Opinion
Rehearing Granted Oct. 23, 1991.
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Thomas N. Lippe, Bruce M. Towner, Towner & Lippe, San Francisco, for appellants Sierra Club et al.
Clyde Small, Redding, for respondents Cal. Bd. of Forestry et al.
Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter, Frank Shaw Bacik, Ukiah, for respondent and real party in interest Pacific Lumber Co.
NEWSOM, Acting Presiding Justice.
This appeal from the superior court's denial of appellants' petition for writ of mandate involves the approval by the California Board of Forestry (hereafter Board) of two timber harvest plans of Pacific Lumber Company (hereafter Palco). It presents a single vital issue: the authority of the California Department of Forestry (hereafter Department) to require timberland owners or timber operators to include surveys of old-growth-dependent wildlife species in timber harvest plans relating to stands of old-growth forest with complex habitat characteristics. Acting at the insistence of the California Department of Fish and Game (hereafter DFG), the Department demanded such surveys for the first time with respect to several timber harvest plans submitted near the beginning of 1988. DFG contends that the surveys are necessary to enable it to recommend suitable measures to mitigate the environmental impact of the timber harvest plans pursuant to the Forest Practice Act of 1973 and the California Environmental Quality Act.
DFG bases its demand for the surveys on an evolving theory of wildlife management on old-growth forests. Rather than focusing on the entire forest ecosystem, this theory seeks to identify the individual forest components, such as forest floor debris and tall snags, that are needed in the life
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cycle of specific old-growth-dependent species. As explained by DFG biologist Jim Steele, the theory assumes "that it's not the cutting of the trees that [is] causing the problem but the way they are cut...." DFG maintains that, by preserving the forest components vital to those old-growth-dependent species actually present on timberland, a timber harvest plan may enable a species to survive or extend its range from neighboring forest after timber harvesting.
The two parcels at issue here are found in the Yager Creek drainage basin in Humboldt County. Both contain a primitive redwood-dominated forest with a multi-layered canopy and a wide range of forest habitats. Timber harvest plan 1-88-65 HUM (hereafter plan 65) embraces a small parcel of 82 acres. The principal focus of the litigation has been on 1-88-74 HUM (hereafter plan 74), a 237-acre parcel, about a mile away, which is adjacent to a 480-acre parcel of untouched old-growth forest and close to another 800-acre parcel. Palco owns a substantial portion of the old-growth forest in the Yager Creek drainage and has been harvesting about 5 percent of its holdings per year in the last decade. It estimates that plan 74 would yield 26,024,000 board feet of redwood timber, 10,564,000 board feet of Douglas fir timber, and 842,000 board feet of grand fir timber, offering a gross response in 1987 prices of $26,508,625.
The Department initially refused to accept the two timber harvest plans for filing. In a letter to Palco dated February 24, 1988, the regional resource manager explained, "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." The letter requested that Palco "[p]rovide a wildlife survey of [its] proposed operating area and general vicinity done by a recognized wildlife professional" and offered some general guidelines for the conduct of the survey. In a letter exchanged on the same date, Palco refused to provide the wildlife surveys "as it would establish a very inappropriate precedent." Later reversing its initial decision, the Department accepted the plans for filing under California Code of Regulations, title 14, section 1037, but continued to support the DFG request for wildlife information throughout its review of the plans.
DFG presented Palco with a detailed description of the desired wildlife data in a letter of Associate Wildlife Biologist John Hummel, dated March 25, 1988. Hummel reaffirmed DFG's demand for a wildlife survey of the "proposed operating area and general vicinity" performed by a qualified professional. He expanded the list of species to be surveyed to include the Del Norte salamander, a species whose known range ends a few miles from
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the Yager Creek drainage, and outlined a protocol for surveys of each of the eight species. The protocol called for observation during the particular times when the species are likely to be seen. Thus, the marbled murrelet was to be sought in three observations during nesting season, from May 1 through June 30, between one-half hour before and one-hour after sunrise. If the species should be discovered, the protocol required investigation of the quality of the habitat, its sufficiency for supporting the life cycle needs of the species, and the presence of specific breeding sites.
Palco rejected the DFG demand in a letter of its registered professional forester, Robert Stephens, dated March 31, 1988. While providing much additional information and agreeing to six additional mitigation measures, Stephens refused to "undertake new initial studies" of wildlife on the property and agreed only to supply information then available to the company. This included a recent survey of a one-mile segment of stream in the drainage basin that disclosed the presence of the tailed frog and Olympic salamander.
On the recommendation of the interagency review team, the Department denied the two timber harvest plans as being incomplete within the meaning of California Code of Regulations, title 14, section 898.2, subdivision (c). The letter of denial dated April 18, 1988, states: "This conclusion is based on the request from the Department of Fish and Game, John Hummel, for wildlife surveys and the need to know of the presence or absence of old-growth-dependent species in order to make adequate mitigation if those species exist in the THP [timber harvest plan] areas." Palco appealed the decision to the Board.
In a hearing before the Board on May 20, 1988, DFG and the Department clarified their policy regarding the requested wildlife surveys. The DFG biologist, Jim Steele, said the surveys would be needed only for those timber harvest plans relating to old-growth forests with complex habitats--"perhaps 5 percent, maybe less," of all timber harvest plans submitted to the Department. Other representatives retreated from the broad request for information in Hummel's letter of March 25, 1988. The Department's deputy director, Ken Delfino, emphasized that the Department wanted wildlife surveys--not scientific studies of the natural history of the species--which would be comparable to the sort of surveys that it had long required with respect to timber conditions, archeological resources, and water courses. The Department's Staff Chief Ross Johnson insisted that acceptable surveys could be accomplished within three months at a cost of only a few thousand dollars, perhaps as little as three thousand dollars. Most significantly, the Department dropped its vague request for surveys of wildlife in "the general vicinity" of the proposed operating area. Ross Johnson stated, "All we're asking for is
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to give us information on what is on their property as it relates to these particular species."
On June 8, 1988, the Board overturned the Department's decision and approved the plans pursuant to section 4582.7. In support of its action, the Board made two findings which we will examine more closely later. It found that the Department and DFG were "unreasonable in requesting" the wildlife surveys in question; and, in ambiguous language, it declined to find that the timber harvest plans would have "significant adverse effects on old-growth-dependent wildlife species."
Like other cases in this area, the appeal raises the initial question of the interrelation between the Forest Practices Act of 1973 (hereafter FPA) and the California Environmental Quality Act (hereafter CEQA). We will review the general governing principles before proceeding to specific statutory issues. The interrelationship of the two acts turns on the interpretation of a provision of CEQA, section 21080.5, which exempts certain regulatory programs from the requirement of an environmental impact report. In general, section 21080.5 provides that, when a state regulatory program requires the submission and approval of a written plan that is the "functional equivalent" of an environmental impact report, the Secretary of the Resources Agency may certify the program to be exempt from two of the six chapters of CEQA and an additional section: "A regulatory program certified pursuant to this section is exempt from the provisions of Chapter 3 (commencing with Section 21100) and Chapter 4 (commencing with Section 21150) and Section 21167." (§ 21080.5, subd. (c).) In California Code of Regulations, title 14, section 15251, subdivision (a), the Secretary of Resources certified that timber harvest plans filed under the FPA qualify for the exemption of section 21080.5.
Unless otherwise indicated, all statutory citations are to the Public Resources Code.
The 3,000 acre Yager Creek drainage is part of the 8,600 acre Lawrence Creek watershed. Although the Yager Creek drainage has never been logged, 5,400 acres of the Lawrence Creek watershed have already been logged. There are over 3.4 million acres of old growth Redwood forests in California not being managed for timber production.
The phrase "functional equivalent" is taken from Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 964, 131 Cal.Rptr. 172, and Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 617, 216 Cal.Rptr. 502.)
Two early cases construing the statute both held that the portions of CEQA not specifically exempted by section 21080.5 continued to apply to timber harvest plans filed pursuant to the FPA. (Natural Resources Defense Council, Inc. v. Arcata Nat. Corp., supra, 59 Cal.App.3d 959, 131 Cal.Rptr. 172; Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 142 Cal.Rptr. 86.) The issue was later analyzed in an exhaustive and definitive manner in the landmark decision, Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d 604, 216 Cal.Rptr. 502 (EPIC ). (See also Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 457-468, 246 Cal.Rptr. 82.) In
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essence, EPIC holds that the limited exemption provided by the literal terms of section 21080.5 reflects the actual legislative intent: "Section 21080.5 does not grant the timber harvesting industry a blanket exemption to CEQA's provisions; it grants only a limited exemption to the applicability from CEQA by allowing a timber harvester to prepare a THP [timber harvest plan] in lieu of a complete environmental impact report." (Id. 170 Cal.App.3d at p. 616, 216 Cal.Rptr. 502.)
EPIC expressly approved the CEQA guideline, California Code of Regulations, title 14, section 15250, defining the application of CEQA to programs certified under section 21080.5. (EPIC, supra, 170 Cal.App.3d at p. 617, 216 Cal.Rptr. 502.) The regulation provides: "A certified program remains subject to other provisions in CEQA such as the policy of avoiding significant adverse effects on the environment where feasible." (Cal.Code Regs., tit. 14, § 15250.) Further clarifying this point, the decision cites Natural Resources Defense Council, Inc. v. Arcata Nat. Corp., supra, 59 Cal.App.3d 959, 131 Cal.Rptr. 172, for the principle that, apart from the chapters and section specifically exempted, the two acts " 'are not in conflict, but rather supplement each other and, therefore, must be harmonized.' " (170 Cal.App.3d at p. 615, 216 Cal.Rptr. 502.) As a general matter, "statutes which are in pari materia should be read together and harmonized if possible. Even when one statute merely deals generally with a particular subject while the other legislates specifically upon the same subject with greater detail and particularity, the two should be reconciled and construed so as to uphold both of them if it is reasonably possible to do so [citations]." (Ibid.)
Appellants maintain that the Department was authorized to demand the wildlife surveys under a specific provision of CEQA, section 21160, that is consistent with the general legislative framework of FPA. Section 21160 provides: "Whenever any person applies to any public agency for a lease, permit, license, certificate, or other entitlement for use, the public agency may require that person to submit data and information which may be necessary to enable the public agency to determine whether the proposed project may have a significant effect on the environment or to prepare an environmental impact report."
An agency subject to CEQA may unquestionably be authorized under section 21160 to request the sort of wildlife survey at issue here. CEQA serves the policy, declared in section 21001, subdivision (c), to "[p]revent the elimination of fish or wildlife species due to man's activities, insure that fish and wildlife populations do not drop below self-perpetuating levels, and preserve for future generations representations of all plant and animal communities...." By the device of an environmental impact statement, the procedures of CEQA are intended " '... to alert the public and its
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responsible officials to environmental changes before they have reached ecological points of no return' " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, 253 Cal.Rptr. 426, ) and to assure careful consideration of feasible measures that may mitigate any significant adverse impact on the environment. (See §§ 21061, 21061.1, and 21081.) Where a project affects property containing a relict wildlife habitat, a survey of the wildlife within this habitat clearly serves the purpose of CEQA.
Although it contains no direct equivalent to section 21160, FPA establishes a statutory and regulatory framework that, construed in pari materia with CEQA, implicitly confers on the Department a similar authority to request reasonable wildlife surveys when needed to evaluate a timber harvest plan. The legislative purposes of the FPA include consideration for wildlife. Section 4513, subdivision (b), states that it is the legislative intent to assure that "[t]he goal of maximum sustained production of high-quality timber products is achieved while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment." (See also § 4512, subd. (c); Cal.Code Regs., tit. 14, § 895.1 [definition of "[w]hile giving consideration"].) Other provisions require the DFG's participation in the administration of the act. In developing rules under the FPA, the Board must "solicit and consider ... recommendations from the Department of Fish and Game relating to the protection of fish and wildlife, ..." (§ 4551.5.) All timber harvest plans must be transmitted to the DFG and certain other agencies "for the purpose of interdisciplinary review," and the Department "shall invite, consider, and respond in writing to comments received from [these] public agencies...." (§ 4582.6, subd. (a).)
The regulations adopted by the Board contain a series of provisions concerning "adverse impacts on the environment" that either implicitly or explicitly apply to wildlife. Thus, the registered professional forester charged with preparation of timber harvest plans "shall indicate whether the operation would have any significant adverse impact on the environment." (Cal.Code Regs., tit. 14, § 898.) The interagency review team shall assist the director of the Department "to evaluate the potential environmental impacts of timber operations." (Cal.Code Regs., tit. 14, § 1037.5, subd. (b).) The director is directed to delay a decision to approve a play if it could result in "significant" harm to the natural resources of the state. The term "significant" is defined as "harm or damage which is substantial and threatens the use of forest-related benefits (i.e., other beneficial uses of the air, water, soil, fish or wildlife resources.)" In reviewing plans, the director shall disapprove those that "[d]o not incorporate feasible silvicultural systems, operating methods and procedures that will substantially lessen significant
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adverse impacts on the environment." (Cal.Code Regs., § 898.1, subd. (c)(1).)
Palco argues that these provisions should be read narrowly as referring to other specific regulations concerning rare or endangered animal species and bird species of special concern, as designated by the DFG and the Board, respectively. (See Cal.Code Regs., tit. 14, § 895.1 [definition of "[s]pecies of special concern"].) It points out that the regulation prescribing the contents of timber harvest plans explicitly calls for information only about these two categories of species. (Cal.Code Regs., tit. 14, § 1034, subd. (w).) And other regulations dealing with the protection of wildlife are similarly limited to these designated species. (E.g., Cal.Code Regs., tit. 14, §§ 898.2, subd. (d), 917.1, 919.6, 919.7, 921.1.)
Palco contends that this narrow reading is mandated by section 4582.75 which provides that "[t]he rules adopted by the Board shall be the only criteria employed by the director when reviewing timber harvesting plans...." We are, however, unable to perceive in this statute a rule of construction that general provisions in the regulations are restricted by the meaning of specific provisions within the same subject matter. To the contrary, the rule requiring FPA and CEQA to be read in pari materia demands that the regulations be construed to further the broader purposes of the two acts. The phrase "adverse impact on the environment" should be read with these purposes in view. Thus, California Code of Regulations, title 14, section 898, requiring the registered professional forester to "indicate whether the operation would have any significant adverse impact on the environment," should be construed not merely to require the forester to comment on the environmental impact of the proposed logging operation, but also to provide information necessary to enable the Department to evaluate the nature of the adverse environmental impact. The information should be adequate to enable the director of the Department to determine pursuant to California Code of Regulations, title 14, section 898.1, subdivision (c)(1), whether the proposed timber harvest plan "will substantially lessen significant adverse impacts on the environment." It follows that the Department is authorized to demand wildlife surveys to the extent that they are necessary to enable it to discharge its obligations under the regulations.
EPIC, supra, 170 Cal.App.3d 604, 618-620, 216 Cal.Rptr. 502, makes clear that section 4582.75 was not intended to exempt the FPA from the application of CEQA.
In sum, we see no conflict between section 21160 of CEQA and related provisions of the FPA. The authority to require the submission of environmental data, which is explicitly conferred by section 21160, is consistent with similar authority that may be implied under the FPA regulations.
We reject the Board's argument that the references to "the best available scientific information" in Fish and Game Code section 2090, subdivision (b), and "the best existing scientific information" in Fish and Game Code section 2092, subdivision (c), somehow restrict the authority of the Department to request information under section 21160 and the FPA regulations. These sections merely provide guidelines for the DFG's review of projects affecting threatened and endangered species.
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The Board has taken the position, however, that the wildlife surveys at issue conflict with the procedural provisions of the FPA establishing "speedy time frames" for processing timber harvest plans. California Code of Regulations, title 14, section 1037, provides: "Within ten (10) days of the receipt of a plan, the director [of the Department] shall determine if the plan is accurate, complete and in proper order, and if so, the plan shall be filed. During this same period, the director shall determine if a preharvest inspection is necessary." Unless the person submitting the plan agrees to a longer period, section 4582.7 gives the director only 25 days from the date either of filing or the preharvest inspection to act on a timber harvest plan: "If the director does not act within 25 days, or a longer period mutually agreed upon by the director and the person submitting the timber harvesting plan, timber operations may commence pursuant to the plan, ..." (See also Cal.Code Regs., tit. 14, § 1037.4.)
It is, of course, true that the wildlife surveys in question could not be conducted within the 25 days allotted for the director's review. Because of the limited seasonal opportunities to observe certain species, the surveys will require a period of months to complete. But from this we do not conclude that the surveys are inconsistent with the FPA "time frames," but rather that the surveys should be completed before a timber harvest plan is submitted. If a timber harvest plan lacks necessary wildlife data, the director may refuse to accept the plan for filing under California Code of Regulations, title 14, section 1037, or disapprove it under title 14, section 898.2, subdivision (c).
Palco argues that the director approves a timber harvest plan as being complete when he accepts it for filing under California Code of Regulations, title 14, section 1037, and that he is thereafter bound by this approval. The contention would, however, make a dead letter of title 14, section 898.2, subdivision (c). Title 14, section 1037, can more reasonably be read as merely providing the director with authority to reject a plan for filing on the ground of incompleteness. The Department's director may have good reason to allow the filing of an incomplete plan if the deficiency can be easily remedied or the need for the missing information can be more carefully evaluated during the review process.
The Board suggests that, even if not in conflict with a specific regulation, the wildlife surveys are at least in tension with the underlying policy of the FPA favoring speedy processing of timber harvest plans. But the surveys
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will not necessarily slow the process of preparing timber harvest plans. The delays that Palco decries are merely a transitional problem; in the future, it can factor the time required for the surveys into its business plans for harvesting old-growth timber.
Our conclusion is generally consistent with the practical effect of California Code of Regulations, title 14, section 15111, but we do not rely on this regulation. Title 14, section 15111, was adopted before the enactment of section 21080.5 (see Natural Resources Defense Council, Inc. v. Arcata Nat. Corp., supra, 59 Cal.App.3d 959, 972-973, 131 Cal.Rptr. 172; 57 Ops.Cal.Atty.Gen. 587 (1974)) and is now limited by that statute. It must be disregarded to the extent that it purports to regulate the procedures governing the approval of timber harvest plans. (See Napa Valley Wine Train, Inc. v. Public Utilities Com. (1990) 50 Cal.3d 370, 376, 267 Cal.Rptr. 569; Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 199, 132 Cal.Rptr. 377.) Section 21080.5 provides an exemption from the procedural chapters dealing with environmental impact reports--chapters 3 and 4--which is available to regulatory programs that, among other things, are certified to possess appropriate "guidelines for the orderly evaluation of proposed activities and the preparation of the plan or other written documentation...." (§ 21080.5, subd. (d)(2)(ii).) The statute serves to exempt certified regulatory programs from CEQA regulation affecting their "guidelines for the orderly evaluation" of a required plan. To the extent that it refers to timber harvesting plans, title 14, section 15111, infringes on this exempt procedural sphere.
Title 14, section 15111, provides: "(a) A few statutes or ordinances require agencies to make decisions on permits within time limits that are so short that review of the project under CEQA would be difficult. To enable the lead agency to comply with both the permit statute and CEQA, the lead agency shall deem an application for a project not received for filing under the permit statute or ordinance until such time as progress toward completing the environmental documentation required by CEQA is sufficient to enable the lead agency to finish the CEQA process within the short permit time limit. This section will apply where all of the following conditions are met: [¶] (1) The enabling legislation for a program ... requires the lead agency to take action on an application within a specified period of time that is six months or less, and [¶] (2) The enabling legislation provides that the project will become approved by operation of law if the lead agency fails to take any action within such specified time period, and [¶] (3) The project involves the issuance of a lease, permit, license, certificate, or other entitlement for use. [¶] (b) Examples of time periods subject to this section include but are not limited to: ... [¶] (2) Action on a timber harvesting plan by the Director of Forestry within 15 days pursuant to Section 4582.7 of the Public Resources Code...."
The issue remains whether the Department acted reasonably in requiring the actual wildlife surveys at issue here. (See San Francisco Ecology Center v. City and County of San Francisco (1975) 48 Cal.App.3d 584, 594, 122 Cal.Rptr. 100.) The Board found that the Department and DFG were "unreasonable in requesting information beyond that which is now
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available in the record because other surveys could take several months to complete. This would conflict with the speedy time frames contained in the Forest Practice Act for processing THPs [timber harvest plans]." Although it refers to the issue of "speedy time frames" discussed above, we read the Board's finding as saying more generally that the requested wildlife surveys were unreasonably burdensome. Our review of Board findings is governed by the substantial evidence rule (§ 21168; Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d 376, 392-393, fn. 5, 253 Cal.Rptr. 426; EPIC, supra, 170 Cal.App.3d 604, 614, 216 Cal.Rptr. 502) and is limited to testimony and documents properly before the Board under California Code of Regulations, title 14, sections 1054.6 and 1054.7. (See Cal.Code Regs., tit. 14, § 1054.8; Doers v. Golden Gate Bridge, etc., Dist. (1979) 23 Cal.3d 180, 184, fn 1, 151 Cal.Rptr. 837.)
We are mindful that " '[t]he findings and the determination [of the administrative agency] come before the reviewing court with a strong presumption as to their correctness and regularity. Thus, it is presumed ... that the necessary facts to support the determination were ascertained and found, that the agency duly considered the evidence adduced at the administrative hearing, that official duty was regularly performed, and that the agency applied the proper standard or test in reaching its decision.' " (Faulkner v. California Toll Bridge Authority (1953) 40 Cal.2d 317, 330.)
Appellants have moved for judicial notice of six exhibits. Although we are entitled to take judicial notice of four of these items under Evidence Code sections 451, subdivisions (a) and (b), and 452, subdivision (c), we deny the motion on the ground that the documents are irrelevant to the decision on appeal.
Since we are reviewing a decision of the Board itself, we will consider the demand for wildlife surveys as it was presented to the Board at the hearing on May 20, 1988, and need not consider the reasonableness of the Department's vague and open-ended demand for wildlife surveys in the "general vicinity" of the timber harvest plan. We accept the Department's representation that it desired a survey of existing conditions, rather than a study of ecological processes. In view of the DFG's assurances regarding the modest time and cost of the survey, we view the protocol outlined in John Hummel's letter of March 25, 1988, as a general guideline rather than a statement of the required content of the survey. Finally, since the record indicates that plan 65 and plan 74 affect a complex old-growth habitat in a relict stand of a primitive redwood-dominated forest, we do not reach the issues of reasonableness involved in requiring such surveys in timberland which lack these ecological characteristics.
We do not mean to suggest, however, that a limited survey of neighboring habitat is necessarily unreasonable. California Code of Regulations, title 14, section 919.9, in fact requires such a survey of spotted owl habitat.
As they were described to the Board, the wildlife surveys in question are indistinguishable from other inspections of the proposed logging site required by FPA regulations. They demand no more than the Department
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would reasonably require in order to intelligently weigh mitigating measures calculated to preserve a vital and perhaps vulnerable animal community. The device of wildlife surveys, like other preharvest surveys, is of course susceptible to abuse and could be used as a weapon of delay in the processing of timber harvest plans. But the present record does not support the Board's finding that the requested surveys were here unreasonable.
Palco argues that, in view of the restricted use allowed on land zoned for timberland production (see Gov.Code, §§ 51115, 51115.1), environmental regulation may deprive it of economically viable use of the property in violation of the Fifth Amendment and the Due Process Clause. (Agins v. City of Tiburon (1980) 447 U.S. 255, 100 S.Ct. 2138, 65 L.Ed.2d 106.) Whatever may be the merit of this argument, we see no constitutional issue implicated by the wildlife surveys at issue here.
Palco repeatedly cites Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 271 Cal.Rptr. 393. The decision also involved a disputed need for a wildlife study, but the resemblance stops there. The specific issues in the decision--the substantive effect of CEQA, the interpretation of section 21166 and California Code of Regulations, title 14, section 15380, and adequacy of the finding on cumulative effects--have no relevance to the Department's authority to demand the wildlife surveys at issue here.
Our analysis presupposes that the timber harvest plans may have a significant effect on the environment. If no such effect could reasonably be found, the Department would have no basis to demand the wildlife surveys at issue. The Board adopted an ambiguous finding on this point that it later revised. Initially, it found: "In conclusion, the Board is unable to determinitively say whether there will or there will not be significant adverse effects on old-growth-dependent wildlife species or habitat from harvesting that will occur under these two plans. The best that we can say is that the DFG, the state agency responsible for protection of wildlife, believes that there may be possible significant effects, whereas other reputable experts for PALCO believe that there will not be. At best, the information is uncertain and speculative (based on available information)."
It is well established that "speculative possibilities are not substantial evidence of environmental impact." (Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756, 272 Cal.Rptr. 83; Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1352, 272 Cal.Rptr. 372; Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 434-435, fn. 6, 187 Cal.Rptr. 53.)
The finding comes very close to acknowledging the required environmental significance of the timber harvest plans. Section 21068 defines the phrase "significant effect on the environment" to mean a "potentially substantial, adverse change in the environment" [emphasis added], and the Board's own regulations define the phrase in the same manner. (Cal.Code Regs., tit. 14, § 895.1.) The Supreme Court has held that CEQA mandates an environmental impact report "not only when a proposed project will have a significant environmental effect, but also when it 'may'...." (Friends of
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Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 271, 104 Cal.Rptr. 761.) "[S]ince the preparation of an EIR [Environmental Impact Report] is the key to environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact." (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 118 Cal.Rptr. 34.) Accordingly, if the DFG could fairly argue on the basis of substantial evidence that potentially material adverse changes in the environment might result, there would be a proper basis for requesting the wildlife data. The Board stopped only a little short of saying that the DFG offered such a fair argument, suggesting that the DFG had identified "possible significant effects" that were "speculative and uncertain."
Thereafter, in its official response to environmental points, the Board changed its position by claiming that "in intent" it had found that there was no significant environmental effect. Faced with this ambiguous and shifting position, the trial court returned the timber harvest plans to the Board and requested clarification. (See Keeler v. Superior Court (1956) 46 Cal.2d 596, 600.) In supplementary findings, the Board unequivocally found "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" and provided a lengthy statement in support of this finding.
Contrary to the Board's initial finding, we find nothing in the record suggesting that DFG regarded the adverse environmental impact of the plans as being merely "possible." The record reveals that both the DFG and the Department consistently assumed that the plans would have a significant effect on the environment; hence their repeated requests for data needed in order to consider feasible mitigation. The agencies' letters and memos contain references to "adverse impacts," "acceptable impact," and "significant adverse effect." A letter of the Department's regional resource manager states plainly that "[a] potentially significant adverse effect has been identified."
DFG biologist Hummel provided a cogent and detailed explanation of DFG's position: "The timberstand is an old-growth forest made up of redwood and Douglas-fir. The multi-layered component consist[s] of young fir and redwood with madrone and tan oaks. Structural component of dead snags, down logs, life trees with dead crowns and damaged tops with broken tops exist throughout the stand.... These structural components of broken canopy with uneven age distribution of dominants and subdominants create a vertical foliage distribution of primary importance to birds and a
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patch understory of value to all vertebrates. Broken top trees provide nesting cavities for large bird species, i.e. spotted owl. Upturned branches resulting from loss of leader dominance create nesting habitat for mammals. Fallen logs constitute an important medium for anthropods which serve as a food source for many vertebrates. Logs serve as habitat for vertebrates that live in the decaying wood and also perform other ecological functions. [¶] The Pacific Lumber Company's 'Modified Selection System' results in a significant change to the equilibrium of the old-growth forest by altering the diversity and complexity that is needed to support the associated wildlife species.... [It] must be recognized as the first step towards reducing the existing species populations and species diversity."
Robert Stephens, Palco's registered professional forester, did not contest the point. In an addendum to each plan, he candidly stated, "I openly acknowledge that harvesting timber creates an impact. The significance or the cumulative nature of this impact is difficult to assess. [¶] Logging in old-growth virgin forests impacts the habitat and the wildlife that depends upon it to survive. The continued harvesting in these stands will unquestionably render this impact cumulative in nature. From the standpoint of these animal or plant communities, this is significant. From the standpoint of good forest management, the significance is less.... [¶] Cutting down old-growth trees has an impact because they cannot be replaced. Continued cutting of these trees causes this impact to be cumulative. From the standpoint of the forest manager, this is neither significant or adverse. From the standpoint of the tourist or preservationist, this is significant and adverse."
The mass of testimony and documentation received in the Board's May 20, 1988, hearing contained a quantity of material indicating adverse environmental impacts; but, in its response to the trial court, the Board sought to identify other evidence in the record supporting its revised findings. This response in our view mischaracterized both the interagency review team report and preharvest inspection report, and cited a number of items of proposed mitigation and previous impacts in the area which were irrelevant to the finding at issue. Nevertheless, it identifies certain material from which inferences favorable to its revised findings might reasonably be drawn. These included (1) a study of a stream segment within the Yager Creek basis showing that the tailed frog and Olympic salamander continued to survive despite the degradation of stream quality by nearby logging, (2) evidence that existing data bases contain no reports of species of concern in the area, (3) a "map of old-growth areas owned by Pacific Lumber showing the size and dispersal of the timber stands ... make their habitat contribution limited," and (4) written testimony of a wildlife biologist, Richard Mishaga, who emphasized the capacity of certain species found in primitive redwood-dominated forests to survive in other environments.
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The evidence adduced in the response might perhaps suffice to provide a reasonable basis for the Board's finding that there "will not be any significant adverse effect" on wildlife [emphasis added], i.e., that a significant effect is not probable on the basis of such evidence. But the question posed by CEQA and the FPA concerns potential adverse effects. The statutes mandate consideration of such impacts whenever there is a reasonable basis to expect them; a point not clearly addressed in the Board's finding. Moreover, the present record contains abundant evidence from which it "can be fairly argued" that the two timber harvest plans may have a "significant environmental impact." (No Oil Inc. v. City of Los Angeles, supra, 13 Cal.3d 68, 75, 118 Cal.Rptr. 34.) The two responsible agencies, the Department and DFG, pursued such arguments throughout the proceedings. We accordingly consider that the Board's findings are both irrelevant and unsupported by the evidence. The record clearly reveals a potentially substantial adverse effect on wildlife communities authorizing the Department to demand data necessary to the consideration of feasible mitigating measures.
In additional assignments of error, appellants argue that the Board's obligation to consider cumulative impacts (§ 21083, subd. (b)) and to consider "alternatives" and "mitigation measures" (Cal.Code Regs., tit. 14, § 898) entails a duty to consider the patterns established by past logging and Palco's immediate plans for future logging in the Yager Creek basin. They contend that the pace, and perhaps the eventual extent, of ecological disturbance will be materially affected by the sequence and configuration of the parcels selected for harvesting within the basin. Without discounting in any sense the significance of these issues, we are barred by the doctrine of exhaustion of remedies from considering them in this appeal. The doctrine " '... precludes judicial review of issues, legal and factual, which were not first presented at the administrative agency level. [Citation.]' " (Kane v. Redevelopment Agency (1986) 179 Cal.App.3d 899, 904, 224 Cal.Rptr. 922; Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 194 Cal.Rptr. 357.) Neither the appellants nor the Department raised these additional issues in reviewing the timber harvest plans. The appellants offered no comments on these points; and, in denying the timber harvest plans for incompleteness, the Department relied solely on the absence of wildlife surveys. Although the appeal allowed public comment on a wider range of issues, it presented a single procedural question: the propriety of the Department's denial of the plans on the ground of incompleteness. It is the Board's decision on this issue that appellants have properly challenged in the mandamus proceedings here on appeal.
We do not reach appellant's arguments that (1) the Board failed to recirculate the timber harvest plans upon receipt of new information pursuant to section 21092.1, (2) the Board failed to issue its response to significant environmental points in a timely manner, (3) the response to certain points was inadequate, and (4) the Department's procedure in approving the timber harvest plans violated their right to due process.
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The judgment is reversed and remanded to the superior court with instructions to issue a peremptory writ of mandate directing the Board to rescind its approval of plan 65 and plan 74. Costs are awarded to appellants.
DOSSEE, J., concur.
STEIN, Justice, dissenting.
I respectfully dissent.
In June of 1988 the California Board of Forestry approved two timber harvesting plans submitted by Pacific Lumber Company. These timber harvest plans proposed to log approximately 300 acres of old growth redwood and Douglas fir forest in the Yager Creek drainage. 1 Shortly after the Board approved these plans, this litigation ensued. Now, three and a half years later, this court instructs Pacific Lumber Company to begin the approval process anew. I would hold that the Board did not abuse its discretion when it approved these timber harvest plans.
In T.R.E.E.S. v. California Department of Forestry (1991) 233 Cal.App.3d 1175, 285 Cal.Rptr. 26, division two of this court recently published the following brief overview of the Forest Practice Act:
"The Act's provisions, together with implementing rules and regulations promulgated by the State Board of Forestry (board) §§ 4521.3, 4551, provide a comprehensive scheme regulating timber operations in a way which promotes the legislative 'goal of [achieving] maximum sustained production of high-quality timber products ... while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, regional economic vitality, employment, and aesthetic enjoyment' (§§ 4513, subd. (b), 4512, subd. (c)). The heart of the scheme is its requirement that logging be carried out only in conformance with a timber harvesting plan (THP or plan) submitted by the timber owner or operator and approved by the department after determining, with an opportunity for input from state and county agencies and the general public, that the proposed operations conform to the Act and rules and regulations. (§§ 4581-4582.75, 4583; Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 449, 246 Cal.Rptr. 82; Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 610-611, 216 Cal.Rptr. 502 (hereafter EPIC ).)
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"Since 1976, the THP preparation and approval process developed under the Act has been certified as the functional equivalent to, and hence an adequate substitute for, the full environmental impact report (EIR) process required by CEQA. (EPIC, supra, 170 Cal.App.3d 604, 611-612, 216 Cal.Rptr. 502; Laupheimer v. State of California, supra, 200 Cal.App.3d 440, 458, 246 Cal.Rptr. 82; § 21080.5.)....
"A THP may be effective for up to three years. (§ 4590; Forestry Rules, § 1039.1) Amendments proposing changes to it may be submitted to the Director of Forestry (director), and any '[s]ubstantial deviations' from the original plan may be undertaken only after an amendment has been filed with and acted upon by the director in the same manner required for an original plan (§ 4591; Forestry Rules, §§ 895.1 [defining director], 1036, 1039).
"Violations of the Act or regulations subject the violator to a broad range of penalties and enforcement remedies, including . misdemeanor fines and/or imprisonment for each day of violation (§ 4601). The department has authority to conduct on-site inspections (§ 4604), and its inspecting officers may issue stop orders to temporarily suspend operations while judicial remedies are sought (§ 4602.5, subds. (a), (b)). The department 'may bring an action' to enjoin actual or threatened violations (§ 4605); the court may halt operations pending compliance and corrective action and may condition their resumption on written agreements between the department and the violator insuring such action (§ 4606-4607); the Attorney General 'may, on his own motion or at the request of the board,' also bring an enforcement action (§ 4603)." (--- Cal.App.3d at p. ----, 285 Cal.Rptr. 26.)
It is apparent from this overview that the protection of the environment is not the main purpose of the Forest Practice Act. Its primary goal is the "maximum sustained production of high-quality timber products ... achieved while giving consideration to [environmental concerns and] regional economic vitality [and] employment." (Public Resources Code, § 4513.) The act is intended to foster timber harvesting "despite the industry's recognized potential for adverse environmental effects." (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 616, 216 Cal.Rptr. 502.)
In reviewing a decision of the California Board of Forestry approving a timber harvest plan, the proper standard of judicial review is a limited inquiry into whether the decision "is supported by substantial evidence in the light of the whole record." (Public Resources Code, § 21168; Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d at p. 614, 216 Cal.Rptr. 502.) "In applying the substantial evidence standard, 'the reviewing court must resolve reasonable doubts in favor of the
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administrative findings and decision.' [Citation.] 'A court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that 'The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.' [Citation.]" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393, 253 Cal.Rptr. 426; Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 40, 271 Cal.Rptr. 393.)
The California Board of Forestry is not required to disapprove a timber harvest plan, or even order additional ameliorative measures because of concerns expressed by witnesses and correspondents that cumulative environmental effects might exceed tolerable levels. All that is required is that they consider these concerns in good faith and to the extent their gravity might reasonably warrant. (Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 467, 246 Cal.Rptr. 82.) It is my belief that the administrative record adequately reflects the board's consideration of the expressed concerns. I would, therefore, affirm the superior court's order denying the petition for writ of mandate.
Similarly, we reject the Board's suggestion that, by requiring the DFG to conduct inventories and evaluations of wildlife pursuant to Fish and Game Code sections 1000, 1932, 2053, 2070, and 2079, the Legislature imposed on the DFG exclusive responsibility to provide wildlife data under CEQA and FPA. The required inventories and evaluations have no direct connection with the administrative procedures under these actions.