Ebbetts Pass v. Cal. Dept. Forestry


43 Cal.4th 936 original opinion 44 Cal.4th 589a modification


Filed 5/22/08

IN THE SUPREME COURT OF CALIFORNIA

EBBETTS PASS FOREST WATCH et al., )

Plaintiffs
and
Appellants,
S143689
v.
) Ct.App.
5
F042896
CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PROTECTION,
Tuolumne
County
Defendant and Respondent;
Super. Ct. No. CV48910
SIERRA PACIFIC INDUSTRIES,
Real Party in Interest
and
Respondent. )

Real party in interest Sierra Pacific Industries (Sierra Pacific) submitted,
and defendant California Department of Forestry and Fire Protection (CDF)
approved, three timber harvest plans for the logging of trees on private land in the
Sierra Nevada mountains. Two conservation groups, Ebbetts Pass Forest Watch
and the Central Sierra Environmental Resource Center (plaintiffs), sought a writ of
mandate to overturn the approvals, contending, inter alia, that CDF had not
followed the law (i.e., the Z?berg-Nejedly Forest Practice Act, Pub. Resources
Code, ? 4511 et seq. (Forest Practice Act); its implementing regulations (Cal.
Code Regs., tit. 14, ? 896 et seq.) (Forest Practice Rules); and the California
Environmental Quality Act, Pub. Resources Code, ? 21000 et seq. (CEQA)) in
1



selecting geographic areas for assessing the cumulative impacts of logging on two
animal species (the California spotted owl and the Pacific fisher) and in analyzing
the effects of Sierra Pacific?s possible use of herbicides after logging. The Court
of Appeal, agreeing with these contentions, reversed the superior court?s denial of
the petition. On review of the Court of Appeal decision, we conclude CDF did not
err legally in the manner claimed.
FACTUAL AND PROCEDURAL BACKGROUND
In the three disputed timber harvest plans (hereafter referred to as plans or
THP?s), Sierra Pacific proposes to harvest timber on three areas of its land: Cedar
Flat, Curry, and Base Camp, all located in Tuolumne County. The Cedar Flat
THP proposes to harvest 534 acres of conifers, black oak, and shrub species. The
Curry and Base Camp THP?s cover 441 and 394 acres of timberland, respectively.
In harvesting the sites, Sierra Pacific proposes to predominantly use certain
types of ?even-aged? management, in which most or all of a stand?s trees are
logged at the same time. These include clear cutting, ?variable retention-group,?
and ?variable retention-dispersed? methods. The latter two methods involve
retaining a few trees (four to eight per acre) in each stand. The sites harvested by
these methods would then be prepared for replanting by a combination of
mechanical means and burning, and replanted with conifers. The replanting
process might include the use of herbicides. (Details on the plans? discussion of
herbicide use are included in the analysis of that issue, post.)
Analysis of the impacts on the California spotted owl and Pacific fisher is
contained primarily in the plans? discussion of cumulative impacts on biological
resources. For this discussion, as for the discussion of cumulative impacts on
other resources, the THP?s purport to employ geographic areas previously
designated as State Planning Watersheds. The planning watershed used for the
Cedar Flat THP is an area of 10,140 acres, that for the Curry THP is 7,688 acres,
2



and the Base Camp THP uses two planning watersheds of 7,212 acres and 18,618
acres in size. (Details on the plans? choice of cumulative-impacts assessment
areas for wildlife are included in the analysis of that issue, post.) With respect to
the California spotted owl, the THP?s conclude that Sierra Pacific?s past, current,
and planned future logging ?is unlikely to cause short or long-term significant
adverse effects on the habitat available? for the subspecies. Similarly, the THP?s
predict that Sierra Pacific?s planned logging practices will improve habitat for the
Pacific fisher and hence are unlikely to cause them significant adverse effects.1
After receiving and responding to public comments on the three THP?s,
CDF approved them in April 2002. Plaintiffs petitioned the superior court for a
writ of mandate, asking that CDF be ordered to withdraw its approvals. The
superior court denied the petition, finding that ?[CDF has] not acted in excess of
[its] jurisdiction in approving the subject timber harvest plans; and [?] [CDF?s]
approval of the subject timber harvest plans is supported by [its] findings and [its]
findings are supported by substantial evidence in light of the whole record.?
The Court of Appeal reversed. The court held, first, that the plans?
cumulative-impact analysis regarding the California spotted owl and Pacific fisher
failed to comply with a regulatory direction that ?[b]iological assessment areas
will vary with the species being evaluated and its habitat? (Cal. Code Regs., tit.
14, ? 952.9, Technical Rule Addendum No. 2, appen. factor C [biological
resources]) and that in approving the THP?s despite this defect, CDF prejudicially

1
The California spotted owl is a subspecies of Strix occidentalis. Unlike the
Northern and Mexican subspecies, it is not federally listed as threatened or
endangered. The Pacific fisher (Martes pennanti pacifica), a mammal related to
the marten, is also not listed as threatened or endangered, but state and federal
agencies have designated it a species of concern.
3



abused its discretion. Second, the Court of Appeal held that, contrary to
statements in the THP?s and by CDF, Sierra Pacific?s possible use of herbicides in
replanting the logged areas was ?reasonably foreseeable and thus part of the
activity constituting the project covered by each THP,? that CDF therefore was
obliged to assess the impacts of herbicide use, and that CDF also prejudicially
erred by misdescribing the state program regulating herbicide use. The Court of
Appeal directed the superior court to grant the mandate petition and order CDF to
rescind its approval of the THP?s.
We granted Sierra Pacific?s and CDF?s petitions for review.
DISCUSSION
I. Review of Cumulative-impacts Analysis Under CEQA and the
Forest Practice Act
?Timber harvesting operations in this state must be conducted in
accordance with the provisions of the Forest Practice Act. The Act was intended
to create and maintain a comprehensive system for regulating timber harvesting in
order to achieve two goals: (1) to ensure that ?[w]here feasible, the productivity of
timberlands is restored, enhanced, and maintained?; and (2) to ensure that ?[t]he
goal of maximum sustained production of high-quality timber products is achieved
while giving consideration to values relating to recreation, watershed, wildlife,
range and forage, fisheries, . . . and aesthetic enjoyment.? ([Pub. Resources
Code,2] ? 4513.) The Act vests in the [Board of Forestry] the obligation to adopt
forest practice rules and regulations specific to the various forest districts of the
state in order ?to assure the continuous growing and harvesting of commercial
forest tree species and to protect the soil, air, fish, and wildlife, and water

2
All further unspecified statutory references are to the Public Resources
Code.
4



resources, including, but not limited to, streams, lakes, and estuaries.? (? 4551.)?
(Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1226 (Sierra Club).)
The Forest Practice Act requires timber owners or operators on private land
to submit a timber harvest plan specific to the site and planned logging activity to
CDF for approval before harvesting. (?? 4581-4582.5.) Timber harvest plans are
available to the public and to public agencies for review and comment, and CDF?s
notice of approval must include a written response to significant environmental
issues raised by commenters. (? 4582.6; Cal. Code Regs., tit. 14, ? 1037.8;
Environmental Protection Information Center, Inc. v. Johnson (1985) 170
Cal.App.3d 604, 611-612.)
CDF?s approval of timber operations is generally subject to CEQA, but
under section 21080.5, the Forest Practice Act?s regulatory scheme has been
certified for exemption from CEQA?s requirements for preparation of an
environmental impact report (EIR) before approval of a project. (Sierra Club,
supra, 7 Cal.4th at p. 1230.) ?Under the terms of section 21080.5, subdivision (c),
that certification expressly exempts the timber harvesting plan process from the
provisions of chapters 3 and 4 and section 21167 of CEQA. (? 21080.5, subd.
(c).) Chapters 3 and 4 deal, in large part, with the various requirements of an EIR
at both the state level (chapter 3) and the local level (chapter 4). Section 21167
sets forth the time within which an action challenging a public agency?s decision
under the provisions of CEQA must be filed.? (Ibid.)
Serving as the functional equivalent of an EIR, a timber harvest plan must
?provide public and governmental decisionmakers with detailed information on
the project?s likely effect on the environment, describe ways of minimizing any
significant impacts, point out mitigation measures, and identify any alternatives
that are less environmentally destructive.? (County of Santa Cruz v. State Bd. of
Forestry (1998) 64 Cal.App.4th 826, 830.) As in the preparation of an EIR, a
5



timber harvest plan must consider cumulative impacts from the subject harvest
together with other operations. The Forest Practice Act?s implementing
regulations, the Forest Practice Rules (Cal. Code Regs., tit. 14, ? 896 et seq.),
adopt the CEQA regulations? definition of ?cumulative impacts? from related
projects: ?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. Cumulative impacts can result
from individually minor but collectively significant projects taking place over a
period of time.? (Cal. Code Regs., tit. 14, ? 895.1; see id., ? 15355.)
The Forest Practice Rules further provide that ?[c]umulative impacts shall
be assessed based upon the methodology described in Board Technical Addendum
Number 2 . . . and shall be guided by standards of practicality and reasonableness.
The . . . plan submitter?s duties under this section shall be limited to closely related
past, present and reasonably foreseeable probable future projects within the same
ownership and to matters of public record. The Director shall supplement the
information provided by the . . . plan submitter when necessary to insure that all
relevant information is considered.? (Cal. Code Regs., tit. 14, ? 898.)
In turn, Technical Rule Addendum No. 2 (found in the Forest Practice
Rules at Cal. Code Regs., tit. 14, foll. ? 952.9) (Technical Rule Addendum No. 2)
provides in part: ?The [preparer of a timber harvest plan] shall establish and
briefly describe the geographic assessment area within or surrounding the plan for
each resource subject to be assessed and shall briefly explain the rationale for
establishing the resource area. This shall be a narrative description and shall be
shown on a map where a map adds clarity to the assessment.? The addendum?s
appendix further provides, ?Biological assessment areas will vary with the species
being evaluated and its habitat.? (Technical Rule Addendum No. 2, appen. factor
C.)
6



CDF?s approval of timber operations is subject to CEQA?s standard of
judicial review. (?? 21168, 21168.5; Sierra Club, supra, 7 Cal.4th at pp. 1235-
1236.) Under that standard, ?the courts? inquiry ?shall extend only to whether
there was a prejudicial abuse of discretion.? [Citation.] Such an abuse 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.? ? (Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40
Cal.4th 412, 426, fn. omitted (Vineyard Area Citizens).) ?Judicial review of these
two types of error differs significantly: While we determine de novo whether the
agency has employed the correct procedures, ?scrupulously enforc[ing] all
legislatively mandated CEQA requirements? [citation], we accord greater
deference to the agency?s substantive factual conclusions. In reviewing for
substantial evidence, the reviewing court ?may not set aside an agency?s approval
of an EIR on the ground that an opposite conclusion would have been equally or
more reasonable,? for, on factual questions, our task ?is not to weigh conflicting
evidence and determine who has the better argument.? ? (Id. at p. 435.)
With this background in mind, we turn to plaintiffs? challenges to the
cumulative-impacts analysis set forth in the THP?s.
II. Geographic Scope of Sierra Pacific?s and CDF?s Cumulative-
impacts Analysis
Plaintiffs? core contention, and the sole ground on which the Court of
Appeal held the plans? discussion of cumulative impacts deficient, is that the
THP?s fail to follow the methodology of Technical Rule Addendum No. 2 ? in
particular the statement in the appendix to the addendum, which plaintiffs and the
lower court read as a mandatory command, that ?[b]iological assessment areas will
vary with the species being evaluated and its habitat.? (Cal. Code Regs., tit. 14,
foll. ? 952.9.) That procedural error, plaintiffs contend, resulted in CDF?s failing
7



to consider and disclose key information concerning the cumulative impacts of
Sierra Pacific?s logging in the Sierra Nevada on the habitat of the California
spotted owl and Pacific fisher.
In a formalistic sense, plaintiffs are correct. The Cedar Flat THP (which, as
did the lower court and all the parties, we discuss as representative of all three
THP?s) states flatly: ?The Biological [cumulative-impacts assessment area]
selected is the same as the Watershed Assessment Area, which is defined as the
state planning watershed Upper Griswold Creek.? Nowhere in its discussion of
cumulative impacts on the California spotted owl or the Pacific fisher does the
Cedar Flat THP expressly designate by such name a different ?cumulative-impacts
assessment area? for either species. Focusing very technically on the plans?
explicit designation of cumulative-impacts assessment areas, then, one must agree
they do not ?vary with the species being evaluated and its habitat.?
When one reads the THP?s for substance, however, a different picture
emerges. While the THP?s do not formally designate assessment areas larger than
the state planning watersheds, the THP?s, as well as CDF?s responses to comments
on them, actually discuss potential cumulative impacts on the California spotted
owl and Pacific fisher over areas of the Sierra Nevada much more extensive than
the designated planning watersheds. Indeed, the thrust of the plans? discussion is
that Sierra Pacific?s program of even-aged logging and plantation management
throughout its Sierra Nevada forests will not adversely affect, and in some
respects will improve, habitat for the discussed species. We illustrate the point
below with reference to the Cedar Flat THP and CDF?s response to comments
on it.
Immediately after introducing the state planning watershed as its chosen
cumulative-impacts assessment area, the Cedar Flat THP expressly expands the
scope of analysis to ?the Sierra Nevada Region? in order ?[t]o assess the potential
8



cumulative effects on wildlife that may have a current range large enough to
extend beyond the Cal Planning Watershed.? The Cedar Flat THP discusses
federal planning efforts for the Sierra Nevada, observing that with regard to
California spotted owl habitat the federal plans appear to assume ?that the
constraining factor on owl populations is the presence of appropriate large tree
nesting habitat? associated with mature forests. It then outlines Sierra Pacific?s
disagreement with the thesis that spotted owl populations require retention of
mature forests. The company?s data show nest trees have an average diameter of
only 34 inches. Sierra Pacific?s even-aged silviculture program for its Sierra
Nevada forests, the Cedar Flat THP asserts, will increase the average tree diameter
from 17 to 32 inches, retain larger trees and snags in streamside protection zones,
and increase forest edge habitat for species the spotted owl preys upon.
The Cedar Flat THP?s spotted owl discussion elaborates on these points. It
begins by noting there are no known nests within the proposed harvest units, but
three historical sites within the assessment area; the plan provides for buffer zones
around any nests within 500 feet of a harvest area. The discussion then asserts,
citing studies, that logging in the Sierra Nevada has not measurably disrupted
spotted owl habitat or populations: ?Demographic studies of the California
spotted owl do not demonstrate that forest management activities have caused a
measurable decrease in habitat quality. . . . [?] There is no empirical evidence of a
reduction in numbers or distribution of California spotted owls. California spotted
owls are widely distributed throughout most of the conifer zone. California
spotted owls may be more abundant in some areas of the Sierra Nevada than they
were 100 years ago. . . . [?] Apparently, even though the total amount of old-
growth forest has been markedly reduced in the Sierra Nevada during the past
century, enough very old trees remain today, widely distributed, that the owls do
9



not exhibit major gaps in their distribution that can be clearly attributed to
logging.?
The Cedar Flat THP?s spotted owl discussion then turns to ?Area of
Concern 5,? an area in the northwest part of the Stanislaus National Forest
identified by the United States Forest Service as having large private inholdings
and unknown spotted owl densities, and as one of several areas ?where future
problems may be greatest if the owl?s status in the Sierra Nevada were to
deteriorate.? According to the United States Forest Service, Area of Concern 5,
like several others, is ?characterized by habitat fragmentation that decreases the
density of owl pairs, makes successful dispersal [i.e., movement of young owls to
new habitat areas] more difficult, and reduces the likelihood of quick replacement
of owls in vacated habitat.? The Cedar Flat THP acknowledges that the proposed
logging would occur within Area of Concern 5, but asserts that ?this area has and
will continue to have stand types that are known to provide foraging, dispersal and
nesting for California spotted owls. The current distribution of harvest and
retained intervening stands provides habitat distributions similar to those predicted
to be successful in [a published study?s] study area. . . . [S]ite specific mitigation
will prevent any reduction in the density of owl pairs and will not increase the
difficulty of dispersing between territories.?
Finally, the Cedar Flat THP articulates Sierra Pacific?s broadest scientific
claim, that the cumulative effect of logging and planting under the company?s
silviculture program for the entire Sierra Nevada region will be to improve spotted
owl habitat by (1) increasing the number of large trees suitable for owl nesting,
and (2) increasing the edge habitat (the line between forest and other vegetation
types) suitable for species the spotted owl preys upon. The Cedar Flat THP
asserts: ?Nest trees of California spotted owls on [Sierra Pacific] forestlands
average 34 inches [plus or minus] 12 [inches] in diameter at breast height, at one
10



standard deviation. Trees of this size are common on [Sierra Pacific?s] private
forest land, currently averaging 9.0 per acre and are expected to increase in both
amount and distribution over time as a result of proposed [Sierra Pacific]
management practices.? Small mammals on which spotted owls primarily prey
?are known to increase in population and distribution in landscapes with periodic
disturbance from logging.? A study on the closely related Northern spotted owl
shows that, except for nesting stands, ?the most important habitat characteristic is
edge with other vegetation types . . . which produce prey base for the owl,
interspersed within the owl?s home range.? ?The edge effect . . . will be produced
by this harvest and will be maintained under [Sierra Pacific?s] long term
management. . . . As discussed in detail in the Alternative Silvicultural section,
our management will produce more large trees, and there will be more nesting
habitat. With the use of even-aged regeneration systems, we will create
interspersed types, which meet this species? edge need. With our new variable
retention policy for the reduction of visual effects of clear cuts we still expect to
create increased average tree size and maintenance of the edge effect.?
As to the Pacific fisher, the Cedar Flat THP?s discussion of impacts begins
by noting that researchers have been unable to find any fishers north of Yosemite
National Park (including the area of the proposed timber harvest); the discussion
argues this is probably attributable to topography rather than differences in the
availability of large trees. According to the Cedar Flat THP, studies show fisher
den trees in California averaged 33.1 inches in diameter and fisher ?rest trees? in
the Klamath region averaged 31 inches. ?Trees of these sizes are common on
[Sierra Pacific?s] private forest land . . . and are expected to increase in both
amount and distribution over time as a result of proposed [Sierra Pacific]
management practices.? The discussion continues: ?Pacific fisher rest tree habitat
is likely to remain stable for the foreseeable future and will increase from an
11



average of 20% to over 50% of [Sierra Pacific] lands over the planning
horizon. . . . As discussed in detail in the Alternative Silvicultural section, our
management will produce more large trees, thus there will be more resting habitat.
With the use of even-aged regeneration systems there will be interspersed types
. . . required for the habitat needs for a variety of prey species known to be utilized
by the Pacific fisher.?
The Cedar Flat THP summarizes its cumulative impacts on habitat claim as
follows: ?Based upon all the available information, including information
available in federal studies, the long term impact of [Sierra Pacific?s] management
practices throughout the Sierras will be to increase the habitat of species utilizing
dense forests with a large tree component such as the California spotted owl and
the Pacific fisher. [Sierra Pacific] private forest lands are already in a managed
condition. Past selective logging has had an adverse [e]ffect on tree size and
conifer volume per acre. These conditions will gradually be reversed over the next
100 years by a management regime designed to increase average tree size and
abundance.?
In response to a public comment expressing ?concern that the THP fails to
use a biological assessment area broad enough to account for the impacts of
[Sierra Pacific?s] logging plans throughout the Sierra Nevada,? CDF gave its view
that such an assessment would be impractical and incomplete given the variety of
land ownership and control in the Sierra Nevada area and the lack of specific
information on future activities throughout the region. CDF then discussed federal
region-wide planning efforts, which are commonly premised on an assumption
that privately held forest land will not contribute to habitat preservation, and
concluded that because Sierra Pacific?s even-aged management program was
expected (according to the Cedar Flat THP) eventually to improve habitat
12



conditions for the California spotted owl and the Pacific fisher, Sierra Pacific?s
?contribution is more than was anticipated in the federal . . . plan.?
The parties dispute the standard of review we should apply in determining
whether Sierra Pacific and CDF, in choosing a geographic area for analyzing
cumulative impacts on the California spotted owl and Pacific fisher, failed to
follow the procedures prescribed by the Forest Practice Act and the Forest Practice
Rules for preparation and approval of a timber harvest plan. Plaintiffs contend
that we should independently determine, without deference to CDF, whether CDF
followed the procedures established by law. Sierra Pacific maintains the choice of
a cumulative-impacts assessment area is a substantive decision reviewable only for
substantial evidence, while CDF, relying on Ebbetts Pass Forest Watch v.
Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, 1350-
1351, argues that its decision to accept a timber harvest plan using a particular
geographic area for cumulative-impacts assessment should be overturned only if
arbitrary or capricious.
To decide the proper standard of review, we must more precisely identify
?the nature of the alleged defect? and determine whether it is ?predominantly one
of improper procedure or a dispute over the facts.? (Vineyard Area Citizens,
supra, 40 Cal.4th at p. 435.) As we understand it, plaintiffs? central contention
(and the holding of the Court of Appeal below) is that Sierra Pacific, in preparing
the THP?s (and, implicitly, CDF in approving them), was obligated by the Forest
Practice Rules, in particular Technical Rule Addendum No. 2, to follow a set
analytical procedure in assessing cumulative impacts on a given species of animal
or plant. In this assertedly mandated procedure, a timber harvest plan?s preparer
must, for each species, separately identify a geographic area over which impacts
will be assessed, discuss related activities occurring or expected to occur in the
selected assessment area, and then assess the cumulative impacts of the proposed
13



timber harvest and the related activities on the species. CDF?s fundamental error,
plaintiffs argue, was in approving THP?s that, in lieu of this procedure, selected a
single geographic area for assessment of all cumulative impacts on biological
resources. This error, they further argue, resulted in THP?s that omitted key
information on cumulative impacts over geographic areas larger than the state
planning watersheds selected for assessment. We agree with plaintiffs that the
questions of what analytical procedure is required under the Forest Practice Rules,
and whether Sierra Pacific followed that procedure, is a predominantly procedural
question on which we exercise our independent legal judgment.
Applying that independent judgment, however, we conclude CDF did not
violate the law, specifically Technical Rule Addendum No. 2, in approving Sierra
Pacific?s selection of biological cumulative-impacts assessment areas. Despite
initially designating particular state planning watersheds as the cumulative-
impacts assessment areas for all species, the THP?s in fact devoted ample
discussion to cumulative impacts on the two species at issue, on a much broader
geographic scale, up to and including logging on all Sierra Pacific?s forest lands in
the Sierra Nevada. The THP?s explicitly expanded their scope of view beyond the
state planning watersheds to the United States Forest Service?s Area of Concern 5
and to the region as a whole in order ?[t]o assess the potential cumulative effects
on wildlife that may have a current range large enough to extend beyond the Cal
Planning Watershed.? By doing so, the THP?s avoided any violation of the
pertinent provision of the Forest Practice Rules (Cal. Code Regs., tit. 14, ? 898)
and its associated Technical Rule Addendum No. 2 (id., foll. ? 952.9).
Moreover, this is not a case in which the key information was scattered
around a long, unorganized document, buried in an appendix, or contained only in
a separate, inadequately cross-referenced document. (See Vineyard Area Citizens,
supra, 40 Cal.4th at p. 442.) While the THP?s did formally designate a single
14



cumulative-impacts assessment area for all biological resources, they clearly and
expressly analyzed cumulative impacts on a different, broader scale as to the
species at issue here and did so in a reasonably well-organized discussion.
The Court of Appeal broke down the analytical process it believed
Technical Rule Addendum No. 2 mandates into seven distinct steps, which it
concluded Sierra Pacific had not followed as to the California spotted owl and
Pacific fisher.3 But the regulation directing timber harvest plan preparers to
follow the technical addendum also directs them to be ?guided by standards of
practicality and reasonableness.? (Cal. Code Regs., tit. 14, ? 898.) In that light,
we believe the technical addendum is properly read to direct that a timber harvest
plan?s cumulative-impacts assessment be reasonably tailored, in geographic scope
as in other respects, to the species under discussion, but not to require rigid
adherence to a particular analytical process. The purpose of requiring a
cumulative-impacts analysis in a timber harvest plan under the Forest Practice Act,
as in an EIR under CEQA, is to ensure that the public and decision makers receive
full information before the project is approved, not to set procedural traps for plan
preparers or CDF.
Plaintiffs contend the THP?s, due to their use of relatively small assessment
areas, failed to address the cumulative impacts of logging on dispersal habitat for
the California spotted owl. They urge us to hold this omission, like the omission

3
In summary, the steps were (1) selecting a cumulative-impacts assessment
area for each species discussed; (2) describing the area in narrative form;
(3) showing the area on a map; (4) explaining why that area was chosen;
(5) identifying any past, present, or foreseeable future projects in the area;
(6) describing any significant impacts these other projects had or may have on the
species; and (7) determining whether together with the proposed timber harvest
plan the effects on the species are cumulatively significant.
15



of information on the presence of old-growth-dependent species in Sierra Club,
supra, 7 Cal.4th 1215, was both legally erroneous and presumptively prejudicial.
But the two cases are not comparable. In Sierra Club, the Board of Forestry erred
by approving a timber harvest plan despite the applicant?s complete refusal to
disclose the impacts of its proposed logging on old-growth-dependent species,
information explicitly requested by the California Department of Fish and Game.
(See id. at pp. 1221-1223, 1234, 1236-1237.) Here, in contrast, the plans
discussed the cumulative impact on spotted owl habitat, including habitat needed
for population dispersal, over a large geographic area; they failed only to discuss
the subject at the level of detail plaintiffs believe is needed to scientifically
establish the cumulative impact on spotted owl populations. The deficiency is
thus, at most, one of insufficient evidence to support CDF?s findings, an issue
outside the scope of our review.4
The present THP?s each separately discussed the habitat needs of the
California spotted owl and Pacific fisher and assessed whether the proposed

4
Plaintiffs argued the lack of substantial evidence to support CDF?s no-
significant-impact findings in the Court of Appeal, but that court, holding the
THP?s deficient under Technical Rule Addendum No. 2, did not reach the issue.
The administrative record contains considerable evidence contrary to the plans?
claim that Sierra Pacific?s even-aged silviculture program will improve habitat for
the California spotted owl and Pacific fisher. This included evidence that Pacific
fishers and nesting spotted owls prefer old, decadent large trees, as well as dead
snags; that even if a given current timber harvest plan leaves some large trees,
snags, and downed trees in place, Sierra Pacific?s even-aged management program
will not predictably produce similar features in the future; and that, as a United
States Forest Service study concluded, creating a ?network of small, relatively
isolated ?islands? of older forest suitable for breeding by spotted owls and
separated by a ?sea? of younger, less suitable or unsuitable habitat, is not a
workable strategy to assure long-term maintenance of spotted owls.? We have not
attempted to weigh the parties? competing factual claims in this case.
16



activity, together with closely related logging and silvicultural activities, would
cumulatively affect each of those species in an adverse way. The THP?s
concluded these activities would not have significant adverse effects because,
overall, Sierra Pacific?s program of even-aged silviculture in the Sierra Nevada
would improve habitat for the two species, a conclusion CDF echoed in response
to public comments on the THP?s. Whether substantial evidence in the
administrative record supports this finding is, as just explained (fn. 4, ante), an
issue we do not address. We hold only that this mode of analysis complied with
the Forest Practice Rules as to the geographic scope required of a cumulative-
impacts assessment.5
III. Adequacy of Sierra Pacific?s and CDF?s Analysis of Future
Herbicide Use
Plaintiffs contend the plans? discussion of potential herbicide use and
CDF?s response to public comments on this point are legally deficient in a number
of respects. To understand and resolve these claims, we must review the plans?
discussion and CDF?s response in some detail (again taking the Cedar Flat THP as
representative).
The Cedar Flat THP?s discussion begins by explaining that herbicides are
sometimes used within Sierra Pacific?s integrated vegetation management program
?to prepare a site for burning or planting, minimize resprouting brush, release

5
We decline to separately address plaintiffs? further contentions that the
THP?s fail to adequately describe their environmental settings and that CDF?s
responses to public comments regarding the California spotted owl and Pacific
fisher were legally inadequate, as these were not among the issues identified in the
petitions for review or answer. (See Cal. Rules of Court, rule 8.520(b)(3).) To the
extent plaintiffs? arguments on these points merely restate their complaint that the
THP?s err in using a uniform, insufficiently large assessment area for cumulative
impacts, however, we reject them for the reasons already stated.
17



conifers to grow freely, maintain road access and roadbed integrity, or eliminate
exotic invasive weeds.? Whether herbicides will be used for preparation of a
particular site, and if so which ones, at what rate, and by what application method
cannot be predicted at the time of a timber harvest plan; rather, the decision is
made by a licensed pest control advisor at the time of site preparation. For this
reason, Sierra Pacific deems the use of herbicides ?entirely too speculative to be
considered part of a THP project.? Moreover, the Cedar Flat THP asserts,
application of herbicides in a lawful manner carries no potential for significant
adverse impacts on the environment because ?[i]mpacts to target plants are short
lived,? reinvasion of the site by vegetation is rapid, and ?application of herbicides
will generally take place only once or twice during the lifetime of a stand.?
Despite these assertions, the Cedar Flat THP acknowledges that ?there
exists a reasonable probability that some form of herbicide may be used to control
vegetation post-harvest,? and, ?[o]ut of a desire to achieve maximum public
disclosure,? the Cedar Flat THP then enters into a detailed discussion of the
herbicides that may be used, their potential impacts, and alternatives to their use.
The Cedar Flat THP asserts that in choosing and applying herbicides Sierra
Pacific will comply fully with label restrictions and conditions imposed by the
California Department of Pesticide Regulation, which are the product of an
extensive registration system and include mandatory measures to minimize any
adverse environmental effects. Adherence to these regulations during application
of herbicides by a state-licensed pest control operator, the Cedar Flat THP asserts,
?should prevent significant effects.?
The Cedar Flat THP then discusses in detail four herbicides Sierra Pacific
has used in past reforestation projects: atrazine, hexazinone, triclopyr, and
glyphosate. Atrazine is toxic to fish and can build up in fish to a small degree; it is
only slightly toxic to birds, amphibian eggs, and tadpoles, and has low toxicity to
18



mammals. It is adsorbed by soils, but to different degrees depending on the soil
type, and remains active in the soil for several months. Atrazine dissolves in water
and hence should not be applied to water, wetlands, or porous or sandy soil in
which it can move easily. Concerns about runoff of atrazine and its buildup in
soils ?are primarily in areas where atrazine has been used repeatedly on crops that
are annually grown.? In forest land applications, however, the herbicide is
typically used only once in an 80-year rotation. The Cedar Flat THP concludes
use of atrazine in accord with label and other regulatory restrictions would have no
significant environmental effects. Similar information on the herbicide?s fate in
the environment, breakdown products, toxicity, and use restrictions is provided for
the other three herbicides; in each case, the Cedar Flat THP concludes that use of
the herbicide in reforestation would have no significant adverse environmental
effects, assuming all label and other regulatory restrictions are followed.
The Cedar Flat THP then discusses the effect of herbicide use generally on
the targeted and untargeted plant species. The purpose of herbicide use in forest
lands ?is not to eliminate brush, forb and weed species, but rather to give the tree
seedlings an opportunity to outgrow the competition.? Nontree species resprout
from seed or recolonize the site from nearby unharvested areas, the Cedar Flat
THP asserts, and plant biodiversity is not adversely affected in the long term.
Finally, the Cedar Flat THP discusses the alternatives to herbicide use.
Mechanical treatment is used to prepare a site, and the extent of its effectiveness in
a given case helps to determine whether and how much herbicide will also be
used. Manual clearing is both infeasible and unpredictable in effect. The no
action alternative is rejected because where herbicide use is indicated, its absence
can retard planted conifer growth by 30 to 70 percent, defeating the productivity
goal of the project.
19



In response to a public comment that the Cedar Flat THP failed to assess
the impacts of herbicide use, CDF observes that under section 21080.5, the
Department of Pesticide Regulation?s regulatory program is certified for
exemption from EIR preparation and its operation is overseen by county
agricultural commissioners. On this basis, CDF asserts that ?[a]s CDF is not the
regulating authority for herbicide applications on private land we do not have the
authority to approve or disapprove any project regarding the use of chemicals.?
Because the Department of Pesticide Regulation is the lead agency governing its
own certified regulatory program, CDF?s response continues, ?CDF is barred from
repeating the environmental analysis conducted by? the Department of Pesticide
Regulation, and because use of an herbicide in compliance with the restrictions
imposed by the Department of Pesticide Regulation ?would not have a significant
effect on the environment, CDF is not required to analyze the use in the THP.?
That said, CDF?s response proceeds to an extended consideration of the
?cumulative watershed or biological effects? of using any of six herbicides in
silviculture. (In addition to the four addressed in the Cedar Flat THP, the response
addresses the herbicides 2,4-D and imazapyr.) CDF?s discussion repeats to some
extent, but also goes beyond that in the Cedar Flat THP. As to atrazine, for
example, the response discusses studies showing exposure to atrazine had adverse
developmental effects on two species of frogs (neither native to the Sierra Nevada
region). CDF acknowledges the study is ?of concern,? expresses the opinion that
agencies regulating pesticides may wish to increase the restrictions on atrazine?s
use, but concludes that CDF?s ordinary watercourse and lake protection buffer
zones and the infrequency of herbicide use in silviculture ?would provide
protections for water borne amphibians.? As to all of the herbicides that might be
used, CDF concludes there is no likelihood of a significant environmental effect.
20



CDF?s response also considers in detail the possibility that herbicide use
generally is contributing to drops in Sierra Nevada amphibian populations. The
response discusses a report that ?attempt[s] to suggest that wind borne
agrochemicals in general may be a factor in contributing to the decline of red-
legged frogs in the Sierra Nevada,? but notes that the studies cited in the report
involved insecticides rather than herbicides. The response discusses several other
studies that have suggested a link to insecticides, which may drift from Central
Valley farmlands into the Sierra Nevada region. With regard to potential pollution
of Sierra Nevada streams and lakes by herbicide use, CDF?s response observes
that because the Forest Practice Rules mandate protection zones around bodies of
water larger than the buffer zones called for on herbicide labels, ?herbicide use on
forested lands in California probably do[es] not have some of the same impacts to
water as herbicide use in agriculture,? making results from studies of agricultural
use inapplicable.
Plaintiffs contend the Cedar Flat THP and CDF?s response are deficient in
that they improperly deem herbicide use too speculative for impacts analysis and
rely on the Department of Pesticide Regulation?s registration of the herbicides as
excusing further environmental analysis. Although some statements in the Cedar
Flat THP and CDF?s response support plaintiffs? argument, we disagree that the
documents actually fail, in these respects, to assess the environmental impacts of
Sierra Pacific?s possible future herbicide use.
Regarding speculativeness and its opposite, foreseeability, the Court of
Appeal accurately summarized the law as follows: ?[W]hen a proposed act, such
as the application of herbicides, is reasonably foreseeable in general terms, the
THP must include a general discussion of the act and its possible environmental
effects, but need not include a detailed analysis of specific acts that cannot
reasonably be foreseen at the time the THP is prepared.? (See Vineyard Area
21



Citizens, supra, 40 Cal.4th at p. 428; Laurel Heights Improvement Assn. v. Regents
of University of California (1988) 47 Cal.3d 376, 396, 398-399.) Whether the
preparer of the three THP?s and CDF applied the correct legal standard to
determine the scope of analysis is a predominantly procedural question we review
independently, but the correctness of factual findings predicate to the standard?s
application (for example, delineation of the circumstances under which a future
action is likely to occur) is a predominantly factual matter we review only for
substantial evidence. (Vineyard Area Citizens, at p. 435.)
As noted above, the Cedar Flat THP expressly acknowledged that ?there
exists a reasonable probability that some form of herbicide may be used to control
vegetation post-harvest.? Moreover, its preparer was able to focus on four
particular herbicides Sierra Pacific has used in the past, to which CDF added two
others in its own analysis. In light of the Cedar Flat THP?s recognition that use of
one or more of these herbicides was reasonably foreseeable, the plan incorrectly
characterizes herbicide use as ?too speculative? for present analysis.
On the other hand, ?[a] detailed environmental analysis of every precise use
that may conceivably occur is not necessary at this stage.? (Laurel Heights
Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at
p. 398.) The Cedar Flat THP states: ?Decisions about spraying are made after
harvest based on conditions on the ground. These conditions include amount of
competing vegetation present and its future growth potential, level of moisture
retention capability in the specific soil, survival success rates of the planted
conifer seedlings, amount of insect or rodent damage, and other factors that are not
known at this time.? As noted earlier, the Cedar Flat THP also states that whether
and what herbicides are used depends in part on the success of postlogging
mechanical site preparation. Where the exact parameters of generally foreseeable
future actions cannot confidently be predicted, the full-disclosure goals of CEQA
22



and the Forest Practice Act may nonetheless be met with an analysis that
?acknowledges the degree of uncertainty involved, discusses the reasonably
foreseeable alternatives . . . and discloses the significant foreseeable
environmental effects of each alternative, as well as mitigation measures to
minimize each adverse impact.? (Vineyard Area Citizens, supra, 40 Cal.4th at
p. 434.)
Plaintiffs insist the THP?s should have included more detailed, site-specific
discussions of potential future herbicide use, focusing on the use of specific
herbicides, applied by particular chosen methods, on each of the individual harvest
units. They argue that the THP?s already contain information on soils, competing
vegetation, climate, and silvicultural methods that could have been used for such
site-specific analysis of herbicide impacts. But plaintiffs do not dispute that the
planned logging, mechanical clearing, and the passage of ?one to ten years post
harvest? until herbicides may be applied could change the conditions on the
ground. Applying the substantial evidence standard to this predominantly factual
question, we conclude CDF did not abuse its discretion by accepting the plans?
finding that the precise parameters of future herbicide use could not be predicted,
and hence failing to demand a more detailed, site-specific analysis of impacts and
mitigation measures. (Accord, Ebbetts Pass Forest Watch v. Department of
Forestry & Fire Protection, supra, 123 Cal.App.4th at p. 1363.)6

6
Plaintiffs also maintain the THP?s inadequately disclosed the need for
stronger mitigation measures to protect aquatic environments and the true impacts
of herbicide use on the mix of plants in the forest understory. This contention,
closely related to, if not equivalent to, a claim the plans? findings on impacts and
mitigation are not supported by substantial evidence, was not addressed by the
Court of Appeal or presented in the petitions for review or answer. For this
reason, we decline to address the issue. (See Cal. Rules of Court, rule
8.520(b)(3).)
23



Regarding the plans? reliance on the Department of Pesticide Regulation?s
registration of herbicides, we agree with plaintiffs that the fact a sister agency had
assessed the environmental effects of various herbicides in general and registered
them for use did not excuse CDF from assessing those herbicides? use as part of a
particular timber harvest plan. The court in Californians for Alternatives to
Toxics v. Department of Food & Agriculture (2005) 136 Cal.App.4th 1 recently
addressed this issue, holding that the existence of the Department of Pesticide
Regulation?s registration program did not remove the environmental impacts of
pesticide use from the proper scope of an EIR on a Department of Food and
Agriculture plan to control an agricultural pest: ?We acknowledge that DFA?s
[Department of Food and Agriculture] duty under CEQA to analyze the effects of
pesticide use must necessarily take into account the distinct regulatory scheme of
the DPR [Department of Pesticide Regulation]. However, sole reliance on DPR?s
registration of pesticides and its regulatory program, including safety regulations
for employees handling pesticides (Cal. Code Regs., tit. 3, ? 6720 et seq.), is
inadequate to address environmental concerns under CEQA. DFA is responsible
for analyzing the environmental impacts of proposed pesticide use under the [pest
control plan], notwithstanding that DPR must also register pesticides before they
can be used in this state. DPR?s registration does not and cannot account for
specific uses of pesticides in the [plan], such as the specific chemicals used, their
amounts and frequency of use, specific sensitive areas targeted for application, and
the like.? (Id. at p. 16.) In registering a pesticide for use in California, the
Department of Pesticide Regulation does not necessarily fully assess its use in
every application, such as silviculture, where it may bear potential for particular
24



environmental effects, nor does it guarantee that the pesticide?s use will never
have significant environmental effects.7
CDF therefore had no grounds to state in its response to public comments
that because of the Department of Pesticide Regulation?s registration program ?we
do not have the authority to approve or disapprove any project regarding the use of
chemicals.? To the contrary, as the lead agency evaluating timber harvests, CDF
has not only the authority but also the duty to approve, disapprove, and impose
mitigation measures on timber harvest plans, including measures to address the
foreseeable use of herbicides in planned silvicultural operations. (Of course, CDF
must regulate herbicide use in a manner consistent with that of the Department of
Pesticide Regulation; it could not, for example, approve use in a timber harvest
plan of an herbicide its sister agency had disapproved for all uses.) Nor was CDF
correct in concluding that any use of an herbicide in compliance with Department
of Pesticide Regulation label restrictions necessarily ?would not have a significant
effect on the environment.? (See Californians for Alternatives to Toxics v.
Department of Food & Agriculture, supra, 136 Cal.App.4th at p. 17 [?Nor is there
legal authority for the proposition that using registered pesticides according to
their labels never results in significant adverse effects?]; cf. Oregon
Environmental Council v. Kunzman (9th Cir. 1983) 714 F.2d 901, 905 [? ?the mere

7
See California Code of Regulations, title 3, section 6158, subdivision (c)
(even if the use of a pesticide will unavoidably result in significant adverse
impacts, the chemical may be registered if the Department of Pesticide Regulation
finds ?that anticipated benefits of registration clearly outweigh the risks?); id.,
section 6432, subdivision (a) (county agricultural commissioner may approve a
permit for pesticide use likely to cause ?substantial adverse environmental impact?
if he or she determines that alternatives and mitigation measures are infeasible);
id., section 6426, subdivision (a) (licensed pest control advisors must adopt
mitigation measures only where ?feasible . . . reasonable, effective and practical?).
25



fact that a program involves use of substances registered under FIFRA [federal
pesticide law] does not exempt the program from the requirements of NEPA
[federal environmental law]? ?].)
If the Cedar Flat THP and CDF?s response to public comments on it had
relied entirely on the Department of Pesticide Regulation?s regulatory program
and did not themselves analyze the significant environmental effects, mitigation
measures, and alternatives to herbicide use on the harvested sites, we would agree
that CDF failed in its duty to consider and disclose information relevant to its
decision. (Sierra Club, supra, 7 Cal.4th at pp. 1233-1234.) But neither the Cedar
Flat THP nor CDF?s response halted its analysis at that point. Rather, as
demonstrated by our earlier summary of the two documents, they both continued
with an extensive discussion of potential impacts, mitigation measures, and
alternatives to herbicide use. CDF thus did not erroneously rely on the
Department of Pesticide Regulation?s regulatory program and fail to conduct its
own environmental impacts assessment. (Accord, Ebbetts Pass Forest Watch v.
Department of Forestry & Fire Protection, supra, 123 Cal.App.4th at p. 1362.)
Finally, plaintiffs contend CDF?s response to public comments on the
Cedar Flat THP was inadequate because CDF relied on information not contained
in the administrative record, which the Court of Appeal characterized as
?information that reveals [Sierra Pacific?s] typical pattern of herbicide use, past
use data maintained by [the Department of Pesticide Regulation], or documents
created by pest control advisers that [Sierra Pacific] has hired in the past.? But, as
CDF explains, Sierra Pacific?s typical use of herbicides in silviculture is in fact
described in the THP?s, and the Department of Pesticide Regulation data on past
herbicide use that CDF relied upon were identified with particularity. Plaintiffs
cite nothing in CEQA or the Forest Practice Act requiring that source materials
available to the public be physically incorporated into a timber harvest plan or
26



official response to comments. (See Cal. Code Regs., tit. 14, ? 15148
[?Preparation of EIRs is dependent upon information from many sources,
including engineering project reports and many scientific documents relating to
environmental features. These documents should be cited but not included in the
EIR?].)
CONCLUSION AND DISPOSITION
The three THP?s, and CDF?s response to public comments on them, do not
suffer from the asserted legal flaws plaintiffs identify. We therefore reverse the
judgment of the Court of Appeal and remand the matter to that court for further
proceedings consistent with our opinion.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
27



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Ebbetts Pass Forest Watch v. California Department of Forestry & Fire Protection
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 140 Cal.App.4th 136
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S143689
Date Filed: May 22, 2008
__________________________________________________________________________________

Court:

Superior
County: Tuolumne
Judge: William G. Polley

__________________________________________________________________________________

Attorneys for Appellant:

Michael W. Graf; Law Offices of Thomas N. Lippe and Thomas N. Lippe for Plaintiffs and Appellants.

MacKenzie & Albritton and James A. Heard for Sierra Club and Sierra Nevada Forest Protection
Campaign as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Offices of J. William Yeates, J. William Yeates, Keith G. Wagner and Jason R. Flanders for California
Native Plant Society as Amicus Curiae on behalf of Real Party in Interest and Respondent.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney
General, Mary E. Hackenbracht, Assistant Attorney General, Charles W. Getz IV, Gordon Burns and
William Jenkins, Deputy Attorneys General, for Defendant and Respondent.

Morrison & Foerster, Edgar B. Washburn, Christopher J. Carr, Shona L. Armstrong, William M. Sloan;
Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos; Dun & Martinek, David H. Dun
and David E. Martinek for Real Party in Interest and Respondent.

Meriem L. Hubbard and Damien M. Schiff for Pacific Legal Foundation as Amicus Curiae on behalf of
Real Party in Interest and Respondent.

Michele Dias for California Forestry Association as Amicus Curiae on behalf of Real Party in Interest and
Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Thomas N. Lippe
Law Offices of Thomas N. Lippe
329 Bryant Street, Suite 3D
San Francisco, CA 94107
(415) 777-5600

William Jenkins
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5527

Edgar G. Washburn
Morrison & Foerster
425 Market Street
San Francisco, CA 94105-2482
(415) 268-7000