Arcata Redwood Company v. State Board of Forestry

No. 61910 (Cal. Super. Ct. September 8, 1977)

The court upholds the power of the State Board of Forestry to disapprove timber harvesting plans on the grounds that they would foreclose future congressional action to expand Redwood National Park. Petitioners, which are logging companies doing business in Humboldt County, filed harvesting plans with the Director of Forestry; these plans were rejected by the Board as not conforming to the California Forest Practices Act. On respondents' general demurrer to the petition challenging this denial, the court holds that, although some of the allegations in the petition are conclusory and therefore cannot survive the demurrer, the allegations concerning the effect of the possible expansion of the Park are sufficiently specific to state a cause of action. As to this allegation, the court accepts petitioners' argument that the Forest Practices Act alone does not grant the Board authority to deny the plans, because the Act is intended to regulate the manner of, rather than the decision of whether to allow, timber cutting. Nonetheless, the court relies on Natural Resources Defense Council v. Arcata National Corp., 6 ELR 20623, and an amendment to the California Environmental Quality Act to find that the Board must include environmental protection among its purposes. The Board found that approving the timber plans would adversely affect the environment near and in the Park and therefore was required to consider alternatives. A feasible alternative, properly implemented by the Board, was disapproval of the plans pending action by Congress on expansion of the Park. The court also holds that the complaint was not correctly verified and cannot state a cause of action against the Director of Forestry, since his orders are not final administrative action subject to judicial review.

The orders of the State Board of Forestry (11 pp. $1.50, ELR Order No. A-1010) and an Attorney General's Opinion relative to this issue (5 pp. $0.75, ELR Order No. A-1011) are available from ELR.

Counsel for Petitioner Arcata Redwood Co.
Stuart R. Pollak
Howard, Prim, Rice, Nemerovski, Canady & Pollak
640 California St., San Francisco CA 94108
(415) 434-1600

Counsel for Petitioner Louisiana-Pacific Corp.
Joseph A. Darrell
Thelen, Marrin, Johnson & Bridges
2200 Two Embarcadero Center, San Francisco CA 94111
(415) 392-6320

Counsel for Respondent
R. Frederic Fisher, Robert Schiebelhut
Lillick, McHose & Charles
Two Embarcadero Center, San Francisco CA 94111
(415) 421-4600

Antonio Rossmann
476 Jackson St., San Francisco CA 94111
(415) 398-4727

Counsel for Amicus Curiae United States of America
Rodney Hamblin, Ass't U.S. Attorney
450 Golden Gate Ave., San Francisco CA 94102
(415) 556-5131

[7 ELR 20755]

MACFARLAND, J.:

The petitioners in the instant case are logging companies currently engaged in timber harvesting operations in the area of Redwood Creek in Humboldt County. Pursuant to their logging activities in March 1977, the petitioners filed a number of timber harvesting plans with the respondent, Lewis A. Moran, the Director of Forestry.

Three of the plans filed by the petitioners were subsequently returned by the director as being unacceptable on the grounds that each of said plans was not in conformity with the Z'berg-Nejedly Forest Practice Act (hereinafter referred to as the Forest Practice Act), and specifically with §§ 4512(b) and (c), and 4513(b) of the Public Resources Code.

At the petitioners' request, a public hearing (pursuant to § 4582.7 of the Public Resources Code) was held on May 12, 1977 and at the conclusion of the hearing, the State Board of Forestry filed its ruling sustaining the action of the Director of Forestry and disapproving each of the respective plans. The decision of the State Board of Forestry set forth six specific findings in support of its order of disapproval.

On May 23, 1977, the petitioners filed a petition for a writ of mandate (subsequently amended on June 3, 1977) pursuant to § 1094.5 of the Code of Civil Procedure and a writ was issued directing the director, and the State Board of Forestry to show cause why their respective administrative orders of disapproval should not be set aside. The respondents filed both an answer and a demurrer to the first amended petition and the matter of the demurrer was presented to the court for its consideration on July 6, 1977.

In addition, the United States Attorney made a motion, subsequently granted by the court, to authorize the United States of America to participate in the proceedings as amicus curiae and in opposition to the first amended petition.

The matter of the legal sufficiency of the first amended petition, and the demurrer thereto, was presented and authorities filed by the respective parties with lengthy and extensive arguments, and at the conclusion of the hearing of the matter, the demurrer was taken under submission by the court for its subsequent determination.

The first amended petition alleges that the action of the state board is illegal and invalid for the various different and diverse grounds specified in paragraph 10, subparagraphs (a) through (g) on pages four through six of the first amended petition.

The respondents have demurred to the entire first amended petition on the basis first, that it fails to set forth any cause of action in that the allegations of paragraph 10 are conclusionary in nature; secondly, that the unchallenged findings of the State Board of Forestry are sufficient to justify its action in denying the timber harvesting plans; thirdly, that the petition is not verified as required by law, and finally, that there is no cause of action stated against the Director of Forestry, Lewis A. Moran.

In addressing each of the grounds for demurrer ascribed by the respondents, it appears that the allegations contained in paragraph 10 are generally conclusionary in nature and that few, if any, of the ultimate facts of the respondents' actions or conduct resulting in the alleged abuse of authority are disclosed.

More specifically, to allege "that the Respondent state board and director ordered the timber operations shall not commence under the plans even though the plans are in conformance with the rules and regulations of the state board . . ." (paragraph 10(a)) or that the state board considered matters outside the administrative record (paragraph 10(c)) or that the state board adopted standards without notice (paragraph 10(d)) are all clearly conclusionary in nature, and as such neither sufficient to appraise the respondent of the specific facts upon which the petitioners are basing their claim or to state a cause of action.

Nor do the allegations that the denial of the timber harvesting plans were based upon "vague and imprecise criteria," or that the [7 ELR 20756] board's action was "arbitrary and capricious (paragraph 10(e)) cure the conclusionary nature of the allegations for such pleading is the mere utilization of words of art which are in themselves, and in the absence of the facts to which they apply, incapable of stating a cause of action. Faulkner v. California Toll Bridge Authority 40 Cal. 2d 317 (1953).

The remaining allegations contained in paragraphs 10(f) and (g) to the effect that the action of the state board was a taking of property without due process and that the action of the state board was not taken within the time prescribed by law are likewise conclusionary in nature and as such, they may not be the basis upon which the petitioners rely in seeking a writ of mandate.

A demurrer may be taken with regard to the entire petition or to any cause of action stated in it. A demurrer to the entire first amended petition must be overruled however if any of the various allegations which may be stated in the petition properly states a cause of action, and a general demurrer will be overruled if it appears that the petitioner is entitled to any judicial relief, regardless if the facts upon which he relies are intermingled with other facts irrelevant to the particular cause of action under scrutiny. Shook v. Pearson 99 Cal. App. 2d 348 (1950); Crane v. Electronic Memories and Magnetics Corporation 50 Cal. App. 3d 509 (1975).

While the first amended petition purports to state a single cause of action, in fact the allegations contained in the subparagraphs of paragraph 10 set forth several distinct causes of action which the petitioners have not elected to segregate or to describe separately. As such, if any one of the collectively stated causes of action is legally sufficient, that is should any one of the causes of action allege sufficient facts giving rise to the cause of action, then the demurrer to the entire petition must be denied.

Paragraph 10(b) alleges that there is no substantial evidence contained in the administrative record to support the third finding of the State Board of Forestry. As distinguished from the other allegations in paragraph 10 however, the petitioners have described with specificity the particular portions of the challenged finding as to which they contend there is a lack of evidence, i.e., "that the executive branch and appropriate members of the legislative branch of the federal government are actively considering specific proposals for the expansion of the Redwood Park, etc."

Accordingly, the allegations contained in paragraph 10(b) may be differentiated from those contained in Ward v. The County of Riverside, 273 Cal. App. 2d 353 (1969) (a case cited by the respondents), where the petition merely alleged that the descision of the board was not supported by the evidence, but the particular portion of the finding which it is alleged suffers from that defect.

Since the petitioners are in effect required to plead in the negative, i.e., the nonexistence of evidence in the administrative record to support that portion of the finding sought to be challenged, it is difficult if not impossible to determine how or in what other manner the lack of evidence as to the particular portion of finding number three could be otherwise alleged. Furthermore, even if such allegations were deemed to be vague or uncertain they are legally sufficient to state a cause of action for a writ of mandate. Parker v. The Board of Trustees, 242 Cal. App. 2d 614 (1966).

In summary and as to the first ground for demurrer put forward by the respondents, it appears that while the demurrer is properly taken as certain of the allegations which would constitute separate causes of action were they separately stated, it is not well taken as to the entire petition as allegations sufficient to constitute a cause of action are alleged in paragraph 10(b). The demurrer must therefore be overruled.

The second ground for demurrer urged by the respondents addresses itself to the proposition that while the petitioners have challenged the sufficiency of the evidence contained in the administrative record to support the third finding of the State Board of Forestry, they have not however, sought to question the remaining findings (numbers one, two, four, five, and six) and the remaining findings are themselves legally sufficient to support the action of the state board without reference to the third findings. In short, the respondents argue that denial of the timber harvesting plans by the state board is legally sufficient without recourse to or reliance on the third finding.

The issue thus framed by the respondents' demurrer presents to the court the very heart and essence of the controversy for in order to make its ruling dispositive of the second ground for demurrer, the court must not merely review the lengthy administrative proceedings, but more significantly, the Forest Practice Act itself in order to determine whether, under the provisions of the Act, authority exists to authorize the State Board of Forestry's denial of a timber harvest plan because of a proposal to include the area of the plan within the boundaries and confines of the Redwood National Park.

In this regard, the petitioners contend that the state board's action is based on §§ 4512 and 4513 of the Public Resources Code, which are statements at the outset of the Forest Practice Act of legislative declaration and intent.

As such, the petitioners argue that these statements do not constitute authority, but are in fact merely part of the preamble of the Forest Practice Act and not of sufficient certainty to constitute an enabling statute upon which the state board may predicate their denial of a timber harvesting plan. They further contend that the entire Act itself is not a legislative enactment to determine whether timber will in fact be harvested, but more particularly to determine the manner in which such timber will be harvested and that the considerations which shall govern the approval of a particular plan, are the specific rules and regulations which have been adopted implementing the Act itself.

A reading of the Forest Practice Act lends substantial support and credence to the petitioners' argument and would initially tend to suggest the correctness of the petitioners' interpretation of the Act for in the main, the Forest Practice Act is a detailed and substantial statement of rules, procedures and policies which are to be implemented incidental to timber harvesting operations in California. Under the authority of the Act, various rules, appearing in Cal. Administrative Code tit. 14, §§ 911 and 960, have been adopted to provide detailed and specific procedures and regulations to govern the harvest of timber. It thus appears that in the exercise of the regulatory power by the State Board of Forestry, the legislature sought to assure that the timber industry would continue the production of high quality forest products in a manner that was compatible with recreational values and aesthetic considerations.

The author can take notice of the former practices of many years ago in California and the other western states which were unfortunately conducted for immediate maximum timber production, and without reference to watershed, wildlife, forage, or fisheries and in such context, the court can appreciate the multiple objectives that the Forest Practice Act sought to achieve, i.e. to regulate logging activity for the general public welfare in such a manner so as to not preclude other uses including recreation and aesthetic appreciation of the area harvest.

In this regard, the petitioners are correct and it cannot be seriously questioned that an acknowledged purpose of the Act was to provide for the balanced management of the forest to meet the different and diverse goals which are described in the legislative findings and in accordance with the specified intent of the Act.

To summarize the interpretation of the Act as submitted by the petitioners is quite simply to say that its provisions are limited to the manner in which timber operations are conducted and not whether they may in fact be conducted and that this construction of the Act follows of necessity from a reading of its specific and detailed provisions.

In applying the foregoing construction to the case at bar, the petitioners contend that the director's action and that of the State Board of Forestry, extends far beyond the purview of the Act and that in enforcing the rules and regulations which are to govern the harvesting of timber, the State Board of Forestry may not rely on the vague and imprecise legislative statements of intent in §§ 4512(b) and (c) and 4513(b) of the Public Resources Code as providing any standard to deny plans which are in all other ways in conformance with the specific regulatory provisions of that Code. Otherwise stated, §§ 4512 and 4513 of the Code provide no fixed measure nor standard to govern the conduct of the petitioners' operations and lacking such, they do not constitute a [7 ELR 20757] rule or regulation upon which the director and the state board may rely in denying timber harvesting plans.

While the petitioners' analysis appears at first glance to be in conformity with the objectives and purpose of the Forest Practice Act, it overlooks the significant consequences of the principles announced in Natural Resources Defense Council, Inc. v. Arcata National Corporation, 59 Cal. App. 3d 959 [6 ELR 20623] (Cal. Ct. App. July 8, 1976), as well as the effect of the subsequent legislative enactment of § 21080.5 of the Public Resources Code on the Forest Practice Act.

In NRDC v. Arcata, supra, the plaintiff had brought an action against the Arcata National Corporation and others to establish that the state forester was required to comply with the provisions of the California Environmental Quality Act (CEQA) and that a certain timber harvesting plan approved by the director should be set aside by reason of the admitted failure of the director to comply with the provisions of § 21100 et seq. of the Public Resources Code. In sustaining the action of the trial court, the appellate court held that CEQA not only applied to the harvesting of timber but that an environmental impact report must be prepared and submitted relative to timber harvesting plans, and most significantly in relation to the instant case, that the provisions of CEQA are deemed a part of the Forest Practice Act.

As an apparent consequence of the trial court's decision in NRDC v. Arcata, supra, and as a legislative recognition of its significance on timber harvesting plans, the legislature enacted § 4514.3 of the Public Resources Code as an urgency measure to provide an interim exemption to timber harvesting authorized under previous plans which were not in compliance with the requirements of CEQA by reason of their failure to have had an environmental impact report prepared and filed relative to the respective plans. Of greater import to the case at bar however, was the fact that in NRDC v. Arcata, supra, the court discussed the effect of the subsequent enactment of § 21080.5 and the certification thereafter by the Resources Secretary that the Timber Practices Act was the "functional equivalent" of the environmental impact report process and was thus exempt from the requirements of providing a full scale environmental impact report under the dictates of CEQA.

The foregoing judicial determination and legisative enactments are controlling on the issue raised in the second ground for demurrer, for as stated in NRDC v. Arcata, supra, the effect of the certification by the Resources Secretary is not a blanket exemption from the responsibility of CEQA but only relieves the parties from the full scale report required by § 21100 of the Public Resources Code. Accordingly, timber harvesting plans remain subject to environmental consideration and the limited exemption is only available because the regulatory program of the State Board of Forestry has been deemed to be the functional equivalent of the environmental impact report process and this determination by the Resources Secretary is subject to a further condition precedent, i.e., that the regulatory program of the State Board of Forestry is itself found to include environmental protection as among its principal purposes. CAL. PUB. RES. CODE, § 21080.5(b)(1)(i).

In reviewing the sections of the Forest Practice Act, the provisions which most lend themselves to the construction that one of the principal purposes of the Forest Practice Act is the "protection of the environment" are §§ 4512 and 4513 of the Public Resources Code. (Parenthetically, it may be noted that the Resources Secretary has based his finding that environmental protection was a principal purpose of the Forest Practice Act not only on the implementing provisions of the Act but with specific reference to the legislative findings and declarations contained in §§ 4512 and 4513 of the Public Resources Code.)

Finally, it is unequivocally clear that the Forest Practice Act must be read in conjunction with, and not as an alternative to, or independent of, the provisions of CEQA. In administering the Forest Practice Act, the State Board of Forestry is therefore charged with environmental responsibilities which are not specified and set forth separately in the Forest Practice Act, but which appear under the provisions of CEQA and more particularly under § 21080.5 of the Public Resources Code.

More specifically, the director and the State Board of Forestry, in exercising the discretion conferred upon them to approve or disapprove a timber harvesting plan, must consider that environmental protection is one of their primary responsibilities under that portion of the Forest Practice Act which embraces the CEQA considerations and further that a timber harvesting plan which has a significant adverse effect on the environment should not be approved if there are feasible courses or measures as alternatives to or in mitigation of such adverse impacts. CAL. PUB. RES. CODE, § 21080.5(b)(2)(i). In short, the Director and the State Board of Forestry must consider and act on environmental considerations in discharging their duties under the Forest Practice Act and their duty and authority in this particular extends to the very purpose and objectives of CEQA itself.

To determine the propriety of the respondents' actions, one must turn from a generic consideration of the Act itself (and the CEQA principles embraced therein) to the specific application of the Act to the situation disclosed in the record before the court.

The State Board of Forestry and the director before it were presented with a unique situation relative to the timber harvesting plans filed by the petitioners. On the one hand, each of the respective plans presented by the petitioners was in conformity with the technical provisions of the Act and with the rules and regulations of the Administrative Code. On the other hand, the acreage comprising the area of the respective plans contained virgin redwood timber and was located in the immediate vicinity of the existing Redwood National Park boundaries (finding number one). The area contained in the plans was also within the boundary of two proposals currently pending before the United States Congress to expand the Redwood National Park (finding number two). The area of the timber harvesting plans was possessed of substantial aesthetic and recreational values as park land, which values would be irretrievably lost if the timber harvesting plans were approved prior to federal action to preserve such values (finding number four). Finally, a denial of the timber harvesting plans, pending active consideration and action by the United States would avoid the irreversible loss of the aesthetic and recreational values of the area (finding number five).

The foregoing facts were set forth as findings in the order of the State Board of Forestry and establish that the approval of the plans as submitted would work a substantial adverse impact on the area of the plans, in effect by severely diminishing the aesthetic and recreational value of the area to such an extent as to conceivably preclude the expansion of the Redwood National Park to include the area described in the plans. It is to be noted that the foregoing substantial and significant adverse impact arose not from the fact of timber harvesting itself, but from the fact found by the State Board of Forestry to the effect that the United States Congress was currently considering two proposals to enlarge the Redwood National Park to include the acreage subject to the petitioners' proposed operations under the timber harvesting plans.

In discharging its responsibilities in implementing the Forest Practice Act as the functional equivalent of the environmental impact report process, the State Board of Forestry determined that the proposed plans resulted in a substantial, significant and irremedial adverse impact to the area of the timber harvesting plans, and having so found was further obligated to consider alternatives to the plan, as well as measures which would mitigate or lessen the adverse impact which was found to exist.

In its consideration of alternatives or measures in mitigation of the adverse impact, the State Board of Forestry was required to balance the purposes of the Forest Practice Act, i.e., to furnish maximum sustained production of high quality timber products while also giving consideration to the environmental values of recreation and aesthetics. CAL. PUB. RES. CODE, § 4513(b). In its endeavors to accomplish this balance, and in the course of its review of alternatives to the petitioners' proposal, the guiding criteria for the respondents to rely upon was to ensure the long term protection of the environment. CAL. PUB. RES. CODE, § 21001(d). In the event that suitable alternatives or measures in mitigation of the adverse consequences to the environment were available, then the timber harvesting plans as submitted by the petitioners should not be approved. Friends of Mammoth v. The [7 ELR 20758] Board of Supervisors, 8 Cal. 3d 247 [2 ELR 20673] (Cal. Sup. Ct. Sept. 21, 1972) at page 263, footnote 8.

The determination of the State Board of Forestry was that such alternative existed to lessen, indeed to obviate the adverse impact, that alternative being to currently deny the petitioners' plans to allow for the active consideration and action by the federal government thus to avoid the loss of the aesthetic and recreational values and thereby eliminating the adverse consequences to the environment which were contained in the timber harvesting plans (findings numbers four and five).

Having determined an alternative to the proposed plans was available, under the authority of § 21001(d) of the Public Resources Code and the Friends of Mammoth v. The Board of Supervisors, supra, it was required that they be disapproved. Accordingly, the board's order issued disapproving the timber harvesting plans without prejudice should the Congress fail to act relative to the Redwood National Park expansion. The foregoing was within the authority of the State Board of Forestry under the Forest Practice Act and is sustained by the uncontested findings which are sufficient in themselves to support the board's determination on this matter. Accordingly, the respondents' demurrer must be sustained.

Section 1086 of the California Code of Civil Procedure requires that verification of a petition for writ of mandate must be made by a person beneficially interested and further, that verification by counsel for a party based on the attorney's information and belief, does not comply with § 1086. Since the first amended complaint is not verified by authorized corporate officers for either of the petitioners but by counsel, the respondents' third ground for demurrer is proper and the demurrer should be sustained.

The administrative decision of the Director of Forestry, Lewis A. Moran, was itself subject to further administrative review by the State Board of Forestry. As such, the orders of the Director of Forestry are not final administrative orders and are thus not subject to review by this court. The first amended petition does not therefore set forth a cause of action against Lewis A. Moran as Director of Forestry and the respondents' fourth ground for demurrer is well taken.

Since the sustaining of the demurrer in the instant case is essentially the same as the court granting a motion for a judgment on the pleadings, the petitioners should be given the opportunity to allow them to determine whether the innumerated defects which are relied upon by the court in sustaining the demurrer are subject to amendment and thus curable. Winn v. McCulloch Corporation, 60 Cal. App. 3d 663 (1976). Accordingly, the petitioners will be given 15 days from notice of the above ruling within which to amend their petition.