|
|
 |
ENVIRONMENTAL
PROTECTION INFORMATION CENTER et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT
OF FORESTRY [And three other
cases.*] COURT OF APPEAL, FIRST DISTRICT,
DIVISION FIVE A104828 NOTE: CERTIFIED FOR PARTIAL PUBLICATION* COUNSEL Counsel for
plaintiffs and respondents Environmental Protection Information Center et al.: Sharon E. Duggan Law Offices of Sharon E.
Duggan Brian Gaffney Law Offices of Brian Gaffney Counsel for
plaintiffs and respondents United Steelworkers of America et al.: Paul
Whitehead Fred H. Altshuler, Jonathan Weissglass, Rebekah B. Evenson, Peder J.
Thoreen, Altshuler, Berzon, Nussbaum, Rubin & Demain Counsel for
defendants and appellants California Department of Forestry and Fire Protection
et al.: Bill Lockyer, Attorney General Tom Greene, Chief Assistant Attorney General Mary E. Hackenbracht, Senior
Assistant Attorney General John Davidson, Supervising Deputy Attorney General William
N. Jenkins, Deputy Attorney General Counsel for
real parties in interest and appellants Pacific Lumber Company et al.: Frank Shaw Bacik Carter, Behnke, Oglesby
& Bacik, Edgar B. Washburn, Andrew F. Brimmer, Stoel Rives LLP OPINION Jones, P.J. In this appeal from an
administrative mandamus proceeding, we review environmental decisions
concerning the Headwaters Forest Project made by two state agencies--the
California Department of Forestry and Fire Protection and the California
Department of Fish and Game--for land owned by Pacific Lumber Company, Scotia
Pacific Company LLC, and Salmon Creek Corporation (collectively, PALCO). The trial court found that the state agencies
failed to proceed in the manner required by law, and the court granted a
peremptory writ commanding the state agencies to set aside their administrative
determinations. We reverse the judgment. FACTUAL PALCO owns approximately 211,000
acres of timberlands in In the 1990s, as a result of federal
and state litigation, PALCO was enjoined from harvesting a particular stand of
old-growth timber that served as the habitat for the marbled murrelet, an
endangered bird. PALCO, 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, PALCO entered into the Headwaters Agreement of 1996 with the
State of By February 1998, the permit
approvals had not yet occurred, and the parties entered into a Pre-Permit
Application Agreement in Principle that outlined the actions to be taken with
respect to the federally-mandated Habitat Conservation Plan and the state
Sustained Yield Plan. The Pre-Permit
Application Agreement in Principle called for federal environmental review
under the National Environmental Policy Act to be combined with state
environmental review under the California Environmental Quality Act. On Meanwhile, federal and state funding
and approval were required in order to implement the Headwaters Agreement. In October 1997, Congress authorized an
appropriation of $250 million to purchase the The draft EIS/EIR, issued In January 1999, after the close of
the public comment period, the final EIS/EIR was released. Because of the coordinated review, the final
EIS/EIR contained both the Habitat Conservation Plan and the Sustained Yield
Plan. The final Habitat Conservation
Plan reflected the changes that had been mandated by AB 1986 as well as changes
made in response to public comments The
federal wildlife agencies approved the Habitat Conservation Plan and issued a
federal Incidental Take Permit, but those federal approvals are not challenged
in the litigation here. On Thirty days later, on The trial court proceedings involved
an extensive preliminary dispute over the contents of the administrative
record. Despite the fact that the review
process had been consolidated, the trial court ordered the state agencies to
deliver separate administrative records for each of the challenged
administrative decisions. Eventually,
the state agencies’ Third Amended Certifications of the Administrative Record
were accepted by the trial court as containing all the documents that had been
relied upon by the agencies in making their administrative decisions. The court then held several days of evidentiary
hearings on whether certain materials had been excluded from the administrative
record—i.e., whether documents exist that should have been considered by the
agencies. The environmental plaintiffs
and the Steelworkers were granted leave to amend their complaint to allege a
failure by the state agencies to provide an accurate administrative
record. As to the merits of environmental
plaintiffs’ challenges to the administrative decisions, the trial court heard
lengthy argument and issued a statement of decision on The trial court then held a further
hearing to decide whether PALCO’s timber operations should be enjoined. The court concluded that timber operations
being conducted pursuant to timber harvest plans approved prior to the court’s THE ADMINISTRATIVE DECISIONS The approval of the Sustained Yield
Plan by the Department of Forestry and the issuance of the Incidental Take
Permit by the Department of Fish and Game were adjudicative decisions subject
to review by administrative mandamus.
(Cal. Code Regs., tit. 14, §§ 783.5 [incidental take permit process],
1091.10 [sustained yield plan process]; Code Civ. Proc., § 1094.5; Pub.
Resources Code, § 4514.5.)[iii] The inquiry here is whether the agencies
prejudicially abused their discretion. A
prejudicial abuse of discretion is established if the agency failed to proceed
in a manner required by law, if the agency’s decision is not supported by its
findings, or if the findings are not supported by substantial evidence. (Code Civ. Proc., § 1094.5, subd.
(b).) When, as here, no fundamental vested
right is implicated, the trial court and the appellate court essentially
perform identical roles in examining the administrative record to determine
whether the agency complied with the required procedures and whether the
agency’s findings are supported by substantial evidence. We review the record de novo and are not
bound by the trial court’s conclusions.[iv] (Bixby
v. Pierno, supra, 4 Cal.3d at p. 149, fn. 22; San Franciscans Upholding the Downtown Plan v. City and County of San
Francisco (2002) 102 Cal.App.4th 656, 674; Sierra Club v. California Coastal Com. (1993) 19 Cal.App.4th 547,
557.) In the present case, the trial court
rejected the allegations in the environmental plaintiffs’ writ petition that
the administrative findings were unsupported by the evidence. The trial court found that the environmental
plaintiffs 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 the environmental plaintiffs waived or
abandoned their challenges to the factual bases for the administrative
decisions. The environmental plaintiffs
have not cross-appealed, nor do they dispute that the focus of our review is
whether the state agencies committed legal, not factual, 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. The
parties are in accord that we exercise de novo review of that issue. In our review of the administrative
decisions we give substantial deference to the agencies. The administrative determinations are
presumed correct, and we must resolve all doubts in favor of the administrative
determination. Because the role of the
appellate court is the same as the role of the trial court, the burden on
appeal to establish error is the same as the burden in the trial court, i.e.,
on the parties who challenge the administrative decisions. (San
Franciscans Upholding the Downtown Plan v. City and County of San Francisco,
supra, 102 Cal.App.4th at p. 674;
Desmond v. County of Contra Costa (1993) 21 Cal.App.4th 330, 335-336.) Even if error is shown, an
administrative decision will be set aside only if the manner in which the
agency failed to follow the law is shown to be prejudicial or is presumed
prejudicial. (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236; Schoen v. Department of Forestry & Fire
Protection (1997) 58 Cal.App.4th 556, 565.)
Prejudice is presumed when an absence of information frustrated the
public’s right to comment or hindered the agency’s decision-making. (7 Cal.4th at pp. 1236-1237; 55 Cal.App.4th
at pp. 575-576.) II. Habitat
Conservation Plan The central document for the
administrative approvals here is the Habitat Conservation Plan, which was a
prerequisite to the issuance of the federal incidental take permit under the
federal Endangered Species Act. (16
U.S.C., § 1539(a)(2)(A).) Although
the federal incidental take permit is not challenged in this appeal, the
Habitat Conservation Plan is intertwined with the state administrative
approvals in the following ways: (1) the
Habitat Conservation Plan was combined with the Sustained Yield Plan for
environmental review; (2) the Habitat Conservation Plan was incorporated into
the state Incidental Take Permit; (3) the Habitat Conservation Plan was
conditioned upon the Streambed Alteration Agreement; and (4) on PALCO’s Habitat Conservation Plan is
a long-term plan covering the 50-year duration of the federal Incidental Take
Permit, designed to protect identified wildlife and plant species from
anticipated harm resulting from PALCO’s timber operations. It sets up operating programs to conserve and
enhance the habitats of identified species, focusing on the marbled murrelet
and the northern spotted owl with the notion that the protective measures for
those two birds will benefit a broad range of species. The key feature of the Habitat Conservation
Plan is the creation of Marbled Murrelet Conservation Areas in which no
harvesting will be allowed for the 50-year duration of the incidental take
permit. One particular aspect of the Habitat
Conservation Plan deserves mention, as the point carries over into several
issues in this appeal. Under AB 1986,
the Legislature required as a condition of the funding for the The Habitat Conservation Plan also
requires PALCO to submit a “timber harvest plan” before any particular forest
stand can be harvested. A timber harvest
plan is a statutory requisite for timber harvesting operations. (Pub. Resources Code, § 4581 et
seq.) Among other things, a timber
harvest plan is an environmental review document equivalent to an EIR. (Pub. Resources Code, § 21080.5, Sierra Club v. State Bd. Of Forestry, supra,
7 Cal.4th at p. 1230; County of Santa
Cruz v. State Bd. of Forestry (1998) 64 Cal.App.4th 826, 830.) The Habitat Conservation Plan requires that
site-specific prescriptions developed by the wildlife agencies upon completion
of the watershed analysis be included in and implemented by future timber
harvest plans. The deferral of specific
prescriptions until later timber harvest plans rendered the environmental
review process here a “tiered” review, as the environmental plaintiffs
acknowledge. “Tiering” is a concept that
appears in CEQA meaning an analysis of general matters and environmental
effects in a broader EIR (sometimes called a program EIR) covering a policy or
plan followed by a later, narrower or site-specific EIR that incorporates by
reference the discussion in the broader EIR and concentrates on issues specific
to the later project. (Pub. Resources
Code, § 21068.5; Guidelines, §§ 15152(a), 15385; Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134,
1143; Koster v. County of San Joaquin (1996)
47 Cal.App.4th 29, 36-38.) Here, the
broad environmental issues were dealt with in the EIS/EIR for the Habitat
Conservation Plan and Sustained Yield Plan in expectation that more detailed
examination of specific watershed sites will be forthcoming in the timber
harvest plans. As the Implementation
Agreement provides, the Habitat Conservation Plan and the Sustained Yield Plan
serve as “program level” documents for tiering with later individual timber
harvest plans. III.
Sustained Yield Plan Under the
Z’berg-Nejedly A sustained
yield plan is not a substitute for a timber harvest plan. (FP Rules, § 1091.2.) A timber harvest plan is statutorily required
before timber operations are conducted on a specific piece of property and is
effective for three years. (Pub.
Resources Code, § 4581 et seq.) In
contrast, a sustained yield plan is a long-range plan that may be submitted at
the option of the landowner to address environmental issues over a large
landscape. (FP Rules,
§ 1091.1(b).) A sustained yield
plan examines a planning horizon of 100 years (FP Rules, § 1091.3), though it
is effective for 10-year increments and must be updated and reapproved every 10
years. (Pub. Resources Code,
§ 4551.3, subd. (a); FP Rules, § 1091.45(b).) Few sustained yield plans have ever been
approved , and we are not aware of any appellate case examining one. The Forest
Practice Rules specify the contents of a sustained yield plan (FP Rules,
§§ 1091.4-1091.8) and set up a three-step review process by the Director
of the Department of Forestry and Fire Protection (FP Rules, § 1091.10). The first step calls for the Director to
determine whether the sustained yield plan is in proper order and acceptable
for filing. Once the sustained yield
plan is accepted for filing, the second step requires the Director to determine
whether the sustained yield plan “contains sufficient and complete information
to permit further review by the public and other agencies.” (FP Rules, § 1091.10(a).) After this so-called “sufficiency review,”
the Director schedules a 90-day period for public and agency comment, including
a public hearing. At the end of the
comment period, the Director undertakes the third review to determine whether
the sustained yield plan should be approved as being “in conformance with the
[Forest Practice] rules.” (FP Rules,
§ 1091.10(e).)[viii] In the present case, the prescribed
procedure was followed. Although a
sustained yield plan is ordinarily optional, the Headwaters Agreement required
PALCO to submit one. PALCO submitted a
draft Sustained Yield Plan to the Department of Forestry in December 1996, and
the document was accepted for filing.
Over the ensuing months, the Department of Forestry solicited comments
from other agencies on that early draft, advised PALCO of various deficiencies,
and accepted additional information from PALCO.[ix] In June 1998, PALCO incorporated changes and
additions into another draft, and in July 1998 the Department of Forestry
released a revised version, designated the “Public Review Draft,” for public
review and comment. The Public Review Draft was a
combined Habitat Conservation Plan and Sustained Yield Plan, as was the earlier
Agency Review Draft. (See fn. 9, ante.)
Public review of the Sustained Yield Plan was the public review on the
EIS/EIR. The EIS/EIR explains that “SYPS
[Sustained Yield Plans] are normally processed as stand-alone planning
documents. In this case, PALCO and CDF
[the California Department of Forestry] agreed to add the EIR process to
provide greater efficiencies, given that the federal agencies would be
preparing an EIS for the During the public comment period,
the California Legislature passed AB 1986, which required certain no-harvest
buffer zones around the streambeds until the watershed analysis was
completed. (See fn. 5, ante.)
Because the July 1998 Public Review Draft did not reflect the buffer
zones, PALCO submitted revised projections on timber inventory, growth, and
harvest for the Sustained Yield Plan; they were added to the final EIS/EIR as
Appendix Q. Furthermore, because the
outcome of the watershed analysis was unknown, the Department of Forestry asked
PALCO to make additional revisions in its timber projections. In February 1999, PALCO submitted several
alternative updated projections, each alternative based on differing
assumptions concerning the restrictions that might be imposed after completion of
the watershed analysis. On A.
Finding of Sufficiency The environmental plaintiffs
complain that the Director of the Department of Forestry failed to follow the
procedures required by law in that he failed to make an express finding at the
second step of the review process that the Public Review Draft of the Sustained
Yield Plan was “sufficient” to proceed for further review. The regulations impose no requirement of an
express finding. The regulations require
the Director to make a determination of sufficiency and to notify the submitter
in writing of any deficiencies. (FP
Rules, § 1091.10(a).) “When the
submitter provides adequate written response to each of the deficiencies, the
SYP will be scheduled for further review.
The Director shall deny the SYP if the information is not provided or is
insufficient. [¶] Once the SYP is ready for public and agency review the
Director shall schedule a date for the start of a 90 day or longer period
. . . .” (FP Rules,
§ 1091.10(a).) Here, the Director communicated with
PALCO about deficiencies in the earlier drafts of the Sustained Yield Plan,
received written responses, and ultimately scheduled a period for public and
agency comment on the revised Public Review Draft. By scheduling a period for review and
comment, the Director impliedly found the Public Review Draft sufficient to go
forward to the next step. The absence of
an express written finding did not violate the Forest Practice Rules. The environmental plaintiffs’ real
complaint is that the Public Review Draft of the Sustained Yield Plan actually
was not sufficient when it was released for public comment and that the
Director’s implied finding of “sufficiency” was legally incorrect.[xi] Yet, the basis for environmental plaintiffs’
argument is that the contents of the Public Review Draft did not satisfy the
requirements of the Forest Practice Rules.
In other words, environmental plaintiffs have erroneously equated the
standard for determining “sufficiency” at the second step of review with the
standard for approval of the sustained yield plan at the third step of the
review process, asserting that at both steps the sustained yield plan is
measured for conformity with the Forest Practice Rules. (FP Rules, § 1091.10(a), (e).) The standards are not the same for
the separate steps of review. In this
respect, the review process for a sustained yield plan differs from the review
process for a timber harvest plan. For a
timber harvest plan, a multi-agency review team helps to evaluate whether the
plan conforms to the Forest Practice Rules before
the plan is released for public comment.
(FP Rules, § 1037.5.) In
contrast, for a sustained yield plan, the threshold test for release for public
comment is whether the plan is “sufficient and complete . . . to permit further
review . . . .” (FP Rules, §
1091.10(a).) The determination of
conformance with the Forest Practice rules is made after the plan has been subject to public review and comment. (FP Rules, §1091.10(e).) The environmental plaintiffs have
made no showing that the public and agency review process was hindered in any
way by the asserted deficiencies in the Public Review Draft. Indeed, the public review of the Sustained
Yield Plan was also the public review of the draft EIS/EIR for the Habitat
Conservation Plan and Sustained Yield Plan.
The EIS/EIR provides a comprehensive description and analysis of the
Sustained Yield Plan. The draft EIS/EIR
explains that the Department of Forestry would be using the EIS/EIR to evaluate
the Sustained Yield Plan and to determine whether the Sustained Yield Plan was
in conformance with the Forest Practice Rules.
In the absence of any showing that the public review was hampered,
environmental plaintiffs have not demonstrated that the Public Review Draft was
insufficient or that the Director of the Department of Forestry failed to
follow the requisite procedures at the second step of the review process. (We will discuss below the separate question
whether the contents of the Sustained Yield Plan conformed to the Forest
Practice Rules so as to support the Director’s approval of the Sustained Yield
Plan at the end of the third step. We
will also discuss in part B.
Contents of the Sustained Yield Plan The environmental plaintiffs and the
Steelworkers make several challenges to the adequacy of the information
contained in the Sustained Yield Plan.
They argue that the Sustained Yield Plan was not in conformance with the
Forest Practice Rules and, consequently, the Director erred as a matter of law
in finding otherwise at the third and final step of the review process.[xii] It bears emphasizing here that when an
environmental assessment involves complex scientific questions requiring a high
level of technical expertise, we leave the conclusions to the informed
discretion of the agency. (Ebbetts Pass Forest Watch v. Department of
Forestry & Fire Protection, supra, 123 Cal.App.4th at pp. 1351-1352.) (1)
Sustained Timber Production Assessment A principal goal of the Forest
Practice Rules is to assure that timber harvesting continues in
perpetuity. This goal is expressed as
the achievement of “maximum sustained production” of high quality timber
products while giving consideration to economic and environmental issues. (FP Rules, § 1091.1(b).) A sustained yield plan must “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.” (FP Rules, § 1091.45(a);
see also FP Rules, § 913.11(b).)
Several components must be included in the assessment of sustained timber
production, including a description of the existing forest stand types, a
projection of forest growth and harvest, a discussion of the accuracy of the
inventory data and methods to improve accuracy over time, and a discussion of
the methods used to project inventory, growth, and harvest. (FP Rules, § 1091.45(c).) Also required in the timber assessment is
“[a]n estimate of the long-term sustained yield . . . stated in terms
of board feet per year . . . and a description of how the estimate
was reached.” (FP Rules,
§ 1091.45(c)(2).)[xiii] The environmental plaintiffs do not
dispute that the requisite components were included in the Sustained Yield
Plan. Instead, the environmental
plaintiffs complain that the projections contained within the timber production
assessment were not demonstrably accurate; hence, the Sustained Yield Plan
should not have been found in conformance with the Forest Practice Rules. We reject the argument. The timber production assessment
within a sustained yield plan is contemplated to be an informed prediction--“a projection of growth and harvest” and
“an estimate of the long-term
sustained yield.”[xiv] The Forest Practice Rules expressly recognize
that “the accuracy of, and therefore the need for, detailed future projections
becomes less as the time horizon lengthens.
It 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.” (FP Rules, § 1091.1(b).) The Sustained Yield Plan here provided all
that was required by the Forest Practice Rules.
The Public Review Draft supplied
inventory data, projections on growth and harvest spanning 120 years, and an
evaluation of the accuracy of the model for long-term sustained yield. The long-term sustained yield was set at
233,520 thousand board feet net (mbfn) per year. Under the Forest Practice Rules, the average
annual harvest projected for any 10-year period must be lower than the
estimated long-term sustained yield. (FP
Rules, § 1091.45(a).) The projected
annual harvest level for the first decade was 2,335,188 mbfn, with harvest
levels declining for several decades and then increasing later in the 120-year
planning period. For the reasons already discussed,
we will not evaluate the “sufficiency” of the Public Review Draft at the second
step of the review process. As part of
the third step of the review process, the EIS/EIR analyzed PALCO’s projections
and recognized the same failings that the environmental plaintiffs put
forth. The EIS/EIR explains that
“[long-term sustained yield] is based on several factors, including forest
inventory, silvicultural prescriptions, site index information, and yield projections. PALCO’s site index information covers too
narrow a range and its intensive management prescriptions have not been
implemented for long enough to determine their full effect on [long-term
sustained yield]. Therefore, there may
be errors in PALCO’s LTSY [long-term sustained yield] projections.” The EIS/EIR also states: “PALCO proposes to manage its land
intensively and bases its LTSY [long-term sustained yield], in part, on
accomplishing this level of intensive management. PALCO has not managed its land using these
intensive management practices until recently.
Therefore, there is no record to judge PALCO’s likely success at
achieving the projected growth increases.”
Further, the EIS/EIR notes that
growth and yield projections are based on statistical computations that can be
fairly accurate for short-term projections but not for long-term
projections. The EIS/EIR acknowledges
the danger that a forest could be over-harvested beyond its sustainable harvest
capacity if the growth of the forest is overestimated. The EIS/EIR recommends using conservative
growth estimates “to absorb statistical errors . . . as well as changes in
management direction and unforeseen events.”
The Public Review Draft contains an
independent evaluation showing the projections of timber growth and yield to be
conservative. The evaluator
concludes: “The biggest problem which
exists is lack of sufficient data for which to make yield projections. It is impossible to know if these choices
provide accurate yield estimates without adequate data to judge the growth of
particularly the intensively managed stands.
Nonetheless the projections appear to be conservative and hence true
yields are expected to surpass those projected.” Moreover, in order to deal with the
inherent flaws in the growth and yield projections, the Public Review Draft and
the EIS/EIR set up a monitoring and reporting program to assess whether the
growth and yield projections for the 120-year planning period are correct and
whether intensive management is successful.
The EIS/EIR evaluates five separate
alternatives, covering harvest levels ranging from 868,780 mbfn to 2,335,188
mbfn in the first decade. The proposal
for timber operations under the Habitat Conservation Plan and Sustained Yield
Plan (alternative 2) has the highest projected harvest volume of 2,335,188 mbf
in the first decade. However, that
figure was later adjusted downward. At the end of the public comment
period, the wildlife agencies determined that additional restrictions on
harvesting of old growth forests were needed to protect the wildlife. These additional mitigation measures (added
to the final Habitat Conservation Plan) reduced the land available for harvest
and, hence, adversely affected the long-term sustained yield. Furthermore, the final EIS/EIR recognizes
that the long-term sustained yield would be affected by the possibility of
additional lands being withdrawn from timber production through a future
purchase of stream buffer zones by the state and a future need to enlarge the
Marbled Murrelet Conservation Areas.
“These and other mitigation measures listed in [the Habitat Conservation
Plan] could reduce [long-term sustained yield] by approximately 15 percent
. . . .” On the other
hand, the final EIS/EIR notes that the watershed analysis “could determine that
less area needs to be withdrawn for stream protection.” The EIS/EIR declares that the effect of these
contingencies on the long-term sustained yield could not be determined
accurately, but a “reduction of 15 percent seems reasonable.” Appendix Q to the final EIS/EIR provides
changed projections on long-term sustained yield to take account of the new
mitigation measures in the final Habitat Conservation Plan. The new long-term sustained yield was set at
196,500 mbfn per year. And, the
estimated harvest volume for maximum sustained production was 1,761,516 mbfn in
the first decade. In February 1999, PALCO submitted
even more revised projections at the request of the Department of Forestry
using different assumptions about the outcome of the watershed analysis. Alternative 25 assumes that the restrictions
set out in the final Habitat Conservation Plan (which went beyond the interim
measures imposed by AB 1986) would remain unchanged after the watershed analysis. Alternative 25a, on the other hand, assumes
that even wider no-cut buffer zones would be required after the watershed
analysis. Under alternative 25 the
long-term sustained yield is set at 196,400 mbfn per year, and the projected
harvest level in the first decade is 188,200 mbfn per year. Under alternative 25a, the long-term
sustained yield is set at 196,100 mbfn with a projected harvest level of
145,900 mbfn per year in the first decade.
The Director’s ultimate approval of the Sustained Yield Plan accepted
the projections in alternative 25, and the Director found that “the
requirements for maximum sustained production are satisfied.” We find no violation of the Forest Practice
Rules. (2)
Economic Considerations The Steelworkers, too, rely upon the
requirement in the Forest Practice Rules that a sustained yield plan “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.” (FP Rules, § 1091.45(a); see
also FP Rules, § 913.11(b).) However,
the Steelworkers take an approach different from the environmental plaintiffs
and argue that the Sustained Yield Plan failed to give adequate consideration
to economic and employment issues. The Steelworkers do not dispute that the Sustained
Yield Plan contains a discussion of regional economic vitality and
employment. The Steelworkers complain
that the discussion gives too little consideration to the effects on the workers,
as the discussion covers only the first decade and not the entire “planning
horizon” of 100 years. The complaint is
unsound in several respects. First, the Sustained Yield Plan does cover the entire
planning horizon. The Public Review
Draft contains a short discussion of the potential effects on the regional
economy that covers a planning period of 120 years. Using a formula of six jobs per year for
every million board feet harvested, the Public Review Draft presents a chart
showing the estimated jobs for the projected harvest levels over 12
decades. The harvest levels, too, are
separately given in the Public Review Draft covering a 120-year period from
1998 to 2118. The Public Review Draft
concludes that the projected job loss over the 120-year period would be less
than 1.5 percent, which would not constitute a significant adverse impact on a
regional scale. The Steelworkers’ complaint is actually directed to
one chapter of the EIS/EIR for the Habitat Conservation Plan and Sustained
Yield Plan that covers the economic and social effects of the Headwaters Forest
Project. Included within that chapter is
a detailed discussion of the employment base as well as the timber industry,
but the analyses of the impacts examine the harvest volume only for the first
decade. The EIS/EIR explains: “The first decade of the planning period is
the short-term period of analysis used in this EIS/EIR. This period of analysis also is the only
period appropriate for economic and social effects. Too many variables, including economic
diversity of the local economy, strength 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 an EIR.” Nevertheless, the EIS/EIR reiterates the formula set
forth in the Public Review Draft that six workers are required to log and mill
1,000 mbf of timber. And, the EIS/EIR
contains a separate chapter on the timber resources. In that chapter the projected harvest levels
are given for 12 decades for each of the four alternatives.[xv] In response to public comments on the
long-term impact on logging jobs, the final EIS/EIR explains: “As shown in each of the alternatives
evaluated in the EIS/EIR, timber harvest volumes on PALCO timberlands would
decline over the next 40 to 50 years and then timber harvests would gradually
increase again in the later decades of the 120-year planning period
. . . .” In any event, we do not read the Forest Practice
Rules to require a detailed analysis of economic and employment issues across
the full span of 100 years. The goal of
the Forest Practice Rules is to achieve “maximum sustained production.” (FP Rules, § 1091.1(b).) The Forest Practice Rules require a
demonstration of how maximum sustained
production will be achieved in that time span. (FP Rules, §§ 913.11(b), 1091.45(a).) The Forest Practice Rules expressly recognize
that “the accuracy of, and therefore the need for, detailed future projections
becomes less as the time horizon lengthens.
It 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.” (FP Rules, § 1091.1(b).) Furthermore, a sustained yield plan, though covering
a planning horizon of 100 years, is effective for only 10 years and must
thereafter be resubmitted and reapproved.
(Pub. Resources Code, § 4551.3, subd. (a); FP Rules,
§ 1091.45(b).) Each decade PALCO
will be required to submit information to show that consideration is being
given to employment and economic issues.
(3) Old Growth Timber The Steelworkers emphasize that the Forest Practice
Rules require a sustained yield plan to demonstrate how maximum sustained
production “of high quality timber
products” will be achieved. (FP
Rules, §1091.45(a), italics added.) The
Steelworkers reason that because old growth timber constitutes the highest
quality timber product, the Sustained Yield Plan was required to demonstrate
maximum sustained production of old growth timber. It is true that the Public Review Draft, the EIS/EIR,
and the supplemental information submitted by PALCO in February 1999 all
examine old growth forests as a special category. Old growth forests have unique
characteristics for wildlife habitat and provide high quality timber. However, there is nothing in the Forest
Practice Rules to compel a discrete demonstration of the sustainability of old
growth forests. The Forest Practice Rules allow the landowner to
decide which harvest products will be harvested. The Rules provide that maximum sustained
production is demonstrated in a sustained yield plan “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 certain
other requirements].” (FP Rules,
§ 913.11(b), italics added.)
Further, the long-term sustained yield estimate in a sustained yield
plan must be stated in a measurement (e.g., board feet per year) “consistent
with products chosen by the owner . .
. .” (FP Rules, § 1091.45(c)(2),
italics added.) PALCO’s harvest
estimates in the Sustained Yield Plan include redwood young growth, Douglas
fir, white woods, and hardwoods in addition to redwood old growth and Douglas
fir old growth. In response to public comments on
the issue of sustainability, the final EIS/EIR explains: “The premise [of the Sustained Yield Plan and
Habitat Conservation Plan] is that sustainable, high-quality forest will be
attained by converting most of the landscape to faster growing second-growth
forests while protecting old growth in [the Marbled Murrelet Conservation
Areas] and in riparian management [buffer] zones. The Board of Forestry allows a landowner to
balance the harvest rate and growth over time as long as they balance by the
end of the planning period and as long as the harvest in an individual 10 year
period does not exceed the [long term sustained yield]. The Board of Forestry allows the landowner to
determine the rate of harvest as long as it is sustainable as indicated.” (4) Planning Watersheds The Forest Practice Rules require a
sustained yield plan to identify and map the “planning watersheds” and to
analyze potential adverse environmental impacts thereon. (FP Rules, §§ 1091.4(a)(6), 1091.6(c).)[xvi] The environmental plaintiffs contend the
Sustained Yield Plan failed to conform to this requirement because the
Sustained Yield Plan did not analyze the impacts upon the “planning
watersheds.” Instead, the Sustained
Yield Plan used much larger “Watershed Assessment Areas,” ranging in size from
55,000 to 426,000 acres, that were also used in the Habitat Conservation Plan. We find no error. First, the Forest Practice Rules expressly
allow the Director to approve the use of assessment areas other than those
mapped and identified as “planning watersheds.”
(FP Rules, § 895.1; fn. 16, ante.) In fact, the Forest Practice Rules state that
“[t]he minimum assessment area shall
be no less than a planning watershed.
The assessment area may include multiple watersheds
. . . .” (FP Rules,
§ 1091.6(a), italics added.) In
approving the Sustained Yield Plan, the Director found that PALCO “has
submitted the required watershed . . . assessments.” That finding was at least an implied, if not
an express approval of PALCO’s use of the larger Watershed Assessment Areas. Second, analysis of the smaller
“planning watersheds” was deferred to future timber harvest plans. The EIS/EIR states that detailed,
site-specific information on individual planning watersheds was not readily
available, that the information available was at the scale of Watershed
Assessment Areas. Under the federal
Habitat Conservation Plan and Implementation Agreement, PALCO is obligated to
provide a detailed watershed analysis within five years. The Sustained Yield Plan calls for
site-specific information on the watershed impacts to be included in individual
timber harvest plans based on completion of the upcoming watershed analysis. Such deferral is expressly
contemplated by the Forest Practice Rules.
(FP Rules, § 1091.1(b).) As
already noted, a sustained yield plan is not a substitute for a timber harvest
plan. (FP Rules, § 1091.1.) However, a timber harvest plan may rely upon
an approved SYP for information on timber production and environmental issues
as long as the timber harvest plan does not substantially deviate from the
sustained yield plan. (FP Rules,
§§ 1091.2, 1091.13, 1091.14.) The
aim of the Forest Practice Rules is that “all potential adverse environmental
impacts resulting from proposed harvesting be described, discussed and analyzed
before such operations are allowed.” (FP
Rules, § 1091.1(b).) The Forest
Practice Rules expressly recognize that in some cases the information on all
potential adverse environmental impacts will not be available. In such cases, the environmental analysis
that is not included in the sustained
yield plan--whether on new issues or on adverse effects not addressed in the
SYP--must be contained in a timber harvest plan that relies on the SYP . . .
. (FP Rules, § 1091.1(b).) Put another way, a timber harvest plan may
rely upon an approved sustained yield plan only “to the extent that sustained
timber production, watershed impacts and fish and wildlife issues are addressed
in the approved SYP.” (FP Rules,
§ 1091.2.) PALCO’s Sustained Yield Plan
recognizes that before a particular forest stand can be harvested a timber
harvest plan must be prepared and approved.
The Habitat Conservation Plan, too, requires PALCO to submit timber
harvest plans. In his approval of
PALCO’s Sustained Yield Plan, the Director stated that PALCO will be required
to submit timber harvesting plans subject to environmental review, but the
timber harvest plans may rely on information and conclusions in the SYP
provided that all the relevant information is incorporated into the timber
harvest plan. Contrary to environmental plaintiffs’ assertion, there is no risk
that a future timber harvest plan will be approved without an adequate analysis
of the effects on the watersheds. (E.g.,
see FP Rules, §§ 956.3-956.12, 1034, for watershed information required in
a timber harvest plan.) A future timber
harvest plan may rely upon the approved Sustained Yield Plan only “to the
extent that” the watershed impacts were addressed in the Sustained Yield Plan. (FP Rules, § 1091.2.) Insofar as the “planning watershed” impacts
were not addressed in the Sustained Yield Plan, they must be contained in the
timber harvest plan. (FP Rules,
§ 1091.1(b).) (5) Cumulative Impacts The Forest Practice Rules require
the Sustained Yield Plan to address potential adverse environmental impacts on
fish and wildlife, water quality, and aquatic wildlife, and the analyses must
include “cumulative impacts.” (FP Rules,
§§ 1091.5(b), 1091.6(b).) The environmental
plaintiffs complain that the Sustained Yield Plan did not contain a discussion
of the cumulative environmental
impacts. It is true that the Public Review
Draft did not include an analysis of the cumulative impacts within the analyses
of the watershed and fish and wildlife.
Insofar as environmental plaintiffs’ argument is an attack on the
Director’s “sufficiency” finding at the second step of the review process, we
reject it for the reasons already discussed. The cumulative effects analysis was
ultimately deferred to future timber harvest plans.[xvii] The Habitat Conservation Plan requires PALCO
to submit timber harvest plans. The
Habitat Conservation Plan also requires PALCO to conduct a comprehensive
watershed analysis within five years in order to provide a cumulative effects
assessment. The Public Review Draft
expressly contemplates future site-specific prescriptions based on the
watershed analysis, and the Public Review Draft discusses how future timber harvest plans will
evaluate the cumulative impacts. The EIS/EIR for the Habitat
Conservation Plan and Sustained Yield Plan contains an analysis of the
cumulative environmental effects, as environmental plaintiffs concede. Although the agencies found the EIS/EIR
sufficient for CEQA purposes, the final EIS/EIR reports that the Department of
Forestry found the cumulative effects analysis inadequate for reliance in
future timber harvest plans; hence, future timber harvest plans will need to
include a complete analysis. (See FP
Rules, §§ 898, 912.9, requiring cumulative effects analysis within timber
harvest plan.) As we have already discussed, a
timber harvest plan may rely on a sustained yield plan only to the extent that
the requisite information is included in the Sustained Yield Plan. (FP Rules, §§ 1091.1(b), 1091.2.) Deferring the analysis of the cumulative
effects did not violate the Forest Practice Rules. (6) Late The Forest Practice Rules require
special information when “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 . .
. .” (FP Rules, § 919.16(a).)[xviii] The special information required is “a
discussion of how the proposed harvesting will affect the existing functional
wildlife habitat for species primarily associated with late succession forest
stands . . . or the planning watershed, as appropriate
. . . .” (FP Rules,
§ 919.16(a).) The environmental plaintiffs
complain 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 successional forests.[xix] The category of “late seral forests” is also
used in the Habitat Conservation Plan and in the EIS/EIR. We find no error. The Forest Practice Rules require only that
the information on late successional forests be provided before timber
harvesting is actually conducted—either in the Sustained Yield Plan or in the timber harvest plan. (FP Rules, § 919.16(a).) Leaving the evaluation to future timber
harvest plans did not amount to a failure to follow procedures required by
law. In any event, the variant
classification used by PALCO was harmless.
The Public Review Draft provides an analysis of the adverse impacts on
wildlife habitats by seral type. The
environmental plaintiffs have 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. The EIS/EIR for the Habitat Conservation Plan
and Sustained Yield Plan contains a comprehensive analysis of the impact of
timber harvesting upon the existing wildlife habitats. The EIS/EIR acknowledges the difference
between a late seral forest and a late succession forest and attempts to
reconcile the two. In the final EIS/EIR,
in a response to a public comment, the Department of Forestry recognized the
“gap” in PALCO’s evaluation but deferred the matter until the watershed
analysis was undertaken pursuant to the Habitat Conservation Plan: “Monitoring efforts and agency consideration
in the watershed analysis process will be focused on actual [late succession
forest] stand attributes.” C. Determination of Conformance The environmental plaintiffs and the
Steelworkers further assert that the Director of the Department of Forestry
failed to follow the procedures required by law at the third step of review in
his decision to approve the Sustained Yield Plan. (1)
Dual Rulings The environmental plaintiffs contend
that the Director made two separate and inconsistent determinations and that
such dual rulings were procedurally improper.
The Steelworkers, too, raise the point in a footnote to their brief. The argument is based on the fact that on Environmental plaintiffs read too
much into the Director’s change from alternative 25a to alternative 25. The revision made on In any event, an administrative body
has inherent power to reconsider an action taken unless reconsideration is
precluded by law. (In re Fain (1976) 65 Cal.App.3d 376, 389.) There is nothing in the Forest Practice Rules
to preclude reconsideration of a sustained yield plan. The Director is given 30 days at the end of
the review and comment period to determine if the Sustained Yield Plan is in
conformance with the rules. (FP Rules,
§ 1091.10(e).) Here, the Director
acted within the 30-day period.[xx] The fact that he changed some of the contents
of the Sustained Yield Plan within the 30-day period is of no legal
consequence. Obviously, the revised
determination is the controlling one. We
find no procedural error. The core of environmental
plaintiffs’ complaint seems to be that the Director’s approval of the Sustained
Yield Plan with alternative 25 allows a higher level of timber harvesting than
would have been allowed under alternative 25a.
Under alternative 25a, the harvest level was 145,900 mbfn per year in
the first decade, while under alternative 25 the harvest level was 188,200
mbfn. This argument misses the
mark. The question is whether the Sustained
Yield Plan was in conformance with the Forest Practice Rules, and the Forest
Practice Rules do not define a particular level of harvest. There is no prescribed maximum in board feet
or maximum percentage of available timber.
Rather, the rate of harvest is set by the landowner and will meet the
standards of the Forest Practice Rules as long as the harvest level is
sustainable over the planning horizon.
(FP Rules, §§ 913.11(b), 1091.45(c)(2), (c)(3).) The Director’s acceptance of the harvest
level in alternative 25 instead of alternative 25a did not violate the Forest
Practice Rules. Environmental plaintiffs argue that
because the February 1999 revisions of timber harvest levels were submitted so
late in the process the public was denied the opportunity to comment on the new
information. The argument is not
convincing. Environmental plaintiffs
seem to analogize to the process prescribed by the CEQA Guidelines requiring recirculation
of an EIR and a new round of public comments when significant new information
is added to the final EIR. (Pub.
Resources Code, § 21092.1; Guidelines, § 15088.5.) There is nothing in the Forest
Practice Rules comparable to the recirculation requirement in the CEQA
Guidelines. The Forest Practice Rules
expressly empower the Director to consider recommendations and mitigation
measures from other agencies before making the final determination of
conformance. (FP Rules, §
1091.10(e).) Thus, the rules contemplate
that changes may be made in the sustained yield plan to bring it into
conformance with the Forest Practice Rules.
In any event, even under the CEQA Guidelines, recirculation is required
only when the new information changes the EIR in a way that “deprives the
public of a meaningful opportunity to comment” upon a new significant impact or
a substantial increase in the severity of the impact. (Guidelines, § 15088.5(a); see generally
Laurel Heights Improvement Assn. v.
Regents of University of California (Laurel Heights II) (1993) 6 Cal.4th
1112, 1126-1130; Chaparral Greens v. City
of Chula Vista, supra, 50 Cal.App.4th at pp. 1147-1151.) Here, the changes in the projections for
timber growth, harvest, and yield did not deprive the public of a meaningful
opportunity to comment on the harvest levels.
The revised harvest levels fell within the range of harvest levels
analyzed in the EIS/EIR. Moreover, the
EIS/EIR concludes that while the outcome of the watershed analysis was unknown
and the effect on the long-term sustained yield could not be determined
accurately, “a long-term reduction of 15 percent seems reasonable.” The long-term sustained yield in alternative
25 of the February 1999 revised projections (196,400 mbfn) is 15.9 percent
below the long-term sustained yield of alternative 2 (the proposed Sustained
Yield Plan) examined in the EIS/EIR (233,520 mbfn).[xxi] (2)
One Integrated Document The environmental plaintiffs and the
Steelworkers complain that the Sustained Yield Plan, as finally approved, does
not appear in a single integrated document.
Instead, it is composed of several parts. First is the six-volume document labeled the
Public Review Draft that was submitted by PALCO, revised under the “sufficiency
review” step of the process, and ultimately made available in July 1998 for
public and agency review. To enable
public review and comment, copies of the Public Review Draft were made
available through a website, on a compact disc, and in hard copy at various
locations around the state. Thereafter, the Sustained Yield Plan
was the subject of environmental review through the EIS/EIR for the Habitat
Conservation Plan and Sustained Yield Plan.
In the final EIS/EIR, released at the end of the public comment period,
the Habitat Conservation Plan appears as a discrete document (Appendix P) ,
while Appendix Q explains that the entire final EIS/EIR constitutes the final
Sustained Yield Plan. To save paper and
avoid duplicating the full proposed plan, Appendix Q provides a “cross walk”
that cites to the places within the EIS/EIR containing the information to satisfy
the elements of the Sustained Yield Plan.
Appendix Q also contains changes in the timber inventory, growth,
harvest and yield projections to reflect the buffer zones imposed by the final
Habitat Conservation Plan. Subsequently, in February 1999, PALCO
submitted additional information at the request of the Department of Forestry,
with revised timber projections (including alternatives 25 and 25a) in light of
the constraints that might arise from the upcoming watershed analysis required
by AB 1986. In the third and final step of
administrative review, the Director’s statement approving the Sustained Yield
Plan makes clear that the Director evaluated all the segments of the Sustained
Yield Plan--the Public Review Draft “in combination with provisions of the For purposes of the administrative
mandamus proceedings in the trial court, the Department of Forestry compiled
exhibit R-3, which pulled together the disparate parts of the Sustained Yield
Plan. However, the trial court took
evidence that PALCO itself had in
fact not submitted an integrated document to the Department of Forestry. From this evidence, the environmental
plaintiffs and the Steelworkers argue that the Director’s approval of the
Sustained Yield Plan was ineffective because the condition of an integrated
document has not been fulfilled. The
environmental plaintiffs further argue that in the absence of a single
integrated document submitted by PALCO there was no “plan” for the Director to
approve. We reject the arguments. An integrated document was not a condition precedent to approval of the Sustained
Yield Plan; it was a condition subsequent. That is, PALCO’s compliance was not required
to make the Sustained Yield Plan effective; rather, its failure to comply
supplies a ground for revoking the Sustained Yield Plan. This point is made clear by section 4551.3 of
the Public Resources Code, 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. If, after the hearing, the
Director finds that implementation of a sustained yield plan is not in
compliance with the terms and conditions of the original approval (or with the
Forest Practice Rules or with other legal requirements), then the sustained
yield plan will be deemed ineffective for the remainder of its 10-year
term. (Pub. Resources Code,
§ 4551.3, subd. (c).) Here, the assertion by the
environmental plaintiffs and the Steelworkers to the trial court in the
administrative mandamus proceedings that PALCO 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. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292; Plaza Hollister Limited Partnership v.
County of San Benito (1999) 72 Cal.App.4th 1, 29-30, 33.) The remedy available to the environmental
plaintiffs and the Steelworkers 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 PALCO failed to comply with the condition for approval of the
Sustained Yield Plan. (3)
Response to Comments The Director’s obligation at the
third step of review is to “respond in writing to the issues raised and
determine if the SYP is in conformance with the rules.” (FP Rules, § 1091.10(e).) The environmental plaintiffs contend the
Director failed to make a written response to comments made by the public and
by other agencies. The record shows no such
failing. In interpreting an analogous
requirement for timber harvest plans, the courts have held that the Department
of Forestry abused its discretion in providing responses that were conclusory
or that omitted a significant environmental objection. (Environmental
Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604,
628-629; Gallegos v. State Bd. of
Forestry (1978) 76 Cal.App.3d 945, 954.)[xxiii] At the same time, the courts have recognized
that the public agency need not respond to every comment raised in the course
of the review process; the agency need only provide a good faith, reasoned
analysis why specific objections were not accepted. (76 Cal.App.3d at p. 954; see also Ebbetts Pass Forest Watch v. Dept. of
Forestry, supra, 123 Cal.App.4th at pp. 1356-1357.) Here, the public review of the
Sustained Yield Plan was the public review of the EIS/EIR for the Habitat
Conservation Plan and Sustained Yield Plan.
The EIS/EIR was intended to inform the Director’s determination whether
the Sustained Yield Plan was in conformance with the Forest Practice
Rules. As lead agency under CEQA, the
Department of Forestry had an obligation to provide within the final EIR a
written response to significant environmental points raised during the public
comment period. (Guidelines,
§ 15088.) The final EIS/EIR reports
that approximately 16,000 written comments were received. “Because comments were made on the draft We will discuss in part VI.B. below,
the separate question raised by the Steelworkers whether the administrative
record on the Sustained Yield Plan fails to include all the public comments
received during the public review period. IV.
Incidental Take Permit The California Endangered Species
Act (Fish & Game Code, § 2050 et seq.) seeks to conserve, protect,
restore, and enhance any endangered species or any threatened species and its
habitat. (Fish & Game Code,
§ 2052.) Pursuant to the act, the
Fish and Game Commission keeps lists of endangered and threatened species, with
species added or removed as scientific information warrants. (Fish & Game Code, § 2070; Cal.Code
Regs., tit. 14, §§ 670.2, 670.5; see generally, Natural Resources Defense Council v. Fish & Game Com. (1994) 28
Cal.App.4th 1104.) A “candidate” species
is one that is under review for possible addition to the list of endangered or
threatened species. (Fish & Game
Code, §§ 2068, 2074.2, subd. (a)(2).) The Endangered Species Act
prohibits, among other things, the “taking” of an endangered or threatened
species. (Fish & Game Code,
§ 2080.) To “take” means to capture
or kill. (Fish & Game Code,
§ 86.) At the same time, the act
allows the Department of Fish and Game to authorize, by permit, a “take” that
is incidental to an otherwise lawful activity.[xxiv] (Fish & Game Code, § 2081(b); see
also Cal. Code Regs., tit. 14, § 783 et seq.)[xxv] The Incidental Take Permit issued to
PALCO in conjunction with the Headwaters Agreement authorized the incidental
taking of two wildlife species: (1) the
marbled murrelet, an endangered bird, and (2) the bank swallow, a threatened
bird. The environmental plaintiffs raise
several challenges to the Incidental Take Permit. A.
Mitigation of Impacts on the Marbled Murrelet Among the conditions statutorily
required for issuance of an incidental take permit is the full mitigation of
adverse impacts from the taking: “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 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 & Game Code, § 2081, subd.
(b)(2), italics added.) The environmental plaintiffs contend
the Department of Fish and Game failed to proceed as required by law with
respect to the marbled murrelet because the Department of Fish and Game
deferred full mitigation to some time in the future.[xxvi] We reject the contention. The Department of Fish and Game
expressly found that the impacts on the marbled murrelet will be fully
mitigated. First, the Incidental Take
Permit states that the mitigation measures imposed as a condition of the permit
satisfy section 2081(b) of the Fish and Game Code. Furthermore, the Incidental Take Permit
incorporates by reference the final Habitat Conservation Plan and its
accompanying Implementation Agreement.
The Incidental Take Permit requires PALCO to implement and adhere to the
protective measures therein for the 50-year duration of the permit. The Habitat Conservation Plan, in turn,
provides operating programs for conservation of the marbled murrelet, among
other species. The Incidental Take Permit
states that the measures set out in the Habitat Conservation Plan “fully mitigate
anticipated take and other impacts on Covered Species.” The Habitat Conservation Plan refers
to chapter 3 of the EIS/EIR for analysis of the impacts on the covered
species. The EIS/EIR contains a detailed
discussion of the impacts on and mitigation measures for the marblet murrelet
and other wildlife. The EIS/EIR reports
that the proposed timber harvesting (known as alternative 2) would have
“short-term direct and indirect effects on murrelets; however, in the long
term, these effects would be minimized and mitigated.”[xxvii] Further, the EIS/EIR concludes that the
cumulative effects on the murrelets would be “minimized, mitigated, and less
than significant in the long term” due to the restrictions of the Habitat
Conservation Plan and the creation of conservation areas. In response to a public comment, the EIS/EIR
explains that the final Habitat Conservation Plan, which includes additional
measures beyond those discussed in the draft EIS/EIR, would fully mitigate the
impacts from the incidental take of marbled murrelets. Another response to a public comment explains
that the mitigation will occur over the life of the 50-year Incidental Take
Permit: “The 50-year permit term was
chosen in part because a permit period of that length is important to insure
that the mitigation provided for the marbled murrelet will be fully realized
. . . . There is no requirement under NEPA or CEQA to address
longer or shorter permit terms, particularly where, as here, the applicant has
requested a 50-year term and the wildlife agencies believe such a 50-year term
is necessary to mitigate for the effects of take of the covered species.” In its CEQA findings, the Department
of Fish and Game found that the final EIS/EIR “identifies potential short-term
effects to marbled murrelet due to the incidental take and loss of some
suitable nesting habitat, which may result in reduction of reproductive
success.” The Department of Fish and
Game further found that the mitigation measures identified in the EIS/EIR, as
described in the Habitat Conservation Plan and Implementation Agreement, “will
likely mitigate the potential significant effects to the marbled murrelet in
the long-term.” The Department again
ordered PALCO to implement those measures as a condition of approval of the Incidental
Take Permit. The Department expressed
the following rationale: “The required
mitigation measures use the best available science to preserve the highest
quality habitat, in a matrix of buffering second growth and residual forest in
areas of suitable size to sustain the marbled murrelet population in the short
and long-term future.” Contrary to the environmental
plaintiffs’ suggestion, there is nothing in the law to require that full
mitigation be achieved in the short term or concurrently with the issuance of
the incidental take permit. The statute
says only that the adverse impacts from the taking “shall be . . . fully
mitigated.” (Fish & Game Code,
§ 2081, subd. (b).) The word
“fully” means completely, entirely, and thoroughly. (Webster’s 3d New Internat. Dict. (1981) p. 919.) It does not connote temporal immediacy. By necessity, efforts to remedy adverse
effects upon some species will take some time.
This is especially so here, where the mitigation measures involve the
slow process of developing forest habitat for the marbled murrelet. We conclude that the Department of Fish and
Game satisfied the statutory conditions and made the necessary findings that
the adverse impacts from the permitted incidental taking will be fully
mitigated.[xxviii] B.
PALCO’s economic objectives As already indicated, the Incidental
Take Permit requires PALCO to implement the Habitat Conservation Plan, which,
in turn, establishes a detailed Marbled Murrelet Conservation Plan. That plan sets up certain Marbled Murrelet
Conservation Areas in which timber harvesting is prohibited. On the rest of the PALCO lands, the Marbled
Murrelet Conservation Plan sets up a phased harvesting program. The old growth redwood stands are to be
divided into two categories of roughly equal acreage, one designated “low
quality” habitat and the other “high quality” habitat. The high quality habitat is then subject to
further restrictions on harvesting, including a procedure for prioritizing the
murrelet habitat and then phasing the timber harvesting so as to minimize the
impact on the murrelet. The key language
states: “The [federal wildlife agency
and the Department of Fish and Game], and PALCO will work cooperatively to
schedule harvest of old-growth redwood and residual old growth redwood outside
the [Marbled Murrelet Conservation Areas] in a manner which minimizes impacts to marbled murrelets while recognizing PALCO’s operational needs. PALCO shall work cooperatively with the
wildlife agencies to schedule and conduct old-growth redwood timber harvest so
as to prioritize entry of the lower quality habitat group over timber stands of
the higher quality habitat group, to the
extent practicable given other required constraints of the [Habitat
Conservation Plan] and [Incidental Take Permits], while giving consideration to PALCO’s operational needs.”[xxix] (Italics added.) The environmental plaintiffs contend
that this provision improperly replaces the standard of “full mitigation” with
a balancing of the needs of the endangered murrelet against the economic needs
of PALCO. They argue such balancing
violates the mandate of the Deparment of Fish and Game to protect the
endangered wildlife. The argument is
unfounded. First, the statute not only allows
but expressly compels giving consideration to economic objectives. As already quoted above, the statute provides
that when various mitigation measures are available, “the measures required
shall maintain the applicant’s objectives to the greatest extent possible.” (Fish & Game Code, § 2081, subd.
(b)(2).) The provision regarding harvest
phasing was not a violation of law. Furthermore, as already discussed,
the Department of Fish and Game expressly found that the impacts on the marbled
murrelet will be fully mitigated in accordance with section 2081 of the Fish
and Game Code. The Department’s findings
on “full mitigation” were based upon the totality of the protective measures
put in place through the Habitat Conservation Plan. The EIS/EIR indicates that the combination of
protective measures in the Habitat Conservation Plan, including the creation of
conservation areas and buffer zones, prioritization of habitat blocks, and
funding of research and population surveys, all serve to mitigate the permitted
taking of the murrelets over the 50-year term of the incidental take
permits. The environmental plaintiffs’
complaint focuses on one of those measures (the harvest phasing) taken in
isolation. Contrary to their assertion,
the statement in the Habitat Conservation Plan that the phased harvesting must
“minimize” the impact on marbled murrelets does not contradict the finding that
the overall set of protective measures will fully mitigate, over time, the
incidental taking of marbled murrelets. C.
Survey Data Another statutory condition for the
Incidental Take Permit is consideration of scientific information to determine
the threat to survival of the species:
“No permit may be issued pursuant to subdivision (b) if issuance of the
permit would jeopardize the continued existence of the species. The department shall make this determination based on the best scientific and other
information that is reasonably available, and shall include consideration
of the species’ capability to survive and reproduce, and any adverse impacts of
the taking on those abilities in light of (1) known population trends; (2)
known threats to the species; and (3) reasonably foreseeable impacts on the
species from other related projects and activities.” (Fish & Game Code, § 2081, subd.
(c), italics added.) The environmental plaintiffs do not
dispute that the Department of Fish and Game made a determination that issuance
of the Incidental Take Permit would not jeopardize the continued existence of
the marbled murrelet. The environmental
plaintiffs contend that the scientific data upon which the Department relied
was in fact not “the best,” that the scientific information should have
included surveys of the murrelet population on PALCO’s lands, including survey
data from the Pacific Seabird Group Protocol.
The complaint is unfounded. The Incidental Take Permit refers to
the EIS/EIR for information about the Covered Species and to the Habitat
Conservation Plan for the mitigating measures.
The EIS/EIR and the Habitat Conservation Plan contain a voluminous
amount of information about the effects upon the marbled murrelet. The EIS/EIR explains that only part of
PALCO’s lands had been surveyed to determine the presence of marbled
murrelets. The surveys that were
conducted on PALCO’s lands followed the Pacific Seabird Group Protocol. But surveys on land (rather than at sea) to
count marbled murrelets and to determine their habitat use have had limited
effectiveness. Therefore, the analysis
of the effects upon the murrelet and its breeding habitat was primarily based
upon assumptions derived from what is known about the murrelets’ behavior and
breeding habitat. Among the protective measures set
forth in the Habitat Conservation Plan are various measures designed to monitor
the murrelet population on PALCO lands, in the Marbled Murrelet Conservation
Areas, and at sea (during migration).
The Habitat Conservation Plan states:
“At this point, inland surveys are not, by themselves, thought to
monitor marbled murrelet numbers effectively enough to allow estimates of
population trends . . . .” The Habitat
Conservation Plan does, however, call for future inland surveys: “Surveys will be carried out by staff or
contractors, according to the basic methods set out in the 1998 Pacific Seabird
Group protocol. Results will be used to
determine . . . whether the harvest of residual old growth and second
growth outside of the [Marbled Murrelet Conservation Areas] is having any
detrimental effect on habitat quality within the [Marbled Murrelet Conservation
Areas] and, if so, to determine the relative impact of the effect on the
species.” There is nothing to suggest that the
Department of Fish and Game acted without enough information to make an
informed decision. ( D.
Findings The environmental plaintiffs do not
dispute that the Department of Fish and Game made express findings that the
criteria for issuance of the Incidental Take Permit had been met. The environmental plaintiffs complain that
the findings merely recite the statutory language and do not explain the
Department’s reasoning. Environmental plaintiffs rely on Topanga Assn. for a Scenic Community v.
County of Los Angeles (1974) 11 Cal.3d 506 (Topanga I), which holds that in order to enable judicial review for
substantial evidence under section 1094.5 of the Code of Civil Procedure an
administrative agency must make findings that “bridge the analytic gap between
the raw evidence and ultimate decision or order.” (Topanga
I, supra, 11 Cal.3d at p.
515.) Topanga
I does not apply here. We are not
reviewing the Incidental Take Permit for substantial evidence. The question we must decide is the legal
question whether the Department of Fish and Game failed to proceed in the
manner required by law. In any event,
the phrasing of the findings in statutory language does not render the findings
inadequate. (Topanga Assn. for a Scenic Community v. County of Los Angeles (1989)
214 Cal.App.3d 1348, 1363-1364 (Topanga
II).) The route to the
administrative decision is sufficiently disclosed when reference to the
administrative record informs the parties and the reviewing courts of the
theory upon which the agency arrived at its ultimate decision and the agency in
truth found those facts that are legally essential. (Id.
at p. 1356; Sierra Club v. California
Coastal Com., supra, 19 Cal.App.4th at p. 556.) Here, the ultimate decision was the decision
to issue the Incidental Take Permit. The
Incidental Take Permit itself refers to the EIS/EIR for an analysis of the
impacts on the Covered Species and refers to the Habitat Conservation Plan for
the mitigation measures. The Department
of Fish and Game made specific findings on the several prerequisites for the
permit. Nothing more was required. E. No Surprises The Incidental Take Permit incorporates
the terms of the Habitat Conservation Plan and its Implementation
Agreement. The Habitat Conservation Plan
and Implementation Agreement, in turn, contain so-called “no surprises”
assurances pertaining to changed circumstances and unforeseen circumstances. First, as to changes in environmental
circumstances that can reasonably be anticipated, such as fire, flood, or
earthquake, the Habitat Conservation Plan sets out certain response measures
designed to mitigate the impact of such changes, and the Implementation
Agreement states that PALCO will not be required to institute any response
measures beyond those specified.
Further, as to unforeseen circumstances, the Habitat Conservation Plan
and Implementation Agreement provide that PALCO will not be required to commit
additional land, water, or money. At
most, PALCO may be required to modify its activities within the habitat
conservation areas or its activities with respect to the habitat conservation
programs, but no additional restrictions on land use or water use will be
imposed. The “no surprises” rule is an
established policy of the federal wildlife agencies. (50 C.F.R. § 17.22.) It 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. (See 63 Fed.Reg. 8859.) The no-surprises rule is reflected in state
law, too, in the Natural Community Conservation Planning Act (Fish & Game
Code, § 2800 et seq.), which was enacted in 2002, after the administration
actions were taken in this case. The
state act authorizes the Department of Fish and Game to enter into an agreement
to implement a plan for comprehensive management and conservation of multiple
wildlife species, and the act specifically authorizes the Department of Fish
and Game to “provide assurances for plan participants commensurate with long-term
conservation assurances and associated implementation measures . . . .” (Fish & Game Code, §§ 2820, subd.
(f), 2810.) The “level of assurances”
and the time limits for assurances must be based on various factors, including
the level of knowledge of the status of the covered species and the adequacy of
analysis of the impact of take on covered species. (Fish & Game Code, § 2820, subd.
(f)(1).) Moreover, the act specifically
states that “additional restrictions on the use of land, water, or other natural
resources shall not be required” in the event of unforeseen circumstances. (Fish & Game Code, § 2820, subd.
(f)(2).) Although those statutory
provisions do not govern the Implementation Agreement here, they do show the
no-surprises provisions to be within the pale. The environmental plaintiffs argue
that the no-surprises provisions within the Habitat Conservation Plan and
Implementation Agreement violate the duty of the Department of Fish and Game to
ensure full mitigation of the impacts of the permitted taking, including
mitigation of “all impacts on the species that result from any act that would
cause the proposed taking.” (Fish &
Game Code, § 2081, subd. (b)(2).)
We reject the argument. 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 the environmental plaintiffs
contend 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. 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 & Game 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. F.
Impact on Spotted Owl The Fish and Game Code gives special
protection to certain birds, including birds in the order of Strigiformes to
which the spotted owl belongs. (Fish
& Game Code, § 3503.5.) The
statute makes it unlawful to take the birds or to take the nest or eggs of such
birds, with no provision for an incidental take by permit. The environmental
plaintiffs contend that the Department of Fish and Game failed to comply with
this law in that the Incidental Take Permit allows PALCO to destroy some nests
of the spotted owl. The contention is
not borne out by the record. The Incidental Take Permit itself
expressly does not authorize a taking
of the spotted owl. The environmental
plaintiffs’ attack is actually directed to the Habitat Conservation Plan, which
is incorporated by reference into the Incidental Take Permit. However, the Habitat Conservation Plan gives
no authorization to kill spotted owls or to destroy their nests. The Habitat Conservation Plan provides a
detailed Northern Spotted Owl Conservation Plan designed to retain and recruit
the spotted owl’s habitat. Under that
plan, logging is allowed in some areas of spotted owl habitat, but restrictions
are in place to maintain the habitat, to protect nesting pairs, and to maintain
reproductive success. For example, no
timber harvesting may occur within a 1,000-foot radius of a spotted owl nest
tree during breeding season.[xxx] Even in habitat areas not preserved, all nest
trees must be marked by PALCO’s wildlife biologist and retained if the area is
harvested. Contrary to the
environmental plaintiffs’ suggestion, there is no permit for destruction of
spotted owl nests. There is some confusion in the
record brought about by the different meanings of the word “take” under federal
and state law. Under The EIS/EIR expressly recognizes the
statutory protections given to the spotted owl.
And the EIS/EIR reports that the habitat losses will be mitigated. The CEQA findings made by the Department of
Fish and Game, too, making no mention of the spotted owl, impliedly found no
significant adverse effect upon the spotted owl. (See Pub. Resources Code, § 21081;
Guidelines, § 15091 [findings required whenever significant effect is
identified].) In short, the record
reveals no failure by the Department of Fish and Game to proceed in a manner
required by law with respect to the spotted owl. G.
Unlisted Species The Incidental Take Permit
identifies 13 species on PALCO’s lands that were not then listed as endangered
or threatened--denominated Unlisted Species.[xxxii] In addition to allowing the incidental take
of the marbled murrelet and the bank swallow, the Incidental Take Permit goes
on to allow an incidental take of the 13 Unlisted Species in the event any such
species should become a candidate species in the future--i.e., without any
further need for an additional permit.
The permit states: “Because PALCO
has agreed to implement measures pursuant to the Final [Habitat Conservation
Plan] and [Implementation Agreement] that will avoid, and/or minimize and fully
mitigate impacts on the Unlisted Species, this [Incidental Take Permit] shall
become effective as to each Unlisted Species upon its acceptance as a candidate
species . . . provided PALCO complies with the above conditions of
approval. No additional [incidental take
permit] or authorization shall be required by the Department to allow
incidental take of such Covered Species from Covered Activities
. . . .” This provision parallels provisions
within the Implementation Agreement for the Habitat Conservation Plan. The Implementation Agreement contains
“federal assurances” that the federal incidental take permit will be effective
for a species identified in the permit that is not currently listed as
endangered or threatened but that later becomes listed. And the Implementation Agreement contains
“state assurances” to the same effect for the state Incidental Take Permit. We agree with the environmental
plaintiffs that the Department of Fish and Game exceeded its authority in
granting the permit-in-advance for the Unlisted Species. Before we examine the substance of
environmental plaintiffs’ argument, we find it necessary to explain our
rejection of PALCO’s argument that the issue is not ripe for decision. We recognize, of course, that at the present
time, when the Unlisted Species have not yet become candidate species, no
incidental take permit is required at all, and the Incidental Take Permit does
not purport to permit the taking of unlisted species.[xxxiii] (See People
v. Murrison (2002) 101 Cal.App.4th 349, 362-363 [until water restrictions
are actually established, landowner’s claim of a taking is not ripe].) Yet, the ripeness doctrine may be relaxed
when it is clear that the agency will not perform its future duty when the time
for performance arrives. (Young v. Gnoss (1972) 7 Cal.3d 18, 21,
fn. 4 [county clerk announced voter registration would not be accepted].) Here, the Department of Fish and Game has
made clear by the terms of the Incidental Take Permit that the Department will not
require an additional incidental take permit when the time comes and an
Unlisted Species becomes a candidate species entitled to the protections of the
Endangered Species Act. Another flaw in PALCO’s ripeness
argument is that the environmental plaintiffs’ lawsuit is not an action for
traditional mandamus to compel the Department of Fish and Game to perform its
duty under the Endangered Species Act.
If it were, then the ripeness argument might be more persuasive. (See Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158,
169-174.) This lawsuit is an
administrative mandamus action challenging the validity of the Incidental Take
Permit that was issued. The ripeness
doctrine is not violated by our determination that one provision in the
Incidental Take Permit is invalid. The Department of Fish and Game has
never identified any statutory basis for issuance of the permit-in-advance for
unlisted species. Apparently, the notion
of automatic future authorization comes from the Natural Community Conservation
Planning Act (former Fish & Game Code, § 2800 et seq.).[xxxiv] Under that act, the Department of Fish and
Game is expressly empowered to permit the taking not just of listed species but
of “any identified species whose conservation and management is provided for in
a department approved natural communities conservation plan.” (Former Fish & Game Code, § 2835.)[xxxv] In the present case, PALCO requested that the
Habitat Conservation Plan be deemed a “natural community conservation plan” in
order to allow the Department of Fish and Game to authorize the take of
unlisted as well as listed species.
Subsequently, however, the final EIS/EIR reported that the Department of
Fish and Game concluded that the Habitat Conservation Plan did not qualify as a “natural community
conservation plan.”[xxxvi] Nevertheless, despite the absence of any
statutory authority, the Department of Fish and Game included the
permit-in-advance provision in the Incidental Take Permit, while at the same
time acknowledging that litigation might ensue.[xxxvii] The environmental plaintiffs argue
further that the automatic future authorization regarding unlisted species
breaches the Department’s statutory obligation to determine in the future--at
the time the species becomes a candidate species--the two critical
prerequisites for an incidental take permit:
(1) whether the impacts of the taking on the species will be fully
mitigated, and (2) whether the species’ continued existence will be jeopardized
by the taking. (Fish & Game Code, §
2081, subds. (b)(2), (c).) We agree with
the latter assertion.[xxxviii] Before issuing an incidental take
permit, the Department of Fish and Game must find that the species would not be
in jeopardy from a permitted incidental taking.
The Department must determine the adverse impacts upon the species’
capability to survive and reproduce “in light of (1) known population trends; (2) known
threats to the species; and (3) reasonably foreseeable
impacts on the species from other
related projects and activities.” (Fish
& Game Code, § 2081, subd. (c), italics added.) The statute contemplates that the Department
will review the information that is available at the time the Incidental Take Permit is issued. The statute states: “No permit may be issued . . . if
issuance of the permit would jeopardize the continued existence of the species.” (Fish & Game Code, § 2081, subd.
(c).) An automatic permit-in-advance
eliminates consideration of new information concerning population trends,
threats to the species, or impacts from other projects. The state agencies respond with the
contention that the Department of Fish and Game retains the ability to reassess
the jeopardy to a species in the future and to add new protective measures when
an unlisted species becomes a listed species.
The agencies rely on a provision within the Incidental Take Permit that
allows amendment “without the concurrence of PALCO as required by law.”
(Italics added.) Further, the
Department of Fish and Game made its finding of no jeopardy to the continued
existence of any of the Covered Species (including the Unlisted Species)
“based, in part, on the Department’s express authority to amend the terms and
conditions of the It is true that automatic
authorization would not deprive the Department of Forestry of its authority to
review future timber harvest plans.
Under the Forest Practice Rules the Director of the Department of
Forestry may disapprove a timber harvest plan if, among other things, the plan
would harm or jeopardize the existence of a listed species. (FP Rules, § 898.2(d).) However, this separate authority by a separate
agency does not cure the breach of duty by the Department of Fish and Game to
assess the jeopardy to the species before issuing an incidental take
permit. When an incidental take permit
has been issued by federal or state authorities, the Director of Forestry may
approve a timber harvest plan regardless of the jeopardy to a species. (FP Rules, § 898.2(d).) The state agencies contend that the
Department of Fish and Game could suspend or revoke the Incidental Take Permit
if need be. But the Implementation
Agreement calls for suspension or revocation only if PALCO fails to comply with
the conditions of the permit or if a statutory enactment prohibits continuation
of the permit.[xl] In other words, it will take a legislative
enactment to revoke the terms of the Incidental Take Permit. Although we agree with the
environmental plaintiffs that the automatic future authorization is invalid, we
cannot affirm the trial court’s grant of a peremptory writ of mandate to set
aside the Incidental Take Permit in its entirety. The remedy here is to strike the offending
provision, not to invalidate the entire Incidental Take Permit. The Incidental Take Permit expressly
anticipates the possibility of severance of the automatic future authorization
upon judicial invalidation and provides the consequences of such
severance. (Fn. 37, ante.) We will direct the
trial court to grant the environmental plaintiffs’ petition to the extent that
the writ compels the Department of Fish and Game to strike the automatic future
authorization for incidental take of unlisted species.[xli] H.
Violation of Public Trust The Legislature has declared that
the policy of this state is to “encourage the preservation, conservation, and
maintenance of wildlife resources . . . .” (Fish & Game Code, § 1801.) And the Legislature has declared the
Department of Fish and Game to be “trustee” of the fish and wildlife resources
of the state. (Fish & Game Code, §§ 711.7,
subd. (a), 1802.) Both sides in this
dispute have invoked the public trust duties of the Department of Fish and
Game. The environmental plaintiffs argue
that three particular aspects of the Incidental Take Permit constitute an
abandonment by the Department of Fish and Game of its public trust obligations.[xlii] The three challenged aspects pertain to what
the environmental plaintiffs perceive to be an absence of continuing
supervision by the Department of Fish and Game to assure that fish and wildlife
are protected throughout the 50-year term of the Incidental Take Permit. For its part, the Department of Fish and Game
seems to rely on its public trust authority as a basis for assuring that the
Unlisted Species do not come into future jeopardy. (See discussion in section G above.) We reject the underlying premise of
both parties that the Department of Fish and Game has been given
extra-statutory powers by virtue of its status as “trustee” of the fish and
wildlife. Within the same code section
granting trustee status to the Department of Fish and Game, the Legislature has
stated that the policy of wildlife preservation does not bestow “any power to
regulate natural resources or commercial or other activities connected
therewith, except as specifically provided by the Legislature.” (Fish & Game Code, § 1801, subd.
(h).) Thus, the authority of the
Department of Fish and Game is strictly limited to the powers bestowed by
statute. In the present case, by reviewing
PALCO’s application for an incidental take permit and imposing conditions for
its issuance, the Department of Fish and Game was implementing the Endangered
Species Act and thereby fulfilling its statutory trustee duties. (See Betchart
v. Department of Fish & Game (1984) 158 Cal.App.3d 1104.) Whether the Department correctly implemented
the statute is a separate question, but the environmental plaintiffs have not
shown that the three challenged aspects of the Incidental Take Permit violate
the Endangered Species Act or any other statute. At the same time, as we have already
discussed, the Department of Fish and Game has not shown any statutory basis
for issuing an automatic future authorization for unlisted species. The environmental plaintiffs further
rely upon the common law “Public Trust Doctrine,” which is a separate concept
that empowers and obligates the State
to take charge of wildlife resources. (National Audubon Society v. Superior Court (1983)
33 Cal.3d 419, 433-441; see Personal
Watercraft Coalition v. Marin County Bd. of Supervisors (2002) 100
Cal.App.4th 129, 144-145.) There is no basis for the environmental plaintiffs’
assertion that the State has abdicated its public trust responsibilities. With respect to the Headwaters Forest
Project, the State through its administrative agencies negotiated the
Headwaters Agreement and the Implementation Agreement for the Habitat
Conservation Plan, and through the Legislature approved and funded the
project. Moreover, in CEQA, the
Endangered Species Act, the Forest Practices Act, and other statutes, the state
Legislature has established regulatory schemes to protect the state’s wildlife. There is no indication in this record that
wildlife are being harmed by the absence of a regulatory scheme. The environmental plaintiffs’
argument discounts the provisions in the Habitat Conservation Plan for
monitoring of PALCO’s activities. The
Habitat Conservation Plan contains a comprehensive “Mitigation, Monitoring and
Reporting Program.” Pursuant to the
Implementation Agreement, the Department of Fish and Game will be responsible
for monitoring implementation of the Habitat Conservation Plan and the
Incidental Take Permit. Under the
Habitat Conservation Plan, PALCO is required to fund a third-party entity to
monitor not only PALCO’s compliance with but also the effectiveness of the
Habitat Conservation Plan. The monitor
will issue regular reports to the state and federal agencies. The Habitat Conservation Plan also calls for
what is known as “adaptive management,” which allows modification of the
prescriptions as new information becomes available on the effectiveness of
those prescriptions. Adaptive management
is called for with respect to the Northern Spotted Owl Conservation Plan and
the Aquatics Conservation Plan. Furthermore, the Habitat
Conservation Plan and its Implementation Agreement give oversight authority to
the Department of Forestry in its review of future timber harvest plans. All future timber harvest plans must contain
the prescriptions of the Habitat Conservation Plan. V.
Streambed Alteration Agreement Former section 1603 of the Fish and
Game Code sets out a procedure for a streambed alteration agreement (sometimes
referred to as a Section 1603 agreement).[xliii] In brief, the statute requires that before
any person undertakes to substantially divert or obstruct the natural flow of a
river, lake or stream, the person must enter into an agreement with the
Department of Fish and Game. First, the
person must notify the Department of Fish and Game of the streambed diversion
plans, and the Department must then, if the existing fish or wildlife would be
affected, submit to that person its proposals for measures to protect the fish
and wildlife. If the affected person
does not accept the Department’s proposals, the Department must negotiate a
mutual agreement or, if no mutual agreement can be timely reached, the matter
must be put to a panel of arbitrators.
(See generally People v. Murrison (2002)
101 Cal.App.4th 349, 358, 361.) The environmental plaintiffs raise
six claims of error with respect to the procedures followed in connection with
PALCO’s Streambed Alteration Agreement,
asserting that the Department of Fish and Game failed to protect the fish and
wildlife. None of the claims has merit. A.
Notice to the Department The environmental plaintiffs contend
that PALCO failed to fufill the first step of giving notice to the Department
of Fish and Game. This contention is
ludicrous in the face of a
completed Streambed Alteration Agreement.
The record shows that on The environmental plaintiffs further
complain that PALCO did not specify the exact dates and locations of the
diversions or obstructions.
Environmental plaintiffs have confused two distinct notifications. The notification required by statute is a
submission of “general plans sufficient to indicate the nature of a project”
that will divert, obstruct, or change the natural flow of a river, stream or
lake. (Former Fish & Game Code,
§§ 1601, subd. (a), 1603, subd. (a).)
Clearly, the Department of Fish and Game obtained the requisite
information, if not in the letter of October 1998 then from the concurrent
proceedings on the Habitat Conservation Plan and Sustained Yield Plan and the
Incidental Take Permit. The Streambed
Alteration Agreement recites that PALCO’s “submittal of a habitat conservation
plan and sustained yield plan . . . describes the activities PALCO
desires to conduct on the Covered Lands . . . .” The second form of notification is
called for in the Streambed Alteration Agreement itself. After identifying certain Covered Activities,
the agreement requires PALCO to notify the Department of Fish and Game at least
14 days prior to commencing any such activity so that the Department can ensure
that the applicable protective measures are in place. Such notification must include the exact
dates and location of the activity along with the applicable timber harvest
plan number. The EIS/EIR explains that PALCO “has
notified CDFG [the Department of Fish and Game] generally of its proposed
activities. . . . While PALCO has not identified the specific locations and
dates of these proposed activities, standard conditions can be developed to
ensure that these proposed activities, wherever and whenever they may occur, do
not substantially adversely affect such fish and wildlife resources . . .
. The 1603 Agreement would enable PALCO
to conduct specified activities in accordance with the terms and conditions of
the 1603 Agreement, after giving notice to CDFG [the Department of Fish and
Game] of the specific time and location of the proposed activity.” The fact that PALCO did not provide such
exact dates and locations before the Streambed Alteration Agreement was entered
into was entirely consistent with the terms of the agreement and did not
violate the statute. B.
Description of Fish and Wildlife Under the statute, after the person
notifies the Department of its intention to alter a watercourse, the Department
must provide the person with a description of the existing fish or wildlife
that may be substantially affected by the activity along with the Department’s
proposals for protective measures. “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 affected.” (Former Fish
& Game Code, § 1603, subd. (a).)
The environmental plaintiffs assert that the Department of Fish and Game
failed to provide PALCO with a detailed description of the affected fish and
wildlife. This assertion, too, is nonsensical
in the circumstances of this case. The
obvious purpose of the statutory requirement is to enable the affected person
to evaluate the Department’s proposals for protective measures and to enter
into informed and intelligent negotiations with the Department. Here, PALCO was already well aware of the
affected fish and wildlife from the simultaneous proceedings on the Habitat
Conservation Plan and Sustained Yield Plan and on the Incidental Take
Permit. The EIS/EIR contains an extensive
description of the fish and wildlife affected by PALCO’s activities, and the
EIS/EIR was expressly intended to inform the Department of Fish and Game in its
decision whether the fish and wildlife would be adequately protected by the
proposed Streambed Alteration Agreement.
Certainly PALCO never complained that it had insufficient information
before entering into the Streambed Alteration Agreement. Any technical deviation from the statutory
procedure was completely harmless. C.
Protective Measures The Streambed Alteration Agreement
coincided with the Habitat Conservation Plan and Sustained Yield Plan. In fact, the Streambed Alteration Agreement
was made a condition of and incorporated into the operating conservation
programs of the Habitat Conservation Plan.
The Streambed Alteration Agreement added eight pages of protective
measures beyond those set forth in the Habitat Conservation Plan. Nevertheless, the environmental plaintiffs
complain that the Department of Fish and Game failed to submit proposals for
measures necessary to protect the fish and wildlife from all of PALCO’s
activities. It is true that the Streambed
Alteration Agreement does not purport to cover all of PALCO’s activities that
are otherwise governed by the Habitat Conservation Plan. The Streambed Alteration Agreement is limited
to permanent and temporary road crossings and fords. However, the Streambed Alteration Agreement
expressly provides that for watercourse alterations resulting from PALCO’s
other activities, including timber harvesting, PALCO must enter into separate,
future Section 1603 agreements.
Moreover, the Streambed Alteration Agreement provides for amendment as
called for by “ongoing monitoring activities, changed conditions, and new
information.” The environmental
plaintiffs have made no showing that PALCO will undertake any activities
without complying with section 1603. D.
Master Agreement The environmental plaintiffs
complain that the Streambed Alteration Agreement here is a master agreement
broadly covering all of the watersheds on PALCO’s lands. The environmental
plaintiffs seem to contend that the Department should have entered into
separate agreements for each “planning watershed” on the 211,000 acres. There is nothing in the statute to
preclude a master agreement covering more than one watercourse affected by the
landowner’s activities. Nor is there
anything to require an agreement at the “planning watershed” level. As noted above, the Streambed Alteration
Agreement does not purport to cover all of PALCO’s activities and expressly
contemplates future agreements related to PALCO’s timber harvesting. And it specifically provides for future
amendment as called for by ongoing monitoring, changed conditions, and new
information. E.
Conditioned Upon a Permit The Streambed Alteration Agreement
recites that the parties are simultaneously entering into a separate agreement,
along with the Department of Forestry and the federal wildlife protection
agencies, to implement the Habitat Conservation Plan. The Streambed Alteration Agreement provides
that the terms of that so-called Implementation Agreement shall govern. The environmental plaintiffs contend that
this provision violates the limitation in section 1603 that the Department of
Fish and Game “shall not condition the streambed alteration agreement on the
receipt of another state or federal permit.”
(Former Fish & Game Code, § 1603, subd. (c).) The statute was not violated. The Streambed Alteration Agreement was not
conditioned upon PALCO’s obtaining a separate permit. The Implementation Agreement was entered into
simultaneously with the Streambed Alteration Agreement as part of the package
of approvals governing the Headwaters Forest Project. That the two are interrelated did not make
the Implementation Agreement a prerequisite.
In fact, the aim of the Streambed Alteration Agreement is to provide
additional protective measures beyond those called for in the Habitat
Conservation Plan. If anything, the
Streambed Alteration Agreement is a condition to the Habitat Conservation Plan
and the Incidental Take Permit, not the other way around. In any event, the purpose of the
statutory limitation is to protect the landowner and ensure that the streambed
alteration agreement is negotiated promptly.
Here, where a streambed alteration agreement was successfully negotiated
and entered into without any complaint from the landowner concerning delay, the
statutory limitation no longer has any relevance. F.
Findings The environmental plaintiffs argue
that the Department of Fish and Game failed to make any findings to explain its
reasoning for entering into the Streambed Alteration Agreement. The environmental plaintiffs mistakenly rely
on Topanga I, supra, 11 Cal.3d 506,
which holds that an administrative agency rendering an adjudicatory decision
must make findings that “bridge the analytic gap between the raw evidence and
ultimate decision or order.” (Id. at p. 515.) Topanga
I was an
administrative mandamus action for review of the decision of the county board
of supervisors granting a variance. The
governing statute was section 1094.5 of the Code of Civil Procedure, which
provides for review of an administrative proceeding that is quasi-judicial
character--one that required a hearing and a determination of facts. The Supreme Court reasoned that agency
findings were compelled to enable judicial review for substantial evidence
under section 1094.5 of the Code of Civil Procedure. (Topanga
I, supra, 11 Cal.3d at pp.
514-517.) As we have already explained, we are
not reviewing the administrative decision for substantial evidence. Moreover, a streambed alteration agreement is
not an adjudicatory decision that requires a hearing or factual findings. As its name denotes, a streambed alteration
agreement is a contract entered into by the Department of Fish and Game
pursuant to its executive functions.
Section 1094.5 of the Code of Civil Procedure does not govern our review
of the Streambed Alteration Agreement; our review is by traditional mandamus
(Code Civ. Proc., § 1085). The question
on traditional mandamus is whether the agency’s decision was arbitrary,
capricious, or totally lacking in evidentiary support or the agency failed to
follow the procedures required by law. (Jackson v. Gourley (2003) 105
Cal.App.4th 966, 969-970; Catalina Investments,
Inc. v. Jones (2002) 98 Cal.App.4th 1, 6.) The environmental plaintiffs
erroneously assert that the following language within the statute mandates a
finding by the Department of Fish and Game:
“It is unlawful for any person to commence any activity affected by this
section until the department has found
that it will not substantially adversely affect an existing fish or wildlife
resource . . . .”
(Former Fish & Game Code, § 1603, subd. (a); italics
added.) Environmental plaintiffs ignore
the remainder of the sentence:
“. . . or until the
department’s proposals, or the decisions of a panel of arbitrators, have been incorporated into the activity.” A finding is not required when, as here, an
agreement is negotiated containing protective measures (i.e., when the
department’s proposals are accepted). The Streambed Alteration Agreement
here recites that the Department of Fish and Game determined that specific
measures were necessary to protect the fish and wildlife from possible
substantial adverse effects. And the
Streambed Alteration Agreement requires PALCO to incorporate certain detailed
protective measures into its activities.
No separate findings were required.
The Department of Fish and Game followed the procedures required by law. VI. Preparation of Administrative Record A. Completeness of the Administrative Record In the trial court proceedings, the
environmental plaintiffs requested and the trial court ordered the state
agencies (Department of Forestry and Department of Fish and Game) to prepare
and certify the administrative record pursuant to section 21167.6 of the Public
Resources Code.[xliv] Simultaneously, the Steelworkers similarly
requested preparation of the administrative record pursuant to the
Administrative Procedure Act (Gov. Code, § 11523), and the trial court so
ordered. After some dispute over the
contents of the administrative record, the trial court accepted the state
agencies’ Third Amended Certifications of Administrative Record. Those certifications declare that the administrative
record is a complete record of all “information taken into account” by the
agencies in their administration determinations. Subsequently, the trial court ruled
that evidence outside the certified administrative record would be admitted at
trial to assess the accuracy and completeness of the administrative record as
certified. The trial court also allowed
the environmental plaintiffs and the Steelworkers to amend their mandamus
petitions to include allegations that the Department of Forestry and the
Department of Fish and Game failed to prepare a complete administrative
record. At trial, then, the court took
testimony and accepted documentary evidence concerning the completeness of the
administrative record, ultimately finding that certain written materials
submitted during the public comment period were absent from the certified
administrative record and should have been included. The environmental plaintiffs and the
Steelworkers now argue that the omissions from the certified administrative
record constitute a failure by the state agencies to proceed in a manner
required by law. Defendants (the state
agencies and PALCO), on the other hand, argue that the trial court erred in
admitting evidence outside the administrative record. We reject both arguments. For their part, the environmental plaintiffs and the
Steelworkers have failed to distinguish between two separate activities: (1) an agency’s preparation of the record for
purposes of judicial review--essentially a ministerial act--, and (2) the
agency’s underlying decision-making. The
substantive task for the court on administrative mandamus is to evaluate what
happened in the administrative
agency’s decision-making. (Code Civ.
Proc., § 1094.5, subds. (a), (b).) A
ruling on the agency’s compilation of the administrative record, in contrast,
is a decision on the procedure to be employed in the trial court. (See At the same time, we reject defendants’ objections to
the admissibility of evidence outside the certified administrative record. Defendants rely upon the rule that for purposes of reviewing the administrative
decision the trial court is ordinarily confined to a review of the
administrative record. (Code Civ. Proc.,
§ 1094.5, subd. (e); In an administrative mandamus proceeding, the trial
court may order all or part of the record of proceedings before the
administrative body to be filed with the court.
(Code Civ. Proc., § 1094.5, subd. (a).) The trial court so ordered here, directing
the state agencies in the environmental plaintiffs’ lawsuit to prepare and
certify separate records for each administrative approval in accordance with
Public Resources Code section 21167.6
and directing the Department of Forestry in the Steelworkers’ lawsuit to
prepare and certify a “complete” record pursuant to the Administrative
Procedure Act . Public Resources Code
section 21167.6 mandates inclusion of all written evidence or correspondence
related to the project and any other written materials included in the agency’s
files. (Pub. Resources Code, § 21167.6,
subd. (e)(7), (10).) The list of what
must be included in the administrative record is so broad that one court has
said that the record must include “pretty much everything that ever came near a
proposed development or to the
agency’s compliance with CEQA in responding to that development.” (County
of Orange v. Superior Court, supra, 113 Cal.App.4th at p. 8.)[xlvi] The trial court could properly investigate whether
the Third Amended Certifications of Administrative Record submitted by the
state agencies did in fact include all the written evidence and other
papers. (See County of Orange v. Superior Court, supra, 113 Cal.App.4th 1; see Buckhart v. Residential Rent Etc., Bd. (1988)
197 Cal.App.3d 1032, 1036.) Although the
evidence received went beyond the certified
administrative record, the evidence was limited to documents that were before
the state agencies in conjunction with their administrative determinations and
review of the EIS/EIR. We find no error
in the trial court’s efforts to determine the completeness of the
administrative record as certified by the state agencies. (County
of Orange v. Superior Court, supra, 113 Cal.App.4th 1; see Western States Petroleum Assn. v. Superior
Court (1995) 9 Cal.4th 559, 575, fn. 5 [dictum: extra-record evidence might be admissible to
determine accuracy of administrative record].)
The omissions from the certified administrative
record are of no consequence in this appeal.
The trial court received into evidence all the missing documents and
decided that the documents should have been included in the administrative
record. The trial court’s admission of
the missing documents into evidence, together with its finding that the
documents should have been included in the administrative record, constituted
an augmentation of the administrative record as certified. The missing documents have been transmitted
to us as exhibits for our independent review.
Any errors in the certifications of the administrative record were
cured. B.
Failure to Consider the Missing Materials The environmental plaintiffs and the Steelworkers
have raised different arguments grounded on the omissions from the certified
administrative record. The environmental
plaintiffs argue that because certain comments and materials submitted by the
public during the public comment period were not included in the EIS/EIR the
omissions from the administrative record reflects a failure by the state
agencies to respond to public comments on the EIS/EIR. We will discuss that argument in part The Steelworkers take a different tack. They expressly disclaim any argument that the
omissions from the certified administrative record constitute a failure by the
Director of Forestry to respond to the issues raised during the public comment
period on the Sustained Yield Plan. The
Steelworkers argue that because the Department of Forestry certified in the
trial court that the administrative record was a complete record of all
documents taken into account in the approval of the Sustained Yield Plan, the
Director necessarily did not take the omitted documents into account. 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 missing materials fall into three
categories. The first category consists of a set of scholarly articles submitted on
The second
category consists of some written comments submitted at public hearings on
the draft EIS/EIR. The testimony showed
that the missing materials were inadvertently omitted from the certified
administrative record. The documents
were received and reviewed by Foster Wheeler Corporation, the consultant hired
by the Department of Forestry to collect and categorize public comments for
response. Foster Wheeler considered the
documents to be duplicative of comments already responded to. Foster Wheeler mistakenly did not include the
materials in the compilations of public comments in the final EIS/EIR. They were not discovered by the Department of
Forestry until after the Third Amended Certification of Record had been filed
with the court. Norman Hill, chief
counsel for the Department of Forestry, was in charge of preparing the
administrative record. He reviewed the
missing documents and found them to be duplicative of comments already in the
EIS/EIR. Nevertheless, Mr. Hill affirmed
that the documents should have been included in the administrative record. The third
category of missing documents consists of some written public comments
received in January and February 1999--after the close of the public comment
period on the EIS/EIR. We agree with the
Steelworkers that the comments were timely.
The public comment period for the draft EIS/EIR closed on The Steelworkers have failed to
demonstrate any prejudice resulting from the absence of the documents from the
certified administrative record--even if the Department of Forestry failed to
take them into account. The 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.[xlvii] Nor do the Steelworkers indicate how any of
the missing materials relate to the substantive issues raised in this appeal or
could have affected the decision by the Director to approve the Sustained Yield
Plan. ENVIRONMENTAL REVIEW The environmental plaintiffs raise
numerous challenges to the EIS/EIR, asserting that the EIS/EIR violates CEQA
and its implementing Guidelines. (See
fn. 1, ante.) CEQA sets up two standards of review: (1) When the administrative agency was
required to hold a hearing and take evidence, Public Resources Code section
21168 applies, and judicial review proceeds in accordance with section 1094.5
of the Code of Civil Procedure. (2) When
no hearing was required in the administrative agency, Public Resources Code
section 21168.5 applies, and the matter is treated as an ordinary mandamus
proceeding under section 1085 of the Code of Civil Procedure. (Laurel
Heights Improvement Assn. v. Regents of University of California (Laurel
Heights I) (1988) 47 Cal.3d 376, 392, fn. 5; Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d
1446, 1456, disapproved on another point in Western
States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at pp. 570, fn.
2, 576, fn. 6.) Under Public Resources
Code section 21168.5, judicial review is limited to whether there was an abuse
of discretion--i.e., a failure to proceed in a manner required by law or a
decision unsupported by evidence. The
distinction between administrative mandamus (Code Civ. Proc., § 1094.5) and
traditional mandamus (Code Civ. Proc., § 1085) is rarely significant. In both cases the issue is essentially the
same--whether the agency prejudicially abused its discretion. (Laurel
Heights I, supra, 47 Cal.3d 376;
Eller Media Co. v. Community Redevelopment Agency (2003) 108 Cal.App.4th 25, 31.)[xlviii] In the present case, the lead agency
on the EIS/EIR was the Department of Forestry, which was required to hold a
public hearing on the Sustained Yield Plan.
Our review of the Department of Forestry’s compliance with CEQA is
governed by section 21168 of the Public Resources Code and proceeds pursuant to
section 1094.5 of the Code of Civil Procedure.
(See Sierra Club v. State Bd. of
Forestry, supra, 7 Cal.4th at p. 1235 [review of timber harvest plan is by
administrative mandamus]; Friends of the
Old Trees v. Department of Forestry & Fire Protection, supra, 52
Cal.App.4th at p. 1392 [same].) Hence,
the trial court and the appellate court apply the same scope and standard of
review. (Neighbors of Cavitt Ranch v. The role of the court in reviewing a
challenged EIR is not to pass upon the correctness of the EIR’s environmental
conclusions, but only upon its sufficiency as an informational document. (Laurel
Heights I, supra, 47 Cal.3d at p. 392; Neighbors
of Cavitt Ranch v. County of Placer, supra, 106 Cal.App.4th at p.
1100.) “When assessing the legal
sufficiency of an EIR, the reviewing court focuses on adequacy, completeness
and a good faith effort at full disclosure.
[Citation.] ‘The EIR must contain
facts and analysis, not just the bare conclusions of the agency.’ [Citation.]
‘An EIR must include detail sufficient to enable those who did not
participate in its preparation to understand and to consider meaningfully the
issues raised by the proposed project.’
[Citation.] Analysis of environmental
effects need not be exhaustive, but will be judged in light of what was
reasonably feasible. . . .” (Association of Irritated Residents v. Noncompliance with CEQA’s procedural
and informational requirements is not per se reversible. Prejudice must be shown. (Pub. Resources Code, § 21005, subd.
(b).) The existence of prejudice does
not turn on whether the information would have altered the agency’s ultimate
decision to approve the project. (Pub.
Resources Code, § 21005, subd. (a); Neighbors
of Cavitt Ranch v. With these principles in mind, we
turn to the environmental plaintiffs’ multiple challenges to the certification
of the EIS/EIR by the Department of Forestry, as lead agency. The environmental plaintiffs’ arguments fall
into five main categories. A.
Incomplete Discussion The environmental plaintiffs do not
claim that the EIS/EIR completely omits any requisite elements. They contend that the EIS/EIR is
insufficiently detailed in several respects:
the descriptions of the project and the environmental setting ; the
analysis of the adverse environmental impacts ; and the discussion of the cumulative environmental effects .[li] As we have already said, in the face of such
a claim, we do not look for an exhaustive analysis in the environmental
document; we look instead for adequacy, completeness and a good faith effort at
full disclosure. (County of Amador v. El Dorado County Water Agency, supra, 76
Cal.App.4th at p. 954.) Project Description. Although there is no single section within
the EIS/EIR labeled “project description,” the introductory paragraph is headed
“Introduction—The Project Under Consideration.”
The chapter on “Alternatives” includes a description of “The Proposed
Action/Proposed Project.” The full text
of the EIS/EIR sets out all the factors required by section 15124 of the
Guidelines: the location and boundaries;
the purpose of the project; the project’s general characteristics; the agencies
that will use the EIS/EIR in their decision-making; the permits and approvals
needed to implement the project The environmental plaintiffs
complain that certain particular items are missing from the EIS/EIR. They are simply wrong. The species
covered by the Incidental Take Permits are listed in the EIS/EIR and identified
by status as federal or state endangered, threatened, etc. The activities
covered by the Habitat Conservation Plan and Incidental Take Permit are
summarized in the text of the EIS/EIR and set out in detail in Appendix P to
the EIS/EIR. Environmental plaintiffs seem to have confused the long-term sustained yield with the level
of harvest. The long-term sustained
yield is a single figure that reflects the yield to be achieved at the end of
the planning horizon. The projected timber harvest
levels are given for each of the 12 decades. Environmental Setting. The Guidelines require a description of the
physical environmental conditions as they exist before the project so as to
allow a determination of whether an impact is significant. (Guidelines, § 15125(a).) The EIS/EIR describes the existing conditions
for each potential environmental impact such as fish, wildlife, vegetation,
watersheds, wetlands, geology, soils, land use, economic conditions, and
cultural factors. The environmental plaintiffs
complain that the EIS/EIR examines the Watershed Assessment Areas on PALCO’s
lands rather than smaller “planning watersheds.” The environmental plaintiffs rely upon the
Forest Practice Rules, which specify the planning watershed as the level of
analysis for a sustained yield plan.
(See discussion in part III.B.(4), ante.) However, there is nothing in CEQA or the
Guidelines to require examination in an EIR at the planning watershed
level. The EIS/EIR explains that the
information then available was at the larger level of Watershed Assessment
Areas. The EIS/EIR contains a
description of the watershed areas based on the information that was
known. Under the Habitat Conservation
Plan, PALCO must complete a comprehensive watershed analysis within five years,
and site-specific prescriptions will be implemented in future timber harvest
plans. The environmental plaintiffs
complain that the description of the watershed areas omits the Adverse Impacts. The environmental plaintiffs assert that the
EIS/EIR fails to analyze the adverse impacts arising from the activities that
will occur within the Marbled Murrelet Conservation Areas (MMCAs). The environmental plaintiffs have taken too
narrow a view of the project. The
project under consideration in the EIS/EIR consists of activities related to
timber harvesting on PALCO lands as defined and constrained by the Sustained
Yield Plan and Habitat Conservation Plan.
The EIS/EIR identifies the activities to be undertaken by PALCO,
including the activities within the MMCAs.
The description within the EIS/EIR of the adverse environmental impacts
from the proposed project includes the impacts on the marbled murrelet. The MMCAs are areas that PALCO will
continue to own (unlike the areas sold to the state and federal governments)
but that will be unavailable for timber harvesting for the 50-year duration of
the incidental take permits. While certain
conservation activities are permitted within the MMCAs (such as storm-proofing
of roads, fire suppression, and rock quarry operations), those activities are
considered protective of or beneficial to the marbeled murrelets. Indeed, the creation of the MMCAs is one of
the mitigation measures for the project, designed to protect the
vegetation and wildlife and to offset the impacts from activities on other
areas of PALCO’s lands. Any proposed
conservation activities conducted within the MMCAs must be reviewed by the
federal wildlife agency and by the Department of Fish and Game, which may
impose protective measures. The environmental plaintiffs also
complain that the EIS/EIR fails to discuss the adverse impacts from the
Streambed Alteration Agreement. Again,
they take a too narrow focus. The
environmental plaintiffs rely on a statement in the EIS/EIR that the streambed
diversions by PALCO could affect the fish and wildlife. What environmental plaintiffs ignore is that
the very purpose of the Streambed Alteration Agreement is to mitigate those
affects. The Streambed Alteration Agreement is one of the constraints on
PALCO’s activities, setting up additional protective measures for PALCO’s
stream crossings and fords that go beyond the Habitat Conservation Plan. The Streambed Alteration Agreement is discussed in the EIS/EIR. And the impacts on fish and wildlife are
extensively analyzed in the EIS/EIR. Cumulative Effects. The Guidelines require a discussion of the
cumulative impacts of the project. (Guidelines, § 15130.) The EIS/EIR contains a discussion of
cumulative effects with respect to each potential environmental impact--e.g.,
air quality, timber resources, watersheds, fish, and wildlife. Contrary to the environmental plaintiffs’
assertions, the discussion of the cumulative effects covers the marbled
murrelet, the northern spotted owl, and coho salmon. The environmental plaintiffs contend
that the cumulative effects analysis fails to examine the timber harvest plans
approved in the past for PALCO’s harvesting activities. We find no error. The analysis of cumulative effects
must include the impacts of both the project under review and relevant past,
present, and future projects. (Communities for a Better Environment v.
California Resources Agency (2002) 103 Cal.App.4th 98, 119.) Here, the EIS/EIR employs the appropriate
standard, examining the results “from the incremental impact of direct and
indirect effects when combined with other, related or unrelated past, present,
and reasonably foreseeable future management actions.” The EIS/EIR examines the history of logging
on PALCO’s lands going back even before timber harvest plans were
required. The EIS/EIR states: “Timber harvest practices were not regulated
in riparian zones until the 1970s; thus there were more than 120 years of human
activity and 50 to 70 years of intensive harvest before mandated consideration
of streamside protection.” The analysis of cumulative effects,
like other aspects of an EIR, is subject to standards of practicality and
reasonableness. (Guidelines, §
15130(b).) The Public Review Draft of
the Sustained Yield Plan contains a list within the analysis of long-term
sustained yield of all active (not yet harvested) timber harvest plans,
covering about seven percent of PALCO’s lands.
Obviously, a list of all past
timber harvest plans approved on PALCO’s lands would have been unwieldy,
impractical, and of no reasonable use. In any event, the Guidelines call
for one of two approaches on the cumulative effects analysis--either a list of past, present, and probable
future projects or a summary of projections
contained in prior planning documents.
(Guidelines, § 15130(b)(1)(A), (B).)
The EIS/EIR explains that a “projection approach” was used: “Cumulative effects for the proposed actions
are considered primarily in relationship to other land uses and permitted
activities in the watersheds within which PALCO has ownership (i.e., a
projection rather than a list approach).”
The EIS/EIR examines the project in light of an existing federal
recovery plan for the marbled murrelet
and a federal forest plan for the northern spotted owl and the coho
salmon. Finally, of course, the cumulative
environmental impacts will be analyzed in future timber harvest plans, as we
have already discussed. Deferring such
analysis does not violate CEQA. (Al Larson Boat Shop, Inc. v. Board of Harbor
Commissioners, supra, 18 Cal.App.4th at pp. 746-747.) B.
No Project Alternative Under the Guidelines, an EIR must
discuss, along with the environmental effects of the proposed project, a range
of reasonable alternatives to the project.
(Guidelines, § 15126.6(a).)
“An EIR need not consider every conceivable alternative to a
project. Rather it must consider a
reasonable range of potentially feasible alternatives
. . . .” (Guidelines, §
15126.6(a).) The alternative of “no
project” must also be evaluated, along with its impact. (Guidelines, § 15126.6(e)(1).) Here, the EIS/EIR contains a 69-page
chapter on “Alternatives,” examining three alternatives to the Headwaters
Forest Project. The EIS/EIR discusses a
“no project” alternative—i.e., not proceeding with the Headwaters Agreement,
the land transfers, the Habitat Conservation Plan, the incidental take permits,
and the Streambed Alteration Agreement.
Under that no-project alternative, timber harvesting would proceed under
timber harvest plans as reviewed plan-by-plan.
Environmental plaintiffs complain that the EIS/EIR did not consider the
alternative of disapproving the incidental take permits so that no logging
would be permitted on PALCO’s lands. We
reject the complaint for several reasons. The environmental plaintiffs
presuppose that if the incidental take permits were denied, no logging would be
allowed because the activities would constitute a “take” of protected wildlife
species. Yet, the analysis of the
no-project alternative in the EIS/EIR concludes to the contrary that the
potential for a take of protected species would be evaluated in the individual
timber harvest plans and that harvesting would be allowed, albeit with no take.[lii] Within the context of this case, the
“no project” alternative required by the Guidelines is “the continuation of the
existing plan, policy or operation into the future.” (Guidelines, § 15126.6(e)(3)(B).) The analysis of the “no project” alternative
is a projection of “what would reasonably
be expected to occur in the foreseeable future if the project were not
approved . . . .”
(Guidelines, § 15126.6(e)(3)(C), italics added.) PALCO’s lands are zoned as Timberland
Production Zone under the California Timberland Productivity Act (Gov. Code,
§ 51110 et seq.). For such lands,
timber operations are statutorily “expected to occur.” (Gov. Code, § 51115.1, subd. (b); Big Creek Lumber Co. v. Finally, it bears emphasizing that
Alternative No. 2 (the proposed Headwaters Project) was found to be more
environmentally beneficial than the no project alternative. Alternative No. 2 imposes more land
management requirements, preserves more timber land, and provides more
protection for fish and wildlife and the watersheds. Another alternative examined in the EIS/EIR,
Alternative No. 4, would have established an even larger 63,000-acre no-harvest
reserve. And Alternative No. 3, which
would not have allowed any old-growth harvesting, was actually found to be
“environmentally superior.” In reviewing an EIR, we do not pass
on the correctness of the environmental conclusions. Nor can we substitute our judgment for that
of the governmental bodies. CEQA does
not, indeed cannot, guarantee that governmental decisions will always favor
environmental considerations. (Citizens of Goleta Valley v. Board of
Supervisors (1990) 53 Cal.3d 553, 564; Laurel
Heights I, supra, 47 Cal.3d at p. 393.) C.
Feasible Mitigation Measures CEQA requires an EIR to consider and
discuss feasible measures to minimize each significant adverse environmental
impact from the proposed project. (Pub.
Resources Code, § 21000, subd. (b)(3); Guidelines, § 15126.4.) The EIS/EIR contains a complete discussion of
the protective measures in the Habitat Conservation Plan and concludes that the
measures will result in environmental effects that are less than significant. (1) Aquatics Conservation Plan One part of the Habitat Conservation
Plan is the Aquatics Conservation Plan, which sets up a program designed to
maintain or achieve over time a properly functioning aquatic habitat. The “management objectives” portion of the
Aquatics Conservation Plan identifies “target” habitat variables for a
reasonably healthy aquatic habitat, such as water temperature, canopy cover,
sediment, and the presence of large woody debris. The discussion states that “not all variables
will be attainable over the life of the Habitat Conservation Plan regardless of
PALCO’s efforts. . . . For this reason, and because habitat
conditions are not static, the specific habitat variables are not enforceable
standards under this Plan.” Relying on the quoted language
above, the environmental plaintiffs complain that the Aquatics Conservation
Plan is inadequate because the measures are conceded to be unachievable. We do not so read the Aquatics Conservation
Plan. The Aquatics Conservation Plan calls
for a series of land management prescriptions, such as buffer zones, road
management, and hillslope management, as well as site-specific prescriptions to
be developed after the watershed analysis.
The Plan includes a monitoring program to assess the effectiveness of
those prescriptions as to each habitat variable and to examine the trend toward
a healthy aquatic habitat. The Plan also
calls for adaptive management, which allows the Aquatics Conservation Plan to
be changed in response to a future determination that the prescriptions have
not been effective in moving toward properly functioning aquatic habitat. The EIS/EIR acknowledges that the
fish populations are facing harm from other factors beyond the proposed
project: “The target conditions are
neither all-inclusive, nor do they provide total optimum conditions for
maintaining or recovering coho salmon populations.[[liii]] They do not address other factors such as
predator-prey interactions, disease, ocean conditions, sport or commercial
harvest, or food availability that may also significantly affect survival of
coho salmon.” The evaluation in the
EIS/EIR states: “Even with conditions
meeting requirements for a properly functioning aquatic system, however, there
is no certainty that current [fish] populations will be maintained or
recover.” The EIS/EIR concludes that
“[o]verall, . . . on a landscape level over the 50-year period of the
Incidental Take Permit, the prescriptions would result in effects that are less
than significant. Thus, over the period
of the [Habitat Conservation Plan], a trend toward properly functioning aquatic
conditions would be established.” (2)
Geologic Impacts The environmental plaintiffs
complain that no mitigation measures were provided for the geologic impacts
identified in the EIS/EIR. The complaint
is meritless. The EIS/EIR found no
significant adverse impacts on the geological or mineral resources; hence, no
mitigation measures were called for. The EIS/EIR contains a separate
chapter on soils and geomorphology, which includes the mitigation measures of
the Habitat Conservation Plan. The
environmental plaintiffs point to criticisms of that section of the draft
EIS/EIR voiced by the Department of Conservation, Division of Mines and
Geology. But that criticism contains no
proposals for any mitigation measures.
At most, the Division of Mines and Geology supported the requirement
that timber harvest plans address sediment loads on a site-specific basis. (3)
Deferral to Watershed Analysis The environmental plaintiffs
additionally argue that the mitigation measures in the Habitat Conservation
Plan are inadequate because they defer mitigation and specific prescriptions
until after the future watershed analysis is complete. The argument is unsound. Deferring final design details of a
project otherwise described until after approval of the project does not
violate CEQA. (Dry Creek Citizens Coalition v. County of Tulare (1999) 70
Cal.App.4th 20, 34-36.) Likewise,
deferring study of specific impacts is permitted within the concept of
“tiering.” (Guidelines,
§ 15152.) “A first tier EIR may
defer for future study specific impacts of individual projects that will be
evaluated in subsequent second-tier EIRs.”
(Koster v. County of San Joaquin,
supra, 47 Cal.App.4th at p. 37.) And
one court has recognized that formulating precise mitigation measures at the
time of project approval may be infeasible or impractical and may be deferred: “In such cases, the approving agency should
commit itself to eventually working out such measures as can be feasibly
devised, but should treat the impacts in question as being significant at the
time of project approval. Alternatively,
. . . where practical considerations prohibit devising [mitigation] measures
early in the planning process, . . . the agency can commit itself to eventually
devising measures that will satisfy specific performance criteria articulated
at the time of project approval. Where future
action to carry a project forward is contingent on devising means to satisfy
such criteria, the agency should be able to rely on its commitment as evidence
that significant impacts will in fact be mitigated.” (Sacramento
Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-1029,
quoting from Remy et al., Guide to the Cal. Environmental Quality Act (1991 ed.) pp. 200-201; see (1999 ed.)
at pp. 427-430.) The environmental plaintiffs contend
that the rule of We disagree that no specific
criteria were established for future mitigation measures. The Habitat Conservation Plan requires the
watershed analysis to follow the objective criteria of the State of Washington
Department of Natural Resources methodology.
The future prescriptions are to be based on the matrix of conditions for
a properly functioning aquatic habitat devised by the National Marine and
Fisheries Service. The maximum and
minimum limits for post-watershed prescriptions are given in the Habitat
Conservation Plan. In any event, we do not read the two
alternatives identified in D.
Responses to Comments The final EIR must respond to the
public comments received during the review period. (Pub. Resources Code, § 21091, subd. (d)(2);
Guidelines, § 15088.) The responses
must reflect a “good faith, reasoned analysis” of the significant environmental
issues raised. (Guidelines,
§ 15088(c).) Here, the final
EIS/EIR contains over 300 pages of written responses to over 16,000 written
comments received. The environmental
plaintiffs argue that certain responses to certain comments were
inadequate. But the environmental
plaintiffs have not identified exactly which responses are challenged, nor have
they directed our attention to where in the record the assertedly inadequate
responses are found. We deem the
argument waived. The environmental plaintiffs
complain that the response given to one commenter, Dr. Leslie Reid, fails to
include a scientific report (on The environmental plaintiffs further
contend that the EIS/EIR is defective because certain comments and materials
submitted by the public were not included in the administrative record as
certified by the state agencies. As we
have already discussed in part VI above, the preparation of the record for
purposes of judicial review is completely distinct from the state agencies’
compliance with CEQA in their approval of the EIS/EIR. The question before us is the latter--whether
the EIS/EIR is adequate as an informational document. As we have already detailed, the missing materials
fall into three categories. The first is
a set of scholarly articles that are not themselves comments on the EIS/EIR but
are reference materials that were cited in comment letters that had been
previously submitted by seven particular individuals. The comment letters are in the certified administrative record and were responded to in
the final EIS/EIR. The supporting
articles were not required to be included in the EIR. (See Guidelines, § 15148 [scientific
articles used in preparation of EIR are not to be included in the EIR].) The second category consists of some written comments
submitted at public hearings on the draft EIS/EIR. We have already explained that the testimony
showed that the missing materials were inadvertently omitted from the certified
administrative record. The environmental
plaintiffs have failed to demonstrate any prejudice resulting from the absence
of the comments from the EIS/EIR--even if the Department of Forestry failed to
take them into account or make a response.
The environmental plaintiffs do not dispute the testimony that the
missing documents were in fact reviewed prior to release of the final
EIS/EIR. Nor do they dispute that the
missing materials were duplicative of other comments that were responded to in
the final EIS/EIR. CEQA requires
responses to significant issues
raised by public comments, not responses to particular individuals. (Pub. Resources Code, § 21091, subd.
(d)(2)(A); Guidelines, § 15088.) The third category of missing documents
is a set of written public comments submitted in January and February
1999--after the close of the public comment period on the EIS/EIR--mostly
consisting of criticisms of the responses made in the final EIS/EIR to comments
on the draft EIS/EIR. Although we have
accepted that the comments were timely responses to the Sustained Yield Plan,
the comments were untimely under CEQA, and, as such, did not require a
response.[liv] (Pub. Resources Code, § 21091, subd.
(d)(1); Guidelines, § 15088(a).) E.
Findings CEQA requires the public agency to
make certain findings before approving a project whenever the EIR identifies
one or more significant environmental impacts.
The agency must find that changes were incorporated into the project to
mitigate or avoid the significant environmental impacts or that mitigation
measures were infeasible. (Pub.
Resources Code, § 21081; Guidelines, § 15091.) Coho Salmon. The EIS/EIR identifies the impacts on coho
salmon. The EIS/EIR concludes that
“[o]verall, . . . the prescriptions [of
the Habitat Conservation Plan] would result in effects that are less than
significant. Thus, over the [50-year]
period of the The environmental plaintiffs
complain that the Department of Forestry, as lead agency, made no findings on
coho salmon, though the Department of Fish and Game, as responsible agency,
did. Environmental plaintiffs are
wrong. The Department of Forestry found
that the effects on the coho salmon had been minimized and mitigated to a level
less than significant by the Habitat Conservation Plan and Sustained Yield
Plan.[lv] Herbicides. The EIS/EIR concludes that “the effects of
herbicide use on wildlife and aquatic species and their long-term persistence
or broad accumulation effects are uncertain.”
Further, the EIS/EIR states:
“Given existing uncertainty, the cumulative effects of herbicide use
over the length of the permit period may possibly result in significant
effects.” The environmental plaintiffs
complain that the findings of the two state agencies are inconsistent. The Department of Forestry found that the use
of herbicides would not have a significant effect on the environment, but
nevertheless required certain mitigation measures as conditions of approval of
the Sustained Yield Plan and the EIS/EIR.
The Department of Fish and Game made slightly different findings--that
some herbicides could potentially impact some aquatic species--and the Department
adopted mitigation measures to minimize the impact. The differences between the agencies’
findings do not render the finding of the Department of Forestry inadequate. Other Species. The environmental plaintiffs additionally
contend that both state agencies failed to make findings with respect to
certain wildlife species, even though the EIS/EIR identified significant
environmental impacts. The contention is
not borne out by the record. The EIS/EIR concludes that with the
prescriptions of the Habitat Conservation Plan all environmental effects on the
wildlife would be less than significant.
This conclusion is specifically applicable to the northern spotted owl,
the DISPOSITION The judgment granting a peremptory
writ of mandate is reversed. The matter
is remanded with directions to enter a judgment consistent with this opinion,
denying the Steelworkers’ petition in all respects and denying the environmental
plaintiffs’ petition in all respects except to compel the Department of Fish
and Game to strike the provision in the Incidental Take Permit regarding
automatic authorization for incidental take of unlisted species. Costs to appellants. CONCURRING Stevens, J. Gemello, J. FOOTNOTES * Environmental Protection Information Center
v. California Department of Forestry and Fire Protection (A105391); United Steelworkers of America v.
California Department of Forestry and Fire Protection (A104830); United Steelworkers of America v.
California Department of Forestry and Fire Protection (A105388). *
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is
certified for publication with the exception of parts VI and [i] Under
the National Environmental Policy Act, the environmental review document is an
environmental impact statement (EIS), while under California Environmental
Quality Act the document is called an environmental impact report (EIR). The administrative regulations promulgated to
implement CEQA (Cal. Code Regs., tit. 14, § 15000 et seq., hereafter
Guidelines) expressly provide for cooperation with federal agencies in the
environmental review process and preparation of a joint EIS/EIR. (See generally Guidelines,
§§ 15220-15226.) [ii] Also
named as a plaintiff in the Steelworkers’ lawsuit is an individual, Donald
Kegley. For the sake of simplicity, we
will refer to the plaintiffs in that second lawsuit collectively as “the
Steelworkers.” [iii] As we
discuss in part V.F. below, the decision by the Department of Fish and Game to
enter into the Streambed Alteration Agreement is not governed by Code of Civil
Procedure section 1094.5. [iv] When
an administrative decision affects a fundamental vested right the roles are
different. The trial court exercises its
independent judgment of the administrative record and reweighs the facts
underlying the administrative decision.
The appellate court focuses on the trial court’s findings to determine
whether the trial court’s findings are supported by substantial evidence. (Bixby
v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) [v] In a
separate agreement relating to the enforcement of AB 1986, PALCO agreed to
comply with the interim streambed protections until the watershed analysis is
completed and site-specific prescriptions have been established. The interim
restrictions include riparian management zones (or buffer zones): (1)
For Class I streams, 170-foot-wide buffer zone with 30-foot restricted
entry band. (2) For Class II streams, 130-foot-wide buffer
with 30-foot restricted entry band. Only
selective harvesting is allowed and only in the outer bands. Inner bands are no-cut areas that will always
be preserved. After the watershed
analysis, the interim buffer zones may be modified but must be maintained at a
minimum of 30 feet on each side of Class I or Class II streams. [vi] All
further references to the “FP Rules” are to sections of title 14 of the
California Code of Regulations. [vii] The
Sustained Yield Plan is a creature of the administrative regulations, but the
Legislature has acknowledged its existence (Pub. Resources Code,
§ 4551.3). [viii] The
three-step review process for a sustained yield plan is not quite the same as
the review process for a timber harvest plan (FP Rules, §§
1037.1-1037.10). (See Ebbetts Pass Forest Watch v. Department of
Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, 1339-1342
[timber harvest plan review].) [ix] The
comments from other agencies were compiled in February 1997, and PALCO
submitted responses thereto. In August
1997, PALCO submitted a revised “Agency Review Draft” that was combined with
the Habitat Conservation Plan. As defendants acknowledge, the circulation of a draft
Sustained Yield Plan to other agencies prior to the release for public review
is not expressly called for by the Forest Practice Rules. The Forest Practices Rules seem to
contemplate review by other agencies after
the Sustained Yield Plan is released for public review. (FP Rules, § 1091.10(a), (c).) But advance circulation to other agencies is
not expressly precluded; the Forest Practice Rules encourage a
“multi-disciplinary review.” (FP Rules,
§ 1091.10.) (The review process
that was undertaken here resembles the process prescribed for timber harvest
plans, whereby a multi-disciplinary review team helps evaluate whether the plan
is in conformance with the Forest Practice Rules before the plan is released
for public review. (FP Rules, §
1037.5(a), (b).) Plaintiffs do not
complain about the extent of review given to the Sustained Yield Plan. [x] The
Department of Fish and Game and the federal wildlife agencies considered the
interim prescriptions in the Habitat Conservation Plan to be overly
restrictive. The agencies expected that
the post-watershed analysis prescriptions would allow more harvesting within
the buffer zones. [xi] Defendants
(the state agencies and PALCO) characterize environmental plaintiffs’ argument
as raising an issue of substantial evidence to support the Director’s (implied)
factual finding that the Public Review Draft was sufficient to proceed to the
third step of review. We disagree that
the Director’s “sufficiency” finding was a factual finding subject to review
for substantial evidence. The contents
of the Public Review Draft are not in dispute; the issue raised by
environmental plaintiffs is a legal one concerning the legal adequacy of the
Public Review Draft for purposes of the second step of the administrative
approval process. [xii] Again
we disagree with the assertion by defendants (the state agencies and PALCO)
that the issue is one of substantial evidence to support the administrative
aproval. Whether the Sustained Yield
Plan was in conformance with the Forest Practice Rules is a question of law for
our de novo review. [xiii] “Long
term sustained yield” is defined in the Forest Practice Rules as the average
annual growth sustainable by the inventory predicted at the end of a 100-year
planning period. (FP Rules,
§ 895.1; see also FP Rules, § 913.11(b)(4).) Put another way, it is the long-term goal—the
amount of timber that will be produced during the last decade of the planning horizon in accordance with the
projected inventory, growth, and harvest levels. [xiv] The
term “accuracy” is used only in conjunction with inventory data. What is required is a “discussion of the
accuracy of the inventory data . . . [with a description of] how the
submitter will, over time, make reasonable progress to improve inventory estimates
. . . .” (FP Rules,
§ 1091.45(c)(4).) Plainly the
inventory data, too, are expected to be only estimates. [xv] The
projections were later revised (Appendix Q to the EIS/EIR) in light of the
additional restrictions added to the final Habitat Conservation Plan. And, in February 1999, PALCO submitted further
revisions to the projected harvest levels using different assumptions about the
outcome of the watershed analysis. [xvi] A
“planning watershed” is defined 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. . . .”
The Forest Practice Rules explain further that the Director of Forestry
“has prepared and distributed maps identifying planning watersheds [that] 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.” (FP Rules, § 895.1.) [xvii] During
the sufficiency review process, the Department of Forestry circulated PALCO’s
initial draft of the Sustained Yield Plan to various state and federal agencies
for their review. (See fn. 9, ante.)
Among the early comments received was a criticism from the National
Marine and Fisheries Services that a cumulative impacts analysis was
missing. A comment by the Department of
Fish and Game noted that as a consequence of this omission the Sustained Yield
Plan could not be relied upon for future
timber harvest plans. In November
1997, the Department of Forestry advised PALCO that its draft required changes
with respect to the cumulative impacts in order to make the Sustained Yield
Plan adequate for future timber harvest
plans: “These issues must be
addressed in the SYP before CDF can approve it as sufficient to fulfill the THP requirements.” [xviii] “Late
succession forest stands” are defined as “stands of dominant and predominant
trees that meet the criteria of [xix] The
Public Review Draft of the Sustained Yield Plan defines a “late seral forest”
as “stands with overstory trees that on average are larger than generally 24
[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 seral includes forests classified under
the California Wildlife Habitat Relationships (CWHR) system as late
successional types 5M, 5D, and 6.” [xx] The
public review and comment period, initially set to expire on [xxi] Environmental
plaintiffs argue that because the harvest level in the first decade under
alternative 25 is about 19 percent greater than the harvest level in the first
decade under alternative 25a, alternative
25 constitutes a “substantial deviation” and requires a whole new Sustained
Yield Plan with a whole new review process.
They mistakenly rely on rule 1091.13 of the Forest Practice Rules, which
states that a timber harvest plan may
not rely upon an approved Sustained Yield Plan if the timber harvest plan “substantially deviates” from the Sustained
Yield Plan. A “substantial deviation” is
a variation in harvest level greater than 10 percent in a 10-year period. (FP Rules, §1091.13(a).) Rule 1091.13 has nothing to do with revised
projections made before final approval of a sustained yield plan. [xxii] Just
prior to the Director’s approval of the Sustained Yield Plan, an internal memo
by one of the project managers at the Department of Forestry raised the
question “what constitutes the final document . . . . Would it be possible to give conditional
approval based on the company preparing a consolidated document containing SYP
information?” That conditional approval
is exactly what the Director gave. [xxiii] The
Director’s duty when approving a timber harvest plan is to include a “written
response to the Director to significant environmental issues raised during the
evaluation process.” (FP Rules,
§ 1037.8.) [xxiv] The
Fish and Game Commission (as distinct from the Department of Fish and Game) is
likewise empowered to allow a taking, subject to terms and conditions it
prescribes, of any candidate species.
(Fish & Game Code, § 2084.)
Pursuant to that statutory authority, the Fish and Game Commission has
issued special orders allowing the take of chinook and coho salmon during the
candidacy period. ( [xxv] The
Federal Endangered Species Act (16 U.S.C. 1531 et seq.) has an analogous
scheme. [xxvi] The
environmental plaintiffs’ argument chiefly rests upon language in the
Implementation Agreement. Section 8 of
the Implementation Agreement deals with revocation or relinquishment of the
federal and state Incidental Take Permits, and section 8.5 requires PALCO to
continue its mitigation measures even if the permits are relinquished or
revoked unless the wildlife agencies
determine that the impacts from all takings of all species covered by the
permits have been fully mitigated.
Section 8.5.2 then defines how to determine that all impacts have been
fully mitigated. Within that definition
is the key language relied upon by plaintiffs:
“This analysis [of full mitigation] will take into consideration, among
other factors, . . . with respect to the marbled murrelet, the extent
to which habitat conditions have improved within the residual old growth stands
within the [Marbled Murrelet Conservation Areas].” The environmental
plaintiffs argue that the quoted language from the Implementation Agreement
amounts to a concession that full mitigation is not achieved by the measures
put in place at the outset and that full mitigation will be achieved only at a
future time when the habitats have improved.
What plaintiffs overlook is that the Implementation Agreement keeps the
protective measures in place to ensure full mitigation over the long-term,
regardless of the existence of the Incidental Take Permit. [xxvii] Elsewhere
in the EIS/EIR, “short term” is characterized as 50 years (the duration of the
Incidental Take Permit), while “long term” is greater than 200 years. [xxviii] We find
it unnecessary to consider the legislative history materials presented in
PALCO’s request for judicial notice. The
request is denied. [xxix] The
EIS/EIR explains the phased harvesting as follows: “Consultation between the agencies and PALCO
will occur to delay harvest of high-quality marbled murrelet habitat as long as
possible while satisfying timber volume
needs of PACLO.” (Italics added.) [xxx] In
addition, PALCO must each year give special protection to at least 80 “activity
sites.” No harvesting is allowed on 500
acres within .7 miles of any such site. [xxxi] Plaintiffs
erroneously suggest that the harvesting allowed by the Habitat Conservation
Plan will let some spotted owls be killed.
The EIS/EIR reports that the baseline owl population could potentially
be reduced by 33 percent because of the loss of nesting habitat, but that this
scenario is unlikely. The loss would be
due to the lack of reproduction, not the death of individual birds. [xxxii] The
species named in the Incidental Take Permit as Unlisted Species are the
Northern Spotted Owl, Snowy Plover, Pacific Fisher, Red Tree Vole, Chinook
Salmon, Coho Salmon, Cutthroat Trout, Steelhead, Southern Torrent Salamander,
Red-legged Frog, Yellow-legged Frog, Tailed Frog, and Western Pond Turtle. Although the northern spotted owl is
identified as unlisted, it is, as we have already discussed, entitled to
special statutory protection. (Fish
& Game Code, § 3503.5.) The
coho salmon north of [xxxiii] The
Incidental Take Permit states that “take of Unlisted Species is not authorized
under this [xxxiv] The act
was repealed in 2002 and replaced by a new act, identically titled. (Stats. 2002, ch. 4, § 2.) The former version applies to agreements
entered into before [xxxv] Likewise,
the current version of Fish and Game Code section 2835 allows the Department of
Fish and Game to “authorize by permit the taking of any covered species whose
conservation and management is provided for in a natural community conservation
plan approved by the department.”
“Covered species” means both listed and nonlisted species. (Fish & Game Code, § 2805, subd.
(e).) [xxxvi] A
“natural community conservation plan” is one that identifies and provides for
regional or areawide protection and perpetuation of natural wildlife diversity,
while allowing compatible and appropriate development and growth. (Former Fish & Game Code, § 2805,
subd. (a).) The phrase “development and
growth” suggests that the plan governs housing or other buildings on land,
rather than commercial harvesting of timber or other vegetation. [xxxvii] The
Incidental Take Permit states in pertinent part: “No additional [Incidental Take Permit] or
authorization shall be required by the Department to allow incidental take of
such Covered Species from Covered Activities, unless it is determined in a court of law or by a binding
administrative opinion (such as a formal opinion of the California Attorney
General) that the Department is not
authorized to cause the [Incidental Take Permit] to become effective
automatically as to Covered Species that are not currently listed as
described herein. In this event, the
Department shall accept and give due consideration to the minimization and
mitigation measures in this [Incidental Take Permit] in support of an
application for a permit amendment or for a separate [Incidental Take Permit],
as necessary and lawful to permit take of such Covered Species for the
remaining term of this [Incidental Take Permit].” (Italics added.) [xxxviii] We
are not persuaded by the environmental plaintiffs’ argument that the automatic
future authorization violates the full mitigation requirement. The Department of Fish and Game expressly
found that adverse impacts upon the Unlisted Species will be fully mitigated by
the protective measures imposed by the Habitat Conservation Plan and its
accompanying Implementation Agreement.
Environmental plaintiffs’ argument is essentially an assertion that the
adverse impacts on the Unlisted Species will not, in fact, be fully mitigated
and that future protective measures may be required. As already explained, the sufficiency of the
evidence to support the Department’s factual findings is not an issue before
us. [xxxix] The
Implementation Agreement allows for amendment of the Incidental Take Permit in
accordance with state regulations. Those
regulations, in turn, allow amendment by the Department of Fish and Game only
with the consent of the permitee or “as required by law.” (Cal.Code Regs., tit. 14, §
783.6(c)(2).) The regulations also allow
the permitee to request an amendment. (Cal.Code
Regs., tit. 14, § 783.6(c)(1).) But the
Department of Fish and Game has no ability to demand an amendment. (See T.R.E.E.S.
v. Department of Forestry & Fire Protection (1991) 233 Cal.App.3d 1175,
1182.) [xl] The
Implementation Agreement requires that all activities undertaken by PALCO “be
in compliance with all applicable [f]ederal and state laws and regulations,
including CESA (including Section 2081) . . . .” [xli] While
a writ of mandate may not be used to control the exercise of discretion by an
administrative agency (Code Civ. Proc., § 1094.5, subd. (f)), striking the
automatic authorization for Unlisted Species does not interfere with the
discretionary power of the Department of Fish and Game. The Department has already specified within
the Incidental Take Permit the consequences of a judicial invalidation of the
automatic authorization. There is no
reason to remand the matter to the Department of Fish and Game for further
action. (Cf. Pulaski v.Occupational Safety & Health Stds. Bd. (1999) 75
Cal.App.4th 1315, 1342 [severing invalid portion of regulation].) [xlii] The
particular aspects challenged are (1) the no-surprises assurances regarding
changed and unforeseen circumstances; (2) assurances in the Implementation
Agreement that the Department of Fish and Game will not require any new or
different conservation or mitigation measures beyond those imposed by the
Habitat Conservation Plan, the Implementation Agreement, and the Streambed
Alteration Agreement ; and (3) conservation measures in the Northern Spotted
Owl Conservation Plan of the Habitat Conservation Plan allowing PALCO to make
its own selection of particular habitat sites to be retained. [xliii] In
2003, the statute was repealed and replaced by sections 1600 to 1616. (Stats. 2003, ch. 736.) However, the former version remains
applicable to agreements entered into before [xliv] Pursuant
to section 21167.6 of the Public Resources Code, in any action to challenge the
environmental review of a project under CEQA, the public agency must prepare
the record of the administrative proceedings and certify its accuracy. [xlv] The
statute allows the court to take evidence beyond the administrative record in
limited cases--when the evidence could not have been produced with reasonable
diligence at the hearing before the agency or the evidence was improperly
excluded at the hearing before the agency.
(Code Civ. Proc., § 1094.5, subd. (e).) Yet, in either instance, the court cannot
admit the evidence for purposes of reviewing the agency’s decision; the court
must remand the matter to the agency for reconsideration in light of the new
evidence. (Code Civ. Proc.,
§ 1094.5, subd. (e); see Toyota of
Visalia, Inc. v. New Motor Vehicle Bd.,
supra, 188 Cal.App.3d at pp. 882-883;
Curtis v. Board of Retirement (1986)
177 Cal.App.3d 293, 299; see 8 Witkin, Cal. Procedure, Extraordinary Writs,
§ 322, p. 1126.) [xlvi] In
light of the state agencies’ obligation under Public Resources Code section
21167.6, we need not decide whether the Administrative Procedure Act (Gov.
Code, § 11523) governs the preparation of the record in the Steelworkers’
lawsuit. [xlvii] The federal agencies reviewed comments that
were received after [xlviii] The
distinction comes into play with respect to the admissibility of evidence
outside the administrative record to assess the soundness of the administrative
decision. (See Friends of the Old Trees v. Department of Forestry & Fire
Protection, supra, 52 Cal.App.4th at pp. 1389-1393.) [xlix] The
Supreme Court has granted review in a case in which the Court of Appeal put the
burden on the plaintiffs-appellants to show error in the trial court’s
conclusions. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova, review granted [l] The
Legislature has declared that “there is no presumption that error is
prejudicial.” (Pub. Resources Code, §
21005, subd. (b).) “[N]oncompliance 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, regardless of
whether a different outcome would have resulted if the public agency had
complied with those provisions.” (Pub.
Resources Code, § 21005, subd. (a).) [li] The
CEQA Guidelines set out the information that must be given in descriptions of
the project and of the environmental setting.
(Guidelines, §§ 15124, 15125.)
The Guidelines also prescribe an evaluative discussion of the
significant environmental impacts and the cumulative effects. (Guidelines, §§ 15126.6, 15130.) [lii] Although
the EIS/EIR was a joint document, the analysis of the no-project alternative
contained separate discussions under state (CEQA) and federal (NEPA) law. The analysis under state law contemplated
that the timber harvest plans would be evaluated on a case-by-case basis to
avoid a take of protected species. The
analysis under federal law concluded that additional measures beyond those that
could be imposed in a timber harvest plan would be necessary to avoid a take of
protected species. [liii] The
EIS/EIR explains that the prescriptions of the Aquatics Conservation Plan are
primarily for coho salmon, with the assumption that if favorable habitat
conditions are provided for coho salmon, then other fish species will also
benefit. [liv] Four
public hearings were held on the draft EIS/EIR in October and November
1998. The public comment period for the
draft EIS/EIR closed on The federal agencies
reviewed the comments received after [lv] The
Department of Fish and Game phrased its findings slightly differently, finding
potential significant effects on the coho salmon but further finding that the
effects had been avoided or substantially lessened by the mitigation measures
contained in the Habitat Conservation Plan and Implementation Agreement. 
This file last modified on: Monday, November 17, 2003.Document URL: http://ceres.ca.gov/html_lib/footers/foot98.html Copyright © 1998-2003 California Resources Agency. All rights reserved. |