Bayside Timber Co. v. Board of Supervisors

• Decision Date: 16 September 1971
• Citation: 97 Cal.Rptr. 431,20 Cal.App.3d 1
• Court: California Court of Appeals Court of Appeals
• Parties: , 3 ERC 1078, 1 Envtl. L. Rep. 20,425 BAYSIDE TIMBER COMPANY, Inc., a corporation, Plaintiff and Respondent, v. BOARD OF SUPERVISORS OF SAN MATEO COUNTY, and Planning Commission of San Mateo County, Defendants and Appellants. Civ. 28244.

Page 431

97 Cal.Rptr. 431

20 Cal.App.3d 1, 3 ERC 1078, 1 Envtl. L. Rep. 20,425

BAYSIDE TIMBER COMPANY, Inc., a corporation, Plaintiff and Respondent, v. BOARD OF SUPERVISORS OF SAN MATEO COUNTY, and Planning Commission of San Mateo County, Defendants and Appellants.

Civ. 28244.

Court of Appeal, First District, Division 1, California.

Sept. 16, 1971.

As Modified on Denial of Rehearing Oct. 15, 1971.

As Amended Oct. 21, 1971.

Hearing Denied Nov. 18, 1971.

Keith C. Sorensen, Dist. Atty., County of San Mateo, James M. Parmelee, Chief Civil Deputy Dist. Atty., Henry A. Dietz, Deputy Dist. Atty., Redwood City, for for defendants and appellants.

Douglas J. Maloney, Marin County Counsel, Joseph A. Forest, Deputy County Counsel, San Rafael, William M. Siegel, Santa Clara County Counsel, San Jose, for amicus curiae, County of Marin and County of Santa Clara.

R. Frederic Fisher, Thomas S. Brigham, Lillick, McHose, Wheat, Adams & Charles, San Francisco, for amicus curiae, Sierra Club.

Vaughan, Paul & Lyons, San Francisco, Darling, Hall, Rae & Gute, Los Angeles, for amicus curiae, California Forest Protective Assn.

Thomas C. Lynch, Atty. Gen., R. H. Connett, Deputy Atty. Gen., Sacramento, for amicus curiae, State of Cal.

Huber & Goodwin, Murray, Cissna & prior, Eureka, Hession, Creedon, Hamlin, Kelly, Hanson & Farbstein, Professional Corp., San Mateo, for plaintiff and respondent.

ELKINGTON, Associate Justice.

This appeal is prosecuted by the San Mateo County Board of Supervisors and Planning Commission from a judgment against them in favor of Bayside Timber Company, Inc., directing the issuance of a peremptory writ of mandate.

By ordinance, San Mateo County purports to regulate logging operations within the county by 'use permit.' ¹ The county also by ordinance, 'to protect the natural beauty of the County and protect property owners from unnecessary loss from erosion and flooding from grading operations,' regulates excavation and grading for road purposes. ²

Respondent Bayside Timber Company, Inc., was the owner of redwood timber land in San Mateo County. It had, under the State Forest Practice Act (Pub. Resources Code, §§ 4521--4618; sometimes herein called the Act), obtained a timber operations permit to log the land. The State Division of Highways had given the company an 'encroachment permit' which authorized connection of logging roads with a state highway. Application was then made to the county by the company for a logging use permit and a grading permit for the logging roads which would become necessary to its operations. The applications were opposed by many residents, and organizations of residents, of San Mateo County. After generally favorable rulings by the county planning commission, on appeal to the board of supervisors each of the applications was denied. The latter decisions resulted in the company's mandamus petition to the superior court to compel issuance of the requested use and grading permits.

After a trial the superior court concluded that the state had preempted the field of regulation of timber operations by the enactment of the Forest Practice Act, that San Mateo County had 'no power or authority to require, grant, or deny permits for timber operations,' and that accordingly 'issuance of a timber operations permit to plaintiff would be superfluous.' The county's timber operations use permit ordinance was adjudged 'invalid and unenforceable to the extent that (it purports) to require the issuance of a permit * * * prior to engaging in timber operations.' A peremptory writ of mandate requiring the county to issue the requested road grading permit was ordered by the judgment.

It is this 'Judgment Granting Peremptory Writ of Mandate' from which the San Mateo County officials have appealed.

The first issue presented by the appellants' briefs is the question of the constitutionality of the Forest Practice Act. The issue is raised for the first time on this appeal, counsel frankly confessing that 'no one thought of the constitutional issue until preparation of appellants' opening brief.'

Respondent, relying on Jenner v. City Council, 164 Cal.App.2d 490, 498, 331 P.2d 176, 182, argues that such a constitutional issue may not now be considered since "It is the general rule applicable in civil cases that a constitutional question must be raised at the earliest opportunity or it will be considered as waived.' * * *'

Jenner v. City Council, however, merely reiterates the general rule that appellate courts will not ordinarily consider matters raised for the first time on appeal. (See 3 Witkin, Cal. Procedure, pp. 2261--2262, Appeal, § 94.) There are many situations where appellate courts will consider such matters. They will often be considered where the issue relates to questions of law only. (Tyre v. Aetna Life Ins. Co., 54 Cal.2d 399, 405, 6 Cal.Rptr. 13, 353 P.2d 725; Jones v. Fireman's Fund Ins. Co., 270 Cal.App.2d 779, 783--784, 76 Cal.Rptr. 97.) Appellate courts are more inclined to consider such tardily raised legal issues where the public interest or public policy is involved. (People v. Rodriguez, 58 Cal.App.2d 415, 421, 136 P.2d 626.) And whether the rule shall be applied is largely a question of the appellate court's discretion. (Isthmian Lines, Inc. v. Schirmer Stevedoring Co., 255 Cal.App.2d 607, 610, 63 Cal.Rptr. 458.)

The above quoted language of Jenner is taken verbatim from Hershey v. Reclamation District No. 108, 20 Cal. 550, 564, 254 P. 542, in which the court after stating the general rule, nevertheless Did (apparently because the point was of public importance) proceed to pass upon the constitutionality of the subject statute. In Higbie v. County of Los Angeles, 47 Cal.App.2d 281, 289, 117 P.2d 933, 937, where the appellate court was presented with a previously unraised constitutional question, it was said: 'A sufficient answer to this argument should be that 'one who receives the benefit from an unconstitutional law is estopped from asserting its unconstitutionality.' (Hershey v. Reclamation Dist. No. 108, 200 Cal. 550 (254 P. 542), at 564.) As the questions are of considerable importance, we will not rest on this well-established rule, but will consider the several arguments of plaintiff on this phase of the case.'

With considerable logic it has even been held that: 'A fundamental public right, * * * which involves the interest of the citizens at large cannot be disregarded, and a constitutional question in respect thereof may be raised at any time, and even upon the court's own motion' (Craig v. Board of Education of City of New York, 173 Misc. 969, 19 N.Y.S.2d 293, 302); and that it is contrary to the public interest to permit public officials to waive public constitutional rights by failure to raise them at the trial level. (State ex rel. Joint School Dist. No. 4 v. Becker, 194 Wis. 464, 215 N.W. 902, 904.) ³

Yet another consideration facing us at this point, however, is the long-established rule that an appellate court will not enter upon the resolution of constitutional questions unless absolutely necessary to a disposition of the appeal. (Marin Municipal Water Dist. v. Dolge, 172 Cal. 724, 726, 158 P. 187; Estate of Johnson, 139 Cal. 532, 534, 73 P. 424; Estate of Crane, 73 Cal.App.2d 93, 102, 165 P.2d 940.) In this respect we have concluded, as found by the trial court and here argued by respondent, that the Forest Practice Act does purport to preempt the field of logging and timber operations in California. To fully dispose of the appeal it would be necessary to pass upon the constitutional question raised by appellants.

Obviously the tendered constitutional issue concerns only a question of law. And we perceive no attendant prejudice to respondents were the matter to be considered by us at this time.

The remaining question is whether there is indeed a public interest in the Forest Practice Act, i.e., in the regulation of private logging and timber practices, and if so, whether our discretion should be exercised as requested by appellants.

We observe initially that the Forest Practice Act itself (§ 4541) declares 'the existence of a public interest in the forest resources and timberlands of this state.'

On the same subject we are invited to consider an abundance of published literature relating to private logging and timber operations in California and to the Forest Practice Act.

It seems to be widely recognized that few, if any, industries adversely affect the rights of others, and the public generally, as do timber and logging operations. ⁴

In much of California's forest areas soils are sedimentary, and ordinarily quite unstable. The erosion of such land is believed to be increased by a factor of 25 to 1 when the native vegetation is removed. The problem seems to be compounded by the practice of constructing and using logging and skid roads, and the operation of trucks and tractors up and down stream beds. ⁵

Normally such operations are said to send enormous quantities of silt and debris onto the land of lower riparian owners. ⁶ Describing a recent flooding it was said, 'These lowlands were battered by tons of slash, cut logs and whole trees washed down the rivers; worst of all was the three to six foot layer of silt left behind by the receding waters--soil washed off the slopes of watersheds exposed to the torrents.' ⁷ It is known that uprooted trees and unwanted logs by the thousands, left behind by loggers, have in time of flood backed up behind and then buckled and destroyed highway bridges.

Destructive erosion and siltation is blamed by some entirely on reckless logging; ⁸ others believe it to be but a major contributing cause. But there seems to be common agreement that the denuding of forest land intensifies flooding, and its effect upon the property of others. ⁹

It is said that the greatest 'threat to salmon and steelhead are land use practices which are destroying the basic productivity of streams by promoting the flow of...