Metropolitan News-Enterprise


Friday, June 30, 2006


Page 3


S.C. Allows Counties to Regulate Location of Timber Cutting


By a MetNews Staff Writer


County zoning ordinances limiting timber harvesting to designated zones are not preempted by state forestry laws, a divided California Supreme Court ruled yesterday.

In an opinion by Justice Kathryn Werdegar, joined by Chief Justice Ronald George and Justices Ming Chin and Carol Corrigan, the court reversed the Sixth District Court of Appeal, which struck down such an ordinance. Justice Carlos Moreno dissented, joined by Justices Joyce Kennard and Marvin Baxter.

The high court’s ruling allows Santa Cruz County to enforce its 1999 ordinance restricting timber harvesting and related helicopter operations to specified zones within the county.

Big Creek Lumber Co., Homer T. McCrary  and the Central Coast Forest Association, a nonprofit association of landowners and forestry professionals, petitioned for writ of mandate, claiming that the ordinances were preempted by state forestry laws.

Sec. 4516.5(d) of the Forest Practice Act provides, with exceptions not relevant to the case, that “counties shall not otherwise regulate the conduct of timber operations.”

Werdegar, writing for the court, said, “Local zoning ordinances, like the County’s zone district ordinance, that speak to the location of timber operations but not to the manner in which they are carried out, are not expressly preempted by section 4516.5(d).”

The justice reasoned that interpreting the statute to prohibit all county regulation would give no effect to the words “the conduct of” and would thus violate the rule that courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage.

Werdegar said that reading Sec. 4516.5(d) to precluding all local regulation of timber operations could lead to “absurd results” and  “would require cities and counties to allow commercial logging even in residential districts.”

Noting that in 1995 the First District Court of Appeal reached the same conclusion in  Big Creek Lumber Co. v. County of San Mateo (1995) 31 Cal.App.4th 418, Werdegar said:

“The Legislature has had ample opportunity over the past decade to amend section 4516.5(d) to abrogate or modify the Court of Appeal’s construction of the statutory phrase ‘regulate the conduct of timber operations’ in Big Creek v. San Mateo. Yet, notwithstanding it has amended the FPA in numerous other particulars every year since that decision was filed, it has not done so.”

Accusing the majority of “pull[ing] an interpretive rabbit out of a statutory hat,” Moreno said that the majority’s interpretation of the statute “provides a roadmap for those who would use technical artifices to evade the letter and spirit of the FPA.”

He said he agreed with the Court of Appeal that “‘conduct,’ as used in the statute, ‘necessarily includes the ‘act’ of doing the task at all. Local measures that forbid logging in certain locations ‘regulate the conduct of timber operations’ in those places in the most fundamental way imaginable—by prohibiting it outright.’”

The justice argued that nuisance ordinances were a sufficient means for counties to deter logging in residential areas.

The case is Big Creek Lumber Co. v. County of Santa Cruz, 06 S.O.S. 3366.


Copyright 2006, Metropolitan News Company