Emergency Brief
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NO.

IMMEDIATE STAY REQUESTED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION ____

CAMPAIGN TO RESTORE JACKSON STATE REDWOOD FOREST DHARMA CLOUD CHARITABLE FOUNDATION TRUST, and FORESTS FOREVER FOUNDATION,

Petitioners,

v.

SUPERIOR COURT of MENDOCINO COUNTY,

Respondent. _____________________________________/

CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE PROTECTION, CALIFORNIA BOARD OF FORESTRY, ANDERSON LOGGING, INC., WILLITS REDWOOD COMPANY, INC., MENDOCINO FOREST PRODUCTS, LLC.

Real Parties In Interest.

_____________________________________/

Related Appeal: A102405

Mendocino County Superior Court No. 0289022

(Honorable Richard Henderson)

 

 

 

Emergency Request for Stay, Petition for Writ of Mandate, Prohibition, or Other Appropriate Writ

(Two Volumes of Exhibits Filed Under Separate Cover)

EVENT TO BE STAYED: Logging Operations Currently in Progress

PAUL V. CARROLL/121369
Attorney At Law
5 Manor Place
Menlo Park, California 94025
(650) 322-5652

Attorney for Petitioners

TABLE OF CONTENTS

QUESTION PRESENTED *

INTRODUCTION *

PETITION *

VERIFICATION *

DECLARATION OF PAUL CARROLL *

FACTUAL AND PROCEDURAL BACKGROUND *

ARGUMENT *

I. THE TRIAL COURT’S SINGLE REASON FOR DENYING THE PRELIMINARY INJUNCTION DEFIES LAW, LOGIC, AND THE UNCONTROVERTED FACTS OF RECORD *

II. PETITIONERS WILL PREVAIL ON THE MERITS *

III. PETITIONERS WILL SUFFER IRREPARABLE HARM *

CONCLUSION *

 

TABLE OF AUTHORITIES

Cases

Regulations

Cal. Code Regs, tit. 14, § 1510 20

QUESTION PRESENTED

Petitioners moved to enjoin logging in California’s largest state forest, on the ground that its new management plan violated CEQA. The trial court found that Petitioners were likely to prevail. But it denied the injunction on the theory it would have no effect, since logging could proceed under a previous plan. But all parties agree—and the court did not find otherwise—that logging is occurring under the new plan. Did the trial court err?

INTRODUCTION

Established in 1947, and by far California’s largest state forest, Jackson Demonstration State Forest (JDSF) is a public treasure. Comprising over 48,000 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, some abundant, some declining, and some all but gone. It also contains the oldest stands of unprotected redwood trees in Mendocino County. As this petition is being drafted those trees are being felled.

Petitioners have brought a lawsuit under the California Environmental Quality Act challenging Real Parties’ approval of the JDSF management plan and certification of its EIR. On May 30, 2003, the trial court heard Petitioners’ motion for preliminary injunction to stop CDF from entering into contracts to sell two timber harvest plans, comprising over 900 acres, to private bidders. The court agreed that Petitioners were likely to prevail on the merits, but denied their preliminary injunction, on the ground that—even if granted—logging could take place under a previous management plan approved in 1983. But logging is not occurring under the old plan and the court did not find that it was. Indeed, even Real Parties insist that logging is occurring under the new, challenged management plan. Besides, logging is prohibited under the old management plan pursuant to a settlement agreement that the trial court signed as an order.

The court’s error is inexplicable. It denied Petitioners’ motion based on the assumption that an injunction would have no effect. But it clearly would. It would stop logging, because logging is going forward under the challenged management plan! If Real Parties were to try to continue logging under the old 1983 management plan, Petitioners could move pursuant to Code of Civil Procedure section 664.6 to specifically enforce the settlement agreement barring such logging.

The trial court’s order leaves Petitioners in a limbo: they cannot specifically enforce the settlement agreement relating to the old plan, because logging is going forward under the new one, and they cannot stop logging under the new plan, because of the theoretical possibility—however illegal—it may go forward under the old one.

If this is disorienting, it is because the trial court went to such peculiar lengths to deny the preliminary injunction even as it found Petitioners were likely to prevail on the merits. Respectfully, the trial court should have decided whether logging should be allowed to proceed under the new management plan given the likelihood that it and its EIR will be set aside. If Real Parties then contend that logging can proceed under the old plan, notwithstanding the settlement agreement, the court can then address that question.

Petitioners will show that the trial court erred and that irreparable harm will befall it and the environment unless relief is granted.

PETITION

Petitioners petition this Court for a Peremptory Writ of Mandate, Prohibition, or other appropriate writ, or an alternate writ directed to Respondent Superior Court of Mendocino County (1) to set aside its order of June 10, 2003, denying Petitioners’ motion for preliminary injunction, and (2) to enter a new and different order granting Petitioners’ motion in light of its finding that Petitioners are likely to proceed on the merits. Petitioners also seek an immediate emergency stay of timber harvesting activities pursuant to Timber Harvest Plans 1-99-483 MEN and 1-99-484 MEN, and by this verified petition, Petitioners allege:

Related Appeal

1. Petitioners will call the present case Campaign II. In a predecessor case, which Petitioners will call Campaign I, Respondent court below awarded Petitioners attorney fees under Code of Civil Procedure section 1021.5 after reconsideration. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (Super. Ct. Mendocino County, 2002, No. 0083611.) Respondents below have appealed that order in Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (A102405, Div. 2, app. pending).

Parties

2. Petitioners here are Campaign To Restore Jackson State Redwood Forest Dharma Cloud Charitable Foundation Trust, and Forests Forever Foundation. They are petitioners in the superior court action below and are aggrieved by the Respondent court’s denial of their motion for a preliminary injunction.

3. Respondent Mendocino County Superior Court (Honorable Richard Henderson) is the superior court before which the above-entitled action was pending and the court that issued the order that Petitioners ask this Court to overturn.

4. Real parties in interest are the California Department of Forestry and Fire Protection (CDF) and the California Board of Forestry (Board), collectively "CDF." CDF and the Board are agencies of the State of California. They are the Respondents in the action below.

5. Real parties in interest also include Mendocino Forest Products, LLC, Willits Redwood Company, Inc., and Anderson Logging, Inc. Mendocino Forest Products has entered into a final sales contract for the logging of THP 483 (540 acres). Willits Redwood Company has entered into a final sales contract for the logging of THP 484 (366 acres). Anderson Logging has contracted with the other real parties to perform logging operations.

Proceedings Below

6. On October 24, 2002, Petitioners filed an amended petition for writ of mandate in the below court. (Exh. A, App. 1-12.) Petitioners’ lawsuit seeks a writ of mandate under the Californian Environmental Quality Act (CEQA) setting aside the approval of the Jackson Demonstration State Forest Management Plan and certification of its EIR by real parties CDF and Board. Among other things, the petition alleges that the Board and CDF failed to consider cumulative impacts, failed to describe the regional setting, that the Board failed to make findings, failed to certify the EIR, failed to adopt a mitigation monitoring plan, and that CDF was not the lead agency. (Exh. A, App. 1-12.)

7. The hearing on Petitioners’ petition for writ of mandate in the Respondent court is scheduled for July 7, 2003.

8. On May 8, 2003, Petitioners moved for a temporary restraining order and preliminary injunction restraining CDF from selling and logging THPs 483 and 484. At that time, no contracts between CDF and private bidders had been finalized. (Exh. C, App. 17, 24-27.)

9. The hearing on the TRO was heard on May 15, 2003, and opposed by Respondents. Seven days later, on May 22, 2003, the court denied the TRO in a written order. (Exh. B, App. 13-15.)

10. The court heard Petitioners’ motion for preliminary injunction on May 30, 2003. The motion was based on Petitioners’ opening memorandum, Real party CDF’s opposition, and Petitioners reply, as well as declarations submitted by Petitioners, by CDF, Petitioners’ objections to evidence, CDF’s response to objections, and Petitioners’ and CDF’s respective requests for judicial notice. (Exhs. C-T, App. 17-285) The trial court permitted extensive argument, but asked few questions. The trial court took under submission Petitioners’ objections to evidence, as well as the parties’ respective requests for judicial notice.

11. At the hearing, CDF represented to the court that no contracts had yet been awarded to any third–party private contractors, and that contracts probably would not be awarded for another week.

12. Eleven days later on June 10, 2003, the trial court issued its 5–page order denying the injunction. (Exh. U, App. 286-291.)

Basis for Emergency Stay

13. Unbeknownst to Petitioners, the contracts were awarded during the interim. Real Party Mendocino Forest Products was awarded the contract for the logging of THP 483. (Exh. L, app. 231-233.) Real Party Willits Redwood Company was awarded the contract for the logging of THP 484. (Exh. K, App. 228-230.) Real party Anderson Logging has contracted with the other real parties to perform logging operations. (Exh. J, App. 225-227.)

14. On Thursday June 12, 2003, Petitioners learned that logging had commenced the previous day, June 11, 2003. Petitioners have represented to their counsel that they have gone to the site of THP 484 and observed trees being felled.

Respondent Court’s Error

15. In its order denying Petitioners request for preliminary injunction, the Respondent court found that Petitioners were likely to prevail on the merits in their challenge to CDF’s approval of the new management plan and certification of its EIR. (Exh. U, App. 289-290.) But it denied the preliminary injunction on the ground that even if the new management plan were set aside, logging could proceed under an old one approved in 1983. (Exh. U, App. 287-288.) The trial court’s decision was clearly erroneous as a matter of fact and law. It is agreed by all parties to this litigation—and the trial court did not find otherwise—that the only logging that is going forward is going forward under the new management plan. (Exh. M, App. 236, ¶ 8; Exh. Z, App. 323.) An injunction would stop logging under the new management plan.

16. The old management plan is the subject of a settlement agreement in a previous action, namely Campaign I. (Exh. V, App. 292-298.) That settlement agreement bars any and all logging in JDSF under the old management plan. (Exh. V, App. 293-294.) If Real parties were to attempt to log under the old management plan, Petitioners would bring a motion pursuant to Code of Civil Procedure section 664.6 to specifically enforce the terms of the settlement agreement and bar any logging under it. But they cannot bring such a motion now, because the terms of the settlement agreement are not being breached, as logging is not going forward under the old plan, but the new one.

17. The precise arguments why Respondent court’s order is erroneous and constitutes an abuse of discretion are set forth more fully in the accompanying memorandum of points and authorities, and the many exhibits cited therein.

Campaign I

18. To understand the proceedings below, it is helpful to understand the predecessor case, Campaign I. In 2001, CDF was managing JDSF under the old 1983 management plan that—by its own terms—would need "a major review at the midpoint of its effective period (1987), and be completely revised in 1992." But CDF did not conduct a major review, nor approve a new plan in 1992. In 2001, two Petitioners in this case sued CDF and the Board for its continued management of JDSF in the absence of a current management plan—Campaign I. (Exh. W, App. 299-312.)

19. At the time, CDF intended to sell THPs 483 and 484—the same two logging operations at issue here. Petitioners moved for preliminary injunction to prevent CDF from awarding contracts for their logging. The motion was granted and the Respondent court’s 5–page written decision provides valuable background and insight into the previous case. (Exh. X, App. 314-318.)

20. Campaign I quickly settled and a settlement agreement was signed by all the parties, their counsel, and the Respondent court. In various ways, the key provisions of the settlement agreement make clear that logging can only go forward under a new management plan and EIR, and not under the old 1983 plan. (Exh. V, App. 293-294.)

21. Petitioners moved for attorney fees under Code of Civil Procedure section 1021.5 in Campaign I. The Respondent court denied their motion. Petitioners moved for reconsideration and the court granted attorney fees. (Exh. Y, App. 319-322.) Respondents have appealed from that order. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (A102405, Div. 2, app. pending.)

22. On June 13, 2003, counsel for Petitioners spoke by phone with counsel for CDF, Charles Getz. Counsel for Petitioners told Mr. Getz that he intended to move for a temporary restraining order and specific enforcement of the settlement agreement to stop CDF from permitting logging to go forward in JDSF under the old management plan. Mr. Getz called the tactic "outrageous" and said he would seek sanctions if Petitioners brought such a motion. He pointed out that there was uncontroverted sworn testimony in the declaration of CDF’s in-house counsel, Norm Hill, that all logging was proceeding under the new management plan. Following that conversation, Mr. Getz faxed counsel for petitioners a letter reiterating his insistence that all logging was proceeding under the new management plan. (Exh. Z, App. 293-294.)

23. Accordingly, Petitioners have no plain, speedy or adequate remedy at law other than the relief sought in this Petition. Unless the writ issues, JDSF will be logged as the case proceeds to trial and thereafter, rendering the controversy moot. Indeed the Respondent court’s ruling means that logging will continue even after Petitioners prevail at trial. Moreover, unless this Court issues an immediate stay, logging will continue, resulting in harm to the environment and to Petitioners. The ability to appeal the trial court’s denial of the request for a preliminary injunction is inadequate, because any appeal will be heard long after logging has been completed, mooting the controversy.

WHEREFORE, Petitioners pray:

1. That this Court immediately stay timber operations on THPs 1-99-483 MEN and 1-99-484 MEN, pending the final determination of this Petition;

2. That this Court issue a peremptory writ of mandate, prohibition or other appropriate writ in the first instance under seal of this Court directing Respondent court to: (1) vacate its order denying Petitioners’ application for a preliminary injunction, and (2) enter a new order granting a preliminary injunction;

3. That if a peremptory writ does not issue in the first instance, this Court issue an alternative writ of mandate, prohibition or other appropriate writ directing Respondent court to show cause at a time and date ordered, why that Court should not set aside its order denying Petitioners’ motion for preliminary injunction, and enter a new and different order granting that motion;

4. That Petitioners recover the costs of this action, including attorney fees; and

5. That this Court grant such other relief as may be just and proper.

Dated: June 17, 2003

______________________

Paul V. Carroll

Attorney for Petitioners

VERIFICATION

I, the undersigned, say:

I am counsel for Campaign To Restore Jackson State Redwood Forest Dharma Cloud Charitable Foundation Trust, and Forests Forever Foundation, the Petitioners in the present action. I have read the Petition for Writ of Mandate, Prohibition, or other appropriate writ, including application for Peremptory Writ and Emergency Request for Stay, and know its contents. The same is true of my own knowledge, except as to those matters stated on information and belief, which I am informed and believe are true, and on that basis allege it to be true. I am the attorney of record in the proceedings in the Respondent court.

This Verification is signed by me pursuant to Code of Civil Procedure section 446, rather than Petitioners, because the Petition relates to the proceedings in this case, which I personally attended and prepared for, and which are within my personal knowledge, and because Petitioners do not reside, have offices in, or are otherwise located in San Mateo County, where my office is located.

I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on June 17, 2003, at Menlo Park, California.

________________________

Paul V. Carroll

Attorney for Petitioners

 

DECLARATION OF PAUL CARROLL

1. I am an attorney duly licensed to practice law in the State of California.

2. I have personal knowledge of the facts stated herein and if called upon to testify about them, I could do so competently under oath.

3. I am the attorney of record for Petitioners Campaign To Restore Jackson State Redwood Forest, Dharma Cloud Charitable Foundation Trust, and Forests Forever Foundation in the case below and the Petition here.

4. All of the exhibits attached to the two volumes of exhibits filed herewith are true and correct copies of documents filed with the Respondent court in either Campaign I or Campaign II, except for Exhibit Z, which is a true and correct copy of the June 13, 2003, letter of Charles Getz, counsel for CDF, to me, in Campaign II.

5. The merits of Petitioners’ action in Respondent court is based on an administrative record of over 9000 pages in length, including a draft EIR, final EIR, and the new management plan itself. The parties cite to the administrative record in the extensive briefing that has been provided this Court. The trial court did not rely on the administrative record in denying the preliminary injunction. Accordingly, the two volumes of exhibits that Petitioners are providing this Court do not contain actual pages from the administrative record. Nonetheless, by June 18 or 19, 2003, Petitioners will provide this Court and serve on the parties at least those portions of the administrative record containing the draft EIR, final EIR, and management plan.

6. In accordance with California Rules of Court, rule 56(c)(4), I declare that a copy of the transcript of the hearing on Petitioners’ motion for preliminary injunction has been ordered. On July 13, 2003, I telephoned the Mendocino County Superior Court and left a message during regular business hours on the clerk’s answering machine, in an attempt to get in touch with Elaine Burke, the court reporter who transcribed the hearing on Petitioners’ motion. Although the answering machine states that all messages will be returned on the day received, I did not receive a return call.

6. I spoke by phone up with Ms. Burke on July 16, 2003. She stated she would commence preparing the transcript of the hearing immediately. However, because the hearing was lengthy, approximately one and one-half hours, she did not believe that she could have it before late Thursday, June 19, 2003. She said that she would try to send it to me by overnight mail for delivery on Friday June 17, 2003. At the latest, she said that it would be finished and delivered to me by Monday June 20, 2003. Depending on whether I receive it on June 17th or June 20th, I will deliver the transcript to the Court on either of those dates.

7. I note that live testimony was not offered at the hearing and that Respondent court asked few questions.

I declare under penalty of perjury that the foregoing statements are true and correct and that this declaration was executed at Menlo Park, California on June __, 2003.

__________________________

Paul Carroll

 

FACTUAL AND PROCEDURAL BACKGROUND

To understand this case, Campaign II, it is necessary to understand its predecessor, Campaign I. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (Super. Ct. Mendocino County, 2002, No. 0083611).)

Campaign I

CDF is required to manage California’s state forests, including JDSF, "in accordance with plans approved by the board [California Board of Forestry]" (Pub. Res. Code, § 4645), and "acting in accordance with policies adopted by the board." (Pub. Res. Code, § 4646.) In 2001, Board policy stated: "Management plans shall be prepared and maintained current for the Jackson…State Forests. All operations on the forests shall conform to the management plans."

In 2001, CDF was managing JDSF under a management plan approved in 1983 that—by its own terms—would need "a major review at the midpoint of its effective period (1987), and be completely revised in 1992." (Exh. W, App. 303, ¶ 24.) But CDF did not conduct a major review of the plan in 1987, nor approve a new plan in 1992. By 2001, therefore, JDSF had not had a legal, current management plan for nine years. After years of repeated assurances that a new plan was imminent, two Petitioners in this case sued CDF and the Board for its continued management of JDSF in the absence of a current management plan—Campaign I. (Exh. W, App. 300-312.)

At the time, CDF intended to sell THPs 483 and 484—the same two logging operations at issue here—so that they could be logged. Petitioners moved for preliminary injunction to prevent CDF from awarding contracts for the logging of the two THPs. The motion was granted and the trial court’s 5–page written decision provides valuable background and insight into the previous case. (Exh. X, App. 314-318.) The trial court found that Petitioners were likely to prevail on their claim that the management plan was not current and that timber operations occurring under it were unlawful. (Exh. X, App. 315-317.) It also found irreparable harm if logging were allowed to go forward:

On the other hand, the interim harm resulting from the harvesting operations could be substantial and, possibly, irreparable. In addition to the cutting and removal of timber that will take over 100 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 as a productive entity. Once these activities have occurred, it is unlikely that the harvest areas could be returned to pre–entry conditions.

(Exh. X, App. 317.)

In response to this ruling, Respondents quickly tried to moot the lawsuit by changing Board policy and deleting the requirement that management plans be maintained "current." Petitioners brought yet another lawsuit challenging the Board’s action on the ground that it violated CEQA: no environmental review whatsoever having been performed. (Campaign to Restore Jackson State Redwood Forest v. California Board of Forestry (Super. Ct. Mendocino County, 2002, 0287122).) In awarding Petitioners fees for this lawsuit, the trial court would later find that CDF "cavalierly ignored CEQA in the hopes of making an end around the underlying litigation." (Exh. AA, App. 324.)

Once the preliminary injunction issued and Petitioners challenged Respondents’ effort to moot the lawsuit, the litigation quickly settled. The court held a settlement conference on August 23, 2001, at which the general points of agreement were outlined. The following day, Respondents wrote the court to set forth their understanding of what had been accomplished. Among other things, they acknowledged that no logging operations could henceforth proceed under the old 1983 management plan:

No THP or logging activity would occur under the "1983" management plan. The two THP’s at issue in this litigation, THP’s 283 (sic) and 284 (sic) would be allowed to continue with any non invasive activities which are preparatory in nature including, but not limited to, bidding, preparation of documents, site review and preparation, and other normal and ordinary preliminary activities, but no cutting could occur until a new management plan had been certified.

(Exh. E, App. 139.) After many letters between the parties, a settlement agreement was signed by all the parties, their counsel, and the court. (Exh. V, App. 292-298.)

In various ways, the key provisions of the settlement agreement make clear that logging can only go forward under a new management plan and EIR, and not under the old 1983 plan:

CDF agrees not to approve any timber harvest plans pursuant to Public Resources Code section 4581 in JDSF until the Director of CDF ("Director") has developed a new management plan, an environmental impact report (EIR) for the new management plan has been certified, and the Board has approved a new management plan. CDF further agrees that any timber harvest plans in JDSF shall be consistent with a new management plan.

* * *

CDF agrees that there will not be any timber operations, as defined by Public Resources Code section 4527, pursuant to THPs 483 and 484 unless and until all the following occurs:

a. The Director develops a new management plan, an EIR for a new management plan is certified, and the Board approves a new management plan for JDSF.

* * *

Petitioners are not in any way restrained by this Agreement from challenging the Board’s and/or CDF’s approval of a new management plan for JDSF, and/or the certification of an EIR for the new management plan. Such a challenge would include the right to request a court to enjoin timber harvest operations in JDSF, including timber operations under THPs 483 and 484 for not being consistent with the new management plan. (Exh. V, App. 293-294.)

Once the settlement agreement in Campaign I was in place, Petitioners moved for attorney fees under Code of Civil Procedure section 1021.5. The trial court denied their motion. Petitioners moved for reconsideration and the court granted attorney fees. (Exh. Y, App. 319-322.) Respondents have appealed from that order. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (A102405, Div. 2, app. pending.)

Campaign II

We come to the present lawsuit. CDF issued a draft management plan for public review in May 2001, and a draft EIR for the management plan in May 2002. Public comment on the draft EIR ended on July 19, 2002. Numerous scientists, other agencies, and members of the public criticized the EIR, especially because it admittedly failed to consider cumulative impacts, because it failed to describe the environmental setting, and because CDF was not the lead agency. Over 4,000 members of the public wrote in opposition to CDF’s proposed management of the forest. Less than 50 wrote in support. (Exh. C, App. 26-27.) CDF certified the final EIR, made findings, and adopted a mitigation monitoring program for the new management plan on September 26, 2002. (Exh. A, App. 4, 6.) On November 6, 2002, the Board approved the new management plan. (Exh. A, App. 5.)

Concluding that the EIR was grossly defective, on October 24, 2002, Petitioners filed their amended petition for writ of mandate in the superior court challenging CDF’s certification of the EIR under CEQA. On November 26, 2002, Petitioners filed their first amended petition, adding the Board of Forestry as a respondent, and challenging its approval of the new management plan under CEQA. (Exh. A, App. 1.)

On May 8, 2003, Petitioners moved for a temporary restraining order from selling and logging THPs 483 and 484. At that time, no contracts between CDF and private bidders had been finalized. (Exh. C, App. 25; Exh. F, App. 153-155.) The hearing on the TRO was heard on May 15, 2003, and vigorously opposed by Respondents. Seven days later, the court denied the TRO in a written order. (Exh. B, App. 13-15.) The court heard Petitioners’ motion for preliminary injunction on May 30, 2003. At that time, Respondents represented to the court that no contracts had yet been awarded to any third–party private contractors, and that contracts probably would not be awarded for another week. (Petition, ¶ 11.) Eleven days later on June 10, 2003, the trial court issued its order denying the injunction. (Exh. U, App. 286-291.) Unbeknownst to Petitioners, the contracts were awarded during the interim and logging commenced the following day June 11, 2003. On Thursday June 12, 2003, Petitioners learned that trees were being felled on THP 484. (Petition, ¶ 14.)

Though difficult to understand, Petitioners read the trial court’s denial of the preliminary injunction to be based on the theory that logging can go forward under the old management plan, even if the new management plan will be set aside. (Exh. U, App. 287-288, 291.) Accordingly, Petitioners’ counsel called Respondents’ counsel to say that he intended to move for a TRO on January 16, 2003, to enforce the settlement agreement and prohibit any logging under the old management plan. Counsel for Respondents called the proposal "outrageous," and said that he would move for "sanctions," because it was uncontroverted, based on the sworn declaration of CDF’s in-house counsel, that logging in JDSF was proceeding under the new management plan, not the old one. (Petition, ¶ 22; Exh. M, App. 236, ¶ 8; Exh. Z, App. 323.)

Petitioners commenced preparing this petition.

ARGUMENT

I.

THE TRIAL COURT’S SINGLE REASON FOR DENYING THE PRELIMINARY INJUNCTION DEFIES LAW, LOGIC, AND THE UNCONTROVERTED FACTS OF RECORD

At issue here is the trial court’s inexplicable denial of Petitioners’ request for a preliminary injunction. We say "inexplicable," because the trial court did not find Petitioners were not likely to prevail on the merits in their challenge to CDF and the Board’s approval of the new management plan and certification of its EIR. To the contrary, it found they were. "Inexplicable" because the trial court did not find the balance of harm favored Real parties. It did not address that issue.

Rather the trial court found that a preliminary injunction would have no effect:

If the Court were to determine, as petitioners contend, that the respondents failed to properly comply with CEQA in the preparation and approval of the EIR, the court has the discretionary authority to direct the Board of Forestry to set aside its adoption of the new Management. The suspension of the new Plan would leave the pre-existing plan as the operative management plan within the Jackson Demonstration State Forest. The consistency of the two THPs with that pre-existing management plan is not challenged in this action.

(Exh. U, App. 291.) Even Respondents admit this is wrong, because they insist—and the trial court did not find otherwise—that logging is going forward under the new management plan. Indeed, CDF’s counsel swears to it under penalty of perjury. (Exh. M, App. 236, ¶ 8; Exh. Z, App. 323.) Simply put, an injunction based on Petitioners’ challenge to the new management plan and EIR would stop logging, because logging is going forward under that plan.

To the extent we understand the lower court’s denial, it appears to have reasoned that even if it granted the injunction, logging could go forward under the old management plan. But this conclusion suffers from several problems. The first is simply one of logic. Even if true that logging might be able to go forward on an alternate ground, that is no reason to deny a meritorious request for injunctive relief. Petitioners have challenged CDF’s adoption of the new management plan and EIR for JDSF and sought to enjoin logging pursuant to it. They will prevail in that challenge, as the trial court correctly observed. If the trial court granted the injunction, logging would have to stop, because logging is going forward under the new plan.

The second problem is the court’s apparent assumption that logging could proceed under the old 1983 plan. It is not at all clear that CDF would allow logging to go forward under that 20–year–old, out–of–date relic. In Campaign I, the trial court enjoined the logging of THPs 483 and 484 under the 1983 plan. (Exh. X, App. 314-318.) This led to a settlement agreement signed by the Respondent court that requires all logging to proceed under the new plan, and prohibits any logging under the old. (Exh. V, App. 293-294.)

Now it may be that if stopped under the new plan, CDF will try to go forward under the old one—notwithstanding the settlement agreement. Let them try. Petitioners will move in Campaign I to specifically enforce the settlement agreement pursuant to Code of Civil Procedure section 664.6, and will prevail.

It may also be that the trial court is expecting Petitioners to enforce the settlement agreement—though it provides no such hint. But as things stand now, there is no basis to enforce it, because it has not been breached. Indeed, when Petitioners considered bringing a motion to enforce it they were met with CDF’s threat of sanctions on the ground that logging is incontrovertibly proceeding pursuant to the new plan. (Petition, ¶ 22; Exh. M, App. 236, ¶ 8; Exh. Z, App. 323.)

The trial court’s order leaves Petitioners in a limbo: they cannot specifically enforce the settlement agreement relating to the old plan, because logging is going forward under the new one, and they cannot stop logging under the new plan, because of the theoretical possibility—however illegal—it may go forward under the old one.

Yet all of this was explained at length to the trial court during the motion below and at its lengthy hearing. After the trial court denied the TRO, Petitioners filed their reply brief in support of the preliminary injunction:

Given the need to serve and file the present reply brief, Petitioners only briefly respond to several aspects of the Court’s order denying the TRO. The Court reasons that even if the new management plan is set aside, logging could proceed under the previously approved 1983 Management Plan. Respectfully, this is not true. Under the settlement agreement signed by the Court in Campaign to Restore Jackson State Redwood Forest v. CDF (Campaign I) (Super. Ct. Mendocino County, 2002, No. 0083611) no logging whatsoever under the 1983 Management Plan is allowed:

CDF agrees not to approve any timber harvest plans pursuant to Public Resources Code section 4581 in JDSF until the Director of CDF ("Director") has developed a new management plan, an environmental impact report (EIR) for the new management plan has been certified, and the Board has approved a new management plan. CDF further agrees that any timber harvest plans in JDSF shall be consistent with a new management plan.

(Settlement agreement, ¶ 1.) The proscription applies also to THPs 483 and 484. They may not proceed under the 1983 Management Plan. (Settlement agreement, ¶ 2.)

Therefore, if the approval of the new management plan is set aside, there will not be a management plan in place for JDSF. Yet statute and regulation mandate that all logging shall follow an approved management plan. (Pub. Res. Code, § 4645.) "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, italics added.) If logging is allowed to proceed even though approval of the new management plan is set aside or is likely to be set aside, these laws will be violated.

(Exh. T, App. 266.)

The trial court’s order cannot withstand scrutiny on any ground or under any standard. It is plainly in error.

 

II.

PETITIONERS WILL PREVAIL ON THE MERITS

The trial court observed that Petitioners were likely to prevail on the merits. (Ex. U, App. 289-290.) Therefore the merits, at least at this point, are not at issue in this Petition.

But should Petitioners’ likelihood of success become an issue, or should the Court wish to familiarize itself with the merits, the issues have been extensively briefed by the parties. And Petitioners would urge the Court to consider those briefs and incorporate them here by reference. (Exh. C, App. 17-63 [Petitioners’ opening brief]; Exh. H, App. 161-187 [CDF’s opposition brief]; Exh. T, 262-285 [Petitioners’ reply].)

III.

PETITIONERS WILL SUFFER IRREPARABLE HARM

The trial court did not deny the preliminary injunction on the issue of harm. (Ex. U, App. 286-291.) Like the issue of success on the merits, the issue of harm is addressed in the parties’ briefs filed in support of and in opposition to the motion for preliminary injunction.

Petitioners would urge the Court to consider those briefs and incorporate them here by reference. (Exh. C, App. 17-63 [Petitioners’ opening brief]; Exh. H, App. 161-187 [CDF’s opposition brief]; Exh. T, 262-285 [Petitioners’ reply].)

At this juncture, it is enough to say that a forest—owned by all Californians and recognized as a vital ecosystem and refuge for a number of threatened species—is being illegally logged. Trial, scheduled for July 7, 2003, is only weeks away.

Given the merits of Petitioners’ action, and the irrevocable nature of logging, any inconvenience to Real Parties from a delay pales in comparison to harm to Petitioners, the public, and the environment.

 

CONCLUSION

Petitioners respectfully ask this Court to grant the requested relief.

Dated: June 17, 2003

___________________________

Paul V. Carroll

Attorney for Petitioners

 

PROOF OF SERVICE

I am a citizen of the United States and a resident of the County of San Mateo. I am over the age of eighteen years and not a party to the within entitled action; my business address is: 5 Manor Place, Menlo Park, CA 94025.

On June 17, 2003, I served one true copy of Petitioners’ Emergency Request for Stay, Petition for Writ of Mandate, Prohibition, or Other Appropriate Writ by having the aforementioned placed in a sealed envelope and causing such document to be hand delivered to:

James King, Mannon & King

Attorneys for Willits Redwood, Mendocino Forest Products

Savings Bank Bldg.

200 N. School Street, 3d Fl., Ste. 304

Ukiah, CA 95482

Anderson Logging, Inc.

1296 N. Main Street

Fort Bragg, CA 95437

Charles Getz, IV, Esq., Attorney General

Attorney for Department of Forestry and

Board of Forestry

455 Golden Gate Ave., Ste. 11000

San Francisco, CA 94102

Hon. Richard Henderson

Mendocino County Superior Court

100 N. State Street, Room 108

Ukiah, CA 95482

On June 17, 2003, I served one true copy of: PETITIONERS’ Volume I: Exhibits A–T and Volume II: Exhibits U–AA by placing a true copy thereof enclosed in a sealed envelope, and having such envelope delivered to the following via Federal Express for overnight delivery:

James King, Mannon & King

Attorneys for Willits Redwood, Mendocino Forest Products

Savings Bank Bldg.

200 N. School Street, 3d Fl., Ste. 304

Ukiah, CA 95482

Anderson Logging, Inc.

1296 N. Main Street

Fort Bragg, CA 95437

Charles Getz, IV, Esq., Attorney General

Attorney for Department of Forestry and

Board of Forestry

455 Golden Gate Ave., Ste. 11000

San Francisco, CA 94102

Hon. Richard Henderson

Mendocino County Superior Court

100 N. State Street, Room 108

Ukiah, CA 95482

I, Paul V. Carroll, declare, under penalty of perjury, that the foregoing is true and correct. Executed on June 17, 2003, at Menlo Park, California.

__________________________________