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For the Record: CDF's Attempts to Ignore and Evade Its Legal Responsibilities in the Management of Jackson State Forest
Vince Taylor, Ph.D.
September, 2004

Table of Contents

 

Introduction. 1

Legal Actions and Court Decisions. 2

Mendocino Superior Court Case No. CV 83611. 2

Campaign asks court to halt logging. 2

Court Stops State from Logging Jackson State Forest 2

Excerpt from the decision to grant a preliminary injunction, Judge Richard Henderson, Mendocino Superior Court, Case No. CV 83611, May 18, 2001. 3

CDF and Board of Forestry Attempt to Circumvent Court Ruling. 4

Appeals Court Rejects Legality of CDF Attempt to Evade Injunction. 4

Related lawsuit filed against the Board of Forestry – Case CV 84953. 5

State Agrees to Logging Halt in Jackson State Forest. 5

Mendocino Superior Court Case No. CV 83611. 6

State Sued Over Jackson State Forest EIR.. 6

Judge Denies Preliminary Injunction on Jackson State Logging. 6

Logging Starts in Jackson State Forest 6

Court Grants Stay of Logging in Jackson State Forest 6

Appeals Court Extends Logging Halt in Jackson State Forest 7

Court Rules Jackson State Forest Environmental Report Invalid. 8

Summary from the decision of Judge Richard Henderson, Mendocino Superior Court, Case No. CV 89022, July 30, 2003. 8

Appeals Court Extends Logging Halt and Lectures CDF. 9

State Pays $200,000 for Jackson Forest Lawsuit Costs. 9

Disposition by Judge Richard Henderson in his Ruling on Petitioners' Motion for Attorney Fees in Case No. 89022, Campaign to Restore Jackson State Redwood Forest, et. al. versus California Department of Forestry and Fire Protection and the Board of Forestry. 10

Appeals Court Affirms Fee Award in Jackson Forest Lawsuit 10


For the Record: CDF's Attempts to Ignore and Evade Its Legal Responsibilities in the Management of Jackson State Forest
Vince Taylor, Ph.D.

Introduction

The California Department of Forestry (CDF) strongly opposed SB 1648, Senator Chesbro's bill to reform the management of state forests generally and Jackson State Forest in particular.

CDF succeeded in getting the governor to veto the bill. The governor should have ignored, but did not, the advice and arguments of CDF. CDF's record of mismanagement of Jackson State Forest, as documented in the decisions of the courts, disqualifies it as an honest, competent source of information or advice.

CDF's actions with respect to SB 1648 were a continuation of its unremitting opposition to all efforts to get it to shift its focus at Jackson State Forest from industrial timber production to wildlife and salmon habitat, watershed health, research, recreation, and restoration of old-growth ecology.  

Beginning in the mid-1990's, when the public started requesting that CDF change its policies and management plans to reflect current science and public concerns, CDF rejected all public advice, including that of its own appointed advisory committee. It single-mindedly focused on planning and implementing large timber harvests to generate revenue for its state forestry programs. It ignored its legal responsibility to keep its management plan current, despite being warned in 1995 that the 1984 plan had gone beyond it expiration date and rejected requests in 2000 to stop timber harvesting until the outdated management plan was updated.

A citizen group, the Campaign to Restore Jackson State Redwood Forest, turned to the courts in June of 2000 to make CDF follow the law that it refused to acknowledge. CDF's behavior in and out of court since that time is shocking. It's behavior might be justifiable for a profit-driven timber company, but not for the state agency charged with enforcing the environmental laws designed to protect the state's forest resources.

In the courts, CDF has:

·         Contested the law at every point;

·         Blamed the citizens for the financial consequences of its own legal malfeasance when the courts held against them;

·         Attempted to evade one court decision by requesting the Board of Forestry to eliminate the requirement the management plans be "current;"

·         Appealed a fee decision without any substantive legal grounds in a transparent attempt to deny the citizen group the money to finance a second pending suit;

·         Ignored the recommendations of its own advisory committee when preparing a court-ordered updated management plan for Jackson Forest;

·         Rushed a court-ordered Environmental Impact Report (EIR) for Jackson Forest in an attempt to begin logging as soon as possible, rather than taking the time required to responsibly fulfill the requirements of the law;

·         Allowed large-scale tree felling to begin in Jackson Forest the day after a judge denied a preliminary injunction, despite the judge's finding that the citizens were very likely to prevail in their action against the EIR and that he would invalidate the approval of the recently developed new management plan;

·         Argued against a stay of logging granted by the court of appeals within two hours of its filing, five days after the logging started;

·         Disputed in court a clear prior settlement that barred timber harvest operations until a new management plan was in place.

Outside of the court, CDF has steadfastly refused to acknowledge publicly its mismanagement and move to correct the deficiencies. Instead CDF has:

·         Conducted a public relations campaign that inaccurately painted a glowing picture of its management of Jackson State, rewriting history to serve its own purposes and ignoring the indictments of its performance by the courts;

·         Repeatedly publicly blamed "environmentalists" for shutting down logging in the forest;

·         Ignored all calls for management reform, including those made by its appointed advisory committee;

·         Refused to provide any constructive input to the drafting of the state forest reform bill, SB 1648.

·         Conducted a public campaign against SB 1648, untruthfully saying it would turn Jackson Forest into a "park" and eliminate its use for forestry research.

Legal Actions and Court Decisions

In all, there have been five related legal cases/actions since the first suit was filed in 2000. In every one of these, the courts decided strongly in favor of the citizens and law and against CDF, or the actions were withdrawn as part of a settlement incorporating the initial demands of the citizens. In its decisions, the courts repeatedly rejected CDF's contentions, criticized them for ignoring clear legal requirements, and held them responsible for the failure to follow the law and the impact on state finances and timber jobs.

Following are excerpts from citizen press releases and court decisions related to the legal cases and actions. They document CDF's sorry record of ignoring its responsibilities to the law and to the public.

Mendocino Superior Court Case No. CV 83611

Campaign asks court to halt logging

On June 14, 2000 the Campaign filed suit in Mendocino County Superior Court to halt logging in Jackson Demonstration State Forest.  The suit charges that the California Department of Forestry (CDF) has failed to meet the legal requirements to keep its management plan "current" and  to conduct logging operations in Jackson Forest in accordance with a "current management plan."  

CDF, which operates Jackson State Forest, last updated the management plan in 1983.  By its own terms, the 1983 plan was to have "a major review at the midpoint of its effective period (1987), and be completely revised in 1992."   Thus, for the past eight years, CDF has been illegally conducting logging operations without a current management plan.

The suit asks the court to rule that current operations are illegal and, in the event CDF approves new logging plans, to issue an injunction barring CDF from carrying them out until a new management plan is approved.

Court Stops State from Logging Jackson State Forest

May 18, Ukiah. In a strongly worded decision, the Superior Court of Mendocino County today issued a Preliminary Injunction that stops the California Department of Forestry (CDF) from proceeding with two pending timber sales in Jackson State Forest. The sales would have logged 900 acres of old second-growth redwood in a 50,000-acre state-owned redwood forest in Mendocino County, California…

 

In his decision, Judge Henderson wrote, "The … issues are twofold: must CDF comply with an approved management plan and, if so, must that plan be current? The answers to both questions is "yes." Henderson further found that, "… it appears that the June 7, 1984 plan is not current… Even a casual review of the Plan reveals that the conditions on which it was developed eighteen years ago have changed dramatically."

 

Palo Alto lawyer, Paul Carroll, who represents the Campaign, said, "The state has been logging California’s largest state forest illegally since 1993, when its management plan expired. The court has now said the state can no longer it ignore its own laws." Carroll said that an important part of the decision was Judge Henderson’s finding that state forests "must comply with site-specific forest management plans in addition to whatsoever other requirements are set forth in the Forest Practices Act and Forest Practice Rules." CDF has consistently argued that its Timber Harvest Plans for Jackson State need only conform to the Forest Practice Rules and that its management plan was irrelevant.

Excerpt from the decision to grant a preliminary injunction, Judge Richard Henderson, Mendocino Superior Court, Case No. CV 83611, May 18, 2001

... The threshold issues are twofold: must CDF timber harvesting operations comply with an approved management plan and, if so, must that plan be a current? The answers to both questions is "yes." (Emphasis added.) Both the general management of the state forest and harvesting of timber "shall follow management plans" that are approved by the Board. (14 CCR Sec. 1510) The most recent management plan for Jackson Forest is that which was approved on June 7, 1984. CDF is clearly obligated by that unambiguous mandatory regulation to ensure that its timber harvesting operations comply with that approved management plan. (Emphasis added.) The approved plan includes, as its Appendix C, the "State Board of Forestry Policies Dealing With State Forests." (AR: 725-738) Those incorporated Policies include a specific, mandatory directive:

"Management plans shall be prepared and maintained current for the Jackson [and other] State Forests. All operation on the Forests shall conform to the management plans. (AR: 734; emphasis supplied)

Based on the information in the record, it appears that the June 7, 1984 plan is not current and that the two recently approved harvest plans may not be consistent with that management plan, even in its non-current status. The June 1984 Management plan specifically states its term is "the ten year planning period commencing in 1983" (AR: 617) and sets forth a site-specific ten-year harvest schedule (AR: 698). Even a casual review of the Plan reveals that the conditions on which it was developed eighteen years ago have changed dramatically. In its Analysis of the Management Environment (AR: 650-656) the Plan is based on a number of described conditions that may have existed in 1984 but have certainly drastically changed since: nature of the local economy, availability of timber, the timber market, number, location, type and capacity of sawmills, the fishing industry and railroad transportation. The Plan has apparently not kept pace with the developments in science and technology that have occurred in the intervening years. (Declaration of Allen Y. Cooperrider, Ph.D. (filed 4/20/01) Paragraphs: 13-18,20 and 22) The Plan does not include any of the additional content items recommended in the July 26, 1999 amendment to the Policy requiring that the plan be maintained current. (AR: 737-738) Those additional recommended topics relate to areas that are of substantial concert to petitioners and other members of the public: timber resources, wildlife and fishery management strategies and strategies for federal and state listed plant species. (Emphases added.)

The two approved timber harvest plans do not appear to follow that Management Plan that was approved for the Forest…. The areas of the proposed two harvest plans do not coincide with harvest areas designated in that Plan. … There also appears to be substantial debate over the methods used to calculate the volume of timber that may be removed in any given year.

With the Adoption of 14 CCR Sec. 1510, the State Board of Forestry saw fit to require all harvesting operations in the state forests to comply with the site-specific forest management plans in addition to whatever other requirements are set forth in the Forest Practices Act and the Forest Practice Rules. The fact that the approved plans may comply with the FPA and FPR does not excuse the required additional compliance with the approved management plan for Jackson State Demonstration Forest…

CDF and Board of Forestry Attempt to Circumvent Court Ruling

July, 2001. Acting without regard for their environmental responsibilities, the public, or the courts, the California Department of Forestry (CDF) and the Board of Forestry are attempting to circumvent a court injunction that halted logging in Jackson State Forest. 

At the request of CDF, the Board of Forestry recently amended its policies governing state forests to remove the requirement that operations conform to a "current management plan," thus eliminating the primary basis for the court's decision.  This action was all the more egregious because the board gave the public almost no warning prior to considering the amendment and did not make the language of the amendment available prior to the meeting.

CDF has now filed a motion to dismiss the injunction and suit on the grounds that "it can no longer be said that there is a 'violation' of Board policy in not maintaining the management plan ... 'current' simply because that policy no longer exists."

Vince Taylor, spokesperson for the Campaign, took issue with the action, "Having the ability to amend forest policies to make them whatever they want, gives CDF and Board of Forestry a decided legal advantage.  But, while they may be able to  nullify the lawsuit, they cannot change the facts."

Judge Henderson said in his decision,  "Even a casual review of the [1983] Plan reveals that the conditions on which it was developed eighteen years ago have changed dramatically."  Further, based on extensive evidence presented to the court, he found that logging under the outdated 1983 management plan was likely to result in "substantial and possibly irreparable harm" to the forest. 

The plans that were halted by the injunction would log the oldest and most ecologically valuable second-growth redwood stands in the forest.  They are in the section of the forest most heavily used for recreation.  A premier hiking trail runs through the middle of one of them.

In acting to circumvent the court, CDF and the Board of Forestry apparently are unconcerned that their actions will  do irreparable harm to a redwood forest owned by the people of California.  In light of their actions, one must ask, "Are they appropriate guardians of our public forest?"

CDF's and the Board of Forestry's lack of concern for public resources raises broader questions about their role in protecting the public's interests in the vast private timberlands of California.

Appeals Court Rejects Legality of CDF Attempt to Evade Injunction

In a September 2004 decision on an appeal of legal fees to the Campaign (see later for details), the First District California Court of Appeals discussed CDF's and the Board of Forestry's elimination of the requirement for operations in state forests be under a "current" management plan. It firmly rejected this the action as a viable legal maneuver and suggested it viewed this tactic as ethically questionable:

We reject defendants’ argument that, because they deleted the word “current” from their policy regarding periodic review of management plans, the Campaign did not actually enforce an important right. Defendants seem to suggest that, in changing the wording of this policy, they have somehow eliminated the public’s right to have state forests operated under current forest management principles. This argument is specious in the extreme. Without considering the propriety of defendants’ actions in altering the text of this policy mid-way through this controversy, it is simply not the case that defendants may operate state forests under outdated management plans. [Emphasis added.] … Defendants continue to have an obligation to apply current management principles to their operation of state forests. This important obligation was enforced in the Campaign’s action. [p. 7]

 

 Related lawsuit filed against the Board of Forestry – Case CV 84953

January 3, 2002, Ukiah. The Campaign filed a new lawsuit in Mendocino County Superior Court against the California Board of Forestry.  The new lawsuit follows a suit filed in June 2000 that resulted in a preliminary injunction that halted logging in Jackson State Forest.

The new lawsuit alleges that a July 11, 2001 revision of Board policies governing state forests  was done in violation of the California Environmental Quality Act (CEQA).

The revision in policy eliminated the requirement that management plans be maintained current. As a result of this policy change, CDF and the Board took the position that the preliminary injunction and underlying lawsuit were moot, and that logging in Jackson State could go forward.

In August, the court initiated settlement negotiations and the parties verbally agreed to a settlement that would preserve the key demand of the Campaign's suit: that no further logging take place until a new management plan and Environmental Impact Report are approved. Despite concerted efforts of the Campaign's lawyer, details of the agreement could not be agreed upon by the end of 2001.

State Agrees to Logging Halt in Jackson State Forest.

March 20, 2002, Ukiah. The California Department of Forestry has agreed to halt all logging in Jackson State Forest until a new management plan and Environmental Impact Report (EIR) are approved. This is the key provision of an agreement settling a lawsuit against the California Department of Forestry (CDF) and the California Board of Forestry filed by the Campaign to Restore Jackson State Redwood Forest in June 2000. The settlement follows a Preliminary Injunction issued in May 2001 that prohibited CDF from approving any new timber operations in Jackson State Forest.

Commenting on the settlement, Dr. Vince Taylor, Executive Director of the Campaign to Restore Jackson State Redwood Forest said, "This agreement is a victory for the people of California who own Jackson State Forest. Until halted by our lawsuit, CDF was illegally logging this publicly owned 50,000-acre redwood forest under a management plan that expired in 1993. CDF ignored numerous requests, starting in 1995, to halt logging until it updated its management plan to reflect current science and environmental factors. Until stopped, CDF was systematically destroying the oldest and ecologically most valuable forest stands by large-scale commercial logging."

The settlement also ends to an abortive attempt by CDF and the Board of Forestry to nullify the lawsuit by revising Board of Forestry policies to remove the requirement that forest operations be conducted under a "current management plan", the key provision cited by the court in issuing its injunction. In return for CDF's agreement not to log until a new management plan is in place, the Campaign agreed to drop its lawsuit charging that this action violated the California Environmental Quality Act (CEQA).

Mendocino Superior Court Case No. CV 83611

State Sued Over Jackson State Forest EIR

October 24, 2002, Ukiah. Citizen groups today challenged a key environmental document prepared by the California Department of Forestry (CDF) for Jackson State Forest. Until halted by a lawsuit last year, large-scale timber operations in Jackson State Forest had been generating $15 million of revenue for state forestry programs. In a March court settlement with the Campaign to Restore Jackson State Redwood Forest, CDF agreed not to resume logging in Jackson State Forest until a new management plan and Environmental Impact Report (EIR) were approved. The previous management plan was prepared and approved in 1983.

The new lawsuit, filed in Mendocino Superior Court is the latest blow to CDF’s efforts to continue its profitable but increasingly controversial management of Jackson State Forest.

Vince Taylor, spokesperson for the Campaign to Restore Jackson State Redwood Forest, said, "We regret the necessity for this suit, but CDF left us no choice. Experts filed 1000 pages detailing glaring deficiencies in the EIR and management plan. CDF ignored the public and experts. It adopted a management plan that would essentially clearcut half the forest and approved an EIR that is legally defective. Sadly, the public now has to go court to force CDF, our supposed public servant, to obey the law."

Paul Carroll, lawyer for the citizen groups, said, "The EIR for Jackson State fails to meet well-defined legal standards laid out by the California Environmental Quality Act (CEQA) and related court decisions. The absence of a comprehensive analysis of cumulative effects, a fundamental requirement of CEQA, is a fatal defect. The requirements of CEQA are not mere legalities, but reflect expert scientific knowledge. Without the information required by CEQA, there is no way for the public or decisionmakers to know the environmental consequences of the proposed management activities."

Judge Denies Preliminary Injunction on Jackson State Logging

June 10, Ukiah. Judge Richard Henderson of the Mendocino Superior Court denied a request to prevent two large logging plans in Jackson Demonstration State Forest (JDSF). The request for the preliminary injunction was brought by the Campaign to Restore Jackson State Redwood Forest and Forests Forever in connection with their suit challenging the legality of a recently prepared Environmental Impact Report (EIR) for the Forest.

Judge Henderson denied the injunction despite finding that he was "very likely to" invalidate the approval of the recently developed new management plan.

Logging Starts in Jackson State Forest

June 11, Jackson Forest. Logging began in Brandon Gulch in Jackson Forest the day after a Mendocino County judge denied the environmentalist’s request to enjoin logging until their legal challenge to the forest’s Environmental Impact Report (EIR) is heard on July 7.

CDF approved the logging despite the judge's finding that he was very likely to invalidate the EIR and management plan.

Court Grants Stay of Logging in Jackson State Forest
Campaign Accuses CDF of “scandalous behavior” and Conflict of Interest
 

June 17, San Francisco. The First District Court of Appeals today issued a stay against further logging in Jackson State Forest. Located in Mendocino County, 50,000-acre Jackson Forest is by far the largest publicly owned redwood forest south of Humboldt County.
 
The stay of logging was issued two hours after an emergency request by the Campaign to Restore Jackson State Redwood Forest and Forests Forever.
 
Logging began in Jackson State Forest on June 11, the day after a Mendocino County judge denied the environmentalist’s request to enjoin logging until their legal challenge to the forest’s Environmental Impact Report (EIR) is heard on July 7.
 
The Campaign’s lawyer, Paul Carroll, explained the basis for the appeal, “The Mendocino judge erred fundamentally. Without a valid EIR, the California Department of Forestry, which manages Jackson State Forest, is prohibited from logging there. The judge found that he was “very likely” to rule in our lawsuit that the EIR for Jackson State is invalid. Inexplicably, the judge refused to connect the dots and issue the injunction.”
 
The Executive Director for the Campaign to Restore Jackson State Redwood Forest, Dr. Vince Taylor, said, This stay should not obscure what led up to the appeal. Mendocino Court’s Judge Henderson’s failure to issue an injunction was bizarre at best. But, CDF’s behavior constitutes an outright scandal. The California Department of Forestry (CDF) is acting like Pacific Lumber or some other big industrial timber firm, rather than as the agency legally charged with the responsibility for enforcing environmental protection for California's forests. The judge as good as said that he would shortly find the EIR invalid, making logging in Jackson Forest illegal. Given its position as guardian of the forests, CDF ought to have taken every precaution to avoid violating the spirit of the environmental laws. Instead, CDF rushed to log as much timber as possible before being enjoined by the court.”
 
Dr. Taylor said, “This case has stripped off the public-relations façade that CDF has placed over what is just a big industrial logging operation run to generate profits for state forestry programs. CDF loses no opportunity to emphasize that they run Jackson State for research and demonstration on good forestry practices. But, CDF actions are all about money.
 
“CDF’s court documents never mention research and demonstration. They are all about revenue. Ross Johnson, Deputy Director of CDF, declared that ‘further blockage of state forest activities and revenues will further exacerbate the problem of being able to hire fire captains…[and we will] see continued reduction or elimination of funding needed to address critical forest pest issues…’ No mention is made of harm to research or demonstration projects. Worthwhile as the activities Mr. Johnson cites are, they should not be funded by cutting the public’s trees.”
 
Bill Heil, Campaign board member, emphasized that CDF has a strong conflict of interest when it comes to Jackson State Forest, “On the one hand, CDF is the enforcer of our forest environmental laws. On the other hand, it manages Jackson State Forest to make money for its forestry programs. When push comes to shove, as it has in Jackson State, the environment is the loser. Jackson Forest needs an independent oversight committee that is not subject to Sacramento budget pressures.”
 
The timber harvest plans (THPs) being pursued in Jackson State are named Brandon Gulch and Camp 3. Together they cover 900 acres of 100-year old undisturbed second growth in the heart of the recreation area of Jackson State. The plans would cut 35,000 trees and 20 million board feet of timber. The timber mills who have contracted for the timber are Mendocino Forest Products and Willits Redwood Company.

Appeals Court Extends Logging Halt in Jackson State Forest

July 10, San Francisco. The state’s efforts to fund its forestry programs by industrial logging of Jackson State Forest suffered a serious setback today. The First District Court of Appeals extended at least until August 20 a previously issued the stay in logging in Jackson State Forest. Further, it’s brief but strong order indicated that it was preparing to act in favor of a request made by the Campaign to Restore Jackson State Redwood Forest to overturn a decision by a Mendocino Superior Court to allow logging to begin in Jackson Forest.

The appeals court removed the case from the jurisdiction of the Mendocino Court. It set a hearing on August 20 for the California Department of Forestry (CDF) and involved timber companies to "to show cause before this court … why a peremptory writ [injunction] should not issue." It has already reviewed briefs by all of the involved parties. The action today indicates that CDF’s chances of prevailing are slim.

Court Rules Jackson State Forest Environmental Report Invalid

July 30, Ukiah. The Mendocino Superior Court today upheld a challenge to the environmental report for Jackson State Redwood Forest. Judge Richard Henderson ruled in favor of the citizen challenge on three fundamental issues, including failure to adequately consider the regional setting and to analyze cumulative impacts of proposed timber operations. He invalidated the EIR and directed the Board of Forestry to rescind its approval of the management plan. He also enjoined further timber operations, but with some ambiguity about the pending plans in Brandon Gulch and Camp 3.

The implications of the decision are far broader and more profound than the requirements to correct the deficiencies in the EIR. Judge Henderson strongly criticized CDF for failing to comply with relatively clear guidelines and minimal statutory requirements. He placed the responsibility for the consequent halt in logging squarely upon CDF  His decision summary should be required reading for all state officials involved in overseeing management of CDF.

Summary from the decision of Judge Richard Henderson, Mendocino Superior Court, Case No. CV 89022, July 30, 2003

The management of the Jackson Demonstration State Forest has been an area of controversy for several years. The legislature established the state forest system for the specific purpose of retaining the forest land "in timber production for research and demonstration purposes" and charged CDF. as the manager of that system, "to achieve maximum sustained production of high quality forest products while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries and aesthetic enjoyment."[16] Timber harvest from the JDSF represented 11.1% of the total timber harvest within Mendocino County in 1991-2000 (AR: 50) and directly or indirectly sustains approximately 550 jobs and contributes approximately $12 million in wages. (AR: 9763-9767) Timber production in the county has declined gradually over the last ten years, but very sharply in the last. two years. (AR: 50) The county's unemployment rate (6.65) is 25% higher than the state average of 5.3 %. (AR: 47) County residents, local employers and the timber industry are justifiably concerned about any proposals to substantially reduce the annual timber harvest from JDSF.

A great number of people both from within and without the county believe that the state forest system represents one of the best opportunities (and, perhaps, the last opportunity) to remedy the over-cutting of timber and depletion of resources that has occurred on much of the privately managed forest properties. They argue persuasively and passionately that the primary purpose of the state forest system should be changed from timber production to timber preservation. They have demonstrated great energy in lobbying during the development and approval of forest management plans and a willingness to resort to litigation, when necessary, to oppose decisions which they believe improper.

CDF his been embroiled in this philosophical clash between opposing public concerns for several years. Almost every one of the timber harvest plans approved within the JDSF in recent years has been bitterly litigated. CDF must have anticipated that its proposed JDSF Management Plan and the supporting environmental documents, regardless of their contents and recommendations, would be microscopically examined for any legal deficiencies. The courts may not and should not interfere with decisions that are property made by governmental agencies and entities. However, the courts are required by law to intercede if the decision-making agencies fail to follow the established approval procedures. One of the primary purposes of CEQA. is to inform the public in such a way that it can intelligently weigh the environmental consequences of a project and have an appropriate voice in the formulation of the ultimate decision. (EPIC v County of El Dorado (1982) 131 CA3d, 350, 354) To achieve these purposes, the legislature has required that every EIR include a discussion and analysis of a number of required topics and that this discussion be set forth in a separate section or appropriately indexed. CDF inexplicably failed to follow the very clear legislative directives and produced an EIR that failed to adequately discuss the environmental setting in the area surrounding the JDSF and the cumulative impact the implementation of the management Plan would have in combination with other activities in the area.

I realize that the burden of any suspension of logging operations within the JDSF falls primarily and immediately upon both the employers and employees involved in coastal timber operations. However, the failure of CDF to prepare an EIR that complies with the minimal statutory standards leaves me with no alternative but to direct CDF and the Board to rescind the approval of the EIR. CDF and the Board [of Forestry] had every reason to  believe that their approval of the updated Management Plan would be subjected to close judicial scrutiny. With that in mind, CDF and the Board should have scrupulously followed the procedures adopted-by the legislature to minimize the risk of an inevitable court challenge and the potential economic hardship on the management of the JDSF and on the local timber industry. Instead, CDF virtually ignored the relatively clear guidelines and conducted a deficient environmental review that will inevitably further delay logging activities in the Jackson Demonstration State Forest. [Emphases added.]

Appeals Court Extends Logging Halt and Lectures CDF

August 20, San Francisco. The California Court of Appeals today inserted itself forcefully into contentious and complex litigation on logging of California’s largest state-owned forest, 50,000-acre Jackson State Redwood Forest.

In an unusual action, the Court dispensed with lawyer’s arguments. Instead for nearly half an hour the three judges interrogated and lectured Charles Getz, chief counsel for the California Department of Forestry (CDF). They were openly hostile to CDF’s contention that a lower court’s invalidation of a new management plan did not prevent them from carrying out two disputed logging plans. They told CDF to stop litigating and to get moving on developing a legally valid environmental study.

At the end, the court practically directed the lawyer for the Campaign to Restore Jackson State Redwood Forest, the citizen’s group challenging CDF, to appeal the lower court's failure to enjoin the disputed plans. They extended a previously ordered logging-halt of these two plans until such an appeal could be filed.

Dr. Vince Taylor, Campaign spokesperson, said, "Coming to the Court of Appeals was like coming into a sane world after being in Mendocino in an Alice-in-Wonderland world. CDF’s lawyer, Charles Getz, reinterpreted old agreements, repudiated his clear previous statements, and invented legal arguments out of thin air, to all of which Mendocino Judge Henderson appeared to lend a sympathetic ear. Down was up and up was down.

"Today the Appeals Court told Mr. Getz in no uncertain terms that up was up and down was down. It was a great relief to have sanity affirmed. The Appeals Court clearly intends to provide the public forest the legal protection it deserves."

State Pays $200,000 for Jackson Forest Lawsuit Costs

May 27, 2004. The California Department of Forestry (CDF) today delivered a check for $203,971 to Paul Carroll, lawyer for the Campaign to Restore Jackson State Redwood Forest. The payment was for attorney fees and costs of the suit brought in 2002-03 challenging the legal adequacy of the environmental impact report (EIR) for a new management plan for Jackson Demonstration State Forest (JDSF).

In the hearing on the request for attorney fees, CDF challenged the request for payment of costs incurred in preparing comments on the EIR during administrative proceedings prior to CDF's approval of the EIR. Judge Henderson found, "Respondents' [CDF's] objection to this segment of the claim is particularly ironic. As a result of the work, petitioners [the Campaign] notified respondents of some of the defects in the preparation and approval of the challenged EIR. Had respondents taken those comments seriously, they may have avoided this litigation in its entirely…"

In his ruling, Judge Henderson justified the "substantial" award for a "fairly brief period of litigation." He said, "… the underlying issues involve the management of a significant resource within Mendocino County and have generated significant public debate… CDF and the Board of Forestry chose to ignore that information [provided by the Campaign during the administrative hearings], leaving petitioners with no alternative but to file this action to protect legitimate public concerns. The court has carefully considered the objections of respondents to this motion but finds those objections to be ironic at best."

Commenting on the award, spokesperson for the Campaign to Restore Jackson State Redwood Forest, Dr. Vince Taylor, said, "We are happy to have our legal costs reimbursed, but we are especially gratified that Judge Henderson acknowledged our efforts to avoid litigation by providing extensive, accurate substantive comments during preparation of the EIR. Many have blamed the Campaign for "halting logging" in Jackson Forest. Judge Henderson emphasizes that CDF caused the logging halt by ignoring the "clear guidelines" of the law and the Campaign's substantial efforts to inform it about the legal defects in its approval procedures."

The Campaign also prevailed against CDF in an earlier suit challenging the legality of operating in Jackson Forest under a management plan last updated in 2003. In this case, Judge Henderson awarded the Campaign attorney fees of $102,000. CDF appealed this award, and the case in now before the California Court of Appeal. [Emphases added.]

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Disposition by Judge Richard Henderson in his Ruling on Petitioners' Motion for Attorney Fees in Case No. 89022, Campaign to Restore Jackson State Redwood Forest, et. al. versus California Department of Forestry and Fire Protection and the Board of Forestry

"The award of fees in this matter is relatively substantial in light of the fairly brief period of the litigation and the number of hearings before the court. However, the underlying issues involve the management of a significant resource within Mendocino County and have generated significant public debate. During the administrative hearings which led to the approval of the EIR, petitioners presented CDF and the Board with a fairly accurate and complete summary of the procedural and substantive defects in the approval procedure. CDF and the Board of Forestry chose to ignore that information, leaving petitioners with no alternative but to file this action to protect legitimate public concerns. The court has carefully considered the objections of respondents to this motion but finds those objections to be ironic at best. Petitioners' request for an award of attorneys' fees and costs is granted. Petitioners' counsel shall prepare, serve and submit an order consistent with this ruling."

Filed April 2, 2004, Superior Court of California, Mendocino County, Ukiah Branch

Appeals Court Affirms Fee Award in Jackson Forest Lawsuit

In a decision issued on September 4, 2004, the First District California Court of Appeals affirmed the award of legal fees to the Campaign to Restore Jackson State Redwood Forest for a suit brought against the California Department of Forestry in June 2000.

As a result of losing the appeal, CDF will owe the Campaign about $119,000 including $15,000 in interest. This latest fee award is in addition to the $201,000 that the state has already paid for costs related to the Campaign's later challenge to the environmental document for Jackson Forest.

Additional payments by CDF are still pending for other Campaign legal actions.  Altogether, the state's payments related to its unsuccessful defense of its management of Jackson State Forest may eventually total around $350,000.

The suit at issue in the appeal stopped several logging plans filed in 2001 and forced CDF to prepare a new management plan and environmental documents for Jackson State Forest. A second lawsuit by the Campaign resulted in the court declaring the new management plan and environmental report legally invalid in 2003. Logging operations in Jackson State Forest have not resumed to date.

The Appeals Court rejected every contention made by CDF in its appeal, often quite pointedly, and it strongly affirmed the public benefits of the Campaign's legal actions.

Vince Taylor, Ph.D., Executive Director of the Campaign, commented, "This latest court decision adds to the extensive documentation of the malfeasance of CDF and its efforts to evade the law in managing Jackson State Forest. It strongly affirms the need for the management reforms contained in SB 1648, Senator Chesbro's state forest reform bill."

In responding to CDF's contention that the Campaign's lawsuit had not produced any significant public benefit, the court said:

In sum, defendants are obligated to manage the Jackson State Forest according to current practices which achieve “maximum sustained production of high quality forest products while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment.” (§ 4639.) Without question, this obligation is an important right affecting the public interest.

This right was enforced by the Campaign. Before the Campaign secured a preliminary injunction and settlement agreement preventing them from going forward, defendants were on the verge of harvesting timber in the Jackson State Forest under a management plan that did not, according to defendants’ own policies, reflect the most current views of proper forest management… At the end of the day, the settlement reached between the Campaign and defendants ensured that defendants would manage the forest properly by applying an updated management plan to all currently contemplated and future timber harvests. [p. 7]

CDF and the Board of Forestry sought to moot the suit, after logging was enjoined, by deleting the requirement for a "current management plan" from the policies of the Board of Forestry governing state forests. The Court of Appeals firmly rejected this as a viable legal maneuver and hinted that it questioned the propriety of this tactic:

We reject defendants’ argument that, because they deleted the word “current” from their policy regarding periodic review of management plans, the Campaign did not actually enforce an important right. Defendants seem to suggest that, in changing the wording of this policy, they have somehow eliminated the public’s right to have state forests operated under current forest management principles. This argument is specious in the extreme. Without considering the propriety of defendants’ actions in altering the text of this policy mid-way through this controversy, it is simply not the case that defendants may operate state forests under outdated management plans… Defendants continue to have an obligation to apply current management principles to their operation of state forests. This important obligation was enforced in the Campaign’s action. [p. 7]

The Court firmly rejected CDF's contention made in its briefs but also in many public statements that current law requires it to manage Jackson Forest for maximum timber production and that nothing can legally interfere with this obligation:

We are disturbed by defendants’ failure to acknowledge that, in managing the state forests, they must take into account uses of these forests for purposes other than timber harvesting. For example, defendants describe the Legislature as intending that the “State Forests be (primarily) utilized for “. . . timber production for research and demonstration purposes.” … At no point in their opening brief, do defendants even mention section 4639, although this section makes clear that defendants must accomplish the “maximum sustained production of high quality forest products while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment.” (§ 4639) Defendants refer to section 4639 only once in their reply brief and, remarkably, provide this court with a quote from it that excludes the language “while giving consideration to values relating to recreation, watershed, wildlife, range and forage, fisheries, and aesthetic enjoyment.” In so doing, defendants seem to suggest that their obligation to manage the state forests is primarily an obligation to bring about the maximum timber harvest and that any delay or hindrance to this goal defeats the legislature's purpose in establishing the state forest system. This suggestion, which we reject, can only be made by ignoring the full extent of defendants’ management obligation. ][Footnote 3, p. 6]

Finally, the Court rejected CDF's oft-heard contention that the Campaign was responsible for causing it severe financial harm:  

In making this argument below, defendants put forward evidence in the form of declarations by its employees to the effect because of its agreement to temporarily discontinue harvesting timber in the Jackson State Forest, defendants borrowed $3 million from the state’s General Fund, had a $9 million shortfall in budget and were forced to cut back on a variety of programs and personnel.

The most basic problem with defendants’ argument is that it suffers from a myopic view of what caused these budgetary shortfalls. The Campaign’s effort to stop defendants from harvesting timber without regard to their management obligations did not “cost” defendants these monies. Rather, defendants’ inability to harvest timber in the Jackson State Forest was a result of their failure to manage the forest in accordance with currently mandated management practices. [Emphases added.] [p. 11]

 



[16]  Public Resources Code, Sec. 4631,4631.5,4639 and 4645.