Friday, March 19, 2004
Timber Act Does Not Bar Regulation in Forest by Water Board—C.A.
By a MetNews Staff Writer
The Z’berg-Nejedly Forest Practice Act of 1973 does not prevent the California State Water Resources Control Board from ordering a lumber company to monitor water quality in a forest river, the First District Court of Appeal ruled yesterday.
The court’s Div. Five said Humboldt Superior Court Judge J. Michael Brown erred in granting a petition for a writ of mandate sought by Pacific Lumber Company barring the Water Board from requiring it to monitor water quality in the Elk River. The company had obtained approval from the state’s Department of Forestry and Fire Protection for its timber harvesting activities along the river’s South Fork, and challenged the Water Board’s jurisdiction over activities impacting logging.
In approving Pacific’s timber harvesting plan, the Department of Forestry rejected a recommendation by the Regional Water Quality Board, North Coast Region, that a water monitoring requirement be included.
The Regional Water Board then issued its own order requiring the water quality monitoring. Pacific appealed to the state board, which vacated the local panel’s order but issued an order requiring some, though less, monitoring.
Brown ruled the Forestry Department’s jurisdiction was exclusive.
Not so, Justice Linda M. Gemello explained in an opinion certified for partial publication.
She noted that Public Resource Code Sec. 4514 provides that the Forest Practice Act does not limit “the power of any state agency in the enforcement or administration of any provision of law which it is specifically authorized or required to enforce or administer.”
The justice declared:
“The Legislature has established one statutory scheme for the regulation of timber harvesting and another for the maintenance of water quality. Where logging activities implicate water quality issues, a timber company must comply with requirements imposed by the State Water Board in addition to the Department of Forestry.”
Gemello conceded that the Forest Practice Act “comprehensively regulates timber harvesting matters.” But she rejected Pacific’s argument that provisions allowing other agencies to have input into Forestry Department decisions would be undermined if those agencies could independently enforce their views.
“Interagency lobbying, as happened here, allows one agency to educate another regarding matters within its jurisdiction that have outside impacts,” Gemello observed.
“That input might lead to a different decision or accommodations for impacts not otherwise accounted for by a single agency. Such provisions recognize the fundamental reality that the environment is not a set of discrete resources but an interdependent biosystem. The extraction of one resource may have an impact on other resources, and another agency may be able to contribute its greater expertise at an early stage. Provisions allowing for input do not compel the conclusion that the Department of Forestry’s jurisdiction was intended to be exclusive.”
Pacific’s argument was also contradiction by legislative history showing that the Water Board, among other agencies, was concerned its authority might be undercut by the Forest Practice Act and was assured by the author of the legislation that it would not, the justice said.
“The Department of Forestry may permit trees to be cut, but the State Water Board may require that when trees are cut, water quality be preserved.”
Nor, she said, was the Water Board estopped from requiring monitoring by the Regional Board’s participation in the process that led to the approval of the harvesting plan. The nature of the plan approval process was not sufficiently similar to a judicial proceeding to have collateral estoppel effect, Gemello said.
The case is Pacific Lumber Company v. California State Water Resources Control Board, A102399.
Copyright 2004, Metropolitan News Company