Filed 12/12/05

CERTIFIED FOR PARTIAL PUBLICATION^*

 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

 

 

ENVIRONMENTAL PROTECTION

INFORMATION CENTER et al.,

Plaintiffs and Respondents, A104828

v.

CALIFORNIA DEPARTMENT OF (Humboldt County

FORESTRY AND FIRE PROTECTION Super. Ct. No. CV990445)

et al.,

Defendants and Appellants;

PACIFIC LUMBER COMPANY et al.,

Real Parties in Interest and Appellants.

_______________________________________

 

[And three other cases.^*]

_______________________________________

 

In this appeal from an administrative mandamus proceeding, we review environmental decisions concerning the Headwaters Forest Project made by two state agencies--the California Department of Forestry and Fire Protection and the California Department of Fish and Game--for land owned by Pacific Lumber Company, Scotia Pacific Company LLC, and Salmon Creek Corporation (collectively, PALCO). The trial court found that the state agencies failed to proceed in the manner required by law, and the court granted a peremptory writ commanding the state agencies to set aside their administrative determinations. We reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

PALCO owns approximately 211,000 acres of timberlands in Humboldt County that have been used for commercial timber production for as long as 120 years. In 1986 PALCO was acquired by Maxxam Incorporated, and in order to pay off Maxxam's debt for the buyout, PALCO began cutting down old growth redwoods at a faster rate than ever before. The deforestation led to litigation and considerable local protest.

In the 1990s, as a result of federal and state litigation, PALCO was enjoined from harvesting a particular stand of old-growth timber that served as the habitat for the marbled murrelet, an endangered bird. PALCO, in turn, filed lawsuits alleging an unlawful taking by the state and federal governments of the land declared unusable for timber production and harvesting.

To resolve the existing controversies, PALCO entered into the Headwaters Agreement of 1996 with the State of California and the United States. Under the agreement, PALCO agreed to dismiss its pending lawsuits and to sell an old-growth forest known as the Headwaters Forest and other land to the state and federal governments to create a permanent wildlife preserve. In return, PALCO was to be allowed to harvest its remaining timberlands subject to the review and approval of certain plans and permits by state and federal agencies.

By February 1998, the permit approvals had not yet occurred, and the parties entered into a Pre-Permit Application Agreement in Principle that outlined the actions to be taken with respect to the federally-mandated Habitat Conservation Plan and the state Sustained Yield Plan. The Pre-Permit Application Agreement in Principle called for federal environmental review under the National Environmental Policy Act to be combined with state environmental review under the California Environmental Quality Act. On October 2, 1998, a joint draft environmental impact statement and environmental impact report (EIS/EIR) was issued for the Headwaters Forest acquisition and PALCO's Habitat Conservation Plan and Sustained Yield Plan.^[1] The draft EIS/EIR explained that the matters under review consisted of the entire package of approvals needed for the Headwaters Agreement, including the Sustained Yield Plan, the federal and state Incidental Take Permits, and a Streambed Alteration Agreement.

Meanwhile, federal and state funding and approval were required in order to implement the Headwaters Agreement. In October 1997, Congress authorized an appropriation of $250 million to purchase the Headwaters Forest from PALCO, conditioned upon federal and state agency approval of the plans and permits. Under the federal legislation, all permits had to be approved on or before March 1, 1999. Likewise, in August 1998 the state Legislature enacted Assembly Bill No. 1986 (AB 1986) to authorize $245.5 million for the purchase of the Headwaters Forest. By the time the state Legislature acted, a draft Habitat Conservation Plan and Sustained Yield Plan had been released for public review and comment. The Legislature required as a condition of its funding that additional restrictions be placed on PALCO's timber operations beyond those contained in the draft Habitat Conservation Plan and Sustained Yield Plan.

The draft EIS/EIR, issued October 2, 1998, noted that PALCO's draft Habitat Conservation Plan and Sustained Yield Plan had not yet been modified in response to AB 1986, but an environmental analysis was included in the draft EIS/EIR of not only the then-current version of the Habitat Conservation Plan and Sustained Yield Plan but also of the components required by AB 1986 â€