The decision is significant for three reasons: it held that CDF must consider alternatives, it clarified the legal standards governing modified timber harvest plans, and it affirmed a number of CEQA principles.
The modified timber harvest plan involved a 30-acre grove near Occidental in Sonoma County. Friends of the Old Trees argued that the plan did not contain any discussion regarding alternatives to the proposed operation. CDF and the plan submitter essentially argued that any THP necessarily considers alternatives, because it selects among a variety of methods for implementing a plan, such as yarding methods. The Court of Appeal rejected CDF's position, observing that when a timber operator selects one kind of method over another or one yarding method over another to avoid an adverse impact, he or she has taken a step in mitigation. "It is not an alternative to the proposed activity. An alternative to a proposed activity is just thatÑa description of another activity or project that responds to the major environmental issues identified during the planning process."
The Court's ruling regarding alternatives is significant. Although the Supreme Court and Courts of Appeal have observed that CDF is required to consider alternatives, this is the first case to hold that CDF's purported "consideration" of alternatives is wholly inadequate. CDF, of course, has never considered alternatives as that concept is defined under CEQA. It must now change its practice, or violate the law.
The Court of Appeal also clarified the standard for evaluating modified timber harvest plans. It held that the decision not to require a timber harvester to prepare accumulative impacts analysis is governed by the same "fair argument" test as the decision not to prepare an EIR under Public Resources Code Section 21151, and not by the deferential substantial evidence standard of review that CDF advocated. Accordingly, it held that the public had raised a fair argument that the plan might adversely affect the local ecosystem's water resources through a reduction in fog drip. CDF therefore was required to consider the cumulative impacts of the project on the ecosystem's water supply.
Finally, the Court of Appeal endorsed a number of important CEQA principles generally and in the context of CDF's oversight of logging operations. For example, it sided with courts that have held that the amount of evidence necessary to set aside the fair argument standard is not "overwhelming or overpowering evidence." It also held that CDF cannot claim to have considered environmental impacts for the first time in its response to public comments. Although this principle seems obvious given the purposes underlying CEQA, it is not found stated in many cases.
In sum, Friends of the Old Trees v. CDF broke new ground in rejecting CDF's concept of alternatives by finding that it had failed to consider them, and in defining the legal parameters of a modified THP. It also stands as a reaffirmation of a number of important CEQA principles.
For more information, contact Paul V. Carroll, Attorney at Law, 5 Manor Place, Menlo Park, California 94025, telephone (415) 322-5652, facsimile (same).
Copyright Mendocino Environmental Center 1997
Permission granted to excerpt or use this article if source is cited