EbbettsPassForest Watch v. Cal. Dept. of Forestry and Fire Protection

Filed 10/28/08 Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Protection CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tuolumne County. William G. Polley, Judge.

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

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary E. Hackenbracht, Assistant Attorney General, Charles W. Getz IV, John Davidson and William Jenkins, Deputy Attorneys General, for Defendant and Respondent.

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

-ooOoo-

This matter comes before this court on remand from the California Supreme Court after reversal of our previous decision. (EbbettsPassForest Watch v. California Dept. of Forestry & Fire Protection (2008) 43 Cal.4th 936, 958 (EbbettsPass).) Respondents opposition notwithstanding, we conclude that this court is responsible for addressing the issues that were raised in appellants 2003 opening briefing with this court but were not resolved in our 2006 decision or in the California Supreme Courts decision. After considering those issues, we conclude that appellants have not demonstrated reversible error. Accordingly, we will affirm the judgment of the superior court.

FACTS AND PROCEEDINGS

Ebbetts Pass Forest Watch and Central Sierra Environmental Resource Center (collectively, Ebbetts Pass) challenged California Department of Forestry and Fire Protections (CDF) approval of three timber harvest plans (THPs) submitted by Sierra Pacific Industries (SPI) relating to timberland in Tuolumne County. Ebbetts Pass asserted that the THPs failed to comply with the Zberg-Nejedly Forest Practice Act of 1973 (Forest Practice Act),^[1]the rules promulgated by the Board of Forestry under the Forest Practice Act (Forest Practice Rules),^[2]and the California Environmental Quality Act (CEQA).^[3]

The superior court denied Ebbetts Passs petition for a writ of mandate. Our 2006 decision reversed the superior court and directed it to issue the writ of mandate. The California Supreme Court granted review and reverse[d] the judgment of the Court of Appeal and remand[ed] the matter to that court for further proceedings consistent with our opinion. (Ebbetts Pass, supra, 43 Cal.4th at p. 958.)

The facts and procedural history of this case have been set forth in our 2006 decision as well as the California Supreme Courts decision. We will rely on those decisions statement of facts^[4]and procedural history and will not block and paste them into this opinion. (Cal. Const., art. VI,  14 [decision of court of appeal shall be in writing with reasons stated]; People v. Ford (1981) 30 Cal.3d 209, 215-216 [incorporation by reference did not violate constitution].)

DISCUSSION

I. Scope of Further Proceedings By This Court

The California Supreme Court remanded this case to us for further proceedings consistent with [its] opinion. (Ebbetts Pass, supra, 43 Cal.4th at p. 958.) The parties dispute what those further proceedings should entail.

Ebbetts Pass contends this court should address the issues that it raised and were not addressed by this court in its 2006 decision or by the California Supreme Court in its decision. SPI and CDF contend that the further proceedings only require this court to issue a remittitur affirming the superior courts denial of Ebbetts Passs petition for writ of mandate. CDF argues [t]here is simply no indication that the Supreme Court remanded the issues identified by [Ebbetts Pass] for further decision by this Court.

We interpret the California Supreme Courts opinion to mean it did not resolve all of the issues that we did not reach in our 2006 decision. For example, the court stated that the issue of insufficient evidence to support CDFs findings was an issue outside the scope of its review. (Ebbetts Pass, supra, 43 Cal.4th at p. 951.) Also, the court declined to address separately Ebbetts Passs further contentions that the THPs fail to adequately describe their environmental settings and that CDFs 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. (Id. at p. 951, fn. 5.)

We further interpret the courts direction that we conduct further proceedings consistent with its opinion to mean this court must address and decide the issues we did not reach in our 2006 decision. If the court had wished us to avoid those issues and remit the case directly to the superior court, it would not have referred to further proceedings. (Cf. In re Delta-Bay Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1178 [trial court held environmental impact report was adequate; court of appeal reversed; California Supreme Court stated that [t]he Court of Appeals judgment is reversed without mentioning remand or further proceedings].) By addressing those issues now, we will fully dispose of the appeal as originally presented to this court by Ebbetts Pass.

In accordance with our order dated September 8, 2008, we intend to address issues only if Ebbetts Pass (1) raised the issue in its original appeal to this court and (2) identified the issue in its papers filed August 5, 2008, or August 29, 2008.

II. Inadequacy of Description of the Environmental Setting

A. Issue Previously Raised by Ebbetts Pass

Page 35 of Ebbetts Passs appellants opening brief filed in September 2003 set forth an argument regarding the adequacy of the description of the environmental setting in the THPs:

First, SPI and CDF failed to accurately describe the environmental setting of these THPs by finding that there are no continuing significant adverse impacts from past land use activities that may add to the impacts of the proposed projects. (App. 80, 2205, 3161.) This finding is contradicted by other statements by CDF and SPI that the areas have been selectively logged, with significant impacts on forest wildlife by reducing the amount of optimal habitat. (See e.g., App. 503; 2954, 3451.)

Our 2006 decision did not reach this argument. The California Supreme Court expressly declined to address Ebbetts Passs contention that the THPs fail to adequately describe their environmental settings . (Ebbetts Pass, supra, 43 Cal.4th at p. 951, fn. 5.) Accordingly, we now address Ebbetts Passs contentions regarding the inadequacy of the THPs description of the environmental setting.

B. Rules of Law Regarding Description of the Environment

Ebbetts Passs contention that SPI and CDF did not proceed[] in the manner required by law^[5]when describing the environmental setting requires us to identify the applicable rules of law and what they require.

The only authority cited in Ebbetts Passs opening appellate brief for its view of the law is a case that applies California Code of Regulations, title 14, section 15125.^[6] (See San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 722-723.) Thus, Ebbetts Pass implies that CEQA Guidelines section 15125 sets forth the applicable rule of law. That section, which is titled Environmental Setting, provides in part:

(a) An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives.

CEQA Guidelines section 15125 expressly applies to environmental impact reports (EIR) and does not mention THPs. Furthermore, courts should not infer that CEQA Guidelines section 15125 applies to THPs because that regulation was adopted to implement section 21100, a CEQA provision from which THPs are exempt. (See Schoen v. Department of Forestry & Fire Protection (1997) 58 Cal.App.4th 556, 566 [THPs are exempt from chs. 3 and 4 of CEQA, i.e.,  21100-21154];  21080.5, subd. (c).) Stated more generally, we conclude that THPs are not subject to CEQA Guidelines that implement provisions of CEQA from which THPs are exempt.

Consequently, we reject Ebbetts Passs implied argument that CEQA Guidelines govern the contents of the THPs submitted by SPI. Instead, the contents of a THP are governed by (1) the Forest Practice Act, (2) the Forest Practice Rules, and (3) those chapters of CEQA from which THPs are not exempt.

1. Statute regarding content of THPs

The Forest Practice Act provides that a THP shall include a description of the land on which the work is proposed to be done and [a]ny other information the board provides by regulation to meet its rules and the standards of [the Forest Practice Act.]. ( 4582, subds. (c) & (i).)

2. Regulations regarding content of THPs and cumulative impacts

THPs are required to discuss cumulative impacts. The requirements for that discussion are set forth in Forest Practice Rules. (Cal. Code Regs., tit. 14,  898, 1034 & 952.9.)

Forest Practice Rules provide that a THP shall contain a description of plan area within which timber operations are to be conducted. (Cal. Code Regs., tit. 14,  1034, subd. (g).) They also require [a] general description of physical conditions at the plan site, including general soils and topography information, vegetation and stand conditions, and watershed and stream conditions. (Id., subd. (jj).)

The Forest Practice Rules state in part: Cumulative impacts shall be assessed based upon the methodology described in Board Technical Rule Addendum Number 2, Forest Practice Cumulative Impacts Assessment Process and shall be guided by standards of practicality and reasonableness. (Cal. Code Regs., tit. 14,  898.)

The Forest Practice Rules contain a cumulative impacts assessment checklist as well as Technical Rule Addendum No. 2.^[7] (Cal. Code Regs., tit. 14,  952.9.)

We note that neither the Forest Practice Act nor the Forest Practice Rules use the term environmental setting, which is used in CEQA Guidelines section 15125. Thus, neither contains provisions that closely parallel the requirements for EIRs set forth in CEQA Guidelines section 15125.

3. Case law

Ebbetts Passs August 2008 supplemental brief on remand contends that the THPs cumulative impact analyses did not lawfully describe the environmental setting and cites Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215 (Sierra Club) and Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859^[8]as support.

In Sierra Club, the THPs lacked information about the presence of four old-growth-dependent species in the subject area. (Sierra Club, supra, 7 Cal.4th at p. 1220.) The response of the Department of Fish and Game (Fish and Game) asked for information on these wildlife species within the plan areas, the CDF requested it from the applicant, and the applicant refused to provide the information on the ground it was not specified in the Forest Practice Rules. (Sierra Club, supra, at p. 1219.) The CDF denied the THPs as incomplete. (Ibid.) The applicant appealed and the Board of Forestry approved the THPs.

The California Supreme Court determined that the Board of Forestry failed to proceed in a manner required by the Forest Practice Act and CEQA when it approved a THP. (Sierra Club, supra, 7 Cal.4th at p. 1236.) The court stated that the CDF had an obligation imposed by CEQA to collect information regarding the presence of old-growth-dependent species on the site of the proposed timber harvest. (Ibid.) This obligation to collect and disclose information arose because Fish and Game determined that the proposed timber harvest could have a significant adverse effect on the old-growth-dependent wildlife habitat. (Ibid.) This obligation to collect and disclose information, while not explicitly set forth in CEQA or the Forest Practice Act, was necessarily implied from other statutory duties. For example, CDF is statutorily obligated to (1) protect wildlife species in accordance with section 4551 and (2) prevent environmental damage by requiring feasible mitigation measures that avoid or substantially lessen significant environmental effects. (Sierra Club, supra, at p. 1236.)

The parties dispute how the principles established in Sierra Club apply to the description of the environment contained in the THPs submitted by SPI. At a minimum, a THP may not omit information about the presence of wildlife species when Fish and Game asks for information on the species in the plan area and expressly indicates that the proposed timber harvest could have a significant impact on the habitat of those species. In this case, the THPs discuss the presence of the California spotted owl and the Pacific fisher in the plan areas. Furthermore, the California Supreme Court stated that the present case is not comparable to Sierra Club. (Ebbetts Pass, supra, 43 Cal.4th at p. 950.) Therefore, we conclude that the THPs in this case did not violate a rule of law expressed or inherent in Sierra Club.

C. Past Impacts of Previous Logging

Ebbetts Pass contends the description of the environment is inadequate because it is based on a finding that there are no continuing significant adverse impacts from past land use activities that may add to the impacts of the proposed projects, and this finding is contradicted by other statements by CDF and SPI.

First, we consider whether Ebbetts Pass accurately identified a finding made in the THPs.

Section IV, Cumulative Impacts Assessment, of the Cedar Flat THP explicitly addressed the items in the cumulative impacts assessment checklist contained in the Forest Practice Rules. (Cal. Code Regs., tit. 14,  952.9.) Item (1) of the checklist asked, Do the assessment area(s) of resources that may be affected by the proposed project contain any past, present, or reasonably foreseeable probable future projects? The Cedar Flat THP answered this item Yes and identified 15 THPs filed by SPI from 1989 through 1997 and three United States Forest Service timber sales The Cedar Flat THP then recited item (2) of the checklist verbatim: (2) Are there any continuing, significant adverse impacts from past land use activities that may add to the impacts of the proposed project? (Italics omitted.) SPI answered this item No.^[9]

Thus, the record shows that Ebbetts Passs argument accurately described a finding included in the THPs.^[10]

Second, we consider the accuracy of Ebbetts Passs assertion that this finding is contradicted by other statements made by CDF and SPI. In particular, Ebbetts Pass argues that the record shows there have been past impacts of previous loggingspecifically, the areas have been selectively logged, with significant impacts on forest wildlife by reducing the amount of optimal habitat.

We will discuss this assertion at two levels. The first level concerns the cumulative impacts assessment area that SPI formally designated in each THP.^[11] The second level concerns the broader geographic scope that SPI and the CDF also used in their discussion of impacts. (See Ebbetts Pass, supra, 43 Cal.4th at p. 945.) This discussion of impacts on a broader geographic scale was described by the California Supreme Court as reasonably well-organized. (Id. at p. 950.)

Ebbetts Pass is correct in its assertion that the formally designated cumulative impacts assessment areas have been selectively logged. The Cedar Flat THPs general description of physical conditions states that stand age in the proposed harvest unit ranges from 60 to 90 years, and the entire ownership in the Upper Griswold Creek watershed has been harvested numerous times over the past 50 years under the selection system.

The pages of the administrative record cited by Ebbetts Pass, however, do not support its assertion that the prior selective logging conducted in the designated assessment areas resulted in significant impacts on forest wildlife by reducing the amount of optimal habitat. (See e.g., App. 503; 2954, 3451.)^[12] The pages contain no statement that a significant impact resulted from prior logging activity in the watersheds. Accordingly, Ebbetts Passs argument fails when considered at the watershed level.

The discussion by SPI of impacts on a broader geographic scale includes the statement that 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 not exhibit major gaps in their distribution that can be clearly attributed to logging (Verner et al. 1992). The Cedar Flat THP continues to discuss Area of Concern 5, a discussion that was summarized by the California Supreme Court and need not be repeated here. (See Ebbetts Pass, supra, 43 Cal.4th at pp. 946-947.) These portions of the Cedar Flat THP do not support Ebbetts Passs assertion that statements by SPI and CDF indicate that past logging activity has had a significant impact on wildlife.

At bottom, the portion of Ebbetts Passs argument concerned with past impacts of previous logging has failed to demonstrate that SPI or CDF did not proceed in a manner required by law. Instead, that portion of the argument is rooted in Ebbetts Passs disagreement with SPIs view of the facts regarding past logging activities. Claims of error based on factual disagreement are resolved under the substantial evidence standard. (See part VII., post.)

D. Failures to Acknowledge

Another ground for the alleged inadequacy of the THPs description of environmental setting concerns Ebbetts Passs contention that SPI refused to acknowledge the value of habitat that remained. In its opening brief, Ebbetts Pass contended SPI violated the law by providing a false impression that lands on which these THPs will occur are devoid of any usable habitat for owls, fishers and other forest species. In its supplemental brief on remand, Ebbetts Pass asserted that SPI failed to specify whether components of mature forest habitat existed within, or in the vicinity of, the project or assessment area .

SPI and CDF were able to limit their discussion of the existence and significance of old-growth forest by adopting the technical definition for late succession forest stand set forth in the Forest Practice Rules. (Cal. Code Regs., tit. 14.,  895.1.) That definition includes only stands of the stated characteristics that are at least 20 acres in size. Based on this definition, CDF responded to comments about the THPs contribution to the decline and fragmentation of old forest habitat as follows:

The [registered professional forester] certifies under Item #34 and within the biological assessment of the THP that there will be no harvesting in areas which meet the late succession forest stand definition. CDF finds that, given that the project area currently does not contain late seral stage habitat, the project will not result in any additional loss of old forests habitat beyond that which currently exists.

Ebbetts Pass has identified (1) no rule of law that prevents SPI and CDF from relying on the definition contained in the Forest Practice Rules and (2) no rule of law that requires SPI or CDF to acknowledge the value of small patches of old growth forest that might be present in the plan areas. The applicable lawthe Forest Practice Act, the Forest Practice Rules, certain chapters of CEQA, and case lawcreate no requirement that small patches of old growth forest be identified and discussed in a THP. For example, Technical Rule Addendum No. 2 includes a section relating to biological resources, which addresses the topics of late seral (mature) forest characteristics and late seral habitat continuity. Ebbetts Pass has not demonstrated a violation of these provisions in Technical Rule Addendum No. 2. Further, a requirement for small patch identification and discussion cannot be regarded as inherent in CEQA. (See  21083.1 [courts interpreting CEQA shall not impose procedural or substantive requirements beyond those explicitly stated in CEQA].) Also, this court cannot create such a requirement by rewriting the definitions included in the Forest Practice Rules.

Lastly, we note that the finding that the THPs do not involve harvesting in areas with late succession forest stands means that the Forest Practice Rule which specifically addresses the disclosure requirements related to such stands does not apply in this case. (Cal. Code Regs., tit. 14,  959.16.) To the extent that Ebbetts Passs argument is, in effect, an attempt to rewrite that Forest Practice Rule by expanding its scope, it must fail.

E. Conclusion

In summary, we conclude that Ebbetts Pass has failed to demonstrate that the descriptions of the environmental setting in the THPs violate applicable law.

III. Use of a THP-by-THP Analysis of Cumulative Impacts

Ebbetts Pass argues in its August 2008 supplemental brief on remand that the THPs cumulative impact analyses violate CEQA because they proceed on a THP-by-THP basis that violates the principle that cumulative impacts may be greater than the sum of a projects parts.

Because SPI and CDF discussed impacts on at least two different geographic scalesthe formally designated cumulative impacts assessment areas (planning watersheds) and the broader geographic scale approved by the California Supreme Courtwe will analyze this alleged inadequacy of the discussion about cumulative impacts at both those geographic levels.

A. Designated Planning Watersheds

None of the three THP analyses of cumulative impacts within the designated assessment area (planning watershed) considers impacts from the other two THPs that are the subject of this litigation. For example, the Cedar Flat THPs discussion of cumulative impacts in the Upper Griswold Creek State Planning Watershed does not consider the impacts of the Curry THP or the Base Camp THP.^[13]

This exclusion, however, is consistent with the cumulative impacts assessment area formally designated by each THP because the three proposed timber harvests are all in different watersheds. Consequently, a claim that the Cedar Flat THPs discussion of cumulative impacts should have considered the reasonably foreseeable impacts of the Curry THP and the Base Camp THP is, in effect, a claim that SPI and CDF erred by designating a too-small cumulative impacts assessment area.

We interpret the California Supreme Courts opinion in Ebbetts Pass to mean that the formal designation of planning watersheds as the cumulative impacts assessment areas did not violate the Forest Practice Act, the Forest Practice Rules, or CEQA. (See Ebbetts Pass, supra, 43 Cal.4th at p. 951 [[w]e hold only that this mode of analysis complied with the Forest Practice Rules as to the geographic scope required of a cumulative-impacts assessment].) Therefore, we conclude that the failure to include all three THPs in the portion of the cumulative impact analysis that was limited to the planning watershed was not a failure to proceed in a manner required by law.

B. Broader Geographic Scale

The THPs discussion of impacts on a broader geographic scale does not identify the past, present and reasonably foreseeable future projects with which the impacts of the proposed THP are aggregated. For example, the Cedar Flat THPs discussion of impacts in Area of Concern 5 does not identify the Curry THP, the Base Camp THP, or any other proposed project outside its designated planning watershed as a present or reasonably foreseeable future project in Area of Concern 5.

Despite no explicit acknowledgement of other present and future projects, the Cedar Flat THP does state [t]his THP lies in Area of Concern #5 and this area has and will continue to have stands types that are known to provide foraging, dispersal and nesting for California spotted owls. Presumably, the phrase this area refers to Area of Concern 5 and not the area of the THP. Also, the reference to what that area will continue to have presumably reflects SPIs prediction as to the reasonably foreseeable impacts from the Cedar Flat THP considered in conjunction with the reasonably foreseeable impacts from future projects that were not explicitly identified.

Furthermore, CDF appears to have made a finding of fact consistent with SPIs prediction of the reasonably foreseeable impacts within Area of Concern 5. CDFs response to comments concerning the impacts of the THP in conjunction with other logging operations includes the following statement: It should be noted that this THP lies within Area #5 and this area has and will continue to have stand types that are known to provide foraging, dispersal and nesting for California spotted owls.

Therefore, Ebbetts Passs assertion that SPI and CDF used a THP-by-THP analysis of cumulative impacts cannot be accepted as an accurate description of the analysis performed by SPI and CDF. Instead, deference is given to CDFs substantive factual determinations. (Ebbetts Pass, supra, 43 Cal.4th at p. 944.) Based on CDFs finding regarding the stand types that will continue to exist in Area of Concern 5 and the deference to which it is entitled in its role as the finder of fact, a reviewing court must infer that CDF considered the impact of reasonably foreseeable future projects. Accordingly, we reject Ebbetts Passs argument that SPI and CDF failed to proceed in a manner required by law because they did not cumulate the impacts of the three THPs when analyzing the cumulative impacts outside the designated planning watersheds.

In addition, our conclusion is consistent with the California Supreme Courts statement that the THPs, as well as CDFs 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. (Ebbetts Pass, supra, 43 Cal.4th at p. 945, italics added.) The court would not have used the italicized terms actually and cumulative if it believed that the discussion of impacts on the broader geographic scale did not actually aggregate the impacts of the THP with the impacts of other projects and events. This interpretation of the California Supreme Courts opinion is supported by the fact that the court was aware of our 2006 decision and the concern it expressed that SPIs discussion of impacts outside the designated watershed assessment area amounted to passing off an assessment of a projects impact for an assessment of the cumulative impacts of many projects.

IV. Elimination of Components of Mature Forest Habitat

Ebbetts Passs August 2008 supplemental brief on remand contends that the THPs failed to identify or acknowledge the significant impacts of eliminating components of mature forest habitat. We reject this contention for two reasons.

First, it assumes the existence of significant impacts. The existence of significant impacts is a question of fact to be resolved by the lead agency in its role as the finder of fact. Consequently, Ebbetts Pass is, in effect, arguing that CDF erred by failing to find the existence of the alleged significant impacts. This purported error must be reviewed under the substantial evidence standard.

Second, Ebbetts Pass has failed to identify any rule of law concerning the discussion of mature forest habitat that was violated. As discussed in part II.D, ante, CDFs approach followed the requirements relating to late succession forest stands set forth in Technical Rule Addendum No. 2 and Forest Practice Rules (Cal. Code Regs., tit. 14,  959.16) and is consistent with the definition of late succession forest stands (id.,  895.1; see part II.D, ante.)

V. Improper Baseline

A. Ebbetts Passs Argument

Ebbetts Passs August 2008 supplemental brief on remand contends that the THPs cumulative impact analyses improperly utilize an environmental baseline based on a predicted future lack of protection for wildlife on private lands. (Boldface and some capitalization omitted.) In other words, Ebbetts Pass contends that CDFs cumulative impacts analysis constituted a failure to proceed according to law, because it assumed an environmental baseline based on speculative future regulation, as opposed to actual impacts on the ground. (See Opening Brief, p. 30 .)

Page 30 of Ebbetts Passs September 2003 opening brief (1) noted CDFs reference to a United States Forest Service analysis that assumed no contribution from private lands and (2) asserted:

The inability of the federal planners to assess the potential contribution of private lands cannot, however, absolve CDF of its legal obligations to assess and mitigate the cumulative impacts of SPIs plan to clearcut 70% of their timber holdings, particularly where 80% of timber harvested in the Sierra Nevada comes from private lands.

In one sense, it appears that Ebbetts Pass is arguing that, just because the federal government is implementing a policy designed to avoid listing the California spotted owl regardless of what happens on private land, SPI cannot assume that the California spotted owl is safe and its timber operations will not have an adverse impact.

B. SPIs and CDFs Discussion of Federal Analysis

The Cedar Flat THP discussed the federal approach to analyzing wildlife habitat on a broad geographic scale:

For many of the same reasons that private land owners could not produce detailed project level assessments at the scale of the Sierra Nevada, the USFS analysis simply assumes that private lands will make little or no contribution to their landscape habitat goals. In essence the Federal Government assumes that all habitat for all species must be adequately maintained on federal lands without resort to private lands and formulates its plans accordingly. For that reason the USFS usually takes very conservative approaches to management decisions or planning constraints that it proposes and applies when implementing a project.

CDFs response to comments to the Cedar Flat THP demonstrates CDFs treatment of the region-wide trend analysis performed by the federal government:

It is common for the Federal managers in their general planning documents to assume that there is very little, if any, contribution to their goals and objectives from private land habitat. First, for many of the same reasons listed above, it is impractical to ascertain with any certainty what future actions might be taken by private, state o[r] local entities with any detail. So the Federal government has planned very conservatively and assumed no contribution from private lands. Their plans are reviewed and the final decision is supported by a finding that the proposed federal activities are not likely to increase the probability of a listing [of a species as threatened or endangered].

C. Existence of Legal Error

Normally, in the context of California environmental law, the concept of a baseline refers to the existing physical conditions that constitute the environment that may be affected by the proposed project. (WoodwardPark Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 710 (WoodwardPark).) Therefore, in normal circumstances, the relevant baseline environment can be thought of as a photographic snapshot of the physical conditions that exist at the time when the environmental review of the proposed activity begins. (Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273, 289.)

In this case, neither party has presented a persuasive reason for using an environmental baseline other than existing physical conditions. (See Woodward Park, supra, 150 Cal.App.4th at p. 710 [persuasive reasons needed to deviate from normal baseline].) Consequently, the question presented is whether SPI and CDF used a baseline other than the physical conditions existing at the time when the environmental review began.

The description of the watershed assessment area used in each THP appears to be based on existing physical conditions. For example, the Cedar Flat THP states that the [o]wnership in this watershed consists of 73% [SPI], 26% U.S. Forest Service, and 1% State Park. There is no indication that SPI regarded the physical conditions on the land it owned as something other than what existed at the time of the environmental review. Accordingly, Ebbetts Pass has failed to demonstrate that an inappropriate baseline was used in the discussion of environmental impacts within the watershed assessment area.

The discussion in the THPs regarding the federal governments approach to wildlife habitat contributions from private land does not justify our inferring that the federal governments assumptions were used by SPI and CDF to choose a baseline based on a hypothetical future rather than the current existing physical conditions. Therefore, we conclude that Ebbetts Pass has failed to demonstrate that the wrong baseline was used in analyzing environmental impacts on the geographic scale that was broader than the watershed assessment area.

VI. CDFs Responses to Public Comments

The California Supreme Court expressly declined to address separately Ebbetts Passs contention that CDFs responses to public comments regarding the California spotted owl and Pacific fisher were legally inadequate . (Ebbetts Pass, supra, 43 Cal.4th at p. 951, fn. 5.)

In it opening brief, Ebbetts Pass contended CDFs failure to provide meaningful responses to public comments violated Forest Practice Rules (Cal. Code Regs., tit. 14,  1037.8)^[14]and CEQA Guidelines section 15002, subdivision (j).^[15]Ebbetts Pass asserted that in responding to [its] comments showing that a larger assessment area is necessary, CDF abused its discretion by failing to provide non-conclusory responses based upon empirical data, scientific authorities and explanatory information in a manner that discloses the agencys mode of analysis, as required under both CEQA and the Forest Practice Rules.

In Environmental Protection & Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459 (EPIC), the California Supreme Court addressed CDFs failure to consider public comments on a draft sustained yield plan. (Id. at p. 484.) The court emphasized that a claim regarding a failure to consider public comments was distinct from a claim that CDF did not respond adequately to public comments. (Id. at p. 487.) Because Ebbetts Pass contends CDFs responses were not meaningful, as opposed to nonexistent, we conclude that the principles set forth in EPIC are inapplicable in this appeal.

In connection with the Cedar Flat THP, CDF stated that it received approximately 70 comment letters. CDF organized the points raised in the comment letters into 26 issues and responded to each issue. The statement of the issues and CDFs responses occupy 91 pages of the administrative record. In particular, issue Nos. 4 and 5 concerned whether the biological assessment area was broad enough and whether it should consider all of SPIs anticipated projects throughout the Sierra Nevada.

In Ebbetts Pass Forest Watch v. Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331, the Third Appellate District addressed similar arguments regarding the inadequacy of CDFs response to public comments. In rejecting the arguments, the court stated:

For example, in response to objections as to the size of the assessment area, [CDF] provided a nonconclusory discussion of the factors that led it to reject the concept of an assessment area the size of the Sierra Nevada as impractical. [CDF] cited the unavailability of data or information concerning projected and existing land uses throughout the region, independent actions of cities and counties, the actions of private landowners, and the diminution of impacts of the THP in such a large assessment area as the bases for its rejection of a Sierra Nevada-wide regional assessment area. We find [CDF] proceeded in the manner required by law by adequately responding to public comment. (Id. at p. 1358.)

We concur in this evaluation of CDFs responses to public comments concerning the three THPs in this case. Accordingly, we conclude that CDF did not abuse its discretion and did not fail to proceed in a manner required by law in responding to public comments.

VII. Substantial Evidence Supports CDFs Findings

Neither the California Supreme Court nor this court has addressed Ebbetts Passs assertion that no substantial evidence supports the finding of no significant impacts on either California spotted owls or Pacific fishers. (Ebbetts Pass, supra, 43 Cal.4th at p. 951, fn. 4.) Accordingly, we will address that question now.

CDF supported its conclusion that no substantial impact was likely to occur to the California spotted owl with the following statement:

Among the many factors considered was research that has found that a significant percentage of the known spotted owl nesting locations on federal land are found in small sawtimber (40%); that even-aged management will grow such small sawtimber, as can be seen throughout the Sierra as a result of even-aged timberstands that were created as a result of fire or harvest by man; that despite 100 years of logging activity in the Sierra, there are still owls present on private forest land; principle that each successional stage of a Sierran mixed conifer forest provides habitat elements utilized by some species; that this project represents 5% of the area of the assessment area; federal forest timberlands are being managed with far less disturbance from harvest than in past decades thereby tending to increase decadence and late seral or late successional characteristics; and most of the SPI lands are well interspersed with a mixture of private and public ownership.

Having reviewed the administrative record, we conclude that (1) existence of these factors is supported by the evidentiary record and (2) they constitute substantial evidence that supports CDFs finding of fact.

For example, the evidence that California spotted owls will nest in small sawtimber and the source of that evidence was identified by CDF as follows: Over 40% of known California spotted owl nests on National Forest land in small sawtimber (trees of less than 24" dbh). (Verner et al. 1992)

The fact that Ebbetts Pass can point to evidence that conflicts with SPIs evidence and the inferences that CDF has drawn from that evidence is not enough to justify overturning CDFs findings. Reviewing courts only determine if substantial evidence exists; we do not interfere with the agencys fact finding role by reweighing that evidence. (Friends of the Santa ClaraRiver v. Castaic Lake Water Agency (2004) 123 Cal.App.4th 1, 9.)

VIII. Herbicide Use

A. Supreme Courts Conclusions Regarding Herbicide Use

The California Supreme Court applied the substantial evidence standard and concluded that 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. (Ebbetts Pass, supra, 43 Cal.4th at p. 955.)

In addition, the court rejected the contention that CDFs response to public comments on the Cedar Flat THP was inadequate because CDF relied on information not contained in the administrative record . (Ebbetts Pass, supra, 43 Cal.4th at p. 957.)

The court, however, left open the possibility that issues relating to herbicide use remained to be considered on remand. Footnote 6 of the opinion provided in full:

Plaintiffs also maintain the THPs 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).) (Ebbetts Pass, supra, 43 Cal.4th at p. 956, fn. 6.)

B. Contentions Regarding Impact of Herbicide on Forest Understory

1. Ebbetts Passs contentions

With respect to the question whether SPI and CDF inadequately disclosed the true impacts of herbicide use on the mix of plants in the forest understory, Ebbetts Pass contends that it raised two separate claims, subject to review under two different standards. First, Ebbetts Pass contends CDF committed procedural error by failing to include any discussion of this mechanism of impacts. Second, Ebbetts Pass contends the record lacks substantial evidence to support CDFs finding that the impacts from future herbicide use will not be significant.

2. CDFs and SPIs response

CDF contends there are no issues regarding herbicide use for this court to address. CDF argues that Ebbetts Pass has engage[d] in a long, convoluted, and ultimately confusing exercise lacking both logic and legal basis in an effort to manufacture an issue for review on remand. Similarly, SPI contends that the California Supreme Court already resolved the issue and that Ebbetts Passs argument on remand is simply an attempt to reraise that point.

C. CDFs Discussion of Herbicide Impact

CDF responded to comments concerning the Cedar Flat THP by discussing six herbicides that SPI might use in the harvest areas. For each herbicide, CDF specifically found there is no substantial evidence that [the herbicide] use would be [sic] provide a significant adverse environmental impact when used in accordance to label or other regulatory restrictions and when used in reforestation in the typical manner.

In response to public comments that the Cedar Flat THP should have included more specific information about the use of herbicides and the impacts of those herbicides, CDF stated:

Biological effects of herbicide use can vary depending on the number of applications and the timing of the applications, but generally, CDF field observations would indicate that none of these materials are 100% effective in eliminating brush, forbs or weeds. All of the products have labeled vegetation where the material is effective, but even a total elimination of these labeled species is not typically gained, although there may be stunting of the growth of some of these species for a time. Certainly, it could be expected that there would be a reduction of herbs, grasses and forbs for a number of years when compared to an area cleared by fire or mechanical means where no brush control methods were used at all. That can be expected since the purpose of the product is to reduce competition for sunlight, water and nutrients in order for planted conifers to gain a foothold and begin to grow. Since the even-aged regeneration units are spaced out over time and over the area in accordance with BOF rules, other units that have brush, forb or weed growth will be available nearby so that there is not a total elimination of a variety of species useful for wildlife habitat and forage on any large landscape basis. As stated previously, the purpose of herbicide use on these forestlands is not to eliminate brush, forb and weed species, but rather it is needed to give the tree seedlings an opportunity to outgrow the competition and get up to a superior height were [sic] the trees are able to control the site by the natural process of dominating available sunlight.

In view of this general discussion, we must reject Ebbetts Passs first contention that CDF failed to include any discussion of the impacts of herbicide on the plants in the forest understory.

With respect to Ebbetts Passs second contention that the record lacks substantial evidence to support CDFs finding that the impacts of future herbicide use will not be significant, we conclude that this finding is supported by sufficient evidence.

CDFs finding is based on the assumption that the reasonably foreseeable use of herbicide will be in accordance with the instructions on the herbicides label and applicable regulations and will be consistent with typical past practices. Both of these underlying assumptions are supported by substantial evidence.

For instance, CDF could reasonably infer that, because SPIs herbicide use will be done pursuant to the prescription of a licensed pest control advisor, the use will be in accordance with applicable instructions and regulations. Furthermore, in trying to predict what future herbicide use will occur, CDF could reasonably infer that the foreseeable use will be similar to the typical use that occurred in the past.

From these intermediate facts and the lack of any evidence in the record that SPIs past herbicide use has resulted in significant environmental impacts, CDF could reasonably infer that the reasonably foreseeable impacts of future herbicide use will not be significantly adverse to the environment.

D. Mitigation Measures

We do not reach the issue whether the THPs inadequately disclosed the need for stronger mitigation measures because, as observed by Ebbetts Pass, the issue of mitigation only arises if there are significant environmental impacts that need to be mitigated.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to respondents.

__________________________

DAWSON, J.

WE CONCUR:

________________________________

WISEMAN, Acting P.J.

________________________________

CORNELL, J.

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^[1]Public Resources Code section 4511 et seq. All further statutory references are to the Public Resources Code, unless indicated otherwise.

^[2]California Code of Regulations, title 14, section 895 et seq.

^[3]Section 21000 et seq.

^[4]To update the facts regarding the regulatory status of the California spotted owl (Strix occidentalis occidentalis), we note that a petition to list the California spotted owl under the Endangered Species Act of 1973, as amended, that was pending before the United States Fish and Wildlife Service at the time of our earlier decision was rejected. (71 Fed.Reg. 29886 (May 24, 2006) [12-month finding stated that, based on the best available information, the petition was not warranted].)

^[5]Code of Civil Procedure section 1094.5, subdivision (b). We assume that the Forest Practice Rules are law for purposes of determining whether CDF proceeded in the manner required by law under Code of Civil Procedure section 1094.5, subdivision (b).

^[6]Further reference to California Code of Regulations, title 14, section 15000 et seq. shall be to the CEQA Guidelines.

^[7]Further references to Technical Rule Addendum No. 2 shall be as set forth in California Code of Regulations, title 14, section 952.9.

^[8]This case involves the application of CEQA Guidelines section 15125 and not the Forest Practice Act or the Forest Practice Rules. Consequently, we will not discuss it further.

^[9]By answering in the negative, SPI avoided the requirement to identify the activities, describing their location, impacts and affected resource subject(s). (Cal. Code Regs., tit. 14,  952.9, item (2).)

^[10]We recognize that this finding regarding past land use activities is distinct from the typical cumulative impact analysis that aggregates the adverse impacts of past, present, and reasonably foreseeable future projects with the impacts of the proposed project. (See Cal. Code Regs., tit. 14,  952.9, item (3); CEQA Guidelines,  15355 [definition of cumulative impacts].)

^[11]For example, the Cedar Flat THP formally designated the Upper Griswold Creek State Planning Watershed as the cumulative impact assessment area, or CIAA, used in responding to the items in the checklist set forth in the Forest Practice Rules. (Cal. Code Regs., tit. 14,  952.9.)

^[12]In addition to the three cited pages, our review has considered the pages of the administrative record cited by Ebbetts Pass in the next three paragraphs of its opening briefspecifically, pages 47, 108, 1865, 1976, 2252, 2634, 2954, 3134, 3211, and 3449.

^[13]We note that in responding to checklist item (1), the Cedar Flats THP did identify future projects within the watershed. The Cedar Flats THP mentioned SPIs Mckee plan, which was expected to consist of 254 acres; SPIs Mckee A plan, which was expected to consist of 682 acres; and a United States Forest Service sale that was expected to consist of a total of 170 acres.

^[14]The last sentence of this Forest Practice Rule provides: The notice of conformance shall include a written response of the Director to significant environmental issues raised during the evaluation process. (Cal. Code Regs., tit. 14,  1037.8.)

^[15]CEQA Guidelines section 15002, subdivision (j) provides: Public Involvement. Under CEQA, an agency must solicit and respond to comments from the public and from other agencies concerned with the project. See Sections 15073, 15086, 15087 and 15088.