Sierra Club v. State Bd. of Forestry

• Decision Date: 21 July 1994
• Docket Number: No. S026367,S026367
• Citation: 876 P.2d 505,32 Cal.Rptr.2d 19,7 Cal.4th 1215
• Court: California Supreme Court
• Parties: , 876 P.2d 505 SIERRA CLUB et al., Plaintiffs and Appellants, v. STATE BOARD OF FORESTRY et al., Defendants and Respondents; PACIFIC LUMBER COMPANY, Real Party in Interest and Respondent.

Page 19

32 Cal.Rptr.2d 19

7 Cal.4th 1215, 876 P.2d 505

SIERRA CLUB et al., Plaintiffs and Appellants, v. STATE BOARD OF FORESTRY et al., Defendants and Respondents PACIFIC LUMBER COMPANY, Real Party in Interest and Respondent.

No. S026367.

Supreme Court of California,

In Bank.

July 21, 1994.

Towner & Lippe, Thomas N. Lippe and Bruce M. Towner, San Francisco, for plaintiffs and appellants.

Sharon E. Duggan, San Francisco, Zach Cowan, Berkeley, Robert B. Maddow, Walnut Creek, Dianne K. Barry and Veronica Y. Fauntleroy, Oakland, as amici curiae on behalf of plaintiffs and appellants.

Daniel E. Lungren, Atty. Gen., Roderick E. Walston, Chief Asst. Atty. Gen., R.H. Connett and Walter E. Wunderlich, Asst. Attys. Gen., M. Anne Jennings, Deputy Atty. Gen., and Clyde Small, Redding, for defendants and respondents.

Ronald A. Zumbrun, Robin L. Rivett and Brad W. Dacus, Sacramento, as amici curiae on behalf of defendants and respondents and real party in interest and respondent.

Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter, Frank Shaw Bacik, John A. Behnke, Cindee F. Mayfield and Jeffrey L. Anderson, Ukiah, for real party in interest and respondent.

Pillsbury, Madison & Sutro, Alson R. Kemp, Jr., Walter R. Allan, Betsy G. Stauffer, San Francisco, Dun & Martinek, David H. Dun, David E. Martinek, Eureka, Nancy N. McDonough and David J. Guy, Sacramento, as amici curiae on behalf of real party in interest and respondent.

BAXTER, Justice.

Pacific Lumber Company submitted two timber harvesting plans covering old-growth forest in Humboldt County to the Department of Forestry (department). In response to a request by the Department of Fish and Game (Fish and Game), the department asked Pacific Lumber Company to provide information on old-growth-dependent wildlife species within the plan areas. Pacific Lumber Company refused to provide the requested information on the ground that it was not specified in the rules promulgated by the Board of Forestry (board). (Cal.Code Regs., tit. 14, § 895 et seq. [hereafter, sometimes, rules or forest practice rules].) The department then denied the plans on the ground that they were incomplete. Pacific Lumber Company appealed the department's denial to the board. The board approved the plans, ultimately finding that "there will not be any significant adverse effect on old-growth-dependent wildlife species or habitat from the harvesting that will occur under these two plans."

The legal issue before us, in its simplest form, is whether the board abused its discretion in approving the timber harvest The evidentiary gap in the record which sparked this controversy stemmed from a disagreement between the department and the board over the department's authority to ask an applicant to obtain or provide information not specified in the forest practice rules. Although the rules have been amended to provide for the submission of information pertaining to old-growth-dependent species, eliminating this particular controversy, the department's authority to request information not specified in the rules remains a relevant concern for future cases. We therefore address that question and conclude that section 21160 does vest the department with the authority to require the submission of information not expressly specified in the rules if the information requested is necessary to enable the department to determine whether a timber harvesting plan will have a significant adverse impact on the environment. Only with that information is the department able to adequately discharge the obligation imposed upon it by the board: to determine whether a timber harvest plan incorporates feasible mitigation measures that substantially lessen the effects of the plan on the environment. (Cal.Code Regs., tit. 14, § 898.1, subd. (c)(1).)

plans. [876 P.2d 508] We conclude that the board did abuse its discretion when it evaluated and approved the plans on the basis of a record which lacked information regarding the presence in the subject areas of some old-growth-dependent species, information which both the department and Fish and Game had determined was necessary. By approving the plans without the necessary information regarding those species the board failed to comply with the obligation imposed on it by the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) and the Z'Berg-Nejedly Forest Practice Act of 1973 (the Act or Forest Practice Act) (Pub. Resources Code, § 4511 et seq.). ¹

Our conclusion that section 21160 gives the department direct authority to require the submission of information not specified in the rules does not, however, fundamentally alter the relationship between the department and the board: the board retains the ultimate power of approval over a plan and it may, in an appropriate case, approve a plan despite the significant adverse impacts on the environment that the department has identified, if the plan incorporates mitigation measures the board determines are feasible, and the board justifies the remaining impacts in light of specific social, economic, or other conditions. (§ 21002.)

Because the board approved the plans without having before it the data necessary to make an informed assessment of the environmental impact of the proposed timber harvest, that approval must be rescinded. We therefore affirm the judgment of the Court of Appeal.

I FACTS

On February 16, 1988, the Pacific Lumber Company submitted two timber harvesting plans to the department for the logging of two separate stands of what Pacific Lumber Company's registered professional forester described as "virgin old-growth redwood-type forest." Timber harvesting plan 1-88-65 HUM covers 82 acres in the Yager Creek drainage basin in Humboldt County; timber harvesting plan 1-88-74 HUM covers 237 acres in the basin approximately 1 mile from the area covered by 1-88-65 HUM. ² On February 18, 1988, the department returned timber harvesting plan 1-88-74 HUM to Pacific Lumber Company with the request that it provide additional information on certain aspects of the stand. This information was needed, according to the department, because the harvest area "appears to constitute habitat for old-growth-dependent species" and, if true, "the harvest could result in a significant adverse effect on these species."

On February 24, 1988, William Imboden, the chief of region 1 of the department, sent While the department was clarifying its request, Pacific Lumber Company was simultaneously responding to the department's initial letter, stating that it "cannot agree to provide the information you have requested, as it would establish a very inappropriate precedent.... [p] In our opinion, the Rules of the Board determine what information is required from the THP submitter, and your request is greatly in excess of what is required by the Rules."

[876 P.2d 509] Pacific Lumber Company another letter clarifying the department's earlier request. Because the substance of the request is at the heart of this litigation, we quote the text of the letter in its entirety: "The above-referenced THP [timber harvesting plan] was returned prior to its being filed. In my letter of February 18, I indicated certain information must be provided before the plan would be acceptable for filing. On a 'post-it' label attached to the letter, I said we would be providing more information. [p] The amount of old-growth habitat has diminished and the distribution of that habitat has been fragmented considerably in the past few years. According to the Department of Fish and Game, harvesting of these stands may have a significant impact on the following species: goshawk, Olympic salamander, tailed frog, red tree vole, Pacific fisher, spotted owl, and marbled murrelet. Without the additional information requested, the impact cannot be adequately evaluated. [p] Since February 18, the Department of Fish and Game has clarified the kinds of information we are requiring to facilitate the adequate review of this plan. A potentially significant adverse effect has been identified. Therefore, according to 14 CCR [California Code of Regulations] 898, the Registered Professional Forester (RPF) must discuss alternatives to the proposed project, suggest mitigation, and explain [7 Cal.4th 1222] why any feasible alternatives to reduce significant effects were rejected. The RPF[']s complete thought process should be demonstrated in the plan. He should explain what impacts there may be on the wildlife and why they are considered to be significant or insignificant. Appropriate mitigation measures and any feasible alternatives must be included. [p] In order for you to complete the THP so that the Department of Forestry and Fire Protection can assess whether or not your proposed THP will have a significant effect on these vulnerable wildlife species, the following information would be necessary. [p] Provide a wildlife survey of your proposed operating area and general vicinity done by a recognized wildlife professional. Species and their habitats to specifically address are the goshawk, Olympic salamander, tailed frog, red tree vole, Pacific fisher, spotted owl, and marbled murrelet. The survey report should contain a written description of the biological setting, including a vegetative map, a description of how the survey was done, an assessment of potential impacts to any of the species, and discuss harvesting alternatives or other measures to avoid jeopardizing any of the species. Important elements of the report should include a discussion of the proximity of the project to forage areas, an estimate of the downed logs, dominant trees and snags per acre, and whether the habitat contains any dens, nests, or talus slopes. [p] The RPF should discuss the relative significance of the old-growth habitat which would be affected by the proposed THP to other old-growth habitat, e.g., isolated patch, part of a larger habitat or a link between...