Superior Court of California
(Endorse-Filed, May 18 2001, Clerk of Mendocino County,
Superior Court of California)
CAMPAIGN TO RESTORE JACKSON STATE
Petitioner, Case No. CV 83611
CALIFORNIA DEPARTMENT OF FORESTRY
ORDER FOR PRELIMINARY INJUNCTION
Factual and Procedural Background: Respondent ("CDF") manages the 50,200 acre Jackson Demonstration State Forest ("forest") located within Mendocino County. On June 7, 1984 the State Board of Forestry reviewed and formally approved the Jackson Demonstration State Forest Management Plan. (AR" 584-585) (That plan, which had been developed by CDF, is set forth in its entirety in the Administrative Record at 616-841.) Within the last year CDF has approved two timber harvest plans for logging within the Forest: THP 1-99-483 (540 acres) and THP 1-99-484 (366 acres.) Petitioner alleges CDF has approved more than twenty harvest plans in the Forest since 1993. CDF has solicited bids for the sales of the two recently approved plans and is considering awarding contracts "in the near future" for the sale and cutting of the timber identified in the two plans. (Declaration of Johnson (4/25/01) Para. 10) In the course of the hearings on April 26 and May 4, 2001, respondent acknowledged that CDF is prepared to immediately award the contracts for harvesting under the two approved plans.
Petitioner, through two separate but now-consolidated actions, alleges that all forest management activities, to include the harvesting of timber, must comply with a forest management plan that is both "current" and has been approved by the Board of Forestry. Petitioner seeks various declaratory and injunctive relief relating to the general management of the Forest and to specifically invalidate the approvals of the two harvest plans for failure to comply with an existing, current management plan and to set forth and adequate discussion alternatives to the proposed harvest plans.
The present request for a preliminary injunction is brought under the third cause of action for a writ of mandate to compel the management of the Forest, including the approval of harvest plans, in compliance with a current management plan. (Petitioners Reply Brief 3: 19-24; First Amended Complaint 9:1-22) In the context of this motion, petitioner has not raised and the court will not consider the alleged failure of the approved harvest plans to include a legally adequate discussion of alternatives to the proposed harvests.
[Following text selectively excerpted from the decision]
Preliminary Injunction: The court is required to balance the reasonable probability of success on the merits against the interim harm that may be suffered if the injunction is granted or not. (Robbins v Sup. CT. (1985) 38 C3d 199, 206)
Reasonable Probability of Success: A writ of mandate is proper to compel the performance of a ministerial duty and/or to correct an abuse of discretion. Petitioner contends CDF was and is under a ministerial duty to manage the Forest under a management plan that is current and has been approved by the State Board of Forestry ("Board") and that the management of the Forest, including the harvesting of timber, without such a plan constitutes abuse of discretion.
The threshold issues are twofold: must CDF timber harvesting operations comply with an approved management plan and, if so, must that plan be a current? The answers to both questions is "yes." (Emphasis added.) Both the general management of the state forest and harvesting of timber "shall follow management plans" that are approved by the Board. (14 CCR Sec. 1510) The most recent management plan for Jackson Forest is that which was approved on June 7, 1984. CDF is clearly obligated by that unambiguous mandatory regulation to ensure that its timber harvesting operations comply with that approved management plan. (Emphasis added.) The approved plan includes, as its Appendix C, the "State Board of Forestry Policies Dealing With State Forests." (AR: 725-738) Those incorporated Policies include a specific, mandatory directive:
"Management plans shall be prepared and maintained current for the Jackson [and other] State Forests. All operation on the Forests shall conform to the management plans. (AR" 734; emphasis supplied)
Although administrative policies typically do not have the force of law, this particular policy appears to have the force of law by virtue of the adoptive regulation (14 CCR Sec. 1510) which is itself binding under the authority of Public Resources Code Sec. 4656.1. It appears probable that CDF is under a mandatory obligation to develop a management plan for the Forest and to maintain that plan in a current status. All timber harvesting operations must comply with that plan.
Based on the information in the record, it appears that the June 7, 1984 plan is not current and that the two recently approved harvest plans may not be consistent with that management plan, even in its non-current status. The Jun3 1984 Management plan specifically states its term is "the ten year planning period commencing in 1983" (AR: 617) and sets forth a site-specific ten-year harvest schedule (AR: 698). Even a casual review of the Plan reveals that the conditions on which it was developed eighteen years ago have changed dramatically. In its Analysis of the Management Environment (AR: 650-656) the Plan is based on a number of described conditions that may have existed in 1984 but have certainly drastically changed since: nature of the local economy, availability of timber, the timber market, number, location, type and capacity of sawmills, the fishing industry and railroad transportation. The Plan has apparently not kept pace with the developments in science and technology that have occurred in the intervening years. (Declaration of Allen Y. Cooperrider, Ph.D. (filed 4/20/01) Paragraphs: 13-18,20 and 22) The Plan does not include any of the additional content items recommended in the July 26, 1999 amendment to the Policy requiring that the plan be maintained current. (AR: 737-738) Those additional recommended topics relate to areas that are of substantial concert to petitioners and other members of the public: timber resources, wildlife and fishery management strategies and strategies for federal and state listed plant species. (Emphasis added.)
The two approved timber harvest plans do not appear to follow that Management Plan that was approved for the Forest . The areas of the proposed two harvest plans do not coincide with harvest areas designated in that Plan. There also appears to be substantial debate over the methods used to calculate the volume of timber that may be removed in any given year.
With the Adoption of 14 CCR Sec. 1510, the State Board of Forestry saw fit to require all harvesting operations in the state forests to comply with the site-specific forest management plans in addition to whatever other requirements are set forth in the Forest Practices Act and the Forest Practice Rules. The fact that the approved plans may comply with the FPA and FPR does not excuse the required additional compliance with the approved management plan for Jackson State Demonstration Forest (Emphasis Added.)
Based on the foregoing discussion, it appears reasonably probable that petitioners will prevail on their showing that CDF has a duty to manage the Forest, specifically including all timber harvesting operations, in compliance with the approved management plans and that two approved harvest plans did not comply with that approved management plan. It is also reasonably probable that petitioners will be able to establish that the management plan should be maintained current.
B. Balance of Interim Harm: The primary interim injury to CDF is the loss of income from the two sales which may result in program cancellations and reductions. CDF estimates a decrease in sale income funded activities of five percent for the balance of 2001 and of forty-two percent in 2002. (Declaration of Ross Johnson (d: 4/25/01) 3:14) There is no indication that the shortfall may not be covered from other funding sources. Counsel for both parties advised the court that the matter can be brought to full hearing within two to three months. Under these circumstances, it is unlikely that the interim harm sustained by CDF will by significant. (Emphasis added.)
On the other hand, the interim harm resulting from the harvesting operations could be substantial and, possible irreparable. (Emphasis added.) In addition to the cutting and removal of timber that will take over one hundred years to replace, harvest operations will certainly result in the construction of roads and layouts, the intrusion into wildlife habitat and the inevitable displacement of wildlife. If the harvesting operations are not conducted in accordance with a current, approved management plan there can be no assurance that these consequences have been properly assessed and evaluated as part of the comprehensive plan for the management of the Forest a productive entity. Once these activities have occurred, it is unlikely that the harvest areas could be returned to the pre-entry conditions.
It is also apparent that CDF has know for years that its Management Plan for Jackson Demonstration State Forest was out of date and in need of comprehensive revision. Petitioners and others notified CDF of the deficiencies and requested that CDF curtail cutting activities until the approval of a current plan. CDF elected to proceed with cutting activities on the basis of an eighteen year old plan. Under these circumstances, the court finds that the interim harm that may occur if the injunction is not granted outweighs the interim harm that may occur if it is granted. (Emphasis added.)
Bond: It is difficult to assess what financial damage CDF may sustain if the injunction is granted and it prevails on the merits. CDF has not presented any evidence of the interim harm it may suffer if the receipt of sale income is deferred for the three of four months pending a decision of the merits. There is also no evidence indicating that the two timber harvests could not be completed this year if entry is deferred until a decision on the merits. As a condition of the injunction, petitioners shall post a bond in the amount of $5,000.
1. Preliminary Injunction: Until further order of the court, respondents and their employees and agents are enjoined and restrained from awarding or entering into any contract or agreement for the harvesting or sale of timber in conjunction with HTP 1-99-483 MEN and/or 1-99-484 MEN, except as set forth below. The primary purposes of this order are (a) to prevent any on-site physical changes, such as timber cutting, vegetation removal, road clearing and building, and similar activities, and (b) to avoid the complication of this litigation by the addition of additional parties, such as the successful bidders for the contract rights. Respondents may proceed with the award of contracts if the award can be accomplished in such a way that the contracting buyers have no right to proceed or no expectation of a right to proceed with the harvest unless and until they have been given a written right to proceed by respondents pursuant to a specific order of this court.
2. Bond: As a condition of the preliminary injunction, petitioner shall post a bond in the amount of $5,000.
Dated: May 18, 2001 Richard J. Henderson
Judge of the Superior Court