A state appellate court panel has chastised the California Department of Forestry and Fire Protection (CDF) for ignoring the California Environmental Quality Act during reviews of timber harvest plans.

In a case involving a small timber harvest plan (THP) in Sonoma County, the First District Court of Appeal said that CDF’s regulatory program under the Forest Practice Act is exempt only from certain sections of the California Environmental Quality Act (CEQA), and that CDF was improperly attempting to extend the exemption.

“[A]lthough the argument CDF presents to us in this case is novel, it is premised on a legal theory which has been soundly rejected,” the court ruled. “The appellate courts of this state have repeatedly advised CDF that CEQA applies to the timber harvesting industry and that the process CDF uses to evaluate and approve THPs must comport with all provisions of CEQA, except for chapters 3 and 4 and [Public Resources Code] § 21167. Indeed, this court has so held on more than one occasion. Our Supreme Court has also expressly agreed with this position.” The court cited the 1994 state Supreme Court decision in Sierra Club v. State Bd. of Forestry, 7 Cal.4th 1215.

“Nevertheless, CDF has continued to resist complying with CEQA by advancing increasingly contorted interpretations of settled law,” the court continued. “We urge CDF to heed the law as consistently interpreted by the courts of this state, and to commit its time and resources toward the more productive end of conforming its ‘process’ to comply with CEQA.”

The extraordinarily direct opinion was written by Justice Paul Haerle, an appointee of Gov. Wilson and former aide to Gov. Reagan who is considered one of the First District’s most conservative members. Joining the opinion was Division Two Presiding Justice Anthony Kline, a Jerry Brown appointee who is seen as one of the appellate bench’s most liberal members, and Justice James Richman, a Schwarzenegger appointee.

The Department of Forestry has asked the state Supreme Court to accept the case, and the California Forestry Association has asked the high court to depublish the First District’s opinion so that it may not be cited as precedent.

The case involves a timber harvest plan for 13 acres near Occidental. In March 2002, CDF approved an amended THP submitted by property owner Harmony Forest & Land Company. The plan permitted Harmony to harvest two-thirds of the redwood trees on the property, but required that the largest trees remain untouched.

A local group called Joy Road Area Forest and Watershed Association sued and won a restraining order preventing the timber harvest. Sonoma County Superior Court Judge Lawrence Antolini then ruled that CDF had violated CEQA in three ways, but he upheld the agency’s protection efforts for the threatened northern spotted owl. Both sides appealed.

The issues for the First District concerned public notification requirements, assessment of impacts and the treatment of owls. CDF argued that it could not comply with CEQA’s requirement that the public be notified and given time to comment on project changes because a THP is a “dynamic document” that cannot be treated like a “static” draft environmental impact report. In this case, CDF modified or replaced 37 pages of the 167 THP over a period of months. Besides, CDF argued, the Forest Practices Act takes precedence over CEQA. The court disagreed.

“[I]f the THP is routinely altered by CDF during the review period, then the THP that CDF ultimately approves is essentially a different plan than that which the property owner submitted,” Justice Haerle wrote. “The notice and recirculation provisions of CEQA ensure that the public has notice and an opportunity to comment on the actualplan that CDF intends to approve.”

As for impacts, the court found that substantial evidence supported CDF’s conclusion that the project’s impact on fog drip (the process in which trees capture fog moisture, which drips to the ground) was not significant was supported by substantial evidence. However, the court ruled the agency’s cumulative impact analysis regarding fog drip was “woefully inadequate” because it lacked “facts, statistics, reports or studies.”

The court also held that CDF could not ignore the potential impact of residential development on the 13 acres as speculative. The property is split into three parcels, a lot-line adjustment application has been filed, and the property owner has stated a desire to build a house on two parcels, the court noted.

Finally, the court overturned the lower court’s ruling regarding spotted owls. The appellate panel found that the U.S. Fish and Wildlife Service had approved the timber harvest only if it were completed by February 1, 2002. But CDF approved the THP in March 2002. CDF regulations require Fish and Wildlife Service approval before CDF approves a THP. Hence, CDF violated its own regulations, the court determined.

The Case:
Joy Road Area Forest and Watershed Association v. California Department of Forestry & Fire Protection, No. A105421, 06 C.D.O.S. 8259, 2006 DJDAR 11706. Filed August 20, 2006. Modified September 22, at 2006 DJDAR 12936.
The Lawyers:
For the association: Edwin Wilson, Sayre & Wilson, (707) 433-4871.
For CDF: Tiffany Yee, attorney general’s office, (415) 703-5500.