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Natural Resources Defense Council v. Arcata Nat'l Corp.

ELR Citation: 6 ELR 20623
Nos. 1 Civ. No. 37555, 131 Cal. Rptr. 172, (Cal. Ct. App., 07/08/1976)

The court affirms a lower court's decision that the state forester must prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA), ELR 43010, in reviewing timber harvesting plans submitted by private parties under the state Forest Practices Act. Contrary to defendants' assertions, the two acts supplement each other and their requirements must therefore be harmonized. Particular timber harvesting activities must thus be held subject to the requirement for an EIR if they qualify as "projects" requiring agency "approval" within the meaning of CEQA. The activities in question are implicitly subject to state approval in that no harvesting is permitted unless a plan has been submitted to and reviewed by the forester and he has not returned the plan as inconsistent with the prescribed rules. Such private timber operations, regulated and permitted by the state, clearly qualify as "projects" under CEQA. Defendants mistakenly characterize the function of the state forester in reviewing the plan as ministerial rather than discretionary. The forester's review is of mixed ministerial-discretionary character since it involves a personal judgment. CEQA applies to such hybrid actions. Nor is the time discrepancy between the 30 to 90 days required for EIR preparation and the 15 to 25 days allowed for plan review irreconcilable, since submission of a draft environmental study may be required before the plan is deemed received for review. While the timber industry was granted a temporary exemption from CEQA as an emergency measure after the Forest Practices Act was passed, the legislature's subsequent failure to enact a permanent exemption constitutes an implicit rejection of defendants' contentions. The court also rules that plan review under the Forest Practices Act is not the "functional equivalent" of EIR preparation under CEQA.

Counsel for Plaintiffs
John Leshy
Ballard Jamison
Natural Resources Defense Council, Inc.
664 Hamilton Ave.
Palo Alto CA 94301
(415) 327-1080

Counsel for Defendants
George A. Sears
Robert M. Westberg
David Jackson
Pillsbury, Madison & Sutro
225 Bush St.
P.O. Box 7880
San Francisco CA 94120
(415) 983-1000

Norman C. Cissna
Huber, Goodwin, Murray, Cissna & Prior
550 Eye St.
Eureka CA 95501
(707) 443-4573

Denis T. Rice
Stuart R. Pollak
Jerome B. Falk
Robert E. Goodin
Fred Altshuler
Howard, Prim, Rice, Nemerovski, Canady & Pollak
650 California St.
Suite 2900
San Francisco CA 94108
(415) 434-1600

Counsel for Intervenor Defendant California Forest Protective Association
Varnum Paul
Vaughn, Paul & Lyons
220 Bush St.
San Francisco CA 94104
(415) 392-1423

Counsel for Amicus Curiae Attorney General of California
Joel Moskowitz
Resources Division
Office of the Attorney General
Department of Justice
Sacramento CA 95814
(916) 445-2256

Kane, J., for himself, Taylor & Rouse, JJ.