Pacific Lumber v. Water Res. Control Bd.

• Decision Date: 30 January 2006
• Docket Number: No. S124464.,S124464.
• Citation: 126 P.3d 1040,37 Cal.4th 921,38 Cal.Rptr.3d 220
• Parties: PACIFIC LUMBER COMPANY et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.
• Court: California Supreme Court

38 Cal.Rptr.3d 220

37 Cal.4th 921

126 P.3d 1040

PACIFIC LUMBER COMPANY et al., Plaintiffs and Respondents, v. STATE WATER RESOURCES CONTROL BOARD, Defendant and Appellant.

No. S124464.

Supreme Court of California.

January 30, 2006.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Richard M. Frank and Mary E. Hackenbracht, Assistant Attorneys General, and

Nicholas Stern, Deputy Attorney General, for Defendant and Appellant.

Law Offices of Sharon E. Duggan and Sharon E. Duggan, San Francisco, for Environmental Protection Information Center as Amicus Curiae on behalf of Defendant and Appellant.

Stoel Rives, Morrison & Foerster, Edgar B. Washburn, San Francisco, Christopher J. Carr, William M. Sloan; Carter, Behnke, Oglesby & Bacik, Carter, Oglesby, Momsen & Bacik, John A. Behnke and Frank Shaw Bacik, Ukiah, for Plaintiffs and Respondents.

Neil E. Fischer, Beverly Hills; Barnum & Herman, Thomas M. Herman and William F. Barnum, Eureka, for California Forestry Association as Amicus Curiae on behalf of Plaintiffs and Respondents.

MORENO, J.

This case addresses whether the Z'berg-Nejedly Forest Practice Act of 1973 (Pub. Res.Code, § 4511 et seq.) and its implementing regulations provide the exclusive mechanism through which the Regional Water Quality Control Boards and the State Water Resources Control Board (collectively, Water Boards) may address water quality concerns implicated by logging operations associated with a timber harvest plan.

The present dispute arose following the California Department of Forestry and Fire Protection's (Department of Forestry) approval of a timber harvest plan amendment submitted by Scotia Pacific Company LLC and Pacific Lumber Company (collectively, Pacific Lumber). The North Coast Regional Water Quality Control Board had objected to the amendment, asserting that it contained insufficient safeguards to protect nearby waters potentially affected by the proposed logging activity. This objection was overruled by the Department of Forestry. The Regional Water Quality Control Board and the State Water Resources Control Board then issued orders directing Pacific Lumber to adopt a water quality monitoring program that had not been required by the Department of Forestry. Pacific Lumber asserts that these orders are invalid because the Forest Practice Act prevents the Water Boards from compelling water quality monitoring related to logging already subject to an approved timber harvest plan.

Pacific Lumber's construction of the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act) as providing the exclusive means of regulating timber harvesting is based on public policy, i.e., on a view that the Legislature could not have endorsed an allegedly duplicative and overtaxing regulatory scheme. While it may be the case that a streamlined process would claim certain advantages (and possible disadvantages) relative to a scheme contemplating overlapping jurisdiction, the Forest Practice Act's plain language dictates the result here. Specifically, the Forest Practice Act's savings clause provides that "[n]o provision of this chapter or any ruling, requirement, or policy of the [State Board of Forestry and Fire Protection] is a limitation on ... [¶] ... [¶] ... the power of any state agency in the enforcement or administration of any provision of law which it is specifically authorized or required to enforce or administer." (Pub.Res.Code, § 4514, subd. (c).) The Porter-Cologne Water Quality Control Act (Wat.Code, § 13000 et seq.) specifically authorizes the water quality monitoring ordered by the Water Boards. (See Wat.Code, §§ 13267, subd. (b)(1), 13320, subd. (c).) In light of the Forest Practice Act's express disclaimer of any interference with agency responsibilities, and the absence of any irreconcilable conflict between the savings clause and other provisions of the Forest Practice Act, we cannot accept Pacific Lumber's argument that the act implicitly allocates to the Department of Forestry exclusive responsibility for protecting state waters affected by timber harvesting, in derogation of the Water Boards' statutory prerogatives.

As the Court of Appeal reached the same conclusion, we affirm its judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case involves proposed logging activity on approximately 700 wooded acres in Humboldt County's Elk River watershed. Until 1999, this land was owned by the Elk River Timber Company (Elk River). In 1997, Elk River submitted a timber harvest plan (THP) as a precursor to logging this area. Under California law, an approved THP is a prerequisite to all nonexempt logging operations. (Pub.Res.Code, § 4581.)¹ The Department of Forestry must review THP's to determine whether they comport with the Forest Practice Act and the rules and regulations of the State Board of Forestry and Fire Protection (Board of Forestry). (§ 4582.7.)

Elk River's THP underwent the multidisciplinary review spelled out in the Forest Practice Act and its associated regulations. (See § 4582.6, subds. (a), (b); Cal.Code Regs., tit. 14, § 1037.5.) The North Coast Regional Water Quality Control Board participated in this process, recommending that Elk River develop a sediment monitoring program along potentially affected waters. Elk River's forester agreed to the concept of a rigorous, cooperative monitoring program. But no mandatory monitoring program was ever written into the THP. The THP provided only that "[m]onitoring protocols, techniques and monitoring locations shall be chosen at the discretion of the landowner or representative." On August 24, 1998, Elk River's THP, known as THP 520, was approved by the Department of Forestry without any objection from the Regional Water Quality Control Board.

THP 520 and the land it encompassed were transferred to Pacific Lumber in 1999. This transaction occurred as part of the "Headwaters Agreement," through which the state gained control of the Headwaters Forest Preserve. (See Stats.1998, ch. 615.) On August 30, 1999, Pacific Lumber submitted the first of several amendments to THP 520 designed to facilitate logging operations at the site. This proceeding concerns amendment No. 5, which was submitted by Pacific Lumber on September 14, 2000. Amendment No. 5 proposed certain modifications to THP 520, including provisions allowing for wintertime operations, "yarding" (removal of felled timber) by helicopter, and other changes made necessary by the Headwaters Agreement.

Under the Forest Practice Act, substantial amendments to THP's also are subject to Department of Forestry approval. (§ 4591.) As part of the review process for amendment No. 5, a representative of the North Coast Regional Water Quality Control Board participated in on-site inspections of the THP 520 logging site on November 6, 2000 and November 29, 2000. In January 2001, the chairman of the review team for amendment No. 5 recommended that the Director of the Department of Forestry (Director) approve the amendment. (See Cal.Code Regs., tit. 14, § 1037.5, subd. (c).) Shortly thereafter, as allowed by the California Code of Regulations (id., subd. (e)), the Regional Water Quality Control Board submitted a "non-concurrence" disagreeing with the chairman's recommendation. The Regional Water Quality Control Board's non-concurrence letter voiced several concerns with the timber harvesting contemplated by the amended THP. Most relevant here, the letter stated that Pacific Lumber had not yet proposed a program that would adequately monitor the effects the harvesting would have on water quality. Without such monitoring, the Regional Water Quality Control Board argued, a chance existed that the timber harvesting authorized by THP 520 would violate state water quality law.²

The Department of Forestry rejected the North Coast Regional Water Quality Control Board's concerns regarding inadequate monitoring, stating that the proposed amendment "is anticipated to reduce water quality issues below those in the existing unamended plan. That plan, as noted by [the Regional Water Quality Control Board], is in place and operable without the monitoring program being proposed in this non-concurrence." The Regional Water Quality Control Board's objections having been overruled, the Director approved amendment No. 5 on March 6, 2001.

On March 13, 2001, the North Coast Regional Water Quality Control Board asked the State Water Resources Control Board to invoke the Forest Practice Act's "head of agency appeal process," which would have allowed the Board of Forestry to review the amendment's approval. (§ 4582.9.) Two days later, the State Water Resources Control Board received a letter from the Director advising the agency that "the amendment and its proposed operations have been sufficiently restricted and mitigated to the point that there is minimal risk to water quality." The State Water Resources Control Board ultimately did not invoke the head of agency appeal process.

Undeterred, the North Coast Regional Water Quality Control Board issued Monitoring and Reporting Order No. R1-2001-19 on March 28, 2001. This order required Pacific Lumber to adopt a comprehensive water quality monitoring program that would include five new monitoring stations along the South Fork of the Elk River. The Regional Water Quality Control Board advised Pacific Lumber that the program was necessary "to assure that discharges from [logging contemplated by THP 520] comply with Basin Plan objectives and prohibitions, to assure that discharges do not impede recovery of the watershed, and to identify and address discharges of sediments to receiving waters in a timely manner."

Pacific Lumber filed a petition (see Wat.Code, § 13320, subd. (a)) with the State Water Resources Control Board, asking it to rescind the North Coast Regional Water Quality Control Board's order. In its petition, Pacific Lumber argued that the Forest Practice Act's provisions relating to THP approval...