Citations
- 58 Cal. App. 4th 556
Full opinion text
Opinion
LAMBDEN, J.
J.—Karl Schoen, Judith Vidaver, Roanne Withers, and Ron Guenther (collectively, Schoen), residents of Mendocino County, appeal from the denial of their writ of mandate. Schoen claims the California Department of Forestry and Fire Protection (CDF) abused its discretion when it approved analyses of cumulative impacts as “minor deviations” to two timber harvest plans (THP’s). By classifying them as minor deviations, the documents were not subject to public review. Real party in interest, Louisiana-Pacific Corporation (Louisiana-Pacific), had submitted this information in light of the subsequently enacted California Code of Regulations, title 14, section 912.9 (rule 912.9).
The question before us is whether CDF abused its discretion in approving Louisiana-Pacific’s analysis of cumulative impacts as minor deviations. We conclude the new regulations imposed in 1991 substantially changed the requirements regarding cumulative impacts evaluations. Once CDF requested an update of the cumulative impacts evaluation in light of the 1991 changes, the supplemental information provided could not be characterized as a “minor deviation.” CDF therefore abused its discretion in classifying this amendment as minor.
Background
In April 1989, CDF approved THP 1-89-100 MEN (THP 100) and THP 1-89-145 MEN (THP 145) submitted by Louisiana-Pacific. The two plan sites are adjacent to each other on Louisiana-Pacific ’ s timber production zone property in the Albion River drainage. As originally approved, the plans allowed the harvest of approximately 280 acres of second growth mixed conifer forest by a combination of clearcutting and shelterwood silvicultural methods.
With regard to a cumulative impacts analysis, the THP’s approved in 1989 contained the identical discussion under the heading “Future,” which was as follows: “One additional THP is presently being considered in the immediate area. A tentative map of this future THP is included for your review. Modem environmentally sensitive harvesting methods using cable logging techniques, where appropriate, will allow for timber to be harvested in this area without causing a significant environmental impact when considered either separately or in conjunction with other events in the area. Cable yarding on the steeper slopes will minimize the potential for sediment to enter the stream system. Other potential adverse cumulative effects associated with the proposed THP have been considered and no problems have been identified.
“I am aware of no other projects which are being planned at this time in this area. Land adjacent to the plan area is predominately zoned TPZ [timber production zone]. It is probable that future activities will be consistent with this land use classification and that future harvesting in this area will conform to the forest practice act and other regulations which may exist at the time of future harvest. Review and observation of the Albion river shows that no significant cumulative adverse impact can be expected as a result of these harvesting operations or from the combined effect of these operations and other land use activities.”
In addition, the approved plans contained a 15-item checklist completed by CDF, which requested a response to whether significant adverse cumulative impacts would be reasonably expected to occur in (1) surface soil erosion from harvest or roads, (2) mass soil movement from harvest or roads, (3) soil compaction from harvest, (4) chemical or biological properties of soil, (5) water quality from harvest or roads, (6) water temperature, or (7) suspended sediment, or to (8) fish or wildlife or their habitat, (9) recreation, (10) aesthetics, (11) rare or threatened or endangered species of plants or animals or to their habitats, (12) archaeological resources, (13) fire hazards (14) vehicular traffic, or (15) any of the above items when considered together. For all the items except fire hazards, the checklist indicated CDF did not expect any significant adverse cumulative impacts. With regard to fire hazards, it stated the following: “There will be a short term increase at least partially off set by the improved access and the availability of manpower and equipment during the operation. This plan is not in a High fire danger start area. Slash hould [sic] decay rapidly in this moist coastal climate.”
A lawsuit challenging the approval of THP 100 and THP 145 ensued, which was ultimately dismissed for failure to exhaust administrative remedies. As a result of the litigation, timber operations were stayed until February 1992.
In 1991, the Board of CDF (board) enacted new regulations requiring THP’s to contain (1) a written analysis of cumulative environmental impacts (rule 912.9), (2) information concerning the spotted owl (Cal. Code Regs., tit. 14, §§ 919.9, 919.10), and (3) data on expanded watercourse and lake protections (Cal. Code Regs., tit. 14, §§ 916.1-916.10).
The new regulations required a cumulative impact assessment of the following resource subjects: watershed, soil productivity, biological, recreation, visual, and traffic. (Rule 912.9.) Under the new regulations, THP’s had to include data on the pending project and also past, present, and reasonably foreseeable future projects. (Ibid.) Rule 912.9 also required a listing and description of the individuals, organization, and records consulted when assessing the cumulative impacts for each resource subject.
On April 22, 1992, about two months after lifting the stay on the timber operations, CDF formally required Louisiana-Pacific to amend THP 100 and THP 145 to reflect the changes Louisiana-Pacific had made for the protection of water courses and the spotted owl. CDF based its request on authority from Public Resources Code section 4583 and a First District opinion in Division Five, Public Resources Protection Assn. v. Department of Forestry & Fire Protection, A044789 (which was reversed in part by the Supreme Court on January 31, 1994, in Public Resources Protection Assn. v. Department of Forestry & Fire Protection (1994) 7 Cal.4th 111 [27 Cal.Rptr.2d 11, 865 P.2d 728] (PuRePac)).
In this same letter, CDF also made the following requests: “I am also requesting, at this time, that you evaluate cumulative impacts on each THP according to Board of Forestry Technical Rule Addendum No. 2, Cumulative Impacts Assessment, and amend the plans to reflect the results of your evaluation. HQ The Department will consider your amendments to the plan under 14 CCR 1036. [U You may not operate on these plans until the requested amendments have been acted on by this Department.”
Louisiana-Pacific refused to comply and after CDF issued a stop order, Louisiana-Pacific challenged CDF’s action in court. In Louisiana-Pacific Corp. v. Department of Forestry & Fire Protection (Cal.App.), we found Public Resources Code section 4583 provided CDF with the discretion to require amendments to make the THP’s conform to subsequently implemented regulations. The Supreme Court granted review of this case, but then dismissed review on August 18, 1994, after deciding PuRePac, supra, 7 Cal.4th 111, 120. The court in PuRePac held Public Resources Code section 4853 provided CDF with authority to require compliance with subsequent regulations. The THP in PuRePac had been approved prior to the enactment of regulations concerning the spotted owl (Cal. Code Regs., tit. 14, §§ 919.9, 919.10); the timber operator therefore had to comply with the later regulations by resubmitting its plan for approval, filing an amendment to the THP, or notifying CDF of “ ‘minor deviations’ ” immediately in writing. (PuRePac, supra, 7 Cal.4th at p. 123.)
In a letter, dated September 30, 1994, CDF again requested amendments to THP 100 and THP 145. The letter stated in part: “The amendments should reflect any changes made or that will be made in actual operations not now reflected in the plans due to the rule changes for the following subjects:
“Watercourse and Lake protection (effective 10-23-91)
“Spotted Owl Consultation procedures (effective 5-28-91)
“Silvicultural Methods (effective 5-16-94)
“Site Preparation (effective 2-1-90)
“Domestic Water Supply Protection (effective 3-1-94)
“Hazard Reduction (effective 8-5-91)
“Wildlife Protection (effective 9-11-91)
“Marbled Murrelet Protection CCR 919.11 (effective 6-18-92)
“Late Successional Forest Stands (effective 3-1-94)
“Logging Roads and Landings (effective 2-1-90 & 2-13-91)
“Archeology Resource protection (effective 12-27-91)
“Cumulative effects evaluation (effective 8-26-91)
“I suggest that you review each section under each subject. Check the history of the sections. If the rule was adopted after your plan was approved, evaluate whether or not your plan needs to be amended to bring it into conformance. Normally, if the rule pertains to planning only, no action on your part is necessary. If the rule pertains to the actual timber operations, then you should amend the plan to bring it into conformance or use the ‘substantial liabilities incurred’ clause to request a waiver.
“I realize that the operations conducted last year have been in full compliance with the new regulations, but the plan needs to reflect actual ground operations. If they are different, the plans must be amended. Any amendments to the plans will be treated as outlined in 14 CCR 1036 and 1040.
“The Board of Forestry’s rules on evaluating cumulative effects also became operative during the time these two plans were in court. While CDF did not require any landowner to amend existing plans when these new rules became effective, this is a major issue with the Friends of the Enchanted Forest. [^Q I suggest that you include an update of your information that was submitted with THP 1-91-080. As you have stated, an exhaustive cumulative effects analysis was done for the Albion River drainage during the review of 1-91-080-MEN. This analysis was done with the assumption that plans 100 and 145 were logged. A review of plan 080’s file confirms your statement. Our conclusion on plan 080 was that there were no adverse cumulative effects occurring or were likely to occur if plan 080 were operated.
“Logically, we would come to the same conclusion on plans 100 and 145 since they were included in this later analysis. This conclusion would only hold if plans 100 and 145 were not changed and that nothing further had happened in the Albion River drainage after plan 080 was approved to change the analysis. You could bring the 080 cumulative effects analysis up-to-date. Included in this updated analysis would be any changes in the operations on plans 100 and 145 and any plans or projects that have been revealed within the assessment area since the approval of plan 080.
“If you have a better idea of what future plans or projects will be, you should include this within your analysis. We will include by reference the cumulative effects analysis done on plan 080.”
On November 21, 1994, Louisiana-Pacific submitted as “minor amendments” supplemental information on watercourse protection, spotted owl consultation procedures, silvicultural methods, site preparation, domestic water supply protection, hazard reduction, wildlife protection, marbled murrelet protection, late successional forest stands, logging roads and landings, archeology resource protection, and a cumulative effects evaluation.
CDF approved the submissions as minor deviations to both THP’s on December 1, 1994. CDF wrote, in pertinent part: “Your Amendment... to the above-referenced Timber Harvesting Plan has been accepted as being in conformance with the Rules and Regulations of the Board of Forestry and is now considered part of the plan. The determination to accept your request to treat this as a minor deviation has been made based on the information presented in your amendment and a review of the Timber Harvesting Plan file. The amendment establishes a reduction in overall environmental disturbance and CDF’s inspection reports confirm compliance with currently applicable watercourse rules. [<][]... Your proposal to remove winter period operations makes a significant contribution in reducing the potential for adverse environmental impacts. In addition, inspection reports for this THP contain observations which confirm that watercourse protection zones have been established in conformance with currently applicable Forest Practice Rules.”
In a first amended petition for writ of mandate filed on February 2, 1995, Schoen claimed the acceptance of the submissions without public review violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and the Z’Berg-Nejedly Forest Practice Act of 1973 (FPA) (Pub. Resources Code, § 4511 et seq.), and “deprived the public of its statutory and constitutional right to provide meaningful comments about environmental issues relating to cumulative impacts” of THP 100 and THP 145.
The trial court denied the petition, ruling CDF did not abuse its discretion. The court found: “Essentially, CDF departed from the position which it took in 1992, and did not require [Louisiana-Pacific] to prepare an analysis pursuant to Rule 912.9. It did not abuse its discretion in doing so. Only 13 acres in THP 100 and 89 acres in THP 145 remained to be harvested. The minor deviations proposed by [Louisiana-Pacific] eliminated winter operations and rendered the harvesting less intrusive than allowed under the original plans approved in 1989.
“I conclude that CDF had no mandatory duty to set aside its approval of THPs 100 and 145, to require submission of the proposed minor deviations for further public review or comment, or to demand full compliance with Rule 912.9. See, PuRePac v. CDF (1994) 7 Cal.4th 111, at 122 [27 Cal.Rptr.2d 11, 865 P.2d 728]. Under the unique and procedurally convoluted circumstances of this case, I cannot say that CDF abused its discretion in dispensing with further public comment and review, and in giving due weight to the need for finality of these THPs.”
Judgment was entered on May 9, 1996, and Schoen filed a timely notice of appeal on June 13, 1996.
Discussion
I. Standard of Review
Schoen contends CDF had a duty to permit the public to review the cumulative impacts analysis for THP 100 and THP 145, and its failure to do so constituted an 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.] 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, however. [Citation.]” (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236 [32 Cal.Rptr.2d 19, 876 P.2d 505] (Sierra Club).)
Both CDF and Louisiana-Pacific maintain the standard of review is whether substantial evidence supported its decision. (See Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 407 [253 Cal.Rptr. 426, 764 P.2d 278] [“The question, however, is not whether there is substantial evidence to support the [petitioner’s] position; the question is only whether there is substantial evidence to support the [agency’s] conclusion.”].) Substantial evidence, they claim, clearly supported CDF’s determination.
Since we find the agency did not act in accordance with the FPA and CEQA, and CDF’s actions were prejudicial, we do not address the issue of substantial evidence.
II. Statutory Background
When arguing CDF abused its discretion, Schoen primarily relies on provisions in CEQA (Pub. Resources Code, § 21000 et seq.) and ignores provisions in the FPA stressed by CDF and Louisiana-Pacific. (All further unspecified code sections refer to the Public Resources Code.) CDF and Louisiana-Pacific dispute the relevance of the CEQA provisions stressed by Schoen, and focus on the FPA (§4511 et seq.) and administrative regulations (Forest Practice Rules; Cal. Code Regs., tit. 14 § 895 et seq.). Thus, we find it necessary at the outset to summarize the relevant FPA and Forest Practice Rules and their relationship with CEQA.
California regulates the harvesting of timber on private lands through the FPA (§4511 et seq.) and Forest Practice Rules (Cal. Code Regs., tit. 14, § 895 et seq.). The legislative intent in enacting the FPA is set forth in section 4513: “It is the intent of the Legislature 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. [