In a ruling directly at odds with a landmark 1995 decision, the Sixth District Court of Appeal has ruled that local government may not regulate the location of timber harvests.

The Sixth District disagreed with the decision in Big Creek Lumber Co. v. County of San Mateo, 31 Cal.App.4th 418 (see CP&DR Legal Digest, March 1998, February 1995), in which the First District Court of Appeal differentiated between the how and the where of timber operations. In the new case, also involving Big Creek Lumber Company, the Sixth District ruled that there was no difference between conduct and location. Because there is no difference, and because the Forest Practices Act (FPA) prohibits local governments from regulating the conduct of timber operations, local government may not regulate the location of timber harvests, the court ruled.

"Local measures that forbid logging in certain locations ‘regulate the conduct of timber operations’ in those places in the most fundamental way imaginable — by prohibiting them outright," Justice William Wunderlich wrote for the unanimous three-judge panel. "Carried to its logical conclusion, the reasoning in Big Creek v. San Mateo allows individual counties to completely circumvent the FPA by the simple expedient of enacting zoning measures that prevent logging altogether."

In Big Creek v. San Mateo, the First District upheld a county ordinance requiring a 1,000-foot buffer between timber harvest operations and a residence. During the late 1990s, Santa Cruz County sought to restrict logging because of complaints from residents in forested, rural areas (see CP&DR Environment Watch, January 1999). Bolstered by the decision in Big Creek v. San Mateo, the county adopted three ordinances and a resolution that, among other things, established setbacks from riparian corridors, restricted the removal of timber by helicopters, prohibited timber harvesting outside certain zoning districts and imposed additional restrictions on proposals to rezone land to "timber production zone." The county treated some of the regulations as amendments to its general plan and local coastal plan (LCP). The Coastal Commission approved the local coastal plan amendments (the commission decides on all LCP amendments) and further required the county to treat all rezonings to TPZ as LCP amendments.

Big Creek Lumber and the Central Coast Forest Association sued Santa Cruz County and the Coastal Commission. The loggers contended the new regulations were preempted by the FPA (Public Resources Code § 4511 et seq.), the Timberland Productivity Act (TPA) (Government Code § 51100 et seq.), the Coastal Act (Public Resources Code § 30000 et seq.) and state planning and zoning law (Government Code § 65000 et seq.).

Santa Cruz County Superior Court Judge Robert Yonts Jr. found that most of the regulations were preempted by state law but upheld the restriction banning timber harvesting from all but the specified zoning districts. Both sides appealed. The Sixth District found that the FPA superseded the local ordinances and resolution in their entirety.

On appeal, the county relied heavily on Big Creek v. San Mateo — a strategy that failed when the Sixth District rejected that opinion.

One county ordinance and the resolution limited timber harvesting to lands zoned "timber production," "mineral extraction industrial" or, outside the coastal zone, "parks, recreation and open space." This appeared to be the sort of location regulation specifically permitted by Big Creek v. San Mateo. But the Sixth District found that the TPA "severely circumscribes local zoning authority with respect to timberlands."

"[M]ore fundamentally, we question the differentiation between how and where timber operations take place in interpreting the statutory phrase ‘conduct of timber operations,’" Justice Wunderlich wrote, citing Public Resources Code § 4615.5, subdivision (d). "Given both the language and the intent of the statute, we construe the statutory phrase ‘conduct of timber operations’ to encompass the location of those activities as well as the manner of carrying them out."

The court gave similar treatment to the ordinances prescribing riparian setbacks and restricting helicopter logging, finding that the local ordinances were in conflict with the FPA. The court noted that with regard to helicopter logging, the Board of Forestry had even adopted helicopter logging regulations under the FPA that were specific to Santa Cruz County.

As for the Coastal Commission requirement that rezoning to timber production zone be treated as an LCP amendment, the Sixth District noted that the trial court invalidated the county’s resolution and ordinance — not the Commission’s decision. Besides, the Sixth District held, the Commission cannot require the county to exercise authority it does not have, and under the TPA, the county must grant requests to rezone land to TPZ if the parcels meet the statutory criteria. (The TPZ designation gives a property owner tax breaks in exchange for not developing the site in a way that conflicts with timber production.)

The Coastal Commission argued that removing its discretion over TPZ applications prevented the Commission from carrying out the Coastal Act’s mandate. The Sixth District disagreed, finding that both laws protect the productivity of timberlands.

"Significantly, the TPA contains no exception from its provision for lands within the coastal zone. The Coastal Act, on the other hand, expressly addresses timberlands in several provisions. For one thing, it specifically includes the protection of timberlands as one of its Chapter 3 policies. For another thing, the Act’s definition of development excludes timber operations conducted under a State Forestry Board timber harvest plan," Wunderlich wrote.

The court also rejected the contention that the Coastal Act required the processing of rezoning applications as LCP amendments. The Coastal Act speaks to changes of land use, and "the act of zoning timberland for timberland production does not change its use," the court ruled.

The county has asked the state Supreme Court to accept the case, which appears somewhat likely because the decision directly conflicts with the published opinion of a different appellate court district.

The Case:
Big Creek Lumber Company v. County of Santa Cruz, No. H023778, 04 C.D.O.S. 1365, 2004 DJDAR 2006. Filed February 17, 2004.
The Lawyers:
For Big Creek: Craig Stewart, Jones Day, (415) 626-3939.
For Central Coast Forest Association: Robert Bosso, Bosso, Williams, Sachs, Atack & Gallagher, (831) 426-8484,
For the county: Dana McRae, county counsel, (831) 454-2040.
For the Coastal Commission: Tara Mueller, deputy attorney general, (510) 622-2136.