Big Creek Lumber Co. v. County of Santa Cruz

• Decision Date: 29 June 2006
• Docket Number: No. S123659.,S123659.
• Citation: 136 P.3d 821,38 Cal.4th 1139,45 Cal.Rptr.3d 21
• Court: California Supreme Court
• Parties: BIG CREEK LUMBER CO. et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Appellants.

45 Cal.Rptr.3d 21

38 Cal.4th 1139

136 P.3d 821

BIG CREEK LUMBER CO. et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CRUZ et al., Defendants and Appellants.

No. S123659.

Supreme Court of California.

June 29, 2006.

Jones Day, Craig E. Stewart, Tracy M. Strong, San Francisco; Law Offices of Dennis J. Kehoe and Dennis J. Kehoe, Aptos, for Plaintiff and Appellant Big Creek Lumber Company.

Bosso, Williams, Sachs, Atack & Gallagher, Bosso, Williams, Sachs, Atack, Gallagher & Sanford, Bosso Williams, Robert E. Bosso, Santa Cruz, and Catherine A. Phillipovitch, for Plaintiff and Appellant Central Coast Forest Association.

Bruce A. Crane and Ginerva K. Chandler, Sacramento, for California Board of Forestry and Fire Protection as Amicus Curiae, on behalf of Plaintiff and Appellant Big Creek Lumber Company.

Pacific Legal Foundation, Robin L. Rivett and M. Reed Hopper, Sacramento, for Forest Landowners of California, California Forestry Association, California Farm Bureau Federation and California Cattlemen's Association as Amici Curiae, on behalf of Plaintiffs and Appellants.

Dana McRae, County Counsel; Shute, Mihaly & Weinberger, Fran M. Layton, Catherine C. Engberg, Jenny K. Harbine, Gabriel M.B. Ross, San Francisco, Susannah T. French and Marlena G. Byrne, for Defendant and Appellant County of Santa Cruz.

Bill Lockyer, Attorney General, Richard M. Frank and Tom Greene, Chief Assistant Attorneys General, J. Matthew Rodriguez, Assistant Attorney General, and Tara L. Mueller, Deputy Attorney General, for Defendant and Appellant California Coastal Commission.

Orrick, Herrington & Sutcliffe, Karen Johnson-McKewan, Joshua Walker, Robert Nagel, Menlo Park, and Katherine Ikeda, San Francisco, for the Committee for Green Foothills, Citizens for Responsible

Forest Management, the Planning and Conservation League, the Lompico Watershed Conservancy and the Sierra Club as Amici Curiae, on behalf of Defendant and Appellant County of Santa Cruz.

Thomas F. Casey III, County Counsel (San Mateo) and Kimberly A. Marlow, Deputy County Counsel, for County of San Mateo as Amicus Curiae, on behalf of Defendant and Appellant County of Santa Cruz.

Dennis J. Herrera, City Attorney (San Francisco), Burk E. Delventhal and Wayne Snodgrass, Deputy City Attorneys, for League of California Cities and California State Association of Counties as Amici Curiae, on behalf of Defendant and Appellant County of Santa Cruz.

WERDEGAR, J.

[136 P.3d 1145]

We must decide whether two county zoning ordinances relating to the permissible locations for timber operations are preempted by state forestry statutes. Concluding they are not, we reverse the judgment of the Court of Appeal.

Background

In 1999, the Board of Supervisors of the County of Santa Cruz (County) adopted several ordinances that would have affected timber harvesting operations in the County. As pertinent here, County's ordinances restricted timber harvesting to specified zone districts within the County (Santa Cruz County Res. No. 493-99 & Santa Cruz County Ord. No. 4577 (1999); hereafter the zone district ordinance), barred timber harvesting operations in certain areas adjacent to streams and residences (Santa Cruz County Ord. No. 4571 (1999); hereafter the stream ordinance), and limited the parcels on which helicopter operations associated with such harvesting could occur (Santa Cruz County Ord. No. 4572 (1999); hereafter the helicopter ordinance). County also requested and obtained from the California Coastal Commission a ruling certifying the zone district ordinance as an amendment to County's local coastal program.

Plaintiffs Big Creek Lumber Co. and Homer T. McCrary (jointly Big Creek) and the Central Coast Forest Association, a nonprofit association of landowners and forestry professionals in the County, filed a petition for writ

[136 P.3d 1146]

of mandate against County and the California Coastal Commission, challenging County's timber-related ordinances and the Commission's certification of the zone district ordinance as a local coastal program amendment. Plaintiffs' petition alleged that County's and the California Coastal Commission's actions violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) and County's ordinances violated the doctrine of preemption.

The preemption claim was bifurcated and heard separately. The trial court found in favor of plaintiffs except as to the zone district ordinance. On appeal, the Court of Appeal invalidated County's ordinances in their entirety. We granted County's petition for review of the Court of Appeal's invalidation of the helicopter and zone district ordinances.¹

Discussion

The zone district ordinance amends County's zoning laws to restrict timber harvesting operations to areas zoned for timber production, mineral extraction industrial, or parks, recreation and open space. The helicopter ordinance requires that helicopter staging, loading, and servicing facilities associated with timber operations be located either on a parcel of land zoned for timber harvesting or on a parcel adjacent to such, and within the boundaries of a timber harvesting plan that has been approved by the California Department of Forestry and Fire Protection.

Plaintiffs argue that the ordinances are preempted by the Z'berg-Nejedly Forest Practice Act of 1973(FPA) (Pub. Resources Code, § 4511 et seq.)² and the California Timberland Productivity Act of 1982(TPA) (Gov.Code, § 51100 et seq.). For the following reasons, we conclude that County's ordinances are not preempted.

A. Overview: State Forestry Law

1. The Forest Practice Act

"Timber harvesting operations in this state must be conducted in accordance with the provisions of the Forest Practice Act. The Act was intended to create and maintain a comprehensive system for regulating timber harvesting

[136 P.3d 1147]

in order to achieve two goals" (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1226, 32 Cal.Rptr.2d 19, 876 P.2d 505): to restore, enhance, and maintain the productivity of timberlands where feasible; and to achieve the maximum sustained production of high-quality timber products, while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, regional economic vitality, employment, and aesthetic enjoyment (ibid.; see § 4513).

As originally enacted in 1973, the FPA permitted individual counties to adopt stricter rules and regulations governing timber operations than those provided under the FPA. (Stats.1973, ch. 880, § 4, pp. 1615-1616 [adding former § 4516].) In 1982, the Legislature amended the FPA (Stats.1982, ch. 1561, § 3, pp. 6164-6166) to provide instead that counties may recommend to the California Board of Forestry and Fire Protection (Board) additional forest practice rules and regulations (§ 4516.5, subds.(a), (b)) but, except with respect to performance bonds or other surety for road protection, counties are forbidden to "regulate the conduct of timber operations" (§ 4516.5, subd. (d); hereafter section 4516.5(d)).³

Pursuant to the FPA, "timber operations are controlled by means of a site-specific timber harvesting plan that must be submitted to the [state forestry] department before timber operations may commence.⁴ (§§ 4581 and 4582.5.) The Legislature has specified that the plan include the name and address of the timber owner and the timber operator, a description of the land upon which the work is proposed to be done, a description of the silviculture methods to be applied, an outline of the methods to mitigate erosion caused by operations performed in the vicinity of a stream, the provisions, if any, to protect any `unique area' within the area of operations and the anticipated dates for commencement and completion of operations. (§ 4582, subds. (a)-(g).)" (Sierra Club v. State Bd. of Forestry, supra, 7 Cal.4th at p. 1226, 32 Cal.Rptr.2d 19, 876 P.2d 505.) The director of the state forestry department, and the Board on appeal, review timber harvesting plans for compliance with the FPA and applicable regulations. (§ 4582.7.)

[136 P.3d 1148]

2. The Timberland Productivity Act

The TPA, enacted in 1982 (Stats.1982, ch. 1489, §§ 1-39, pp. 5748-5766), reflects state policy, inter alia, "that timber operations conducted in a manner consistent with forest practice rules adopted by the [Board] shall not be or become restricted or prohibited due to any land use in or around the locality of those operations" (Gov.Code, § 51102, subd. (b)).⁵ The TPA seeks to implement that policy "by including all qualifying timberland in timberland production zones." (Id., § 51103.) "Timberland," the Legislature has stated, "means privately owned land, or land acquired for state forest purposes, which is devoted to and used for growing and harvesting timber, or for growing and harvesting timber and compatible uses, and which is capable of growing an average annual volume of wood fiber of at least 15 cubic feet per acre." (Id., § 51104, subd. (f).)

In order to accomplish its purposes, the TPA relies on tax incentives and zoning mandates. The TPA restricts land in certain timberland production zones (TPZ's) to the growing and harvesting of timber and compatible uses. (See Gov.Code, §§ 51115, 51118.) In exchange, owners of land in a TPZ benefit by lower property tax valuations that reflect the enforceable statutory restrictions. (See Cal. Const., art. XIII, § 8 [Legislature may tax certain land consistently with use restrictions].)

The TPA's predecessor statute (Stats. 1976, ch. 176, § 4.5, p. 305) dictated "timberland preserve" zoning for certain "list A" parcels that were assessed for growing and harvesting timber as the highest and best use. (Gov.Code, § 51110.) Exceptions to mandatory zoning of list A properties were permitted where a parcel in fact was not used for timber growing and harvesting, or where the owner contested the zoning and local officials found exclusion to be in the public...