ALBION RIVER WATERSHED PROTECTION ASSOCIATION, Plaintiff/Appellant, v. CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Defendant/Respondent. LOUISIANA–PACIFIC CORPORATION, Real Party in Interest/Respondent.
By petition for writ of mandate, appellant Albion River Watershed Protection Association (Albion) challenged the approval by the California Department of Forestry and Fire Protection (Forestry) of three timber harvest plans (THP's) submitted by respondent and real party in interest Louisiana–Pacific Corporation (Louisiana–Pacific). The petition also sought mandamus relief against the California Department of Fish and Game (DFG) for its alleged failure to investigate adequately the impact of the THP's on fish, wildlife, and plant life and the concomitant effect thereof, individually and cumulatively, on the environment. The THP's at issue authorized the logging of some 450 acres of timber from the Albion River watershed located near the Mendocino coast. The trial court denied the petition, holding that Albion lacked standing because it had failed to exhaust its administrative remedies. The trial court also concluded relief against DFG was unavailable as a matter of law. Albion appeals. We reverse in part and affirm in part.
I. LEGAL BACKGROUND
California regulates the harvesting of timber on private lands through an extensive system of laws and regulations, i.e., the Z'berg–Nejedly Forest Practice Act of 1973 (FPA) (Pub. Resources Code,1 § 4511 et seq.) and administrative regulations thereunder (Forestry Rules) (Cal.Code Regs., tit. 14, § 895 et seq.), pursuant to which timber harvesting requires the prior approval of Forestry. However, 15 years ago, this court held that timber harvesting is also generally subject to the requirements of the California Environmental Quality Act (CEQA) (§ 21000 et seq.) (Natural Resources Defense Council, Inc. v. Arcata Nat. Corp. (1976) 59 Cal.App.3d 959, 965, 131 Cal.Rptr. 172.)
California adopted CEQA in 1970, by which the Legislature intended to maintain “a quality environment for the people of this state now and in the future․” (§ 21000, subd. (a).) CEQA, inter alia, “requires various state and local governmental entities to submit environmental impact reports [EIR's] before undertaking specified activity. These reports compel state and local agencies to consider the possible adverse consequences to the environment of the proposed activity and to record such impact in writing.” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 254–255, 104 Cal.Rptr. 761, 502 P.2d 1049.)
In 1971, Division One of this court, commenting “that few, if any, industries adversely affect the rights of others, and the public generally, as do timber and logging operations,” found the FPA then extant, and its 1970 amendments, unconstitutional as unlawfully delegating legislative power to set “forest practice rules” to private owners of timber, and thereby unlawfully denying due process “to the interested and affected public.” (Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 6, 14–15, 97 Cal.Rptr. 431, review den. Nov. 18, 1971.) 2
Against this background, the FPA of 1973 became law, giving primary regulatory authority over timber harvesting to Forestry. The legislative intent in enacting the FPA was set forth in section 4513: “It is the intent of the Legislature to create and maintain an effective and comprehensive system of regulation and use of all timberlands so as to assure that: [¶] (a) Where feasible, the productivity of timberlands is restored, enhanced, and maintained. [¶] (b) The goal of maximum sustained production of high-quality timber products is achieved while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment.” (Stats.1973, ch. 880, § 4, p. 1615.) 3
In 1975, the Legislature added section 21080.5 to the CEQA statutes providing, inter alia, that the Secretary of the Resources Agency (Secretary) could certify a regulatory program of a state agency as one allowing submission of a plan or other written documentation in lieu of an EIR, provided the plan contained certain specified environmental information.4
In 1976, the Secretary certified and in 1979 recertified Forestry's timber harvesting procedures promulgated under the FPA and Forestry's implementing rules. (Laupheimer v. State of California, supra, 200 Cal.App.3d at p. 458, 246 Cal.Rptr. 82.)
A THP is, thus, an alternative to a complete EIR. (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 610, 216 Cal.Rptr. 502 (hereafter EPIC ).) It constitutes an “abbreviated project plan[ ]” authorized by law instead of a “full-blown” EIR. (Id. at p. 620, 216 Cal.Rptr. 502.)
“While a proposed timber harvest is exempt from preparation of a formal [EIR], a THP must be prepared. As an ‘abbreviated’ EIR, the THP 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 any significant adverse impact. [¶] To this end, the FPA requires that the THP contain specific items of information, including a description of silvicultural methods to be used. (§ 4582) The Forestry Rules provide regulations governing the contents of the plan, choice of logging methods, as well as [Forestry's] process of the THP evaluation. Sections 897 and 898 of the Rules require the author of a proposed THP to conduct a ‘feasibility analysis' and thereby select ‘silvicultural systems, operating methods and procedures' which will ‘avoid or substantially lessen significant adverse effects on the environment from timber harvesting.’ (Forestry Rules, § 897, subd. (a).) The Rules further provide substantive criteria for the approval of a THP, and provide, inter alia, that plans will not be approved if they fail to reflect a feasibility analysis, or do not otherwise conform to the rules. [¶] 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. The process also provides for public input by way of comment and for consultation with certain public agencies, including [DFG], the appropriate California regional water quality control board, and the pertinent county planning agency. (§§ 4582.6, 21080.5, subd. (d)(3)(ii).) If [Forestry] approves the plan as in conformity with the rules, the department issues a notice of approval which must include a ‘written response to significant environmental points raised during the evaluation process,’ including those points raised by members of the general public. [Citations.]” (Id., 170 Cal.App.3d at pp. 611–612, 216 Cal.Rptr. 502, emphasis added.)
Finally, while the certification under section 21080.5 triggers the exemption of timber harvesting from the requirement of preparing an EIR when an appropriate abbreviated project plan is prepared, “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 FPA and the Forestry Rules.” (Id., 170 Cal.App.3d at p. 620, 216 Cal.Rptr. 502, emphasis added.)
II. FACTUAL AND PROCEDURAL BACKGROUND
The three THP's at issue in this action were each submitted by Louisiana–Pacific in the spring of 1989. THP 1–89–100 MEN (THP 100) was filed on March 8, 1989, and proposed the harvesting of approximately 145 acres of timber in the Slaughterhouse Gulch area of the Albion River watershed. Clearcutting and shelterwood removal were contemplated. The only comment by members of the public was in the form of four identical preprinted letters opposing the plan, each submitted and signed by a different individual, none of whom purported to act thereby for Albion. The plan was approved by Forestry on April 3, 1989.
THP 1–89–114 MEN (THP 114) was also filed on March 8, 1989. It proposed harvesting some 144 acres of timber in an area known as Escola Ranch though clearcutting and shelterwood removal. Three form letters, virtually identical to those submitted by way of comment and objection to THP 100, were received. None of the persons submitting the form letters purported to act for Albion. A fourth letter, submitted by a private individual (Betty Ball) on behalf of an organization known as the Mendocino Environmental Center, raised in part several significant environmental questions directed specifically to the plan.5 THP 114 was approved on March 30, 1989.
THP 1–89–145 MEN (THP 145) was filed on March 27, 1989. It proposed the harvest of 141 acres of timber in the Slaughterhouse Gulch and Deadman Gulch areas by clearcutting and shelterwood removal. Eight letters were received from members of the public opposing THP 145. Four brief handwritten notes contained only general comments or speculative concerns, and asked that the area be conserved as an undeveloped sanctuary. Four other preprinted form letters, similar to those submitted in comment on and opposition to THP's 100 and 114, were also lodged as to THP 145. None of these eight individuals purported to act for Albion. Forestry approved THP 145 on April 12, 1989.
The initial petition for writ of mandate, purportedly brought under the authority of Code of Civil Procedure section 1085,6 was filed by Albion on May 1, 1989. An amended petition containing two causes of action was filed on May 31, 1989. In the first cause of action, Albion alleged that Forestry had improperly approved the three THP's and that it had ignored the applicable rules and regulations governing timber harvesting. In the second cause of action, Albion, in essence, alleged that DFG had failed “to conduct a thorough investigation of fish, wildlife, and plant life potentially impacted by the [THP's]” in violation of its statutory duties. Although the amended petition contained certain allegations concerning Albion's alleged contemporary status, there were no allegations regarding its membership or formation. In its prayer for relief, Albion sought a writ ordering withdrawal of approval of the THP's and compliance with applicable statutes and regulations.
Louisiana–Pacific answered the amended petition and raised, as an affirmative defense, Albion's alleged failure to exhaust its administrative remedies. Forestry and DFG demurred to the amended petition on the same ground and added the claim that Albion lacked standing. In July 1989, the demurrers of Forestry and DFG were overruled.
The case was called for trial on November 16, 1989. The court examined, preliminarily, three “threshold issues”: Albion's standing, the requirement that administrative remedies be exhausted, and the extent to which evidence outside the administrative record could be considered. Albion conceded that it never participated in the THP review process, but claimed it still had the right to pursue the suit because it had formed as an organization after the THP's were approved and some of its members had theretofore participated in the THP review process.
Albion admitted an organization with an identical name had been in existence prior to the THP approvals, but claimed that organization had disbanded and existed only as a “shell” at the time the subject THP's were being considered. The trial court heard argument and declined to accept extrinsic evidence on these particular “threshold issues,” limiting its consideration thereof to the court's file and the administrative records generated in the THP process. At the close of the afternoon's argument by counsel, Albion orally moved for leave to amend its petition to more fully allege facts regarding standing and the exhaustion of administrative remedies. The case was submitted, the court reserving a ruling on this request.
On January 16, 1990, the court issued a tentative decision denying the amended petition. Albion could not prevail on its first cause of action against Forestry, the court held, because Albion's failure to pursue its administrative remedies prior to filing suit resulted in lack of standing. The court rejected Albion's attempt to assert standing by virtue of its formation after the approval of the THP's, because Albion had failed to allege this fact in its amended petition. Albion's oral motion to amend to correct this perceived defect was denied because the motion was not timely and was not supported by a written proposed amendment. The court held Albion could not prevail on its second cause of action against DFG because its petition failed to allege facts justifying equitable relief. Finally, the court declined to rule on the extent to which evidence outside the administrative record could be considered. After a judgment reflecting these rulings was entered, Albion timely filed the present appeal.
This court subsequently issued a writ of supersedeas enjoining timber operations on the three THP's pending the determination of this appeal.
Albion challenges the trial court's ruling on several grounds. First it claims the trial court erred when holding it lacked standing because it had not exhausted its administrative remedies prior to filing suit. Albion also maintains the trial court erred when it refused to hear evidence outside the administrative record. Finally, Albion argues the court erroneously ruled it had failed to state a cause of action against DFG.
A. The Distinction Between Exhaustion of Administrative Remedies and Lack of Standing in a CEQA Related Case
In examining the distinction between the doctrine of exhaustion of administrative remedies and lack of standing to sue, we must first consider the application of section 21177 to a certified regulatory program.
1. Section 21177 Is Expressly Excluded from Application to Regulatory Programs Certified Pursuant to Section 21080.5, Subdivision (c)
The exhaustion of administrative remedies doctrine in CEQA litigation is codified at section 21177. That section states, in relevant part, “(a) No action may be brought pursuant to Section 211677 unless the alleged grounds for noncompliance e with this division were presented to the public agency orally or in writing by any person. [¶] (b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing. [¶] (c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b)․” (Emphasis added.)
Section 21177 clearly applies only to actions brought pursuant to section 21167 and is inapplicable to regulatory programs, including those authorizing issuance of THP's, certified by the Secretary as allowing submission of documentation in lieu of an EIR. Such regulatory programs are exempted from section 21167 by the express terms of section 21080.5, subdivision (c) which provides: “A regulatory program certified pursuant to this section is exempt from the provisions of Chapter 3 (commencing with Section 21100) and Chapter 4 (commencing with Section 21150) and Section 21167.” (Emphasis added.)
The trial court erred when it held Albion's first cause of action was barred because of the provisions of section 21177, an inapplicable statute.
However, on appeal, we review the validity of the ultimate decision of the lower court, not the reasoning the court used to reach its conclusion. (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117.) We will consider whether the trial court's decision may be affirmed on other grounds.
2. Standing to Sue
The trial court, in rejecting Albion's petition, reasoned, inter alia, that Albion lacked standing because it had failed to exhaust its administrative remedies, thus equating Albion's perceived lack of standing with its alleged failure to exhaust its administrative remedies. However, the doctrines of standing and exhaustion are separate and distinct. Under the concept of standing, a court must determine whether the plaintiff is a person entitled to judicial relief.
“ ‘One who is adversely affected in fact by governmental action has standing to challenge its legality, and one who is not adversely affected in fact lacks standing.’ [Citation.]” (Kane v. Redevelopment Agency (1986) 179 Cal.App.3d 899, 903, 224 Cal.Rptr. 922, emphasis omitted.) Albion alleged in its first amended petition for writ of mandate that it is an association of persons whose “economic, personal, and aesthetic interests will be severely injured” by logging pursuant to the approved THP's; that it “is within the class of persons beneficially interested in, and aggrieved by, the resolutions of respondents [inter alia, Forestry] as alleged below”; and that it is “a Watershed Organization, [and] an affiliate of the Rural Institute, a California non-profit corporation, and was formed to protect ․ the Albion River environment from detrimental actions by California public agencies․”
These allegations would “satisfy the liberal standing requirements for private individuals acting in the public interest to institute proceedings to enforce the provisions of CEQA. [Citations.]” 8 (Id., 179 Cal.App.3d at p. 904, 224 Cal.Rptr. 922.) We believe these liberal requirements of standing apply equally to environmental actions brought for a class by its representative, and the allegations of Albion's first amended petition sufficiently pled its standing to sue. The lower court, consequently, erred in rejecting Albion's standing to prove its case because of a perceived failure of pleading; the trial court further erred in positing Albion's alleged failure to plead its standing to sue as the basis for its conclusion Albion failed to plead or establish it exhausted its administrative remedies.
A plaintiff may satisfy the standing requirement and be thereafter barred from recovery because of a failure to exhaust administrative remedies. (California Aviation Council v. County of Amador (1988) 200 Cal.App.3d 337, 345, 246 Cal.Rptr. 110.) We, accordingly, examine separately the court's ruling that Albion failed to adequately plead exhaustion of administrative remedies.
3. Exhaustion of Administrative Remedies
The purpose of the doctrine of exhaustion of administrative remedies is to require final adjudication by the administrative tribunal of the matter it hears before subjecting that matter to judicial review, i.e., to avoid premature judicial interference with the subject matter of a pending administrative determination. (Id., 200 Cal.App.3d at pp. 340–341, 246 Cal.Rptr. 110.) “Consequently, the requirement of exhaustion is a jurisdictional prerequisite, not a matter of judicial discretion. [Citation.]” (Id. at p. 341, 246 Cal.Rptr. 110.)
Under the exhaustion doctrine, a court will not review legal or factual issues presented by a litigant having standing to sue when those issues are not first presented at the administrative agency level. (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894, 236 Cal.Rptr. 794.)
The doctrine's application preserves administrative tribunal special jurisdiction by allowing it to act before judicial review and thereby aids in avoiding potential litigation, in facilitating development of a record drawing on administrative expertise, and in promoting judicial efficiency. (Leff v. City of Monterey Park (1990) 218 Cal.App.3d 674, 681, 267 Cal.Rptr. 343.)
Whether Albion adequately exhausted its administrative remedies is, therefore, the matter to which we now turn.
4. The Application of Case Law to Regulatory Programs Certified Pursuant to Section 21080.5, Subdivision (c)
Section 21177 codified the exhaustion of remedies doctrine applicable to CEQA actions brought pursuant to section 21167. In doing so, the Legislature enacted a declaration accompanying section 21177 (Stats.1984, Ch. 1514, § 14.5, p. 5345 (hereafter section 14.5)): “It is the intent of the Legislature in adding Section 21177 to the Public Resources Code in Section 14 of this act to codify the exhaustion of administrative remedies doctrine. It is not the intent to limit or modify any exception to the doctrine of administrative remedies contained in case law.” (Emphasis added).
Because of the express inapplicability of section 21177 to THP regulatory programs certified pursuant to section 21080.5, subdivision (c), and the Legislature's preservation of case law exceptions to the doctrine of exhaustion of administrative remedies in section 14.5, we must, somewhat anomalously, determine issues involving exhaustion of administrative remedies applicable to THP's by applying relevant case law while disregarding section 21177, although it generally mirrors that case law in its codification of the exhaustion doctrine.
In short, we will conclude that the literal inapplicability of section 21177 to regulatory programs, including THP's (§ 21080.5, subd. (c)), does not restrict or preclude the applicability to this case of the exhaustion doctrine as established by applicable case law.
The trial court held Albion's suit was barred under section 21177, subdivision (b) because it had not submitted any written comments or objections concerning the three THP's during the THP review process. Albion could not take advantage of the exception set forth in section 21177, subdivision (c), the court held, because Albion had failed to allege in its petition that it had formed after the THP's were approved.
Albion concedes that it never participated in the THP review process. However, it maintains it should still be permitted to pursue its suit because it formed as an organization after the THP's were approved, and because persons who then joined the organization had participated in the THP review process. This theory of the exhaustion doctrine was eventually codified as section 21177, subdivision (c), and was first enunciated by our Supreme Court nearly 20 years ago in Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d 247, 104 Cal.Rptr. 761, 502 P.2d 1049.
In Friends of Mammoth, an action was brought as a class action 9 by certain named plaintiffs who had not participated in the administrative review process. The defendants challenged the plaintiffs' standing to pursue the suit because they had not personally pursued their administrative remedies. The Supreme Court rejected this challenge by noting that, although the named plaintiffs had not participated in the administrative review, certain persons who were members of the class had participated. Under those circumstances, the Supreme Court held, the doctrine of exhaustion of administrative remedies could not be employed to bar suit by a class which was not organized at the time of the administrative review. (Id., 8 Cal.3d at pp. 267–268, 104 Cal.Rptr. 761, 502 P.2d 1049; 10 cf. Lattin v. Franchise Tax Board (1977) 75 Cal.App.3d 377, 381, 142 Cal.Rptr. 130 [One claimant member of a class subsequently formed, acting as its representative member, may thereby satisfy the claim requirements for the class, but only if that member files the claim on behalf of the entire class, i.e., individual claims for each (unknown) class member need not be filed to comply with claims statute.].)
Friends of Mammoth clearly grants Albion authority to challenge the three THP's at issue if some of its members had participated in the THP review process. And indeed, this was precisely the argument Albion presented to the court below. When the case was called for trial, Albion offered to prove that three persons, who subsequently became members, had participated in the administrative review of the THP's. However, the trial court refused to permit Albion to produce this evidence. Then later, in its decision, the court ruled that Albion could not take advantage of the exception which was subsequently codified in section 21177, subdivision (c), because it had failed to allege in its petition that it had formed after the THP's were approved.
Thus, the trial court's ruling was ultimately based upon a perceived pleading defect, the court finding that Albion's pleadings were insufficient because they failed to state how Albion had exhausted its administrative remedies. Because of this perceived omission, the court would not permit Albion to present evidence to support its claim that it had formed after the THP's were approved and that persons who then became members had theretofore participated in the THP review.
The trial court's ruling was, in effect, equivalent to a judgment on the pleadings. (See 6 Witkin, Cal. Procedure (3d ed. 1985) Proceedings Without Trial, § 262, pp. 563–564.) Such a judgment may only be granted where some essential allegation is missing from a complaint. (Shabrick v. Moore (1961) 195 Cal.App.2d 56, 60, 15 Cal.Rptr. 310.) Even where the motion may be properly granted, an opportunity to amend is generally allowed as is the practice with a general demurrer. (Ibid.) Where a complaint has previously been held sufficient by a law and motion judge, an opportunity to amend should be allowed. (Ibid.; see also 6 Witkin, op. cit. supra, § 271, pp. 570–571.)
Here, as we have noted above, prior to the trial of this action, Forestry and DFG demurred to Albion's amended petition claiming Albion had failed to exhaust its administrative remedies and that it lacked standing. These demurrers were overruled. Even if we were to assume the allegations in Albion's petition were insufficient, the trial court abused its discretion in refusing Albion either an opportunity to amend its petition so that it could allege and subsequently prove that it was entitled to come within the Friends of Mammoth exception, or the right to prove its entitlement to the benefit of that exception and amend its pleading to conform with that proof.11
5. Additional Exhaustion Requirements and Considerations
The mere fact that we conclude the trial court should have allowed Albion the opportunity to allege and prove that certain of its members had participated in the administrative review of the three THP's at issue does not mean the trial court's ultimate judgment must be reversed. The requirement that a party seeking judicial review of an administrative decision have theretofore participated before the administrative body is but one aspect of the exhaustion doctrine. Albion's suit would also fail if it did not comply with another required aspect of that doctrine.
a. Exact Issue Presentation to the Administrative Body Is Required
“[I]f an administrative remedy is provided by statute or ordinance, a litigant must show that he invoked and exhausted the remedy before he may obtain judicial review of the administrative action taken. [Citations.]” (Environmental Law Fund, Inc. v. Town of Corte Madera (1975) 49 Cal.App.3d 105, 111, 122 Cal.Rptr. 282 (hereafter Corte Madera ).) Courts must vigorously enforce the rule and be alert to guard against efforts to erode it. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 293, 109 P.2d 942.) Even a challenge to a statute's constitutionality is subject to the requirement of exhaustion of administrative remedies. (United States v. Superior Court (1941) 19 Cal.2d 189, 195, 120 P.2d 26.) The doctrine is equally applicable to actions in traditional and administrative mandamus. (Leff v. City of Monterey Park, supra, 218 Cal.App.3d at p. 680, 267 Cal.Rptr. 343.)
“[T]he exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary.” (Resource Defense Fund v. Local Agency Formation Com., supra, 191 Cal.App.3d at p. 894, 236 Cal.Rptr. 794, emphasis added; Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198, 200 Cal.Rptr. 855.) An administrative agency cannot act on a claim of defect in CEQA related proceedings unless that defect is presented to it; and this exhaustion of administrative remedies doctrine binds public interest groups such as Albion that seek to enforce compliance with the law. (Resource Defense Fund v. Local Agency Formation Com., supra, 191 Cal.App.3d at p. 895, 236 Cal.Rptr. 794.) “It is axiomatic that judicial review is precluded unless the issue was first presented at the administrative level.” (Id. at p. 894, 236 Cal.Rptr. 794.)
The cases requiring exact issue presentation to the administrative agency, as a prerequisite to exhaustion of administrative remedies, demonstrate the law's aim of avoiding litigation by first affording the administrative body the ability to address and resolve the pertinent issue. Such administrative resolution will not occur if the issue is never identified in the administrative proceedings. This focus on issue presentation, however, does not relieve the litigant (under the Friends of Mammoth exception or otherwise) from the further requirement of participation in the administrative proceedings, even though the litigant did not therein personally assert the issue on which judicial review is thereafter sought. (See Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d at p. 268, 104 Cal.Rptr. 761, 502 P.2d 1049; Kane v. Redevelopment Agency, supra, 179 Cal.App.3d at p. 904, 224 Cal.Rptr. 922.)
Thus, to establish it exhausted its administrative remedies, Albion must prove, under Friends of Mammoth, its derivative participation in these THP proceedings through the acts of a participant therein who later became an Albion member; if this proof is made, Albion must further prove the exact issues it raises in its litigation against Forestry were raised by that participant or some other person or entity in those administrative proceedings.
b. The Court Properly Denied Albion's Challenge to THP's 100 and 145
In the case at bar, while Albion alleged it had raised all the issues it sought to assert in the petition by presenting them to Forestry during the THP review process, Albion made no attempt to delineate therein which of its arguments were raised in opposition to which THP. Our review of the administrative record discloses that the comments submitted to Forestry in opposition to each THP differ significantly.
On THP 100, Forestry only received four preprinted form letters objecting to the plan. Each letter was identical and can best be described as a list of observations which are applicable generally to timber harvesting. Included, inter alia, are questions which relate to the mechanics of timber harvesting, such as whether Forestry looks for the presence of endangered species or whether it takes into account the cumulative effect of nearby timber harvests. Also included are a number of more politically oriented queries, such as whether Forestry has a sufficient budget to fulfill its governing laws. The letters conclude with the statement, “It would be nice if you learned how to obey the law like the rest of us.” None of the questions or comments on the letters are site specific. The letters comprise 34 paragraphs in number; most paragraphs contain several questions which can best be characterized as expressing unsubstantiated opinions, concerns, expressions of philosophy, and suspicions about timber harvesting generally. Many of these statements or queries on these preprinted forms are argumentative (“It would be nice if you learned how to obey the law like the rest of us.”) or immaterial (“Does [Forestry] have sufficient budget to fulfill governing laws?”). One who purports to protest issuance of a THP by such means is simply instructed to “Fill in return address, THP #, group you're representing (if any), and sign your name at end of challenge.”
During its review of THP 114, Forestry received three form letters which were virtually identical to those submitted in opposition to THP 100 and a fourth letter from a private individual which raised some specific environmental questions directed at the plan.
Eight members of the public submitted letters to Forestry in opposition to THP 145. Four of those letters were preprinted forms similar to those submitted in comment on and opposition to THP's 100 and 114. The remaining four letters contained only general comments opposing timber harvesting. For example, one letter, which is more accurately described as a note, states, “NO! DON'T LET IT HAPPEN. [¶] I OPPOSE [THP 145]. [¶] THE EARTH HAS BEEN ALREADY raped enough. Just let it be to grow. CONSERVE the Albion River.” Another note was similar, stating in substance, “WE ARE STRONGLY OPPOSED TO any logging on the Albion River.”
We believe that the preprinted form letters submitted in opposition to the THP's here were insufficient to meet the requirement that the exact issue upon which a suit is based be presented to the administrative body. Those letters, by their very nature, raised only issues which were applicable to THP's generally. They did not provide Forestry with anything to consider when determining whether each particular THP should be approved. Albion's suit, by contrast, challenges Forestry's approval of the specific THP's. Albion's first amended petition does not purport to challenge the practice of timber harvesting in general; and the preprinted forms, generally objecting to timber harvesting, do not raise the same issue as particular objections to a specific THP.12
Likewise, the notes which were submitted to Forestry and which merely contained generic comments were insufficient to raise issues which Forestry was required to address. It has long been settled that “[u]nsubstantiated opinions, concerns, and suspicions about a project, though sincere and deeply felt” are not factors which must be considered when determining a project's potential effect on the environment. (Leonoff v. Monterey County Bd. of Supervisors (1990) 222 Cal.App.3d 1337, 1352, 272 Cal.Rptr. 372; Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 756, 272 Cal.Rptr. 83 [“Speculation is not evidence.” Fn. omitted.]; Coalition For Student Action v. City of Fullerton, supra, 153 Cal.App.3d at pp. 1197–1198, 200 Cal.Rptr. 855; Newberry Springs Water Assn. v. County of San Bernardino (1984) 150 Cal.App.3d 740, 749, 198 Cal.Rptr. 100; Perley v. Board of Supervisors (1982) 137 Cal.App.3d 424, 434, fn. 5, 187 Cal.Rptr. 53 [remarks constituting a speaker's concerns and suspicions about possible environmental effects are not evidence thereof].)
Based upon these principles, we conclude the court's judgment in favor of Forestry must be upheld as to two of the three THP's at issue. Only form letters were submitted in opposition to THP 100, and these letters cannot be said to raise the same issues as are present in Albion's suit. As for THP 145, only form letters and generic comments were submitted, neither of which is an adequate basis for Albion's petition. Even if Albion were able to show that some of its members had participated in the administrative review of those THP's and, thus, bring itself within the Friends of Mammoth exception, Albion's challenge to THP 100 and THP 145 would fail because the issues upon which it seeks judicial review were not properly presented at the administrative level.
However, that does not end the inquiry here. A private individual (Betty Ball) submitted some site specific comments and objections in opposition to THP 114. The Friends of Mammoth exception might apply if other persons who participated at the administrative level by submitting comments in opposition to that THP subsequently became members of Albion. As we have noted above, a plaintiff who has participated in proceedings at the administrative level need not personally have asserted the issue upon which review is sought so long as some other person similarly participating therein has raised the issue. (See Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d at p. 268, 104 Cal.Rptr. 761, 502 P.2d 1049.) The matter must be remanded to the trial court to determine whether Albion can bring itself within the Friends of Mammoth exception so as to assert in this litigation the site specific comments and objections submitted by Betty Ball in opposition to THP 114.
6. The Corte Madera Exception to Personal Participation in the Administrative Proceedings Is Inapplicable to Albion
Albion urges that, even if it is found to have failed to exhaust its administrative remedies, it seeks to enforce rights which its members hold as part of the affected public; and that, therefore, it is entitled to proceed under the “public interest” exception to the doctrine of administrative remedies on the authority of Corte Madera, supra. We reject this contention.
In Corte Madera, a two judge majority of this court (Division Four) held that “the failure of a private person to exhaust an administrative remedy, against governmental action taken in an administrative proceeding to which he was not a party, does not bar him from seeking judicial relief from such action by way of enforcing rights which he holds as a member of the affected public.” (49 Cal.App.3d at p. 114, 122 Cal.Rptr. 282.) The record in Corte Madera disclosed respondents had received no notice of the administrative proceedings. (Id. at p. 113, fn. 3, 122 Cal.Rptr. 282.) Subsequent cases considering the “public interest” exception of Corte Madera have, thus, uniformly limited its application to situations where the party seeking judicial relief from administrative action had no notice of the administrative proceeding. (See, e.g., Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 34 Cal.3d 412, 418, 194 Cal.Rptr. 357, 668 P.2d 664; Redevelopment Agency v. Superior Court (1991) 228 Cal.App.3d 1487, 1498, 279 Cal.Rptr. 558; California Aviation Council v. County of Amador, supra, 200 Cal.App.3d at pp. 342–343, 246 Cal.Rptr. 110.)
Lack of such notice is negated by proof that Forestry complied with the notice requirements mandated by the FPA. “This [public interest] exception, while understandable from a ‘public policy’ point of view, is clearly not applicable to this case. The objectors do not contend that the County failed to publish appropriate notice of its hearings․ Thus, the public at large (including the objectors) had ample opportunity to participate in the County's decisionmaking process. [Citation.]” (Redevelopment Agency v. Superior Court, supra, 228 Cal.App.3d at p. 1498, 279 Cal.Rptr. 558.)
“[The] broad public interest [legislative] intent [of CEQA] cannot be the sole basis for allowing any California resident with an objection to a public agency's environmental review under CEQA, but without any private interest to vindicate, to avoid the exhaustion doctrine and file a judicial action or proceeding; otherwise, the exhaustion doctrine would be reduced to mere sham, easily avoided by boilerplate allegations.” (Kane v. Redevelopment Agency, supra, 179 Cal.App.3d at pp. 905–906, 224 Cal.Rptr. 922, emphasis added.)
A broad application of the Corte Madera public interest exception, to excuse failure of any member of the public from notifying a public agency of its alleged noncompliance with CEQA before bringing a judicial action, “would undermine the prominent role of public participation in the administrative environmental review process intended in CEQA.” (Id., 179 Cal.App.3d at p. 906, 224 Cal.Rptr. 922, fn. omitted.)
In balancing the “importance of participation in the environmental review process and the doctrine of exhaustion of administrative remedies ․ against the importance of belated participation in the process by a qualified member of the affected public, upon an appropriate showing,” Kane concluded that “a factually unsupported allegation that the party challenging the environmental review process is acting merely as a concerned member of the public, without more, should not qualify that party as ‘a member of the affected public’ under the Corte Madera exception to the exhaustion doctrine.” (179 Cal.App.3d at pp. 907, 908, 224 Cal.Rptr. 922.)
We note that the Supreme Court in Sea & Sage, supra, bypassed ruling on the validity of the Corte Madera public interest exception, finding Sea & Sage inapposite because the public interest litigants therein had notice of and participated in the administrative proceedings. (34 Cal.3d at p. 418, 194 Cal.Rptr. 357, 668 P.2d 664.)
Albion alleged it “performed all conditions precedent to the filing of this Petition by raising each and every issue known to it before [Forestry] ․ during the review process ․” (Emphasis added.) This allegation negates any implicit contention (none is explicitly made) that Louisiana–Pacific or Forestry failed to give notices of intent to apply for the THP's or notices of filing thereof as required by the Forestry Rules.13
The “elaborate scheme of notices” of the FPA and the Forestry Rules establishing the minimum processing time of THP's, “10 [days] for prefiling consideration and 15 [days] after filing,” is constitutionally adequate. (Laupheimer v. State of California, supra, 200 Cal.App.3d at pp. 451–454, 246 Cal.Rptr. 82.) 14 Members of the public, including Albion, through such notice had sufficient opportunity to participate in Forestry's administrative process leading to the granting of the THP's. Thus, no lack of notice of the administrative proceeding exists, a component required to trigger the application of the Corte Madera public interest exception.15
That exception is further unavailing because both the allegations of Albion's first amended petition, above quoted and emphasized, and the administrative record itself directly belie the predicate facts on which application of the Corte Madera exception is posited: failure of a litigant to have exhausted its administrative remedies before later suing to enforce rights allegedly held as a member of the affected public. Albion alleged it did, and relies on the administrative record to support its contention it derives standing under Friends of Mammoth through administrative participation by persons later becoming its members. The latter obviously had notice of the administrative proceedings in which they participated.
Albion, thus, clearly pled and attempted to prove, on the administrative record and before the lower court, that it had derivative notice of the administrative proceedings through its alleged members participating therein. It seeks, however, alternatively to avoid the fatality of a finding that it lacks standing because its Friends of Mammoth claim of derivative notice and participation through others cannot be proven. It pursues this alternative course on this record on the sole ground that, although formed after the administrative proceeding was held, it is nonetheless a “public interest” organization and, for that reason alone, entitled to proceed regardless of whether it directly or derivatively lacked notice or failed to participate in the administrative proceeding. We reject Albion's contention Corte Madera can or should be so interpreted to eliminate the necessity of proof of lack of notice or participation in the administrative proceedings as a trigger to application of the public interest exception that case established. To do so would render “the prominent role of public participation” in CEQA related proceedings, including THP application, absolutely meaningless. (Kane v. Redevelopment Agency, supra, 179 Cal.App.3d at p. 906, 224 Cal.Rptr. 922.)
7. Issues Which May Arise Upon Remand
In the event the trial court should determine that Albion can come within the Friends of Mammoth exception, the proper scope of the trial court's review would become an issue. We, thus, set forth the following principles for the trial court's guidance should it be faced with the question upon remand. (9 Witkin, Cal.Procedure, op. cit. supra, Appeal, § 256, pp. 262–263.)
Although Albion purported to file its petition as a traditional mandamus action under Code of Civil Procedure section 1085, we believe this proceeding must be viewed as an administrative mandamus action under Code of Civil Procedure section 1094.5.16 The latter section is used to review quasi-adjudicatory decisions of a state agency made as the result of proceedings in which a hearing is required to be given and evidence is required to be taken. (Code Civ.Proc., § 1094.5, subd. (a); Keeler v. Superior Court (1956) 46 Cal.2d 596, 598–599, 297 P.2d 967.) While Forestry is not required to hold a contested trial-type hearing prior to approving a THP, the public and various governmental agencies are given the opportunity to comment on the proposed THP and Forestry is obligated to consider the comments which are submitted. (Forestry Rules, § 1037.3.) Other courts have acknowledged that a hearing within the meaning of Code of Civil Procedure section 1094.5 may be a purely documentary proceeding without oral testimony and oral argument. (Cf. Poschman v. Dumke (1973) 31 Cal.App.3d 932, 938, 107 Cal.Rptr. 596, disapproved on other grounds Armistead v. State Personnel Board (1978) 22 Cal.3d 198, 204, fn. 3, 149 Cal.Rptr. 1, 583 P.2d 744; Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334, 136 Cal.Rptr. 421.)
Further, Forestry is required to take and consider evidence before making its decision. The THP itself is evidence. (Cf. Carmel Valley View, Ltd. v. Board of Supervisors (1976) 58 Cal.App.3d 817, 822, 130 Cal.Rptr. 249 [An EIR is evidence.].) Albion's petition, accordingly, must be viewed as an action under Code of Civil Procedure section 1094.5. (See Mahdavi v. Fair Employment Practice Com., supra, 67 Cal.App.3d at p. 336, 136 Cal.Rptr. 421 [“California has entirely rejected the doctrine of ‘the theory of the pleading.’ [Citation.] ‘We are not concerned with technical questions as to the proper designation of an action. It is for us to determine whether the complaint states any cause of action entitling the plaintiff to any relief at law or in equity.’ [Citation.] Thus, in the instant case, it was the court's duty to issue a traditional writ of mandate if warranted by the facts.” Emphasis in original.].)
On remand from this court, the scope of the trial court review of Forestry's administrative decision is limited to whether that administrative body's decision was a prejudicial abuse of its discretion: Such an abuse results if Forestry's decision is not supported by substantial evidence or if Forestry did not proceed as required by law in approving the THP. (Code Civ.Proc., § 1094.5, subds. (b) & (c); Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d at p. 614, 216 Cal.Rptr. 502.) The trial court's review of these question is generally limited to the administrative record and only in rare circumstances can the record be augmented. (Laupheimer v. State of California, supra, 200 Cal.App.3d at pp. 463–464, 246 Cal.Rptr. 82.)
B. The Cause of Action Against DFG
In its second cause of action, Albion claimed DFG had failed to follow its state imposed mandate to protect fish and game, and sought a writ ordering it to comply with the applicable rules regulating THP's. The trial court held Albion could not prevail against DFG because its petition failed to allege facts justifying equitable relief. In effect, the trial court awarded DFG judgment on the pleadings, holding Albion had failed to state a cause of action and that it would be unable to amend its complaint to do so. (See 6 Witkin, Cal.Procedure, op. cit. supra, Proceedings Without Trial, § 262, pp. 563–564; 5 Witkin, op. cit. supra, Pleading, § 945, pp. 379–380.) On appeal, Albion challenges this ruling on two grounds.
First, noting that none of the parties specifically mentioned the validity of the second cause of action during trial, Albion argues it was somehow deprived of notice that the court would be ruling on its validity. We are unpersuaded. While it is true the parties did not specifically discuss the second cause of action on hearing in the trial court, the validity of that cause of action was raised there as an issue in the trial briefs submitted by Albion and the state respondents and has been briefed in this court. Clearly Albion was and is aware that the validity of the second cause of action was being challenged. We see no lack of notice.
Second, Albion maintains the court erred when it held it had failed to state a cause of action against DFG. We disagree on legal and practical grounds. Legally, we note that the Legislature only provided a limited remedy for violations of the FPA. Section 4514.5 authorizes a cause of action against “the board [of forestry] or [Forestry] for a writ of mandate ․ to compel the board or [Forestry] to carry out any duty imposed upon them under the provisions of this chapter.” (Emphasis added.) No cause of action against DFG is authorized.
Where a statute expressly provides a particular remedy or remedies, we must refrain from reading other remedies into it. (Transamerica Mortgage Advisors, Inc. v. Lewis (1979) 444 U.S. 11, 19, 100 S.Ct. 242, 247, 62 L.Ed.2d 146.) Practically, Albion concedes that under the applicable statutory scheme DFG's role with respect to THP's is limited. DFG lacks the power to grant or deny a THP and acts only in an advisory capacity to Forestry, which must make the ultimate decision regarding a harvest plan. Allowing a cause of action against an advisory agency such as DFG, which lacks the power to approve or deny a THP, will do nothing more than engender and prolong needless litigation against a party with no duty or responsibility to issue or deny the THP under litigation.17
The judgment is reversed as to THP 114. In all other respects the judgment is affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Costs are awarded to Albion. The stay previously issued in A048897 will be deemed dissolved when this opinion is final and the remittutur has issued.
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. We join the Sixth District, however, in declining to interpret Bayside Timber Co. as “imply[ing] a procedural due process right in the public generally with respect to environmental matters.” (See Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 455, 246 Cal.Rptr. 82.)
3. In 1989, the Legislature added “regional economic vitality” and “employment” to the “values” to be given consideration under section 4513, subdivision (b); the amendment was not effective when the THP's here involved were approved. (Stats.1989, ch. 1161, § 1, No. 9 West's Cal.Legis.Service, p. 3883.)
4. Section 21080.5, subdivision (d)(3) currently provides, “The plan or other written documentation required by the regulatory program shall: [¶] (i) Include a description of the proposed activity with alternatives to the activity, and mitigation measures to minimize any significant adverse environmental impact. [¶] (ii) Be available for a reasonable time for review and comment by other public agencies and the general public.”
5. Mendocino Environmental Center was removed from this case as a petitioner when a demurrer to the petition was sustained without leave to amend. No appeal therefrom has been taken.
6. See the discussion, post, at page 588.
7. Section 21167 generally sets forth the procedural requirements for bringing an action under CEQA.
8. “Effects of environmental abuse are not contained by political lines; strict rules of standing that might be appropriate in other contexts have no application where broad and long-term effects are involved.” (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 272, 118 Cal.Rptr. 249, 529 P.2d 1017.)
9. Friends of Mammoth was an unincorporated association of resident and nonresident owners of real property in Mono County.
10. We note that, in Leff v. City of Monterey Park, supra, the court held a petitioner seeking to challenge various zoning decisions was entitled to pursue his suit even though he had not participated in the administrative review process. The Leff court based its decision upon Friends of Mammoth, and reasoned that the petitioner had satisfied the intent of the exhaustion doctrine by alleging that his copetitioners had repeatedly appeared before the administrative bodies and had asserted the objections that were the basis for his action. While acknowledging that the petitioner had not filed his action as a class action, as was the case in Friends of Mammoth, the Leff court concluded this was a “distinction without a difference.” (218 Cal.App.3d at pp. 681–682, 267 Cal.Rptr. 343.)Leff 's apparent extension of Friends of Mammoth to a suit by an individual who personally failed to exhaust administrative remedies, because he could have (but did not) file an action on behalf of a class of which he and those who did exhaust their administrative remedies would have been members, is reached without citation of direct authority for its “distinction without a difference” analysis. Leff further failed to analyze the effect of section 21177, subdivision (b) which states, “No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing.”We disagree with Leff to the extent it can be said to provide a rule that, merely because the exact issue sued upon is raised by an individual person in the antecedent CEQA related proceedings, any other person may thereafter ipso facto seek judicial review of that issue without having personally participated in the administrative proceedings.
11. Albion's ability to come within the Friends of Mammoth exception, however, is by no means certain. The exception applies to organizations which were formed subsequent to an administrative decision (See Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d at p. 268, 104 Cal.Rptr. 761, 502 P.2d 1049); but in the court below, Albion admitted that an organization with an identical name existed prior to the approval of the present THP's. Albion maintains that organization disbanded; but as Forestry and DFG point out, Albion filed a challenge to a different THP one year prior to the instant suit. That suit and the present suit were verified by the same person.
12. Although the form letters do contain general references to the “cumulative impact” of the THP's, an analysis of the cumulative impact thereof by Forestry is required regardless of public comment or protest. (Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d at pp. 624–625, 216 Cal.Rptr. 502.) Laupheimer, in discussing the literal lack of “express reference to cumulative impacts or any equivalent concept” in the FPA or Forestry Rules, rationalized EPIC 's requirement of inclusion by Forestry of a “ ‘cumulative impact analysis' ” in THP approvals on the “broader holding that certification [of Forestry programs under the FPA and Forestry Rules] ‘does not except the [timber] industry from adhering to the broad policy goals of CEQA․’ ” (200 Cal.App.3d at pp. 461–462, 246 Cal.Rptr. 82.)
13. Title 14, California Code of Regulations, sections 1032.7, 1032.8, 1032.9, 1037.1.
14. Under the current statutory procedure, the Director of Forestry has 10 days to determine whether a preharvest inspection is necessary (Forestry Rules, § 1037), and 25 days to process the THP (Forestry Rules, § 1037.4; cf. § 4582.7.)
15. Albion, despite Laupheimer, contends these processing times established by the Forestry Rules are so short as to practically deprive the public of notice, resulting in an alleged constitutionally deficient procedure. We agree with the contrary Laupheimer analysis, supra, on this issue. “The primary goal of the [FPA] seems to be the ‘maximum sustained production of high-quality timber products,’ achieved ‘while giving consideration’ to environmental concerns and values․ Although the FPA recognizes the need to conduct timber harvesting operations consistent with environmental concerns, it is a specific statute not only regulating but fostering timber harvesting despite the industry's recognized potential for adverse environmental effects.” (Environmental Protection Information Center, Inc. v. Johnson, supra, 170 Cal.App.3d at p. 616, 216 Cal.Rptr. 502.) The time periods for notice adopted by the Forestry Rules, although constitutionally adequate, are shortened, obviously, to balance submission of environmental concerns of the public regarding THP's against the legislative mandate to efficiently allow continued maximum and sustained production of timber products.
16. EPIC, supra, found it unnecessary to reach this question, holding the administrative record alone showed a prejudicial abuse of discretion dispositive of the appeal. (170 Cal.App.3d at pp. 620–621, 216 Cal.Rptr. 502.)
17. Further, the Legislature, by enacting section 4514.5, had sound reasons to preclude thereby the joinder of all public agencies Forestry is required to consult for “interdisciplinary review” in an action such as this; i.e., DFG, the appropriate California regional water quality control board, the county planning agency. (§ 4582.6, subd. (a).) The final authority for issuance or denial of a THP is that of Forestry alone, not those agencies. Section 4582.6, subdivision (a) imposes no specific requirements on such agencies consulted by Forestry; the statutory duty imposed is that of Forestry, which “shall invite, consider, and respond in writing to comments received from public agencies to which the plan has been transmitted․” Albion argues that the advisory agencies whose comments are sought by Forestry can be forced to appear and defend against broad allegations they somehow failed to perform some mandatory duty in making such comments. This is simply a backhanded way of attempting to prove the responsible agency abused its discretion by acting on insubstantial evidence or failing to proceed according to law by failing to transmit the THP to the agencies specified in section 4582.6, subdivision (a). If true, those facts can be ascertained by a reviewing court from the administrative record.
PETERSON, Associate Justice.
KLINE, P.J., and SMITH, J., concur.