PUBLIC RESOURCES PROTECTION ASSOCIATION OF CALIFORNIA v. LOUISIANA PACIFIC CORPORATION

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

PUBLIC RESOURCES PROTECTION ASSOCIATION OF CALIFORNIA et al., Plaintiffs and Appellants, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendants and Respondents. LOUISIANA–PACIFIC CORPORATION, Real Party in Interest.

No. A047871.

Decided: March 05, 1992

Susan Brandt“Hawle–, Glen Ellen, for plaintiffs and appellants. Daniel E. Lungren, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Sara J. Russell, M. Anne Jennings, Deputy Attys. Gen., Oakland, for defendants and respondents. Jared G. Carter, Cindee F. Mayfield, Rawles, Hinkle, Carter, Behnke & Oglesby, Ukiah, for real party in interest.

Public Resources Protection Association of California (PuRePAC) and four other environmental organizations (hereafter collectively “PuRePAC”) appeal from an order denying a petition for writ of mandate challenging the approval of a timber harvest plan (THP) by respondent California Department of Forestry and Fire Protection (CDF).   In the unpublished portion of this opinion, we reject PuRePAC's challenges to the validity of the THP.   In the published portion of this opinion we conclude that the THP is subject to the emergency rules enacted by the State Board of Forestry for the protection of the northern spotted owl.1  Accordingly, the order denying the petition must be reversed and the matter remanded for further proceedings.

I

Real party in interest Louisiana–Pacific Corporation (L–P) submitted a proposed THP, No. 1–88–665 MEN, for the logging of 437 acres of second-growth redwood and Douglas fir near the North Fork of the Navarro River in Mendocino County.   The THP was submitted to CDF on September 12, 1988.   The THP indicates that no “known rare or endangered species or species of special concern, including key habitat, [are] associated with the THP area.”   On September 29, 1988, CDF screened the THP against the “Natural Diversity Data Base” to determine whether any endangered, threatened, or rare species of plants and animals were located on the site of the THP.   According to the administrative record, the data base “is a statewide manual and computerized inventory of locational information on California's rare and endangered species and natural biotic communities.”

CDF's report on the data base check reveals the notation, “spotted owl reported from this section, North Fork Navarro.”   The report recommends “consult[ation] with [the Department of] Fish & Game.”   No other species of concern were reported in the data base.

Pursuant to California Code of Regulations, title 14, section 1037.5, the THP was evaluated at an initial interagency review team meeting, attended by representatives of CDF, the Department of Fish and Game, and the Water Quality Control Board.   On October 5, 1988, the review team determined that a preharvest inspection would be necessary.   The review team requested the inspection team to “[c]heck habitat type in northern most [sic] part of plan with two peaks.   Was this subject to an earlier shelterwood, preparatory step and/or other cutting?   If not and there is a two-layered under-overstory plus snags, check for spotted owls.”

The preharvest inspection was conducted October 13, 1988, by a representative of CDF and by a state geologist examining erosion concerns.   The registered professional forester who wrote the proposed plan for L–P was also present.   No representative from the Department of Fish and Game, or any plant/wildlife expert, was part of the inspection team.

The CDF component of the inspection team, forester Mike McKay, prepared a preharvest inspection report which states:  “Habitat in this area was checked.   The area was heavily cut in the past and resembles the timber type of the rest of the THP area.   Spotted owls did not respond to owl calling.”  Attached to the report is a “Forest Practice Cumulative Impacts Checklist,” which categorically states that “[t]here are no” rare, endangered, or threatened species in the plan area.

On October 19, 1988, the review team convened a second meeting to reevaluate the THP in light of the preharvest inspection.   Members of the concerned public were permitted to attend.   After “considerable” discussion, the review team recommended that the plan be approved.   Notes of the second review team meeting, which are included in the record but are of questionable value as an accurate transcription, represent that McKay stated spotted owls “could be ․ in that area, that's for darn sure.”   The notes also include a cryptic but inconclusive reference to CDF personnel having sighted four spotted owls in the THP area.

After receipt from the public of several letters of comment on the proposed THP, CDF approved the THP October 28, 1988.   The CDF director's “Official Response” to the significant environmental objections raised by public comment was filed November 14, 1988.2  The response is 15 pages long and is quite factual and detailed.   The director concluded that the proposed harvest “will not cause immediate, significant, and long-term harm to the natural resources of the state.”

With regard to the spotted owl, the director admitted that the data base “did report that spotted owls have been reported in the general area along the North Fork of the Navarro River, both north and south of the THP.”   However, no spotted owls have been reported to the data base in the THP area itself.   The director admitted this was not proof of the absence of the spotted owl:  “The Data Base records the known populations of plant and animal species of concern in California.   At best, it can only tell us where there is evidence that individuals have been found and of locations where none have been reported.   A nonregistration does not mean that a species is absent.   This should be evident from the many reports of spotted owl[s] where they have not been recorded previously.”   The director emphasized that no owls responded to owl calling in the THP area, however, and stated that the THP “stand of timber does not have the characteristics of old-growth habitat favored by the spotted owl․”

PuRePAC challenged approval of the THP by filing a petition for writ of mandate.   After a hearing, the trial court rejected PuRePAC's challenges to the THP and denied the writ.   This appeal ensued.

II ***

III

Although it appears that no spotted owls have been sighted on the area of the THP, there are documented sightings in the surrounding area.   We have raised the question whether the emergency rules for protection of the spotted owl (Cal.Code Regs., tit. 14, §§ 919.9, 919.10) apply to the THP at issue.   The parties have duly responded with letter briefs.   We conclude the rules do apply and require further proceedings in the trial court.

After trial below and while this matter was pending on appeal, subject to an appellate stay of logging operations, the northern spotted owl was listed as a threatened species under the federal Endangered Species Act (16 U.S.C. §§ 1531–1543).   The California Board of Forestry enacted the emergency rules effective July 1990 to protect the owl and its habitat areas on private timberland.   The rules provide detailed alternative measures, one of which must be followed with respect to every THP located within the range of the northern spotted owl, so that the THP provides sufficient information for a state biologist to determine whether the proposed logging operations will cause harm or harassment to the owl or its habitat.   One alternative provides for “owl surveys ․ sufficient to demonstrate the absence of owls from an area․”  (Cal.Code Regs., tit. 14, § 919.9, subd. (c).)  Another alternative requires the THP to provide detailed information regarding any owl habitat within .7 miles of the THP area and any actual sightings within 1.3 miles of the THP site.  (Cal.Code Regs., tit. 14, § 919.9, subd. (b)(1)(B), (D).)

The question whether these rules should apply to a THP like the one at issue, approved by CDF and upheld by the superior court prior to the rules' enactment, is answered by Public Resources Code section 4583, which provides that “[a] timber harvesting plan shall conform to all standards and rules which are in effect at the time the plan becomes effective.   Except for stocking standards in effect at the time of commencement of timber operations under a timber harvesting plan, which shall remain in effect for any timberland harvested under such plan, all timber operations shall conform to any changes or modifications of standards and rules made thereafter unless prior to the adoption of such changes or modifications, substantial liabilities for timber operations have been incurred in good faith and in reliance upon the standards in effect at the time the plan became effective and the adherence to such new rules or modifications would cause unreasonable additional expense to the owner or operator.”

By its plain terms, the statute requires not only that a THP conform to the rules and regulations in effect at the time the plan is approved or otherwise becomes legally effective, but that ongoing timber operations conducted pursuant to that THP conform to changes and modifications to the rules and regulations thereafter made.   The only exception to the requirement of conformity to subsequent rule changes is the case of the THP proponent who has incurred “substantial liabilities” for timber operations in good faith reliance on the former rules and regulations prior to the time the new rules went into effect.   It seems clear enough that the Legislature intended by this statute to subject effective THPs to an ongoing responsibility to comply to changes in applicable rules and regulations governing the harvesting of timber.   Those rules and regulations are the implementation of the legislative goal of assuring the commercial harvesting of timber while protecting soil, air, fish, wildlife and water resources.  (Pub.Resources Code, § 4551;  58 Ops.Cal.Atty.Gen. 250 (1975).)   The Legislature obviously intended that changes in the requirements for implementation of that goal are not to be ignored by ongoing timber operations.

L–P argues, however, that Public Resources Code section 4583 distinguishes between a “timber harvest plan” and “timber operations”:  a plan must conform to rules in effect at the time it is approved, while only “timber operations” are subject to subsequent rule changes.   Because the emergency owl rules involve the contents of a THP, L–P argues that they cannot apply to plans already effective when the rules were adopted.

L–P's argument makes an artificial distinction between a plan and operations conducted under the auspices of that plan.   It is the THP which governs and carefully delimits the parameters of the proposed timber operations.   A change in the required contents of the THP, such as detailed information to ensure that timber operations do not impact the spotted owl, necessarily effects timber operations.   The only reason the Legislature said that “timber operations,” rather than a “timber harvest plan,” would be subject to subsequent rule changes is obvious:  the plan itself is already completed and the only operative activity is the actual act of logging, i.e., timber operations.

L–P contends that both the Board of Forestry and CDF have interpreted the emergency rules to apply only to new THPs.   L–P relies on the board's findings in support of the rules, and an incomplete, unsigned memorandum purporting to be from CDF's Sacramento office to regional CDF officials.   The findings generally speak in terms of the rules requiring additional information in new THPs, but do not directly address the issue of applicability to THPs already in effect.   The memorandum states that “[e]xisting plans are valid and will not have to go through another review.”   However, CDF may not issue a legal interpretation at odds with a governing statute.   Moreover, neither document is properly before us as L–P has neglected to ask us to take judicial notice thereof.

L–P also contends that the rules apply retroactively to an existing THP and, like statutes, should be interpreted prospectively only.  (See McKeon v. Hastings College (1986) 185 Cal.App.3d 877, 887, 230 Cal.Rptr. 176.)   We do not readily accept the characterization of the rules as “retroactive,” as a THP which has been approved but still undergoing court challenge may be viewed as an ongoing proceeding subject to alterations of applicable legal rules.  (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1206, 246 Cal.Rptr. 629, 753 P.2d 585.)   Assuming for present purposes that the emergency rules have retroactive application in this case, L–P's argument is nevertheless without merit.

The Legislature has provided for retroactive application of rule changes to existing approved THPs in Public Resources Code section 4583;  the Legislature has the power to make its own statutes explicitly retroactive (Evangelatos v. Superior Court, supra, 44 Cal.3d at pp. 1206–1209, 246 Cal.Rptr. 629, 753 P.2d 585), and can certainly do the same for administrative rules.   The only bar to retroactivity would be interference with a vested right.  (See In re Marriage of Buol (1985) 39 Cal.3d 751, 756, 218 Cal.Rptr. 31, 705 P.2d 354.)   In this case, the Legislature has provided for that expediency in the language of Public Resources Code section 4583:  if the timber operator has incurred substantial liabilities in good faith prior to the rules' enactment, the rules will not apply retroactively.   Even if the application of the owl rules to this THP would not be considered to apply “retroactively” in the strict legal sense, the Legislature has allowed for exemption from subsequent rule changes under the circumstances of substantial liability.

Accordingly, the present THP must be set aside and the matter remanded for either (1) the preparation of a new THP in conformity with the emergency owl rules or, in the alternative, (2) a determination of whether L–P incurred “substantial liabilities” in good faith between the date the THP was approved and the date the emergency owl rules went into effect.   Since no timber operations were commenced during that time because of an appellate stay, we believe such a finding is not likely but express no binding opinion thereon.

IV

The order denying the petition for writ of mandate is reversed and the matter is remanded with directions to set aside the approval of the THP, to enable preparation of a new THP which fulfills the requirements of proper investigation into the potential harm to the spotted owl of the proposed logging or, in the alternative, a determination that L–P need not comply with the rules because of “substantial liabilities” incurred in good faith between the date the THP was approved and the date the emergency owl rules went into effect.

FOOTNOTES

FOOTNOTE.  

1.   We were informed at oral argument that the emergency rules are now permanent.   For the sake of style we continue to refer to them as “emergency rules.”

2.   The director's official response is an integral component of the THP approval process.  (Cal.Code Regs., tit. 14, § 1037.8;  Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 952–954, 142 Cal.Rptr. 86.)   PuRePAC consistently ignores the director's thorough and illuminating responses on the ground that the response is not part of the administrative record because it postdated the plan approval.   At the pertinent time, the response had only to be filed within 10 days of plan approval and was.   Well after the events in this case, the law was changed to require the response to be filed at the same time as approval of a THP.   PuRePAC makes no argument that this statutory change should apply, and requests, in a footnote, that this court disregard the response.   We decline to do so.

FOOTNOTE.   See footnote *, ante.

LOW, Presiding Justice, Assigned.** FN** Retired Presiding Justice of the Court of Appeal, First District, assigned by the Chairperson of the Judicial Council.

KING, J., Acting P.J., and HANING, J., concur.

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