The shelf life of mitigation measures may readily outlast the lives of the projects to which the mitigations are attached, according to the Court of Appeal for the First Appellate District.

While the fact pattern in the case at hand was specific to timber harvesting and the conversion of property, the court's holding has application in the broader world of all California Environmental Quality Act (CEQA) reviews.

The facts cover a 20-year time frame. In 1988, California Department of Forestry and Fire Protection (CDF) approved a Timber Harvest Plan (THP) on Mendocino County property owned by Greg Kuljian's predecessor. The adjacent owner objected, and, in response, CDF imposed a condition prohibiting tree removal within 200 feet of the neighbor's home as a protective measure to avoid wind-related damage. Ten years later, CDF approved another THP in the same location and added the no-harvesting condition once again. Years later, Ed Powers, the owner, sold the property to Kuljian. As part of the purchase agreement, Kuljian agreed to seek a conversion exemption allowing Powers to harvest the timber. As part of the conversion, Kuljian indicated a desire to convert the timberland to orchard. CDF approved the conversion, the effect of which was to extinguish the previously imposed 200-foot no-harvesting mitigation measure.

Paul Katzeff, the neighbor who had objected in the first place, sued, alleging three causes of action: First, the exemption violated the Forest Practices Act and CEQA by elimination of the mitigation measure; two, the conversion was inappropriate as Kuljian did not have a bona fide intent to develop an orchard; and, three, a claim of private nuisance. The CDF brought a motion for judgment on the pleadings and the Mendocino County Superior Court dismissed the action in its entirety. Katzeff appealed.

Judicial review of a judgment on the pleadings invokes a more limited judicial inquiry than a trial. The court assumes that all material facts are true as pled and examines whether or not a cause of action exists, given those facts. As to the first cause of action, CDF argued that because both timber harvest plans had expired, any mitigation measures linked to those plans also expired. Because Kuljian's request for conversion was a ministerial approval, CDF argued it did not have a duty to carry forward the previously imposed mitigation measure.

On these facts, the appellate court characterized the conversion request as part of a larger project, and, based upon the decision in Orinda Association v. Board of Supervisors, (1986) 182 Cal.App. 3d 1145, concluded that CDF could not segment the project and free itself from consideration of previously imposed mitigation measures. The court recognized that mitigation measures are not frozen in time forever. But once a mitigation measure is imposed, the agency must state its basis, supported by substantial evidence, on which it later cancels or nullifies the measure. Because there was evidence that this analysis occurred, the appellate court concluded that dismissal of the first cause of action was in error and reversed.

As to the second cause of action, the record contained evidence that Kuljian did not have bona fide intent to develop an orchard. This created a factual dispute in the record on bona fide intent; therefore, it was incumbent upon the agency to make a determination to that effect. As the record was silent on this issue, the court found dismissal of the cause of action again was inappropriate.

The third cause of action was based in nuisance. While timber operations conducted pursuant to the Forest Practice Act enjoy statutory immunity from nuisance claims, there were sufficient allegations of non-compliance with the act that the trial court's dismissal, based upon a motion for judgment on the pleadings, was premature. Once again, the appellate court reversed the trial court. Whether or not Katzeff can prevail on any of his three theories remains to seen.

The CEQA aspect of this decision has broader implications beyond timber harvest plans. Some permits are granted for a fixed term. This case directs cities and counties to at least examine the appropriateness of those mitigation measures when acting on a subsequent permit for an unrelated use in the same location.

More intriguing, and perhaps more problematic, are circumstances in which a site may be subject to a new, significantly different reuse proposal. Typically, those applications are subject to full CEQA review. Is it even relevant to go on archaeological dig for a 25- or 30-year-old CEQA document for a different use? If the current project is a new endeavor, then the lead agency should be able to proceed free of the argument that the new application is part of another project and the earlier CEQA history should be irrelevant. CEQA mitigation history will continue to be relevant on tiered environmental documents (e.g. general plan to rezoning to tract map) and this case, which involves THPs, serves as a reminder to lead agencies of the need to carry those requirements forward to current permit applications.

The Case:
Katzeff v. California Department of Forestry and Fire Protection, No. A122642, 2010 DJDAR 1516. Filed January 28, 2010.
The Lawyers:
For  Katzeff: Paul V. Carroll, (650) 839-8644.
For CDF: Anita E. Ruud, deputy attorney general, (415) 703-5533.
For Kuljian: Ryan F. Perkins, (707) 964-4900.
For Powers: Jared Carter, Carter, Vannucci & Momsen, (707) 462-6694.