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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 |