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

SIERRA CLUB et al., Petitioners/Respondents, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION/William T. Imboden, Respondent. PACIFIC LUMBER COMPANY, Real Party in Interest/Appellant.

Nos. A056250, A058664.

Decided: December 29, 1993

Jared G. Carter,Frank Shaw Bacik, Cindee F. Mayfield, Jeffrey L. Anderson, Rawles, Hinkle, Carter, Behnke & Oglesby, Ukiah, for appellant. Joseph J. Brecher, Oakland, Michael Golden, Arcata, for respondents.

In these consolidated appeals, we conclude the trial court properly invalidated two timber harvest plans (THP's), which were approved by the California Department of Forestry and Fire Protection (Forestry) in 1988 in order to allow the logging of two similar plots of virgin old-growth forest, and which have been the subject of extensive previous legal proceedings over the past five years.   As Forestry subsequently conceded before the trial court, its decision to approve these THP's was a prejudicial abuse of discretion, and was not supported by applicable law or substantial evidence in the record showing adequate consideration of mitigation measures proposed by the California Department of Fish and Game (Fish and Game), which measures were designed to protect certain rare animal species shown to be dependent on old-growth forests.   We also reject, on the sole ground that it is not yet ripe for review, the claim made in this appeal that the state would effect an unconstitutional taking of private property by protecting those species.   We, therefore, affirm the trial court's decisions invalidating the THP's in issue.


The procedural history of these cases, which we have seen on many occasions in the past, has been much more extensive than one might wish.   In briefest summary, we are concerned here with two THP's which were submitted for approval by appellant Pacific Lumber Company (P–L) in 1988.   One THP, designated 1–88–515 HUM, concerned P–L's attempt to log more than 220 acres of virgin, old-growth forest in the area of Owl Creek in Humboldt County.   This Owl Creek THP was being sought at about the same time, the summer and fall of 1988, during which P–L had submitted another similar THP in Humboldt County, No. 1–88–462 HUM, for another parcel of roughly equal size near Salmon Creek in the Headwaters Forest.

As the Salmon Creek and Owl Creek THP's were sought and authorized at the same time, and have many legal and factual issues in common, we have consolidated the appeals arising from them for argument and disposition in this opinion.   The Owl Creek THP became the subject of litigation in trial court action No. 83428 (our No. A058664) and was tried on the merits to visiting Judge Roy G. MacFarland.   The Salmon Creek THP was litigated as trial court action No. 82983 (our No. A056250) and was tried on the merits to Judge William F. Ferroggiaro, Jr.   Both trial judges invalidated the THP's in issue, under circumstances which we discuss below.

The two THP's were initially submitted to Forestry for approval;  the chief of Forestry's Region I, William T. Imboden, was ultimately responsible for the approval of certain documents;  he is a nominal defendant in one of these appeals.   As part of its administrative and regulatory responsibilities, Forestry must consult with other state agencies, including Fish and Game, and must solicit the professional views of Fish and Game as to wildlife issues which are within its areas of expertise.

For both THP's, Fish and Game proposed certain mitigation measures designed to reduce the deleterious effect of the logging on wildlife species, especially six relatively rare animal species which were shown by scientific evidence to be dependent on old-growth forests for their continued survival.   These species are:  (1) the marbled murrelet, a bird related to puffins and auks which feed at sea, but nests in fully-mature or overmature trees in old-growth forests situated, like the two parcels in question here, within easy flying distance of the California coastline;  (2) the spotted owl, a raptor which also is highly dependent upon old-growth forests for its habitat;  (3) the northern goshawk, another raptor which inhabits such forests;  (4) the red tree vole, a small mammal native to these forests;  (5) the Olympic salamander, an amphibian which inhabits springs and small brooks in deep forests;  and (6) the tailed frog, a frog with a tail-like protuberance, which needs clear, cold forest streams to survive.

After considerable administrative proceedings, discussion, and activity, Forestry approved the THP's without ordering implementation of the mitigation measures specified by Fish and Game;  Fish and Game filed a formal nonconcurrence statement as to the Owl Creek THP.   Forestry granted approval despite the fact that the rare or endangered species of the marbled murrelet, which the record demonstrates has become so reduced in California as to be highly susceptible to extinction, had been detected on both sites and clearly used these sites for nesting.

Litigation ensued.   Unfortunately, the resolution of both cases was delayed for years by procedural wrangling.

In the case of the Owl Creek THP, litigated as trial court action No. 83428, the petitioners, certain environmental groups and their members, sought a writ of mandate and the issuance of a temporary restraining order, since P–L had already begun logging operations on the site.   Fish and Game official John Hummel filed a declaration in support of issuance of the restraining order.   Judge Ferroggiaro issued a temporary restraining order in December 1988, barring logging at Owl Creek.   The trial court also imposed a bond of $50,000 which the petitioners said they could not pay.   Petitioners sought a writ and emergency stay from this court (Division Five), which we granted (No. A044393).   The terms of our stay order, in substance, barred further logging at Owl Creek until a final decision issued in the litigation.

In the meantime, the Salmon Creek THP had proceeded to litigation as trial court action No. 82983.   The petitioners moved for a preliminary injunction in this case, but the trial court was unable to immediately supply a local judge to hear the matter who was not impaired by a conflict of interest.   Therefore, petitioners also sought relief in this court;  we granted an emergency stay pending further action in the trial court.   On December 16, 1988, the trial court was able to grant the requested preliminary injunction, barring further logging at Salmon Creek.

Slightly more than 90 days later, however, P–L sought dismissal of both actions on the grounds that petitioners had not requested a hearing on the matters within 90 days, under the terms of Public Resources Code 1 section 21167.4.   The trial court dismissed both actions for violation of the 90–day rule, and appeals proceeded to this court (Nos. A046150 & A046632).

On November 21, 1990, this court (Division Five) filed a written opinion in the consolidated appeals from both the Owl Creek and Salmon Creek dismissals.   We concluded in our prior opinion that the dismissals should be reversed because section 21167.4 did not apply to these actions.  (We have since reached a contrary conclusion on this point, on a prospective basis only, in Dakin v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 681, 687–688, 21 Cal.Rptr.2d 490.)

The two cases then returned to the trial court for proceedings on the merits;  they were assigned to separate judges in the trial court.   In the Owl Creek case, Judge MacFarland ruled in 1992 that the THP was not valid because Forestry had committed a prejudicial abuse of discretion in approving it.   Significantly, Forestry had conceded in the trial court that its prior approval of the Owl Creek THP was legally erroneous, since there had been insufficient consideration of mitigation measures designed to protect rare or endangered species;  Forestry also indicated that, while it did not agree with all aspects of the trial court's rationale as stated in its written opinion, Forestry accepted the trial court's ruling as fair.

In the Salmon Creek case, the matter returned to Judge Ferroggiaro, who reached the same result and entered a judgment in 1992 so stating.

P–L filed appeals from the judgments in both cases;  Forestry and the state did not appeal in either case.   In 1993, both appeals became fully briefed;  and in September 1993, we ordered them consolidated.


We conclude we must affirm the trial court's rulings in both cases.   The trial court properly ruled Forestry had committed a prejudicial abuse of discretion in approving the THP's to log Owl Creek and Salmon Creek, since Forestry did not follow applicable law and there was no substantial evidence to support Forestry's initial rejection of the mitigation measures, designed to protect rare or endangered wildlife, which had been specified by Fish and Game officials.   Our reasons for reaching this conclusion are as follows.

A. Errors in the Administrative Process

 First, the parties agree that timber harvesting operations on private lands such as those in issue here must be carried out in compliance with THP's approved in accordance with the provisions of the Z'berg–Nejedly Forest Practice Act of 1973, section 4512 et seq., and the rules or regulations of the Board of Forestry, 14 California Code of Regulations section 897 et seq. (the Forestry Rules).

The trial court's rulings were correct, for the very reasons specified by Forestry itself when it conceded to the trial court that the Owl Creek THP, at least, was improperly approved:  The Forestry Rules require that Forestry may not approve any THP unless all feasible mitigation measures necessary to substantially lessen any potential significant environmental impacts, including impacts to sensitive species such as those in issue here, have been included in the THP.  (Forestry Rules, §§ 898.1, 898.2.)

Further, Forestry candidly informed the trial court that it now requires mitigation measures similar to those proposed by Fish and Game for all THP's in old-growth forests, in order to comply with this provision of the Forestry Rules.   As the THP's in issue here did not comply with this requirement of the Forestry Rules, the trial court's rulings invalidating the THP's were correct.

At oral argument and by postargument letter brief, P–L disputed whether Forestry made such a concession or confession of error, and what effect any such concession should have.   The concession itself was clearly made.   Filed as part of the record in the trial court's action No. 83428, which became this appeal No. A058664 and which contested the sufficiency of the Owl Creek THP, at clerk's transcript pages 271 through 276, is a file-stamped copy of the document providing it.   That document was filed November 1, 1991, on behalf of Forestry by the Attorney General, and consists of Forestry's trial brief stating its position as to the issues in dispute.

The document provides in pertinent part as follows:  “It is [Forestry's] current position that THP 515 [relating to Owl Creek] was approved without sufficient information from which a reasonable determination could be made whether the plan would have significant adverse environmental impacts and, if so, how they could be mitigated.   It is the position of [Forestry] that harvesting in an area such as that represented by this plan should not take place without appropriate mitigation measures for the spotted owl and marbled murrelet, as well as any other old growth associated species which may be in the area.   Under the [Forestry Rules] the Director is not to approve any plan unless all feasible mitigation measures necessary to substantially lessen any potential significant environmental impacts, including impacts to sensitive species, have been included.  (Rules, § 898.1, 898.2(d).)   In this case, there was not sufficient evidence in the record upon which this determination could be made.”

 P–L contends nonetheless that these apparent concessions of error were untimely and of no consequent effect, since Forestry had theretofore administratively approved the THP's.   This point might be well taken if such previous administrative approval of the THP's had become final upon expiration of the date for legal challenge.   P–L ignores the fact that the THP's in issue here were continuously the subject of timely legal challenge and, thus, never became final.   If P–L's argument were accepted, no THP approval could ever be challenged in court if previously approved administratively.   Plainly, THP's remain subject to administrative mandamus alleging noncompliance with the Forestry Rules;  and the timber operator does not have a vested right to receive the benefits of an administratively granted THP while it remains, as here, the subject of ongoing legal action timely brought.  (Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 950, 142 Cal.Rptr. 86 [Per Christian, J.:  “[A]n applicant for a timber harvesting license does not have a vested right to the issuance of such a license.  [Citations.]”].)

In sum, Forestry's 1991 concessions were not untimely as P–L contends.   They were timely made in the course of administrative mandamus proceedings brought to obtain judicial review of Forestry's administrative action in issuing the THP's.   The THP's could not become final until that judicial review was completed.   Forestry, consequently, was not precluded from offering the concessions it made in those judicial proceedings.

 Aside from the concessions made below, however, a core question on our review of the action of the trial court is whether Forestry properly applied the law and the Forestry Rules, based upon substantial evidence, when it initially granted the THP's in 1988.   We conclude the original decisions by Forestry were then contrary to applicable law and the Forestry Rules, for the reasons that follow.

In its initial decisions on the THP's, prior to the reconsideration of its position as stated to the trial court, Forestry rejected the Fish and Game mitigation measures because Forestry stated there was “a reasonable doubt” as to whether they would be efficacious and feasible, both technically and economically.   None of these objections was supported by proper legal standards or substantial evidence.   Forestry properly reconsidered its position, and modified its stance in the trial court when it found the former decision untenable.

Of course, where its administrative action in granting a THP has not become final because of judicial intervention, Forestry should be encouraged to modify that prior action, in light of the facts and applicable scientific evidence, when convinced its prior decision was erroneous.  (See California State Auto. Assn. Inter–Ins. Bureau v. Garamendi (1992) 6 Cal.App.4th 1409, 1420–1422, 8 Cal.Rptr.2d 366.)   The previous decision by Forestry, which seemingly required rejection of Fish and Game mitigation measures unless they could be supported by scientific evidence beyond a reasonable doubt, was erroneous.

 Initially, Forestry should not impose the criminal-law test, of beyond a reasonable doubt, when considering whether to implement mitigation measures which implicate scientific or technical wildlife management issues within the professional expertise of Fish and Game.   While Forestry certainly need not endorse Fish and Game mitigation measures which are not supported by substantial scientific evidence, the need for the suggested mitigation measures in issue here (restricting timber cutting during the breeding season of the murrelet, for instance, or leaving certain groves of old-growth undisturbed for nesting) was amply supported by evidence of substantial adverse impacts upon rare wildlife species;  and Forestry had no substantial evidence to the contrary, other than its expressions of doubt.

Forestry's apparent insistence upon a higher standard of proof than reasonable scientific certainty raised an impossible hurdle for the consideration of any proposed mitigation measure for rare and endangered species.   By the time scientific research and opinion had reached such a state of moral certainty, the affected species might well be long gone the way of the passenger pigeon.   Further, Forestry's role as a lead agency includes the obligation stated by the Forestry Rules, to protect wildlife where feasible, not only where absolutely required beyond a reasonable doubt.

We note that the present case, which simply concerns the longstanding principle embodied in the Forestry Rules that impacts on wildlife should be mitigated where feasible, does not implicate any issues presently pending before our Supreme Court as to whether other, new, requirements may be imposed upon timber operations governed by a THP which has already been finally approved and become effective.   As our Supreme Court is currently dealing with those issues and related ones, we express no opinion upon them.  (See Public Resources Protection Assn. v. Department of Forestry & Fire Protection (1992) 15 Cal.App.4th 1394, 5 Cal.Rptr.2d 475, review granted June 18, 1992 (S026143);  Sierra Club v. State Bd. of Forestry (1992) 15 Cal.App.4th 1405, 6 Cal.Rptr.2d 326, review granted June 11, 1992 (S026367);  Louisiana–Pacific Corp. v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 642, 21 Cal.Rptr.2d 468, review granted Oct. 21, 1993 (S028951).)   Here by contrast, we deal solely with the applicability of longstanding provisions of the Forestry Rules which have not been subject to significant change during the period in which these THP's have been considered;  and the THP's themselves never became final and effective.   We, therefore, turn to the limited question of feasibility under the Forestry Rules themselves.

P–L contended before Forestry, and contends here, that the suggested mitigation measures were not, in fact, feasible.   This is a bit hard to reconcile with the fact that similar measures are now routinely included in such THP's.   The mitigation measures initially proposed by Fish and Game and rejected by Forestry, as to the THP's in issue here, adequately specified the methods and protections to be afforded, by maps of the site and by descriptions, and presented no indication of nonfeasibility from a technical standpoint, albeit considered onerous by P–L.   The actual gravamen of P–L's objections to such measures is put in terms of their economic feasibility, and the inroads P–L contends they will make upon the profits from timber harvesting operations.2  We address this question in the following section.

B. The Possible Conflict Between Wildlife Protection and the Takings Clause

It appears that P–L's arguments regarding the protection of private property from unconstitutional takings did play a large role in initially motivating Forestry to reject the mitigation measures suggested by Fish and Game as not economically feasible.   Significantly, P–L's constitutional argument concerning a regulatory taking is both misplaced in the context of these particular administrative actions and appeals, and is inconsistent with precedents dealing with wildlife protection in general.   We address this inconsistency, and the problem it creates in this case, in order to clarify the issues.

 First, as we will explain, the takings issue is not properly joined and ripe for review here.   We do not know what the economic effect of the mitigation measures to be imposed upon P–L will be;  nor do we have here a final administrative determination as to mitigation measures, so we may decide whether such regulatory decision deprives P–L of all of the value of its property, thereby constituting a regulatory taking.  (See Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 45, 275 Cal.Rptr. 17.)   P–L contends only that it might not be allowed to harvest 80 percent of its timber, or perhaps all the timber on some particular parcels (rather than the roughly 50 percent it had initially sought to harvest);  but the final economic effect of the regulatory action on these parcels and its lands as a whole remains unclear.   P–L “thus does not state a ripe claim for regulatory taking.”   (Id., 225 Cal.App.3d at p. 46, 275 Cal.Rptr. 17.)   The administrative process is not final;  the mitigation measures suggested by Fish and Game have not been finally adopted as a condition to issuance of the THP's.   Until that is done, a determination of claimed economic loss and its effect on P–L's lands is premature, bottomed on speculation unsupported by an adequate record.

 If these particular parcels (but not P–L's other lands which do not have old-growth characteristics or are not the habitats of threatened species) were to be protected wholly or in part from logging operations in order to save threatened wildlife species, we note that this district, the federal courts of appeals, and appellate courts in our sister states have generally rejected the claim that a state or federal statute enacted in the interest of protecting wildlife is unconstitutional because it curtails the uses to which real property may be put.

There is, however, an interesting dichotomy between those cases which have endorsed a state's attempts to protect wildlife on private lands, and more recent intimations from federal precedents involving the takings clause of the Fifth Amendment to the U.S. Constitution 3 as applied to regulation of land use, usually through zoning or planning.   We, therefore, review the relevant case law first as to wildlife protection and secondly as to issues arising under a constitutional takings analysis.

1. Wildlife Protection Cases

In the landmark case of Platt v. Philbrick (1935) 8 Cal.App.2d 27, 31, 47 P.2d 302, Presiding Justice Nourse rejected such a claim:  “The complaint that the statute [protecting wildlife on private property] as a whole is unconstitutional because it might permit an injury to appellant's property without compensation is without any foundation.   All private property within the state is held subject to the general police powers.  [Citation.]   It is conceivable that private property in every fish and game district in the state might suffer some damage through the restrictions of the Fish and Game Code generally, but this is a damage which the property owner must bear in the interest of the public welfare.”  (See also Terminals Equipment Co. v. City and County of San Francisco (1990) 221 Cal.App.3d 234, 242, 270 Cal.Rptr. 329 [“Generally, the adoption of zoning ordinances or land use plans such as the one at issue in this case is a matter within the police power of the state and its subdivisions.”].)

Similarly, in Christy v. Hodel (9th Cir.1988) 857 F.2d 1324, 1326–1327, 1334–1335, the Ninth Circuit found no unconstitutional taking from government actions which protected endangered species, even though the government thereby prevented a sheepherder from protecting his sheep by shooting marauding Montana grizzly bears.   The Ninth Circuit in reaching this conclusion cited numerous decisions, including the opinion of this district in Platt, supra;  the opinion of the Tenth Circuit in Mountain States Legal Foundation v. Hodel (10th Cir.1986) 799 F.2d 1423, 1428–1429 [The damage caused by federally protected wild jackasses was not a compensable taking.];   and the early decision of the New York Court of Appeals in Barrett v. State (1917) 220 N.Y. 423, 425–428, 116 N.E. 99 [The damage to timber stands caused by state-protected beavers was not a compensable taking.].

A landowner whose valuable stands of old-growth forest are infested with protected species is subject to state regulations designed for the legitimate purpose of such protection.   The cases cited above clearly indicate that the federal and state governments may regulate and protect rare species on private lands without, ipso facto, triggering an unconstitutional taking of private property on which such species are present.   P–L's contrary argument, based upon the fact that the several species in question actually physically occupy the habitat afforded by its property, presents a distinction without a difference in light of the cases cited above.   That authority necessarily upholds governmental protection of such species while on the land of an unconsenting landowner or leaseholder.   In particular, we note that Barrett, supra, upheld such state regulation in order to protect beavers which occupied the land in question and denuded it of the standing timber constituting its only real economic asset.  (220 N.Y. at pp. 427–428, 116 N.E. 99.)

Further, if governments may constitutionally protect wildlife species occupying private land, whose activities arguably interfere with the land's market value during such occupancy, it would seem certain that such protection may be equally afforded to the relatively innocuous and endangered species in question here.   Contemporary wildlife management and environmental regulation, as we currently know them, would seem difficult if not impossible if the exercise of that police power of the states to preserve and protect endangered species automatically triggered a partial or whole unconstitutional taking of the private land on which those species are situate.

2. Federal Jurisprudence Concerning the Constitutionality of Regulatory Takings

In contrast, however, to the cases cited above, in which the courts have generally endorsed wildlife regulation by the states and federal governments—and have rejected attempts to challenge wildlife laws as effecting unconstitutional takings, the recent jurisprudence of the federal Supreme Court may indicate the high court will in the future take a new course on takings issues generally, with a conceivable future impact on wildlife regulation.   In Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 112 S.Ct. 2886, 120 L.Ed.2d 798, the justices of the Supreme Court expressed a surprising diversity of views upon the proper analysis of a takings clause issue which arose when the state of South Carolina passed a statutory scheme of land protection which forbade a landowner to build houses on his land, in a development on a barrier island off the coast of South Carolina which was subject to erosion, and which for half of the past 40 years had been subject to daily flooding by the ebb and flow of the tides.  (Pp. ––––, 112 S.Ct. at pp. 2889–2890 [opn. of the court] & p. ––––, 112 S.Ct. at p. 2905 [dis. opn. of Blackmun, J.].)

From this factual situation in Lucas—which the six justices in the majority apparently accepted as a clear case of a total diminution of the value of the property, for purposes decreed by the state and, thus, seemingly an unconstitutional taking unless compensated, the justices nevertheless derived four separate opinions.   Even the opinion of the court by Justice Scalia appears less than a totally resounding statement of principle, since it merely remands the matter for further proceedings in the state courts as to whether, under South Carolina's preexisting state common law of nuisance and property use, the construction of homes on Lucas's property could have been enjoined:  “The question, however, is one of state law to be dealt with on remand․  [A]s it would be required to do if it sought to restrain Lucas in a common-law action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found.   Only on this showing can the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing.”  (Lucas v. South Carolina Coastal Council, supra, 505 U.S. at pp. –––– – ––––, 112 S.Ct. at pp. 2901–2902, fn. omitted.)

As Professor Epstein suggests, “Although anticipated before its arrival, last term's decision in Lucas v. South Carolina Coastal Council has been rightly regarded as anticlimactic.”  (Symposium, Lucas v. South Carolina Coastal Council:  A Tangled Web of Expectations (1993) 45 Stan.L.Rev. 1369, fn. omitted.)   Indeed, the commentary on Lucas from academic and legal commentators seems more concerned with what the high court left undone and ought to have done, rather than what the Lucas opinion actually did.   As Professor Fisher observes, “Several features of the Supreme Court's opinion in Lucas are highly problematic․   The problem of defining the [limits of the] property whose ‘economic value’ is at issue has not been solved by the Court and does not seem susceptible to any satisfactory solution.   The nuisance exception that the Court builds into its new test will contribute to the already infamous vagueness of the takings doctrine and may lead to inconsistency in the vulnerability of similar tracts of land to severe land-use regulation.   Finally, if the cynical view of state legislators on which the opinion seems to be founded is realistic, the decision will be wholly ineffectual.”  (Symposium, The Trouble with Lucas (1993) 45 Stan.L.Rev. 1393, 1410.)

Nevertheless, we do discern from Lucas certain principles which are relevant here.   If indeed California were to promulgate laws or regulations which would forbid P–L from logging all of its extensive acreage in the state, thereby effecting a total loss of all economical or productive use of the land, and if the logging of land would not have been subject to preexisting regulation by the state's laws of property or nuisance, then Lucas arguably indicates a taking has occurred.   One problem in applying a Lucas analysis to the facts of this case, however, is that wildlife regulation of some sort has been historically a part of the preexisting law of property, as the cases cited above either presuppose or assume;  and thus, we are left with a circular argument.  (See also Agins v. City of Tiburon (1979) 24 Cal.3d 266, 275–277, 157 Cal.Rptr. 372, 598 P.2d 25 [California state courts may not entertain claims of compensation for a regulatory taking.] affd. on other grounds (1980) 447 U.S. 255, 263, fn. 9, 100 S.Ct. 2138, 2143, fn. 9, 65 L.Ed.2d 106 [“Mere fluctuations in value during the process of governmental decisionmaking” are not a taking.];  First Lutheran Church v. Los Angeles County (1987) 482 U.S. 304, 321, 107 S.Ct. 2378, 2389, 96 L.Ed.2d 250 [The takings clause requires payment “where the government's activities have already worked a taking of all use of property․”].)

Two recent cases from this district have also rejected similar challenges, based on a takings argument, to state wildlife regulations.  (See Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 617–619, 15 Cal.Rptr.2d 779, review den. [Per Smith, J., Division Two of this district rejected, as unripe and unsubstantiated by the record, a similar takings clause argument where the administrative action in question would have protected certain forest lands from cutting or development.];   accord, Moerman v. State of California (1993) 17 Cal.App.4th 452, 459, 21 Cal.Rptr.2d 329, review den. [Per Dossee, J., there was no unconstitutional taking of private property where wild wapitis wandered.].)

As our Supreme Court has denied review in these two cases arising from our own district, we do not believe a different approach is warranted here (as P–L urges relying, inter alia, on Lucas ) since it is questionable whether on this record a result inapposite to Sierra Club and Moerman could be reached.   We simply do not know the financial effect which this state's wildlife regulation in issue here will have on the land to which the THP's involved in these appeals apply, or on other forested lands of P–L in this state.4

Our conclusion is required by the standards set by the Lucas opinion itself.  Lucas recognizes that the evolving federal law, regarding the constitutional limits of governmental regulations concerning land use, springs from Penna. Coal Co. v. Mahon (1922) 260 U.S. 393, 415, 43 S.Ct. 158, 160, 67 L.Ed. 322 authored by Justice Holmes:  “[W]hile property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”  (Emphasis added.)   Following Mahon, “In 70–odd years of succeeding regulatory takings jurisprudence, we have generally eschewed any set formula for determining how far is too far, preferring to engage in ․ essentially ad hoc, factual inquiries [citation].”  (Lucas v. South Carolina Coastal Council, supra, 505 U.S. at p. ––––, 112 S.Ct. at p. 2893, emphasis added, internal quotation marks and brackets omitted.)

These “ad hoc, factual inquiries” demand an adequate record, which we do not possess here, in order to determine whether a taking has occurred.   Justice Scalia in Lucas analyzed two “discrete categories” of regulatory actions constituting a Fifth Amendment taking and compensable without case specific inquiry “into the public interest advanced in support of the restraint” imposed by such action.  (––– U.S. at p. ––––, 112 S.Ct. at p. 2893.)   They are:  (1) regulations compelling a property owner “to suffer a physical ‘invasion’ of his property,” and (2) regulations denying “all economically beneficial or productive use of the land.”  (Ibid., emphasis added.)

P–L does not contend that an unconstitutional taking is implicated in these cases because California's regulation of its land use fails to advance legitimate state interests in the protection of endangered species, or because of any claimed constitutional defects in the statutory and regulatory process by which the THP applications are considered by Forestry.   P–L simply suggests that such state regulation of the use of its land, albeit expressing a legitimate state concern, might nonetheless fall within the second Lucas category of compensable taking through regulatory action by denying all economically beneficial or productive use of P–L's parcels here implicated, zoned exclusively for timber production.

It is, first, obvious that whether any state regulation of land use will deny all economic or productive use of the land to which applied must continue to be decided on an ad hoc basis, dependent on the extent of regulation and whether application thereof does, in fact, deny all such economic and productive use.

This issue of compensable Fifth Amendment taking by state regulatory action is not ripe for decision in the case at bench, and we decline to enter an advisory opinion thereon.   We do not, as did the state court in Lucas, reject the possibility (in this case the virtual reality) of “further administrative and trial proceedings” (––– U.S. at p. ––––, 112 S.Ct. at p. 2891), and proceed to the merits on the apparent assumption (made by the lower court in Lucas ) that a categorical taking has in fact occurred.

On the contrary, we deem the record before us inadequate for the purpose of categorically disposing of P–L's Fifth Amendment takings claim.   It does not permit an answer to the Holmes query of how far the state regulations go (Penna. Coal Co. v. Mahon, supra, 260 U.S. at p. 415, 43 S.Ct. at p. 160), since their application to P–L's land will be established in the future.   P–L is free to seek a new THP from Forestry consistent with the trial court's decision we have affirmed.   The nature and extent of timber harvest to be allowed on the subject parcels must be further determined by Forestry subject to judicial review.   Whether P–L will be denied all economic or productive use of its land is dependent on Forestry's action in responding to P–L's THP applications if made after remand.   In sum, the nature and extent of permitted timber harvest on P–L's parcels must necessarily be known “before adjudicating the constitutionality of the regulations that purport to limit it.”   (MacDonald, Sommer & Frates v. Yolo County (1986) 477 U.S. 340, 351, 106 S.Ct. 2561, 2567, 91 L.Ed.2d 285.)

C. Other Issues

Finally, P–L attacks the trial court for allegedly improperly criticizing the manner in which the two state agencies, Forestry and Fish and Game, processed these THP's.   P–L contends, rightly, that it is simply impossible to achieve total harmony between all the state officials involved in the THP approval process.   We question, however, P–L's argument that the THP's were invalidated because such a condition of perfect concord between state agencies was not achieved in these cases.

We do not believe the trial court improperly based its rulings upon its expressed criticism of Forestry and Fish and Game officials for allowing their professional judgment to become clouded by irrelevant personal animosities towards other state personnel, and thus precipitously rejected the mitigation measures proposed by Fish and Game.   We observe from the record that Forestry and Fish and Game have certainly now found a way to resolve their differences, without allowing the public business to devolve into pure bureaucratic infighting.   In any event, the trial court's exhortations to the affected state officials to try to put aside extraneous personal animosities were not objectionable or erroneous, but justifiable in light of the record.5  Further, the trial court properly understood the legal issues involved, and correctly ruled on the merits without penalizing P–L for the mutual animosities of state officials.6

D. Conclusion

The trial court judges correctly resolved the legal issues in these cases—in light of the applicable legal principles, the evidence, and the explicit and implicit concessions by Forestry made upon the record.   We find no basis for reaching a different result here.


The trial court judgments are affirmed.


FN1. Unless otherwise indicated, all subsequent statutory references are to the Public Resources Code..  FN1. Unless otherwise indicated, all subsequent statutory references are to the Public Resources Code.

2.   In this context, P–L makes rhetorical references to philosophical discourse, suggesting the mitigation measures may, if required by Forestry, be contrary to the worthy principles espoused by the great John Locke, whose 300–year–old Essay Concerning Human Understanding, however, has very little to say regarding California's system of regulation for THP's.   Further, while Locke certainly championed the protection of individual rights, including freedom of speech and religion, and while he specifically endorsed the protection of private property as a bulwark against absolutist despotism, these themes cannot be properly understood when excised arbitrarily from the conditions of Stuart England under which Locke wrote, nor from the overall empiricist context of his philosophical thought.   In any event, despite P–L's claim that these cases are really about the application in practice of the principles of John Locke, we find this argument inapposite to the cases before us.

3.   The United States Constitution, Amendment V, provides in pertinent part that “private property” shall not “be taken for public use, without just compensation.”   The California Constitution also provides, in article I, section 19, that “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”   P–L does not rely on the California Constitution;  and therefore, we do not discuss whether different issues might arise where a property was merely “damaged for public use” by the regulation, assuming that were possible.  (Cf. Rose v. City of Coalinga (1987) 190 Cal.App.3d 1627, 1633–1635, 236 Cal.Rptr. 124 [A city's regulatory decision to demolish a building which had been structurally damaged by an earthquake could be a taking (under Cal. Const., art. I, § 19) even though the city acted to safeguard the public welfare and did not intend to occupy the property.].)

4.   Even, for example, if state regulation kept the two small and separated parcels at issue here totally unlogged in perpetuity, as seems unlikely, this would not likely establish a total diminution of the value of P–L's timber property throughout the state.  (See City and County of San Francisco v. Golden Gate Heights Investments (1993) 14 Cal.App.4th 1203, 1209, 18 Cal.Rptr.2d 467, review den.  [Division Three of this district rejected a takings argument based upon Lucas, supra, where the appellant could not show that the government action would have taken all the value of the extensive property in issue, and the action would only have reduced the value of a portion of it.];   accord, Tensor Group v. City of Glendale (1993) 14 Cal.App.4th 154, 161, 17 Cal.Rptr.2d 639;  Ehrlich v. City of Culver City (1993) 15 Cal.App.4th 1737, 1747–1748, 19 Cal.Rptr.2d 468, review den.)

5.   Raising yet another seemingly misplaced issue, P–L also belatedly challenges the standing to sue of the environmental plaintiffs who brought the mandate proceedings in the trial court.   No such challenge to their standing was mounted in the trial court;  nor was their standing challenged in the numerous prior appellate proceedings.   If such a challenge to their standing had been timely made, the matter could have been properly litigated and a factual record generated which would allow review.   As P–L did none of this, it has waived the issue on appeal.  (See In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 501, 257 Cal.Rptr. 397 [Per Anderson, P.J.:  “[A]n appellant waives his right to attack error by expressly or implicitly agreeing or acquiescing at trial to the ruling or procedure objected to on appeal.”].)

6.   In addition, P–L's misplaced reliance on Olive Proration etc. Com. v. Agri. etc. Com. (1941) 17 Cal.2d 204, 109 P.2d 918, only highlights the lack of finality we face here.   In Olive, an administrative order was made and became final because the appeal to the superior court was dropped.  (P. 17 Cal.2d at 207, 109 P.2d 918.)   Here, by contrast, we deal with an administrative order which was continuously kept under appeal;  and in the course of the appeal to the trial court, the agency properly conceded its prior order was erroneous and sought a remand to Forestry.  “Ordinarily, the doctrine of res judicata may not appropriately be applied to the exercise of such [administrative and quasi-legislative reconsideration] power.”  (Id., 17 Cal.2d at p. 208, 109 P.2d 918;  see Hollywood Circle, Inc. v. Dept. of Alcoholic Beverage Control (1961) 55 Cal.2d 728, 732, 13 Cal.Rptr. 104, 361 P.2d 712.)

PETERSON, Presiding Justice.

KING and HANING, JJ., concur.