Stanford Law School - Robert Crown Law Library

Filed 1/30/06

IN THE SUPREME COURT OF CALIFORNIA

PACIFIC LUMBER COMPANY et al.,
Plaintiffs
and
Respondents,
S124464
v.
Ct.App.
1/5
A102399
STATE WATER RESOURCES
CONTROL BOARD,
Humboldt
County
Defendant and Appellant.
Super. Ct. No. DR010860

This case addresses whether the Z’berg-Nejedly Forest Practice Act of
1973 (Pub. Res. Code, § 4511 et seq.) and its implementing regulations provide
the exclusive mechanism through which the Regional Water Quality Control
Boards and the State Water Resources Control Board (collectively, Water Boards)
may address water quality concerns implicated by logging operations associated
with a timber harvest plan.
The present dispute arose following the California Department of Forestry
and Fire Protection’s (Department of Forestry) approval of a timber harvest plan
amendment submitted by Scotia Pacific Company LLC and Pacific Lumber
Company (collectively, Pacific Lumber). The North Coast Regional Water
Quality Control Board had objected to the amendment, asserting that it contained
insufficient safeguards to protect nearby waters potentially affected by the
proposed logging activity. This objection was overruled by the Department of
Forestry. The Regional Water Quality Control Board and the State Water
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Resources Control Board then issued orders directing Pacific Lumber to adopt a
water quality monitoring program that had not been required by the Department of
Forestry. Pacific Lumber asserts that these orders are invalid because the Forest
Practice Act prevents the Water Boards from compelling water quality monitoring
related to logging already subject to an approved timber harvest plan.
Pacific Lumber’s construction of the Z’berg-Nejedly Forest Practice Act of
1973 (Forest Practice Act) as providing the exclusive means of regulating timber
harvesting is based on public policy, i.e., on a view that the Legislature could not
have endorsed an allegedly duplicative and overtaxing regulatory scheme. While
it may be the case that a streamlined process would claim certain advantages (and
possible disadvantages) relative to a scheme contemplating overlapping
jurisdiction, the Forest Practice Act’s plain language dictates the result here.
Specifically, the Forest Practice Act’s savings clause provides that “[n]o provision
of this chapter or any ruling, requirement, or policy of the [State Board of Forestry
and Fire Protection] is a limitation on . . . [¶] . . . [¶] . . . the power of any state
agency in the enforcement or administration of any provision of law which it is
specifically authorized or required to enforce or administer.” (Pub. Res. Code,
§ 4514, subd. (c).) The Porter-Cologne Water Quality Control Act (Wat. Code,
§ 13000 et seq.) specifically authorizes the water quality monitoring ordered by
the Water Boards. (See Wat. Code, §§ 13267, subd. (b)(1), 13320, subd. (c).) In
light of the Forest Practice Act’s express disclaimer of any interference with
agency responsibilities, and the absence of any irreconcilable conflict between the
savings clause and other provisions of the Forest Practice Act, we cannot accept
Pacific Lumber’s argument that the act implicitly allocates to the Department of
Forestry exclusive responsibility for protecting state waters affected by timber
harvesting, in derogation of the Water Boards’ statutory prerogatives.
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As the Court of Appeal reached the same conclusion, we affirm its
judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case involves proposed logging activity on approximately 700 wooded
acres in Humboldt County’s Elk River watershed. Until 1999, this land was
owned by the Elk River Timber Company (Elk River). In 1997, Elk River
submitted a timber harvest plan (THP) as a precursor to logging this area. Under
California law, an approved THP is a prerequisite to all nonexempt logging
operations. (Pub. Res. Code, § 4581.)1 The Department of Forestry must review
THP’s to determine whether they comport with the Forest Practice Act and the
rules and regulations of the State Board of Forestry and Fire Protection (Board of
Forestry). (§ 4582.7.)
Elk River’s THP underwent the multidisciplinary review spelled out in the
Forest Practice Act and its associated regulations. (See § 4582.6, subds. (a), (b);
Cal. Code Regs., tit. 14, § 1037.5.) The North Coast Regional Water Quality
Control Board participated in this process, recommending that Elk River develop a
sediment monitoring program along potentially affected waters. Elk River’s
forester agreed to the concept of a rigorous, cooperative monitoring program. But
no mandatory monitoring program was ever written into the THP. The THP
provided only that “[m]onitoring protocols, techniques and monitoring locations
shall be chosen at the discretion of the landowner or representative.” On August
24, 1998, Elk River’s THP, known as THP 520, was approved by the Department
of Forestry without any objection from the Regional Water Quality Control Board.

1
All subsequent statutory references are to the Public Resources Code unless
otherwise noted.
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THP 520 and the land it encompassed were transferred to Pacific Lumber in
1999. This transaction occurred as part of the “Headwaters Agreement,” through
which the state gained control of the Headwaters Forest Preserve. (See Stats.
1998, ch. 615.) On August 30, 1999, Pacific Lumber submitted the first of several
amendments to THP 520 designed to facilitate logging operations at the site. This
proceeding concerns amendment No. 5, which was submitted by Pacific Lumber
on September 14, 2000. Amendment No. 5 proposed certain modifications to
THP 520, including provisions allowing for wintertime operations, “yarding”
(removal of felled timber) by helicopter, and other changes made necessary by the
Headwaters Agreement.
Under the Forest Practice Act, substantial amendments to THP’s also are
subject to Department of Forestry approval. (§ 4591.) As part of the review
process for amendment No. 5, a representative of the North Coast Regional Water
Quality Control Board participated in on-site inspections of the THP 520 logging
site on November 6, 2000 and November 29, 2000. In January 2001, the chairman
of the review team for amendment No. 5 recommended that the Director of the
Department of Forestry (Director) approve the amendment. (See Cal. Code Regs.,
tit. 14, § 1037.5, subd. (c).) Shortly thereafter, as allowed by the California Code
of Regulations (id., subd. (e)), the Regional Water Quality Control Board
submitted a “non-concurrence” disagreeing with the chairman’s recommendation.
The Regional Water Quality Control Board’s non-concurrence letter voiced
several concerns with the timber harvesting contemplated by the amended THP.
Most relevant here, the letter stated that Pacific Lumber had not yet proposed a
program that would adequately monitor the effects the harvesting would have on
water quality. Without such monitoring, the Regional Water Quality Control
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Board argued, a chance existed that the timber harvesting authorized by THP 520
would violate state water quality law.2
The Department of Forestry rejected the North Coast Regional Water
Quality Control Board’s concerns regarding inadequate monitoring, stating that
the proposed amendment “is anticipated to reduce water quality issues below those
in the existing unamended plan. That plan, as noted by [the Regional Water
Quality Control Board], is in place and operable without the monitoring program
being proposed in this non-concurrence.” The Regional Water Quality Control
Board’s objections having been overruled, the Director approved amendment No.
5 on March 6, 2001.
On March 13, 2001, the North Coast Regional Water Quality Control
Board asked the State Water Resources Control Board to invoke the Forest

2
More specifically, the non-concurrence letter expressed concern that Pacific
Lumber’s timber harvesting would violate the applicable basin plan. Under state
law, “regional boards ‘formulate and adopt water quality control plans for all areas
within [a] region.’ [Citation.] The regional boards’ water quality plans, called
‘basin plans,’ must address the beneficial uses to be protected as well as water
quality objectives, and they must establish a program of implementation.
[Citation.]” (City of Burbank v. State Water Resources Control Bd. (2005) 35
Cal.4th 613, 619.) The basin plan involved here, excerpts of which we judicially
notice upon the State Water Resources Control Board’s request (Evid. Code,
§§ 452, subd. (c), 459), provides in pertinent part that “[t]he discharge of soil, silt,
slash, sawdust, or other organic and earthen material from any logging,
construction, or associated activity of whatever nature into any stream or
watercourse in the basin in quantities deleterious to fish, wildlife, or other
beneficial uses is prohibited,” and “[t]he placing or disposal of soil, silt, bark,
slash, sawdust, or other organic and earthen material from any logging,
construction, or associated activity of whatever nature at locations where such
material could pass into any stream or watercourse in the basin in quantities which
could be deleterious to fish, wildlife, or other beneficial uses is prohibited.”
(North Coast Regional Water Quality Control Board, Water Quality Control Plan
for the North Coast Region, p. 4-32.)
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Practice Act’s “head of agency appeal process,” which would have allowed the
Board of Forestry to review the amendment’s approval. (§ 4582.9.) Two days
later, the State Water Resources Control Board received a letter from the Director
advising the agency that “the amendment and its proposed operations have been
sufficiently restricted and mitigated to the point that there is minimal risk to water
quality.” The State Water Resources Control Board ultimately did not invoke the
head of agency appeal process.
Undeterred, the North Coast Regional Water Quality Control Board issued
Monitoring and Reporting Order No. R1-2001-19 on March 28, 2001. This order
required Pacific Lumber to adopt a comprehensive water quality monitoring
program that would include five new monitoring stations along the South Fork of
the Elk River. The Regional Water Quality Control Board advised Pacific Lumber
that the program was necessary “to assure that discharges from [logging
contemplated by THP 520] comply with Basin Plan objectives and prohibitions, to
assure that discharges do not impede recovery of the watershed, and to identify
and address discharges of sediments to receiving waters in a timely manner.”
Pacific Lumber filed a petition (see Wat. Code, § 13320, subd. (a)) with the
State Water Resources Control Board, asking it to rescind the North Coast
Regional Water Quality Control Board’s order. In its petition, Pacific Lumber
argued that the Forest Practice Act’s provisions relating to THP approval
precluded the Regional Water Quality Control Board from imposing monitoring
requirements more stringent than those found within the applicable THP. The
State Water Resources Control Board disagreed and upheld the Regional Water
Quality Control Board’s authority to require monitoring. However, the State
Water Resources Control Board’s final order required only two new monitoring
stations, as opposed to the five demanded by the Regional Water Quality Control
Board. The State Water Resources Control Board’s order also imposed
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inspection, recordkeeping, reporting, and planning requirements associated with
the monitoring.
Pacific Lumber then filed a petition for writ of mandamus in Humboldt
County Superior Court. (See Code Civ. Proc., § 1094.5.) In its writ petition,
Pacific Lumber argued that the State Water Resources Control Board lacked
“authority to unilaterally impose monitoring requirements as a condition to the
conduct of timber operations pursuant to an approved THP.” Pacific Lumber
asserted that the Forest Practice Act conferred upon the Department of Forestry
ultimate and exclusive authority to determine whether or not proposed timber
operations complied with state water law. Pacific Lumber also contended that the
Water Boards were collaterally estopped from revisiting the Department of
Forestry’s determinations concerning the need for water quality monitoring.
The superior court granted Pacific Lumber’s petition. The court concluded
that “[t]he legislative history and expressed intent [of the Forest Practice Act]
indicates the adoption of a plan to deal with timber harvesting in [a] way that will
allow the timberland owner to have finality, once the plan is approved, and
appeals exhausted, and yet allow protection of the environment through public
input, as well as input from state agencies involved in the timber harvest plan
process. Such intent would be vitiated should involved agencies, unhappy with
the final plan, ignore the appeal process, and simply issue their own orders to the
timberland owner.”
The Court of Appeal reversed, relying in great measure on the Forest
Practice Act’s savings clause, which in relevant part provides that “[n]o provision
of this chapter or any ruling, requirement, or policy of the board is a limitation on
. . . [¶] . . . [¶] . . . the power of any state agency in the enforcement or
administration of any provision of law which it is specifically authorized or
required to enforce or administer.” (§ 4514, subd. (c).) The Court of Appeal
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determined that “[o]n its face, Public Resource Code section 4514, subdivision (c)
directly addresses the interagency issue. It provides that notwithstanding orders of
the Department of Forestry (such as the approval of a THP or THP amendment),
other state agencies may continue to enforce the laws entrusted to them.” The
Court of Appeal also rejected Pacific Lumber’s collateral estoppel argument and
concluded that Pacific Lumber had forfeited, by failing to raise this argument
before the superior court, its contention that the monitoring requirements effected
a taking of its property without just compensation.
We granted review.
II. DISCUSSION
Pacific Lumber contends that the Water Boards’ unilateral imposition of
monitoring requirements subverted the procedures for THP approval incorporated
within the Forest Practice Act, which Pacific Lumber characterizes as creating a
“one stop” regulatory process for proposed logging activity that already
incorporates detailed consideration of water quality impacts. This “one stop”
process, Pacific Lumber argues, cannot be reconciled with the after-the-fact
imposition of additional water quality monitoring requirements by the Water
Boards.
The Forest Practice Act promotes a state policy of “encourag[ing] prudent
and responsible forest resource management calculated to serve the public’s need
for timber and other forest products, while giving consideration to the public’s
need for watershed protection, fisheries and wildlife, and recreational
opportunities alike in this and future generations.” (§ 4512, subd. (c).) The Forest
Practice Act is designed to “create and maintain an effective and comprehensive
system of regulation and use of all timberlands so as to assure that: [¶] (a) Where
feasible, the productivity of timberlands is restored, enhanced, and maintained[,
and] [¶] (b) The goal of maximum sustained production of high-quality timber
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products is achieved while giving consideration to values relating to recreation,
watershed, wildlife, range and forage, fisheries, regional economic vitality,
employment, and aesthetic enjoyment.” (§ 4513.)
Toward these goals, the Forest Practice Act requires the Board of Forestry
to adopt rules pertaining to the effects of timber operations on water quality and
watershed control (§ 4551.5), and rules controlling timber operations that will
result or threaten to result in unreasonable effects on the beneficial uses of state
waters (§ 4562.7). (See also Cal. Code Regs., tit. 14, §§ 916-916.12.) The Forest
Practice Act also contains detailed procedures relating to the submission and
approval of THP’s. Subject to certain exemptions not implicated here, the Forest
Practice Act requires parties who plan on harvesting timber to first submit a THP
to the Department of Forestry for approval. (§§ 4581-4582.) The THP must
contain information including “[a] description of the land on which the work is
proposed to be done,” “[a] description of the silvicultural methods to be applied,
including the type of logging equipment to be used,” “[a]n outline of the methods
to be used to avoid excessive accelerated erosion from timber operations to be
conducted within the proximity of a stream,” “[s]pecial provisions, if any, to
protect any unique area within the area of timber operations,” “[t]he expected
dates of commencement and completion of timber operations,” “[a] certification
by the registered professional forester preparing the plan that he or she or a
designee has personally inspected the plan area,” and “[a]ny other information the
[Board of Forestry] provides by regulation to meet its rules and the standards of
this chapter.” (§ 4582, subds. (c)-(i); see also Cal. Code Regs., tit. 14, § 1034.)
Once submitted, the THP is made available for public inspection and
comment. (§ 4582.6, subd. (a).) The Department of Forestry transmits copies of
the THP to other agencies, including the Department of Fish and Game and the
appropriate Regional Water Quality Control Board, for their review. (Ibid.) A
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representative of the local Regional Water Quality Control Board participates in
an interagency team that reviews the THP and assists the Director in evaluating
the planned timber operations and their environmental impacts. (Cal. Code Regs.,
tit. 14, § 1037.5.) The review team may perform a preharvest inspection of the
proposed logging site. (Id., subd. (g)(1).) The review team’s chairperson makes a
recommendation to the Director regarding whether the plan should be approved or
rejected. (Id., subd. (h).) Any member of the review team may submit a non-
concurrence letter to the Director disagreeing with the chairperson’s
recommendation to approve a plan and offering advice on measures or actions that
should be taken to address the asserted deficiency. (Id., subd. (e).)
The Director then determines whether the THP conforms to the Forest
Practice Act and the Board of Forestry’s rules and regulations, taking into account
the comments and recommendations that he or she has received. (§ 4582.7, subds.
(a), (b); Cal. Code Regs., tit. 14, §§ 1037.6-1037.7.) In this respect, the Director,
or his or her designee, “shall have the final authority to determine whether a
timber harvesting plan is in conformance with the rules and regulations of the
[Board of Forestry] and with [the Forest Practice Act] for purposes of approval by
the [D]epartment.” (§ 4582.7, subd. (e).)3 Pertinent here, a THP may be rejected
if “[i]mplementation of the plan as proposed would cause a violation of any
requirement of an applicable water quality control plan adopted or approved by the
State Water Resources Control Board.” (Cal. Code Regs., tit. 14, § 898.2, subd.
(h).)

3
The phrase “for purposes of approval by the [D]epartment” was added to
section 4582.7, subdivision (e) in 2003, in connection with other changes to the
Forest Practice Act that allowed Regional Water Quality Control Boards to
instruct the Director to disapprove THP’s in certain situations. (See § 4582.71,
added by Stats. 2003, ch. 900, § 3.)
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An applicant whose THP has been disapproved by the Director may request
a public hearing before the Board of Forestry, which then determines for itself
whether the THP comports with the Forest Practice Act and related regulations.
(§ 4582.7, subd. (c).) Conversely, at its option either the State Water Resources
Control Board or the Director of Fish and Game may appeal to the Board of
Forestry a decision to approve a THP. (§ 4582.9, subd. (a).) Any such appeal
must be brought within 10 days of the THP’s approval (ibid.), and requires prior
agency participation in the multidisciplinary THP review process (id., subd. (b)).
A hearing on an appeal shall be granted upon a Board of Forestry determination
that the appeal raises substantial issues “with respect to the environment or to
public safety.” (Id., subd. (c).)
Pacific Lumber contends that the foregoing provisions signal an intent to
make the THP approval process the exclusive forum for evaluating a proposed
timber harvest’s effects on water quality. This being the case, Pacific Lumber
argues, the Water Boards cannot go outside of this process and unilaterally impose
water quality requirements above and beyond those incorporated within an
approved THP.
There is no dispute that, generally speaking, the Porter-Cologne Water
Quality Control Act (Wat. Code, § 13000 et seq.) (Porter-Cologne Act) vests the
Regional Water Quality Control Boards and the State Water Resources Control
Board with the authority to require water quality monitoring of the type at issue
here. The Porter-Cologne Act seeks “to attain the highest water quality which is
reasonable, considering all demands being made and to be made on [state] waters
and the total values involved, beneficial and detrimental, economic and social,
tangible and intangible.” (Wat. Code, § 13000.) The State Water Resources
Control Board and Regional Water Quality Control Boards are “the principal state
agencies with primary responsibility for the coordination and control of water
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quality.” (Id., § 13001.) Under the Porter-Cologne Act, “[a] regional board, in
establishing or reviewing any water quality control plan or waste discharge
requirements, or in connection with any action relating to any plan or requirement
authorized by this division, may investigate the quality of any waters of the state
within its region.” (Id., § 13267, subd. (a).) In conducting an investigation, a
“regional board may require that any person who has discharged, discharges, or is
suspected of having discharged or discharging, or who proposes to discharge
waste within its region . . . shall furnish, under penalty of perjury, technical or
monitoring program reports which the regional board requires.” (Id., § 13267,
subd. (b)(1).) When reviewing an order issued by a Regional Water Quality
Control Board, the State Water Resources Control Board is “vested with all the
powers of the regional boards.” (Id., § 13320, subd. (c).)
Pacific Lumber’s argument is that while the Water Boards may require
water quality monitoring as a general matter, the Forest Practice Act displaces
their authority in this respect if the monitoring relates to logging activity pursuant
to an approved THP. It would be more efficient and sensible, Pacific Lumber
contends, to construe the Forest Practice Act’s THP approval process as implicitly
excluding other means of regulation. If other agencies were allowed to
subsequently impose additional requirements on top of those compelled by the
Department of Forestry, the argument goes, these agencies will have no incentive
to participate in what the Legislature intended to be a “comprehensive” process.
Instead, the agencies will subject timber companies to repetitive regulatory review
that will increase the costs associated with timber harvesting.
This argument suffers from a fundamental flaw, in that it runs headlong
into the Forest Practice Act’s savings clause, which provides: “No provision of
this chapter or any ruling, requirement, or policy of the [Board of Forestry] is a
limitation on any of the following: [¶] (a) On the power of any city or county or
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city and county to declare, prohibit, and abate nuisances. [¶] (b) On the power of
the Attorney General, at the request of the [Board of Forestry], or upon his own
motion, to bring an action in the name of the people of the State of California to
enjoin any pollution or nuisance. [¶] (c) On the power of any state agency in the
enforcement or administration of any provision of law which it is specifically
authorized or required to enforce or administer. [¶] (d) On the right of any
person to maintain at any time any appropriate action for relief against any private
nuisance as defined in Part 3 (commencing with Section 3479) of Division 4 of the
Civil Code or for any other private relief.” (§ 4514, italics added.)
As the Court of Appeal ascertained, section 4514, subdivision (c)’s proviso
that “[n]o provision of this chapter or any ruling, requirement, or policy of the
[Board of Forestry] is a limitation on . . . [¶] . . . [¶] . . . the power of any state
agency in the enforcement or administration of any provision of law which it is
specifically authorized or required to enforce or administer” is fatal to Pacific
Lumber’s argument. Pacific Lumber’s position boils down to the view that the
Forest Practice Act implicitly precludes the Water Boards from exercising their
authority under the Porter-Cologne Act to impose monitoring requirements, where
those requirements relate to timber harvesting undertaken pursuant to an approved
THP. Section 4514, subdivision (c) expressly provides that the contrary is true,
that the Forest Practice Act in no way limits the Water Boards’ authority in this
respect. As a direct and pellucid expression of legislative intent regarding the
precise issue before us, section 4514, subdivision (c) controls the present case.
Before the superior court, Pacific Lumber’s attorneys contended that
section 4514, subdivision (c) applies only in situations where the Forest Practice
Act is vague or silent. This interpretation makes no sense; the very purpose of the
savings clause is to preserve state agencies’ authority as to matters implicated by
the Forest Practice Act. Pacific Lumber’s construction also ignores the obvious
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meaning of the directive that “[n]o provision of this chapter” will limit the power
of a “state agency in the enforcement or administration of any provision of law
which it is specifically authorized or required to enforce or administer.” (§ 4514,
subd. (c), italics added.) We take the phrase “no provision” to mean what it says,
that nothing within the Forest Practice Act — including the THP approval and
appeal process — implicitly bars the Water Boards from fulfilling their
independent obligations. “If there is no ambiguity in the language” of a statute,
“we presume the Legislature meant what it said, and the plain meaning of the
statute governs.” (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)
Before this court, Pacific Lumber cites three federal decisions that declined
to apply generic savings clauses. (Morales v. Trans World Airlines, Inc. (1992)
504 U.S. 374, 384-385; International Paper Co. v. Ouellette (1987) 479 U.S. 481,
493; Matter of Lifschultz Fast Freight Corp. (7th Cir. 1995) 63 F.3d 621, 625-
629.) These decisions are not binding upon our interpretation of the Forest
Practice Act, and each is distinguishable. The pertinent savings clause in
International Paper Co. v. Ouellette, supra, 479 U.S. 481, by its own terms, did
not preclude preemption of the supposedly “saved” claims. (Id. at p. 493.)
Moreover, there the Supreme Court concluded that the savings clause manifested
no “ ‘considered judgment about what other remedies were previously available or
continue to be available under any particular statute.’ [Citation.]” (Id. at p. 494,
fn. 14.) In Morales v. Trans World Airlines, Inc., supra, 504 U.S. 374, the savings
clause could not be reconciled with another provision of the same law that
expressly preempted certain claims. (Id. at pp. 384-385.) Matter of Lifschultz
Fast Freight Corp., supra, 63 F.3d 621, addressed an ambiguous savings clause,
one interpretation of which would have rendered other provisions of the same law
superfluous; in interpreting the clause, the court observed that “when we are
forced to choose between specific statutory provisions and a general savings
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clause, we err on the side of the specific provisions in the belief that they reflect
congressional intent more clearly. [Citation.] Absent a clearly expressed intention
contrary to those more specific provisions, [citation], we simply cannot ‘believe
Congress intended to undermine this carefully drawn statute through a general
savings clause,’ [citation], consistent with our duty to ‘make sense rather than
nonsense of the corpus juris.’ [Citation.]” (Id. at p. 629.)
This case, of course, does not implicate the full spectrum of considerations
that may be present where federal legislation contains a savings clause. Moreover,
as pertinent here the cases cited by Pacific Lumber and other decisions addressing
savings clauses in federal legislation (see, e.g., Geier v. American Honda Motor
Co., Inc. (2000) 529 U.S. 861, 867-874; American Telephone and Telegraph Co.
v. Central Office Telephone, Inc. (1998) 524 U.S. 214, 227-228) merely establish a
reluctance to construe a savings clause such that it conflicts with other, more
specific provisions of a law or “ ‘upset[s] [a] careful regulatory scheme established
by federal law’ ” (Geier v. American Honda Motor Co., Inc., supra, 529 U.S. at p.
870; see also Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32
Cal.4th 910, 924-926 [discussing Geier]). This principle is both unexceptional
and inapplicable, for section 4514, subdivision (c) can be harmonized with the
other provisions of the Forest Practice Act. (See Wells v. Marina City Properties,
Inc. (1981) 29 Cal.3d 781, 788 [wherever possible, legislation should be construed
so as to harmonize and give meaning to its various elements].) The savings clause
can be read as consistent with — and indeed, a vital part of — a regulatory scheme
that encourages interagency teamwork in the THP approval process by providing
forums for collaboration and the airing of any disagreements that may arise, but
not at the cost of stripping state agencies of their respective authority to protect
resources that may be affected by logging.
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None of the terms of the Forest Practice Act that Pacific Lumber relies
upon compels a contrary conclusion, for we perceive no irreconcilable conflict
between any of these provisions and the Forest Practice Act’s savings clause.
While Pacific Lumber stresses that under the Forest Practice Act the Director
“shall have the final authority to determine whether a timber harvesting plan is in
conformance with the rules and regulations of the [Board of Forestry] and with
[the Forest Practice Act]” (§ 4582.7, subd. (e)), this provision does not necessarily
disturb the authority of other agencies to enforce laws other than the Forest
Practice Act.4 There is no inherent conflict between giving the Director final
authority over the approval of THP’s while at the same time preserving other state
agencies’ jurisdiction over the effects of timber harvesting on state resources
under their purview. This approach simply creates a system of overlapping
jurisdiction, an uncontroversial concept under our law even absent a savings
clause like the one implicated here. (See, e.g., State Personnel Bd. v. Fair
Employment & Housing Com. (1985) 39 Cal.3d 422, 439-441 [concluding that the
Department of Fair Employment and Housing, the Fair Employment and Housing
Commission, and the State Personnel Board shared concurrent jurisdiction over
disciplinary actions and examinations involving state civil service employees];
Orange County Air Pollution Control Dist. v. Public Util. Com. (1971) 4 Cal.3d
945, 953-954 [recognizing the concurrent jurisdiction of the Public Utilities
Commission and air pollution control districts]; cf. Resource Inv., Inc. v. U.S.

4
Section 4582.7’s language regarding the Director’s “final authority” was
added to the statute in 1995. (Stats. 1995, ch. 612, § 3, p. 4590.) Just five days
prior to oral argument in this matter, and several months after the completion of
briefing, Pacific Lumber filed a request asking this court to take judicial notice of
several legislative and executive analyses and reports pertaining to this
amendment. Pacific Lumber did not adequately explain why the request was filed
so late, and we deny the request. (See Evid. Code, § 453, subd. (a).)
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Army Corps of Eng’rs (9th Cir. 1998) 151 F.3d 1162, 1169 [finding no concurrent
jurisdiction between federal agencies in a situation where no interagency savings
clause was involved].) Being subject to regulation by both the Department of
Forestry (to the extent Pacific Lumber proposed timber harvesting) and the Water
Boards (to the extent this harvesting implicated the state’s water resources and the
Water Boards’ authority under the Porter-Cologne Act), Pacific Lumber was
bound to comply with the more stringent monitoring requirements imposed by the
State Water Resources Control Board. (See Orange County Air Pollution Control
Dist. v. Public Util. Com., supra, 4 Cal.3d at pp. 953-954; 37 Ops.Cal.Atty.Gen.
31, 36 (1961).)5

5
We are not faced here with a situation in which it would be literally
impossible for a timber harvester to simultaneously comply with conflicting
directives issued by the Department of Forestry and the Water Boards. We trust
that agencies strive to avoid such conflicts, and express no opinion here regarding
the appropriate outcome in a case involving irreconcilable orders. (Cf. State
Personnel Bd. v. Fair Employment & Housing Com., supra, 39 Cal.3d at p. 442,
fn. 20 [noting that “any conflicts which may arise in this area can be resolved
either by administrative accommodation between the two agencies themselves or,
failing that, by sensitive application of evolving judicial principles”].) On this
topic, the State Water Resources Control Board has requested judicial notice, as an
official act by executive agencies (Evid. Code, § 452, subd. (c)), of a
memorandum of understanding between Regional Water Quality Control Boards,
the Department of Forestry, and itself executed in 2003. This memorandum sets
forth procedures aimed at resolving interagency conflicts within the THP review
process, and additionally provides that where the Department of Forestry and the
Water Boards disagree, the Water Boards “may proceed to take whatever action
they believe is appropriate under their independent statutory authority.” (Mem.
Between State Water Resources Control Board, Designated Regional Water
Quality Control Boards, and Cal. Dept. of Forestry and Fire Protection, p. 10.) We
grant this request. (Evid. Code, §§ 452, subd. (c), 459; see also Brown v. City of
Los Angeles (2002) 102 Cal.App.4th 155, 172, fn. 10; Dunn-Edwards Corp. v.
South Coast Air Quality Management Dist. (1993) 19 Cal.App.4th 536, 543, fn.
3.)
17

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Likewise, we perceive no inherent inconsistency between a system
allowing for concurrent jurisdiction and the Legislature’s avowed desire to “create
and maintain an effective and comprehensive system of regulation and use of all
timberlands.” (§ 4513.) “Comprehensive” means, among other things,
“[i]ncluding much; comprising many things; having a wide scope; inclusive.”
(Webster’s New Internat. Dict. (2d ed. 1941) p. 550.) The creation of an
“inclusive” means of timber management does not necessarily mandate the
abolition of other methods of regulation. At oral argument, counsel for Pacific
Lumber effectively conceded as much, acknowledging that the Water Boards
could regulate the effects of timber harvesting on water resources if “changed
circumstances” following approval of a THP so required.
Pacific Lumber also urges reversal on the ground that if the Water Boards
are free to unilaterally impose monitoring requirements not included in a THP,
they will have no incentive to participate in the head of agency appeal procedure
authorized by section 4582.9. Pacific Lumber’s position presumes an irrationally
antagonistic relationship among the agencies participating in THP reviews. From
the State Water Resources Control Board’s perspective, a head of agency appeal
oftentimes may be preferable to issuing orders under the agency’s independent
authority. The appeal process provides for prompt review of a THP approval6
and, if the Board of Forestry agrees with the objector, allows the appealing agency
to avoid the effort and expense that would be associated with issuing its own
orders on the subject. A voluntary appeal process therefore can be understood as

6
The Board of Forestry must conduct a public hearing on a head of agency
appeal within 30 days after an appeal is filed, or a longer period mutually agreed
upon by the Board of Forestry, the appealing agency, and the THP submitter. The
Board of Forestry must approve or deny the challenged THP within 10 days after
the conclusion of the hearing. (§ 4582.9, subd. (d).)
18

---

consistent with a policy of calling upon agencies to cooperatively evaluate the
environmental impacts of a proposed timber harvest, while allowing these
agencies to act on their own in situations where they cannot agree.7
The Forest Practice Act’s legislative history also distinguishes this case
from those in which savings clauses were trumped by inconsistent provisions of a
statute. (See, e.g., International Paper Co. v. Ouellette, supra, 479 U.S. at p. 494,
fn. 14.) Assemblyman Edwin Z’berg, the author of Assembly Bill No. 227, which
would become the Forest Practice Act, wrote the Legislative Counsel for an
opinion in advance of the bill’s passage. The State Water Resources Control
Board and Department of Fish and Game had voiced concerns regarding
Assembly Bill No. 227’s proposed section 4562.7, which confers upon the Board
of Forestry authority to promulgate rules regarding, among other subjects, the
control of timber operations that result or threaten to result in unreasonable effects
on the beneficial uses of state waters. The agencies feared that this provision, and
rules promulgated thereunder, might be construed as superseding their own
authority. Assemblyman Z’berg wrote the Legislative Counsel with his view that

7
Pacific Lumber also relies upon a passage from an enrolled bill report for
Senate Bill No. 1568, the measure that added the head of agency appeal to the
Forest Practice Act. The report states, “In recent court cases involving THPs the
agencies have been pitted against each other to the disadvantage of the state. An
administrative hearing on an appeal would forestall such tactics.” (Cal. Dept. of
Forestry and Fire Protection, Enrolled Bill Rep. on Sen. Bill No. 1568 (1989-1990
Reg. Sess.) Sept. 1, 1989, p. 1.) Pacific Lumber suggests that this language
reflects an intent to channel all interagency disputes through the THP process.
Even assuming that the report affords some insight into the Legislature’s intent
(see Elsner v. Uveges (2004) 34 Cal.4th 915, 934, fn. 19), the excerpted language
appears only to reflect a desire to lessen the need for court action by providing
aggrieved agencies with the option of an administrative appeal. It does not
suggest that the Legislature intended for the THP approval process to provide the
exclusive means of addressing the environmental impacts of timber harvesting.

19

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the language of proposed Public Resources Code section 4514, subdivision (c)
“would seem to allow the [State Water Resources Control Board] and the Regional
Water Quality Control Boards to continue regulation of waste discharges from
logging activities, including soil, bark, and other debris, whenever they affect
water quality.” (Assembly Member Edwin L. Z’Berg, letter to Legislative
Counsel re Assem. Bill No. 227 (1973-1974 Reg. Sess.) Aug. 6, 1973.) However,
out of concern that “the specific language of Section 4562.7 might be considered
by the courts to be such a clear expression of the Legislature as to the scope of
regulations to be applied to logging that the State Board of Forestry rules would be
considered paramount,” he requested an opinion answering the following question:
“Will AB 227 in any way limit the jurisdiction or restrict the enforcement
activities of the [State Water Resources Control Board], the Regional Water
Quality Control Boards or the Department of Fish and Game?” (Ibid.)
The Legislative Counsel responded in the negative: “Although the conduct
of a timber operation may be subject also to the rules, regulations, and orders of
other state agencies, there is nothing in the provisions of proposed Section 4562.7
which would provide that the rules adopted pursuant to that section are to
supersede, be paramount to, or control over applicable rules, regulations, or orders
of other state agencies. On the contrary, subdivision (c) of proposed Section 4514
specifically declares that no provision of proposed Chapter 8 (commencing with
Section 4511) of Part 2 of Division 4, of which proposed Section 4562.7 is a part,
or any ruling, requirement, or policy of the new State Board of Forestry, is a
limitation on the power of any state agency in the enforcement or administration
of any provision of law which it is specifically authorized or required to enforce or
administer.” (Ops. Cal. Legis. Counsel, No. 16456 (Aug. 10, 1973) Forestry
(Assem. Bill No. 227) p. 3.)
20

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Opinions of the Legislative Counsel, though not binding, are entitled to
great weight when courts attempt to discern legislative intent. (California Assn. of
Psychology Providers v. Rank (1990) 51 Cal.3d 1, 17.) Here, the Legislative
Counsel’s opinion recognized that the Forest Practice Act allows for overlapping
agency jurisdiction in situations where timber harvesting also affects water
resources. The legislative record thus establishes that the implications of section
4514, subdivision (c) were fully appreciated at the outset, and further demonstrates
that the savings clause’s plain language controls this case.
Pacific Lumber’s other arguments also fail to persuade. The company
purports to find support for its position in the Porter-Cologne Act’s savings clause,
Water Code section 13002. In certain respects, the language of Water Code
section 13002 resembles that of section 4514. Section 13002, subdivision (d)
provides that “[n]o provision of this division or any ruling of the state board or a
regional board is a limitation . . . [¶] . . . [¶] . . . [o]n the power of a state agency
in the enforcement or administration of any provision of law which it is
specifically permitted or required to enforce or administer.” Pacific Lumber
argues that the Water Boards’ actions here have limited the Department of
Forestry’s ability to regulate timber harvesting under the Forest Practice Act,
contrary to the language quoted above.
Like Pacific Lumber’s other arguments, this contention takes the untenable
position that the “power” delegated by the Forest Practice Act to the Department
of Forestry includes the exclusive authority to determine whether and how various
environmental laws should apply to proposed timber harvesting activities. On the
contrary, as relevant here, the Department of Forestry’s power relates to the
decision whether or not to approve a THP. The Water Board’s orders did not limit
the Department of Forestry’s authority in this respect. At the same time, the
Forest Practice Act’s savings clause establishes that while THP approval is an
21

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essential step in the timber harvesting process, it is not necessarily the only
regulatory hurdle a harvester must overcome. The Water Boards’ orders signify
their considered judgment that, regardless of whether a THP has been approved
under the Forest Practice Act, under the Porter-Cologne Act a monitoring program
also is appropriate. As previously established, the Department of Forestry’s
powers do not extend so far as to preclude sister agencies from regulating conduct
that intrudes into their own spheres of authority. There was no violation of the
Porter-Cologne Act’s savings clause.
Pacific Lumber also points to the Legislature’s 2003 enactment of section
4582.71, which provides that a THP “may not be approved if the appropriate
regional water quality control board finds, based on substantial evidence, that the
timber operations proposed in the plan will result in a discharge into a watercourse
that has been classified as impaired due to sediment pursuant to subsection (d) of
Section 303 of the Federal Water Pollution Control Act, that causes or contributes,
to a violation of the regional water quality control plan.” (§ 4582.71, subd. (a), fn.
omitted.) Section 4582.71 does not apply directly to this case; both THP 520 and
amendment No. 5 were approved long before the passage of Senate Bill No. 810,
which added this section to the Forest Practice Act. Rather, Pacific Lumber
ascribes significance to section 4582.71 as a reiteration of the Legislature’s
purported long-standing desire to have water quality issues addressed exclusively
within the THP approval process. (Cf. West Pico Furniture Co. v. Pacific Finance
Loans (1970) 2 Cal.3d 594, 610 [later enactments may offer some insight into the
legislative intent behind previously enacted laws].) We have already determined
that no such intent informed the Forest Practice Act, and section 4582.71 does not
alter this conclusion. “[A]n expression of legislative intent in a later enactment is
not binding upon a court in its construction of an earlier enacted statute, [although]
it is a factor that may be considered.” (Cummins, Inc. v. Superior Court (2005) 36
22

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Cal.4th 478, 492.) Here, even if we were to assume for purposes of argument that,
in allowing Regional Water Quality Control Boards to command the rejection of
THP’s, section 4582.71 also opaquely expresses a preference that the THP
approval process be exhaustive,8 any insight into the enacting Legislature’s intent
gleaned from this assumption would pale before the evident purport of section
4514, subdivision (c). (See County of Sonoma v. State Bd. of Equalization (1987)
195 Cal.App.3d 982, 992; Honey Springs Homeowners Assn. v. Board of
Supervisors (1984) 157 Cal.App.3d 1122, 1137.)9

8
However, a legislative analysis of Senate Bill No. 810 remarked upon the
Water Boards’ authority over water quality issues relating to timber harvesting,
observing that “[r]egional boards have various enforcement possibilities under
Porter-Cologne as violations of basin plans become evident, but this bill would
enhance their role at the beginning of the approval process.” (Sen. Rules Com.,
Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 810 (2003-2004 Reg. Sess.)
May 6, 2003, p. 2.) Another analysis of Senate Bill No. 810 commented, “[the
State Water Resources Control Board] contends that there are no costs to either
[the State Water Resources Control Board] or [the Regional Water Quality Control
Boards] because the bill codifies current practices and does not explicitly require a
[Regional Water Quality Control Board] to participate in the THP approval
process to any greater extent than it does now.” (Sen. Rules Comm., Off. of Sen.
Floor Analyses, Analysis of Sen. Bill. No. 810 (2003-2004 Reg. Sess.) Sept. 9,
2003, p. 4.)
9
Pacific Lumber also asserts that provisions of the Timberland Productivity
Act, Government Code section 51100 et seq., support its view that the Water
Boards lack authority to impose monitoring requirements exceeding those
incorporated within a THP. Pacific Lumber specifically points to the Timberland
Productivity Act’s declaration that the state’s policy is to “[e]ncourage investment
in timberlands based on reasonable expectation of harvest” (id., § 51102, subd.
(a)(4)), and provisions relating to local or nuisance-related restrictions on timber
operations (id., §§ 51102, subd. (b), 51115.5). We do not perceive in any of these
provisions meaningful support for the position that the Forest Practice Act,
notwithstanding its savings clause, prohibits state agencies specifically entrusted
with the coordination and control of water quality from fulfilling their statutory
obligations insofar as they relate to timber operations.
23

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Contrary to Pacific Lumber’s argument that amendments to the Forest
Practice Act have robbed the savings clause of its evident meaning, at least one
such amendment has implicitly reaffirmed that the Department of Forestry and the
Water Boards possess overlapping jurisdiction in situations where timber
harvesting affects water resources. In 1979 the Legislature added section 4514.3,
subdivision (a) to the Forest Practice Act. Section 4514.3, subdivision (a) exempts
“[t]imber operations conducted pursuant to [the Forest Practice Act] . . . from the
waste discharge requirements of Article 4 (commencing with Section 13260) of
Chapter 4 of Division 7 of the Water Code” if “both [the Environmental Protection
Agency] and the State Water Resources Control Board certify . . . that the
provisions of [the Forest Practice Act] constitute best management practices for
silviculture pursuant to Section 208 of the Federal Water Pollution Control Act.”
As the Court of Appeal noted, section 4514.3 “demonstrates that the Legislature
knows how to specify that timber operations are exempt from other laws when it
so intends.” Moreover, this exemption would be unnecessary if, as Pacific
Lumber argues, THP approval prevents the Water Boards from subsequently
regulating the effects of timber operations on water quality.10
The legislative history of section 4514.3 also works against Pacific
Lumber’s position. In explaining the statute, the Legislative Counsel reiterated its

10
Of similar import is Water Code, section 13269, subdivision (a) (as
amended by Stats. 2003, ch. 801, § 1), which allows the State Water Resources
Control Board and Regional Water Quality Control Boards to issue waivers from
certain waste discharge requirements. Subdivision (a)(4)(D) of Water Code
section 13269 specifically recognizes that silviculture operations are eligible for
these waivers. If the Legislature had intended for the Forest Practice Act’s THP
approval procedures to trump the Water Boards’ authority to regulate timber
harvesting, there would be no reason for the Porter-Cologne Act to discuss these
waivers for logging operations.
24

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earlier-expressed view that rules and regulations promulgated under the Forest
Practice Act “do not supersede or control over any rules, regulations, or orders of
the State Water Resources Control Board or of a regional board.” (Legis.
Counsel’s Dig., Sen. Bill No. 667, 4 Stats. 1979 (1979-1980 Reg. Sess.), Summary
Dig., p. 203.) Similarly, an enrolled bill report relating to this measure explained:
“[The] rules and regulations [promulgated under the Forest Practice Act] do not
supersede rules or regulations established by the State Water Resources Control
Board or of a regional board. In effect, timber operations are subject to the
provisions of regulations administered by both the State Board of Forestry and the
State and regional water quality control boards although the two departments work
closely together to avoid duplication.” (Dept. of Finance, Enrolled Bill Rep. on
Sen. Bill No. 667 (1979-1980 Reg. Sess.) Sept. 13, 1979, p. 1.)
Section 4514.3, subdivision (a) also helps defeat Pacific Lumber’s more
nuanced contention, emphasized at oral argument, that while the Forest Practice
Act might allow the Water Boards to regulate the effects of timber harvesting on
water resources when circumstances change after the commencement of logging
(as when it becomes clear that the protective provisions within a THP are
inadequate), the Water Boards cannot impose additional requirements before any
logging has begun, as they did here. The provisions of the Porter-Cologne Act
referenced by section 4514.3 include sections contemplating the Water Boards’
regulation of both existing and proposed discharges of waste. (See, e.g., Wat.
Code, §§ 13260, subd. (a), 13263, subd. (a).) By implicitly recognizing the
applicability of these provisions to timber operations (absent an exemption),
section 4514.3, subdivision (a) also acknowledges the Water Boards’ authority to
regulate timber harvesting outside of the THP approval process even before
logging has commenced. Furthermore, Pacific Lumber’s position finds no support
in the Forest Practice Act’s savings clause, which contains no language limiting its
25

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applicability to situations when “changed circumstances” force an agency’s hand.
Nor does Pacific Lumber’s argument provide any guidance regarding when
circumstances would have “changed” sufficiently to allow for agency intervention.
Also, to the extent that Pacific Lumber’s various contentions seek to minimize the
cost and expense of logging, it would seem counterproductive to delay agencies
from acting, or imposing prophylactic measures, until such time as logging has
begun, at which point a timber harvester already may have made a significant
investment of time and money.
Finally, Pacific Lumber invokes two canons of statutory construction.
First, “[a]s a principle of construction, it is well established that a specific
provision prevails over a general one relating to the same subject.” (Department
of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (1999)
71 Cal.App.4th 1518, 1524.) The second canon invoked by Pacific Lumber, the
doctrine of implied repeal, applies “ ‘[w]hen two or more statutes . . . concern the
same subject matter and are in irreconcilable conflict . . . .’ [Citation.] In such
cases, ‘the doctrine of implied repeal provides that the most recently enacted
statute expresses the will of the Legislature, and thus to the extent of the conflict
impliedly repeals the other enactment.’ [Citation.]” (Stop Youth Addiction, Inc. v.
Lucky Stores, Inc. (1998) 17 Cal.4th 553, 568.) Neither interpretive rule assists
Pacific Lumber here. The former doctrine only applies when an irreconcilable
conflict exists between the general and specific provisions (People v. Price (1991)
1 Cal.4th 324, 385; Medical Board v. Superior Court (2001) 88 Cal.App.4th 1001,
1013-1014); the latter, when the two acts are “ ‘ “ ‘irreconcilable, clearly
repugnant, and so inconsistent that the two cannot have concurrent operation. The
courts are bound, if possible, to maintain the integrity of both statutes if the two
may stand together.’ ” ’ [Citation.]” (Stop Youth Addiction, Inc. v. Lucky Stores,
Inc., supra, 17 Cal.4th at p. 569.) As previously discussed, there are no
26

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irreconcilable conflicts here, either within the Forest Practice Act as originally
enacted, or between the savings clause and later amendments to the law.11
All in all, Pacific Lumber makes several reasonable arguments suggesting
that a “one stop” process for THP approval might have some beneficial aspects, at
least from the timber harvester’s point of view. But there are also valid reasons to
allow for concurrent jurisdiction among various regulatory agencies. The Forest
Practice Act’s savings clause, read in context, expresses a clear preference for the
latter approach, and we are not free to substitute a contrary judgment for the
Legislature’s considered conclusions.
In a variation on the theme developed by the foregoing arguments, Pacific
Lumber asserts that, in this particular matter, the Water Boards were collaterally
estopped from imposing water quality monitoring requirements not included
within THP 520, because the Department of Forestry already had determined that
mandatory water quality monitoring was unnecessary.
“Collateral estoppel precludes relitigation of issues argued and decided in
prior proceedings.” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) The
doctrine applies “only if several threshold requirements are fulfilled. First, the
issue sought to be precluded from relitigation must be identical to that decided in a
former proceeding. Second, this issue must have been actually litigated in the
former proceeding. Third, it must have been necessarily decided in the former

11
Pacific Lumber also argues that the State Water Resources Control Board’s
actions raise “serious constitutional concerns” because they “would allow
timberland owners to be deprived of the only use they can make of their lands.”
This assertion references and relies upon Pacific Lumber’s argument that the
Water Boards’ actions resulted in an uncompensated taking of their property. (See
U.S. Const., 5th Amend.; Cal. Const., art. I, § 19.) As discussed post, Pacific
Lumber has forfeited this claim by failing to develop it before the trial court.
There are no “serious constitutional concerns” involved in this appeal.
27

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proceeding. Fourth, the decision in the former proceeding must be final and on the
merits. Finally, the party against whom preclusion is sought must be the same as,
or in privity with, the party to the former proceeding. [Citations.] The party
asserting collateral estoppel bears the burden of establishing these requirements.”
(Id. at p. 341.) “Even assuming all the threshold requirements are satisfied,
however, our analysis is not at an end. We have repeatedly looked to the public
policies underlying the doctrine before concluding that collateral estoppel should
be applied in a particular setting.” (Id. at pp. 342-343.)
We have recognized that “[c]ollateral estoppel may be applied to decisions
made by administrative agencies.” (People v. Sims (1982) 32 Cal.3d 468, 479.)
For an administrative decision to have collateral estoppel effect, it and its prior
proceedings must possess a judicial character. (Ibid.) Indicia of proceedings
undertaken in a judicial capacity include a hearing before an impartial decision
maker; testimony given under oath or affirmation; a party’s ability to subpoena,
call, examine, and cross-examine witnesses, to introduce documentary evidence,
and to make oral and written argument; the taking of a record of the proceeding;
and a written statement of reasons for the decision. (Id. at p. 480.)
Collateral estoppel does not apply here. As it pertains to the Water Boards,
the interagency THP review and approval process does not possess a judicial
character.12 The Court of Appeal accurately observed that the process lacks many

12
Pacific Lumber claims that opinions concluding that the Director’s decision
whether to approve a THP is subject to writ review under Code of Civil Procedure
section 1094.5 (see, e.g., Friends of the Old Trees v. Department of Forestry &
Fire Protection (1997) 52 Cal.App.4th 1383, 1392) demonstrate that this approval
decision is quasi-judicial for collateral estoppel purposes. The discussions Pacific
Lumber draws upon were concerned with whether section 1085 or section 1094.5
of the Code of Civil Procedure provided the appropriate avenue of writ review
following the approval of a THP. As the Court of Appeal below concluded, these

(footnote continued on next page)
28

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of the indicia of proceedings imbued with a judicial character, such as an
opportunity to call and cross-examine witnesses. (See People v. Sims, supra, 32
Cal.3d at p. 480.) More fundamentally, the North Coast Regional Water Quality
Control Board’s principal role in the review of THP 520 and amendment No. 5
was to provide input on significant issues relating to water quality. We are
unaware of any California decisions finding a basis for collateral estoppel in
similarly consultative participation in an essentially collaborative process, and
Pacific Lumber cites to none. The Department of Forestry’s decision to approve
amendment No. 5 therefore did not bar the Water Boards’ monitoring orders under
collateral estoppel principles.13

(footnote continued from previous page)

decisions provide little guidance in the instant context. As pertinent here, that an
administrative decision is deemed amenable to review under Code of Civil
Procedure section 1094.5, by itself, establishes only that the decision “involved the
application of ‘a rule . . . to a specific set of existing facts.’ ” (People v. Sims,
supra, 32 Cal.3d at p. 480; see also Patterson v. Central Coast Regional Com.
(1976) 58 Cal.App.3d 833, 840-841.) Though this is a factor to be considered in
determining whether an administrative decision was quasi-judicial for collateral
estoppel purposes (People v. Sims, supra, 32 Cal.3d at p. 480), it is not conclusive
(see Mahon v. Safeco Title Ins. Co. (1988) 199 Cal.App.3d 616, 622), and to the
extent it applies here it is outweighed by the countervailing considerations
discussed above.
13
Pacific Lumber asserts that in deciding whether the Water Boards are
collaterally estopped, we must take into account the procedures, including the
right to call witnesses, that are implicated when the State Water Resources Control
Board appeals the approval of a THP to the Board of Forestry. (See § 4582.9,
subd. (d) [discussing appeal procedures].) No such appeal was taken here. Pacific
Lumber refers to only one decision for the proposition that a reviewing court must
consider procedures available in appeal proceedings that were not utilized when
determining whether an administrative determination was quasi-judicial for
collateral estoppel purposes. This decision, Plaine v. McCabe (9th Cir. 1986) 797
F.2d 713, does not support Pacific Lumber’s position, for it addressed whether a
quasi-judicial administrative decision loses its collateral estoppel effect when a

(footnote continued on next page)
29

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Our decision not to apply the doctrine of collateral estoppel also rests on a
second, related ground. “[A] court may not give preclusive effect to the decision
in a prior proceeding if doing so is contrary to the intent of the legislative body
that established the proceeding in which res judicata or collateral estoppel is
urged.” (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 326.) Such is the case
here. Granting collateral estoppel effect to the Department of Forestry’s decisions,
to the extent it would allow the Department of Forestry’s conclusions to prevail
over the contrary views of other agencies acting within the scope of their
respective statutory authority, essentially would read section 4514, subdivision (c)
out of the Forest Practice Act. The THP process is designed to give the
Department of Forestry the benefit of the Regional Water Quality Control Boards’
expertise through nonadversarial consultation. Section 4514, subdivision (c)
establishes that participation in this process will not prevent the Water Boards
from taking additional measures deemed necessary to protect water quality.
Finding collateral estoppel applicable would undermine the intended nature of the
THP review process by compelling agencies such as the Water Boards to sharply
contest every disputed matter, or attempt to withdraw entirely from the process,
for fear of having subsequent enforcement efforts blocked by a Department of

(footnote continued from previous page)

party fails to seek judicial review — an issue that arises from almost the precise
opposite of the situation involved here. (Id. at p. 719, fn. 12.) In any event, even
if the procedures involved with a head of agency appeal had to be taken into
account, and assuming further that these additional procedures imbued the THP
approval proceedings and decision with a quasi-judicial import, as stated in the
text above, we would still decline to afford collateral estoppel effect to the
Department of Forestry’s decision because doing so would deviate from the aims
and terms of the Forest Practice Act.
30

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Forestry finding. These considerations provide an additional basis upon which to
conclude that collateral estoppel does not apply here.14
III. DISPOSITION
We affirm the judgment of the Court of Appeal.
MORENO,
J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BAMATTRE-MANOUKIAN,
J.∗

14
Because we reject Pacific Lumber’s collateral estoppel argument on the
above two grounds, we need not determine whether Pacific Lumber has satisfied
its burden of establishing the other elements of collateral estoppel. We also
decline to entertain Pacific Lumber’s takings claim. (See U.S. Const., 5th
Amend.; Cal. Const., art. I, § 19.) We agree with the Court of Appeal’s
conclusion that Pacific Lumber has forfeited this claim by failing to develop it
before the trial court. Competent evaluation of this argument would require
consideration of numerous contested facts, making it inappropriate for an appellate
court to take up the issue in the first instance. (See Tiernan v. Trustees of Cal.
State University & Colleges (1982) 33 Cal.3d 211, 221, fn. 15.)

∗
Associate Justice, Court of Appeal, Sixth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
31

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Pacific Lumber Company v. California State Water Resources Control Board
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 116 Cal.App.4th 1232
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S124464
Date Filed: January 30, 2006
__________________________________________________________________________________

Court:

Superior
County: Humboldt
Judge: J. Michael Brown

__________________________________________________________________________________

Attorneys for Appellant:

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Richard M. Frank and
Mary E. Hackenbracht, Assistant Attorneys General, and Nicholas Stern, Deputy Attorney General, for
Defendant and Appellant.

Law Offices of Sharon E. Duggan and Sharon E. Duggan for Environmental Protection Information Center
as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Stoel Rives, Morrison & Foerster, Edgar B. Washburn, Christopher J. Carr, William M. Sloan; Carter,
Behnke, Oglesby & Bacik, Carter, Oglesby, Momsen & Bacik, John A. Behnke and Frank Shaw Bacik for
Plaintiffs and Respondents.

Neil E. Fischer; Barnum & Herman, Thomas M. Herman and William F. Barnum for California Forestry
Association as Amicus Curiae on behalf of Plaintiffs and Respondents.

32

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Nicholas Stern
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 95814
(916) 324-3840

Edgar B. Washburn
Morrison & Foerster
425 Market Street
San Francisco, CA 94105
(415) 268-7000

33

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Opinion Information

Date:	Docket Number:
Mon, 01/30/2006	S124464

Disposition
Jan 30 2006	Opinion: Affirmed

Dockets
Apr 27 2004	Petition for review filed   by counsel for resps
Apr 27 2004	Request for judicial notice received (pre-grant)   from resps
Apr 30 2004	Record requested
May 5 2004	Received Court of Appeal record   file jacket/briefs/accordian file/three boxes
May 14 2004	Answer to petition for review filed   Appellant (Calif. State Water Resourses).
May 20 2004	Received:   Letter from the California Forestry Association in support of the petition for review/ request for depublication.
May 26 2004	Received:   Petitioners' untimely reply to answer.
May 26 2004	Received:   Original proof of service from the California Forestry Association.
May 27 2004	Reply to answer to petition filed   By petitioners'. Filed with permission.
Jun 16 2004	Petition for review granted (civil case)   Request for Judicial Notice granted. Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Jun 16 2004	Letter sent to:   Counsel regarding Certification of Interested Entities or Persons.
Jun 28 2004	Certification of interested entities or persons filed   Attorney Edgar B. Washburn for Respondent Pacific Lumber.
Jul 6 2004	Request for extension of time filed   respondents The Pacific Lumber Company et al., requesting a 45-day extension to and including August 30, 2004 to file respondents' opening brief on the merits.
Jul 8 2004	Request for judicial notice filed (granted case)   In Sacramento by counsel for appellant {California State Water Resources Control Board}.
Jul 8 2004	Extension of time granted   To August 30, 2004 to file Respondents' Opening Brief on the Merits. No further extensions are contemplated.
Aug 30 2004	Opening brief on the merits filed   By Respondents "The Pacific Lumber Company et al.,}.
Sep 8 2004	Request for extension of time filed   counsel for appellant California State Water Resources Control Board requesting a 47-day extension to and including November 15, 2004 to file appellant's answer brief on the merits.
Sep 13 2004	Extension of time granted   To November 15, 2004 to file Appellant's Answer Brief on the Merits.
Nov 12 2004	Request for judicial notice filed (granted case)   By counsel for appellant {California State Water Resources Control Board}.
Nov 15 2004	Answer brief on the merits filed   In Sacramento by counsel for appellant {California State Water Resources Control Board}.
Dec 3 2004	Reply brief filed (case fully briefed)   By Respondents {The Pacific Lumber Company et al.,}.
Dec 30 2004	Received application to file Amicus Curiae Brief   Environmental Protection Information Center et al., in support of appellant California State Water ResourcesControl Board.
Dec 30 2004	Received application to file Amicus Curiae Brief   California Forestry Association in support of respondent Pacific Lumber Company.
Jan 5 2005	Permission to file amicus curiae brief granted   The California Forestry Association in support of Respondents.
Jan 5 2005	Amicus curiae brief filed   The California Forestry Association in support of Respondents. Answer is due within twenty days.
Jan 6 2005	Permission to file amicus curiae brief granted   Environmental Protection Information Center et al., in support of appellant.
Jan 6 2005	Amicus curiae brief filed   Environmental Protection Information Center et al., in support of appellant. Answer is due within twenty days.
Jan 25 2005	Response to amicus curiae brief filed   Appellant ( Calif. State. Water Resources ) to AC brief of Calif.. Forestry Assoc.
Jan 26 2005	Response to amicus curiae brief filed   Respondents ( Pacific Lumber, et al.) to AC brief of Environmental Protection Info. Center).
May 31 2005	Change of contact information filed for:   Edgar B. Washburn, counsel for respondent {The Pacific Lumber Company & Scotia Pacific Company LLC.}.
Oct 12 2005	Case ordered on calendar   11-09-05, 9:00 a.m., in Sacramento
Oct 17 2005	Filed:   Letter from Edgar B. Washburn, counsel for Pacific Lumber Company & Scotia Pacific Company, stipulating to Justice Kennard's participation in case with understanding she will review argument tapes.
Oct 17 2005	Filed:   Letter from Nichalas Stern, Deputy Attorney General, on behalf of State Water Resources Control Board, stipulating to Justice Kennard's participation in the case.
Oct 26 2005	Request for judicial notice granted   Appellant's requests for judicial notice, filed July 8, 2004 and November 12, 2004, are granted.
Oct 28 2005	Filed:   Respondents' letter dated October 28, 2005 re: Additional Authority. (Santa Clara Valley Tranp. Authority v. Public Utilities Com. 124 Cal.App. 4th 346 (Nov. 22, 2004).
Nov 4 2005	Request for judicial notice filed (granted case)   By counsel for respondents {The Pacific Lumber Company et al.,}.
Nov 9 2005	Cause argued and submitted
Jan 30 2006	Opinion filed: Judgment affirmed in full   Opinion by Moreno, J. Joined by: George, C.J. Kennard, Baxter, Werdegar, Chin J.J. Bamattre-Manoukian, J. Administrative Presiding Justice of the Court of Appeal, Sixth Appellate District.
Mar 3 2006	Remittitur issued (civil case)
Mar 7 2006	Received:   Receipt for remittitur from First Appellate District, Division Five, signed for by Mary P. Quilez, Deputy

Briefs
Aug 30 2004	Opening brief on the merits filed
Nov 15 2004	Answer brief on the merits filed
Dec 3 2004	Reply brief filed (case fully briefed)
Jan 5 2005	Amicus curiae brief filed
Jan 6 2005	Amicus curiae brief filed
Jan 25 2005	Response to amicus curiae brief filed
Jan 26 2005	Response to amicus curiae brief filed

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