Helen LIBEU et al., Plaintiffs and Appellants, v. Ross JOHNSON et al., Defendants and Respondents.
These consolidated appeals involve prospective logging operations on two sites on the Sonoma Coast. In A035144, Helen Libeu and the Citizens for Watershed Protection and Best Logging Practices (Libeu) appeal from an order denying a petition for writ of mandate challenging approval by the California Department of Forestry (CDF) of the timber harvest plans submitted by the timberowner, respondent Louisiana-Pacific Corporation (LP). In the consolidated action A034872, Libeu appeals from a pretrial order conditioning a preliminary injunction against logging on the posting of a $35,000 bond rather than the nominal undertaking often allowed in environmental cases. The bond requirement was rendered moot by this court's writ of supersedeas which stayed logging pending the outcome of these appeals; we nevertheless review the issue at the request of the parties to provide guidance for the bench and bar in future environmental litigation.
We conclude that the timber harvest plans do not satisfy the requirements of the California Environmental Quality Act (Pub.Resources Code, § 21000 et seq. [“CEQA”] ). With respect to both plans, the CDF Director rendered a deficient Official Response to the public's significant environmental concerns, particularly regarding the cumulative impact of past, present and future logging. The deficiencies justify reversal of the order denying the petition for writ of mandate. With regard to the bond issue, we conclude that California trial courts should follow the federal practice of requiring no or a nominal bond when there are grounds to issue a preliminary injunction preserving the environmental status quo pending trial on the merits.
The two timber harvest plans (THPs) were approved by CDF through the process established by the Forest Practice Act (Pub.Resources Code, § 4511 et seq. [Act] ) and its implementing regulations, the Forestry Rules (see Cal.Admin.Code, tit. 14, § 896 et seq. [hereafter “Forestry Rules” or “Rules”] ).1 The Act and Rules are designed to substantially reduce the significant adverse environmental effects of timber harvesting (§§ 4512, 4513; Rules, § 897, subd. (a).) The THP is a “functional equivalent” of an environmental impact report and must comply with the substantive standards of CEQA. (§ 21080.5; Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 216 Cal.Rptr. 502 [hereafter “EPIC ”] ).
THP 1–86–37SON (“Freezeout Creek”) and THP 1–86–46SON (“Kolmer Gulch”) both involve the harvesting of second-growth redwood and Douglas fir by the shelterwood method of silviculture. The “shelterwood” method involves the removal of the “shelter” of older trees in order to “open the [timber] stand sufficiently to stimulate natural regeneration” of timber or to “enable successful development of planted restocked trees.” (See Rules, § 913.1, subd. (b).)
The Freezeout Creek THP contemplates the logging of all merchantable trees from 523 acres of the 1,800–acre Freezeout Creek watershed. The steep-sloped coastal watershed has been logged twice before, in 1981 and 1983. Notwithstanding a low-moderate erosion hazard rating, Freezeout Creek has suffered from serious erosion and increased sedimentation of the stream bed. The creek is home to a spawning and nursery habitat for steelhead trout and coho (silver) salmon. The habitat is located immediately downstream from the plan area where gravel and sand move through the stream system as “bed load materials”. Additional bed load materials, fed into the stream system as erosion runoff from the proposed logging operations, would cause a further decrease in the quality of the pool habitat; excessive sedimentation would interfere with the ability of the trout and salmon to successfully spawn in the stream bed.
The Kolmer Gulch THP involves the harvest of all merchantable timber on 380 acres in the upper reaches of Kolmer Gulch. The plan area is approximately one mile northeast of the Fort Ross State Historic Park, although the only portions of the area visible to the public are those along the higher ridge tops. Kolmer Gulch is situated entirely within a Coastal Zone Special Treatment Area (see Rules, § 921 et seq.), which subjects timber harvesting to additional rules to preserve the area's special natural resources and scenic qualities. In addition, the plan area has been designated by the Sonoma County Local Coastal Plan as both a sanctuary-preservation and conservation area “due to the particular environmental sensitivity of the watershed.”
Kolmer Gulch has been heavily logged in the past, apparently in the 1950's and 1960's, and the record suggests that additional active THPs for portions of the area were approved in 1985. The Gulch is evidently steeper than Freezeout Creek, containing many slopes of 70–90 percent. The THP contemplates logging on unstable areas and on areas of an “extreme” erosion hazard rating. Like Freezeout Creek, Kolmer Gulch is a habitat for coho salmon and steelhead trout.
The THPs were prepared and submitted on behalf of LP by a registered professional forester. (Rules, § 1032.7.) The plans were then reviewed by an interdisciplinary review team, comprised of representatives of the CDF, the Department of Fish and Game, and other disciplines including engineering geology, archaeology and water quality. (See Rules, § 1037.5, subd. (a).) In both cases the review team conducted a preharvest inspection (Rules, § 1037); team members, including a CDF area forester, submitted detailed memoranda concerning aspects of the plan falling under their respective areas of expertise.
Several of the memoranda include proposed measures to mitigate environmental damage. One forester expressed the opinion that Freezeout Creek would experience high sediment levels during high flows, even if logging wasn't performed. A downstream water company informed the review team of silt and sediment caused by past logging and the area's heavy storms. The company reported difficulty meeting the maximum turbidity standard set by the Environmental Protection Agency. The CDF area forester and representatives of Fish and Game and Water Quality noted the sediment problem but concluded that limitations on winter operations and on logging on unstable areas, plus other erosion control measures, would be sufficient to mitigate any adverse impact on the watercourse. The Fish and Game review team member proposed mitigating measures regarding the spawning grounds, including a ban on winter operations in the adjacent area and an agreement to not fell timber across the creek.
At least one member of the review team observed that trees on the LP land just across the Creek from the plan area were marked in a manner suggesting LP intended to conduct future logging operations, which might increase the risk of sediment accumulation. The possibility of future logging was noted and explained as discussed further below.
Similar measures to mitigate potential environmental damage were proposed regarding Kolmer Gulch. The possible hazard of erosion from steep-sloped logging was addressed by measures such as the use of existing skid trails rather than the building of new ones. The Fish and Game inspection focused on osprey nests in the plan area, not on the fish habitat; the review team, however, suggested measures to mitigate stream damage.
In both cases the reports and memoranda of the review team, along with the team members' comments and suggestions of mitigating measures, were submitted to LP for its review and response. The proposed THPs were also made available for the requisite public review and comment. (See EPIC, supra, at p. 611, 216 Cal.Rptr. 502.) Virtually all of the review teams' substantial proposals for mitigation were adopted by LP and incorporated in both THPs. The review teams' reports, LP's responses, and public comment were received by the Director of CDF, who concluded that the THPs, as amended, mitigated all adverse effects on the environment and conformed to the Forest Practice Act and Rules. (Rules, § 897.) In both cases the Director specifically concluded that the measures proposed to minimize erosion damage afforded adequate mitigation.
Within 10 days of the approval decision, the Director issued the requisite “Official Response” to significant environmental issues raised by the public during the THP review period. (See Rules, § 1037.8; § 21080.5(d)(2)(ii).) With regard to both the Freezeout Creek and Kolmer Gulch THPs, the Director's response found no significant question of sufficient magnitude to overcome the approval of the THPs.
Libeu challenged the Director's approval decision by petitioning the superior court for a writ of mandate. Libeu contended, inter alia, that the official responses were inadequate, particularly with respect to the public's concern over the cumulative impacts of the logging operations. The superior court concluded the official responses were adequate, rejected the remaining contentions, and denied the petition.
Libeu contends that the Director's responses are insufficient and require invalidation of the approval decision. Our review of this contention is governed by the same standard of review as was the trial court's: whether the Director abused his discretion either by approving the THPs without proceeding in the manner required by law, or by rendering an approval decision not supported by substantial evidence. (§§ 21168, 21168.5; EPIC, supra, at p. 614, 216 Cal.Rptr. 502.) Libeu claims the Director did not proceed in the manner required by law because, in each case, he did not provide adequate good-faith, reasoned responses to significant environmental objections raised during the review process.
Every decision to approve a THP must be accompanied by the Director's official response to the significant environmental points raised by the public. (Rules §§ 1037.7, 1037.8, 1059; EPIC, supra, at pp. 611–612, 216 Cal.Rptr. 502.) The response is neither a mere technical requirement nor a simple pro forma extension of courtesy to the inquiring public. Rather, the Director's official response is an essential feedback mechanism for the public's informed involvement in environmental decisionmaking. (See EPIC, supra, at p. 623, 216 Cal.Rptr. 502; see also id. at p. 627, 216 Cal.Rptr. 502.) The official response is one component of the THP regulatory program which earns it the status of functional equivalence to the environmental impact report. (See § 21080.5, subd. (d)(2)(iv).)
Because of the crucial element of informed public involvement, the insufficiency of the Director's official response may be a ground for invalidating a THP. (EPIC, supra, at pp. 623, 627, 216 Cal.Rptr. 502; Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 952–955, 142 Cal.Rptr. 86.) Gallegos defines the legal standard of sufficiency of a Director's response. Adapting the analogous criteria governing responses to public objections in the EIR process, Gallegos ruled that the Director “need not respond to every comment raised in the course of the review and consultation process, but ․ must specifically respond to the most significant environmental questions raised in opposition to the project.” (76 Cal.App.3d at p. 954, 142 Cal.Rptr. 86; see People v. County of Kern (1974) 39 Cal.App.3d 830, 115 Cal.Rptr. 67.) The responses “must particularly set forth in detail the reasons why the particular comments and objections were rejected and why the [Director] considered the development of the project to be of overriding importance.” (76 Cal.App.3d at p. 954, 142 Cal.Rptr. 86.)
As we noted in EPIC, “the purpose of this requirement is to provide the public with a good faith, reasoned analysis why a specific comment or objection was not accepted. For this reason, conclusory responses unsupported by empirical information, scientific authorities or explanatory information have been held insufficient to satisfy the requirement of a meaningful, reasoned response: conclusory responses fail to crystallize issues, and afford no basis for a comparison of the problems caused by the project and the difficulties involved in the alternatives.” (170 Cal.App.3d at p. 628, 216 Cal.Rptr. 502 [citations omitted].)
Libeu's challenge focuses on the Director's responses to questions raised concerning the cumulative impact of logging operations on both Freezeout Creek and Kolmer Gulch. As we have previously held, a THP is governed by CEQA's requirement of assessing the cumulative impact of a proposed environmental project. (EPIC, supra, at p. 625, 216 Cal.Rptr. 502; § 21083, subd. (b); Cal.Admin.Code, tit. 14, §§ 15130, 15355.) To satisfy this requirement a THP must assess the cumulative impact of past, present and future logging projects which may effect the area of the harvest and its environs. (EPIC, supra, at p. 625, 216 Cal.Rptr. 502.) The administrative guidelines enacted to implement CEQA define cumulative impact as “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.” (Cal.Admin.Code, tit. 14, § 15355.) We have described the concept as an assessment of “cumulative damage as a whole greater than the sum of its parts.” (EPIC, supra, at p. 625, 216 Cal.Rptr. 502.)
Both the public and members of the review team raised substantial questions concerning the issue of cumulative impact of logging operations in Freezeout Creek. The area had been logged in 1981 and 1983. The THP review process revealed a suggestion that LP intended to log the area across the creek from the area of the plan. The review team member representing the Water Quality Control Board observed that trees had been flagged on the other side of the creek with blue flagging for trees within the stream protection zone and yellow flagging for proposed skid roads. A memorandum by CDF's area forester Charles Joiner states that “Louisiana-Pacific has told the Department [of Forestry] that they intend to put all of their Sonoma County properties under active THP's before the end of 1986,” and that “[t]his plan is the first of many that will essentially put this whole drainage under active or at least approved plans.”
At the hearing on the mandate petition LP's registered professional forester testified that LP did “not have any plan at the present time” to log the cross-stream site, and that the trees had been flagged only “to mark the stream courses.” The forester did admit, however, that “our lands are for timber production” and “we do anticipate sometime in the future to harvest timber.” This latter remark is ambiguous, and may well refer to the site in question. While the trial court found there was “no evidence” LP had “specified plans to harvest the north side of Freezeout creek,” the finding is not inconsistent with the indications of a general plan to maximize logging in the general area. While LP denied the area forester's allegation that the company intended to log all its Sonoma properties, it cannot be overlooked that LP's own representative testified below to a general intent to harvest timber “sometime in the future,” consistent with the company's business objectives.
Additional concerns were raised involving water quality. Both the review team and the Director concluded that Freezeout Creek could stand no additional sediment. The Director noted that the downstream water company “has been impacted from past natural and man's activities in the watershed. The addition of significant amounts of sediment to this stream could cause a significant adverse impact on the downstream beneficial uses of the watercourse.” Although the Director approved the THP after concluding that the proposed mitigation measures would prevent any further sedimentation from logging operations, his decision remained subject to the public's right to raise significant environmental questions, and to have them fully answered, notwithstanding his conclusion. Otherwise the requirement of public input and the public's role in monitoring environmental decisionmaking would be a passive exercise, forced to accept an official conclusion without analysis or probing review.
The Director's response to the question of cumulative impact indicates that CDF has made a serious attempt to assess cumulative impact in all logging operations. This appears to be a response to our decision in EPIC, in which we clarified that the substantive standards of CEQA applied to THP approvals. CDF has drawn up a lengthy and evidently thorough “checklist” of various factors to be considered in the assessment of cumulative impact. We commend CDF for this laudable effort, but must conclude that in this specific case the assessment of cumulative impact, as conveyed to the California public by the Director's response, fell short of the standard for sufficiency.
This is particularly true regarding the cumulative impact of future logging. The Director's response recited that “the other side of Freezeout Creek could be logged again as merchantable trees remain on it. At present there is no plan submitted for that area. If that plan were submitted, there could be significant adverse effects and the Department would address those problems at that time.” This approach still reflects the serial, one-plan-at-a-time approach to cumulative impact which this court condemned in EPIC. (170 Cal.App.3d at pp. 624–625, 216 Cal.Rptr. 502.) It is simply not sufficient to postpone consideration of future logging when such operations directly impact the area of the present THP and are far less than speculative. CEQA requires that the cumulative impact assessment include “reasonably foreseeable probable future projects.” (Guidelines § 15023.5; see § 21083, subd. (b).)
LP and CDF do not dispute this point but contend that under the facts LP's project is not “reasonably foreseeable” but is speculative and remote. The trial court agreed with this classification, relying primarily on San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 198 Cal.Rptr. 634. In our view, Reasonable Growth actually supports rather than undermines Libeu's position. That decision holds that projects “under environmental review,” i.e., which had been submitted to the city's Office of Environmental Review for initial study, were reasonably foreseeable for purposes of cumulative impact analysis. These projects had not yet reached the stage where an EIR had been prepared; similarly, a reasonably foreseeable timber harvest should be included in the impact assessment even if no formal THP is prepared.
The trial court and respondents have adopted the view that the absence of a formal plan is determinative; this approach is simply not consistent with CEQA. Given the testimony of LP's representative that future logging is generally intended, we must conclude future logging is not remote, and the cumulative impact on the plan area must be considered and explained fully to the concerned public. A lesser effort would simply fail to ensure a valid response to the public's significant environmental claims.
We thus conclude the director's official response is deficient for failure to provide adequate information concerning the cumulative impact of future logging, indeed to even address the issue of future logging on the other side of the stream. We reach a similar conclusion with respect to the cumulative impact of logging on the water quality of Freezeout Creek. In its general discussion of cumulative impact, the Director's response notes the creek's extensive erosion and maximum safe bedload, and describes the adverse impact on the water supply from “past natural and man's activities.” In responding to a question on soil erosion, the Director states there “is no evidence that Freezeout Creek has been adversely affected by past logging activities in the watershed.” Not only does this comment appear in direct contradiction to the clear evidence of stream damage acknowledged by the Director on the next page of the response, the comment is in contradiction to other information in the same paragraph which effectively admits that road building from past logging has caused a majority of the erosion problems. Elsewhere the Director recites that slides and debris in the creek are attributable to storms, which again is a seeming contradiction.
All told the responses in this area are confusing, contradictory, and provide little hard data or clear information for the benefit of the public. Coupled with the cumulative impact problem discussed above, the conclusory responses render the Director's official response in violation of applicable CEQA provisions. The abuse of discretion cannot be considered other than prejudicial (EPIC, supra, 170 Cal.App.3d at pp. 627–630, 216 Cal.Rptr. 502; Gallegos, supra, 76 Cal.App.3d at pp. 952–955, 142 Cal.Rptr. 86), and requires invalidation of the THP. CDF may then return to the evaluation process and ensure that an adequate informational role is afforded to the public.
With regard to Kolmer Gulch, Libeu's challenge to the Director's response again focuses on the adequacy of the cumulative impact discussion. We are constrained to conclude the Director's response to the cumulative impact concerns is inadequate. The response begins with commentary on the meaning of the term “cumulative impact” which demonstrates a misunderstanding of the concept, which interestingly is not found in the THP for Freezeout Creek. The response proceeds to discuss the cumulative impact checklist in vague, conclusory terms, providing no specific information on Kolmer Gulch. Under the topic of future logging the response states “predicting the future is a big fat guess. To limit the operation on a guess seems rather arbitrary at best.” The response then makes the glib statement that “No future operations can reasonably be foreseen on this watershed.” With regard to past logging, the response makes the conclusory observation that the two past THPs from 1985 “were both reviewed during the review of this THP,” but no specific information is afforded the public.
Given CEQA's requirement of an adequate, informational and nonconclusory official response, we cannot conclude the Director's responses sufficiently answer the concerned public's questions concerning both the Freezeout Creek and Kolmer Gulch THPs. Logging operations, particularly those in a steep-sloped area which has experienced prior water quality damage from erosion, must be carefully reviewed to ensure protection of the environment which our Legislature intended for Californians. (§ 21000, subds. (a), (g); see EPIC, supra, 170 Cal.App.3d at p. 615, 216 Cal.Rptr. 502.) The Director's responses were inadequate, and the trial court should have issued the writ of mandate to set their approval aside.2
We turn now to the issue of the preliminary injunction bond. As noted in the introductory discussion, the trial court granted Libeu a preliminary injunction pending trial but conditioned the injunction upon a bond of $35,000. The bond was designed to defray potential economic harm to LP caused by logging delays, which LP estimated were well in excess of the bond amount. Libeu contended they could not afford a bond in that amount, and moved that the bond be reduced to a nominal amount. The trial court refused reduction, and Libeu appealed from the bond provision of the order granting the preliminary injunction.
Code of Civil Procedure section 529 governs injunction bonding, and provides that when an injunction is granted “the court ․ must require an undertaking on the part of the applicant to the effect that the applicant will pay to the party enjoined such damages, not exceeding an amount to be specified, as the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” (Emphasis added.) LP contends this provision is mandatory, and in turn governed by the Bond and Undertaking Law of 1982 (Code Civ.Proc., §§ 995.010 et seq.), which relieves a litigant of the mandatory bond requirement only in cases of indigency. (Code Civ.Proc., § 995.240.) The trial court found that Libeu was not indigent and refused to permit the posting of a bond only nominally related to LP's expected economic harm.
Libeu maintains that a substantial bond should not be required of a litigant seeking to enforce environmental protections. Libeu contends that a litigant who is not indigent may nevertheless be unable to afford a substantial bond, and thus would be effectively precluded from obtaining injunctive relief to preserve the environmental status quo pending the resolution of their legal challenge. Libeu points to a series of federal decisions which have repeatedly held that only a nominal injunction bond should be imposed in environmental litigation, even where an enjoined defendant may suffer substantial economic loss as a result of the injunction. (See, e.g., People ex rel. Van de Kamp v. Tahoe Regional Plan (9th Cir.1985) 766 F.2d 1319; Friends of the Earth, Inc. v. Brinegar (9th Cir.1975) 518 F.2d 322; Natural Resources Defense Council, Inc. v. Morton (D.D.C. 1971) 337 F.Supp. 167, affd. on other grounds (D.C.Cir.1972) 458 F.2d 827; Wilderness Society v. Hickel (D.D.C.1970) 325 F.Supp. 422, sub. opn. revd. sub. nom. Wilderness Society v. Morton (D.C.Cir.1973) 479 F.2d 842; Sierra Club v. Froehlke (S.D.Tex.1971) 359 F.Supp. 1289, revd. on other grounds sub. nom. Sierra Club v. Callaway (5th Cir.1974) 499 F.2d 982; State of Ala. ex rel. Baxley v. Corps of Engineers (N.D.Ala.1976) 411 F.Supp. 1261. See also Henson & Gray, Injunction Bonding in Environmental Litigation (1979) 19 Santa Clara L.Rev. 541.)
The federal authority is based on a perception that where a court is inclined to grant an injunction against environmental damage, the public interest in preservation of the environment pending hearing on the merits is more important than the defendant's economic interest. Stated another way, the damage to the environment, often irreversible, is greater than the damage to the pocketbook. (See 337 F.Supp. at p. 169; 766 F.2d at pp. 1325–1326; Henson & Gray, supra, at p. 569.) Where the plaintiff has established a probability of success on the merits and the entitlement to injunctive relief, the federal courts conclude that to require a plaintiff, often a relatively impecunious, nonprofit public interest group, to post a substantial bond would “effectively deny access to judicial review” or “close the courthouse door in public interest litigation by imposing a burdensome security requirement on plaintiffs who otherwise have standing” to raise an environmental challenge. (766 F.2d at p. 1325; 411 F.Supp. at p. 1276.) The federal courts have justified injunctions against multimillion-dollar projects on nominal bonds as low as $100 and $1. A leading commentary on the subject of injunction bonding concludes that substantial bonds would discourage legitimate environmental actions brought by public interest groups and thus increase environmental degradation. (Henson & Gray, supra, at pp. 562–565.)
The federal rule of nominal injunction bonding in environmental litigation is a sound one. We conclude nothing in the pertinent California statutes forbids application of the rule.
LP contends that the language of Code of Civil Procedure section 529 is mandatory, and precludes the exercise of a trial court's discretion to fix a bond amount in a nominal sum or any amount less than the projected economic damage to the enjoined defendant. LP argues further the Legislature paid considerable attention to bonding questions when it enacted the 1982 bond law, which provides only indigency as an exemption to the requirement of an injunction bond. These arguments are not unreasonable, but must fail given the common law power of a trial court to waive even a “mandatory” injunction bond in appropriate cases.
Several years before the 1982 bond statutes, the California Supreme court ruled that section 529's apparent mandatory language allowed for some trial court discretion. In Conover v. Hall (1974) 11 Cal.3d 842, 114 Cal.Rptr. 642, 523 P.2d 682, the court ruled that the statute did not defeat a trial court's “common law discretion” to waive the requirement of an injunction bond in the case of an indigent litigant. (Id. at pp. 850–853, 114 Cal.Rptr. 642, 523 P.2d 682.) The indigency provision of the 1982 bond law, far from being an attempt to close the door opened by Conover, was an admission of the validity of the common-law. The provision “codifies the common law authority of the courts. (See, e.g., Conover v. Hall [Citation omitted].)” Recommendation Relating to Statutory Bonds and Undertakings (Nov.1981) 16 Cal.Law Revision Com.Rep. (1982) p. 518 [Comment to section 995.240]. The Law Revision Commission notes further that the new bond provisions “are not exclusive, but are supplemented by the general provisions governing all bonds and undertakings, both common-law and statutory.” (Id. at p. 513 [Comment to section 995.020].)
Both section 529 and the Bond and Undertaking Law of 1982 permit a common-law waiver of an injunction bond. One area for such waivers was indigency, as recognized in Conover; another is in the area of nominal bonding to preserve the environmental status quo between preliminary injunction and trial. For the salutary reasons expressed in the authorities cited above, nominal bonding serves a legitimate public purpose. In many cases it may be essential to further the Legislature's goal of enforcement of CEQA by private persons and organizations, many of whom lack the financial wherewithal to post a substantial undertaking. “[S]pecial precautions to ensure access to the courts must be taken where Congress has provided for private enforcement of a statute,” i.e., the National Environmental Policy Act. (People ex rel. Van de Kamp v. Tahoe Regional Plan, supra, 766 F.2d at pp. 1325–1326; Friends of the Earth, Inc. v. Brinegar, supra, 518 F.2d at p. 323.) CEQA is closely patterned on its federal counterpart; the federal courts' reasoning is every bit as compelling on the state level. (See Henson & Gray, supra, at p. 564.) LP has presented no compelling authority to the contrary. We therefore conclude that nominal injunction bonding is not only permitted by California law but should be the rule, not the exception, in environmental cases.
Of course, an enjoined defendant's economic interest is often substantial and should never be lightly disregarded simply because an environmental plaintiff brings a challenge. We are satisfied that the adoption of the federal rule would not be unfair to the defendant, for a nominal bond would only be imposed after a trial court has concluded the plaintiff is entitled to a preliminary injunction. Thus, defendants need not fear an injunction based on frivolous lawsuits or actions brought from an excess of zeal but with little legal grounds. Nominal bonding serves a necessary purpose of ensuring court access for prima facie meritorious environmental lawsuits; as such it must generally supersede a defendant's temporary economic loss, which in some cases may be anticipated, may be passed on as a cost of doing business, and may in fact be significantly less than the cost of undoing a project not enjoined but later found impermissible after trial on the merits. (Henson & Gray, supra, at pp. 558–559.)
We do not in this case attempt to fashion a bright line rule governing a trial court's common-law discretionary power to impose a nominal bond. We hold merely that a trial court retains that power, and should employ it in environmental cases for the reasons expressed above, without limitation by the nonindigency of the plaintiff. We also do not attempt, as we are asked, to fashion guidelines for an appellate court's use of its power to issue a writ of supersedeas on appeal from an injunction order, without regard to bond requirements set by the trial court. (See Code Civ.Proc., § 923.) The issuance of a writ of supersedeas is done under settled rules of law as applied to the facts of a specific case, and the Legislature has determined that the power to issue the writ is not limited by the ordinary rules of undertaking on appeal. (Ibid.)
The order denying the petition for writ of mandate is reversed. The stay of logging operations heretofore imposed by writ of supersedeas shall remain in effect pending finality of this opinion. Appellants shall recover costs.
1. All further statutory citations are to the Public Resources Code unless otherwise indicated.
2. In light of our disposition of this matter we need not reach the remaining issues raised by Libeu.
KING, Associate Justice.
LOW, P.J., and HANING, J., concur.