Pacific Lumber v. State Water Bd.
| Decision Date | 18 March 2004 |
| Docket Number | No. A102399,A102399 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PACIFIC LUMBER COMPANY et al., Plaintiffs and Respondents, v. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant. |
Bill Lockyer, Attorney General, Richard M. Frank and Mary E. Hackenbracht, Assistant Attorneys General, Nicholas Stern, Deputy Attorney General, for Defendant and Appellant.
Stoel Rives, Edgar B. Washburn, Christopher J. Carr and William M. Sloan, San Francisco; Carter, Behnke, Oglesby & Bacik, John A. Behnke and Frank Shaw Bacik, Ukiah, for Plaintiffs and Respondents.
Barnum & Herman, Thomas M. Herman and William F. Barnum, Eureka, for California Forestry Association as Amicus Curiae on behalf of Plaintiffs and Respondents.
Does the Forest Practice Act establish an exclusive regulatory framework that precludes other agencies from enforcing the laws they are charged with administering when logging activities implicate those laws? We conclude that it does not and that it was error to issue a writ of mandate preventing the California State Water Resources Control Board from enforcing water quality protection measures against a timber company.
The Pacific Lumber Company (Pacific Lumber) owns property in the Headwaters Forest. It obtained approval from the California Department of Forestry and Fire Protection for an amended Timber Harvest Plan authorizing it to harvest timber along the South Fork of the Elk River. Before it could begin, however, the California State Water Resources Control Board (State Water Board) issued an order requiring Pacific Lumber to monitor water quality in the Elk River. Pacific Lumber sought a writ of mandate, and the trial court issued the writ, holding that the State Water Board lacked jurisdiction to enforce water quality laws against Pacific Lumber. We reverse.
In the mid-1990's, the Elk River Timber Company (predecessor in interest to Pacific Lumber) planned to log approximately 700 acres of redwood forest along the South Fork of the Elk River, in the Headwaters Forest in Humboldt County. In California, all timber harvesting is regulated by the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act). (Pub. Resources Code, §§ 4511-4628.) Under the Forest Practice Act, no timber harvesting can occur until a Timber Harvest Plan (THP) has been submitted and approved by the California Department of Forestry and Fire Protection (Department of Forestry). (Pub. Resources Code, § 4581.)
On December 31, 1997, the Elk River Timber Company submitted a proposed THP to the Department of Forestry. Because of previous logging along the North Fork of the Elk River, the Elk River had been classified as an "impaired water body" by the responsible regional water board, the Regional Water Quality Board, North Coast Region (Regional Water Board). (See 33 U.S.C. § 1313, subd. (d).) Consequently, when the Elk River Timber Company submitted a proposed THP for the South Fork of the Elk River, the Regional Water Board submitted comments to the Department of Forestry recommending a water quality monitoring program. (Public Res.Code, § 4582.6, subd. (a).) The Elk River Timber Company's registered professional forester agreed generally with this recommendation. On August 24, 1998, the Department of Forestry approved the proposed THP (THP 520). No formal water quality monitoring program was incorporated, but Elk River Timber Company agreed to carry out voluntary monitoring.
The next month, the Legislature passed A.B. 1986,1 which authorized public acquisition of the land that is now the Headwaters Forest Preserve. A.B. 1986 provided funding to carry out the Headwaters Agreement, an agreement between the state and federal governments and Pacific Lumber that would allow acquisition from Pacific Lumber of 5,600 acres of old-growth forest and formation of the government-owned Headwaters Forest Preserve. (See Coho Salmon v. Pacific Lumber Co. (N.D.Cal.1999) 61 F.Supp.2d 1001, 1005.) The land covered by THP 520 was not included in the Headwaters Forest Preserve; instead, as part of the Headwaters Agreement, Pacific Lumber acquired it from the Elk River Timber Company. THP 520 remained in effect and authorized timber harvesting on the 705 acres known as the "Hole in the Headwaters."
Because of limits on its access to the Hole in the Headwaters, Pacific Lumber submitted an amendment to THP 520 that would allow it to use helicopters to remove trees. The Department of Forestry initially approved the amendment as a "minor amendment" without public review, but a private lawsuit resulted in a preliminary injunction that required the proposed amendment to be resubmitted as a "major amendment" subject to a public review process.
The Regional Water Board participated in the public review process and submitted comments. It recommended that THP 520 be further amended to provide for an evaluation of pre-timber harvest water conditions and ongoing water quality monitoring. The Department of Forestry declined to adopt the Regional Water Board's recommendations, and on March 6, 2001, it approved the amendment to THP 520 without a water quality monitoring requirement or survey of initial conditions.
The Forest Practice Act authorizes the State Water Board to appeal Department of Forestry THP approvals to the State Board of Forestry. (Pub. Resources Code, § 4582.9.) The Regional Water Board asked the State Water Board to take an appeal, but the State Water Board chose not to do so.
The Regional Water Board then issued its own order requiring water quality control monitoring. The Regional Water Board's order required Pacific Lumber to establish five monitoring stations along the South Fork of the Elk River, and required in-stream trend monitoring, timber harvest plan compliance monitoring, and stream crossing monitoring. Pacific Lumber appealed to the State Water Board, which held a series of hearings, vacated the Regional Water Board's order, and issued its own order imposing water monitoring requirements. The State Water Board order reduced the number of monitoring stations required to two, one above and one below the area where timber harvesting would occur. It also required monthly visual inspections of watercourse crossings during winter.2
Pacific Lumber filed a petition for writ of mandamus, seeking to prevent the State Water Board order from taking effect. It argued that the State Water Board order was unlawful because it was precluded both by the Department of Forestry's exclusive jurisdiction over timber harvesting issues and by the State Water Board's failure to take an appeal from the approval of the amendment to THP 520. The State Water Board argued that its jurisdiction over water quality issues was concurrent, and that when timber harvesting operations affected water quality, it was authorized to issue its own orders regulating those impacts. After a hearing, the trial court held that the Department of Forestry's jurisdiction was exclusive, and it granted Pacific Lumber's petition.
On appeal following the trial court's decision on a petition for a writ of mandamus, we review questions of law and issues of statutory interpretation de novo. (Alliance for a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 129, 133 Cal.Rptr.2d 249; see International Federation of Professional & Technical Engineers v. City and County of San Francisco (1999) 76 Cal.App.4th 213, 224, 90 Cal.Rptr.2d 186.)
The starting point for our analysis is Public Resources Code section 4514,3 which provides: (Emphasis added.)
On its face, Public Resources Code section 4514, subdivision (c) directly addresses the inter-agency issue. It provides that notwithstanding orders of the Department of Forestry (such as the approval of a THP or THP amendment), other state agencies may continue to enforce those laws entrusted to them. The other subdivisions of section 4514 reinforce the notion that the Forest Practice Act is not the sole means of regulating the impacts of timber harvesting activities. Subdivisions (a), (b), and (d) authorize public prosecutors and individual citizens to bring actions if and when warranted. Under section 4514, timber companies must comply with Department of Forestry directives and all other applicable laws.
Public Resources Code section 4514 mirrors Water Code section 13002, a provision that underlines the Legislature's intent to provide for concurrent, overlapping jurisdiction. Water Code section 13002 provides, ...
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