Ctr. for Biological Diversity v. Cal. Dep't of Forestry & Fire Prot.

232 Cal.App.4th 931

182 Cal.Rptr.3d 1

CENTER FOR BIOLOGICAL DIVERSITY et al., Plaintiffs and Appellants,

v.CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendants and Respondents;

North Gualala Water Company et al., Real Parties in Interest and Respondents.

A138914

Court of Appeal, First District, Division 5, California.

Filed December 2, 2014

Michael W. Graf, El Cerrito, and Justin J. Augustine, San Francisco, for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Annadel A. Almendras, Anita E. Ruud and Michael W. Neville, Deputy Attorneys General, for Defendants and Respondents.

Mannon, King & Johnson and James F. King, Ukiah, for Real Parties in Interest and Respondents.

BRUINIERS, J.

The California Department of Forestry and Fire Protection (CAL FIRE) approved a "Nonindustrial Timber Management Plan" (NTMP) authorizing logging on approximately 615 privately held acres of north coast redwood and Douglas fir forest located in Mendocino County. Appellants Center for Biological Diversity, Friends of the Gualala River, and Coast Action Network (collectively Petitioners) initiated administrative mandamus proceedings ( Code Civ. Proc., § 1094.5 ) seeking to set aside CAL FIRE's approval of the NTMP, alleging violations of the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. )¹ and the California Endangered Species Act (CESA; Fish & G.Code, § 2050 et seq. ). Petitioners also sought a writ of mandate ( Code Civ. Proc., § 1085 ) and declaratory relief against California's Department of Fish and Wildlife (DFW),² alleging that DFW failed to fulfill its public trust and statutory obligations by failing to object to the NTMP. The trial court denied relief. We affirm.

I. BACKGROUND

The Forest Practice Act

Timberland use in California is governed in significant part by the Z'berg-Nejedly Forest Practice Act of 1973 (§ 4511 et seq.; hereafter Forest Practice Act) and the forest practice rules promulgated by the State Board of Forestry and Fire Protection ( Cal.Code Regs., tit. 14, § 895 et seq. ).³ The purpose of the Forest Practice Act is to regulate the use of timberlands to ensure their productivity while also "giving consideration to values relating to sequestration of carbon dioxide, recreation, watershed, wildlife, range and forage, fisheries, regional economic vitality, employment, and aesthetic enjoyment." (§ 4513, subd. (b); see § 4514, subd. (c).) These purposes are accomplished in part by management of nonindustrial timberlands. (§§ 4593-4594.7.)

An NTMP, as provided in the Forest Practice Act, is a long-term plan for sustained yield timber production which may be utilized by owners of less than 2.500 acres of timberland who are not primarily engaged in the manufacture of forest products. (§ 4593.2.) The plan must be prepared by a registered professional forester (forester).⁴ (§ 4593.3; FP Rules, rule 895.1.) "[CAL FIRE] is the public agency initially charged with the duty of determining whether or not a proposed timber harvesting plan incorporates feasible silvicultural systems,^{[5 ]} operating methods, and procedures to substantially lessen significant adverse impacts on the environment. ( [FP Rules, rule 898.1(c)(1) ].)" ( Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1228, 32 Cal.Rptr.2d 19, 876 P.2d 505 ( Sierra Club ).) CAL FIRE serves as the "lead agency" in conduct of environmental reviews for such projects. (FP Rules, rule 1037.5(c).) The Forest Practice Rules require CAL FIRE to establish interdisciplinary review teams to review plans and assist it in "the evaluation of proposed timber operations and their impacts on the environment." (Id. , rule 1037.5) A DFW representative is to be included "when possible."⁶ (FP Rules, rule 1037.5(a).) DFW and other members of the review team serve in an "advisory capacity" and "assist the Director" in determining if plans conform to the Forest Practice Act and Forest Practice Rules. (FP Rules, rule 1037.5(b).)

CAL FIRE's approval of timber operations is generally subject to CEQA, but 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.

(§ 21080.5; Sierra Club, supra, 7 Cal.4th at p. 1230, 32 Cal.Rptr.2d 19, 876 P.2d 505.) The Forest Practice Act and Forest Practice Rules together constitute a certified regulatory program under CEQA. ( Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 611, 216 Cal.Rptr. 502.) An NTMP "functions as the equivalent of an EIR." ( Sierra Club, at p. 1230, 32 Cal.Rptr.2d 19, 876 P.2d 505.) "[A]s 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.’ [Citation.]" ( Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 943, 77 Cal.Rptr.3d 239, 183 P.3d 1210.)

The Bower NTMP and Unit 9 Parcel

On October 29, 2008, real parties in interest John and Margaret Bower, Bower Limited Partnership, and North Gualala Water Company (collectively Bower) submitted a proposed NTMP to CAL FIRE, seeking authorization for timber harvesting activities in an area of approximately 615 acres located adjacent to and to the north and northeast of the town of Gualala. The plan was divided into 10 harvest units, across four CAL FIRE planning watersheds (Roseman Creek, Big Pepperwood Creek, Doty Creek, and Robinson Creek).⁷ Forest stands in the NTMP units generally range from young trees to second and third growth redwood and Douglas fir forests, with scattered late seral⁸ "residual" components.

At issue here is CAL FIRE's approval of (and DFW's nonobjection to) logging activity on an approximately 17-acre section of "Unit 9," located in the Doty Creek Watershed.⁹ Unit 9 covers approximately 84 acres in total, composed primarily of second growth redwood and Douglas fir. The portion of Unit 9 that is the focus of this litigation was identified by DFW as "a stand embedded in Unit 9 that meets the structural definition of Late Succession Forest Stands as defined in the [Forest Practice Rules, rule 895.1]."¹⁰ We refer to this stand, as have the parties, as the LSFS.

The Marbled Murrelet

It appears largely undisputed that the LSFS in its present condition is potentially a "functional nesting habitat"¹¹ for the marbled murrelet, a small seabird which is federally listed as a threatened species and classified under CESA as an endangered species. The murrelet is found off California coastal waters from Del Norte to Santa Cruz Counties "in marine and pelagic habitats and nests in coastal coniferous forests," and requires "dense old growth or mature forests of redwood and Douglas-fir" and "[l]arge diameter, moss covered or mistletoe branches that create a broad flat surface (referred to as a platform)" for nesting and breeding. It also appears undisputed that murrelets have no known history of actually nesting in the LSFS. As discussed post, the parties take very different views as to the NTMP's impact on the functionality of the murrelet habitat and on murrelet populations generally.

Procedural History

The Bower NTMP was resubmitted to CAL FIRE in late October 2008.¹² CAL FIRE, DFW and other agency personnel attended a preharvest inspection of Bower's property in December 2008. During that inspection, a DFW biologist characterized certain areas in Unit 9 as "emerging" late seral forest and suggested that the area might need to be evaluated for murrelet habitat. A preharvest inspection report, discussing Unit 9 and murrelet habitat, was filed by CAL FIRE on December 19, 2008. DFW recommended a murrelet consultation and requested that the perimeter of the late seral area in Unit 9 be walked and estimated. Bower's forester subsequently inventoried and photographed all large trees in the area. A second preharvest inspection was conducted by CAL FIRE, DFW, Bower and Bower's forester in February 2009, focusing on the large tree area. The inspection and consultation included an assessment of "several residual old growth redwood trees and one residual old growth Douglas-fir" and assessment of murrelet habitat. DFW submitted its preharvest inspection and murrelet consultation reports in June 2009. The consultation report opined that suitable murrelet habitat existed within the LSFS and proposed specific mitigation measures to avoid "take" of murrelets pending completion of protocol surveys within the LSFS.¹³

Bower's forester submitted a response to the DFW murrelet consultation report on August 5, 2009--identifying and mapping a total of 67 trees meeting the DFW definition and description of late seral habitat, ranging from 25 to 106 inches DBH.¹⁴

A majority of the 67 trees are located within a 13-acre core area of the LSFS. Bower's forester characterized only seven as late seral and asserted that the LSFS had only "marginal potential for marbled murrelet occupation," given the parcel's small size and close proximity to a local airport and a residential area. DFW recommended retention of 39 large diameter trees ( [>=] 40-inch DBH) identified in and around the LSFS. A revised NTMP submitted in November 2009, required retention of 30 out of the 67 large diameter trees to provide structural characteristics beneficial to wildlife, with seven of these being adjacent to, but outside the boundaries of the LSFS.¹⁵

On December 3, 2009, the CAL FIRE review team chair recommended approval of the revised NTMP, subject to compliance with additional mitigation measures which were incorporated into the NTMP. These measures included replacement of fallen or dead wildlife trees, in a two for...