First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management Plan And Related Attempt To Challenge Department of Fish And Wildlife’s Discretionary Decision Not To Oppose Plan

by Miller Starr Regalia
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In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a Nonindustrial Timber Management Plan (NTMP) for 615 acres adjacent to Gualala. Center for Biological Diversity v. California Department of Forestry and Fire Protection (North Gualala Water Company, John and Margaret Bower, Bower Limited Partnership, Real Parties In Interest) (1st Dist., Div. 5, 2014) ___ Cal.App.4th ___, Case No. A138914. The NTMP – which functions as the equivalent of an EIR for purposes of CEQA under the certified regulatory program of the Forest Practice Act (Pub. Resources Code, § 4511 et seq.; “FPA”) and Forest Practice Rules (14 Cal. Code Regs., § 895 et seq.; “FPR”) – was approved by the California Department of Forestry and Fire Protection (Cal Fire) on application of the above-named real parties in interest (Bower).

An NTMP is a long-term plan for sustained yield timber production, prepared by a registered professional forester, that may be used by owners of fewer than 2,500 acres of timberland who are not primarily engaged in the manufacture of forest products. Cal Fire is the “lead agency” for the approval of NTMPs and related environmental reviews, and the FPR require it to establish interdisciplinary teams, including a representative of the California Department of Fish and Wildlife (DFW) “when possible,” to review such plans and their environmental impacts; DFW and other review team members serve in “advisory” roles assisting Cal Fire’s Director in this review and evaluation process.

The NTMP challenged by Petitioners and Appellants Center for Biological Diversity, Friends of the Gualala River, and Coast Action Network (Petitioners) covered 10 harvest units spread over four planning watersheds, and contained a range of trees from young, to second and third growth redwood and Douglas Fir, with scattered “late seral” (i.e., old or mature) “residual” components. The specific stand of forest at issue (the “LSFS”) was located on a 17-acre section of Unit 9 in the Doty Creek Watershed, and was determined by DFW to meet the FPR’s “structural definition of Late Succession Forest Stands.” The LSFS in its current condition is potential – though not actual – nesting habitat for the federally-threatened, state-endangered marble murrelet, a small North Pacific seabird found off California coastal waters from Del Norte to Santa Cruz Counties, which nests in coastal coniferous forests and requires dense old growth or mature redwood and Douglas-Fir forests with large diameter branches to facilitate its nesting platforms.

Unsurprisingly, the parties differed greatly in their views of the NTMP’s potential environmental impacts on the functionality of the LSFS as potential murrelet habitat, and the adequacy of the NTMP’s assessment of such impacts. Following a 2008 preharvest inspection by Cal Fire, DFW, and other agency personnel; Bower’s forester’s subsequent inventory and photographing of all large trees in the area; and a second 2009 preharvest inspection focusing on the “large tree area” by Cal Fire, DFW, Bower and Bower’s forester, various reports and responses were submitted by DFW and Bower’s forester. Bower’s forester identified and mapped a total of 67 large trees meeting the DFW definition of “late seral” habitat, but characterized only seven of these as actually being late seral and asserted the LSFS had only “marginal potential for marbled murrelet occupation” given its small size and close proximity to a local airport and residential area. (It should be noted that while “late seral forest” is not defined in the FPA or FRP, the rules define “late succession forest stands” as having essentially similar ecological characteristics and provide that they must occupy “at least 20 acres” to meet the definition.)

Based on the studies, reports and recommendations, Cal Fire ultimately approved a revised NTMP that required:  retention of 30 of the 67 large trees to benefit wildlife; replacement of fallen or dead “wildlife trees” at a 2:1 ratio with other trees having wildlife value; limitations on harvesting within the LSFS and a 100-foot buffer zone around it; retention of two additional 24-inch diameter-at-breast-height trees per acre; and a three-year harvest moratorium in the LSFS area to allow DFW to attempt to acquire a conservation easement on the LSFS. In its response to public comments, Cal Fire found that “species largely dependent on late seral habitat features [would] not be adversely impacted” by the NTMP, and the DFW did not submit a nonconcurrence with Cal Fire’s decision as allowed for review team members by the FPR.

Unsatisfied with the mitigation required by Cal Fire for the NTMP, in 2010, Petitioners filed their mandate petition challenging (1) the NTMP under CEQA, and (2) (based on novel allegations of statutory and public trust violations) DPW’s failure to object to it. Following a lengthy voluntary stay of the litigation during which the parties unsuccessfully attempted settlement, the trial court heard and denied the petition in May 2013; Petitioners then appealed and the Court of Appeal granted supersedeas to preserve the status quo pending its determination on the merits.

In affirming the trial court’s judgment denying all writ relief, the Court of Appeal rejected Petitioners’ attempt “to frame the issues as failure [of the NTMP] to provide adequate information and analysis” and stated “the real question presented is whether CAL FIRE’s conclusions are supported by substantial evidence.” In holding that they were, the Court meticulously applied the deferential substantial evidence standard of review to the issues raised on appeal. Key “take aways” in this regard include:

  • Review of legislative or quasi-legislative actions (such as Cal Fire’s) under CEQA is for prejudicial abuse of discretion, which is established if the agency has not proceeded in a manner required by law or its decision is not supported by substantial evidence. Judicial review of these two different types of error differs significantly, with courts “scrupulously enforc[ing] all legislatively mandated CEQA [procedural] requirements,” while “according greater deference to the agency’s substantive factual conclusions.”  (Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427; Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 944.)
  • Substantial evidence is enough relevant information and reasonable inferences therefrom to make a fair argument in support of a conclusion, even though other conclusions might also be reached; a reviewing court does not exercise its independent judgment on the evidence but only determines whether the agency’s decision is supported by any substantial evidence – contradicted or uncontradicted – in light of the whole record.
  • Per the Court: “Our review for substantial evidence applies a deferential standard that is satisfied if ‘the record contains any relevant information that a reasonable mind might accept as sufficient to support the conclusion reached.’” (Citing Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, 968.) Thus, “administrative determinations are presumed correct and [courts] indulge all reasonable inferences from the evidence supporting those determinations”; where multiple inferences are possible, courts are “’without power to substitute [their] deductions’ for those of the agency” and “may not set aside an agency’s [decision] on the ground that an opposite conclusion would have been equally or more reasonable.”
  • The Court rejected Petitioners’ arguments that the NTMP failed to adequately address cumulative impacts and failed to analyze how the LSFS will be retained as functional habitat, i.e., their argument that cumulative effects would “eliminate the last remnant late seral forest in the entire 4,628 acre Doty Creek watershed” meaning “that late seral wildlife, such as the murrrelet, could not survive or reproduce in the watershed.” While Petitioners contended various alleged errors in the NTMP’s assessment of cumulative impacts were “informational in nature” resulting in the failure to provide adequate information for meaningful evaluation of potentially significant impacts of logging the LSFS, the Court disagreed, noting that “[a]ll elements required under [the FPR’s required methodology, i.e.,] Technical Rule Addendum No. 2, including biological resources and habitat, [were] analyzed and considered in… the NTMP.” The NTMP disclosed relevant information regarding the murrelet’s range, status, habitat requirements, and how these related to the plan area.
  • The Court rejected Petitioners’ argument, which heavily relied on a 1997 USFWS murrelet recovery plan, “that the NTMP is deficient in failing to disclose or acknowledge the importance to long-term murrelet survival of maintaining all remnant late seral habitat, particularly in light of existing murrelet habitat shortage.” It noted the NTMP’s conclusions, “based on actual site inspections,” that no continuity of relevant late seral habitat exists in the plan or assessment areas due to the “scattered and infrequent distribution of individual late seral trees” “as a result of 130 years of timber production.” The NTMP would thus not cause any fragmentation or loss of connectivity of suitable habitat – none existed. Petitioners’ arguments regarding the NTMP’s allegedly inadequate disclosure of impacts on potential murrelet nest sites and their functionality similarly ignored the NTMP’s conclusions and detailed mitigation measures and the record evidence addressing these issues, as did their arguments regarding the adequacy of mitigation to actually preserve elements of a functional late seral habitat in the LSFS. Per the Court: “Petitioners’ claim that ‘there is no basis for assuming the post-logged 18 acre [sic] stand will be any different’ from the other units in the NTMP which are considered nonfunctional for late seral wildlife thus lacks support.”
  • The Court rejected Petitioners’ challenge to Cal Fire’s failure to analyze a “no logging in the LSFS” alternative absent a showing of economic infeasibility. The NTMP analyzed and rejected no-project, reduced size, public purchase of LSFS, and LSFS conservation easement alternatives, and Cal Fire responded to comments that criticized its alternatives analysis. Cal Fire reasonably concluded that the NTMP’s mitigation measures would avoid significant impacts and address review team concerns, and nothing showed a no harvest alternative would reduce impacts.
  • In concluding that substantial evidence supported the NTMP’s legal adequacy, the Court stated: “While Petitioners seek to frame the issues as failure to provide adequate information and analysis, the real question presented is whether CAL FIRE’s conclusions are supported by substantial evidence. We find that they are. [¶] Petitioners’ challenges to the NTMP’s adequacy ultimately arise from fundamental disagreement with the conclusions reached by CAL FIRE in its approval of the plan. Petitioners envision intensive logging within and around the LSFS resulting from the NTMP, with a consequent total and catastrophic loss of viable murrelet habitat. CAL FIRE concludes that, with appropriate mitigation measures, the selective and limited timber harvesting permitted in and around the LSFS will have no significant impact on existing marginal but viable habitat, which will be preserved without significant adverse impact on wildlife, including the murrelet.” It noted “mere disagreement is insufficient” and Petitioners’ burden was to affirmatively show no substantial record evidence supported Cal Fire’s findings.
  • In a pithy summation of the result of applying the legally-required standard of review, the Court stated: “CAL FIRE’s views were based on silvicultural analysis by Bower’s forester and its own experts, its participation in at least two site inspections of the LSFS, consideration of DFW’s recommendations and its murrelet consultation, and public participation and comment. A public agency may choose between differing expert opinions, and may also properly rely upon the opinion of its staff in reaching decisions. [Citation.]  We have neither the authority nor the expertise to resolve the conflicting views of Petitioners and CAL FIRE and to determine whose view of the future of the LSFS (and the murrelet) is more prescient. [Citations.] We are limited to a determination of whether substantial evidence supports CAL FIRE’s determination. It does.”
  • Recirculation of the NTMP was not required by an internal one-page Cal Fire wildlife biologist memo recommending four additional mitigation measures which were accepted by Bower eight days before the close of the public comment period. While a final EIR almost always contains new information, new information is not “significant” so as to require recirculation unless the document is changed such that the public is deprived of a meaningful opportunity to comment on a substantial adverse project impact or feasible mitigation measure or alternative to avoid such an impact. Mere clarification, amplification or insignificant modifications do not require recirculation, which is an exception, rather than the general rule. “‘An agency’s decision not to recirculate a draft [EIR] is entitled to substantial deference; the petitioner bears the burden of proof to show no substantial evidence supports the agency’s decision.’” (Quoting North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 655.) Here, the memo did not disclose any new or more severe impacts, and merely proposed strengthening of mitigation measures already proposed by DFW, and the public was not deprived of a meaningful opportunity to comment; in fact, members of petitioner Friends of the Gualala River participated in the second review in which the additional measures were discussed, and Bower accepted the measures before the close of the public comment period. Thus, substantial evidence supported Cal Fire’s decision not to recirculate.
  • Cal Fire did not violate CESA’s mandate to conserve endangered species; substantial evidence supported its finding “that implementation of the plan, as mitigated, would not result in take, jeopardy or adverse modification of habitat in violation of CESA.”
  • Petitioners’ separate ordinary mandamus claim against DFW for allegedly failing to fulfill its public trust and statutory obligations by failing to submit a nonconcurrence in the NTMP was also meritless: “The trial court found that the Petition did not state a cause of action against DFW. We agree and find no authority for Petitioners’ position that they may compel, through traditional mandamus, an administrative agency with only advisory authority to provide that advice in a particular manner.” In rejecting Petitioners’ novel claim, the Court noted that “DFW’s statutory responsibility on CEQA projects, as trustee for fish and wildlife resources, is to ‘consult with lead and responsible agencies and… provide, as available, the requisite biological expertise to review and comment upon environmental documents and impacts arising from project activities….’” (Quoting Fish & Game Code, § 1802.) Per the Court: “The evidence is that DFW fulfilled its responsibilities, and Petitioners make no challenge to the substantive comments or recommendations made by DFW. What Petitioners seek to challenge is DFW’s decision not to actively oppose action for which another agency is ultimately responsible. That decision appears to be quintessentially an exercise of agency judgment and discretion, and anything but “ministerial,” “clear” or “mandatory.” [Citation.] Petitioners have failed to show otherwise. Thus, mandamus is not an available remedy in this context.”

The Court of Appeal’s decision was belatedly ordered published after requests made by the California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry Association of the Bay Area, and California Business Properties Association (joined by respondents and real parties), and by the Attorney General on behalf of Cal Fire and DFW. While undoubtedly correct, thoroughly-reasoned and instructional, the decision is not particularly groundbreaking in its application of the deferential substantial evidence standard of review to CEQA challenges to an EIR-equivalent document. The decision’s rejection of Petitioner’s attempt to challenge a lead agency’s action by means of an ordinary mandamus claim against the discretionary recommendation decision of an advisory agency does, however, break new ground in addressing a novel claim.

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