The Western Watershed Alliance Files Against MEndocino Redwoods over Willow Creek THP
"The California Environmental Quality Act must be interpreted to afford
the fullest possible
environmental protection within the reasonable scope of the statutory
language," (Friends of
Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 ). Still
today, Respondent, California
Department of Forestry (CDF), fails to heed the mandate of the court in
Friends of Mammoth in its
review and approval of Logging Plan 1-99-100 SON ("Logging Plan 100").
"Examination of recently approved [logging plans] and [sustained yield plans] indicates that plans are being approved that do not contain technically valid cumulative impact assessments" .
"As currently implemented, California Forest Practice rules have not prevented the cumulative watershed impacts that led to the recent listing of multiple northern California streams as impaired by sediment under section 303(d) of the Clean Water Act. As currently implemented, the Rules are not sufficient to restrict excess sediment production from logging-related activities to levels that will not accelerate reservoir sedimentation, increase flooding by channel sedimentation, and degrade water quality. Several studies have shown excessive landsliding rates on recently logged slopes, and recent monitoring indicates that turbidity levels during and after logging can be out of compliance with water quality regulations."
The logging plan at issue in this case suffers from the same issues raised by Dr. Reid. It does not prevent cumulative watershed impacts, and it does not restrict excess sediment production from logging-related activities. Petitioner, Western Watershed Alliance ("Alliance"), hereby applies for an order staying respondent, California Department of Forestry and Fire ProtectionÝs ("CDF"), decision to approve Logging Plan 1-99-100 SON (ýLogging Plan 100ţ), and a temporary restraining order and order to show cause enjoining Mendocino Redwood Company, LLC from engaging in any logging operations, including road construction or cutting down of trees pursuant to this plan until a hearing and decision is rendered on petitioner's motion for preliminary injunction.
Throughout its Response to Public Comment, CDF concludes that there will be no significant adverse cumulative environmental impacts as a result of this logging plan because CDF staff has thoroughly reviewed the plan and insisted it follow the Forest Practice Rules. Unfortunately, these conclusions must be supported by facts if CDF if to reverse its record and begin to implement the rules as intended. The Forest Practice Rules, as currently implemented, by CDF is no assurance that maximum sustained yield of high quality timber products will be achieved or that all protections feasible will be incorporated into the logging plan. CDF's responses in its Official Response are not only conclusory and unfounded, they are inadequate according to the standards the courts have defined in the case law. The current condition of most of CaliforniaÝs watersheds shows, in no uncertain terms, that CDF's current implementation of the Forest Practice Rules is absolutely no guarantee of legally mandated environmental protection. The current condition of California's watersheds and fisheries, in fact, leads to the opposite conclusion.
II. LEGAL FRAMEWORK
The application for a stay of CDF's decision is made pursuant to CCP 1094.5(g). The application for injunctive relief is made pursuant to CCP ▀▀526 and 527(a), which empowers this Court to issue a temporary restraining order or a preliminary injunction where it appears by the verified complaint or affidavits that great or irreparable injury would result to the petitioner if the injunction is not issued. A trial court should grant a restraining order or preliminary injunction if it finds the plaintiff has a reasonable probability of prevailing at trial and will suffer more harm from denial of the preliminary injunction than defendant would suffer from its grant (Robbins v. Superior Court (County of Sacramento) (1985) 38 Cal.3d 199, 205-06; Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 286).
In this case, injunctive relief is warranted for the following
1. Irreparable Injury: Mendocino Redwood Company (ýMRCţ) may begin operations on this logging plan at any time. The logging plan has been approved by CDF.
Petitioner will be irreparably injured because, if the logging is not enjoined, any judgment would be ineffectual in preventing the environmental damage which petitioner is attempting to prevent. The precarious status of the coho salmon in the Willow Creek watershed, strongly suggests that the coho can not tolerate and will not withstand any additional long term or short term impacts to its habitat.
Degradation of habitat of a listed species harms the species chance of survival and is considered an unlawful ýtakeţ of the species. The challenged logging plan will contribute to the continuing decline of habitat for the coho salmon which is facing extinction: The coho salmon requires clean, cold, and shady watercourses in which to successfully reproduce. If the level of logging in this plan is allowed to proceed, the destruction of this habitat will be irrevocable and no amount of monetary compensation would adequately compensate petitioner.
2. Public Interest: The public interest in environmental protection favors resolution of these issues before this damage occurs or before the case is rendered moot by destruction of the environmental values petitioner is seeking to protect.
3. Balance of Hardship: The balance of hardships tips strongly in petitioner's favor, because: (1) MRC may cut down the trees just as easily after the conclusion of this suit as before if the suit is unsuccessful; (2) MRC has no right to log timber in violation of California and federal law; and (3) if the Court does not grant a temporary restraining order and preliminary injunctive relief, petitioner will not receive its day in court because after the trees are cut, the damage will be done.
4. Probability of Success on the Merits: The legal and factual basis for this application are set forth in greater detail in the section entitled ARGUMENT below.
This case is brought pursuant to the Forest Practices Act ("FPA") at Public Resources Code ("PRC") ▀4514.5 and the California Environmental Quality Act ("CEQA") at PRC ▀21080.5(g). Pursuant to CCP ▀1085 and PRC ▀21168.5, a writ of mandate may issue where the agency has committed a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in the manner required by law or if the agency's decision is not supported by substantial evidence.
Logging operations on public and private lands in California must comply with the Forest Practice Rules (ýRulesţ) (14 CCR ▀▀ 895.1 et seq.), the FPA (PRC ▀▀ 4512 et seq.) and, subject to limited exceptions, with CEQA (PRC ▀▀ 21000 et seq., PRC ▀21080.5(c)). (See Sierra Club v. State Board of Forestry (1994) 7th Cal.4th 1215, 1228-1235.) Both the broad environmental concerns expressed in CEQA at PRC ▀ 21000 and the substantive standards of CEQA at PRC ▀ 21001 apply to the logging industry. (Sierra Club, supra.) An environmental impact report ("EIR") is not required by CEQA for timber operations, however, pursuant to PRC ▀ 21080.5, logging plan required under the FPA is the functional equivalent of an EIR. Except for this exemption from the EIR requirement, all other provisions of CEQA apply to review and approval of logging plans. (Sierra Club, supra; Ultramar, Inc. v. South Coast Air Quality Management District (1993) 17 Cal.App.4th 689, 699; EPIC v. Johnson (1985) 170 Cal.App.3d 604, 609-611.)
In Sierra Club the California Supreme Court applied the fundamental principles of CEQA to timber harvest plans, stating: "CEQA compels government first to identify the environmental effects of projects, and then to mitigate those adverse effects through the imposition of feasible mitigation measures or through the selection of feasible alternatives." Id. at 1233; Pub. Res. Code ▀ 21002. These CEQA policies are also included in Forest Practice Rules 898 and 898.1.
The guiding principle in the review of projects under CEQA, including the review of logging plans, is that CEQA must be interpreted so as to afford the fullest possible protection to the environment.
(Laurel Heights Home Improvement Ass'n v. Regents of the University of California ("Laurel Heights I") (1988) 47 Cal.3d 376, 390; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259.) EIRs and their functional equivalents, such as logging plans, demonstrate to an apprehensive citizenry that the agency has analyzed and considered the ecological implications of its action. (Sierra Club, supra; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86;EPIC v. Johnson, supra, 170 Cal.App.3d at 609-11.)
Finally, CEQA, the FPA and prevailing case law all require that CDF respond to significant environmental points raised during the logging plan review process. (CEQA Guidelines 14 CCR 15002(j) and 14 CCR 1037.8; Gallegos v. State Bd. of Forestry (1978) 76 Cal. App.3d 945, 952-55.)
The "Official Response" must provide non-conclusory responses based upon empirical data, scientific authorities and explanatory information in a manner that discloses the agency's mode of analysis.
The failure to issue substantively adequate and timely responses constitutes a prejudicial abuse of discretion. (See EPIC v. Johnson, supra, 170 Cal.App.3d at 627-28; Gallegos v. State Bd. of Forestry, supra, 76 Cal.App.3d at 952-955.)
III. STATEMENT OF FACTS
Real party in interest, MRC, submitted Logging Plan 100 to CDF on March 24, 1999. A true and correct copy of Logging Plan 100 is attached as Exhibit 1 to the Ex Parte Application for Temporary Restraining Order filed herewith.
Logging Plan 100 consists of 121 acres of Redwood and Douglas fir, as well as some hardwoods, in the headwaters of Willow Creek. The logging plan allows cutting down of trees in the Watercourse Lake Protection Zone, allows fifty six crossings of watercourses, and the re-opening up of many old and re-vegetated skid trails and roads. At least thirteen logging plans have been approved and carried out in this small watershed in the last ten years.
The Willow Creek watershed supports coho salmon, steelhead salmon, and Northern Spotted Owl, all of which are in danger of becoming extinct. Willow Creek is located on the Sonoma coast. It is a steep area that is subjected to large storm events throughout the winter and hot temperatures throughout the summer. Although sedimentation is lethal to coho salmon, sediment enters Willow Creek and the habitat of the coho salmon and steelhead trout in large amounts. Coho salmon cannot survive more than very minor changes in water temperature requiring the cold water associated with long stretches of thick riparian vegetation.
Petitioner participated in the review of this plan and offered comments during the appropriate comment period. Although the issue of the coho salmon is a major issue in this logging plan and although the public expressed concern over the lack of participation of the California Department of Fish and Game, CDF did not require Fish and Game participation and went on to conclude that the logging plan would not have significant cumulative effects on the coho salmon. In addition to this less than adequate evaluation of the impacts to the coho, CDF failed to follow up on concerns with respect the representations made about the spotted owl data, the lack of availability of of information requested by the public, and lack of valid and complete data on the location of the resident Northern Spotted Owls.
IV. ARGUMENT A. CDF FAILS TO ADEQUATELY EVALUATE CUMULATIVE IMPACT
Willow Creek is already significantly impacted. "Much of the watershed has been heavily grazed and logged...Because of the extensive damage to the watershed, any logging activities in Willow Creek have recently been quite controversial.... Willow Creek has a historically high sediment load due to past logging and associated features....The Russian River is listed under Section 303(d) of the Clean Water Act as impacted by sediment." (Regional Water Quality Control Board, letter to CDF 5/3/99).
Significant amounts of sediment continue to enter the habitat of the coho salmon and severe sediment deposition has destroyed spawning grounds. The filling of the creek with sediment make it difficult and in some cases impossible for the salmon to migrate up the sediment filled creek. The court in EPIC v. Johnson, supra, 170 Cal.App.3d at 624-625, held that CDF must evaluate the cumulative impacts of a logging plan pursuant to CEQA and the CEQA Guidelines, emphasizing that the cumulative impact assessment is critical to ensure that the broad policy goals of CEQA are achieved.
The cumulative impact analysis bears directly on the scope of potential adverse environmental impacts, the necessity for mitigation measures, and ultimately the appropriateness of project approval. (Citizens to Preserve the Ojai v. Bd. of Supervisors (1985) 176 Cal.App.3d 421, 431). CDF must avoid significant adverse impacts where feasible. The cumulative impacts assessment must "include evaluation of both on-site and off-site interactions of proposed project activities with the impact of past and reasonably foreseeable future projects.
1. In this case, CDF fails to do a meaningful analysis of the impacts from the logging plans to be submitted and have been submitted in this watershed. Logging Plan 136, for example, is a 320 acre plan that is expected to be approved in the next two weeks. CDF, however does not explain the impacts of that logging plan in combination with Logging Plan 100. Nor does CDF go over the expected impacts from other plans entering the review process.
In conducting an assessment, the plan submitter and CDF must distinguish between on-site impacts that are mitigated by application of the Forest Practice Rules and the interactions of proposed activities (which may not be significant when considered alone) with impacts of past and reasonably foreseeable future projects." (Rule 912.9, Technical Rule Addendum No. 2.) In applying these rules, CDF must use its "best efforts to find out and disclose all [it] reasonably can." (San Franciscans for Reasonable Growth, Inc. (SFRGI) v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74.) As shown below, CDF failed to lawfully assess the cumulative impacts of Logging Plan 100.
2. Another serious flaw in CDFÝs review of this logging plan is its misapplication of the concept of significance. It is important that CDF acknowledge the biological limits of watersheds, e.g. when significant impacts have or are occurring, and provide some opportunity for watersheds to recover before large logging operations are permitted. This is critical, because without a proper application of the concept of significance, the excessive logging of watersheds will continue unchanged until the land and soil can no longer support timber and is then subdivided for development.
Cumulative impacts can result from individually minor but collectively significant projects taking place over a period of time (14 CCR ▀▀ 895.1, ▀ 15355). Under this definition, any individual project may have impacts which, when considered in isolation, are not significant, but when the various projects and "related past projects" are considered together, the total cumulative impact may well be significant. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 722.) The First District Court of Appeal recently affirmed its broad reading of CDFÝs obligation to assess the cumulative impacts of logging plans first rendered in EPIC v. Johnson. (see Friends of Old Trees v. CDF (1997) 52 Cal. App. 4th 1383,1394).
Fish habitat is still recovering from past logging practices. The
incremental impacts of
present-day land management practices, when added to impacts of past
land management practices,
continue to pose a serious threat to Central California coast coho.
The facts of this case indicate that any addition of sediment to the Willow Creek, already significantly impacted by sediment, by Logging Plan 100 above natural levels constitutes a significant cumulative impact. As the Court in Kings County recognized, the fact that the incremental impact of Logging Plan 100 may be just a small part of the overall problem does not vitiate the fact that this plans will have significant cumulative impacts after their incremental impacts are added to past impacts.
Here, the record shows that Logging Plan 100 will contribute sediment to Willow Creek (letter from North Coast Regional Water Quality Control Board to CDF May 3, 1999). Neither MRC nor CDF ever directly address the approximate quantity of sediment that they expect Logging Plan 100 to contribute to the stream system. Instead, the public is treated to a series of evasive conclusions to the effect that sedimentation will be "minimized" or "reduced."
Thus one of the principal bases for CDF to conclude that Logging Plan 100 will not have a significant cumulative effect on watershed resources is the fact that the amount of sediment it will contribute is small because it has been minimized and reduced. But this is clearly inconsistent with the definition of cumulative impacts because it fails to consider the logging plan in the context of the total or cumulative impacts of all "other closely related past, present, and reasonably foreseeable probable future projects." CDF's formula effectively -- and unlawfully -- deletes from the analysis the contribution of past impacts from the assessment of "significance."
This method subverts the assessment of cumulative impacts because, even though existing watershed impacts are already significant, the conclusion of CDF is that the logging plans' cumulative impacts are non-significant because the "incremental" change to existing conditions is not "significant." This approach is unlawful because cumulative impacts will almost always be non-significant if one only assesses the "significance" of the incremental impact of the current plan, instead of the combination of past and current incremental impacts.(Kings County Farm Bureau v. City of Hanford, supra, 221 Cal. App.3d at 719-722.)
The law requires that the impact of the plan be viewed in context. And, as is the case here, where the entire landscape is already significantly degraded, even seemingly de minimus incremental impacts must be considered "significant." In short, there is not substantial evidence in the record supporting a determination by CDF that Logging Plan 100 will not have significant cumulative watershed impacts.
B. NORTHERN SPOTTED OWL INFORMATION NOT CONSISTENT WITH THE CONCLUSIONS DRAWN IN THE LOGGING PLAN.
Page 48 of the logging plan states that there were no species on the endangered species list observed or known to exist within or adjacent to the [logging plan] itself. According to the NSO Management System Database, however there are at least two activity sites and or nest sites within the boundaries of the logging plan. In this case, however no protections were incorporated into the plan, to protect these areas from habitat modification or harm.
In addition to CDF's failure to follow up on the concerns, with respect to the characterization of the database information by the plan submitter, raised by the public, CDF also mistakenly allows an extension of a "no take" certificate that was never valid. The "no take certificate" is supposed to indicate that after proper surveying techniques have been carried out, the logging plan will not harm (destroy habitat of ) a listed species. The "no take" certificate in this case was never valid and could not, therefore be extended.
The court "must scrutinize the record and determine whether substantial evidence" supports the agencyÝs decision. The often technical nature of challenges to EIR's also requires particular attention to detail by a reviewing court. (Laurel Heights I, supra, 47 Cal.3d at 408). "A clearly inadequate or unsupported study is entitled to no judicial deference." (Id. at 409, n. 12.) As the Court in San Joaquin Raptor noted, an understanding of the current environmental setting is essential to assessing the impact of the current project.
C. FEASIBILITY ANALYSIS OF MITIGATIONS NOT CONDUCTED AS REQUIRED
In Sierra Club the California Supreme Court applied the fundamental principles of CEQA to timber harvest plans, stating: "CEQA compels government first to identify the environmental effects of projects, and then to mitigate those adverse effects through the imposition of feasible mitigation measures or through the selection of feasible alternatives." (Sierra Club v. State Board of Forestry (1994) 7 Cal.4th 1215, 1233). In determining whether CDF complied with these legal duties, the Court must "determine whether the act or decision is supported by substantial evidence in the light of the whole record" (PRC ▀ 21168; Laurel Heights I, supra, 47 Cal.3d at 407. Friends of Old Trees v. CDF (1997) 52 Cal. App. 4th 1383, 1392.
Willow Creek is currently suffering from significant adverse cumulative adverse impacts. CDF must, especially in light of the significant impacts already occurring, protect the watershed from additional adverse impacts where feasible. CDF not only does not protect the creek from sedimentation, it does not conduct any type of feasibilty analysis whatsoever.
D. PUBLIC DENIED THE OPPORTUNITY TO REVIEW INFORMATION UPON WHICH CDF BASED ITS DECISION TO APPROVE THIS PROJECT
CDF failed to make available to the public the NSO information upon which its decision to approve logging plan 100 is based. The complete survey results and methods have not been made available to the public as required by the California Environmental Quality Act (CEQA). CEQA requires that the public and the regulatory agencies be provided sufficient information with which to evaluate the impacts of a proposed project during the public comment period .
E. CDF DOES NOT RESPOND DIRECTLY, AS THE LAW REQUIRES TO THE CONCERNS OF THE PUBLIC IN ITS OFFICIAL RESPONSE TO PUBLIC COMMENT
One example of CDF's inadequate response to public comment is its response to the concern submitted by the public and State Parks and Recreation Department. The public and the Parks Department requested CDF to explain and ensure that the mitigations which CDF concludes will help the watershed are enough to off set the reopening of the old skid trails and roads, the 56 stream crossings permitted by CDF, the removal of up to sixty percent of the bigger trees permitted by CDF, the knocking down of ten acres of hardwoods, and removal of trees in the Watercourse and Lake Protection Zone permitted by CDF. The public and the State raised the issue of long term impacts and short term impacts as they relate to the sedimentation of the creek. What does CDF consider short term - a week, a year, a couple of years, or longer? Will the coho salmon survive even one more winter of large sediment deposition and on what evidence is CDF's conclusion based? CDF should be able to directly answer these questions if has properly evaluated the plan. CDF offers no direct Response to these concerns.
For the foregoing reasons, this Court should stay CDF's decision approving Logging Plan 100 and issue a temporary order enjoining timber operations on Logging Plan 100 until a ruling after noticed hearing on petitionerÝs motion for preliminary injunction.
DATED: JUNE 16, 1999
ENVIRONMENTAL DEFENSE CENTER
Attorneys for Petitioner
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