EBBETTS PASS FOREST WATCH v. SIERRA PACIFIC INDUSTRIES (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTS AND PROCEEDINGS

Plaintiffs sued the California Department of Forestry and Fire Protection (CDF), challenging its approval of a plan submitted by Sierra Pacific Industries (Sierra Pacific or SPI) to harvest 567 acres of timber located in Tuolumne County.   Plaintiffs lost in the trial court and appealed.

This is the third appeal in which plaintiffs have challenged a Sierra Pacific timber harvest plan that proposes to clear cut plots (usually 20 acres or less) and repopulate them with even-aged tree plantations.  (See Ebbetts Pass Forest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936 (Ebbetts Pass II );  Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331 (Ebbetts Pass I ).)   Controversies regarding whether the even-aged tree plantations adversely impact wildlife species that favor old growth forest have been raised in all three appeals.   Plaintiffs argue that the plantations will reduce biodiversity and, because the plantations are intended to be harvested every 50 to 80 years, they will not produce large decadent trees essential to some wildlife species.   In contrast, Sierra Pacific asserts, and CDF agrees, that Sierra Pacific's even-aged plantations and other management practices will improve wildlife habitat.

We conclude that CDF's findings of fact are supported by substantial evidence, which includes the information its personnel obtained during the preharvest inspection of the site.   Also, we reject plaintiffs' contentions that Sierra Pacific and CDF did not comply with certain provisions in California's Forest Practice Rules ¹ concerning late seral forest.   Lastly, other disclosures challenged by plaintiffs are legally adequate because they provide sufficient detail and substance to inform the public about the economic and environmental values of the elected and appointed officials involved and, therefore, enable members of the public who disagree with those values to act accordingly on election day.

The judgment will be affirmed.

The petition for writ of mandate alleges that plaintiff Ebbetts Pass Forest Watch is a California nonprofit public benefit corporation founded for the purpose of advocating ecological sustainability consistent with social well being.   Its particular concern is the health of forests and watersheds surrounding the Ebbetts Pass corridor.   The petition also alleges that plaintiff Central Sierra Environmental Resource Center is a California nonprofit public benefit corporation founded for the purpose of advocating the use of sustainable environmental practices in the central region of the Sierra Nevada.   For convenience, Ebbetts Pass Forest Watch and Central Sierra Environmental Resource Center are referred to in this opinion collectively as Ebbetts Pass.

Defendant CDF is an agency of the State of California and is authorized by statute to engage in the management, protection, and reforestation of state forests in accordance with plans approved by the California Board of Forestry.² (§ 4645.)   CDF's responsibilities include reviewing timber harvest plans (THP's) to determine whether they conform to applicable state law. (§ 4582.7.)

Real party in interest Sierra Pacific is a California corporation that owns approximately 1.65 million acres of land in California.   Sierra Pacific asserts the land it owns represents 4.1 percent of California's 40 million acres of forested landscape and 8.4 percent of California's commercial forestland.

In October 2007, Sierra Pacific submitted a THP named “Cow Camp 07” (Cow Camp THP) to the CDF. The Cow Camp THP covers 672 acres, of which 567 acres are to be harvested, and the other 105 acres form 100-foot operational area buffers surrounding the harvest units.   The elevation of the harvest area ranges from 4,800 to 5,600 feet, and its topography ranges from flat to sloped at 45 degrees.

The timber stands proposed for harvest are described as “Sierran Mixed Conifer.”   Prior harvesting reduced the pine component and increased the proportion of shade tolerant trees such as white fir and incense cedar.   The age of the dominant and codominant trees ranges from 50 to 125 years, with an estimated average for the harvest area of between 65 and 75 years.

The harvest units are spread over eight sections of land (each one-mile square or 640 acres) in Tuolumne County, located in the Middle Beaver Creek State Planning Watershed, which covers approximately 6,240 acres.³  This area lies just northeast of the Calaveras Big Trees State Park. The silvicultural methods to be used on the 567 acres to be harvested are classified as clear cutting (109 acres), alternative prescription (140 acres),⁴ selection (317 acres), and road right-of-way (one acre).   Fifteen harvest units, consisting of a total of 109 acres of clear cutting and 140 acres of alternative prescription, will be regenerated using even-aged silviculture methods.   Only two of the units using even-aged regeneration exceed 20 acres-unit 59 covers 25 acres and unit 88 covers 22 acres.  “[N]early a dozen” of the 27 total harvest units will use the selection method of harvest, which will result in uneven-aged stands.

After its submission, the Cow Camp THP underwent review by CDF and other agencies, then public comment and amendment.   That process took a year.   On October 24, 2008, CDF issued (1) its official response to the public comments and (2) its official notice stating the Cow Camp THP conformed with the Forest Practice Act and the Forest Practice Rules.

The next month, Ebbetts Pass filed a verified petition for writ of mandate challenging CDF's approval of the Cow Camp THP. Ebbetts Pass requested an order directing CDF to withdraw its approval of the Cow Camp THP and a permanent injunction prohibiting Sierra Pacific from engaging in timber operations in the plan area until the THP complied with applicable law.

Ebbetts Pass's petition alleged the Cow Camp THP did not conform to law, and CDF's approval of the plan was a prejudicial abuse of discretion that violated the Forest Practice Rules and the California Environmental Quality Act (CEQA) (§ 21000 et seq.).

On May 6, 2009, the trial court held a hearing on the petition for writ of mandate.   Two days later, it filed a written order denying the petition and the request for an injunction.   The trial court found that (1) CDF did not fail to proceed according to law, (2) CDF's approval of the Cow Camp THP was supported by its findings, and (3) CDF's findings were supported by substantial evidence.   Based on these findings, the court concluded that CDF had not abused its discretion.

Ebbetts Pass filed its notice of appeal in June 2009.

DISCUSSION

I.  Motion to Augment the Administrative Record

A.  Background

In February 2009, the parties filed a stipulation and proposed order to establish a briefing schedule and hearing date.   Pursuant to the stipulation, CDF agreed to certify and lodge the administrative record with the trial court.   The stipulation provided that “[a]ny dispute as to the content of the [administrative] record shall be resolved through the filing of a motion to augment or strike filed with any of the parties' opening or opposition briefs as set forth below․”  The stipulation, which was confirmed by court order, required (1) Ebbetts Pass to file its opening brief on or before March 11, 2009, and (2) CDF and Sierra Pacific to file their opposition briefs three weeks later.

Pursuant to the stipulation and order, counsel for CDF lodged a certified copy of the administrative record with the trial court on February 18, 2009.   As agreed, Ebbetts Pass filed its opening brief on March 11, 2009.

Five days later, on March 16, 2009, Ebbetts Pass filed a motion to augment the administrative record with the “Franklin Study.”  (Franklin et al., Climate, Habitat Quality, and Fitness in Northern Spotted Owl Populations in Northwestern California (Ecological Society of America 2000) vol. 70, Ecological Monographs, pp. 539-590.)   CDF and Sierra Pacific opposed the motion to augment.   CDF argued that Ebbetts Pass had not shown that it had exercised reasonable diligence in its belated attempt to expand the record.

The trial court denied the motion to augment.   Its written order filed April 21, 2009, stated:  “The Court finds, after considering the arguments of counsel, both written and oral, that [Ebbetts Pass] failed to timely request an augmentation of the administrative record prior to certification, and therefore failed to exercise due diligence.”

B. Claim of Error

Ebbetts Pass contends the trial court erred in denying its motion to augment the administrative record because (1) the motion to augment was brought in accordance with the parties' stipulation and (2) the Franklin Study was among the documents that CEQA defines as part of the administrative record.

Ebbetts Pass also argues that CDF's and Sierra Pacific's “actions in opposing the inclusion of this study are illustrative of their general approach in the THP review, which is to rely largely on selected quotes from numerous studies referenced in the THP, without any real analysis of whether those studies actually support the THP's claims of no significant impacts.”

C. Analysis

Subdivision (e) of section 21167.6 identifies a nonexclusive list of the documents that constitute the “record of proceedings.” ⁵  The list includes “all documents ․ cited or relied on in the findings” and “copies of studies or other documents relied upon in any environmental document prepared for the project and either made available to the public during the public review period or included in the respondent public agency's files on the project.” (§ 21167.6, subd. (e)(9), (10).)

Because the appellate briefs submitted by CDF and Sierra Pacific do not argue that the Franklin Study is not among the documents described in section 21167.6, we will assume for purposes of this appeal that it qualifies as part of the administrative record.   Based on this assumption, the question presented is whether the trial court erred in denying the motion to augment on the ground it was untimely.

The parties' stipulation provided any motion to augment the administrative record was to be “filed with any of the parties' opening or opposition briefs as set forth” in the stipulation.   Ebbetts Pass did not file its motion to augment when it filed its opening brief.   Instead, it filed the motion five days later without an explanation as to why it had not been filed with the opening brief.

Ebbetts Pass argues on appeal that it “reasonably understood that the time for proposing new documents properly part of the record would be when opening and opposition briefs were to be filed.”   Ebbetts Pass apparently is arguing that the stipulation and order should be interpreted to allow it to file a motion to augment at any time before CDF and Sierra Pacific's opposition briefs were filed.

We conclude that this interpretation of the stipulation-an interpretation implicitly rejected by the trial court-is not reasonable.   Instead, we interpret the stipulation and order to mean that Ebbetts Pass was required to file any motion to augment no later than when it filed its opening brief.   This interpretation is reasonable because (1) Ebbetts Pass should have become aware of the need to augment the record during the course of preparing its opening brief and (2) simultaneous filing of the motion with its opening brief would have given CDF and Sierra Pacific adequate notice of the request and allowed them to take into consideration the potential addition to the administrative record during the three weeks allotted them to prepare and file their opposition briefs.

Based on this interpretation of the stipulation and order, we conclude that the trial court did not err when it concluded that the motion was untimely and denied the motion on that ground.

II. Standard of Review

The California Supreme Court has stated that CDF's approval of a THP is “subject to judicial review under the mandate procedure established by Code of Civil Procedure section 1094.5.”  (Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1235.)   That statute contains an abuse of discretion standard and states:  “Abuse of discretion is established if the respondent [agency] has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence.”  (Code Civ. Proc., § 1094.5, subd. (b).)  When an agency fails to proceed in a manner required by law, courts will set aside the agency's decision only if such failure “is shown to be prejudicial, or is presumptively prejudicial, as when the department or the board fails to comply with mandatory procedures.”  (Sierra Club v. State Bd. of Forestry, supra, at p. 1236.)

The appellate briefs of the parties appear to accept that the Forest Practice Rules are “law” for purposes of the standard of review.   We will thus proceed on that basis.  (Compare Ebbetts Pass II, supra, 43 Cal.4th at p. 949 [court “conclude[d] CDF did not violate the law, specifically Technical Rule Addendum No. 2”] with Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. 4 [whether state CEQA guidelines are regulatory mandates or mere aids to interpreting CEQA was not decided by the court].)

III. Technical Rule Addendum No. 2 and Related Provisions

A.  General Provisions

As background, we note that when the Legislature enacted the Forest Practice Act, it stated its intention “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, regional economic vitality, employment, and aesthetic enjoyment.” (§ 4513, italics added.)

The phrase “while giving consideration” is defined by the Forest Practice Rules to mean “the selection of those feasible silvicultural systems, operating methods and procedures which substantially lessen significant adverse impact on the environment and which best achieve long-term, maximum sustained production of forest products, while protecting soil, air, fish and wildlife, and water resources from unreasonable degradation․”  (Forest Practice Rules, § 895.1.)

B. Provisions Concerning Cumulative Impacts

Both CEQA and the Forest Practice Rules require that a THP include an analysis of cumulative environmental impacts.  (Forest Practice Rules, §§ 898, 952.9;  see Joy Road Area Forest & Watershed Assn. v. California Dept. of Forestry & Fire Protection (2006) 142 Cal.App.4th 656, 675 (Joy Road ).)

The content of the cumulative impacts analysis is guided by the definition of “cumulative impacts” ⁶ and sections 898 and 952.9 of the Forest Practice Rules.   Section 898 of the Forest Practice Rules provides in part:

“Cumulative impacts shall be assessed based upon the methodology described in Board Technical Rule Addendum Number 2, Forest Practice Cumulative Impacts Assessment Process and shall be guided by standards of practicality and reasonableness.   The RPF's [registered professional forester's] and plan submitter's duties under this section shall be limited to closely related past, present and reasonably foreseeable probable future projects within the same ownership and to matters of public record.”

In turn, the introduction to Technical Rule Addendum No. 2 (found in the Forest Practice Rules at Cal.Code Regs., tit. 14, foll. § 952.9 ⁷ ) (Technical Rule Addendum No. 2) provides in part:

“The purpose of this addendum is to guide the assessment of cumulative impacts as required in [Forest Practice Rules sections] 898 and 1034․  [¶] ․ [¶] Resource subjects to be considered in the assessment of cumulative impacts are described in the Appendix.”

The appendix to Technical Rule Addendum No. 2 states:  “In evaluating cumulative impacts, an RPF shall consider the factors set forth herein.”   (Technical Rule Addendum No. 2, appen., italics added.)   The appendix lists six main resource subjects or factors:  (A) watershed resources, (B) soil productivity, (C) biological resources, (D) recreational resources, (E) visual resources, and (F) vehicular traffic impacts.  (Ibid.) This appeal concerns factor C, biological resources.

C. Factors Concerning Cumulative Biological Impacts

Factor C of the appendix to Technical Rule Addendum No. 2 begins:  “Biological assessment areas will vary with the species being evaluated and its habitat.   Factors to consider in the evaluation of cumulative biological impacts include:  [¶] ․ [¶] 4. The biological habitat condition of the THP and immediate surrounding area.   Significant factors to consider are:” (a) snags/den/nest trees, (b) downed large, woody debris, (c) multistory canopy, (d) road density, (e) hardwood cover, (f) late seral (mature) forest characteristics, and (g) late seral habitat continuity.  (Italics added.)

Immediately after this list and before each topic is addressed in more detail, factor C.4 of the appendix to Technical Rule Addendum No. 2 (factor C.4) contains the following paragraph:

“The following general guidelines may be used when evaluating biological habitat.   The factors described are general and may not be appropriate for all situations.   The THP preparer must also be alert to the need to consider factors which are not listed below.   Each set of ground conditions are unique and the analysis conducted must reflect those conditions.”  (Factor C.4.)

The topic of late seral (mature) forest characteristics is addressed in item f of factor C.4 as follows:

“Determination of the presence or absence of mature and over-mature forest stands and their structural characteristics provides a basis from which to begin an assessment of the influence of management on associated wildlife.   These characteristics include large trees as part of a multilayered canopy and the presence of large numbers of snags and downed logs that contribute to an increased level of stand decadence.   Late seral stage forest amount may be evaluated by estimating the percentage of the land base within the project and the biological assessment area occupied by areas conforming to the following definitions:[8]

“Forests not previously harvested should be at least 80 acres in size to maintain the effects of edge.   This acreage is variable based on the degree of similarity in surrounding areas.   The area should include a multi-layered canopy, two or more tree species with several large coniferous trees per acre (smaller subdominant trees may be either conifers or hardwoods), large conifer snags, and an abundance of large woody debris.

“Previously harvested forests are in many possible stages of succession and may include remnant patches of late seral stage forest which generally conform to the definition of unharvested forests but do not meet the acreage criteria.”

The topic of late seral habitat continuity and its opposite-fragmentation-is addressed in item g of factor C.4:

“Projects containing areas meeting the definitions for late seral stage characteristics must be evaluated for late seral habitat continuity.   The fragmentation and resultant isolation of late seral habitat types is one of the most significant factors influencing the sustainability of wildlife populations not adapted to edge environments.

“This fragmentation may be evaluated by estimating the amount of the on-site project and the biological assessment area occupied by late seral stands greater than 80 acres in size (considering the mitigating influence of adjacent and similar habitat, if applicable) and less than one mile apart or connected by a corridor of similar habitat.”

D. Issue Regarding the Foregoing Provisions

The parties dispute whether the Cow Camp THP and CDF's official responses complied with Technical Rule Addendum No. 2 and, in particular, factor C.4. This dispute encompasses specific disagreements regarding the meaning of the term “to consider” and the appropriate definition of the phrase “late seral forest.”

IV. “To Consider”

At oral argument, counsel for CDF contended that the Forest Practice Rules use the term “to consider” in its usual sense and, as a result, its meaning can be obtained from a dictionary.  (See Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1514 [court may derive the ordinary and usual meaning of words from a dictionary].)   In contrast, Ebbetts Pass contends the meaning of “to consider” should be taken from the definition of “while giving consideration” set forth in section 895.1 of the Forest Practice Rules.  (See pt.   III.A, ante.)

A dispute over the proper interpretation of the regulation raises an issue of law.  (Manriquez v. Gourley (2003) 105 Cal.App.4th 1227, 1234 [interpretation of a regulation is an issue of law].)   Consequently, the issue is subject to independent review by this court.  (Ibid.)

Webster's Third New International Dictionary (1986) defines the verb “consider” as follows:

“1 :  to reflect on :  think about with a degree of care or caution ․ 2:  to think of, regard, or treat in an attentive, solicitous, or kindly way ․ [¶] ․ consider often indicates little more than think about.   It may occasionally suggest somewhat more conscious direction of thought, somewhat greater depth and scope, and somewhat greater purposefulness․”  (Id. at p. 483, col. 3.)

These dictionary definitions demonstrate that “consider” is ambiguous.   On the one hand, it could mean little more than think about.   On the other hand, it could mean to treat in an attentive way.   The purpose of Technical Rule Addendum No. 2 is to guide the creation of a disclosure document.   We conclude that this context requires the drafter of a THP to do more than simply think about the topic.   Instead, we conclude the term “to consider” means to think about the topic with a degree of care or caution and to treat it in an attentive way.   Treating it in an attentive way means to discuss it in the THP.

We reject using the definition for the phrase “while giving consideration” because if the drafter of the appendix had intended that specific definition to apply, the drafter would have used the phrase.

V. Late Seral Forest and Habitat

The parties' dispute about compliance with factor C.4 is complicated by their giving different meanings to terms that include the modifier “late seral.” ⁹  We will address this problem of terminology by (1) listing the relevant definitions contained in the Forest Practice Rules and (2) reviewing chronologically the main documents in the administrative record that use such terms.   Once this background on the problem of terminology is provided, we will address the substance of the contentions regarding compliance with factor C.4.

A. Clarifying the Terminology

1.  Definitions from the Forest Practice Rules

Forest Practice Rules section 895.1, which contains many definitions, states:  “ ‘Late succession forest stands' means stands of dominant and predominant trees that meet the criteria of WHR class 5M, 5D, or 6 with an open, moderate or dense canopy closure classification, often with multiple canopy layers, and are at least 20 acres in size.   Functional characteristics of late succession forests include large decadent trees, snags, and large down logs.” ¹⁰

The term “late seral” does not appear anywhere in Forest Practice Rules section 895.1, but is part of a definition set forth in item f of factor C.4, which provides in full:

“Late Seral (Mature) Forest Characteristics:  Determination of the presence or absence of mature and over-mature forest stands and their structural characteristics provides a basis from which to begin an assessment of the influence of management on associated wildlife.   These characteristics include large trees as part of a multilayered canopy and the presence of large numbers of snags and downed logs that contribute to an increased level of stand decadence.   Late seral stage forest amount may be evaluated by estimating the percentage of the land base within the project and the biological assessment area occupied by areas conforming to the following definitions:

“Forests not previously harvested should be at least 80 acres in size to maintain the effects of edge.   This acreage is variable based on the degree of similarity in surrounding areas.   The area should include a multi-layered canopy, two or more tree species with several large coniferous trees per acre (smaller subdominant trees may be either conifers or hardwoods), large conifer snags, and an abundance of large woody debris.

“Previously harvested forests are in many possible stages of succession and may include remnant patches of late seral stage forest which generally conform to the definition of unharvested forests but do not meet the acreage criteria.”  (Italics added.)

2. Cow Camp THP's initial discussion of late seral forest

The initial version of the Cow Camp THP included a discussion under the heading “(6) Presence of late seral characteristics” that apparently was intended to satisfy the disclosures described in item f of factor C.4. That discussion, however, defined the term “late-seral stands” using the definition for “late succession forest stands” from Forest Practice Rules, section 895.1 and then stated:

“Stands within the proposed project do not qualify as late-seral forest stands, as per the Board rules.   Stands are present in the [watercourse and lake protective zones (WLPZs) ] that provide functional habitat for many of the species, which utilize late seral forest stands.”

Next, the Cow Camp THP stated moderate acreages of late seral forest existed on United States Forest Service lands that were included in the cumulative impacts assessment area.   More specifically, the plan stated that 15 percent of the land in the cumulative impacts assessment area was owned by the forest service and a majority of its acreage had late seral characteristics.

3. Fish & Game's comment

The California Department of Fish and Game (Fish & Game) reviewed the foregoing disclosures when it conducted a first review of the initial Cow Camp THP. Fish & Game's memorandum to CDF commented:

“Late seral characteristics appear to be confused with ‘Late Successional [sic ] Forest Stands' defined in [Forest Practice Rules] section 895.1.   Late seral characteristics are described in Technical Rule Addendum # 2.   These characteristics should be analyzed in the correct context.”

After a representative from Fish & Game participated in the November 2007 preharvest inspection of the site, Fish & Game sent CDF a second memorandum, which contained its findings and recommendations.   The second memorandum repeated Fish & Game's comments about the discussion of late seral forest characteristics and stated the RPF had agreed to revise his analysis in the Cow Camp THP. Specifically, the memorandum recommended:  “RPF shall revise the cumulative impacts discussion of late seral resources using the definitions[[¹¹ ] and assessment area specified in ․ Technical Rule Addendum # 2․”

4. Preharvest inspection report

CDF's preharvest inspection report repeated verbatim Fish & Game's comment about the discussion of late seral forest characteristics and Sierra Pacific's apparent use of the wrong definition.

In addition, the preharvest inspection report answered “No” to the question:  “Is late successional forest present on this THP ( [Cal.Code Regs, tit. 14, § 959.16] )?”   Immediately following this answer, the report stated:  “Late succession forest stands, as defined by [California Code of Regulations, title 14, section 895.1], are not present within the proposed plan area.” ¹²  (Italics omitted.)

5. Revision to Cow Camp THP

In January 2008, the RPF submitted a revised page 111 for the Cow Camp THP that modified the discussion under the headings “(6) Presence of late seral characteristics” and “(7) Continuity of late seral stage forests.”   The revision stated:

“Per Technical Rule Addendum # 2, late-seral stands are vaguely defined as those stands that ‘include large trees as part of a multilayered canopy and the presence of large numbers of snags and downed logs that contribute to an increased level of stand decadence’.   Most stands within the proposed project and within the remainder of the private lands of the biological assessment area do not qualify as late-seral forest stands, inasmuch as they do not contain all of the components of this definition.   However, stands are present throughout the assessment area and particularly within the WLPZs in the assessment area that provide functional habitat for many of the species which utilize late seral forest stands.”

Next, the revised disclosure provided objective information about the characteristics of the timber stands by stating there were 217 four-acre plots in the harvest and assessment areas that held conifers with a average diameter at breast height (DBH) of 24 inches or more and that 13 of these plots would be harvested.

Sierra Pacific's cover letter to the revised page 111 described the new disclosures by stating that “the presence of late seral stands (actually stands with larger trees, which are still unlikely to be true late seral stands) have been analyzed at the biological assessment area scale as per [Fish & Game's] request.”

6. Ebbetts Pass's comments

In March 2008, Ebbetts Pass submitted its comments on the Cow Camp THP. Ebbetts Pass asserted the THP did not maintain adequate amounts of functional wildlife habitat in the planning watershed and specifically addressed components of late seral forest and functional late seral habitat connectivity.   Ebbetts Pass identified how it used the phrase “components of late seral forest” by quoting from item f of factor C.4 and asserted the components (1) were part of the functional habitat to be retained for wildlife species and (2) would not be provided by 50- to 80-year plantations.

When Ebbetts Pass's comments were received by CDF, it appeared that the initial uncertainty regarding the interpretation and application of terms in factor C.4 that used the modifiers “late seral” and “late succession” was resolved.   In other words, Ebbetts Pass's comments used those terms in a manner consistent with Fish & Game's memoranda and Sierra Pacific's revision to the Cow Camp THP. CDF's response to public comments, however, resurrected the uncertainty regarding what “late seral” meant.

7. CDF's response to public comments

CDF's October 24, 2008, official response restated Ebbetts Pass's comment about the components of late seral forest in public concern No. 14:  “It was stated that many wildlife species ․ require components of late seral forest (LSS) and that such habitat is part of the functional habitat to be retained for wildlife species.”   The concern, as described by CDF, also included the assertions that (1) the Cow Camp THP did not “demonstrate how large, old trees w[ould] be retained or recruited within the planning area” and (2) a “50 to 80 year plantation [would] not provide these LSS components as discussed in [Ebbetts Pass's] Exhibits 1 and 4 to 7.”

CDF's response to concern No. 14 rekindled the problem of terminology that Fish & Game had identified in the initial Cow Camp THP. The first paragraph of CDF's response stated:

“The concern perhaps confuses the difference between late seral stage characteristics and ‘old growth’ or ‘large old trees.’   The Ebbetts Pass ․ concern indicates that SPI will not be able to provide these LSS components in a 50 to 80 year old plantation.”

In the next paragraph, CDF noted that the Forest Practice Rules did not define old growth or large old trees and then referred to “the definition for late seral stage in 14 CCR Sec. 895.1” and quoted part of the definition for “late succession forest stands.”

CDF's statement that late seral stage was defined in Forest Practice Rules section 895.1 is wrong.   The words “late seral” do not appear anywhere in Forest Practice Rules section 895.1, much less as a term defined in that section.   CDF's use of terms containing the modifier “late seral” ¹³ as though they were synonymous with the term “late succession forest stands” repeated the error originally contained on page 111 of the Cow Camp THP before it was revised.  (See pt.   V.A.2, ante.)   CDF's repetition of the error is difficult to explain because the error had been pointed out in two memoranda from Fish & Game and had been listed in CDF's preharvest inspection report.   (See pt.   V.A.3-4, ante.)

The legal consequences of CDF's error in terminology will be addressed after our discussion of the dispute regarding the Cow Camp THP's disclosures regarding late seral forest.

B. Disclosure Dispute-The Presence of Late Seral Forest

1.  Contentions of the parties

Ebbetts Pass contends the Cow Camp THP is inadequate because it does not disclose (1) the presence or absence of late seral forest in the affected areas or (2) what will be eliminated by the proposed harvest.   Ebbetts Pass references the statement in the Cow Camp THP that “[m]ost stands ․ do not qualify as late-seral forest stands” and argues it implies that some stands do qualify and information about those stands should have been disclosed.

CDF argues that (1) the appendix to Technical Rules Addendum No. 2 does not create a presumption that the factors it lists are present on the ground, (2) the listed factors must be considered, but only if they are present, and (3) the evaluation conducted in this case resulted in a clear finding that there was no late seral forest.

Similarly, Sierra Pacific argued that there is no late seral forest in the area and that both Sierra Pacific and CDF discussed the characteristics of late seral forests in detail.   Furthermore, Sierra Pacific argues that its approach was approved by CDF and withstood the scrutiny of other agencies that reviewed the area and the disclosure documents.

2. Disclosures in the Cow Camp THP

Item f of factor C.4 states that the amount of late seral stage forest “may be evaluated by estimating the percentage of the land base within the project and the biological assessment area occupied by areas conforming to” definitions regarding (i) 80-acre plots not previously harvested and (ii) remnant patches of late seral stage forest within harvested areas.

It is with reference to this provision in factor C.4 that we address the question regarding what the Cow Camp THP disclosed about the presence or absence of late seral stage forest in the assessment area.

First, we note that the Cow Camp THP's statement that most of the stands on the private land in the assessment area did not qualify as late seral forest stands is ambiguous.   The statement can be read to imply that some late seral forest stands exist.   Alternatively, revised page 111 of the Cow Camp THP states that Sierra Pacific regarded the definitions relating to late seral forest as vague and implies it was unsure how to apply those definitions.   As a result of this uncertainty, Sierra Pacific's statement and its lack of discussion of any such stands can be read to mean that some stands might satisfy a definition in item f of factor C.4, but that Sierra Pacific believed they did not.

Second, to resolve this ambiguity, we will employ the usual principle of looking at the document as a whole and will not view the statement about “most stands” in isolation.  (See Haynes v. Farmers Ins. Exchange (2004) 32 Cal.4th 1198, 1216 [document construed as a whole to determine affect on average reader].)

The topic of the age of trees and stands and the related topic of historical logging practices are addressed elsewhere in the Cow Camp THP. The plan states that (1) the stand age represented by dominant and codominant trees ranges from 50 to 125 years, with the average age of the plan area being between 65 and 75 years and (2) historical logging, primarily selection and transition management, reduced the pine component and increased the percentage of shade tolerant species such as white fir and incense cedar.   In addition, Sierra Pacific's answer to item 34 on page 24 of the Cow Camp THP indicates that no late succession forest stands are proposed for harvest.¹⁴

In view of this information and Sierra Pacific's express uncertainty about how to apply the definitions in item f of factor C.4, we conclude the average reader could not reasonably infer that the harvest area contains 80-acre plots of unharvested trees or remnant patches of unharvested trees.   In other words, the Cow Camp THP does not indicate that late seral stage forest is present in the assessment area.

This interpretation of the Cow Camp THP is compatible with Sierra Pacific's cover letter to revised page 111 of the Cow Camp THP. The letter stated that the four-acre plots of large trees that were discussed were unlikely to be true late seral stands.

Third, it follows from this interpretation that the Cow Camp THP's description of the environmental setting and the project was not inadequate because it failed to provide information about (1) the location and quality of stands that meet the definitions contained in item f of factor C.4 relating to late seral forest and (2) the amount and location of these types of stands that will be eliminated by the project.

In summary, we conclude that the Cow Camp THP complied with the disclosure requirements contained in item f of factor C.4.

C. Adequacy of CDF's Response to Public Comments

Next, we address whether the CDF's official response to public comments regarding late seral forest, which includes its erroneous use of terminology, complied with factor C.4 and other applicable law.

1. Contentions of the parties

Ebbetts Pass contends that CDF's official response was inadequate because it (1) confused the definitions contained in the Forest Practice Rules, (2) contradicted the Cow Camp THP, (3) falsely implied that the removal of small patches of late seral forest habitat would not have a significant environmental impact, and (4) did not adequately analyze the cumulative impacts of the incremental removal of small patches of late seral forest.

In reply, CDF's appellate brief contends it was not confused about definitions and summarizes its response as follows:

“In lay terms, [CDF] recognized that there are no late succession forest stands in the THP area, and that very few of the trees with characteristics of late seral forests are present in the THP area.   Accordingly, [CDF] concluded that there will be no significant adverse impact on late seral habitat in the area.”

2. Standard for determining adequacy

The California Supreme Court recently stated that agencies such as CDF “generally have considerable leeway” regarding their response to a public comment.  (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 487, fn. 9.) Despite this leeway, the responses must contain a “good faith, reasoned analysis” and “[c]onclusory statements unsupported by factual information will not suffice.”  (Cal.Code Regs., tit. 14, § 15088, subd. (c).)  The requirement for a “reasoned analysis” is satisfied when CDF “ ‘particularly set[s] forth in detail the reasons why the particular comments and objections were rejected’․”  (Twain Harte Homeowners Assn. v. County of Tuolumne (1982) 138 Cal.App.3d 664, 678;  see Gallegos v. State Bd. of Forestry (1978) 76 Cal.App.3d 945, 954 [CDF's conclusory responses to comments were inadequate and therefore an abuse of discretion].)

3. Analysis

CDF's use of the definition of “late succession forest stands” for phrases that included the term “late seral” allowed it to avoid addressing the definitions set forth at the end of item f of factor C.4-the item that was cited in Ebbetts Pass's comment letter.   CDF's use of the wrong definition altered the content of its response in three ways.   First, CDF did not have to explain to the public and Sierra Pacific ¹⁵ what the Forest Practice Rules meant in referring to “remnant patches of late seral stage forest which generally conform to the definition of unharvested forests but do not meet the acreage criteria.”  (Factor C.4, item f.) Second, CDF did not have to apply that definition to the areas proposed for harvest by the Cow Camp THP. Third, by treating the definition for “late succession forest stands” as the equivalent of late seral stage forest mentioned in item f of factor C.4, CDF was able to include the following conclusion in its discussion of concern No. 14:  “With the case of this THP, no LSS habitat, as defined in the [Forest Practice Rules], was present prior to harvest and none were being removed by this harvest.” ¹⁶

Despite the ways CDF's response was altered by its misuse of definitions, however, the primary question in applying the general standard for adequacy is whether CDF's response provided sufficient detail regarding its reasons for rejecting the comment concerning late seral forest characteristics.

CDF's use of the definition for late succession forest stands in place of late seral stage forest did not greatly affect its discussion of the characteristics of late seral stage forest because the characteristics identified in the definitions overlap.   For example, the functional characteristics of late succession forest stands “include large decadent trees, snags, and large down logs.”  (Forest Practice Rules, § 895.1.) The characteristics of late seral forest “include large trees as part of a multilayered canopy and the presence of large numbers of snags and downed logs that contribute to an increased level of stand decadence.”  (Factor C.4, item f.)

Because of the similarity in the definitions, CDF's response addressed in detail (1) the characteristics of canopy closure and tree size, (2) the relationship between certain species (California spotted owl, Pacific fisher, pileated woodpecker, northern flying squirrel, dusky footed woodrat, and pocket gopher) and canopy closure and tree size, and (3) exhibits 1 and 4 through 7 attached to Ebbetts Pass's comment letter.

For example, CDF found that the criteria for open, moderate, or dense canopy closure “are very likely to be achieved in SPI plantations.”   CDF relied on photographs submitted by Ebbetts Pass that show a 20-year-old plantation and a 50-year-old plantation.   Also, on the topic of tree size, CDF found that ponderosa pines are capable of meeting the necessary growth in 50- to 80-year rotations to achieve at least WHR class 5. (See fn. 10, ante.)   Furthermore, CDF addressed the topics of large woody debris and snags in its response to concern No. 3. The response discussed a number of factors, such as safety, liability, and prevention of the spread of disease that have caused snags to be less common on private industrial timberlands than general forest areas.   CDF, relying on forest service land in the assessment area to provide snags and large woody debris, found that there would be no significant adverse impact to wildlife species from the plan's proposed treatment of snags and large woody debris.

We conclude that CDF's discussion of tree size, canopy closure, large woody debris and snags set forth throughout its responses satisfies the requirement for a detailed, reasoned analysis for CDF's rejection of the concerns raised in the public comments.   In short, CDF's misuse of defined terms did not cause it to address the wrong details.

Next, we consider Ebbetts Pass's claim that CDF's response contradicted the Cow Camp THP. We reject this claim because we have rejected Ebbetts Pass's interpretation of the documents.   The Cow Camp THP's statement that most of the stands on the private land in the assessment area did not qualify as late seral forest stands, when read in context, does not necessarily imply that some late seral forest stands exist.  (See pt.   V.B.2, ante.)   As a result, CDF's rejection of the position that some late seral stage forest existed in the harvest area did not render inadequate its responses to public comments about the characteristics of late seral stage forest.   Rather, CDF discussed the characteristics in detail.

Ebbetts Pass's other arguments about the adequacy of CDF's responses do not claim that CDF failed to set forth in detail the reasons why CDF rejected the particular comments and objections.   Instead, those arguments reflect Ebbetts Pass's disagreement with CDF over whether certain of the details included in CDF's reasoning process are true.   In essence, Ebbetts Pass contends CDF's findings of fact regarding the details are incorrect.   These contentions do not involve the application of the legal standard for determining the adequacy of CDF's responses to public comments and, therefore, need not be discussed further here.  (See pt.   V.C.2, ante, for discussion of applicable legal standard.)   Instead, the merits of Ebbetts Pass's disagreement with CDF's findings of fact will be addressed by determining whether those finding are supported by substantial evidence.  (See pt.   IX, post.)

D. Application of General Standard to Claims of Inadequacy

Because Ebbetts Pass's claims that the disclosures violated factor C.4 have failed, we will consider whether the challenged disclosures in the Cow Camp THP satisfy the legal standard generally used for determining the adequacy of a discussion of cumulative impacts.   Under this legal standard, the discussion of the items listed in factor C.4 will be evaluated under “standards of practicality and reasonableness” (Forest Practice Rules, § 898) and the general principle that “the cumulative impact analysis [in a THP] must be substantively meaningful.”  (Joy Road, supra, 142 Cal.App.4th at p. 676.)

1. Late seral forest characteristics

The Cow Camp THP discussed the area's timber stands, snags, and woody debris.   Because of the ambiguity in item f of factor C.4 regarding later seral stands and remnant patches, the Cow Camp THP provided a substitute disclosure based on an objective criterion-four-acre plots holding conifers with an average DBH of 24 inches.   Applying this criterion, revised page 111 stated that Sierra Pacific's land within the assessment area included 217 of these plots (approximately 868 acres), of which only 13 plots were within the harvest area.

We conclude that the disclosure regarding the four-acre plots along with the description elsewhere in the Cow Camp THP provided a substantively meaningful disclosure to the public and agencies about the characteristics of the trees in the harvest area and the biological assessment area.

Next, we consider whether the ambiguous statement in the Cow Camp THP that “[m]ost stands” on private land “do not qualify as late-seral forest stands” rendered the discussion legally inadequate.   One could rephrase this issue as whether the ambiguity caused an otherwise substantively meaningful discussion to become substantively confusing and thus undermined the THP's purpose of providing information to the public and agencies.   As discussed earlier, the statement about most stands is ambiguous because it permits (1) the inference that some stands do qualify as late seral stage forest and (2) the alternate inference that Sierra Pacific was not sure how to classify some of its stands because the definition was vague.

We conclude that the confusion created by the ambiguous statement in the Cow Camp THP did not render its disclosures inadequate because the other information provided about the stands located in the harvest area and assessment area was sufficient to inform the public and agencies about the characteristics of the trees that would be harvested and those that would remain.

In Ebbetts Pass II, the THP's formally designated a single biological assessment area yet varied the geographical scope of the area used to assess certain cumulative impacts to the California spotted owl and Pacific fisher.   Despite this internal inconsistency in the plans, the court concluded that the cumulative impacts analysis satisfied the “standards of practicality and reasonableness” (Forest Practice Rules, § 898) and sustained CDF's approval of the THP's. (Ebbetts Pass II, supra, 43 Cal.4th at pp. 950-951.)   Thus, any confusion created by the internal inconsistency in the plans was insufficient to undermine the adequacy of the discussion of cumulative impacts.   Similarly, any confusion resulting from the ambiguity in the Cow Camp THP was insufficient to undermine the detailed disclosure about existing conditions, the methods of harvest, and the management systems that will be applied after harvest in the Cow Camp THP. Therefore, we conclude that the Cow Camp THP's discussion of characteristics associated with mature forest provided a substantively meaningful disclosure that was practical and reasonable.

2. Late seral habitat continuity

Item g of factor C.4 states that “[p]rojects containing areas meeting the definitions for late seral stage characteristics must be evaluated for late seral habitat continuity” and that “fragmentation may be evaluated by estimating the amount of the on-site project and the biological assessment area occupied by late seral stands greater than 80 acres in size ․ and less than one mile apart or connected by a corridor of similar habitat.”

The Cow Camp THP addressed continuity in late seral habitat by stating:

“SPI retains the functional habitat for many of the species which utilize late-seral forest stands along watercourses and other areas within their lands to provide for continuity of these stands.   Due to the configuration of these WLPZ areas, the current continuity of these stands will not be affected.   U [nited States Forest Service] lands that show late seral characteristics will not be diminished in any way by this plan.   The extent of these areas within the assessment area is such that the continuity of late seral stands will be provided for.”

Ebbetts Pass argues this disclosure is inadequate because (1) it “does not disclose information about the continuity of late seral areas on any upland sections” and (2) it fails to disclose that the watercourses, by themselves, are dead ends on the landscape.   Ebbetts Pass asserts the absence of this information means the public and agencies were not informed about the presence and continuity of potentially valuable habitat components that might have been retained to avoid or lessen the impacts of Sierra Pacific's logging.

We conclude that the Cow Camp THP's discussion of continuity is adequate.   An objectively reasonable reader familiar with factor C.4 would understand the discussion to mean that there are no late seral stands greater than 80 acres on Sierra Pacific's land and those stands that exist on the forest service's land will not have their continuity affected by the proposed harvest.   Also, such a reader will understand that the continuity of habitat along watercourses that functions in some respects like late seral forest will not be affected by the project.   The additional specificity of the disclosures urged by Ebbetts Pass is not necessary in the circumstances of this case to provide a substantively meaningful disclosure regarding continuity and cumulative impacts.

E. Retention and Recruitment of Late Seral Habitat

1.  Contentions of the parties

Ebbetts Pass makes another argument involving late seral habitat that is not based on the specific disclosures described in factor C.4 or the general standard that defines the adequacy of disclosures.   The argument is based on the following provision in Forest Practice Rules section 897:

“(b) In determining whether a THP conforms to the intent of the Act, the Director shall be guided by the following principles:  [¶] (1) The goal of forest management on a specific ownership shall be the production or maintenance of forests which are healthy and naturally diverse, with a mixture of trees and understory plants, in which trees are grown primarily for the production of high quality timber products and which meet the following objectives:  [¶] ․ [¶] (C) Retain or recruit late and diverse seral stage habitat components for wildlife concentrated in the watercourse and lake zones and as appropriate to provide for functional connectivity between habitats.”   (Italics added.)

Ebbetts Pass contends the Cow Camp THP violated this regulation because it made no provision to recruit the components that would form late seral habitat in the future.   Ebbetts Pass also contends the Cow Camp THP failed to demonstrate compliance with this regulation because its project description did not disclose or discuss the fact that Sierra Pacific's plantations do not retain or recruit late seral habitat.

CDF contends that its “responses reflect how the forest management practices required in the THP will promote the development of characteristics (larger trees, downed logs, snags) found in forests that are older and more mature than those characteristics that currently exist in the Cow Camp THP area.”

2. Disclosures in the Cow Camp THP

The Cow Camp THP described Sierra Pacific's uneven-aged and even-aged management practices.   It stated that Sierra Pacific's even-aged managed stands have rotations ranging from 50 to 80 years and forecasted that 70 to 80 years from the date of the Cow Camp THP its land base “would approach approximately 30% unevenaged stand structures and approximately 70% evenaged stand structures․”

Sierra Pacific asserts that the most profound effect of its management practices will be an increase in the average tree diameter.   Currently, the average diameter at harvest is 22 inches, and Sierra Pacific predicts that in 100 years the average will be 32 to 34 inches.   Sierra Pacific also asserts that the goal of increased tree size will enhance some other forest characteristics:  “[O]ur management will provide opportunities for natural processes to produce large snags and better wildlife conditions over time.”   At pages 109 and 110, the Cow Camp THP discusses the recruitment of snags and large woody debris.   Those pages set forth Sierra Pacific's snag management objectives, which include retaining enough snags so the biological assessment area contains no less than 1.59 snags per acre that are at least 11 inches or more in diameter.   Also, they state that large woody debris will be left in place during site preparation if it does not impede planting and future treatment.

The specific concern of Forest Practice Rules section 897, subdivision (b)(1)(C) is wildlife habitat in watercourse and lake zones.   The Cow Camp THP included a separate section that addressed the WLPZ in the project area.   That section included a list of the protective measures and silvicultural methods that will be used in the WLPZ's.   For example, in Class I watercourses,¹⁷ 50 percent of the overstory and 50 percent of the understory will be retained in a well-distributed multistoried stand composed of diverse species, and the residual overstory canopy will be composed of at least 25 percent of the existing overstory conifers.   Elsewhere, the Cow Camp THP states that selection silviculture will be used in the WLPZ's, which will promote a more uneven-aged stand, and “it is not anticipated that many trees will be removed from the WLPZs.”   Further information about the WLPZ's is included in the discussion at page 80 of the Cow Camp THP concerning the project's affect on water temperature:  “Approximately 300 acres of timberland adjacent to Class I watercourses in the [cumulative impacts assessment area] has been designated for un-evenaged management.   Twenty-two acres of which are in the WLPZ. Harvesting will be light in nature with a post-harvest canopy closure of 50-60%, which should not result in a significant increase in solar exposure.”

3. CDF's finding

CDF's official response includes a finding “that the regulations of [Forest Practice Rules] Section 897 are being met in the Middle Beaver Creek Watershed and in the biological assessment area as described in the THP.”

4.  Compliance

Ebbetts Pass failed to establish its contention that the Cow Camp THP failed to comply with Forest Practice Rules section 897 because the proposal does not recruit components of late seral forest habitat.

The record indicates that some recruitment of late seral stage components will occur in the 317 acres subject to selection silviculture, which will cover approximately 56 percent of the harvest area.   Although Ebbetts Pass may be dissatisfied with the amount of the components that will be recruited in the units subject to the selection method of harvest, substantial evidence supports a finding of fact that some recruitment of the components will occur within those units.

As a reviewing court, we cannot conclude that the 20-acre units of alternative prescription and clear cutting methods that will become part of Sierra Pacific's 50- to 80-year rotation of even-aged units will not add to the “diverse seral stage habitat components” referenced in Forest Practice Rules section 897, subdivision (b)(1)(C).  First, the record shows that the trees in those units will be of a different age compared to the even-aged units created pursuant to other THP's in the same assessment area.   Because adjacent units will contain trees of different ages, diversity will result.   Second, the trees in units nearing the end of the rotation will be large enough to function like late seral stage trees in some respects.

5. Disclosure

In contending that the discussion of the recruitment of late seral habitat is inadequate, Ebbetts Pass argues that “the THP fails to disclose that because their rotation cycle is 80 years, plantations lack old decadent trees.”   Ebbetts Pass also argues the plan should have disclosed or discussed “the significant changes to the forest environment that will occur due to the conversion of forests to plantations.”

First, readers of the Cow Camp THP are informed that even-aged units (usually less than 20 acres in size) eventually will cover approximately 70 percent of Sierra Pacific's land and that these units will be harvested before they are more than 80 years old.   Whatever definition of “old” a reader of the Cow Camp THP used, he or she would understand that trees in the even-aged units presently are intended to live only 50 to 80 years and, as a result, the level of decadence that will be achieved within those units will be less than if the units were allowed to live to an older age.   Therefore, we conclude that the Cow Camp THP's description of the even-aged regeneration units adequately informed its readers how Sierra Pacific proposed to implement its even-aged management practices and the impact of those practices on the retention and production of large decadent trees.

Second, Ebbetts Pass's contention that Sierra Pacific's management plans will cause significant adverse changes to the forest by converting it to plantations is, in effect, a disagreement with the finding of fact by CDF that those management practices will not have a significant adverse effect on the biological habitat for wildlife.   Accordingly, our role as a reviewing court limits our inquiry to whether CDF's findings are supported by substantial evidence.  (See pt.   IX, post.)

In summary, we conclude that the Cow Camp THP informs the public and agencies how Sierra Pacific has balanced the primary statutory goal of maximizing the production of high quality timber products with the other objectives set forth in Forest Practice Rules section 897.

6. CDF's response to comments

Ebbetts Pass contends that CDF did not respond adequately to comments that Sierra Pacific's plantations do not recruit large snags, decadent trees and large downed logs by asserting:

“CDF states the 4 to 8 trees per acre of visual retention prescription will be ‘providing future large trees, or snags if they perish, or downed woody material if they fall to the ground at some point.’  [Citation.]  As discussed, this response is inadequate because retention trees are intended to be harvested in the next commercial entry.  [Citation.]”

In reply, CDF contends that its official responses “reflect how the forest management practices required in the THP will promote the development of characteristics (larger trees, downed logs, snags) found in forests that are older and more mature than those ․ that currently exist in the Cow Camp THP area” and cites its responses to the concerns numbered 3, 12, 13, 14 and 16.

Based on our review of the responses cited by CDF, we conclude that CDF has set forth a detailed, reasoned analysis for its conclusion that the Cow Camp THP promotes the development of characteristics such as larger trees, downed logs, and snags.   Again, Ebbetts Pass may disagree with CDF's analysis, or be unhappy with the amount of these characteristics that will be developed and allowed to remain for wildlife use, but the legal test used to determine the adequacy of responses is concerned with whether CDF's responses provided a detailed, reasoned analysis.

We, like the California Supreme Court in Ebbetts Pass II, note that there is considerable evidence in the administrative record to support a contrary finding about the consequences of Sierra Pacific's management practices.  (See Ebbetts Pass II, supra, 43 Cal.4th at p. 951, fn. 4.) The existence of that evidence, however, does not establish that CDF failed to provide the public with detailed reasons for its decision to reject the public objections to the Cow Camp THP. Instead, CDF's official responses served their purpose by informing the public of CDF's reasoning process.   In short, CDF's official responses allowed the public to determine the environmental and economic values of their elected and appointed officials, thus allowing voters who disagree to take appropriate action in the political arena.  (Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 357, citing People v. County of Kern (1976) 62 Cal.App.3d 761, 769-774.)

Furthermore, Ebbetts Pass's contention that CDF's response was inadequate because it did not impose a requirement that snags or large downed logs be retained or recruited in the plan area does not state a legally recognized ground for determining that the response was inadequate.   The adequacy of an agency's responses to public comments is determined not by whether particular restrictions or conditions of approval are imposed, but instead by whether those responses contain a detailed, reasoned analysis supporting the agency's position.   Here, CDF discussed the characteristics of large trees, multistoried canopy, snags and large woody debris in detail sufficient to pass the test for adequacy.

VI. Early Seral Habitat

A.  Environmental Setting

1.  Contentions and applicable standard

Ebbetts Pass contends the Cow Camp THP's description of the environmental setting is deficient because early seral habitat within the assessment area is not described.¹⁸  Ebbetts Pass contends this omission left the agencies and public uninformed as to whether plantations previously established in the planning area actually created early seral habitat conditions.

In the absence of any citation to authority requiring the specific disclosure urged by Ebbetts Pass, we will evaluate the disclosures in the Cow Camp THP concerning early seral habitat under the general standard that requires the discussion of cumulative impacts to be substantively meaningful and to satisfy the “standards of practicality and reasonableness.”  (Forest Practice Rules, § 898;  see Joy Road, supra, 142 Cal.App.4th at p. 676.)

2. The Cow Camp THP's description of assessment areas

The Cow Camp THP included a table that identified past projects in the watershed assessment area and another table that identified past projects in the larger biological assessment area.   The tables identified the name and year of each THP, as well as the silvicultural methods used and the acreage covered.   The information provided about past projects in the assessment areas was not detailed.   For example, the Cow Camp THP stated that “[t]he existing plantations are stocked,” but did not describe the stand conditions in the existing plantations, which presumably were created in the units harvested in 1996 and 2002 using clear cutting or alternative prescription.

The Cow Camp THP provided background on the topic of early seral habitat by stating that the changes in California's forest habitat caused by previous fire suppression and forest management activities are likely to have caused a stable-to-declining trend in wildlife species that are early seral associates.   Also, the Cow Camp THP stated Sierra Pacific's intention to arrest the progression to the extent feasible through the use of forest management prescriptions and regimes on its land.   In particular, Sierra Pacific stated it could grow a stand of larger trees faster by clearing and planting than by allowing existing trees to grow under current conditions.   Sierra Pacific asserts that the clearing and planting would allow it “to reverse trends in early seral composition and extend early seral characteristics further into the life of a stand” and also would “produce a larger average tree and more open habitat for wildlife in much less time.”   Thus, Sierra Pacific believes its primarily even-aged silvicultural system will produce habitat for early seral associates that is stable or increasing over time.

The Cow Camp THP's general assertions regarding early seral habitat were applied in the discussion of the habitat for California spotted owls.   The Cow Camp THP stated that “forest edge habitat for the prey base is an integral component in spotted owl habitat,” and harvesting creates edge that causes the development of habitat types known to produce prey species.   Based on these assertions and the view that sufficient nesting and roosting habitat existed, Sierra Pacific concluded that its management practice would create necessary prey-producing habitat and thereby enhance spotted owl habitat.

3. CDF's findings

CDF's official response confirmed Sierra Pacific's factual assertions regarding the production of edge habitat:  “The use of even-age management will result in openings that will, for a while at least, provide openings for feeding areas especially for owls and raptors and edge effect for other species.”   Similarly, the official response stated:  “The resulting mix of silvicultural types ․ will allow for production of edge and a return to early successional vegetation types in some of these areas that are favorable for deer habitat.”

4. The disclosure was adequate

We conclude that the Cow Camp THP informed agency personnel and members of the public that, in general, the management practices of Sierra Pacific have created early seral and edge habitat.   This disclosure was sufficient to imply that Sierra Pacific's prior harvesting within the biological assessment area also created this type of habitat.   Because of this implication, Ebbetts Pass has not shown that an explicit disclosure was necessary to make the description of the environmental setting set forth in the Cow Camp THP substantively meaningful.

B. Project Description

1.  Contentions

Ebbetts Pass contends that the project description fails to disclose that herbicide treatments associated with even-aged plantation management will eliminate or substantially reduce early seral habitat.   Ebbetts Pass argues this omission of the disclosure regarding herbicide use is made worse by Sierra Pacific's assertion that even-aged plantations create early seral vegetation and edge habitat beneficial to wildlife.

2. Description in Cow Camp THP

The Cow Camp THP states that herbicides “do not eliminate grasses, herbs, weeds, and brush species, but do provide for a temporary reduction in competition for conifer seedlings, so that such seedlings may be able to survive and grow more rapidly.   Herbicide use is sometimes necessary as part of SPI's required demonstration of achievement of maximum sustained production ․ of high-quality forest products while giving consideration to the other forest values.”

3. Analysis

A comparison of the contentions of Ebbetts Pass to the contents of the Cow Camp THP demonstrates a factual dispute regarding the efficacy of chemical herbicides.   On the one hand, Ebbetts Pass asserts herbicide use will eliminate or substantially reduce grass, herbs, and brush species that otherwise would grow in a plot intended for even-aged management.   On the other hand, Sierra Pacific asserts herbicide use will cause only a temporary reduction in the species that compete with conifer seedlings.

This factual dispute must be decided, in the first instance, by CDF in its role as reviewing agency and the finder of facts.  (Ebbetts Pass II, supra, 43 Cal.4th at p. 944.)   CDF's findings on the matter are subject to judicial review under the substantial evidence standard.  (Ibid.) Therefore, Ebbetts Pass's argument about the impact of herbicides on early seral edge habitat does not present a legal question regarding the adequacy of the description of the project that is subject to our independent review.   Instead, Ebbetts Pass's argument presents the question whether CDF's findings on the matter in dispute are supported by substantial evidence.

CDF's appellate brief addresses this particular factual dispute in two sections.   The first section concerns the broader controversy over whether the harvest practices proposed by the Cow Camp THP would improve wildlife habitat.   The second section specifically addresses the impact of herbicide use.

CDF found, in its official response to the comment suggesting that the use of herbicide in the Cow Camp THP and other THP's would eliminate early successional vegetative growth, that the “use of chemical tools for site preparation and control of competing vegetation is not totally successful in eliminating grass, forbs and herbaceous vegetation that is forage for deer.”   CDF noted the short-term effects of herbicide use as follows:

“There is no question that the advance of vegetative growth favorable for deer forage would be set back for a time, but approximately half of the THP would not have any herbicide treatment and those areas would still be available for forage during the vegetation set-back period for herbicides that are likely to be sprayed on the even-age area.”

CDF also found that (1) the statutory goal of maximum sustained production of high-quality timber would not be met without controlling brush species that can out compete conifer seedlings and (2) over 70 percent of the Middle, Upper, and Lower Beaver Creek Watershed has not been treated with even-aged regeneration methods.

In summary, CDF determined that the reduction in early seral vegetation caused by herbicide use was acceptable because it improved timber production, the vegetation would not be totally eliminated by the herbicide, and there were other areas in the assessment area where the vegetation would exist during the time that the herbicide was effective.

We conclude CDF's findings are supported by substantial evidence because CDF staff as well as personnel from Fish & Game inspected the assessment area and saw how prior even-aged plots were progressing.   The observations of conditions at the site by CDF personnel during the inspection constitute evidence and, thus, CDF was entitled to rely on these observations in making its findings.

Accordingly, we cannot override the findings of CDF even though the photographs presented by Ebbetts Pass constitute substantial evidence to support its position that herbicide use creates bare soil in even-aged plots with relatively young conifers.   A reviewing court's responsibility is not to weigh conflicting evidence and determine who has the better of the argument.   (Ebbetts Pass II, supra, 43 Cal.4th at p. 944.)

C. Adequacy of CDF's Response

Ebbetts Pass contends that CDF did not respond adequately to comments that Sierra Pacific's even-aged logging practices will eliminate early seral habitat because shrub vegetation will be controlled by herbicide applications.   Ebbetts Pass asserts that CDF should have acknowledged “that the purpose of herbicide treatments is to eliminate early seral vegetation regrowth to avoid any competition with the planted conifers.”

Again, Ebbetts Pass's argument regarding the adequacy of the response does not address the legal test for adequacy and assert that the detail provided by CDF is insufficient to explain the reasoning it used to reject the comment or objection.   Instead, Ebbetts Pass disagrees with CDF's finding that the use of herbicide will temporarily suppress competing vegetation and shorten the time it takes for the conifers to shade over competing shrubs and grasses.   Because Ebbetts Pass's argument is based on a disagreement over the facts and not the sufficiency of the details provided by CDF to support its reasoning, Ebbetts Pass has not presented a ground for concluding that CDF's response was inadequate.   Instead, Ebbetts Pass has presented an argument that will fail if CDF's finding of fact is supported by substantial evidence.   We have already addressed whether substantial evidence supported CDF's finding of fact and concluded it did.  (See pt.   VI.B.3, ante.)   Therefore, Ebbetts Pass's argument regarding the adequacy of CDF's response must fail.

VII. Incremental Versus Cumulative Analysis

A.  Page 111 Discussion

The Cow Camp THP's discussion of the presence of late seral forest characteristics at revised page 111 of the plan included the following:

“Inventory data (one half-acre plot per 4 acres) indicate that for the SPI lands within the assessment area, there are 217 plots (approximately 868 acres) wherein the quadratic mean diameter of the conifers is 24-inches DBH or larger.   Of these 217 plots, only 13 plots occur within the project area of this THP, therefore it is a reasonable assumption that the proposed project will not significantly reduce the amount or distribution of functional habitat for these species such that it would constitute a significant adverse impact on the environment as defined in [Forest Practice Rules section] 895.1.”

Ebbetts Pass argues that this approach is not a cumulative impacts analysis because the project's impacts are considered in isolation and are not assessed together with other foreseeable future action.

We agree with Ebbetts Pass that the quoted discussion from the Cow Camp THP is not a cumulative impacts analysis.   By definition, “cumulative impacts” means “two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts.”   (Cal.Code Regs., tit. 14, § 15355.)   Furthermore, “[t]he cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.   Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.”  (Id., subd. (b).)  The Cow Camp THP's reference to the harvesting of 13 out of 217 plots obviously does not include the impact of any other project and, therefore, is not a cumulative impacts analysis.

The absence of a cumulative impacts analysis under the Cow Camp THP's heading “(6) Presence of late seral characteristics” does not automatically mean that the plan does not comply with the Forest Practice Rules and CEQA, because the topic of cumulative impacts might have been addressed elsewhere in the plan.   Consequently, we must look beyond page 111 of the Cow Camp THP to determine whether a cumulative impacts analysis was completed.

In contrast to our approach, Ebbetts Pass's argument regarding the lack of an analysis that cumulates the impacts of more than one project does not consider disclosures made elsewhere in the Cow Camp THP.

B. Beyond Page 111

The Cow Camp THP states that Sierra Pacific owns 85 percent of the land in the cumulative impacts assessment area and the United States Forest Service owns the remaining 15 percent.   As a result of this land ownership, the cumulative impacts analysis need consider only the past, present, and reasonably foreseeable projects of Sierra Pacific and the United States Forest Service.   The discussion of cumulative impacts at pages 60 and 61 of the Cow Camp THP lists past projects as well as present and future activities of Sierra Pacific and the forest service.¹⁹  Therefore, the Cow Camp THP adequately completes the first step in a cumulative impacts analysis by identifying the sources of other projects.

In describing future activities, the Cow Camp THP states that (1) it is likely that eventual timber harvest will occur on all lands owned by Sierra Pacific, (2) its even-aged managed stands generally have rotations of 60 to 80 years, and (3) the Cow Camp THP is the only reasonably foreseeable project likely to occur on Sierra Pacific's land within the next decade.   While recognizing the difficulty in making predictions, Sierra Pacific stated it expects that its land base 70 to 80 years from now would approach approximately 30 percent uneven-aged stand structures and 70 percent even-aged stand structures.

Based on its ownership of a large percentage of land in the cumulative impacts assessment area and its approach to managing that land, Sierra Pacific's discussion of cumulative impacts consists mainly of describing the impact its management practices are having and will continue to have on the stand structures on its land over time.

For example, when discussing the habitat conditions for the spotted owl, the Cow Camp THP describes how large snags and larger trees will be preserved in streamside protective zones that will not be harvested, and the harvesting that will be done will increase edge habitat that produces the owl's prey species and, thus, increase the food available to owls.   Also, the plan states that Sierra Pacific's silviculture practices are expected to increase the average tree diameter on its lands from 17 inches to 32 inches, which means more stands of large trees and a benefit to species that depend on large trees.   As a result, Sierra Pacific reaches the conclusion that “active silviculture is expected to enhance owl habitat across the Sierras” and it “not only contributes to the habitat, but improves the habitat through its management practices.”

Based on the foregoing disclosures and similar disclosures contained in the Cow Camp THP, we conclude that the Cow Camp THP has considered and addressed the cumulative impacts of Sierra Pacific's past and future plans rather than simply addressing the incremental impact of the Cow Camp THP. In summary, the focus of Ebbetts Pass's argument is unduly narrow-it should have considered the discussion of cumulative impacts in the entire plan rather than an isolated section.

VIII. Consideration of Existing Significant Impacts

Ebbetts Pass also contends the Cow Camp THP's discussion of cumulative impacts is legally inadequate because it fails to consider existing significant impacts.   Specifically, Ebbetts Pass contends significant impact exists because the Pacific fisher has been extirpated from the area and spotted owls that formerly nested in the area no longer nest there.   Ebbetts Pass also argues that “the loss of late seral habitat over time has made that which remains exceedingly valuable as habitat, and its further loss a cumulatively significant impact.”

The Cow Camp THP answered “No” to the following question:  “Are there any continuing, significant adverse impacts from past land use activities that may add to the impacts of the proposed project?”  (Italics and boldface omitted.)   CDF agreed with this answer and argues on appeal that it correctly determined there were no continuing significant adverse impacts from past land use activities that add to the impacts of the Cow Camp THP.

This dispute between the parties has both a legal and a factual component.   First, the law on cumulative impacts is not concerned with every significant environmental impact that occurred in the past.   Instead, a cumulative impacts analysis need only address those existing impacts that are added to by the proposed project.  (Forest Practice Rules, § 952.9 [second item in checklist];  see Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1026 [concern with the project's addition to existing noise levels].)

Second, whether a proposed project adds to existing significant impacts is a question of fact.   Here, Ebbetts Pass's position is based on the factual premise that this project and other foreseeable activities of Sierra Pacific will create less suitable habitat for wildlife such as the spotted owl and Pacific fisher.   In contrast, the position taken by Sierra Pacific and CDF is based on a finding of fact that Sierra Pacific's management practices are improving rather than adversely impacting the habitat needs of the spotted owl and Pacific fisher.

Because the Cow Camp THP discusses the consequences of historical logging practices in terms of both tree stands and trends for wildlife associated with particular types of forest, we reject Ebbetts Pass's argument that the plan fails to consider existing significant impacts from past land use activities.   Furthermore, to the extent that Ebbetts Pass's argument is based on a factual disagreement with CDF's finding that Sierra Pacific's management practices will improve wildlife habitat, that argument must be resolved by determining whether substantial evidence supports CDF's finding.

IX. Substantial Evidence

Ebbetts Pass contends “there is no substantial evidence to support CDF's findings that the cumulative impacts of SPI's even-aged management are not significant in light of the overwhelming contrary evidence that SPI's plantation forestry model will eliminate both late seral and early seral habitat for wildlife from the planning area.” ²⁰  Ebbetts Pass also asserts that there is no evidence that Sierra Pacific's use of selection silviculture in some units “will offer adequate habitat following harvest or that selection units will over time retain late seral forest characteristics or create early seral ‘edge’ habitat.”

A. Elimination of Late Seral Habitat

CDF responds to Ebbetts Pass's contention regarding the elimination of late seral habitat by arguing (1) the harvest area does not have late seral habitat due to a century of logging operations and (2) Sierra Pacific's management practices will promote the growth of larger trees, which will help improve wildlife habitat.

In the circumstances of this case, Ebbetts Pass's argument about the elimination of late seral habitat suffers from a number of flaws.

First, the argument references an elimination that will occur in the planning area.   Presumably this means the area that the Cow Camp THP proposes to harvest.   This area is unduly narrow for the analysis of cumulative impacts.   The proper geographical scope for an argument concerning cumulative impacts is the biological assessment area.   Because Ebbetts Pass's argument is phrased in terms of the planning area instead of the biological assessment area, it ignores the evidence regarding the late seral habitat in the larger area.   Specifically, it ignores the late seral habitat on United States Forest Service land and the lack of any foreseeable plans or projects that would alter the forests on that land.   The current and future existence of the federal forests were important to CDF's finding that the cumulative impacts to which the Cow Camp THP contributed would not be significant because the nesting and denning habitat would exist on federal land and the privately held land would aid wildlife such as the spotted owl and Pacific fisher by providing habitat for prey species.

Second, the argument on even-aged plantations is undercut by the fact that such plantations will be implemented on less than half of the area proposed for harvest by the Cow Camp THP. Selection silviculture, a harvest method that produces uneven-aged stands, will be used on approximately 56 percent of the area subject to the plan.   The evidence in the record supports the finding that these uneven-aged stands will produce some components of late seral habitat.

Ebbetts Pass challenges the efficacy of the selection units by arguing that there is no evidence these units will offer adequate habitat following harvest or will retain or recruit late seral forest characteristics.   The argument about whether selection silviculture will retain or recruit late seral forest characteristic, in essence, is an argument about what will occur in the future.   As such, it necessarily involves what can be described as a prediction, forecast, or estimate of what will happen in the future.  (See Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 290, fn. 10 [analysis of potential change requires prediction of future conditions].)   We cannot say that CDF's prediction that selection silviculture will produce some components of late seral habitat is wrong.   The evidence relied upon by CDF includes the observations by its personnel of the conditions in the assessment area during the preharvest inspection for the Cow Camp THP and previous inspections.   Those conditions included timber stands in various stages of development.   Thus, CDF personnel have seen areas subject to various types of silvicultural methods and how they respond after a THP has been completed.   In our role as a reviewing court, we cannot conclude that these observations do not constitute substantial evidence in support of CDF's predictions about what will happen in the future.

Third, CDF accepted the factual assertion by Sierra Pacific that it could produce larger trees by clear cut logging and even-aged plantations than by allowing the existing trees to continue to grow.   Sierra Pacific's assertion is supported with data regarding growth rates of seedlings and a comparison to the growth rate of eight-inch diameter trees on Sierra Pacific's land.   We conclude the data constitutes substantial evidence for the finding that even-aged plantations eventually will increase the average size of a tree on Sierra Pacific's land.

Based on the foregoing, we must reject Ebbetts Pass's contention that CDF's finding, that the cumulative impacts of Sierra Pacific's even-aged plantations are not significant, is not supported by substantial evidence.

B. Elimination of Early Seral Habitat

Our earlier discussion addresses (1) the creation of early seral and edge habitat through the use of clear cutting and alternative prescription in a rotational system and (2) the impact of herbicide on early seral vegetation.   Based on that discussion, we conclude that substantial evidence supports the finding that Sierra Pacific's management practices will not eliminate early seral habitat.

X. Consideration of Mitigation and Alternatives

Ebbetts Pass contends the Cow Camp THP violates CEQA by failing to consider enforceable mitigation and alternatives that would retain or recruit valuable habitat in the planning area.   This contention is based on the factual premise that the Cow Camp THP will have significant adverse impacts on wildlife.   Based on our conclusion that substantial evidence supports CDF's finding that the Cow Camp THP will not have such impacts, it follows that the Cow Camp THP was not required to consider mitigation and alternatives that would retain or recruit wildlife habitat in the planning area.

XI. CDF's Responses to Public Comments

Most of Ebbetts Pass's contentions regarding the inadequacy of CDF's responses to public comments have been addressed ante.   The two contentions that remain involve CDF's response to comments regarding (1) the cumulative loss of old decadent trees and (2) significant impacts to wildlife from plantation forestry.

A. Old Decadent Trees

Ebbetts Pass contends that CDF's response to comments regarding the cumulative loss of old decadent trees was inadequate because (1) CDF accepts a statement made in revised page 111 of the Cow Camp THP without discussion of how that statement addresses the issue of large old decadent trees that provide critical habitat for wildlife and (2) CDF asserts large decadent trees will be created in retention areas and in WLPZ areas as the retained trees grow even though there is no requirement that (a) the small trees left in the visual retention areas be retained over the course of the rotation cycle, (b) old large trees be retained WLPZ and selection areas, or (c) the trees left standing in the WLPZ and selection areas be retained in the long term to serve as decadent habitat elements.

CDF's official response to concern No. 20 stated:

“[CDF] finds that the THP examines the biological assessment area for snag retention, [large woody debris] level, hardwood stocking levels, presence of multi-storied canopy, late seral and functional habitat for same, and has information on page 111 about the number of plots/acres of trees that are larger than 24” dbh.   Large decadent trees will be created by the provision to retain 6 to 8 trees per acre where the [wildlife retention areas] leave trees are being used and in other retention areas of the Alternative prescription even-age regeneration units, as well as in WLPZ areas as the retained trees will grow along with the seedlings understory as an older component of the stands which are expected to have a rotation are of 50 to 80 years.”

In addition, CDF addressed the comment that the trees left in a wildlife retention area would never become large old trees:

“It was stated that the trees left in the WRA are only small to medium sized trees and that these plantation areas will never have large old trees and snags and adequate downed woody material.   However, the reason for leaving the 4 to 8 trees per acre is that these trees will grow along with and among and above the planted seedlings so that they will hopefully provide a much older component to the planted stand, thus providing future large trees, or snags if they perish, or downed woody material if they fall to the ground at some point.   Thus, habitat will be provided for [California spotted owls], both in terms of crown cover and the larger tree/snag component.”

We conclude that the foregoing responses by CDF set forth sufficient details to explain its reasons for rejecting the comments.  (See Twain Harte Homeowners Assn. v. County of Tuolumne, supra, 138 Cal.App.3d at p. 678.)   Therefore, CDF's responses meet the applicable standard of adequacy.

Ebbetts Pass's concern that older trees in wildlife retention areas and WLPZ's will be cut down in future harvests rather than being allowed to remain to provide an older component really is a concern that CDF will not follow through with its stated intentions.   In other words, Ebbetts Pass appears to be asserting that when future harvests are conducted, CDF will allow older decadent trees to be harvested rather than requiring that they be retained.   This assertion is akin to an attack on CDF's credibility.   As a reviewing court applying the substantial evidence rule, our power to make credibility determinations contrary to those made by the finder of fact is limited.   For example, when the substantial evidence rule is applied to a finding that a witness was credible, an appellate court has the power to disregard that testimony only if it was incredible on its face or inherently improbable.   (E.g., Artesia Dairy v. Agricultural Labor Relations Bd. (2008) 168 Cal.App.4th 598, 604;  People v. Watts (1999) 76 Cal.App.4th 1250, 1259.)   In this case, we will apply the same test to whether CDF's finding that implicates its future behavior is credible.   We conclude that CDF's finding is not incredible on its face or inherently improbable and, therefore, reject Ebbetts Pass's argument that older trees in selection units will not be retained when CDF authorizes subsequent harvests of those units.

B. Impacts to Wildlife from Plantation Forestry

Ebbetts Pass contends that CDF did not respond adequately to comments about the impacts of Sierra Pacific's “conversion to plantations on wildlife, in particular California spotted owl, Pacific fisher, mule deer, and smaller prey species.”   Ebbetts Pass argues that CDF's responses incorporated its flawed assumption that late seral habitat will be retained or recruited over time in Sierra Pacific's plantations.

CDF's appellate brief asserts that its response explained that late seral wildlife habitat will not be eliminated “because the area subject to harvesting does not currently sustain late seral wildlife habitat.”   In addition, CDF's appellate brief asserts that “the forest management practices prescribed by the THP will promote the development of trees with characteristics of late seral forest, and this will promote wildlife habitat.”

Ebbetts Pass failed to establish the factual premise of its argument-that Sierra Pacific's management practices will not retain or recruit late seral habitat over time.   Accordingly, in our role as reviewing court, we must reject the argument's conclusion that CDF's response to comments was inadequate.

DISPOSITION

The judgment is affirmed.   Defendant and real party in interest are awarded their costs on appeal.

DAWSON, J.

WE CONCUR:

CORNELL, Acting P.J.

HILL, J.

FOOTNOTES

FN1. Forest Practice Rules are set forth in California Code of Regulations, title 14, section 895 et seq. and were promulgated by the Board of Forestry under the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act), Public Resources Code section 4511 et seq.   All further statutory references are to the Public Resources Code, unless stated otherwise..  FN1. Forest Practice Rules are set forth in California Code of Regulations, title 14, section 895 et seq. and were promulgated by the Board of Forestry under the Z'berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act), Public Resources Code section 4511 et seq.   All further statutory references are to the Public Resources Code, unless stated otherwise.

FN2. For convenience, CDF shall be used in this opinion to include the department, its director, and the California Board of Forestry..  FN2. For convenience, CDF shall be used in this opinion to include the department, its director, and the California Board of Forestry.

FN3. Approximately 2,300 acres of the watershed assessment area (about 37 percent) have been logged pursuant to THP's submitted from 1996 through 2002.   Another 9 percent will be harvested under the Cow Camp THP..  FN3. Approximately 2,300 acres of the watershed assessment area (about 37 percent) have been logged pursuant to THP's submitted from 1996 through 2002.   Another 9 percent will be harvested under the Cow Camp THP.

FN4. The 140 acres listed for alternative methods are divided into 77 acres for the alternative visual retention grouped method and 63 acres for the alternative visual retention dispersed method.   Ebbetts Pass alleges that visual retention is similar to clear cutting except that four to eight trees with 8- to 16-inch diameters are left per acre, either clumped together (visual retention grouped) or dispersed (visual retention dispersed)..  FN4. The 140 acres listed for alternative methods are divided into 77 acres for the alternative visual retention grouped method and 63 acres for the alternative visual retention dispersed method.   Ebbetts Pass alleges that visual retention is similar to clear cutting except that four to eight trees with 8- to 16-inch diameters are left per acre, either clumped together (visual retention grouped) or dispersed (visual retention dispersed).

FN5. For purposes of this opinion, we will refer to the “record of proceedings” as the administrative record.  (Cf. Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 767, fn. 2.).  FN5. For purposes of this opinion, we will refer to the “record of proceedings” as the administrative record.  (Cf. Wagner Farms, Inc. v. Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 767, fn. 2.)

FN6. Section 895.1 of the Forest Practice Rules adopts the definition of “cumulative impacts” used under CEQA. The regulations that implement CEQA state:  “ ‘Cumulative impacts' refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. [¶] ․ [¶] (b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.   Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.”  (Cal.Code Regs., tit. 14, § 15355.).  FN6. Section 895.1 of the Forest Practice Rules adopts the definition of “cumulative impacts” used under CEQA. The regulations that implement CEQA state:  “ ‘Cumulative impacts' refer to two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts. [¶] ․ [¶] (b) The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable probable future projects.   Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time.”  (Cal.Code Regs., tit. 14, § 15355.)

FN7. Forest Practice Rules section 952.9 sets forth a cumulative impacts assessment checklist..  FN7. Forest Practice Rules section 952.9 sets forth a cumulative impacts assessment checklist.

FN8. During oral argument, counsel for Sierra Pacific asserted there was no definition of “late seral forest” in the Forest Practice Rules.   Though literally true, this assertion overlooks the two definitions set forth at the end of item f of factor C.4 that may be used in evaluating “[l]ate seral stage forest amount.”.  FN8. During oral argument, counsel for Sierra Pacific asserted there was no definition of “late seral forest” in the Forest Practice Rules.   Though literally true, this assertion overlooks the two definitions set forth at the end of item f of factor C.4 that may be used in evaluating “[l]ate seral stage forest amount.”

FN9. Those terms include, but are not limited to, “late seral forest,” “late seral stage forest,” “late seral stage habitat,” and “late seral forest characteristics.”.  FN9. Those terms include, but are not limited to, “late seral forest,” “late seral stage forest,” “late seral stage habitat,” and “late seral forest characteristics.”

FN10. The acronym “WHR” refers to California Wildlife Habitat Relationships classifications, which state, among other things, 40 to 59 percent canopy closure is moderate..  FN10. The acronym “WHR” refers to California Wildlife Habitat Relationships classifications, which state, among other things, 40 to 59 percent canopy closure is moderate.

FN11. These definitions in item f of factor C.4 are set forth in the text immediately following footnote 8, ante..  FN11. These definitions in item f of factor C.4 are set forth in the text immediately following footnote 8, ante.

FN12. We note that the conclusion about the absence of “late succession forest stands” was important to the application of Forest Practice Rules section 959.16.   That provision requires specific disclosures of stand information concerning (1) when late succession forest stands are proposed for harvest and (2) whether the harvest will reduce significantly the amount or distribution of such stands or their functional value as wildlife habitat and thus constitute a significant adverse impact on the environment.   Because CDF found that “late succession forest stands” were not proposed for harvest, the Cow Camp THP was not required to include the maps and other specific disclosures set forth in Forest Practice Rules section 959.16..  FN12. We note that the conclusion about the absence of “late succession forest stands” was important to the application of Forest Practice Rules section 959.16.   That provision requires specific disclosures of stand information concerning (1) when late succession forest stands are proposed for harvest and (2) whether the harvest will reduce significantly the amount or distribution of such stands or their functional value as wildlife habitat and thus constitute a significant adverse impact on the environment.   Because CDF found that “late succession forest stands” were not proposed for harvest, the Cow Camp THP was not required to include the maps and other specific disclosures set forth in Forest Practice Rules section 959.16.

FN13. These terms included the acronym “LSS,” which CDF adopted for late seral stage and for late seral forest..  FN13. These terms included the acronym “LSS,” which CDF adopted for late seral stage and for late seral forest.

FN14. The definition of “late succession forest stands” refers to stands at least 20 acres in size while item f of factor C.4 refers to forest stands at least 80 acres in size..  FN14. The definition of “late succession forest stands” refers to stands at least 20 acres in size while item f of factor C.4 refers to forest stands at least 80 acres in size.

FN15. We include Sierra Pacific with the public in this situation because the Cow Camp THP called the definition vague..  FN15. We include Sierra Pacific with the public in this situation because the Cow Camp THP called the definition vague.

FN16. Similarly, CDF's official response included a summary of the wildlife protection aspects of the Cow Camp THP that stated:  “It should be noted that no Late Seral Stage (LSS) habitat is being harvested as a result of this THP․”.  FN16. Similarly, CDF's official response included a summary of the wildlife protection aspects of the Cow Camp THP that stated:  “It should be noted that no Late Seral Stage (LSS) habitat is being harvested as a result of this THP․”

FN17. Forest Practice Rules section 895.1 defines “Watercourse Sideslope” and “Watercourse Sideslope Class.”   The sideslope of a Class I watercourse is less than 30 percent.   A Class III watercourse has a sideslope of greater than 50 percent..  FN17. Forest Practice Rules section 895.1 defines “Watercourse Sideslope” and “Watercourse Sideslope Class.”   The sideslope of a Class I watercourse is less than 30 percent.   A Class III watercourse has a sideslope of greater than 50 percent.

FN18. Ebbetts Pass's opening brief defined both the terms “early seral habitat” and “early successional habitat” as referring to the vegetation type created after a disturbance, such as clear cut logging or a fire..  FN18. Ebbetts Pass's opening brief defined both the terms “early seral habitat” and “early successional habitat” as referring to the vegetation type created after a disturbance, such as clear cut logging or a fire.

FN19. Question No. 62 of CDF's preharvest inspection report of November 2007 asks whether “the RPF accurately listed all known past/present/future projects within the assessment area.”   The report answers this question, “Yes.” It also states these projects are addressed on pages 60 and 61 of the plan and past plans are mapped at pages 129 through 136 of the plan..  FN19. Question No. 62 of CDF's preharvest inspection report of November 2007 asks whether “the RPF accurately listed all known past/present/future projects within the assessment area.”   The report answers this question, “Yes.” It also states these projects are addressed on pages 60 and 61 of the plan and past plans are mapped at pages 129 through 136 of the plan.

FN20. A similar argument was made and rejected in Ebbetts Pass I, supra, 123 Cal.App.4th 1331.   In that case, Ebbetts Pass contended:  “ ‘The record, however, does not contain evidence that SPI's even-aged management system will retain and allow for the future recruitment of old-forest habitat on these plans.’ ”  (Id. at pp. 1360-1361.)   The court rejected Ebbetts Pass's challenge to even-aged management with harvest rotation cycles under 100 years, on the basis that “Ebbetts Pass's objections amount [ed] to a disagreement over which authorities to follow and which studies to cite.”  (Id. at p. 1361.).  FN20. A similar argument was made and rejected in Ebbetts Pass I, supra, 123 Cal.App.4th 1331.   In that case, Ebbetts Pass contended:  “ ‘The record, however, does not contain evidence that SPI's even-aged management system will retain and allow for the future recruitment of old-forest habitat on these plans.’ ”  (Id. at pp. 1360-1361.)   The court rejected Ebbetts Pass's challenge to even-aged management with harvest rotation cycles under 100 years, on the basis that “Ebbetts Pass's objections amount [ed] to a disagreement over which authorities to follow and which studies to cite.”  (Id. at p. 1361.)