Ebbetts Pass Forest Watch v. Cdf

• Decision Date: 14 April 2006
• Docket Number: No. F042896.,F042896.
• Citation: 43 Cal.Rptr.3d 363
• Court: California Court of Appeals Court of Appeals
• Parties: EBBETTS PASS FOREST WATCH et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; Sierra Pacific Industries, Real Party in Interest and Respondent.

43 Cal.Rptr.3d 363

EBBETTS PASS FOREST WATCH et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent Sierra Pacific Industries, Real Party in Interest and Respondent.

No. F042896.

Court of Appeal, Fifth District.

April 14, 2006.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing May 15, 2006.

Law Offices of Thomas N. Lippe, Thomas N. Lippe, San Francisco, and Michael W. Graf, El Cerrito, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Mary E. Hackenbracht, Assistant Attorney General, and Charles W. Getz IV, Deputy Attorney General, for Defendant and Respondent.

Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos, Sacramento; Dun & Martinek, David H. Dun and David E. Martinek, Eureka, for Real Party in Interest and Respondent.

OPINION

DAWSON, J.

Plaintiffs appeal the denial of their petition for a writ of mandate, by which they sought to overturn the California Department of Forestry and Fire Protection's (CDF) approval of three timber harvesting plans (THP) covering timberland in Tuolumne County. The issues raised by plaintiffs on appeal include (1) whether CDF failed to follow provisions of California's Forest Practice Rules¹ when reviewing the geographical areas chosen in the three THP's for assessing cumulative impacts on the California spotted owl and the Pacific fisher, and (2) whether CDF proceeded in a manner required by law with respect to obtaining, considering, and disclosing information regarding the environmental effects of possible herbicide use after harvest.

Based on the rulings summarized below, we will reverse and direct CDF to rescind approval of the THP's.

SUMMARY

Assessment Areas. The regulatory provision that "[b]iological assessment areas will vary with the species being evaluated and its habitat" (Cal.Code Regs., tit. 14, § 952.9, Technical Rule Addendum No. 2²) was violated by the use of the same cumulative impacts assessment area for all species. Also, the error in selecting assessment areas necessarily caused the required explanation of the rationale for establishing the assessment areas to be inadequate. By failing to enforce these requirements, CDF abused its discretion. Because the requirements were mandatory, prejudice is presumed. If the plans are resubmitted, the assessment area for each species evaluated must be chosen separately based in part on the characteristics and habitat needs of that species, and the rationale for each choice must be explained in the THP's.

Herbicide Use. First, because the THP's state that herbicide use is a reasonable probability and that eliminating its use is not feasible, we conclude herbicide use is reasonably foreseeable and thus part of the activity constituting the project covered by each THP. Consequently, CDF has the authority to review that use, assess the potential environmental impacts of that use, and impose feasible alternatives or mitigation measures to lessen or eliminate any substantial, or potentially substantial, adverse change in the environment.

Second, CDF's finding that certain information about herbicide use was speculative, even if supported by substantial evidence, does not preclude an inquiry into whether CDF fulfilled its procedural obligation to obtain and disclose information regarding potential herbicide use.

Third, CDF's disclosures were prejudicially inadequate. They inaccurately described the state's pesticide regulatory program, which led to the overly broad conclusion that compliance with label directions and other restrictions in applying registered herbicides would preclude a finding that such application would have a significant adverse effect on the environment. Also, CDF relied upon information about herbicide use that was not disclosed in the administrative record. The inadequate disclosures affected the usefulness of the THP's and official responses as informative documents, while adequate disclosures might have shown that further details of the prospective herbicide use were reasonably foreseeable.

Fourth, on resubmission, any finding CDF makes regarding the applicant's future compliance with herbicide regulations must be based on the evidence in a properly prepared administrative record; future compliance must not be assumed.

Publication. We publish this opinion because no other appellate decision has explicitly applied the regulation that biological assessment areas will vary with the species being evaluated to a THP that used only one assessment area for all species. (Cal. Rules of Court, rule 976(c)(1).) Also, no other appellate decision has explicitly ruled that CDF's description of the state's pesticide regulatory program was prejudicially inaccurate. (Ibid.)

FACTS

Parties

Plaintiff Ebbetts Pass Forest Watch is a California nonprofit public benefit corporation that alleges its purpose is to advocate for ecological sustainability and protect the health of the forests and watersheds surrounding the Ebbetts Pass corridor.

Plaintiff Central Sierra Environmental Resource Center is a California nonprofit public benefit corporation that alleges it was founded for the purpose of advocating the use of sustainable environmental practices in the Central Sierra Nevada.

Defendant CDF is an agency of the State of California. CDF is authorized by statute to engage in the management, protection, and reforestation of state forests in accordance with plans approved by the California Board of Forestry.³ (Pub. Resources Code, § 4645.) As part of its responsibilities, CDF reviews THP's to determine whether they conform to applicable state law. (Pub. Resources Code, § 4582.7.)

Real Party in Interest Sierra Pacific Industries (SPI) is a California corporation with its principal office in Redding, California. SPI owns approximately 1.5 million acres of land in California, including more than 1.1 million acres of timberland in the Sierra Nevada and Modoc Plateau regions and approximately 400,000 acres in the region described as the Coast-Klamath-Cascade. SPI's ownership represents 3.8 percent of California's 40 million acres of forested landscape and 8.2 percent of California's 19 million acres of commercial forest land.

SPI owns more land within the range of the California spotted owl than any other private landowner. SPI's holdings account for approximately 80 percent of the habitat for the California spotted owl that is privately owned, and approximately 10 to 12 percent of the range of the California spotted owl. (68 Fed.Reg. 7580, 7606 (Feb. 14, 2003).)

SPI listed itself as the plan submitter, timber owner, timberland owner, and licensed operator (license No. A3879) in each of the three THP's that are the subject of this appeal. After submission of the initial THP's, SPI filed amendments that designated other licensed timber operators and included a signed form in which those operators acknowledged their responsibilities under applicable law. After stressing the difficulty in making long-term projections, SPI stated in one of the THP's that it "expects that its future land base (70-80 years from [2001]) would approach approximately 30% unevenaged stand structure and approximately 70% evenaged stand structure."

Wildlife Species

The THP's discuss a number of wildlife species or subspecies but the issues concerning the geographic scope of the cumulative impacts assessment areas mainly relate to the California spotted owl and the Pacific fisher.⁴ The ranges of the California spotted owl and the Pacific fisher and their regulatory status are provided as background.

Spotted Owl

The historic range of the California spotted owl extends "along the west side of the Sierra Nevada from Shasta County south to Tehachapi Pass, and in all major mountains of southern California ... (Beck and Gould 1992)." (70 Fed.Reg. 35607, 35608 (June 21, 2005).) Also, "a few sites have been found on the eastern side of the Sierra Nevada and in the central Coast Ranges at least as far north as Monterey County (Service 2002)." (Ibid.)

Spotted owls (Strix occidentalis) are subject to a variety of regulatory schemes. For instance, spotted owls are protected by the Migratory Bird Treaty Act, 16 United States Code section 703 et seq. (See 50 C.F.R. § 10.13 (2006).)

Under the Endangered Species Act (ESA), 16 United States Code section 1531 et seq., as amended, the United States Fish and Wildlife Service of the Department of the Interior (Fish and Wildlife Service) may list a species as threatened or endangered and may designate its critical habitat. (See 50 C.F.R. §§ 17.11(h) [list of threatened and endangered wildlife] & 17.95(b) [critical habitat for various species] (2006).) The three recognized subspecies of spotted owls—the northern spotted owl (Strix occidentalis caurina), the California spotted owl (Strix occidentalis occidentalis), and the Mexican spotted owl (Strix occidentalis lucida) (55 Fed.Reg. 26114 (June 26, 1990))—are treated differently under the ESA. Unlike the northern and Mexican spotted owls the California spotted owl is not listed as threatened or endangered.⁵

The listing status of the California spotted owl is the subject of a continuing controversy. In early 2003, the Fish and Wildlife Service published a 12-month finding that listing the California spotted owl under the ESA was not warranted because the overall magnitude of threats to the species did not rise to the level requiring ESA protection. (68 Fed.Reg. 7580 (Feb. 14, 2003).)⁶ Litigation ensued and an updated listing petition currently is pending before the Fish and Wildlife Service. (70 Fed.Reg. 35607 (June 21, 2005); 70 Fed.Reg. 60051 (Oct. 14, 2005).)⁷ As of the date of this opinion, the 12-month finding on that petition has not been published.

Another federal agency, the United States Forest Service, designated the California spotted owl as a "sensitive species" on its Region 5 "Sensitive Plant and Animal Species List" in ...