LOUISIANA PACIFIC CORPORATION v. FRIENDS OF THE ENCHANTED MEADOW

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Court of Appeal, First District, Division 2, California.

LOUISIANA–PACIFIC CORPORATION, Plaintiff and Respondent, v. DEPARTMENT OF FORESTRY AND FIRE PROTECTION, Defendant and Respondent, FRIENDS OF THE ENCHANTED MEADOW et al., Real Parties in Interest and Appellants.

No. A057971.

Decided: July 29, 1993

Dennis Cunningham, San Francisco, Joanne Alexandra Moore, Willits, Carolyn Fershtman, Philo, for real parties in interest and appellants. Rawles, Hinkle, Carter, Behnke & Oglesby, Jared G. Carter, John A. Behnke, Cindee F. Mayfield, Ukiah, for plaintiff and respondent.

Real parties in interest Friends of the Enchanted Meadow, an environmentalist organization, and Zia Cattalini, appeal from a judgment of the Mendocino County Superior Court granting a peremptory writ of mandate commanding the California Department of Forestry and Fire Protection (CDF or the Department) to set aside a stop order against timber operations pursuant to two timber harvest plans filed by plaintiff-respondent Louisiana–Pacific Corporation (L–P) which had been approved by the Department in 1989.

The question presented here is whether CDF had the authority to require L–P to file amendments to previously approved timber harvest plans (THPs or plans) in order to conform them to rules and regulations which came into effect between the time the plans became effective and the commencement of logging operations.   We disagree with the lower court's conclusion that CDF lacked such authority and will reverse the judgment below.

BACKGROUND

In March 1989, L–P filed two THPs, plan 1–89–100 MEN (THP 100) and 1–89–145 MEN (THP 145) for conducting timber operations on two adjacent parcels of land in the Albion River watershed area of Mendocino County.   On April 3, 1989 the Director of CDF certified that THP 100 was in conformance with all forestry rules, regulations and state law.   On April 12 a similar determination was made as to THP 145.  (See Pub. Resources Code, § 4582.7 [all further unspecified statutory references are to that code].)

On May 1, 1989 a group known as the Albion River Watershed Protection Association (ARWPA) filed a petition for writ of mandate seeking to set aside approval of THPs 100 and 145, as well as a third THP not at issue on this appeal (Albion River Watershed Protection Assn. v. Department of Forestry & Fire Protection (Super.Ct. Mendocino County, 1989, No. 58116)).  On February 6, 1990 the trial court entered judgment denying ARWPA's petition.   ARWPA appealed to this court and we stayed timber operations pending the outcome of that appeal.

By published decision filed October 18, 1991 (Albion River Watershed Protection Assn. v. Department of Forestry & Fire Protection (Cal.App.);   [deleted upon direction of Supreme Court by order dated January 16, 1992.], hereafter ARWPA v. CDF ) this division affirmed the judgment of the trial court.   We held that the petitioners were barred from pursuing mandate relief against the Department because they had failed to exhaust their administrative remedies.   By order dated November 7, 1991 we denied ARWPA's petition for rehearing and declared that the stay be dissolved upon issuance of the remittitur.1  The stay was dissolved on February 4, 1992.

While ARWPA v. CDF was pending, the Department enacted a series of emergency regulations.   One set of regulations, which required THPs to contain additional information concerning the northern spotted owl, became permanent in April 1991.  (Cal.Code Regs., tit. 14 [hereafter Forestry Rules], §§ 919.9, 919.10.)   Other emergency regulations enacted after approval of the subject THPs and which subsequently became permanent include the requirement of a written analysis of potential cumulative impacts on the environment resulting from harvesting operations (Forestry Rules, §§ 896–912.9 [cumulative impact rules] ) and expanded watercourse and lake protections (id., §§ 916.1–916.10).

Section 4583, which forms the crux of this appeal, provides that “[a] timber harvesting plan shall conform to all standards and rules which are in effect at the time the plan becomes effective.   Except for stocking standards in effect at the time of commencement of timber operations ․ all timber operations shall conform to any changes or modifications of standards and rules made thereafter unless prior to the adoption of such changes or modifications, substantial liabilities for timber operations have been incurred in good faith and in reliance upon the standards in effect at the time the plan became effective and the adherence to such new rules or modifications would cause unreasonable additional expense to the owner or operator.”  (Emphasis added.)

On March 6, 1992 (all further calendar references are to that year) L–P wrote to CDF and asked it to point out any changes in Forestry Rules which occurred since its THPs were approved in 1989 which could affect operations.   By letter dated March 10, the Department enumerated several such changes and advised L–P to “review the THP as if it were being submitted today for conformance to today's rules and make necessary changes.”

On April 14, Friends of the Enchanted Meadow and Zia Cattalini (collectively Friends) filed a petition for writ of mandate in superior court seeking to compel CDF to withdraw its approval of the subject THPs until they were amended to conform to all applicable regulations and statutes, including cumulative impact rules.   Friends' motion for a preliminary injunction was denied on April 20, and that case had not yet been resolved when this appeal was filed.

By letter dated April 21 and signed by Deputy Director for Resource Management Kenneth L. Delfino (hereafter Delfino letter), CDF formally requested that L–P amend both THPs to conform to newly enacted spotted owl and watercourse rules as well as those requiring cumulative impact assessments.   The letter concluded, “You may not operate on these plans until the requested amendments have been acted on by this Department.”

L–P responded that it would disregard the Delfino letter and would resume operations unless CDF issued a stop order (§ 4602.5).   CDF issued a stop order the following morning.   On April 23, L–P commenced this action by filing a petition for writ of mandate, naming CDF as the respondent and Friends as real parties in interest.   The petition sought to command CDF to set aside its stop order, take no further steps to enjoin timber operations and refrain from requiring amendments to the THPs.

Concluding that section 4583 did not require the invalidation of all previously approved timber plans every time new rules or regulations were enacted, the trial court found that CDF had a ministerial duty to withdraw its stop order and directed that the writ be granted.   A peremptory writ of mandate was issued on May 8, enabling L–P to commence logging.   Friends filed this appeal on June 11 and obtained an emergency stay of logging operations from this court the following day (A057931).   With modifications not relevant here, that stay remains in effect.   CDF has not filed a notice of appeal or taken a formal position on this appeal.

APPEAL

I

L–P argues that Friends is barred from pursuing this appeal because it is “essentially the same group of people” who unsuccessfully challenged THPs 100 and 145 in ARWPA v. CDF.   Since petitioners failed to raise the issue of the effect of the new regulations in that case, L–P contends that either res judicata or law of case precludes Friends from raising it here.   If, on the other hand, Friends is deemed to be a separate entity from the losing parties in ARWPA v. CDF, L–P alternatively contends that Friends has no standing to appeal from the judgment below.   None of these arguments has merit.

 Law of the case clearly is inapplicable.   That doctrine states that where a Court of Appeal states a principle or rule necessary to the disposition of the case, it becomes binding throughout all subsequent proceedings in that case.  (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 434, 212 Cal.Rptr. 466, 696 P.2d 1308;  Eldridge v. Burns (1982) 136 Cal.App.3d 907, 920, 186 Cal.Rptr. 784.)   This case is not a “subsequent proceeding” in ARWPA v. CDF.   That action was a separate lawsuit involving different plaintiffs and raising distinctly different issues.   Consequently, the first essential prerequisite to application of law of the case—identity of the litigation—is absent.

 Nor may L–P rely on res judicata or collateral estoppel.   Both must be raised at the earliest opportunity in the trial court by pleadings or evidence, or they are waived.  (7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 198, p. 636;  Code Civ.Proc., § 1908.5;  Dillard v. McKnight (1949) 34 Cal.2d 209, 219, 209 P.2d 387.)   L–P points to no place in the record where it claimed that Friends was barred by res judicata or related principles.   Hence, L–P may not raise this argument for the first time on appeal.  (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874, 242 Cal.Rptr. 184.)

 L–P's challenge to Friends' standing is bewildering.   Friends was brought into this action by L–P who named Friends as real parties in interest.   Under principles of waiver and estoppel, L–P may not name Friends as their opponent in the lawsuit, proceed to judgment against them and then defend the appeal on grounds that Friends has no standing.  (Cf. King v. King (1971) 22 Cal.App.3d 319, 327–328, 99 Cal.Rptr. 200.)

 Even were they not named as parties, Friends would have standing.   “Where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty, the relator need not show that he has any legal or special interest in the result, since it is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced․”  (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 439, 261 Cal.Rptr. 574, 777 P.2d 610, citing Green v. Obledo (1981) 29 Cal.3d 126, 144, 172 Cal.Rptr. 206, 624 P.2d 256, internal quotation marks omitted.)   Under the public right/public duty doctrine, Friends' status as a citizens' group interested in enforcement of the Z'berg–Nejedly Forest Practice Act (§ 4511 et seq. [hereafter the Act] ) is sufficient to give it standing.   This state's citizens have a fundamental interest in the protection of its timberland and natural resources from logging operations which violate the Act.  (Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 950, 142 Cal.Rptr. 86.)  “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.  [Citation.]”  (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 272, 118 Cal.Rptr. 249, 529 P.2d 1017.)   The right of unincorporated associations to participate in public interest-oriented litigation of the kind at bar is now commonly accepted.  (See McKeon v. Hastings College (1986) 185 Cal.App.3d 877, 892–893, 230 Cal.Rptr. 176.)   L–P's challenge to Friends' standing cannot be sustained.

II

This case comes before us after a judgment granting a writ of mandate.   In essence, the writ prohibits CDF from requiring L–P to file and obtain agency approval of amendments to THPs 100 and 145 as a prerequisite to conducting further timber operations.

Section 4514.5 of the Act states that “[a]ny person may commence an action on his own behalf against the board or the department for writ of mandate pursuant to [Code of Civil Procedure section 1084 et seq.] to compel the board or department to carry out any duty imposed upon them under the provisions of this chapter.”   As we stated in T.R.E.E.S. v. Department of Forestry & Fire Protection (1991) 233 Cal.App.3d 1175, 285 Cal.Rptr. 26 (T.R.E.E.S.):  “Mandate lies only ‘to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station․’  (Code Civ.Proc., § 1085.)   Specifically, a petitioner must show (1) a clear, present and usually ministerial duty on the respondent's part plus (2) a clear, present and beneficial right in the petitioner to the performance of that duty.  (Loder v. Municipal Court (1976) 17 Cal.3d 859, 863 [132 Cal.Rptr. 464, 553 P.2d 624].)” (233 Cal.App.3d at pp. 1181–1182, 285 Cal.Rptr. 26, emphasis added.)

Accordingly, the mandate relief sought by L–P was proper only on a showing of a clear, present and ministerial duty on the part of CDF to allow timber harvesting without requiring amendments to the subject THPs in order to bring them into conformance with current Forestry Rules and regulations.

III

Section 4583 of the Act (quoted at pp. 470–471 ante ) provides that a THP shall conform to regulations in effect when the THP becomes effective but that, except under circumstances of hardship reliance, timber operations must conform to any changes made thereafter.

L–P argues that the statute makes a clear, conscious distinction between timber plans and timber operations.   While conceding that any timber operations it conducts must conform to standards and rules adopted after plan approval, L–P claims, in essence, that its THPs become exempt from modification or amendment to conform to those rules once they are approved.   We believe this view to be irreconcilable with both the letter and spirit of the Act.

The Act, together with its implementing Forestry Rules, comprises a comprehensive scheme governing timber operations in this state.   Section 4512 sets forth the Legislature's finding “that the forest resources and timberlands of the state are among the most valuable of the natural resources of the state and that there is great concern throughout the state relating to their utilization, restoration and protection.”  (Subd. (a).)   Accordingly, “it is the policy of this state to encourage prudent and responsible forest resource management calculated to serve the public's need for timber and other forest products, while giving consideration to the public's need for watershed protection, fisheries and wildlife, and recreational opportunities alike in this and future generations.”  (Subd. (c).)

One of the major features of the Act is the requirement that no timber harvest operations be conducted except pursuant to a timber harvest plan.  (§ 4581.)  “The heart of the scheme is its requirement that logging be carried out only in conformance with a timber harvesting plan ․ submitted by the timber owner or operator and approved by the department․”  (T.R.E.E.S., supra, 233 Cal.App.3d 1175, 1180, 285 Cal.Rptr. 26, emphasis added.)

It is clear from the Act that the THP is the guiding instrument governing timber operations.   Departmental approval of the THP is the ultimate safeguard that operations are conducted in conformance with all rules and regulations.  (See § 4582.7.)   The plan serves as a road map to both CDF and to the licensed timber operator as to the manner and scope of logging activity.  (See Forestry Rules, § 1034.)   In fact both the Forestry Rules and the Act prohibit “substantial deviations” from the THP unless amendments “detailing proposed changes from the original plan” are filed and acted upon by the Department.  (§ 4591;  Forestry Rules, § 1039.)   Such amendments may not extend the effective period of the plan.  (Ibid.)

As L–P concedes, the Legislature has made the determination that all timber operations conducted under a THP must conform to any standards and rules enacted after the plan is approved.   In many situations, such compliance will necessitate a major departure from the approved plan.   In such instances, adherence to the mandated principles and goals of the Act requires that CDF have the authority to seek and secure amendments to the plan in order to ensure that no significant discrepancy exists between timber operations and the plan under which they are being conducted.   Indeed, the amendment procedure offers the only logical mechanism for bringing the THP and timber harvest operations into concordance and avoiding the Act's “substantial deviation” prohibition.2  As we noted in T.R.E.E.S., while the department is under no duty to compel plan amendments, the statutory scheme clearly contemplates that it have discretion to either suggest or require them.   (T.R.E.E.S., supra, 233 Cal.App.3d 1175, 1182, 285 Cal.Rptr. 26.)

Support for our conclusion is found in the language of section 4583.   That section contains an exemption from the requirement that operations be conducted in conformance with changes in the rules where “prior to the adoption of such changes or modifications, substantial liabilities for timber operations have been incurred in good faith and in reliance upon the standards in effect at the time the plan became effective and the adherence to such new rules or modifications would cause unreasonable additional expense to the owner or operator.”  (Emphasis added.)   Thus, the reliance which triggers the hardship exemption is reliance on rules which existed prior to the effective date of the THP.   This suggests a recognition by the Legislature that rule changes and additions occurring after the plan is approved might well necessitate changes in the plan, thus causing hardship to operators who had incurred expenses or liabilities in obtaining approval of plans based on the old rules.

L–P also suggests a distinction between so-called “plan rules” and “operational rules.”   While conceding that it must obey subsequently adopted operational rules, L–P argues that section 4583 insulates it from compliance with changes in plan rules.   We disagree that CDF's authority to require plan amendments turns on this unjustified distinction.

Section 4583, while clearly drawing a distinction between operations and plans, draws no parallel distinction between “plan rules” and “operational rules,” and understandably so.   As CDF emphasized in the court below, the Forestry Rules are not always susceptible to such facile classification.   Some rules are easily identified as pure “plan rules,” such as those which require all THPs to contain a map showing the location of logging roads.  (Forestry Rules, § 963.1, subd. (a).)  Others clearly govern only operations, such as those prescribing maximum distances between waterbreaks.  (Forestry Rules, 914.6, subd. (c).)  However, in a significant number of instances, the rules contain both elements.   For example, the cumulative impact rules require the gathering of certain data and information.  (Forestry Rules, §§ 913, 914, 916, 923.)   Depending on what such data reveals, modifications might have to be made to timber harvesting procedures, which would then need to be reflected in the plan.   In sum, neither the rules nor the Act support the concept that CDF's power to require amendments should turn upon a plan rule/operational rule distinction, nor do we believe that such a test would provide a workable standard.

 We conclude that where new rules or rule revisions are adopted after a timber harvest plan becomes effective, CDF has discretion to require amendments to the plan to ensure that no substantial deviation occurs between the plan and timber operations.   While necessarily broad, this discretion “does not extend ․ to arbitrary, capricious and palpably unreasonable actions.  [Citation.]”  (County of Sacramento v. Loeb (1984) 160 Cal.App.3d 446, 453, 206 Cal.Rptr. 626.)   Accordingly, a timber operator which is ordered to amend the plan may comply with the Department's order, apply for a hardship exemption based upon reliance on former rules (§ 4583), or petition for writ of mandate under section 4514.5 to set aside the Department's action.

 As in all mandate cases, the petitioner ultimately bears the burden of proving (Evid.Code, § 500) that CDF had a clear, present and ministerial duty to allow timber harvesting without requiring the proposed amendment.   A petitioner could carry that burden by showing (1) that CDF abused its discretion, i.e., acted unreasonably in determining that the amendment is needed to conform the plan to the new rules or rule changes, or (2) that the proposed amendment is not required as a matter of law under the statutory scheme.3

IV

 L–P contends that application of section 4583 to require changes to a previously approved THP would constitute retroactive application of forestry regulations, which is disfavored under the law.   However, the Legislature may give laws retrospective application where it clearly evinces an intent to do so and no constitutional or vested rights are infringed.  (Southern Cal. Gas Co. v. Public Utilities Com. (1985) 38 Cal.3d 64, 67, 211 Cal.Rptr. 99, 695 P.2d 186;  see also In re Cindy B. (1987) 192 Cal.App.3d 771, 779, 237 Cal.Rptr. 677.)   An intent to apply Forestry Rules retrospectively is evident from the plain language of section 4583 and there is no credible claim that such application infringes on any constitutional or vested right.

We also note that the presumption of prospectivity in legislation is founded on the notion that reasonable reliance on existing legal principles should not be defeated without compelling reasons and a clear intent to override such reliance.  (See Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1214, 246 Cal.Rptr. 629, 753 P.2d 585.)   Section 4583 wisely anticipates the possibility of economic hardship resulting from reliance on previous standards and rules and ameliorates such consequences by providing for an exemption in cases of substantial liability.

V

 In this case L–P did not meet its burden of showing that CDF had a ministerial duty to allow operations without amending the plans.   Instead it argued, and the trial court ruled, that CDF lacked any authority to require L–P to amend its plans once they had been approved.   As we have observed however, section 4583 vests discretion in CDF to require plan amendments if it reasonably determines that they are necessary to avoid a substantial deviation between timber operations (which must comply with new rules) and approved plans.   Since it is fundamental that mandate cannot be used to control the discretion vested in an administrative officer or agency (see 8 Witkin, Cal. Procedure, op. cit. supra, Extraordinary Writs, § 80, p. 720, and cases cited therein), the trial court exceeded its power in issuing a blanket order enjoining CDF from requiring the plan amendments outlined in the Delfino letter.

DISPOSITION

The judgment granting writ of mandate is reversed.

FOOTNOTES

1.   On January 16, 1992, the California Supreme Court denied review in ARWPA v. CDF and directed that the opinion not be published in the official reports.

2.   Notably the Act prohibits only substantial deviations not all deviations.   Section 4591.1 and Forestry Rules section 1040 allow for minor deviations to be undertaken without the submission of a plan amendment as long as such deviations are reported to the Department.

3.   One example where an amendment would not be required as a matter of law would be the adoption of a “pure” plan rule or rule change having absolutely no effect on operations (see discussion, p. 474, ante ).  The adoption of a such a rule could not create a “substantial deviation” between an existing THP and timber operations and therefore the Department would exceed its authority if it insisted upon an amendment solely to conform to such a rule.

SMITH, Associate Justice.

KLINE, P.J., and PHELAN, J., concur.