Attorney At Law
5 Manor Place
Menlo Park, California 94025
(650) 322-5652

Attorney for Petitioners









No.: SCUK CVPT 0289022



DATE: July 7, 2003

TIME: 9:30 a.m.

DEPT: E, Hon. Richard J. Henderson








A. Question Presented *

B. Standard Of Review *

C. Introduction *

D. Factual and Procedural Background *

E. CDF Was Not the Lead Agency *

F. Respondents’ Arguments for Lead Agency Status Are Without Merit *

G. Only the Board Was Authorized to Certify the EIR, Make Findings,

and Adopt A Monitoring Plan *





A. Question Presented *

B. A Draft EIR Is Required to Describe the Regional Setting in

Which the Project Is Found *

C. The Draft EIR’s Description of the Regional Setting Is Inadequate *



A. Question Presented *

B. A Draft EIR Must Consider Cumulative Impacts *

C. A Consideration of Cumulative Impacts Cannot Be

Found in the Draft EIR *

D. The Draft EIR Virtually Concedes Its Failure to

Consider Cumulative Impacts *

E. Other Agencies, Experts, and Members of The Public Could

Not Find a Cumulative Impacts Analysis *

F. The Final EIR Does Not Cure The Draft EIR’s Defects *

G. Given CDF’s History, The Draft EIR’s Failure to Consider

Cumulative Impacts Is a Particularly Serious Abuse of Discretion *


A. Factual Background *

B. The EIR Fails to Adequately Describe the Project *



Petitioners request a writ of mandate voiding approval of the Jackson Demonstration State Forest management plan by Respondent California Board of Forestry and certification of its EIR by Respondent Department of Forestry and Fire Protection.

Respondents face a problem of their own making. After managing JDSF for eight years under an obsolete management plan, CDF was forced to stop logging pending preparation and environmental review of a new one. But instead of using this opportunity to carefully review the environmental consequences of logging JDSF, in a rush to log again, Respondents circumvented CEQA’s procedural and substantive mandates. Indeed, upon signing a contract for preparation of the EIR, CDF informed the contractor the EIR had to be completed in two to three months, an impossible task for a 48,000–acre forest.

First, Respondents violated fundamental CEQA procedures. To expedite things, Respondents made CDF the lead agency, even though it has not a whit of authority to approve the management plan, and made the Board a responsible agency, even though it has sole power to approve it. So CDF certified the EIR, made findings, and adopted a mitigation program, while the Board approved the management plan. This division of labor is unknown to CEQA and violates its very purpose. CEQA requires the approving agency to certify the EIR to ensure that the approving agency has considered environmental consequences. But here one agency certified while the other approved. This, in turn, led to a host of additional errors. The Board, the lead agency, failed to certify the EIR, make findings, and adopt a mitigation monitoring program. And even if the Board was a responsible agency, it still was required to do these things, but did not.

Substantively, the draft EIR is worse. It did not consider cumulative impacts, even stating cumulative impacts "have little or no applicability to the JDSF Management Plan." The error is remarkable since a program EIR is specially designed to consider cumulative impacts. And the draft EIR failed to describe the regional setting, an essential component of environmental review. Not only is the regional setting necessary for an adequate consideration of cumulative impacts, it is necessary for evaluation of the more direct, significant impacts of the project. An impact to a resource can only be understood in relation to the regional health of the impacted resource. The draft EIR failed to consider the degraded condition of the environment surrounding JDSF. As a result, its analysis of the project’s impacts is fundamentally flawed

Because of these and several other errors, Petitioners respectfully request the Court to issue a writ of mandate and stop logging.


At 48,652 acres, JDSF is by far California’s largest state-owned forest. (AR 16.) It lies entirely within Mendocino County near the towns of Fort Bragg and Mendocino. (AR 33.) Its western boundary comes within a mile and a half of the coast, and its eastern boundary extends sixteen and a half miles inland. (AR 33.) For the most part, it is surrounded by two vast industrial timberland ownerships, whose lands are suffering well-documented impacts from overlogging. (AR 1213-1232, 1275-1276.)

JDSF was acquired by California and established as a State Demonstration Forest in 1947. (AR 16.) 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).) It therefore enacted legislation creating California’s state forests. (AR 17; § 4631 et seq.)

By law, JDSF must be managed in accordance with a management plan that has been approved by the Board. (§ 4645.) As of the beginning of 2001, CDF was approving timber harvest plans in JDSF under a management plan that was 17–years–old and that by its own terms had expired in 1993. Petitioners sued CDF and the Board to stop logging until the Board approved a new 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.) On May 18, 2001, the trial court issued a preliminary injunction that stopped logging in JDSF. Around the same time, CDF released a draft management plan for public comment. (AR 8905.)

The parties commenced settlement discussions. For Petitioners, a condition of settlement was a halt to logging until a new management plan and EIR were approved. During negotiations, Petitioners learned that CDF, not the Board, intended to act as lead agency under CEQA for preparing and certifying the EIR, making findings, and adopting a mitigation monitoring program. Petitioners immediately wrote Respondents—long before the draft EIR was prepared and even longer before public comment on it opened—explaining in detail that CDF could not be the lead agency under CEQA, since it had absolutely no authority to decide to approve or carry out the project. (AR 55.) Respondents turned a deaf ear to Petitioners’ warnings. Despite the lead agency issue, the parties settled the lawsuit on condition that CDF not conduct any timber operations in JDSF until a new management plan and EIR for JDSF were approved. (AR 9724.)

In late September 2001, CDF solicited bids for preparation of the EIR. On December 21, 2001, the contract was awarded to SHN Consulting Engineers & Geologists, Inc., and Natural Resources Management Corporation (NRM). (AR 9723.) In an attachment to the contract, CDF informed SHN and NRM that the EIR had to be completed and certified in early 2002, that is, in two or three months. (AR 9724.) Board member Gary Rynearson is president of NRM. (AR 469.) Although SHN was listed as the lead contractor, documents show that NRH provided most of the labor for the EIR’s preparation. (AR 469.)

The draft EIR was released for public comment on May 17, 2002. (AR 772.) Over 4,000 members of the public, experts, scientists, and other agencies commented on the draft. Comments ran 100 to 1 favoring a change in the management of JDSF and opposing the plan. (AR__.) Public comment on the draft EIR ended on July 19, 2002. (AR 772.)

On September 26, 2002, CDF, acting as the lead agency, certified the final EIR, made findings, and adopted a mitigation monitoring plan. (AR 1A-1B, 8272, 8295.) Recognizing that it was without authority, CDF did not approve the management plan. (AR 26, 55, 1357.) Nonetheless, because CEQA requires the agency certifying the EIR to approve the project, CDF filed a notice of determination saying that it had approved the management plan—even though it had not. (AR 1.)

On November 6, 2002, the Board adopted the management plan on condition that CDF make a number of modifications. Demonstrating why it was the lead agency, the Board ordered CDF to (1) develop a more detailed demonstration and research plan; (2) develop a more detailed description of individual tree selection/cluster management and compare it with late successional stage upland management before implementation of harvesting on Timber Harvest Plans 483 and 484; (3) develop a more detailed description of variable retention; and (4) develop mechanisms for maintaining public contact with residents living near JDSF. (AR 8372-8373; AR__.) Because of his conflict as president of NRM, board member Rynearson recused himself from the vote. (AR 8368.)

Whether the Board was a lead or responsible agency, it was required to make its own findings, adopt a mitigation monitoring plan, and file a notice of determination. It did none of these things. (AR 8372-8373; AR__.)




A. Question Presented

Under CEQA, the lead agency is the agency with principal responsibility for approving or deciding whether to carry out a project. The lead agency must certify the EIR, make findings, and approve the project. The only agency authorized to approve the JDSF management plan or decide whether to carry it out is the Board. Yet CDF certified the EIR and made findings, leaving the Board to approve the plan. Did this irregular procedure violate CEQA?

B. Standard Of Review

"The foremost principle under CEQA is that the Legislature intended the act ‘to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ " (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 ;[quoting Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259].) This Court’s inquiry extends to whether there was a prejudicial abuse of discretion. Such abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence. (Laurel Heights, supra, 47 Cal.3d at p. 392; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 721.)

C. Introduction

Procedurally, this case is a disaster. The Board was the lead agency for purposes of approving or deciding to carry out the JDSF management plan. It therefore was required to certify the EIR, make findings, adopt a mitigation monitoring plan, and approve the project. Instead, CDF performed the first three these tasks, while the Board approved the plan. This division of duties is unknown to CEQA and violates its fundamental aim.

The agency that certifies the EIR, makes findings, and adopts a mitigation monitoring plan must be the same agency that approves the project or decides whether to carry it out. This requirement ensures that the agency with the principal approval authority certifies the adequacy of the EIR, adopts its mitigations, and ensures their implementation. But here, by splitting certification, findings, and monitoring from project approval, Respondents came up with a heretofore unknown procedure that violated CEQA’s carefully defined approval process and undermined its goal of informed decisionmaking.

The Board’s failure to carry out its duties as lead agency renders the approval invalid. Without the Board’s certification, the EIR was not found to comply with CEQA. Without findings by the Board, the EIR’s mitigations and revisions were not made part of the project. And without the Board’s adoption of a mitigation monitoring plan, there is none.

D. Factual and Procedural Background

In both the draft and final EIRs, Respondents described the peculiar division of labor between CDF and the Board, with CDF certifying the EIR and making findings, and the Board approving the project:

When complete, the Final EIR will be reviewed and considered by the Director of CDF, and if found to be in compliance with CEQA, the Director of CDF will certify the Final EIR. Following certification of the Final EIR, the Board of Forestry will review and approve a JDSF Management Plan. The Management Plan approved by the Board will be consistent with the final EIR.

(AR 26.) Respondents reaffirmed their commitment to this procedure in the final EIR: "Again, the Director certifies the EIR and the Board is responsible for approving the JDSF Management Plan." (AR 1357.)

Respondents also sought to explain how CDF came to be designated as the lead agency:

While CDF was developing the management plan, some members of the public asserted that the Board rather than CDF should be the lead agency for the EIR. CDF and the Board will each make important, discretionary decisions about the management plan, and each could make a claim to be the appropriate lead agency. To resolve the issue, CDF and the Board entered into an agreement for CDF to serve as the lead agency with the Board acting as a responsible agency. As a result, CDF will certify the Final EIR and will consider that EIR in its final shaping of the management plan which it will then submit to the Board for approval. As a responsible agency, the Board will consider the EIR when the Board makes its decision on the management plan but will not certify the EIR.

(AR 55.) There are two errors here. First, CDF was not the lead agency, because it has no authority to decide to approve or carry out the JDSF management plan. Second, the use of two agencies, one to certify the EIR, the other to approve the project is patently improper.

The Board, not CDF, should have acted as the lead agency.

E. CDF Was Not the Lead Agency

The essential characteristic of a lead agency, or for that matter a responsible agency, is the power to approve the project. Since CDF does not have any authority whatsoever to approve the management plan, Respondents erred in allowing it to act as lead agency.

"After considering the final EIR and in conjunction with making findings under Section 15091, the lead agency may decide whether or how to approve or carry out the project." (Guidelines, § 15092, subd. (a), italics added.) If several agencies have approval authority, the lead agency is the agency with "the principal responsibility" for deciding to approve or carry out a project. (Guidelines, § 15367; see Pub. Res. Code, § 21002.1, subd. (d).) Other agencies with lesser approval authority are called responsible agencies. (Guidelines, § 15381.) The lead agency and only the lead agency must prepare and certify the project’s EIR. (Guidelines, § 15050; §§ 21080.1, 21165.)

Under CEQA, a "project" is defined as "the activity that is being approved." (Guidelines, § 15378, subd. (c).) In this case, the activity being approved is the management plan, period. And the only agency with any authority to approve the management plan is the Board.

Examination of the statutes creating California’s state forests and providing for their management demonstrates that CDF has no power whatsoever to approve or decide to carry out a state forest management plan. First, it is the Board, not CDF, that the Legislature has entrusted with the management of state forests and forests on private land:

The board shall represent the state’s interest in the acquisition and management of state forests as provided by law and in federal land matters pertaining to forestry, and the protection of the state’s interests in forest resources on private lands, and shall determine, establish, and maintain an adequate forest policy. General policies for guidance of the department shall be determined by the board.

(§ 740.) To that end, the Legislature has authorized the Board, not CDF, to promulgate policy for state forests. (§ 4646.) And it is has authorized the Board, not CDF, to approve regulations for the proper management and harvesting of state forests (§§ 4651, 4656.1), and forests on private lands. (§§ 4551, 4552.) And the Legislature has made clear that in their hierarchy of power the Board sits above CDF: "The director shall have no power to amend or repeal any order, regulation, ruling, or directive of the board." (§ 710.)

But most importantly, it is to the Board, not CDF, that the Legislature has given the power to approve management plans for state forests: "The director [CDF], in accordance with plans approved by the board, may engage in the management, protection, and reforestation of state forests." (§ 4645, italics added.) The Board has promulgated a single regulation for state forests. Among other things, it directs CDF to prepare management plans for the Board’s approval: "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.)

The Legislature has spoken: the Board, not CDF, has the power to decide whether to approve or carry out a management plan. We have not found a statute, regulation, or policy that even suggests CDF has such authority. Therefore, not only is CDF not a lead agency for the management plan, it is not even a responsible agency. "[T]he term ‘responsible agency’ includes all public agencies other than the lead agency which have discretionary approval power over the project." (Guidelines, § 15381, italics added.) CDF has none.

F. Respondents’ Arguments for Lead Agency Status Are Without Merit

We wish to emphasize that Petitioners brought this error to Respondents’ attention in mid-September 2001, before preparation of the draft EIR had even commenced and eight months before it was released, so that Respondents would not be "sandbagged" into error. In good faith, Petitioners wrote two letters, explaining why the Board, not CDF, was the lead agency. (See AR 55.) Apparently prompted by Petitioners’ objection, on April 3, 2002, CDF and the Board entered into an agreement that CDF would act as lead agency. The agreement is part of the administrative record. (AR 8262-8265.) Petitioners will respond to its major points.

1. CDF makes discretionary decisions under CEQA in preparing a draft plan

Respondents contend that CDF is the lead agency because "in approving the version of the plan to submit to the Board, the CDF director will take an action subject to CEQA." (AR 8263.) With due respect, this is ridiculous. CDF merely hands the Board a draft management plan. That draft is not subject to any formal decision or approval. CDF’s preparation of a draft plan is not a decision subject to CEQA because it is not a decision to approve or carry out the plan.

In a related vein, Respondents argue that in preparing the management plan CDF made numerous discretionary decisions subject to CEQA. (AR 8262.) This, too, is absurd. Undoubtedly, CDF made hundreds, if not thousands of decisions, in preparing a draft plan for a 48,000–acre forest. But none of these were discretionary approvals within the meaning of CEQA. If any of them were, each would require their own CEQA process and CEQA documentation, a proposition almost too absurd to contemplate. If CDF had any such approval authority, it would have exercised it.

There is a second, more fatal problem with these arguments. CDF’s only authority to prepare the management plan is a regulation promulgated by the Board. CDF’s claim for lead agency status, therefore, is based on a task that the Board has assigned it. But this directive cannot make CDF a lead agency. It is well settled that an agency cannot delegate its role as lead agency to another: "So significant is the role of lead agency that CEQA proscribes delegation." (Planning And Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 904-908.) Only the Legislature can. And in some cases the Legislature has. Among the numerous statutes defining the roles of the Board and CDF, a number permit the Board to delegate its duties to CDF. These include the areas of licenses (§ 4577); and the conversion of timberland. (§ 4627.) But the Legislature has not allowed the Board to delegate its duties to CDF in connection with state forests. (See §§ 4631-4664.) Therefore, CDF cannot be the lead agency based on the Board’s directive that it prepare the management plan.

2. CDF is charged with management of state forests

Next, respondents argue that CDF is charged with the management of state forests, and therefore will "carry out" the plan. (AR 8263.) But, more to the point, the Board is charged with a greater and more direct responsibility, approving management plans for state forests. (§ 4645.) Many agencies implement projects approved by a different lead agency. The Guidelines discuss such situations: "With some activities carried out by government, the plan, control, or regulation being adopted may need to be regarded as the project even though the plan, etc., is being adopted to control activities to be initiated later by other people." (Guidelines, § 15378, Discussion.) The fact that CDF later follows the plan in conducting timber operations in JDSF does not make it the lead agency.

Second, the relevant criterion is not "carrying out" the project, but having the power to decide whether to carry it out. CDF does not "decide" whether to carry out the management plan. It merely prepares a draft plan for the Board’s approval. (14 C.C.R., § 1510.) This distinction is critical. As we explained, the sine qua non of a lead agency is the authority to approve a project. If an agency lacks this power, the mere fact it labors on a project does not make it a lead agency.

In addition to the Guidelines already mentioned, numerous others demonstrate that the decision to approve or carry out a project, not the act of carrying it out, is the criterion for lead agency status. For example, a notice of determination is "a brief notice to be filed by a public agency after it approves or determines to carry out a project which is subject to the requirements of CEQA." (Guidelines, § 15373, italics added.) When a "public agency approves or determines to carry out the project" that it decides is exempt from CEQA, it must file a notice of exemption. (Guidelines, § 15062, subd. (a), italics added.)

Other CEQA statutes and Guidelines refer only to "approval," leaving out any reference to the concept of "carrying out a project." (E.g., Pub. Res. Code, § 21002 ["Approval of Project"].) "Prior to approving a project the lead agency shall certify" the final EIR. (Guidelines, § 15090, subd. (a), italics added.) "[A]fter approval of the project by the lead agency," it must file a notice of determination within five working days. (Guidelines, § 15094, subd. (a).) Even "project" is defined in terms of the power to approve: "The term ‘project’ refers to the activity which is being approved and which...." (Guidelines, § 15378, subd. (c), italics added.) A "discretionary project" is a project which "requires the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity...." (Guidelines, § 15357, italics added.)

The flaw in Respondents’ argument can be illustrated by analogy to another area where the Board has sole approval authority, namely rule–making. (§§ 4551-4552, 4651-4656.1.) Under Respondents’ logic, CDF, not the Board, should be lead agency when the Board approves new regulations, including Forest Practice Rules. Although the Board is the only agency with authority to issue such regulations, CDF carries them out. CDF, not the Board, sees that they are implemented and enforced when it approves timber harvest plans. According to Respondents, therefore, CDF should be the lead agency when the Board issues regulations. But it is well settled that the Board is the lead agency for approving regulations and that CDF’s role in carrying them out does not elevate it to lead agency. (§ 4551; Guidelines, § 15381, subd. (e); Sierra Club, supra, Cal.4th at p. 1226 ["The Act vests in the board the obligation to adopt forest practice rules and regulations….")

3. CDF has a larger staff

Respondents’ contend CDF should be lead agency because it has a larger staff to perform the responsibilities of lead agency. In short, Respondents argue that "convenience" favors CDF. This argument was forcefully rejected in Planning and Conservation League, supra, 83 Cal.App.4th 892.

That case dealt with a revision to long-term contracts between the Department of Water Resources and numerous local water contractors governing the supply of water under the State Water Project. The revision to the contracts, known as the Monterey Agreement, required CEQA review. The contractors agreed to have one of their own, the Central Coast Water Authority (CCWA), serve as lead agency. (Planning and Conservation League, supra, 83 Cal.App.4th at p. 897.) CCWA was selected as lead agency because it had recently performed CEQA review on another project and was most familiar with the EIR process. (Id. at p. 904.) Plaintiffs challenged the designation of CCWA as lead agency. The trial court found that CCWA was not the lead agency, because it did not have principal responsibility for deciding to approve or carry out the project and its expertise in CEQA was irrelevant. (Id. at p. 904.) The court of appeal agreed: "So significant is the role of lead agency that CEQA proscribes delegation." (Id. at p. 907.) In short, CDF cannot be designated lead agency simply because environmental review may be easier with it, rather than the Board, at the helm.

4. CDF had already performed lead agency duties

Respondents also contend CDF should be lead agency because "it has already performed many of the duties of lead agency," such as scoping, consulting with other agencies, and contracting for preparation of an EIR. (AR 8263.) First, CDF should not be allowed to bootstrap itself into the role of lead agency by wrongfully taking on that role. (Planning and Conservation League, supra, 83 Cal.App.4th at pp. 905-907.)

Second, CDF performed a number of these activities after Petitioners notified Respondents that CDF was not the lead agency. For example, CDF issued a contract advertisement for preparation of the EIR in late September 2001, after Petitioners’ letter of September 19, 2001, warning Respondents that CDF was not the lead agency. (AR 9171.) Thus, CDF performed EIR–related tasks well knowing that the Board was the lead agency.

Finally, the EIR justifies CDF’s role as lead agency by explaining that CDF and the Board "entered into an agreement" to make CDF the lead agency. But such an agreement is only permitted where two agencies each have "a substantial claim to be the lead agency." (Guidelines, § 15051, subd. (d); Planning and Conservation League, supra, 83 Cal.App.4th. at p. 905.) CDF has no claim to be a lead or responsible agency, let alone a substantial one, because it has no authority whatever to approve the management plan or decide to carry it out.

The Board should have acted as lead agency, and CDF had no authority to act as it did.

G. Only the Board Was Authorized to Certify the EIR, Make Findings, and Adopt A Monitoring Plan

The lead agency must, by definition, approve the project. Therefore even if CDF were the lead agency, Respondents would still have violated CEQA, because CDF did not approve the management plan. Perhaps nothing better illustrates the fact that CDF was not the lead agency than the weird procedure Respondents thought up, with CDF certifying the EIR, making findings, and adopting a monitoring plan, while the Board approved the project. This procedure so violates CEQA that one can be certain CDF would have approved the project had it the authority to do so.

Only one agency, the lead agency, is responsible for preparing and certifying an EIR. And that agency must also make findings, adopt a mitigation monitoring plan, and approve the project. (§§ 21001, subd. (a), 21081, 21081.6, subd. (a)(1); Guidelines, §§ 15050, subd. (a), 15090, subd. (a), 15091, 15092, subd. (a), 15097, 15367.) This unity of labor is essential to further CEQA’s goal of informed decisionmaking.

1. The Board failed to certify the EIR

The lead agency has a mandatory duty under CEQA to prepare and certify the EIR. (§ 21100, subd. (a).) Certification is a three-step process: the lead agency "shall certify" that (1) the final EIR "has been completed in compliance with CEQA"; (2) the lead agency reviewed and considered the final EIR before approving a project; and (3) "the final EIR reflects the agency’s independent judgment and analysis." (§15090, subd. (a)(1)-(c).) The Board violated this mandatory duty.

It neither found that the EIR complies with CEQA or that it reflected the Board’s independent judgment and analysis. (The Board did state that it had reviewed the EIR’s contents. (AR__.)) As a result of the error, the Board has failed to assure the public that the EIR complies with CEQA or that it reflects the Board’s independent analysis and judgment, an especially acute problem here, since the EIR was prepared by NRM whose president is a Board member. (AR 469.)

2. The Board failed to make findings

More serious than the failure to certify, is the failure to make findings. Before approving a project, a public agency has a mandatory duty to make findings that (1) changes have been required in the project to mitigate the significant effects; (2) such changes have been adopted by another responsible agency; or (3) mitigation measures or project alternatives are infeasible. (§ 21081; Guidelines, § 15091; Resources Defense Fund v. Local Agency Formation Commission (1987) 191 Cal.App.3d 886, 896.) Each significant effect identified in the EIR requires a finding, and each finding must be supported by substantial evidence in the record. (Guidelines, §15091, subds. (a)-(b).)

"The lead agency’s decisionmaking body cannot fulfill its CEQA duties simply by ‘considering’ the EIR before approving the project." (Burger v. County of Mendocino (1975) 45 Cal.App.3d 322, 326.) "The purpose of the statutory requirement for findings is to ensure that the decision–making agency actually considers alternatives and mitigation measures." (Resources Defense Fund, supra, 191 Cal.App.3d at p. 896.) The requirement for findings discloses "the analytic route traveled from evidence to action. [Citation omitted.]" (Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 441.) "Only by making this disclosure can others, be they courts or constituents, intelligently analyze the logic of the board’s decision." (Ibid.)

And where, as here, the EIR finds that significant impacts can be mitigated, the findings requirement ensures that the mitigations become part of the project. (Citizens for Quality Growth, supra, 198 Cal.App.3d at p. 442.) Without findings, the approving agency is not bound by the mitigation measures. (Ibid.)

Here, the Board made no findings whatsoever. At the hearing on the project’s approval it was told by counsel that it need not make findings, because CDF already had (AR__); and that findings were not necessary since all of the project’s significant effects were mitigated. (AR __.) Both pieces of advice were dead wrong.

As the approving agency, the Board’s duty to make findings cannot be more clear. CDF’s findings, on the other hand, are a nullity, because CDF was not authorized to approve the project. Findings by an agency without power to make them part of the project are meaningless. The second piece of advice was also wrong. Findings are required when mitigations are necessary to curb a project’s significant effects. (§ 21081; Guidelines, § 15091.) The EIR identified scores of significant impacts requiring mitigations. (AR 8272-8294.) Without findings, the mitigations were not considered, analyzed, or made part of the project. (Citizens for Quality Growth, supra, 198 Cal.App.3d at p. 442.)

The Board’s failure to make findings defeats CEQA in several respects. First, there is no assurance the Board actually considered alternatives and mitigations. Second, the Board’s analytic route from evidence to conclusion cannot be discerned by the public or a reviewing court. And third, perhaps most remarkably, the mitigations identified in the EIR have not been made a condition of project approval.

3. The Board failed to adopt a mitigation monitoring program

The Board failed to perform yet a third mandatory duty. Under CEQA, an approving agency is required to adopt a mitigation monitoring program for mitigations needed to avoid or less a project’s significant effects. (§ 21081.6, subd. (a)(1); Guidelines, §§ 15091, subd. (d), 15097, subd. (a).) The purpose of such a program is to "ensure that mitigation measures and project revisions identified in the EIR or negative declaration are implemented." (Guidelines, 15097, subd. (a); accord § 21081.6, subd. (a)(1).)

Here, just as the Board did not make findings, it did not adopt a monitoring program to implement mitigations recommended by the EIR. Although CDF purported to adopt such a program, its action is meaningless, since it is without authority to perform such an action.

Since the Board failed to adopt a monitoring program, there is no mechanism in place to ensure implementation of the numerous mitigation measures recommended by the EIR.


H. The Board’s Failure to Act as a Lead Agency Constituted a Prejudicial Abuse of Discretion

The Board’s failure to act as a lead agency and fulfill its mandatory duties to certify the EIR, make findings, and adopt a mitigation monitoring program constitute a prejudicial abuse of discretion.

CEQA must be "scrupulously followed," so "the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees." (Laurel Heights, supra, 47 Cal.3d at 392.) Accordingly, failure to follow CEQA’s mandatory procedures is presumptively prejudicial. (Sierra Club v. Board of Forestry (1994) 7 Cal.4th 1215, 1236.) "Failure to comply with the CEQA procedures is necessarily prejudicial." (Resources Defense Fund, supra, 191 Cal.App.3d at pp. 897-898.) Failure to obey provisions that "go to the heart" of CEQA constitutes a prejudicial abuse of discretion. (Id. at 623.) (Environmental Protection Information Center, Inc. v. Johnson ("EPIC") (1985) 170 Cal. App. 3d 604, 623.)

"The lead agency with responsibility for the process by which the EIR is written, approved and certified, plays a crucial role." (Planning and Conservation League, supra, 83 Cal.App.4th. at p. 903.) The "appointment of the wrong lead agency required our reversal." (Id. at p. 906.)

The certification of the EIR, findings, and adoption of a mitigation monitoring program are mandatory and fundamental procedures. They ensure, among other things, the adequacy of the EIR, the independent judgment of the decisionmaker, the consideration of alternatives and mitigations, their incorporation into the project, and their eventual implementation as the project proceeds. But here these objectives could not be realized, because the agency required to perform them, the Board, did not; and an agency without authority to perform them, CDF, did.

This procedural fiasco leads to a profoundly flawed approval. In one of its first CEQA decisions, Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, the California Supreme Court emphasized the importance of environmental review by the proper agency. The case involved the City of Camarillo’s annexation of 677 acres of ranchland for residential and commercial development. The Ventura County Local Agency Formation Commission (LAFCO) approved the annexation without CEQA review. (Id. at p. 268.) On appeal, the City and real party owner of the land argued that CEQA review at the outset by the LAFCO was not necessary, since the City would be required to prepare an EIR when it rezoned the land. (Id. at pp. 282-283.) The Supreme Court rejected this argument (even assuming both the LAFCO and City needed to conduct CEQA review) in part because the LAFCO was a more disinterested agency than the City: "it seems clear that the officials of the municipality, which has cooperated with the developer to the extent that it requests an annexation of that developer’s property...may find it difficult, if not impossible, to put regional environmental considerations above the narrow selfish interests of their city." (Id. at p. 283.)

The same can be said with equal force here. CDF made no secret of its desire to log JDSF to make money for CDF. (AR 9724.) Indeed, in late December 2001, in the same document in which it spoke of its need for logging proceeds, CDF told SHN/NRM that the EIR "must be completed early in 2002"—that is, in two to three months. This is an impossible task for an EIR covering management of a 48,000–acre demonstration forest. (AR 9723-9724.) In taking on the role of lead agency, CDF not only violated the law, it deprived the more disinterested decisionmaker, the Board, from making critical decisions.



Even if one assumes the Board was a responsible agency, Respondents still violated CEQA. A responsible agency has fewer duties under CEQA than a lead agency, but it has duties nonetheless. Although it does not prepare or certify the EIR, as to that portion of the project it approves, it must make findings, adopt mitigations, adopt a mitigation monitoring program, and file a notice of determination. The Board did none of these.

A responsible agency is responsible for that portion of a project that it decides to carry out or approve. (§§ 21002.1, subds. (b), (d), 21081, 21081.6; Guidelines, §§ 15096, subds. (g)(1), 15381.) Although not required to prepare or certify the EIR, a responsible agency is required to make findings, adopt feasible mitigations and alternatives recommended by the EIR, adopt a mitigation monitoring program, and file a notice of determination. (Guidelines, §§ 15096, subds. (g)-(i); 15097, subds. (a), (d).) Typically a lead agency and a responsible agency "will adopt separate and different monitoring or reporting programs." (Guidelines, § 15097, subd. (d).)

As previously explained, the Board did not make any findings, and did not adopt a mitigation monitoring program. And it did not file a notice of determination.

The failure of even a responsible agency to make findings is a prejudicial abuse of discretion. (Resources Defense Fund, supra, 191 Cal.App.3d at pp. 897-898.) The Board’s errors here are particularly prejudicial. Even if one engages in the fiction that the Board acted as a responsible agency, it was a responsible agency with uniquely enormous power. It had authority to approve and did approve the entire management plan, not just part of it as is typically the case of a responsible agency. If CDF was the lead agency, the Board was the tail that wagged it at will. (See AR__.) The prejudice from its failure to make findings and adopt a mitigation monitoring program is proportionate to the scope of its power to approve the entire project.



A. Question Presented

A draft EIR must describe the regional setting of the project. Information about the area in which the project lies is critical to the assessment of environmental impacts. The draft EIR devotes little more than a single paragraph to the land surrounding JDSF. It took public comment to reveal that most of the surrounding land is industrial timberland damaged by overcutting. Is Respondents’ failure to describe the regional setting a prejudicial abuse of discretion?

B. A Draft EIR Is Required to Describe the Regional Setting in Which the Project Is Found

"A draft EIR must include a description of the physical environmental conditions in the vicinity of the project...from both a local and a regional perspective." (Guidelines, § 15125, subd. (a).) "Knowledge of the regional setting is critical to the assessment of environmental impacts....the EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed and it must permit the significant effects of the project to be considered in the full environmental context." (Guidelines, § 15125, subd. (c).)

An accurate description of the regional or environmental setting ensures that impacts or changes from the project "can be seen in context." (San Joaquin Raptor, supra, 27 Cal.App.4th at p. 723, quoting Guidelines, § 15125, Discussion.) Numerous courts have stressed the importance of a description of the regional setting, especially for consideration of cumulative impacts. The California Supreme Court called the requirement a "vital provision of the Guidelines," because it ensures "that the cumulative impact of all projects in the region can be assessed." (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283; Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397, 407-408.)

And several cases have set aside projects and EIR’s because of a failure to adequately describe the regional setting. In Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, the court of appeal found inadequate the "environmental setting" portion of the EIR prepared for the construction of a dam and reservoir. Petitioner contended the EIR failed to adequately evaluate the project’s effects on vineyards in the area. The "Land Use, Planning, and Recreation" section of the EIR described the land uses around the site in fairly brief terms, the land consisting—

[G]enerally of undeveloped forested open space. The Wilderness Area stretches further south and adjacent to the project site. This area is undeveloped with some hiking trails and gravel and dirt roads. Cal-Am also owns some property to the south of the project site. Land use to the north includes very low density rural residential properties and limited grazing. East and west of the project site is mostly undeveloped land with some grazing, agriculture and scattered rural residential use. No development has been proposed for the project site and surrounding area.

(Id. at p. 1122.) Another section of the EIR described the area as "sparsely populated with no industry other than several vineyards in the Cachagua Valley." (Ibid.) The court held that this cursory description violated CEQA: "Due to the inadequate description of the environmental setting …a proper analysis of project impacts was impossible." (Ibid.)

In San Joaquin Raptor, supra, 27 Cal.App.4th 713, the project was a residential and commercial development in Stanislaus County. Petitioners challenged the description of the environmental setting of the surrounding area, contending a nearby wildlife preserve was essentially ignored. (Id. at p. 722.) The court of appeal agreed. A number of descriptions of the surrounding area appeared throughout the EIR, characterizing it as farmland, mostly in agricultural production. But, according to the court, these descriptions understated the significance of the wildlife preserve nearby, as well as the San Joaquin River located adjacent to the site. These descriptions failed to satisfy Guidelines section 15125: "We must interpret the Guidelines to afford the fullest possible protection to the environment." (Id. at p. 723.) For this and several other errors, the court of appeal reversed the trial court, and issued a writ setting aside certification of the EIR and approval of the project. (Id. at pp. 742-743.)

Most recently, in Cadiz Land Company, Inc. v. County of San Bernardino (2000) 83 Cal.App.4th 74, the court of appeal rescinded certification of an EIR for a landfill project over a single issue, the EIR’s failure to adequately discuss the regional setting, in particular the volume of groundwater flowing below and near the landfill. "Despite the landfill EIR’s enormity and the length of time devoted to preparing it....the EIR does not provide a sufficient description of the environmental setting...." (Id. at p. 92.) Although considerable information about groundwater was presented in the EIR, its volume was not. In the absence of this information, the court of appeal held that the significance of impacts would not be evaluated: if there was less water, the court reasoned, the impact of contaminating it might be considered less significant than if there was a large volume. (Id. at p. 94.) As a result of the error, the court of appeal reversed the trial court, and ordered issuance of a writ setting aside certification of the EIR. (Id. at p. 123.)

C. The Draft EIR’s Description of the Regional Setting Is Inadequate

Under these authorities, the management plan EIR is grossly deficient. It barely describes the surrounding land, let alone its condition or the nature and extent of its uses.

The section "Area Setting" comprises three subsections, "Location," "Climate," and "Surrounding Land Use," of less than one and one–half pages. (AR 61-62.) The subsection "Surrounding Land Use" comprises three paragraphs and 287 words. Its first paragraph describes the zoning of surrounding lands; the second describes the location of "inholdings" by private owners, and the third the location of a "major outholding." (AR 62.) (The three paragraphs are repeated with slight modifications in a later subsection entitled "Surrounding Lands" in the "Land Use and Planning Section." (AR 388.)) The first paragraph, which is the most "informative" of the three, says almost nothing about the nature and extent of the surrounding region’s use and condition:

Lands to the north and south of JDSF are classified as Forest Lands (FL) in the Mendocino County General Plan. Lands to the east of JDSF are classified as FL and Range Land (RL). The Land Use Classifications for the west side of JDSF are Rural Residential (RR), Remote Residential (RMR), Public Service (PS) and Solid Waste Landfill (SW) (Mendocino County, 1981 rev. 1983). See Land Classification Map A in the attached Figures section. The greatest potential for conflict between JDSF and private landowners is in the Rural Residential areas where harvesting practices on JDSF could indirectly impact the private lands. Examples of these impacts are aesthetics, loss of wildlife on the private lands, and noise impacts.

(AR 62.) In addition to this, under the subsection "Location," two sentences reveal the following: "There are 11 privately owned parcels within the ownership, most in the southwest corner. A large private ownership extends into the middle of JDSF from the south." (AR 61.)

We also note that several of the resource specific sections include subsections called "Setting" or "Environmental Setting." (E.g., AR 90, 114, 157, 387.) But they do not discuss the surrounding environment. For the most part, they are limited to a description of JDSF. For example, the "Setting" subsection under "Timber Resources" describes the forest on JDSF, not on adjacent and surrounding lands. (AR 157-173.) Likewise, the entire discussion of "Wildlife and Wildlife Habitat" is limited to wildlife on JDSF. (AR 222.) The "Setting" subsection under "Botanical Resources," focuses on species "likely to occur within JDSF," without any description how those species may be faring on lands adjacent to or surrounding it. (AR 144; see also AR 135-144.) The "Environmental Setting" subsection of "Aquatic Resources" is the same. It focuses on the health of streams and riparian areas—e.g., water temperatures, fine sediment in pools, presence of large woody debris—in JDSF. (AR 114-116.)

The description here is even less detailed than those condemned in Galante Vineyards and San Joaquin Raptor. Yet this is a vastly larger project of 48,000 acres, the effects of which can only be understood in the larger landscape of which they are part.

But no one reading the draft EIR would know that to the north and south JDSF is bounded by two vast industrial timberland ownerships of degraded land and streams. It took a number of scientists and experts commenting on the draft EIR to describe the true condition of the regional setting, heavily logged lands suffering from numerous environmental impacts. For brevity and ease of reference, we provide a series of their verbatim statements:

  • We have commissioned a map to illustrate the proximity and extent of industrial timberland ownership in the vicinity of Jackson Forest and in Mendocino County. (Exhibit A) It shows that JDSF is bounded on both north and south almost exclusively by two large industrial timberland owners, Hawthorne Timber LLC (Hawthorne) on the west end of JDSF, and Mendocino Redwood Company (MRC) on the east. Their ownerships extend far to the north and south of Jackson. Both of these companies are...successors to...Georgia-Pacific (now Hawthorne) and Louisiana Pacific (now MRC). G–P and LP mercilessly over-logged their lands, culminating in the 1990’s with the virtual elimination of older second growth redwoods...on their lands. During this now infamous period, CDF approved thousands of Timber Harvest Plans and concluded that each individually and cumulatively resulted in no significant adverse impact to the environment. Yet during this same period...species such as coho salmon, marbled murrelets, and steelhead trout were listed as threatened or endangered by both the state and federal governments and most of the streams in the area were listed as impaired under...the Clean Water Act including both the Big River and Noyo River, major watersheds in JDSF. Each of these listings cited poor California Forest Practice Rules and effects of logging as either primary or significant factors in the listing. The absence of information regarding this environmental setting is a significant omission of the DEIR. (AR 1275-1276, Sierra Club California.)
  • Most of the private forest land near and adjacent to Jackson is not only in private ownership, it is owned by two large timber companies that between them control almost half a million acres in the redwood region of Mendocino County. While the DEIR highlights the lack of public land in relation to the importance of JDSF’s demonstration function, it fails to mention that this makes Jackson the only large forest in the area where public trust resources are not competing with private property rights issues or shareholder profits. This is a significant omission. (AR 1260, Salmon and Steelhead Recovery Coalition.)
  • Consideration of spatial context is one of the most important conservation planning principles (see Noss 2002) and one of only two basic principles of forest management that applies to all forest types (Perry 1994)….Forest management researchers and practitioners…highlighted the recognition and endorsement of the importance of context regardless of ownership. It is no longer acceptable to conduct planning in a geographic vacuum yet it continues in many places and is demonstrated in the DFMP and DEIR. The lack of regional context in the DEIR and the DFMP is a very serious omission and will result in poor assumptions and flawed judgments. (AR 7064, Conservation Biology Institute.)
  • The spatial and temporal context of the surrounding region adjacent to JDSF, and for particular issues the entire redwood egoregion, cannot be overlooked and still produce an effective forest management plan that addresses the stated goals and objectives by JDSF. (AR 7065, Conservation Biology Institute.)
  • This discussion fails to note the extensive current logging damage, or almost homogenous disturbance on other lands surrounding JDSF and regionally. (AR 1213, Patrick Higgins, Consulting Fisheries Biologist (PH).)
  • The EPA’s Land Cover data derived from 1994 Landsat imagery shows a dramatic difference between JDSF and adjacent private land holdings (Figure 17.) While JDSF shows up as evergreen forest, seral stages in adjacent areas recently clearcut show up as mixed forest, hardwoods and shrubland. Change scene detection using 1994 and 1998 Landsat imagery has been checked by CDF FRAP and can be used to identify landscape changes such as those associated with timber harvest. (AR 1226-1230, PH.)
  • Timber harvesting has been extensive in recent periods and is recognized as contributing sediment to the Noyo and Big Rivers (GMA, 1999 and 2000). The rate of timber harvest increase substantially since 1985 in the Noyo River, when compared with periods for the last 70 years (Figure 14). The Noyo River basin has undergone extensive timber harvest, according to CDF’s own data, between 1986 and 1999 with some sub-basins more than 80% harvested in this period (Figure 15). The extensive timber removal adjacent to JDSF is also evident in the Big River basin, with extensive Clearcut logging in areas just to the south of the Forest (Figure 16). (AR 1226, PH.)
  • Dunne et al. (2000) explain that large land surface disturbances, such as the recent extensive timber harvest surrounding and within JDSF, cause effects which are sometimes hard to quantify but known to occur. (AR 1230, PH.)
  • Data on pool frequency and depth as well as the amount of sediment in pools indicate that JDSF streams are refugia, when compared to the current conditions of streams in Mendocino County. (AR 1221, PH.)
  • Murphy et al. (1984) found that natural pool frequencies in unmanaged streams ranged between 39-67%. Many streams on private lands in the Noyo Basin have pool frequencies less than 20% (Fig. 6). (AR 1219, PH.)
  • The JDSF Plan fails to note widespread problems with elevated water temperatures throughout the Noyo and Big River basins, where most main stems sites are too warm to support coho salmon juveniles or for steelhead growth and survival. (AR 1221, PH.)
  • Stocks of coho are also plummeting in adjacent watersheds in response to intensive land use. NMFS (2001) noted that coho were absent from 80% of tributaries to the Ten Mile River that formally harbored them, with particular decline noted in the South Fork Ten mile River. The Ten Mile River is adjacent to the Noyo River watershed to the north and east. The SF Ten Mile sub-basin was harvested in 76% of its watershed area between 1990 and 1999 and road densities increased to 5-10 miles per square mile (GMA, 2000). (AR 1217, PH.)
  • There is no substantive discussion of the huge cumulative effect, the virtual loss of coho salmon as a result of land use practices. The extremely intense timber management since 1985 in the Noyo River Basin and surrounding watersheds such as Pudding Creek, Ten Mile River and Big River have caused the disappearance or diminution of coho salmon in these areas.... (AR 1232, PH.)
  • Coho salmon populations in watersheds surrounding JDSF face high risk of loss due to unstable watershed conditions. (AR 1217, PH.)
  • Consequently, potential large woody recruitment and other riparian functions are impaired in most of the watersheds surrounding JDSF.... (AR 1223, PH.)

The above is a sampling of comments that highlighted the lack of information and consideration of the regional context in evaluating the management plan and its effects.

No project is an island. But one might think JDSF was, had not the public exposed the draft EIR’s inadequate description of the regional setting. The draft fails to describe in any meaningful detail the nature, use, and condition of the surrounding environment. Unless one read Higgins’s extensive comments, for example, one would not know that coho populations plummeted in the Little North Fork Noyo River following logging of 80% of the watershed on private land from 1985 through 2000; the same happened in the nearby South Fork Ten Mile River after 76% of the watershed was logged between 1990 and 1999; pool frequencies on private lands in the Noyo Basin are two to three times less than on unlogged land; pools on private lands surrounding JDSF contain twice the sediment as unlogged land; water temperatures on surrounding lands tend to be too warm to support coho; riparian function and large woody debris recruitment are impaired in most of the watersheds surrounding JDSF; and because of aggressive logging there is a dramatic difference in vegetative cover between surrounding private timberland and JDSF.

And unless one read the Sierra Club’s extensive comments, one would not know that logging on land surrounding JDSF has eliminated virtually all old–growth forest, and in the past decade virtually all significant stands of mature second–growth, leaving JDSF with the only significant stands in the county capable of developing into late-successional forest in the coming decades. (AR 1275-1276.)

As the court in Cadiz Land Company, supra, explained, without an understanding of the condition of the environment around the project, its effects cannot be properly understood. An impact from a project in a pristine environment will be viewed differently than the same impact in a degraded one. (83 Cal.App.4th at p. 94.) Consider Higgins again. He repeatedly points out that an impact, however small, to coho salmon on JDSF can only be understood in the context of their plight over the larger landscape. Thus, if coho were not being extirpated from adjoining lands, an impact from the logging of JDSF might be considered less significant than if they were. But they are being extirpated because of degraded habitat—one of many aspects of the regional setting that was not adequately described in the draft EIR.

We can think of two reasons why CDF ignored such a fundamental requirement of a draft EIR: the press of time, and a reluctance to describe the effects of logging it has approved on private land. An inadequate description of the regional setting in a draft EIR constitutes a prejudicial abuse of discretion. (Cadiz Land Company, supra, 83 Cal.App.4th at p. 95; Galante Vineyards, supra, 60 Cal.App.4th at pp. 1122-1123.) Without a regional context for evaluation of a project’s effects, the twin goals of CEQA—informed decisionmaking and public participation—are thwarted. (Cadiz Land Company, supra, 83 Cal.App.4th at p. 95.)



A. Question Presented

Under CEQA, a draft EIR shall consider cumulative impacts, the combined, incremental effects of multiple projects. Because a program EIR analyzes a series of related projects, it is especially well–equipped to consider cumulative impacts. But the program EIR here does not consider them, even stating cumulative impacts "have little or no applicability to the JDSF Management Plan." Is respondents’ failure to consider cumulative impacts an abuse of discretion?

B. A Draft EIR Must Consider Cumulative Impacts

This Court will see few CEQA errors more fundamental than the one presented here. Although difficult to believe given settled law, the draft EIR does not contain a cumulative impact analysis. The error is especially egregious because this is a program EIR, which is designed to consider cumulative impacts. Petitioners do not need to show, therefore, that the draft EIR’s cumulative impact analysis is legally inadequate. Instead, they need merely point out the obvious—the draft EIR does not include a consideration of cumulative impacts.

Under CEQA, an EIR must identify and evaluate cumulative impacts. (§§ 21100, 21083, subd. (b); Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 428.) Cumulative impacts are the incremental effects from multiple projects that combine to affect the environment. "The cumulative impacts from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related, past, present, and reasonably foreseeable probable future projects." (Guidelines, § 15355, subd. (b).) Cumulative impacts are "two or more individual effects which, when considered together, are considerable or which compound or increase other environmental impacts....[they] can result from individually minor but collectively significant projects taking place over a period of time." (Guidelines, § 15355, subd. (b);; accord EPIC, supra, 170 Cal.App.3d at p. 625.) And such incremental effects must be analyzed whether they fall on-site or off-site. (E.g., Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1396; Cal. Code Regs., tit. 14, § 912.9.)

"The purpose of this requirement is obvious: consideration of the effects of a project or projects as if no others existed would encourage the piecemeal approval of several projects that, taken together, could overwhelm the natural environment and disastrously overburden the man-made infrastructure and vital community services. This would effectively defeat CEQA’s mandate to review the actual effect of the projects upon the environment." (San Joaquin Raptor, supra, 27 Cal.App.4th at p. 740 [quoting Las Virgenes Home Owners Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 306].)

Though it may be obvious, the consideration of cumulative impacts must be in the draft EIR. The CEQA Guidelines specify the information that a draft EIR "shall contain," and cumulative impacts is one of the topics that "shall" be discussed. (Guidelines, §§ 15120, subd. (c), 15130.) Requiring consideration of impacts in the draft EIR ensures the participation of the public and other agencies. It is the draft EIR, as distinct from the final EIR, that must be made available for public comment and review. (Guidelines, §§ 15087, 15132.) Unless the draft document contains the analysis of cumulative impacts, the public and other agencies will be barred from comment and criticism and excluded from the CEQA process. (Friends of the Old Trees, supra, 52 Cal.App.4th at p. 1402.)

The error here is particularly serious, because the EIR purports to be a program EIR. A program EIR is designed for cumulative impacts analysis. (Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511, 534.) It is intended to address "a series of actions" that can be related "geographically," or as "logical parts in a chain of contemplated actions," or "as individual activities carried out under the same authority and having generally similar environmental effects...." (Guidelines, § 15168, subds. (a)(1), (2), (4).) Two of its stated "advantages" are to "[e]nsure consideration of cumulative impacts that might be slighted in a case-by-case analysis," and "[p]rovide an occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action." (Guidelines, § 15168, subds. (b)(1), (2).)

One can readily see why a program EIR was used for JDSF, and why it is a better vehicle for considering cumulative impacts. The "series of actions" for JDSF are the evaluation and approval of logging operations, which are related (1) geographically, as (2) logical parts in a chain of contemplated actions, and as (3) individual activities carried out under the same authority, namely Respondents, and that have generally similar environmental effects. (Guidelines, § 15168, subds. (b)(1), (2), (4).)

Given the fit between a program EIR and the JDSF management plan, one would have expected the EIR to analyze the cumulative impacts of past, present, and known future THPs. But such analysis cannot be found in the draft EIR.

C. A Consideration of Cumulative Impacts Cannot Be Found in the Draft EIR

The CEQA Guidelines set forth the minimum elements necessary for an adequate analysis of cumulative impacts: (1) a list of past, present, and probable future projects producing related or cumulative impacts, including, if necessary, those projects outside the control of the agency; (2) a "summary of the expected environmental effects to be produced by those projects....," and (3) a "reasonable analysis of the cumulative impacts of the relevant projects." (Guidelines, § 15130, subds. (b)(2), (3).) In short, the essence of a cumulative impacts analysis is a list of projects, a discussion of their effects, and a reasonable analysis of their cumulative impacts.

Nothing approaching a cumulative impacts analysis as described above appears in the draft EIR. There is not a list of projects, a discussion of their effects, or an analysis of their cumulative impacts either on or off–site. The draft EIR does not identify a single past, current, or future THP in or surrounding JDSF, let alone provide a list of such projects, discuss their environmental effects, or analyze their cumulative impacts.

This oversight is all the more perplexing because the management plan, as required by Board policy, provides an extensive list of THPs proposed for logging in JDSF over the next five years. (AR 8964-8966.) Board policy for state forests requires that "[t]imber harvesting schedules should be projected at least five years into the future." (AR 22.) Accordingly, the management plan contains a schedule of 24 proposed timber harvest plans for the next five years, setting forth for each the year of harvest, area, size, and silviculture method. (AR 8965.) Such a list should have constituted the first part of a cumulative impacts analysis of these projects. The draft EIR should have explained how the incremental effects of these numerous future projects might combine with each other, and with other past, present, and future projects on and around JDSF. (E.g., Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, 198.)

We emphasize that the draft EIR ignores cumulative impacts arising from projects both on and off–site. Not only is there no consideration of the cumulative impacts from past, present, and future projects on JDSF, there is no consideration of how these projects have or will combine with projects off–site. As we explained in the previous section, JDSF is surrounded by industrial timberland that is suffering from substantial and well-documented cumulative impacts. Because of its vulnerability to additional impacts, it is imperative that the draft EIR consider how the incremental effects of projects on JDSF may combine with those from projects surrounding JDSF. And Respondents can hardly complain that gathering information on project surroundings JDSF is an onerous task, since the vast majority of such projects are THPs that CDF has or will approve.

D. The Draft EIR Virtually Concedes Its Failure to Consider Cumulative Impacts

The failure to present a cumulative impacts analysis in the draft EIR was not an oversight: It announces early on that cumulative impacts received scant consideration. In the section "Resource Specific Analysis," the draft EIR concludes that cumulative impacts have "little or no applicability" to the JDSF Management Plan:

CEQA also requires an examination of cumulative and growth–inducing effects. These have little or no applicability to the JDSF Management Plan project." (AR 87 [emphasis added ].)

This is a misstatement of fact and law. As discussed, cumulative impacts should be the primary concern of a program EIR considering a plan for a series of intimately related logging operations.

Following this misstatement, the draft EIR goes on to say that cumulative impacts are discussed "generally" in section VIII, "Other CEQA Required Analysis," and within each resource section. (AR 87.) But none of these sections contains a consideration of cumulative impacts.

Under the section "Other CEQA Required Analysis," there is a subsection entitled "Cumulative Impacts." (AR 436.) It is less than one–half page, comprising three short paragraphs, and less than 200 words. (AR 436-437; see Laurel Heights, supra, 47 Cal.3d at 401 [alternatives section "received a scant one and one–half pages of text"]; San Joaquin Raptor, supra, 27 Cal.App.4th at 735 [alternatives’ "one and one–half page section...may be accurately described as ‘cursory at best’ "].) The first paragraph merely recites the CEQA Guideline that defines cumulative impacts and require their analysis. (AR 436.) The second paragraph concludes that the assessment of cumulative impacts is "inherent" in the "programmatic approach" of the draft EIR. It claims also that cumulative impacts are considered in the "Resource Specific Analysis in Section VI," citing as examples the sections on hydrology, air quality and aesthetics. (AR 436.) The third paragraph repeats the point that "cumulative impacts have been identified within the various resource sections." It notes that "mitigation measures will be incorporated into the JDSF Management Plan," and citing Guidelines 15130, subdivision (c), states that "[t]his is the most effective means for addressing cumulative impacts...." (AR 436.) But Guideline 15130, subdivision (c), has absolutely no relevance to anything preceding its citation. The Guideline states: "With some projects, the only feasible mitigation for cumulative impacts may involve the adoption of ordinances or regulations rather than the imposition of conditions on a project–by–project basis." (Guidelines, § 15130, subd. (c).) How the enactment of regulations and ordinances relates to the JDSF management plan is neither explained, nor easy to imagine.

The "Cumulative Impacts" section does not consider cumulative impacts. It says instead they are "inherent in the programmatic approach," or are considered in the sections on specific resources. (AR 436-437.) We will show that neither contention has merit.

1. There is no such thing as an "inherent" cumulative impacts analysis

We do not know what an "inherent" consideration of cumulative impacts is, or what it looks like, or where to find it in the draft EIR. As one scientist said in commenting on the draft EIR, "[T]here is no way to know what the authors mean by ‘inherent in the programmatic approach’ based on the information provided." (AR 7065.) But we are confident it is not authorized by law.

Neither CEQA, its Guidelines, or case law even hints at such a concept. To the contrary, neither the Guidelines nor case law, both of which explicitly address program EIRs, even suggest that their consideration of cumulative impacts is subject to a different format, let alone one that is "inherent"—whatever that means. (See § 21083; Guidelines, §§ 15130 ["Discussion of Cumulative Impacts"]; § 15168 ["Program EIR"]; Friends of Santa Clara River v. Castaic Lakes Water Agency (2002) 95 Cal.App.4th 1373, 1376; Friends of Mammoth, supra, 82 Cal.App.4th at p. 533.)

2. The sections of the draft EIR on specific resources do not consider cumulative impacts

At the outset is worthwhile to consider the burden placed on the public, the decisionmakers, and the Court in having to search for an analysis of cumulative impacts in specific resource sections, since there are fourteen of them in the draft EIR, including, for example, Aesthetic Resources, Agriculture Resources, Mineral Resources, Air Quality, Biological Resources, Geology and Soils, and Hydrology and Water Quality. (AR 5.) And if even one lacks a cumulative impacts analysis, the draft EIR would be defective. But the Court need not worry that it will have to consider fourteen individual cumulative impacts analyses. None of the resource sections analyzes cumulative impacts as required by CEQA. None contains the minimum requisites of an adequate analysis of cumulative impacts: a list of projects, a discussion of their effects, and a reasonable analysis of their cumulative impacts.

Indeed, in two of the three resource sections expressly given as examples of the consideration of cumulative impacts, namely aesthetics and hydrology (AR 437), the terms "cumulative," or "cumulative impacts," or "cumulative effects," or "cumulatively considerable" are not once mentioned. (AR 90-101, 372-386.) In fact, it is remarkable just how infrequently these terms are used in the hundreds of pages comprising the sections on specific resources. The term "cumulative impact(s)" is mentioned only six times in the several hundred pages that comprise the fourteen resource sections. (AR 90-435.) One of those references is the one that says cumulative impacts "have little or no applicability" to the EIR. (AR 87.) Three references are found in discussions about the Forest Practice Rules (FPRs) or CEQA Guidelines. (AR 180 [FPRs], 356 [Guideline relating to categorical exemptions], 380 [FPRs].) A fifth reference occurs in a discussion of alternatives about timber resources (AR 195) and a sixth reference is found in a quote from an earlier document relating to herbicide use. (AR 331.)

The similar phrase "cumulative effect(s)" is used but once in the fourteen sections. Again, the reference is not in connection with any analysis, but a general reference to the concept in connection with regeneration harvesting. (AR 166.)

Finally, the phrase "cumulatively considerable" is used six times, three times in connection with air quality (AR 110, 112-113) and three times in connection with traffic. (AR 431-432, 433.) But even with respect to these two resources, neither of which is traditionally thought to be seriously affected by logging, there is nothing approaching an analysis of cumulative impacts. (Guidelines, § 15130, subd. (b)(2), (3).)

E. Other Agencies, Experts, and Members of The Public Could Not Find a Cumulative Impacts Analysis

We are not the only ones unable to find a consideration of cumulative impacts in the draft EIR. A number of agencies and experts expressed their perplexity at the inability to find a consideration of cumulative impacts in the record.

The National Marine Fisheries Service is charged with protection of federally threatened anadromous salmonids, namely coho salmon and steelhead trout. After reviewing the draft EIR, it could not find a consideration of cumulative impacts:

  • Additionally, how is JDSF addressing cumulative effects across spatial and temporal scales? Effects from timber harvest activities have been found to be more difficult to detect on smaller spatial scales than larger spatial scales. THP activity at the watershed scale has effects to microclimate and other watershed products that can not necessarily be detected on smaller scales. (AR 909.)

The California Department Fish and Game complained generally of CDF’s failure to implement many of its recommendations offered during scoping. (AR 825.) After reviewing the draft EIR, it expressed concern about cumulative impacts:

  • How will cumulative impacts be evaluated and monitored? (AR 834.)
  • There is no mention that cumulative impacts will be evaluated for thresholds of significance. (AR 835.)

The California Department of Parks and Recreation took a keen interest in the EIR, because of a number of state parks around JDSF. It was interested in the preservation and recruitment of late successional forest. (AR 887-890.) As to cumulative impacts—

  • How do the existing groves of old–growth within JDSF and the proposed recruitment of late seral stands relate to the regional distribution and loss of late successional habitat within Mendocino County?....Based on the lack of biological and cumulative analysis of late successional/old-growth elements, the DEIR do not provide enough information to substantiate this less than significant determination. (AR 889.)

Patrick Higgins is a consulting fisheries biologist. He is one of the authors of the KRIS projects, compendiums of information about a number of California’s watersheds, including the Noyo, Big, and Ten Mile Rivers. CDF is the primary sponsor of Higgins’s work. (AR 1212.) He too complained of the lack of discussion of cumulative impacts:

  • The JDSF Plan does not sufficiently address cumulative watershed effects regarding forests, timber harvest impacts, roads and erosion and major effects like the loss of the coho salmon.... Instead the Cumulative Impacts section is less than a page long. Although the Plan promises basin-wide context discussions for fisheries and wildlife which will fulfill cumulative effects analysis requirements, such discussions are not found in the JDSF Plan. (AR 1230, emphasis added.)

Dr. James Strittholt is a conservation biologist/landscape ecologist and executive director of the Conservation Biology Institute in Oregon. His curriculum vitae, which we urge the Court to review, is a litany of awards, publications, guest lectures, and activities. (AR 7051-7062.) Among other things, he co-authored The Redwood Forest: History, Ecology, and Conservation of the Coast Redwoods. (AR 7056.) He was flummoxed by the draft EIR’s "inherent" approach to cumulative impacts:

  • The DEIR discusses cumulative effects in very general terms in section VIII and supposedly is considered within each resource section in the document. Based on the three paragraphs on pp. 429 & 430 pertaining to cumulative effects, cumulative impact assessments are, ‘inherent in the programmatic approach to development of the JDSF Management Plan EIR.’ A number of concerns exist here. First, there is no way to know what the authors mean by ‘inherent in the programmatic approach’ based on the information provided. More importantly, the DEIR completely leaves out entire sections of what is meant by cumulative effects. (AR 7065.)

This Sierra Club California did not mince words:

  • Amazingly, no cumulative impact analysis has been done for the Jackson DEIR. As the Guidelines for the California Environmental Quality Act (CEQA) encourage cumulative impact analysis as appropriate at the programmatic EIR stage, the lack of this analysis is a significant shortcomings in the DEIR. (AR 1275.)

And the California Native Plant Society wrote several letters itemizing numerous concerns about the draft EIR’s treatment of JDSF’s flora, including cumulative impacts.

  • Cumulative impacts—the draft plan does not provide for adequate cumulative impacts assessment. (AR 334.)

If these agencies, highly qualified scientists, and environmental groups could not find a consideration of cumulative impacts in the draft EIR, it is fair to conclude there is not one, or, at least, not one that satisfies CEQA.

F. The Final EIR Does Not Cure The Draft EIR’s Defects

Faced with the failure to consider cumulative impacts in the draft EIR, and the remarkable statement that they "have little or no applicability to the Management Plan," CDF scrambled for cover in the final EIR. It did two things.

1. The response to comments and Appendix 13

In the Response to Comments section of the final EIR, CDF reversed itself and announced, "Cumulative impacts are indeed a very important part of this and any program EIR." (AR 783.) Conceding that the draft EIR did not contain a "distinct cumulative impacts section," the final EIR maintains that they were nonetheless considered. It presents a new 17–page section on cumulative impacts for "clarity" and "ease of review by readers," summarizing what is supposedly implicit in the draft EIR. (AR 783-799, 1131.) In addition, CDF prepared a new 31–page appendix, Appendix 13, and attached it to the final EIR. It is a series of verbatim excerpts from innumerable places in the draft EIR, purporting to show where past, present, and future projects were evaluated in the draft EIR. (AR 1504-1534.)

These measures are shoddy and desperate. They prove that the draft EIR meant what it said when it said that cumulative impacts "have little or no applicability" to the management plan—that it did not consider cumulative impacts. If it had, a 31–page appendix searching for such analysis, and a 17–page section discussing it would not have been necessary. But even assuming cumulative impacts are somewhere hidden in the draft EIR, CEQA requires the EIR to be "a user-friendly document." (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 28.) A draft EIR "must be organized and written so as to be readily understandable by governmental decisionmakers and by interested non–professional laypersons likely to be affected by actions taken under [it]." (San Franciscans for Reasonable Growth v. City and County of San Francisco (1987) 193 Cal.App.3d 1544, 1549, quoting Oregon Environmental Council v. Kunzman (9th Cir. 1987) 817 F.2d 484, 494.) It must "enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." (Laurel Heights, supra, 47 Cal.3d at p. 405.)

A draft EIR that must be supplemented—for "clarity" and "ease of review by readers"—with 17 pages on cumulative impacts, and a 31–page appendix searching for them does not satisfy these principles. The draft EIR is not understandable by decisionmakers and non–professionals. Indeed, it was not understandable by agencies and experts, many of whom asked where the consideration of cumulative impacts was.

In any event, neither the discussion of cumulative impacts in the Response to Comments or Appendix 13 satisfies the requirements of a cumulative impacts analysis. (See Guidelines, § 15130.) Indeed, the word "cumulative," let alone the phrases "cumulative impact(s)," or "cumulative effect(s)," is not even once used in the hundreds of excerpts from the draft EIR found in Appendix 13. Nor is a single THP identified. (See AR 1504-1534.)

2. The final EIR cannot substitute for what must be in the draft EIR

Nor can CDF argue that its "discussion" of cumulative impacts in the final EIR cures the absence of consideration in the draft. Such a tactic has been repeatedly condemned because it frustrates CEQA’s twin goals of public participation and informed decisionmaking. Under CEQA, the draft EIR is subject to public comment and criticism and evaluated accordingly; the final EIR and the response to comments (which is part of it) are not. (Guidelines, §§ 15087-i.15088, 15132, 15203.) Therefore to effectuate CEQA’s goal of public and agency review, it is the draft EIR that must consider inter alia cumulative impacts. (§§ 21080, subd. (c), 21092, 21153; Guidelines, §§ 15073, 15087.) "This requirement of ‘public and agency review’ has been called ‘the strongest assurance of the adequacy of the EIR.’" (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308.) And the information required in a draft EIR "must be discussed in the EIR in sufficient detail to enable meaningful participation and criticism by the public." (Laurel Heights, supra, 47 Cal.3d at 405 [emphasis added].) Accordingly, a lead agency is prohibited from releasing a defective draft EIR with the expectation that deficiencies will be corrected during the public comment period. (Guidelines, § 15020.)

The proposition that cumulative impacts or significant effects can be discussed for the first time in a final EIR leads to an untenable conclusion: a draft EIR would never have to be prepared. An agency could notify the public of a proposed project, solicit comments about the project’s effects, issue its response to comments, and approve the project. But such a procedure would preclude informed public participation and decisionmaking, thereby thwarting the statutory goals of the EIR process. (San Joaquin Raptor, supra, 27 Cal.App.4th at 723.)

In a variety of CEQA cases, several involving these Respondents, the courts have rejected the argument that information found in a document that was not circulated for public review, such as a response to comments, can substitute for information required in a draft EIR. In Mountain Lion Coalition v. California Fish and Game Commission (1980) 214 Cal.App.3d 1043, the court condemned the agency practice of insulating environmental analysis from public review. There, the Fish and Game Commission circulated a draft environmental impact document ("EID") regarding proposed regulations for the hunting of mountain lions in California. Public comments were taken, and a final EID containing a more complete cumulative impacts analysis, which was not circulated for further public review, was issued. (Id. at pp. 1048-1049.) The trial court found that the draft EID’s four-page analysis of cumulative impacts was inadequate and granted a peremptory writ of mandate against the agency. (Id. at p. 1049.) On appeal, Fish and Game argued that the final EID cured the inadequacies of the draft document. The court of appeal rejected this argument since the cumulative impact analysis in the final EID had "never been subjected to public review and criticism." (Id. at p. 1052.) As the court stated:

If we were to allow the deficient analysis in the draft EID to be bolstered by a document that was never circulated for public comment...we would be subverting the important public purposes of CEQA....To evaluate the draft EID in conjunction with the final EID...would only countenance the practice of releasing a report for public consumption that hedges on important environmental issues while deferring a more detailed analysis to the final EID that is insulated from public review. (Ibid.)

CDF committed the identical error in Friends of the Old Trees, supra, 52 Cal.App.4th 1383. There CDF argued that cumulative impacts on water supply were addressed at length in its official response to public comment, even though they had not been addressed adequately in the THP available for public review. Citing Mountain Lion, supra, the court of appeal rejected this argument: "Certainly, the Department cannot expect the public’s access to information after–the–fact to substitute for the opportunity to influence the Department’s decisions before they are made." (Id. at p. 1402.)

In Citizens to Preserve the Ojai, supra, 176 Cal.App.3d at 430, the county used the response to comments to explain why it had failed to adequately consider cumulative impacts in the draft EIR: current scientific models were not capable of quantifying certain impacts. The court rejected this approach, concluding that the "information [in the response to comments] does not cure the EIR’s disclosure deficiencies in its cumulative air quality impact discussion." (Id. at p. 430.) The court further held that the draft EIR was required to set forth and explain the basis for any conclusion that analysis of cumulative impacts was not feasible or unduly speculative. (Ibid; see also Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397,, 410-411 [inadequate discussion of cumulative impacts in draft EIR not saved by response to public comments].)

More recently, the Supreme Court considered the Board of Forestry’s failure to require that information relating to potential significant effects be made part of a timber harvest plan. (Sierra Club v. Board of Forestry (1994) 7 Cal.4th 1215, 1228-1230, 1235-1237.) The Court ruled that the Board’s failure to include such information constituted a prejudicial abuse of discretion in part because the absence of information prevented the public from commenting on the plan. (Id. at pp. 1236-1237.)

These authorities compel rejection of any argument that the final EIR, its Response to Comments, or Appendix 13 satisfied CEQA’s cumulative impacts analysis requirement.

G. Given CDF’s History, The Draft EIR’s Failure to Consider Cumulative Impacts Is a Particularly Serious Abuse of Discretion

It is now well accepted by the regulatory and scientific communities that CDF has failed to evaluate cumulative impacts on a THP–by–THP basis, leading to well-documented environmental harm. (AR 7480-8039.) The requirement of a management plan for JDSF provided Respondents a rare opportunity to consider cumulative impacts over an entire landscape. Their failure to consider them in the draft EIR is particularly prejudicial in light of CDF’s historic failure to evaluate them in THPs.

Since 1990, there have been a series of scientific studies and agency reports, many commissioned by CDF, which have uniformly concluded that CDF has failed and continues to fail to adequately evaluate logging–related cumulative impacts. (AR 7480-8039.) These reports have also found—CDF’s approval of thousands of THPs to the contrary—that logging–related cumulative impacts have resulted in considerable environmental damage. The reports and studies are part of the present record. (AR 7480-8039.) They cannot begin to be adequately described or summarized here. We provide a mere snapshot of their conclusions.

  • While the lack of credible cumulative impact requirements and the abundance of litigation indicate the Timber Harvest Plan process is not working well, there is also other compelling evidence that the environment is not well served. (AR 7557.)

Timber harvest plans cannot be fully effective in minimizing damage to the environment unless they address cumulative impacts across a broad area. Assessing those impacts on a plan–by–plan basis is inefficient, costly and open to questions about credibility. (AR 7560.)

(AR 7484-7582, Little Hoover Commission, Timber Harvest Plans: A Flawed Effort to Balance Economic and Environmental Needs (June 1994).)

  • In our judgment, the implied position that the Department has assumed with respect to cumulative impacts lacks credibility and represents a significant weakness in the overall administration of the forest practices program....[¶] Our conclusion is that the present situation results from the inadequate cumulative impact analysis methodology that is currently in place. (AR 7590.)

(AR 7584-7597, LSA Associates, Conclusions and Recommendations for Strengthening the Review and Evaluation of Timber Harvest Plans (March 1990), commissioned by CDF.)

  • 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. (AR 7604.)

(AR 7599-7610, National Marine Fisheries Service, Final Rule: Threatened Status for Central California Coast Coho Salmon (Oct. 1996).)

  • In 1994, the Little Hoover Commission found that the Timber Harvest Plan (THP) ‘process looks at potential damage on a site-by-site basis rather than across entire ecosystems, making it difficult to assess cumulative impacts over time and throughout watersheds.’ EPA concurs that improved methods for assessing cumulative effects on a watershed basis are necessary. (AR 7629)

(AR 7628-7629, U.S. Environmental Protection Agency, May 11, 1997, letter to California Board of Forestry.)

  • The existing CWE [cumulative watershed effects] analysis does not provide either the information needed to recognize approaching CWE thresholds, or to identify those practices which have resulted in adverse CWE. (AR 7661.)

(AR 7658-7661, California Regional Water Quality Control Board, Cumulative Watershed Effects Assessment on North Coast Timberlands (Nov. 1998).)

  • Recent studies demonstrate that current Forest Practice rules are not adequate to prevent forestry-related changes to the production and transport of sediment, water, and woody debris in watersheds. Changes in these ‘watershed’ products are the most common causes for downstream cumulative impacts. (AR 7668.)
  • There once again is widespread recognition that the state’s strategy for management of forest-related cumulative watershed impacts needs to be modified. Three committees established under the auspices of either the CDF or the Board of Forestry are currently compiling reports dealing with aspects of the problem. It remains to be seen whether these reports will be forgotten as quickly as those prepared by LSA and the Little Hoover Commission, or whether effective changes will be made. (AR 7677.)

(AR 7667-7678, Dr. Leslie Reid, USDA Forest Service, Report to Assemblymen Fred Keeley: Forest Practice Rules and cumulative watershed impacts in California (May 1999.)

  • The SRP found that the cumulative effects assessment as currently required under the FPRs does not provide insightful information about which watershed activities may be preventing the recovery of salmonid populations, nor does it provide a decision-making process for addressing such activities on a watershed scale. The SRP believes that this is the primary obstacle to protecting anadromous salmonids under the current system regulating forest practices. (AR 7706.)

(AR 7683-7785, Scientific Review Panel, Report of the Scientific Review Panel on California Forest Practice Rules and Salmonid Habitat (June 1999), prepared for California Resources Agency and National Marine Fisheries Service.)

  • Neither CDF nor other state agencies have completed consistent or systematic watershed assessments that can provide information to project submitters to guide cumulative impacts analysis. (AR 7859.)

(AR 7858-7887, A Report of CDF Director’s THP Task Force: Cumulative Impacts Analysis (July 1999).)

  • Specific problems with the FPRs include...inadequate and ineffective cumulative effects analysis. (AR 7903.)

(AR 7892-7911, National Marine Fisheries Service, Final Rule: Threatened Status for One Steelhead Evolutionary Significant Unit (Oct. 1996).)

  • Our experience, then, is that consultants and industry employees with inadequate training are collecting and reporting data via the THP process, which is being reviewed by State employees also lacking appropriate expertise. Making matters more difficult, the RPFs we met in the field consistently held the false impression that they had addressed CWE [cumulative watershed effect] issues by proposing Best Management Practices that would mitigate them out of existence, and that they were committed to never admitting to a CWE on a THP because of the difficulties such an admission created. (AR 7977.)

(AR 7913-8021, The University of California Committee on Cumulative Watershed Effects, A Scientific Basis for the Prediction of Cumulative Watershed Effects (June 2001), prepared for CDF.)

CDF’s failure to consider cumulative impacts at the management plan level is especially serious, since it is uncontroverted that CDF fails to adequately consider them at the THP level. An inadequate cumulative impact analysis is a prejudicial abuse of discretion that frustrates two of CEQA’s most basic purposes: informed decisionmaking, and meaningful public participation. (EPIC, supra, 170 Cal.App.3d at pp. 624-625; Laurel Heights, supra, 47 Cal.3d at pp. 404, 406.) "[I]t is vitally important that an EIR avoid minimizing the cumulative impacts. Rather it must reflect a conscientious effort to provide public agencies and the general public with adequate and relevant detailed information about them." (Citizens to Preserve the Ojai, supra, 176 Cal.App.3d at 431.)

The goals of informed decision making and meaningful public participation were completely frustrated here. In the absence of a cumulative impacts analysis, Respondents lacked the information necessary for an informed decision, and the public lacked the information necessary for meaningful comment and criticism.

Because of these errors, Petitioners respectfully request the Court to issue a writ of mandate setting aside the EIR and management plan and prohibiting logging pending preparation of an EIR that satisfies CEQA.



No EIR passes muster without an accurate description of the project. And no aspect of the JDSF management plan requires an accurate description more than the estimated size of forest inventory. If inventory levels are not accurately described, harvest levels are unreliable and over–harvesting may result, defeating a central purpose of the plan. Respondents’ estimate of inventory is contradictory and inherently unreliable. This leads to several errors under CEQA: the description is inadequate, it is not supported by substantial evidence, and the response to public comment about the problem fails.

A. Factual Background

State law (§ 4561; AR 9033), Board of Forestry policy (AR 9049) and the management plan (AR 8914) all mandate that JDSF be managed for sustained yield, which can only occur if harvest is equal to or less than timber growth. Thus, a lower estimated annual growth leads to a lower average allowable annual harvest. The management plan relates the allowable annual harvest to its estimate of annual timber growth. (AR 8957-8958.)

During comment on the EIR, questions were raised about the accuracy of current inventory estimates. (AR 1145-1162, 7181-7187; see also 7082-7199.) The estimates of total forest inventory in 1989-90 exceed the 1984 estimate by 38 to 46 percent. (AR 7178, 7147.) The estimates of timber growth also increased correspondingly. (AR 7162.) These increases are in striking contrast to the constant to declining inventories measured between 1959 and 1984. (AR 7178, 7147.) The 1990 estimate is based on a new system, called the IFI system, that replaced the older CFI system. (AR 7147.)

The previous CFI inventory system found that inventories declined over 25 years beginning in 1959. (AR 7178, 7147.) During this time, forest policy was to cut all estimated growth of timber. (AR 1146, 1180.) Although one would expect the inventory to have remained constant, the estimated inventory declined by an average of 4 million board feet per year during the last 20 years of the period. (AR 1146.) The harvest above estimated growth, therefore, amounted to about 10 percent of the estimated 30-35 million board feet per year growth during this period. (AR 1161)

In light of the steady decline in estimated inventories over twenty years, the approximately 40 percent increase in the estimated forest inventory between 1984 and 1990 demands a clear explanation. CDF does not contend that inventory grew substantially between 1984 and 1990. It contends that the difference in the 1984 and 1990 estimates are due to a combination of (1) the use of new, more accurate diameter-volume relations for the 1990 inventory (AR 1179, 7164-7170), and (2) possible sampling errors in the two different inventory systems (AR 1180-81, 7147-7149).

The CFI and IFI systems used different diameter-volume relations. The CFI relations were based on a sample of trees cut and measured in the 1950s. The IFI diameter-volume relations were based on a sample of trees cut and measured in the 1980s. (AR 7149.) The IFI relations estimate a greater volume than the CFI relations for a given diameter, indicating that in the later period trees of a given diameter were taller and/or tapered more slowly. (AR 7149.)

Respondents maintain that the new IFI volume equations yield about a 14% greater inventory than the old CFI ones: "When this difference in height is converted to difference in volume, the difference is 14% as demonstrated in the CDF document provided with the comment." (AR 1181.) Therefore the new diameter-volume relations explain only about14 percentage points of the 38–plus percent difference between the 1984 and 1990 estimates.

CDF relies on possible sampling error to explain the remaining (24-32 percentage points) difference between the 1984 and 1990 inventory estimates. Estimates based on samples will generally differ from the true value, because the samples are less than the whole. (AR 7175.) CDF seizes on the concepts of sampling errors and confidence levels to argue that the unexplained difference of 26 percent is within normally accepted statistical probabilities. (AR 1181, AR 7147-7149)

The statistical "logic" used by CDF is fundamentally wrong, but there is no need for a statistical argument, because the IFI sample plots included all of the CFI sample plots. Therefore one can determine sample differences by comparing the inventory estimates calculated for the CFI plots and for the IFI plots using the same diameter-volume relations. The difference, if any, in the inventory estimates for the CFI and IFI plots will provide a measure of the effect of differences in the CFI and IFI samples.

At the request of a member of the public, CDF performed the suggested calculations, and found the estimated inventory for JDSF based on the CFI subset of plots was nearly identical to that estimated using all of the IFI plots. (AR 7175, 7180.) This result means the CFI and IFI samples were equally representative of the true forest inventory. Differences in the CFI and IFI samples, i.e., sampling error, provide no explanation for the difference in the inventory estimates produced by these two systems. Therefore, CDF has provided a supportable explanation for only 14 percentage points of the 38-46 percent difference between the 1984 CFI inventory estimate and the 1990 IFI estimate.

Though it defends the discrepancy in the final EIR (AR 1180-1181.), in the past, CDF has questioned the reliability of even the 14% increase in inventory, let alone a 38-46 percent increase:

There is still some question about the reliability of our volume equations. When we abandoned the equations used in the old CFI in favor of those used in the new system we estimated a difference of 10-20% (the new ones estimating higher volumes). This seemed OK at….Then we started experiencing under-runs and incorporated form ratio into the volume equations to try to fix it. This mitigated the under-runs, but in the process we found that the equations with form ratio estimated volume at about 10% less that the equations without. (AR 1153)


B. The EIR Fails to Adequately Describe the Project

The project description must be accurate and consistent throughout the EIR. "An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." (San Joaquin, supra, 27 Cal.App.4th at p. 730.) Without it the EIR fails as an informational document. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192-193.) A "distorted" project description constitutes a prejudicial abuse of discretion. (San Joaquin, supra, 27 Cal.App.4th at p. 730.)

Respondents’ violated CEQA in failing to adequately describe JDSF’s forest inventory. The final EIR offers two substantially different estimates of inventory and provides a valid explanation for only a small part of the discrepancy. This is not what CEQA means by "An accurate, stable and finite project description." Further, this is not a matter that can be swept aside by calling it a disagreement between experts. In fact, Respondents do not endorse one measurement over the other. There are no warring experts; there is instead an evidentiary gap that fails to reconcile two competing descriptions of the forest. In this sense, the description is not based on substantial evidence, a prejudicial abuse of discretion. (E.g., Laurel Heights, supra, 47 Cal.3d at p. 392.)

Members of the public asked Respondents to clarify the matter. Since Respondents failed, it follows that the response to comments is inadequate, yet another prejudicial abuse of discretion. (AR 1145-1146); Gallegos v. State Bd. of Forestry (1978) 76 Cal. App. 3d 945, 952-955.)

Dated: May __, 2003


Attorney for Petitioners