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PAUL V. CARROLL/121369

 

Attorney At Law

5 Manor Place

Menlo Park, California 94025

(650) 322-5652

Attorney for Petitioners

CAMPAIGN TO RESTORE JACKSON STATE REDWOOD FOREST and

DHARMA CLOUD FOUNDATION

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF MENDOCINO

 

CAMPAIGN TO RESTORE JACKSON STATE REDWOOD FOREST and

DHARMA CLOUD CHARITABLE FOUNDATION TRUST,

Petitioners,

v.

CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, CALIFORNIA BOARD OF FORESTRY and Does I through X inclusive;

Respondents.

__________________________________/

SCUK CVG 0083611

Unlimited Civil Case

Related Case: SCUK CVG 0084953

PETITIONERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF TEMPORARY RESTRAINING ORDER

Date: April 26, 2001

Time: 1:15 p.m.

Dept: E

TABLE OF CONTENTS

ISSUE PRESENTED *

THE RELIEF SOUGHT *

INTRODUCTION *

FACTUAL AND PROCEDURAL BACKGROUND *

ARGUMENT *

I. PETITIONERS ARE ENTITLED TO A TRO AND PRELIMINARY

INJUNCTION RESTRAINING CDF FROM PROCEEDING WITH

LOGGING OPERATIONS IN JDSF IN THE ABSENCE OF A CURRENT MANAGEMENT PLAN *

A. CDF’s Approval Of THPs 483 And 484 In The Absence

Of A Current Management Plan Violates The Law *

B. CDF’s Continuing Failure To Prepare A New Management

Plan Allows It To Avoid CEQA *

C. CDF’s Defenses Are Without Merit *

1. The Board’s "concurrence" is no defense *

2. The 1983 Management Plan is not "current" under the law *

II. PETITIONERS AND THE PUBLIC INTEREST WILL BE IRREPARABLY

HARMED IF A TRO AND PRELIMINARY INJUNCTION DO NOT ISSUE *

A. The Location Of THPs 483 And 484 *

B. The Benefits Of A Current Management Plan *

C. The Effects Of Logging Since The 1983 Management Plan Was Approved *

CONCLUSION *

 

 

TABLE OF AUTHORITIES

ISSUE PRESENTED

Under California law, the California Department of Forestry (CDF) "shall" approve timber operations in Jackson Demonstration State Forest (JDSF) according to a "current" management plan. CDF has not had a current management plan since 1992. Yet, it has conducted numerous timber operations in JDSF since then, and intends to continue. Should this Court restrain CDF from selling and conducting further timber operations in JDSF until a current management plan is in place?

THE RELIEF SOUGHT

By this motion, Petitioners seek to temporarily restrain and preliminarily enjoin CDF from proceeding further with the sale and logging of timber harvest plan (THP) 1–99–484 MEN and THP 1–99–483 MEN in JDSF. Petitioners claim that, in the absence of a current management plan, CDF’s approvals of the THPs were illegal. CDF is now proceeding to sell the plans and have them logged. On or about April 9, 2001, CDF mailed out requests for bids to log both plans. The bids are due the first week of May 2001 when the contracts will be awarded. The winning bidder will be entitled to commence logging the sites. Unless CDF is restrained, Petitioners will be irreparably harmed. Two illegal logging operations, now involving third–party timber operators, will move towards completion. And Petitioners’ claims, no matter how meritorious, will become moot and ultimately fail.

INTRODUCTION

Established in 1947, and by far California’s largest state forest, Jackson Demonstration State Forest is a public treasure. Comprising over 50,000 acres in Mendocino County, it reaches from the Pacific coast in the west to the ridge of the inland valleys to the east. It is criss–crossed by almost 100 miles of rivers and streams, including the Noyo and Big Rivers, Caspar Creek, and Hare Creek. It is a trove of diversity, home to thousands of species, from the yellow-cheeked chipmunk to the red-legged frog, from the downy leatherwing to the spotted owl, some abundant, some declining, and some all but gone.

Given these riches, it is not surprising that the California Legislature and California Board of Forestry (Board) have declared that JDSF may only be managed in accordance with a current management plan approved by the Board. The purpose of such a plan is to intelligently guide the management and logging of this extraordinary place. Yet JDSF has not had a current plan for the past eight years, when the ten–year planning period for the previous management plan ended. Despite this lack, since 1992, CDF has approved every one of the more than 25 logging operations submitted for JDSF. Indeed, since the filing of this lawsuit, CDF has approved two more operations, THPs 483 and 484, and is poised to approve a third.

Petitioners and members of the public have beseeched CDF to stop approving logging operations in JDSF until the Board approves a new management plan, or until this lawsuit is decided. CDF has refused. It claims that in 1995 it told the Board that it would continue logging JDSF under the old management plan pending approval of a new one, and that the Board "concurred" in this decision. But the Board never concurred in anything. And, even if it did, its "concurrence" could not transform the old Management Plan into a legal and current one.

By this motion, Petitioners seek to restrain CDF from proceeding with the sale and logging of THPs 483 and 484, until the Court has decided the case on the merits. We will show that CDF’s management of JDSF and approval of THPs 483 and 484 are illegal, that CDF’s defense is a poor excuse for lawless action, and that unless CDF is restrained from proceeding with THPs 483 and 484, JDSF and the public interest will be irreparably harmed.

 

FACTUAL AND PROCEDURAL BACKGROUND

Overview

JDSF was acquired by California and established as a State Demonstration Forest in 1947. (Administrative Record (AR) 628.) At the time, the State was concerned about the depletion of California’s forests and timber resource because of the declining supply of old growth trees. (Pub. Res. Code, 4631, subd. (d); AR 621.) It therefore enacted legislation creating California’s state forests. ( 4631 et seq.)

Under that legislation, CDF is authorized to manage California’s state forests, including JDSF, "in accordance with plans approved by the board [California Board of Forestry]" ( 4645), and "acting in accordance with policies adopted by the board." ( 4646.) Board policy in turn states: "Management plans shall be prepared and maintained current for the Jackson…State Forests. All operations on the forests shall conform to the management plans." (AR 734.) The Act defines "management" of public forests as it does private forests under the Forest Practice Act: "‘Management’ means the handling of forest crop and forest soil so as to achieve maximum sustained production of high-quality forest products while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment." ( 4639 compare with 4513.)

JDSF: 1958–1992

During the 24-year period from 1958 to 1982, JDSF was governed by four management plans. In June 1984, CDF approved a fifth management plan ("1983 Management Plan") for the "ten-year planning period from 1983 through 1992." (AR 585, 617.) By its own terms, the 1983 Management Plan was to have "a major review at the midpoint of its effective period (1987), and be completely revised in 1992." (AR 711.) But CDF did not conduct a major review of the Plan in 1987, nor approve a new plan in 1992. (Respondents’ return to first amended petition (Return), 14.) In fact, it has not approved one yet. (Return, 14; Declaration of Paul Carroll (Carroll Dec.), 1-6, Exhs. A; B, pp. 6-7.) JDSF thus has not had a legal, current management plan since 1992.

JDSF: 1992–1999

After the 1983 Management Plan expired in 1992, members of the public began complaining that CDF did not have a current management plan for JDSF, and that its approval of logging operations in the absence of one was illegal. (See, e.g., AR 192, 196-198; Exhs. E, pp. 8-9; F, pp. 106-107.) By early 1995, CDF acknowledged that it was required to prepare a new management plan. On April 4, 1995, Richard Wilson, then Director of CDF, wrote the Board that CDF would not be able to have a new management plan prepared until sometime after December 1995. Until then, CDF would continue to manage JDSF under the 1983 Management Plan. (AR 842-843.) On the following day, the Board met in official session. (AR 844, 846, 867.) CDF claims that the Board concurred in Director Wilson’s intent to continue under the 1983 Management Plan until a new a plan was prepared some time the following year. (Exh. B, p. 3.) However, CDF has not been able to produce any admissible evidence demonstrating that the Board even considered, let alone acted on the contents of Wilson’s letter. There is no mention of CDF’s management of JDSF or Director Wilson’s letter in any of the agenda items or minutes of the Board during that period. (See AR 844-887.)

Contrary to Director Wilson’s prognostication, by the summer of 1996, CDF had not produced anything. Instead, it announced another delay: It would not have a new management plan until 1997. (Exh. G, p. 8.) But by late 1997, CDF was announcing yet another delay: this time, the formation of a "state forest advisory group" to "advise the Department on various forest management issues, during development of the new management plan for the forest." (Exh. H, p. 9.) The following year, 1998, came and went without CDF having even begun drafting a current plan. (Exh. B, pp. 6-7; Exh. I.) So too did 1999. (Exh. I.)

But CDF was not completely idle; in another arena—logging JDSF—it was quite active. Between the expiration of the 1983 Management Plan in 1992 and the end of 1999, CDF conducted more than 25 different logging operations in JDSF, in addition to those listed in the 1983 Management Plan. (Deposition of CDF (CDF depo.), pp. 86:21-87:3.) On November 19, 1999, the Sierra Club California wrote CDF Director Andrea Tuttle requesting a moratorium on the approval of new logging operations in JDSF until CDF prepared and approved a management plan for the state forest. (AR 508-510.) In her reply of December 10, 1999, Director Tuttle refused the Sierra Club’s request. (Exh. J.) In defense of CDF’s position, Director Tuttle maintained that the Board had "concurred" in CDF’s decision to log JDSF under the old 1983 plan. (Exh. J.)

JDSF: 1999–Present

By the end of 1999, under mounting public pressure, CDF announced that "completion of a new, comprehensive, long-term Management Plan this coming year is CDF’s main goal for JDSF," and predicted release of a draft management plan by the middle of 2000. (Exh. K, p. 1.) Several months later in March 2000, CDF confidently issued a Notice of Preparation of a Draft Environmental Impact Report for the Jackson Demonstration State Forest Management Plan, announcing the imminent preparation of a draft management plan by mid-2000, and an environmental impact report sometime later, and soliciting public comment on the scope of the two forthcoming documents. (Exh. L, p. 2.) CDF did not, however, release a draft management plan, let alone an environmental impact report, in mid-2000. And, as of April 2001, CDF has yet to release a draft of anything for JDSF.

Meanwhile, against this backdrop of agency delay and broken promises, CDF continues its practice of approving THPs in JDSF in the absence of a current management plan. When Petitioners filed their original complaint on June 14, 2000, they warned that CDF was poised to approve three new THPs in JDSF, namely THPs 1-99-459 MEN, 1-99-483 MEN, and 1-99-484 MEN. (Petition for writ of mandate, 23.) These are the same THPs that the Sierra Club referred to in its November 19, 1999, letter, when it requested CDF to impose a moratorium on the approval of new THPs in JDSF. (AR 509.) As feared, CDF approved THP 1-99-484 MEN on June 29, 2000. (AR 181.) As a result, Petitioners amended their complaint on July 28, 2000, to include specific challenges to CDF’s approval of this THP. (First amended petition for writ of mandate, 31, 45-55.)

Then, several months later, CDF approved THP 1-99-483 MEN. The timing of this approval deserves comment. The Court may remember that it held a status conference for this case on November 17, 2000. During the conference, counsel for Petitioners mentioned that Petitioners might bring a motion for a preliminary injunction to stop CDF from approving additional THPs in JDSF. It was the first time in this litigation that Petitioners had mentioned the possibility of seeking such relief. Five days later, on November 22, 2000, CDF approved THP 1-99-483 MEN. Petitioners have challenged CDF’s approval of THP 1-99-483 MEN in a separate action in this Court and have filed a notice of related case. (Campaign To Restore Jackson State Redwood Forest v. CDF (Super. Ct. Mendocino Cty. (2000) No. SCUK CVG 0084953.)

THP 459, therefore, is the only one of the three THPs pending when this lawsuit was filed that CDF has not approved. It is anticipated that CDF will approve THP 459 in the next several weeks or months, and will begin processing a new round of THPs for JDSF in 2001.

As for already–approved THPs 483 and 484, CDF has begun the process of having them logged. On or about April 9, 2001, CDF sent out bid requests to sell both plans to interested timber operators. The bids are due May 3 and 8, 2001. (Exh. X.) The winning bidders will be authorized to begin logging in the following weeks. (CDF depo., pp. 134:23-135:7.)

 

ARGUMENT

I.

PETITIONERS ARE ENTITLED TO A TRO AND PRELIMINARY INJUNCTION RESTRAINING CDF FROM PROCEEDING WITH LOGGING OPERATIONS IN JDSF IN THE ABSENCE OF A CURRENT MANAGEMENT PLAN

Petitioners claim that CDF’s approvals of THPs 483 and 484 were illegal and will have to be set aside, because JDSF does not have a current management plan as required by law. This motion is brought to restrain CDF from proceeding further with the sale and logging of the THPs until the matter can be fully heard.

A court should evaluate two interrelated questions when deciding whether to issue a TRO or preliminary injunction: (1) is there a reasonable probability that plaintiffs will prevail on the merits; and (2) will plaintiffs suffer greater injury from denial of the injunction than defendants will from its grant. (Robbins v. Superior Court (1985) 38 Cal. 3d 199, 206.) In striking this balance, the court should consider the advancement of the public interest. (County of Inyo v. City of Los Angeles (1976) 61 Cal.App.3d 91, 100; Cosney v. California (1970) 10 Cal.App.3d 921, 924.) "We believe no one would contend that the law has lesser concern for the overall public welfare than for individual private rights." (Bayside Timber Co. v. Board of Supervisors (1971) 20 Cal.App.3d 1, 14.)

In their first amended complaint, Petitioners seek (1) a writ of mandate to set aside CDF’s approval of THP 484; (2) a writ of mandate directing CDF to approve and conduct timber operations in JDSF in accordance with a current management plan; and, (3) a judicial declaration that CDF’s policy of logging JDSF in the absence of a current management plan is illegal. Petitioners will now demonstrate that they will prevail on these claims, and that they and the public interest will suffer irreparable injury unless CDF is enjoined from selling and logging the THPs until the matter is fully heard.

A. CDF’s Approval Of THPs 483 And 484 In The Absence Of A Current Management Plan Violates The Law

CDF has not had a current management plan, as required by law, since 1992. But that did not stop CDF from approving THPs 483 and 484 last year, and is not stopping it now from having them logged. CDF’s actions violate the law.

The Legislature has authorized CDF to manage California’s state forests, including JDSF, "in accordance with plans approved by the [B]oard" ( 4645), and "in accordance with policies adopted by the [B]oard." ( 4646.) In 1976, the Board adopted a policy in response to this directive. The policy is mandatory and requires CDF and the Board to maintain a "current management plan" for JDSF. It also requires that all individual logging operations within JDSF "conform" to the current plan. According to the policy, "Management plans shall be prepared and maintained current for the Jackson…State Forests. All operations on the Forests shall conform to the management plans." (AR 734 [emphasis added].)

The Legislature also authorized the Board to approve regulations for the proper management and harvesting of state forests. ( 4651, 4656.1.) Under this grant of authority, the Board has promulgated but one regulation. It commands CDF to manage JDSF and conduct operations within it in accordance with an approved management plan: "The harvesting of forest products from state forests and management of state forests shall follow management plans developed for each forest by the Director, and approved by the Board." (Cal. Code Regs., tit. 14, 1510 [emphasis added].)

This network of statute, regulation, and policy imposes a mandatory duty on CDF and the Board to manage JDSF according to a current management plan, and to ensure that timber operations within it conform to such plan. The mandatory term "shall" is repeatedly used to lay down CDF’s and the Board’s duties. The statute states that CDF "shall" manage JDSF according to Board policy. ( 4646.) Board policy states that management plans "shall" be prepared and maintained "current" for JDSF, and that all operations within it "shall" conform to the plan. (AR 734.) And the sole regulation for public forests states that operations within JDSF "shall" follow a management plan developed for it. (Cal. Code Regs., tit. 14, 1510.)

The omnibus provisions of the Public Resources Code provide: " ‘Shall’ is mandatory and ‘may’ is permissive." ( 15.) "It is a well established rule of statutory construction that the word "shall" connotes mandatory action and "may" connotes discretionary action." (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1321, 1321; In re Marriage of Fini (1994) 26 Cal.App.4th 1033, 1039.) And the use of "shall" indicates that the statute or regulation was intended to be mandatory, rather than directory, meaning that its violation invalidates the action taken—in this case, the approval of THPs 483 and 484. (E.g., Belth v. Garamendi (1991) 232 Cal.App.3d 896, 899-900; Cole v. Antelope Valley Union High School District (1996) 47 Cal.App.4th 1505, 1511-1512; Sutherland, Statutory Construction, 25.04, p.453.) This is especially the case if the statute or rule violated concerns a matter of importance to the statutory scheme, rather than a matter of procedure or convenience. (Cole, supra, 47 Cal.App.4th at 1512-1513; Bayside Auto and Truck Sales, Inc. v. Department Of Transportation (1994) 21 Cal.App.4th 561, 565-566.) And the rule applies with greater force where the statute or regulation imposes a duty on a public official to act in the public interest. (Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 896.) One cannot doubt the importance of a current management plan to the legal scheme surrounding JDSF, and one cannot doubt CDF’s duty to properly maintain California’s largest public forest.

Despite its mandatory duty to manage JDSF according to a current management plan, CDF has been logging JDSF for the past eight and one–half years without one. The 1983 Management Plan was intended only to cover the 10-year planning period from 1983 through 1992. Yet since its expiration in 1992, CDF his conducted at least 25 logging operations in JDSF that were not considered in the 1983 Management Plan. Accordingly, CDF’s approvals last year of THPs 483 and 484 were illegal and must be set aside. They do not conform to a current management plan, because no such plan exists.

B. CDF’s Continuing Failure To Prepare A New Management Plan Allows It To Avoid CEQA

By failing to prepare a current management plan, CDF commits a second legal wrong (albeit one that may not be actionable): it avoids its obligations under CEQA. As CDF concedes, its preparation of a new management plan will require it to prepare a related environmental impact report (EIR). (Exh. L, p.2.) Preparation of an EIR, in turn, involves a host of obligations under CEQA. CDF will be required to consider the significant adverse impacts and cumulative effects of the proposed plan, and alternatives to it. ( 21100, 21061, 21151; Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 400; Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428.) And an EIR for a project of this magnitude will necessarily cover a wide array of environmental issues, including watershed protection, riparian habitat, fisheries habitat, sedimentation, soil erosion, late seral habitat, endangered species, and the like. (Exh. L, pp. 3-4.) CDF will also be required to consider the comments and expertise of interested parties, such as concerned members of the public and other agencies. ( 21092 and 21092.1; CEQA Guidelines, 15087-i.15088; Laurel Heights, supra, 47 Cal.3d at 391, 404-405.)

But so long as CDF fails to prepare a current management plan, it fails to subject its activities in JDSF to environmental review, as required by CEQA. For the past eight years then, CDF has been logging JDSF without a current management plan, without the environmental review that a current plan will require, and without consideration of the public and agency input that a current plan will generate.

C. CDF’s Defenses Are Without Merit

In defense of these actions, CDF makes two claims. First, it maintains that in 1995 it informed the Board that it intended to continue logging JDSF under the old 1983 Management Plan while it prepared a new one, and that the Board "concurred" in this decision. Our response to this defense is twofold: first, the Board did not "concur" (whatever that means), let alone approve CDF’s action. Second, even if the Board did, such concurrence would not affect our challenge, since the Board cannot redeem CDF’s illegal behavior by concurring in it.

As to CDF’s second claim—that the 1983 Management Plan is current—we will show the claim cannot withstand even the mildest scrutiny.

1. The Board’s "concurrence" is no defense

Based on CDF and the Board’s responses to discovery, we now have a clearer picture of what CDF means by the Board’s "concurrence." On April 4, 1995, Director Wilson wrote a letter to the Board indicating that CDF had to prepare a new management plan for JDSF, but that the new plan would not be complete until sometime after December 1995. In the meantime, CDF "intends to continue operations under the current management plan until development of the new plan is completed." (AR 843.) According to Respondents, the following day, April 5, 1995, the Board concurred in CDF’s action. (Exh. B, pp. 2-3.) Yet, as Respondents admit, there is not a single document, official or otherwise—minutes, memoranda, resolutions, votes, or correspondence—that memorializes the Board’s purported concurrence. (Exh. C; Exh. D, p.3; see AR 842-887.) Instead, Respondents contend in an interrogatory response that the Board met on April 5, 1995, and that a staff member "briefly described" and "summarized" Wilson’s letter of the previous day. Then, a "member of the Board requested of the Chair whether a motion was needed to accept this proposal and the Chair indicated no such motion would be necessary." (Exh. B, p. 3.) We have two responses to this contention.

First, the interrogatory response (and any future declaration based on it) is based on rank hearsay to which Petitioners vigorously object. But even assuming such evidence is admissible, it proves only that the Board did not take any action, when CDF informed the Board how it intended to proceed. The Board did not vote or otherwise affirmatively assent to CDF’s proposal, let alone re–approve the old 1983 Management Plan as current. It simply did nothing. (See AR 842-887; Exh. B, p. 3.) For all we know, the Board may have disapproved of CDF’s tardiness, but felt CDF would live up to its pledge to prepare a new management plan as soon as possible.

But all of this is beside the point. Even if the Board "concurred"—whatever that means—such action could not redeem CDF’s failure to prepare a current management plan. The law requires the Board to "approve" a current management plan. The Board did not approve the 1983 Management Plan in 1995, and the 1983 Plan was not current in 1995. And, even if the Board’s action redeemed the 1983 Management Plan in 1995, it cannot possibly redeem it in 2001. In Director Wilson’s April 4, 1995, letter, CDF pledged to prepare the new management plan after it validated the most recent forest inventory, which was expected to occur by December 1995. (AR 842-843.) But this never happened. Then in March 1996, CDF again delayed preparation of a new management plan. It did so again in 1997, and again in 1998, and again in 1999. The Board never "concurred" in these delays, bringing us to this point in time—still without a current management plan for JDSF.

In sum, CDF’s first defense—that the Board concurred in its 1995 decision to continue managing JDSF under the old plan—is factually wanting and legally irrelevant.

 

2. The 1983 Management Plan is not "current" under the law

Respondents also claim that the 1984 Management Plan is "current" under the law. For example, they maintain that the 1984 Management Plan is "consistent with existing biological conditions in the forest"; and that they have "kept the [old] plan current by keeping forest management consistent with the plan." (Exh. B, pp. 5-6.) Respondents’ argument and the factual contentions on which it is based fail on numerous grounds. They are refuted (1) by the 1983 Management Plan itself; (2) by historic practice; (3) by CDF’s efforts, albeit hapless, over the past eight years to prepare a current management plan; (4) by its frequent admissions that a new plan is needed to bring the management of JDSF in line with new advances in the management of watersheds, cumulative effects, and endangered species; and (5) by CDF’s admissions under oath.

The 1983 Management Plan could not be clearer about the period of time it was intended to cover. It states in plain English: "This Management Plan presents the California Department of Forestry’s long-term goals and objectives and lays out specific intended management activities for Jackson Demonstration State Forest during the 10-year planning period commencing in 1983." (AR 617.) It also states that it should receive a "major review" at the halfway mark in 1987, and be "completely revised in 1992." (AR 711.)

Perhaps the best indication that the 1983 Management Plan became obsolete in 1992 is that for the most part it does not identify or consider any timber harvest plans in JDSF after 1992, even though required to by Board policy. Management plans, as we have shown, "shall be...maintained current." (AR 734.) In connection with this mandate, Board policy further provides that a current management plan "should include a cutting budget and order," that is, a list of proposed harvests and the order of harvesting. (AR 735.) But the 1983 Management Plan provides this information only through 1992. The 1983 Plan identified and listed the 31 individual THPs slated for logging in each of the years of the 10–year planning period from 1983 through 1992. (See AR 698; CDF depo., pp. 52:19-53:15.) But it does not identify and consider the many THPs approved and logged in other areas after that period. By 1992, CDF had for the most part logged the 31 timber harvest plans set forth in the 1983 Management Plan. (CDF depo., pp. 55:4-59:8; Exh. V [colorized map].) But since 1992, CDF has also approved and logged more than 20 THPs that were not considered or forecast in the 1983 Management Plan, and it has approved (but not yet logged) two more, namely THPs 484 and 483. (CDF depo., pp. 86:5-87:3, 91:5-8.)

To make matters worse, many of these subsequent THPs have been in a region of JDSF—the north–central region—that is different from and outside the timber harvest areas considered in the 1983 Management Plan. (CDF depo., pp. 53:19-54:22, 58:11-59:14, 82:7-84:13; compare Exh. U [map of 10–year schedule of 1983 Management Plan] with Exh. V [colorized map of logged areas by 1992] with Exh. W [colorized map of logged, unlogged, and pending operations as of 2001].) In light of these facts, it is difficult to fathom Respondents’ defense that the 1983 Management Plan is current under the law.

That defense is also belied by historical practice. During the 24-year-period between 1958 and 1982, JDSF was governed by four management plans. It appears from the record that there was a plan in 1958, another in 1964, a third in 1970, and a fourth sometime thereafter. (AR 10.) Up until 1983 therefore CDF prepared a new management plan for JDSF approximately every 6 years, even though each of these plans had a 10–year planning horizon. In contrast, the 1983 Management Plan is 18-years-old. CDF’s claim that it is "current" cannot be squared with the historic approval of management plans for JDSF at far shorter intervals.

Respondents’ defense is also repudiated by CDF’s efforts during the past six years to prepare a new management plan for JDSF. If the 1984 Management Plan was current, as CDF contends, why has it been trying since 1995, if not earlier, to prepare a new one, and why at every turn has it sought to reassure a concerned public that preparation of a new management plan was imminent? That question is best answered by CDF’s own statements. On a number of occasions, CDF has acknowledged that a new management plan for JDSF is required because the 1984 Management Plan is out–of–date. For example, in a December 20, 1999, News Release regarding JDSF, CDF announced:

Completion of a new, comprehensive, long-term Management Plan this coming year is CDF’s main goal for JDSF. A new plan is needed to bring the existing plan up-to-date recognizing new scientific information about the relationship of forest management to endangered species (primarily coho salmon, spotted owl, and marble (sic) murrelet) and water quality protection.

•••

CDF continues to manage the JDSF under the direction provided in a management plan approved by the Board of Forestry 1984 (sic). To ensure compliance with all environmental laws, specific projects, like timber sales, are modified to incorporate new scientific information on endangered species and water quality. (Exh. K, p. 1 [emphasis added].)

CDF also conceded the need for a new plan in responding to an inquiry by Mendocino County Supervisor Charles Peterson. CDF wrote: "Concerning our management plan on JDSF, the Board of Forestry was notified in April of 1995 that the California Department of Forestry and Fire Protection (CDF) was aware that it was time to update the 1983 (approved June 7, 1984) JDSF Management Plan." (Exh. M [emphasis added].)

In defense of its lack of a current plan, CDF often states that it will "adjust its activities" in JDSF to accommodate new information about logging’s impacts on the environment— information that was not known, let alone considered, in the 1984 Management Plan. For example, in the Official Response to THP 484, a member of the public complained that the 1983 Management Plan was not current, to which CDF replied in part:

[I]mportant new scientific information about endangered species, cumulative impact, protection of watersheds, and protection of fish habitat developed in the intervening years has resulted in the adjusting of activities.... (AR 194 [emphasis added]; see also Exhs. E, pp. 8-9; F, pp. 106-107; J, p. 2.)

If the 1983 Management Plan were current, CDF would not have to "adjust" its "activities to reflect consideration of new information" about a host of urgent environmental issues. The purpose of a current management plan is, after all, to intelligently guide management of the forest based on current scientific learning and information.

In this regard, CDF’s claim that the 1983 Management Plan is "consistent with existing biological conditions in the forest" is patently absurd. In support of this motion, Petitioners are presenting the declaration of Dr. Alan Cooperrider, an expert in the ecology and biodiversity of redwood forests. Dr. Cooperrider has worked as a wildlife biologist for over 30 years, researching and managing the effects of projects on the environment throughout the western United States. (Cooperrider Dec., 2-3.) He has published over 30 scientific papers and is the co-author of the award–winning book Saving Nature’s Legacy—Protecting and Restoring Biodiversity (Island Press 1994), and the author of the chapter "Terrestrial Fauna of Redwood Forests" in the book The Redwood Forest—History, Ecology and Conservation of the Coast Redwoods (Island Press 2000), the first comprehensive compilation of scientific knowledge of the redwood forests. (Cooperrider Dec., 4.) He lives in the Big River watershed, which includes portions of JDSF. He is familiar with JDSF, with its management, and with the 1983 Management Plan. (Cooperrider Dec., 5, 20-21.)

Dr. Cooperrider’s declaration is too extensive and detailed to be adequately summarized here. Suffice it that he avers to the following. Since 1983, when the last management plan was written, there have been dramatic developments in the sciences dealing with the effects of logging. Indeed, entire scientific disciplines, such as conservation biology and landscape ecology, have been developed to address the effects of human development on the natural world. (Cooperrider Dec., 13-17.) Conservation biology is the science of biodiversity and its conservation. It was virtually unknown before 1980: the Society for Conservation Biology did not begin its Journal until 1987. It has emerged during the past 15 years to address the problem of species loss due to landscape alteration and destruction. (Cooperrider Dec., 14.) Along with the emergence of new sciences to address species loss, has been the development of more sophisticated tools and techniques for analyzing the adverse impacts of logging and other land uses. These techniques have "dramatically improved the management of the Federal forest lands," and include (1) incorporation of larger landscape contexts in management plans; (2) population viability analysis to predict the effects of management on rare and threatened species; (3) use of Geographic Information Systems to analyze complex spatial ecosystems; and (4) use of effectiveness monitoring to determine if management objectives are being met. (Cooperrider Dec., 15-17.)

But none of these aspects of conservation biology are even mentioned in the 1983 Management Plan. Thus, Dr. Cooperrider concludes that the "1983 Management Plan is not ‘current’ by any scientific standard." (Cooperrider Dec., 20.) And contrary to CDF’s vague claim that it has "adjusted [its] activities" in JDSF in light of new scientific information, Dr. Cooperrider has seen no evidence that CDF "is even aware of the changes in science and management that have so dramatically altered the management of our National Forests." (Cooperrider Dec., 21.)

Based on its testimony under oath, CDF would have to agree with much of Dr. Cooperrider’s declaration. CDF conceded that by 1995 the 1983 Management Plan needed to be updated. (CDF depo., pp. 97:25-98:2.) It conceded also that the 1983 Management Plan was out-of-date in connection with a number of fundamental concerns, such as endangered species. (CDF depo., p. 99:10-19.) In accord with Dr. Cooperrider’s declaration, CDF acknowledged that a substantial amount of scientific information about forestry and its effects on the environment, including wildlife habitat, fisheries, and waterways had come to light since the 1983 Management Plan was approved and expired, and that a new management plan would have to synthesize and apply this new body of knowledge to JDSF. (CDF depo., pp. 103:7-104:11, 109:9-111:4.) As a result of these scientific discoveries and advances, CDF testified that the preparation of the new management plan was a "much more sophisticated planning process," and, consequently, the new plan would contain "more sophisticated analysis." (CDF depo., pp. 112:9-113:8.)

In the end, Respondents’ defense is refuted by simple logic. It would mean that any management plan—even one a century-old and wildly obsolete—remains current so long as CDF "adjusts its activities" to reflect new information about logging and its effects. But this thinking renders meaningless the concept of a current management plan and the law and policy on which it is based. Why have a current plan, if any plan will do?

II.

PETITIONERS AND THE PUBLIC INTEREST WILL BE IRREPARABLY HARMED IF A TRO AND PRELIMINARY INJUNCTION DO NOT ISSUE

Irreparable injury will occur here unless the status quo can be maintained by a TRO and preliminary injunction. CDF intends to sell THPs 483 and 484 the first week of May 2001, and allow logging to commence sometime thereafter. Unless it is stopped, Petitioners’ claims, no matter how meritorious, ultimately fail, and two illegal plans are allowed to go forward. Time, here, is truly of the essence.

To measure the harm, it is important to consider three issues: (1) the environment of THPs 483 and 484; (2) the purposes of a current management plan, and (3) the environmental issues that have confronted CDF since 1984, when the last management plan was approved.

A. The Location Of THPs 483 And 484

As previously described, THPs 483 and 484 are located in the north-central region of JDSF. The 1983 Management Plan forecast very little logging in this unique region. The north–central region comprises approximately 9,000 acres of mature, even-aged, second-growth forest. Indeed, it is the largest such stand in JDSF. (CDF depo., pp. 69:12-70:3.) By 1992, it was largely "unentered, meaning that it had not been logged since it was originally cut early this century. (CDF depo., pp. 69:16-24.)

It is characterized by larger trees and a continuous canopy. (CDF depo., pp. 72:3-13, 77:3-8.) Although the north–central region comprises only one-fifth the area of JDSF, it contains half of JDSF’s maintained campsites and a number of trails, many situated along flowing streams, making it the most attractive and popular destination for the camping public. (CDF depo., pp. 73:1-10, 80:1-9.) Not surprisingly, in the opinion of John Griffin, manager of JDSF’s timber sales program: "[T]o my sense of aesthetics, it has a higher value than much of the rest of Jackson State Forest." (CDF depo., p. 74:10-24.)

Unless CDF is restrained, the environmental values of the north-central region in general and the sites of THPs 483 and 484 in particular will be harmed before Petitioners’ claims can be fully heard.

B. The Benefits Of A Current Management Plan

One way of measuring harm in this case is to consider in the benefits of a current management plan, and what is lost when a THP, like 483 or 484, is approved and allowed to go forward in the absence of one.

A management plan for a forest, like a general plan for a county or municipality, is the "constitution" for its intelligent and sensitive use. (See Citizens of Goleta Valley v. Board of Supervisors of County of Santa Barbara (1990) 52 Cal.3d 553, 570 [general plan is the "the constitution for all future developments" to which any local decision affecting land use must conform].) It is the ordering principle of the forest, guiding CDF’s decisions around a variety of essential themes, including "recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment," and, of course, "maximum sustained production of high-quality forest products." ( 4651.) And, like a general plan, a management plan must be current and periodically updated. (See, e.g., Gov. Code, 65103, subd. (a), 65588, subd. (b); Pub. Res. Code, 30519.5.)

The requirement of management plans for California’s state forests is unique, and shows the State’s special solicitude for them: management plans are not required of private landowners. (See generally Cal. Code Regs., tit. 14, 895 et seq.) (But private landowners must prepare management plans if they wish to obtain the generous subsidies the State provides for private forestland improvement. ( 4795-4799.)) A management plan, if you will, allows CDF to see "the forest for the trees." This advantage would be lost, however, if CDF were allowed to manage JDSF on a mere THP–by–THP basis.

A management plan also allows CDF to see the stewardship of JDSF as the "whole of an action," an essential requirement under CEQA. (CEQA Guidelines, 15378, subd. (a) [emphasis added]; see CEQA Guidelines, 15002, subd. (d); San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 730.) Such a broad-view approach affords the greatest protection to the environment for a number of reasons, not the least being that it is the best perspective from which to evaluate cumulative impacts. (Cooperrider Dec., 19.) Evaluating a series of logging operations through the lens of a management plan ensures that environmental considerations do not become submerged by chopping a large project into “smaller ones.” (Bozung v. Local Agency Formation Commission Of Ventura County (1973) 13 Cal.3d 263, 283-284; City of Santee v. County Of San Diego (1989) 214 Cal.App.3d 1438, 1452.) Because they are considered "so important to resource and land-use planning," management plans "have been incorporated as a mandate into virtually every major piece of land use legislation in the past 25 years, including the National Environmental Policy Act, CEQA, the National Forest Management Act, the Federal Land Use and Planning Act, the Endangered Species Act, and California law governing state forests." (Cooperrider Dec., 18.)

The benefits of a current management plan can also be measured by considering the environmental review it will receive. Under CEQA, CDF’s consideration and approval of a current management plan will require certification of an EIR for the plan. (Exh. L, p. 2.) And, since a management plan is essentially a "large project," encompassing a series of smaller ones (individual THPs), the type of EIR that CDF undoubtedly will use is a program or "first tier" EIR. (CEQA Guidelines, 15168, subd. (a).) While any EIR provides a host of benefits to the decision–maker, the concerned public, and the physical environment, the benefits of the program EIR are particularly well documented and its use is encouraged. (CEQA Guidelines, 15168 [Discussion].) Among other things, a program or first tier EIR (1) provides "occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action"; (2) insures "consideration of cumulative impacts that might be slighted in a case-by-case analysis"; (3) allows consideration of "broad policy alternatives and programwide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts." (CEQA Guidelines, 15168, subds. (b)(1)-(3).)

The consideration of alternatives that CDF will have to undertake in approving a new management plan illustrates the harm that is being caused by its delay. In the Notice of Preparation of a Draft Environmental Impact Report for JDSF, CDF described the alternatives it intends to analyze and consider in the as–yet–unplrepared EIR. Several of these alternatives would increase the level of wildlife protection, habitat restoration, and recreation, and would considerably decrease the level of logging, as compared to the 1983 Management Plan. This is a radical departure from the 1984 Management Plan, which devoted less than two pages to the entire subject of "Fish and Wildlife," and one sentence to the entire subject of "Wildland Resource Values." (AR 644-645, 691.) Suffice it to say that if a new management plan had been in place during the last several years, CDF’s logging of JDSF—the number, scope, character, and location of logging operations—may have taken a very different course.

But CDF’s continuing failure to approve a current management plan deprives the public, the environment, and CDF itself of the considerable benefits fresh environmental review would entail. (Cooperrider Dec., 19.) By the same token, CDF’s delay prevents the public and other interested agencies from commenting on an EIR for JDSF. For over eight years now, these concerned parties have been unable to bring their insights and expertise to bear on the environmental issues confronting CDF’s management of JDSF. (Mountain Lion Coalition v. California Fish and Game Commission (1989) 214 Cal.App.3d 1043, 1051 [public’s "keen and sophisticated interest" in environmental issues required full participation].)

Unless CDF is restrained, THPs 483 and 484 will be logged before the benefits of a current management plan can be brought to bear on them.

 

C. The Effects Of Logging Since The 1983 Management Plan Was Approved

CDF’s logging of JDSF and THPs 483 and 484 without a management plan is particularly lamentable in light of what has been learned about the effects of logging since 1983. Even CDF readily concedes a new management plan is "needed to bring the existing plan up-to-date recognizing new scientific information about the relationship of forest management to endangered species…and water quality protection." (Exh. K, p.1.) But what CDF and the Board do not say is that much of this new information is an indictment of their failure to protect the California environment.

In 1990, the northern spotted owl, indigenous to JDSF, was listed as a threatened species under the federal Endangered Species Act (ESA). (55 Fed.Reg. 26114 (June 26, 1990).) The listing attributed the main cause of the species’ decline to logging, particularly logging that occurs without consideration of the continuity of the larger landscape, a problem that a current management plan could address. (Cooperrider Dec., 15, 19.)

Habitat for northern spotted owls has been declining since the arrival of European settlers.…Reduction of old growth is largely attributable to timber harvesting and land conversion practices .... (55 Fed.Reg. 26175.)

•••

Timber harvesting and natural perturbations result in a loss of suitable spotted owl habitat and an increase in forest fragmentation. Habitat fragmentation may be defined as the breakup of continuous tracts of forest habitat into smaller, more isolated parcels (USDI 1969). (55 Fed.Reg. 26183.)

The 1983 Management Plan was prepared seven years before the northern spotted owl’s listing as a threatened species (although the bird was considered a "sensitive" species by the United States Forest Service when the Plan was prepared). (AR 645.) Not surprisingly, the Plan contains virtually no information about the northern spotted owl, and nothing about how logging JDSF during the 10-year planning period through 1992 may affect the bird or its habitat. The scant four sentences about the species conclude with CDF admitting how little it knows:

It is not known how many spotted owls might utilize the State Forest, nor what areas are inhabited. The only recorded sighting was in 1974 when a single owl was observed east of Camp 20. (AR 645.)

As a result of recent surveys required by the owl’s ESA listing, we now know that the species does, indeed, inhabit and breed within JDSF. (Exh. P, pp. 1-3.)

The coho salmon, once plentiful in the rivers and creeks of JDSF, was the next to be listed. The Central California coast coho, ranging from Humboldt County south to Santa Cruz County, was listed as a threatened species under the federal ESA in 1996. (61 Fed.Reg. 56138, 56145 (Oct. 31, 1996).) The National Marine Fisheries Service (NMFS) concluded that California logging and logging-related activities, such as road construction, were primary causes of the coho’s decline. (61 Fed.Reg. 56141.) And it found that CDF’s oversight fell short of that required to protect the species from logging’s deleterious effects:

The current process for approving timber harvest plans receives inadequate environmental review, and monitoring of impacts of timber harvest operations is insufficient to determine whether a particular operation damaged habitat and, if so, how it might be mitigated. There are also exceptions to the rules that allow timber harvest to occur without any requirement for environmental review or monitoring. (61 Fed.Reg. 56143.)

The listing of the coho was followed by the listing of the Northern California steelhead, indigenous to the creeks and rivers of Humboldt County south to the Gualala River in Mendocino County. (65 Fed.Reg. 36074, 36081 (June 7, 2000).) The history of the steelhead’s listing is also a pointed commentary on CDF and the Board’s continuing failure to address the adverse impacts of logging on California’s flora and fauna. In 1998, NMFS declined to list the Northern California steelhead as threatened because it believed that California would implement conservation measures "essential for the long-term survival and recovery" of this species. (65 Fed.Reg. 36074-36075.) But at the same time, NMFS concluded that timber harvest activities in California were adversely affecting salmon habitat through increased sedimentation, loss of riparian vegetation, loss of habitat complexity and connectivity, and the removal of large woody debris. It also concluded that the implementation and enforcement of the California Forest Practice Rules (FPRs) failed to protect salmon, because of a variety of shortcomings, including failure to meet scientific requirements for salmonid protections, and inadequate and ineffective cumulative effects analyses. (65 Fed.Reg. 36084-36085.)

To address this situation, in March 1998, NMFS and the State of California entered into a memorandum of agreement (MOA) that committed California to improve protection for the Northern California steelhead on non-federal forest land—81 percent of the steelhead’s habitat is in private and non–federal hands—and to restore freshwater spawning, rearing, and a migratory habitat on those lands. (65 Fed.Reg. 36075-36076.) The MOA also called for the review and revision of California’s Forest Practice Rules by January 1, 2000. NMFS viewed compliance with these provisions within the specified time frame as "essential for achieving properly functioning habitat conditions for steelhead." (65 Fed.Reg. 36076.)

In accordance with the MOA, a scientific review panel was established by the State to review California’s Forest Practice Rules, their implementation, and their enforcement. The MOA committed California to conduct a scientific review of the FPRs; make appropriate changes in their implementation and enforcement; and recommend rule changes to the Board if such changes were necessary to conserve coho and steelhead. (65 Fed.Reg. 36076, 36085.) Issuing its report in June 1999, the scientific review panel concluded that California’s FPRs, and their implementation through THP review, do not ensure protection of coho and steelhead habitat and populations. (65 Fed.Reg. 36076, 36079-36080, 36085.)

In accordance with the MOA, in July 1999, the California Resources Agency and the California Environmental Protection Agency presented the Board with a proposed rule change package. The Board did not act on the package by January 1, 2000, and thereby failed to approve the FPRs, as required by the MOA. (65 Fed.Reg. 36076.) In response, the California Legislature, through Senate Bill 621, gave the Board special authority to adopt new rules twice during 2000 to revise the FPRs and meet federal ESA requirements for salmon. The Board worked on the FPRs through March 2000. During this time, NMFS and a host of California agencies, including the Department of Fish and Game, the North Coast Water Quality Control Board, and CDF, strongly urged the Board to adopt the FPR package as a necessary first step for salmon protection. On March 14, 2000, the Board adopted only part of the proposed package. (65 Fed.Reg. 36085.)

In response, NMFS concluded that the partial rule changes failed to protect salmon or provide properly functioning habitat, in part, because they failed to address a host of "critical elements recommended by the scientific review panel as necessary to avoid, minimize and/or mitigate adverse cumulative watershed impacts on salmonid populations." (65 Fed.Reg. 36085.) Therefore, in June 2000, NMFS listed the Northern California steelhead as a threatened species under the federal ESA. (65 Fed.Reg. 36074.)

Threatened wildlife was not the only arena in which CDF, the Board, and the FPRs were being blamed for environmental damage. Under section 303, subdivision (d), of the federal Clean Water Act, California’s regional Water Quality Control Boards must identify those rivers in California that remain impaired despite federal and state laws designed to protect and restore them. In 1994, the Big and Noyo Rivers, both of which flow through JDSF, were listed as impaired due to sedimentation largely attributed to logging, the major land use activity in Mendocino’s coastal watersheds. (Exh. Q; Cooperrider Dec., 7.) That listing has been reaffirmed and continues to the present. (65 Fed.Reg. 36079.) Once again, the listings were viewed as evidence of the State’s failure to control the deleterious effects of logging. (Ibid.)

It is against this backdrop of harm that CDF’s continued logging of JDSF in the absence of a current management plan must be considered. Not one of these symptoms of logging’s harm—the plight of the coho, steelhead, northern spotted owl, or the listing of 17 north coast California rivers—was considered in the 1983 Management Plan, for the simple reason that the harm had not yet been recognized, or, if recognized, had not yet been officially declared. (Cooperrider Dec., 7-8.) Consider what the 1983 Management Plan had to say about coho salmon:

Silver [coho] salmon and steelhead trout utilize many miles of stream on the State Forest….The Noyo run of silver [coho] salmon is especially significant to the presence of an egg collecting station maintained by the Department of Fish and Game. Counts of spawning fish made at the station over the past 10 years have averaged almost 1600 annually. (AR 644.)

Eighteen years later, this rosy picture has turned bleak. Coho have been all but extirpated from the Noyo. (Exh. R; CDF depo., pp. 105:14-106:13.) Indeed, NMFS’s latest prognostication is dire: Central California coast coho may be going extinct. (Exh. S.)

Consider what the 1983 Management Plan had to say about steelhead: it barely mentions the species, let alone hints at the threats it would face 17 years later. (AR 644.) Consider again what it said about the northern spotted owl:

It is not known how many spotted owls might utilize the State Forest, nor what areas are inhabited. The only recorded sighting was in 1974 when a single owl was observed east of Camp 20. (AR 645.)

And, finally, consider that the 1983 Management Plan did not say a word about the sedimentation that now impairs the Noyo and Big Rivers and their tributaries throughout JDSF. So much for CDF’s claim that the 1983 Management Plan "is consistent with existing biological conditions in the forest."

CONCLUSION

In light of the foregoing, Petitioners respectfully request the Court to issue a temporary restraining order and preliminary injunction preventing CDF from proceeding further with the sales and logging of THPs 483 and 484 until this Court has determined whether CDF’s approval of those plans violated the law.

Dated: April ____, 2001

 

   
  PAUL CARROLL

Attorney for Petitioners