Opinion
A159903
02-22-2021
FRIENDS OF GUALALA RIVER, Plaintiff and Appellant, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent; GUALALA REDWOOD TIMBER, LLC, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Sonoma County Super. Ct. No. SCV262241)
Appellant Friends of Gualala River (FOGR) appeals a postjudgment order discharging a writ. In November 2018, the trial court entered a writ of mandate directing the Department of Forestry and Fire Protection (Cal Fire) to address "specific CEQA deficiencies" in Cal Fire's approval of a timber harvesting plan (THP). The trial court enjoined real party in interest, Gualala Redwood Timber, LLC (GRT) "from conducting any timber operations authorized by the THP until further order of the Court."
In January 2020, the trial court granted GRT's motion to discharge the writ. FOGR appeals this postjudgment order. The revisions to the THP comply with the trial court's writ of mandate. We affirm the trial court's order discharging the writ and lifting an injunction.
FACTUAL AND PROCEDURAL BACKGROUND
I. The "Dogwood I" Litigation
In August 2016, FOGR and another entity sued Cal Fire seeking to set aside its approval of a THP. The THP would have allowed GRT to log redwood trees "in the flood plain at the mouth of the Gualala River" in Sonoma County, California. FOGR is a "grassroots watershed protection association." GRT owns the timberland. GRT submitted its THP to Cal Fire, the lead agency that reviews THPs. In seeking to prevent the proposed logging, FOGR filed a petition asserting nine causes of action against Cal Fire and GRT under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), and the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act; § 4511 et seq.).
Undesignated statutory references are to the Public Resources Code.
In 2017, the trial court granted FOGR's first petition and ordered Cal Fire to set aside its approval of the first Dogwood THP because Cal Fire failed to consider the impact of another GRT project. As later explained by the trial court, Cal Fire "revisited the approval process, ultimately approving the new THP . . . now referred to as Dogwood II." The revised THP reduced the size of the plan from 402 to 342 acres, "[s]election silviculture was reduced from 299 acres down to 278 acres, and the area to be harvested within the Wild and Scenic River Special Treatment Area was reduced from 21 . . . to 0.5 acres." After reviewing and responding to public comments on the revised plan, Cal Fire approved the second Dogwood THP in March 2018.
"Silviculture is the theory and practice of controlling the establishment, [c]omposition and growth of forests." (Cal. Code Regs., tit. 14, § 895.1.) The Forest Practice Rules are the Forest Practice Act's implementing regulations.
II. The "Dogwood II" Litigation
In April 2018, FOGR filed a second petition against Cal Fire and GRT challenging the approval of the second Dogwood THP. Once again, FOGR asserted nine causes of action under CEQA and the Forest Practice Act, and it sought a stay and preliminary injunction. In June 2018, the trial court granted the injunction, staying the timber operations pending a hearing on the writ of mandate.
A. Merits Ruling, Judgment, and Writ of Mandate
In October 2018, after a hearing on FOGR's petition, the trial court denied it regarding seven of the causes of action and granted it regarding two of them.
The trial court denied FOGR's claim that the second Dogwood THP failed to identify rare plants, finding there was "no defect in the plant cataloguing simply because [registered professional foresters (RPFs)] instead of botanists performed it." The trial court found the RPFs "conducted 36 hours of assessment and survey of the site in [the] spring and early summer [of] 2016, using lists of plants in the area and actually surveying the logging sites, specifying the exact location of one rare plant found, the swamp harebell." The trial court rejected FOGR's contention that the THP improperly deferred assessment and mitigation of impacts on rare plants.
Second, the trial court found the THP adequately identified wetlands based on testing, surveys, and studies conducted by RPFs. In response to concerns about the plan's impact on wetlands, the trial court noted the THP requires heavy equipment to stay on "skid trails" flagged by the RPFs. In addition, a senior water quality analyst from the North Coast Regional Water Quality Control Board reviewed and approved the THP's precautions regarding wet areas.
Next, the trial court considered and rejected FOGR's claim that the second Dogwood THP would negatively impact salmonids, finding it contained sufficient measures to reduce the possibility of soil migration and sedimentation in waterways. The trial court also rejected FOGR's challenge based on targets for reducing greenhouse gas emissions, finding in part that the THP "includes a long, detailed discussion of how the Project will ostensibly meet [greenhouse gas reduction] goals with data, charts with detailed information on carbon sequestration, tree harvesting, and growth."
However, the trial court granted the petition as to the causes of action regarding cumulative impacts and the analysis of alternatives. Addressing cumulative impacts, the trial court stated:
Section IV of the THP discusses the cumulative impact of past, present, and future projects. These projects are identified in detail. The THP describes the negative effects resulting from past timber harvest projects, including improper construction of roads that have caused landslides, erosion, and sedimentation. The THP concludes that these cumulative effects are prevented by current forest practices, and, as a result, there are no cumulatively significant effects from current and planned projects, which not only avoid additional environmental damages but provide an opportunity to remedy past damage. [Citations.] What is lacking in the cumulative impacts analysis is a reasoned discussion of the basis for this conclusion tied to the specific projects. The THP fails to disclose the analytic 'route . . . the agency traveled.' [Citation.] [¶] The court grants the Petition as to cumulative impacts.
In other words, the THP failed to adequately explain how and why current forest practices will avoid additional environmental damage and ameliorate past problems.
In its discussion of alternatives, the trial court noted the THP discussed a " 'no project' alternative, an alternative harvesting approach, a conservation easement or public purchase, alternative location, alternative land use, and alternative timing." The trial court found the THP's discussion of alternative harvesting methods was "particularly appropriate, given the sensitive location of the timber harvest within the flood plain of the Gualala River." However, the trial court faulted the THP for offering no discussion of "what the alternative methods might be." More generally, the trial court found this part of the THP failed "to provide any detailed analysis, information, or explanation as to how its conclusions were reached. Each option is summarily dismissed as infeasible or environmentally less desirable than the Project. There is simply no explanation 'in meaningful detail of the reasons and facts supporting that conclusion.' [Citation.] A mere statement of the agency's conclusions without meaningful analysis is not enough. [Citation.] Based on the failure to provide this analysis of alternatives, the Petition is granted as to alternative analysis."
As a result of this ruling on FOGR's petition, in November 2018, the trial court entered judgment in favor of FOGR on its fourth and seventh causes of action, the two causes of action relating to cumulative impacts and the analysis of alternatives. The trial court entered judgment in favor of Cal Fire and GRT on FOGR's remaining seven causes of action. No party appealed this judgment.
On the same day, the trial court entered a writ of mandate. The trial court directed Cal Fire "to take appropriate steps within its discretion to address the specific CEQA deficiencies identified in the merits ruling, specifically, the cumulative impacts analysis and alternatives analysis." The court directed Cal Fire "to suspend implementation" of the Dogwood THP "until this Writ is discharged," and it enjoined GRT "from conducting any timber operations authorized by the THP until further order of the Court." Cal Fire was required to file a return to the writ explaining the steps taken to comply with it.
B. Cal Fire's Return to the Writ, FOGR's Objection, and GRT's Motion to Discharge the Writ
In January 2019, Cal Fire submitted an initial return notifying the court that it was reviewing GRT's proposed revisions, and that it intended to circulate the revisions for public review and comment. Cal Fire received a revised analysis of alternatives and a revised cumulative impacts assessment in January 2019 and, as a result of this new information, the THP was recirculated for public comment. In March 2019, Cal Fire received more revisions and, as a result, it reopened the public comment period. In late July, Cal Fire issued a "Letter of Conformance," and, in August 2019, Cal Fire filed its return to the writ, indicating the revised sections of the THP complied with the writ.
Soon after, in August 2019, FOGR filed an "objection" to the return and GRT moved to discharge the writ and lift the injunction. After a case management conference in October, the trial court set a briefing schedule on FOGR's challenge to the return and GRT's motion, and it continued the matter.
C. The Order Discharging the Writ
In January 2020, after a hearing, the trial court overruled FOGR's objection, granted GRT's motion to discharge the writ, and lifted its injunction.
In its discussion of the revised analysis of cumulative impacts, the trial court focused on the explanation of how and why current timber harvesting practices would not add to the problems caused by past practices. The trial court noted the revised THP contained new information regarding topics including watercourse temperatures, organic debris, chemical contamination, and "peak-flow" effects. The trial court found "[t]he recirculated THP does not add extensive new discussion to the section on cumulative impacts but the changes appear to be sufficient and meaningful. The section on cumulative impacts was originally not egregiously defective, in contrast to the section on alternatives discussed below, and only, as this court ruled, lacked sufficient explanation of the analytical route indicating how the conclusions were reached based on the information provided." The trial court concluded "the recirculated THP includes enough new explanation and discussion to demonstrate how the conclusions were reached, allowing one to understand the analytical route, and on the face of the record these appear reasonable."
FOGR's objections to the revisions focused in particular on recommendations made in a letter from the California Department of Fish and Wildlife (CDFW), but the trial court found that "nothing in the letter goes directly to cumulative impacts," and instead it addressed impacts to a frog species and two plant species. The court noted that Cal Fire "considered and responded to the letter," a point FOGR conceded. The trial court also found the THP includes measures to protect the foothill yellow-legged frog and the two rare plant species identified by the CDFW.
Next, the trial court found the discussion of alternatives was "greatly expanded from before." The recirculated THP discussed alternatives in detail and explained why the THP "is arguably the most environmentally superior alternative that could be considered." The court found Cal Fire's conclusions were supported by substantial evidence. For example, the THP's discussion of why tractor yarding is preferable to "cable-hauling" is "based on the specific circumstances of this Project and this location, circumstances which are now articulated clearly and logically."
In summary, the trial court found the THP's conclusions regarding cumulative impacts were "open to dispute," but the revisions were sufficient "to demonstrate how it reached its conclusions based on [the] evidence." With respect to alternatives, "the THP now includes a fairly robust analysis of all the alternatives with clear, logical reasoning referring to the evidence in the record and this cited evidence in conjunction with the reasoning provides, again, a clear analytical route based on substantial evidence which supports the conclusions." Because "the THP now complies with the writ and CEQA," the trial court discharged the writ and lifted its injunction.
In March 2020, FOGR appealed this order. In April, FOGR petitioned this court for a writ of supersedeas to stay logging pending appeal, which we granted in June 2020. We also summarily denied GRT's motion to dismiss the appeal.
III. The "Dogwood III" Litigation
Prior to this appeal, in September 2019—about two weeks after FOGR filed its objection to Cal Fire's return—FOGR also filed a third complaint and verified petition for a writ of mandate, seeking to set aside the revised THP that Cal Fire approved in late July 2019. This petition asserted only two causes of action based on the revisions to the sections on cumulative impacts and the analysis of alternatives. As explained in FOGR's objection to the return, FOGR filed this complaint to preserve its legal options in opposing the third iteration of the Dogwood THP. (City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, 971 [petitioner may challenge return to writ of mandate by filing a new petition, a supplemental petition, or by filing a motion requesting "the respondent to reconsider further"].)
Neither Cal Fire nor GRT responded to the Dogwood III complaint and petition. Instead, after the trial court set a briefing schedule on FOGR's objection to the return and GRT's motion to discharge the writ, the parties focused on challenging and defending the revisions to the THP in the Dogwood II case. On March 16, 2020, FOGR filed a request for dismissal of its Dogwood III case with prejudice. On April 15, 2020, the trial court dismissed the action.
DISCUSSION
On appeal, FOGR contends the revisions to the THP remain deficient. Although we reject GRT's and Cal Fire's res judicata argument, we agree with the trial court that the 2019 revisions to the Dogwood THP comply with the writ.
I. Governing Law and Standard of Review
The Forest Practice Act "requires timber owners or operators on private land to submit a timber harvest plan specific to the site and planned logging activity to [Cal Fire] for approval before harvesting. (§§ 4581-4582.5.) Timber harvest plans are available to the public and to public agencies for review and comment, and [Cal Fire]'s notice of approval must include a written response to significant environmental issues raised by commenters." (Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 943 (Ebbetts Pass).)
Cal Fire is the "lead agency" in the review of THPs. (Cal. Code Regs., tit. 14, § 1037.5, subd. (c).) Cal Fire's "approval of timber operations is generally subject to CEQA, but under section 21080.5, the Forest Practice Act's regulatory scheme has been certified for exemption from CEQA's requirements for preparation of an environmental impact report (EIR) before approval of a project. . . . [¶] Serving as the functional equivalent of an EIR, a timber harvest plan must 'provide public and governmental decisionmakers with detailed information on the project's likely effect on the environment, describe ways of minimizing any significant impacts, point out mitigation measures, and identify any alternatives that are less environmentally destructive.' " (Ebbetts Pass, supra, 43 Cal.4th at p. 943.)
"On appeal from an order discharging a writ, the issue is whether the trial court erred in ruling that the respondent . . . complied with the writ." (Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) Because assessment of compliance with the writ involves determining whether Cal Fire complied with CEQA, we apply the usual standard of review from CEQA cases. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 563-564; Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 464, fn. 2, 467-468.)
In reviewing agency actions, "the inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.) " 'Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, . . . we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court "may not set aside an agency's approval . . . on the ground that an opposite conclusion would have been equally or more reasonable." ' " (Ebbetts Pass, supra, 43 Cal.4th at p. 944.)
"Our task is essentially identical to that of the trial court. [Citation.] Accordingly, 'we review the agency's actions directly and are not bound by the trial court's conclusions. [Citations.]' [Citation.] In that sense appellate judicial review under CEQA is de novo [citation], and the burden on appeal to establish error is the same as the burden in the trial court, i.e., on the parties who challenge the administrative decisions [citation]." (Center for Biological Diversity v. Department of Forestry & Fire Protection (2014) 232 Cal.App.4th 931, 942.)
II. Res Judicata Does Not Apply
Preliminarily, we consider GRT's and Cal Fire's claim that FOGR's "entire lawsuit . . . is barred by res judicata, because [FOGR]'s separate (and later-filed) 'Dogwood III' lawsuit—which raised identical claims—reached final judgment before the instant lawsuit." We are not persuaded that principles of res judicata bar our consideration of FOGR's contentions in this appeal.
"Res judicata or claim preclusion bars relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties or parties in privity with them. [Citation.] Res judicata applies if the decision in the prior proceeding is final and on the merits and the present proceeding is on the same cause of action as the prior proceeding." (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 324.)
GRT contends that FOGR's decision to dismiss its Dogwood III petition with prejudice "has preclusive consequences here." But the dismissal with prejudice did not occur in a prior proceeding. Instead, it occurred in the Dogwood III litigation, which FOGR commenced in September 2019. In addition, the two causes of action in the Dogwood III litigation were not adjudicated or litigated because FOGR voluntarily dismissed the lawsuit soon after filing it.
Neither of these points is dispositive. First, as explained by our high court, " ' "[w]here two actions involving the same issue are pending at the same time, it is not the final judgment in the first suit, but the first final judgment, although it may be rendered in the second suit, that renders the issue res judicata in the other court." ' " (Busick v. Workmen's Comp. Appeals Bd. (1972) 7 Cal.3d 967, 977.) Second, "for purposes of applying the doctrine of res judicata . . . a dismissal with prejudice is the equivalent of a final judgment on the merits, barring the entire cause of action." (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 793.)
Counsel for FOGR claims that when he requested the dismissal of the Dogwood III action, he "checked the 'with prejudice' box" by mistake. He argues GRT and Cal Fire seek to put an end to this appeal "based on what was essentially a typo." But "a retraxit—modernly effected by a plaintiff's filing of a dismissal of his or her action with prejudice—is deemed to be a judgment on the merits against that plaintiff." (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1330.) Surprisingly, there is no indication that counsel for FOGR sought relief from his mistake in the trial court. (Roybal v. University Ford (1989) 207 Cal.App.3d 1080, 1085 ["Error by . . . counsel in filing a request for dismissal with prejudice may well have constituted grounds for relief under . . . [Code of Civil Procedure] section 473."].)
FOGR also claims that GRT and Cal Fire are themselves somehow precluded from making this res judicata argument because, earlier in this case, we rejected the argument when we granted FOGR's petition for a writ of supersedeas and summarily denied GRT's motion to dismiss. FOGR cites no authority for this claim, and there is no rule that bars our reconsideration of decisions made earlier in this appeal. Accordingly, we reject FOGR's "preclusion" argument.
In its reply brief, FOGR requests we take judicial notice of various documents filed earlier in this case including GRT's motion to dismiss, and our order summarily denying the motion. We deny the request because it was not made by way of a separate motion with a proposed order. (Cal. Rules of Court, rule 8.252(a)(1).)
Nevertheless, we are not persuaded that FOGR's dismissal with prejudice of the Dogwood III lawsuit bars our review of the postjudgment order discharging the writ. Res judicata bars relitigation if "the present proceeding is on the same cause of action as the prior proceeding." (Citizens for Open Government v. City of Lodi, supra, 205 Cal.App.4th at p. 324.) Here, the causes of action are not the same as the causes of action in the Dogwood III case.
The two causes of action in the Dogwood III complaint challenged the 2019 revisions to the THP sections on cumulative impacts and its analysis of alternatives. But this appeal derives from causes of action challenging the second Dogwood THP, not the 2019 revisions. In this appeal, we consider steps taken to address a writ of mandate after the trial court entered judgment in favor of FOGR on its fourth and seventh causes of action from its complaint filed in April 2018. As a result, this proceeding is not on or derived from the same causes of action as those asserted in Dogwood III.
We recognize that this appeal addresses the same issue as the Dogwood III complaint; namely, whether the 2019 revisions to the THP comply with the writ. But GRT does not argue that this appeal is barred by principles of collateral estoppel, nor could it. Collateral estoppel " 'precludes relitigation of issues argued and decided in prior proceedings.' " (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896.) The issue at stake in this appeal was not argued and decided in Dogwood III because FOGR voluntarily dismissed the case soon after filing it.
III. The 2018 Judgment Does Not Preclude Consideration of FOGR's Arguments Regarding the CDFW Letter
Even if res judicata does not apply, GRT and Cal Fire contend we should not consider many of FOGR's appellate arguments. GRT argues that "[a]ny argument unrelated to the narrow CEQA deficiencies identified by the trial court was outside the scope of the trial court's review on the return to writ and, by extension, are beyond this Court's jurisdiction." In particular, GRT claims we cannot consider arguments based on a letter from the CDFW to Cal Fire. We conclude this account of our jurisdiction is too narrow.
"[A] court issuing a peremptory writ of mandate retains jurisdiction to determine the adequacy of the return and ensure full compliance with the writ." (Ballona Wetlands Land Trust v. City of Los Angeles, supra, 201 Cal.App.4th at p. 479; § 21168.9, subd. (b).) "[A] trial court evaluating a return to the writ may not consider any newly asserted challenges arising from the same material facts in existence at the time of the judgment. To do so would undermine the finality of the judgment." (Ballona Wetlands, at p. 480.)
In arguing we are precluded from considering many of FOGR's arguments, GRT relies primarily on Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165. In that case, the Court of Appeal held the appellant was precluded from raising any argument "except those having to do with traffic impacts because the remaining issues were litigated, or could have been litigated, in the prior proceeding and because the writ of mandate only required further action as to traffic impacts." (Id. at p. 173.)
But here, unlike in Ione Valley, the writ of mandate required Cal Fire to revise the section of the THP on cumulative impacts. It is difficult to imagine how this section of the THP could be revised without discussing impacts on plants and species, even if those impacts were also addressed in other parts of the trial court's 2018 merits ruling. Cumulative impacts, after all, means impacts on the environment. (East Bay Mun. Utility Dist. v. Department of Forestry & Fire Protection (1996) 43 Cal.App.4th 1113, 1127 (EBMUD) ["Regulations governing THP's require that the plan submitted include consideration of the cumulative impacts of the plan upon the environment."]; Ebbetts Pass, supra, 43 Cal.4th at pp. 943-944 [the Forest Practice Rules "adopt the CEQA regulations' definition of 'cumulative impacts' from related projects: 'the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and . . . probable future projects' "].)
The causes of action already adjudicated include the THP's identification of rare plants, its definition and treatment of wetlands, the impact of the proposed logging on salmonids, and whether the plan assists the state in reaching targets for reduction of greenhouse gas emissions. The issues that remain pending are whether the revised cumulative impacts assessment and the revised analysis of alternatives comply with the writ of mandate. There is some inevitable overlap between the issues decided and those remaining.
As a result, we are not persuaded that collateral estoppel bars all consideration of FOGR's arguments. In particular, we can consider FOGR's arguments regarding the CDFW letter because it was part of the process of revising the THP in 2019, as required by the trial court's writ of mandate. Cal Fire's response to this letter, and FOGR's arguments based on it, could not have been litigated earlier in the proceedings. (Cf. Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador, supra, 33 Cal.App.5th at p. 171.)
IV. The Revisions to the Section on Cumulative Impacts Comply with the Writ
"Regulations governing THP's require that the plan submitted include consideration of the cumulative impacts of the plan upon the environment. [Citations.] . . . The registered professional forester (RPF) who prepares the THP on behalf of the logging company is directed to consider both on- and off-site interactions of the plan 'with the impacts of past and reasonably foreseeable future projects.' [Citation.]" (EBMUD, supra, 43 Cal.App.4th at p. 1127.) The assessment of cumulative impacts is "guided by standards of practicality and reasonableness; there is no one prescribed mode of analysis." (Ibid.) The lead agency has an "obligation to consider the present project in the context of a realistic historical account of relevant prior activities that have had significant environmental impacts." (Environmental Protection Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 524.)
Here, the revised THP adds information—including maps and data—regarding past, present and foreseeable future logging in the area. The revised THP addresses potential cumulative impacts to resources including watershed, soil, biological, recreational, visual, noise, and traffic resources. Having reviewed the changes, we agree with the trial court that they explain how and why this THP will not add to, and in some respects may ameliorate, the environmental problems caused by past timber harvesting practices.
This list of resources derives from the cumulative impacts assessment checklist. (Cal. Code Regs., tit. 14, § 912.9.)
The revised section explains that the flood prone area (FPA) consists of 1,249 acres or 4.9 percent of the watershed assessment area, and "the THP proposes to harvest 278 acres or 22% of the FPA in the [watershed assessment area]." Concerns about the effects of timber logging in such areas led to a 12-year hiatus on harvesting while the anadromous salmonid protection (ASP) rules were developed. The ASP rules are part of the Forest Practice Rules and, more specifically, they are part of the Watercourse and Lake Protection rules. (Cal. Code Regs., tit. 14, § 916.9.) As a result of these rules in particular, the cumulative impacts of this THP and others in the area is expected to be insignificant.
The ASP rules require "that no timber harvesting occur within 30 feet of the edge of the river . . . . [They] require leaving 13 of the largest trees per acre and 80 [percent] overstory canopy within the area from 30 feet out to 150 feet within the Inner Zone." Indeed, "52 out of the 342 acres of this plan are no-cut zones because of the ASP rules or other biological considerations." Beyond the "Inner Zone," "the 13 largest trees per acre and at least 50 [percent] overstory canopy must be left . . . which extends to the outer edge of the flood prone area at the toe of the slope." "The goal of the ASP Rules in the flood plains is to grow a forest that improves and restores anadromous salmonid habitat with retention of the largest trees that . . . will provide a high, dense, shade canopy. Eventually the older big trees will topple and fall into the watercourse to provide large woody debris and increase stream habitat complexity . . . . Future entries on these floodplains are expected to occur every 15 to 20 years with light selection harvests that have the goal of restoring the stands to a condition more favorable to providing improved anadromous salmonid habitat."
To protect the watershed from sediment, the revisions explain that GRT is "storm-proofing" existing roads. Old roads and skid trails often diverted water out of natural watercourse channels, they were not designed to handle "peak flow" events, and they often resulted in surface erosion. However, GRT has storm-proofed existing roads "to reduce erosion and/or to prevent any measured sediment delivery to a watercourse." GRT claims to have improved between 50 and 60 percent of its "management service roads and old legacy roads" preventing "at least 295,000 cubic yards of sediment from being delivered into watercourses."
The revised THP acknowledges the harvesting could impact the habitat for aquatic species, but it points out there are "offsetting" positive impacts. For example, "[t]he 2009 ASP rules expanded Watercourse and Lake Protection Zones with increased canopy retention requirements and increased Large Woody Debris (LWD) retention requirements adjacent to salmonid streams which is expected to result in cooler stream temperatures favorable to salmonids and more structure in the streams which increases pool depths, spawning habitat, and provides cover from predators." The rules regarding a 30-foot no-cut zone adjacent to the main watercourse will "retain high levels of potential organic debris recruitment to watercourses."
Regarding cumulative impacts on soil productivity, the revised THP explains that "[l]oss or displacement of organic matter is primarily caused by use of heavy equipment for skidding and site preparation." To limit disturbance of organic matter and displacement of surface soil, the plan focuses on the use of "existing skid trails." "Flagged skid trails will be located to access timber efficiently, with a minimum of ground disturbance." Other mitigation measures require that tractors cannot drive with their blades lowered, except as needed to move debris, and "[t]he use of a selection and thinning from below silviculture . . . [which] will retain a canopy cover that will . . . contribute organic matter to the heavy duff layer within the" FPA. In addition, the THP explains that the plan does not involve use of chemicals, and canopy retention requirements prevent negative impacts on "fog drip."
The revised THP addresses cumulative impacts on plant species, explaining that a rare plant survey was completed in 2016, and it is claimed that any needed follow-up will be completed prior to the start of operations. The use of "mapped and pre-flagged" skid trails will protect plant species, and it is estimated that less than five percent of the ground will be impacted by "skidding operations." "Additionally, significant portions of the Flood Prone Areas between harvest units within the Gualala River corridor owned by GRT are not included in this THP. . . . [T]hese intervening areas are younger planted redwood stands or are areas of sensitive site conditions and/or areas [de]void of commercial timber."
We agree with the trial court that these revisions to the THP section on cumulative impacts are "sufficient," "meaningful," and that "the recirculated THP includes enough new explanation and discussion" to demonstrate how it reached its conclusions. In judging the sufficiency of an account of cumulative impacts, " 'courts have not looked for perfection but for adequacy, completeness, and a good faith effort at full disclosure.' " (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal.App.4th 729, 749.) Here, by focusing on the ASP rules in particular, the revised THP explains why past problems caused by timber harvesting should not occur going forward. (EBMUD, supra, 43 Cal.App.4th at p. 1128 ["Often the adverse environmental impacts of a project can be lessened by adopting certain logging practices or undertaking corrective work."].)
In arguing otherwise, FOGR claims that the revisions fail to "measure, assess and discuss the severity of the combined impacts" of this THP and other logging operations. FOGR complains the revisions add "no true technical analysis," and they fail to address this project's "contribution" to cumulative impacts.
But the writ required a better explanation of how GRT and/or Cal Fire reached their conclusions and it did not require a specific technical analysis. (See EBMUD, supra, 43 Cal.App.4th at p. 1129 [rejecting claim that assessment of cumulative impacts required quantitative data regarding whether mitigation measures reduce sedimentation].) Regarding this project's contribution to cumulative impacts, the revised THP explains how this plan, which implements the ASP rules—including no-cut zones, overstory canopy requirements, and improved roads and pre-flagged skid trails—will offset environmental damage caused by past harvesting projects.
In general, FOGR continues to challenge the THP's conclusions, not the revised explanation of how GRT and Cal Fire reached its conclusions. But we may not set aside Cal Fire's approval of the third iteration of this THP "on the ground that an opposite conclusion would have been equally or more reasonable." (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 564.) While FOGR "would prefer that [Cal Fire] use a different way of assessing the significance of cumulative impacts, it has failed to demonstrate the legal inadequacy" of the revised explanation. (EBMUD, supra, 43 Cal.App.4th at p. 1129.) The revised section on cumulative impacts complies with the writ of mandate.
V. The CDFW Letter
In attacking the revisions on cumulative impacts, FOGR focuses on Cal Fire's alleged failure to address recommendations made by the CDFW in a letter sent to Cal Fire in February 2019. In this letter, the CDFW recommended measures to protect the foothill yellow-legged frog species (FYLF). The CDFW also recommended a botanical survey for two plant species, namely, the "Fringed corn-lily (Veratrum fimbriatum)" and "Slough sedge swards (Carex obnupta)."
We agree with the trial court that the letter did not specifically address deficiencies in the analysis of cumulative impacts, but instead focused on measures to mitigate specific impacts. As noted by the trial court, "the THP was previously challenged, and found to be sufficient, regarding . . . the analysis of impacts on species such as the FYLF." Indeed, the first and second causes of action in FOGR's second petition alleged the THP failed to include "sufficient information regarding sensitive plant species," "neglected to require surveys by professional personnel," and failed "to identify and adopt all feasible mitigation measures" to protect species including the FYLF. The trial court ruled in favor of Cal Fire and GRT on these causes of action, and FOGR did not appeal the judgment.
In any event, Cal Fire did consider the recommendations in the CDFW letter. In its 2019 official response to comments, Cal Fire pointed out that neither the "False Fringed Corn Lily (Fringed False Hellebore)" nor the "Slough sedge, Carex obnupta" are "State or Federally listed species," which indicates neither species is endangered. Moreover, the revised THP requires that " '[a] seasonally appropriate plant survey will be conducted prior to [the] start of operations using the focus species from [a scoping process for rare plants conducted in 2016].' " Although this scoping process did not search for the two plant species at issue, the revised THP contains a list of common plant species "to be used and modified during survey," and this list includes both. We presume this list will be used in the survey that "will be completed prior to start of operations." The revisions further provide that "[i]f any additional listed plants are found prior to or during operations, an avoidance and/or mitigation strategy will be developed in consultation with CDFW." FOGR fails to demonstrate the insufficiency or inadequacy of this response. (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 740.)
Regarding the FYLF, Cal Fire's 2019 response to comments provided that the addition of this species "as a candidate for state listing is not significant new information. FYLF was listed in July 2017." Subsequently, the THP was updated to address "protection measures to ensure that there will be no impacts to [the] FYLF . . . ." In other words, the THP already includes measures to protect this species. Indeed, the THP provides that any "adult frogs that may exist near the THP will be protected by [watercourse and lake protection zone] requirements. This frog's egg masses will also be protected by the limitations that are part of the 1600 agreement which severely limit the reduction of water levels that are allowed during water drafting. . . . Operations of this THP under stated plan restrictions and mitigations will not likely result in a take, nor have any adverse impact on the species."
While the revised THP could have provided more information regarding these watercourse and lake protection zone requirements, and "the 1600 agreement," the revisions do contain measures to protect this frog species. Accordingly, Cal Fire's failure to adopt the specific recommendations made by the CDFW does not undermine our conclusion that the revisions comply with the writ. (EBMUD, supra, 43 Cal.App.4th at p. 1127 [assessment of cumulative impacts "guided by standards of practicality and reasonableness"].)
The 1600 agreement refers to section 1600 of the Fish and Game Code, which was enacted to conserve "the fish and wildlife resources of this state." Cal Fire also refers to this agreement as the "Streambed Alteration Agreement." According to Cal Fire, it contains measures to protect the FYLF. The "Watercourse and Lake Protection" restrictions are part of the Forest Practice Rules. (Cal. Code Regs., tit. 14, § 916.)
We further note that the CEQA guidelines do not require Cal Fire to use information provided by a trustee agency, such as the CDFW; instead, they merely provide that "[t]he lead or responsible agency may use this information." (Cal. Code Regs., tit. 14, § 15097, subd. (f).) Relying on Save Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 692, FOGR contends the revised THP relies on inadequate past surveys of plant species and deferred future surveys. But, in Agoura Hills, the Court of Appeal noted " that 'an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts. Simply because an additional test may be helpful does not mean an agency must complete the test to comply with the requirements of CEQA.' " (Agoura Hills, at p. 693.)
We also reject FOGR's claim that Cal Fire should recirculate the revisions for further public and agency comment. "A lead agency is required to recirculate an EIR when significant new information is added . . . ." (Cal. Code Regs., tit. 14, § 15088.5, subd. (a).) Here, Cal Fire recirculated the revisions in January 2019, and it reopened the public comment period in April 2019, which was after Cal Fire received the CDFW letter. We discern no legal basis for FOGR's claim that Cal Fire should recirculate the revisions yet again. (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1132 ["Recirculation was intended to be an exception, rather than the general rule."].)
VI. The Revisions to the Section on Alternatives Comply with the Writ
"[A] legally sufficient THP must include some consideration of feasible alternatives even if the project's significant environmental impacts will be avoided through mitigation measures." (Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1404.)
Here, the revised THP adds considerably more information about feasible alternatives and explains why they were rejected. The alternatives considered include a "[n]o project" alternative, alternative harvesting approaches, alternative location, a conservation easement or public purchase of the land, alternative land uses, and alternative timing.
The analysis of alternatives explains that the great majority of the land in the THP is zoned for the growing and harvesting of timber, and the remainder is zoned for "timber production as a primary use." GRT intends to harvest timber, but in a way that will "contribute to restoration of properly functioning salmonid habitat. This entails using the individual tree selection or commercial thinning (from below only) silviculture as prescribed by the [ASP] rules . . . with the goal of increasing the proportion of large trees for large wood recruitment to benefit salmonids."
The project consists of "278 acres of selection logging, 12 acres of Coastal Zone Special Treatment Area selection logging and 52 acres of no-harvest protected areas." "Forest roads, skid roads, and landings are located to minimize the amount of sediment generation that could impact watercourses. The harvest level is very 'light' and operations will occur primarily on flat ground with low erosion hazard. The plan's silvicultural prescriptions are designed to improve forest stocking and health over time, while protecting and restoring salmonid habitat within the watercourse protection zones."
The revised THP does not significantly alter the discussion of the "No Project" alternative, but it adds that not moving forward with the plan "would slow the recovery of the flood prone stands in reaching the ASP rules' intended goal of a restored forest stand and structure that benefits anadromous salmonids."
The revised THP significantly revises the section on alternative harvesting approaches. It explains that the Forest Practice Rules require a 30-foot no-cut zone adjacent to watercourses, 80 percent canopy retention in some areas, and 50 percent canopy retention in others. The 13 largest trees per acre must not be cut. "The intent of these related requirements is to provide for the recruitment of large woody debris to streams" and harvesting smaller trees will lessen the fire risk.
The revised THP explains that an even "lighter" harvest would not be "economically justifiable," and it would "hamper the large tree growth that thinning from below promotes." "If an even 'lighter' harvest were used shade levels would be so high that very little sunlight would penetrate the stand to allow understory hardwoods and other species to grow, and the ASP goal to provide a diversity of species would not be reached."
The revised THP discusses yarding methods, including "tractor/ground-based, cable (ground and aerial), and helicopter" yarding. Tractor yarding "was chosen based on the flat topography of the harvest areas and the existing access infrastructure (skid trail and roads) that has been used at least once (and up to 3 times) on over 70 percent of the harvest areas since 1975." "Tractor yarding will involve driving the tractor . . . on pre-flagged stable skid trails to the downed log [and then] lifting one end of the log off the ground, and skidding the log to the road or landing."
For this project, "cable long-lining" is inferior to tractor yarding. "Cable long-lining from the main haul road . . . will likely create more exposed soils within the flood prone areas because logs would have to be dragged over greater distances. Also, cable long-lining will result in more damage to the residual forest stand from logs rubbing against and/or bouncing off the boles of the residual stand and tearing bark off the trees as logs will need to be pulled in a straight line to existing roads over longer distances than would be the case with tractor skidding."
The revised THP rejects "[s]kyline cable (aerial)" yarding because it would require building new roads on the slopes, which is costly, and it would result in more sediment in watercourses and more soil disturbance than tractor yarding. It would require "corridors to be cut through the residual stand to allow for stringing the yarding cable," which may not comply with the canopy retention requirements of the ASP rules.
The THP rejects "[h]elicopter yarding" because it would increase noise levels, it requires "large landings . . . for safely delivering and loading logs," it is less safe than other forms of yarding, and it is difficult to find contractors willing to work on a project of this small size. According to the revised THP, it typically takes "three times the available volume from this THP to interest contractors. In addition, many helicopter firms have stopped logging in favor of other more lucrative lift projects and fire suppression work."
In the discussion of alternative locations, the revised THP explains that harvesting in other areas "is effectively what has been occurring over the last 19 years during the ASP rule development for harvesting on flood prone areas." Other parts of GRT's property have been "harvested more recently and are re-growing to full site capacity." Harvesting elsewhere would delay restoration of this flood prone area pursuant to the ASP rules "for the benefit of salmonids." Moreover, this land is zoned for timber production.
Regarding a conservation easement, the revised THP explains that even on lands managed by nongovernmental organizations or public entities, commercial logging occurs to reduce stand density. GRT does not intend to sell the land because it has been zoned for timber production as its best use, and GRT intends to use the logs in its affiliated sawmills. Public acquisition is further complicated due to the location: "the parcel includes the main haul route on the property that logging trucks and equipment must use to access the remainder of the property. A sale of this area for public use would cause significant conflicts between recreationists and timber harvesting contractors."
In its discussion of alternative land uses, the THP points out it would be difficult to have the land rezoned for "a non-timber use." "The County would not likely permit a development in a flood prone area due to the safety hazards associated with flooding; the majority of the THP area is in the flood zone." Postponing the timing of the harvest would "delay implementation of the management techniques that will lead to restoration of the flood prone areas for the benefit of salmonids."
FOGR complains that "the recirculated THP contains no data or other evidence supporting GRT's contentions that alternative logging practices are infeasible or unreasonable, aside from its own business preferences." FOGR also claims the account of why tractor logging is preferable is contradictory and fails to confront "conflicting evidence."
We are not persuaded. We review Cal Fire's factual conclusions for substantial evidence, which means we look for " 'enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.' [Citation.]" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.) While FOGR disagrees with the account of alternatives considered, the revised THP provides a reasonable explanation of why, for example, tractor yarding is the preferred harvesting approach for this project. More generally, the revised THP discusses "a reasonable range of alternatives and provide[s] an adequate discussion of their feasibility; no more was required." (Marin Mun. Water Dist. v. KG Land California Corp. (1991) 235 Cal.App.3d 1652, 1666.)
DISPOSITION
We affirm the trial court's postjudgment order discharging the writ of mandate and lifting the injunction. The stay on timber operations imposed by this court will dissolve upon issuance of the remittitur.
/s/_________
Seligman, J. WE CONCUR: /s/_________
Simons, Acting P. J. /s/_________
Needham, J.
Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.