The California Supreme Court has upheld three timber harvest plans that an appellate court had found to be in violation of the state Forest Practices Act and the California Department of Forestry's functional equivalent of the California Environmental Quality Act. The state high court ruled the analysis of cumulative impact on two rare species was adequate, as was an analysis of likely herbicide use.

While it appeared the Department of Forestry (CDF) was initially reluctant to address in detail issues raised by environmentalists, CDF in the end provided information and analysis, primarily in responses to comments on the draft timber harvest plans.

The disputed timber harvest plans were proposed for land in Tuolumne County owned by Sierra Pacific Industries, the largest private landowner in the state. Sierra Pacific proposed to harvest three sites of 534, 441 and 394 acres in the Sierra Nevada Mountains. In April 2002, CDF approved all three timber harvest plans (THPs).

Two environmental groups sued, arguing that CDF had violated the Z'berg-Nejedly Forest Practices Act and the California Environmental Quality Act (CEQA). A Tuolumne County Superior Court judge ruled against the groups, but in 2006 the Fifth District Court of Appeal reversed the lower court. The appellate panel ruled that a cumulative impact analysis regarding the California spotted owl and the Pacific fisher failed to comply with regulations implementing the Forest Practices Act, and that CDF should have addressed the "reasonably foreseeable" use of herbicides.

The state Supreme Court unanimously overturned the Court of Appeal decision.

On the issue of cumulative impacts, environmentalists argued that Sierra Pacific's THPs did not consider a broad enough area. The appellate court found that the THPs violated the Forest Practices Act Technical Rule Addendum No. 2, which requires that "biological assessment areas will vary with the species being evaluated and its habitat."

The environmentalists were right "in a formalistic sense," Justice Kathryn Werdegar wrote for the state high court. The analysis defined "planning watersheds" of several thousand acres around each proposed timber harvest site, and the discussion of cumulative impacts did not designate by name different assessment areas for the owl and the fisher.

"When one reads the THPs for substance, however, a different picture emerges," Werdegar wrote. [T]he THPs, as well as CDF's response to comments on them, actually discuss potential cumulative impacts on the California spotted owl and Pacific fisher over areas of the Sierra Nevada much more extensive than the designated planning watersheds."

"[T]he regulation directing timber harvest plan preparers to follow the technical addendum also directs them to be ‘guided by standards of practicality and reasonableness,'" Werdegar continued. "In that light, we believe the technical addendum is properly read to direct that a timber harvest plan's cumulative-impacts assessment be reasonably tailored, in geographic scope as in other respects, to the species under decision, but not to require rigid adherence to a particular analytical process."

Regarding the use of herbicides — timber companies often apply herbicide after harvesting timber so that scrub brush does not overwhelm newly planted seedling trees — Sierra Pacific initially said that herbicide use was "entirely too speculative" to be considered in the THPs. CDF appeared to agree, saying that it was not required to analyze in a THP the use of herbicides and that the Department of Pesticide Regulation's programs would address the issues.

The court said that CDF could not simply defer to another agency and had a duty "to approve, disapprove and impose mitigation measures on timber harvest plans, including measures to address the foreseeable use of herbicides in planned silvicultural operations."

Although CDF initially declined to address herbicide use, in fact the agency's response to comments contains "an extended consideration of the ‘cumulative watershed or biological effects' of using any of six herbicides in silviculture," the court noted. "CDF thus did not erroneously rely on the Department of Pesticide Regulation's regulatory program and fail to conduct its own environmental impacts assessment."

The court's ruling centered on process and did not address the question of whether substantial evidence supported CDF's conclusions in the THPs. In a footnote, Werdegar wrote, "We have not attempted to weigh the parties' competing factual claims in this case."

Environmentalists complained that the court ruling elevated process over substance. Central Sierra Environmental Resource Center Executive Director John Buckley called the decision a "technical, procedural ruling that accepts the current level of paperwork analysis."

But Sierra Pacific attorney Edgar Washburn told the Los Angeles Daily Journal that is was environmentalists who were arguing "any technical error is grounds to invalidate" a timber harvest plan. He praised the court for allowing CDF to exercise discretion while evaluating plans.

The Case:
Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection, No. S143689, 08 C.D.O.S. 6184, 2008 DJDAR 7481. Filed May 22, 2008.
The Lawyers:
For Ebbetts Pass Forest Watch: Thomas Lippe, (415) 777-5600.
For CDF: Charles Getz IV, attorney general's office, (415) 703-5500.
For Sierra Pacific Industries: Edgar Washburn, Morrison & Foerster, (415) 268-7860.