SIERRA CLUB v. PACIFIC LUMBER COMPANY (1993)

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

I. FACTS AND PROCEDURAL HISTORY

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

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

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

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

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

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

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

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

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

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

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

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

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

II. DISCUSSION

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

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

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

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

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

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

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

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

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

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

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

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

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

We note that the present case, which simply concerns the longstanding principle embodied in the Forestry Rules that impacts on wildlife should be mitigated where feasible, does not implicate any issues presently pending before our Supreme Court as to whether other, new, requirements may be imposed upon timber operations governed by a THP which has already been finally approved and become effective.   As our Supreme Court is currently dealing with those issues and related ones, we express no opinion upon them.  (See Public Resources Protection Assn. v. Department of Forestry & Fire Protection (1992) 15 Cal.App.4th 1394, 5 Cal.Rptr.2d 475, review granted (1992) 9 Cal.Rptr.2d 91, 831 P.2d 316;  Sierra Club v. State Bd. of Forestry (1992) 15 Cal.App.4th 1405, 6 Cal.Rptr.2d 326, review granted (1992) 9 Cal.Rptr.2d 834, 832 P.2d 146;  Louisiana–Pacific Corp. v. Department of Forestry & Fire Protection (1993) 17 Cal.App.4th 642, 21 Cal.Rptr.2d 468, review granted (1993) 24 Cal.Rptr.2d 73, 860 P.2d 465.)   Here by contrast, we deal solely with the applicability of longstanding provisions of the Forestry Rules which have not been subject to significant change during the period in which these THP's have been considered;  and the THP's themselves never became final and effective.   We, therefore, turn to the limited question of feasibility under the Forestry Rules themselves.

P–L contended before Forestry, and contends here, that the suggested mitigation measures were not, in fact, feasible.   This is a bit hard to reconcile with the fact that similar measures are now routinely included in such THP's.   The mitigation measures in question adequately specify the methods and protections to be afforded, by maps of the site and by descriptions;  they certainly appear to be feasible from a technical standpoint, even though they may be somewhat onerous to P–L.   The actual gravamen of P–L's objections to such measures is put in terms of their economic feasibility, and the inroads they make upon the profits from timber harvesting operations.²

It appears that P–L's arguments regarding the protection of private property from unconstitutional takings did play a large role in initially motivating Forestry to reject the mitigation measures suggested by Fish and Game as not economically feasible.   Significantly, P–L's constitutional argument concerning a regulatory taking is both misplaced in the context of these particular administrative actions and appeals, and without merit in general.

 First, we question whether the takings issue is properly joined and ripe for review here.   We do not know what the economic effect of the mitigation measures to be imposed upon P–L will be, nor do we have here a final administrative determination as to mitigation measures, which decision allegedly deprives P–L of all or substantially all of the value of its property, as is required to constitute a regulatory taking.  (See Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 45, 275 Cal.Rptr. 17.)   P–L contends only that it might not be allowed to harvest 80 percent of its timber, or perhaps all the timber on some particular parcels (rather than the roughly 50 percent it had initially sought to harvest);  but the final economic effect of the regulatory action on these parcels and its lands as a whole remains unclear.   P–L “thus does not state a ripe claim for regulatory taking.”  (Id. at p. 46, 275 Cal.Rptr. 17.)   The administrative process is not final, and none of the mitigation measures suggested by Fish and Game would deprive P–L of all or substantially all the value of its extensive holdings in California, even though they might in the future sharply curtail timber harvest operations on some portions of its old-growth parcels.  (See ibid.)

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

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

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

We can certainly understand P–L's frustration at discovering that its otherwise valuable stands of old-growth forests are infested with protected species.   However, it has long been held that the federal and state governments may regulate and protect rare species on private lands without triggering a constitutional taking of private property.   To the extent P–L argues to the contrary, based upon the fact that the species in question actually physically occupy the habitat afforded by P–L's property, we find this a distinction without a difference, in light of the cases cited above which necessarily upheld governmental protection of such species while on the land of an unconsenting landowner or leaseholder.

Further, if governments may constitutionally protect such obtrusive occupants of the land as rampaging grizzlies, braying jackasses, and ravenous beavers, they may certainly also constitutionally protect the relatively innocuous species in question here.   Indeed, it is seemingly impossible to conceive of wildlife management and environmental regulation, as we currently know them, if a landowner could escape such regulation by demanding exemption or compensation for a constitutional taking.  (See also Sierra Club v. California Coastal Com. (1993) 12 Cal.App.4th 602, 617–619, 15 Cal.Rptr.2d 779, review denied [Per Smith, J., Division Two of this district rejected, as unripe and unsubstantiated by the record, a similar takings clause argument where the administrative action in question would have protected certain forest lands from cutting or development.];   accord, Moerman v. State of California (1993) 17 Cal.App.4th 452, 459, 21 Cal.Rptr.2d 329 [Per Dossee, J., there was no unconstitutional taking of private property where wild wapitis wandered.].)  Thus, P–L's arguments about supposedly unconstitutional takings of private property are doubly misplaced.

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

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

Contrary to P–L's interpretation, we do not believe the trial court improperly based its rulings upon its expressed criticism of Forestry and Fish and Game officials for allowing their professional judgment to become clouded by irrelevant personal animosities towards other state personnel, resulting in a precipitate rejection of the mitigation measures proposed by Fish and Game.   We observe from the record that Forestry and Fish and Game have certainly now found a way to resolve their differences, without allowing the public business to devolve into pure bureaucratic infighting.

In any event, the trial court's exhortations to the affected state officials to try to put aside extraneous personal animosities were not objectionable or erroneous, but justifiable in light of the record;  further, the trial court properly understood the legal issues involved, and correctly ruled on the merits without penalizing P–L for the mutual animosities of state officials.   The plain fact here is that the trial court judges rightly resolved the legal issues in these cases—in light of the applicable legal principles and the evidence, and the explicit and implicit concessions by Forestry, made upon the record.   We find no basis for reaching a different result here.

III. DISPOSITION

The trial court judgments are affirmed.

FOOTNOTES

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

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

PETERSON, Presiding Justice.

KING and HANING, JJ., concur.