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

SIERRA CLUB, et al., Plaintiffs and Appellants, v. The DEPARTMENT OF FORESTRY, Defendant and Respondent; PACIFIC LUMBER COMPANY, Real Party in Interest.  (Two Cases)

Nos. A046632, A046150.

Decided: November 21, 1990

Joseph J. Brecher, Oakland, for plaintiffs and appellants. Robert J. McKechnie, Gen. Counsel, Sacramento, for defendant and respondent. Jared G. Carter, Frank Shaw Bacik, Rawles, Hinkle, Carter, Behnke & Oglesby, Ukiah, for real party in interest.

Public Resources Code section 21167.4, a component of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.),1 provides that “[i]n a writ of mandate proceeding alleging noncompliance with this division [i.e., CEQA], the petitioner shall request a hearing within 90 days of filing the petition or otherwise be subject to dismissal on the court's own motion or on the motion of any party interested therein.”   In these consolidated cases we conclude that section 21167.4 applies only to proceedings involving environmental impact reports and does not apply to proceedings involving timber harvest plans.

In each case appellants Sierra Club and Environmental Protection Information Center, Inc., (Sierra Club) seek review of an order dismissing a petition for writ of mandate challenging the approval by respondent California Department of Forestry of a timber harvest plan (THP) submitted by real party Pacific Lumber.   In each case respondent approved a THP for logging of over 200 acres of virgin old-growth redwood and Douglas fir.   In each case Sierra Club promptly challenged the THP approval by filing a petition for writ of mandate, but failed to request a hearing on the petition within 90 days of filing.   In each case respondent and real party moved for dismissal under section 21167.4;  the trial courts granted the motions on the belief that section 21167.4 applies to timber harvest cases, and relying on authority which indicates that dismissal is mandatory.   Both petitions were dismissed without a hearing on the merits.   These appeals followed.

 In Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 216 Cal.Rptr. 502 [hereafter EPIC], we discussed the interrelationship between timber harvesting, which is governed by the Forest Practice Act and related regulations (§ 4511 et seq.;  Cal.Code Regs., tit. 14, § 895 et seq.), and the statutory scheme of CEQA.   We concluded that while section 21080.5 exempted timber harvesting from the requirement of preparation of an environmental impact report (EIR) because a THP was a functional equivalent, “CEQA and its substantive criteria for the evaluation of a proposed project's environmental impact apply to the timber harvesting industry, and are deemed part of” the Forest Practice Act and its implementing regulations.   (EPIC, supra, at p. 620, 216 Cal.Rptr. 502.)

In declaring certain programs such as THP preparation the functional equivalent of an EIR, section 21080.5 specifically exempts such programs from two chapters of CEQA and from section 21167.  “Chapter 3 of CEQA requires the preparation of an EIR for projects of potentially significant environmental effect which are to be carried out or approved by state agencies, boards or commissions;  chapter 4 deals similarly with projects to be carried out or approved by local agencies.   Section 21167 governs the time limitations on judicial proceedings to review or set aside agency decisions specifically involving the various steps of the EIR process․  [¶] Chapters 3 and 4 are in large part procedural elements of the EIR process.   A [functional EIR equivalent] program under section 21080.5 is logically exempted from their coverage as such programs provide an alternative to an EIR.   Section 21167 is specifically geared to the machinery of the EIR process, and the application of any of its provisions to the THP approval process would be superfluous:  Section 21080.5 contains its own time limitation for judicial action challenging a decision made under a functionally equivalent ․ program.”   (EPIC, supra, 170 Cal.App.3d at pp. 617–618, 216 Cal.Rptr. 502.)

By reference to the maxim expressio unius est exclusio alterius, and by the broad language of our holding that all of CEQA applies to timber harvesting “except for the specific exemptions discussed,” (170 Cal.App.3d at pp. 617, 620, 216 Cal.Rptr. 502) we gave the impression that no other CEQA statute was inapplicable to the THP process save those of chapters 3 and 4 and section 21167.   Our EPIC opinion did not discuss the eight “offspring” statutes of section 21167:  sections 21167.1, 21167.2, 21167.3, 21167.4, 21167.5, 21167.6, 21167.7, and 21167.8.

These procedural provisions augment section 21167 and deal with various procedural aspects of challenges to EIRs.  Section 21167 provides for limitations periods for various types of actions, generally involving the EIR process, “on ․ grounds of noncompliance with this division.”  (“[T]his division” refers to CEQA, which is Division 13 of the Public Resources Code.)   The “offspring statutes,” enacted the same year or later than section 21167, involve the following subjects:  section 21167.1, preferential trial setting for “all actions brought pursuant to Section 21167”;  section 21167.2, a presumption of CEQA compliance of an EIR if an action is not timely brought under section 21167;  section 21167.3, a presumption of compliance of an EIR even if a legal challenge is brought and a stay of the project obtained;  21167.4, dismissal of an action “alleging noncompliance with this division” for failure to request a hearing within 90 days;  21167.5, rules for proof of service of ‘any action or proceeding described in Section 21167”;  section 21167.6, provisions for preparation of the record on appeal and for briefing schedules “in all actions brought pursuant to Section 21167”;  section 21167.7, the requirement that any relief in “an action pursuant to Section 21167” be conditioned on service of pleadings on the Attorney General pursuant to the private attorney general statute, Code of Civil Procedure section 389.6;  and section 21167.8, rules of settlement procedures in section 21167 actions.

Respondent and real party relied on EPIC in the trial court and here for the proposition that section 21167.4 must apply to THP procedures because of the EPIC language.   We conclude that such a conclusion is inimical to a reasonable interpretation of the statutory scheme and would be inconsistent with legislative intent.

 In construing statutes it is the duty of a court to determine the intent of the Legislature to achieve the purpose of the statutory scheme.  (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672.)   Consistent with the intent of the Legislature, a statute should be accorded a reasonable and commonsense interpretation avoiding absurd or impractical results.  (See, e.g., Webster v. Superior Court (1988) 46 Cal.3d 338, 344, 250 Cal.Rptr. 268, 758 P.2d 596;  Dyna–Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1392, 241 Cal.Rptr. 67, 743 P.2d 1323.)   Where a statute is subject to two possible interpretations, the court should favor the construction reaching the more reasonable result.  (Webster v. Superior Court, supra, 46 Cal.3d at p. 343, 250 Cal.Rptr. 268, 758 P.2d 596.)   Moreover, the maxim we relied upon in EPIC, expressio unius est exclusio alterius, “is inapplicable where its operation would contradict a discernible and contrary legislative intent.”  (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195, 132 Cal.Rptr. 377, 553 P.2d 537;  EPIC, supra, 170 Cal.App.3d at p. 617, 216 Cal.Rptr. 502.)

A review of the “offspring” statutes leads to the conclusion that they were intended to augment and be subsumed under section 21167 and were not intended to apply to THP procedures.   Section 21080.5 cannot reasonably be interpreted to exclude section 21167 from THP procedures but requires the application of the “offspring” statutes.  EPIC 's conclusion must be tempered by analysis of legislative intent.   Real party and respondent conceded below the fundamental premise of this position;  they agreed that notwithstanding the language of EPIC and section 21080.5, those “offspring” statutes which are based explicitly on section 21167—i.e., all but section 21167.4—cannot reasonably be held to apply to THPs when the parent section 21167 does not.   In opposing real party's motion to dismiss in A046150, appellants pointed out that respondent had failed to comply with the requirements of section 21167.8.   In its reply brief, real party argued that EPIC made it “perfectly clear” that section 21167.8 “is not applicable to timber harvest plan review.”   Real party continued:  “It is important to note that the ‘functionally equivalent’ THP regulatory program is exempted from § 21167.  Section 21167.8, cited by [appellants] as evidence that CDF did not consider this to be a CEQA case because it did not comply with § 21167.8, clearly and by its own terms applies only to petitions or complaints brought pursuant to § 21167.   Since THPs are expressly exempted from § 21167, § 21167.8 cannot apply in these cases․  [Sections] 21167.1, 21167.2, 21167.3, 21167.5, 21167.6, 21167.7, and 21167.8 all refer to and take their authority from[,] or ․ indicate that they are applicable only in connection with, actions brought pursuant to § 21167.”   The Attorney General agreed at argument below in both cases:  in A046150 he stated that the sections just cited “[deal] with the mechanics of bringing a CEQUA [sic ] lawsuit” and do not apply to THP proceedings.

Thus real party and respondent accept the maxim that the mere literal construction of a statute cannot prevail if contrary to the intent of the Legislature.  (Webster v. Superior Court, supra, 46 Cal.3d at p. 344, 250 Cal.Rptr. 268, 758 P.2d 596.)   Although literally not excluded from application to the THP process by section 21080.5, clearly sections 21167.1–21167.3 and 21167.5–21167.8 do not apply to THPs.   Indeed, any CEQA statute which is derived and takes its authority from section 21167 (see, e.g., § 21177) could not logically be said to apply to legal challenges to timber harvesting.   The more troublesome question is whether section 21167.4, the only “offspring” statute which fails to make direct reference to section 21167, nevertheless derives its authority therefrom and evidences a legislative intent that it not apply to timber harvest cases.

Respondent and real party argue that section 21167.4's failure to mention section 21167 is telling;  in A046632, the trial court adopted this assertion, and described the statute as “unique.”   The mere failure to explicitly refer to section 21167, however, does not alter the character of the statute and its interrelationship with section 21167.   It does not alter the fact that the Legislature enacted a key procedural provision for statutes of limitation on EIR challenges, and then at various times enacted eight “offspring” statutes listed immediately thereafter and with related numerical designations, all dealing with procedural matters concerning the conduct and timing of proceedings.   Under these circumstances, the absence of a direct reference to section 21167 does not indicate a legislative intent that section 21167.4 stand alone and apart from the series of procedural provisions.   Like the other “offspring” statutes, section 21167.4 focuses on the procedural aspects of EIR challenges and must be interpreted as falling within the conceded premise that the exclusionary language of EPIC and section 21080.5 does not apply literally to the exclusion of statutes obviously grounded on section 21167.

This conclusion is supported not only by the Legislature's insertion of section 21167.4 in sequence immediately following the enactments of sections 21167, 21167.1, 21167.2, and 21167.3 (see generally, 1A Sutherland, Statutory Construction (4th ed. 1985 rev.) § 21.03, p. 118), but by the only extant legislative history of section 21167.4.   As pointed out by Division Two of this court in San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 189 Cal.App.3d 498, 503, 234 Cal.Rptr. 527, the only legislative history indicates that the requirement for requesting a hearing within 90 days was designed to avoid delays in litigation and preserve the character of a mandate action as an expeditious proceeding.   In construing the statute to provide for mandatory dismissal, the court noted that mandatory dismissal “is consistent with ․ the statutory scheme.   CEQA actions have short statute of limitations periods and are entitled to preference at trial and on appeal.  ( ․ §§ 21167, 21167.1.)   Obviously, the rationale of the statutory scheme is to avoid delay and achieve prompt resolution of CEQA claims.”  (Id., at p. 504, 234 Cal.Rptr. 527.) 2

The underlying legislative policy of the 90–day rule, the expeditious judicial resolution of CEQA challenges, arises from the typical CEQA proceeding:  a mandamus action challenging the legal validity of an EIR.   While in EPIC this court applied the substantive provisions of CEQA to the environmental review of THPs, the procedural distinctions between EIRs and THPs, both in preparation and in the nature of the judicial challenge thereto, must be underscored.

The EIR is a document of major significance lying at the heart of CEQA.   It is an “ ‘environmental “alarm bell” whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.’ ”  (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392, 253 Cal.Rptr. 426, 764 P.2d 278, quoting County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810, 108 Cal.Rptr. 377.)   To meet this end the EIR preparation process is extensive and thorough;  the EIR is produced in draft form and then subjected to rigorous review and comment.   First, the public is notified that a draft EIR is being prepared (§§ 21092, 21092.1);  the draft EIR is then released to the public for review and is evaluated in light of comments received (Cal.Code Regs., tit. 14, §§ 15087, 15088).   The period of public comment ranges from 30 to 90 days, and may include a public hearing.  (Cal.Code Regs., tit. 14, § 15087.)

The agency proposing the project then prepares a final EIR incorporating comment and evaluation of the draft.  (Cal.Code Regs., tit. 14, §§ 15089, 15090, 15132.)   Before approving the project the agency must certify it has considered the final EIR, and must make findings that the project's significant environmental effects have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits.  (§§ 21002, 21002.1, 21081;  Cal.Code Regs., tit. 14, §§ 15091–15093.)   It is common knowledge that the process of EIR preparation can consume many months.

At the conclusion of this lengthy process an EIR may be challenged in court.   The Legislature has provided statutes, including section 21167, to expedite trial and appeal.   For instance, section 21167 provides for short periods of limitation after which court challenges can generally not be filed;  section 21167.1 provides for trial preference;  section 21167.6 provides for prompt preparation of the record;  and section 21177 provides that no one may bring a court action challenging an EIR who did not previously object to the project.

The THP process is markedly distinct in its procedural aspects.   The THP is an abbreviated EIR, and is typically a preprinted form.   It must contain “sufficient information regarding the environmental effect of the logging project to enable the evaluation of the effect of the project on the environment, the feasibility of alternatives to the project, and the measures to minimize ․ adverse impact.”  (EPIC, supra, 170 Cal.App.3d at p. 611, 216 Cal.Rptr. 502.)   Unlike the EIR, the THP is not produced in both draft and final form.  “Once proposed, the THP is subject to a review and evaluation process which requires that the proposed plan be reviewed by an interdisciplinary review team and be made available for public inspection.”   (Ibid.)  Other public agencies may also provide input.   Upon its approval of a THP, the California Department of Forestry issues a notice which must respond to significant environmental points raised during the evaluation process.  (See id., at pp. 611–612, 621, 216 Cal.Rptr. 502;  § 4582.7.)   Generally, no public hearing accompanies the THP approval process.

 A court challenge to a THP approval is governed by the usual statutes and rules pertinent to civil proceedings generally.   There are no specific statutes analogous to those involving judicial review of EIRs pertinent to the procedures employed in judicial review of a THP.

While the avoidance of delay is always a salutary goal in any litigation, including timber harvest cases, the EIR process is much more protracted.   Preparations and administrative hearings on an EIR can literally consume years before a legal challenge is even begun.   Special legislative attention to expeditious proceedings is reasonable under these circumstances but does not ipso facto evidence an intent to apply those same provisions to the much more streamlined and abbreviated process of preparation and approval of a THP.

Since we conclude that section 21167.4 does not apply to THP challenges, we need not decide whether the statute is mandatory or discretionary.3  We also need not reach the issue whether, assuming the statute applies, appellants should have been granted relief from default under Code of Civil Procedure section 473.

The orders dismissing the petitions below are reversed and the causes remanded with instructions to reinstate the petitions.   Each party is to bear its own costs on appeal.


1.   All statutory references are to the Public Resources Code unless otherwise indicated.

2.   Real party contended at oral argument that the 30–day limitations period for legal challenges to THPs (§ 21080.5, subd. (g)) supported its position that section 21167.4 is applicable to the THP process.   The Legislature's provision for prompt filing of THP challenges is not determinative of whether those challenges are subject to dismissal for violation of the 90–day hearing rule of section 21167.4.

3.   Two cases involving EIR challenges have held the statute mandatory, rejecting arguments that the trial court should retain discretion and that the language “subject to dismissal” implies the exercise of that discretion.  (McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352, 243 Cal.Rptr. 617;  San Franciscans for Reasonable Growth v. City and County of San Francisco, supra, 189 Cal.App.3d 498, 234 Cal.Rptr. 527.   One could make a reasoned argument that “subject to dismissal” is not mandatory language.   We express no opinion in this issue.

LOW, Presiding Justice.

KING and HANING, JJ., concur.