Friends of the Old Trees v. Department of Forestry & Fire Protection

• Decision Date: 25 February 1997
• Docket Number: No. A070588,A070588
• Citation: 52 Cal.App.4th 1383,61 Cal.Rptr.2d 297
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 1372, 97 Daily Journal D.A.R. 1955 FRIENDS OF THE OLD TREES, Plaintiff and Respondent, v. CALIFORNIA DEPARTMENT OF FORESTRY & FIRE PROTECTION, et al., Defendants and Appellants; Bruce L. VAN ALSTYNE et al., Real Parties in Interest and Appellants.

Page 297

61 Cal.Rptr.2d 297

52 Cal.App.4th 1383, 97 Cal. Daily Op. Serv. 1372,

97 Daily Journal D.A.R. 1955

FRIENDS OF THE OLD TREES, Plaintiff and Respondent, v. CALIFORNIA DEPARTMENT OF FORESTRY & FIRE PROTECTION, et al., Defendants and Appellants Bruce L. VAN ALSTYNE et al., Real Parties in Interest and Appellants.

No. A070588.

Court of Appeal, First District, Division 5, California.

Feb. 25, 1997.

Rehearing Denied March 27, 1997.

Review Denied May 21, 1997.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Charles W. Getz, IV, Senior Assistant Attorney General, John Davidson, Supervising Deputy Attorney General for Defendants and Appellants.

Ronald A. Zumbrun, John H. Findley, Zumbrun & Findley, Sacramento, for Real Parties in Interest.

Paul V. Carroll, Menlo Park, for Plaintiff and Respondent.

CHAMPLIN, Judge. ^*

By petition for writ of mandate, respondent Friends of the Old Trees (Friends) challenged the approval by appellant California Department of Forestry and Fire Protection (the Department) of a modified timber harvest plan (THP) prepared and submitted by real party in interest Bruce L. Van Alstyne (Van Alstyne). The trial court granted the writ, concluding the Department's approval of the plan required a cumulative impacts analysis and a discussion of alternatives to the project. The Department and Van Alstyne both appeal from this ruling. ¹ Although we have followed a different analytical path, we agree with the trial court that by approving the plan without the necessary information regarding cumulative impacts and project alternatives, the Department abused its discretion.

In reaching this conclusion, we announce several holdings important to judicial review of modified THPs filed pursuant to CALIFORNIA CODE OF REGULATIONS, TITLE 14, SECTIONS 1051² and 1051.1. 1) Judicial review of the Department's approval of a modified THP should proceed by administrative mandamus (Code Civ. Proc., § 1094.5), and the review should ordinarily be confined to the administrative record. 2) The automatic incorporation of mitigation measures as a prerequisite for approving a modified THP does not grant a blanket exemption from the normal requirements for drafting a legally-sufficient THP. 3) In reviewing the agency's decision that the proposed timber harvesting is unlikely to cause a significant adverse impact to the environment, the court should independently examine the administrative record to determine if there is substantial evidence to support a fair argument that the proposed timber operations will have significant individual or cumulative impact on the environment.

Facts

On March 16, 1994, Van Alstyne, through a registered professional forester, submitted to the Department a modified THP seeking approval to selectively harvest 35 acres of trees on his property located near Occidental in Sonoma County. The stand is described as a dense redwood forest with almost 100 percent crown closure. It is 90 percent redwood and 10 percent Douglas fir and hardwoods. The forest was to be selectively harvested, with approximately 20 to 25 percent of the trees over five feet in diameter to be cut. The selective harvest involves removal of individual trees growing among other trees for the purpose of providing extra room for the continued growth of the trees which are retained. The last significant harvest in the stand was 100 years ago. The next harvest is expected to be in 12 to 15 years.

Under the Z'Berg-Nejedly Forest Practice Act of 1973 (hereafter Forest Practice Act; PUB. RESOURCES CODE, § 4511³, et seq.) and its implementing regulations (hereafter Forestry Rules; Regs., § 895, et seq.), Van Alstyne's planned logging, like all similar logging in the state, was subject to the Department's approval of a site specific THP. (See § 4581; Sierra Club v. State Bd. of Forestry (Sierra Club) (1994) 7 Cal.4th 1215, 1226-1227, 32 Cal.Rptr.2d 19, 876 P.2d 505; Environmental Protection Information Center, Inc. v. Johnson (EPIC) (1985) 170 Cal.App.3d 604, 609, 216 Cal.Rptr. 502.) The THP preparation and approval process is the functional equivalent of the preparation of an environmental impact report (EIR) contemplated by the California Environmental Quality Act (CEQA) (§ 21000, et seq.) (EPIC, supra, at p. 611, 216 Cal.Rptr. 502.) Van Alstyne submitted a modified THP under Regulations, sections 1051 and 1051.1. In order to file a modified THP, the plan submitter must own 100 acres or less and meet specified conditions which are designed to avoid and mitigate significant adverse environmental effects. (See Regs., § 1051, subds. (a)(1)-(16).)

The proposed logging generated significant public interest, which was demonstrated by more than 250 letters from concerned members of the public protesting the plan and seeking further information. After the Department approved Van Alstyne's THP, Friends petitioned for a writ of mandamus. The superior court issued the writ on a finding that the Department had abused its discretion by approving the THP without an assessment of cumulative impacts or project alternatives. Van Alstyne was enjoined from harvesting trees on the property until there was approval of a THP consistent with the court's decision.

Admission of Extra-Record Evidence

Appellants contend the trial court erred in expanding the scope of the evidence it considered beyond the administrative record. The challenge is specifically directed at the trial court's admission and reliance on five declarations written after the Department's administrative review had been completed expressing concern that the proposed timber harvesting would deleteriously affect the local water supply. The crux of this contention is that the trial court erred in treating this matter as a section 1085 traditional mandamus, thereby allowing the admission of extra-record declarations prepared after the Department concluded its review.

Legal challenges to an environmental determination "made as a result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken and discretion in the determination of facts is vested in a public agency," are governed by section 21168. Such actions must be brought as administrative mandamus proceedings under Code of Civil Procedure section 1094.5. ( Western States Petroleum Assn. v. Superior Court (Western States) (1995) 9 Cal.4th 559, 566-567, 38 Cal.Rptr.2d 139, 888 P.2d 1268.) Section 21168.5 applies to "any action or proceeding, other than an action or proceeding under Section 21168..." Case law establishes that actions subject to section 21168.5 must be filed as ordinary or "traditional" mandamus proceedings under Code of Civil Procedure section 1085. (Western States, supra, 9 Cal.4th at pp. 567-568, 38 Cal.Rptr.2d 139, 888 P.2d 1268; Laurel Heights Improvement Assn. v. Regents of University of California (Laurel Heights) (1988) 47 Cal.3d 376, 392, fn. 5, 253 Cal.Rptr. 426, 764 P.2d 278.)

Quasi-legislative acts are ordinarily reviewed by traditional mandate, and quasi-judicial acts are reviewed by administrative mandate. (Western States, supra, 9 Cal.4th at pp. 566-567, 38 Cal.Rptr.2d 139, 888 P.2d 1268.) "Generally speaking, a legislative action is the formulation of a rule to be applied to all future cases, while an adjudicatory act involves the actual application of such a rule to a specific set of existing facts." (Strumsky v. San Diego County Employees Retirement Assn. (1974) 11 Cal.3d 28, 34-35, fn. 2, 112 Cal.Rptr. 805, 520 P.2d 29.)

Review under administrative mandamus (§ 21168) and review under traditional mandamus (§ 21168.5) share many of the same characteristics. There is no practical difference between the standards of review applied under traditional or administrative mandamus. ⁴ (Gentry v. City of Murrieta (Gentry) (1995) 36 Cal.App.4th 1359, 1375, 43 Cal.Rptr.2d 170.) The remedies available remain the same. (Woods v. Superior Court (1981) 28 Cal.3d 668, 673-674, 170 Cal.Rptr. 484, 620 P.2d 1032.) The critical distinction for our purposes is the record available for review. When an agency's quasi-judicial determination is reviewed by administrative mandamus, judicial review is generally limited to the evidence in the record of the agency proceedings. (See § 21168; Code Civ. Proc., § 1094.5, subd. (c).) By recent Supreme Court authority which worked a substantial change in the law, when an agency's quasi-legislative decision is reviewed by traditional mandamus, judicial review is also ordinarily limited to the administrative record. (Western States, supra, 9 Cal.4th at p. 576, 38 Cal.Rptr.2d 139, 888 P.2d 1268.) However, if the action challenges a ministerial or informal administrative action and the facts are in dispute, extra-record evidence may be necessary for adequate review "because there is often little or no administrative record in such cases." (Id. at p. 575, 38 Cal.Rptr.2d 139, 888 P.2d 1268.)

The question of whether the petition was properly one for administrative or traditional mandamus was resolved by the trial court in favor of traditional mandamus on the basis that the notice and public comment provisions of the Forestry Rules did not amount to a hearing required by law in which evidence is required to be taken as required by Code of Civil Procedure section 1094.5, subdivision (a), and section 21168. ⁵ Relying on No Oil, Inc. v. City of Los Angeles (No Oil ) (1974) 13 Cal.3d 68, 79, footnote 6, 118 Cal.Rptr. 34, 529 P.2d 66, the trial court obviously believed that once this matter was classified as one in traditional mandamus, the record could automatically be opened for additional evidence.

However, in Western States, the court specifically disapproved of the language in No Oil relied upon by the trial court and soundly rejected this automatic approach to opening up the record for additional evidence. (Western States, supra, 9 Cal.4th at pp. 575-576, 38 Cal.Rptr.2d 139, 888 P.2d 1268...