Epic v. Cal. Dept. of Forestry and Fire

Citation80 Cal.Rptr.3d 28,187 P.3d 888
Decision Date17 July 2008
Docket NumberNo. S140547,S140547
CourtUnited States State Supreme Court (California)
PartiesENVIRONMENTAL PROTECTION AND INFORMATION CENTER et al., Plaintiffs and Respondents, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendants and Respondents; Pacific Lumber Company et al., Real Parties in Interest and Appellants. United Steelworkers of America, Plaintiff and Respondent, v. California Department of Forestry and Fire Protection et al., Defendants and Respondents; Pacific Lumber Company et al., Real Parties in Interest and Respondents. United Steelworkers of America, Plaintiff and Respondent, v. California Department of Forestry and Fire Protection et al., Defendants and Appellants; Pacific Lumber Company et al., Real Parties in Interest and Respondents. Environmental Protection Information Center et al., Plaintiffs and Respondents, v. California Department of Forestry and Fire Protection et al., Defendants and Appellants; Pacific Lumber Company et al., Real Parties in Interest and Respondents.

Superior Court, Humboldt County; John J. Golden*, Judge.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Tom Greene, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, John Davidson and William N. Jenkins, Deputy Attorneys General, for Defendants and Appellants and for Defendants and Respondents.

Jennifer B. Henning, for California State Association of Counties and League of California Cities as Amici Curiae on behalf of Defendants and Appellants and Defendants and Respondents.

Nossaman, Guthner, Knox & Elliott, Robert D. Thornton and Paul S. Weiland, Irvine, for California Building Industry Association, Building Industry Legal Defense Foundation, California Business Properties Association, Imperial Irrigation District, Kern Water Bank Authority and Consulting Engineers and Land Surveyors of California as Amici Curiae on behalf of Defendants and Appellants, Defendants and Respondents, Real Parties in Interest and Appellants and Real Parites in Interest and Respondents.

Law Offices of Sharon E. Duggan, Sharon E. Duggan, Oakland; Law Offices of Brian

Gaffney and Brian Gaffney, San Francisco, for Plaintiffs and Respondents Environmental Protection Information Center et al.

Paul Whitehead; Altshuler, Berzon, Nussbaum, Rubin & Demain, Fred H. Altschuler, Jonathan Weissglass, Rebekah B. Evenson and Peder H. Thoreen, San Francisco, for Plaintiff and Respondent United Steelworkers of America.

Carter, Behnke, Oglesby & Bacik, Carter, Oglesby, Momsen & Bacik, Ukiah, Frank Shaw Bacik; Stoel Rives, Andrew F. Brimmer, Tahoe City; Morrison & Foerster, Edgar B. Washburn, Christopher J. Carr, William M. Sloan and Shaye Diveley, San Francisco, for Real Parties in Interest and Appellants and for Real Parties in Interest and Respondents.

Robin L. Rivett, Damien M. Schiff, Sacramento, and Scott A. Sommerdorf, for Pacific Legal Foundation as Amicus Curiae on behalf of Real Parties in Interest and Appellant and Real Parties in Interest and Respondents.

Michele Dias, for California Forestry Association as Amicus Curiae on behalf of Real Parties in Interest and Appellant and for Real Parties in Interest and Respondents.

MORENO, J.

This case arises from the "Headwaters Agreement" consummated by the Pacific Lumber Company and the state and federal governments. The agreement was intended to settle matters of litigation and public controversy surrounding the intensive logging of old growth redwoods and other trees on Pacific Lumber's property in Humboldt County. In addition to the state and federal governments' purchase of a relatively small portion of Pacific Lumber's property for conservation purposes, it was agreed that Pacific Lumber could log the rest of its property, provided that it obtain certain regulatory approvals from state and federal agencies. The deadline for obtaining these approvals was March 1, 1999. The approvals were timely obtained, in some cases right at the March 1 deadline. Shortly thereafter, various environmental and labor groups challenged the validity of the regulatory approvals on numerous grounds. The trial court resolved the issues mostly in favor of the environmental and labor groups in 2003, and the Court of Appeal, at the end of 2005, reversed the trial court on almost every point and upheld each of the regulatory approvals at issue. We granted review in February 2006 to consider a number of issues, many of them of first impression, in this important case. The case was put on hold due to a stay resulting from Pacific Lumber's filing for chapter 11 bankruptcy in February 2007. The stay was lifted in August 2007.

We conclude that one of the challenges to Pacific Lumber's Sustained Yield Plan (SYP), which, as explained below, is a kind of master plan for logging a large area, is valid, inasmuch as an identifiable plan was never approved. We also conclude, as explained below, that any resubmitted SYP should have an adequate analysis of individual planning watersheds, which the plan as originally approved did not contain. We further conclude that the state Incidental Take Permit, authorizing the capturing and killing of endangered and threatened species incidental to lawful activity, was deficient because it included overly broad "no surprises" clauses limiting in advance Pacific Lumber's obligation to mitigate the impacts of its logging operations. In all other respects, we affirm the Court of Appeal opinion, and remand the matter for further proceedings consistent with this opinion.

I. STATUTORY AND REGULATORY FRAMEWORK

One of the obstacles to the proper understanding of this complex case is that it concerns a myriad of regulatory approvals, each approval supported by a document or documents that are to some degree interrelated with the others. Before discussing the facts of this case, an overview of the regulatory approvals required and the governing statutes is in order.

A Sustained Yield Plan (hereafter sometimes SYP) is a kind of master plan for logging a large area, authorized by statute (Pub. Resources Code, § 4551.3) and regulation (Cal.Code Regs., tit. 14, § 1091.1-1091.14),1 designed to achieve the Forest Practice Act's objective of obtaining the maximum timber harvest consistent with various short- and long-term environmental and economic objectives. (Z'berg-Nejedly Forest Practice Act of 1973; Pub. Resources Code, § 4511 et seq.) As explained below, the SYP does not replace the more specific timber harvest plan (THP), but inasmuch as the SYP adequately analyzes pertinent issues, a THP may rely on that analysis. Although SYP's are usually voluntary at the option of the landowner, in this case the SYP was required by the Headwaters Agreement.

Also required in this case under federal law was a Habitat Conservation Plan. Although the "taking" of a federally listed endangered species, i.e., the killing, capturing or harming of such species (16 U.S.C., § 1532(19)), is generally unlawful (id., § 1538), a permit for the taking of a species incidental to an otherwise lawful activity, known as an Incidental Take Permit, may be issued when an applicant submits to the Secretary of the Interior a Habitat Conservation Plan. (16 U.S.C. § 1539(a)(2)(A).) The plan is to specify, among other things, the impacts that will likely result from the taking and the steps the applicant intends to employ to minimize and mitigate those impacts. (Ibid.) Although the federal Incidental Take Permit is not challenged in this appeal, the Habitat Conservation Plan (HCP) was combined with the SYP for purposes of environmental review, and is critical to supporting various other approvals at issue in this case. In addition to a federal Incidental Take Permit, Pacific Lumber in this case was required to obtain a state Incidental Take Permit for species listed as endangered or threatened under the California Endangered Species Act (Fish & G.Code, § 2050 et seq.)

In conjunction with approval of the HCP, the U.S. Fish and Wildlife Service, Pacific Lumber, and various state agencies entered into an Implementation Agreement for the HCP, defining the obligations of each party under the HCP.

Because the state SYP and federal HCP contained overlapping and interrelated analyses and provisions, a decision was made to prepare for both of these documents a single joint environmental impact report (EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and an environmental impact statement (EIS) under the National Environmental Policy Act (42 U.S.C. § 4321 et seq.). Thus, the EIS/EIR also overlaps and is interrelated with the SYP and the HCP, each of these documents considering among other things the impact of proposed logging activities on wildlife and wildlife habitat. In fact, as explained below, substantial portions of the draft and final EIS/EIR were incorporated into and became part of the SYP.

Finally, Pacific Lumber was required to apply for a Streambed Alteration Agreement, pursuant to Fish and Game Code former section 1603. As will be further explained, that statute imposed on Pacific Lumber and the Department of Fish and Game (DFG) the obligation to negotiate an agreement that would mitigate impacts on fish and wildlife caused by the obstruction or diversion of streams and other watercourses.

With this framework in mind, we turn to the facts of this case.

II. FACTUAL AND PROCEDURAL BACKGROUND

Real parties in interest Pacific Lumber Company, Scotia Pacific Co., LCC and Salmon Creek Corporation (hereinafter collectively referred to as Pacific Lumber) own approximately 211,000 acres of timberland in Humboldt County that have been used for commercial timber production for some 120 years. In 1986 Pacific Lumber was acquired by Maxxam Incorporated, and in order to pay off Maxxam's debt for the buyout, Pacific Lumber began cutting down old growth redwoods at a faster rate than...

To continue reading

Request your trial
76 cases
  • State Farm Gen. Ins. Co. v. Lara
    • United States
    • California Court of Appeals Court of Appeals
    • October 29, 2021
    ...Cal.3d 506, 515, 113 Cal.Rptr. 836, 522 P.2d 12 ( Topanga ) and Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 516, 80 Cal.Rptr.3d 28, 187 P.3d 888 ( EPIC ), among other cases. SFG further contended there was "no contest[......
  • Envtl. Prot. Info. Ctr. v. Cal. Dep't of Forestry, s. A108410, A108478.
    • United States
    • California Court of Appeals Court of Appeals
    • December 15, 2010
    ...J. *222 In Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459 , 80 Cal.Rptr.3d 28, 187 P.3d 888 ( EPIC II), **356 the California Supreme Court resolved the merits of a long-running legal dispute surrounding the logging of 2......
  • Tiburon Open Space Comm. v. Cnty. of Marin
    • United States
    • California Court of Appeals Court of Appeals
    • May 12, 2022
  • Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region
    • United States
    • California Court of Appeals Court of Appeals
    • March 30, 2010
    ...request would be redressable only in traditional mandate (see Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 520-521 [80 Cal.Rptr.3d 28, 187 P.3d 888]; Cal. Administrative Mandamus, supra, § 1.1, p. 2), which will issue t......
  • Request a trial to view additional results
2 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT