PAUL V. CARROLL/121369
Attorney for Petitioners
CAMPAIGN TO RESTORE JACKSON STATE REDWOOD FOREST,
DHARMA CLOUD FOUNDATION, and FORESTS FOREVER FOUNDATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
TABLE OF CONTENTS
I. THE COURT’S DENIAL OF THE TEMPORARY RESTRAINING ORDER
II. PETITIONERS’ REQUEST FOR INJUNCTIVE RELIEF IS PROPER*
III. PETITIONERS ARE NOT ESTOPPED BY THE SETTLEMENT
A. Factual Background
B. The Scope of Respondents’ Estoppel Argument*
C. Paragraph 4 Is Clear on Its Face*
IV. PETITIONERS ARE NOT BARRED BY LACHES *
V. RESPONDENTS VIRTUALLY CONCEDE THAT CUMULATIVE
IMPACTS WERE NOT CONSIDERED*
VI. HARM TO CDF*
VII. HARM TO THIRD PARTIES*
VIII. AN INJUNCTION BOND IS NOT WARRANTED IN THIS CASE*
Given the need to serve and file the present reply brief, Petitioners only briefly respond to several aspects of the Court’s order denying the TRO. The Court reasons that even if the new management plan is set aside, logging could proceed under the previously approved 1983 Management Plan. Respectfully, this is not true. Under the settlement agreement signed by the Court in Campaign to Restore Jackson State Redwood Forest v. CDF (Campaign I) (Super. Ct. Mendocino County, 2002, No. 0083611) no logging whatsoever under the 1983 Management Plan is allowed:
CDF agrees not to approve any timber harvest plans pursuant to Public Resources Code section 4581 in JDSF until the Director of CDF ("Director") has developed a new management plan, an environmental impact report (EIR) for the new management plan has been certified, and the Board has approved a new management plan. CDF further agrees that any timber harvest plans in JDSF shall be consistent with a new management plan.
(Settlement agreement, ¶ 1.) The proscription applies also to THPs 483 and 484. They may not proceed under the 1983 Management Plan. (Settlement agreement, ¶ 2.)
Therefore, if the approval of the new management plan is set aside, there will not be a management plan in place for JDSF. Yet statute and regulation mandate that all logging shall follow an approved management plan. (Pub. Res. Code, § 4645.) "The harvesting of forest products from state forests and management of state forests shall follow management plans developed for each forest by the Director, and approved by the Board." (Cal. Code Regs., tit. 14, § 1510, italics added.) If logging is allowed to proceed even though approval of the new management plan is set aside or is likely to be set aside, these laws will be violated.
The Court states: "Petitioners have failed to allege that the contract letting and falling operations are not consistent with either the old or the new plans." (Order re TRO, p. 2.) The old plan, as explained above, is a nullity. Petitioners have alleged that by law all timber operations in JDSF are required to follow a management plan. They have alleged that the new management plan must be set aside. Accordingly, they have alleged that logging must be stopped. This is because logging operations cannot be consistent with a management plan that is legally invalid and set aside. If the management plan is invalidated, logging operations are by definition not consistent with it.
The Court states that the logging of trees does not necessarily constitute irreparable injury, since the two THPs were approved under the Forest Practices Act. This reasoning contradicts the Court’s injunction in the previous case. (Order re TRO, pp. 2-3.) There, the Court found logging constituted an irreparable injury even though the THPs were approved under the Forest Practices Act:
The fact that the approved plans may comply with the FPA and FPR does not excuse the required additional compliance with the approved management plan for Jackson State Demonstration Forest. The requirement that the harvest plans and operations ‘follow’ the approved forest management plans is similar to the requirement that individual land use approvals be consistent with adopted general plans. [¶]...[¶] On the other hand, the harm resulting from the harvesting operations could be substantial and, possibly, irreparable. In addition to the cutting and removal of timber that will take over 100 years to replace, harvest operations will certainly result in the construction of roads and layouts, the intrusion into wildlife habitat and the inevitable displacement of wildlife. If the harvesting operations are not conducted in accordance with a current, approved management plan there can be no assurance that these consequences have been properly assessed and evaluated as part of a comprehensive plan for the management of the Forest as a productive entity. Once these activities have occurred, it is unlikely that the harvest areas could be returned to pre-entry conditions.
(Preliminary injunction, Case No. 0083611, italics in original.) The same reasoning applies here. The new management plan will have to be set aside. In its absence, logging will cause irreparable harm.
Finally, the Court suggests that Petitioners should have brought the motion much earlier. But Petitioners did precisely what they did before. Then, the Court approved the timing of the motion and granted it. Then, Respondents argued that Petitioners were too early. Now Respondents say Petitioners are too late. Petitioners should not be faulted for consistency. This lawsuit was filed in September 2002 with a request for injunctive relief. All third parties were on notice and any harm is a harm they knowingly courted.
Respondents argue that Petitioners’ challenge to the management plan does not allow them to enjoin logging under it. First, Respondents ignore the law governing state forests. By law, all timber operations in JDSF must take place in accordance with a management plan approved by the Board. (Pub. Res. Code, § 4645.) By regulation: "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.) Petitioners contend that the management plan is invalid and will have to be set aside. If Petitioners are correct, timber operations may not proceed. If they did, they would run afoul of the proscription that they follow a lawfully approved management plan.
Petitioners contend that the management plan must be set aside because Respondents violated CEQA in approving it and in certifying its EIR. A prejudicial abuse of discretion under CEQA requires that a project or plan be set aside. (E.g., Friends of Friends of the Eel River v. Sonoma County Water Agency (2003) _ Cal.App.4th_, [2003 WL 21120693]; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1113; San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 742-743; §§ 21002; 21167; 21168.9.)
Respondents complain that Petitioners have not attacked the plan per se, but only its environmental review. This is a distinction without a difference. Environmental review of a project under CEQA is as much a part of the project as anything else. The Legislature has mandated that agencies give "major consideration to preventing environmental damage" in approving projects. (§ 21000, subd. (g).) Indeed, a project cannot be approved unless it complies with CEQA. (§§ 21002; 21167; 21168.9.)
Respondents also argue that if the court sets aside the newly approved management plan, logging operations could proceed under the previous 1983 Management Plan. Petitioners are at loss to fathom this argument. Under the settlement agreement in the previous case, Campaign I, Respondents are prohibited from conducting any logging operations whatsoever under the 1983 Management Plan. (Settlement Agreement, p. 2, ¶ 2.) That agreement remains in full force and effect.
Respondents’ argument that Petitioners cannot enjoin THPs 483 and 484 because they have not directly challenged them shows a misunderstanding about the nature of injunctive relief. An injunction is not a cause of action, but an equitable remedy. One therefore need not have brought a cause of action against the thing one seeks to prevent.
Respondents argue that the settlement agreement estops Petitioners from enjoining THPs 483 and 484. Some background is in order.
Settlement negotiations in the previous case commenced in late August 2001, shortly after the settlement conference held with the Court. By November 29, 2001, no settlement had been reached, so the Court issued an order directing Petitioners’ counsel to file a status report by December 21, 2001. (Exh. A.) The status report described the issue that the parties, at least Petitioners, were grappling with:
The parties agree that Petitioners’ right to directly challenge THPs 483 and 484 is limited to whether those plans are consistent with the new management plan. But the parties disagree over the scope of injunctive relief if the new management plan itself is determined to be invalid. Petitioners will not enter into a settlement agreement unless they have the right to request a court to halt all logging if the new management plan is found legally invalid. Respondents contend that Petitioners should be entitled to halt logging with the exception of logging under THPs 483 and 484.
Although the parties may be able to resolve this issue, as they have resolved others, they have not resolved it to date. For Petitioners, the issue is non-negotiable. They will not sign an agreement that would allow CDF to take the position that even though the new management plan may be gravely flawed, logging can go forward under THPs 483 and 484, because those plans are "consistent" with it.
(Exh. B, p. 1.)
On January 2, 2003, counsel for Respondents wrote counsel for Petitioners, explaining that the latter’s reading of the settlement agreement was wrong, that in fact, it allowed Petitioners to seek an injunction against all logging if the management plan was set aside, including THPs 483 and 484:
This responds to your status report filed at the request of the Court. I draw your attention to an apparent misunderstanding or misstatement on page 2 of your report, lines 12-19. I am unclear as to what language in the draft you believe prevents you from seeking a "halt to all logging" if the new management plan is found "legally invalid". We have no problem with you seeking any kind of injunctive order you wish. The problem is that we do not wish to pre-agree that logging will not take place until the plan is found "legally valid". In other words, we should agree to neutral language which preserves your right to seek injunctive relief, but does not predetermine the outcome of that relief.
(Exh. C, p.1, underscore in original.) Further on in the letter, Respondents again sought to assuage Petitioners’ concerns:
You’d have two rights, which for the life of me, should satisfy any reasonable person. You have the right to contest the two THP’s on the grounds that they are not consistent with the management plan. You also have the right to contest the management plan on any grounds which you believe appropriate. Concomitant with those rights is the right of injunctive and declaratory relief as adjunct rights to the mandate. If you believe the management plan is invalid, and that invalidity prohibits logging activity, nothing in the proposed language which we would accept limits your right to bring such action. It is not necessary to recite a lengthy and convoluted list of rights, given this correspondence and these admissions.
(Exh. C, p.2, underscore in original.)
Counsel for Petitioners wrote back on January 23, 2002, reciting the mutual understanding of the parties but seeking different language in the settlement agreement:
We agreed that a direct challenge to THPs 483 and 484 is limited to their consistency with the new management plan. The purpose of this agreement was to prevent petitioners from raising new issues with respect to THPs 483 and 484 that they did not raise when they originally challenged them, such as cumulative impacts, northern spotted owl protections, etc. This restriction to the issue of consistency essentially reflects this waiver.
But as you admit in your letter of January 2, 2002, we never agreed to such a restriction with respect to a challenge to the new management plan. In fact, you agree that Petitioners would have the right in challenging the new management plan to seek injunctive relief against all logging, including THPs 483 and 484, on any ground.
(Exh. D, p. 2.)
Respondents’ counsel wrote the following day, January 24, 2003, expressing his frustration with Petitioners’ counsel’s fastidiousness about language. (Exh. E, p. 1.) On the same day, Petitioners’ counsel called Respondents’ counsel, believing that more direct communication might resolve concern with language in the settlement agreement. That conversation proved fruitful. Among other things, counsel for Respondents told counsel for Petitioners that he could not bring additional language changes to the Board and CDF for approval because the process was too onerous and time-consuming. (Second Carroll dec., ¶ 16.) Petitioners memorialized the conversation in a January 25, 2002, letter to Respondents:
Let me begin by setting forth what I think we agreed about.
First, we agreed that if petitioners directly challenged THPs 483 or 484, they would be restricted to arguing that the THPs are invalid because they do not comply or are inconsistent with the new management plan.
Second, we agreed that if petitioners challenged the new management plan as invalid, they would have the right to seek an injunction against any and all logging on any ground, including logging under THPs 483 and 484. In other words, their right to seek an injunction against logging, including logging pursuant to THPs 483 and 484, would not be restricted to whether THPs 483 and 484 were consistent with the new management plan. For example, if petitioners challenged the new management plan on the ground that its cumulative impacts analysis was invalid, they would have the right to seek an injunction against logging, including THPs 483 and 484, regardless whether THPs 483 and 484 were consistent with the new management plan. CDF, of course, could argue that the alleged invalidity of the new management plan does not warrant an injunction against logging, including logging against THPs 483 and 484.
(Exh. F, pp. 1-2.) The letter further noted that Respondents did not share Petitioners’ concern with the settlement agreement, and would write a letter allaying those concerns that would "estop" CDF from interpreting paragraph 4 of the settlement agreement in a more restrictive manner:
You have agreed to draft a letter stating that your intention is not to interpret paragraph 4 so restrictively, and that if petitioners challenged the new management plan itself, they would be free to seek injunctive relief against THPs 483 and 484 on any ground. You have stated that such a letter would estop your client from relying on another interpretation of paragraph 4.
(Exh. F, p. 1.)
With this background in mind, we now turn to Respondents’ letter of the same day, January 25, 2002, responding to Petitioners’ letter. This is the document on which Respondents base their estoppel argument:
Thank you for your letter of January 25th. Let me confirm what I advised you yesterday. As I interpret the agreement, and unlike the situation you described in which a jurisdictional issue was in question, this interpretation of the language in paragraph 4 should control, you are not in any way restrained from challenging the new management plan on any grounds whatsoever, as long as the challenge stems from the management plan. You are not restrained from challenging any THP and seeking injunctive relief as long as the challenge stems from the provisions of the management plan. Other than THP’s 483-484, you are not restrained from challenging any purported violation of the Forest Practices Act or regulations or CEQA from the provisions of any future THP.
(Exh. G, p. 1, underscore in original.) Several sentences later, Respondents added a clarifying sentence, which they now claim is the basis of estoppel: "On the other hand if you claim that logging activities under THP 483 and 484 cannot go forward because of a flaw within the management plan, you have every right to do so." (Ibid., emphasis added.) Respondents went on in the same letter to criticize Petitioners’ counsel for creating problems where none existed:
This has been a non issue (sic) since it was first raised. While I applaud your interest in seeking clarification, that clarification is (sic) now been given many times over. If you would submit final language in accordance with our understanding, we can execute that language and you will then dismiss the second action brought against the Board as you discussed doing in our recent conversation.
(Exh. G, p. 2.)
Respondents’ criticism of Petitioners’ counsel for spending time on these and other settlement points came to a head in Respondents’ memorandum in opposition to Petitioners’ motion for attorney fees:
In his declaration in opposition to the motion for attorney fees, Charles Getz attached a number of the letters described above, including those of January 24, 2002, and January 25, 2002 (Exh. I, ¶¶ 14-15.):
Mr. Getz’s criticism resulted in a material misrepresentation under penalty of perjury: "Nevertheless, petitioners (sic) counsel has claimed hundreds of hours for the ‘process’ of negotiating the final language." (Exh. I, p. 5, ¶ 16.) In fact, Petitioners’ counsel claimed 54.7 hours for drafting, negotiating, and finalizing the settlement. The Court may remember that at the hearing on Petitioners’ motion for attorney fees, Mr. Getz admitted his misrepresentation, and sought to excuse it by saying that it "felt like" settlement took "hundreds of hours." (Second Carroll Dec, ¶ 15.)
It against this background that Respondents’ estoppel claim should be evaluated.
Is difficult at the outset to determine the scope of Respondents’ estoppel argument. At the temporary restraining order hearing on May 15, 2003, Respondents argued that Petitioners were completely stopped from enjoining THPs 483 and 484 unless they challenged them directly as inconsistent with the management plan. But Respondents’ memorandum in opposition to interim relief and Mr. Getz’s declaration in support thereof present a far narrower theory, though it too is difficult to follow.
Respondents’ memorandum is contradictory. First, they say Petitioners are barred from seeking an injunction against THPs 483 and 484 based on an attack on the management plan. (Respondents’ opposition memorandum, p. 12.) But then they say, "While Respondents recognize Petitioners’ right to seek injunction on any ground, Respondents did not admit to the propriety of that attempt and further warned Petitioners that they needed to tie any attempt to enjoin timber plan activity under THPs 483 and 484 to an alleged deficiency in the management plan itself." (Respondents’ opp. memorandum, p. 13.) Here the cracks begin to show in Respondents’ estoppel argument. They cannot escape their self–proclaimed "admissions" (Exh. C, p. 2) and previous assurances to Petitioners concerning paragraph 4. They admit that they recognized Petitioners’ right "to seek injunction on any ground" based on a challenge to the management plan, precisely what Petitioners are doing here. Although they claim that they never admitted the "propriety" of such an attempt, this is too clever by half, because they admit that the language of the settlement agreement permits such injunctive relief. If it is permitted under the settlement agreement, Petitioners cannot be estopped by the settlement agreement.
In the second part of Respondents’ admission—"and further warned Petitioners that they needed to tie any attempt to enjoin timber plan activity under THPs 483 and 484 to an alleged deficiency in the management plan itself"— they come up with their narrow theory of estoppel. (Respondents’ opposition memorandum, p. 13, emphasis added.) Their estoppel theory is that Petitioners may enjoin THPs 483 and 484 based on a challenge to the management plan, but only if the challenge is to a internal defect within the management plan itself, not if the challenge is to the management plan’s EIR, even though the latter challenge would result in the management plan itself being set aside. (Respondents’ opposition memorandum, p. 13.)
Respondents’ theory appears to be based on a single word in a single sentence in a single letter, namely Respondents’ January 25, 2002, letter discussed above, the same letter in which Respondents said that Petitioners’ concern was "a non issue (sic) since it was first raised." (Exh. G, p. 2.) That sentence is: "On the other hand if you claim that logging activities under THP 483 and 484 cannot go forward because of a flaw within the management plan, you have every right to do so." (Exh. G, p. 1, emphasis added.)
Respondents’ estoppel argument is contradicted by the settlement agreement itself, by their correspondence, and by common sense. First, paragraph 4 of the settlement agreement permits injunctive relief against logging activity as a result of a challenge to the Management Plan and/or its EIR: "Petitioners are not in any way restrained by this Agreement from challenging the Board’s and/or CDF’s approval of a new management plan for JDSF, and/or the certification of an EIR for the new management plan. Such a challenge would include the right to request a court to enjoin timber harvest operations in JDSF…." Respondents’ new gloss on paragraph 4 runs afoul of its plain language.
Second, Respondents, as is so often the case, are done in by their previous statements in correspondence and pleadings. It must be remembered that Petitioners’ concern with the language of the settlement agreement was, according to Respondents, a "non-issue" from the very beginning, indeed, it was "monumental pickiness," a "sorry exercise" "supercilious," "counterproductive," and "paranoid." (Now of course Respondents characterize this as a serious process "not lightly entered into." (Respondents’ opposition memorandum, p. 12.)) In none of the correspondence, did the parties discuss any distinction between a challenge to the management plan per se versus a challenge to its EIR. To the contrary, Respondents repeatedly told Petitioners they had the right to challenge the management plan "on any grounds." They also referred to its "legal invalidity," without suggesting that injunctive relief as a remedy depended on whether the challenge was to an internal versus an external defect in the plan.
If, as Respondents contend, the meaning of paragraph 4 was clear and unchanged from the beginning, and set forth in several letters to Petitioners, they cannot now foist a novel and contradictory interpretation on the Court. It is even worth going back to Respondents’ letter to the Court of August 24, 2001, spelling out their understanding of the proposed settlement agreement. (Exh. J.) This was their first letter about the meaning of the settlement agreement, and they later complained that the final settlement agreement was not much different from it, despite Petitioners’ "monumental pickiness." (Exh. I, p. 5, ¶ 16.) That letter stated, "The new management plan would be subject to any CEQA challenge otherwise available by law. Once the management plan is certified and final, i.e., either the statute of limitations that the (sic) CEQA has run and/or any CEQA challenges to the management plan had been resolved, the instant case will be dismissed in its entirety." (Exh. J, p. 2.) The letter discusses only CEQA–related challenges to the management plan; it says nothing about challenges to internal defects in the management plan itself.
If one wants to know why lawyers are held in disdain by the public, one would do well by examining Respondents’ position here.
Bad faith or not, Respondents’ argument is beside the point. Paragraph 4 allows Petitioners to challenge the management plan under CEQA and to enjoin logging under it. The first sentence makes clear that Petitioners have the right to challenge the management plan on any ground, including its EIR, and including under CEQA: "Petitioners are not in any way restrained by this Agreement from challenging the Board’s and/or CDF’s approval of a new management plan for JDSF, and/or the certification of an EIR for the new management plan." The first clause of the second sentence says that such challenge would allow for an injunction against logging in JDSF: "Such a challenge would include the right to request a court to enjoin timber harvest operations in JDSF,…." Notably, the clause refers to all timber harvest operations in JDSF; it is not restricted to timber harvest operations minus THPs 483 and 484. The final clause in the second sentence indicates that the right to injunctive relief from a challenge to the management plan would include THPs 483 and 484 because they would not be consistent with the management plan: "...including timber operations under THPs 483 and 484 for not being consistent with the new management plan." In other words, if the management plan is set aside, THPs 483 and 484 could be enjoined because they would not be consistent with it. A THP cannot logically be "consistent" with a management plan that is legally invalid and has been set aside.
This was Respondents’ own interpretation:
On the other hand, if you can make a case at (sic) all timber operations including THP’s 483-484, have a (sic) impact on the recreational element you attack, I assume the Court would consider that. There is nothing procedurally wrong in seeking that. I note however, that this would be another way of stating that THP’s 483-484 are therefore "inconsistent" with the management plan in that they would "impact" the recreational uses.
(Exh. E, p. 1.)
The only estoppel in this case should be against Respondents’ right to make the present argument. (Exh. F, p. 2 ["You have stated that such a letter would estop your client from relying on another interpretation of paragraph 4."].)
Respondents’ laches argument is wrong on the merits and desperate on the facts. It appears to be about a vacation that Petitioners’ counsel was not made aware of.
In the previous case, Petitioners warned CDF during the bidding process that they would have to move for injunctive relief if CDF did not stipulate to refrain from logging pending hearing on the merits. In its letter of March 29, 2001, CDF replied that a request for injunctive relief would be improper because imminent logging was not threatened. In fact, CDF argued that Petitioners should not move for injunctive relief until the bidding process was over:
Indeed, when Petitioners finally moved for injunctive relief, Respondents argued in their opposition brief that the application was premature, including an argument with the heading, "The TRO Should Be Denied As Premature." (Memorandum in Opposition to Application for Temporary Restraining Order and Motion for Preliminary Injunction, Case No. SKUK CVG 0083611).
Thus, in the previous case, injunctive relief was not proper until contracts were awarded and the trees about to fall. Now, it is not proper even weeks before contracts have been awarded. It is hard to take seriously an argument that is one hundred percent contradicted by one made before in virtually identical circumstances.
Respondents also try to suggest that Petitioners waited longer here than they did in the previous case. First, Respondents misrepresent the facts. They state that the contracts have been awarded. They have not. Bids have been opened, and high bidders identified. Contracts are undergoing review, but none have been finalized and awarded. In the previous case, Petitioners moved for a TRO several days before bids were opened, but the bidding process was well under way. The Court issued a TRO that allowed the process to continue on condition logging did not start. CDF elected to continue the process. Here, Petitioners brought their application shortly after the bids were opened, requesting the same type of TRO from the Court, that is, one that would allow the process to continue but with a restraint on logging. (In the case of Brandon Gulch, the high bidder dropped out, making the question of timing in comparison to the previous case academic.) Given the posture, a TRO here would be no more onerous to CDF than the TRO in the previous case. And it has the same affect as the previous TRO by alerting third parties that they do not have a right to log before contracts are awarded.
In April 2003, after Respondents refused to stipulate to a stay of logging, they urged Petitioners to bring this motion in April. But they did not tell Petitioners at that time that their counsel, Mr. Getz, would be on vacation in May. Had they, Petitioners’ counsel might have understood their urgency—an urgency diametrically opposed to their previous wait-and-see position—and been able to accommodate their request. As things turned out, Petitioners moved in a timely fashion in early May 2003, without knowing Mr. Getz would be on vacation.
The argument that the present motion should be denied for delay in light of the previous argument that the same motion should be denied for prematurity cannot be taken seriously.
Respondents continue to deny the applicability of cumulative impacts to the management plan: "In due course, Respondents will expand upon these points and illustrate to the Court’s reasonable satisfaction that while cumulative impacts were addressed within the EIR (although not in the manner in which these Petitioners believe is required), it is difficult to annunciate how one examines ‘cumulative impacts’ of a management plan." (Respondents’ opposition memorandum, p. 17, underscore in original.) Respondents’ contradictory statement shows their perplexity: on the one hand, they contend that the consideration of cumulative impacts in a management plan is "strange" and "difficult to annunciate," then contend, on the other, that it nonetheless was done, albeit "in a different manner than normally would occur." (Id. at pp. 16-17.)
Respondents have everything backwards. The present project is precisely the type of plan that program EIRs are designed to address. (Guidelines, § 15168, subd. (a)(2)-(4).) And program EIRs are intended to provide special scrutiny of cumulative impacts, because they provide a broad perspective on individual, future projects. (Guidelines, § 15168, subd. (b)(1)-(2).) This plan is illustrative. It identified 24 individual logging operations during the next five years within JDSF. (AR 8965.)
In Stanislaus Natural Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, the court described the concept of tiering found in program EIRs and other first-tier EIRs, providing a useful example:
Consider, for example, a series of five new downtown office building construction projects. Each might be expected to generate significant additional automobile traffic. Rather than present a new traffic impact analysis in each of five EIR’s, a "first tier" EIR might be used to analyze traffic impacts and other common environmental impacts expected to result from the five projects. The later EIR’s on the individual projects would then "refer to" the first-tier EIR for analysis of traffic impacts.
(Id. at p. 198.)
The same reasoning applies here. The JDSF management plan forecasts no less than 24 logging operations over the next five years. Yet they were not mentioned, let alone were their cumulative impacts identified and analyzed. (Guidelines, § 15130, subds. (b)(2), (3).)
CDF offers the declarations of Ross Johnson and Chris Rowney. Johnson’s declaration is misleading at worst, and difficult to follow at best. He says a reduction in JDSF revenues will impact the Forest Resources Improvement Fund (FRIF). FRIF funds are restricted by law to certain uses, namely (1) forest improvement projects, (2) urban forestry programs, (3) wood energy programs, (4) state forest administration, (5) forest pest research and management, (6) state nurseries program, and (7) cost associated with the administration of the Forest Practices Act. (§ 4799.13.) But Johnson goes on to say that a reduction in JDSF revenues has or will result in a reduction in firefighting positions and equipment. (Johnson Dec., ¶¶ 4-5, 7.) But FRIF funds may not be used for firefighting. A reduction in FRIF funds, therefore, cannot by law affect firefighting.
The only way to make sense of Johnson’s declaration is to infer that CDF has elected not to fill vacant firefighting positions to maintain FRIF positions. But this is quite different than implying, as Johnson does, that the Court’s injunction will increase fire hazards in California. In fact, CDF can obtain funds or a loan from a revolving state fund. In addition, in years past, when summer fires have been worse than expected, CDF has always obtained additional funds from the Legislature.
In short, it is inconceivable that a reduction in revenues to FRIF—revenues that are not authorized for firefighting—will reduce fire protection in California.
There are several problems with any claim of irreparable harm by third parties. First, any harm was knowingly courted. The land at issue has been encumbered by litigation since 2001. It was the subject of an injunction for almost two years. Petitioners filed the present lawsuit in September 2002, while the previous injunction was in effect, and long before the bidding process in this case commenced. In addition, the bidding notices informed all prospective bidders of the possibility of an injunction, providing that purchasers could terminate the contract within 90 days of contract approval if litigation prevented logging. (Exh. K, p. 4.)
Any bidder in this case took a fully informed business risk. Indeed, they may have wagered that a preliminary injunction would be denied, but they cannot be surprised if one is granted. No reasonable person could. In short, any harm claimed by bidders is harm they brought on themselves. To allow someone to court harm, then use that harm as a reason for an unlawful project to proceed is perverse and contrary to the equitable principles underlying injunctive relief.
There is another aspect of third-party claims of harm that—ironically—confirm those of Petitioners. Mendocino Forest Products (MFP) and its associated businesses own, according to their web–site (www.mrc.com/who.html), 232,000 acres of timberland in Mendocino County. Yet they claim financial hardship if the Brandon Gulch logging operation is restrained, because of lack of timber from other sources. (Higgenbottom Dec., ¶¶ 3, 5.)
This revelation confirms a number of Petitioners’ arguments. First, it confirms that the vast industrial timberland surrounding JDSF have been so over-logged that they are lacking in high-quality timber products. It confirms the observations of a number of experts that the lands surrounding JDSF are degraded and incapable of providing suitable aquatic and terrestrial habitat for a number of species. It confirms expert observations that JDSF has more mature trees and habitat capable of providing some refuge for declining species. And it confirms the prejudice arising from the EIR’s failure to describe the regional setting. Third-party declarants are, oddly enough, telling us more about the surrounding landscape than the EIR.
In addition, MFP’s claim of hardship is difficult to understand since it obtained the high bid on Brandon Gulch somewhat serendipitously. As Respondents explain in their opposition brief, MFP was not the high bidder. The high bidder withdrew several weeks after bids were opened. As a result, MFP unexpectedly won the bidder. But what if the high bidder had not withdrawn? Would MFP be suffering the same financial hardship it now blames on an injunction? Undoubtedly not.
Respondents’ request for an injunction bond should be denied for several reasons. As a matter of policy, substantial injunction bonds are rarely imposed in environmental cases, because they would defeat the purpose of environmental laws.
Here, an injunction bond makes little sense for another reason. JDSF is a publicly–owned forest. And CDF is a public agency entirely funded by public taxes. An injunction bond in this case would require the people of California to pay to protect what is theirs, JDSF or CDF, depending on how one looks at it. But the purpose of an injunction bond is to protect the enjoined party from damage resulting from an erroneous decision. Here, the thing sought to be protected, JDSF, belongs to the public, and the thing enjoined, CDF, and any damage to it also "belong" to the public. In such a case, an injunction bond hurts everyone and helps no one. If one were to poll Californians as to their preference: (1) log JDSF now and conduct proper environmental review later; or (2) conduct proper review now and log JDSF later, there is little doubt they would vote for the second course of action. An injunction bond would interfere with their preference that any inconvenience fall on a the public agency that failed to properly conduct environmental review.
In any event, injunction bonds are improper in environmental cases. The Legislature has directed the citizens of California to enforce its environmental laws. If such directive is to have any meaning at all, the bond requirement of Code of Civil Procedure section 529 must be waived in environmental litigation. The Legislature made clear that citizens, as well as public entities, should assist in enforcing its environmental laws: "Every citizen has a responsibility to contribute to the preservation and enhancement of the environment" (§ 21000, subd. (e)); and that "all action necessary to protect, rehabilitate, and enhance the environmental quality of California" must be taken. (§ 21001, subd. (a).) The Legislature also encouraged citizen enforcement of lawsuits in the public interest by enacting the private attorney general statute, Code of Civil Procedure section 1021.5.
Imposition of a substantial bond requirement would frustrate the very policy of citizen enforcement that the California Legislature and courts have sought to encourage. Faced with an analogous statutory scheme, the federal courts have had little trouble in harmonizing the federal mandatory injunction requirement with the federal policy favoring private enforcement of the National Environmental Policy Act. Rule 65(c) of the Federal Rules of Civil Procedure is no less mandatory than section 529: it requires the issuance of a bond when a preliminary injunction is granted. (Massachusetts Mutual v. Associated Dry Goods (N.D.Ind. 1992) 786 F.Supp. 1403, 1430-1431.)
Notwithstanding its literal language, the federal courts have recognized that strict application of Rule 65(c) would contravene NEPA’s policy encouraging private enforcement of its mandate to protect the environment. (E.g., Wisconsin Heritages, Inc. v. Harris (E.D.Wis. 1979) 476 F.Supp. 300, 302 [plaintiff—a non–profit group without a financial interest in the outcome of the suit—would be deterred from enforcing NEPA actions if forced to post thousands of dollars in security]; Friends Of The Earth v. Brinegar (9th Cir. 1975) 518 F.2d 322, 323; Natural Resources Defense Council, Inc. v. Morton (D.D.C.1971) 337 F.Supp. 167, 168-169 ["requirement of more than a nominal amount as security would ... stifle" NEPA].) The same reasoning applies here. A strict application of section 529 to CEQA litigation ould contravene the Legislature’s intent to promote such enforcement as a means to protect the environment. Environmental plaintiffs initiate litigation without any financial stake in the outcome of the case. Making them individually liable on a substantial bond for an injunction obtained on behalf of the public is unfair and senseless. It penalizes them for their commitment to the enforcement of the laws and to the public good.
And, as the declarations of Vincent Taylor and Paul Hughes demonstrate, Petitioners could not afford to post a substantial bond. A court may waive an injunction bond in the case of indigency. (Civ. Pro. Code, § 995.240; Conover v. Hall (1974) 11 Cal.3d 842, 852; People Ex Rel Van De Kamp v. Tahoe Regional Plan (9th Cir. 1985) 766 F.2d 1319, 1325 [no bond where plaintiff "a non-profit environmental group, indicates that it is unable to post a substantial bond"].) And a court retains the common law power to waive a bond in environmental cases. (Civ. Pro. Code, § 995.240 [Law Revision Commission Comment: "[Section 995.240] codifies the common law authority of the courts."].)
Dated: May __, 2003