PAUL V. CARROLL/121369
Attorney for Petitioners
SUPERIOR COURT OF THE STATE OF CALIFORNIA
1. Petitioners Campaign to Restore Jackson State Redwood Forest, Dharma Cloud Charitable Foundation Trust, and Forests Forever Foundation challenge the approval of the Jackson Demonstration State Forest Management Plan (Management Plan) and certification of the Environmental Impact Report (EIR) for the Comprehensive Update to the Jackson Demonstration State Forest Draft Management Plan by Respondent California Department Of Forestry And Fire Protection (CDF). Petitioners seek to compel the California Board of Forestry (or CDF in the event the Board is not the lead agency) to prepare an EIR that satisfies the requirements of the California Environmental Quality Act, and to prepare a management plan that satisfies the requirements of California law governing state forests. (Pub. Res., § 4631 et seq.)
2. The Campaign to Restore Jackson State Redwood Forest is an association of persons, most of whom reside in Mendocino County, that is dedicated to restoring publicly owned Jackson Demonstration State Forest (JDSF) in order to protect salmon and other wildlife, and for recreational, scientific, and educational public use.
3. Dharma Cloud is a nonprofit corporation. It conducts charitable activities for the coastal communities of Mendocino County, including long-range planning for JDSF, preservation of and public access to coastal lands, development of a community plan for the community of Caspar, and support of Buddhist religious activities.
4. The Forests Forever Foundation was incorporated in 1998. The Foundation’s chief purpose is to educate Californians concerning forest issues in the state. In 2001 the Foundation played a major role in the campaign to restore Jackson Demonstration State Forest, working to stimulate and direct public comment on the Draft EIR and Management Plan then under review. Other Foundation activities in recent years have included helping to draft a sustainable-forestry ballot measure originally aimed at the March, 2002, ballot. The Foundation also has helped to publish large portions of our newsletter, The Watershed, which has a current mailing list of some 37,000 subscribers.
5. The personal, aesthetic, and environmental interests of Petitioners and the persons associated with them will be severely injured, if the management of JDSF proceeds under the new Management Plan as approved by CDF. Petitioners are within the class of persons beneficially interested in, and aggrieved by CDF’s decisions. Petitioners include individuals who expressed their concerns and objections to the approval of the Management Plan and certification of its EIR.
6. Respondent CDF is an agency of the State of California.
7. The true names and capacities, whether individual, corporate, or otherwise, of DOES I through X are unknown to Petitioners, who therefore sues said Respondents by such fictitious names. Petitioners will seek leave to amend this petition when they have been ascertained.
8. Jurisdiction of this court is invoked pursuant to California Code of Civil Procedure section 1094.5, 1085; California Public Resources Code section 21167.
9. Petitioners have performed all conditions precedent to the filing of this complaint.
10. At all times mentioned herein, CDF has been able to deny the approval of the Management Plan. Despite such ability, and despite Petitioners’ demand for denial, CDF has failed and continues to fail to perform its duty to deny the approval and operation of the Plan.
11. If CDF is not ordered to withdraw its approval of the Management Plan, and if it engages in timber operations on JDSF, the land, wildlife habitat, and environmental values subject to and affected by the Management Plan will suffer immediate, irreparable, and permanent damage.
12. If CDF is not ordered to withdraw its approval of the Management Plan, and if its decision is not stayed pursuant to CCP section 1094.5, subdivision (g), the land, aquatic resources, wildlife habitat, and environmental values subject to and affected by the Management Plan will suffer immediate, irreparable, and permanent damage.
13. JDSF was acquired by California and established as a State Demonstration Forest in 1947. 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. The Legislature authorized the acquisition of land as state forests, including JDSF, for "the purpose of demonstration of economical forest management." (Pub. Res. Code, § 4631, subd. (d).)
14. The Legislature defined "management" to mean "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." (Pub. Res. code, § 4639.)
15. CDF is authorized 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.)
16. As of the beginning of 2001, CDF was approving and conducting timber operations in JDSF under a management plan that was approved in 1984 and that by its own terms expired in 1993. Petitioners brought a lawsuit against CDF and the Board of Forestry that sought to stop timber operations until the Board approved a new and up–to–date management plan. (Campaign to Restore Jackson State Redwood Forest, et al. v. California Department of Forestry and Fire Protection, et al. (Super. Ct. Mendocino County, 2002, No. 0083611) In May 2001, the trial court issued a preliminary injunction that stopped logging in JDSF, finding that Petitioners were more than likely to prevail on their claims and that the public interest would be irreparably harmed if CDF continued to conduct timber operations in JDSF under the old management plan.
17. The parties settled that lawsuit under the condition that CDF not conduct any timber operations in JDSF until the Board approved a new management plan.
18. CDF issued a draft Management Plan for public review in 2001. It issued a draft EIR for the Management Plan in May 2002. Public comment on the draft EIR ended on July 19, 2002.
19. CDF certified the final EIR and approved the Management Plan on September 26, 2002.
FIRST CAUSE OF ACTION
(Failure to Consider Cumulative Impacts)
20. A draft EIR is required to identify, discuss, and analyze the cumulative impacts of the project. (Pub. Res. Code, § 21100; CEQA Guidelines, §§ 15120, 15130.)
21. Such consideration of cumulative impacts must be available for public and other agency comment and criticism. (Pub. Res. Code, § 21091, subd. (d); CEQA Guidelines, § 15088.)
22. CDF wholly failed to consider cumulative impacts in the draft EIR for the Management Plan. Indeed, CDF acknowledged that the EIR did not contain any express consideration of cumulative impacts. The draft EIR states: "CEQA also requires an examination of cumulative and growth-inducing effects. These have little or no applicability to the JDSF Management Plan project." Elsewhere, it states: "cumulative impacts assessments are inherent in the programmatic approach to development (sic) the JDSF Management Plan EIR."
23. Certification of an EIR that does not contain a consideration of cumulative impacts in the draft EIR, and approval of the related project constitutes a prejudicial abuse of discretion. (Pub. Res. Code, §§ 21005, 21168, 21168.5.) CDF both failed to proceed in the manner required by law, and failed to support its conclusion that the project would not have cumulative impacts with substantial evidence.
SECOND CAUSE OF ACTION
(Failure to Describe the Environmental Setting)
24. Petitioners hereby incorporate by reference the General Allegations herein as if fully set forth.
25. An EIR must include a description of the physical environmental conditions in the vicinity of the project from both a local and regional perspective. Knowledge of the regional setting is critical to the assessment of environmental impacts. (CEQA Guidelines, § 15125, subds. (a), (c).)
26. CDF prejudicially abused its discretion in approving the Management Plan, because the EIR fails to describe the project within the wider, regional context, and fails to consider the project’s significant environmental effects within that context.
27. In considering the project’s potential significant effects, the EIR fails, for example, to evaluate the project in light of the fact that is bordered by industrial timberland, whose resources have been significantly impacted by past and ongoing logging operations.
28. As a result, the EIR’s consideration of significant and potentially significant environmental effects is flawed. In the absence of a proper consideration of the environmental setting, an EIR cannot adequately consider a project’s significant effects.
THIRD CAUSE OF ACTION
(Incorrect Lead Agency)
29. CDF acted as the lead agency under CEQA: it made findings, certified the EIR, and approved the project.
30. The "lead agency" decides whether a project requires an EIR and, if so, causes that document to be prepared. (Pub. Res. Code, §§ 21081.1, 21067; CEQA Guidelines, § 15367.)
31. " ‘Lead agency’ means the public agency which has the principal responsibility for carrying out or approving a project." (CEQA Guidelines, § 15367.)
32. Under CEQA, a "project" is defined as "the activity that is being approved." (CEQA Guidelines, § 15378, subd. (c).) In this case, the activity being carried out or approved is the consideration and approval of a management plan.
33. Under California law, the only agency with any authority to approve a management plan for a state forest is the California Board of Forestry. (Pub. Res. Code, § 4645.) CDF has been directed by the Board to prepare management plans, but the Legislature has declared that the Board approves them. (Pub. Res. Code, § 4645; Cal. Code Regs., tit. 14, § 1510.)
34. Since the Board, not CDF, is the lead agency for purposes of approving the management plan and certifying its EIR, CDF violated CEQA in acting as the lead agency.
FOURTH CAUSE OF ACTION
(Failure to Adequately Consider Significant Environmental Affects)
35. And EIR must identify and focus on the possible significant environmental impacts of the proposed project. (Pub. Res. Codes, § 21100, subd. (b)(1); CEQA Guidelines, §§ 15126, subd. (a), 15126.2, subd. (a).) The lead agency is required "to use its best efforts to find out and disclose all that it reasonably can." (CEQA Guidelines, § 15144.) The lead agency is required to conduct "a thorough investigation" with respect to significant impacts and its conclusion must be based on substantial evidence. (Pub. Res. Codes, §§ 21168, 21168.5, 21082.2; CEQA Guidelines, § 15145.)
36. CDF violated these principles and prejudicially abused its discretion in approving the project and certifying the EIR, because it failed to properly consider the significant environmental effects of the project on numerous aspects of the environment, including, but not limited to, late succession forest, water quality, anadromous salmonids, marbled murrelets, rare plants, forest inventory, wildlife habitat, and sudden oak death. (Pub. Res. Codes, §§ 21168, 21168.5.)
FIFTH CAUSE OF ACTION
(Failure to Properly Respond to Public Comment)
37. In a final EIR, the lead agency must evaluate and respond to the environmental comments on the draft EIR it receives within the public comment period. (Pub. Res. Code, § 21091, subd. (d)(2)(A).) The written responses must describe the disposition of significant environmental issues raised in the comments. (Pub. Res. Code, § 21091, subd. (d)(2)(B); CEQA Guidelines, § 15088.)
38. The lead agency must specifically explain its reasons for rejecting suggestions received in comments: "There must be good faith, reasoned analysis in response. Conclusory statements unsupported by a factual information will not suffice." (CEQA Guidelines, § 15088, subd. (b).)
39. CDF violated these principles and prejudicially abused its discretion in approving the project and certifying the EIR, because it failed to properly evaluate and respond to public and other agency comment and criticism regarding environmental effects of the project on numerous aspects of the environment, including, but not limited to, late succession forest, water quality, anadromous salmonids, marbled murrelets, rare plants, forest inventory, wildlife habitat, and sudden oak death. (Pub. Res. Codes, §§ 21168, 21168.5.)
WHEREFORE, Petitioners pray for judgment as follows:
1. For writ of mandate setting aside CDF’s approval of the Management Plan and certification of the final EIR, and for any further relief that this Court deems appropriate under Public Resources Code section 21168.9.
2. In the event CDF attempts to engage in timber operations pursuant to the Management Plan, for a stay of CDF’s decision approving the Management Plan pending judgment pursuant to Code of Civil Procedure, section 1094.5, subdivision (g).
3. Alternatively, for an injunction enjoining CDF, its agents, employees, representatives, and all persons acting in concert or participating with them, from pursuing timber operations on JDSF pursuant to the Management Plan until the Plan, its approval, and certification of its EIR comply with California law and regulation.
4. For reasonable attorney fees under California Code of Civil Procedure section 1021.5.
5. For costs of suit.
6. For such other and further relief as the Court deems proper.
Dated: October 23, 2002