By Janell M. Bogue
In the case of Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (May 22, 2008) 2008 Cal.Lexis 6207, the California Supreme Court discussed several issues important to those who deal with CEQA. The Court held that the Department of Forestry and Fire Protection (“Department”) properly approved several timber harvest plans (“THPs”) for land located in Tuolumne County. In doing so, the Court examined the requirements for cumulative impacts analysis and the analysis of foreseeable actions.
Under the Forest Practice Act (“Act”), a THP serves as the functional equivalent of an EIR and must give the public detailed information on the proposed project. The Act’s regulations adopt CEQA’s definition of cumulative impacts. (See Cal. Code of Regs., §§ 895.1 and 15355.) The Act’s regulations specify that cumulative impacts shall be assessed based on the methodology of the Board of Forestry’s Technical Addendum Memorandum Number 2. Regulations further specify that the discussion of cumulative impacts “shall be guided by standards of practicality and reasonableness.” (Cal. Code Regs., § 898.)
Plaintiff Ebbetts Pass Forest Watch (“Ebbetts Pass”) argued that the THPs approved by the Department did not comply with the Act because they did not follow the methodology specified in the technical addendum. Ebbetts Pass specifically alleged that the THPs’ discussion of the California spotted owl and the Pacific fisher was insufficient because “biological assessment areas [did not] vary with the species being evaluated and its habitat.” While agreeing that Ebbetts Pass was technically correct because the description of the analysis was limited to the project’s watershed, the Court nevertheless held that the substance of the discussion in the THPs complied with the regulations. The Court said that the THPs “in fact devoted ample discussion to cumulative impacts on the two species at issue, on a much broader geographic scale, up to and including logging on all [Real Parties’] forest lands in the Sierra Nevada.” The Court held that the question was one of procedure, upon which the Court exercised its independent legal judgment. The Court emphasized the purpose behind the requirements of a cumulative impacts analysis and said:
The purpose of requiring a cumulative impacts analysis in a timber harvest plan under the Forest Practice Act, as in an EIR under CEQA, is to ensure that the public and decision makers receive full information before the project is approved, not to set procedural traps for plan preparers or the CDF.
Analysis of Foreseeable Actions
Ebbetts Pass also argued that the THPs’ discussion of potential herbicide use was insufficient. The THPs explained that herbicides are sometimes used as part of the vegetation management program, but the decision whether or not to use them is made by an advisor at the time that the site is prepared for timber harvest. They concluded that the use of herbicides was too speculative to include in the impacts analysis. However, the THPs went on to say that there was a reasonable probability that herbicides would be used. The THPs also discussed the four herbicides that had previously been used for past projects, their effects, and possible alternatives.
The Court disagreed with Ebbetts Pass and held that the THPs were adequate. Citing Laurel Heights Improvement Association v. Regents of University of California (1988) 47 Cal.3d 376, the Court said, “[a] detailed environmental analysis of every precise use that may conceivably occur is not necessary at this stage.” The court went on to say:
Where the exact parameters of generally foreseeable future actions cannot confidently be predicted, the full-disclosure goals of CEQA and the Forest Practice Act may nonetheless be met with an analysis that “acknowledges the degree of uncertainty involved, discusses the reasonably foreseeable alternatives … and discloses the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 434.)
Since the Department did discuss the potential impacts, mitigation measures, and alternatives to herbicide use, the Department’s approval of the THPs were upheld.
Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.