Friends of Gualala River v. Gualala Redwood Timber, LLC

• Decision Date: 03 August 2021
• Docket Number: Case No. 20-cv-06453-JD
• Citation: 552 F.Supp.3d 924
• Parties: FRIENDS OF GUALALA RIVER, et al., Plaintiffs, v. GUALALA REDWOOD TIMBER, LLC, Defendant.
• Court: U.S. District Court — Northern District of California

552 F.Supp.3d 924

FRIENDS OF GUALALA RIVER, et al., Plaintiffs,

v.GUALALA REDWOOD TIMBER, LLC, Defendant.

Case No. 20-cv-06453-JD

United States District Court, N.D. California.

Signed August 3, 2021

Timothy Sward Kline, George Alexander Croton, Stuart George Gross, Gross & Klein LLP, San Francisco, CA, for Plaintiffs.

Christopher J. Carr, Monica C. Molina, Navtej Singh Dhillon, Paul Hastings LLP, San Francisco, CA, for Defendant.

ORDER RE PRELIMINARY INJUNCTION

Re: Dkt. No. 61

JAMES DONATO, United States District Judge In this environmental lawsuit, plaintiffs Friends of Gualala River (FOGR) and the Center for Biological Diversity (CBD) challenge the Dogwood Timber Harvesting Plan (Dogwood THP) approved by the California Department of Forestry and Fire Protection (Cal Fire) for a logging project proposed by defendant Gualala Redwood Timber, LLC (GRT) in a privately-owned forest on the Gualala River floodplain. Plaintiffs allege that the logging will despoil the Gualala River ecosystem and result in a taking of four protected species: the California red-legged frog; the northern spotted owl; the Northern California steelhead; and the California Central Coast Coho salmon. See Dkt. No. 1. They have asked to enjoin implementation of the Dogwood THP under the Endangered Species Act, 16 U.S.C. §§ 1531 et seq. (ESA). Dkt. No. 61.

At first blush, this case appears to raise fresh legal questions about the Dogwood THP, but that impression is misleading. What the complaint does not disclose is that FOGR has already litigated the environmental impacts of the project in California state court, starting with a lawsuit filed in 2016. The state litigation resulted in substantial modifications of the Dogwood THP to reduce its impacts, and culminated in an opinion by the California Court of Appeal affirming the trial court's decision to lift a prior injunction against the logging. Friends of Gualala River v. Dep't of Forestry and Fire Protection , No. A159903, 2021 WL 672107 (Cal. Ct. App. Feb. 22, 2021). Rather surprisingly, plaintiffs also made no mention of the Court of Appeal opinion in their injunction motion, which was filed several months after the opinion was issued. This omission is all the more puzzling in light of the fact that plaintiffs filed a "statement of recent decision" that attached the opinion the day it was issued. Dkt. No. 41.

GRT's main opposition to an injunction is that res judicata bars plaintiffs’ claims. GRT contends that the potential environmental impacts of the logging project, including its possible impacts on threatened or endangered species, were actually litigated in the state court proceedings, or could have been, and that plaintiffs are not entitled to a second bite of the apple here. Dkt. No. 78 at 7.¹ GRT has demonstrated that a California court would give preclusive effect to the prior judgments in FOGR's litigation. Consequently, the Court concludes that plaintiffs have not demonstrated a likelihood of success on the merits, or a serious questions going to the merits, and a preliminary injunction is denied.

BACKGROUND

I. THE DOGWOOD THP

Logging is a highly regulated industry in California. Before any trees can be cut, the Z'berg-Nejedly Forest Practice Act of 1973 and its implementing regulations, the Forest Practice Rules, require the preparation of a timber harvesting plan (THP) by a registered professional forester. Cal. Pub. Res. Code §§ 4551 et seq. ; 14 Cal. Code Regs. §§ 895 et seq. The THP must be submitted to Cal Fire for review, public comment, and approval. Cal. Pub. Res. Code § 4581 - 82. The California Environmental Quality Act (CEQA) and its implementing regulations impose additional requirements on such projects. Cal. Pub. Res. Code, §§ 21000 et seq. ; 14 Cal. Code Regs. §§ 15000 et seq.

GRT is a timber company that owns the forest to be logged. Dkt. No. 1 (Compl.) ¶ 15. Its proposal to harvest timber on its property was first approved by Cal Fire more than five years ago, in July 2016. Dkt. No. 63-1, Ex. B. (Dogwood I Compl.) ¶ 1. The initial THP underwent several rounds of revision, public comment, and judicial review over the next several years as the result of multiple challenges by FOGR in state court. This lawsuit focuses on a revised version of the THP that Cal Fire approved in March 2018, which is referred to as the Dogwood II THP in the state court litigation, and as the Dogwood THP here. See Dkt. No. 1 ¶ 15; Friends of Gualala River , 2021 WL 672107, at *1.

As it stands today, the Dogwood THP permits a timber harvest on GRT's property, which is located upstream from the mouth of the Gualala River, on the border of Sonoma and Mendocino counties. Dkt. No. 1 ¶¶ 25, 28-29, 40. Under the terms of the Dogwood THP, GRT will not engage in clearcutting of trees, but will instead use restoration forestry methods and "light-touch selection harvesting techniques." Dkt. No. 71 (Kent Decl.) ¶ 18; Dkt. No. 72 (McMahon Decl.) ¶ 26. GRT is authorized to cut down an average of 12.5 of the estimated 285 trees per acre, and 52 acres of the total forest area of 342 acres will not be logged at all. Dkt. No. 72 ¶¶ 12, 19. No logging of any sort can be done within 30 feet of the edge of the Gualala river under the terms of the plan, which incorporates the Forest Practice Rules, 14 Cal. Code Regs. § 916.9(f)(2)(A). Dkt. No. 71 ¶ 9. To preserve canopy cover, which is vital to the health of aquatic and riverine species, GRT must retain the largest 13 to 20 trees growing on each acre. Dkt. No. 72 ¶ 16. To minimize the impact of the logging operation, GRT will use only pre-existing logging roads and landings to execute the project; no new roads are allowed. Id. ¶ 13. Since the terrain subject to the Dogwood THP is "generally level," the risk of erosion is relatively low. Dkt. No. 73 (O'Connor Decl.), Ex. A at 10. Even so, GRT is required to stormproof the logging roads "to ensure sediment is not carried from them to watercourses by winter rains," which will reduce the potential impact of the operation on aquatic species. Dkt. No. 71 ¶ 33.

II. THE STATE COURT LITIGATION

FOGR initially sued in state court to set aside the Dogwood THP in 2016. Over the next several years, FOGR filed successive actions challenging revisions to the plan. The litigation spanned five years and three separate lawsuits in state court. Most of the challenges were successful, resulting in revisions to the plan that reduced its overall impact on the area and the sensitive species that live there. The scope of GRT's logging project was substantially reduced, and additional environmental controls were imposed. Because this history is central to the res judicata analysis, a detailed review is warranted.

In the initial lawsuit, filed in August 2016, FOGR sued GRT and Cal Fire under the California Environmental Quality Act (CEQA), Cal. Pub. Res. Code §§ 21000 et seq. , and the Z'berg-Nejedly Forest Practice Act of 1973, Cal. Pub. Res. Code §§ 4511 et seq. FOGR alleged that Cal Fire had not adequately assessed the environmental impact of the Dogwood THP. Dkt. No. 63-1, Ex. B (Dogwood I Compl.).² Tellingly for present purposes, FOGR expressly alleged that the Dogwood THP had failed to "provide an analysis of mitigation" as required by various laws and regulations, "including the Endangered Species Act." Id. ¶ 46. FOGR also referred to potential impacts on "threatened wildlife" species such as Steelhead and California red-legged frogs. Id. ¶ 3; see also id. ¶ 21 (referring to salmonid, amphibian, and other "special-status wildlife species," and "rare plants").

In March 2017, the Superior Court agreed with FOGR and set aside the initial Dogwood THP. Dkt. No. 63-1, Ex. C. In response, Cal Fire revised the Dogwood THP in several respects, reduced the total size of the proposed project from 402 to 342 acres, and submitted the plan for another round of public comment. Friends of Gualala River , 2021 WL 672107, at *1. Cal Fire approved the revised plan in March 2018, which is the operative Dogwood THP here. Id.

In April 2018, FOGR filed a second lawsuit against GRT and Cal Fire, this time over the freshly approved Dogwood THP. See Dkt. No. 63-1, Ex. E (Dogwood II Compl.). FOGR alleged substantially the same claims as in the first suit, and again expressly stated that the Dogwood THP continued to flout the Endangered Species Act with respect to salmonids, red-legged frogs, and other plants and animals. See id. ¶¶ 6, 42, 48, 49, 50, 51, 63, 68, 88. The Superior Court issued a preliminary injunction pending further proceedings. See Dkt. No. 63-1, Ex. F.

In October 2018, the Superior Court ruled in FOGR's favor on the claims that the Dogwood THP did not "adequately explain how and why current forest practices will avoid additional environmental damage and ameliorate past problems." Friends of Gualala River , 2021 WL 672107, at *2. The Superior Court also concluded that the Dogwood THP did not provide a sufficient explanation of potential alternative methods for use in the logging. Id. The Superior Court denied several other claims, including FOGR's allegations that the Dogwood THP "would negatively impact salmonids," "failed to identify rare plants," and did not adequately define the wetlands area. Id. None of the state court parties appealed the 2018 decision, and a final judgment enjoining the THP was issued in November 2018. Id. at *3 ; Dkt. No. 63-1, Ex. H. The injunction required Cal Fire to address the THP's deficiencies and prohibited GRT from conducting any operations until the trial court determined the sufficiency of the revisions. Friends of Gualala River , 2021 WL 672107, at *3.

Pursuant to the injunction, Cal Fire further revised the Dogwood THP in January and March 2019, and recirculated it for public comment on both occasions. Id. After a hearing on the sufficiency of these revisions in January 2020, the Superior Court found that Cal Fire had fully addressed the remaining issues with the Dogwood THP, and lifted the injunction. Dkt. ...