the policy of the state to encourage the preservation, conservation, and
maintenance of wildlife resources under the jurisdiction and influence of the
state,” also declares in subdivision (h) that “[i]t is not intended that this policy
shall provide any power to regulate natural resources or commercial or other
activities connected therewith, except as specifically provided by the Legislature.”
Generally speaking, therefore, we will look to the statutes protecting wildlife to
determine if DFG or another government agency has breached its duties in this
regard.
In the previous part of this opinion we concluded that DFG breached its
duty to require full mitigation of the impacts of an authorized take of a listed
species under section 2081(b)(2) by the no surprises provisions in the HCP and
Implementation Agreement. Its violation, therefore, is not of some general public
trust duty, but of a specific statutory obligation.
Moreover, we find no support in the record for EPIC’s second claim, that in
the Incidental Take Permit DFG improperly delegated to Pacific Lumber which
northern spotted owl sites should be preserved. Rather, the relevant documents
reveal that DFG has maintained its authority to review Pacific Lumber’s site-
specific decisions regarding preservation of northern spotted owl habitat.
We therefore conclude the Incidental Take Permit did not violate a common
law public trust duty.
70
3. Inadequate
CESA
Findings
EPIC contends that there were inadequate CESA findings to support the
Incidental Take Permit. Although the findings leave something to be desired, we
disagree there is prejudicial error.
Administrative agency decisions in which discretion is exercised may
generally be challenged by a writ of administrative mandamus pursuant to Code of
Civil Procedure section 1094.5. In Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506, 515 (Topanga), we considered the
meaning of subdivision (b) of that statute, defining “ ‘abuse of discretion’ to
include instances in which the administrative order or decision ‘is not supported
by the findings, or the findings are not supported by the evidence’ ” and
subdivision (c), wherein “ ‘abuse of discretion is established if the court
determines that the findings are not supported by substantial evidence in the light
of the whole record.’ ” We concluded “that implicit in section 1094.5 is a
requirement that the agency which renders the challenged decision must set forth
findings to bridge the analytic gap between the raw evidence and ultimate decision
or order. . . . By focusing . . . upon the relationships between evidence and
findings and between findings and ultimate action, the Legislature sought to direct
the reviewing court’s attention to the analytic route the administrative agency
traveled from evidence to action. In so doing, we believe that the Legislature must
have contemplated that the agency would reveal this route. Reference, in section
1094.5, to the reviewing court’s duty to compare the evidence and ultimate
decision to ‘the findings’ . . . we believe leaves no room for the conclusion that the
Legislature would have been content to have a reviewing court speculate as to the
administrative agency’s basis for decision.” (Topanga, supra, 11 Cal.3d at
p. 515.)
71
The findings do not need to be extensive or detailed. “ ‘[W]here reference
to the administrative record informs the parties and reviewing courts of the theory
upon which an agency has arrived at its ultimate finding and decision it has long
been recognized that the decision should be upheld if the agency “in truth found
those facts which as a matter of law are essential to sustain its . . . [decision].” ’ ”
(Sierra Club v. California Coastal Commission, supra, 19 Cal.App.4th at p. 556.)
On the other hand, mere conclusory findings without reference to the record are
inadequate. (See Village of Laguna Beach, Inc. v. Board of Supervisors (1982)
134 Cal.App.3d 1022, 1035.)
EPIC contends that the CESA findings are inadequate. Under DFG
regulations promulgated pursuant to CESA, the director of DFG must make
findings that the take authorized by the Incidental Take Permit is consistent with
the statutory requirements in Fish and Game Code section 2081, subdivision (b).
(FP Rules, § 783.4, subd. (a).) EPIC claims that DFG’s CESA findings merely
recited statutory criteria without any supporting rationale linking the evidence to
the ultimate conclusion.
The record discloses that the March 1, 1999 document containing the
CESA findings recites the language of Fish and Game Code section 2081,
subdivision (b) and affirms compliance with its provisions, referring to specific
documents in the record: for example, that the “Take of Covered Species as
defined in the ITP [Incidental Take Permit] will be incidental to the otherwise
lawful activities covered under the ITP,” that the impacts will be “minimized and
fully mitigated through the HCP’s Operating Conservation Program and
[Implementation Agreement]” and that “the conservation and mitigation measures
required pursuant to the HCP’s Operating Conservation Program are roughly
proportional in extent to the impact of Pacific Lumber’s take.”
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Thus, the findings refer to a specific document — the HCP’s Operating
Conservation Program. This portion of the HCP describes conservation plans for
each of the critical species expected to be impacted by Pacific Lumber’s activities,
setting forth for each species specific management objectives, conservation
measures, and a monitoring program. The findings also refer to the
Implementation Agreement, where Pacific Lumber’s obligations are further
delineated.
The CESA findings were made in conjunction with findings for the final
EIS/EIR. In the final EIS/EIR, the HCP’s conservation programs were analyzed,
and it was concluded that these programs would mitigate the adverse effects of
incidental take on various species. Although the better practice would have been
for the CESA findings to have referred more specifically to those portions of the
final EIS/EIR that support the conclusion that the impacts of the take will be
minimized and fully mitigated, we have no trouble under the circumstances
discerning “the analytic route the administrative agency traveled from evidence to
action.” (Topanga, supra, 11 Cal.3d at p. 515; see No Slo Transit, Inc. v. City of
Long Beach (1987) 197 Cal.App.3d 241, 260.) We find no prejudicial error.
D. Challenges to the Streambed Alteration Agreement
1. Failure to Negotiate Lawful Agreement
EPIC claims that DFG and Pacific Lumber did not enter into a proper
Streambed Alteration Agreement pursuant to former Fish and Game Code section
1603,22 and that agreement is therefore invalid. We disagree.
22
Fish and Game Code section 1603, together with the entire statutory
scheme for streambed alteration agreements, was substantially amended in 2003.
(Stats. 2003, ch. 736, § 2.)
73
Former Fish and Game Code section 1603, subdivision (a) provided during
the relevant period that “[i]t is unlawful for any person to substantially divert or
obstruct the natural flow or substantially change the bed, channel, or bank of any
river, stream, or lake designated by the department, or use any material from the
streambeds, without first notifying the department of that activity, except when the
department has been notified pursuant to Section 1601. The department, within 30
days from the date of receipt of that notice, or within the time determined by
mutual written agreement, shall, when an existing fish or wildlife resource may be
substantially adversely affected by that activity, notify the person of the existence
of that fish or wildlife resource together with a description of the fish or wildlife,
and shall submit to the person its proposals as to measures necessary to protect
fish and wildlife. . . . The department’s description of an existing fish or wildlife
resource shall be specific and detailed and the department shall make available
upon request the information upon which its conclusion is based that the resource
may be substantially adversely affected.” (Stats. 1996, ch. 825, § 3.5, p. 4327.)
Subdivision (b) dictated that the parties are to enter into an agreement about the
appropriate measures to adopt and provides a framework for resolving
disagreements.
The evident purpose of former Fish and Game Code section 1603 was to
protect existing fish and wildlife resources, and it accomplished that purpose by
imposing on DFG and private persons a set of interlocking obligations. A private
person is obliged to notify DFG before it diverts or obstructs streams or other
watercourses. This notice triggers DFG’s duty to determine if the obstruction or
diversion “may” substantially adversely affect fish and wildlife. If that
determination is made, then DFG has the duty to submit “proposals as to measures
necessary to protect fish and wildlife,” and to conduct an appropriate
investigation. DFG’s description of existing fish and wildlife resources must be
74
“specific and detailed.” The person may then either accept the proposal or
negotiate with DFG, and if agreement is not reached, both parties are obliged to
follow the dispute resolution mechanism set forth in subdivision (b). Each of
these obligations is to be performed pursuant to prescribed statutory deadlines.
With these rules in mind, we review the factual background behind the
Streambed Alteration Agreement in this case. Despite earlier announcements of
an intention to seek a Streambed Alteration Agreement, Pacific Lumber did not
officially notify the department of an intention to engage in streambed-altering
activity until very late in the regulatory approval process, on February 24, 1999.
Rather than discuss specific streams that would be impacted by Pacific Lumber’s
activities, the resulting agreement was instead a “master” document that
encompasses the entire 211,000 acres without identifying the location of specific
streams or activities. The notice referred to the final SYP/HCP for the location of
all streams and watercourses affected and the measures taken to protect fish and
wildlife.
This notice was filed with a Final Streambed Alteration Agreement, dated
February 25, 1999, that had already been negotiated with DFG. The agreement
was structured as follows. Exhibits A and B list certain “covered activities” that
are expected to occur on the property in question. Exhibit A consists of activities
that DFG has determined “may substantially divert or obstruct the natural flow” of
streams or other enumerated bodies of water, “depending on the location and/or
impacts of the covered activities.” These covered activities “would be addressed
under separate notifications and agreements pursuant to” section 1603. These
activities include timber harvesting, site preparation, thinning, fire suppression,
and road construction. A second set of covered activities, listed under exhibit B, is
the subset of activities in exhibit A that are the subject of the present Streambed
Alteration Agreement, and the agreement adopts in exhibit C specific measures
75
necessary to protect fish and wildlife resources from these activities. Activities
listed under exhibit B include construction of road crossings within class I and
class II watercourses, water drafting, and operating conservation programs.
Exhibit C lists various measures to protect against the detrimental effects of
activities listed in exhibit B, including that any structure or culvert placed within
any class I watercourse is to be designed and constructed so as not to constitute a
barrier to the upstream or downstream movement of fish, and various prescriptions
for constructing bridges across watercourses.
Thus, the Streambed Alteration Agreement at issue here responds to the
statutory mandate to protect fish and wildlife that may be adversely affected by
streambed alteration in three ways: (1) by referencing mitigation measures put in
place by the HCP/SYP filed in conjunction with the agreement; (2) by adopting
certain conservation measures in addition to those required under the HCP/SYP
with regard to some of Pacific Lumber’s anticipated activity; and (3) by expressly
providing that most activities in which Pacific Lumber plans to engage, including
timber harvesting and road construction, will require Pacific Lumber to enter into
additional Streambed Alteration Agreements.
EPIC argues that Pacific Lumber and DFG failed to follow the mandatory
procedures set forth in former Fish and Game Code section 1603 — that Pacific
Lumber failed to give timely notice and DFG failed to identify for Pacific Lumber
the wildlife to be affected by the proposed stream altering activity. We disagree.
Although Pacific Lumber and DFG may not have followed the precise procedures
contemplated by section 1603, they appear to have substantially complied with
that statute. Because the Streambed Alteration Agreement was undertaken in
conjunction with a massive regulatory approval process that included an integrated
HCP/SYP and an EIS/EIR, both Pacific Lumber and DFG had ample notice
through this process — DFG that Pacific Lumber would engage in streambed-
76
altering activity, and Pacific Lumber of the wildlife that would be affected and the
mitigation measures that DFG and other government agencies would require to
mitigate adverse impacts on fish and wildlife.
EPIC also contends that the agreement here is not sufficiently specific with
respect to particular streams, and that there is nothing in the statutes or regulations
that authorizes DFG or Pacific Lumber to enter into a “master” Streambed
Alteration Agreement, as they did here. We disagree. Statute and regulation
neither specifically authorize nor forbid this type of master agreement. Of course,
were such agreements used to circumvent the substantive requirements of Fish and
Game Code section 1603 to identify with specificity the stream-altering activities
and negotiate particular mitigating measures, they would obviously not pass
muster. But there is no indication that the present agreement would do so. This
“master” agreement is extremely limited in scope, adopting standard mitigating or
protective measures for some of Pacific Lumber’s activities ancillary to timber
harvesting, while deferring most of the measures to be adopted to future
agreements, when Pacific Lumber’s plans for particular streambeds will be more
concretely formulated. In light of DFG’s expertise and its statutory authority to
formulate Streambed Alteration Agreements, we cannot say that this manner of
proceeding violated the statutory duties to which either it or Pacific Lumber are
subject.
2. Lack of Finding for Streambed Alteration Agreement
EPIC also contends that the lack of any findings related to the Streambed
Alteration Agreement makes that agreement invalid. DFG and Pacific Lumber
respond that no findings are required. We agree.
Findings are required in support of administrative decisions when such
decisions are reviewable under Code of Civil Procedure section 1094.5 (see
77
Topanga, supra, 11 Cal.3d at pp. 514-515) or are otherwise required by statute or
regulation. Code of Civil Procedure section 1094.5, subdivision (a), provides
administrative mandamus is available to review a decision made by an agency as a
result of a proceeding in which by law (1) a hearing is required to be given, (2)
evidence is required to be taken, and (3) discretion in determining the facts is
vested in the agency. The hearing and evidence requirements are met when a
statute or regulation provides an opportunity for public input and requires a public
agency to respond to that input, such as is the case with an EIR or THP. (Friends
of the Old Trees v. Department of Forestry & Fire Protection (1997) 52
Cal.App.4th 1383, 1391-1392.) On the other hand, an administrative decision that
does not require a hearing or a response to public input is generally not reviewable
under Code of Civil Procedure section 1094.5 but by traditional mandamus
pursuant to Code of Civil Procedure section 1085, under an abuse of discretion
standard, and no findings are required. (See Association for Protection Etc.
Values v. City of Ukiah (1991) 2 Cal.App.4th 720, 730-732.)
We conclude that a Streambed Alteration Agreement under section 1603
did not require findings, because the statute did not require that a hearing be held
or public input be taken. Nor did any implementing regulation impose a findings
requirement. On the other hand, an activity or project that necessitates a
Streambed Alteration Agreement may require environmental review under CEQA.
(See DFG, Lake and Streambed Alteration Program, Questions and Answers, No.
4], <http://www.dfg.ca.gov/habcon/1600/qa.html> [as of July 17, 2008] [“The
Department must comply with . . . CEQA . . . before it may issue a final Lake or
Streambed Alteration Agreement”].) CEQA requires findings under certain
circumstances. (Pub. Resources Code, § 21081.) EPIC’s challenge to the final
EIS/EIR’s CEQA findings are discussed below.
78
We therefore conclude that the lack of separate findings supporting the
present Streambed Alteration Agreement was not error.
E. Challenges to the EIS/EIR
1. Inadequate
Findings
EPIC contends that DFG’s CEQA findings were insufficient. Under
CEQA, in Public Resources Code section 21081, “no public agency shall approve
or carry out a project for which an environmental impact report has been certified
which identifies one or more significant effects on the environment that would
occur if the project is approved or carried out unless . . . [¶] . . . [t]he public
agency makes one or more of the following findings with respect to each
significant effect: [¶] (1) Changes or alterations have been required in, or
incorporated into, the project which mitigate or avoid the significant effects on the
environment. [¶] (2) Those changes or alterations are within the responsibility
and jurisdiction of another public agency and have been, or can and should be,
adopted by that other agency. [¶] (3) Specific economic, legal, social,
technological, or other considerations, including considerations for the provision
of employment opportunities for highly trained workers, make infeasible the
mitigation measures or alternatives identified in the environmental impact report.”
EPIC contends that the final EIS/EIR identified several significant
environmental impacts but failed to make one of the three findings set forth in
Public Resources Code section 21081. More specifically, it contends that the
EIS/EIR concluded there would be long-term and short-term adverse impacts on
the northern spotted owl, red tree vole, Pacific fisher, and other late seral habitat
species, but that DFG failed to make the required findings regarding each of these
significant impacts, as required by Public Resources Code section 21081 and the
79
CEQA guidelines. (See CEQA Guidelines, § 15091 (Cal. Code Regs., tit. 14
§ 15000 et seq.; hereafter CEQA Guidelines).)
In addressing this claim, it first must be kept in mind that the project for
which the EIS/EIR was prepared was the Habitat Conservation Plan/Sustained
Yield Plan, and that the HCP was specifically designed to mitigate significant
impacts on wildlife. In the part of the EIS/EIR devoted to the northern spotted
owl, for example, the EIS/EIR concludes that the project will have less than
significant effects on the species, stating that although “effects may be significant
in short and long-term due to potential substantial decline in population,” HCP
mitigation and monitoring was “expected to minimize and mitigate effects to less
than significant.” The HCP incorporates extensive conservation measures
including the selection of at least 80 “activity sites” that will maintain suitable
spotted owl habitat. Similar conclusions were reached as to the other species
EPIC identifies in its brief as being inadequately addressed. Moreover, in the case
of the coho salmon, also singled out by EPIC, the EIS/EIR found that the Aquatics
Conservation Plan in the HCP would fully mitigate impacts on that species.
Therefore, because the EIS/EIR was for an HCP the purpose of which was
to mitigate the effect of Pacific Lumber’s activities on wildlife to a less than
significant level, it was not error for the EIS/EIR to conclude that HCP did not
create significant wildlife impacts. We therefore find no merit in EPIC’s
argument that the CEQA findings were inadequate.
2. Cumulative
Impacts
EPIC contends that the EIS/EIR failed to analyze or address the project’s
cumulative impacts to the marbled murrelet, northern spotted owl, and coho
salmon by failing to identify past projects, including Pacific Lumber’s previous
80
intensive logging. We conclude that on the record before us, EPIC has failed to
identify prejudicial error.
Public Resources Code section 21083, subdivision (b), provides that the
CEQA guidelines prepared by the Office of Planning and Research should address
a situation in which “[t]he possible effects of a project are individually limited but
cumulatively considerable. As used in this paragraph, ‘cumulatively considerable’
means that the incremental effects of an individual project are considerable when
viewed in connection with the effects of past projects, the effects of other current
projects, and the effects of probable future projects.” (Pub. Resources Code,
§ 21083, subd. (b)(2), italics added.)
Pursuant to this statutory mandate, the Office of Planning and Research has
promulgated section 15130 of the CEQA Guidelines, which states in subdivision
(b), in pertinent part: “The discussion of cumulative impacts shall reflect the
severity of the impacts and their likelihood of occurrence, but the discussion need
not provide as great detail as is provided for the effects attributable to the project
alone. The discussion should be guided by the standards of practicality and
reasonableness . . . . The following elements are necessary to an adequate
discussion of significant cumulative impacts: [¶] (1) Either: [¶] (A) A list of
past, present, and probable future projects producing related or cumulative
impacts, including, if necessary, those projects outside the control of the agency,
or [¶] (B) A summary of projections contained in an adopted general plan or
related planning document, or in a prior environmental document which has been
adopted or certified, which described or evaluated regional or areawide conditions
contributing to the cumulative impact. Any such planning document shall be
referenced and made available to the public at a location specified by the lead
agency.”
81
The CEQA Guidelines further elaborate on the use of prior environmental
documents in section 15130, subdivision (d): “Previously approved land use
documents such as general plans, specific plans, and local coastal plans may be
used in cumulative impact analysis. A pertinent discussion of cumulative impacts
contained in one or more previously certified EIRs may be incorporated by
reference pursuant to the provisions for tiering and program EIRs. No further
cumulative impacts analysis is required when a project is consistent with a
general, specific, master or comparable programmatic plan where the lead agency
determines that the regional or areawide cumulative impacts of the proposed
project have already been adequately addressed, as defined in section 15152,
subdivision (f), in a certified EIR for that plan.”
DFG and Pacific Lumber concede that there is no “list of past, present, and
probable future projects producing related or cumulative impacts.” They contend
that they employed the second approach to cumulative impacts: “A summary of
projections contained in an adopted general plan or related planning document
. . . .” (CEQA Guidelines, § 15130, subd. (b)(1)(B).) They do not identify any
specific document or documents containing the information about cumulative
impacts. Rather, they contend that the EIS/EIR itself has an adequate analysis of
“current population status” of the various species that “necessarily entails
consideration of the effects of past projects.” Thus, although the EIS/EIR does not
refer to earlier planning documents, it contains within itself a great deal of
information regarding current conditions of critical species and their habitat
equivalent to what would be contained in general plans or similar planning
documents. As DFG explained at oral argument, the SYP/HCP for which the
EIS/EIR was prepared was the first master planning document for Pacific
Lumber’s holdings, and so no previous planning document could be relied on in
making its projections.
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EPIC argues that the lack of discussion of past projects means that the
EIS/EIR ignores the reality that logging, and in particular logging by Pacific
Lumber, is responsible for the substantial loss of suitable habitat for various
species. EPIC’s argument is that placing current population and habitat conditions
in the historical context of Pacific Lumber’s and other timber companies’ role in
causing those conditions puts that information, and information regarding
projections of future habitat and population loss, in a different perspective.
Inasmuch as an EIS/EIR is primarily an informational document (see Pub.
Resources Code, § 21000), the public and the decision makers informed by that
document would be more critical of Pacific Lumber’s planned logging activities,
and more skeptical of the probable success of its mitigation activity, were it
informed in the EIS/EIR of the extent of Pacific Lumber’s and other timber
companies’ responsibility for current environmental conditions.
We agree with EPIC that the statutory injunction to assess “the incremental
effects of an individual project . . . in connection with the effects of past projects,
the effects of other current projects, and the effects of probable future projects”
(Pub. Resources Code, § 21083, subd. (b)(2), italics added) signifies an obligation
to consider the present project in the context of a realistic historical account of
relevant prior activities that have had significant environmental impacts. Such
historical accounting assists, for example, in understanding development trends.
(See Governor’s Off. of Planning & Research, General Plan Guidelines (1990)
pp. 44-46 [need to understand population, environmental and economic trends,
including historical data, to guide development].) This historical information also
may help to identify previous activities that have caused intensive environmental
impacts in a given area, the full effects of which may not yet be manifested,
thereby disclosing potential environmental vulnerabilities that would not be
revealed merely by cataloging current conditions. (See Environmental Protection
83
Information Center v. Johnson, supra, 170 Cal.App.3d at p. 624 [analysis of past
clearcutting may reveal extent of present danger of hillside erosion].)
We review an agency’s decision regarding the inclusion of information in
the cumulative impacts analysis under an abuse of discretion standard. “The
primary determination is whether it was reasonable and practical to include the
projects and whether, without their inclusion, the severity and significance of the
cumulative impacts were reflected adequately.” (Kings County Farm Bureau v.
City of Hanford (1990) 221 Cal.App.3d 692, 723.) Although courts have grappled
with the abuse-of-discretion issue with respect to the inclusion of pending and
possible future projects (see id. at pp. 721-724), none have addressed the adequacy
of an analysis of projects that have already been completed. As the above
discussion indicates, an EIS/EIR must reasonably include information about past
projects to the extent such information is relevant to the understanding of the
environmental impacts of the present project considered cumulatively with other
pending and possible future projects.
Although such historical context is somewhat muted in the EIS/EIR, it is
present to some degree. The EIS/EIR does acknowledge population declines and
degradation of habitat, including increased water temperature and sediment
buildup in streams and loss of habitat for various species. For example, the
EIS/EIR contains detailed information about the current population and
distribution and loss of suitable habitat for the marbled murrelet, the northern
spotted owl, and the coho salmon. The report also acknowledges, albeit somewhat
obliquely, that past logging practices are at least in part responsible for this loss
and degradation.
EPIC argues in effect that the EIS/EIR substantially understates the effects
of past timber harvest practices on various species, and that a more realistic
account of those effects can be found in various public comments made to the
84
draft EIS/EIR and draft SYP/HCP. As noted, the discussion of cumulative
impacts should be guided by the standards of practicality and reasonableness.
Although there are conflicting views about whether the EIS/EIR’s discussion of
past logging activity was adequate, on the record before us we cannot say that this
discussion of the effects of previous logging activity was unreasonable.
EPIC also claims that the EIS/EIR fails to consider cumulative impacts of
future activities in the marbled murrelet conservation areas. These are the dozen
or so areas of marbled murrelet habitat ranging from 300 to 1,400 acres that are
protected for the most part from logging and certain other activities and in which
various conservation activities will occur. Such activities will be implemented in
consultation with and reviewed by DFG and the U.S. Fish and Wildlife Service.
EPIC contends that notwithstanding these restrictions, there is no
cumulative assessment of the impact of the activities that will be taking place
within these areas, including some mining and road construction. We disagree.
Given the extensive analysis of the impacts of the project on the marbled murrelet
and other wildlife noted above, and the adoption of these conservation areas as
part of the HCP to mitigate the environmental impacts of Pacific Lumber’s
activities, we do not believe that CEQA requires separate cumulative impact
analysis in connection with the adoption of these conservation areas. The final
EIS/EIR concludes that creating these areas will on balance be beneficial to the
marbled murrelet and other wildlife. Absent a successful challenge to this
conclusion based on the lack of substantial evidence, a challenge that is not before
us, we will defer to the government agencies’ implicit conclusion that no
additional environmental analysis of this measure is required.
85
IV. DISPOSITION
For the reasons explained above, we conclude: (1) that CDF did not
properly approve an identifiable Sustained Yield Plan; (2) that any newly
submitted Sustained Yield Plan must include an adequate analysis of the
cumulative impacts of Pacific Lumber’s timber harvesting activities at the
individual planning watershed level consistent with the Forest Practice Rules and
sufficient to support Pacific Lumber’s long-term sustained yield estimate; and (3)
that the Incidental Take Permit was deficient inasmuch as it included “no
surprises” clauses inconsistent with Pacific Lumber’s statutory duty to fully
mitigate the impacts of its incidental take.
As noted in the statement of facts, the trial court issued a peremptory writ
of mandate, which among other things set aside the Director of CDF’s approval of
the SYP and the DFG’s approval of the state Incidental Take Permit. In
conjunction with the issuance of a peremptory writ of mandate, the trial court’s
order enjoined logging pursuant to any THP’s approved in reliance on the SYP
after June 22, 2003, which is designed to preserve the status quo and balance the
hardships.
The Court of Appeal reversed the judgment granting the peremptory writ.
We therefore reverse the judgment of the Court of Appeal and remand to that court
with directions to reinstate the judgment of the trial court insofar as the latter
concluded that the SYP and state Incidental Take Permit approvals were invalid,
and to remand the matter to the trial court for remediation of these approvals in a
manner consistent with the views expressed in this opinion. The question whether
the no surprises clauses, to the extent they are unlawful, can be severed, and the
rest of the Incidental Take Permit reinstated, was not specifically addressed below.
This question should be addressed by the trial court on remand.
86
The parties have not briefed in this court the question of interim remedies.
Because this opinion concludes that the SYP was not properly approved, we hold
that the interim remedy imposed by the trial court was proper. Arguments about
whether the injunction should be modified due to changed circumstances or for
any other reason should be addressed to the trial court.
In all other respects, we affirm the Court of Appeal judgment, including,
inter alia, its rulings that the EIS/EIR and Streambed Alteration Agreement had
been properly approved.
Each party is to bear its own costs.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
87
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Environmental Protection Information Center v. Dept. of Forestry & Fire Protection
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 134 Cal.App.4th 1093
Rehearing Granted
__________________________________________________________________________________
Opinion No. S140547
Date Filed: July 17, 2008
__________________________________________________________________________________
Court: Superior
County: Humboldt
Judge: John J. Golden*
__________________________________________________________________________________
Attorneys for Appellant:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, John
Davidson and William N. Jenkins, Deputy Attorneys General, for Defendants and Appellants and for
Defendants and Respondents.
Jennifer B. Henning for California State Association of Counties and League of California Cities as Amici
Curiae on behalf of Defendants and Appellants and Defendants and Respondents.
Nossaman, Guthner, Knox & Elliott, Robert D. Thornton and Paul S. Weiland for California Building
Industry Association, Building Industry Legal Defense Foundation, California Business Properties
Association, Imperial Irrigation District, Kern Water Bank Authority and Consulting Engineers and Land
Surveyors of California as Amici Curiae on behalf of Defendants and Appellants, Defendants and
Respondents, Real Parties in Interest and Appellants and Real Parites in Interest and Respondents.
__________________________________________________________________________________
Attorneys for Respondent:
Law Offices of Sharon E. Duggan, Sharon E. Duggan; Law Offices of Brian Gaffney and Brian Gaffney
for Plaintiffs and Respondents Environmental Protection Information Center et al.
Paul Whitehead; Altshuler, Berzon, Nussbaum, Rubin & Demain, Fred H. Altschuler, Jonathan Weissglass,
Rebekah B. Evenson and Peder H. Thoreen for Plaintiff and Respondent United Steelworkers of America.
*Retired judge of the Lake Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
Page 2 – S140547 – counsel continued
Attorneys for Respondent:
Carter, Behnke, Oglesby & Bacik, Carter, Oglesby, Momsen & Bacik, Frank Shaw Bacik; Stoel Rives,
Andrew F. Brimmer; Morrison & Foerster, Edgar B. Washburn, Christopher J. Carr, William M. Sloan and
Shaye Diveley for Real Parties in Interest and Appellants and for Real Parties in Interest and Respondents.
Robin L. Rivett, Damien M. Schiff and Scott A. Sommerdorf for Pacific Legal Foundation as Amicus
Curiae on behalf of Real Parties in Interest and Appellant and Real Parties in Interest and Respondents.
Michele Dias for California Forestry Association as Amicus Curiae on behalf of Real Parties in Interest and
Appellant and for Real Parties in Interest and Respondents.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William N. Jenkins
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5527
Sharon E. Duggan
Law Offices of Sharon E. Duggan
370 Grand Avenue, Suite 5
Oakland, CA 94610
(510) 271-0825
Jonathan Weissglass
Altshuler, Berzon, Nussbaum, Rubin & Demain
177 Post Street, Suite 300
San Francisco, CA 94108
(415) 421-7151
Edgar B. Washburn
Morrison & Foerster
425 Market Street
San Francisco, CA 94105
9415) 268-7000
Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues relating to environmental review of the master plan for timber harvesting related to the Headwaters Forest Project.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Thu, 07/17/2008 | 44 Cal. 4th 459, 187 P.3d 888, 80 Cal. Rptr. 3d 28 | S140547 | Review - Civil Appeal | closed; remittitur issued |
Parties
| 1 | Environmental Protection And Information Center (Plaintiff and Respondent) Represented by Sharon E. Duggan Attorney at Law 370 Grand Avenue, Suite 5 Oakland, CA |
| 2 | Environmental Protection And Information Center (Plaintiff and Respondent) Represented by Brian Gaffney Attorney at Law 605 Market Street, Suite 505 San Francisco, CA |
| 3 | Department Of Forestry & Fire Protection (Defendant and Appellant) Represented by William Newell Jenkins Office of the Attorney General 455 Golden Gate Avenue, Suite 1100 San Francisco, CA |
| 4 | Pacific Lumber Company (Real Party in Interest and Appellant) Represented by Christopher James Carr Morrison & Forerster, LLP 425 Market Street San Francisco, CA |
| 5 | Pacific Lumber Company (Real Party in Interest and Appellant) Represented by Frank Shaw Bacik Carter, Oglesby, Momsen & Bacik 169 Mason Street, #300; P.O. Box 720 Ukiah, CA |
| 6 | Pacific Lumber Company (Real Party in Interest and Appellant) Represented by Edgar B. Washburn Morrison & Forerster, LLP 425 Market Street San Francisco, CA |
| 7 | United Steelworkers Of America (Plaintiff and Respondent) Represented by Jonathan David Weissglass Altshuler Berzon et al., LLP 177 Post Street, Suite 300 San Francisco, CA |
| 8 | United Steelworkers Of America (Plaintiff and Respondent) Represented by Fred H. Altshuler Altshuler Berzon et al., LLP 177 Post Street, Suite 300 San Francisco, CA |
| 9 | United Steelworkers Of America (Plaintiff and Respondent) Represented by Rebekah Bella Evenson Altshuler Berzon et al., LLP 177 Post Street, Suite 300 San Francisco, CA |
| 10 | United Steelworkers Of America (Plaintiff and Respondent) Represented by Peder John Vikan Thoreen Altshuler Berzon et al., LLP 177 Post Street, Suite 300 San Francisco, CA |
| 11 | Scotia Pacific Company, Llc (Real Party in Interest and Appellant) Represented by Christopher James Carr Morrison & Forerster, LLP 425 Market Street San Francisco, CA |
| 12 | Scotia Pacific Company, Llc (Real Party in Interest and Appellant) Represented by Frank Shaw Bacik Carter, Oglesby, Momsen & Bacik 169 Mason Street, #300; P.O. Box 720 Ukiah, CA |
| 13 | Salmong Creek, Llc (Real Party in Interest and Appellant) Represented by Christopher James Carr Morrison & Forerster, LLP 425 Market Street San Francisco, CA |
| 14 | Salmong Creek, Llc (Real Party in Interest and Appellant) Represented by Frank Shaw Bacik Carter, Oglesby, Momsen & Bacik 169 Mason Street, #300; P.O. Box 720 Ukiah, CA |
| 15 | Sierra Club (Plaintiff and Respondent) Represented by Sharon E. Duggan Attorney at Law 370 Grand Avenue, Suite 5 Oakland, CA |
| 16 | Sierra Club (Plaintiff and Respondent) Represented by Brian Gaffney Attorney at Law 605 Market Street, Suite 605 San Francisco, CA |
| 17 | Pacific Legal Foundation (Amicus curiae) Represented by Damien M. Schiff Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 18 | California Forestry Association (Amicus curiae) Represented by Michele Ann Dias California Forestry Association 1215 "K" Street, Sutie 1830 Sacramento, CA |
| 19 | California State Association Of Counties (Amicus curiae) Represented by Jennifer Bacon Henning California State Association of Counties 1100 "K" Street, Suite 101 Sacramento, CA |
| 20 | California Building Industry Association (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 21 | Building Industry Legal Defense Foundation (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 22 | California Business Properties Association (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 23 | Imperial Irrigation District (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 24 | Kern Water Bank Authority (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 25 | Consulting Engineers And Land Surveyors Of California (Amicus curiae) Represented by Paul S Weiland Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite1800 Irvine, CA |
| 26 | League Of California Cities (Amicus curiae) Represented by Jennifer Bacon Henning California State Association of Counties 1100 "K" Street, Suite 101 Sacramento, CA |
| 27 | Grep Bay Area Holdings, Llc (Amicus curiae) Represented by George T. Caplan Kaye Scholer et al., LLP 1999 Avenue of the Stars, Suite 1700 Los Angeles, CA |
| 28 | Aes Sea West, Inc. (Amicus curiae) Represented by George T. Caplan Kaye Scholer et al., LLP 1999 Avenue of the Stars, Suite 1700 Los Angeles, CA |
| 29 | Enxco, Inc. (Amicus curiae) Represented by George T. Caplan Kaye Scholer et al., LLP 1999 Avenue of the Stars, Suite 1700 Los Angeles, CA |
| 30 | Kegley, Donald (Plaintiff and Respondent) Represented by Jonathan David Weissglass Altshuler Berzon et al., LLP 177 Post Street, Suite 300 San Francisco, CA |
| Disposition | |
| Dec 31 1969 | Opinion: Reversed |
| Dockets | |
| Dec 31 1969 | Petition for review filed United Steelworkers of America, respondents Jonathan Weissglass, counsel |
| Dec 31 1969 | Record requested |
| Dec 31 1969 | 2nd petition for review filed respondent, Environmental Protection Information Center et al. counsel, Sharon E. Duggan |
| Dec 31 1969 | Received Court of Appeal record A104828-file jacket/briefs/loose papers/one box - also - A104830-one box |
| Dec 31 1969 | Answer to petition for review filed to Steelworkers' Petition for Review. The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC, Real Parties in Interest and Appellants Christopher Carr and Frank Bacik, retained |
| Dec 31 1969 | Answer to petition for review filed to Steelworkers' Petition for Review. Department of Forestry and Fire Protection, Defendants and Appellants. William Jenkins, Deputy Attorney General |
| Dec 31 1969 | Answer to petition for review filed to Environmental Protection Information Center and Sierra Club's Petition for Review. Department of Forestry and Department of Fish and Game, Defendants and Appellants William Jenkins, Deputy Attorney General |
| Dec 31 1969 | Answer to petition for review filed to Environmental Protection Information Center and Sierra Club Petition for Review. The Pacific Lumber Company, Scotia Pacific Company LLC, and Salmon Creek LLC, Real Parties in Interest. Christopher Carr and Frank Bacik, retained. |
| Dec 31 1969 | Received: amended certificate of service re answer to Environmental Protection Information Center and Sierra Club Petition for Review. From counsel for The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC |
| Dec 31 1969 | Reply to answer to petition filed Environmental Protection Information Center & Sierra Club, Plaintiffs and Respondents. Sharon Duggan and Brian Gaffney, retained. |
| Dec 31 1969 | Reply to answer to petition filed United Steelworkers' of America, AFL-CIO, CLC and Dongald Kegley, Plaintiffs and Respondents. Jonathan Weissglass, retained. |
| Dec 31 1969 | Reply to answer to petition filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon Duggan & Brian Gaffney, retained. |
| Dec 31 1969 | Application to appear as counsel pro hac vice filed Paul Whitehead obo petitioners, United Steelworkers of America, AFL-CIO, CLC, and Donald Kegley. - to court for permission - |
| Dec 31 1969 | Time extended to grant or deny review to and including April 21, 2006, or the date upon which review is either granted or denied. |
| Dec 31 1969 | Petition for review granted (civil case) Application to appear as counsel pro hac vice granted. Votes: George, C.J., Kennard, Werdegar, Chin, Moreno, and Corrigan, JJ. |
| Dec 31 1969 | Certification of interested entities or persons filed Appellants and RPIs Edgar Washburn, counsel |
| Dec 31 1969 | Request for extension of time filed by counsel for petitioners Environmental Protection Information Center and Sierra Club. Petitioners' requesting until May 26 to file opening brief on the merits. (to court for permission) |
| Dec 31 1969 | Request for extension of time filed by counsel for petitioners United Steelworkers of America, AFL-CIO, CLC, and Donald Kegley. Petitioners' requesting until May 26 to file opening brief on the merits (to court for permission) |
| Dec 31 1969 | Extension of time granted On application of petitioners' United Steelworkers of America, AFL-CIO, CLC and Donald Kegley and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 26, 2006. |
| Dec 31 1969 | Extension of time granted On application of petitioners' Environmental Protection Information Center and Sierra Club and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 26, 2006. |
| Dec 31 1969 | Certification of interested entities or persons filed By Atty Brian Gaffney for Environmental Protection Information Center & Sierra Club. |
| Dec 31 1969 | Opening brief on the merits filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon E. Duggan and Brian Gaffney, counsel |
| Dec 31 1969 | Opening brief on the merits filed United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and Donald Kegley, Plaintiffs and Respondents Paul Whitehead and Jonathan Weissglass, counsel. |
| Dec 31 1969 | Request for judicial notice filed (granted case) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and Donald Kegley, Plaintiffs and Respondents. Paul Whitehead and Jonathan Weissglass, counsel. |
| Dec 31 1969 | Request for extension of time filed by William Jenkins, Deputy Attorney General, for Defendants and Appellants, Department of Forestry and Fire Protection and Department of Fish & Game, requesting to July 24, 2006, (28 days) to file their answer brief on the merits. (to court for permission) |
| Dec 31 1969 | Request for extension of time filed Atty Shaye Diveley for real parties in interest and appellants, The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC requesting to July 24, 2006, to file their answer brief on the merits (to court for permission) |
| Dec 31 1969 | Extension of time granted On application of real parties in interest and appellants and good cause appearing, it is ordered that the time to serve and file their answer brief on the merits is extended to and including July 24, 2006. |
| Dec 31 1969 | Extension of time granted On application of defendants and appellants and good cause appearing, it is ordered that the time to serve and file their answer brief on the merits is extended to and including July 24, 2006. |
| Dec 31 1969 | Received: amended proof of service from Atty Jenkins, Deputy Atty General, for Department of Forestry and Fire Protection and department of Fish & Game |
| Dec 31 1969 | Answer brief on the merits filed California Dept. of Forestry & Fire Protection and Department of Fish and Game, Defendants and Appellants. William Jenkins, Deputy Attorney General *** FILED WITH PERMISSION *** |
| Dec 31 1969 | Application to file over-length brief filed by Atty Jenkins, Deputy Attorney General for Department of Forestry and Department of Fish and Game, Defendants and Appellants. Requesting to file brief in excess of 14,000 words (to court for permission to file) |
| Dec 31 1969 | Answer brief on the merits filed The Pacific Lumber Company et al., Real Parties in Interest Edgar B. Washburn, counsel answer brief to Environmental Protection Information Center |
| Dec 31 1969 | Answer brief on the merits filed The Pacific Lumber Company et al., Real Parties in Interest Edgar B. Washburn, counsel. answer brief to United Steelworkers |
| Dec 31 1969 | Extension of time granted On application of petitioner and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 30, 2006. |
| Dec 31 1969 | Request for extension of time filed Atty Duggan counsel for Plaintiffs and Respondents, Environmental Protection Information Center and Sierra Club requesting to August 28, 2006 (14-days) to file reply biref on the merits (to court for permission) |
| Dec 31 1969 | Request for extension of time filed Atty Weissglass counsel for Plaintiffs and Respondents United Steel, Paper and Forestry, Rubber et al., requesting add'l 14-days to file reply brief on the merits. ALSO, requesting to file a combined oversized (up to 9000 words) reply brief. (to court for permission) |
| Dec 31 1969 | Extension of time granted On application of respondents, Environmental Protection Information Center and Sierra Club and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 28, 2006. |
| Dec 31 1969 | Extension of time granted On application of respondents, United Steelworkers of America et al., and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including August 28, 2006. |
| Dec 31 1969 | Order filed The applications of Plaintiffs and Respondents for permission to file an oversized reply brief on the merits is hereby granted. |
| Dec 31 1969 | Application filed to: for permission to file reply brief of up to 11,000 words. Requested by Atty Duggan & Atty Gaffeny for petitioners Enivonmental Protection Information Center and Sierra Club (to court for permission) |
| Dec 31 1969 | Order filed The application of respondents Environmental Protection Information and Sierra Club for permission to file a combined reply brief of up to 11,000 words is hereby granted. |
| Dec 31 1969 | Reply brief filed (case not yet fully briefed) United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC, and Donald Kegley Jonathan Weissglass, counsel |
| Dec 31 1969 | Reply brief filed (case fully briefed) Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon Duggan, counsel |
| Dec 31 1969 | Received application to file Amicus Curiae Brief from Atty Damien M. Schiff counsel for amicus curiae Pacific Legal Foundation in support of real parties in Interest (to court for permission) |
| Dec 31 1969 | Received application to file Amicus Curiae Brief from Atty Michele Dias counsel for amicus curiae The Calfiornia Forestry Association in support of real parties in interest (to court for permission) |
| Dec 31 1969 | Received application to file Amicus Curiae Brief from Atty Jennifer B. Henning counsel for California State Assocaition of Counties and League of California Cities in support of real parties in interest (to court for permission to file) |
| Dec 31 1969 | Received application to file Amicus Curiae Brief Amici Curiae California Building Industry Association, etal Attorneys Paul S. Weiland, etal [in support of respondents and real parties] and Request for Judicial Notice |
| Dec 31 1969 | Amicus curiae brief filed Pacific Legal Foundation in support of real parties in interest. Damien Schiff, counsel |
| Dec 31 1969 | Permission to file amicus curiae brief granted The application of California State Association of Counties and League of California Cities for permission to file an amicus curiae brief in support of real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 31 1969 | Amicus curiae brief filed California State Association of Counties and League of California Cities in support of real parties of interest. Jennifer B. Henning, counsel |
| Dec 31 1969 | Permission to file amicus curiae brief granted The application of The California Forestry Association for permission to file an amicus curiae brief in support of real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 31 1969 | Amicus curiae brief filed The California Forestry Association in support of real parties in interest. Michele Dias, counsel |
| Dec 31 1969 | Permission to file amicus curiae brief granted The application of Pacific Legal Foundation for permission to file an amicus curiae brief in support of real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 31 1969 | Request for judicial notice filed (granted case) By Attorney Jennifer B. Henning counsel for amici curiae California State Association of Counties and League of California Cities |
| Dec 31 1969 | Received: Amended Proof of Service to Amici Curiae Brief California Building Industry Association, etal Attorneys Paul S. Weiland, etal |
| Dec 31 1969 | Opposition filed by Petitioners, Environmental Protection Info. Center to Amicus Curiae California State Assoc. of Counties ,et al., request for judical notice |
| Dec 31 1969 | Response to amicus curiae brief filed United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and Donald Kegley, Plaintiffs and Respondents Paul Whitehead and Fred Altshuler, counsel in response to amicus brief of The California Forestry Association |
| Dec 31 1969 | Response to amicus curiae brief filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon Duggan and Brian Gaffney, counsel response to amicus brief of The California Forestry Association |
| Dec 31 1969 | Response to amicus curiae brief filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon Duggan and Brian Gaffney, counsel. response to amicus brief of California Association of Counties & League of Cities and Pacific Legal Foundation. |
| Dec 31 1969 | Filed: Real Party in Interest and Appellant Pacific Lumber Company's motion to strike answer brief of Petitioners Epic and Sierra Club |
| Dec 31 1969 | Permission to file amicus curiae brief granted The application of California Building Industry Association, Building Industry Legal Defense Foundation, California Business Properties Association, Imperial Irrigation District, Kern Water Bank Authority, Consulting Engineers and Land Surveyors of California for permission to file an amicus curiae brief in support of defendants and real parties in interest is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| Dec 31 1969 | Amicus curiae brief filed California Building Industry Association, Building Industry Legal Defense Foundation, California Business Properties Association, Imperial Irrigation District, Kern Water Bank Authority, Consulting Engineers and Land Surveyors of California in support of defendants and real parties in interest. Paul S. Weiland, counsel. |
| Dec 31 1969 | Request for judicial notice filed (granted case) by amici California Building Industry Association, Building Industry Legal Defense Foundation, California Business Properties Association, Imperial Irrigation District, Kern Water Bank Authority, and Consulting Engineers and Land Surveyors of California. Paul S. Weiland, counsel |
| Dec 31 1969 | Opposition filed to Pacific Lumber Compnay's Motion to Strike Petitioner's Answering Brief to Amici Briefs of California Assn. of Counties & League of Cities and Pacific Legal Foundation by Atty Sharon Duggan and Brian Gaffney, counsel for petitioners, Environmental Protection Information Center and Sierra Cliub |
| Dec 31 1969 | Opposition filed to Motion and Request for Judicial Notice by amici curiae California Building Industry Assoc. et al., by Sharon Duggan and Brian Gaffney, counsel for petitioners, Environmental Protection Information Center and Sierra Club. |
| Dec 31 1969 | Response to amicus curiae brief filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon Duggan and Brian Gaffney, counsel. in response to amicus brief of California Building Industry Association, Building Industry Legal Defense Defense Foundation, California Business Properties Association, Imperial Irrigation District, Kern Water Bank Authority, Consulting Engineers and Land Surveyors of California. |
| Dec 31 1969 | Filed: Notice of Change of Firm Name. The law firm of Altshuler, Berzon, Nussbaum, Rubin & Demain, counsel for Plaintiffs has changed its name to Altshuler Berzon LLP. |
| Dec 31 1969 | Notice of bankruptcy stay filed Bankruptcy filed under Chapter 11 on January 18, 2007, by The Pacific Lumber Company, Scotia Pacific Company LLC, Salmon Creek LLC, Real Parties in Interest and Appellants. |
| Dec 31 1969 | Order filed: cause suspended due to bankruptcy stay The court is in receipt of a notice from real parties in interest and appellants that a bankruptcy petition has been filed. Such notice operates as an automatic stay in this proceeding and the applicable time periods of rule 8.512(b) of the California Rules of Court are hereby suspended. Counsel for the real parties in interest and appellants is directed to file quarterly reports with the Clerk of this court regarding the status of this bankruptcy action. At such time as this court receives proper notice terminating or granting relief from the bankruptcy stay of proceedings, the court will enter an order terminating the suspension of the applicable time periods of rule 8.512(b) and aid time periods shall begin running anew from the date of that order. |
| Dec 31 1969 | Order filed The order filed February 14, 2007, staying all proceedings in this court pending determination of the bankruptcy petition is amended to read as follows: "The court is in receipt of a notice from real parties in interest and appellants that a bankruptcy petition has been filed. Such notice operates as an automatic stay of proceedings in this court. Counsel for the real parties in interest and appellants is directed to file quarterly reports with the Clerk of this court regarding the status of this bankruptcy action. At such time as this court receives proper notice terminating or granting relief from the bankruptcy stay of proceedings, the court will enter an order terminating the stay of proceedings." |
| Dec 31 1969 | Notice filed: Bankruptcy stay lifted Notice of Order Granting Relief from Stay The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC, RPI & Appellants. Christopher J. Carr, counsel |
| Dec 31 1969 | Order filed: cause reinstated after bankruptcy stay lifted The Court, having received notice that the automatic stay has been terminated by the bankruptcy court, hereby orders that the applicable time period of rule 8.512(b) shall begin to run anew from the date of this order. |
| Dec 31 1969 | Received additional record Administrative Record - 52 boxes & 3-boxes of trial exhibits |
| Dec 31 1969 | Letter brief filed Environmental Protection Information Center and the Sierra Club, Plaintiffs and Respondents Sharon E. Duggan, counsel |
| Dec 31 1969 | Received additional record One box of appellants' and respondents' appendix. (A104830). |
| Dec 31 1969 | Order filed The order granting the application to appear as counsel pro hac vice and the petitions for review on March 29, 2006, is amended include the three additional Court of Appeal case numbers reflected above. |
| Dec 31 1969 | Supplemental briefing ordered The parties are requested to brief the following questions: With respect to the Sustained Yield Plan, what is the significance of the Director of the California Department of Forestry and Fire Prevention's approval of "Alternative 25" with an estimated long-term sustained yield of 178.8 million board feet per year in the first decade? To what extent may Timber Harvest Plans (THPs) or other subsequent environmental documents and future environmental decisions rely or presumptively rely on this figure? Is the extent of the reliance affected by the fact that some environmental analysis was deferred to the THP stage? The parties are requested to file and serve simultaneous letter briefs by November 19, 2007, and may file reply briefs by November 26, 2007. All such briefs should be filed in the San Francisco office of this court. |
| Dec 31 1969 | Request for extension of time filed Jonathan Weissglass counsel for petitioners Untied Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and Donald Kegley requesting to November 30 obo all parties to file reply brief. (to court for permission) |
| Dec 31 1969 | Extension of time granted On application of all parties and good cause appearing, it is ordered that the time to serve and file their reply briefs is extended to and including November 30, 2007. |
| Dec 31 1969 | Supplemental brief filed Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC, Real Parties in Interest and Appellants. Edgar B. Washburn, counsel |
| Dec 31 1969 | Supplemental brief filed Environmental Protection Information Center and the Sierra Club, Plaintiffs and Respondents. Sharon E. Duggan, counsel |
| Dec 31 1969 | Supplemental brief filed United Steelworkers of America, Plaintiffs and Respondents Jonathan Weissglass, counsel |
| Dec 31 1969 | Supplemental brief filed Ca Dept. of Forestry & Fire Protection, Ca Dept. of Fish & Game, defendants and appellants William Jenkins, Dep. A.G. |
| Dec 31 1969 | Supplemental brief filed Environmental Protection Information Center and Sierra Club, Plaintiffs and Respondents. Sharon E. Duggan, counsel |
| Dec 31 1969 | Supplemental brief filed Reply to Supplemental Letter Briefs from United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO, CLC; and Donald Kegley Jonathan Weissglass, counsel |
| Dec 31 1969 | Supplemental brief filed Reply to Supplemental Letter Briefs from Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC, Real Parties in Interest and Appellants. Edgar B. Washington, counsel |
| Dec 31 1969 | Received application to file Amicus Curiae Brief GREP Bay Area Holdings, LLC, AES Sea West, Inc. and enXco, Inc., amicus George T. Caplan, counsel |
| Dec 31 1969 | Order filed The application of GREP Bay Area Holdings, LLC, AES Sea West, Inc., and enXco, Inc. for permission to file an amicus curiae brief is denied as untimely. |
| Dec 31 1969 | Received additional record 4-boxes (A104828) containing : Appellant's Appendix (29 vols.), Respondent's Appendix (16 vols.), 2-vols. of exhibits, misc documentation and copies of 2 (3), 3 (2), 4 (3). |
| Dec 31 1969 | Case ordered on calendar to be argued on Thursday, May 8, 2008, at 9:00 a.m. in San Francisco |
| Dec 31 1969 | Filed letter from: Sharon E. Duggan, counsel for Environmental Protection Information Center et al., requesting to share 10 minutes of argument time with co-respondents United Steelworkers et al. |
| Dec 31 1969 | Order filed The request of counsel for respondents in the above-referenced cause to allow two counsel to argue on behalf of respondents at oral argument is hereby granted. The request of respondents to allocate to respondents Environmental Protection Information Center et al. 20 minutes and respondents United Steelworkers of America et al. 10 minutes of respondents' 30-minute allotted time for oral argument is granted. |
| Dec 31 1969 | Filed letter from: from William Jenkins, deputy Attorney General and counsel for the California Department of Forestry & Fire Protection et al., requesting to divide oral argument time. Asking to share 15 minutes of oral argument time with Pacific Lumber Company et al. |
| Dec 31 1969 | Order filed The request of counsel for appellants and real parties in interest in the above-referenced cause to allow two counsel to argue on behalf of appellants and real parties in interest at oral argument is granted. The request to allocate to appellants 15 minutes and real parties in interest 15 minutes of the 30-minute allotted time for oral argument is granted. |
| Dec 31 1969 | Order filed The Steelworkers' Motion for Judicial Notice, filed May 26, 2006, the California Association of Counties & League of Cities, Motion and Request for Judicial Notice, filed October 2, 2006, and the Building Industry Association et al, Request for Judicial Notice, filed November 1, 2006 are all granted. Pacific Lumber Company's Motion to Strike Answer Brief of Petitioners EPIC and Sierra Club, filed October 31, 2006 is denied. |
| Dec 31 1969 | Filed: additional authorities for oral argument from Sharon E. Duggan counsel for Environmental Protection Information Center, Plaintiff and Respondent |
| Dec 31 1969 | Filed: additional authorities for oral argument from Edgar B. Washburn counsel for The Pacific Lumber Company, Scotia Pacific Company LLC and Salmon Creek LLC., RPI and Appellants. |
| Dec 31 1969 | Cause argued and submitted |
| Dec 31 1969 | Notice of forthcoming opinion posted |
| Dec 31 1969 | Opinion filed: Judgment reversed and remand to that court with directions to reinstate the judgment of the trial court insofar as the latter concluded that the SYP and state Incidental Take Permit approvals were invalid, and to remand the matter to the trial court for remediation of these approvals in a manner consistent with the views expressed in this opinion. The question whether the no surprises clauses, to the extent they are unlawful, can be severed, and the rest of the Incidental Take Permit reinstated, was not specifically addressed below. This question should be addressed by the trial court on remand. The parties have not briefed in this court the question of interim remedies. Because this opinion concludes that the SYP was not properly approved, we hold that the interim remedy imposed by the trial court was proper. Arguments about whether the injunction should be modified due to changed circumstances or for any other reason should be addressed to the trial court. In all other respects, we affirm the Court of Appeal judgment, including, inter alia, its rulings that the EIS/EIR and Streambed Alteration Agreement had been properly approved. Each party is to bear its own costs. Majority Opinion by: Moreno, J. ----- Joined by George, C. J., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| Dec 31 1969 | Remittitur issued (civil case) |
| Dec 31 1969 | Returned record to 1DCA (5-doghouses & 44-boxes) |
| Briefs | |
| Dec 31 1969 | Opening brief on the merits filed |
| Dec 31 1969 | Opening brief on the merits filed |
| Dec 31 1969 | Answer brief on the merits filed |
| Dec 31 1969 | Answer brief on the merits filed |
| Dec 31 1969 | Answer brief on the merits filed |
| Dec 31 1969 | Reply brief filed (case not yet fully briefed) |
| Dec 31 1969 | Reply brief filed (case fully briefed) |
| Dec 31 1969 | Amicus curiae brief filed |
| Dec 31 1969 | Amicus curiae brief filed |
| Dec 31 1969 | Amicus curiae brief filed |
| Dec 31 1969 | Response to amicus curiae brief filed |
| Dec 31 1969 | Response to amicus curiae brief filed |
| Dec 31 1969 | Response to amicus curiae brief filed |
| Dec 31 1969 | Amicus curiae brief filed |
| Dec 31 1969 | Response to amicus curiae brief filed |
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| Jan 9, 2009 Annotated by admin.ah | Written by: Jacob Heller Factual Background Shortly after Pacific Lumber sought and obtained its permits, various environmental and labor groups challenged the regulatory approval. Procedural History Holdings Important Points of Law
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| Jan 9, 2009 Annotated by admin.ah | Opinion Analysis The ruling is in many ways important, addressing large issues in both environmental and administrative law. The Court overturned a number of regulatory decisions, stating clearly that it will intervene if regulatory agencies do not live up to their duty to protect the environment. While the decision contains language indicating that courts should be deferential to agencies, the Court here takes an approach that is anything but. The Court has also laid out minimum judicially-enforceable standards it requires of agencies when handeling specific environmental issues. When a logging company is ordered to make its logging sustainable, the Court requires the regulatory agency only accept a fully completed "Sustainable Yield Plan" report. Furthermore, the Court overruled an agency permit that limited the logging company's obligation to mitigate certain impacts on endangered species. Instead, the court ruled, those who hold endangered species permits must work to “fully” protect these animals and plants. Perhaps the decision is most significant, however, for bringing to a close the decades-long controversy surrounding the logging of old-growth redwoods in Humbolt County. |
| Jan 8, 2009 Annotated by diana teasland | Written by Molly Loughney Opinion Summary First, because the THP’s state that herbicide use is a reasonable probability and that eliminating its use is not feasible, we conclude herbicide use is reasonably foreseeable and thus part of the activity constituting the project covered by each THP. Consequently, CDF has the authority to review that use, assess the potential environmental impacts of that use, and impose feasible alternatives or mitigation measures to lessen or eliminate any substantial, or potentially substantial, adverse change in the environment. CDF has not met its burden in this case. Accordingly, approval of the timber harvest plans should have been revoked until SPI and CDF were able to properly disclose the potential environmental impacts of herbicide use. |
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