Hewlett v. Squaw Valley Ski Corp.

• Decision Date: 22 April 1997
• Docket Number: No. C020539,C020539
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 2939, 97 Daily Journal D.A.R. 5145 William R. HEWLETT et al., Plaintiffs and Appellants, v. SQUAW VALLEY SKI CORPORATION, Defendant and Appellant.

Page 118

63 Cal.Rptr.2d 118

54 Cal.App.4th 499, 97 Cal. Daily Op. Serv. 2939,

97 Daily Journal D.A.R. 5145

William R. HEWLETT et al., Plaintiffs and Appellants, v. SQUAW VALLEY SKI CORPORATION, Defendant and Appellant.

No. C020539.

Court of Appeal, Third District, California.

April 22, 1997.

Remy, Thomas, and Moose, Michael H. Remy, Bradford R. Fenocchio, Placer County District Attorney, Joseph F. Barbara, Placer County Deputy District Attorney, McCutchen, Doyle, Brown & Enersen, Terry J. Houlihan, Stephanie S. Lamarre, John V. Wadsworth and Michael T. Pyle, for Plaintiffs and Appellants.

Brobeck, Phleger & Harrison, Jeffrey S. Kingston, Thomas M. Peterson and Michael B. Green, San Francisco, for Defendant and Appellant.

SPARKS, Acting P.J.

In this appeal we are presented with the latest installment in the continuing dispute between defendant Squaw Valley Ski Corporation (Squaw Valley) and objecting parties over the development of ski runs in an area of Squaw Valley's ski resort known as the "Tram Basin Bowl." When litigation threatened The Placer County District Attorney brought a lawsuit for unfair competition asserting Squaw Valley had engaged in unlawful business practices in cutting down these trees. (Bus. & Prof.Code, § 17200.) A second suit, brought by a private individual, William R. Hewlett, and the Sierra Club, made similar allegations. The district attorney dismissed his suit and joined Hewlett and the Sierra Club as a plaintiff in their lawsuit.

the planned project, Squaw Valley in essence resorted to self-help and cut more than 1,800 trees.

The trial court found defendant Squaw Valley had engaged in unfair competition by committing unlawful business practices by violating provisions of the Zberg-Nejedly Forest Practice Act (Forest Practice Act or FPA) (Pub.Res.Code, § 4511 et seq.), violating provisions of a conditional use permit and violating terms of a temporary restraining order. The court imposed fines totaling $223,000, ordered mandatory and prohibitory injunctive relief, and awarded attorney fees to plaintiffs Hewlett and Sierra Club.

On appeal, Squaw Valley contends it did not engage in ongoing unlawful business practices, and did not violate the Forest Practice Act or the temporary restraining order. It further asserts that violations of a use permit or a temporary restraining order cannot form the basis for a claim of unlawful business practices under the unfair competition statute. Squaw Valley also challenges the remedies imposed and the award of attorney fees.

In a protective cross-appeal, plaintiffs contend the court erred in refusing to permit an amendment to their complaint and in granting Squaw Valley's motion for directed verdict on certain portions of the complaint.

We shall affirm the judgment and dismiss the cross-appeal as moot.

FACTUAL AND PROCEDURAL BACKGROUND

The genesis for this case was described in a previous unpublished decision of this court, Sierra Club v. County of Placer (Apr. 13, 1994) C012901, in which we held that the environmental impact report (EIR) prepared for the ski run expansion was inadequate. We quote from that opinion:

"Squaw Valley, one of several ski areas in the vicinity of Lake Tahoe, is located near the Tahoe National Forest and the Granite Chief Wilderness Area. The resort hosted the 1960 Winter Olympic games and has grown significantly since that time. We briefly recount the pertinent history related to this development.

"In 1972, County adopted the 'Squaw Valley General Plan,' which focused in part on the Shirley Canyon area and a number of proposed ski lifts. Noting the area had 'sensitive geologic, soil, slope and vegetative characteristics,' the plan recommended that 'Shirley Lake Canyon skiing be devoted to cross-country type skiing thus alleviating the need for extensive tree cutting and trail grooming. The Shirley Lake Canyon area is extremely sensitive to development and should remain in its natural state as the gateway to the Granite Chief area.' The plan eliminated proposed 'Shirley Lake # 2' ski lift finding such a lift 'might cause irreparable environmental damage because of ski run clearing and trail grooming needed to establish this lift as a recreation ski lift....'

"In 1975, County released the 'Squaw Valley Master Ski Lift' final EIR, which related to Squaw Valley's plans to build four new ski lifts.... Ultimately, a conditional use permit (CUP-067) was issued for the construction of the Silverado/Squaw Creek lift, located in the Shirley Canyon area. Squaw Valley had represented that approximately 90 trees would need to be removed to build the lift and clear the ski trails. Apparently, this was intended as a 'through-the-trees' expert ski run. The permit specified the lift 'and accompanying trails or runs shall be planned and designed in such a way that there will be no need to construct trails, runs, tree removal, maintenance roads, access roads, etc. in the lower Shirley Canyon area now or in the future.'

"Some time later, Squaw Valley applied for a conditional use permit and general plan amendment to build another lift, the Solitude lift. The permit issued (CUP-095) but due "Litigation continued on another front, however, when CUP-067 expired before the Silverado/Squaw Creek lift was built. County agreed to extend this permit after the proposed location of the lift terminal was moved so that it would not intrude into the stream environment zone ... of Squaw Creek.

to 'flagrant[ ] and willful[ ]' violations of conditions imposed to protect the environment, the permit was revoked in September 1976. The parties ultimately settled their differences and Squaw Valley prepared another EIR for the Solitude lift project in 1978.

"In 1982, Squaw Valley sought to amend this permit to allow several lifts, including the Silverado/Squaw Creek lift, to expand their capacity by installing triple chair lifts instead of the double lifts previously approved. An EIR was prepared and the change was ultimately approved.

"In 1983, the Squaw Valley General Plan was updated. The plan, and the EIR prepared in conjunction with that plan, described some of the area's environmental problems, including traffic congestion, the degradation of water quality in Squaw Creek and the Truckee River, and air pollution on heavier traffic days. To protect Shirley Canyon and preserve its 'existing natural, semi-primitive state,' the plan zoned the area as 'conservation preserve.'[ ¹] The plan encouraged transferring the permit rights for the Silverado/Squaw Creek lift to another lift area. The plan further noted: '[I]t is recognized that a current Conditional Use permit (CUP-067) exists which authorizes the construction of a new ski lift in Shirley Canyon, known as the Squaw Creek lift. This lift is shown in the Squaw Valley General Plan although it is not consistent with the current goals of the Plan as they relate to Shirley Canyon. Certain conditions placed on the Conditional Use Permit of this lift will serve to mitigate some of the adverse impacts resulting from its construction and operation. Placer County has an obligation to permit the construction of the Squaw Creek lift if the permit is exercised within the time period allowed and if the conditions of approval are met. Should the permit not be exercised and its approval lapse, the lift should not be approved again.'

"Squaw Valley filed an action for inverse condemnation, asserting this rezoning unconstitutionally deprived it of the use of its property without just compensation. [ ] Nonetheless, in 1984, construction on the lift began. In mid-1986, in an apparent attempt to settle the 'takings' litigation, Squaw Valley applied for a general plan amendment and zoning change, seeking to have additional land surrounding the Squaw Creek lift zoned 'forest recreation' rather than 'conservation preserve.' Squaw Valley also sought a conditional use permit to cut down 1,858 trees to enlarge the trails served by the Silverado/Squaw Creek lift. County ordered the preparation of a full EIR for this project."

On July 25, 1988, the Placer County Board of Supervisors approved the EIR, the general plan amendment, the zoning change, and the conditional use permit (CUP-974), and in October 1988, the zoning change ordinance was approved. Squaw Valley was thus authorized to cut the trees necessary to develop the ski runs to be served by the Silverado lift.

Glen Smith, a professional forester who worked for Squaw Valley, spoke with an official from the California Department of Forestry (CDF), who suggested that Squaw Valley might want to sell the felled trees, instead of simply leaving them for employees to use as firewood. Squaw Valley decided selling the timber should remain an option and therefore amended the timber management plan it had previously submitted to delete language stating the timber would be used "for ski area construction or for fuelwood."

In October 1988, Squaw Valley applied for a timberland conversion permit from CDF. This permit is required of "[a]ny person who owns timberlands which are to be devoted to uses other than the growing of timber...." (Pub.Res.Code, § 4621.) In an affidavit filed with this application, James Mott, the president and general manager of Squaw Valley In October 1988, the Sierra Club filed suit to set aside the EIR and the project approvals. The trial court issued an alternative writ of mandate, directing Squaw Valley to show cause why the project approvals should not be set aside. The hearing was initially scheduled for January 31, 1989. Because Squaw Valley had indicated that it did not plan to cut any trees until April 1989, the court did not issue a temporary restraining order. The hearing date on the alternative writ and request for preliminary injunction was extended to March 10 by stipulation of counsel, and subsequently extended again to April 1989.

declared under penalty of perjury that conversion of the land "will commence about ...