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Supreme Court Rejects CDF Appeal

On December 13, 2006 the California Supreme Court rejected the California Department of Forestry’s appeal of the First District Court of Appeals ruling in the case of Joy Road Area Forest and Watershed Association vs. Harmony Forest & Land Company, LLC and California Department of Forestry. In addition, the Supreme Court rejected a request by the California Forestry Association, a forest industry trade group,to depublish the Appellate Court’s decision. Depublishing the opinion would prevented its use as precedent in future cases. Consequently, the decision is now an extremely important addition to settled law. It confirms that the procedures used by CDF to review logging plans since 1970 have been illegal.

The California Court of Appeal had rescinded California Department of Forestry’s (CDF’s) approval of a 13-acre logging plan approximately two and one-half miles southwest of Occidental in Sonoma County. Harmony Forest & Land Company, LLC had sought to log on Joy Ridge in an area designated by the County as water scarce. The Joy Road Area Forest and Watershed Association sued approval of the plan on four grounds: 1) CDF failed to recirculate the plan for public comment as required by law after substantially changing the plan, 2) CDF failed to properly address the contribution of fog precipitation from redwoods to the ground water resource, 3) CDF failed to properly assess the cumulative environmental effects on ground water of both the logging and the planned follow-on housing development, and 4) CDF approved the plan contingent upon future approval by the U.S. Fish and Wildlife Service of a no-take of the endangered Northern Spotted Owl precluding public review of USFWS prior to approval.

Judge Lawrence Antolini of the Sonoma County Superior Court had previously set aside CDF’s approval,agreeing with the Joy Road group on the first three issues but disagreeing on the fourth. CDF appealed the first three issues and the Joy road group responded by cross appealing the fourth issue.The appellate court ruled in the Joy Road group’s favor on all counts reversing on the fourth issue.

The Joy Road Area was one of the areas studied by the County for water scarcity. It was found to be overdrafted as a result of excessive development to the point that residents had to haul water every summer. CDF had contended that fog precipitation from the 100 year old redwoods on the parcel did not significantly contribute to ground water. Dr. Daniel Wickham, a ground water scientist hired by the Joy Road Group, concluded that the proposed logging would result in the loss of 4.3 million gallons of water from fog precipitation during a typical summer. He stated that “fog precipitation is the only water source available during [the summer], and there can be no doubt that a reduction in groundwater recharge of this scale is significant and warrants an immediate rejection of this THP [Timber Harvest Plan].”

The Superior Court chastised CDF for its continued resistance to the dictates of the California Environmental Quality Act, CEQA. The Court stated, “We are not persuaded that the procedure CDF describes ensures meaningful public review and comment.CDF has continued to resist complying with CEQA by advancing increasingly contorted interpretations of settled law. We urge CDF to heed the law as consistently interpreted by the courts of this state, and to commit its time and resources toward the more productive end of conforming its ‘process’ to comply with CEQA.”

Carl Wahl, Coordinator for the Joy Road group commented, “In upholding the appellate court’spublished opinion, the Supreme Court of California has sent a clear message to the Department of Forestry that its timber harvest program is in violation of the law. The First District Appellate Court’s decision will hopefully make CDF change its THP program to finally comply with the environmental laws of this state.” Mr. Wahl may be reached atmcwahl@poetworld.net.

Rick Coates, Executive Director of Forest Unlimited, the forest protection group that has been advising the Joy Road group noted that”The Supreme Court has once again reprimanded CDF and affirmed that the procedures used by CDF to review logging plans for more than 35 years have been illegal. For 35 years CDF has permitted corporate logging companies to lay waste to California’s resources. We hope this decision will halt CDF’s delinquent behavior.” Mr. Coates may be reached at rcoates@sonic.net.

The Appellate Court decision, which was certified for publication making it case law,can be found at:

http://www.courtinfo.ca.gov/opinions/documents/A105421.PD

The supreme court decision may be found at:

http://appellatecases.courtinfo.ca.gov/indel.cfm

Select “Supreme Court” then “search” typing case number “S147204” and select “Disposition”.