Katzeff v. California Dep't of Forestry & Fire Protection
Citation: 40 ELR 20032
No. No. A122642, (Cal. Ct. App., 01/28/2010)
A California appellate court reversed a lower court’s dismissal of an action on the grounds that the California Department of Forestry and Fire Protection (CDF) improperly granted an exemption from the California Forest Practice Act (FPA) to a property owner to convert his timberland to an orchard without environmental review. One of the mitigation measures in two expired timber harvesting plans for the same property was that the trees in question remain in place to protect the plaintiff neighbor’s property. In his action, plaintiff objected to the exemption on the grounds that, among other things, (1) it violated the FPA and California Environmental Quality Act (CEQA) because it would destroy a mitigation previously deemed necessary; and (2) the property owner did not have, and CDF failed to determine he had, a bona fide intent to convert the land to an orchard. The court held that, where a public agency has adopted a mitigation measure for a project, it may not authorize destruction or cancellation of the mitigation – whether or not the approval is ministerial – without reviewing the continuing need for the mitigation, stating a reason for its actions and supporting its actions with substantial evidence. The CDF must therefore justify its decision to allow the timber to be harvested. As to bona fide intent, the court held that, in light of the factual dispute raised by the administrative record, it was incumbent upon the CDF to determine whether the property owner had a bona fide intent to convert the property. The record contained no such determination. For these and other reasons, the court reversed the lower court’s dismissal of the action.