PI Brief
[ Home ] [ Up ] [ Settlement ] [ BOF Suit ] [ Preliminary Injunction ] [ PI Brief ] [ TRO brief ] [ Initial lawsuit filing ]

IN AND FOR THE COUNTY OF MENDOCINO

TABLE OF CONTENTS

ARGUMENT *

I. CDF IS REQUIRED BY LAW TO APPROVE TIMBER

OPERATIONS IN JDSF IN ACCORDANCE WITH A CURRENT MANAGEMENT PLAN *

II. PETITIONERS’ LEGAL CHALLENGES ARE NOT "CONFUSED" *

III. PETITIONERS AND THE ENVIRONMENT WILL SUFFER FAR GREATER HARM THAN CDF *

TABLE OF AUTHORITIES

ARGUMENT

I. CDF IS REQUIRED BY LAW TO APPROVE TIMBER OPERATIONS IN JDSF IN ACCORDANCE WITH A CURRENT MANAGEMENT PLAN

Respondents’ central argument is that CDF is not required to manage JDSF in accordance with a current management plan, and that timber operations there do not have to conform to such a plan: "[N]othing in the requirements of law requires the THP to be approved only if there is a ‘current’ management plan; rather, there must be a management plan." (Opposition (Opp.) brief, p. 11.) But Respondents’ position is directly refuted by the plain language of the relevant statute, regulation, and policy.

The Legislature has commanded that CDF "shall administer" the chapter governing state forests "in accordance with policies adopted by the Board" (Pub. Res. Code, § 4646), and "in accordance with plans approved by the board." (§ 4645.) Board policy in turn provides: "Management plans shall be prepared and maintained current for the Jackson…State Forests. All operations on the Forests shall conform to the management plans." (AR 734 [emphasis added]; see also Cal. Code Regs., tit. 14, § 1510.)

Respondents gloss over the import of these commands. They refuse to acknowledge the clear command of section 4646—"shall administer" "in accordance with policies adopted by the Board"—and the clear command of the Board policy on which it is based—"Management plans shall be prepared and maintained current for the Jackson…State Forests. All operations on the Forests shall conform to the management plans." (AR 734.) Although Board policy, standing alone, may not have the force of a statute or regulation, a statute like section 4646, requiring that Board policy "shall" be followed, most certainly does. (See also § 4645; Cal. Code Regs., tit. 14, § 1510 [CDF required to follow management plan].) These requirements refute Respondents’ contention that any management plan will do—no matter how old, outdated, or obsolete.

Indeed, to avoid these requirements Respondents are reduced to belittling the Board’s own policy, treating it like an insignificant scrap of paper they are only vaguely familiar with. (See Opp. brief, p. 8 ["petitioners refer to a ‘policy’ adopted by the Board of Forestry"].) The policy of the Board, of course, is of paramount importance. It is the product of a legislative command (§ 4646), and it is a blueprint for the management of California’s state forests, setting forth, among other things, the minimum contents of management plans for them. (AR 726-738.)

Respondents also argue that the provisions that Petitioners rely on refer merely to the "management" of JDSF, and that "management" does not encompass timber operations, which Petitioners seek to enjoin. (Opp. brief, p. 8.) This argument is both wrong and absurd. First of all, under the law governing state forests, "management" "means the handling of forest crop and forest soil so as to achieve maximum sustained production of high-quality forest products giving consideration to values relating to recreation, watershed, wildlife, range and forage, who fisheries, who and aesthetic enjoyment." (§ 4639.) This definition obviously encompasses timber harvest operations: the only way to achieve production of high-quality forest products is by timber operations. Second, to repeat, Board policy requires that management plans "be prepared and maintained current for the Jackson…State Forests. All operations on the Forests shall conform to the management plans." (AR 734.) Board policy thus squarely states that timber operations must adhere to a current management plan.

II. PETITIONERS’ LEGAL CHALLENGES ARE NOT "CONFUSED"

Another argument that Respondents appear to make is that Petitioners have confused two separate challenges: their challenge to CDF’s management of JDSF in the absence of a current management plan, on the one hand; and their challenges to THPs 483 and 484, on the other. (Opp. brief, pp. 4-5.) Although far from clear, Respondents appear to argue that a timber harvest plan may only be set aside if it was approved in violation of the Forest Practice Act, the California Environmental Quality Act (CEQA) or the Endangered Species Act. And since Petitioners’ challenges to THPs 483 and 484 do not fall under these acts (at least for purposes of this motion), Petitioners’ challenges fail. (Opp. brief, p. 10.) If this is Respondents’ argument, it fails.

In their first amended complaint for declaratory relief and petition for writ of mandate, Petitioners allege several causes of action or claims for relief. They seek inter alia (1) a declaration that CDF’s pattern and practice of approving timber harvest plans in JDSF in the absence of a current management plan is unlawful under the laws pertaining to California’s public forests (first amended complaint, ¶¶ 33-36); (2) a writ of mandate prohibiting CDF from approving timber harvest plans in JDSF in the absence of a current management plan (first amended complaint, ¶¶ 37-44); (3) a writ of mandate setting aside CDF’s approval of THP 484 on the ground that it was unlawfully approved in the absence of a current management plan (first amended complaint, ¶¶ 45-50); (4) a writ of mandate setting aside CDF’s approval of THP 484 on the ground that it was unlawfully approved in violation of CEQA and the Forest Practice Act. (First amended complaint, ¶¶ 51-55).

The first three causes of action seek various remedies based on the claim that CDF’s management, approval, and operation of timber harvest plans in JDSF in the absence of a management plan are unlawful under the laws pertaining to California’s state forests. (§ 4631 et seq.) The third cause of action seeks a writ of mandate setting aside CDF’s approval of THP 484 on the ground that it does not conform to a current management plan and was approved in the absence of one. The request for a preliminary injunction arises from the third cause of action: it seeks to stop logging until this Court his had the opportunity to determine whether CDF’s approvals of THPs 483 and 484 were illegal and must be set aside.

The third cause of action is authorized by Code of Civil Procedure section 1085. The availability of a writ of mandate to compel a public agency to perform an act required by law has long been recognized. (Civ. Pro. Code, § 1085; e.g., Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539.) To obtain relief, a petitioner must show (1) a clear, present and usually ministerial duty on the part of the respondent, and (2) a clear, present and beneficial right in the petitioner to the performance of that duty. (E.g., Santa Clara County Counsel Attys. Assn., supra, 7 Cal.4th at 539-540; 8 Witkin, Cal. Procedure (4th ed. 1997) Extraordinary Writs, § 72, p. 853.) But these conditions—petitioner’s right and respondent’s duty—may be greatly relaxed, if not virtually abandoned, where the question is one of public right and object of mandamus is to enforce a public duty. (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117.) Where petitioner demonstrates its right and respondent’s duty, petitioner is entitled to the writ "as a matter of right." (May v. Board of Directors (1949) 34 Cal.2d 125, 133.)

CDF has a mandatory duty to manage JDSF according to a current management plan, and to ensure that timber operations within it conform to such plan. As we have shown, the mandatory term "shall" is repeatedly used to lay down CDF’s and the Board’s duties. CDF "shall" manage JDSF according to Board policy. (§ 4646.) Management plans "shall" be prepared and maintained "current" for JDSF, and all operations within it "shall" conform to the plan. (AR 734.) Operations within JDSF "shall" follow a management plan developed for it. (Cal. Code Regs., tit. 14, § 1510.) By approving THPs 483 and 484 in the absence of a current management plan, CDF violated this mandatory duty.

The next question is whether CDF’s violations invalidate the actions taken, that is the approvals of THPs 483 and 484. The word "shall" connotes mandatory action and "may" connotes discretionary action. (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1321, 1321.) And the use of "shall" indicates that the statute or regulation was intended to be mandatory, rather than directory, meaning that its violation invalidates the action taken—in this case, the approval of THPs 483 and 484. (E.g., Belth v. Garamendi (1991) 232 Cal.App.3d 896, 899-900; Cole v. Antelope Valley Union High School District (1996) 47 Cal.App.4^th 1505, 1511-1512.) This is especially the case if the statute or rule violated concerns a matter of importance to the statutory scheme, rather than a matter of procedure or convenience. (Cole, supra, 47 Cal.App.4^th at 1512-1513.) The rule that a statute will be construed as mandatory, rather than directory, applies with greater force where the statute or regulation imposes a duty on a public official to act in the public interest. (Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 896.)

Under these authorities, the approvals of THPs 483 and 484 in the absence of a current management plan will require that they be set aside for reconsideration under a proper plan. A current management plan is one of the central requirements of the network of laws and policies governing JDSF. And CDF has a duty to act in the public interest in properly managing JDSF. CDF violated a mandatory law in approving THPs 483 and 484 and a writ of mandate should issue to set aside those approvals.

The legal claim made here can be compared to similar claims in other land-use contexts. For example, a land-use approval relying on an inadequate general plan will invalidate the approval. (E.g., City-of-Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964 [use permit relying on inadequate general plan held void]; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 742 [building permit for a proposed cogeneration plant invalidated based on general plan inadequacy].)

The same outcome holds under federal law. Under the National Forest Management Act (NFMA), the Forest Service is required to develop a Land Resource Management Plan (LRMP) for an entire forest. (Neighbors of Cuddy Mountain v. United States Forest Service (9th Cir. 1998) 137 F.3d 1372, 1376.) Once the LRMP is developed, site-specific logging operations must conform to it. (Id. at pp. 1376-1377.) In Neighbors of Cuddy Mountain, plaintiffs sued the Forest Service to enjoin a timber sale in the Cuddy Mountain area of the Payette National Forest, claiming the timber sale was not consistent with the LRMP. The Ninth Circuit agreed. It concluded that the environmental impact statement for the timber sale failed to analyze the amount of old-growth timber that would be left after logging "within each theoretical pileated woodpecker home range," as required by the LRMP. (Id. at pp. 1377-1378.) The Ninth Circuit reversed and enjoined all logging. (Id. at p. 1382.)

III. PETITIONERS AND THE ENVIRONMENT WILL SUFFER FAR GREATER HARM THAN CDF

Respondents argue that Petitioners have failed to demonstrate irreparable injury. This argument could not be further from the truth. Unless CDF is restrained, Petitioners’ claims, no matter how meritorious, ultimately fail, and an illegal operation is allowed to proceed to completion. Maintaining the status quo here is truly of the essence.

The general purpose of an injunction is preservation of the status quo until final determination of the merits. (Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) A trial court must evaluate two interrelated factors: the likelihood that the plaintiff will prevail at trial and the relative harm, that is the comparative consequences of grant or denial of the injunction. (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 441-442; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69-70.) "[T]he required degree of irreparable harm increases as the probability of success decreases," and vice versa. (Idaho Sporting Congress Inc. v. Alexander (2000) 222 F.3d 562, 565.) "[T]he clearer the violation, the less the trial court need be concerned with the balancing of harm." (IT Corp., supra, 35 Cal.3d at pp. 72, fn. 5.) Added to this inquiry is the question whether the plaintiff can be adequately redressed by a legal remedy, such as money damages; if not, injunctive relief is proper. (See Jessen v. Keystone Savings & Loan Assn. (1983) 142 Cal.App.3d 454, 458; Voorhies v. Greene (1983) 139 Cal.App.3d 989, 997.) The ultimate goal in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. (IT Corp, supra, 35 Cal.3d at pp. 72-73.)

Under these principles, the equities lean heavily in Petitioners’ favor. First, Petitioners seek a writ of mandate setting aside CDF’s unlawful approval of two THPs. If the THPs are allowed to go forward, there are not other remedies that could compensate Petitioners and the public they represent. Monetary damages and penalties are not available, and even if they were, they would be of little redress. Petitioners are not after money; they are after a current management plan, evaluation of timber harvest plans in accordance with it, and environmental protection. The lack of alternative remedies therefor favors Petitioners.

Respondents’ contention that Petitioners will not be harmed if the THPs are logged, ignores the obvious fact that logging itself is a harm, if the THPs were illegally approved. This was the conclusion of the Ninth Circuit in Idaho Sporting Congress, supra, 222 F.3d 562. In that case, plaintiffs sought a preliminary injunction to stop a logging operation in a national forest. The court found that they were likely to prevail in their claim that the Forest Service violated the National Environmental Policy Act in reconsidering certain timber sales pursuant to a "supplemental information report," rather than a supplemental "environmental assessment" or supplemental "environmental impact statement." (Id. at 568-569.) The Forest Service argued that the district court’s denial of the preliminary injunction should be upheld regardless of the merits of plaintiffs’ claim, because plaintiffs failed to demonstrate irreparable harm if logging went forward. (Id. at 569.) The Ninth Circuit disagreed and held that logging itself constituted irreparable injury:

‘Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable.’ [Citation.] ‘Consequently, when environmental injury is ‘sufficiently likely, the balance of harms will usually favor the issuance of an injunction to protect the environment.’ [Citations.] [¶] Such is the case here. The Forest Service has admitted in its brief that at the time we granted ISC’s motion for an injunction pending appeal, logging activities were occurring at Filly Creek and could have begun soon at Rubicon and Fourmile. Additionally, the SIR for the West Pine Skyline timber sale reveals that logging at that site is already at least 75% complete. This evidence of environmental harm is sufficient to tip the balance in favor of injunctive relief.

(Idaho Sporting Congress, supra, 222 F.3d at 569 [emphasis added].)

But here, Petitioners have made a showing beyond that found sufficient in Idaho Sporting Congress. As Petitioners demonstrated in their opening brief, THPs 483 and 484 are located in a unique region of JDSF, the north-central region, the logging of which went largely unexamined in the 1983 Management Plan. (CDF depo., pp. 53:19-54:22, 58:11-59:14, 82:7-84:13; compare Exh. U [map of 10–year schedule of 1983 Management Plan] with Exh. V [colorized map of logged areas by 1992] with Exh. W [colorized map of logged, unlogged, and pending operations as of 2001].) The north–central region comprises approximately 9,000 acres of mature, even-aged, second-growth forest. Indeed, it is the largest such stand in JDSF. (CDF depo., pp. 69:12-70:3.) By 1992, it was largely "unentered, meaning that it had not been logged since it was originally cut early this century. (CDF depo., pp. 69:16-24.) It is characterized by larger trees and a continuous canopy. (CDF depo., pp. 72:3-13, 77:3-8.) Although the north–central region comprises only one-fifth the area of JDSF, it contains half of JDSF’s maintained campsites and a number of trails, many situated along flowing streams, making it the most attractive and popular destination for the camping public. (CDF depo., pp. 73:1-10, 80:1-9.) Not surprisingly, in the opinion of John Griffin, manager of JDSF’s timber sales program: "[T]o my sense of aesthetics, it has a higher value than much of the rest of Jackson State Forest." (CDF depo., p. 74:10-24.)

In addition, Petitioners have provided the declaration of Dr. Alan Cooperrider in which he avers that CDF’s continued logging of JDSF in the absence of a current management plan will result in irreparable harm for a variety of reasons: During the past 20 years, JDSF has suffered cumulative impacts from logging. Continuing and loosely regulated timber harvesting of second and third-growth forests in JDSF "have reduced the amount of forest with mature stands of native trees and particularly the amount of large blocks of contiguous mature forest," resulting in the "degradation and destruction of habitats and ecosystems." (Cooperrider dec., ¶¶ 7-8.) Logging and related activities, such as road building, have resulted in increased sedimentation of streams. (Cooperrider dec., ¶ 7.) The result has been the endangerment of several species and the impairment of the Noyo and Big Rivers. (Cooperrider dec., ¶¶ 6-8.) Since the publication of the 1983 Management Plan, the science of forest conservation has dramatically evolved. (Cooperrider dec., ¶¶ 12-18.) (Even CDF acknowledges these developments. (CDF depo., p. 109:9-13.)) New scientific disciplines have emerged during the past 15 years to deal with the cumulative impacts from logging and other land-use activities. This information has rendered the 1983 Management Plan obsolete. (Cooperrider dec., ¶¶ 13-18.) "[D]evoid of information relevant to current biological conditions and problems in JDSF," the 1983 Management Plan is "not current by any scientific standard." (Cooperrider dec., ¶ 20.) In addition, Cooperrider has seen no evidence that CDF is implementing current scientific information–"such as development of landscape ecology, conservation biology, and population viability analysis, use of GIS, or incorporating monitoring into management"—in its management of JDSF. (Cooperrider dec., ¶ 21.)

As a result, every management action on JDSF is basically an ad-hoc one, a decision made without the benefit of any overall consideration of cumulative effects. Unfortunately, most of the actions being taken are continued logging of the forest—the same activity that has led to most of the current biological problems. And some of these decisions may have long-term implications. For example, logging of a stand of trees that is now suitable for, or close to suitable for marbled murrelet nesting could prevent future nesting in that area for 300 to 500 years. [¶] Without a current management plan, continued logging of JDSF is likely to exacerbate the deteriorating conditions resulting in continued loss and endangerment of species.

(Cooperrider dec., ¶¶ 21-22.)

In weighing the injunction, Petitioners request the Court to consider the fact that CDF’s purported plight is quintessentially one of its own making. For seven years now, it must be remembered, the public and their elected representatives have done everything short of litigation to try to get CDF to obey the law. (See, e.g., AR 192, 196-198, 508-510; Exhs. E, F, M.) To each entreaty by the public, CDF has countered that a new management plan was imminent (e.g., AR 842-843; Exh. G, p. 8), or would follow preparation of some other vital document, such as a habitat conservation plan or a sustained yield plan. (E.g., Exh. M.) Yet not one of these documents has ever materialized. CDF can not be surprised that it finally faces a preliminary injunction, having so willfully and so long ignored the pleas of a frustrated public.

CDF reminds one of the boy who murdered his parents, then pleaded for mercy because he was an orphan. No agency is more deserving of this lawsuit and a preliminary injunction.

Finally, Respondents have not requested an injunction bond and Petitioners request the Court not to impose one, or to impose a nominal bond. The Legislature has directed the citizens of California to enforce its environmental laws. If such directive is to have any meaning at all, the bond requirement of Code of Civil Procedure section 529 must be waived in environmental litigation. The Legislature made clear that citizens, as well as public entities, should assist in enforcing its environmental laws: "Every citizen has a responsibility to contribute to the preservation and enhancement of the environment" (§ 21000, subd. (e)); and that "all action necessary to protect, rehabilitate, and enhance the environmental quality of California" must be taken. (§ 21001, subd. (a).) The Legislature also encouraged citizen enforcement of lawsuits in the public interest by enacting the private attorney general statute, Code of Civil Procedure section 1021.5, which awards attorney’s fees and costs to private plaintiffs when they successfully bring public interest litigation.

Imposition of a substantial bond requirement where an environmental plaintiff has successfully enjoined a project would frustrate the very policy of citizen enforcement that the California Legislature and courts have sought to encourage. Faced with an analogous statutory scheme, the federal courts have had little trouble in harmonizing the federal mandatory injunction requirement with the federal policy favoring private enforcement of the National Environmental Policy Act. Rule 65(c) of the Federal Rules of Civil Procedure is no less mandatory than section 529: it requires the issuance of a bond when a preliminary injunction is granted. (Massachusetts Mutual v. Associated Dry Goods (N.D.Ind. 1992) 786 F.Supp. 1403, 1430-1431.)

Notwithstanding its literal language, the federal courts have recognized that strict application of Rule 65(c) would contravene NEPA’s policy encouraging private enforcement of its mandate to protect the environment. (E.g., Wisconsin Heritages, Inc. v. Harris (E.D.Wis. 1979) 476 F.Supp. 300, 302 [plaintiff—a non–profit group without a financial interest in the outcome of the suit—would be deterred from enforcing NEPA actions if forced to post thousands of dollars in security]; Friends Of The Earth v. Brinegar (9th Cir. 1975) 518 F.2d 322, 323; Natural Resources Defense Council, Inc. v. Morton (D.D.C.1971) 337 F.Supp. 167, 168-169 ["requirement of more than a nominal amount as security would ... stifle" NEPA].)

The same reasoning applies here. A strict application of section 529 to suits brought by citizens or non-profit organizations seeking to protect the California environment would contravene the Legislature’s intent to promote such enforcement as a means to protect the environment. Environmental plaintiffs initiate litigation without any financial stake in the outcome of the case. Making them individually liable on a substantial bond for an injunction obtained on behalf of the public is unfair and senseless. It penalizes them for their commitment to the enforcement of the laws and to the public good.

In any event, as the declarations of Vincent Taylor regarding Petitioners’ finances demonstrate, Petitioners could not afford to post a substantial bond. A court may waive an injunction bond in the case of indigency. (Civ. Pro. Code, § 995.240; Conover v. Hall (1974) 11 Cal.3d 842, 852; People Ex Rel Van De Kamp v. Tahoe Regional Plan (9th Cir. 1985) 766 F.2d 1319, 1325 [no bond where plaintiff "a non-profit environmental group, indicates that it is unable to post a substantial bond"].) And a court retains the common law power to waive a bond in environmental cases. (Civ. Pro. Code, § 995.240 [Law Revision Commission Comment: "[Section 995.240] codifies the common law authority of the courts."].)

Dated: May 2, 2001

On May 2, 2001, I served one true copy of: PETITONERS’ REPLY BRIEF IN SUPPORT OF PRELIMINARY INJUNCTION, OBJECTIONS TO EVIDENCE RELATING TO PRELIMINARY INJUNCTION, APPLICATION FOR OVERSIZED REPLY BRIEF, DECLARATION OF VINCE TAYLOR REGARDING CAMPAIGN TO RESTORE JACKSON STATE REDWOOD FOREST, DECLARATION OF VINCE TAYLOR REGARDING DHARMA CLOUD CHARITABLE FOUNDATION TRUST by transmitting via facsimile from fax number 650 322-5652 to the fax number listed below. The transmission was completed before 5:00 p.m. and was reported complete and without error. The transmission report, attached, was properly issued by the transmitting fax machine.

Charles Getz, IV

__________________________________