Big Creek Lumber Co. v. County of Santa Cruz

Filed 10/24/06 Big Creek Lumber Co. v. County of Santa Cruz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Having previously granted review, the California Supreme Court filed its decision in this case on June 29, 2006, as modified August 30, 2006. (See Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139.) The Supreme Court reversed the judgment previously rendered by this court and remanded the matter for further proceedings consistent with the views expressed in its opinion.

INTRODUCTION

The central question in this case is the preemptive effect of state forestry law on a local government’s power to regulate land use. The relevant state statutory law includes the Z’berg-Nejedly Forest Practice Act of 1973 (Forest Practice Act or FPA, Public Resources Code section 4511 et seq.), and the California Timberland Productivity Act of 1982 (Timberland Productivity Act or TPA, Government Code section 51100 et seq.). The California Supreme Court concluded that the local legislation at issue before it was not preempted by state timber law.

BACKGROUND

This litigation was initiated by plaintiffs/petitioners Big Creek Lumber Company and Homer T. McCrary (collectively, Big Creek), and the Central Coast Forest Association (CCFA). Plaintiffs attacked certain actions by defendants/respondents Santa Cruz County and the California Coastal Commission, asserting preemption and other grounds. The challenged local legislation included several resolutions and ordinances adopted by Santa Cruz County, which this court identified as (1) zone district, (2) riparian, and (3) helicopter regulations.[1] Also at issue was a decision by the California Coastal Commission certifying one of those measures as an amendment to the county’s local coastal program.

In the trial court, the preemption issues were bifurcated and heard first. The court concluded that most but not all of the challenged provisions of the County’s ordinances were preempted by the Forest Practice Act or the Timberland Productivity Act, and it entered judgment accordingly.

Resolving appeals from plaintiffs on the one hand, and from the County and the Coastal Commission on the other hand, this court invalidated the three challenged County ordinances in their entirety on preemption grounds. The California Supreme Court granted the County’s petition for review of our decision as to the zone district and helicopter ordinances only.

OUR PRIOR APPELLATE DECISION

After setting forth the applicable principles of statutory construction and reviewing the relevant statutory schemes, we analyzed each of the three challenged local measures in turn. In an opinion authored by Justice Wunderlich, this court concluded that each of the ordinances was preempted by the Forest Practice Act. In doing so, this court respectfully disagreed with a decision by the First District Court of Appeal, which had reached a contrary conclusion in a case involving a similar preemption argument. (Big Creek Lumber Co. v. County of San Mateo (1995) 31 Cal.App.4th 418, 424-427.) The First District’s decision distinguished between how timber operations would occur, a matter of state law, and where they would occur, which traditionally falls within local zoning power -- a distinction questioned by this court.

Our analysis began with the County’s zone district ordinance. The conclusion reached by this court was that the ordinance was expressly preempted by the Forest Practice Act because it purported to regulate the conduct of timber operations, which was prohibited by the statute. In light of the determination that the FPA expressly preempted the ordinances, we did not reach the issue of implied preemption. Nor did we reach the question of preemption under the Timberland Productivity Act.

This court next addressed the riparian ordinance, likewise concluding that it was expressly preempted because it conflicted with the Forest Practice Act. Moreover, we concluded, the ordinance contradicted regulations promulgated under the FPA. As before, we did not reach the issue of implied preemption, nor did we consider preemption under the Timberland Productivity Act

Finally, addressing the helicopter ordinance, this court agreed with the trial court’s determination that the ordinance represented an attempt to regulate timber operations in contravention of the FPA. Again, that conclusion was based solely on express preemption under the Forest Practice Act.

THE SUPREME COURT’S OPINION

The Supreme Court granted the County’s petition for review, which addressed the zone district ordinance and the helicopter ordinance. (See Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1146.) The stream ordinance was not at issue before the high court. (Id., fn. 1.) After analyzing the two ordinances that were before it, the court concluded that neither was preempted. (Id. at p. 1162.) The Supreme Court therefore reversed this court’s decision. (Id. at p. 1163.) In doing so, it explicitly endorsed the reasoning of Big Creek Lumber Co. v. County of San Mateo, supra, 31 Cal.App.4th 418. (Big Creek Lumber Co. v. County of Santa Cruz, at pp. 1152-1153.)

In the words of the California Supreme Court, the relevant provision of the Forest Practice Act, Public Resources Code section 4516.5, subdivision (d), “contains no express reference to ‘zoning,’ nor does it bar localities in terms from regulating the location of timber operations. Rather, counties are forbidden to ‘regulate the conduct’ of timber operations. As the court in Big Creek v. San Mateo pointed out, in common parlance an ordinance that avoids speaking to how timber operations may be conducted and addresses only where they may take place falls short of being ‘a clear attempt to regulate the conduct’ thereof.” (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at pp. 1152-1153, citing Big Creek Lumber Co. v. County of San Mateo, supra, 31 Cal.App.4th at p. 424.) “In sum,” the court concluded, “plaintiffs have not identified a clear statement by the Legislature of an intent, when enacting the FPA, to preempt traditional local zoning authority over the location of timber operations.” (Big Creek Lumber Co. v. County of Santa Cruz, at p. 1161.)

I. Zone District Ordinance

Specifically addressing the County’s zone district ordinance in light of the Forest Practice Act, the court said “local zoning ordinances, like the County’s zone district ordinance, that speak to the location of timber operations but not to the manner in which they are carried out, are not expressly preempted by section 4516.5(d).“ (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1157.) The court similarly concluded that the County’s zone district regulations are not impliedly preempted. (Id. at pp. 1157-1162.) The high court mentioned the Timberland Productivity Act in its discussion. (See, e.g., id. at p. 1153 [“neither the TPA nor the FPA suggests localities are restricted in what uses they may prohibit outside TPZ zones”]; id. at p. 1154 [“section 4516.5(d) was added to the FPA during the same legislative session in which the TPA was amended”].) But it rested its preemption determination on the FPA. (Id. at p. 1151.)

II. Helicopter Ordinance

Turning to the challenged helicopter ordinance, the Supreme Court reached the same conclusion, finding that the ordinance was not preempted by the Forest Practice Act because it regulated only where -- not how -- timber operations could occur. The court thus stated: “Like the zone district ordinance’s specification of permissible zone districts for timber harvesting, County’s helicopter ordinance is a locational zoning provision that regulates not how timber operations may be conducted, but rather where they may take place. (See Big Creek [Lumber Co.] v. [County of] San Mateo, supra, 31 Cal.App.4th at pp. 424-425.) The helicopter ordinance does not attempt to locally regulate the removal of timber, as it speaks neither to whether nor how helicopters may be used to remove timber.” (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1162.) As before, the high court mentioned the Timberland Productivity Act in its discussion. (Ibid. [“both the FPA and the TPA expressly contemplate the survival of localities’ power to abate nuisances”]) But its holding rests on the Forest Practice Act. (Ibid. [“the helicopter ordinance is preempted neither expressly by section 4516.5(d) nor impliedly by general state forestry law”])

Based on the foregoing determinations, the court reversed the judgment of this court, and it remanded the cause for further proceedings consistent with its opinion.

CONSIDERATION AFTER REMITTUR

The high court’s opinion in this case explicitly validates two of the three ordinances analyzed in our prior appellate decision (the zone district and helicopter ordinances), but it does not directly address the third (the riparian or stream ordinance).

I. Zone District Ordinance; Helicopter Ordinance

As mandated by the Supreme Court’s ruling, we uphold both the zone district ordinance and the helicopter ordinance against plaintiffs’ preemption challenge. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

II. Riparian Ordinance

As noted above, in a portion of our prior appellate decision that was not placed in issue by the County’s petition for review, we concluded that the County’s riparian ordinance conflicted both with the Forest Practice Act itself and with regulations promulgated under that Act, because stream protection falls under the rubric of the conduct of timber operations.

Addressing the statute in our prior opinion, this court stated that the County’s riparian ordinance improperly invades the area occupied by the Forest Practice Act itself - the conduct of timber operations. As we observed there, for purposes of the FPA provision that limits the authority of local government, “timber operations” is defined to include the “protection of stream character and water quality.” (Pub. Resources Code, § 4516.5, subd. (a).)[2]

After discussing the interplay between the riparian ordinance and the Forest Practice Act, our prior opinion next addressed regulations promulgated under the statute, starting with the observation that the Legislature has reposed authority for watercourse protection in the State Forestry Board under the FPA. (See Pub. Resources Code, § 4551.) The statute thus provides in relevant part: “The board shall adopt district forest practice rules and regulations to assure the continuous growing and harvesting of commercial forest tree species and to protect the soil, air, fish, and wildlife, and water resources, including, but not limited to, streams, lakes, and estuaries.” (Ibid.) “Rules and regulations shall apply to the conduct of timber operations and shall include, but shall not be limited to, measures for water quality and watershed control .” (Id., § 4551.5, italics added.)

Pursuant to its statutory authority, the State Forestry Board has promulgated a number of pertinent regulations. (See Cal. Code Regs., tit. 14, § 916 et seq.) Among other things, the regulations address riparian buffers by establishing watercourse and lake protection zones. (Id., §§ 916.4, 916.5.) The width of those zones is determined by a specialized formula set forth in the regulations, with some discretion accorded the registered professional forester to alter the width of the buffer. (Ibid.) The standard width of a watercourse and lake protection zone ranges from 50 feet to 150 feet, though it depends on a number of factors specified in the regulation. (See id., § 916.5, Table 1, p. 250.)

By contrast, the County’s riparian ordinance establishes unitary buffer zones of 50 feet from perennial streams and 30 feet from intermittent streams. The ordinance’s 50-foot corridor for perennial streams is at variance with the specialized formula for establishing buffer width provided by the state law regulations. As for the 30-foot buffer for intermittent streams, that requirement likewise is at odds with watercourse and lake protection zone widths set forth in the state regulations. (See Cal. Code Regs., tit. 14, § 916.4, 916.5; see also, id., § 895.1 [defining “watercourse”]; compare Public Res. Code, § 4528, subd. (f) [defining “stream”] with Santa Cruz County Code, § 16.30.030 [defining “intermittent stream”].)

For these reasons, we concluded in our prior opinion, the ordinance cannot operate concurrently with the regulations promulgated by the State Forestry Board, without conflict between the two. (See, e.g., Water Quality Assn. v. City of Escondido (1997) 53 Cal.App.4th 755, 765 [preemption doctrine applied where “two acts are irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation”].) Timber harvesting near streams that would be allowable under state law riparian regulations could be banned under the County’s stream ordinance. (Ibid.) Given that conflict, our prior opinion concluded, the ordinance is invalid.

Nothing in the California Supreme Court’s decision in this case dictates a different result from that reached previously by this court. To the contrary, we believe that the high court’s decision bolsters our prior conclusion that this particular ordinance is preempted.

As explained above, a central theme of the Supreme Court’s decision in this case is the distinction between the conduct of timber operations -- how they are performed -- and the location of such operations -- where they are performed. In the abstract, the County’s riparian buffer zones could be viewed as prescribing only “the location of timber operations” -- traditionally the province of local zoning authority. (See Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1161.) In fact, the County calls them “locational criteria for timber cutting and removal.” When viewed against the state law statutory and regulatory landscape, however, it is clear that this particular ordinance intrudes into the preempted field of how timber operations are conducted. And as the high court recognized in this case, the “how” of timber operations is the exclusive province of state law under the Forest Practice Act. (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1154.) In the words of the court: “That the Legislature intended the phrase ‘regulate the conduct’ in [Public Resources Code] section 4516.5(d) to preclude only local regulations that affect how timber operations are conducted is borne out by the kinds of issues the Board, under the rubric of ‘the conduct of timber operations,’ is in its rules and regulations statutorily required to address. (See [Public Res. Code] § 4551.5.) Fire prevention and control, soil erosion control, site preparation, water quality and watershed control, flood control, disease prevention and control (ibid.) -- these clearly are matters relating to the process of carrying out timber operations.” (Ibid., italics added.)

To reiterate, the Forest Practice Act provides in pertinent part: “Rules and regulations shall apply to the conduct of timber operations and shall include, but shall not be limited to, measures for water quality and watershed control .” (Public Res. Code § 4551.5, italics added.) The State Forestry Board regulations at issue here are measures for water quality control; their purpose “is to ensure that the beneficial uses of water, native aquatic and riparian species, and the beneficial functions of riparian zones are protected from potentially significant adverse site-specific and cumulative impacts associated with timber operations.” (Cal. Code Regs., tit. 14, § 916.) As our high court recognized in its opinion in this case, such measures “clearly are matters relating to the process of carrying out timber operations.” (Big Creek Lumber Co. v. County of Santa Cruz, supra, 38 Cal.4th at p. 1154.) As water quality measures, these regulations concern the conduct of timber operations. Because the County’s riparian ordinance conflicts with them, it cannot stand.

In sum, we reconfirm the conclusion that we reached in our prior appellate decision, which was unaffected by the Supreme Court’s decision -- that the County’s riparian ordinance is preempted because it is in conflict with State Forestry Board regulations that dictate watercourse buffers in connection with timber harvest operations. As explained, that conclusion is consistent with the Supreme Court’s decision in this matter.

III. Plaintiffs’ Remaining Claims

The trial court’s judgment provides in part as follows: “4. Petitioners’ due process and equal protection claims have previously been stricken from the petition. Judgment on those claims is entered in favor of Respondents. 5. As Petitioners have stipulated to the dismissal of any remaining claims not addressed by this Judgment, the same are dismissed and judgment thereon is entered in favor of Respondents.”

In its notice of appeal, Big Creek identified paragraph 4 of the judgment as an appellate issue. In its appellate briefs, however, Big Creek failed to argue or support any claim that the trial court erred in dismissing its constitutional claims. Where “plaintiffs have presented no argument or authority in support of” a particular contention, that “aspect of plaintiffs’ appeal has been abandoned.” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.)

Under these circumstances, we conclude, no further issues remain for resolution by the trial court.

SUMMARY OF CONCLUSIONS

I. As determined by the California Supreme Court in this matter, neither the County’s zone district ordinance nor its helicopter ordinance is preempted by state forestry law; both are valid. II. As to the County’s riparian ordinance, which the California Supreme Court did not consider, we reconfirm our earlier conclusion that it is preempted by the Forest Practice Act and by regulations promulgated thereunder by the State Forestry Board. III. There are no other issues remaining in this case.

DISPOSITION

We reverse the judgment of the trial court, which was entered September 21, 2001, and we remand the matter to the trial court with the following instructions:

(1) Concerning both the zone district ordinance (Santa Cruz County Res. No. 493-99 & Santa Cruz County Ord. No. 4577), and the helicopter ordinance (Santa Cruz County Ord. No. 4572), the court shall enter judgment for defendants, the County of Santa Cruz and the California Coastal Commission, declaring that the ordinances are valid and enforceable, and the court shall vacate the peremptory writ of mandate insofar as it directs the County to annul or repeal these enactments; and

(2) Concerning the riparian ordinance (Santa Cruz County Ord. No. 4571), the court shall enter judgment for plaintiffs, Big Creek Lumber Company, Homer T. McCrary, and the Central Coast Forest Association County of Santa Cruz, declaring that the ordinance is invalid and unenforceable.

Defendants shall have costs on appeal.

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McAdams, J.

WE CONCUR:

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Elia, Acting P.J.

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Mihara, J.

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[1] The three sets of local measures, all enacted in 1999, are more fully described as follows: (1) the zone district ordinance restricted timber harvesting to specified zone districts within the County (Santa Cruz County Res. No. 493-99 & Santa Cruz County Ord. No. 4577); (2) the riparian or stream ordinance barred timber harvesting operations in certain areas adjacent to streams and residences (Santa Cruz County Ord. No. 4571); and (3) the helicopter ordinance limited the parcels on which helicopter timber harvesting operations could occur (Santa Cruz County Ord. No. 4572).

[2] As more fully provided in the statute: “Individual counties may recommend that the board adopt additional rules and regulations for the content of timber harvesting plans and the conduct of timber operations to take account of local needs. For purposes of this section, ‘timber operations’ includes, but is not limited to, soil erosion control, protection of stream character and water quality, water distribution systems, flood control, stand density control, reforestation methods, mass soil movements, location and grade of roads and skid trails, excavation and fill requirements, slash and debris disposal, haul routes and schedules, hours and dates of logging, and performance bond or other reasonable surety requirements for onsite timber operations and for protection of publicly and privately owned roads that are part of the haul route.” (Pub. Resources Code, § 4516.5, subd. (a).)