July 18, 2008

California Supreme Court Decision in EPIC

By California Supreme Court Decision in EPIC

Yesterday the Calfornia Supreme Court issued a decision in Environmental Protection Information Center v. California Department of Forestry and Fire Protection. PLF filed an amicus brief in support of the Real Party in Interest Pacific Lumber Co. (PALCO).  The case raised issues under a number of state environmental laws, including the California Endangered Species Act (CESA).

This case concerned an environmentalist challenge to several environmental planning documents pertaining to Pacific Lumber's proposed timber harvesting in the Headwaters Forest. PLF's AC brief argued that (1) the "no surprises" policy of the Department of Fish & Game (DFG)—which allows DFG to provide an incidental take statement under CESA that puts an absolute cap on the permittee's required mitigation—is consistent with CESA's requirement that the negative impacts of a proposed action be "fully mitigated," and (2) the common law public trust doctrine does not extend to nonaquatic habitat and species.

On the "no surprises" issue, the Court ruled that the incidental take statement was illegal because the mitigation cap applied even for harm that PALCO's own timber actions might cause, and not just the harm caused by third parties or acts of God. The Court definitely left open, however, the possibility of a valid no surprises permit that limits mitigation for harm not caused by the permittee's own actions.

On the public trust issue, the Court noted that there are two public trust doctrines in California, one common law (e.g., National Audubon Society v. Superior Court (Cal. 1983), aka the Mono Lake decision) and one statutory, Cal. Fish & Game Code 711.7 ("The fish and wildlife resources are held in trust for the people of the state by and through the department.") (N.B. it's a little misleading to call this a public trust doctrine; it's more the old ex ferae naturae doctrine, i.e., the sovereign owns all wildlife not reduced by capture). The Court rejected the environmentalists' public trust claims: although its reasoning is a little opaque, the Court seemed to articulate the rule that where an activity is alleged to violate the public trust, if there is an existing statutory obligation that is applicable, a court's analysis should be directed to the statute for determining whether any duty has been breached, rather than to the public trust doctrine.

On one major issue that PLF did not address, the Court overturned PALCO's sustained yield plan (governing its planned timber harvesting), on the grounds that "(1) that CDF did not properly approve an identifiable Sustained Yield Plan; (2) that any newly submitted Sustained Yield Plan must include an adequate analysis of the cumulative impacts of Pacific Lumber’s timber harvesting activities at the individual planning watershed level consistent with the Forest Practice Rules and sufficient to support Pacific Lumber’s long-term sustained yield estimate."

The L.A. Times's report, here, overstates the decision's impact.

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