IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT, DIVISION ____

(Two Volumes of Exhibits Filed Under Separate Cover)

PAUL V. CARROLL/121369
Attorney At Law
5 Manor Place
Menlo Park, California 94025
(650) 322-5652

Attorney for Petitioners

Petitioners moved to enjoin logging in California’s largest state forest, on the ground that its new management plan violated CEQA. The trial court found that Petitioners were likely to prevail. But it denied the injunction on the theory it would have no effect, since logging could proceed under a previous plan. But all parties agree—and the court did not find otherwise—that logging is occurring under the new plan. Did the trial court err?

Established in 1947, and by far California’s largest state forest, Jackson Demonstration State Forest (JDSF) is a public treasure. Comprising over 48,000 acres in Mendocino County, it reaches from the Pacific coast in the west to the ridge of the inland valleys to the east. It is criss–crossed by almost 100 miles of rivers and streams, including the Noyo and Big Rivers, Caspar Creek, and Hare Creek. It is a trove of diversity, home to thousands of species, some abundant, some declining, and some all but gone. It also contains the oldest stands of unprotected redwood trees in Mendocino County. As this petition is being drafted those trees are being felled.

Petitioners have brought a lawsuit under the California Environmental Quality Act challenging Real Parties’ approval of the JDSF management plan and certification of its EIR. On May 30, 2003, the trial court heard Petitioners’ motion for preliminary injunction to stop CDF from entering into contracts to sell two timber harvest plans, comprising over 900 acres, to private bidders. The court agreed that Petitioners were likely to prevail on the merits, but denied their preliminary injunction, on the ground that—even if granted—logging could take place under a previous management plan approved in 1983. But logging is not occurring under the old plan and the court did not find that it was. Indeed, even Real Parties insist that logging is occurring under the new, challenged management plan. Besides, logging is prohibited under the old management plan pursuant to a settlement agreement that the trial court signed as an order.

The court’s error is inexplicable. It denied Petitioners’ motion based on the assumption that an injunction would have no effect. But it clearly would. It would stop logging, because logging is going forward under the challenged management plan! If Real Parties were to try to continue logging under the old 1983 management plan, Petitioners could move pursuant to Code of Civil Procedure section 664.6 to specifically enforce the settlement agreement barring such logging.

The trial court’s order leaves Petitioners in a limbo: they cannot specifically enforce the settlement agreement relating to the old plan, because logging is going forward under the new one, and they cannot stop logging under the new plan, because of the theoretical possibility—however illegal—it may go forward under the old one.

If this is disorienting, it is because the trial court went to such peculiar lengths to deny the preliminary injunction even as it found Petitioners were likely to prevail on the merits. Respectfully, the trial court should have decided whether logging should be allowed to proceed under the new management plan given the likelihood that it and its EIR will be set aside. If Real Parties then contend that logging can proceed under the old plan, notwithstanding the settlement agreement, the court can then address that question.

Petitioners will show that the trial court erred and that irreparable harm will befall it and the environment unless relief is granted.

Petitioners petition this Court for a Peremptory Writ of Mandate, Prohibition, or other appropriate writ, or an alternate writ directed to Respondent Superior Court of Mendocino County (1) to set aside its order of June 10, 2003, denying Petitioners’ motion for preliminary injunction, and (2) to enter a new and different order granting Petitioners’ motion in light of its finding that Petitioners are likely to proceed on the merits. Petitioners also seek an immediate emergency stay of timber harvesting activities pursuant to Timber Harvest Plans 1-99-483 MEN and 1-99-484 MEN, and by this verified petition, Petitioners allege:

1. Petitioners will call the present case Campaign II. In a predecessor case, which Petitioners will call Campaign I, Respondent court below awarded Petitioners attorney fees under Code of Civil Procedure section 1021.5 after reconsideration. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (Super. Ct. Mendocino County, 2002, No. 0083611.) Respondents below have appealed that order in Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (A102405, Div. 2, app. pending).

2. Petitioners here are Campaign To Restore Jackson State Redwood Forest Dharma Cloud Charitable Foundation Trust, and Forests Forever Foundation. They are petitioners in the superior court action below and are aggrieved by the Respondent court’s denial of their motion for a preliminary injunction.

3. Respondent Mendocino County Superior Court (Honorable Richard Henderson) is the superior court before which the above-entitled action was pending and the court that issued the order that Petitioners ask this Court to overturn.

4. Real parties in interest are the California Department of Forestry and Fire Protection (CDF) and the California Board of Forestry (Board), collectively "CDF." CDF and the Board are agencies of the State of California. They are the Respondents in the action below.

5. Real parties in interest also include Mendocino Forest Products, LLC, Willits Redwood Company, Inc., and Anderson Logging, Inc. Mendocino Forest Products has entered into a final sales contract for the logging of THP 483 (540 acres). Willits Redwood Company has entered into a final sales contract for the logging of THP 484 (366 acres). Anderson Logging has contracted with the other real parties to perform logging operations.

6. On October 24, 2002, Petitioners filed an amended petition for writ of mandate in the below court. (Exh. A, App. 1-12.) Petitioners’ lawsuit seeks a writ of mandate under the Californian Environmental Quality Act (CEQA) setting aside the approval of the Jackson Demonstration State Forest Management Plan and certification of its EIR by real parties CDF and Board. Among other things, the petition alleges that the Board and CDF failed to consider cumulative impacts, failed to describe the regional setting, that the Board failed to make findings, failed to certify the EIR, failed to adopt a mitigation monitoring plan, and that CDF was not the lead agency. (Exh. A, App. 1-12.)

7. The hearing on Petitioners’ petition for writ of mandate in the Respondent court is scheduled for July 7, 2003.

8. On May 8, 2003, Petitioners moved for a temporary restraining order and preliminary injunction restraining CDF from selling and logging THPs 483 and 484. At that time, no contracts between CDF and private bidders had been finalized. (Exh. C, App. 17, 24-27.)

9. The hearing on the TRO was heard on May 15, 2003, and opposed by Respondents. Seven days later, on May 22, 2003, the court denied the TRO in a written order. (Exh. B, App. 13-15.)

10. The court heard Petitioners’ motion for preliminary injunction on May 30, 2003. The motion was based on Petitioners’ opening memorandum, Real party CDF’s opposition, and Petitioners reply, as well as declarations submitted by Petitioners, by CDF, Petitioners’ objections to evidence, CDF’s response to objections, and Petitioners’ and CDF’s respective requests for judicial notice. (Exhs. C-T, App. 17-285) The trial court permitted extensive argument, but asked few questions. The trial court took under submission Petitioners’ objections to evidence, as well as the parties’ respective requests for judicial notice.

11. At the hearing, CDF represented to the court that no contracts had yet been awarded to any third–party private contractors, and that contracts probably would not be awarded for another week.

12. Eleven days later on June 10, 2003, the trial court issued its 5–page order denying the injunction. (Exh. U, App. 286-291.)

13. Unbeknownst to Petitioners, the contracts were awarded during the interim. Real Party Mendocino Forest Products was awarded the contract for the logging of THP 483. (Exh. L, app. 231-233.) Real Party Willits Redwood Company was awarded the contract for the logging of THP 484. (Exh. K, App. 228-230.) Real party Anderson Logging has contracted with the other real parties to perform logging operations. (Exh. J, App. 225-227.)

14. On Thursday June 12, 2003, Petitioners learned that logging had commenced the previous day, June 11, 2003. Petitioners have represented to their counsel that they have gone to the site of THP 484 and observed trees being felled.

15. In its order denying Petitioners request for preliminary injunction, the Respondent court found that Petitioners were likely to prevail on the merits in their challenge to CDF’s approval of the new management plan and certification of its EIR. (Exh. U, App. 289-290.) But it denied the preliminary injunction on the ground that even if the new management plan were set aside, logging could proceed under an old one approved in 1983. (Exh. U, App. 287-288.) The trial court’s decision was clearly erroneous as a matter of fact and law. It is agreed by all parties to this litigation—and the trial court did not find otherwise—that the only logging that is going forward is going forward under the new management plan. (Exh. M, App. 236, ¶ 8; Exh. Z, App. 323.) An injunction would stop logging under the new management plan.

16. The old management plan is the subject of a settlement agreement in a previous action, namely Campaign I. (Exh. V, App. 292-298.) That settlement agreement bars any and all logging in JDSF under the old management plan. (Exh. V, App. 293-294.) If Real parties were to attempt to log under the old management plan, Petitioners would bring a motion pursuant to Code of Civil Procedure section 664.6 to specifically enforce the terms of the settlement agreement and bar any logging under it. But they cannot bring such a motion now, because the terms of the settlement agreement are not being breached, as logging is not going forward under the old plan, but the new one.

17. The precise arguments why Respondent court’s order is erroneous and constitutes an abuse of discretion are set forth more fully in the accompanying memorandum of points and authorities, and the many exhibits cited therein.

18. To understand the proceedings below, it is helpful to understand the predecessor case, Campaign I. In 2001, CDF was managing JDSF under the old 1983 management plan that—by its own terms—would need "a major review at the midpoint of its effective period (1987), and be completely revised in 1992." But CDF did not conduct a major review, nor approve a new plan in 1992. In 2001, two Petitioners in this case sued CDF and the Board for its continued management of JDSF in the absence of a current management plan—Campaign I. (Exh. W, App. 299-312.)

19. At the time, CDF intended to sell THPs 483 and 484—the same two logging operations at issue here. Petitioners moved for preliminary injunction to prevent CDF from awarding contracts for their logging. The motion was granted and the Respondent court’s 5–page written decision provides valuable background and insight into the previous case. (Exh. X, App. 314-318.)

20. Campaign I quickly settled and a settlement agreement was signed by all the parties, their counsel, and the Respondent court. In various ways, the key provisions of the settlement agreement make clear that logging can only go forward under a new management plan and EIR, and not under the old 1983 plan. (Exh. V, App. 293-294.)

21. Petitioners moved for attorney fees under Code of Civil Procedure section 1021.5 in Campaign I. The Respondent court denied their motion. Petitioners moved for reconsideration and the court granted attorney fees. (Exh. Y, App. 319-322.) Respondents have appealed from that order. (Campaign to Restore Jackson State Redwood Forest v. California Department of Forestry and Fire Protection (A102405, Div. 2, app. pending.)

22. On June 13, 2003, counsel for Petitioners spoke by phone with counsel for CDF, Charles Getz. Counsel for Petitioners told Mr. Getz that he intended to move for a temporary restraining order and specific enforcement of the settlement agreement to stop CDF from permitting logging to go forward in JDSF under the old management plan. Mr. Getz called the tactic "outrageous" and said he would seek sanctions if Petitioners brought such a motion. He pointed out that there was uncontroverted sworn testimony in the declaration of CDF’s in-house counsel, Norm Hill, that all logging was proceeding under the new management plan. Following that conversation, Mr. Getz faxed counsel for petitioners a letter reiterating his insistence that all logging was proceeding under the new management plan. (Exh. Z, App. 293-294.)

23. Accordingly, Petitioners have no plain, speedy or adequate remedy at law other than the relief sought in this Petition. Unless the writ issues, JDSF will be logged as the case proceeds to trial and thereafter, rendering the controversy moot. Indeed the Respondent court’s ruling means that logging will continue even after Petitioners prevail at trial. Moreover, unless this Court issues an immediate stay, logging will continue, resulting in harm to the environment and to Petitioners. The ability to appeal the trial court’s denial of the request for a preliminary injunction is inadequate, because any appeal will be heard long after logging has been completed, mooting the controversy.

WHEREFORE, Petitioners pray:

1. That this Court immediately stay timber operations on THPs 1-99-483 MEN and 1-99-484 MEN, pending the final determination of this Petition;

2. That this Court issue a peremptory writ of mandate, prohibition or other appropriate writ in the first instance under seal of this Court directing Respondent court to: (1) vacate its order denying Petitioners’ application for a preliminary injunction, and (2) enter a new order granting a preliminary injunction;

3. That if a peremptory writ does not issue in the first instance, this Court issue an alternative writ of mandate, prohibition or other appropriate writ directing Respondent court to show cause at a time and date ordered, why that Court should not set aside its order denying Petitioners’ motion for preliminary injunction, and enter a new and different order granting that motion;

4. That Petitioners recover the costs of this action, including attorney fees; and

5. That this Court grant such other relief as may be just and proper.

Dated: June 17, 2003